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HomeMy WebLinkAbout2000-1017.FINDINGSBefore the Ashland City Council October 17, 2000 IN THE MATTER OF AN APPLICATION FOR ) A SITE REVIEW FOR THE CONSTRUCTION ) OF A NEW THEATER AND CONDITIONAL ) USE PERMIT TO ENABLE THE FLY TOWER ) TO EXCEED A HEIGHT OF 40 FEET ABOVE ) THE ESTABLISHED MEAN GRADE ) (APPROXIMATELY 45 FEET IS PROPOSED). ) THE PROPOSAL IS LOCATED NORTH OF ) HARGADINE STREET AND EAST OF SOUTH) PIONEER STREET AND INCLUDES THE ) CONSTRUCTION OF A MULTI-LEVEL ) PARKING STRUCTURE. ) Oregon Shakespeare Festival, Applicant ) Order Denying Motion to Dismiss Appeal to City Council This matter came before the council at its regular meeting on October 3, 2000, by motion of the applicant to dismiss the appeal filed by Colin Swales and Philip Lang. The motion was based on the appellants' failure to follow the code requirements for appeals. John Hassen appeared and argued on behalf of the applicant, Oregon Shakespeare Festival. Colin Swales and Philip Lang appeared and argued on their own behalf as appellants. Several other citizens also appeared and argued on behalf of the appellants, one argued in favor of the applicant. The council now being fully apprised as to the issues involved in this matter and taking into consideration the written and oral arguments of the parties, the council denies the motion to dismiss for the following reasons: The requirements for land use appeals from the planning commission to the city council are set forth in Ashland Municipal Code § 18.108.110.A: "Appeals of Type I decisions for which a hearing has been held, of Type II decisions or of Type III decisions described in section 18.108.060.A.1 and 2 shall be initiated by a notice of appeal filed with the City Administrator. The standard Appeal Fee shall be required as part of the notice. Failure to pay the Appeal Fee at the time the appeal is filed is a jurisdictional defect. The appeal shall be filed prior to the effective date of the decision of the Commission. The notice shall include the appellant's name, address, a reference to the decision sought to be reviewed, a statement as to how the appellant qualifies as a party, the date of the decision being appealed, and the specific grounds for which the decision should be reversed or modified, based on the applicable criteria or procedural irregularity." Resolution of the motion to dismiss involves an interpretation of subsection A.2 above, namely whether failure to state the specific grounds for reversal or modification of a 1 - ORDER G:\IegaI\PAUL\PLANNING\osf order denying motion.wpd planning commission decision is a jurisdictional or procedural defect. We interpret this defect as procedural, not jurisdictional, because: One, appeals to this council are de novo, meaning an appellant may raise any issue at the appeal hearing, not just those required to be identified in the appeal notice. Thus, in most cases, there is no substantial harm to the non-appellant, especially when the non- appellant is the applicant, who has the burden of proving all code provisions at the council level. Additionally, when the defect is raised as it has been in this case, it can be cured by allowing the appellants to supplement their notice of appeal by specifying the grounds for the appeal. Two, an analysis of the code language itself leads us to the same conclusion. The code declares the failure to pay the appeal fee as a jurisdictional defect but does not identify other appeal requirements in section t 08.108.110.A as jurisdictional. In interpreting the importance of this distinction, we choose to apply the Latin maxim, "inclusio unis est exclusio altefius,"or the inclusion of one is the exclusion of another. Code language that includes only the failure to pay the appeal fee as a jurisdictional defect, excludes the failure to perform the other appeal requirements as jurisdictional defects. We therefor conclude that the failure to specify the grounds for the appeal, as the appellants did in this case, is a procedural defect, not a jurisdictional defect. As such, we will provide an opportunity for the appellants to cure their mistake by allowing them another opportunity to file the specific grounds for their appeal. The motion to dismiss the appeal for failing to specify the grounds for the appeal is therefor denied. The motion to dismiss also raised the failure of the appellants to file the appeal with the appropriate city official pursuant to AMC § 18.108.110.A. This section, which is set forth above, requires appeals to be initiated "by a notice of appeal filed with the City Administrator." In this case, the appellants filed the notice of appeal with the planning department instead of the city administrator. While this issue has never been raised at the council level, we are informed that filing of the notice of appeal in the planning department immediately results in a refiling with the city administrator. Planning staff have been instructed to accept such filings and to immediately inform the city administrator that an appeal has been filed. The motion to dismiss the appeal for failing to file with the city administrator is therefor denied. Appellants are directed to cure their defective notice of appeal by delivering to the city administrator and counsel for the applicant, by 5:00 p.m., October 9, 2000, the specific grounds for which the decision should be reversed or modified, based on the applicable criteria or procedural irregularity. By order of the council, Catherine M. Shaw, Mayor 2- ORDER G:\IegaI\PAUL\PLANNING\osf order denying motion.wpd