HomeMy WebLinkAboutCorrespondence Miscellaneous 9/13/2004
<.r:
1. 'LA W OFFICE OF BILL KLOOS, PC
OREGON LAND USE LAW
576 OLIVE STREET, SUITE 300
EUGENE, OR 97401
PO BOX 11906
EUGENE,OR"97440
TEL (541) 343-8596
FAX (541) 343-8702
E-MA!L BILLKLOOS@LANDUSEOREGON.COM
June 9, 2004
RECEIVED SEP 1 3 2004
Land Use Board of Appeals
550 Capitol St. NE, Suite 235
Salem, OR 97301-2552
Re: Home Builders v. Eugene, Springfield, Lane County, LUBA Nos. 2004-079, 082, 094
Dear LUBA:
Enclosed for filing is the original and one copy of Petitioners' Memorandum in Opposition to
Motion to Suspend Record Filing until Conclusion of LCDC Review. Copies have been served
on counsel for all parties.
'/t~/ L /
lqo)os
cc: Service List
Client
Date Received
JUN 0 lit of
Planner: BJ
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
RECEIVED SEP 1 3 2004
Petitioners,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PETITIONERS'
MEMORANDUM IN
OPPOSITION TO MOTION
TO SUSPEND RECORD
FILING
HOME BUILDERS ASSOCIATION OF
LANE COUNTY, and HOME BUILDERS
CONSTRUCTION COMPANY,
LUBA Nos. 2004-079,
2004-082,2004-094
v.
Metro Plan Housekeeping
Amendments
CITY OF EUGENE,
CITY OF SPRINGFIELD, and
LANE COUNTY,
Respondents.
Petitioners oppose the motion filed by Respondents. Respondents' statement of
21
the facts is correct. Appeal ofthe errors Petitioners will raise challenging the subject plan
22
amendments is split between LUBA and DLCD/LCDC jurisdiction. This situation
23
reflects the wisdom of the legislatures past, and it begs for the wisdom oflegislatures
24
future.
25
Presently we have a stipulated order staying the filing of the record but allowing
26
any party to request the filing of a consolidated record with LUBA, and start the 2 I-day
27
briefing clock, unless the parties ,further stipulate otherwise. Petitioners have, thus far,
28
refrained from asking for the record to be filed while the parties pursue settlement
29
discussions. Respondents' motion asks LUBA to put a long, indeterminate hold on the
30
filing ofthe record. This should be denied for several reasons. First, it would amount to
a nullification of the current stipulation. Second, the motion,is completely unsupported i
._'~
by any attempted justification by Respondents. Third, it would undermine Petitioners' ~ <;0
Q) C'>
CCQ
Z
fD ~
ctS
Q
31
32
33
statutory right to speedy resolution of issues that are subject to LUBA's jurisdiction,
PETITIONERS' MEM. IN OPPOSITION TO MOTION TO SUSPEND FILING OF THE
RECORD Page 1 of 5
J
1Il
. .
~
CD
c:
c:
CO
a:
"'0
g?
3. The requested order would undermine Petitioners' statutory right to a "ii)
speedy resolution ofthe issues that are within LUBA's jurisdiction. (.)
Q)
Some of the Petitioners' issues relating to the Metro Plan amendments are wilhine:
fQ
ctS
CI
And, finally, if there were a shred of a rationale that could be assumed for why both
2
appeals should not go forward at the same time, Respondents have not explained why it is
3
the LUBA appeal, rather than the DLCD/LCDC appeal, that should be put on the cold,
4
back-burner. Each of these reasons is addressed briefly below.
5
6
7
8
1. The motion is a request for nullification of the stipulated order that is in
effect.
The status quo is that the parties have stipulated that any party may request the
9
filing of the record. That creates a level playing field, which is allowing the parties to
10
pursue settlement discussions with the parties being equally situated.
