HomeMy WebLinkAboutDiscuss Whether to Hear AppealDeschutes 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 WORK SESSION of April 30, 2012
Please see directions for completing this document on the next page.
DATE: April 25, 2012
FROM: Kevin Harrison CDD 541-385-1401
TITLE OF AGENDA ITEM:
Consideration of whether to hear an appeal of the Hearings Officer's decision on DR-11-8, a ruling that
the conceptual master plan for Thornburgh Destination Resort has been initiated.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
The Hearings Officer issued a decision in file no. DR-11-8 that the conceptual master plan for
Thornburgh Destination Resort has been initiated because the conditions of approval have been
substantially exercised and fully complied with. This means that the approval of the conceptual master
plan cannot expire.
The appellant disagrees with the Hearings Officer's decision, citing five assignments of error and
requesting de novo review by the Board. The appellant's arguments are detailed in file no. A-12-1 and
summarized in the attached memo from staff.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
The Board should determine whether or not to hear the appeal and render its decision by adopting an
appropriate Order.
ATTENDANCE:
Kevin Harrison, Principal Planner
DISTRIBUTION OF DOCUMENTS:
Kevin Harrison, CDD
lIiii II
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
To: Deschutes County Board of Commissioners
From: Kevin Harrison, Principal Planner
Date: April 25, 2012
Re: Appeal of Hearings Officer's decision on DR-11-8 (Loyal Land, LLC).
File no. A-12-1 (Gould).
BACKGROUND
The applicant, Loyal Land, LLC, filed an application for a declaratory ruling to determine
whether the conceptual master plan for Thornburgh Destination Resort had been initiated. A
public hearing was conducted on February 7,2012 and the record closed on March 13,2012.
The Hearings Officer issued a decision on April 10, 2012, finding that the conceptual master
plan had been initiated because the conditions of approval had been, ... "substantially exercised
and fully complied with". A timely appeal was filed on April 23, 2012.
The 150-day time limit does not apply to this application per DCC 22.20.040(D)(4). The staff
recommendation was for approval of the declaratory ruling. Copies of the staff report and
Hearing's Officer's decision are attached for your review.
APPEAL
The notice of appeal describes five assignments of error. These are summarized below, with
references to those pages within the decision where the Hearings Officer addressed the issue.
1. The Hearings Officer erred in determining that Loyal Land, LLC could make the
application for the declaratory ruling. (See Hearings Officer's decision pages 4-6; 9-11)
2. The Hearings Officer erred in finding that County Code instead of OAR 660-033-0140
controls when calculating the duration of land use approvals. (See Hearings Officer's
decision pages 13-17)
3. The Hearings Officer erred in determining that the use was initiated during the relevant
two-year period. (See Hearings Officer's decision pages 16-17)
4. The Hearings Officer erred in deciding that the development has been initiated and that
the conditions of permit or approval have been substantially exercised. (See Hearings
Officer's decision pages 18-32)
Qutllity Services Perfonned with Pride
5. The Hearings Officer erred in not addressing that failure to comply with conditions of
approval is the fault of Thornburgh Resort and Loyal Land, LLC. (See Hearings Officer's
decision page 32)
As noted above, the 150-day time limit is not an issue in this case. The appellant requests de
novo review. The Board should review the notice of appeal to determine that it is sufficiently
specific so that the Board is able to respond to and resolve each issue in dispute (See: DCC
22.32.020(A».
If the Board decides to hear the appeal, the review shall be on the record unless the Board
decides to hear the appeal de novo because it finds the substantial rights of the parties would
be significantly prejudiced without de novo review and it does not appear that the request is
necessitated by failure of the appellant to present evidence that was available at the time of the
previous review; or whether in its sole judgment a de novo hearing is necessary to fully and
properly evaluate a significant policy issue relevant to the proposed land use action (See: DCC
22.32.027(B)(2)(c) and (d». The Board may, at its discretion, determine that it will limit the
issues on appeal to those listed in the notice of appeal or to one or more specific issues from
among those listed on the notice of appeal (See: DCC 22.32.027(B)(4».
DECLINING REVIEW
If the Board decides that the Hearings Officer's decision shall be the final decision of the county,
then the Board shall not hear the appeal and the party appealing may continue the appeal as
provided by law. The decision on the land use application becomes final upon the mailing of the
Board's decision to decline review. In determining whether to hear an appeal, the Board may
consider only:
1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendations of staff (See: DCC 22.32.035(B) and (D».
STAFF RECOMMENDATION
Staff does not have a recommendation for the Board on this matter. It is staff's opinion that the
substantial rights of the parties would not be prejudiced by declining review as a full and fair
hearing was granted before the Hearings Officer. Staff does point out that, due to operator
error, a recording of the hearing before the Hearings Officer does not exist.
The appellant notes that there are substantial legal issues involved in this case, including
interpretations of state law on which the Land Use Board of Appeals (LUBA) will have to rule.
As a result, even if the Board decides to hear the appeal, it will be necessary for LUBA to
ultimately interpret state law. However, if the Board agrees with the decision then hearing the
appeal and rendering a decision will provide deference to the county's decision where it
interprets county code.
SCHEDULE
This item is scheduled for the Board's work session on May 2,2012. Please feel free to contact
me with any questions or concerns.
Community Development Degartment
Planning Division
117 NW Lafayette Avenue. Bend. DR 97701-1925
(541]388-6575 -Fax (541]3B5-1764
http://www.deschutes.org/cdd
APPEAL APPLICA TION
FEE: ____
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the
above may render an appeal invalid. Any additional comments should be Included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010)
or whether an appeal Is valid. Appellants should seek their own legal advice concerning those issues.
Appellant's Name (print): A. ,'-'oil -:;z.. d 6. ., AI!J A::t,.\ .. •• G d ..., \ d Phone: 1.W :311 ~ I ~~3
AHol'ofI"., O~-.)1 0""""7
Mailing Address: 123'1
101
N w v,' (.ltlwe!1 (l..\Jc City/State/Zip: __0""""""=,,,_J~~..."o""'I2=-....
<f'1?..;..;...;:O"""1_
Land Use Application Being Appealed: ___..l:'U::;..a=-,...;.I.:..I----=-g______--::--::-_-=-=:----=.",....".~_.::_"..."...---
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Property Description: Township~Range I~ Section.___TaxLot Goaa, !Sag! !'iOa;:2, '?'1oa, 1')01
Appellant's Signature: ?---s::>uQ 'j AHa .....,,.. Jot A!.,,,,g:'C" C-.q,..rd
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
, APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON-THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(oyer)
7/09
APPEAL BY ANNUNZIATA "NUNZIE" GOULD OF HEARINGS OFFICER DECISION
OF APRIL 10,2012, ON DR-1l-8 (LOYAL LAND, LLC)
Annunziata "Nunzie" Gould requests de novo review by the Board of Commissioners of the
above Hearings Officer's decision for the reasons discussed below. Appellant incorporates by
reference her attached memoranda to the Hearings Officer, including the 217/12 memorandum
(hereinafter "217 Memo"), the 2121112 memorandum (hereinafter "2121 Memo") and the 316/12
memorandum (hereinafter "316 Memo").
The Declaratory Ruling concerned whether the Thornburgh Resort had "initiated use" of the
Conceptual Master Plan ("CMP") conditional use approval or whether the CMP permit expired
because use had not be initiated in the two-year period following approval of the permit. The
Declaratory Ruling Applicant is not Thornburgh Resort but is instead "Loyal Land, LLC" which
has foreclosed on part of the property.
1. The Hearings Officer erred in deciding that Loyal Land may bring this Declaratory
Ruling action though it is not the holder of the CMP permit and does not own all the land subject
to the CMP approval. See Appellant's arguments on this issue at 217 Memo, pp. 1 and 4-8, and
the 3/6 Memo, p. 4.
2. The Hearings Officer erred in ruling that the County Code instead of OAR 660-033-0140
controls here and that there is thus a tolling period for appeals, so the two-year period does not
run until all appeals are resolved. See Appellant's arguments on this issue at 217 Memo, pp. 2
and 9-11, the 2/21 Memo, pp. 1-2, and the 3/6 Memo, pp. 5-6.
3. The Hearings Officer erred in determining that the initiation of use occurred during the
relevant two-year period, though nothing was essentially done during whatever two-year period
is deemed relevant. See Appellant's arguments on this issue at 217 Memo, p. 11, the 2121 Memo,
pp. 3-5, and the 3/6 Memo, p. 6.
4. The Hearings Officer erred in deciding that the "development action" has been initiated
and that the conditions of permit or approval have been substantially exercised. See Appellant's
arguments on this issue at 217 Memo, pp. 2-3 and 11-17, the 2/21 Memo, pp. 5-7, and the 3/6
Memo, pp. 6-8.
5. The Hearings Officer also erred in not addressing that failure to comply with all the
conditions is the fault ofThomburgh Resort and the Applicant and that Loyal Land cannot
assume Thornburgh Resort's position under the CMP which has been fundamentally altered by
the Loyal Land takeover and declaratory ruling application. See Appellant's arguments on this
issue at 217 Memo, pp. 3-4 and 17-20, the 2/21 Memo, p. 9, and the 3/6 Memo, pp. 8-9.
DE NOVO REVIEW
Appellant requests de novo review by the Board where her substantial rights would be
significantly prejudiced without de novo review. The Hearings Officer's decision has failed to
address key factual issues involving the conduct of Thornburgh Resort and Loyal Land which
have undermined the CMP approval and it would be important for the Board to hear the evidence
first hand to understand and correct the errors.
It is also the case that there are substantial legal issues involved here, including interpretations of
state law on which the Land Use Board of Appeals will have to rule. LUBA will have to decide
whether "acknowledgement" of the County Code means that OAR 660-033-0140 is not
applicable (though the Code is inconsistent with it) and whether the rules of Division 033 are
inapplicable because Oregon law has supposedly exempted destination resorts from them. As a
result, even if the Board of County Commissioners decides to address this appeal, it will be
necessary for LUBA to ultimately interpret state law.
DATED this 23 rd day of April, 2012.
Respectfully submitted,
fPAULD.DEWEY
Attorney for Nunzie Gould
cc: Steven L. Pfeiffer, Esq.
David J. Petersen, Esq.
Gary Underwood Scharff, Esq.
Loyal Land, LLC
DR-11-8
Page 1
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: DR-11-8
APPLICANT: Loyal Land, LLC
27333 N. 96 th Way
Scottsdale, Arizona 85262
PROPERTY OWNERS: Loyal Land, LLC
(Tax Lots 5000, 5001, 5002, 7700, 7701, 7800 and 7900)
Agnes DeLashmutt
4048 N.W. Xavier
Redmond, Oregon 97756
(Tax Lot 8000)
APPLICANT’S
ATTORNEY: Steven L. Pfeiffer, Attorney at Law
Perkins Coie
1120 N.W. Couch Street, Tenth Floor
Portland, Oregon 97209-4128
OPPONENTS’
ATTORNEYS: David J. Petersen
Tonkin Torp LLP
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
Attorney for Kameron DeLashmutt
Gary Underwood Scharff
1300 American Bank Building
621 S.W. Morrison Street
Portland, Oregon 97205
Attorney for Thornburgh Resort Company, LLC
Paul D. Dewey
1539 N.W. Vicksburg Avenue
Bend, Oregon 97701
Attorney for Nunzie Gould
REQUEST: The applicant requests a declaratory ruling that the use approved
through the Thornburgh Destination Resort conceptual master plan
has been initiated.
