Difficult hurdles stand before Central Oregon resort proposal | Opinion

On Oct. 9, the Oregon Land Use Board of Appeals released the latest in a series of decisions on the validity of Deschutes County’s approval of the Thornburgh Resort proposal, which has been pending since before 2006. The decision is 130 pages long and involved multiple issues and parties that cannot adequately be summarized in limited space. So, we confine ourselves to the reasons for LUBA’s remand, as well as a discussion of the role of water and Native American treaty rights in land use decision making today.

Under Oregon law, the Thornburgh proposal is classified as a “destination resort,” which exempts it from the usual prohibition of urban uses outside urban growth boundaries (UGBs). But the exemption is a narrow one and requires conformity with several safeguards to limit adverse effects.

First conceived in the 1980s, “destination resorts” were designed to promote the economy of rural Oregon outside the Willamette River Valley, where most of the state’s commercial and industrial centers were then located. If resorts like Salishan or Sunriver could be financed and sited, they would support employment opportunities and boost local economies and tax bases. However, the legislature also provided safeguards to assure that these resorts would not undermine nearby cities’ UGBs, interfere with natural resources, or become primarily “second home” developments for urbanites. This balance has largely worked.

The Thornburgh proposal has faced a host of challenges and challengers, beginning with Annunziata Gould, a Deschutes County resident, over its compliance with state law. Over the years, other individuals and organizations have joined. Most recently, the Confederated Tribes of the Warm Springs Reservation of Oregon (the “tribal group”) has added its name to the opposition, citing concerns that water use would compromise fishing rights guaranteed under an 1855 treaty with the United States. The tribal group asserted these water rights late in the review process, contending that it had insufficient time to analyze and prepare for the county proceedings.

As a result of these objections and others, LUBA and the Court of Appeals remanded the resort application to the county, with the Court of Appeals noting that remand would “allow an opportunity for the (tribal group) to present evidence of indigenous expertise and knowledge” for county commissioner consideration “that the (tribal group) asserts it did not have adequate time to present due to its late involvement in the proceedings.”

However, as the remand proceedings began, a representative of the applicant sent an “ex parte” letter to county commissioners – i.e., a direct communication with the decision-making body outside the hearing process, requesting, among other things, that the tribal group not be allowed to give that evidence. Other parties were not aware of that submission. The county commissioners agreed with the applicant’s position. LUBA found that this letter was an unlawful contact and necessitated a remand for other parties to address the topics it raised – particularly as to the appropriate scope of the remand – and required that the county consider this decision once again. LUBA also found two additional deficiencies, one in a required fish and wildlife mitigation plan and another in an economic analysis of the project following the removal of one of the golf courses.

The tribal group contended that the Court of Appeals decision contemplated tribal presentation of testimony and other evidence over the sufficiency of water to ensure that the group’s off-reservation treaty-protected fishing rights were protected. The applicant objected through the ex parte contact, and the county commissioners found, that the (tribal group) could have entered that testimony and evidence in the original hearing and proceedings on the mitigation plan and that it was, notwithstanding the Court of Appeals statement about applying its expertise on remand, too late in offering it in the most recent proceedings. Over one LUBA referee’s objection, LUBA upheld that denial.

As for the wildlife mitigation plan shortcoming, challengers convinced LUBA that the evidence put forth by the applicants did not justify the county’s conclusion that it met the “the county’s no net loss” or degradation of fish and wildlife resource standard. For one thing, the evidence relied on to satisfy that standard related to control of water rights and cessation of pumping, rather than the formal adjudication of those rights by the Oregon Water Resources Department (OWRD). LUBA concluded the record lacked substantial evidence that cessation and control were sufficient by themselves to satisfy the standard.

The posture of this case is concerning for the applicant. All parties have indicated they will appeal, which means the currently seated Board of Commissioners will not see the case again, because two of the three current members will no longer be commissioners next year and the one who remains will be joined by four new ones. Both the appeal and the remand proceedings will take time. Moreover, under the realities of the case, the new Board of Commissioners is not likely to be as sympathetic to a revised version of this resort as have previous boards. This combination of circumstances is likely to create significant hurdles that must be overcome in order for this long-pursued resort project to proceed.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected] .

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected] .

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the DJC guarantees the accuracy or completeness of any information published herein.

Difficult hurdles stand before Central Oregon resort proposal | Opinion

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