II
If Respondents want relief from the current stipulation, they should negotiate a
12
change. Petitioners are open to discussion, once they know the objectives Respondents
13
want to accomplish, which are not apparent in the motion. The pending motion simply
14
asks LUBA to nullify the stipulation by making the temporary hold permanent. It asks
15
LUBA to bless their escape from the current stipulated order.
16
17
18
19
2. The motion is not supported by any explanation as why the relief requested is
justified.
This motion is unusual in that it is unsupported by any explanation about why it is
20
appropriate for LUBA to grant the requested relief. Respondents note the effect ofthe
21
relief requested (the DLCD and LCDC and then the Court of Appeals get to finish their
22
review first), but Respondents don't explain why they believe this would be appropriate
23
under the law. LUBA should not approve contested motions' offered without a shred of
24
justification.
25
26
27
28
PETITIONERS' MEM. IN OPPOSITION TO MOTION TO SUSPEND FILING OF THE
RECORD Page 2 of 5
'J
CO
~ . .
() s.....
~ Q)
.,.
Q c:
:z c:
:::>
--, ca
-
a...
LUBA's jurisdiction,t LUBA exists to implement the state's "time is of the essence"
2 policy in resolving land use appeaJs,2 Under the current stipulated order, any party may
3, request the record be filed, and then have the benefit of the legislative policy. IfLUBA
4 approves the requested motion, it will be denying Petitioners their statutory right to a
5 speedy review and resolution of the issues that are properly are within LUBA's
6 jurisdiction. Respondents have not even attempted to explain why LUBA should take
7 away Petitioners' statutory rights in this way.
8 Furthermore, the delay in remedies that Respondents ask LUBA to impose may
9 not be a short delay. Getting in line for relief behind the DLCDfLCDC review process
10 may put Petitioner's LUBA relief on hold for years. The DLCDfLCDC review process
11 can move with the speed of continental plate tectonics.3
12 4. If there were a rationale for putting one appeal on hold, Respondents have
13 not attempted to explain why it should be the LUBA appeal.
14
15 Implicit in Respondents' motion is the premise that both appeals should not go
16 forward at the same time. This premise should be aired before it is applied, Petitioners
17 question whether it is a sound premise.
18 Ifthere is a brigbtjurisdictionalline between LUBA and DLCD jurisdiction in a
19 situation like this,.wherea periodic review work taskprodtictwill be challenged not only'
I If Respondents thought otherwise, they would file a motion to dismiss.
2 ORS 197,805 provides in part: '
"It is the policy of the Legislative Assembly that time is of the essence in reacbing fmal
decisions in matters involving land use and that those decisions be made consistently
with sound principles governing judicial review."
"0
l As one example known to petitioners' counsel, the Court of Appeals has scheduled oral arguments in ~
October of2004 for Corvallis Land Development Code provisions that were enacted as a periodic review "m
work task in December of2000, That's four years from local adoption to submission at the Court of (,)
Appeals of the appeal of the LCDC's final order, The status of this appeal was discussed in a recent LUBA CD
opinion, and was characterized by the City of Corvallis as being part of its "intenninable periodic review." a::
See Heilman v. City of Corvallis, _ Or LUBA _ (No. 2004-069, August 10, 2004) at note 6. CD
......
ctS
o
PETITIONERS' MEM. IN OPPOSITION TO MOTION TO SUSPEND FILING OF THE
RECORD Page 3 of 5
J
~ CO
, .
- I.-
"" CD
<:> C
z C
~
--, <<S
-
a...
for goal compliance but also for compliance with state statutes, LCDC Rules that
2 implement the statutes, and unamended plan policies, then there is no inherent rationale
3 for putting one appeal on hold. If, on the other hand, the jurisdictional line is a bit fuzzy
4 in some places - say, for example, where the allegation is that the plan amendments
5 violate an LCDC Rule that implements both a statute and a Statewide Planning GoaJ -
6 then it also makes sense for both appeals to go forward at the same time. The LCDC
7 does not have any better grip than LUBA on where the jurisdictional line is to be drawn,
g Ifwe assume the premise is sound - that both appeals should not go forward at
9 the same time - then Respondents have not explained why it is LUBA's review that
10 should be put on hold. LUBA operates an express service train. In comparison, the
1 t DLCD/LCDC operates a local service train that is prone to break-downs and time-outs.
