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HomeMy WebLinkAboutExhibit B - DeweyPaul D. Dewey Attorney at Law February 29, 2008 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Thornburgh Destination Resort Court of Appeals and LUBA Remand on Conceptual Master Plan; CU -05-20 Dear Commissioners: 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewey@bendcable.com BY: RECEIVED FEB 2 9 2008 DELIV ED BY: This letter on behalf of Nvnzie Gould is in response to your undated notice, "REQUEST FOR WRITTEN ARGUMENT," allowing written comments on issues remanded by the Land Use Board of Appeals for the Court's approval of the Thornburgh Conceptual Master Plan ("CMP") application. The proposed approach of a "hearing" on only the record developed in the previous decision is not sufficient. The record should be reopened to receive new evidence on the remand issues and on any proposed findings and conditions to be drafted for the hearing, as described below. The record on remand apparently includes only the record below plus the REQUEST FOR WRITTEN ARGUMENT and the December 31, 2007, Staff Report. As an initial matter, we object to the County's procedural violations in handling this CMP and Thomburgh's related Final Master Plan ("FMP") application. See our attached letter of February 11, 2008. Given the Board's apparent predetermination on the issues of whether to open the record and whether to have a public hearing on the fish and wildlife plan at the CMP level, we question why the Board is even having this comment period on the remand. We further question andobject to the County's failure to identify what it refers to as "the missing documentation" at the bottom of page 2 of the County legal counsel's February 4 letter. First Assignment of Error The inconsistencies between the Phasing Plan and Overnight and Density Calculations Chart in the evidentiary record cannot be addressed simply by words of a new finding. The revised calculation chart identified as the correct chart by Thornburgh was in the decision record, but not as evidence. It was attached to a legal argument made by the Applicant after the record was closed. LUBA specifically ruled that this was not "evidence" (LUBA Decision at p. 16,11 16), so there is no evidence in the record. LUBA's reference to the County making a condition of approval does not obviate the need to have an evidentiary basis in the record. EXHIBIT February 29, 2008 Page 2 In addition, the CMP is the legal basis for the FMP. DCC 18.113.100(A) and (B) require that the FMP meet "all standards of the CMP" and that a substantial change in the FMP results in an amendment of the CMP. If there are no adopted standards in the CMP, how can the FMP be deemed to have met them and how can determination of a "substantial change" be made? Therefore, the record must be reopened for a clear, definitive Phasing Plan and Calculations Chart to be in evidence and for the public to be heard on then. The FMP cannot be compared for compliance with the CMP if the CMP Phasing Plan and Calculations Chart are not clear and definitive. Third Assignment of Error There are no findings or conditions that would require the first 50 units to be constructed prior to the sale of lots as required by state law. Therefore, there is nothing to comment on except to restate the law as LUBA did. Thornburgh should also be required to identify in the CMP where these first 50 units will be to check on adequacy of access and consistency with the phasing plan. Fourth Assignment of Error A finding of fact on a corrected phasing plan can be made only after a clear, definitive plan is in evidence. As discussed above, a reopening of the record at a hearing is needed to accomplish that. Fifth Assignment of Error The "REQUEST FOR WRITTEN ARGUMENT" is incorrect in stating that the Court of Appeals rejected this Assignment of Error. Rather, the Court of Appeals rejected Thornburgh's cross-appeal on the issue. LUBA required that Thornburgh "request a change in the CMP to allow additional lot dimensions" if it wants lots of a type different from what it identified in the CMP. The statement in the "REQUEST FOR WRITTEN ARGUMENT" that the language in this finding will be clarified by the Board does not address LUBA's requirement. Eighth Assignment of Error The record must be reopened at a hearing to identify, review and add evidence on the safety and efficiency of the access within the project for each phase. Thornburgh argued that the issue would be addressed with public participation at the FMP level. L UBA Decision . 43) LUBA ruled that providing a public hearing when the FMP is approved doesn't mean that there does not need to be compliance with the CMP. (LUBA Decision, p. 43) There is simply not enough evidence in the record for the Board to make findings on this issue. There is no evidence, for example, of a road that is to access the southwest corner of the development on the west side of Barr Road. The Board has already decided there will be no use of Barr Road, but any southwest access road would use Barr Road at least in crossing it. There is also no evidence in the record of the adequacy of the resort road system to handle emergencies (due, in part, to no detailed emergency access plan being done). There is likewise no evidence of the capacity of the roads to handle an evacuation, such as when roads funnel into each other and February 29, 2008 Page 3 as they would exit to Highway 126 or the two access roads to Cline Falls Highway (which are too close together to qualify as an additional emergency access) or the connecting roads between the two parts of the resort. Since much of the development and major sections of roads are "uphill" on the slopes of Cline Buttes and since fire moves more quickly uphill, these roads aren't adequate. Additionally, the Vehicular Access and Circulation Plan (Revised Ex. A-1.6) is schematic at best and does not even show topography. It is not clear when all the roads would be built since the Phasing Plan (Revised Ex. B-1.8) does not show all the roads. Both maps also improperly show connecting roads to Barr Road. Eleventh Assignment of Error The fish and wildlife plan is part of the CMP requirements. DCC 18.113.070(D) states: "Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource." A reopening of the record is needed for additional evidence concerning the currently absent fish and wildlife plan, giving the public an opportunity to be heard on it. Based on the absence of a plan and evidence to support sufficient findings under DCC 18.113.070(D) or a deferral to the FMP, Thornburgh's CMP must be denied. Again, the CMP is the legal basis for the FMP. The FMP cannot be compared for compliance with the CMP as required by DCC 18.113.100 if a fish and wildlife plan is not part of the CMP. Very truly yours, PAUL DEWEY PD:ao cc: Client