HomeMy WebLinkAboutExhibit D - LUBA Decision1 BEFORE THE LAND USE BOARD OF APPEALS
2 OF THE STATE OF OREGON
3
4 ANNUNZIATA GOULD,
5 Petitioner,
6
7 vs.
8
9 DESCHUTES COUNTY,
10 Respondent,
11
12 and
13
14 THORNBURGH RESORT COMPANY, LLC and
15 CENTRAL OREGON IRRIGATION DISTRICT,
16 Intervenor -Respondents.
17
18 LUBA No. 2006-100
19
20 STEVE MUNSON,
21 Petitioner,
22
23 vs.
24
25 DESCHUTES COUNTY,
26 Respondent,
27
28 and
29
30 THORNBURGH RESORT COMPANY, LLC and
31 CENTRAL OREGON IRRIGATION DISTRICT,
32 Intervenor -Respondents.
33
34 LUBA No. 2006-101
35
36 FINAL OPINION
37 AND ORDER
38
39 Appeal from Deschutes County.
40
41 Paul D. Dewey, Bend, filed a petition for review and argued on behalf of petitioner
42 Gould.
43
44 Jannett Wilson, Eugene, filed a petition for review and argued on behalf of petitioner
45 Munson. With her on the brief was the Goal One Coalition.
Page 1
EXHIBIT
1
2 Laurie E. Craghead, Assistant County Legal Counsel, Bend, filed a response brief and
3 argued on behalf of respondent.
4
5 Peter Livingston, Portland, filed a response brief and argued on behalf of intervenor-
6 respondent Thornburgh Resort Company, LLC. With him on the brief was Schwabe,
7 Williamson & Wyatt, PC.
8
9 Elizabeth A. Dickson and Jennifer L. Coughlin, Bend, filed a response brief and
10 argued on behalf of intervenor-respondent Central Oregon Irrigation District. With them on
11 the brief was Hurley Re & Gruetter, PC.
12
13 Renee Moulun, Assistant Attorney General, Salem, filed a State Agency Brief on
14 behalf of the Oregon Water Resources Department. With her on the brief was Steven E.
15 Shipsey.
16
17 HOLSTUN, Board Member: BASSHAM, Board Chair; RYAN, Board Member,
18 participated in the decision.
19
20 REMANDED 05/14/2007
21
22 You are entitled to judicial review of this Order. Judicial review is governed by the
23 provisions of ORS 197.850.
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1 Opinion by Holstun.
2 NATURE OF THE DECISION
3 Petitioners Gould and Manson appeal a decision by the board of county
4 commissioners that grants conditional use and conceptual master plan approval for a
5 destination resort.
6 REPLY BRIEF
7 Petitioner Gould moves for permission to file a reply brief to respond to new matters
8 that are raised in intervenor -respondent Thomburgh's Response Brief (Thomburgh's
9 Response Brief). The motion is granted.
10 THE PROPOSAL
11 A map from the record showing the proposed destination resort is attached as
12 Appendix A. Petitioner Gould's Petition for Review (Gould's PFR) includes the following
13 description of the proposed destination resort:
14 "The subject property consists of about 1,970 acres of land and is located in
15 Central Oregon east of Sisters, north of Tumalo and Bend and west of
16 Redmond. The land is zoned Exclusive Farm Use and is also mapped as part
17 of the Destination Resort Overlay Zone. The property is on the west and
18 south flanks of Cline Buttes, a prominent geologic feature of the area.
19 "There are two separate areas of the subject property, one to the north and one
20 to the south, bisected by a steep ridge and U.S. Bureau of Land Management
21 (`BLM') lands. BLM lands adjoin the property on all sides except on the very
22 north where there is private property. There is also a parcel of Oregon
23 Division of State Lands (`DSL') property on the east.
24
25 "The proposed development consists of two `villages,' one in the south part
26 called the `Tribute' and one in the north part called the `Pinnacle.' The
27 Tribute would include approximately 1,240 acres of land and the Pinnacle
28 would include approximately 730 acres. The development would be
29 constructed in seven phases (Phases A through G), with an ultimate build -out
30 date around 2018.
31 "The developer proposes building a total of 1,425 dwelling units. There
32 would be 1,375 single residential units with 950 of them as single-family
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1 dwellings and 425 of them as * * * residential units [that are] available for use
2 as overnight accommodations. Additionally, there would be 50 hotel units.
3 "The Tribute area is planned to include two golf courses, a golf practice area,
4 golf clubhouse, community center and eating and meeting facilities. The
5 Pinnacle area is planned to have one golf course, a resort hotel, a resort retail
6 area, a recreational lake and a lake/boating clubhouse." Gould's PFR 6-7
7 (record citations and footnote omitted).
8 OVERVIEW OF THE COUNTY'S DESTINATION RESORT APPROVAL PROCESS
9 The legal standards that directly govern approval of destination resorts appear in state
10 statutes, a statewide planning goal and local law. ORS 197.435 to 197.467; Goal 8
11 (Recreational Needs); Deschutes County Code (DCC) Chapter 18.113. Under DCC Chapter
12 18.113, there are three steps to secure approval for a destination resort. The first step is
13 approval of a conceptual master plan (CMP). DCC 18.113.040(A). Pursuant to DCC
14 18.113.040(A), a CMP application is "processed as if it were a conditional use permit * * *."
15 The decision that is before us in this appeal is the county's approval of intervenor -
16 respondent's (Thornburgh's) CMP. The second step is approval of a final master plan
17 (FMP). DCC 18.113.040(B). The third step is approval of individual components or phases
18 of the destination resort, through site plan or subdivision approval. DCC 18.113.040(C).
19 The CMP is the "framework" for ensuring that the destination resort complies with
20 the relevant standards and approval criteria.' DCC 18.113.050 sets out a long list of items of
21 information that must be included in an application for CMP approval. DCC 18.113.060 sets
22 out "[s]tandards for destination resorts." DCC 18.113.070 sets out "[a]pproval criteria" for
23 destination resorts. One of the DCC 18.113.050 information requirements, DCC
24 18.113.050(B)(3), is a requirement that an application for CMP approval describe "how the
1 Under DCC 18.113.050, "[tle CMP provides the framework for development of the destination resort
and is intended to ensure that the destination resort meets the requirements of DCC 18.113." (Emphasis
added.)
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1 proposed destination resort will satisfy the standards and criteria of DCC 18.113.060 and
2 18.113.070."2
3 Under DCC 18.113.075, the standards that apply under DCC 18.113 "may be met by
4 the imposition of conditions calculated to insure that the standard will be met."3 Once a
5 CMP has been approved, the planning director may later approve "insubstantial change[s}"
6 in the CMP administratively, without notice or any hearings; but "substantial change[s]"
7 must be reviewed and approved in the same way the original CMP was approved. DCC
8 18.113.080.4 Under DCC 18.113.100(A), the final master plan may be approved
9 administratively, without notice to the parties to the CMP approval or any additional
10 hearings, unless approval of the FMP "involves the exercise of discretion." If the exercise of
11 discretion is required to approve a FMP, the approval is "treated as a land use action," which
12 requires notice and a public hearing or notice of a decision on the land use action with a right
13 of appeal and a hearing on appeal.5 Id.
14 THE LEVEL OF DETAIL AND SPECIFICITY REQUIRED IN THE CMP
15 Whether Thornburgh (1) supplied the required level of detail and specificity in the
16 CMP to demonstrate how the proposed destination resort will comply with the many
2 Petitioners rely on DCC 18.113.050(B)(3) in several of their assignments of error to argue that the CMP
insufficiently explains "how the proposed destination resort will satisfy the standards and, criteria of DCC
18.113.060 and 18.113.070." (Emphasis added.)
3 In response to a number of assignments of error, intervenor contends the county properly relied on
conditions of approval to ensure that the destination resort will comply with the destination resort standards and
approval criteria at DCC 18.113.060 and 18.113.070.
4 A substantial change to a CMP "means an alteration in the type, scale, location, phasing or other
characteristic of the proposed development such that findings of fact on which the original [CMP] approval was
based would be materially affected."
5 DCC 18.113.040(B) provides:
"[Thornburgh] shall prepare a [FMP] which incorporates all requirements of the County
approval for the CMP. The Planning Director shall review the FMP to determine if it
complies with the approved CMP and all conditions of approval of the conditional use permit.
The Planning Director shall have the authority to approve, deny or return the FMP to
[Thornburgh] for additional information. * * *"
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1 standards in DCC 18.113.060 and approval criteria in DCC 18.113.070, or (2) failed to do so
2 and therefore may have improperly deferred decisions regarding those criteria to the FMP
3 approval stage is an issue that permeates this appeal. As previously noted, DCC
4 18.113.050(B)(3) expressly requires that the CMP include "[a] description of how the
5 proposed destination resort will satisfy the standards and criteria of DCC 18.113.060 and
6 18.113.070." Once the CMP is approved, unless subsequent amendments to the CMP are
7 approved, the FMP must comply with the CMP and any conditions the county attaches to the
8 CMP approval decision. DCC 18.113.040(B). See n 5. Given this relationship between the
9 two documents, petitioners argue a significant amount of detail and accuracy is required in
10 the CMP to allow the CMP to fulfill the role that DCC 18.113 envisions for that important
11 document. This position is driven in part by petitioners' concerns over the lack of certainty
12 about the opportunity for a public role in review and approval of the FMP. As noted earlier,
13 the county can approve a FMP without additional public hearings if its approval does not
14 require "the exercise of discretion." DCC 18.113.100(A). If significant decisions about the
15 nature, design and characteristics of the destination resort are deferred to the FMP stage,
16 petitioners might not have an opportunity to comment on those decisions.6
17 Thornburgh, on the other hand, emphasizes DCC 18.113.050, which describes the
18 CMP as a "framework." See n 1. Thornburgh also relies on the structure of DCC 18.113,
19 which clearly envisions that the CMP will be refined by the FMP which in turn will be
20 further refined by site design and subdivision review decisions. Finally, Thornburgh relies
6 Petitioners and Thomburgh dispute whether the FMP could be approved without additional public
hearings at which petitioners would have an opportunity to comment on and challenge the FMP. Petitioners are
correct that the DCC, as written, only requires such a public approval process if, in the words of DCC
18.113.100(A), approval of the FMP "involves the exercise of discretion." It seems likely to us, as Thornburgh
argues, that approval of a FMP for a proposal that is controversial and complicated as this one is will almost
certainly require decisions that call for the exercise of discretion and trigger a requirement for public review
process where petitioners can participate. But at this point, we cannot know for sure. Of course the county
could have eliminated any need to argue the point by imposing a condition of approval that requires a public
review process for approval of the FMP. The county did not do so. Thornburgh invites LUBA to require that
the county provide a public approval process for the FMP decision in this matter. We are not aware of any
authority that would allow us to require that the county do so.
Page 6
1 on DCC 18.113.075, which expressly provides that conditions may be imposed on CMPs to
2 assure the destination resort will comply with relevant standards and criteria. See n 3 and
3 associated text. The authority to impose conditions means that in some circumstances
4 identified defects in the proposed CMP may be corrected by imposing conditions of
5 approval. Given the relationships between the CMP and the FMP, and the FMP and site
6 design and subdivision stages of approval, Thornburgh argues it is entirely appropriate to
7 wait until the FMP stage to supply details and correct any minor discovered inaccuracies in
8 the CMP.
9 As is frequently the case with local land use regulatory schemes that provide for
10 multi -step approval processes, there is language in DCC 18.113 that lends some support to
11 both positions. However, in our view, the sometimes extreme positions that are taken by
12 petitioners on the one hand and Thornburgh on the other rely too heavily on the particular
13 wording in the sections of DCC 18.113 that lend some support to their particular view of the
14 level of detail that is required in the CMP and largely ignore other sections of DCC 18.113
15 that contradict or undercut that view. When DCC 18.113 is viewed as a whole, the county
16 has a fair amount of discretion in the level of detail it can or must require in a CMP.
17 However, the amount of discretion the county has in this regard is directly affected by the
18 nature and wording of particular approval standards and criteria that the CMP is required to
19 address. Some standards and approval criteria may require a fair amount of detail in the
20 CMP while others may permit a more conceptual proposal in the CMP that will be rendered
21 more precise in the FMP. Based on the nature and wording of the standard or criterion, the
22 CMP must be sufficiently detailed to provide (1) adequate assurances that each standard and
23 criterion will be met, and (2) an adequate understanding of how those standards and criteria
24 will be met. DCC 18.113.050(B)(3). See n 2. If the CMP is lacking in making either of
25 those showings, it may be possible for the county to impose conditions of approval under
26 DCC 18.113.075 that are adequate to ensure that the relevant standards and criteria will be
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1 met. See n 3.7 However, if conditions are not sufficient to correct any deficiencies in the
2 CMP, so that the CMP as conditioned demonstrates how all standards and criteria will be
3 satisfied, the county must require that the CMP be amended to do so.
4 Finally, the parties disagree over the bearing, if any, our decision in Rhyne v.
5 Multnomah County, 23 Or LUBA 442 (1992), has on the above issue. Rhyne did not directly
6 address the central dispute between the parties in this appeal (the level of specificity that is
7 required of a CMP to comply with DCC 18.113.050(B)(3)). But Rhyne does address a
8 closely related question (the options a land use decision maker has to ensure that
9 discretionary decision making occurs in the public phase of a multi -phase land use approval
10 process where the final phase does not guarantee a right of public participation). In Rhyne
11 we offered the following description of those options:
12 "Where the evidence presented during the first stage approval proceedings
13 raises questions concerning whether a particular approval criterion is satisfied,
14 a local government essentially has three options potentially available. First, it
15 may find that although the evidence is conflicting, the evidence nevertheless
16 i§ sufficient to support a finding that the standard is satisfied or that feasible
17 solutions to identified problems exist, and impose conditions if necessary.
18 Second, if the local government determines there is insufficient evidence to
19 determine the feasibility of compliance with the standard, it could on that
20 basis deny the application. Third, if the local government determines that
21 there is insufficient evidence to determine the feasibility of compliance with
22 the standard, instead of finding the standard is not met, it may defer a
23 determination concerning compliance with the standard to the second stage.
24 In selecting this third option, the local government is not finding all applicable
25 approval standards are complied with, or that it is feasible to do so, as part of
26 the first stage approval (as it does under the first option described above).
27 Therefore, the local government must assure that the second stage approval
28 process to which the decision making is deferred provides the statutorily
29 required notice and hearing, even though the local code may not require such
7 The authority to impose conditions of approval is a potentially powerful decision making tool for the
county. It essentially allows the county to modify or supplement the CMP to respond to defects in the CMP
that the county or parties identify. While it may be that identified defects cannot be corrected by imposing
conditions of approval, in many cases conditions of approval may allow the county to respond to and correct
identified defects and thereby permit the county to find that the CMP, as conditioned, shows that relevant
approval standards and criteria will be met.