12 If efficiency in review processes were the standard for deciding this motion, the answer
13 would be simple, Deny the motion; let any party ask for filing ofthe record; LUBA will
14 have its decision issued in less than six months, which is before the LCDC will ever put
15 its teeth into its review of the Report that the DLCD Director will eventually issue on the
16 pending objections filed at the DLCD. The DLCD/LCDC will then have the benefit of
17 LUBA's disposition before it really gets into the merits of its review.
PETITIONERS' MEM. IN OPPOSITION TO MOTION TO SUSPEND FILING OF THE
RECORD Page 4 of 5
Respondents are really filing their motion with the wrong agency if their notion of
2 efficiency is serial review, They should be asking the DLCD to put its review on hold
3 pending a decision by LUBA. And this motion should be denied.
4 DATED September 10,2004.
5
6
7
8
9
10
tl
12
F BILL KLOOS, PC
((
~os, OSB 81140
Attorney for Petitioners
_/
Date Received
JUN 0 9 I (; ~ .
Planner: BJ
PETITIONERS' MEM, IN OPPOSITION TO MOTION TO SUSPEND FILING OF THE
RECORD Page 5 of 5
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
CERTIFICATE OF SERVICE AND FILING
I certify that on September 10, 2004, I filed the original and one copy of this
Memorandum with the Land Use Board of Appeals, 550 Court Street NE, Suite 235,
Salem, OR 97301-2552, by causing same to be deposited in the United States Mail at
Eugene, Oregon, enclosed in a sealed envelope with postage prepaid.
I further certify that on said date i served a true and correct copy of said document
on the pirrty or parties listed below, by causing the same to be deposited in the United
States Mail at Eugene, Oregon, enclosed in a sealed envelope with postage prepaid, and
addressed as follows:
Emily Jerome
Harrang Long Gary Rudnick, PC
PO Box 11620
Eugene, OR 97440:3820
Attorney for Eugene
Meg Kieran
Harold, Leahy & Kieran
223 N. AS!., Suite D
Springfield, OR 97477.
Attorney for Springfield
Stephen V orhes, Assistant County Counsel
Lane County Courthouse.
125 E. 8th Ave,
Eugene, OR 97401
Attorney for Lane County
,.~?
ifilf.Kloos, OSB 81140
'5fAttorneys for Petitioners
Date Received
JUN 0 9 ) D~
Planner: BJ
!._ L~WOFFICE OF BILL ,~OOS, PC
OREGON LAND USE LAW
Land Use Board of Appeals
550 Capitol St. NE, Suite 235
Salem, OR 97301-2552
May 21, 2004
.
Re: Home Builders v. City of Springfield, LUBA No.
Dear LUBA:.
576 OLIVE STREET, SUITE 300
EUGENE, OR 97401
PO BOX 11906
EUGENE. OR 97440
TEL (541) 343,8596
FAX (541) 343,8702
, E,MAIL BILLKLOOS@LANDUSEOREGON.COM
Enclosed for filing are the original and two copies of a Notice ofIntent to Appeal, together with
a check in the amount of$325.. Please note that this appeal is' related to LUBA No. 2004-079,
which was filed recently.
~,
cc:
Service List stated in NIT A
I?f)U~ [COPV/ ,;
o fA fI1 ,MfIj r.J t~
~12-?b/G Er6- ~ pt ,
tJ rvtA4-(6 flvm-"b'beYL-
rJ M @... () B f?rz,1 T
C1 pltN J}ROWN
TIJ
Date Received
MAY 2 I, O~
. Planner: BJ
Ire", MAY ,',~ 4' Z004
.- .-- -~--~.--'-"-- -.. . ~ -.-.......... -'._~-
"
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
HOME BUILDERS ASSOCIATION OF
LANE COUNTY, and HOME BUILDERS
CONSTRUCTION COMPANY, ,
Petitioners,
v.
