HomeMy WebLinkAboutRemand Recommendation PacketCommunity Development Department
Planning Division Building Safety Division Environmental Health Division
March 12, 2008
To:
From:
Subject:
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
Deschutes County Board of Commissioners
Ruth Wahl, Associate Planner
Recommendation for corrections to the Decision on file #
CU -05-20 as remanded by the Land Use Board of Appeals
and the Court of Appeals.
Date of Hearing: March 19, 2008
BACKGROUND
The final decision by Deschutes County on the Conceptual Master Plan (CU -05-
20) for Thornburgh Resort became final on May 10, 2006. Several issues were
appealed to the Land Use Board of Appeals (LUBA) and portions of that decision
were further appealed to the Court of Appeals. The Board of Commissioners
(BOC) is required to correct findings as remanded by both LUBA and the Court of
Appeals. At a work session on January 9, 2008, the Board decided to conduct
an On -the -Record Hearing in order to correct those items that were remanded.
The Board requested that the parties to the remand provide written legal
argument to the Board prior to 5:00 PM on February 29, 2008. Attached are the
letters received on February 29, 2008 from the parties of interest regarding this
matter:
1. Exhibit A,
2. Exhibit B,
3. Exhibit C,
4. Exhibit D,
Jan Wilson from the Goal one Coalition representing
Steve Munson
Paul Dewey representing Nunzie Gould
Peter Livingston from Schwabe, Williamson & Wyatt
representing Thornburgh
LUBA Final Opinion Order
5. Exhibit E, Court of Appeals Decision
6. Exhibit F, LUBA on remand from the Court of Appeals
These parties have submitted testimony and no further testimony will be
taken at this Hearing. The LUBA and Court of Appeals remands are attached
as Exhibit D and E respectively. This memo summarizes the arguments and
recommend for the new findings to be consistent with LUBA remand and Court of
Appeals decision
REVIEW
1. ISSUE: Gould's First Assignment of Error: In order to demonstrate at the
Conceptual Master Plan (CMP) level that the 2:1 ratio of overnight lodging
to unrestricted residential units, required by DCC 18.113.060 (D) (2), will
be achieved throughout each phase, the County must require correction of
the applicant's inconsistencies between the phasing plan for Phase D and
the Overnight and Density Calculations chart. The County must also
provide a clarification regarding the applicant's notation on the Overnight
and Density Calculations chart regarding "lock off' feature of the first 150
overnight lodging units.
DISCUSSION: The petitioners argue that the corrections for the finding
on the Overnight and Densities Calculations Chart cannot be addressed
with a new finding. They contend that the revised calculations chart
introduced in the applicant's final legal argument is new evidence and
therefore cannot be considered without opening the CMP record. In fact it
is staff's belief that LUBA did not view the suggested correction as new
evidence (LUBA Decision at p.16, n 16). The Decision clearly states that,
"The County needs to either require that Thornburgh make that correction,
or impose a condition of approval that the correction be made, before it
grants approval of the CMP."(LUBA Decision at p.17, line 5, 6, and7).
FINDING: Thornburgh shall modify the Overnight and Density
Calculations chart presented to the Board at the appeal hearing on
December 20, 2005 by replacing it with the Overnight and Density
Calculations chart included at page 25 in Thornburgh's final legal
argument to the Board of County Commissioners.
The 75 units of overnight lodging shown in the December 20, 2005
Overnight and Density Calculations table to be developed in Phase C will
actually be developed in Phase B, for a total of 150 units in Phase B. The
Overnight and Density Calculations table will be corrected to show that 50
CU -05-20 2
hotel units will be developed in Phase D, where the Phasing Plan already
shows the hotel will be developed. And the legend in the Phasing Plan
will be corrected to show hotel and residential overnight lodging uses in
Phase D.
Thornburgh shall present the corrected Phasing Plan and Overnight and
Density Calculations chart, consistent with this condition, during the Final
Master Plan approval process.
2. ISSUE: Gould's Third Assignment of Error: The County erroneously
found that Thornburgh could provide financial assurances for the required
150 units of overnight lodging. Further the County's conditions of approval
for the CMP allow that Thornburgh may provide financial assurance for the
construction of the required overnight lodging (condition # 21). LUBA
found that "While the county's decision with regard to the option of
financially assuring the first 50 units of overnight lodging is consistent with
DCC 18.113.060 (A) (5), it is inconsistent with ORS 197.445 (4) (b) (B)."
The statute provides that at least 50 units of overnight lodging must be
constructed prior to the closure of sale of individual lots or units.
Condition No. 21 needs to be amended to reflect this required change.
DISCUSSION: The petitioners argue that Thornburgh should also be
required to identify in the CMP where these first 50 units will be to check
on adequacy of access and consistency with the phasing plan. Staff
believes that the LUBA remand only requires that the County must amend
its finding and amend or eliminate the language in the conditions of
approval so that they are consistent with ORS 197.445 (4) (b) (B).
RECOMMENDED FINDING: Each phase of the development shall be
constructed such that the number of overnight lodging units meets the 2:1
ratio of individually owned units to overnight lodging units standard 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 general public for at least 45 weeks per calendar
year through one or more central reservation and check-in services. As
required by ORS 197.445(4) (b) (B), at least 50 units of overnight lodging
must be constructed prior to the closure of sale of individual lots or units in
the first phase.
3. ISSUE: Gould's Fourth Assignment of Error: The County failed to show
that the phasing plan demonstrates how the proposed destination resort
will maintain the 2:1 ratio limitation in Phase D. The County was in error
CU -05-20 3
to approve the CMP without requiring that the phasing plan be amended
to reflect the 62.5 units that Thornburgh plans to construct in Phase D.
DISCUSSION: The Fourth Assignment of Error is closely tied to the First
Assignment of Error in that this issue is identical to the issue that
prompted LUBA to remand the First Assignment of Error. As stated above
in #1, Staff recommends that the phasing plan be corrected to show that
the overnight dwelling units will be developed and maintain the 2:1 ratio
requirement.
FINDING: Correct the Phasing Plan in the Decision to show that the
overnight dwelling units will be developed with the hotel units (in pod 30)
during Phase D.
4. ISSUE: Gould's Eighth Assignment of Error: Deschutes County's Code
requires that "access within the project shall be adequate to serve the
project in a safe and efficient manner for each phase of the project."
(DCC18.113.070 (G) (3) (b). LUBA concluded that the County must
demonstrate that the CMP complies with this provision.
DISCUSSION: Petitioner contends that there is not enough evidence in
the record in order for the Board to make findings on this issue. Staff
disagrees. The LUBA Decision does, however, require that a finding be
made that the CMP (emphasis added) complies with DCC 18.113.070 (G)
(3) (b).
RECOMMENDED FINDING: Gould argues that, because a finding on
this code provision was omitted from the original Board decision on the
CMP, the Board must open the record for testimony on this issue. The
Board does not find that argument to have merit. This is not a matter of
the Board having included findings that LUBA or the Court of Appeals
found to be in error. The findings for this code provision were completely,
inadvertently, omitted. Thus, this stage of the decision is equivalent to the
drafting of the original decision after the public hearing was closed. At this
point, the Board need only include the omitted findings. Gould's recourse,
then, if she disagrees with those findings, is to appeal this new decision.
The Board has already heard and seen a large amount of testimony on
this Matter. Therefore, the Board finds that the Applicant submitted a
revised Vehicular Access and Circulation Plan, Memorandum of Applicant
in Response to Public Comments. September 28, 2005 letter to the
County hearings officer, MR, Ex. 14, B-1.40, that the location of the
northern access road, which emphasizes shared use of rights-of-way, will
"balance BLM's competing objectives" by minimizing "any additional
CU -05-20 4
disturbance of the land and ... consolidate access points in a single
location." Mr. Towne states further that Thornburgh's choice of existing
road segments for its proposed connecting roads across federal lands in
Section 29 and 30 "will minimize the fragmentation of public lands and
impacts on the environment." From these statements, the Board
concludes the proposed connecting roads will be "efficient," as that term is
used in the DCC.
Opponent Gould objects that the internal road that accesses the
southwest part of the property cannot be described as safe or efficient
because it is over two miles from Cline Falls Road and because of "fire
danger in the area." However, the distance from Cline Falls Road does
not make the road in the southwest part of the property inefficient or
unsafe per se. Gould has not identified a standard that would show the
road to be unsafe. Efficiency depends on available alternatives, and the
Applicant's choice of alternatives appears reasonable to the Board.
Because it is not adequately developed, Barr Road is not a reasonable
access alternative to the southwest part of the resort. In its May 14, 2007
Opinion and Order, LUBA found that the unavailability of Barr Road for
either access or emergency access provides no basis for reversal or
remand.
The question of fire danger is addressed by the City of Redmond Fire
Department in its January 12, 2005 letter, in which the Fire Chief, Ron
Oliver, describes meeting with representatives of the resort project to
discuss fire and public safety issues, hazardous fuels reduction and
annexation of the resort property into the Deschutes County Rural Fire
Protection District #1. Thornburgh's Burden of Proof Statement, dated
February 16, 2005 ("BOP"), Ex. 15, B -29a. In a subsequent July 13, 2005
letter, MR, Ex. 15, B-1.32, Chief Oliver states that fire code access
requirements will be met through the use of two routes connecting to the
Cline Falls Highway and through an all weather access road across the
northern portion of the Thornburgh property for additional access via
Highway 126. In a September 23, 2005 letter, MR, Ex. 15, B-1.31,
Deschutes County Sheriff Les Stiles states that representatives of the
sheriffs office have reviewed Thornburgh's Resort Planning and
Emergency Preparedness plan, MR, Ex. 15, B-1.30, and find it "consistent
with the evacuation operational plans within Deschutes County." These
letters and the Emergency Preparedness Plan itself adequately address
the concerns raised by Gould in connection with safe and efficient internal
access.
The County depends upon its own Road Department to raise concerns
about internal access after reviewing an application. Gary Judd, at the
CU -05-20 5
County Road Department, by email dated June 2, 2005, requested from
Applicant's traffic consultant a copy of the updated map of the phases and
an approximate time line for construction of each phase, in order to
assess trip distribution and how it would affect various intersections. On
July 1, 2005, Mr. Judd commented to planner Devin Hearing that
Thornburgh's traffic study, as modified, "is acceptable to the Road
Department." Mr. Judd raised no concerns about internal access.
