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HomeMy WebLinkAboutStaff Report - RemandCommunity Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-::925 (541)388-6575 FAX (541)385-'764 http: //www,co.deschutes.or. usj cdd/ MEMORANDUM December 31, 2007 To: Deschutes Board of County Commissioners From: Ruth Wahl, Associate Planner Subject: Procedure for review of Conceptual Master Plan for Thornburgh Resort following LUBA and Court of Appeals remands BACKGROUND On May 10, 2006, the Deschutes County Board of County Commissioners ("Board") approved the Conceptual Master Plan (CMP) for the Thornburgh Resort (File No. CU -05-20). The County's final approval was appealed to the Land Use Board of Appeals(LUBA) and portions of the LUBA decision were appealed to the Oregon Court of Appeals. Ultimately the County's decision on the CMP has been remanded back to the Board. The remands of these decisions are outlined below.Because the Board of County Commissioners (Board) were the final decision making body for this decision, the remand findings are required to be made by the Board. REVIEW A Conceptual Master Plan provides the framework for the destination resort. The purpose of the CMP'is to ensure that the requirements of the County Code are met (DCC 18.113). There are many criteria set out in this portion of the code, most of which have been met by the applicant. There were 6 main points on which LUBA and the Court of Appeals remanded the decision back to Deschutes County. It is the Board's responsibility to address these points and correct the County's Findings. These 6 points are as follows: 1. OVERVIEW: The Deschutes County Code (DCC) 18.113.060 (D)(2), specifies that a ratio of 2:1 be maintained for individually -owned residential units to visitor -oriented overnight lodging. The Thornburgh phasing plan shows a total of seven phases (Phase A through G) and indicates where on the destination resort property each phase of construction would occur. Each phase is made up of a number of pods and there are a total of 41 pods. To demonstrate that the development of each phase will maintain the 2:1 ratio requirement, Thornburgh also prepared an Overnight Density Calculations chart. If the destination resort is developed with the mix of hotel, residential, overnight and residential units shown on the Overnight and Density Calculations chart, the 2:1 ratio is maintained for each of the seven phases. (First Assignment of Error, page 11 of the LUBA remand) REMAND: LUBA remanded this portion of the CMP to Deschutes County because there are several inconsistencies in the phasing plan and the Overnight and Density Calculations chart. SUGGESTED CONDITION OF APPROVAL: Thornburgh shall modify the Overnight and Density Calculations chart presented to the Board at the appeal hearing on December 20, 2005 by replacing it with the Overnight and Density Calculations chart included at page 25 in Thornburgh's final legal argument to the Board. The 75 units of overnight lodging shown in the December 20, 2005 Overnight and Density Calculations table to be developed in Phase C shall be shown in the table to and shall be developed in Phase B, for a total of 150 units in Phase B. The Overnight and Density Calculations table will be corrected to show the. 50 hotel units will be developed in Phase D, where the Phasing Plan already shows the hotel will be developed. Additionally, the legend in the Phasing Plan will be corrected to show hotel and residential overnight lodging uses in Phase D. Thornburgh shall submit the corrected the Phasing Plan and Overnight and Density Calculations chart, consistent with this condition, during the Final Master Plan .approval process. 2. OVERVIEW: The Board found that Thornburgh could provide financial assurances for the 150 units of overnight lodging prior to recording the final plat for Phase A. This could mean that the applicant could potentially financially assure all the overnight units for Phase A without actually constructing them in Phase A. (Third Assignment of Error, page 21 of the LUBA remand) REMAND: The County's finding which allows the financial assurance of the 150 overnight lodging units is inconsistent with ORS 197.445(4)(b)(B) which requires that at least 50 of the overnight units "must be constructed prior to the closure of sale of individual lots or unit" M-07-2 2 SUGGESTED CONDITION OF APPROVAL: Each phase of the development shall be constructed such that the number of overnight lodging units meets the 150 overnight lodging unit and 2:1 ratio of individually owned units to overnight lodging units standard set out in DCC 18.113.060(A)(1) and 18.113.060(D)(2). Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by general public for at least 45 weeks per calendar year through a single central reservation and check-in service. As required by ORS 197.445(4)(b)(B), Thornburgh shall construct at least 50 units of overnight lodging prior to the closure of sale of individual Tots or units in the first phase. 