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1 notice and hearing for second stage decisions in other circumstances." 23 Or
2 LUBA at 447-48 (citation and footnotes omitted).
3 We understand petitioners to argue that because DCC 18.113.050(B)(3) expressly
4 requires that the CMP include "[a] description of how the proposed destination resort will
5 satisfy the standards and criteria of DCC 18.113.060 and 18.113.070," one aspect of the first
6 Rhyne option is either unavailable to the county in approving the CMP or is significantly
7 circumscribed. Specifically, we understand petitioners to contend that in view of DCC
8 18.113.050(B)(3), the county does not have the option of simply finding that "feasible
9 solutions to identified problems exist." Rather, we understand petitioners to contend that
10 DCC 18.113.050(B)(3) requires that the CMP itself must provide a detailed explanation for
11 "how the proposed destination resort will satisfy the standards and criteria of DCC
12 18.113.060 and 18.113.070."
13 We do not see that the general rule we described in Rhyne is significantly affected by
14 DCC 18.113.050(B)(3). Turning first to Rhyne, that decision is not correctly read to say that
15 a local government adequately addresses mandatory approval criteria at the conclusion of the
16 public phase of a multi -stage process by adopting vague, unexplained references to "feasible
17 solutions to identified problems," which will be refined and selected in a later, non-public
18 stage. Even without a provision like DCC 18.113.050(B)(3), demonstrating that a land use
19 proposal satisfies relevant approval criteria, because there are "feasible solutions to identified
20 problems" regarding those approval criteria, requires some explanation of what those feasible
21 solutions are—in the evidentiary record, in the decision maker's findings or in both. If that
22 explanation is provided, that explanation of feasible solutions is an adequate substitute for a
23 more direct or precise fmding that the approval criterion is satisfied, and the choice among
24 those feasible solutions can occur in a technical or administrative review process, without
25 additional public hearings. Rhyne, 23 Or LUBA at 447 (citing Meyer v. City of Portland, 67
26 Or App 274, 280 n 3, 678 P2d 741 , rev den 297 Or 82 (1984)).
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1 The kind of explanation regarding feasible solutions to identified problems that
2 would likely suffice under the first Rhyne option would likely also suffice to provide the
3 description of "how the proposed destination resort will satisfy the standards and criteria of
4 DCC 18.113.060 and 18.113.070," which is required by DCC 18.113.050(B)(3). As is the
5 case under Meyer and Rhyne, we do not read DCC 18.113.050(B)(3) to dictate that the
6 county provide a detailed explanation for precisely what the ultimate solution will look Iike.
7 The county's explanation in approving the CMI' must be sufficient to provide a general
8 understanding of how the criteria will be met, but it need not include a resolution of all the
9 technical details that may need to be resolved prior to FMP or subdivision or site plan
10 approval. Meyer, 67 Or App at 280-82. We are acutely aware that the principle the Court of
11 Appeals described in Meyer, our elaboration on that principle in Rhyne and our further
12 elaboration on that principle here is fuzzy at the edges and that the principle may not be easy
13 to apply in all circumstances. The principle is an attempt to recognize and give effect to the
14 public's right to participate in a meaningful way when key decisions are made in a multi-
15 stage quasi-judicial land use proceeding, without running the risk of rendering the entire
16 process unworkable by requiring that every minor technical detail in a complex land
17 development proposal be finally resolved via public hearings at the initial approval stage.
18 With the above description of the proposal, the county destination resort review
19 process and the parties' general disagreement regarding the role that the CMP plays in that
20 process, we tum to the petitioners' assignments of error.
Page 10
1 GOULD'S FIRST ASSIGNMENT OF ERROR
2 A. The Ratio of Unrestricted Residential Units to Overnight Lodging Units
3 May not Exceed 2:1
4 Destination resorts must provide at least 150 units of "overnight lodging."8 The
5 approved CMP proposes more than 150 units of overnight lodging. However, in addition to
6 providing at least 150 overnight lodging units, a maximum 2:1 (residential units to overnight
7 lodging units) ratio is imposed on destination resorts. DCC 18.113.060(D)(2).9 That means
8 that if 950 units of unrestricted residential housing units are proposed, which is the case here,
9 there must be at least 475 units of overnight lodging in the proposed destination resort.
10 Moreover, pursuant to DCC 18.113.060(E)(2), if the destination resort is to be developed in
11 phases, the "first phase and each subsequent phase of the destination resort shall
12 cumulatively meet the minimum requirements of DCC 18.113.060." This means the 2:1 ratio
13 must be preserved as each phase is constructed. In her first assignment of error, petitioner
14 alleges the county erred in fording that Thornburgh adequately demonstrated how the
15 proposal will comply with the 2:1 ratio limitation that is imposed by DCC 18.113.060(2).
16 It does not seem that demonstrating how each phase of a destination resort will
17 comply with the 2:1 ratio limit should present much of a problem. But there was a fair
18 amount of confusion regarding this issue below. That confusion had not been cleared up at
19 the time Thornburgh presented its final legal argument, after the evidentiary record had
8 Under Goal 8, "hotel or motel rooms, cabins and time-share units" all qualify as overnight lodging. In
some circumstances, individually owned residences can also qualify as overnight lodging. Under DCC
18.113.060(DX2), "[i]ndividually-owned units shall be considered visitor -oriented lodging if they are available
for overnight rental use by the general public for at least 45 weeks per calendar year through one or more
central reservation and check-in service(s)." In eastern Oregon, Goal 8 only requires that individual units be
available for overnight use by the public for 38 weeks per calendar year to qualify as overnight lodging. The
subject property is in eastern Oregon. The 45 -week per calendar year standard in DCC 18.113.060(D)(2) is
therefore slightly more rigorous than the corresponding Goal 8 standard.
9 DCC 18.113.060(D)(2) provides, in part:
"Individually -owned residential units shall not exceed two such units for each unit of
visitor -oriented overnight lodging."
Page 11
1 closed. At that point Thornburgh was relying primarily on a phasing plan (Record 4230) and
2 an Overnight and Density Calculations chart (Record 1940) to demonstrate that the proposal
3 will comply with the 2:1 ratio limit.
4 The phasing plan shows a total of seven phases (Phase A through Phase G) and
5 indicates where on the destination resort property each phase of construction would occur.10
6 Each phase is made up of a number of pods." The pods that make up each phase are
7 displayed on the phasing plan and the type of development (e.g., residential housing, hotel,
8 overnight lodging) proposed for each pod is shown on the phasing plan.
9 To demonstrate that development of each phase will maintain the 2:1 ratio
10 requirement, Thornburgh also prepared an Overnight Density Calculations chart, which
11 appears at Record 1940. The relevant information from that chart is reproduced as Appendix
12 B to this opinion.
13 The ratio of residential units to overnight units is computed and displayed on the
14 Overnight Density Calculations chart by dividing the total residential units for each phase by
15 the total number of overnight units (hotel units plus residential overnight units). If the
16 destination resort is developed with the mix of hotel, residential overnight and residential
17 units shown on the Overnight and Density Calculations chart, the 2:1 ratio is maintained for
18 each of the seven phases.
19 B. Petitioner's Arguments and Thornburgh's Responses
20 There are a total of three inconsistencies in the phasing plan and the Overnight and
21 Density Calculations chart. The first inconsistency has to do with overnight units in Phases B
22 and C. The Overnight and Density Calculations chart shows 75 units of overnight dwelling
10 The time anticipated to construct each phase ranges from three years to four years and those phases
overlap somewhat: Phase A (2006-2009); Phase B (2008-2011), Phase C (2009-2012); Phase D (2008-2011);
Phase E (2010-2013); Phase F (2014-2018); and Phase G (2014-2018).
11 A pod is a sub -area of the destination resort site that is designated for commercial, residential, hotel or
overnight unit development. There is a total of 41 pods.
Page 12
1 units in Phase B and 75 units of overnight dwelling units in Phase C. The phasing plan
2 shows these overnight dwelling units in pod 27, which will be developed in Phase B.
3 Thornburgh took the position below in its fmal legal arguments that the phasing plan is
4 correct and the Overnight and Density Calculations chart should be corrected to be consistent
5 with the phasing plan. I2
6 The second inconsistency has to do with the 50 hotel units. The Overnight and
7 Density Calculations chart shows 25 hotel units will be developed in Phase F and 25 hotel
8 units will be developed in Phase G. The phasing plan shows these 50 hotel units will all be
9 developed in phase D. Thornburgh takes the position that the phasing plan is correct and the
10 Overnight and Density Calculations chart should be corrected to be consistent with the
11 phasing plan. 13
12 The final inconsistency has to do with the proposed 62.5 overnight dwelling units
13 shown on the Overnight and Density Calculations chart for Phase D. The legend on the
14 phasing plan does not show these overnight dwelling units being developed in Phase D.
15 Thornburgh takes the position that the phasing plan needs to be corrected to show that the
16 overnight dwellings will be developed with the hotel units that the phasing plan already
17 shows are to be developed in pod 30 during Phase D.
18 In addition to the three inconsistencies noted above, petitioner pointed out below that
19 the notation in the Overnight and Density Calculations Chart regarding the residential
20 overnight units proposed for Phase A has implications for the 2:1 ratio limit. See Appendix
21 B. If the 50 cottages are designed with lockoff units so that the 50 cottages function as 150
22 of the needed 475 overnight units, but those cottages are later modified to eliminate the
12 If this correction were made, the 2:1 ratio limit would not be violated (exceeded); the ratio would drop
below 2:1 in Phase B, when the 150 units of ovemight units are constructed, and the ratio would return to 2:1 in
Phase C.
13 If this correction were made, the 2:1 ratio limit would not be violated; but the ratio would drop below 2:1
in Phase D, when the 50 hotel units were constructed, and return to a 2:1 ratio in Phase G.
Page 13
1 lockoff capability, the destination resort would violate (exceed) the 2:1 ratio limit, unless
2 some additional measures were taken to add more overnight units or the number of
3 unrestricted residential units were reduced to maintain the 2:1 ratio.
4 C. The County's Findings
5 The board of county commissioners adopted the following findings to address the
6 above inconsistencies and the notation in the Overnight and Density Calculations chart:
7 "Opponents correctly observe that the Overnight and Density Calculations
8 page contains a note stating, `It is likely that the Phase A buildings will be
9 modified so that the lockoffs will not be used on a long term basis.' This note
10 is speculative. In view of the protections given overnight lodging by DCC
11 18.113.070(U) * * *, [Thornburgh] could not modify the use of the Phase A
12 buildings without returning to the County for a modification of this
13 conceptual master plan. If that were to occur, the overnight lodging
14 calculations would be reviewed anew before approval. Since the note is
15 inconsistent with the calculations in the table, the Board disregards it.
16 "Opponents also point out three inconsistencies between the types of
17 development shown on the Overnight and Density Calculations page and the
18 Phasing Plan * * *."
19 "These inconsistencies are insignificant. Even without correction the
20 Overnight and Density Calculations table and the Phasing Plan make clear
21 that the overnight lodging units and the individually owned residential units
22 will be distributed throughout the resort. More importantly, the mistakes in
23 the table and the plan, which can easily be corrected, do not raise a genuine
24 issue concerning whether the distribution of units will meet DCC 18.113
25 standards since, during the preparation of the final master plan, as required by
26 DCC 18.113.090(I). and (J), the number and location of residential lots and
27 overnight lodging units will be reviewed to assure consistency with code
28 requirements. * * *
29 "DCC 18.113 itself does not require the level of specificity that [Thornburth]
30 tried to provide. DCC 18.113.050(A)(4) requires only `Types and general
31 location of proposed development uses, including residential and commercial
32 uses.' * * * Because [Thornburgh] famished information that exceeds what is
33 required at this stage and a condition of approval is included to assure
34 compliance with the criterion, the County views the errors as harmless and
35 subject to correction later in the development process. In [Thornburgh's]
36 Final Argument to [the] Board of Commissioners * * * [Thornburgh]
37 demonstrated one way such errors could be corrected; however, it is not
38 necessary to adopt [Thornburgh's] demonstration exactly for this criterion to
39 be met." Record 47-48 (emphasis in original).
Page 14
1 D. Discussion
2 The 2:1 ratio limit is a pretty straightforward standard. See n 9. But just because the
3 2:1 ratio is straightforward does not mean the CMP need not show how each phase of the
4 destination resort will stay at or below the 2:1 ratio. One way a CMP can demonstrate how
5 that limit will be met would be to identify the number of unrestricted residential units in each
6 phase and the number of overnight units proposed for each phase, and divide the first number
7 by the second number to demonstrate that the 2:1 ratio will be achieved in each phase. That
8 is the approach Thornburgh took in this case. The third paragraph of the county's fmdings
9 quoted above erroneously suggests that the county is generally free to ignore inconsistencies
10 or errors in the CMP simply because the FMP will have to comply with the 2:1 ratio limit.
11 The FMP certainly could not deviate from an approved CMP that proposed phases that met
12 the 2:1 ratio and thereby violate the 2:1 ratio requirement. But it is the CMP that must
13 demonstrate how the 2:1 ratio will be achieved throughout each phase.
14 Equally erroneous is the county's suggestion in fourth paragraph quoted above that
15 the county is generally free to ignore errors or inconsistencies in the CMP regarding the
16 required 2:1 ratio limitation, simply because "DCC 18.113.050(A)(4) requires only `Types
17 and general location of proposed development uses, including residential and commercial
18 uses." Record 48. The DCC 18.113.060(D)(2) ratio must be maintained in each phase of the
19 destination resort's development. Under DCC 18.113.050(B)(3), the CMP must demonstrate
20 "how the proposed destination resort will satisfy" that 2:1 ratio during each phase.
21 Notwithstanding DCC 18.113.050(A)(4), if a more detailed CMP is needed to establish that
22 the 2:1 ratio will be maintained in each phase of the destination resort that is being proposed,
23 that additional detail must be supplied.
24 Turning to the first two inconsistencies, the Overnight and Density Calculations chart
25 was Thornburgh's more focused and specific attempt to demonstrate that the 2:1 ratio would
26 be satisfied during each phase. That Overnight and Density Calculations chart shows the 2:1
Page 15
1 ratio limit is met, in part, by constructing (1) 75 units of overnight lodging in Phase B, (2) 75
2 units of overnight lodging in Phase C, (3) 25 hotel units in Phase F and (4) 25 hotel units in
3 Phase G. As explained, the phasing plan shows those overnight and hotel units will be
4 completed in earlier phases. Therefore, whether the phasing proposed in the Overnight and
5 Density Calculations chart or the slightly inconsistent phasing shown on the phasing plan is
6 ultimately reflected in the FMP, the 2:1 ratio would be maintained. We agree with the
7 county and Thornburgh that in this case these minor inconsistencies between the Overnight
8 and Density Calculations chart and the phasing plan, inconsistencies which do not affect
9 compliance with the 2:1 ratio no matter which way the inconsistencies are resolved, can
10 properly be ignored as harmless error and corrected at the time the FMP is approved. t4
11 The third inconsistency, which if corrected in accordance with Thomburgh's
12 suggestion, would require that the phasing plan be modified to show that 62.5 overnight
13 dwelling units will be developed in Phase D with the hotel, presents a different question.