Based on substantial evidence in the record, the Board finds that
Applicant has demonstrated compliance with this standard. In order to
assure future compliance, as access roads are designed and constructed,
the Board has imposed Conditions 5, 7, 27 and 30. Condition 5 requires
the design and construction of the road system in accordance with Title 17
of the Deschutes County Code ("DCC"). It requires further that road
improvement plans be approved by the County Road Department prior to
construction. DCC Title 17 (and, in particular, DCC chapter 17.48)
establishes minimum standards for design and construction of roads and
other improvements and facilities. DCC 17.48.180 states applicable
minimum road standards for private roads. In addition, DCC 17.48.030
allows the Road Department Director to impose additional design
requirements "as are reasonably necessary to protect the interests of the
public." Condition 27 requires that road width be consistent with the
standards in DCC chapter 17.36. Condition 30 requires Applicant to
submit a detailed traffic circulation plan prior to Final Master Plan
approval.
This criterion is met.
5. ISSUE: Gould's Fifth Assignment of Error was rejected by LUBA and
Thornburgh's cross appeal on the issue was rejected by the Court of
Appeals. The petitioner contends that the County violated the subsection
(G) requirement that no lot shall exceed a project average of 22,000
square feet, where the County allowed lots over twice that size and even
larger than one acre. Staff believes that the Board should clarify this
finding so that it does not allow Thornburgh Resort the flexibility to
subdivide the property into whatever size Tots it believes the terrain or high
density housing type it desires might warrant, without first amending the
CMP to allow such different lot sizes.
DISCUSSION: Staff believes that the language in DCC 18.113.060 (G) (1)
may be confusing and thus the original Condition of Approval may also be
unclear. Staff believes that the language proposed below should clarify
any confusion associated with allowable lot sizes in this Resort.
RECOMMENDED FINDING: DCC 18.113.060(G) (1) does not state a
CU -05-20 6
requirement for maximum lot dimensions other than the general
requirement that "No lot for a single-family residence shall exceed an
overall project average of 22,000 square feet in size," which LUBA has
said (and the Board agrees) "prohibits lot sizes that would result in the
`overall project average' exceeding 22,000 square feet." LUBA Opinion
and Order dated May 14, 2007, p. 30.
The Board understands Applicant's "Residential Lot Standards" chart,
Applicant's Burden of Proof Statement, dated February 24, 2005, Ex. 8, B -
24a, which shows residential lot standards, to state only minimum
dimensional standards, as required by this code provision, and not to state
any limitation on maximum dimensions unless expressly stated (as with
the maximum lot coverage and the maximum building height (depending
on location)). In particular, the minimum "lot width average" is understood
to state that the average lot width shall not be less than the stated number
under any type of lot (e.g., "Type A," "Type B," etc.), but does not state it
cannot be more. The lot frontage and lot setback standards are also
understood to be minimums, which do not establish maximum lot
dimensions.
ISSUE: The Board adopted a finding that the applicant, "shall abide at all
times with the Memo of Understanding (MOU) with the Bureau of Land
Management (BLM), dated September 28, 2005, regarding mitigation of
impacts on surrounding federal lands, to include wildlife mitigation and
long-range trail planning and construction of a public trail system. The
mitigation plan adopted by the Applicant in consultation with Tetra Tech,
ODFW and the BLM shall be adopted and implemented throughout the life
of the resort" The Court of Appeals found that Thornburgh failed to
include a Wildlife Mitigation Plan with the CMP so that the public had
sufficient evidence in the record to show that any particular wildlife impact
mitigation plan was feasible and that LUBA erred in nor requiring the
county to specify a particular mitigation plan and subject that plan to public
notice and county hearing processes.
DISCUSSION: Petitioner contends that in the absence of a wildlife
mitigation plan and evidence to support sufficient findings under DCC
18.113.070 (D) ora deferral to the FMP, Thornburgh's CMP must be
denied. The petitioner states, "The CMP is the legal basis for the FMP.
The FMP cannot be compared for compliance with the CMP as required
by DCC 18.113.100 if a fish and wildlife plan is not part of the CMP." Staff
agrees with petitioner in part. The Court of Appeals decision is clear that
the wildlife mitigation plan is subject to public review and comment,
however at what step of the process is unclear. The Court of Appeals
decision states, "That code provision requires that the content of the
CU -05-20 7
mitigation plan be based on "substantial evidence in the record," not
evidence outside the CMP record." (Emphasis added). This indicates that
the wildlife mitigation plan must be decided to comply with DCC
18.113.070 (D) at the CMP level. The Court of Appeals decision also
states, "In this case, the county's decision did not postpone a
determination that the project complies with DCC 18.113.070 (D). The
county might have, but did not, postpone determination of compliance with
that standard until the final master plan approval step and infuse that
process with the same participatory rights as those allowed in the CMP
approval hearing." (Emphasis added). This would give the indication that
the wildlife mitigation plan and the public's participatory rights could take
place during the FMP approval process.
The Board of Commissioners decided at their January 9, 2008 work
session to postpone the review of the wildlife mitigation plan to the public
hearing at the FMP stage. The Board, according to ORS 215.435 has 90
days to take final action on this application for Conceptual Master Plan. In
a letter dated January 18, 2008 from Schawbe, Williamson & Wyatt on
behalf of Thornburgh Resort, the applicants requested that the County
proceed with the application on remand. This started the 90 day clock;
therefore the County has until April 17 to make final decision on this CMP
application.
CU -05-20 8
Goal One Coalition
Goal One is Citizen Involvement
February 29, 2008
Deschutes County Board of Commissioners
— c/o -Ruth WW Associate Planner
RECEIVED
BY: (i\ --r
FEB 2 9 t_
Regarding: Request for Written Argument, on remand, Thornburgh Resort CMP (CU -05-20)
Dear County Commissioners:
Goal One Coalition is an Oregon nonprofit organization that provides assistance to Oregonians
advocating for livability and sustainability within their communities. Goal One Coalition
represented Steve Munson in the LUBA appeal of the Thornburgh Resort CMP approval, and
these comments are submitted on his behalf, in response to the "Request for Written Argument"
notice issued earlier this year.
We join in the comments and objections of co -petitioner Nunzie Gould, submitted by her
attorney Paul Dewey. We agree that, in order to adequately respond to the LUBA and Court of
Appeals remand decisions, the CMP record must be reopened.
Specifically, in sustaining Ms. Gould's first and fourth assignments of error, LUBA stated that the
county must require a "corrected" phasing plan. There is absolutely no way to get a "corrected"
phasing plan into the record without reopening the record and allowing public comment on any
such revised plan so submitted.
Additionally, the decision of the Court of Appeals was very clear that merely tweaking the
findings would not be adequate to demonstrate compliance with the wildlife impact mitigation
requirements:
"First, the county's findings were inadequate to establish the necessary and likely
content of any wildlife mitigation plan. Without knowing the specifics of any
required mitigation measures, there can be no effective evaluation of whether the
project's effects on fish and wildlife resources will be 'completely mitigated' as
required by DCC 18.113.070(D).... Second, that code provision requires that
the content of the mitigation plan be based on 'substantial evidence in the
record,' not evidence outside the CMP record."
Gould v. Deschutes County, 216 Or App (November 7, 2007).
The language of the Court of Appeals decision is clear — the record must be
supplemented with specifics. Merely holding a public hearing at some later date is not
enough to comply with the Court of Appeals decision, as the Court held that lack of a
public hearing was the "second reason" the decision was defective, the first being the
lack of substantial evidence in the record to support the finding of complete mitigation.
In summary, Mr. Munson joins Ms. Gould in asserting that the CMP record needs to be
reopened for additional evidence and public testimony in response to the additional
Eugene office: 642 Charnelton, Suite 100, Eugene, OR 97401 Tel 541-484-4448 Fax 541-431-7078
wma.goall.org
EXHIEVT
evidence. We protest this attempt to exclude the public from the public review of this
important proposal, which has already been shown likely to have significant impacts to
the entire community.
Sincerely,
Jan Wilson, Staff Attorney
Goal One Coalition
2
Paul D. Dewey Attorney at Law
February 29, 2008
Board of County Commissioners
Deschutes County
1300 NW Wall Street
Bend, OR 97701
1539 NW Vicksburg
Bend, Oregon 97701
Tel. (541) 317-1993
fax (541) 383-3470
pdewey@bendcable.com
BY:
RECEIVED
FEB 2 9 2008
DELI'!/ ED BY:
Re: Thornburgh Destination Resort
Court of Appeals and LUBA Remand on Conceptual Master Plan; CU -05-20
Dear Commissioners:
This letter on behalf of Nunzie Gould is in response to your undated notice, "REQUEST FOR
WRITTEN ARGUMENT," allowing written comments on issues remanded by the Land Use
Board of Appeals for the Court's approval of the Thornburgh Conceptual Master Plan ("CMP")
application. The proposed approach of a "hearing" on only the record developed in the previous
decision is not sufficient. The record should be reopened to receive new evidence on the remand
issues and on any proposed findings and conditions to be drafted for the hearing, as described
below. The record on remand apparently includes only the record below plus the REQUEST
FOR WRITTEN ARGUMENT and the December 31, 2007, Staff Report.
As an initial matter, we object to the County's procedural violations in handling this CMP and
Thornburgh's related Final Master Plan ("FMP") application. See our attached letter of
February 11, 2008. Given the Board's apparent predetermination on the issues of whether to
open the record and whether to have a public hearing on the fish and wildlife plan at the CMP
level, we question why the Board is even having this comment period on the remand. We further
question and object to the County's failure to identify what it refers to as "the missing
documentation" at the bottom of page 2 of the County legal counsel's February 4 letter.
First Assignment of Error
The inconsistencies between the Phasing Plan and Overnight and Density Calculations Chart in
the evidentiary record cannot be addressed simply by words of a new finding. The revised
calculation chart identified as the correct chart by Thornburgh was in the decision record, but not
as evidence. It was attached to a legal argument made by the Applicant after the record was
closed. LUBA specifically ruled that this was not "evidence" (LUBA Decision at p. 16, n 16), so
there is no evidence in the record. LUBA's reference to the County making a condition of
approval does not obviate the need to have an evidentiary basis in the record.
EXHIBIT
February 29, 2008
Page 2
In addition, the CMP is the legal basis for the FMP. DCC 18.113.100(A) and (B) require that the
FMP meet "all standards of the CMP" and that a substantial change in the FMP results in an
amendment of the CMP. If there are no adopted standards in the CMP, how can the FMP be
deemed to have met them and how can determination of a "substantial change" be made?
Therefore, the record must be reopened for a clear, definitive Phasing Plan and Calculations
Chart to be in evidence and for the public to be heard on then. The FMP cannot be compared for
compliance with the CMP if the CMP Phasing Plan and Calculations Chart are not clear and
definitive.
Third Assignment of Error
There are no findings or conditions that would require the first 50 units to be constructed prior to
the sale of lots as required by state law. Therefore, there is nothing to comment on except to
restate the law as LUBA did. Thornburgh should also be required to identify in the CMP where
these first 50 units will be to check on adequacy of access and consistency with the phasing plan.