STAFF REVIEWER: Kevin Harrison, Principal Planner
Loyal Land, LLC
DR-11-8
Page 2
HEARING DATE: February 7, 2012
RECORD CLOSED: March 13, 2012
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.16, Exclusive Farm Use Zones
* Section 18.16.035, Destination Resorts
2. Chapter 18.113, Destination Resorts Zone (DR)
* Section 18.113.040, Application Submission
* Section 18.113.050, Requirements for Conditional Use Permit and
Conceptual Master Plan Applications
* Section 18.113.060, Standards for Destination Resorts
* Section 18.113.075, Imposition of Conditions
* Section 18.113.080, Procedure for Modification of a Conceptual Master
Plan
* Section 18.113.090, Requirements of Final Master Plan
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.08, General Provisions
* Section 22.08.010, Application Requirements
2. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.040, Final Action in Land Use Actions
3. Chapter 22.24, Land Use Action Hearings
* Section 22.24.080, Standing
4. Chapter 22.28, Land Use Action Decisions
* Section 22.28.010, Decision
Loyal Land, LLC
DR-11-8
Page 3
5. Chapter 22.36, Limitation on Approvals
* Section 22.36.010, Expiration of Approval
* Section 22.36.020, Initiation of Use
* Section 22.36.050, Transfer of Permit
6. Chapter 22.40, Declaratory Ruling
* Section 22.40.010, Availability of Declaratory Ruling
* Section 22.40.020, Persons Who May Apply
* Section 22.40.030, Procedures
* Section 22.40.040, Effect of Declaratory Ruling
* Section 22.40.050, Interpretation
II. FINDINGS OF FACT:
A. Location: The subject property – the Thornburgh Destination Resort -- is comprised of
Tax Lots 5000, 5001, 5002, 7700, 7701, 7800, 7801, 7900 and 8000 on Deschutes
County Assessor’s Map 15-12.
B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use–
Sisters/Cloverdale Subzone (EFU-SC) and is within the Destination Resort (DR) Overlay
Zone. The property is designated Agriculture by the Deschutes County Comprehensive
Plan.
C. Site Description: The subject property is approximately 1,970 acres in size and has
vegetation consisting of juniper woodland. The property covers the south and west
portions of the geologic feature know as Cline Buttes. The property currently is
developed with three dwellings and a barn, access to which is from Cline Falls Highway.
The property is engaged in farm use consisting of low-intensity livestock grazing.
D. Surrounding Zoning and Land Uses: The subject property is surrounded by public land
primarily owned and managed by the Bureau of Land Management (BLM). A portion of
the public land is owned and managed by the Oregon Department of State Lands (DSL).
The Eagle Crest Destination Resort is located near the northern portion of the subject
property.
E. Procedural History: The Thornburgh Destination Resort has a long history. The
conceptual master plan (CMP) application submitted by the Thornburgh Resort
Company, LLC (TRC) was denied by former Deschutes County Hearings Officer Anne
Corcoran Briggs by a decision dated November 9, 2005 (CU-05-20). That decision was
appealed by Nunzie Gould (Gould) and Steve Munson (Munson) to the Deschutes
County Board of Commissioners (“board”) (A-05-16). By a decision dated May 10,
2006, the board approved the CMP. Gould and Munson appealed the board’s decision to
the Land Use Board of Appeals (LUBA) (Nos. 2006-100 and 101). LUBA remanded the
board’s decision on May 14, 2007. Gould v. Deschutes County , 54 Or LUBA 2005
Loyal Land, LLC
DR-11-8
Page 4
(2007). Gould and Munson appealed LUBA’s decision to the Court of Appeals seeking a
broader remand. (A135856). On November 7, 2007, the Court of Appeals reversed and
remanded LUBA’s decision. Gould v. Deschutes County , 216 Or App 150, 171 P3d 1017
(2007). The result of this decision was that the board’s decision in CU-05-20 approving
the CMP was remanded to the county for further proceedings.
On April 15, 2008 the board issued a decision on remand again approving the CMP
(Document No. 2008-151). Gould and Munson again appealed the board’s decision to
LUBA on May 6, 2008 (No. 2008-068). On September 11, 2008, LUBA affirmed the
board’s decision. Gould v. Deschutes County , 57 Or LUBA 403 (2008). Gould and
Munson appealed LUBA’s decision to the Court of Appeals (A140139). On April 22,
2009 the Court of Appeals affirmed LUBA’s decision. Gould v. Deschutes County , 227
Or App 601, 206 P3d 1106 (2009). Gould and Munson appealed the Court of Appeals’
decision to the Oregon Supreme Court (S057541). On October 9, 2009, the Supreme
Court denied review. Gould v. Deschutes County , 347 Or 258, 218 P3d 540 (2009). On
December 9, 2009 the Court of Appeals issued its appellate judgment. On December 15,
2009 LUBA issued its notice of appellate judgment.
Following approval of the CMP, on August 11, 2007 TRC submitted a final master plan
(FMP). On April 21, 2008, TRC submitted an amended application for FMP approval.
(M-07-2/MA-08-6). By a decision dated October 8, 2008, Hearings Officer Briggs
approved the FMP. Gould and Munson appealed that decision to LUBA (No. 2008-203).
On September 9, 2009 LUBA remanded the county’s decision for further proceedings.
Gould v. Deschutes County , 59 Or LUBA 435 (2009). TRC appealed LUBA’s decision to
the Court of Appeals (A143430). On February 24, 2010 the Court of Appeals affirmed
LUBA’s decision. Gould v. Deschutes County , 233 Or App 623, 227 P3d 758 (2010).
LUBA issued its notice of appellate judgment on August 17, 2010, remanding the
county’s decision. As of the date of this decision, the FMP remand had not been initiated
and therefore no further action on the FMP has been taken.
The subject declaratory ruling application was submitted on November 1, 2011 (DR-11-
8). By a letter dated November 8, 2011 the Planning Division advised the applicant that
the application was incomplete. The applicant submitted the missing information on
December 22, 2011 and the application was accepted as complete on that date. Under
Section 22.20.040(D)(4) of the county’s development procedures ordinance, because the
declaratory ruling seeks an initiation of approval determination, the application is not
subject to the 150-day period for issuance of a final local land use decision. A public
hearing on the application was held on February 7, 2012. At the hearing, the Hearings
Officer received testimony and evidence, left the written evidentiary record open through
March 6, 2012, and allowed the applicant through March 13, 2012 to submit final
argument pursuant to ORS 197.763. The applicant submitted its final argument on March
13, 2012 and the record closed on that date.
F. Ownership History: As discussed above, the property comprising the Thornburgh
Destination Resort consists of eight tax lots. At the time the resort received CMP and
FMP approval, seven of those tax lots (TL 5000, 5001, 5002, 7700, 7701, 7800 and 7900)
Loyal Land, LLC
DR-11-8
Page 5
were owned by TRC and the eighth tax lot (TL 8000) was owned by Agnes DeLashmutt.
The record indicates the applicant acquired the seven tax lots owned by TRC through
foreclosure. A Trustee’s Deed, a copy of which is included in the record as Exhibit B to
the applicant’s burden of proof, was recorded on September 14, 2011 conveying the
property owned by TRC from Fidelity National Title Insurance Company to the
applicant. The deed includes the following recitals:
“Parker Group Investments, LLC, an Oregon Limited Liability Company
and Thornburgh Resort Company, LLC, an Oregon Limited Liability
Company, as to Parcels 1 through 6 and John E. Evenson and Barbara L.
Evenson, each as to an undivided 50% interest, as to an undivided 49%
interest as to Parcel 6 only, as grantor, executed and delivered to
Amerititle as the original trustee, for the benefit of Sterling Savings Bank
(‘Sterling’), as the original beneficiary, a certain trust deed dated
November 19, 2007, duly recorded on November 26, 2007, as Instrument
No. 2007-61125, in the mortgage records of Deschutes County, Oregon,
and thereafter re-recorded on December 5, 2007, as Instrument No. 2007-
62677, in the mortgage records of Deschutes County, Oregon (the ‘Deed
of Trust’).
In said Deed of Trust the real property therein and hereinafter described
was conveyed by said grantor to said trustee to secure, among other
things, the performance of certain obligations of the grantor to the said
beneficiary. The said grantor thereafter defaulted in its performance of the
obligations secured by said Deed of Trust as stated in the notice of default
hereinafter mentioned and such default still existed at the time of the sale
hereinafter described.”
The Trustee’s Deed goes on to describe the foreclosure proceedings that occurred
following the notice of default.
In a letter dated February 3, 2012, TRC through its attorney Gary Scharff argues that
notwithstanding the Trustee’s Deed, the applicant does not own the aforementioned seven
tax lots for the following reasons:
“My client is of the view that the August 31, 2011 foreclosure sale was
illegal. On August 30, 2011, in anticipation of that sale, we commenced a
legal action in Deschutes County Circuit Court, Case No. 11CV0655,
seeking a judicial decree quieting title to the subject property in TRC. A lis
pendens referring to that lawsuit and TRC’s claim to title was recorded in
the Official Records of Deschutes County on August 30, 2011. The lawsuit
remains pending in Deschutes County Circuit Court at this time.”
The applicant’s attorney Steven Pfeiffer responded in a letter dated February 7, 2012 as
follows:
“First, the mere filing of a legal claim does not indicate that it is
Loyal Land, LLC
DR-11-8
Page 6
meritorious. This is particularly the case in quiet title matters, which are
often rooted in contentious disputes among the parties. Second, the
Applicant notes that although TRC had over 60 days to contest the
foreclosure, TRC filed the claim on the last possible day and never sought
an injunction or temporary restraining order to prevent or stay the
foreclosure. For these reasons, the Hearings Officer should find that there
is no basis to conclude the foreclosure is invalid or that TRC has any
remaining ownership interest in the property.”
The Hearings Officer agrees with the applicant’s analysis. In the absence of a stay or
injunction from the circuit court, neither the litigation nor the lis pendens affects my
ability to consider the declaratory ruling application submitted by the applicant.
G. Request: The applicant requests a declaratory ruling that the land use approved through
the Thornburgh Destination Resort CMP – i.e., the resort -- has been initiated. The
applicant contemporaneously applied for an extension of the CMP (E-11-56) but asked
that the application be held in abeyance pending resolution of the subject declaratory
ruling application. The extension request is not before the Hearings Officer.
H. Public/Private Agency Notice: The record indicates the Planning Division did not send
notice of the applicant’s proposal to any public or private agencies.
I. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant’s proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. In addition, notice of the public hearing
was published in the Bend “Bulletin” newspaper, and the subject property was posted
with a notice of proposed land use action sign. As of the date the record in this matter
closed, the county had received letters, electronic mail messages, and legal memoranda
from opponents DeLashmutt, TRC and Gould. In addition, opponents DeLashmutt and
Gould appeared at the public hearing through their attorneys.
J. Lot of Record: As part of the 2005 approval of the Thornburgh Destination Resort
conceptual master plan (CU-05-20) Hearings Officer Briggs found the subject property
consists of several legal lots of record as previously determined in county files LR-91-56,
LR-98-44, MP-79-159, CU-79-159 and CU-91-68.
III. CONCLUSIONS OF LAW:
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.40, Declaratory Ruling
a. Section 22.40.010, Availability of Declaratory Ruling
A. Subject to the other provisions of DCC 22.40.010, there shall
Loyal Land, LLC
DR-11-8
Page 7
be available for the County’s comprehensive plans, zoning
ordinances, the subdivision and partition ordinance and DCC
Title 22 a process for:
* * *
3. Determining whether an approval has been initiated or
considering the revocation of a previously issued land
use permit, quasi-judicial plan amendment or zone
change;
* * *
Such a determination or interpretation shall be known as a
“declaratory ruling” and shall be processed in accordance with
DCC 22.40. In all cases, as part of making a determination or
interpretation the Planning Director (where appropriate) or
Hearings Body (where appropriate) shall have the authority to
declare the rights and obligations of persons affected by the
ruling. (Emphasis added.)
FINDINGS: The applicant requests a declaratory ruling to determine whether the Thornburgh
Destination Resort CMP approved by CU-05-20 has been initiated.
As discussed in the Findings of Fact above, opponents DeLashmutt and TRC appeared in these
proceedings through oral testimony at the public hearing and through written materials submitted
before and after the hearing. Nevertheless, they assert they are not parties to this proceeding
because they have not taken a position on the merits of the applicant’s declaratory ruling
request.1 In the alternative, they argue that if they are parties, their party status is limited to the
issue of whether the applicant can apply for a declaratory ruling. 2 In either case, DeLashmutt and
TRC argue that, notwithstanding the above-underscored code language, they are not bound by
the Hearings Officer’s decision on the merits. They urge me to include a finding to that effect in
my decision. The applicant responds, and I agree, that it is neither necessary nor appropriate for
me to include such a finding. Whether and to what degree DeLashmutt and TRC are bound by
my decision can be determined in a future proceeding if/when one of them submits a land use
application, or takes other action, that may be inconsistent with my decision.