14 Until the phasing plan is corrected, it proposes phased development that does not comply
15 with the 2:1 ratio. 15 That problem could have been eliminated if the county had imposed a
16 condition of approval that specifically required that correction.16 Had the county done so, it
17 would be clear "how" the CMP phasing plan proposes to maintain the 2:1 ratio. Until that
14 Admittedly, until these corrections are made, one way or the other, there is some uncertainty about which
option might ultimately be selected to comply with the 2:1 ratio. However, we agree with the county and
Thornburgh, that DCC 18.113.050(B)(3) need not be interpreted to command that degree of certainty at the
CMP approval stage. Petitioner does not argue that resolving these inconsistencies one way as opposed to the
other has any particular legal significance.
15 Although no party cites DCC 18.113.080, see n 4, it could be that correcting the phasing plan after it is
approved would qualify as a "substantial" change that would require a public approval process.
16 The county was likely concerned that Thomburgh's suggested correction as part of its final legal
argument might be viewed as post -hearing evidence that might give petitioners a right to demand an
opportunity to rebut such evidence. In fact, petitioner Gould alleges that Thornburgh's final legal argument did
include evidence. We do not believe the Thornburgh's suggested correction is properly viewed as evidence.
The only conceivable evidentiary component of that suggestion is whether the proposed correction, if adopted,
would in fact preserve the 2:1 ratio. We do not understand petitioners to dispute that, as a factual matter, the
suggested correction will preserve the 2:1 ratio.
Page 16
1 error is eliminated, the CMP phasing plan does not demonstrate how the 2:1 ratio will be
2 maintained in Phase D. Thornburgh has explained that it intends to correct that
3 inconsistency by modifying the phasing plan to conform to the Overnight and Density
4 Calculations chart. It appears that that correction would be sufficient to make the CMP show
5 how the 2:1 ratio will be preserved in Phase D. The county needs to either require that
6 Thornburgh make that correction, or impose a condition of approval that the correction be
7 made, before it grants approval of the CMP.
8 Finally, the county's finding that it is free to ignore as "speculative" the notation that
9 the Phase A overnight units might at some point in the future eliminate the lockoff feature
10 that allows them to function as 150 overnight units probably should have been stated
11 differently. The county could have more directly rejected that notation and could have
12 eliminated any possibility of confusion by imposing a condition that the FMP omit any
13 suggestion that the lockoff feature might later be eliminated from those 50 residential units,
14 unless the lockoff units were no longer needed to preserve the 2:1 ratio. However, the
15 county's decision effectively requires that the lockoff feature of those 50 units be reflected in
16 the FMP. The fact that the decision also can be read to suggest that some other approach
17 might be taken at the FMP stage that also preserves the 2:1 ratio limit is not inconsistent with
18 the structure of DCC 18.113. Any such different approach might require approval of a
19 substantial change to the CMP under DCC 18.113.080. See n 4. But the fact of the matter is
20 that changes in the approved CMP before FMP approval are possible under DCC 18.113.080,
21 regardless of the challenged fording.
22 The first assignment of error is sustained, in part.
23 GOULD'S SECOND ASSIGNMENT OF ERROR
24 Under her second assignment of error, petitioner alleges that Thornburgh
25 inadequately demonstrated how the proposed 475 units of overnight lodging will be set up to
26 assure that they actually function as overnight lodging, rather than normal residential housing
Page 17
1 that does not qualify as overnight lodging. In making this argument, petitioner relies
2 significantly on our decision in Wetherell v. Douglas County, 44 Or LUBA 745 (2003).
3 We agree with Thornburgh, that our decision in Wetherell turned in part on a Douglas
4 County Code requirement for a "business plan," a requirement that is not replicated in the
5 DCC. 44 Or LUBA at 749-50. In addition, as we explain in more detail below, the proposal
6 in this case turns largely on DCC provisions that did not play a role in Wetherell. In
7 addition, the overnight units in Wetherell were timeshare units with lockouts, which created
8 some confusion regarding how those timeshare units could operate as timeshares (which
9 qualify automatically as overnight lodging without being available for overnight rental to the
10 public) at the same time the lockout units could be available for overnight rental to the public
11 for at least 45 weeks each year (which they must be to qualify as overnight lodging).
12 Thornburgh does not propose to meet its overnight lodging requirements with timeshares.
13 Thornburgh proposes that 50 of the required 475 overnight units will be provided by
14 the hotel that the phasing plan shows will be constructed in Phase D. The remaining 425
15 overnight units will be residential overnight units, including the 50 cottages that will include
16 two lockout units each, so that each of the 50 units can function as three overnight units.
17 Under Goal 8 and DCC 18.113.060(D)(2), these remaining 425 units must be available for
18 rent for at least 45 weeks per year to qualify as overnight lodging. See n 8.
19 As we indicated earlier, DCC 18.113.050 requires that a great deal of information
20 accompany an application for CMP approval. DCC 18.113.050(B)(21) requires:
21 "A description of the system to be used for the management of any
22 individually owned units that will be used for overnight lodging and how it
23 will be implemented, including proposed rental contract provisions to assure
24 that any individually -owned lodging facilities will be available for overnight
25 rental use by the general public for at least 45 weeks per calendar year
26 through a central reservation and check-in service[.]"
Page 18
1 One of the approval criteria in DCC 18.113.070 sets out, in significant detail, what the
2 system to manage individually owned units must look like. DCC 18.113.070(U) requires
3 that the county find that the resort includes:
4 "A mechanism to ensure that individually -owned units counting toward the
5 overnight lodging total remain available for rent for at least 45 weeks per
6 calendar year through a central reservation and check-in service. Such a
7 mechanism shall include all of the following:
8 "1. Designation on the plat of which individually -owned units are to be
9 considered to be overnight lodging as used in DCC 18.113;
10 "2. Deed restrictions limiting use of such identified premises to overnight
11 lodging purposes under DCC 18.113 for at least 45 weeks each year;
12
13
14
"3.
Inclusion in the CC&R's of an irrevocable provision enforceable by
the County limiting use of such identified units to overnight lodging
purposes under DCC 18.113 for at least 45 weeks each year;
15 "4. Inclusion of language in any rental contract between the owner of the
16 unit and any central reservation and check-in service requiring that
17 such units be made available as overnight lodging facilities under
18 DCC 18.113 for at least 45 weeks each year; and
19 A requirement that each such unit be registered and a report be filed
20 on each such unit yearly by the owner or central booking agent on
21 January 1 with the Planning Division as to the following information:
22 "a. Who the owner or owners have been over the last year;
23 "b. How many nights out of the year the unit was available for rent
24 through the central reservation and check-in service; and
25 "c. How many nights out of the year the unit was rented out as an
26 overnight lodging facility under DCC 18.113."
27 The rental contract language required by DCC 18.113.050(B)(21) and DCC
28 18.113.070(0)(4) apparently was not provided by Thornburgh. But the county imposed a
29 condition of approval to correct this shortcoming.'7 The remaining subsections of DCC
'7 In addressing DCC 18.113.050(B)(21), the county explained:
Page 19
1 18.113.070(U) do not leave a great deal to the imagination with regard to the steps that must
2 be taken to ensure that individually owned overnight lodging in a destination resort is
3 managed so that it in fact functions as overnight lodging. The county found that DCC
4 18.113.070(U) is so detailed that it effectively prescribes the mechanism that must be
5 employed to ensure that individually owned units that are to be used to satisfy the overnight
6 lodging requirement actually function as overnight lodging. Record 87. However, the
7 county also acknowledged petitioner's argument that Thornburgh had not adequately
8 described the mechanism that is required by DCC 18.113.070(U). In response to that
9 argument, the county imposed condition of approval number 21. Id. That condition provides
10 in part:
11 "In addition to complying with the specific requirements of DCC
12 18.113.0[7]0(U), 1-5, [Thornburgh], its successors and assigns, shall at all
13 times maintain (1) a registry of the individually owned units subject to deed
14 restrictions under DCC 18.113.070(U)(2), requiring they be available for
15 overnight lodging purposes; (2) an office in a location reasonably convenient
16 to resort visitors as a reservation and check-in facility at the resort; and (3) a
17 separate telephone reservation line and a website in the name of `Thornburgh
18 Resort,' to be used by members of the public to make reservations. As an
19 alternative to or in addition to (3), [Thornburgh] may enter into an agreement
20 with a firm (booking agent) that specializes in the rental or time-sharing of
21 resort property, providing that [Thornburgh] will share the information in the
22 registry required by (1) and cooperate with the booking agent to solicit
23 reservations for available overnight lodging at the resort. If [Thornburgh]
24 contracts with a booking agent, [Thornburgh] and the booking agent shall
25 cooperate to ensure compliance with the requirements of DCC
26 18.113.070(U)(5), by filing a report on January 1 of each year with the
27 Deschutes County Planning Division." Record 97.
28 It is not readily apparent to us what more Thornburgh could do at the CMP stage to
29 providethe description that is required by DCC 18.113.050(B)(21) or show how the
"the Board imposes as a condition that the contract with the owners of units that will be used
for overnight lodging by the general public shall contain language to the following effect:
`[Unit Owner] shall make the unit available to [Resort Management] for overnight rental use
by the general public at least 45 weeks per calendar year through a central reservation and
check-in service.' This language satisfies [DCC 18.113.050(B)(21)]." Record 42.
Page 20
1 destination resort will comply with DCC 18.113.070(U). As the CMP is conditioned, the
2 steps that must be taken in the FMP to assure that overnight lodging units actually function
3 as overnight lodging, as required by Goal 8 and DCC 18.113.070(U), is spelled out in
4 sufficient detail. To the extent the CMP was inadequate as submitted, the condition imposed
5 by the county directs additional steps that must be taken to secure FMP approval and comply
6 with DCC 18.113.070(0). We believe the CMP, as conditioned, is adequate to explain
7 "how" the destination resort will comply with DCC 18.113.070(U).
8 Finally, petitioner contends that ORS 197.435 only permits one central reservation
9 system, and Thornburgh proposes more than one central reservation system.18 Thornburgh
10 argues that petitioner misreads ORS 197.435:
11 "* * * Gould objects that ORS 197.435 allows just one central reservation
12 system operated by the destination resort or by a real estate property manager,
13 as defined in ORS 696.010. ORS 197.435(5)(b) actually calls for 'a central
14 reservation system,' not 'one central reservation system.' It does not prohibit
15 redundancy in reservation systems. Moreover, `system' implies the
16 organization of more than one part. A booking agent, if hired, will be part of
17 Thornburgh's central reservation system." Thornburgh's Response Brief 18.
18 We agree with Thornburgh.
19 The second assignment of error is denied.
20 GOULD'S THIRD ASSIGNMENT OF ERROR
21 Under her third assignment of error, petitioner argues the county erroneously found
22 that Thornburgh could provide financial assurances for the required 150 units of overnight
23 lodging.19 In addition, petitioner argues, the county's conditions of approval also
18 ORS 197.435(5)(b) provides in relevant part:
"Individually owned units may be considered overnight lodgings if they are available for
overnight rental use by the general public for at least 38 weeks per calendar year through a
central reservation system operated by the destination resort or by a real estate property
manager, as defined in ORS 696.010."
19 The county adopted the following finding:
Page 21
1 erroneously provide that all the required 150 units of overnight lodging that are scheduled for
2 Phase A can be financially assured rather than actually constructed in Phase A. 20 According
3 to petitioner, ORS 197.445(4)(b) requires that .the first 50 units of the required 150 units of
4 overnight lodging must actually be constructed before residential units may be sold, and that
5 financial assurances for those units are not allowed by ORS 197.445(4)(b).21
"[Thornburgh] may provide financial assurances for these 150 units prior to recording the
final plat for Phase A." Record 48.
20 The county imposed the following condition of approval:
"21. Each phase of the development shall be constructed such that the number of
overnight lodging units meets the 150 overnight lodging unit and 2:1 ratio of
individually owned units to overnight Iodging units standards set out in DCC
18.113.060(A)(1) and 18.113.060(D)(2). Individually owned units shall be
considered visitor oriented lodging if they are available for overnight rental use by
the general public for at least 45 weeks per calendar year through one or more
central reservation and check-in services. In lieu of construction, [Thornburgh] may
provide financial assurances for construction of the required overnight lodging."
Record 96 (emphasis added).
21 ORS 197.445(4)(b) provides:
"On lands in eastern Oregon, as defined in ORS 321.805:
"(A) A total of 150 units of overnight lodging must be provided.
"(B) At least 50 units of overnight lodging must be constructed prior to the closure of sale
of individual lots or units.
"(C) At least 50 of the remaining 100 required overnight lodging units must be
constructed or guaranteed through surety bonding or equivalent financial assurance
within five years of the initial lot sales.
"(D) The remaining required overnight lodging units must be constructed or guaranteed
through surety bonding or equivalent financial assurances within 10 years of the
initial lot sales.
"(E)
Page 22
The number of units approved for residential sale may not be more than 2-1/2 units
for each unit of permanent overnight lodging provided under subparagraph (B) of
this paragraph.
If the developer of a resort guarantees the overnight lodging units required under
subparagraphs (C) and (D) of this paragraph through surety bonding or other
equivalent financial assurance, the overnight lodging units must be constructed
within four years of the date of execution of the surety bond or other equivalent
financial assurance." (Emphasis added.)
1 DCC 18.113.060(A)(5), which allows all of the required 150 units of overnight
2 lodging to be "physically provided or financially assured" is inconsistent with the
3 requirement in ORS 197.445(4)(b)(B) that the first 50 of those 150 units "must be
4 constructed prior to the closure of sale of individual lots or unit," see n 21. While the
5 county's decision with regard to the option of financially assuring the first 50 units of
6 overnight lodging is consistent with DCC 18.113.060(A)(5), it is inconsistent with ORS
7 197.445(4)(b)(B).
8 Thornburgh responds that it was never informed "that it must comply with a different
9 statutory requirement." Thornburgh contends that because no issue was raised below with
10 regard to the different statutory requirement, this issue is beyond LUBA's scope of review.
11 ORS 197.835(3).22 However, as petitioner correctly notes, she had no reason to expect that
12 the county would ignore the more stringent ORS 197.445(4)(b)(B) requirement in its final
13 decision and approve the CMP in a way that specifically allows Thornburgh to proceed under
14 the less stringent• DCC 18.113.060(A)(5) requirement. ORS 197.763(1) requires that parties
15 raise issues locally, prior to the close of the final evidentiary hearing, but ORS 197.763(1)
16 does not require that petitioner anticipate and object to a condition of approval that is
17 imposed after the final evidentiary hearing has closed. Beck v. City of Happy Valley, 27 Or
18 LUBA 631, 637 (1994).
19 If Thornburgh's application had specifically proposed to financially assure the first
20 50 units of overnight lodging rather than construct those units before residential units are
21 sold, we might agree with Thornburgh that petitioner would be obligated in such a
22 circumstance to object to that proposal below to preserve that issue on appeal. But
iz ORS 197.835 sets out LUBA's scope of review and ORS 197.835(3) provides that "[i]ssues [before
LUBA] shall be limited to those raised by any participant before the local hearings body as provided by ORS
197.195 or 197.763, whichever is applicable."