Fourth Assignment of Error
A finding of fact on a corrected phasing plan can be made only after a clear, definitive plan is in
evidence. As discussed above, a reopening of the record at a hearing is needed to accomplish
that.
Fifth Assignment of Error
The "REQUEST FOR WRITTEN ARGUMENT" is incorrect in stating that the Court of
Appeals rejected this Assignment of Error. Rather, the Court of Appeals rejected Thornburgh's
cross-appeal on the issue. LUBA required that Thornburgh "request a change in the CMP to
allow additional lot dimensions" if it wants lots of a type different from what it identified in the
CMP. The statement in the "REQUEST FOR WRITTEN ARGUMENT" that the language in
this finding will be clarified by the Board does not address LUBA's requirement.
Eighth Assignment of Error
The record must be reopened at a hearing to identify, review and add evidence on the safety and
efficiency of the access within the project for each phase. Thornburgh argued that the issue
would be addressed with public participation at the FMP level. A Decision . 43) LUBA
ruled that providing a public hearing when the FMP is approved doesn't mean that there does not
need to be compliance with the CMP. (LUBA Decision, p. 43)
There is simply not enough evidence in the record for the Board to make findings on this issue.
There is no evidence, for example, of a road that is to access the southwest corner of the
development on the west side of Barr Road. The Board has already decided there will be no use
of Barr Road, but any southwest access road would use Barr Road at least in crossing it. There is
also no evidence in the record of the adequacy of the resort road system to handle emergencies
(due, in part, to no detailed emergency access plan being done). There is likewise no evidence of
the capacity of the roads to handle an evacuation, such as when roads funnel into each other and
February 29, 2008
Page 3
as they would exit to Highway 126 or the two access roads to Cline Falls Highway (which are
too close together to qualify as an additional emergency access) or the connecting roads between
the two parts of the resort. Since much of the development and major sections of roads are
"uphill" on the slopes of Cline Buttes and since fire moves more quickly uphill, these roads
aren't adequate.
Additionally, the Vehicular Access and Circulation Plan (Revised Ex. A-1.6) is schematic at best
and does not even show topography. It is not clear when all the roads would be built since the
Phasing Plan (Revised Ex. B-1.8) does not show all the roads. Both maps also improperly show
connecting roads to Barr Road.
Eleventh Assignment of Error
The fish and wildlife plan is part of the CMP requirements. DCC 18.113.070(D) states:
"Any negative impact on fish and wildlife resources will be completely mitigated
so that there is no net loss or net degradation of the resource."
A reopening of the record is needed for additional evidence concerning the currently absent fish
and wildlife plan, giving the public an opportunity to be heard on it. Based on the absence of a
plan and evidence to support sufficient findings under DCC 18.113.070(D) or a deferral to the
FMP, Thornburgh's CMP must be denied. Again, the CMP is the legal basis for the FMP. The
FMP cannot be compared for compliance with the CMP as required by DCC 18.113.100 if a fish
and wildlife plan is not part of the CMP.
Very truly yours,
PAUL DEWEY
PD:ao
cc: Client
SCHWABE, WILLIAMSON & WYATT
ATTORNEYS AT LAW
Pacwest Center,1211 SW 5th Ave., Suite 1900, Portland, OR 972041 Phone 503.222.9981 1 Fax 503.796.2900 i www.schwabe.com
PETER LIVINGSTON
Admitted in Oregon and Washington.
Direct Line: 503-796-2892
Cellular Phone: 503-314-1050
Home Phone: (503) 233-9313
E -Mail: plivingston@schwabe.com
February 29, 2008
VIA HAND DELIVERY AND E-MAIL
Board of County Commissioners
c/o Deschutes County Planning Division
117 NW Lafayette
Bend, OR 97701
Re: Thornburgh Resort Company, LLC
Conceptual Master Plan Application
CU -05-20
Our File No.: 112188/138798
Dear Commissioners:
2 9 2008
•EDBY:
We represent Thornburgh Resort Company, LLC ("Thornburgh"), the applicant in these
proceedings. This letter responds to the Board's request for written argument that addresses the
remands of the Oregon Court of Appeals and the Oregon Land Use Board of Appeals ("LUBA").
We appreciate the opportunity to participate in this manner, and we are pleased to see that after
nearly three years of review, the Thornburgh application has now been returned to the County
Board of Commissioners ("Board") for only a few corrections or clarifications to the Board's
decision of May 10, 2006 ("Decision") approving the Conceptual Master Plan and Conditional
Use Permit.
As reflected in staff memoranda, which you have already received in connection with the
remand process, and in your directions inviting comment, all that remains to be done at this point
is the rather technical job of crafting additional conditions and findings directly responsive to the
orders. To that end, we have prepared an explanation addressing each of the six points listed by
staff in the January 2008 Request for Written Argument, followed by a suggested finding or
condition.
Portland, OR 503.222.9981 I Salem, OR 503.540,4262 1 Bend, OR 541.749.4044
Seattle. WA 206.622.1711 1 Vancouver, WA 360.694.7551 1 Washington, DC 202.488.4302
PDX/I 12188/138798/PL1/2327680.2
EXHIBIT C
Board of County Commissioners
February 29, 2008
Page 2
LUBA's Decision
In its May 14, 2007 Opinion and Order ("LUBA Order"), LUBA remanded to the County
on the following issues:1
L
Gould's First and Fourth Assignments of Error: Correction of the
Inconsistency Between the Phasing Plan and the Overnight and Density
Calculations Chart
Gould's first and fourth assignments of error dealt with inconsistencies in the record
relating to the 2:1 ratio for residential development and overnight lodging. Both assignments of
error focused in part on the inconsistency between the Overnight and Density Calculations chart
and the Phasing Plan. These inconsistencies arose as a result of Thornburgh's inadvertent errors
in the preparation of the plan and chart prior to the Board's hearing in December 2005. In its
opinion, LUBA concludes that the apparent inconsistencies can be cured by a finding identifying
the correct version of the Overnight and Density Calculations chart and by modifying one legend
in the Phasing Plan.
In reaching this conclusion, LUBA first rejects most of the first assignment of error, but
agrees with Gould about "[t]he third inconsistency, which ... would require that the phasing
plan be modified to show that 62.5 overnight dwelling units will be developed in Phase D with
the hotel." LUBA Order 16. According to LUBA, "Until the phasing plan is corrected, it
proposes phased development that does not comply with the 2:1 ratio. That problem could have
been eliminated if the county had imposed a condition of approval that specifically required that
correction." Id. (Emphasis added.)
LUBA explains that the corrections in the Overnight and Density Calculations chart
included in Thornburgh's final legal argument are not "new evidence." LUBA Order, p. 16,
footnote 16. This means they can be considered by the Board without reopening the record.
Because LUBA indicates that a condition of approval is proper, it becomes clear that ORS
197.522 applies. It requires a local government to "approve an application for a permit ... that
is consistent with the comprehensive plan and applicable land use regulations or ... impose
reasonable conditions on an application to make the proposed activity consistent with the plan
and applicable regulations."
LUBA continues:
"Thornburgh has explained that it intends to correct that inconsistency by
modifying the phasing plan to conform to the Overnight and Density Calculations
chart. The county needs to either require that Thornburgh make that correction,
or impose a condition of approval that the correction be made, before it grants
approval of the CMP." LUBA Order, p. 17.
For the Board's convenience, the sections in this letter are numbered to correspond to the
numbered sections in the Memorandum to the Board dated December 31, 2007, which was
prepared by Associate Planner Ruth Wahl.
PDX/1 J2188/138798/PL!/2327680.2
Board of County Commissioners
February 29, 2008
Page 3
In considering the January 3, 2006 Overnight and Density Calculations chart, which
makes the necessary corrections, LUBA states, "We do not understand petitioners to dispute that,
as a factual matter, the suggested correction will preserve the 2:1 ratio." LUBA Order, p. 16,
footnote 16.
Therefore, consistent with these statements in the LUBA Order, Thornburgh proposes the
following additional condition:
Thornburgh shall modify the Overnight and Density Calculations chart presented
to the Board at the appeal hearing on December 20, 2005 by replacing it with the
Overnight and Density Calculations chart included at page 25 in Thornburgh's final legal
argument, dated January 3, 2006, as shown below.
The 75 units of overnight lodging shown in the December 20, 2005 Overnight and
Density Calculations table to be developed in Phase C will actually be developed in
Phase B, for a total of 150 units in Phase B. The Overnight and Density Calculations table
will be corrected to show the 50 hotel units will be developed in Phase D, where the Phasing
Plan, attached to the Memorandum of Applicant in Response to Public Comments, Ex. 13,
Revised B-1.8, already shows the hotel will be developed. Additionally, the legend in the
Phasing Plan will be corrected to show hotel and residential overnight lodging uses in
Phase D (in pod 30).
ITEM
Phase
A
Phase
B.
Phase
C
Phase
D
Phase
E
Phase
F
Phase
G
Totals
Residential Single Family
(RSF)
300
150
150
125
125
50
50
950
Hotel Overnight
0
0
0
50
0
0
0
50
Residential Overnight
150
150
0
63
62
0
0
425
Net Overnight
150
150
0
113
62
0
0
475
Cumulative RSF
300
450
600
725
850
900
950
950
Cumulative Overnight
150
300
300
413
475
475
475
475 .
RATIO-RSFIOvernight
2.00
1.50
2.00
1.76
1.79
1.89
2.00
2.00
Thornburgh shall present the corrected Phasing Plan and Overnight and Density
Calculations chart, consistent with this condition, during the Final Master Plan approval
process.
This new condition also addresses LUBA's discussion of Gould's fourth assignment of
error, LUBA Order, p. 24.
2. Gould's Third Assignment of Error: Compliance with ORS
197.445(4)(b)(B) Concerning Construction of the 50 Units of Overnight
Lodging Prior to Closure of Sale of Individual Lots or Units
PDX/112188/138798/PLI/2327680.2
Board of County Commissioners
February 29, 2008
Page 4
Gould's Third Assignment of Error relates to an inconsistency between the wording of
the county approval standard and that of a subsequently adopted state statute. As described
below, LUBA determined the wording of the state statute must control and instructed the county
to make related corrections in the findings.
In the first paragraph of Condition 21, the Decision states, "In lieu of construction,
[Thornburgh] may provide financial assurances for construction of the required overnight
lodging." As explained in the LUBA Order, pp. 21-24, this condition, while consistent with
DCC 18.113.060(A)(5), which allows all of the required 150 units of overnight lodging to be
"physically provided or financially assured," is inconsistent with the requirement in
ORS 197.445(4)(b)(B) that the first 50 of those 150 units "must be constructed prior to the
closure of sale of individual lots or units." LUBA Order, p. 23.
