HomeMy WebLinkAboutCorrespondence Miscellaneous 4/8/2010
.. L1MBIRD Andrew
From:
Sent:
To:
Cc:
GRILE Bill
Wednesday, April 07, 2010 5:37 PM
Mary Bridget Smith
MaTT Gregory; LEAHY Joe (HL); DONOVAN James; L1MBIRD Andrew; JONES Brenda;
MARX Sandra
Re: Springfield Site Review Fees Issue for Child Center Appeal
Subject:
Thanks Mary Bridget. By copy of this to Brenda Jones, I'm asking her to book a 30 minute meeting re this for
all of us mentioned in your email to Greg and me. I appreciate the detail here.
... Bill
** Sent from my iPhone **
On Apr 7, 2010, at 4:12 PM, "Mary Bridget Smith" <mbs@emeraldlaw.com> wrote:
Hello Bill and Greg,
This is an email I recently received from Bill Kloos. It has to do with The Child Center Appeal
where the applicant appealed several conditions of approval along with the cost of the site review
fees. I think we have resolved all of the issues except for the review fees. Bill believes he can
get LUBA to take jurisdiction and provided the analysis below. I told him I thought LUBA
would not take jurisdiction, and even if they did and it was remanded, I don't think the final
answer would be there is no fee assessed for site review. Bill was honest with me that he does
not yet have authority from his client to take this to LUBA, but it certainly sounds like it will go
to the Planning Commission. He also mentioned something about Hyland/Reeder appearing at
the Planning Commission to argue their point, but who knows.
At any rate, I'd be interested to hear your thoughts on this. Jim and Andy can fill you in on the
details.
Mary Bridget Smith
LEAHY, VAN V ACTOR & COX, LLP
188 WestB Street, Bldg. N
Springfield, OR 97477
(541) 746-9621
mbs@emeraldlaw.com
*Please note my new mailing address.
This e-mail is for the sole use of the intended recipient( s) and contains information belonging to
Leahy, Van Vactor & Cox, LLP which is confidential and/or legally privileged. If you are not
the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking
of any action in reliance on the contents of this e-mail information is strictly prohibited. If you
have received this e-mail in error, please immediately notify the sender by reply e-mail and
destroy all copies of the original message.
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Date Received: r/(Jo/b
Planner: AL
>>> Bill Kloos <billkloos@landuseoregon.com> 4/5/2010 8:53:03 PM >>>
Mary Bridget:
Here is how it looks to me:
The filing fees imposed by the city for this decision were imposed under an ordinance
and/or resolution that is an integral part of the zoning provisions governing the processing and
review ofland use applications. The decision, therefore, is a land use decision subject to LUBA
jurisdiction, and it can be challenged as applied in the context of an individual decision. See
Mazoral v. City of Bend, _ Or LUBA _ (LUBA No. 2009-038, July 29, 2009)(reasonableness
oflocal appeal fee under ORS 227.180(1)(c) can be challenged as applied); Young v. Crook
County, 56 Or LUBA 704, qff'd224 Or App I, 197 P3d 48 (2008)(same); Doty v. City of
Bandon, 49 Or LUBA 411 (2005)(resolution adopting new application fee schedule is a land use
decision); Friends of Yam hill County v. Yamhill County, 43 Or LUBA 270 (2002)(decision
increasing the fee for a local appeal is a land use decision).
State statutes apply directly to the city in its decision making. Forster v. Polk County, 115
Or App 475, 478,839 P2d 241 (1992); Mazoral, slip op 6; Young, 56 Or LUBA at 716. ORS
227.175(1) requires the city to establish fees for initial processing of permits at no more than the
actual or average cost of providing the service. ORS 227.180(1)(c), in turn, allows the city to
establish local appeal fees for permit proceedings and requires the fees to be reasonable and be
no more than the average cost or the actual cost of the appeal.
The city decision at issue here is a "permit" decision, as defined in ORS 227.160(2). This
is within the procedural path for a statutory "permit" in the meaning ofORS 227.160(2) and
227.175, as opposed to the procedural path for a "limited land use decision," in the meaning of .
ORS 197.015(12) and 197.195. Even where a city procedurally treats a limited land use decision
as a statutory permit, LUBA will also treat it as a statutory permit. Gensman v. City ofTigard, 29
Or LUBA 505, 512 (1995).
