HomeMy WebLinkAboutDecision - CMP - Thornburgh ResortDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ort.
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of April 9, 2008
Please see directions for completing this document on the next page.
DATE: March 26, 2008
FROM: Ruth Wahl Community Development Department
388-6555
TITLE OF AGENDA ITEM:
Consideration of Signature of Document # 2008-151, Decision of the Deschutes County Board of
County Commissionerrs on Remand from the Oregon Land Use Board of Appeals Regarding the
Conceptual Master Plan for the Thornburgh Destination Resort
PUBLIC HEARING ON THIS DATE? NO
BACKGROUND AND POLICY IMPLICATIONS:
On March 19, 2008 the Board deliberated and made corrections to the Findings for the Final Decisi 3n
for the Conceptual Master Plan for file # CU -05-20, Thornburgh Resort. Those findings are attached
for your consideration of signature.
FISCAL IMPLICATIONS:
NONE
RECOMMENDATION & ACTION REQUESTED:
The Board signs the document which is the final decision regarding file # CU -05-20, the Conceptual
Master Plan for Thornburgh Resort
ATTENDANCE: Ruth Wahl
DISTRIBUTION OF DOCUMENTS:
Ruth Wahl, Community Development Department
Ji-Es
11/ Za
p {
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of April 9, 2008
Please see directions for completing this document on the next page.
DATE: March 26, 2008
FROM: Ruth Wahl Community Development Department
TITLE OF AGENDA ITEM:
Consideration of Signature of Document # 2008-151
PUBLIC HEARING ON THIS DATE? NO
388-6555
BACKGROUND AND POLICY IMPLICATIONS:
On March 19, 2008 the Board deliberated and made corrections to the Findings for the Final Decision
for the Conceptual Master Plan for file # CU -05-20, Thornburgh Resort. Those findings are attached
for your consideration of signature.
FISCAL IMPLICATIONS:
NONE
RECOMMENDATION & ACTION REQUESTED:
Board signature of the document, which is the final decision regarding file # CU -05-20, the Conceptual
Master Plan for Thornburgh Resort
ATTENDANCE: Ruth Wahl
DISTRIBUTION OF DOCUMENTS:
Ruth Wahl, Community Development Department
REVIEWED
LEGA OUNSEL
For Recording Stamp Only
DECISION OF THE DESCHLTTES COUNTY BOARD OF COMMISSIONERS
ON REMAND FROM THE OREGON LAND USE BOARD OF APPEALS
FILE NUMBER: CU -05-20
HEARING DATE: March 19, 2008
APPLICANT: Thornburgh Resort Company, LLC
Kameron DeLashmutt
c/o Schwabe, Williamson & Wyatt, P.C.
549 SW Mill View Way, Suite 100
Bend, OR 97702
(541) 318-9950
OWNER'S Schwabe, Williamson & Wyatt, P.C.
REPRESENTATIVE: Peter Livingston, Attorney at Law
1211 SW Fifth Ave., Suite 1600
Portland, OR 97204
(503) 796-2892
Myles Conway, Attorney at Law
549 SW Mill View Way, Suite 100
Bend, OR 97702
(541) 749-4019
Martha Pagel, Attorney at Law
530 Center Street NE
Salem, OR 97301
(503) 540-4260
STAFF REVIEWER: Ruth Wahl, Associate Planner
Page 1 of 11 - DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS ON
REMAND FROM THE OREGON LAND USE BOARD OF APPEALS THORNBURGH — Descht tes
County Document No. 2008-151
I. INTRODUCTION
This decision adopts findings on remand in response to the Final Opinion and Order of the Oregon Land
Use Board of Appeals ("LUBA") dated January 15, 2008. LUBA's remand is pursuant to an earlier
LUBA Final Opinion and Order dated May 14, 2007, and to a remand to LUBA by the Oregon Court of
Appeals in an opinion dated November 7, 2007. Gould v. Deschutes County, 54 Or LUBA 205 (2007),
rev'd and remanded 216 Or App 150, 171 P3d 1017 (2007).