Therefore, consistent with these statements in the LUBA Order, Thornburgh proposes
that the first paragraph of Condition 21 of the Decision be replaced with the following:
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 lodging units standard 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. As required
by ORS 197.445(4)(b)(B), at Least 50 units of overnight lodging must be constructed prior to
the closure of sale of individual lots or units.
3. Gould's Fourth Assignment of Error: Correction of Phasing Plan to
Match Overnight and Density Calculations Chart
This issue, which is raised by Gould's fourth assignment of error, is identical to the issue
that prompted LUBA to remand on Gould's first assignment of error. It is addressed by the first
condition proposed above. Staff has proposed a separate condition, acceptable to Thornburgh,
which restates part of the first condition.
4. Gould's Eighth Assignment of Error: Required Additional Finding with
Respect to DCC 18.113.070(G)(3)(b): "Access within the Project Shall
Be Adequate to Serve the Project in a Safe and Efficient Manner for
Each Phase of the Project"
Gould's eighth assignment of error points out an omission in the original findings: The
Decision failed to include a finding addressing the evidence relating to access roads. LUBA
concluded that the County "must address and demonstrate" that the CMP complies with
DCC 18.113.070(G)(3)(b). LUBA Order, p. 43. Although the Board's original decision did not
include a specific finding, the record included extensive evidence demonstrating the adequacy of
access, including statements by representatives of the county road office, the United States
Bureau of Land Management ("BLM"), and the City of Redmond Fire Department. Therefore,
PDX/1 12188/138798/P11/2327680.2
Board of County Commissioners
February 29, 2008
Page 5
Thornburgh suggests the following additional finding, which summarizes evidence already in the
record and is consistent with the Board's initial determination approving the CMP:
Applicant has submitted a revised Vehicular Access and Circulation Plan,
Memorandum of Applicant in Response to Public Comments, September 28, 2005 ("MR"),
Ex. 3, A-1.6, which illustrates how roads will provide access throughout each phase of the
project. This plan can be viewed together with the revised Phasing Plan, MR, Ex. 13,
B-1.08, to determine how the different phases of development will be served by roads. The
revised Phasing Plan does not show the roads extending to the Phase G residential area,
but Applicant has explained that this is a typographical error, Applicant's Final Argument,
October 19, 2005 ("AFA"), p. 8, and the Board relies upon the Vehicular Access and
Circulation Plan to determine where the roads will go. The revised Phasing Plan shows the
internal roads will be constructed in Phase A or, at the latest, in Phase B.
The Board finds that the roads have been located in a safe and efficient manner. As
Applicant explained in its final argument to the hearings officer, AFA, p. 5, roads have
been located in response to concerns expressed by the Bureau of Land Management and
others. Robert Towne, Field Manager, Deschutes Resource Area of the Bureau of Land
Management, states in a September 28, 2005 Letter to the County hearings officer, MR,
Ex. 14,13-1.40, that the location of the northern access road, which emphasizes shared use
of rights-of-way, will "balance BLM's competing objectives" by minimizing "any
additional disturbance of the land and ... consolidate access points in a single location."
Mr. Towne states further that Thornburgh's choice of existing road segments for its
proposed connecting roads across federal lands in Section 29 and 30 "will minimize the
fragmentation of public lands and impacts on the environment." From these statements,
the Board concludes the proposed connecting roads will be "efficient," as that term is used
in the DCC.
Opponent Gould objects that the internal road that accesses the southwest part of
the property cannot be described as safe or efficient because it is over two miles from Cline
Falls Road and because of "fire danger in the area." However, the distance from Cline
Falls Road does not make the road in the southwest part of the property inefficient or
unsafe per se. Gould has not identified a standard that would show the road to be unsafe.
Efficiency depends on available alternatives, and the Applicant's choice of alternatives
appears reasonable to the Board. Because it is not adequately developed, Barr Road is not
a reasonable access alternative to the southwest part of the resort. In its May 14, 2007
Opinion and Order, LUBA found that the unavailability of Barr Road for either access or
emergency access provides no basis for reversal or remand.
The question of fire danger is addressed by the City of Redmond Fire Department
in its January 12, 2005 letter, in which the Fire Chief, Ron Oliver, describes meeting with
representatives of the resort project to discuss fire and public safety issues, hazardous fuels
reduction and annexation of the resort property into the Deschutes County Rural Fire
Protection District #1. Thornburgh's Burden of Proof Statement, dated February 16, 2005
("BOP"), Ex. 15, B -29a. In a subsequent July 13, 2005 letter, MR, Ex. 15, B-1.32, Chief
Ar
PDX/112188/138798/PLl/2327680.2
Board of County Commissioners
February 29, 2008
Page 6
Oliver states that fire code access requirements will be met through the use of two routes
connecting to the Cline Falls Highway and through an all weather access road across the
northern portion of the Thornburgh property for additional access via Highway 126. In a
September 23, 2005 letter, MR, Ex. 15, B-1.31, Deschutes County Sheriff Les Stiles states
that representatives of the sheriff's office have reviewed Thornburgh's Resort Planning
and Emergency Preparedness plan, MR, Ex. 15, B-1.30, and find it "consistent with the
evacuation operational plans within Deschutes County." These letters and the Emergency
Preparedness Plan itself adequately address the concerns raised by Gould in connection
with safe and efficient internal access.
The County depends upon its own Road Department to raise concerns about
internal access after reviewing an application. Gary Judd, at the County Road
Department, by email dated June 2, 2005, requested from Applicant's traffic consultant a
copy of the updated map of the phases and an approximate time line for construction of
each phase, in order to assess trip distribution and how it would affect various
intersections. On July 1, 2005, Mr. Judd commented to planner Devin Hearing that
Thornburgh's traffic study, as modified, "is acceptable to the Road Department."
Mr. Judd raised no concerns about internal access.
Based on substantial evidence in the record, the Board finds that Applicant has
demonstrated compliance withthis standard. In order to assure future compliance, as
access roads are designed and constructed, the Board has imposed Conditions 5, 7, 27 and
30., Condition 5 requires the design and construction of the road system in accordance
with Title 17 of the Deschutes County Code ("DCC"). It requires further that road
improvement plans be approved by the County Road Department prior to construction.
DCC Title 17 (and, in particular, DCC chapter 17.48) establishes minimum standards for
design and construction of roads and other improvements and facilities. DCC 17.48.180
states applicable minimum road standards for private roads. In addition, DCC 17.48.030
allows the Road Department Director to impose additional design requirements "as are
reasonably necessary to protect the interests of the public." Condition 27 requires that
road width be consistent with the standards in DCC chapter 17.36. Condition 30 requires
Applicant to submit a detailed traffic circulation plan prior to Final Master Plan approval.
This criterion is met.
5. Fifth Assignment of Error: Confusion over Dimensional Standards
Gould's fifth assignment of error related to minimum dimensional standards for lot sizes
within the project. Although LUBA and the Court of Appeals rejected Gould's arguments and
upheld the county finding on this issue, the LUBA Order contains a statement that may cause
confusion in the future. As a result, Thornburgh requests the finding be modified to clarify that
the specified minimum lot sizes do not at the same time prescribe maximum dimensions.
Gould contended to LUBA that the County's findings in response to
DCC 18.113.060(G)(1) "violated the subsection (G) requirement that no lot shall exceed a
ick
PDX/112 1 8 8/ 138798/PLI/2327680.2
5
Board of County Commissioners
February 29, 2008
Page 7
project average of 22,000 square feet, where the County allowed lots over twice that size and
even greater than one acre." LUBA rejected that contention, LUBA Order, p. 30, but added:
"However, to the extent the above quoted findings can be read to grant
Thornburgh the `flexibility' to propose one acre or 1,500 square foot lots, even
though the approved lot dimensions at Record 5642 would not permit lots that
large or small, we do not believe that grant of flexibility is within the county's
discretion under DCC 18.113.060(G)(1).[2] If Thornburgh can subdivide the
property into whatever size lots it believes the terrain or high density housing type
it desires might warrant, without first amending the CMP to allow such different
lot sizes, the exercise by DCC 18.113.060(G)(1) is a waste of time at best.
Because the above -quoted findings need not be read to authorize lot sizes other
than the ones set out at Record 5642, without first amending the CMP to allow
such larger or smaller lots, we do not read the findings in that way. The
dimensional standards approved by the county appear at Record 5642. If
Thornburgh later discovers that the approved eight different lot types do not offer
sufficient flexibility, it may request a change in the CMP to allow additional lot
dimensions." LUBA Order, pp. 30-31 (emphasis added).
On appeal to the Court of Appeals, Thornburgh pointed out that the development code
and the submission set minimum parcel sizes and do not require the adoption of maximum lot
areas. The court agreed that LUBA's conclusion "was not necessary to the determination of
Gould's precise assignment of error to LUBA." Gould, 216 Or App at 165, slip op 15.
However, the court focused on the "lot width average" and speculated that it requires, for lots of
15,000 square feet or more in area, a "lot width average" of 100 feet that "may operate to limit
the sizes of some of the lots." Id. at 164-65, slip op 15.
The table in question is reproduced below:
.;.._•-; .....,�,..__: _ -.... ••_'Fa
`h...,......_.._. ...r:!..-_...........c.Ltie:=.:,.� ..{ig
...................._—._::s:rz::: :i... ., _:::_.... :^.._...._...
... .....--• : :, S'F'S; _-�E:_: _::a_!P -: xx!r'::: ': �:::.. :::::.. : ,
..... , Rte. -
................. _>.... "`r" r:��:� ter•-::::_..._.__._ ........._
..,f.^.ii'ua3Tl-:r::: .._......,.ac• -:.vu... _.:, ;;..::•ra:
.•....i.._...6.,..'.isisi?:r:,'i��-sr._._s::::''i m�!::i:::::r=:... .......!.
ITEM
2j R 5 I R it
—..,.._...,...,;
ik ..-.,_ _ .....
..:: �-
-- .. -x_:..,
,. _... _... ...
;...r: •;^_:.::c:::...s,
-
Type
A
P 4. .n. :...
, ...����:
._.....—
..c...._.r.
_. '4's:::,::r:.:
_,.na.
Type
B
. •r.._:_....._
.. i. ...
i'!;J
.. _.. .._..... _.
r.. ..• :::cam:::
Type
C
...,......._:ce=1=�!iF'•
'r
L•.�R11l�Lt.7._,�.
�:t_-:r� r�>......
.�,r:
Type
D
.....
Type
E
���"•...i",:: .._
..
Type
F
'iiE _>_ l�.
.. _
.... .:::a r.:�::i:rms:::::::::
.,._.. _ ...............