Page 23
1 Thornburgh does not argue that it proposed to financially assure the first 50 units of
2 overnight lodging.
3 The county must amend its finding and amend or eliminate the above -noted language
4 in the conditions of approval so that they are consistent with ORS 197.445(4)(b)(B). The
5 third assignment of error is sustained.
6 GOULD'S FOURTH ASSIGNMENT OF ERROR
7 Under DCC 18.113.060(E), Thornburgh was required to submit a phasing plan.23
8 Under her fourth assignment of error, petitioner alleges the county failed to require that
9 Thornburgh supply a phasing plan that describes phases that are consistent with the 2:1 ratio
10 requirement.
11 In partially sustaining petitioner's first assignment of error, we agreed with petitioner
12 that the phasing plan must be amended to demonstrate how the proposed destination resort
13 will maintain the 2:1 ratio limitation in Phase D. Petitioner argues here it was error to
14 approve the CMP without requiring that the phasing plan be amended to reflect the 62.5 units
15 that Thornburgh plans to construct in Phase D. We agree and sustain the fourth assignment
16 of error, in part.
17 But we rejected petitioner's other objections to inconsistencies between the
18 Overnight and Density Calculations chart and the phasing plan. To the extent petitioner
19 argues under this assignment of error that the county erred by failing to amend the phasing
20 plan to resolve those inconsistencies we reject that argument here for the same reason we
21 rejected that argument under the first assignment of error.
22 Petitioner also suggests that until all of the uncertainties she identified with regard to
23 the 2:1 ratio requirement and the phasing plan are resolved it will not be possible to be
23 DCC 18.113.060(E) provides in part:
"If a proposed resort is to be developed in phases, each phase shall be as described in the
CMP."
Page 24
1 confident that other criteria that depend on the proposed phasing are adequately resolved.
2 However, petitioner does not sufficiently develop this argument to provide any additional
3 basis for remand under this assignment of error.
4 The fourth assignment of error is sustained in part.
5 GOULD'S FIFTH ASSIGNMENT OF ERROR
6 Under her fifth assignment of error, petitioner alleges the CMP is insufficient to
7 supply certain information required under DCC 18.113.050, certain standards under DCC
8 18.113.060 and certain approval criteria under DCC 18.113.070. We address petitioner's
9 arguments separately below.
10 A. Facility Phasing Schedule—DCC 18.113.050(B)(8)
11 A CMP must (1) describe the development phasing schedule, (2) explain when
12 facilities will be provided, and (3) explain how facilities will be secured, if they will not be
13 completed before sale of individual lots or units. DCC 18.113.050(B)(8).24
14 The county adopted four paragraphs of findings responding to DCC
15 18.113.050(B)(8). Petitioner sets out one sentence of those finding that concerns a "[a] list
16 of possible amenities or commercial facilities" and states:
17 "Those facilities will be constructed when they are warranted by the
18 population base at the resort." Record 25.
19 Petitioner complains that the above -quoted fmding is too "open-ended" to demonstrate the
20 CMP complies with DCC 18.113.050(B)(8). Petitioner also complains that the county's
21 decision "does not state 'how' facilities will be secured," as DCC 18.113.050(B)(8) requires.
22 Gould's PFR 26.
24 DCC 18.113.050(B)(8) requires that a CMP include the following information:
"A description of the proposed order and schedule for phasing, if any, of all development
including an explanation of when facilities will be provided and how they will be secured if
not completed prior to closure of sale of individual lots or units[.]"
Page 25
1 It is not entirely clear to us what "facilities" DCC 18.113.050(B)(8) is concerned with
2 and what "facilities" are the focus of petitioner's concern under this subassignment of error.
3 Petitioner cites ORS 197.445(3) and (4) and DCC 18.113.060(A).25 Absent a more
4 developed argument from petitioner, we assume that the facilities that petitioner and DCC
5 .18.113.050(B)(8) refer to are the required 150 units of overnight lodging and the required
6 visitor -oriented accommodations for 100 persons.
7 Included in Thomburgh's response is a reference to the following findings:
8 "[Thornburgh] will comply with [DCC 18.113.060(A)] for the first phase of
9 development, including construction of 50 golf cottages with lockout facilities
10 to ensure 150 separate rentable units are available within the first phase.
11 [Thornburgh] also will develop (or bond) a restaurant with seating for at least
12 100 persons in the first phase. The Board finds that [Thornburgh] must
13 provide the meeting and eating areas in the first phase. Although
14 [Thornburgh] must show the location of the meeting and eating areas in Phase
15 A, DCC 18.113.110(B) allows [Thornburgh] to provide financial assurances
16 satisfactory to the County for those improvements rather than actually
17 constructing them prior to recording the final plat. Condition of Approval #33
18 outlines this requirement." Record 44.
19 The above seems sufficient to comply with DCC 18.113.050(B)(8) with regard to the
20 required 150 units of overnight lodging (they will be built in Phase A) and the restaurant with
21 seating for at least 100 persons (it will be built or assured through a bond) in Phase A. With
22 regard to recreational facilities, Thomburgh argues:
u DCC 18.113.060(A) only requires three kinds of facilities: (1) 150 units of "visitor -oriented lodging,"
which is what we have generally been referring to as overnight units, and (2) visitor -oriented eating
establishments for at least 100 people, and (3) at least $2,000,000 worth of recreational facilities (in 1984
dollars). ORS 197A45 imposes the following standards on destination resorts:
"(3) At least $7 million must be spent on improvements for on-site developed
recreational facilities and visitor -oriented accommodations exclusive of costs for
land, sewer and water facilities and roads. Not Iess than one-third of this amount
must be spent on developed recreational facilities.
"(4) Visitor -oriented accommodations including meeting rooms, restaurants with seating
for 100 persons and 150 separate rentable units for overnight lodging shall be
provided. However, the rentable overnight lodging units may be phased in[.]"
Page 26
1 "[T]he challenged decision finds the criterion is met in part by the Phasing
2 Plan, which shows seven phases, referred to as A to G, with the estimated
3 time of development for each. The plan shows when and where the roads, the
4 three golf courses, the community center, the golf clubhouse, the hotel and the
5 power sub -station will be developed. The Open Space Plan shows what type
6 of open space will be developed, while the Open Space Phasing Plan shows
7 when the open space will be developed. The Recreation Amenities Plan
8 shows where the. hiking trails, hiking/biking trails, community amenities, golf
9 courses, lake and vista points will be located. These are the `facilities' subject
10 to DCC 18.113.050(B)(8)." Thomburgh's Response Brief 22-23.
11 The cited phasing plans identify the phases in which the bulk, if not all of, the
12 recreational facilities will be provided. Petitioner makes no attempt to explain why those
13 phasing plans are inadequate to comply with DCC 18.113.050(B)(8).
14 Subassignment of error A is denied.
15 B. Site to Avoid or Minimize Impacts on Adjacent Land—DCC
16 18.113.050(B)(9)
17 DCC 18.113.050(B)(9) requires Thornburgh to explain how the proposal has been
18 sited to avoid or minimize adverse impacts on adjacent lands.26 According to petitioner, the
19 challenged decision simply relies on a memorandum of understanding (MOU) with BLM,
20 under which Thornburgh agrees to mitigate impacts on adjacent BLM lands. Petitioner
21 complains that "[m]itigating impacts off-site is not the same as siting or designing a resort to
22 avoid or minimize impacts." Gould's PFR 26.
23 As Thornburgh points out, the county adopted over two pages of findings addressing
24 DCC 18.113.050(B)(9). Those findings cite the BLM MOU, but the county's fmdings
25 regarding DCC 18.113.050(B)(9) do not rely entirely on the MOU. The findings note the
26 DCC 18.113A50(B)(9) requires that the CMP include the following information:
"An explanation of how the destination resort has been sited or designed to avoid or minimize
adverse effects or conflicts on adjacent lands. The application shall identify the surrounding
uses and potential conflicts between the destination resort and adjacent uses within 660 feet
of the boundaries of the parcel or parcels upon which the resort is to be developed. The
application shall explain how any proposed buffer area will avoid or minimize adverse effects
or conflicts[.]"
Page 27
1 proposed 50 -foot buffer around the perimeter of the proposed resort and the fact that the
2 resort borders very little privately owned land. The findings also cite an agricultural
3 assessment that includes recommendations for mitigating any impacts on nearby agriculture.
4 Petitioner neither acknowledges nor challenges the adequacy of those findings.
5 Subassignment of error B is denied.
6 C. Erosion Control Plan—DCC 18.113.050(3)(12)
7 DCC 18.113.050(B)(12) requires an "erosion control plan for all disturbed land
8 * * *." DCC 18.113.050(8)(12) specifically requires "[t]his plan shall also explain how the
9 water shall be used for beneficial use or why it cannot be used as such." Petitioner argues
10 the challenged decision "does not even mention the runoff [and} only calls for a detailed
11 erosion control plan at the time of a site plan for each phase." Gould's PFR 26.
12 The findings observe that Thornburgh relied on a Natural Characteristics Report that
13 describes soil conditions on the site. With regard to the specific issue that petitioner raises
14 under this subassignment of error, the decision explains:
15 "* * * The natural infiltration characteristics of the soil should prevent most
16 runoff concerns. As necessary, specific erosion -control measures such as silt
17 fence and mulching will be used to minimize erosion and dust when large
18 areas of grading must occur. After construction, disturbed areas of the site
19 will be restored with native landscaping or irrigated Landscaping." Record 34.
20 After acknowledging petitioner's concern that Thornburgh failed to provide sufficient
21 information under DCC 18.113.050(B)(12), the county found that the information submitted
22 was sufficient to comply with DCC 18.113.050(B)(12) and conditioned approval on a more
23 detailed erosion control plan at the time of tentative subdivision or site plan approval.
24 Record 34. Thornburgh contends the county's findings are adequate to respond to
25 petitioner's concern and the condition of approval requiring a more detailed erosion control
26 plan at the tentative subdivision or site plan approval state is entirely appropriate under
27 Rhyne and DCC 18.113.050(B)(3). We agree with Thornburgh.
28 Subassignment of error C is denied.
Page 28
1 D. Dimensional Standards—DCC 18.113.060(G)
2 The dimensional standards that apply to lots and buildings under the applicable
3 underlying zoning district do not apply to destination resorts. Instead, DCC
4 18.113.060(G)(1) requires that they be determined by the county at the time of CMP
5 approva1.27
6 Petitioner first argues that the county erred by approving Thomburgh's proposal for a
7 range of lot standards.28 However, we do not agree that DCC 18.113.060(G)(1) requires that
8 a single set of dimensional requirements must apply to all lots in the destination resort.
9 Petitioner does not argue that the county erred by failing to require that Thornburgh make
10 some attempt to identify where in the proposed development the eight different lot types
11 might be located. We therefore do not consider that question.
12 Petitioner also argues that the county erred by finding that "it was `feasible' to meet
13 setback standards." Gould's PFR 27. That argument is apparently directed at DCC
14 18.113.060(G)(2), which imposes specific setback requirements from the exterior property
15 line for various types of development. Petitioner does not further develop her argument. The
27 DCC 18.113.060(G)(1) imposes the following destination resort standard:
"The minimum lot area, width, lot coverage, frontage and yard requirements and building
heights otherwise applying to structures in underlying zones and the provisions of DCC
18.116 relating to solar access shall not apply within a destination resort. These standards
shall be determined by the Planning Director or Hearings Body at the time of the CMP. In
determining these standards, the Planning Director or Hearings Body shall fmd that the
minimum specified in the CMP are adequate to satisfy the intent of the comprehensive plan
relating to solar access, fire protection, vehicle access, visual management within landscape
management corridors and to protect resources identified by LCDC Goal 5 which are
identified in the Comprehensive Plan. At a minimum, a 100 -foot setback shall be maintained
from all streams and rivers. Rimrock setbacks shall be as provided in DCC Title 18. No lot
for a single-family residence shall exceed an overall project average of 22,000 square feet in
size." (Emphases added.)
28 Thomburgh proposed eight lot "Types," Type A through Type H. Each type has its own area, width,
frontage, coverage, setback and building height limit. Type A would provide the lowest density with a
minimum lot area of 15,000 square feet, while Type H would be the highest density development with a
minimum lot size of 3,200 square feet. Record 5642.
Page 29
1 argument is insufficiently developed for review, and we reject the argument for that reason.
2 Deschutes Development v. Deschutes Cty., 5 Or LUBA 218, 220 (1982).
3 Petitioner argues next that the county waived all solar setback standards, but failed to
4 explain why doing so is "adequate to satisfy the intent of the comprehensive plan relating to
5 solar access," as DCC 18.113.060(G)(1) requires. The county adopted three paragraphs of
6 findings to explain why it did not impose a solar access setback. Record 52. While it is true
7 that those findings do not mention the comprehensive plan specifically, they do offer a
8 number of reasons why the county believes it is unnecessary to impose solar setbacks.29
9 Petitioner neither acknowledges nor challenges those findings. For that reason, we reject
10 petitioner's challenge to the county's decision not to impose a solar setback standard on the
11 proposed development.
12 Finally, petitioner argues the county "violated the subsection (G) requirement that no
13 lot shall exceed a project average of 22,000 square feet, where the County allowed lots over
14 twice that size and even greater than one acre." Gould's PFR 27. Petitioner's challenge is
15 presumably directed at the following findings in the county's decision:
16 "* * * The Board finds that additional flexibility may be needed to
17 accommodate the planned range of living units and services. For example, a
18 lot size in excess of one acre may be necessary for a home site in some cases,
19 particularly if it is desirable to preserve rocky or unique terrain. A 1,500-
20 square -foot lot may be appropriate for condominiums or row houses
21 surrounded by common area." Record 50-51.
22 Thornburgh argues, and we agree, that the final sentence of DCC 18.113.060(G)(1) is
23 "inartfully worded." That sentence does not impose a maximum lot size of 22,000 square
24 feet; it prohibits lot sizes that would result in the "overall project average" exceeding 22,000
25 square feet. However, to the extent the above quoted findings can be read to grant
26 Thornburgh the "flexibility" to propose one acre or 1,500 square foot lots, even though the
29 Among the reasons sited by the county are a desire to have the development fit more naturally into the
terrain and a belief that solar orienting standards are less important for part-time residents.