II. READOPTION OF EARLIER COUNTY DECISION WITH MODIFICATIONS
The Deschutes County Board of Commissioners ("Board") readopts its decision dated May 10, 2006
("2006 Decision"), which approves the application by Thornburgh Resort Company, LLC
("Thornburgh" or "Applicant") for conceptual master plan ("CMP") approval, including the findings and
conditions therein, except as they are modified below.
III. APPLICABLE PROCESS
Pursuant to Deschutes County Code ("DCC") 22.34.030, and following a public work session on January
9, 2008, the Board gave notice and an opportunity to participate in the hearing on remand to those who
were parties to the earlier proceedings before the County. The Board directed County staff to provide
notice to the parties that the Board will hold a hearing on the record and to provide thirty (30) days for
the parties to submit legal arguments and no new evidence. The deadline for the submittal of those legal
arguments closed at 5:00 pm on February 29, 2008. The Board requested written argument and received
comments from Applicant and from the attorneys for the two opponents of the project, Annunziata Gould
("Gould") and Steve Munson ("Munson"), who had appealed to LUBA. On March 19, 2008, the Board
conducted its deliberations for the hearing on the record, as authorized by DCC Chapter 22.32 and 22.34,
on the issues remanded by the Oregon Court of Appeals and LUBA. Prior to and as part of those
deliberations, the Board considered the comments of all the parties prior to making its decision and, as
appropriate, responds to them below.
A preliminary issue that must be decided, however, regards the letters that Paul Dewey discussed in arld
attached to his legal argument submitted as part of this proceeding on remand. Mr. Dewey referenced
and attached a letter dated February 11, 2008 from him to the Community Development Department
regarding the cancellation of the Final Master Plan ("FMP") hearing. Additionally, Mr. Dewey attached
a letter dated February 4, 2008 from Assistant Legal Counsel, Laurie Craghead, to Martha Pagel, of
attorneys for the applicant, County Legal and CDD staff and the applicant t regarding an agreed upon
schedule for the FMP. During the deliberations for the remanded CMP decision, Ms. Craghead
recommended that the Board find that those letters are not legal argument pertaining to the remanded
CMP issues and, therefore, are new evidence and not allowed to be included as part of the on -the -record
hearing. The Board so finds, because Deschutes County Code ("DCC") 22.32.030(E)(6) does not allo
the Board to consider new factual information when conducting a hearing on the record, that the two
letters and all references to those letters cannot be part of the record in these proceedings because they
are new factual information. Thus, the Board will disregard those letters and all references to them.
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REMAND FROM THE OREGON LAND USE BOARD OF APPEALS THORNBURGH — Deschutes
County Document No. 2008-151
IV. NEW FINDINGS AND CONDITIONS
LUBA's Decision
LUBA remanded to the County on the following issues:
A. Gould's First and Fourth Assignments of Error: Correction of the Inconsistency Between
the Phasing Plan and the Overnight and Density Calculations Chart
FINDINGS: 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 Ovemight and Density Calculations chart and the
Phasing Plan. These inconsistencies arose as a result of Applicant's errors in the preparation of the plan
and chart prior to the Board's hearing in December 2005. In its May 14, 2007 Opinion and Order
("LUBA Order"), LUBA concluded that the inconsistencies could 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 rejected most of the first assignment of error, but agreed 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, p.
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."
LUBA explained that, contrary to the arguments made by Gould, the corrections in the Overnight and
Density Calculations chart included in Applicant's final legal argument are not new evidence. LUBA
disagreed with the Board's concern, which it inferred from the 2006 Decision, that the Board could not
consider the corrections because they were included in Applicant's final argument, after the record had
closed. It stated that the only "conceivable evidentiary component" of the correction was whether the
proposed corrections, if adopted, would in fact preserve the 2:1 ratio. It noted that there was no factual
dispute on that matter. Munson and Gould now argue that there is no way to consider an amended
phasing plan without reopening the record. However, LUBA made it clear that because the proposed
corrections are not new evidence, the Board can consider them without reopening the record. LUBA
Order, p. 16, footnote 16.
LUBA explained that the County must either require that Applicant make the corrections in the
Overnight and Density Calculations chart included in Applicant's final legal argument, or impose a
condition of approval that the correction is made, before it grants approval of the CMP. LUBA Order. p.
17.