Type
G
,� �;r.
IL
Type
H
Lot Area (Minimum)
15,000
12,500
10,000
8,000
6,000
4,500
3,200
3,200
Lot Width Average (Minimum)
100
90
80
70
60
40
30
25
Lot Frontage — Regular
60
55
50
45
40
40
30
25
Lot Frontage — Cul-de-sac
50
40
40
35
35
30
25
25
Lot Coverage — Footprint (Maximum)
65%
65%
65%
70%
70%
75%
80%
80%
Lot Setbacks
Front
30
30
30
30
25
25
20
20
Back
25
25
25
20
20
15
15
15
Side
15
15
10
10
10
5
5
0
Building Height* (Maximum)
26
26
26
26
26
26
26
26
*depends on location
2 The Residential Lot Standards are at BOP, Ex. 8, B -24a.
PDX/112188/138798/PLI/2327680.2
Board of County Commissioners
February 29, 2008
Page 8
Since the table states a minimum lot width average for each type of lot, it does not
establish any limitation on the size of any lots. However, this issue has apparently been
confusing to both LUBA and the Court of Appeals. Thornburgh therefore urges the County to
adopt the following additional, clarifying finding responsive to DCC 18.113.060(G)(1).3
DCC 18.113.060(G)(1) does not state a requirement for maximum lot dimensions
other than the general requirement that "No lot for a single-family residence shall exceed
an overall project average of 22,000 square feet in size," which LUBA has said (and the
Board agrees) "prohibits lot sizes that would result in the `overall project average'
exceeding 22,000 square feet." LUBA Opinion and Order, dated May 14, 2007, p. 30.
The Board understands Applicant's "Residential Lot Standards" chart, Applicant's
Burden of Proof Statement, dated February 24, 2005, Ex. 8, B-24, which shows residential
lot standards, to state only minimum dimensional standards, as required by this code
provision, and not to state any limitation on maximum dimensions unless expressly stated
(as with the maximum lot coverage and the maximum building height (depending on
location)).
In particular, the minimum "lot width average" is understood to state that the
average lot width shall not be less than the stated number under any type of lot (e.g.,
"Type A," "Type B," etc.), but does not state it cannot be more. The lot frontage and lot
setback standards are also understood to be minimums, which do not establish maximum
lot dimensions.
This additional finding is important to establish even more clearly what Thornburgh and
the Board understood to be the case all along and to avoid future challenges based on the notion
that DCC 18.113.060(G)(1) requires or that Thornburgh has stated maximum lot dimensions.
3 As relevant, DCC 18.113.060(G)(1) states:
"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 Hearing Body at the time of the CMP. In determining these standards, the
Planning Director or Hearings Body shall find 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." (Emphasis added.)
91W
PDX/112188/ 138798/PL12327680.2
Board of County Commissioners
February 29, 2008
Page 9
Court of Appeals Decision
6. Gould's Eleventh and Munson's Fourth Assignments of Error:
DCC 18.113.070(D) and Wildlife Mitigation
The Court of Appeals remanded on Gould's eleventh and Munson's fourth assignments
of error, which were identical, concerning the process used to determine compliance with
DCC 18.113.070(D).
DCC 18.113.070(D) states, "Any negative impact on fish and wildlife resources will be
completely mitigated so that there is no net loss or net degradation of the resource." In response
to this criterion, after discussing the evidence in the record, the Board found, "It is feasible to
mitigate completely any negative impact on identified fish and wildlife resources so that there is
no net loss or net degradation of the resource." Decision, p. 61. The Board relied upon evidence
in the record, including a Tetra Tech Wildlife Report, and on the future participation of the
Oregon Department of Fish and Wildlife ("ODFW") and the BLM in devising a final wildlife
mitigation plan pursuant to a Memorandum of Understanding between Thornburgh and the
BLM.
The Court of Appeals opinion notes two deficiencies in LUBA's (and the County's)
decisions. First, "Without knowing the specifics of any required mitigation measures, there can
be no effective evaluation of whether the project's effects on fish and wildlife resources will be
`completely mitigated' as required by DCC 18.113.070(D)." Gould v. Deschutes County, 216 Or
App 150, 159, slip op 8. Second, DCC 18.113.070(D) "requires that the content of the
mitigation be based on `substantial evidence in the record,' not evidence outside the CMP
record." Id. at 159-60, slip op 9. The court notes, "In this case, the particulars of the mitigation
plan were to be based on a future negotiation, and not a county hearing process." Id. at 160, slip
op 9. Later, the court states, "The county's decision, however, allows the mitigation plan
justification to be established by future discussions among Thornburgh, ODFW, and BLM, and
not on evidence submitted during the public hearings. That robs interested persons of the
participatory rights allowed by the county ordinance." Id. at 163, slip op 13.
In terms of appropriate procedure, the Court of Appeals notes, "[Al determination that a
wildlife impact mitigation plan is `feasible' might be appropriate to justify postponement of any
evaluation of the application of DCC 18.113.070(D) to the plan." The court then says, "The
determination of feasibility, however, is not an adequate substitute for an assessment of whether
a specific mitigation plan actually complies with the standard." Id. at 162, footnote 4, slip op 11.
The court states:
"The county might have, but did not, postpone determination of compliance with
[DCC 18.113.070(D)] until the final master plan approval step and infuse that
process with the same participatory rights as those allowed in the CMP approval
hearing." Id.
PDX/112188/138798/PLI/2327680.2
Board of County Commissioners
February 29, 2008
Page 10
As noted above, based on evidence in the record, the Board has already found that
compliance with DCC 18.113.070(D) is feasible. Thornburgh supports the Board's decision to
adopt a condition that defers review of the wildlife mitigation plan until the FMP is reviewed in a
public process. Consistent with the Court of Appeals' decision, Thornburgh proposes the
following additional condition:
Applicant shall demonstrate compliance with DCC 18.113.070(D) by submitting a
wildlife mitigation plan to the County as part of its application for Final Master Plan
approval. The County shall consider the wildlife mitigation plan at a public hearing with
the same participatory rights as those allowed in the CMP approval hearing.
Conclusion
It has been more than three years since Thornburgh filed its application for CMP
approval. After a comprehensive process involving public hearings and review of an extensive
record of evidence, the Board approved the application on May 10, 2006. The appeal process
took more than 18 months for decisions from both LUBA and the Court of Appeals. Yet nothing
that happened during the appeal process raises any doubt about the soundness of the Board's
decision to approve the project. Of the numerous objections initially raised by project
opponents, only the technical issues discussed above remain unresolved.
Given this long history of prior proceedings, and the limited, technical nature of the
issues now before you on remand, we urge the Board to adopt the suggested findings and
conditions, which will allow the project to move forward in the manner originally contemplated
in your May 10, 2006 decision to approve the CMP. The suggested findings and conditions are
similar to what staff proposed in their December 31, 2007 Memorandum to the Board, but they
contain additional detail intended to produce a clearer decision in light of possible future appeals.
Thank you, again, for the opportunity to provide this argument in support of the
application.
PLI:mka
cc: Kameron DeLashmutt
Laurie E. Craghead
Mark E. Pilliod
Kevin Harrison
Ruth Wahl
Catherine Morrow
PDX/112188/138798/PLl/2327680.2
Very truly yours,
Px. iTh-
Peter Livingston
1 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 011
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.
Page 2
1 Opinion by Holstun.
2 NATURE OF THE DECISION
3 Petitioners Gould and Mimson 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
Page 3
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.1 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
Under DCC 18.113.050, "[t]he 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.)
Page 4
1 proposed destination resort will satisfy the standards and criteria of DCC 18.113.060 and
2 18.113.070.s2
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. * * *"
Page 5
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 11 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 tum will be
20 further refined by site design and subdivision review decisions. Finally, Thornburgh relies
6 Petitioners and Thornburgh 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 Thomburgh
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
Page 7
1 met. Seen 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 fmal 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 fording 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
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.
Page 8
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)).
Page 9
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 like.
7 The county's explanation in approving the CMP 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(D)(2), "[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.' 1 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).
IIA 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 con-ect and the Overnight and Density Calculations chart should be corrected to be consistent
5 with the phasing plan.12
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] furnished 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 [Thomburgh'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.14
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.
is 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 finding.
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(0) 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 "5. 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(U)(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
17 In addressing DCC 18.113.050(B)(21), the county explained:
Page 19
1 18.113.070(0) 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(0). 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(0), 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(U). 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 Thomburgh'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. 2° 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 lodging 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 fmal
13 decision and approve the CMP in a way that specifically allows Thornburgh to proceed under
14 the less stringentDCC 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
n 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 fording and amend or eliminate the above -noted language
4 in the conditions of approval so that they are consistent with ORS 19.7.445(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 fmdings 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 Thornburgh'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 fmds 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, Thornburgh 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 less 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 fmds 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 thehiking 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)." Thornburgh'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 findings
25 regarding DCC 18.113.050(B)(9) do not rely entirely on the MOU. The findings note the
26 DCC 18.113.050(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(B)(12)
7 DCC 18.113.050(B)(12) requires an "erosion control plan for all disturbed land
8 * * *." DCC 18.113.050(B)(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 fmdings 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 fmdings 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 approval.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 Thornburgh 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 Iowest 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 "[t]ime-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 corners
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
3' 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." Thomburgh'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);
"(g)
"(0)
Page 35
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.
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."
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 tum to the OAR 660-012-0065 definitions of the key terms. OAR 660-012-
23 0065(2) provides the following definitions:
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 findings 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 faun or forest practices on surrounding lands
devoted to farm or forest use; or
"(b) 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 Iisted 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 findings regarding this criterion.
21 Thornburgh responds:
22 "Thornburgh 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."
4° 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 fatally 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.'" Thomburgh'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 Thornburgh'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 Plan.i44 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(B)(5) 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 fmal master plan
"An open space management plan which includes:
"a. An explanation of how the open space management plan meets the minimum
standards of DCC 18.113 for each phase of the development;
"b. 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;
if
Page 47
Deed restrictions that will assure that the open space areas are maintained as open
space in perpetuity."
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 5623-301
17 which take a prescriptive approach to preserving trees, outcroppings and other
18 natural features." Thomburgh'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 language 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'
1.9 decision in Meyer and our decision in Rhyne, decision makers in such circumstances have
20 three options. The decision maker must (1) fmd 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) find 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. [Thomburgh] shall abide at all times with the MOU with BLM, dated September 28,
2005, regarding mitigation of impacts on surrounding federal lands, 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 finding 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 fording 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 fording 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 oc.curred 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, Inc. 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 [Thomburgh'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 Thomburgh'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, [Thornburgh] shall include a written
plan for entering into cooperative agreements with owners of existing wells within a
two-mile radius of [Thomburgh'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
2
mitigation water is generally available in the basin and that [Thornburgh] has
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 fmds that [Thornburgh has] shown it is not
20 precluded from obtaining the state water right. Therefore, the Board fmds 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 B, is
23 currently within the boundaries of the Deschutes County Rural Fire Protection
ss 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.s56 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(I) 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(1) 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] finds 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 Department 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(I), 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 finaI." Record 5761-62.
