Loading...
HomeMy WebLinkAboutExhibit 3 FOSTER DENMAN, LLP KAREN C. ALLAN JASON M. ANDERSON LEWIS W. DAHLIN DONALD K. DENMAN STUART E. FOSTER TIMOTHY L JACKLE GARY C. PETERSON Attorneys at Law 201 WEST MAIN STREET, SUITE 400 P.O. BOX 1667 MEDFORD, OREGON 97501 JUDY A. LININGER TRUST AND PROBA TE ADMINISTRATOR j EX!"ll:;.t I EX,~iBI, (! c.. - ~ I - --2------"',, I Pt~\# . <C"__ ~_ nt.!t= ,,,"!,,.,......, ",,) "'-,. '- '-. ,.." ..-- . ---..;,.;;.....; TELEPHONE (541) 770-5466 ERIC R. FOSTER FACSIMILE (541) 770-6502 April 6, 2004 Mr. Paul Nolte City Counsel City of Ashland 20 East Main Street Ashland, OR 97520 Re: Planning Action 2003-118 DeBoer Application for Physical Constraints Review Permit/City Council Appeal Dear Paul: Your opinion with respect to the effect of a 3/3 tie vote, like your previous opinion that the Hearings Board decision was not the final decision of the City, effectively "reads out" clear and unambiguous provisions of the City's ordinances. 108.110(2) requires that all appeals state "... the specific grounds for which the decision should be reversed or modified (emphasis added), based on the applicable criteria or procedural irregularity". 1 08.11 O( 5) provides that the Council "... may affirm, reverse or modify the decision ...". Section 1 08.1 00(4) provides that the appeal shall be a "... de novo evidentiary hearing". Y our interpretation is not de novo as that term is usually understood, i.e., the appellant body gets to review all of the evidence "anew, afresh, a second time". (See Black's Law Dictionary). Your interpretation makes the City Council hearing "ab initio" meaning "from the beginning, from the first act", (See Black's Law Dictionary). Under this interpretation the work of the Hearings Board or Planning Commission becomes a nullity. It's not really an "appeal", it's just a simple request for Council to hear the matter. If your interpretation is correct there would be absolutely no reason for Section 108.110(2) to require an appellant to state specific grounds for which the decision should be reversed or modified, and no reason to reference any applicable criteria or procedural irregularity. Likewise, there would be absolutely no reason for Section 108.11 O( 5) to contain any Mr. Paul Nolte April 6, 2004 Page 2 reference to affirming, reversing, or modifying the underlying decision. If the ordinance intended that the City Council hear the matter ab initio, it would merely provide for a party to file a request for hearing, not a notice of appeal stating grounds for reversal or modification. It would be totally irrelevant that the appellants state any grounds for appeal since the City Council would be hearing the matter without any regard whatsoever to the Planning Commission or Hearings Board decision. This completely stands the traditional idea of an "appeal" on its head. Your argument that the applicants continue to have the burden of proof is also misplaced. The applicants in any land use action always have the burden of proving they meet the applicable criteria. The Hearings Board has decided that the applicants met that burden of proof. The City Council (assuming it has a right to hear this appeal) can reverse that decision, but it requires a majority vote of the City Council (see Section 108.100(D)). Requiring appellants to persuade the appellate body to reverse an underlying decision does not shift the burden of proof to appellants. They merely have the burden of persuasion at the City Council level. With respect to your earlier decision that this matter is appealable to the City Council, that decision also effectively "reads out" of the ordinance Section I 08.070(B)(I). That section clearly, unequivocally, and unambiguously provides that the Hearings Board decision"... shall be the final decision of the City on such matters ...". There are no qualifiers, carve outs, or exceptions. If the intent of the ordinance was that any appeal of a Staff Permit decision turns the entire planning action into a Type II Planning Action, then 108.070(B)(I) would have included the language found under subsections (2) and (3) dealing with Type I and Type II Planning Actions, i.e., "... unless appealed to the Council...". As you know, it is fundamental law of statutory construction that you try to give meaning to all provisions of an ordinance, and that you do not put into an ordinance language that is not there. It is also fundamental that when seemingly conflicting provisions can both be read in a manner that gives each one of them meaning, that is the preferred meaning. Section 108.050(A)(6) can be read in a manner that is consistent with 108.070(B)(1). Staff has traditionally considered 108.050(A)(6) as simply requiring that the "public hearing" following a Staff decision resulting from a Staff Permit procedure follow the procedural format of a Type II action. In other words, in giving notices and following other procedures for the hearing itself you follow the Type II process. When read in this way, that provision is consistent with 108.070. The way you now interpret this provision automatically converts any Staff procedure into a Type II proceeding upon appeal to the Hearings Board. Again, if that were the intent then Mr. Paul Nolte April 6, 2004 Page 3 the final decision of the City would be the final decision of the Staff adviser, unless appealed to the City Council. There would be no need to even reference a hearing by the Hearings Board or Planning Commission because their work has become a nullity. I would suggest that you are placing 100% of your reliance upon the only provision we're dealing with which creates an ambiguity, at the expense of ignoring clear and unequivocal provisions of the ordinance. The reference to "public hearing" in 108.050(A)(6) is an anomaly. It does not fit with any of the other six listed items under that section. It creates a form of "planning action" out of a "public hearing". This provision can only be given meaning without eviscerating other sections of the ordinance by giving it Staff s traditional interpretation. Since it is the prerogative of the City Council to interpret its ordinances, I think these questions should be answered by the Council itself, having taken into consideration your opinion and this response. Ayours, M Gary C. peZ V2 / GCP:ph cc: Sid and Karen DeBoer