3. OVERVIEW: The County failed to show that the phasing plan demonstrates how the proposed destination resort will maintain the 2:1 ratio limitation in Phase D. The County was in error to approve the CMP without requiring that the phasing plan be amended to reflect the 62.5 units that Thornburgh plans to construct in Phase D. (Fourth Assignment of Error, page 24 of the LUBA remand) REMAND: Provide a phasing plan which describes phases that are consistent with the 2:1 ratio requirement. SUGGESTED CONDITION OF APPROVAL: Thornburgh shall submit, at the time of the FMP application, a corrected Phasing Plan to show that the overnight dwelling units will be developed with the hotel units (in pod 30) during Phase D. 4. OVERVIEW: Deschutes County's Code requires that "access within the project shall be adequate to serve the project in a safe and efficient manner for each phase of the project." (DCC18.113.070(G)(3)(b) (Eighth Assignment of Error, page 39 of the LUBA remand) REMAND: The County failed to make findings that the CMP complies with DCC18.113.070(G)(3)(b). SUGGESTION: The Board should review the revised Vehicular Access and Circulation Plan in the record that illustrates how roads will provide access throughout each phase of the project and make findings with respect to if or how the new Plan meets the requirement of the Code. 5. OVERVIEW: Gould's Fifth Assignment of error was rejected by both LUBA and the Court of Appeals. The petitioner contended that the County violated the subsection (G) requirement that no lot shall exceed a project M-07-2 3 average of 22,000 square feet, where the County allowed lots over twice that size and even larger than one acre. LUBA and the Court of Appeals, however, added a discussion in response to Thornburgh's argument that the code allows flexibility in lot sizes. Both agreed that the 22,000 square foot lot size is an average maximum and the lot dimensions are a minimum and not a maximum. Both said, however, that Thornburgh does not have so much flexibility that it may, without amending the CMP, change the the lot sizes so much that they go beyond the lot dimension minimums established in the phaszing chart submitted into the record by Thornburgh and approved by the County. SUGGESTION: The Board should clarify that it does not allow Thornburgh the flexibility to subdivide the property into whatever size Tots it believes the terrain or high density housing type it desires, without first amending the CMP to allow such different lot sizes if that flexibility causes Thornburgh to go below the lot dimension minimums established in the chart submitted into the record by Thornburgh and approved by the County. 6. OVERVIEW: The Board adopted a finding that the applicant, "shall abide at all times with the Memo of Understanding (MOU) with the Bureau of Land Management (BLM), dated September 28, 2005, regarding mitigation of impacts on surrounding federal lands, to include wildlife mitigation and long-range trail planning and construction of a public trail system. The mitigation plan adopted by the Applicant in consultation with Tetra Tech, ODFW and the BLM shall be adopted and implemented throughout,-. the`Iife of the resort". The Court of Appeals found that the Thornburgh failed to include a Wildlife Mitigation Plan with the CMP so that the public had sufficient evidence in the record to show that any particular wildlife impact mitigation plan was feasible and that LUBA erred in not requiring the county to specify a particular mitigation plan and subject that plan to public notice and county hearing processes. SUGGESTION: See discussion below under STAFF RECOMMENDATION. STAFF RECOMMENDATION The county code requires that the county hold a hearing for any case remanded to the county. The code, however, gives the Board flexibility in deciding what issues are to be covered in that remand hearing and what type of hearing to hold. Thus, the Board could hold either an On -the -Record or a limited de novo hearing on all or one of the remand issues. M-07-2 4 Staff recommends that the Board of County Commissioners correct the remand errors with an On -the -Record Hearing with one exception. The Court of Appeals remanded the Wildlife Mitigation Plan on the basis that "the County's findings were inadequate to establish the necessary and likely content of any wildlife impact mitigation plan.... [And] code provision requires that the content of the mitigation plan be based on `substantial evidence in the record' not evidence outside the CMP record." The Board can choose to hear the Wildlife Mitigation Plan two ways: 1. The Board can conduct a de novo public hearing on the Wildlife Mitigation Plan only. The Court stated, as part of its decision, that, "without knowing the specifics of any required mitigation measures, there can be no effective evaluation of whether the project's effects on fish and wildlife resources will be completely mitigated" as required by DCC 18.113.070 (D). ORS 215.416 (9) requires that the county's decision approving the CMP explain "the justification for the decision based on the criteria, standards and facts set forth" in the decision. Second, that code provision requires that the content of the mitigation plan be based on "substantial evidence in the record" not evidence outside the CMP record. In this case, the particulars of the mitigation plan were to be based on future negotiation and not county hearing process." 2. The Board can conduct an On -the -Record hearing on this issue and defer the de novo public hearing on the Wildlife Mitigation Plan to the FMP phase of the approval process. The court also provided in it's remand to the County that, "The county's decision did not postpone determination that the project complies with DCC 18.113.070(D). The county might have, but did not, postpone determination of compliance with that standard until the, final master plan approval step and infuse that process with the same participatory rights as those allowed in the CMP approval hearing." M-07-2 5