CITY OF SPRINGFIELD,
Respondent.
)
. )
)
)
)
)
)
)
)
)
)
)
LUBA No. 2004-
(Metro Plan Changes;
Springfield Ord. No. 6087)
NOTICE OF INTENT TO APPEAL
1.
Notice is hereby given that petitioners intend to appeal that land use decision or limited
land use decision of respondent entitled Ordinance No. 6087, which became final on May 17,
2004 and which involves amendments to the text and the diagram of the Eugene/Springfield
Metropolitan AreaPlan ("Metro Plan "). The same amendments were adopted by the City of
Eugene and have been appealed in LUBA No. 2004-079. Petitioners expect the same
amendments will be adopted by Lane County. The amendments are, at least in part, a periodic
review work task product. This appeal to LUBA'is intended to allow petitioners to seek review
of the amendments for compliance with standards that are outside the jurisdiction of the
Department of Land Conservation and Development, including compliance with state statutes,
rules implementing state statutes, and unamended Metro Plan elements, A copy of the amending'
ordinance, not including the exhibits, is attached as Exhibit A hereto.
II.
Petitioners are represented by Bill Kloos, Law Office of Bill Kloos PC, I9atediepeived
, MAY 21 r of
Planner: BJ
Eugene, OR 97440; Phone: 541-343-8596.
III.
Respondent, City of Springfield, has as its mailing address and telephone number:
Springfield City Manager, City Hall, 225 Fifth S~, Springfield, OR 97477; Phone: 541-726-
3700; and it has, as its legal Joseph Leahy, Harold, Leahy & Kieran, 223 N. A St., Suite D
Springfield, OR 97477; Phone: 541-746-9621.
IV.
No persons have been mailed notice of this decision as of the date of this filing, As the
subject ordinance is a periodic review work task product, petitioners expect that notice
eventually will be sent to the DLCD and to a list of persons who have requested notice, after the
same substantive changes are adopted by the two other jurisdictions.
NOTICE:
Anyone designated in paragraph IV of this Notice who desires to participate as a party in
.this case before the Land Use Board of Appeals must file with the Board a Motion to Intervene
~. .
in this proceeding as required by OAR 661-10-050.
LA WJfFICE OF BILJ KLOOS PC
/ V~_ /~
~il1~s, OSB No, 81140
CERT'ICATE OF SERVICE
I hereby certify that on May 21, 2004, I served a true and correct copy of this Notice,of
Intent to Appeal on all persons listed in paragraphs III and IV of this Notice pursuant to OAR
661-010-0015(2) by first class mail.
~~~
Dated: May 21, 2004.
Bill Kloos
Date Received
MAY 211 Dt
Planner: BJ
.I....' v... llJ:.U .LV.V~ rAJ. ,)-101 Ilb lJtiJ
~YFLJ) CITY !1GRS OFFICE
1(1) 002
ORDINANCE NO. 6087
(General)
IN THE MATTER OF AMENDING THE EUGENE-SPRINGFmLD
METROPOLITAN AREA GENERAL P!-AN (METRO PLAN) TO ADOPT AS
PART OF PERIODIC REVIEW METRO PLAN HOUSEKEEPING REVISIONS,
A NEW METRO PLAN CHAPTER TII-C, AND A NEW METRO PLAN
DIAGRAM; AND ADOPTING A SEVER ABILITY CLAUSE.
