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Deschutes County Board of Commissione s
1300 NW Wall St., Suite 200, Bend, OR 97701-19( 0
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.o g
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of October 20, 2008
Please see directions for completing this document on the next page.
DATE: October 15, 2008
FROM: Ruth Herzer Community Development Department
388-65f 5
TITLE OF AGENDA ITEM:
Consideration of Board signature of Order No. 2008-083, denying hearing of the Appeal of the
Hearings Officer decision regarding the Thornburgh Resort file # M-07-2 and MA -08-6.
PUBLIC HEARING ON THIS DATE? NO
BACKGROUND AND POLICY IMPLICATIONS:
The application for Final Master Plan was submitted on April 21, 2008 and was deemed complete: on
May 21, 2008. The 150th day on which the County has to make a final decision regarding this
application is October 20, 2008. Staff is requesting that the Board sign this order denying to hear any
appeal regarding this matter because there is not enough time left to hear any appeal without violating
the 150 day time limit for land use decisions.
FISCAL IMPLICATIONS:
NONE
RECOMMENDATION & ACTION REQUESTED:
Board signature of Order No. 2008-083, denying the request to hear the appeal.
ATTENDANCE: Ruth Herzer
DISTRIBUTION OF DOCUMENTS:
Ruth Herzer, Associate Planner, CDD
REVIEWED
LEGAL COUNSEL
For Recordin Stam , Onl
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings Officer's
Decision in File No. M-07-2 and MA -08-6 * ORDER NO. 2008-083
*
WHEREAS, Nunzie Gould appealed the Deschutes County Hearings Officer's Decision on Application
No. M-07-2 and MA -08-6; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Deschutes County Board of
County Commissioners ("Board") discretion on whether to hear appeals of Hearings Officers' decisions; and
WHEREAS, the Board has given due consideration as to whether to review these applications on
appeal; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will not hear on appeal Application A-08-19 pursuant to Title 22 of the
Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. Pursuant to DCC 22.32.015, there shall be a refund of $2,517.00.
DATED this day of , 2008.
BOARD OF COUNTY COMMISSIONERS
DENNIS R. LUKE, Chair
ATTEST: TAMMY (BANEY) MELTON, Vice Chair
Recording Secretary MICHAEL M. DALY, Commissioner
ORDER NO. 2008-083 (10/08/08)
NOTICE OF APPEAL OF NUNZIE GOULD OF
HEARINGS OFFICER'S DECISION OF OCTOBER 6, 2008,
ON M-07-2 AND MA -08-6 (THORNBURGH FMP)
Introduction.
Nunzie Gould hereby appeals the October 6, 2008, decision of the Deschutes County Hearings
Officer on Case No. M-07-2 and MA -08-6. We request the Board to grant de novo review for
the reasons stated below.
Party Status.
Nunzie Gould is entitled to file this appeal pursuant to DCC 22.32.010 as she is a party to the
review for land use approval in M-07-2 and MA -08-6, having participated below.
Appeal Form and Filing Fee.
We have completed the attached Notice of Appeal form and paid the required appeal fee
pursuant to DCC 22.32.015(A).
Timely Filing.
This appeal is being timely filed within the 12 -day period from the mailing of the decision on
October 8, pursuant to DCC 22.08.070.
Statement of Issues on Appeal.
1. It is not consistent with the Deschutes County Code (DCC) to approve a final master plan
(FMP) without first having a fmal conceptual master plan (CMP), which is currently on appeal to
the Court of Appeals.
2. The Applicant improperly introduced evidence as part of its final argument.
3. The Hearings Officer erred in rejecting a request under ORS 197.763(6)(c) to respond to
new evidence submitted by the Applicant.
4. The Hearings Officer erred in relying on an earlier OWRD determination of consumptive
use of groundwater instead of making a determination based on the factual record of this case.
5. The Hearings Officer failed to require the Applicant to "specify" all recreational facilities
as required by CMP Condition of Approval #13, to identify uses of open space (CMP Condition
#13), to provide the description and size of all commercial uses (DCC 18.113.090(6)), and to
show coordination on evacuation routes with ODOT and OSP (CMP Condition #19).
Page 1— NOTICE OF APPEAL
Paul D. Dewey, OSB #78178
1539 NW Vicksburg
Bend, Oregon 97701
(541) 317-1993
SCANNED
DCT 16 2008
6. The Hearings Officer approved a Phasing Plan not consistent with the resort's FMP
development plans.
7. The Hearings Officer failed to identify "natural" open space areas and the use and
location of open space areas as required by DCC 18.113.090(A) and CMP Condition of
Approval #34.