Page 30
1 approved lot dimensions at Record 5642 would not permit lots that large or small, we do not
2 believe that grant of flexibility is within the county's discretion under DCC
3 18.113.060(G)(1). If Thornburgh can subdivide the property into whatever size lots it
4 believes the terrain or high density housing type it desires might warrant, without first
5 amending the CMP to allow such different lot sizes, the exercise required by DCC
6 18.113.060(G)(1) is a waste of time at best. Because the above -quoted findings need not be
7 read to authorize lot sizes other than the ones set out at Record 5642, without first amending
8 the CMP to allow such larger or smaller lots, we do not read the findings in that way. The
9 dimensional standards approved by the county appear at Record 5642. If Thornburgh later
10 discovers that the approved eight different lot types do not offer sufficient flexibility, it may
11 request a change in the CMP to allow additional lot dimensions.3°
12 Subassignment of error D is denied.
13 E. Time -Share Units
14 Petitioner's argument concerning time-share units is based largely on the erroneous
15 assumption that Thornburgh proposes that some of the overnight units will be time-shares.
16 Although there apparently was a suggestion at some point that some of the overnight units
17 will be time-shares, the approved request does not propose any time-shares for overnight
18 units. DCC 18.113.060(K) requires that "[lime -share units not included in the overnight
19 lodging calculations shall be subject to approval under the conditional use criteria set forth in
20 DCC 18.128." Thornburgh argues that it is simply not proposing any time-share units of any
21 type at this time:
22 "Thornburgh has not included any time-share units in the overnight lodging
23 calculations. If they are developed for individually owned residential use
24 * * *, they will be subject to a separate conditional use approval process.
3o We need not and do not attempt to decide here whether approval of such additional lot dimensions would
constitute a "substantial" or "insubstantial" change in the CMP. See n 4 and related text.
Page 31
1 Nothing in DCC requires this occur during the CMP step of permit approval"
2 Thornburgh's Response Brief 26.
3 Subassignment of error E is denied.
4 F. Remaining Arguments
5 In her remaining arguments under the fifth assignment of error, petitioner simply
6 incorporates her arguments under her tenth and eleventh through thirteenth assignments of
7 error. We address those arguments below.
8 The fifth assignment of error is denied.
9 GOULD'S SIXTH ASSIGNMENT OF ERROR
10 Under her sixth assignment of error, petitioner argues that the county erred in two
11 ways. First, petitioner contends that the Pinnacle Village to the north and the Tribute Village
12 to the south are in reality separate destination resorts and each should have been required to
13 comply separately with the legal requirements for a destination resort. Second, petitioner
14 argues that the DCC requires that destination resorts must have direct access onto a state or
15 county arterial or collector roadway, and the Pinnacle Village lacks such direct access.
16 A. The Pinnacle and Tribute Villages are Separate Destination Resorts
17 A map from the record showing the proposal is attached as Appendix A.31 Petitioner
18 argues that although the northern and southern parts of the Thornburgh Resort touch comers
19 in two places, the northern and southern parts are topographically separated by a ridge and
20 will be connected by roadways on the east and in the southwest that travel outside the
21 Thornburgh Resort onto lands owned by the Oregon Division of State Lands (DSL) (eastern
22 connection) and BLM (southwestern connection).
23 Thornburgh answers that the identification of two villages within Thornburgh Resort
31 The map appears at Record 1041. The two proposed roadways that will connect the Pinnacle and
Tribute Villages are shown in dotted lines. Both the eastern and the southwestern connecting roads cross
property that is located outside the destination resort property.
Page 32
1 "is, at its root, glossy real estate lingo, without much significance beyond
2 marketing. Many other resorts have named areas, but that doesn't mean these
3 areas are separate resorts." Thornburgh's Response Brief 27.
4 Thornburgh goes on to note that the Tribute and Pinnacle Villages are connected by roads
5 and hiking and biking trails. The Tribute Village actually extends into the northern part and
6 the Tribute and Pinnacle Villages will share rental and maintenance offices and visitors to
7 either village will have full access to the facilities in the other village.
8 We reject petitioner's contention that the county erred by failing to require that the
9 Pinnacle Village and Tribute Village each be separately approved as destination resorts.
10 Subassignment of error A is denied.
11 B. Direct Access to a State or County Arterial or Collector
12 DCC 18.113.060(C) provides:
13 "All destination resorts shall have direct access onto a state or county arterial
14 or collector roadway, as designated by the Comprehensive Plan."
15 It is undisputed that Thornburgh Resort has direct access onto Cline Falls Highway at
16 the southeast corner of the resort, in the Tribute Village. Thornburgh Resort will have access
17 to Highway 126 to the north, but it does not and will not have "direct" access "onto"
18 Highway 126. Because the Pinnacle Village lacks direct access onto Highway 126 and
19 traffic from the Pinnacle Village must travel over roadways located outside the Thornburgh
20 Resort to access Cline Falls Highway in the southeast corner of the Tribute Village,
21 petitioner contends the Pinnacle Village lacks the direct arterial/collector access that DCC
22 18.113.060(C) requires.
23 DCC 18.113.060(C) requires that destination resorts must have "direct access onto"
24 an arterial/collector. DCC 18.113.060(C) does not prohibit additional access onto roads that
25 are not arterials or collectors. As we have already concluded, there is but one destination
26 resort—Thornburgh Resort. Although it is divided into two villages, divided somewhat
27 topographically and the northern and southern parts are connected by roadways that travel
Page 33
1 outside Thornburgh Resort, that does not change the fact that Thornburgh Resort has "direct
2 access onto a state or county arterial * * * roadway." Thornburgh Resort therefore complies
3 with DCC 18.113.060(C).
4 Subassignment of error B is denied.
5 The sixth assignment of error is denied.
6 GOULD'S SEVENTH ASSIGNMENT OF ERROR
7 Petitioner alleges that the county erred by failing to require that Thornburgh justify a
8 statewide planning goal exception for the northern access to an existing roadway that will
9 provide access to Highway 126 and the two roadways that will cross BLM and DSL lands to
10 connect the northern part of Thornburgh Resort with the southern part. See Appendix B.
11 ORS 215.283(2)(t) authorizes counties to approve the following use in an EFU zone:
12 "[a] destination resort that is approved consistent with the requirements of any statewide
13 planning goal relating to the siting of a destination resort." Therefore, under ORS
14 215.283(2)(t), Thornburgh Resort and all the roadways proposed within Thornburgh Resort
15 may be approved subject to state and local laws governing destination resorts. Petitioner's
16 focus here is on the roadways that will be needed to provide a connection between the
17 northern and southern parts of Thornburgh Resort and the roadway that will be required to
18 connect Thornburgh Resort to the existing roadway that serves a portion of Eagle Crest
19 Resort to the north. That roadway will provide access to Highway 126 to the north. These
20 roadways cross BLM and DSL lands that are zoned EFU, and we will refer to them as the
21 connector roadways.
22 No party argues the northern, eastern and southwestern connector roads are allowed
23 in EFU zones under ORS 215.283(1) or (2). ORS 215.283(3) provides:
24 "Roads, highways and other transportation facilities and improvements not
25 allowed under subsections (1) and (2) of this section may be established,
26 subject to the approval of the governing body or its designee, in areas zoned
27 for exclusive farm use subject to:
Page 34
1 "(a) Adoption of an exception to the goal related to agricultural lands and
2 to any other applicable goal with which the facility or improvement
3 does not comply; or
4 "(b) ORS 215.296 for those uses identified by rule of the Land
5 Conservation and Development Commission as provided in section 3,
6 chapter 529, Oregon Laws 1993."
7 In response to Oregon Laws 1993, chapter 529, section 3, LCDC adopted OAR 660-012-
8 0065. OAR 660-012-0065(1) explains that "[t]his rule identifies transportation facilities,
9 services and improvements which may be permitted on rural lands consistent with Goals 3, 4,
10 11, and 14 without a goal exception." OAR 660-012-0065(3) sets out a list of 15
11 transportation improvements that may be allowed without an exception to Goal 3. That list
12 includes a variety of transportation facilities and improvements. As relevant here, the list
13 includes accessory transportation improvements for uses that are allowed by ORS 215.283
14 and new access roads.32
32 ORS 660-012-0065(3) provides:
"The following transportation improvements are consistent with Goals 3, 4, 11, and 14
subject to the requirements of this rule:
"(a) Accessory transportation improvements for a use that is allowed or conditionally
allowed by ORS 215.213, 215.283 or OAR chapter 660, division 6 (Forest Lands);
"(b) Transportation improvements that are allowed or conditionally allowed by ORS
215.213, 215.283 or OAR chapter 660, division 6 (Forest Lands);
New access roads and collectors within a built or committed exception area, or in
other areas where the function of the road is to reduce local access to or local traffic
on a state highway. These roads shall be limited to two travel lanes. Private access
and intersections shall be limited to rural needs or to provide adequate emergency
access.
"(o) Transportation facilities, services and improvements other than those listed in this
rule that serve local travel needs. The travel capacity and performance standards of
facilities and improvements serving local travel needs shall be limited to that
necessary to support rural land uses identified in the acknowledged comprehensive
plan or to provide adequate emergency access."
Page 35
1 No party argues that the disputed connector roads qualify under OAR 660-012-
2 0065(3)(o), presumably because the connector roads will have a capacity that exceeds the
3 capacity needed to serve rural uses. In addition, no party argues that the disputed connectors
4 qualify under OAR 660-012-0065(3)(b), which authorizes the roadways within the
5 destination resort, since the connector roadways are located on publicly owned property that
6 lies outside the destination resort property. The county found that the connector roadways
7 qualify under OAR 660-012-0065(3)(a), as "[a]ccessory transportation improvements for a
8 use that is allowed" under ORS 215.283(2). Petitioner contends that the connector roads are
9 properly viewed as "new access roads," within the meaning of OAR 660-012-0065(3)(g),
10 which must be located "within a built or committed exception area, or in other areas where
11 the function of the road is to reduce local access to or local traffic on a state highway."
12 Petitioner argues that because the function of the connector roadways will not be to "reduce
13 local assess to or local traffic on a state highway," the connector roads may only be allowed
14 in an EFU zone if they are located in an exception area.
15 Whether the connector roads are properly viewed as new access roads, as petitioner
16 argues, or as accessory transportation improvements to the disputed destination resort, as the
17 county found, turns on the scope of OAR 660-012-0065(3)(a). As an initial point, we reject
18 petitioner's contention that the "transportation improvements" that are authorized under
19 OAR 660-012-0065(3)(a) could not include new roads. OAR 660-012-0065(3) clearly does
20 not use the term "transportation improvements" in a limited sense that would exclude new
21 roads, since OAR 660-012-0065(3)(g) expressly authorizes "[n]ew access roads." See n 32.
22 We turn to the OAR 660-012-0065 defmitions of the key terms. OAR 660-012-
23 0065(2) provides the following defmitions:
24 "(a) `Access Roads' means low volume public roads that principally
25 provide access to property or as specified in an acknowledged
26 comprehensive plan;
27
Page 36
1 "(d) `Accessory Transportation Improvements' means transportation
2 improvements that are incidental to a land use to provide safe and
3 efficient access to the use;
4 "*****
5 "(g) 'New Road' means a public road or road segment that is not a
6 realignment of an existing road or road segment."
7 Under the above definitions, the question becomes whether the connector roads are
8 accurately described as "incidental to [Thornburgh Resort] to provide safe and efficient
9 access to the [resort]." There does not appear to be much question that the connector roads
10 are proposed "to provide safe and efficient access" to Thornburgh Resort. The only real
11 question appears to be whether they are properly viewed as "incidental" to Thornburgh
12 Resort. OAR 660-012-0065(2) does not provide a definition of "incidental." Its dictionary
13 definition is "subordinate, nonessential, or attendant in position or significance." Webster's
14 Third New Intern'l Dictionary, 1142 (unabridged ed 1981).
15 We believe the eastern and southwestern connector roads can be accurately
16 characterized as "incidental" to the Thornburgh Resort. Certainly in one sense they are not
17 "nonessential," since they are needed to connect the northern part with the southern part. But
18 when the resort is viewed as a whole, we believe those connector roads are accurately
19 described as "subordinate * * * or attendant in position or significance." . The northern
20 connector presents a much closer question, since it will provide the connection to one of the
21 two main access routes for the resort. However, once again, if that connecting road is
22 viewed in context with the resort as a whole, we conclude that it may be accurately
23 characterized as "subordinate * * * or attendant in position or significance."
24 Petitioner argues that even if the connector roads can be viewed as transportation
25 improvements that are accessory to Thornburgh Resort, ORS 215.283(3) provides that they
Page 37
1 are "subject to * * * ORS 215.296.i33 In addition, petitioner argues that OAR 660-012-
2 0065(4) provides that such accessory transportation improvements are subject to the
3 underlying destination resort criteria.34 Petitioner contends the county's fmdings do not
4 address these criteria.
5 Thornburgh argues first that petitioner waived these arguments by not presenting
6 these precise arguments to the county. We agree with petitioner that the issue regarding
7 whether the connector roads qualify as accessory transportation improvements under ORS
8 215.283(3) and OAR 660-012-0065 was clearly raised below. That is the issue that
9 petitioner is presenting in this appeal. The particular arguments that petitioner now makes
10 under that issue need not have been raised before the county in exactly the way the
11 arguments are now presented at LUBA. Reagan v. City of Oregon City, 39 Or LUBA 672,
12 690 (2001).
13 Thornburgh next argues that because the disputed connector roads are not a "use
14 allowed under ORS 215.213 (2) or 215.283 (2)," ORS 215.296 does not apply. See n 33.
15 We reject the argument. ORS 215.296 does not apply to the connector roads because ORS
33 ORS 215.296(1) provides:
"A use allowed under ORS 215.213 (2) or 215.283 (2) may be approved only where the local
governing body or its designee finds that the use will not:
"(a) Force a significant change in accepted farm or forest practices on surrounding lands
devoted to farm or forest use; or
Significantly increase the cost of accepted farm or forest practices on surrounding
lands devoted to farm or forest use."
34 OAR 660-012-0065(4) provides:
"Accessory transportation improvements required as a condition of development listed in
subsection (3)(a) of this rule shall be subject to the same procedures, standards and
requirements applicable to the use to which they are accessory."
Page 38
1 215.283(2) and 215.296 make it apply, ORS 215.296 applies to the connector roads because
2 ORS 215.283(3) makes it apply.35
3 On the merits, Thornburgh argues . the disputed connector roads are part of the
4 Thornburgh Resort and the county adopted extensive findings regarding DCC 18.113.070(F),
5 which duplicates the ORS 215.296(1) standards.36 With regard to OAR 660-012-0065(4),
6 Thornburgh argues:
7 "The decision does not make findings in response to OAR 660-012-0065(4),
8 but the rule does not require findings. It states how the County must review
9 an application for the accessory transportation improvements. The County
10 complied with the rule by considering the proposed roads using the 'same
11 procedures, standards and requirements applicable to the use [i.e., the
12 destination resort] to which they are accessory.'" Thomburgh's Response
13 Brief 31 (bracketed language in original).
14 We agree with Thornburgh. The roadways were treated as the part of the resort they
15 are and petitioner offers no reason why separate findings specifically addressing the
16 roadways in isolation are required under ORS 215.283(3) or OAR 660-012-0065(4).