B. Therefore, consistent with these statements in the LUBA Order, the Board adopts Condition
No. 21 listed below under "Corrected and Additional Conditions of Approval: 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
Page 3 of 11 - DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS O1`
REMAND FROM THE OREGON LAND USE BOARD OF APPEALS THORNBURGH — Descht.tes
County Document No. 2008-151
FINDINGS: Gould's Third Assignment of Error relates to an inconsistency between the wording of the
County approval standard and that of a subsequently adopted statute, ORS 197.445(4) (b) (B). LUBA
determined the wording of the statute must control and instructed the County to make related corrections
in the findings.
In the first paragraph of Condition 21, the 2006 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. Because those
first 50 units must be constructed prior to the closure of the sale of individual lots or units, the Board
finds that it is obvious that those units must be constructed in Phase A in one of the "pods" shown on the
Phasing Plan map for Phase A. Identifying exactly which pod those will be located in for Phase A is not
necessary, as the first site plan submitted by the applicant will have to provide for these units.
Therefore, consistent with these statements in the LUBA Order, the first paragraph of Condition 21 of the
2006 Decision shall be replaced with the first paragraph listed under "Corrected and Additional
Conditions of Approval" and the second paragraph shall remain the same.
C. Gould's Fourth Assignment of Error: Correction of Phasing Plan to Match Overnight and
Density Calculations Chart
FINDINGS: 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 new
condition adopted in response to LUBA's remand on that assignment.
D. 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"
FINDINGS: Gould's eighth assignment of error points out an omission in the original findings: The
2006 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. Thus, this decision is in the same
position as with the original decision in that no new hearing is necessary and what needs to be
completed is a written finding that, if any party disagrees with the finding, it is appealable to the LUBA.
Therefore, the Board adopts the following additional finding in response to DCC 18.113.070(G)(3)(b),
which summarizes evidence already in the record and is consistent with the Board's initial determination
approving the CMP:
New Finding: Gould argues that because a finding on this code provision was omitted from the 2006
Decision, the Board must reopen the record for testimony on the issue of adequate internal access,
Page 4 of 11 - DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS ON
REMAND FROM THE OREGON LAND USE BOARD OF APPEALS THORNBLTRGH — Deschi rtes
County Document No. 2008-151
The Board disagrees. The inadvertent failure to include a necessary finding in the 2006 Decision
after the record closed and the Board made a decision of approval does not indicate there was not
enough evidence in the record prior to the 2006 Decision to make the necessary finding.
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, B-1.40, that the location oi'
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.
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. En
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 bt,
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 Sherif''
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County Document No. 2008-151
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 Dev,en
Hearing that Thornburgh's traffic study, as modified, "is acceptable to the Road Department."
Mr. Judd raised no concerns about internal access.
On remand, Gould repeats her earlier arguments on internal access and also complains that one
proposed road would cross Barr Road, which would constitute an impermissible "use" of Barr
Road. The Board disagrees, finding that merely crossing Barr Road does not constitute "using"
Barr Road.
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 imposed Conditions 5, 7, 27 and 30 in the 2006 Decision. 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.
E. Fifth Assignment of Error: Confusion over Dimensional Standards
FINDINGS: Gould's fifth assignment of error related to minimum dimensional standards for lot sizes
within the project. Although LLTBA rejected Gould's arguments and upheld the County finding on this
issue, the LLTBA Order contains a statement that may cause confusion in the future. As a result,
Thornburgh asks the Board to make an additional finding to clarify that the specified minimum lot sizes
do not at the same time prescribe maximum dimensions.
Gould contended to LLTBA that the County's findings in response to DCC 18.113.060(G)(1) "violate(
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 greater than one acre." LLTBA rejected that
contention, LLTBA Order, p. 30, but added:
Page 6 of 11 - DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS ON
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County Document No. 2008-151
"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).[1]
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. 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.
The table in question is reproduced below:
ITEM
Type Type Type Type Type Type Type Type
A B C D E F G 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
Gould argues on remand that 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. However,
Thornburgh does not seek a change to the residential lot standards in Exhibit B -24a. Since the table
clearly states a minimum lot width average for each type of lot, it does not establish any limitation on 1. he
1 The Residential Lot Standards are stated in the BOP, Ex. 8, B -24a.
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County Document No. 2008-151
size of any lots. The Board therefore adopts the following additional, clarifying finding responsive to
DCC 18.113.060(G)(1).