Page 61
APPENDIX A
To Hvyy. 126
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REVISED A-14
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/Overnigh
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
FILED: November 7, 2007
IN THE COURT OF APPEALS OF THE STATE OF OREGON
ANNUNZIATA. GOULD, .
Petitioner
Cross -Respondent,
v.
DESCHUTES COUNTY and CENTRAL OREGON IRRIGATION DISTRICT,
Respondents,
and
THORNBURGH RESORT COMPANY, LLC.,
Respondent
Cross -Petitioner. .
Land Use Board. of Appeals
2006100
STEVE. MUNSON,
Petitioner below,
v.
DESCHUTES COUNTY,
Respondent below,
and
THORNBURGH RESORT COMPANY, LLC; and CENTRAL OREGON IRRIGATION
DISTRICT,
Intervenors below.
Land Use Board of Appeals
2006101
A135856
Argued and submitted August 10, 2007.
PauI D. Dewey argued the cause and filed the briefs for petitioner - cross -
respondent.
Elizabeth A. Dickson and Hurley Re & Gruetter PC filed the brief for respondent
Central Oregon Irrigation District.
EXHIBIT,_-
Peter Livingston argued the cause for respondent - cross -petitioner. With him on
the brief was Schwabe, Williamson & Wyatt, P.C.
Laurie A. Craghead waived appearance for respondent Deschutes County.
Before Edmonds, PresidingJudge;.and Brewer, Chief Judge, and Sercombe; Judge.
SERCOMBE, J.
Reversed and remanded on petition; affirined on cross -petition.
DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS
Prevailing party: Petitioner on petition; cross -respondent on cross -petition.
I]
[x]
[1
No costs allowed.
Costs allowed, payable by: Respondents on petition; cross -petitioner on cross -
petition
Costs allowed; to abide the outcome on remand, payable by:
SERCOMBE, J.
2 Petitioner Gould seeks review of an opinion and order of the Land Use
3 Board of Appeals (LUBA). LUBA generally upheld a county decision to approve an
4 application by respondent Thornburgh Resort Company, LLC (Thornburgh) for a
5 conceptual master plan for a destination resort. However, LUBA remanded the county's
6 decision for the adoption of additional findings and conditions to justify satisfaction of an
7 approval standard on required overnight lodging accommodations. Gould pursues review
8 in this court in order to obtain a more extensive remand to the county. Gould contends
9 that LUBA erred in approving the county's adopted findings and conditions on the
10 location of access roads for the development and on the necessary mitigation of the
11 project's effects on fish and wildlife. Thornburgh: cross -petitions for review of LUBA's
12 characterization of the county's requirements for the size of the development lots.
13 Because LUBA erred in its review of the county's determinations on mitigation of
14 wildlife impacts, we reverse and remand. We otherwise affirm on Gould's remaining
15 assignments of error -and on the cross -petition for review.
16 . Thornburgh applied to Deschutes County for approval of a conceptual
17 master plan for a destination resort. The resort, to be located on about 1,970 acres of land
18 west of the City of Redmond, is proposed to contain 1,425 dwelling units, including 425
19 units for overnight accommodations and a 50 -room hotel. The resort plans also include
20 three golf courses, two clubhouses, a community center, shops, and meeting and dining
21 facilities. The resort property is bordered on three sides by land owned by the Bureau of
1
1 Land Management. The land is zoned for exclusive farm use but designated "destination
2 resort" in an overlay zone.
3 State and local law contain special standards for approving destination
4 resort developments. ORS 197.435 to 197.467; OAR 660-015-0000(8) (Statewide
5 Planning Goal 8 (Recreational Needs)); Deschutes County Code (DCC) Chapter 18.113.
6 The county's development code requires a three-step approval process for a destination
7 resort. The first step is consideration and approval of a "conceptual master plan" (CMP).
8 DCC 18.113.040(A). The.code sets out a number of detailed requirements for an
9 application for a CMP; DCC 18.113.050, as well as extensive approval standards for the
10 plan, DCC 18.113.060 and DCC 18.113.070. An applicant for CMP must submit
11 evidence of compliance with those requirements at a public hearing. Any approval must
12 be based on the record created at that hearing. DCC 18.113.040(A). Once the CMP. is
13 approved, it becomes the standard for staff evaluation of a "final master plan," the second
14 step in the process. Any "substantial change" in the CMP must be reviewed and approved
15 using the same process as the original plan approval. DCC 18.113.080. The third
16 approval step for a destination resort is allowance of components or phases of the resort
17 through site plan or land division approvals. DCC 18.113.040(C).
18 Following review of the proposed CMP by a local hearings officer, the
19 board of county commissioners held hearings and approved the proposed CMP with
20 conditions. The primary •issue in this case concerns whether the county's adopted findings
21 and conditions on the mitigation of the development's effects on fish and wildlife were
2
1 sufficient to justify that approval.
2 The development code requires the CMP application to include a
3 description of the wildlife resources of the site and the effect of the destination resort on
4 those resources, the "methods employed to mitigate adverse impacts on the resources,"
5 and a "proposed resource protection plan to ensure that important natural features will be
6 protected and maintained." DCC 18.113.050(B)(1). The approval criteria include a
7 requirement that thedecision maker "find fromsubstantial evidence in the record" that
8 "[a]ny negative impact on fish and wildlife resources will be completely mitigated so that
9 there is no net loss or net degradation of the resource." DCC 18.113.070(D).
10 The county's findings on the submission requirements of DCC
11 18.113.050(B)(1) with respect to wildlife note the preparation of a "Habitat Evaluation
12 Procedures" analysis for the site that described "project impacts and corresponding
13 mitigation measures." The findings list the types of wildlife on the site and the short-term
14 and long-term impacts on wildlife and fish by the proposed development. The
15 explanation concludes:
16 "According to Tetra Tech [respondent's consultant], approximately
17 2,149 off-site acres will be needed to offset loss of habitat values on the
18 subject property by virtue of the proposed development. * * * As discussed
19 under DCC 18.113.070 M., the BLM MOU [(Bureau of Land Management
20 memorandum of understanding)] requires [Thornburgh] to complete a
21 wildlife mitigation plan. [Thornburgh] and BLM are currently evaluating
22 the viability of implementing the agreed mitigation measures on federal
23 property in the vicinity of the resort that is commonly known as the 'Masten
24 Allotment."'
25 The findings on compliance of the plan with the DCC 18.113.070(D) "no
3
1 net loss" requirement conclude:
2 "The HEP analysis will be used to guide mitigation activities. Due
3 to the size and scope of the project and the related impact from cessation of
4 some cattle -grazing activities, [Thornburgh] is participating with a multi -
5 agency group to finalize the mitigation area. This includes representatives
6 • of ODFW [(Oregon Department of Fish and Wildlife)], BLM, Tetra Tech
7 and [Thornburgh].
8
9 "In a letter to the County dated February 9, 2005, Steven George,
10 Deschutes District Wildlife Biologist with ODFW, states that ODFW is
11 working with. [Thornburgh] to develop an acceptable wildlife report with
12 mitigation measures and expresses the view that'[Thornburgli] will be able
13 to develop an acceptable program to mitigate the impacts.' * * *
14
15 "The Board finds that, as stated by ODFW, it is feasible to mitigate .
16 completely any negative impact on identified fish and wildlife resources so
17 that there is no net loss or net degradation of the resource. The MOU
18 between the BLM and [Thornburgh] requires [Thornburgh] to complete a
19 wildlife mitigation plan that will be reviewed and approved by both ODFW
• 20 and BLM. * * * The Board imposes as a condition below that the mitigation
21 plan adopted by [Thornburgh] in consultation with Tetra Tech, ODFW and
22 the BLM be adopted and implemented throughout the life of the resort."
23 In addressing a related requirement that the "resort mitigate any demands
24 that it creates on publicly -owned recreational facilities on public lands in the surrounding
25 area," the county decision details the content of the Bureau of Land Management (BLM)
26 memorandum of understanding (MOU):
27 "In Section II.7 of the MOU, [Thornburgh] and BLM agree to work
28 cooperatively to complete a wildlife mitigation plan to compensate for
29 impacts related to the resort. The MOU outlines specific mitigation
30 measures to be undertaken by [Thornburgh] to mitigate the impacts of resort
31 development on surrounding federal recreation facilities. * * * [The] BLM
32 identified federal property located to the south and east (commonly known
4
3
1 as the 'Masten Allotment') as an area to be managed with an emphasis on
2 the preservation and enhancement of wildlife habitat. [Thornburgh], BLM
3 and ODFW are working together to evaluate whether [Thornburgh's]
4 wildlife mitigation obligation can be implemented in this location. * * *
5 "The record contains a report * * * from Tetra Tech, which describes
6 habitat, land uses and mitigation measures to be implemented on the federal
7 lands surrounding the resort. The Tetra Tech report, the BLM MOU and
8 the AAC Agricultural Assessment identify surrounding land uses and
9 potential conflicts between the resort and adjacent uses within 600 feet.
10 The data, analysis and mitigation measures contained in the Tetra Tech
11 report have been incorporated into the final MOU between [Thornburgh]
12 and BLM."
13 Consistently with those findings, the county approved the conceptual master
14 plan conditionally, requiring among other things that
15 "[Thornburgh] shall abide at all times with the MOU with BLM, dated
16 September 28, 2005, regarding mitigation of impacts on surrounding federal
17 lands, to include wildlife mitigation and long-range trail planning and
18 construction of a public trail system. The mitigation plan adopted by
19 [Thornburgh] in consultation with Tetra Tech, ODFW and the BLM shall
20 be adopted and implemented throughout the life of the resort."
21 The memorandum of understanding requires Thornburgh to complete a
22 wildlife impact mitigation plan that "will specify mitigation measures that are sufficient to
23 insure that there is no net loss of wildlife habitat values as a result of the proposed
24 development." The agreement requires approval of the plan by ODFW and BLM and
25 commits Thornburgh to "work cooperatively with ODFW and BLM to determine the
26 specific locations where the mitigation plan will be implemented." The agreement
27 provides that certain mitigation measures may be undertaken within the Masten
28 Allotment, and those measures "may include" trail construction, removal of old trails,
29 fencing, vegetation thinning and management, and noxious weed controls.