1 DeLashmutt and TRC are correct that the term “party” is not defined in Title 22. The Hearings Officer
notes Section 22.24.08, concerning standing, states in relevant part: “Any person appearing on the record
at a hearing (including appeals) or presenting evidence in conjunction with an administrative action or
hearing shall have standing and shall be a party.” (Emphasis added.)
2 Opponent Gould notes DeLashmutt’s February 21, 2012 memorandum presents arguments on the merits
of the declaratory ruling request. However, the memorandum states DeLashmutt presented this discussion
for another purpose.
Loyal Land, LLC
DR-11-8
Page 8
B. A declaratory ruling shall be available only in instances
involving a fact-specific controversy and to resolve and
determine the particular rights and obligations of particular
parties to the controversy. Declaratory proceedings shall not
be used to grant an advisory opinion. Declaratory proceedings
shall not be used as a substitute for seeking an amendment of
general applicability to a legislative enactment.
FINDINGS: The Hearings Officer finds the applicant’s request for a declaratory ruling is fact-
specific in that it requests a determination of whether the CMP for Thornburgh Destination
Resort has been initiated. I find the applicant is neither requesting an advisory opinion nor
seeking an amendment to a legislative enactment.
C. Declaratory rulings shall not be used as a substitute for an
appeal of a decision in a land use action or for a modification
of an approval. In the case of a ruling on a land use action a
declaratory ruling shall not be available until six months after
a decision in the land use action is final.
FINDINGS: The Hearings Officer finds the subject declaratory ruling request is not a substitute
for an appeal inasmuch as the appeal period for the CMP approval in CU-05-20 expired several
years ago, and the applicant is not challenging the validity of the CMP approval. Gould argues
the declaratory ruling in effect is an unlawful attempt to modify the original CMP approval
because the applicant does not own all of the property subject to the CMP, and opponents assert
the applicant also does not own or control all of the required elements of the destination resort. I
disagree. I find the requested declaratory ruling is limited to the question of whether the
approved CMP has been initiated.
As discussed in the findings below, under Section 18.113.040 of the DR Zone, destination resort
development occurs through a three-step process of which CMP approval is the first step.
Section 18.113.050 states the CMP “provides the framework for development of the destination
resort.” Actual development of a destination resort requires approval of an FMP as well as
subdivision plats, site plans, etc. Whether and to what extent the applicant may actually proceed
to develop the destination resort through the FMP and the subdivision plat and site plan stage
will be determined at the time such development is proposed.
D. The Planning Director may refuse to accept and the Hearings
Officer may deny an application for a declaratory ruling if:
1. The Planning Director or Hearings Officer determines
that the question presented can be decided in
conjunction with approving or denying a pending land
use application or if in the Planning Director or
Hearing Officer’s judgment the requested
determination should be made as part of a decision on
an application for a quasi-judicial plan amendment or
zone change or a land use permit not yet filed; or
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2. The Planning Director or Hearings Officer determines
that there is an enforcement case pending in district or
circuit court in which the same issue necessarily will be
decided as to the applicant and the applicant failed to
file the request for a declaratory ruling within two
weeks after being cited or served with a complaint.
The Planning Director or Hearings Officer’s determination to
not accept or deny an application under DCC 22.40.010 shall
be the County’s final decision.
FINDINGS: The Hearings Officer finds the question presented through this declaratory ruling
proceeding cannot be decided in conjunction with a pending land use permit because none exists.
I also find the question cannot be resolved through a plan amendment, zone change or land use
permit application not yet filed because the question presented does not implicate the county’s
comprehensive plan or zoning ordinance, and, as discussed below, declaratory ruling
proceedings are intended to provide a mechanism through which the status of a previously issued
land use approval is determined. Finally, the record shows no enforcement case is pending.
b. Section 22.40.020, Persons Who May Apply
A. DCC 22.08.010(B) notwithstanding, the following persons may
initiate a declaratory ruling under DCC 22.40:
1. The owner of a property requesting a declaratory ruling
relating to the use of the owner’s property.
2. In cases where the request is to interpret a previously
issued quasi-judicial plan amendment, zone change or
land use permit, the holder of the permit; or
3. In all cases arising under DCC 22.40.010, the Planning
Director.
FINDINGS: The referenced Section 22.08.010 establishes general requirements for filing land
use applications. Paragraph (A) of that section defines “property owner” as “the owner of record
or the contract purchaser and does not include a person or organization that holds a security
interest.” Paragraph (B) authorizes land use applications to be submitted “by the property owner
or a person who has written authorization from the property owner as defined herein to make the
application.”
Section 22.40.020(A) expands the list of applicants authorized to submit a declaratory ruling
application beyond those identified in Section 22.08.010 to include: (1) “the property owner”
when the declaratory ruling relates to “the use of the owner’s property;” (2) “the holder of the
permit” in cases where the declaratory ruling requests an interpretation of a previously issued
land use permit; and (3) the Planning Director “in all cases.” The Hearings Officer finds the clear
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intent of this broad authorization, combined with the extensive list of subjects for declaratory
rulings under Section 22.40.010(A), is to provide an expansive rather than restrictive process for
resolving issues and “status situations” in a timely manner. It is in this context that I review the
arguments concerning the applicant’s authority to request a declaratory ruling.
The applicant argues it was authorized to submit the declaratory ruling application under both
Subsections (A)(1) and (2) of Section 22.40.020. Each of these subsections is addressed
separately in the findings below.
(1) The owner of a property requesting a declaratory ruling relating to the use of the
owner’s property. (Emphasis added.)
The applicant is the owner of Tax Lots 5000, 5001, 5002, 7700, 7701, 7800, 7801 and 7900,
which comprise the majority of the Thornburgh Destination Resort property. The remaining
resort property is Tax Lot 8000 owned by Agnes DeLashmutt. TRC and DeLashmutt argue that
because the applicant does not own all of the resort property it cannot be considered “the
owner,” and that a declaratory ruling application must be filed by all property owners. The
Hearings Officer finds the plain language of this subsection does not impose such a requirement.
Rather, it authorizes the owner of “a” property to request a declaratory ruling relating to the use
of “the owner’s property.” I find the applicant was authorized by this language to request a
declaratory ruling as to the status of the Thornburgh CMP because the applicant is the owner of a
property subject to the CMP, and the CMP approval relates to and affects “the use of” the
applicant’s property – i.e., its potential development with a destination resort.
Assuming for purposes of discussion that the language of Subsection (1) is not dispositive, the
Hearings Officer finds the applicant was authorized to submit the declaratory ruling without
TRC’s or DeLashmutt’s consent under the analysis in my decision in Smith (A-10-2, NUV-09-
1). That case involved an appeal from an administrative decision verifying that a replacement
bridge built across Wychus Creek was a valid nonconforming use. The bridge was constructed
on two parcels of property in separate ownership and on an access easement crossing multiple
properties. The applicant owned one of the parcels and was a holder of the access easement
crossing the property of appellant, the other property owner. Appellant did not consent to the
application and objected to the bridge.
The Hearings Officer found in Smith that two questions were presented concerning the
applicant’s authority to file the application under the general application provisions in Section
22.08.010(A): (1) whether the applicant was a “property owner” as to appellant’s property; and
(2) whether in the case of multiple property owners, all owners are required to sign or consent to
the filing of application. As to the first question, I found the applicant was a “property owner” of
appellant’s property because he was a holder of the access easement crossing appellant’s
property. As to the second question, I analyzed the text and context of the phrase “the property
owner” as well as relevant case law, and concluded that because “property owner” is modified by
the word “the” rather than the word “all,” the word “the” is synonymous with “a” or “an.”
Accordingly, I held that where there are multiple property owners the application can be
submitted by “a” property owner.
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Opponents argue my decision in Smith is not applicable to the subject application because the
applicant there had an ownership interest in both parcels on which the bridge was constructed.
The applicant responds that my reasoning in Smith is relevant because both cases involve
multiple property owners, and the operative language – “the property owner” – is the same in
Sections 22.08.010 and 22.40.020. The Hearings Officer concurs with the applicant. I find no
reason to interpret “the property owner” in Section 22.40.020(A) more narrowly than the same
language in Section 22.08.010, particularly in light of the purpose of declaratory rulings.
For the foregoing reasons, the Hearings Officer finds the applicant, as the owner of property
within the Thornburgh Destination Resort, was authorized to submit the subject declaratory
ruling application relating to use of its property under the Thornburgh Destination Resort CMP.
(2) In cases where the request is to interpret a previously issued quasi-judicial plan
amendment, zone change or land use permit, the holder of the permit; * * *. (Emphasis
added.)
Section 22.36.050(A) of the county’s procedures ordinance states “a land use permit shall be
deemed to run with the land and be transferrable to applicant’s successors in interest.” The
applicant is TRC’s successor in interest as the result of a foreclosure and trustee’s deed.
Accordingly, the Hearings Officer finds the approved CMP runs with all eight tax lots
comprising the Thornburgh resort, including those owned by the applicant. Opponents argue the
applicant is not “the holder of the permit” because it does not own all of the land subject to the
permit or all required resort elements. The applicant responds that where there are multiple
property owners there also are multiple permit holders, any one of which can apply for a
declaratory ruling requesting interpretation of the permit.
The Hearings Officer agrees with the applicant. Again, given the broad nature of the declaratory
ruling authorization, I find it would not be appropriate to interpret the word “the” in the phrase
“the holder of the permit” in Subsection (2) of this section more narrowly than I have interpreted
the same word in phrase “the property owner” in Subsection (1). I find such a restrictive reading
of this term would be inconsistent with the clear purpose of declaratory rulings by allowing one
owner within a permitted or approved development to thwart the efforts of any and all other
owners to clarify the effect of the permit or approval on their property.
Opponents also argue the applicant should not be allowed to apply for a declaratory ruling on the
Thornburgh CMP because the applicant ultimately will not be able to develop the resort without
TRC’s consent and cooperation. The Hearings Officer finds this argument is premature. As
discussed above, destination resort development is a three-step process. The question presented
by this declaratory ruling application is whether the use permitted by the first step – the CMP –
has been initiated. And the only question before me under Section 22.40.020 is whether the
applicant is authorized to apply for that declaration. I have found that it is.
For the foregoing reasons, the Hearings Officer finds that as both a property owner and a holder
of the CMP for the Thornburgh Destination Resort, the applicant was authorized to submit an
application for a declaratory ruling that the resort has been initiated.
B. A request for a declaratory ruling shall be initiated by filing an
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application with the planning division and, except for
applications initiated by the Planning Director, shall be
accompanied by such fees as have been set by the Planning
Division. Each application for a declaratory ruling shall
include the precise question on which a ruling is sought. The
applicant shall set forth whatever facts are relevant and
necessary for making the determination and such other
information as may be required by the Planning Division.
FINDINGS: The record indicates the applicant filed the required declaratory ruling application
and paid the required fee. The application and supporting materials set forth both the question
posed by the applicant – i.e., whether the use approved under CU-05-20 has been initiated – and
facts relevant to answering that question.
c. Section 22.40.030, Procedures
Except as set forth in DCC 22.40 or in applicable provisions of a
zoning ordinance, the procedures for making declaratory rulings shall
be the same as set forth in DCC Title 22 for land use actions. Where
the Planning Division is the applicant, the Planning Division shall
bear the same burden that applicants generally bear in pursuing a
land use action.
FINDINGS: The subject declaratory ruling application has been processed in accordance with
the requirements of Title 22.
d. Section 22.40.040, Effect of Declaratory Ruling
A. A declaratory ruling shall be conclusive on the subject of the
ruling and bind the parties thereto as to the determination
made.