17 The seventh assignment of error is denied.
18 GOULD'S EIGHTH ASSIGNMENT OF ERROR
19 Citing DCC 18.113.060(D)(2), 18.113.070(G) and 18.128.015, petitioner argues the
20 county's findings are inadequate to demonstrate that Thornburgh Resort will have "adequate
21 access to and within the destination resort." Gould's PFR 33.37 Petitioner contends that the
36 The text of ORS 215.283(3) was set out earlier in- the text at the beginning of our discussion of the
seventh assignment of error.
36 DCC 18.113.070(F) requires that the county find:
"The development will not force a significant change in accepted farm or forest practices or
significantly increase the cost of accepted farm or forest practices on surrounding lands
devoted to farm or forest use."
37 The reference to DCC 18.113.060(D)(2) apparently was in error. Petitioner probably meant to cite DCC
18.113.060(C), which requires that the resort have direct access onto an arterial/collector. See discussion under
subassignment of error B under Gould's Sixth assignment of error. DCC 18.113.070(G)(3)(b) requires that
"[a]ccess within the project shall be adequate to serve the project in a safe and efficient manner for each phase
Page 39
1 county failed to demonstrate that a number of roads will be available to provide the needed
2 access to and within Thornburgh Resort.
3 A. The Northern Connector Road
4 In response to petitioner's objections below, the county found that it would be
5 feasible to construct the northern connector roadway based on a memorandum of
6 understanding between Thornburgh and the BLM. Record 91-92. The memorandum of
7 understanding appears at Record 4232-36. BLM advised the county that it appeared the
8 proposed northern connector road "is a reasonable and feasible alternative." Record 3961.
9 Petitioner contends the county's finding of "feasibility" is not adequate or supported by
10 substantial evidence, because BLM does not identify the legal standards that will govern
11 BLM's decision to grant Thornburgh the right of way necessary to construct the northern
12 connector road. Those legal standards apparently include the Federal Land Policy and
13 Management Act, the Upper Deschutes Resource Management Plan and the National
14 Environmental Policy Act.
15 . We do not understand petitioner to contend that if the BLM right of way is granted,
16 the northern connector road cannot be constructed across that right of way to provide a
17 connection with an existing roadway that leads to Highway 126. The only issue is whether
18 Thornburgh can secure the required right of way from BLM. In that circumstance, we have
19 held, it is not necessary for the county to engage in a process of determining whether
20 Thornburgh will be successful or that it is feasible that Thornburgh will be successful in
21 demonstrating that all of the regulatory standards that BLM must address to grant the right of
22 way are met. Instead, where the only question is whether a state or federal agency permit or
23 other approval will be granted, the county need only ensure that the required permit or
24 approval is not precluded "as a matter of law." Wetherell v. Douglas County, 44 Or LUBA
of the project." DCC 18.128.015 is a conditional use access criterion. But as Thornburgh points out, DCC
18.113.040(A) makes CMPs subject to DCC 18.128.010, .020 and .030; it does not list DCC 18.128.015.
Page 40
1 745, 764 (2003); Bouman v. Jackson County, 23 Or LUBA 628, 646-47 (1992). Thornburgh
2 argues, and we agree, the MOU and letter from BLM are substantial evidence that approval
3 of the right of way needed for the northern connection is not precluded as a matter of law.
4 Subassignment of error A is denied.
5 B. The Eastern Connector Road
6 Petitioner argues that the lease with DSL that Thornburgh is relying on for
7 permission to construct the eastern connector across property owned by DSL requires that
8 the road comply with zoning and land use requirements. Petitioner's argument here
9 concerning the eastern connector road depends on her seventh assignment of error, where she
10 contends that without an exception to Goal 3, the eastern connector road cannot be
11 constructed on EFU-zoned property. Because we reject the seventh assignment of error
12 above, we reject petitioner's argument concerning the eastern connector road.
13 Subassignment of error B is denied.
14 C. The Southwestern Connector Road
15 Petitioner's argument concerning the southwestern connector road is based on the
16 same theory that she argues in support of subassignment of error A—that the county is
17 required to demonstrate that it is feasible for Thornburgh to successfully obtain the required
18 right of way from BLM. We rejected that theory. Petitioner neither alleges nor demonstrates
19 that the needed right of way for the southwestern connector roadway is prohibited as a matter
20 of law. There is evidence in the record that the right of way will be granted. Record 4232.
21 Subassignment of error C is denied.
22 D. Secondary Access from Tribute Village to Cline Falls Highway
23 Thornburgh proposed and the county approved a secondary access from Tribute
24 Village to Clines Fall Highway. Petitioner contends that the county made no finding that this
25 secondary connection is feasible.
Page 41
1 Thornburgh responds that petitioner cites no legal requirement for the proposed
2 secondary access. Thornburgh also points out that there is evidence in the record that
3 Thornburgh has a right to use the existing BLM road in this area. We agree with Thornburgh
4 that petitioner fails to demonstrate that the county erred with regard to its approval of the
5 secondary access from Tribute Village to Cline Falls Highway.
6 Subassignment of error D is denied.
7 E. Access to the Part of Tribute Village West of Barr Road
8 Petitioner and Thornburgh agree that Barr Road is not a suitable road, either for
9 access or emergency access. Petitioner points out that Thornburgh at one point intended to
10 rely on Barr Road for emergency access. However, the decision specifically states that no
11 permission is given to use or improve Barr Road. Record 97. Thornburgh cites evidence
12 that emergency fire access will be provided by the two Cline Falls Road access roads.
13 Petitioner cites no legal requirement that Barr Road must be available for access or
14 emergency access. Therefore, the apparent unavailability of Barr Road for either access or
15 emergency access provides no basis for reversal or remand.
16 Subassignment of Error E is denied.
17 F. Adequacy of Roads Within the Resort
18 As noted earlier, DCC 18.113.070(G)(3)(b) requires that "[a]ccess within the project
19 shall be adequate to serve the project in a safe and efficient manner for each phase of the
20 project." Petitioner argues the county adopted no fmdings regarding this criterion.
21 Thornburgh responds:
22 "Thomburgh submitted a circulation plan in response to DCC
23 18.113.050(A)(6), which shows access within the resort. The issue of
24 adequate access within the project, as opposed to the legitimacy or availability
25 of the roads over public lands, which was addressed elsewhere in the fmdings,
26 was never controversial. No objections to the proposed circulation plan were
27 raised during the proceedings.
28 "The BOCC addressed the issue of internal access by imposing Conditions 5,
29 7, 27 and 30. Condition 30, in particular, makes it clear the final details of the
Page 42
1 circulation plan must be completed prior to FMP approval. Because the FMP
2 process will also provide an opportunity for public participation, a more
3 complete response to DCC 18.113.070(G)(3)(b) can be provided then."
4 Thornburgh's Response Brief 36.
5 In her reply brief, Gould contends that this issue was raised below at Record 3777-78.
6 We agree with Gould that the issue was raised. That the county may provide a public
7 hearing and may again consider DCC 18.113.070(G)(3)(b) when the FMP is approved does
8 not mean the county is not obligated to address and demonstrate that the CMP complies with
9 DCC 18.113.070(G)(3)(b). The county failed to do so.
10 Subassignment of error F is sustained.
11 The eighth assignment of error is sustained, in part.
12 GOULD'S NINTH ASSIGNMENT OF ERROR
13 DCC 18.113.050(B)(2) requires that a CMP be accompanied by a traffic study.38
14 DCC 18.113.070(G) is similar to the transportation planning rule standard that must be
15 applied when comprehensive plans or land use regulations are amended. OAR 660-012-
16 0060. If the destination resort "significantly affects a transportation facility," certain steps
17 must be taken to improve transportation facilities or mitigate those significant affects.39
18 Over the course of the local proceedings, Thornburgh's traffic expert (Clemow)
19 submitted a number of documents.40 Petitioner contends that Clemow's transportation
38 DCC 18.113.050(B)(2) requires that the following be submitted with a CMP:
"A traffic study which addresses (1) impacts on affected County, city and state road systems
and (2) transportation improvements necessary to mitigate any such impacts. The study shall
be submitted * * * at the same time as the conceptualmaster plan and shall be prepared by a
licensed traffic engineer to the minimum standards of the road authorities."
39 Under DCC 18.113.070(G)(3):
"A destination resort significantly affects a transportation facility if it would result in levels of
travel or access that are inconsistent with the functional classification of a facility or would
reduce the level of service of the facility below the minimum acceptable level identified in the
relevant transportation system plan."
40 Thornburgh lists those documents in footnote 33 on page 37 of its response brief.
Page 43
1 impact analyses were based on assumptions about certain aspects of Thornburgh Resort that
2 were not included the resort as finally approved. We list those alleged erroneous
3 assumptions below:
4 1. The Pinnacle Village occupies the entire northern part of the property,
5 and the Tribute Village occupies the entire southern part of the
6 property.
7 2. Traffic to and from the Pinnacle Village will use the Highway 126
8 entrance to the north;. traffic to and from Tribute will use the Cline
9 Falls entrance to the south. External traffic accessing and departing
10 . Thornburgh Resort will use the northern Highway 126 entrance rather
11 than the southern Cline Falls entrance.
12 3. The two Tribute golf courses will be available to Thornburgh members
13 and their guests and will not be available to persons using overnight
14 lodging.
15 4. The total number of dwelling units is 1325.
16 Petitioner contends the first assumption is erroneous, because a portion of the Tribute
17 Village, as approved, is located in the northern part of the property. Thornburgh responds
18 that "[i]ndividually owned residential or overnight lodging development generates exactly
19 the same amount of traffic regardless of whether it is in an area labeled 'the Pinnacle' or one
20 labeled 'the Tribute."' Thornburgh's Response Brief 38. Thornburgh contends, and we
21 agree, that petitioner fails to explain how the fmal location of boundaries between each
22 village has any effect on the traffic analysis.
23 Petitioner next contends that the assumption regarding outside traffic using the
24 Highway 126 entrance cannot be reconciled with the county's finding that "the primary
25 access for the resort will be from Cline Falls Highway." Record 46. Thornburgh points out
26 that the cited comment is made in a portion of the decision that was addressing the DCC
27 18.113.060(C) requirement that destination resorts must "have direct access onto a state or
28. , County arterial or collector roadway, as designated by the Comprehensive Plan."
29 Thornburgh argues, and we agree, that the cited statement does not establish that Clemow's
Page 44
1 traffic analysis assumptions regarding the preference of outside traffic for the Highway 126
2 entrance were erroneous.
3 With regard to the change in the proposal to allow persons in overnight lodging to use
4 the Tribute golf courses, Thornburgh argues again that petitioner makes no attempt to
5 establish why this change in the proposal would have any impact on the traffic analysis.41
6 Unless the change would affect the traffic analysis, Clemow's failure to consider the change
7 is not error. We agree with Thornburgh.
8 Finally, petitioner's contention that the traffic study assumes 100 fewer units than
9 were actually approved is based on a misreading of Table 9A, which appears at Record 3996.
10 Petitioner fails to include the bottom two entries in its total for the Tribute Village. If those
11 units are included, the traffic analysis assumes one more unit of housing than was ultimately
12 approved.
13 Petitioner next faults the traffic analysis for failing to analyze: (1) the roads that
14 connect the Tribute and Pinnacle Villages, (2) roads within the Pinnacle and Tribute
15 Villages, (3) impacts on roads in the City of Redmond to the east, and (4) impacts on Fifth
16 and Seventh Street intersections with Highway 20 in Tumalo.
17 With regard to the first and second criticisms, Thornburgh responds that petitioner
18 does not connect either criticism to a DCC informational requirement, standard or criterion.
19 •Thornburgh points out that DCC 18.113.050(B)(2) only requires that the traffic study
20 consider "impacts on affected County, city and state road systems." DCC 18.113.050(B)(2)
21 does not require that the traffic study consider the destination resort's proposed internal road
41 Thornburgh argues that whether overnight lodgers read a book or play golf has no impact on traffic
generation at the resort's access point.
Page 45
1 system. We agree with Thornburgh that those criticisms are not sufficiently developed to
2 provide a basis for reversal or remand.42
3 Turning to petitioner's third and fourth criticisms, the county adopted fmdings that
4 explained how Clemow modified his transportation impact analysis (TIA) in response to
5 concerns about the initial TIA.43 Record 17-18. Thornburgh argues:
6 "[T]he [board of county commissioners] considered and expressly rejected the
7 need for more traffic studies after the TIA was expanded to consider 12
8 intersections, six more than originally studied. Neither ODOT nor the County
9 Road Department objected to the approach taken. That fact, together with
10 their comments in the record, is substantial evidence to support the County's
11 approval of Thomburgh's decision to call a halt to more traffic studies."
12 Thornburgh's Response Brief 39.
13 Petitioner's third and fourth criticisms reduce to a disagreement with the county and
14 Thornburgh over how large an area and how many intersections must be included in the
15 traffic study required by DCC 18.113.050(B)(2). However, petitioner cites no legal standard
16 that requires that the county expand the traffic study to respond to her third and fourth
17 criticisms. Her disagreement with the county, without more, is not a sufficient basis for
18 remand.
19 The ninth assignment of error is denied.
20 GOULD'S TENTH ASSIGNMENT OF ERROR
21 DCC 18.113.050(B)(5) requires that an application for CMP approval include an
22 "Open Space Management P1an."44 Petitioner argues that the proposal and the county's
23 decision are inadequate to comply with DCC 18.113.050(B)(5)(a) through (d).
42 Petitioner does not cite DCC 18.113.070(G)(3)(b) in her arguments under the ninth assignment of error.
See subassignment of error F under the eighth assignment of error.
43 Thornburgh argues that the "the TIA did study impacts on Fifth and Seventh Street intersections with
Highway 20 in Tumalo. [Record 4000]." Thomburgh's Response Brief 39. Record 4000 shows that the
intersections of Fifth and Seventh Street with "Cook Avenue" (Cline Falls Highway) were considered, not the
intersections of those streets with Highway 20.
44 DCC 18.113.050(BX5) requires that a CMP shall include:
Page 46
1 A. How the Open Space Management Plan Meets Minimum Standards
2 Under DCC 18.113.050(B)(5), the Open Space Management Plan must explain how
3 "the minimum standards of DCC 18.113 [are met] for each phase of the development."
4 Petitioner advances two arguments under this subassignment . of error. - First, petitioner
5 contends the county "merely refers to revised Ex. B-1.04 and revised Ex. B-1.09." Gould's
6 PFR 41. Petitioner contends those exhibits merely show proposed open space locations and
7 do not explain how minimum standards will be met. Second, petitioner argues that the
8 decision "notes that [Thornburgh] intends to amend its designations of open space," which
9 petitioner contends will make it impossible for the county to compare the FMP with the CMP
10 to determine if it can be approved. Id.
11 In addition to referring to the two exhibits, the county found that Thornburgh
12 "submitted an Open Space Master Plan * * * which discusses a strategy to protect and
13 preserve open space and open space values." Record 20. That Open Space Master Plan
14 appears at Record 5644-49. Petitioner neither acknowledges nor makes any attempt to
15 explain why that plan is inadequate to comply with DCC 18.113.050(B)(5)(a). Contrary to
16 petitioner's contention that the decision says that Thornburgh plans to "amend" the open
17 space designations, the challenged decision actually says the areas designated on the open
18 space management plan "will be further identified and defined during the final master plan
"An open space management plan which includes:
"a.