Challenges to city and county land use fees most typically arise in the context of an
adoption of a fee schedule. LUBA now typically finds jurisdiction to review these new fees for
their compliance with limiting statutes. See Sommer v. Josephine County, 52 Or LUBA 806
(2006), which summarized the recent case law and denied a motion to dismiss for lack of
jurisdiction. Sommer explained that local fee schedules implicate core land use concerns
regarding citizen participation in land use reviews. It identified a range of land use statutes that
set limitations on such fees. It found LUBA jurisdiction, rejecting the "fiscal exception"
defense.
Mazoral and Young involved challenges to the application of adopted fee schedules, such
as the situation in this matter. In Young the issue was whether the local appeal fee was
"reasonable" in the meaning of ORS 215.422(1)(c), the county counterpart to ORS
227.180(1)(c) that applies to cities. Both statues apply directly to local decisions. The same
issue was present in Mazoral, which involved the provision for cities in ORS 227.180(1)(c).
This case involves a challenge under the statutory limitation to charges for the initial
processing of an application (and the city regulation that implements the statute), rather than to
the processing of a local appeal. The relevant statute is ORS 227.175(1). The statute says the
city shall establish fees for processing and sets standards; the city has adopted fees for processing
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and has applied them to the applicant; the applicant is challenging that as-applied decision,
which, at this juncture, is really an interlocutory issue in the larger local proceeding. That is, the
only opportunity to appeal the filing fee imposed at the front end is to appeal the [mal local
decision at the back end of the local process.
The city' fee provisions are subject to the statute because the statute always applies
directly. The processing charge is an integral part of the local decision. The fee has to be paid to
get in the door at the city. There is no material difference between invoking LUBAjurisdiction
over local charges for an appeal (under ORS 227.180(1)(c)) or local charges for the processing
generally (under ORS 227.175(1)).
LUBA now has a solid line of cases finding that adoption or amendment of local fee
schedules for land use applications and local appeals are land use decisions, because it is the
adoption or amendment of a land use regulation. This is so even where the fee schedule is not
codified in the zoning ordinance, because the fee schedule is an integral part of the zoning
regulations governing the processing and review ofland use applications. Friends of Yam hill
County, 43 Or LUBA at 275 (quoting Ramsey v. City of Portland, 29 Or LUBA 139 (1995). The
Board has shifted gears in recent years, in Young and Mazoral, and taken the position that it has
jurisdiction to review as applied challenges to fee regulations for consistency with statutes that
apply directly. Here the city's decision would be the application of a land use regulation and its
parent statute.
Bill KloosLaw Office of Bill Kloos, PC
375 W. 4th Street, Suite 204
Eugene, OR 97401
Phone: (541) 343-8596Fax: (541) 343-8702
e-mail: billkloos(qllanduseoreeon.com
Web www.LandUseOreeon.com
Please do not read, copy or disseminate this communication unless you are the intended
addressee. This e-mail communication may contain confidential and/or privileged information
intended only for the addressee. If you have received this e-mail in error, please call
immediately at 541-343-8596. Also, please notify me bye-mail. Thank you.
From: Mary Bridget Smith [mailto:mbs@emeraldlaw.com]
Sent: Monday, April 05, 2010 5:04 PM
To: Bill Kloos
Cc: mreeder@agsoro.com; Joe Leahy
Subject: Springfield Site Review Fees Issue for Child Center Appeal
Hello Bill,
I have been thinking about our phone call today regarding the site review fees for Springfield.
You mentioned that you thought LUBA would take jurisdiction based on a cluster of
previous LUBA cases. The City's position is that LUBA does not have jurisdiction, but we are
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.J
open to being educated if there are some cases out there that say differently. Would you mind
sharing your cases?
thanks so much,
Mary Bridget Smith
LEAHY, V AN V ACTOR & COX, LLP
188 West B Street, Bldg. N
Springfield, OR 97477
(541) 746-9621
mbs@emeraldlaw.com
.Please note my new mailing address.
This e-mail is for the sole use of the intended recipient(s) and contains information belonging to
Leahy, Van Vactor & Cox, LLP which is confidential and/or legally privileged. If you are not
the intended recipient, you are hereby notified that any disclosure, copying, distribution or
taking of any action in reliance on the contents of this e-mail information is strictly prohibited.
If you have received this e-mail in error, please immediately notifY the sender by reply e-mail
and destroy all copies ofthe original message.
Date Received: >/~b,/.
Planner: AL
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