B. DCC 22.28.040 notwithstanding, and except as specifically
allowed therein, parties to a declaratory ruling shall not be
entitled to reapply for a declaratory ruling on the same
question.
C. Except where a declaratory ruling is made by the Board of
County Commissioners, the ruling shall not constitute a policy
of Deschutes County.
FINDINGS: The Hearings Officer finds this declaratory ruling decision will be conclusive on
the issue of whether the use approved under the Thornburgh Destination Resort CMP has been
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initiated, and the parties cannot reapply for a declaratory ruling on the same issue.3 Because this
decision has not been made by the board, it does not constitute a policy of the county.
e. Section 22.40.050, Interpretation
Interpretations made under DCC 22.40 shall not have the effect of
amending the interpreted language. Interpretation shall be made only
of language that is ambiguous either on its face or in its application.
Any interpretation of a provision of the comprehensive plan or other
land use ordinance shall consider applicable provisions of the
comprehensive plan and the purpose and intent of the ordinance as
applied to the particular section in question.
FINDINGS: No interpretation of the comprehensive plan or zoning ordinance is being requested
as part of this declaratory ruling application. Any interpretation of the terms of the Thornburgh
CMP will not have the effect of amending the interpreted language.
2. Chapter 22.36, Limitations on Approval
a. Section 22.36.010, Expiration of Approval
A. Scope.
1. Except as otherwise provided herein, DCC 22.36.010
shall apply to and describe the duration of all approvals
of land use permits provided for under the Deschutes
County Land Use Procedures Ordinance, the various
zoning ordinances administered by Deschutes County,
and the subdivision/partition ordinance.
* * *
B. Duration of Approvals.
1. Except as otherwise provided under DCC 22.36.010 or
under applicable zoning ordinance provisions, a land
use permit is void two years after the date the
discretionary decision becomes final if the use approved
in the permit is not initiated within that time period.
* * *.
3 As discussed above, the Hearings Officer makes no findings herein as to whether TRC and DeLashmutt
are parties to this declaratory ruling proceeding.
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E. Effect of Appeals. The time period set forth in DCC
22.36.010(B) shall be tolled upon the filing of an appeal to
LUBA until all appeals are resolved. (Emphasis added.)
FINDINGS: The board’s original decision approving the Thornburgh Destination Resort CMP
was issued on May 10, 2006. Thereafter appeals were filed, the board’s decision was remanded,
and on April 15, 2008 the board approved the CMP on remand. That decision also was appealed
and ultimately was affirmed by the Court of Appeals on October 9, 2009. The court’s appellate
judgment was issued December 9, 2009, and LUBA issued its notice of appellate judgment on
December 15, 2009.
The parties disagree as to: (1) when the CMP approval was “final” for purposes of calculating
the two-year period during which the CMP approval was valid; (2) whether the two-year period
was tolled by appeals; and (3) when the two-year period expired. Each issue is addressed
separately in the findings below.
1. Date CMP Decision Became “Final.” Section 22.28.010(1)(C) provides:
C. A decision on a land use action is not final until the Planning Director or
Hearings Body issues a written decision, the decision or notice of the decision
has been mailed and the appeal period to the next higher Hearings Body
within the County has run. (Emphasis added.)
The board approved the Thornburgh CMP twice – the first time on May 10, 2006, and the second
time on April 15, 2008 on remand from the Court of Appeals. The Hearings Officer finds the
board’s final decision on the CMP was its April 15, 2008 decision on remand.4 In that decision,
the board re-adopted its May 10, 2006 decision as modified by findings, conclusions and
conditions of approval adopted on remand.
The applicant argues the date the county’s decision became final is “irrelevant” because the use
approved through the CMP was initiated. The Hearings Officer disagrees. Section
22.36.010(B)(1) states a land use permit is void two years after the date the discretionary
decision becomes final if the use approved in the permit is not initiated “within that time period.”
I find the plain language of this provision requires me to establish when the two-year period
began and ended in order to determine whether the permit was initiated “within that time
period.” However, as discussed in the findings below concerning initiation of the use, I have
found all of the relevant conditions of approval in the board’s decision approving the CMP were
fully complied with prior to TRC’s submission of the modified FMP in April of 2008.
2. Method of Calculating Two-Year Period. In a February 7, 2012 memorandum, Gould’s
attorney Paul Dewey argues the two-year period for initiation of the CMP expired on April 15,
2010 – i.e., two years after April 15, 2008 -- notwithstanding the language in Paragraph (E) of
Section 22.36.010 that states expiration of land use permits is tolled until all appeals are
4 In his February 21, 2012 memorandum, Mr. Dewey stated he agrees with the applicant that the county’s
final decision on remand of the CMP was April 15, 2008 rather than April 9, 2008.
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resolved. He asserts that because the subject property is designated and zoned agricultural land,
the duration and expiration of the CMP approval are governed by Oregon Administrative Rules
(OAR) 660-033-0140 which does not include a tolling provision and provides in relevant part:
(1) Except as provided for in section (5) of this rule, a discretionary decision,
except for a land division, made after the effective date of this division
approving a proposed development on agricultural or forest land outside an
urban growth boundary under ORS 215.010 to 215.293 and 215.317 to
215.438 or under county legislation or regulation adopted pursuant thereto is
void two years from the date of the final decision if the development action is
not initiated in that period. (Emphasis added.)
In his February 21, 2010 memorandum, Steven Pfeiffer responded to Mr. Dewey as follows:
“First, it is well-settled that local land use decisions made by jurisdictions with
acknowledged plans and land use regulations are not reviewable for compliance
with the Statewide Planning Goals (‘Goals’) and their implementing rules. Byrd
v. Springer, 295 Or 311, 666 P2d 1332 (1983); Friends of Neabeck Hill v. City of
Philomath, 139 Or App 39, 46, 911 P2d 350 (1996). Accordingly, LUBA denied a
challenge to a county’s decision to apply its own code requirement to determine
minimum parcel size, notwithstanding the local government’s inconsistency with a
rule in OAR 660 Division 033, when the county’s code was acknowledged to
comply with Goal 3 and the Goal 3 rule. Oregon Natural Desert Association v.
Harney County, 42 Or LUBA 149 (2002). It is undisputed that the County has
incorporated its own provisions for permit expiration and extension into the DCC.
Thus, to the extent of any inconsistency between the DCC and OAR 660 Division
033, the County is entitled to rely upon the provisions of the DCC in this matter.
There is a second reason the rules of Division 033 are inapplicable: The purpose
of the Division 033 rules would not be served by applying the rules in this
instance because Oregon law has already exempted destination resorts from
complying with them. OAR 660-033-0010 states that the purpose of Division 033
rules is to protect Goal 3 lands. Destination resorts are permitted on rural lands
without the need for taking an exception to Goal 3 under ORS 197.450.
Accordingly, the purpose of the rules would not be served by applying them in this
instance. Although ORS 215.283(2)(t) allows destination resorts on farmland,
subject to the requirements of ORS 215.296, the County has incorporated and
applied the requirements of ORS 215.296 to the CMP. Accordingly, the County
has already applied the applicable requirements to the use.”
The Hearings Officer concurs with Mr. Pfeiffer’s analysis. The county code allows destination
resorts as conditional uses on EFU-zoned land under Section 18.16.035, subject to the DR Zone
provisions in Chapter 18.113 which the county adopted in 1992. Section 18.113.020 states that
when the DR Zone provisions are applicable “they shall supersede all other provisions of the
underlying zone.” These provisions do not address the duration, expiration or initiation of
destination resort approvals. Rather, they refer to the procedures in Title 22 for the processing of
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destination resort applications.5 Section 22.36.010, adopted by the county in 1995 by Ordinance
No. 95-018, expressly states it applies to the duration of approval of “all land use permits.”
The Deschutes County 2011 Comprehensive Plan states in its preamble:
“Over time, the County amended the 1979 Plan to comply with changes initiated
by the State, and Board of County Commissioners or property owners. Periodic
Review, a plan update process once required by the state, started in 1988 and was
completed in 2003. Periodic Review included major additions and amendments to
the 1979 Plan to keep the Plan and its policies consistent with evolving State
planning regulations and local conditions.”
The county’s updated comprehensive plan and land use regulations were acknowledged by the
Land Conservation and Development Commission (LCDC) in January of 2003, after adoption of
the county’s provisions for both destination resorts in Title 18 and permit
duration/expiration/initiation in Title 22. Consequently, the Hearings Officer finds that although
Section 22.36.010 is inconsistent with OAR 660-033-0145 in allowing permit expirations to be
tolled by appeals, both code sections were acknowledged in 2003 as consistent with the
statewide goals, including Goal 3, Agricultural Land, and its implementing administrative rules
in OAR 660 Chapter 33. Therefore, I find Section 22.36.010(E) applies to the Thornburgh CMP
because it is a tolling provision expressed in the permit limitation itself. See, Rest Haven
Memorial Park v. City of Eugene , 44 Or LUBA 231 (2003), aff’d 189 Or App 90, 74 P3d 1107
(2003); Stupek v. Wyle Laboratories Corp., 327 Or 433, 963 P2d 678 (1998).
Even assuming for purposes of discussion that OAR 660-033-0145 does apply to the applicant’s
proposal, and therefore the two-year period for initiation of use was not tolled and expired on
April 15, 2010 as asserted by Mr. Dewey, the Hearings Officer finds using the earlier date would
not produce a different result. That is because, as discussed in detail in the findings below
concerning whether the relevant conditions of approval were substantially exercised, I have
found all relevant conditions of approval were in fact fully complied with by April 21, 2008,
when the FMP was submitted for approval. 6
3. Calculation of Two-Year Period for Initiating CMP. The Hearings Officer has found the
two-year period for initiating the CMP commenced on April 15, 2008 with the board’s decision
approving the CMP on remand. Thus, without any tolling, that period would have expired on
April 15, 2010. As discussed above, that is the date Mr. Dewey argues marks the end of the two-
year period for initiating the use. However, under Section 22.36.010(E) the two-year period was
tolled “upon filing of an appeal to LUBA until all appeals are resolved.” (Emphasis added.) The
Hearings Officer finds the words “all appeals” in the underscored phrase means all appeals from
the final decision – i.e., from the board’s 2008 CMP approval on remand.
5 E.g. , Section 18.113.040, Application Submission; Section 18.113.100, Final Master Plan Approval.
6 In fact, according to Mr. Dewey’s February 21, 2012 memorandum, the actions satisfying Conditions of
Approval 3, 8, 9, 10, 11, 13, 14A, 14B, 15 and 24 all occurred on or before April 15, 2008.
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The LUBA appeal from the board’s April 15, 2008 decision was filed on May 6, 2008. LUBA’s
decision was appealed to the Court of Appeals and to the Supreme Court which denied review in a
decision dated October 7, 2009. The Court of Appeals issued its appellate judgment on December
9, 2009. In his February 7, 2012 memorandum, Paul Dewey states all appeals were “resolved” with
the Supreme Court’s October 7 th decision and not by the Court of Appeals’ appellate judgment on
December 9, 2009. The Hearings Officer disagrees for the following reasons.
The Court of Appeals’ and Supreme Court’s procedures are established in ORS Chapter 19 and
in the Rules of Appellate Practice. ORS 19.450(b) defines the “appellate judgment” as “the
decision of the Court of Appeals or Supreme Court, or such portion of the decision as may be
specified by the Supreme Court, together with an award of attorneys’ fees or allowance of costs
and disbursements, if any.” Rule 14.05(1)(a) of the Rules of Appellate Procedure states that an
appellate judgment “means a decision of the Court of Appeals or Supreme Court together with a
final order and seal of the court.” Subsection (1)(b) of this rule defines “decision” as “a
designation of prevailing party and allowance of costs together with, * * * on judicial review of
any agency proceeding, an order disposing of the appeal or judicial review or affirming without
opinion.” Subsection (2) of this rule states a decision of the Court of Appeals or Supreme Court
“is effective: * * * with respect to judicial review of administrative agency proceedings, on the
date that the [Court] Administrator sends a copy of the appellate judgment to the administrative
agency.” Based on these provisions, the Hearings Officer finds the court’s decision affirming the
CMP became effective when the appellate judgment was issued – i.e., on December 9, 2009. 7
LUBA issued a notice of appellate judgment on December 15, 2009. Mr. Dewey asserts, and the
Hearings Officer agrees, that nothing in the statutes or administrative rules governing LUBA’s
procedures requires the issuance of such notice. Moreover, OAR 661-010-0070 states LUBA’s
order is final when it states it is a “final opinion and order,” has a date, is date stamped, and
indicates the outcome of the appeal. Therefore, I find LUBA’s issuance of a notice of appellate
judgment did not delay the effective date of the Court of Appeal’s decision. Accordingly, I find
all appeals were resolved on December 9, 2009, and the tolled two-year period for initiation of
the CMP approval expired on December 7, 2011 – i.e., 581 (tolled) days after April 15, 2010). 8
D. Procedures.
1. A determination of whether a land use has been
initiated shall be processed as a declaratory ruling.