"b.
An explanation of how the open space management plan meets the minimum
standards of DCC 18.113 for each phase of the development;
An inventory of the important natural features identified in the open space areas and
any other open space and natural values present in the open space;
"c. A set of management prescriptions that will operate to maintain and conserve in
perpetuity any identified important natural features and other natural or open space
values present in the open space;
"d. Deed restrictions that will assure that the open space areas are maintained as open
space in perpetuity."
Page 47
1 and subsequent subdivision/site plan reviews." Record 21. That statement simply
2 recognizes the relationship between the CMP, FMP andsubsequent subdivision/site .plan
3 stages, which allow refinement from stage to stage.
4 Subassignment of error A is denied.
5 B. An Inventory
6 DCC 18.113.050(B)(5)(b) requires that an open space management plan include an
7 inventory of two things: (1) important natural features, and (2) any other open space and
8 natural values. See n 44. Petitioner does not dispute the county's finding that there are no
9 "important natural features" on the property. However, petitioner contends Thornburgh
10 simply failed to inventory "other open space and natural values." Thornburgh responds:
11 "* * * The decision does state that the soils, natural features and geologic
12 history are shared with the entire area, and comments that the few rock
13 outcroppings on the site 'lend themselves to preservation.' The Natural
14 Characteristics Report, cited in the decision, makes the same points. There is
15 more discussion of open space values in the Open Space Management Plan
16 [Record 5644-46] and in the Architectural Guidelines [Record 5623-30],
17 which take a prescriptive approach to preserving trees, outcroppings and other
18 natural features." Thornburgh's Response Brief 40.
19 We fail to see why the cited material is not sufficient to supply the inventory of "any
20 other open space and natural features" that is required by DCC 18.113.050(B)(5)(b).
21 C. Management Prescriptions
22 DCC 18.113.050(B)(5)(c) requires a "set of management prescriptions" to maintain
23 and conserve open space "in perpetuity." See n 44. Petitioner contends that the county's
24 findings, which appear at Record 20, are inadequate to demonstrate that the required set of
25 management prescriptions will be provided.
26 Thornburgh points out that the challenged findings refer to the Open Space
27 Management Plan, which appears at Record 5644-49. The Open Space Management Plan
28 includes a number of "open space management prescriptions." Record 5646. Petitioner
Page 48
1 makes no attempt to show that the Open Space Management Plan is inadequate to comply
2 with DCC 18.113.050(B)(5)(c).
3 D. Deed Restrictions
4 DCC 18.113.050(B)(5)(d) requires "[d]eed restrictions that will assure that the open
5 space areas are maintained as open space in perpetuity:" Petitioner contends the county
6 failed to require a deed restriction that complies with DCC 18.113.050(B)(5)(d).
7 Much of the open space protection is set out in the CC&Rs. Pursuant to condition of
8 approval 14(B), Section 3.4 of the CC&Rs must include the following language:
9 "At all times, the Open Space shall be used and maintained as 'open space
10 areas.' The foregoing sentence is a covenant and equitable servitude, which
11 runs with the land in perpetuity and is for the benefit of all of the Property,
12 each Owner, the Declarant, the Association, and the Golf Club. All of the
13 foregoing entities shall have the right to enforce [the] covenant and equitable
14 servitude. This Section 3.4 may not be amended except if approved by an
15 affirmative vote of all Owners, the Declarant, the Golf Club and the
16 Association." Record 95.
17 The county also required, as a condition of approval, that the following restriction be
18 included in deeds conveying property in the resort:
19 "This property is part of the Thornburgh Resort and is subject to the
20 provisions of the Final Master Plan for Thornburgh Resort and the
21 Declaration of Covenants, Conditions and Restrictions of Thornburgh Resort.
22 The Final Master Plan and the Declaration contain a delineation of open space
23 areas that shall be maintained as open space areas in perpetuity." Record
24 96.45
25 Petitioner contends that the above are insufficient to comply with DCC
26 18.113.050(B)(5)(d), because "both the FMP and the CC&Rs may be amended." Gould's
27 PFR 43. We agree with Thornburgh that "[t]he requirement of a unanimous affirmative vote
45 Petitioner complains that this language was submitted as part of Thornburgh's final legal argument and
that it is "evidence" that is not properly included in an applicant's final legal argument under ORS
197.763(6)(e). Gould's PFR 43 n 15. We do not believe the proposed CC&R Ianguage is evidence. Neither,
as a general proposition, do we see any error in the county imposing a condition of approval that requires
CC&Rs to be amended. We reject petitioner's argument to the contrary.
Page 49
1 of all Owners, the Declarant, the Golf Club and the Association affords considerable
2 protection to the open space." Thornburgh's Response Brief 41. The deed restriction that
3 the county required to satisfy DCC 18.113.050(B)(5)(d) cites the CC&R protection and also
4 points out that the FMP, which will be approved in compliance with DCC 18.113, also will
5 require protection of that open space. Amendment of either the CC&Rs or the FMP to
6 dispense with protection for designated open space would be extremely difficult or
7 impossible. Given the backdrop of the CC&Rs and the FMP, we agree with Thornburgh that
8 the deed restriction is adequate to comply with DCC 18.113.050(B)(5)(d).
9 Gould's tenth assignment of error is denied.
10 GOULD'S ELEVENTH ASSIGNMENT OF ERROR
11 MUNSON'S FOURTH ASSIGNMENT OF ERROR
12 Under these assignments of error, petitioner Gould and petitioner Munson argue that
13 the county's findings concerning mitigation for Thornburgh's negative impacts on fish and
14 wildlife resources are inadequate and are not supported by substantial evidence.
15 DCC 18.113.070(D) requires that any negative impacts from the proposed destination
16 resort be completely mitigated so that there is no net loss and no net degradation of fish and
17 wildlife resources.46 Thornburgh responded to this requirement by submitting a Wildlife
18 Report. Record 5480-5511. That Wildlife Report describes the characteristics of the site and
19 surrounding area and the resources on the site. The report then estimates the mostly negative
20 impacts of developing the site. The report then describes the measures that will be employed
46 DCC 18.113.070(D) requires:
"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."
Page 50
1 to mitigate the negative impacts. A total of 29 project impacts are identified and mitigation
2 measures are proposed for those impacts. Record 5496-5502.47
3 One of the more significant steps that will be taken to mitigate habitat impacts will be
4 to enhance existing habitat on nearby BLM lands. Thornburgh has entered into a
5 memorandum of understanding (MOU) with BLM. Record 4232-36. That MOU recites that
6 the intent of the parties is
7 "to ensure that the Thornburgh Resort is developed in a manner that: (1) will
8 mitigate any demands on publicly -owned recreation facilities on public lands
9 in the surrounding area, (2) development does not alter the character of the
10 surrounding area in a manner that impacts the adjacent public properties, and
11 (3) completely mitigates for any negative impacts on fish and wildlife
12 resources so that there is no net loss or degradation of fish and wildlife
13 resources." Record 4232-33.
14 According to the MOU, Thornburgh is to commit up to $350,000 to work on issues identified
15 in the MOU. One of those issues is "Mitigating for Impacts to Wildlife." One of the
16 proposals cited in the MOU is set out below:
17 "* * * The parties plan a joint site visit to the Masten Allotment and will
18 continue to worktogether to develop a plan for the implementation of agreed
19 upon mitigation measures at this location. Wildlife mitigation measures at the
20 Masten Allotment may include, but shall not be limited to: (1) the
21 construction and maintenance of a designated, non -motorized trail system that
22 maintains primary wildlife habitat emphasis objectives in the [Upper
23 Deschutes Resource Management Plan], (2) the rehabilitation and removal of
24 existing trails that adversely impact wildlife and habitat, (3) the construction
25 of fencing or other access control measures designed to consolidate public
26 access points, (4) thinning of juniper and other vegetation management to
27 ensure long-term wildlife habitat conditions, and (5) noxious weed control in
28 the Masten Allotment and on affected public lands adjacent to the resort."
29 Record 4236.
47 The record also includes a September 28, 2005 technical report prepared by Thornburgh's wildlife
expert. Record 3972-79.
Page 51
1 The record also includes a letter from the Oregon Department of Fish and Wildlife
2 (ODFW), in which ODFW states that it has been working with Thornburgh and expresses the
3 view that habitat impacts can be mitigated. Record 5512.
4 Based on the above, after describing the key findings in the Wildlife Report, the
5 county found:
6 "The [county] finds that, as stated by ODFW, it is feasible to mitigate
7 completely any negative impact on identified fish and wildlife resources so
8 that there is no net loss or net degradation of the resource. The MOU between
9 the BLM and [Thornburgh] requires [Thornburgh] to complete a wildlife
10 mitigation plan that will be reviewed and approved by both ODFW and BLM.
11 The [county] imposes as a condition below that the mitigation plan adopted by
12 [Thornburgh] in consultation with Tetra Tech, ODFW and the BLM be
13 adopted and implemented throughout the life of the resort." Record 62.48
14 As we explained earlier in this opinion, immediately before addressing Gould's first
15 assignment of error, decision makers at the conclusion of the public/evidentiary stage of
16 multi -stage quasi-judicial land use proceedings that concern projects as complicated as this
17 one may be faced with disputes and conflicting evidence regarding whether the proposal
18 complies with one or more mandatory approval criterion. Under the Court of Appeals'
19 decision in Meyer and our decision in Rhyne, decision makers in such circumstances have
20 three options. The decision maker must (1) ford that the proposal satisfies the criterion, or
21 that it is feasible for the proposal to satisfy the criterion because feasible solutions to
22 identified problems exist, and impose any needed conditions to ensure the criterion is
23 satisfied, (2) fmd that the evidence is insufficient to demonstrate that the proposal satisfies
24 the criterion, or (3) defer a determination regarding whether that criterion is satisfied to a
48 The referenced condition is set out below:
"28. [Thornburgh] shall abide at all times with the MOU with BLM, dated September 28,
2005, regarding mitigation of impacts on surrounding federal Iands, to include
wildlife mitigation and long-range trail planning and construction of a public trail
system. The mitigation plan adopted by [Thornburgh] in consultation with Tetra
Tech, ODFW and the BLM shall be adopted and implemented throughout the life of
the resort." Record 97.
Page 52
1 later stage and apply conditions or take other appropriate steps to ensure that there will be a
2 public right of participation at that later stage with regard to the deferred finding on that
3 criterion. The decision maker's choice from those three options must be supported by
4 - substantial evidence. Rhyne. 23 Or LUBA at 447 n 5.
5 Petitioners Gould and Munson argue that the county's fording that Thornburgh
6 demonstrated that it is feasible to completely mitigate anticipated habitat damage (Rhyne
7 option 1) is not supported by substantial evidence. Petitioners also argue the county
8 effectively selected the third Rhyne option by deferring responsibility for ensuring the
9 proposal complies with the DCC 18.113.070(D) fish and wildlife habitat mitigation
10 requirement to BLM and ODFW. But having selected that option, petitioners argue the
11 county erred by failing to assure that the public will have a right to participate in determining
12 whether the final wildlife plan in fact completely mitigates the damage that the destination
13 resort will cause to fish and wildlife habit. Nez Perce Tribe v. Wallowa County, 47 Or
14 LUBA 419, 445, aff'd 196 Or App 787, 106 P3d 699 (2004); Kaye/DLCD v. Marion County,
15 23 Or LUBA 452, 474-75 (1992)
16 Where the county fords that it is feasible to satisfy a mandatory approval criterion, as
17 the county did here with regard to DCC 18.113.070(D), the question is whether that finding
18 is adequate and supported by substantial evidence. Salo v. City of Oregon City, 36 Or LUBA
19 415, 425 (1999). Here, Thornburgh supplied the Wildlife Report to identify the negative
20 impacts on fish and wildlife that can be expected in developing Thornburgh Resort. The
21 report also describes how Thornburgh proposes to go about mitigating that damage, both on -
22 site and off-site. In response to comments directed at that report, Thornburgh has entered
23 into discussions with ODFW and a MOU with the BLM to refine that proposal and come up
24 with better solutions to ensure that expected damage is completely mitigated.49 ODFW and
49 Petitioners fault the ODFW letter for using the term mitigated rather than the term "completely
mitigated," which is the term used in DCC 18.113.070(D). The MOU uses the DCC 18.113.070(D) term and
Page 53
1 BLM have both indicated that they believe such solutions are possible and likely to succeed.
2 We conclude that the county's fmding regarding DCC 18.113.070(D) is supported by
3 substantial evidence and is adequate to explain how Thornburgh Resort will comply with
4 DCC 18.113.070(D).
5 Had Thornburgh not submitted the Wildlife Report, we likely would have agreed with
6 petitioners that a county fmding that it is feasible to comply with DCC 18.113.070(D) would
7 likely not be supported by substantial evidence. Even though ODFW and BLM have
8 considerable expertise on how to mitigate damage to fish and wildlife, bare assurances from
9 ODFW and BLM that solutions are out there would likely not be the kind of evidence a
10 reasonable person would rely on to find that the damage that Thornburgh Resort will do to
11 fish and wildlife habitat can be completely mitigated. But with that report, the dialogue that
12 has already occurred between Thornburgh, ODFW and BLM, the MOU that provides further
13 direction regarding future refinements to ensure complete mitigation, and the optimism
14 expressed by the agencies involved, we believe a reasonable person could find that it is
15 feasible to comply with DCC 18.113.070(D). It does not matter that "precise solution[s] for
16 each and every potential problem" has not yet been identified. Meyer, 67 Or App at 282 n 6.
17 Finally, petitioners expressed concern below regarding the adequacy of the Wildlife
18 Study and expressed concern that because the groundwater that Thornburgh Resort will use
19 is hydrologically connected to the Deschutes River the federally listed Bull Trout may be
20 negatively impacted. The county points out that Thornburgh's expert submitted a technical
21 report in which it took the position that Thornburgh Resort would not negatively affect fish
22 population or habitat in the Deschutes River which lies two miles to the east of the proposed
23 resort. With regard to the other criticisms of the Wildlife Report the county contends that
24 where experts disagree on how to go about identifying and mitigating negative impacts the
we do not think there is any confusion on the part of ODFW, BLM or Thornburgh that all anticipated fish and
wildlife negative impacts must be completely mitigated.
Page 54
1 county is entitled to deference when it must choose which expert to believe. We agree with
2 the county. Mollala River Reserve, Inca v. Clackamas County, 42 Or LUBA 251, 268 (2002)
3 Mazeski v. Wasco County, 28 Or LUBA 178, 184 (1994), aff'd 133 Or App 258, 890 P2d 455
4 (1995).
5 Gould'seleventh assignment of error and Munson's fourth assignment of error are
6 denied.
