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Home My WebLink AboutExhibit 1 r Mike Franell- Appeal of DeBoer P&E permit Page 1 I Paul nolte Council City 3/2/042:18PM Appeal of DeBoer P&E permit ('''-0;-;;-f-,~ s h iand i Plannmg Exhibit II EX,,:t3I~ (l~..___l____ Pi\. it \ D.,.n: ~J';IlS'~ZF;---' ..,._^_,_,..l!rq~~ - From: To: Date: Subject: Inquiry has been made as to whether a decision made on an application for a Physical and Environmental Constraints permit ("P&E permit") by Sid and Karen DeBoer under ALUO Ch. 18.62 can be appealed to the city council. Previously I advised the planning department that because a P&E permit is a staff permit, an appeal to the council was not permitted under the ALUO. I advised the department that appeals of staff permits must go directly to the Land Use Board of Appeals. As noted below in the second to last paragraph, however, my previous advice was in error. Applications for P&E permits are subject to the Staff Permit Procedure pursuant to 18.1 08.030.A.2. The Staff Permit Procedure provides that staff makes the initial decision regarding the issuance of a permit and then mails the decision to the applicant and neighboring property owners. Anyone mailed the notice of decision can request that a public hearing be held. If a request for a public hearing is received "a public hearing shall be scheduled for the next regular Commission or Hearings Board meeting allowing adequate time to meet the notice requirements of section 18.108.080." In the DeBoer application, a public hearing was requested and held by the Hearings Board. Appeals of staff permit decisions are set forth in 18.1 08.070.B.1 which provides that the final decision of the City for staff permits is the decision by the Staff Advisor, unless a hearing is held. If a hearing is held then the final decision of the city is the decision of the Board or Commission: "Staff Permit Decisions. Unless a request for a public hearing is made, the final decision of the City for planning actions resulting from the Staff Permit procedure shall be the Staff Advisor decision, which shall be effective ten days after the date of decision. If heard by the Commission or Board, the Commission or Board decision shall be the final decision of the City on such matters, effective 15 days after the findings adopted by the Commission are signed by the Chair of the Commission and mailed to the parties." The process for appeals to the council is set forth in 18.108.11 O.A. That section does not provide for an appeal to the council for Staff Permits. This is true whether the decision was made by the Staff Advisor, the Hearings Board or the Planning Commission. In other words, regardless of who makes the Staff Permit decision, there is nothing in this section that allows an appeal of that decision. All of the other procedures, Type I, Type II and Type III specifically set forth the appeal procedure to the council. For Type I Planning Actions, the decision of the Staff Advisor is final unless a public hearing is held. "If a public hearing is held. . . the decision of the Commission or Board shall be the final decision of the City, unless appealed to the council as provided in section 18.108.110.A." For Type II planning actions, the same language is utilized. The decision of the planning commission is final "unless appealed to the council as provided in section 18.108.11 O.A." And the same for Type III. The above analysis is what led to my conclusion that Staff Permit decisions are not appealable to the council. It is now my opinion, however, that certain Staff Permit decisions are subject to the Type II procedure set forth in 18.108.050. Because Type II procedures are subject to appeal to the council (18.108.110), any Staff Permit that is defined as a Type II procedure is therefor subject to appeal to the council. A Staff Permit becomes a Type II procedure under 18.1 08.050.A.6 when a public hearing has been held: "The following planning actions shall be subject to the Type II Procedure: * * * 6. Any public hearing of a Staff decision resulting from the Staff Permit Procedure." Since a public hearing was held by the Hearings Board, the Staff Permit became a Type II procedure subject to an appeal to the council. A special note on ex parte contacts being made with council members regarding whether the council should "call up" this permit as provided in 18.1 08.070.B.5: I Mike Franell - Appeal of DeBoer P&E permit Page 2 I The council has already received input from citizens requesting that the council call up this matter on its own accord. The council is placed in an awkward position as to when and upon what basis any matter should be called up. Contact by citizens requesting the council to do so are ex parte contacts subject to full disclosure if the matter is called up. In order to minimize the risks caused by ex parte contacts, any information received by council members should be immediately forwarded to the planning department so that it can be disseminated to all interested parties. Ex parte contacts should be avoided by the council wherever possible. Because this matter is now subject to appeal to the council, the council should discourage ex parte contacts and refer any em ails or other correspondence to the planning department. Paul Nolte City Attorney City of Ashland, OR (541) 488-5350 - PHONE NOTE NEW FAX # AS OF JUNE 25, 2003: (541) 552-2092 - FAX noltep@ashland.or.us Visit the city's web site at: www.ashland.or.us Our TTY phone number is 1 (800) 735-2900 cc: Bill and Jane; Bryan Holley; Colin@mind.net; gkramer@jeffnet.org; Mike Franell; PHill@fosterdenman.com; Planners; Sharlene stephens ASHLAND MUNICIPAL CODE B. After the statement required by section 18.108.100.A is made, the Commission or Council members shall declare any actual or potential conflicts of interest and any ex parte contacts including the substance of those contacts and any conclusions the member reached because of those contacts. 1. No member shall serve on any proceeding in which such member has an actual conflict of interest; in which the member, or those persons or businesses described in ORS 227.035, has a direct or substantial financial interest; or in which the member is biased. If a member refuses to disqualify him or herself, the Board, for hearings before the Board; the Commission, for hearings before the Commission, or the Council for hearings before the Council, shall have the power to remove such member for that proceeding. 2. All parties shall be advised that they have the right to rebut the substance of any ex parte communications. C. At such public hearing, after receipt of public testimony, the Board or Commission may approve, approve with conditions or deny the request. The Board or Commission may also continue the public hearing to the next meeting to allow for the submittal of additional information for consideration in the decision. At the public hearing, the date, time, and location for the continuance of the public hearing shall be stated. After such statement, no additional public notice shall be required. D. A majority of those members present at the public hearing must vote affirmatively in order to adopt findings. SECTION 18.108.110 Appeal to Council. A. Appeals of Type I decisions for which a hearing has been held, of Type IT decisions or of Type ill decisions described in section 18.108.060 .A.l 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. 1. The appeal shall be filed prior to the effective date of the decision of the Commission. 2. 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. 3. The notice of appeal, together with notice of the date, time and place of the hearing on the appeal by the Council shall be mailed to the parties at least 20 days prior to the hearing. 4. The appeal shall be a de novo evidentiary hearing. 5. The Council may affirm, reverse or modify the decision and may approve or deny the request, or grant approval with conditions. The Council shall make findings and conclusions, and make a decision based on the record before it as justification for its action. The Council shall cause copies of a final order to be sent to all parties participating in the appeal. B. Appeals may only be filed by parties to the planning action. "Parties" shall be defined as the following: 1. The applicant. 2. Persons who participated in the public hearing, either orally or in writing. Failure to participate in the public hearing, either orally or in writing, precludes the right of appeal to the Council. 3. The Council, by majority vote. 4. Persons who were entitled to receive notice of the action but did not receive notice due to error. SECTION 18.108.140 Fees. Fees for applications under this Title shall be set by resolution of the Council. Page 10 of 12