* * *.
7 Mr. Dewey’s February 21, 2012 memorandum concedes the appellate judgment sets the relevant date.
8 Both the applicant and Mr. Dewey suggest 42 days must be deducted from the 581 days of tolling to
account for several periods of time between the issuance of decisions and the filing of appeals. Based on
those deductions, the applicant states the two-year period expired “on or about November 3, 2011.” The
Hearings Officer finds the language in Section 22.36.010(E) – tolling “until all appeals are resolved” –
does not contemplate such deductions, but rather sets the parameters of the tolling period from the filing
of the first appeal to resolution of the last appeal, without interruption.
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FINDINGS: The applicant has applied for a declaratory ruling that the use permitted by the
approved Thornburgh CMP has been initiated.
b. Section 22.36.020, Initiation of Use
A. For the purposes of DCC 22.36.020, development action
undertaken under a land use approval described in DCC
22.36.010, has been “initiated” if it is determined that:
1. The proposed use has lawfully occurred;
2. Substantial construction toward completion of the land
use approval has taken place; or
3. Where construction is not required by the approval, the
conditions of a permit or approval have been
substantially exercised and any failure to fully comply
with the conditions is not the fault of the applicant.
(Emphasis added.)
FINDINGS: No use approved through the Thornburgh CMP has occurred, and no construction
was required by the CMP. Therefore, the Hearings Officer finds the applicant must demonstrate
the use has been initiated under Subsection (A)(3) of this section, which establishes two
requirements: (1) that the conditions of a permit or approval have been substantially exercised;
and (2) that any failure to fully comply with conditions is not the fault of the applicant. Each
requirement is addressed separately in the findings below.
1. Conditions of Permit or Approval Have Been Substantially Exercised. The parties
disagree as to how this requirement is to be interpreted in two key respects, discussed below.
a. Conditions of Permit or Approval. Mr. Dewey argues the phrase “conditions of a permit or
approval” connotes more than the listed conditions of approval imposed by the board’s original
decision and its decision on remand approving the Thornburgh CMP on remand.9 In his February
7, 2012 memorandum, he argues the phrase includes the conditions of approval and the CMP
“proposal and representations relied upon * * * to demonstrate compliance with the applicable
criteria, regardless of whether those representations are also specifically included as conditions
of approval.” Mr. Dewey cites several cases, including Wilson Park Neighborhood Association v.
City of Portland , 27 Or LUBA 106, 123-124 (1994), that stand for the proposition that an
applicant is bound to comply with elements of its proposal submitted to demonstrate compliance
regardless of whether such compliance is required through a condition of approval. Mr. Dewey
9 As discussed in detail in the findings below, the board’s original decision approving the CMP adopted
36 conditions of approval. The board’s decision on remand modified one of the 36 conditions of approval
and added two additional conditions of approval it incorrectly numbered “36” and “37,” resulting in a
total of 38 conditions of approval. In her decision approving the FMP, Hearings Officer Briggs
renumbered Conditions of Approval 36 and 37 in the board’s remand decision as Conditions 37 and 38.
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also cites the language of Condition of Approval 1 of the board’s decision which states:
“Approval is based on the submitted plan. Any substantial change to the
approved plan will require a new application.”
In his February 21, 2012 memorandum, Mr. Pfeiffer responds that Mr. Dewey’s argument, if
accepted, would have the effect of improperly inserting words into the code language that the
drafters did not include. He also argues Mr. Dewey’s reliance on Wilson and the other cited cases
is misplaced because nothing in those cases can be read to hold the Hearings Officer must
consider plans submitted as part of the proposal in determining whether an approval has been
initiated.
When the meaning of an ordinance or statutory provision is not clear, the Hearings Officer must
determine the intent of the drafters. The Oregon Supreme Court’s decision in PGE v. Bureau of
Labor and Industries , 317 Or 606, 859 P2d 1143 (1993), sets forth a three-step analysis for such
a determination. The first step is to examine the text and context of the provision in question. If
the drafters’ intent is not obvious from the text and context, then the analysis turns to an
examination of any proffered legislative history. If the intent is still not clear, general rules of
statutory construction may be considered. In State v. Gaines , 346 Or 160, 206 P3d 1042 (2009),
the Supreme Court revised the PGE analysis in light of amendments to ORS 174.020 that allow
consideration of legislative history concurrently with the text and context.
Turning first to the text of Section 22.36.020(A)(3), the Hearings Officer finds no support for
Mr. Dewey’s argument. The plain language of the operative phrase -- “conditions of a permit or
approval” – includes within it the term “conditions of approval.” It does not include terms such
as “plans” or other development components. I also find no support for Mr. Dewey’s
interpretation in the context of the county code. Destination resorts are authorized as conditional
uses in the EFU Zones under Section 18.16.035. The planning director or hearings body is
authorized to “impose” conditions to assure compliance with approval criteria and/or to limit
development for conditional uses in general (Section 18.128.020) and destination resorts in
particular (Section 18.113.075). Webster’s New World Dictionary and Thesaurus, Second
Edition states the ordinary definition of “impose” includes to “place a burden on.” In this
context, I find the terms “conditions” and “conditions of approval” mean those requirements
and/or limitations expressly imposed on a permit or approval through the conditions of approval
articulated at the end of the land use decision. In this case, the operative conditions are the
conditions of approval adopted by the board in its original decision and its decision on remand.
The Hearings Officer also finds the boilerplate language of Condition of Approval 1 of the
board’s decision does not support Mr. Dewey’s argument. Rather, reading the two sentences of
the condition together, I find the most reasonable reading is it simply puts the applicant on notice
that without further land use applications and approvals, the applicant is not authorized to
undertake development beyond that which was proposed in the application and approved through
the decision.
The Hearings Officer fully understands opponents’ concerns about whether the applicant will be
able to develop the Thornburgh Destination Resort considering the ownership and resort
element/permit issues raised by opponents. Nevertheless, as discussed throughout this decision,
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destination resort development occurs in three steps. The CMP is the first step. The only question
before me in this declaratory ruling proceeding is whether the destination resort use allowed
through the CMP approval has been initiated – not whether the applicant ultimately will be able
to develop the resort. The applicant’s ability to put into place all of the destination resort’s
components may well be relevant at the FMP and specific development steps.
The remaining question raised by the parties under this language is whether all or only some of
the 38 conditions of approval in the board’s decisions are relevant in determining whether the
use approved through the CMP has been “initiated.” The Hearings Officer finds the answer to
that question is determined by both the language of the conditions of approval and their context
within the three-step destination resort process. Section 18.113.050 states the CMP provides the
“framework” for development of the destination resort. Section 18.113.040(B) states that in
order to develop the destination resort the applicant must submit and obtain approval for the
FMP “which incorporates all requirements of the County approval for the CMP” and
demonstrates compliance with “all conditions of approval of the conditional use permit.” Section
18.113.040(C) states “each element or development phase of the destination resort must receive
additional approval through the required site plan approval or subdivision criteria,” and must be
in compliance with the FMP.
Consistent with the DR process context, the conditions of approval in the board’s decisions
specify different times for compliance – e.g., some before FMP approval, some before specific
development approval, and some at all times – as shown in the following summary of conditions.
Conditions To Be Met Prior to FMP Approval:
• 3: obtain BLM grant of right-of-way and access easement;
• 8: obtain DHS plan review and approval of water supply plans for
drinking water;
• 10: provide documentation of OWRD approval of water right
application;
• 14(B): revised covenants, conditions and restrictions (CC&Rs)
regarding maintenance of required open space;
• 15: obtain approved WPCF permit from DEQ;
• 19: coordinate evacuation plans with Sheriff, Redmond Fire
Department, Oregon State Police and Oregon Department of Transportation (ODOT);
• 22: submit covenants, conditions and restrictions;
• 30: submit detailed traffic circulation plan with resort access roads,
internal circulation roads, and emergency ingress/egress roads; and
• 36 (on remand): modify overnight lodging and density calculations
for resort in accordance with revised proposal dated 1-3-06.
Conditions To Be Met On or With Final Master Plan Submission:
• 9: designate location of all utilities lines and easements on FMP;
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• 11: include a written plan for entering into cooperative agreements
with owners of existing wells within a two-mile radius of applicant’s wells;
• 13: specify all recreational facilities within resort;
• 14(A): include a delineation of open space substantially similar to
open space delineation submitted with CMP;
• 36 (on remand): replace the overnight lodging and density
calculation charts with revised charts; and
• 37 (on remand): submit wildlife mitigation plan.
Condition of FMP Approval:
• 12: compliance with requirements for commercial, cultural,
entertainment and accessory uses, locations and scales.
Conditions To Be Met Before or With First Phase of Development/First Tentative Plat and/or
First Site Plan:
• 25: submit detailed erosion control plan; and
• 33: develop at least 150 separate rentable visitor-oriented lodging
units with an aggregate cost of $2,000,000 (in 1984 dollars), develop visitor-oriented
eating establishments for at least 100 persons, and spend at least $2,000,000 (in 1984
dollars) on recreational facilities.
Conditions To Be Met Before Final Plat Approval:
• 4: improve emergency secondary resort access roads; and
• 7: obtain approval of all proposed new road names.
Conditions to Be Met With/On Final Plat:
• 6: show all easements of record or rights-of-way;
• 7: show approved road names on final plats.
• 14(D): clearly delineate all open space on final plats.
Conditions To Be Met Prior To Or With Construction:
• 5: design and construct roads in accordance with Title 17 of the
county code; obtain plan approval from road department; and
• 24: complete annexation into Deschutes County Rural Fire
Protection District No. 1 before commencing combustible construction.
Conditions To Be Met With Each Development Phase:
• 10: submit updated documentation of state water right permit and
accounting of full amount of any required mitigation for individual phase.
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Conditions To Be Met At All Times:
• 1: substantial change to approved plan will require new
application;
• 2: all development will require tentative plat approval under Title
17 and/or site plan review under Title 18;
• 14(B): ensure the 50% open space requirement is met by using and
maintaining open space areas, include open space language in all deeds, obtain a new
land use permit for any change to approved open space;
• 14(C): include open space language in all deeds;
• 16: limit all temporary structures to maximum of 18 months on
resort site;
• 17: all resort development shall meet all Redmond Fire
Department fire protection requirements;
• 18: no development shall be allowed on slopes of 25% or more;
• 20: cumulative density of development at end of any phase shall
not exceed maximum density of 0.72 dwellings per acre;
• 21 (remand): each phase of development shall be constructed so
that the requirement of 150 overnight lodging units and 2:1 ratio of individually owned
dwelling units to overnight lodging units is maintained; provide financial assurance for
overnight lodging units in lieu of construction; maintain registry of individually owned
units, office, telephone reservation line, etc.;
• 23: Barr Road may not be used for resort access;
• 26: lot size, width, coverage, off-street parking, setbacks (including
solar) are permitted as described in CMP, compliance confirmed during subdivision
approval for each development phase;
• 27: road width shall be consistent with requirements in Title 17;
• 28: abide with 9-28-2005 MOU with BLM regarding mitigation of
impacts on surrounding federal lands, and implement adopted mitigation plan;
• 29: abide with 10-10-05 MOU with ODOT regarding ODOT
administered roadways;
• 31: all exterior lighting shall comply with county outdoor lighting
ordinance;
• 32: no permission to install a helicopter landing zone;
• 34: retain and restore native vegetation;
• 35: include in overnight lodging rental contracts language
requiring that unit be available for overnight rental at least 45 weeks per year; and
• 36 (original): coordinate with Sheriff to address all public safety
needs associated with the resort and development process.