8. The Conditions of Approval referring to following various plans in the Record are
inadequate where it is not clear what is required in these plans, including Condition of Approval
#38 which incorporates an April 2008 wildlife mitigation plan, an August 2008 supplemental
plan and unspecified agreements with BLM and ODFW for management of off-site mitigation
efforts.
9. The Hearings Officer erred in finding that the Applicant's fish and wildlife mitigation
plans are "likely and reasonably certain to succeed."
10. The Hearings Officer failed to explain whether she was making findings of compliance
with the Code criteria or that it is merely feasible to comply with the Code criteria regarding the
fish and wildlife mitigation plans.
11. The Hearings Officer erred in finding compliance with the DCC regarding fish and
wildlife resources where:
a. there is no data or description of actual species or numbers on the site;
b. there is no quantitative vegetation data on the site;
c. the location of the wildlife mitigation has not been selected and the mitigation
may be shifted to anywhere in Deschutes County;
d. there has not been a showing of adequate funding in perpetuity; and
e. there are no measures to show success or failure of mitigation efforts.
12. The Hearings Officer misinterpreted the requirements of DCC 18.113.070(D) in ruling
that:
a. its mitigation allows substitution of species;
b. it does not require mitigation of at least a 1:1 ratio;
c. mitigation of habitat alone satisfies the Code requirement; and
d. dollars contributed to measure stream temperatures constitute mitigation for
impacts to fish and wildlife resources.
13. Contrary to the Court of Appeals' ruling, the Hearings Officer has again deferred the
development of a specific fish and wildlife plan and the determination of a location for
Page 2 — NOTICE OF APPEAL
Paul D. Dewey, OSB #78178
1539 NW Vicksburg
Bend, Oregon 97701
(541) 317-1993
SCANNED
OCT 16 2008
mitigation and has delayed an assessment of compliance without the opportunity for a public
hearing on what is finally adopted.
14. The Hearings Officer erred in finding that there had been one on-site survey of the animal
species of the site when in fact there had been none.
15. No condition was imposed to require additional or alternative mitigation if the proposed
mitigation is not sufficient to protect fish and wildlife habitat.
16. There is no finding or evidence of feasibility of mitigation water from COID.
17. The Hearings Officer failed to make adequate findings based on substantial evidence that
the addition of 106 AF into Whychus Creek will compensate for impacts of increased
temperature at Alder Springs due to Thornburgh groundwater withdrawals.
18. The Hearings Officer improperly relied on outdated opinions of ODFW and BLM that
were not based on the evidence in front of the Hearings Officer.
19. The Hearings Officer failed to address a number of issues and arguments raised by the
opponents, including:
a. that the CMP Phasing Plan is inconsistent with the FMP development proposal;
b. that the COID mitigation water has not been shown to be feasible;
c. that traffic impacts due to the new FMP development proposal must be addressed;
and
d. that consumptive use of groundwater will be 90-100%.
20. The FMP proposal is not consistent with the CMP proposal where:
a. the FMP development proposal is not consistent with the CMP Phasing Plan;
b. the FMP provision of visitor lodging is not consistent with the CMP; and
c. the FMP provides for additional development and access roads not considered in
the CMP.
De Novo Review.
The following are additional appeal issues and reasons to grant de novo review:
1. A de novo hearing is needed to correct erroneous findings contained in the Hearings
Officer's decision and to address significant policy issues such as the interpretation of DCC
18.113.070(D) and what constitutes a complete mitigation and no loss of fish and wildlife
resources.
Page 3 — NOTICE OF APPEAL
Paul D. Dewey, OSB #78178
1539 NW Vicksburg
Bend, Oregon 97701
(541) 317-1993
SCANNED
OCT 16 2008
2. De novo review will allow opponents of the resort to comment on conditions of approval
which have been raised by the Hearings Officer for the first time in her decision and which are
inadequately explained. It will also enable the County to correct factual errors in the decision.
3. The substantial rights of the opponents will be significantly prejudiced without de novo
review where the Hearings Officer's decision fails to address inadequate proof of compliance
with approval criteria and fails to address a number of significant issues raised by opponents.
4. The request for a de novo hearing is not necessitated by the failure of the opponents to
present evidence at the time of the previous hearing.
Respectfully submitted this t tdN,, day of October, 2008.
Page 4 — NOTICE OF APPEAL
PAUL D. DEWEY
Attorney for Nunzie Gould
Paul D. Dewey, OSB #78178
1539 NW Vicksburg
Bend, Oregon 97701
(541) 317-1993
SCANNED
OCT 16 2008