5
3
1 - Gould sought review of the county's land use decision by LUBA. Gould's
2 petition for review set out 13 assignments of error by the county. Gould's eleventh
3 assignment of error to LUBA claimed that the county "applied inappropriate legal
4 standards and failed to make proper findings based on substantial evidence in determining
5 that fish and wildlife protection criteria are met." Gould asserted that the county's
6 findings on the feasibility of complying with the fish and wildlife protection criteria were
7 not supported by substantial evidence and that the "deferral of compliance with a criterion
8 and reliance on an agency to decide compliance with the [c]ounty's requirements is not
9 permissible."
10 LUBA determined that the local government record contained substantial
11 evidence to support the county's findings on compliance with DCC 18.113.070(D). It
12 concluded:
13 "Where the county finds that it is feasible to satisfy a mandatory
14 approval criterion, as the county did here with regard to DCC
15 18.113.070(D), the question is whether that finding is adequate and
16 supported by substantial evidence. Salo v. City of Oregon City, 36 Or
17 LUBA 415, 425 (1999). Here, Thornburgh supplied the Wildlife Report to
18 identify the negative impacts on fish and wildlife that can'be expected in
19 developing Thornburgh resort. The report also describes how Thornburgh
20 proposes to go about mitigating that damage, both on-site and off-site. In
21 response to comments directed at that report, Thornburgh has entered into
22 discussions with ODFW and a MOU with the BLM to refine that proposal
23 and come up with better solutions to ensure that expected damage is
24 completely mitigated. ODFW and BLM have both indicated that they
25 believe such solutions are possible and likely to succeed. We conclude that
26 the county's finding regarding DCC 18.113.070
s supported by
27 substantial evidence and is adequate to explain how) 1Thornburgh Resort will
28 comply with DCC 18.113.070(D).
29 "Had Thornburgh not submitted the Wildlife Report, we likely would
6
1 have agreed with petitioners that a county finding that it is feasible to
2 comply with DCC 18.113.070(D) would likely not be supported by
3 substantial evidence. Even though ODFW and BLM have considerable
4 expertise on how to mitigate damage to fish and wildlife, bare assurances
5 from ODFW and BLM that solutions are out there would likely not be the
6 kind of evidence a reasonable person would rely on to find that the damage
7 that Thornburgh resort will do to fish and wildlife habitat can be completely
8 mitigated. But with that report, the dialogue that has already occurred
9 between Thornburgh, ODFW and BLM, the MOU that provides further
10 direction regarding future refinements to ensure complete mitigation, and
11 the optimism expressed by the agencies involved, we believe a reasonable
12 person could find that it is feasible to comply with DCC 18.13.070(D). "
13 On review, Gould complains that LUBA erred "in determining that the
14 County's findings and evidence concerning feasibility of mitigation for the project's
15 negative impacts on fish and wildlife satisfy the applicable approval standard."' Gould
16 contends that the approval standard was not met because there was insufficient evidence
17 in the record to show that any particular wildlife impact mitigation plan was feasible and
18 that LUBA erred in not requiring the county to specify a particular mitigation plan and
19 subject that plan to public notice and county hearing processes. Respondents' counter
20 that our standard of review is whether LUBA correctly applied the "substantial evidence"
21 test in reviewing the findings that a wildlife impact mitigation plan is "feasible."
22 According to respondents, LUBA properly applied the substantial evidence test.
Gould raises two other assignments of error. Gould contends that LUBA
erred in upholding the county's approval of destination resort roads not located on land
zoned for destination resorts and in concluding that there was no need for an exception to
Goal 3 in order to locate access roads to the resort on land zoned for exclusive farm uses.
We affirm as to those assignments of error without discussion.
2 Respondents, as used herein, refers to Central Oregon Irrigation District and
Thornburgh Resort Company, LLC. . .
1 Alternatively, respondents further claim that public review of the feasibility of a
2 mitigation plan was sufficient, the county's imposed condition was adequate and specific
3 enough to assure compliance with the approval standard, and the county did not
4 improperly delegate the issue of compliance with an approval standard to another agency.
5 The issue, then, is whether LUBA erred in affirming the county's findings
6 that the conceptual master plan application complied with DCC 18.113.070(D) because
7 .. an acceptable mitigation plan was feasible and likely to be adopted by BLM, ODFW, and
8 Thornburgh. The relevant standard of review of LUBA's determination on the adequacy
9 of the county's conclusion of compliance with DCC 18.113.070(D) is whether LUBA's
10 determination is "unlawful in substance." ORS 197.850(9)(a).
11 LUBA's opinion and order was unlawful in substance for the reasons that.
12 follow. First, the county's findings were inadequate to establish the necessary and likely
13 content of any wildlife impact mitigation plan. Without knowing .the specifics of any
14 required mitigation measures, there can be no effective .evaluation of whether the project's
15 effects on fish and wildlife resources will be "completely mitigated" as required by DCC
16 18.113.070(D). ORS 215.416(9) requires that the county's decision approving the CMP
17 explain "the justification for the decision based on the criteria, standards and facts set
18 forth" in the decision.3 The county's decision is inconsistent with ORS 215.416(9)
3 ORS 215.416 states the process and justification for the discretionary
approval by a county of a proposed development of land. ORS 215.4I 6(9) provides:
"Approval or denial of a permit * * * shall be based upon and
accompanied by a brief statement that explains the criteria and standards
considered relevant to the decision, states the facts relied upon in rendering
8
1 because the decision lacks a sufficient description of the wildlife impact mitigation plan,
2 and justification of that plan based on the standards in DCC 18.113.070(D). Second, that
3 code provision requires that the content of the mitigation plan be based on "substantial
4 evidence in the record," not evidence outside the CMP record. In this case, the particulars
5 of the mitigation plan were to be based on a future negotiation, and not a county hearing
6 process. Because LUBA's opinion and order concluded that the county's justification was
7 adequate despite those deficiencies, the board's decision was "unlawful in substance."
8 Nevertheless, relying in part on Meyer v. City of Portland, 67 Or App 274,
9 678 P2d 741, rev den, 297 Or 82 (1984), Thornburgh argues that the finding of feasibility,
10 . together with the condition requiring adoption of a mitigation plan, is sufficient to prove
11 that the CMP complies with DCC 18.113.070(D). In Meyer, we determined that the
12 public participatory rights in a land use hearing on a residential subdivision, then required
13 by Fasano v. Washington Co.. Comm., 264 Or 574, 507 P2d 23 (1973), were not undercut
14 by conditioning final administrative approval of the subdivision on: further technical
15 studies on the individual building sites. That was because the evidentiary record of the
16 subdivision hearing was sufficient to support findings that the approval standards were
17 met, and the results of the technical studies were not necessary to reach that conclusion.
18 We held:
the decision and explains the justification for the decision based on the
criteria, standards and facts set forth."
That requirement is echoed in the county ordinance on land use hearing procedures.. DCC
22.28.010.
9
1 "The above -quoted findings are supported by substantial evidence in
2 the record, notably a detailed geotechnical study of the area done in 1973,
3 and extensive testimony by the city's experts. Petitioners appeared andwere
4 entitled to present evidence at the public hearings upon which the city's
5 findings in this matter were based. It is apparent therefore that the city
6 made the findings required by Code section 33.106 and that petitioners had
7 a full opportunity to be heard on the critical land use issues before the city's
8 decision became final."
9 Meyer, 67 Or App at 281,-82 (footnote omitted).
10 In reaching that conclusion, we noted that LUBA affirmed the city
11 subdivision approval because the city found the land division to be "feasible." However,
12 we observed that LU'BA's use of a "feasibility" standard in determining whether the
13 approval standards were met was misleading:
14 "For some reason, LUBA couched its discussion of this question in
15 terms of whetheror not the city found the preliminary plan proposed a
16 'feasible' development project. Petitioners argue that 'feasibility' cannot be
-17 the applicable. standard because nearly any conceivable project may be
18 feasible from an engineering perspective if enough money is committed to
19 it. It is apparent,. however, that by 'feasibility' LUBA means more than
20 feasibility from a technical engineering perspective. It means that
21 substantial evidence supports findings that solutions to certain problems
22 (for example, landslide potential) posed by a project are possible, likely and
23 reasonably certain to succeed."
• 24 Id. at 280 n 5 (citations omitted).
25 Thus, Meyer instructs that a proposed land development plan must be
26 specific and certain enough to support findings that the proposal satisfies the applicable
27 approval criteria. If the nature of the development is uncertain, either by omission or
28 because its composition or design is subject to fixture study and determination, and that
29 uncertainty precludes a necessary conclusion of consistency with the decisional standards,
10
1 the application should be denied or made more certain by appropriate conditions of
2 approval. Another option is to postpone the decision. As suggested in Meyer, however,
3 "[a] two-stage approval process is a permissible way to make land
4 use decisions such as the ones made here, so long as interested parties
5 receive a full opportunity to be heard before the decision becomes final.
6 "Obviously, such an approval process could be used to deny
7 interested parties the full opportunity to be heard if matters on which the
8 public has a right to be heard are not decided until the second stage of the
9 process --that is, the stage of the process in which final approval of the plan
10 takes place and which occurs after public participation has come to an end."
11 Id. at 280 (citations omitted); see also Paterson v. City of Bend, 201 Or App 344, 349,
12 118 P3d 842 (2005) ("In principle, we agree that nothing in the development code
13 precludes the city from, in effect, postponing a showing of compliance with specific
14 development criteria until the final plat approval, provided there is a showing that
15 compliance is feasible.").
16 In this case, the county's decision did not postpone a determination that the
17 project complies with DCC 18.113.070(D). The county might have, but did not, postpone
18 determination of compliance with that standard until the final master plan approval step
19 and infuse that process with the same participatory rights as those allowed in the CMP
20 approval hearing.' Instead, the county implicitly concluded (but did not directly find) that
21 the nature of the wildlife.impact mitigation plan was sufficiently certain and probable to
In the context of this case, a determination that a wildlife impact mitigation
plan is "feasible" might be appropriate to justify postponement of any evaluation of the
application of DCC 18.113.070(D) to the plan. The determination of feasibility, however,
is not an adequate substitute for an assessment of whether a specific mitigation plan
actually complies with the standard.
11
1 allow a present determination of consistency with the approval criterion. LUBA found
2 that the findings were "adequate" to explain compliance with DCC 18.113.070(D).
3 But the governing ordinance requires a Meyer determination of whether
4 "solutions to certain problems * * * are * * * likely and reasonably certain to succeed" --
5 whether the findings and conditions of the conceptual master plan approval adequately
6 support the conclusion, that "any negative impact on fish and wildlife resources will be
7 completely mitigated so that there is no net loss or net degradation of the resource" as
8 required by DCC 18.113.070(D). The adopted findings fail to make that case.