In his February 7, 2012 memorandum, Mr. Dewey argues:
“DCC 22.36.020(A)(3)’s requirement of substantially exercising the conditions of
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the permit do not give an exception to conditions that apply to what must be done
before a final plat is filed or to ‘continuing’ obligations. Such exception language
is simply not in the Code.
If Loyal Land is trying to claim initiation of use based on ‘substantially exercised’
Conditions of Approval of the CMP, all of those conditions apply to that test.
DCC 22.36.020(A)(3) makes clear that the test of whether the permit has been
initiated is in the context of all the conditions. For example, one of the tests is
whether ‘any failure to fully comply with the conditions is not the fault of the
applicant.’
Just because there has been so little progress in the development that the
requirements of most conditions have not been triggered does not excuse
compliance with those conditions. Otherwise, an applicant could just sit on a
development approval and be careful not to do enough that most conditions would
not get triggered.” (Underscored emphasis in original.)
The Hearings Officer finds Mr. Dewey’s argument is not persuasive. First, there is no language
in Section 22.36.020(A)(3) that requires all conditions to be substantially exercised. Rather, it
refers to “the” conditions. For the same reasons set forth in the findings above concerning who is
authorized to request a declaratory ruling, I find the term “the” does not mean “all.” Second, I
find unreasonable Mr. Dewey’s supposition that any interpretation other than the one he
proposes would result in destination resort developers “sitting on” a development approval and
intentionally failing to satisfy conditions of approval. Rather, his interpretation could result in the
resort developer being unable to “initiate” the use until the entire development is completed --
and within two years from the date of CMP approval. I cannot find any support for this scenario
in Section 22.36.020 or the DR Zone provisions.
The Hearings Officer finds the relevant conditions of approval for the subject initiation of use
declaratory ruling are limited to those with which the CMP required compliance before FMP
approval . I find those conditions include Conditions of Approval 3, 8, 10, 14(B), 15, 19, 22, 30,
36 (original), and 37. However, I note that the applicant states, and Hearings Officer Briggs
found in her decision approving the FMP, that Conditions of Approval 3, 8, 9, 11, 13, 14A, 14B,
15, 24, 30, and 37, have been met. For this reason, I will review the combined 16 conditions.
b. “Substantially Exercised.” The parties disagree as to what is meant by a “substantially
exercised” condition of approval. As discussed above, when the meaning of an ordinance or
statutory provision is not clear, the Hearings Officer must determine the intent of the drafters
through the three-step analysis first set forth in PGE v. Bureau of Labor and Industries , cited
above. Turning first to the text, the terms “substantially” and exercised not defined in Title 22.
The ordinary definitions of these terms include:
• “substantially” – “extensively, considerably, largely;”
• “exercise” – “to put into action; use; to carry out; perform; to put
into practice.
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Webster’s New World Dictionary and Thesaurus, Second Edition. Applying these definitions to
Section 22.36.020(3), the term “substantially exercised” connotes performing or carrying out a
condition of approval to a significant degree but not completely. That interpretation is supported
by the context of this term – i.e., the rest of Paragraph (A)(3) – which requires the applicant to
demonstrate that any failure to “fully comply” with the conditions was not the applicant’s fault.
In other words, the Hearings Officer finds the drafters intended “substantially exercised” to mean
that the applicant must show the conditions were complied with to a significant degree, but not
necessarily fully complied with. Therefore, I find it is appropriate to apply this interpretation.
Before turning to an analysis of the relevant conditions of approval, the Hearings Officer finds
one additional issue must be resolved. Mr. Dewey argues the determination of whether a
condition of approval in the CMP has been “substantially exercised” must take into account
circumstances that occurred after the CMP approval was affirmed and the FMP was submitted
and approved. For example, Mr. Dewey argues the very foundation of the resort approval has
been removed because of, for example, the transfer of most of the resort property from TRC to
the applicant and TRC’s rescission of a water right agreement. While these events may be
relevant in later steps in the destination resort development process – when the applicant or its
successor seeks approval for actual resort development -- I find the “substantially exercised”
determination must be based on the language of the condition – i.e., what action was required to
be done and by when.
Condition 3:
“Applicant shall provide a signed grant of right-of-way from the U.S. Department of the Interior
– Bureau of Land Management for an access easement connection to U.S. Highway 126, prior to
submission of a Final Master Plan application.”
Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 10 that the
applicant’s predecessor TRC “has submitted the signed right-of-way agreement,” and therefore
this condition was satisfied. In his February 7, 2012 memorandum, Paul Dewey argues the
applicant cannot rely on the BLM right-of-way agreement submitted by TRC because it “is
personal to” TRC and does not run with the land. The Hearings Officer finds I need not reach
this issue because the condition of approval required that the signed grant of right-of-way be
submitted “prior to submission of a Final Master Plan application” and the record indicates that
action was taken. Therefore, I find Condition 3 was fully complied with no later than April 21,
2008 when TRC’s modified FMP application was submitted.
Condition 8:
“Plan review and approval of water supply plans for phase 1 will be required by Oregon
Department of Human Services – Drinking Water Program (DHS-DWP) prior to Final Master
Plan Approval.”
Hearings Officer Briggs’ decision approving the FMP states at page 11:
“The applicant has received approval from the Oregon Department of Human
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Services for the Final Master Plan for Thornburgh Resort. It has been approved
as a ‘Master Plan’ by DHS-DWPO and therefore will not require further review
at the different levels of development so long as they work with a registered
professional engineer.”
Again, the Hearings Officer finds I need not reach the question of whether the water master plan
is “personal” to TRC because the condition of approval required that the plan be approved by
DHS “prior to Final Master Plan approval,” and the record indicates that action was taken by
DHS before Hearings Officer Briggs’ approved the FMP. Gould appealed Hearings Officer
Briggs’ decision approving the FMP to LUBA which remanded the decision. The Court of
Appeals affirmed LUBA’s remand, and as of the date of this decision the remand had not been
initiated. Consequently, the FMP approval is not final. However, Gould’s appeal did not
challenge Condition of Approval 8, and as discussed in detail in the findings below, LUBA’s
remand, affirmed by the Court of Appeals, was limited to the Thornburgh wildlife mitigation
plan. Therefore, the Hearings Officer finds nothing in the remand precludes my finding that
Condition of Approval 8 was fully complied with no later than April 21, 2008 when TRC’s
modified FMP application was submitted.
Condition 9:
“Applicant shall designate the location of all utility lines and easements that burden the property
on the FMP.”
Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 11 that the
applicant’s predecessor TRC:
“* * * has submitted a map with the Modification of Application showing the
location of all utility lines an easements that currently burden the property.”
Based on this finding, which was not challenged on appeal, the Hearings Officer finds Condition
of Approval 9 was fully complied with no later than April 21, 2008 when TRC’s modified FMP
application was submitted.
Condition 10:
“Applicant shall comply with all applicable requirements of state water law as administered by
OWRD [Oregon Water Resources Department] 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 * * *.” 10
Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 11 that the
applicant’s predecessor TRC:
“* * * obtained approval of a water right application. See MA 08-6, Ex. K2. It
10 Condition 10 requires updated water right documentation with each resort development phase.
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will become final upon a showing that the required mitigation has been provided
for. A condition of approval is imposed to require documentation that mitigation
and a water rights permit has [sic] been issued for each development phase.”
Opponents argue the applicant cannot rely on TRC’s obtaining a water right prior to FMP
approval because TRC subsequently rescinded an agreement to obtain water rights for the resort.
The Hearings Officer disagrees. As discussed above, LUBA’s remand of the FMP was limited to
the Thornburgh wildlife mitigation plan. I find nothing in the remand that precludes my finding
Condition of Approval 10 was fully complied with no later than April 21, 2008 when TRC’s
modified FMP application was submitted. And as discussed throughout this decision, whether
the applicant ultimately can secure the necessary water rights to develop the resort is not the
question before me in this declaratory ruling proceeding.
Condition 11:
“At the time of submission for Final Master Plan (FMP) approval, Applicant shall include a
written plan for entering into cooperative agreements with owners of existing wells within a two-
mile radius of Applicant’s wells. The plan shall include a description of how Applicant 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 Applicant under which Applicant will provide
indemnification to well owners in the event of actual well interference as a result of Applicant’s
water use. The plan shall remain in effect for a period of five years following full water
development by Applicant.”
Hearings Officer Briggs’ decision approving the Thornburgh FPM states at pages 11 and 12 that
the applicant’s predecessor TRC:
“* * * has submitted its written plan for entering into cooperative agreements
with owners of existing wells within a two-mile radius of the resort. The plan
describes how the applicant will provide notice to affected well owners including
the terms and conditions under which well owners may enter into an
indemnification agreement with Thornburgh in the event of actual interference as
a result of the resort owner’s water use. Specific terms and conditions of the plan
were developed in cooperation with County staff and the Oregon Water
Resources Department. COA 11 is satisfied.”
Based on this finding, which was not appealed, the Hearings Officer finds Condition of Approval
11 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application
was submitted.
Condition 13:
“Applicant shall specify all recreational facilities within the proposed resort as part of the final
master plan submittal.”
Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 12 that the
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applicant’s predecessor TRC:
“* * * has specified the recreational facilities within the proposed resort. They
have also shown locations of recreational facilities along with the layout of trail
heads, trails and viewpoints. COA 13 is satisfied.”
In her appeal from the FMP approval Gould challenged Hearings Officer Briggs’ finding. LUBA
found this challenge without merit. Therefore, based on Hearings Officer Briggs’ finding the
Hearings Officer finds Condition of Approval 13 was fully complied with no later than April 21,
2008 when TRC’s modified FMP application was submitted.
Condition 14A:
“Applicant and its successors shall do the following to ensure that all open space used to assure
the 50% open space requirement of Section 18.113.060(D)(1) is maintained in perpetuity:
A. Applicant shall submit for approval, as part of the Final Master Plan, a delineation of the
Open Space that is substantially similar to the area shown in the Open Space Plan
submitted as Ex. 9, B-14 to the ‘Memorandum of Applicant,’ in a response to public
comments dated September 28, 2005. Open Space shall be used and maintained as ‘open
space areas’ as that term is used in DCC 18.113.030(E).”
Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 12 that the
applicant’s predecessor TRC:
“* * * has proposed approximately 1,293 acres of open space (Exhibit A1.1 of
MA-08-6). This is divided into three categories, golf open space, common open
space and buffer open space. The acreage that is included as open space
constitutes approximately 66% of the entire acreage of the resort. The map
submitted as part of the Modification of Application is substantially the same as
the Open Space map that was approved as part of the CMP. COA 14A is
satisfied.”
Based on this finding, which was not appealed, the Hearings Officer finds Condition of Approval
14A was fully complied with no later than April 21, 2008 when TRC’s modified FMP
application was submitted.
Condition 14B:
“The CC&R’s, as modified and submitted to the County on December 20, 2005, shall be further
revised such that Section 3.4 retains the first two sentences, but then the balance of 3.4 is
replaced with the following:
At all times the Open Space shall be used and maintained as ‘open space areas.’ The foregoing
sentence is a covenant and equitable servitude, which runs with the land in perpetuity and is for
the benefit of all of the Property, each Owner, The Declarant, and the Association, and the Golf
Club. All of the foregoing entities shall have the right to enforce covenant and equitable
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servitude. This Section 3.4 may not be amended except if approved by affirmative vote of all
Owners, the Declarant, the Golf Club and the Association.”
Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 13 that the
applicant’s predecessor TRC:
“* * * has submitted CC&R’s which contain the above-referenced language.
See M 07-2, Ex. H4. COA 14B is satisfied.”