New Finding: 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 a ay
limitation on maximum dimensions unless expressly stated (as with the maximum lot coverage acid
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.
Court of Appeals Decision
F. Gould's Eleventh and Munson's Fourth Assignments of Error: DCC 18.113.070(D) and
Wildlife Mitigation
FINDINGS: The Court of Appeals remanded to LUBA 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." 2006 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 noted 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 evalua:ion
of whether the project's effects on fish and wildlife resources will be `completely mitigated' as required
by DCC 18.113.070(D)." Gould, 216 Or App 150, 159. Second, DCC 18.113.070(D) "requires that 'he
content of the mitigation be based on `substantial evidence in the record,' not evidence outside the CP EP
record." Id. at 159-60.
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In terms of appropriate procedure, the Court of Appeals stated, "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." Gould, 216 Or App at 162. The court noted further, "[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." Id. at 162, footnote 4.
Gould argues on remand that it is improper to defer to the final master plan hearing the public's
opportunity to comment on the wildlife mitigation plan, because the CMP is the legal basis for the final
master plan. However, the Court of Appeals clearly stated that it is proper for the County to defer the
presentation of the wildlife mitigation plan to the final master plan process, as long as a feasibility
determination has been made with respect to DCC 18.113.070(D). As noted above, based on evidence in
the record, the Board found in the 2006 Decision that compliance with DCC 18.113.070(D) is feasible.
Consistent with the Court of Appeals' decision, the Board adopts Condition No. 26 below, which
postpones determination of compliance with DCC 18.113.070(D) until the final master plan approval stet)
and infuses that process with the same participatory rights as those allowed in the CMP approval hearing:
II. DECISION ON REMAND:
With the new findings above and conditions listed below, the Board concludes that Applicant has
satisfied all applicable approval criteria and the directions on remand of the Oregon Court of Appeals and
LUBA. Therefore, Thornburgh's CMP application is again APPROVED.
Corrected and Additional Conditions of Approval:
21 (Amended First Paragraph): 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 in the first phase of
development, prior to the closure of sale of individual lots or units.
In addition to complying with the specific requirements of DCC 18.113.070(U), 1-5, Applicant,
its successors and assigns, shall at all times maintain (1) a registry of the individually owned units
subject to deed restriction under DCC 18.113.070(U)(2), requiring they be available for overnight
lodging purposes; (2) an office in a location reasonably convenient to resort visitors as a
reservation and check-in facility at the resort; (3) a separate telephone reservation line and a
website in the name of "Thornburgh Resort," to be used by members of the public to make
reservations. As an alternative to, or in addition to (3), Applicant may enter into an agreemen':
with a firm (booking agent) that specializes in the rental or time-sharing of resort property,
providing that Applicant will share the information in the registry required by (1) and cooperate
with the booking agent to solicit reservations for available overnight lodging at the resort.
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If Applicant contracts with a booking agent, Applicant and the booking agent shall cooperate to
ensure compliance with the requirements of DCC 18.113.070(U)(5), by filing a report on
January 1 of each year with the Deschutes County Planning Division.
36. Applicant 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 Applicant'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 °:he
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.
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-RSF/Overnight
2.00
1.50
2.00
1.76
1.79
1.89
2.00
2.00
Applicant shall present the corrected Phasing Plan and Overnight and Density Calculations chart,
consistent with this condition, during the Final Master Plan approval process.
37. 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.
Page 10 of 11 - DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 4)N
REMAND FROM THE OREGON LAND USE BOARD OF APPEALS THORNBURGH — Desc lutes
County Document No. 2008-151
Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS
DENNIS LLTKE, CHAIR
TAMMY MELTON, VICE CHAIR
ATTEST:
Recording Secretary MICHAEL M. DALY, COMMISSIONER
Page 11 of 11 - DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS ON
REMAND FROM THE OREGON LAND USE BOARD OF APPEALS THORNBURGH — Desc lutes
County Document No. 2008-151