THE CITY COUNCIL OF THE CITY OF SPRINGFlELD FlNDS THAT:
WHEREAS, Chapter IV of the Eugene-SpringfieJd Metropolitan Area General
Plan (Metro Plan) sets forth procedures for amendment of the Metro Plan, which for the
City of Springfield are implemented by the provisions of the Springfield Article 7, Metro
Plan AIDendmcnts, Section 7.010 through Section 7.110; and,
WHEREAS, the currcnt Mctro Plan, adopted in 1982 and subsequcntlyamended,
is jn need of modification to reflect changes in State law and local conditions, as required
by Periodic Review; and
, WHEREAS, following a joint public hearing with the Eugene and Springfield
Planning Commissions on June 3 and June 17, 2003, the Springfield Planning
Commission recommended the draft Metro Plan Housekeeping Revisions, draft Metro
Plan Chapter III-C, and the draft Metro Plan Diagram to the Lane County Board of
Commissioners by action taken at a public meeting held by the Planning Commission on
November 18, 2003; and
WHEREAS, the Common Council of the City of Springfield has conducted a
public hearing and is now ready to take action based upon the above recommendations
and the evidence and testimony already in the record as well as the evidence and .
testimony presented at the public hearing held in the matter of amending the Metro Plan.
NOW THEREFORE, 'thc City of Springfield docs ordain as follows:
Section I. The 2004 Merro Plan Housekeeping Revisions in the Merro Plan
Housekeeping Revisions Draft December 31, 2003 and as set forth in Exhibit A
attached and incorporatcd herein, is adopted as amendments to the Eugene-
Springfield Metropolitan Area General Plan (Metro Plan).
Section 2. The Metro Plan Chapter IJI-C is removed, superseded and replaced by
a flCW Environmental Resources Element (Chapter III-C), as set forth in Exhibit B
attached and incorporated herein which is hcreby adopted.
Section 3, The Metro Plan Diagram is removed, supetsed~d and replaced b)Jpte Received
Metro Plan Diagram. as amended and as set forth in Exhibit C attached and MAY 2 1 ,O~
incorporated herein which is hereby adopted. I
ORDINANCE Page 1
'Planner: BJ
EXHIBIT A
V,).' 1;', U~ lIED 1U; U::l FAX 541 i26 2J6J
SPFLD CITY MGRS OFFICE
l4J 003
Section 4. If any section, subsection, sentence, clause, phrase or portion of this
Ordinance is for any reason held invalid or unconstitutional by a court of
competent jurisdiction, such portion shall be deemed a s~parate, distinct and
independent provision and such holding shall not affect the validity of the
remaining portions hereof. . ,
Section~. Notwithstanding the effective date of ordinances as provided in
Section 2.110 of the Springfield Municipal Code, this Ordinance shall become
effective upon the date that all of the following have occurred: (a) the ordinance
has been acknowledged, (b) at least 30 days have passed since the datc the
ordinance was approved, and (c) both the Lane County Board of Commissioners
and the City of Eugene have adopted an ordinance containing provisions having
the same effect.as those containecl in Sections 1, 2lind 3 of this ordinance.
t'.
Section 6. ' Adoption of this Ordinance shall not affect rights ,and duties that
matured, penaJties that were incurrcd, and proceedings that were begun before the
effective date as specified in Section 5. .
FURTHER, although not part o(this Oril;n.n~e, the Common Council of the
City of Springfield adopts the Legislative Findings set forth in the attached Exhibit "D."
ADOPTED by the Common Co~cil of the City of Springfield by a votc of ~
for and ~ against, this 17tldayof May .2004. (
APPROVED by the Mayor of the City of Springficld, this17tb day of
May , 2004.
, '"
(?Pv~'
SidDty W (JLeiken, 'Mayor'.
ATTEST:
'"
~~
Amy Sow6J City Rccorder ,
~_City/Conlra<:ulMetroPanncnlTiplOnlinan<:e.doe
","YIF.WF.D & APPROVED
" ",~ '') rORM ' '
j(;:)'>.'!" ::,.>, .\ \.Ol'\'-\--I
')":''::..L\ "1. 1 I "2o\:>'-l
,;~,y;~ OF CITY ATTORNEY
ORDINANCE Page 2
Date Received
MAY 21 1 o~
Planner: BJ