Based on this finding, which was not appealed, the Hearings Officer finds Condition of Approval
14B was fully complied with no later than April 21, 2008 when TRC’s modified FMP
application was submitted.
Condition 15:
“Applicant shall obtain an approved Water Pollution Control Facility (WPCF) permit (as
described in DCC 18.113.070(L) prior to application for Final Master Plan.”
Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 13 that the
applicant’s predecessor TRC:
“* * * has obtained the necessary permit from the Department of Environmental
Quality. It is included as Exhibit J1 and is permit number 102900, COA 15 is
satisfied.”
As with the water master plan approval addressed in Condition of Approval 8 discussed above,
opponents argue the WPCF permit is “personal” to TRC and cannot be relied upon by the
applicant to demonstrate initiation of the CMP. Again, the Hearings Officer finds I need not
reach this question because the condition of approval required that the WPCF permit be obtained
prior to application for FMP approval, and the record indicates that action was taken before
Hearings Officer Briggs’ approved the FMP. In addition, because LUBA’s remand of the FMP
was limited to the wildlife mitigation plan, I find nothing in the remand that precludes my
finding Condition of Approval 15 was fully complied with no later than April 21, 2008 when
TRC’s modified FMP application was submitted.
Condition 19:
“Applicant shall implement a ‘Wildfire/Natural Hazard Protection Plan’ for the resort, as
identified in Ex. 15,B-29 of the burden of proof statement. Prior to approval of the Final Master
Plan and each subdivision and site plan, Applicant shall coordinate its evacuation plans through
that development phase with the Deschutes County Sheriff’s Office and the Redmond Fire
Department. At the same time, Applicant shall also coordinate its plans for the movement of
evacuees over major transportation routes with the Oregon State Police and the Oregon
Department of Transportation.”
Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 14 that the
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applicant’s predecessor TRC:
“* * * has submitted a revised fire evacuation plan which shows the fire
evacuation routes during the various phases of the development. A letter from
former Deschutes County Sheriff, Les Stiles, and a letter from Tim Moor, Fire
Chief of the Deschutes County Rural Fire Protection District #1is included,
stating the evacuation plan is adequate for this stage of the development. A
condition of approval is imposed to ensure that it is addressed in each
development phase.”
Based on this finding, which was not appealed, the Hearings Officer finds Condition of Approval
19 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application
was submitted.
Condition 22:
“Applicant shall submit final covenants, conditions and restrictions to the County prior to Final
Master Plan approval. The final covenants, conditions and restrictions adopted by the developer
and amendments thereto shall conform in all material respects to this decision and the
requirements of the DCC.
Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 15 that the
applicant’s predecessor TRC:
“* * * has submitted covenants, conditions and restrictions. The CC&R’s
comply with the requirements of the Deschutes County Code. A condition of
approval is imposed to require conformance with the FMP CC&R’s through the
life of this development.”
Based on this finding, which was not appealed, the Hearings Officer finds Condition of Approval
22 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application
was submitted.
Condition 24:
“Applicant shall complete annexation of the property in any area of development into Deschutes
County Rural Fire Protection District No 1 before commencing combustible construction in the
area.”
Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 15 that the
applicant’s predecessor TRC:
“* * * has submitted a letter from the Deschutes County Rural Fire Protection
District No 1 stating that the property has been annexed to the district.”
Although compliance with Condition of Approval 24 was not required prior to submission of the
FMP for approval, the Hearings Officer finds on the basis of Hearings Officer Briggs’ findings,
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which were not appealed, that Condition of Approval 24 was fully complied with no later than
April 21, 2008 when TRC’s modified FMP application was submitted.
Condition 30:
“Applicant shall submit a detailed traffic circulation plan, delineating resort access roads,
resort internal circulation roads and resort secondary emergency ingress/egress roads, prior to
Final Master Plan Approval.”
Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 16 that the
applicant’s predecessor TRC:
“* * * has submitted the required plan. COA 30 is satisfied.”
Based on this finding, which was not appealed, the Hearings Officer finds Condition of Approval
30 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application
was submitted.
Condition 36:
“Applicant shall coordinate with the Sheriff’s Office and its designated representative to address
all public safety needs associated with the resort and the development process.”
Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 17 that:
“A letter from the Deschutes County Sheriff’s Office has been submitted as
attachment F6. The applicant has coordinated public safety planning for the
resort with the Sheriff’s Office through the ‘Public Safety Protection Report for
Thornburgh Destination Resort’ attached as Exhibit F5.”
Although compliance with Condition of Approval 36 was not required prior to submission of the
FMP for approval, the Hearings Officer finds on the basis of Hearings Officer Briggs’ findings,
which were not appealed, that Condition of Approval 36 was fully complied with no later than
April 21, 2008 when TRC’s modified FMP application was submitted.
Condition 37 (Condition 36 in Board’s Decision on Remand):
“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 the Applicant’s final legal argument, dated January 3,
2006, as show below. * * * Applicant shall present the corrected Phasing Plan and Overnight
and Density Calculations chart, consistent with this condition, during the Final Master Plan
approval process.”
Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 18:
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“The corrected Phasing Plan and Overnight and Density Calculations chart has
been submitted as part of the FMP application. COA 37 is satisfied.”
Based on this finding, which was not appealed, the Hearings Officer finds Condition of Approval
37 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application
was submitted.
Condition 38 (Condition of Approval 37 on Remand):
“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.” (Emphasis added.)
The board’s decision approving the CMP on remand explained the imposition of this condition in
relevant part as follows:
“In terms of appropriate procedure, the Court of Appeals state, ‘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 wildlife mitigation plans 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 DCC18.113.070(D) is feasible.
Consistent with the Court of Appeals’ decision, the Board adopts Condition No.
26 [sic] below, which postpones determination of compliance with
DCC18.113.070(D) until the final master plan approval step and infuses that
process with the same participatory rights as those allowed in the CMP approval
hearing.”
Hearings Officer Briggs’ decision approving the Thornburgh FMP states in relevant part at 19:
“In its decision on remand, the BOCC deferred a finding on compliance with this
standard [Section 18.113.070(D) – no net loss or degradation of fish and wildlife
resources] to the FMP. Gould III, Condition 37, page 10. Thus, the meaning of the
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standard, and the sufficiency of the evidence to address it, was the major focus of
the parties in the FMP proceedings.” (Emphasis added.)
Based on the board’s and Hearings Officer Briggs’ decisions, the Hearings Officer finds
compliance with Section 16.113.070(D) was not required for CMP approval, and therefore
Condition 38 (Condition 37 on remand) is not relevant to the question of whether the use
permitted by the CMP approval was initiated.
The applicant argues the use permitted by the CMP approval also was initiated by TRC’s seeking
and obtaining FMP approval and defending that approval on appeal – i.e., undertaking the
second step of the three-step destination resort development process. While the Hearings Officer
cannot argue with the logic of this argument, I find it is inapposite because there was no
condition of CMP approval requiring the filing of the FMP, and therefore it could not be
“substantially exercised.”
2. Any Failure to Fully Comply with the Conditions is Not the Fault of the Applicant.
Because the Hearings Officer has found that all relevant CMP conditions of approval not only
have been substantially exercised but were fully complied with, I find this second prong of the
initiation requirement in Section 22.36.020(A)(3) is not applicable to the applicant’s proposal.
Based on the foregoing findings, the Hearings Officer finds the relevant conditions of CMP
approval have been substantially exercised and fully complied with, and therefore I find the use
permitted by the CMP approval has been initiated.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
DECLARES that the use approved in the Thornburgh Destination Resort Conceptual Master
Plan approval (CU-05-20) has been initiated.
Dated this 10 th day of April, 2012.
Mailed this 10 th day of April, 2012.
____________________________
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED BY A PARTY.
Community Development Department
PlannIng ClvIslonBuik:llng Safety DIvIsion Environmental Sols DIvIsion
117NW Lafayette Avenue Bend Oregon 97701-1925
(541}388-6S7S FAX (541}385-1764
. http://www.co.deschutes.or.us/cdd/
STAFF REPORT
FILE NUMBER: DR-11-8
. . ... HEARING DATE: Tue$day, February 7, 2012, at~:30 p~m.inthe Barnes and Sawyer
Rooms of the Deschutes SelVrC8s Center,1300 N.W. Wall Street,
Bend. .
. APPLICANT: LoyalLand,LLC
27333N. galt! Way·
Scottsdale, AZ 85262·
PROPERTY OWNERS: Loyal Land, LLC, as to tax lots 5000, 5001, 5002, noo, 7701, 7800
and 7900
Agnes DeLashmutt, as to Tax Lot 8000
ATTORNEY FOR
. APPLICANT: Steven L Pfeiffer, Attorney at .Law
Perkins Coie .
1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128
REQUEST: An application for a Declaratory Ruling to determine whether the
conceptual master plan for Thornburgh Destination Resort has been
initiated. .
STAFF CONTACT: Kevin Harrison, Principal Planner
I. APPLICABLE CRITERIA:
Title 22 of the Deschutes County Code, Development Procedures
Chapter 22.36, Limitation on Approvals
22.36.020, Initiation of Use.
Chapter 22.40, Declaratory Ruling
22.40.010, Availability of Declaratory Ruling
22.40.020, Persons Who May Apply
22.40.030, Procedures
22.40.040, Effect of Declaratory Ruling
22.40.050, Interpretation
Quality Services Performed with Pride
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II. BASIC FINDINGS:
A. LOCATION: The subject property is at 11800 Eagle Crest Boulevard, Redmond, and is
identified on County Assessor's Map 15-12 as tax lots 5000, 5001, 5001, 5002, 7700,
7701, 7800, 7801, 7900 and 8000.
B. ZONING: The subject property is zoned Exclusive Farm Use (EFU-SC). It is also within
the Destination Resort (DR) Overlay Zone. The property is designated agriculture by the
Deschutes County Comprehensive Plan.
C. SITE DESCRIPTION: The subject property is approximately 1,970 acres, and is
vegetated by juniper woodland. The property covers the south and west portions of the
geologic feature know as Cline Buttes. The property contains three dwellings and a bam
and is currently used for extensive livestock grazing and open space.
D. PROPOSAL: The applicant has submitted an application for a declaratory ruling to
determine whether the conceptual master plan for the Thornburgh Destination Resort
approved under County file no. CU-05-20 has been initiated. The applicant has
submitted a burden of proof statement addressing the criteria under section 22.36.020
listed above, including the actions taken to establish the resort.
E. LOT OF RECORD: The subject property was recognized as containing legal lots of
record in file no. CU-05-20 via file nos. LR-91-56, LR-98-44, MP-79-159, CU-79-159 and
CU-91-68.
F. REVIEW PERIOD: This application was submitted on November 1, 2011. The
applicant was mailed an incomplete letter on November 8, 2011, and responded on
December 22, 2011. The application was deemed complete and accepted for review on
December 22, 2011.
G. LAND USE HISTORY: The history of the conceptual master plan for the resort is as
follows:
1. Conceptual master plan (CU-05-20) denied by Hearings Officer and appealed to
Board of County Commissioners (BCC) by file number A-05-i6.
2. BCC approved CU-05-20 on May 10, 2006.
3. CU-05-20 appealed to Land Use Board of Appeals (LUBA) under LUBA Nos.
2006-100 and 101. LUBA decision filed on May 14, 2007.
4. LUBA decisions appealed to Court of Appeals (COA). COA issued decision
(A 135856) on November 7, 2007. The result is a remand of the County's
decision on CU-05-20.
5. BCC issued decision on remand {Document No. 20OS-15i} on April 9,
20OS.
6. BCC decision on remand appealed to LUBA under LUBA No. 2008-068. LUBA
affirmed the BCe decision on September ii, 2008.
7. LUBA No. 2008-068 appealed to COA (A140139), which affirmed LUBA's
decision on April 22, 2009.
8. COA deciSion appealed to Oregon Supreme Court (8057541), which declined
review on October 9, 2009.
DR-11-7 2
9. COA issued Appellate Judgment on December 10, 2009, and lUBA responded
with its notice of Appellate Judgment on December 15, 2009, at which time all
appeal rights are exhausted on CU-05-20.