7. MUNSON'S FIRST ASSIGNMENT OF ERROR
8 DCC 18.113.050(B)(11)(b)(3) requires a water study that identifies a water impact
9 area.50 Petitioner Munson argues the county "arbitrarily limited the groundwater `impact
10 area' to wells within a two-mile radius from the destination resort * * *." Munson's PFR 4.
11 . The county responds that the Hydrology Study that was prepared for. Thornburgh by
12 Newton Consultants Inc. (NCI) is not arbitrarily limited to wells within a two-mile radius.
13 The county found, based on the NCI study, that Thornburgh Resort's wells would only have
14 a perceptible impact on wells that are within a few hundred feet of the proposed resort wells.
15 The county contends that the fact that NCI examined well logs within a two-mile radius does
16 not mean the study imposed an arbitrary two-mile impact area. The county contends that it
17 recognized the potential for surface water impacts at two aquifer discharge sites many miles
18 from Thornburgh Resort. Record 31. The decision explains that the potential for such
19 remote impacts "will be addressed through state mitigation requirements in connection with
20 [Thornburgh's] application for a ground water permit." Id. We agree with the county, that
21 . petitioner has not established that the water study was arbitrarily limited to a two-mile radius.
so DCC 18.113.050(B)(11) requires that a CMP be accompanied by a "study prepared by a hydrologist,
engineering geologist or similar professional," that describes the water demand the destination resort will have
at final buildout and the water that is available to meet that demand. DCC 18.113.050(B)(11)(b)(3) specifically
requires that the study include an "identification of the area that may be measurably impacted by the water used
by the destination resort (water impact area) and an analysis supporting the delineation of the impact area."
Page 55
1 Petitioner Munson also argues under this assignment of error that while the county
2 imposed a condition of approval to provide additional assurances to well users within two
3 miles of the .resort, that condition will offer no protection to water users who are located
4 beyond that two-mile area and may be impacted by Thornburgh wells.51
5 The county contends that "Thornburgh voluntarily subjected itself to this condition as
6 part of a good faith effort to address the concerns of neighboring well owners."
7 Respondent's Brief 31. The county contends that condition 11 does not- affect the county's
8 finding that Thornburgh's wells will have no measurable effect on off-site wells and that the
9 mitigation that will be required of Thornburgh will operate to protect those water users. We
10 agree with the county.
11 Munson's first assignment of error is denied.
12 GOULD'S TWELFTH ASSIGNMENT OF ERROR
13 MUNSON'S SECOND ASSIGNMENT OF ERROR
14 DCC • 18.113.070(K) requires that Thornburgh establish that adequate water will be
15 available to serve the proposed destination resort.52 Thornburgh proposes to drill wells into
51 Thornburgh imposed the following condition of approval:
"11. At the time of submission for [FMP] approval, [Thomburgh] shall include a written
plan for entering into cooperative agreements with owners of existing wells within a
two -utile radius of [Thornburgh's] wells. The plan shall include a description of
how [Thornburgh] will provide notice to affected well owners and of the terms and
conditions of an option for well owners to enter into a written agreement with
[Thornburgh] under which [Thornburgh] will provide indemnification to well
owners in the event of actual well interference as a result of [Thornburgh's] water
use. The plan shall remain in effect for a period of five years following full water
development by [Thornburgh]. Specific terms and conditions of the plan shall be
developed in cooperation with County staff and the Oregon Water Resources
Department." Record 95.
52 DCC 18.113.070(K) provides, in part:
"Adequate water will be available for all proposed uses at the destination resort, based upon
the water study and a proposed water conservation plan. Water use will not reduce the
availability of water in the water impact areas identified in the water study considering
existing uses and potential development previously approved in the affected area. * * *"
Page 56
1 the regional aquifer to supply the approximately 2355 acre-feet of water that will be needed
2 by the resort annually at full buildout. Record 4261. The surface water in the Deschutes
3 basin is fully allocated. Because the surface water is hydraulically connected to the regional
4 aquifer that Thornburgh proposes to use for its source of water, the Oregon Water Resources
5 . Department will require that ..Thornburgh mitigate the impact that withdrawal would
6 otherwise have on Deschutes Basin surface water. To mitigate for the 2355 acre feet of
7 water, Thornburgh will need 942 mitigation credits. Record 4262. The 942 mitigation
8 credits represent 942 acre-feet of water annually.53 Thornburgh can secure the needed
9 credits by purchasing and retiring individually owned water rights or by purchasing them
10 from a mitigation credit bank or "other mitigation credit holder." Id.
11 In the proceedings below, the county adopted the following findings in response to
12 petitioners' arguments that the county should require Thornburgh to produce the necessary
13 mitigation credits before granting CMP approval:
14 "The question before the [county] is whether, in order to demonstrate that
15 water is `available' under the county standard, an Applicant must provide
16 evidence of actual mitigation credits at the time of county review, or whether
17 it is sufficient to demonstrate that it is feasible for [Thornburgh] to obtain
18 sufficient mitigation credits by the time the credits are ultimately required
19 under the OWRD water right process. * * * In Bouman v. Jackson County, 23
20 Or LUBA 628, 647 [(1992)], LUBA stated, in the context of water
21 availability, 'a decision approving the subject application simply requires that
22 there be substantial evidence in the record that [Thornburgh] is not precluded
23 from obtaining such state agency permits as a matter of law.' [County's
24 emphasis.]
25 "The [county] interprets the County standard to require no more than what
26 LUBA required in Bouman. [Thornburgh] has easily satisfied that standard.
27 Even if the standard were interpreted to require more, it certainly would
28 require no more than a showing that the acquisition of the necessary
29 mitigation credits is feasible. Such a showing can include evidence that
53 OWRD considers Thornburgh's proposal to constitute a "quasi -municipal use." OWRD assumes that
quasi -municipal uses use 40 percent of the water it withdraws from the aquifer and return 60 percent of the
withdrawn water to the system. Forty percent of 2355 equals 942.
Page 57
1 mitigation water is generally available in the basin and that [Thornburgh] has
2 a reasonable plan for acquiring mitigation from available sources.
3 "The Source of water for the project is groundwater from the regional aquifer
4 of the Deschutes Basin. As the Hearings Officer found, [Thornburgh]
5 submitted the required water study and water conservation plan, which
6 demonstrate that adequate water is available from this aquifer for the project.
7 * * * In addition, [Thornburgh] submitted an application for a water right to
8 OWRD, * * * and OWRD provided a letter indicating that the application is
9 likely to be approved, subject to [Thornburgh's] providing sufficient
10 mitigation, as required under rules of the OWRD. * * * The OWRD `initial
11 review * * * confirm[s] that groundwater is available for the project, and that
12 the proposed use of ground water from new wells is not expected to interfere
13 with other existing groundwater uses. These findings are also supported by
14 conclusions reached in the Water Study submitted by [Thornburgh] * * * and
15 in the report prepared by Eco:Logic, on behalf of the project opponents * * *.
16 Based on this information, [Thornburgh] demonstrated that groundwater is
17 available for the project and that a water right is likely to be approved, subject
18 to the state mitigation requirement.
19 "Based on this evidence, the Board finds that [Thornburgh has] shown it is not
20 precluded from obtaining the state water right. Therefore, the Board finds that
21 the standard is met." Record 72-73.
22 The county also imposed conditions of approval. Under those conditions,
23 Thornburgh may not secure FMP approval until OWRD approves its application for a water
24 right permit. In addition, at the time of tentative plat or site plan approval for individual
25 phases, Thornburgh must demonstrate that the mitigation required for that phase under the
26 approved water right is accounted for.54
27 The county's interpretation and application of DCC 18.113.070(K) is entirely
28 consistent with our decision in Bouman. We do not understand petitioners to contend that
54 Condition 10 provides:
"[Thornburgh] shall comply with all applicable requirements of state water law as
administered by OWRD for obtaining a state water right permit and shall provide
documentation of approval of its application for a water right permit prior to approval of the
final master plan. [Thornburgh] shall provide at the time of tentative plat/site plan review for
each individual phase of the resort development, updated documentation of the state water
right permit and an accounting of the full amount of mitigation, as required under the water
right, for that individual phase." Record 94-95.
Page 58
1 Thornburgh faces any legal barrier in its application for a right to withdraw groundwater to
2 serve Thornburgh Resort. Petitioners' argument that the county must interpret DCC
3 18.113.070(K) to require that Thornburgh secure all of the mitigation credits that the
4 destinationresort will ultimately need,. before CMP approval can be granted, is inconsistent
5 with our decision in Bouman and we reject the argument.
6 We also agree with the county that even if it is obligated under DCC 18.113.070(K)
7 to require that Thornburgh demonstrate that it is feasible for Thornburgh to secure the
8 mitigation credits as they are needed, there is substantial evidence in the record to establish
9 such feasibility. The evidence in the record does not establish that Thornburgh currently has
10 in hand all of the mitigation credits it will ultimately need. And there is evidence in the
11 record that other entities are seeking mitigation credits to allow development to be served by
12 groundwater. However, while Thornburgh may have .to compete with these other entities at
13 the time it seeks the mitigation credits that it will need to allow individual phases of
14 Thornburgh Resort to go forward, there is no reason to believe that Thornburgh will not be
15 able to purchase water rights directly from willing sellers or from banks that acquire such
16 water rights and make the resulting mitigation credits available to willing purchasers.
17 Finally, petitioner Gould asserts three additional arguments under her twelfth
18 assignment of error, beginning at page 45, line 14. The county responds to each of those
19 arguments. Respondent's Brief 21-24. We agree with the county that none of the three
20 arguments provides a basis for remand, and further discussion of those issues would only
21 unnecessarily lengthen an already lengthy decision.
22 Gould's twelfth assignment of error and Munson's second assignment of error are
23 denied.
24 MUNSON'S THIRD ASSIGNMENT OF ERROR
25 Under his third assignment of error, petitioner Munson contends that in seeking its
26 water right permit from OWRD, Thornburgh should not be considered a "quasi -municipal"
Page 59
1 use because much of the water Thornburgh will need will be used to irrigate golf courses and
2 common areas and the 40 percent use assumption does not apply to irrigation uses.
3 The county responds, and we agree, that the assumptions that OWRD applies in
4 reviewing Thornburgh's permit application are for OWRD to apply. OWRD apparently has
5. initially determined that it is appropriate to treat Thornburgh Resort as a "quasi -municipal"
6 use. Record 4262. Petitioner Munson's argument under this assignment of error is property
7 directed at OWRD; it provides no basis for reversal or remand of the county 's decision to
8 grant CMP approval.
9 Munson's third assignment of error is denied.
10 GOULD'S THIRTEENTH ASSIGNMENT OF ERROR
11 Under her final assignment of error, petitioner contends the county's findings are
12 inadequate to demonstrate Thornburgh Resort will be served with adequate fire and police
13 services, as required by DCC 18.113.070(I).55 Petitioner contends that while the area of the
14 resort that will be occupied by the Tribute Village is within a fire district, the area that will
15 be occupied by the Pinnacle Village is not. Petitioner contends the county erred by not
16 finding that it is feasible to annex the Pinnacle Village area to the fire district. Petitioner also
17 argues that the county erred by not requiring on-site police facilities.
18 With regard to fire service, the county found:
19 "The [County] finds that the City of Redmond Fire Department, in
20 conjunction with the Deschutes County Rural Fire Protection District No. 1,
21 will provide fire protection services to the resort. The southern portion of the
22 subject property, proposed development Phase A and most of Phase 13, is
23 currently within the boundaries of the Deschutes County Rural Fire Protection
55 DCC 18.113.070(I) requires that the county find:
"Adequate public safety protection will be available through existing fire districts or will be
provided onsite according to the specification of the state fire marshal. If the resort is located
outside of an existing fire district the developer will provide for staffed structural fire
protection services. Adequate public facilities to provide for necessary safety services such
as police and fire will be provided on the site to serve the proposed development."
Page 60
1 District No. 1. As stated by the City of Redmond Fire Department * * *
2 [Thornburgh] initiated the process to annex the remainder of the resort
3 property into the boundaries of the Rural Fire District."56 Record 70.
4 We conclude that a reasonable decision maker could conclude that the initiated
5 annexation request will be granted and that Thornburgh will therefore comply with the DCC
6 18.113.070(1) requirement that the resort must be located within a fire district. Petitioner
7 cites no evidence that would suggest that the annexation petition will not be granted.
8 With regard to petitioner's argument concerning police facilities, Thornburgh argues
9 that the DCC 18.113.070(I) requirement that "facilities to provide for necessary safety
10 services such as police and fire will be provided on the site" does not impose a requirement
11 for onsite police facilities. Police services can be "provided on the site" by the Deschutes
12 County Sherriff from its facilities located elsewhere. We agree with Thornburgh on the
13 interpretive issue. The county found:
14 The [County] fmds that the site falls within the jurisdictional boundaries of
15 the Deschutes County Sheriff's Office, which will provide police protection
16 for the resort. * * * The Sheriff's Depaituient states that resort development
17 will provide an additional tax base that will generate the funds needed to
18 cover additional police services in the vicinity of the subject property. This
19 additional revenue will be sufficient to provide the personnel and equipment
20 needed to insure the resort can be provided with public safety protection."
21 Record 70.
22 The above -quoted finding is sufficient to explain why the proposal complies with
23 DCC 18.113.070(1), with regard to police protection.
24 Gould's thirteenth assignment of error is denied.
25 The county's decision is remanded.
56 In the referenced letter, the fire department explains:
"[Thornburgh] has met with the [Fire District Board of Directors] and indicated that it intends
to move forward with a petition to annex the remainder of the resort project into district
boundaries. The Board has agreed to allow the developer to move forward with its
annexation petition. Depending upon the timing of an annexation petition, the parties have
agreed to explore the potential for serving this portion of the property on a contractual basis .
until annexation is final." Record 5761-62.
Page 61
APPENDIX A
CoNcEiJALDLoPMENrPJ.4PiR'!0,18r#A4
-natuT.c.co*:,0146,
797 REvisgip,A4.4
Page 62
Appendix B
OVERNIGHT AND DENSITY CALCULATIONS
PHASES A B C D E F G TOTALS
Residential
Single Family
300
150
150
125
125
50
50
950
Hotel
0
0
0
0
0
25
25
50
Residential
Overnight*
150
75
75
62.5
62.5
0
0
425
Net
Overnight Units
150
75
75
62.5
62.5
25
25
475
Net
Dwelling Units
450
225
225
187.5
187.5
75
75
1425.
RATIO-Resid.
Units/Ovemigh
t
2.00
2.00
2.00
2.00
2.00
2.00
2.00
RATIO-
Cumulative
2.00
- 2.00
2.00
2.00
2.00
2.00
2.00
* In Phase A there will be 50 cottages that will be built in the Tribute that will be designated
with/for lockoffs. These could accommodate 150 overnights. In later phases as buildings are
constructed it is likely that these Phase A buildings will be modified so that the lockoffs will
not be used on a long term basis. Thus these will only account for 50 overnights.
Page 63