9
The wildlife impact mitigation plan was not yet composed. Although
10 Thomburgh's consultant proposed a number of offsite mitigation measures on federal
11 land, the BLM. reported that these measures needed "clarification and further
12 development." In particular, the agency asked that the effect of the development on deer
13 and elk winter range and habitats along a nearby river be clarified. It noted that "[i]t is
14 unclear what types of habitat conditions the resort intends to provide on-site compared to
15 off-site." The BLM concluded that "[s]everal items included in the draft report would not
16 be considered appropriate off-site mitigation," including removal of grazing on the resort
17 property and from offsite mitigation areas, placing rocks on offsite mitigation areas,
18 creation of new water sources for wildlife, and closure of existing roads and trails. Thus,
19 the particular nature of the wildlife impact mitigation plan was not known at the time of
20 the CMP hearing.
21 ' The county development code requires that the conceptual master plan
12
1 application include the "methods employed to mitigate adverse impacts on [wildlife]
2 resources." DCC 18. 113.050(B)(1). That requirement allows little speculation. The
3 code mandates that the applicant submit a "proposed [wildlife] resource protection plan!'
4 That requires that the submitted plan be specific enough to apply the approval standards
5 in a meaningful way. The code requirements set out the necessary foundation for
6 determination that "[a]nynegative impact on fish and wildlife resources will be
7 completely mitigated so that there is no net loss or net degradation of the resource." DCC
8 18.113.070(D) (emphasis added). The county's substitute of an uncertain plan, a plan yet
9 to be composed, violates those requirements.
10 The county decision was also defective for a second reason. The code
11 mandates that the approval standards be evaluated "from substantial evidence in the
12 record." DCC 18.113.070(D). That provision requires that the justification be based on
13 evidence submitted at public hearings on the application. The county's decision, however,
14 allows the mitigation plan justification to be established by future discussions among
15 Thornburgh, ODFW, and BLM, and not on evidence submitted during the public
16 hearings. That robs interested persons of the participatory rights allowed by the county
17 ordinance.
18 In sum, the county's conclusion that DCC 18.113.070(D) is satisfied by a
19 potential mitigation plan is legally insufficient to explain the justification for the decision
20 under ORS 215.419(9). For that reason, LUBA's decision upholding that conclusion is
21 unlawful in substance.
13
1 Thornburgh cross -petitions, challenging LUBA's comments in its decision
2 on the effect of the approved residential lot standards. DCC 18.113.060(G)(1) requires a
3 CMP to contain standards for the "minimum lot area, width, lot coverage, frontage and
4 yard requirements and building heights" as well as any solar access for structures within
5 the resort. The last sentence of DCC 18.113.060(G)(1) concludes that "[njo lot for a
6 single-family residence shall exceed an overall project average of 22,000 square feet in
7 size."
8 Thornburgh submitted numeric standards for minimum lot areas, lot width
9 averages, lot frontages, lot coverages, lot setbacks, and building heights for eight different
10 types of lots, with the largest lot type being a minimum of 15,000 square feet in area
11 ("Type A") and the smallest lottype being :at least 3,200 square feet in area ("Type H").
12 The county determined that
. 13 ."[t]he [board of county commissioners] finds that additional flexibility may
14 be needed to accommodate the planned range of living units and services.
15 For example, a. lot size in excess of one acre may be necessary for a home
16 site in some cases, particularly if it is desirable to preserve rocky or unique
17 terrain. A 1,500 -square -foot lot may be appropriate for condominiums or
18 row houses surrounded by common area."
19 Before LUBA, Gould contended that this finding allowed lots that exceeded
20 the 22,000 square feet maximum prescribed by DCC 18.113.060(G)(1). After quoting the
21 county finding, LUBA said:
22 "Thornburgh argues, and we agree, that the final sentence of DCC
23 18.113.060(G)(1) is 'inartf lly worded.' That sentence does not impose a
24 maximum lot size of 22,000 square feet; it prohibits lot sizes that would
25 result in the 'overall project average' exceeding 22,000 square feet.
26 However, to the extent the above quoted findings.can be read to grant
14
1 Thornburgh the 'flexibility' to propose one acre or 1,500 square foot lots,
2 even though the approved lot dimensions at Record 5642 would not permit
3 lots that large or small, we do not believe that grant of flexibility is within
4 the county's discretion under DCC 18.133.060(G)(I). If Thornburgh can'
5 subdivide the property into whatever size lots it believes the terrain or high
6 density housing type it desires might warrant, without first amending the
7 CMP to allow such different lot sizes, the exercise required by DCC
8 18.113.060(G)(I) is a waste of time at best."
9 On review, Thornburgh contends that LUBA misread the lot standards to
10 limit "lots that large." Thornburgh points out that the development code and the
I1 submission set minimum parcel sizes and do not require the adoption of maximum lot
12 areas. Thus, the approved residential lot area standards would not allow a lot less than
13 3,200 square feet in area, but would allow any lot of that size or larger in area. LUBA's
14 conclusion, however, rested on the application of the "approved lot dimension" standard,
15 which for lots of 15,000 square feet or more in area required a "Iot width average" of 100
16 . feet. The application of that standard to all of the lots within the "Type A" category may
17 operate to limit the sizes of some of the lots. LUBA did not err in reaching that
18 conclusion, although it was not necessary to the determination of Gould's precise
19 assignment of error to LUBA.
20 Reversed and remanded on petition; affirmed on cross -petition.
15
JAN -17-2008 THU 03:14 P11 COUNTY COUNSEL
FAX NO. 541 617 4748 P. 02
1 BEFORE TI IF, LAND USE BOARD OF APPEALS
2 OF THE STATE OF OREGON
3
4 ANNUN7TATA GOULD,
5 Petitioner,
6
7 vs.
8
9 DBSCIIIJTES COUNTY,
10 Respondent,
11
12 and
13
14 '1't IORNBURGII RESORT COMPANY, LLC and
15 CENTRAL OREGON IRRIGATION DISTRICT,
16 Intervenor -Respondents.
17
18 LUBA No. 2006-100
t9
20 STEVE MUNSON,
21 Petitioner;
22
23 vs.
24
25 • DESCTIUTES COUNTY,
26 Respondent,
27
28 and
29
30 THORNBURGTI 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 On remand from the Court or Appeals.
40
41 Paul D. I:)ewey, Bend, represented petitioner Gould.
42
43 hunted. Wilson, Eugene, represented petitioner Munson.
44
45 Laurie E. Craghead, Assistant County Legal Counsel, I3end, represented respondent.
Paige I
t: 1 7 %CIOs
EXHIBIT F
4AN-17-2008 THU 03:14 PM COUNTY COUNSEL
FAX NO. 541 617 4748 P. 03
2 Peter Livingston, Portland, represented intervenor -respondent Thornburgh Resort
3 Company, LLC.
4
5 Elizabeth A. Dickson and Jennifer L. Coul blin, Bend, represented intervenor -
6 respondent -Central Oregon Irrigation District.
7
8 Renee. Mottlun, Assistant Attorney General, Salem, represented Oregon 'Water
9 Resources Department.
10
11 110LSTUN, Board Chair; BASSCIAM, Board Member; RYAN, Board Member,
12 participated in the decision.
13
14
15 REMAND1 D • 01/15/2008
16
17 You are cnlitled to judicial review of this Order. Judicial review is governed by the
18 provisions OroRS 197.850.
Page 2
4AN-17-2008 THU 03:14 PM COUNTY COUNSEL
FAX NO. 541 617 4748 P. 04
Opinion by Ilolstun.
2 This ;tppcat is before us on remand from the Court of Appeals. Gould v. Deschutes
3 County, 54 Or LUBA 205 (2007), rev 'd and remanded 216 Or App 150, 171 P3d 1017
4 (2007). This appeal concerns a destination resort. Deschutes County Code (DCC)
5 18.113.070(D) requires that the proposed destination resort's negative impacts on fish and
6 wildlife resources must be "completely mitigated so that there is no net Loss or net
7 degradation of the resource." To comply with DCC 18.11 3.070(D), the applicant submitted
8 reports and a memorandum of understanding with the federal Bureau of Land Management.
9 In petitioner Gould's eleventh assignment of error and petitioner Munson's fourth assignment
10 of error, petitioners argued that the county erred in finding that those submittals were
11 sufficient to demonstrate compliance with DCC 18.113.070(D) mitigation standard, LUBA
12 agreed with the county and intervenor -respondent Thornburgh that those submittals were
13 sufficient and denied those assignments of error. 54 Or LUBA al 257-62.
14 On appeal to the Court of Appeals, petitioners argued that the particulars of the
15 applicant's wildlife impact mitigation plan were not sufficiently known for the county to find
16 that the DCC 18,113.070(D) mitigation standard will be met. Petitioners argued that LIJ[3A
17 erred in concluding otherwise and that LUBA erred in denying petitioner Gould's eleventh
I8 assignment of .error and petitioner Munson's fourth assignment of error. The Court of
19 Appeals agreed with petitioners.
20 The county's decision is remanded in accordance with (1) our initial decision, which
21 sustained petitioner Gould's third assignment of error and sustained petitioner Gould's first,
22 fourth, and eighth assignments of error, in part, and (2) the Court of Appeals' decision that
23 LUBA. improperly denied petitioner Gould's eleventh assignment of error and petitioner
24 Munson's fourth assignment oferror.
I'attt• 3
JAN -17-2008 THU 03:14 PM COUNTY COUNSEL
FAX 140. 541 617 4748 P. 05
Cerli fi cate of 1VI ailing
I hereby certify that 1 served the foregoing Final Opinion and Order for LURA No. 2006--
100/101 on January 15, 2008, by mailing to said parties or their atterncy a true copy thereof
contained in a scaled envelope. with postage prepaid addressed to said parties or their attorney
as follows:
Eli rabetla A. Dickson
Hurley, Re &. Gruetter PC
747 SW Mi El View Way
Bend, OR 97702
3antxctt Wilson
Goal One Coalition
642 Charnelton State 100
17,ugeno, OR 97401
Laurie. E.' Craghead
Assistant 1.egai Counsel
1.)eschutes County Legal Counsel
1300 NW Wall Street Suite 200
Bend, OR 97701-1960
Paul. D. Dewey
A ltorney at l..tw
1539 NW Vicksburg; Ave
Bend, OR 97701
Peter Livingston
Schwabe,. Williamson '. Wyatt PC
1211 SW Fifth Avenue, Suite 1600
Portland, OR 97204
Renee Mtiiilun
Department of .titslicc
1162 Court Street Nil
Saletti, OR 97301
Dated this 15th day of Jnuu.ary, 2008.
<el Burgess
Par .'legal
Debra A. Frye
Executive Support Specialist