The history of the final master plan for the resort is as follows:
1. Final master plan M-07 -21MA-08-6 approved by County on October 8, 2008.
2. County decision on M-07-2/MA-08-6 appealed to lUBA under lUBA No. 2008
203. lUBA remanded the County decision.
3. lUBA No. 2008-203 appealed to COA (A143430). which affirmed lUBA's
decision on February 24, 2010.
4. lUBA issued Appellate Judgment on August 17, 2010, remanding County's
decision on M-07-2/MA-08-6. No further action on the final master plan has been
taken.
Ill. CONClUSIONARY FINDINGS:
Chapter 22.40, Declaratory Ruling
1. Section 22.40.010. Availability of declaratorv ruling.
A. Subject to the other provisions of Dee 22.40.010, there shall be available
for the Counqrs comprehensive plans, zoning ordinances, the subdivision
and partition ordinance and DeC Title 22 a process for:
3. Determining whether an approval has been Initiated or considering
the revocation of a previously issued land use permit, quasiwjudlcial
plan amendment or zone change;
Such a determination or interpretation shall be known as a lidec/aratory
ruling" and shall be processed in accordance with Dee 22.40. In all cases,
as part of making a determination or interpretation the Planning Director
(where appropriate) or Hearings Body (where appropriate) shall have the
authority to declare the rights and obligations of persons affected by the
ruling.
FINDING: The applicant is requesting a determination of whether the use approved
under CU-05-20 has been initiated.
B. A declaratory ruling shall be available only in instances involving a fact
specific controversy and to resolve and determine the particular rights and
obligations of part/cular parties to the controversy. Declaratory
proceedings shall not be used to grant an advisory opinion. Declaratory
proceedings shall not be used as a substitute for seeking an amendment of
general applicability to a legislative enactment.
FINDING: The request for the declaratory ruling is fact-specific, to determine whether
the conditional use permit for the conceptual master plan for Thomburgh Destination
Resort has been initiated. The applicant is not requesting an advisory opinion or an
amendment to the applicability of a legislative enactment.
DR-11-7 3
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C. Declaratory rulings shall not be used as a substitute for an appeal of a
decision in a land use action or for a modification of an approval. In the
case of a ruling on a land use action a declaratory ruling shall not be
available until six months after a decision in the land use action is final.
FINDING: The applicant is not substituting the declaratory ruling for an appeal. The
decision on CU-05-20 became final on December 10, 2009; the applicant submitted the
declaratory ruling on November 1, 2011.
D. The Planning Director may refuse to accept and the Hearings Officer may
deny an application for a declaratory ruling if:
1. The Planning Director or Hearings Officer determines that the
question presented can be decided in conjunction with approving or
denying a pending land use application or if in the Planning Director
or Hearing Officer's judgment the requested determination should
be made as part of a decision on an application for a quasi-judicial
plan amendment or zone change or a land use permit not yet filed;
or
2. The Planning Director or Hearings Officer determines that there is
an enforcement case pending in district or circuit court in which the
same issue necessarily will be decided as to the applicant and the
applicant failed to file the request for a declaratory ruling within two
weeks after being cited or served with a complaint
The Planning Director or Hearings Officer's determination to not accept or
deny an application under DCC 22.40.010 shall be the County's final
decision.
FINDING: Staff finds that the question cannot be decided in conjunction with a land use
permit or a plan amendment or zone change. There is no enforcement case pending on
this matter.
2. Section 22.40.020. Persons who may apply.
A. DCC 22.08.010(8) notwithstanding. the following persons may initiate a
declaratory ruling under DCC 22.40:
1. The owner of a property requesting a declaratory ruling relating to the
use of the owner's property.
2. In cases where the request is to interpret a previously issued quasi·
judicial plan amendment. zone change or land use pennit, the holder of
the permit; or
3. In all cases arising under DCC 22.40.010. the Planning Director.
FINDING: The applicant is the owner of tax lots 5000, 5001, 5002, 7700, 7701, 7800,
7801 and 7900, which represents the majority of the property covered by CU-05-20.
Therefore, staff finds that the applicant meets DCC 22.40.020(A)(1). The remaining
property in the resort covered by CU-05-20 is tax lot 8000, which is owned by Agnes
DR-11-7 4
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Delashmutt. Pursuant to DCC 22.36.050(A}, a land use permit runs with the land and is
transferrable to an applicant's successor in interest. Therefore, staff finds that the
applicant meets DCC 22.40.020(A)(2). The representative for Agnes Delashmutt
submitted a letter questioning whether loyal land can unilaterally apply for this
declaratory ruling. In its supplemental burden of proof, incorporated herein by reference,
the applicant contends that, under the Hearings Officer's ruling in County File Nos.
A·10·2/NW·OQ·1, incorporated herein by reference, the County does not err in
accepting an application signed by one property owner where multiple properties, and
owners, may exist. Staff agrees. For these reasons, staff believes that the applicant
has made a valid application for a declaratory ruling.
B. A request for a declaratory ruling shall be Initiated by filing an application
with the planning dIvIsion and, except for applIcations initiated by the
Planning Director, shall be accompanied by such fees as have been set by
the Planning Division. Each application for a declaratory ruling shall
include the precise question on which a ruling is sought. The applicant
shall set forth whatever facts are relevant and necessary for making the
determination and such other information as may be required by the
Planning Division.
FINDING: The applicant filed the necessary declaratory ruling application and paid the
required fee. The question posed by the applicant is whether the use approved under
CU·05.20 has been initiated.
3. Section 22.40.030, Procedures.
Except as set forth in DCC 22.40 or in applicable proviSions of a zoning
ordinance, the procedures for making declaratory rulings shall be the same
as set forth in DCC Title 22 for land use actions. Where the Planning
Division is the applicant, the Planning DMsion shall bear the same burden
that applicants generally bear In pursuing a land use action.
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FINDING: The declaratory ruling application is being processed according to Title 22.
Notice of the public hearing was published in The Bend Bulletin on January 8, 2012.
Additionally, notice of the hearing was sent to all owners within the resort and all
property owners within 750 feet of the resort's boundaries.
4. Section 22.40.040, Effect of declaratory ruling.
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j A. A declaratory ruling shall be conclusive on the subject of the ruling and
bind the partles thereto as to the determination made.
B. DeC 22.28.040 notwithstanding, and except as specifically aI/owed therein,
parties to a declaratory ruling shall not be entitled to reapply for a
declaratory ruling on the same question.
C. Except where a declaratory ruling is made by the Board of County
Commissioners, the ruling shall not constitute a policy of Deschutes
County.
DR-11-7 5
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FINDING: The declaratory ruling decision will be conclusive on the issue of whether the
use approved under CU-05-20 has been initiated. No reapplication is allowed and this
decision does not constitute a policy of the County.
5. Section 22.40.050, Interpretation.
Interpretations made under DeC 22.40 shall not have the effect of
amending the interpreted language. Interpretation shall be made only of
language that Is ambiguous either on its face or in its application. Any
interpretation of a provision of the comprehensive plan or other land use
ordinance shall consider applicable provisions of the comprehensive plan
and the purpose and Intent of the ordinance as applied to the particular
section in question.
FINDING: No interpretation of the comprehensive plan or zoning ordinance is being
considered as part of this declaratory ruling request.
Chapter 22.36, Limitations on Approval.
1. Section 22.36.010, Expiration of approval.
FINDING: Section 22.36.010 (O) states that: "A determination of whether a land use has
been initiated shall be processed as a declaratory ruling." Consequently, the applicant
has applied for a declaratory ruling for the project under DeC Chapter 22.40 and Section
22.36.020 of Title 22.
2. Section 22.36.020, Initiation of use.
A. For the purposes of DeC 22.36.020, development action undertaken under
a land use approval described in DeC 22.36.010, has been "initiated" if It Is
determined that:
1. The proposed use has lawfully occurred;
2. Substantial construction toward completion of the land use approval
has taken place; or
3. Where construction is not required by the approval, the conditions
of a permit or approval have been substantially exercised and any
failure to fully comply with the conditions is not the fault of the
applicant.
B. For the purposes of DCe 22.36.020, "substantial construction" has
occurred when the holder of a land use approval has phYSically altered the
land or structure or changed the use thereof and such alteration or change
is directed toward the completion and is sufficient in tenns of time, labor or
money spent to demonstrate a good faith effort to complete the
development
FINDING: The proposed resort has not been constructed. The applicant alleges that
the conditions of approval for CU-05-20 have been substantially exercised and that any
failure to fully comply with the conditions is not the fault of the applicant. Staff agrees,
for the reasons stated below.
DR-11-7 6
By way of context, staff notes that destination resort approval takes place within a three
(3)-step process. The first step is obtaining approval of a Conceptual Master Plan
(CMP). The second step is obtaining approval of a Final Master Plan (FMP). The third
step is obtaining approval of individual site plans and/or tentative subdivision plans. The
CMP approval included 38 conditions of approval. Some of the conditions of approval
must be satisfied prior to final FMP approval. Others carry through to later, specific,
development proposals that must be submitted for each phase of the project. In her
decision on the FMP (County file nos. M-07-2IMA-08-6, incorporated herein by
reference), the Hearings Officer found that the applicant had satisfied CMP conditions of
approval 3, 8, 9, 11, 13, 14A, 14B, 15, 24, 30, 37 and 38. Other conditions were
imposed on the FMP approval that ensure compliance throughout the development
process and, in some cases, through the life of the development itself. The only
condition of approval the applicant was required to meet before FMP approval that has
not been satisfied is condition #38, relating to submittal of a wildlife mitigation plan. The
applicant submitted the plan but LUBA remanded the County's findings on that plan's
consistency with OCC 18.113.070(0).1
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! The applicant also asserts that the use has been initiated by obtaining approval of the1 FMP and defending it on appeal. Although LUBA remanded the County's approval of
the FMP, the remand did not take issue with the Hearings Officer's conclusion as to
satisfaction of conditions of approval, except condition #38.
Finally, the applicant al/eges that circumstances outside of the applicant's control
prevented the applicant from making additional progress on the project. These
circumstances include prolonged delays caused by appeals of the CMP and FMP and
the foreclosure and change in ownership of the property.
Based upon the preceding, staff believes that the conditions of approval for the CMP
have been substantially exercised and that the applicant has shown a good faith effort to
comp/ete the development Moreover, staff believes that any failure to fully comply with
the conditions is not solely the fault of the applicant.
IV. RECOMMENDATION:
Staff believes the applicant has met the burden of proof for this declaratory ruling and
that the use authorized under CU-05-20 has been initiated.
V. RECOMMENDED CON On-ION OF APPROVAL:
1. The applicant shall meet all conditions of approval of M-07 -2/MA-08-6.
Dated this 17th day of January, 2012 Mailed this 17th day of January, 2012
DR-11-1 7
Community Development Department
Planning Division Building safety DivIsion Environmental Soil. Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
CERTIFICATE OF MAILING
FILE NUMBER: DR-11-8
DOCUMENT MAILED: Staff Report
MAPITAX LOT NUMBERS: 15·12, TAX LOTS 5000. 5001,
5002, 7700. 7701, 7800, 7801
7900 and 8000
I certify that on the 16111 day of January, 2012 the attached notice(s)/report(s), dated
January 16, 2012. was/were mailed by first class mail, postage prepaid, to the person(s) and
address(es) set forth on the attached list.
Dated this 16111 day of January, 2012.
COMMUNITY DEVELOPMENT DEPARTMENT
By: Sher Buckner
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Steven L. Pfeiffer, Attorney at Law
Perkins Coie, lLP
1120 NW Couch Street
Tenth Floor
Portland, OR 97209
David J. Petersen, Attorney at Law
Tonkon Torp, LLP
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, OR 97204
Paul Dewey. Attorney at Law
1539 NW Vicksburg
Bend, OR 97701
(via email)
Agnes DeLashmutt
4048 NW Xavier
Redmond, OR 97756
Hearings Officer Karen Green Loyal Land, LLC
27333 N. 961h Way
Scottsdale, AZ 85262
Quality Services Performed 'witlt Pride
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