HomeMy WebLinkAbout2004-0804 Study Session Packet
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CITY COUNCIL STUDY SESSION
AGENDA
Wednesday, August 4, 2004 at 12:00 p.m.
Council Chambers, 1175 East Main Street
1. Presentation on Making Land Use Decisions.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in
this meeting, please contact the City Administrator's office at (541) 488-6002 (TTY phone number
1-800-735-2900). Notification 72 hours prior to the meeting will enable the City to make reasonable
arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title I).
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C"TV OF
ASHlLAND
Memo
DATE:
TO:
FROM:
RE:
August 4, 2004
Honorable Mayor and City Council Ils:\
John McLaughlin, Director of Community Development ~
Council Study Session - Presentation on Making Land Use Decisions
Barbara Jarvis
Barbara Jarvis, attorney and former chair of the Ashland Planning Commission will making a short
presentation to the Council regarding ex parte contacts and other issues regarding 'land use hearings to
the Council during the noon study session. A handout titled "Making Land Use Decisions" prepared by
Barbara is attached. Also, a handout prepared by former City Attorney Paul Nolte on land use issues is
also attached.
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning Division Tel: 541488-5305
20 East Main Street Fax: 541488-5311
Ashland, Oregon 97520 TTY: 800-735-2900
www.ashland.or.us
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Making Land Use Decisions
NE~wly appointed Planning Commissioners often take seats believing
that land use decisions are made based on each individual's opinion. That
is, each person votes according to what he or she thinks is in the best
interest of their community. They are often surprised to learn that state law
requires that there be criterion against which the decision must be made
and procedures that must be followed.
RE~cent trends include increased scrutiny by the 9Qurts and increased
community sophistication and involvement. Consequently, more than ever
before commissioners must make their decisions accurately, fairly and
consistently. Thus, your decisions must be made consistent with the
Comprehensive Plan, and the Ashland Zoning laws.
Quasi.'~Jdicial Function
What does "quasi-judicial" mean? When a governmental body (such
as' a Planning Commission) applies' law to a particular set of facts or
circumst.ances to reach a decision, the decision is "quasi-judicial" because
,the gov€trnmental body is taking an action similar to that taken by ajudge.
"Quasi" Imeans nearly, almostor like. Traditionally, .court-like"..procedures
of government have come to be known as "quasi-judicial" because they are
, 'like thos,e procedures used by courts.
How does one "act like a judge"?
1. Decisions'are to be based on testimony (evidence) received
afa hearing. .
2. Decisions are based on whether or not the applicant has met
the criteria in the planning action to be heard.
,3. Decisions are ~Iso determined on whether or not the
opposition has countered successfully the applicant's
evidence on the criteria.
4. Decisions are based on relevant evidence.
Essentially, this means that the hearings must be fair. The elements
that are !Used to determine the fairness of the hearing has been determined
by the Oregon courts~
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They are:
1. All parties have a right to be heard.
2. Parties have a right to present and rebut evidence.
3. Parties have a right to an impartial hearing with no pre-
'hearing or ex-parte contacts determining the outcome.
4. Parties have a right to findings of fact.
5. Parties have a right to a record of the proceedings.
Ex Parte Contacts
Entertaining ex-parte contacts is very seductive. Phone calls a~)king you
for favors, or to listen to their concerns can make one feel very importalnt.
Unfortunately, it is not in the job description for this position. Such contacts are
deemed ex parte.
Ex-parte, is defined as follows: on one side only, by or for one party, done"
for, in behalf of or on the application of, one party only.
To be an ex-parte contact, it must meet 3 tests.
1. It must be regarding merits of a given question or proposal.
2. It must concern a question which is before or which subsequently
comes before the Planning Commission.
3. It must be received ina context whereby parties who mightdisagree
. with the communication are not afforded an opportunity to re~)pond.
Communications wtthstaf( are covered by statute and are exernpt from ex
parte rilles. Site visits are ~so ex parte communications. It is important that you
report to the parties anythi1fg thll impressed you. or gave you concern~) on the
site visit. This insures that either party has an opportunity to rebut your concerns.
If you receive an ex parte contact, you may be given information that
rendered you biased for or against one side. You can never be sure the other
side could not have effectively rebutted this information. In order for the
community to accept that your decisions are fair, they must know that you are
making the decision fairl~and on the testimony given at the planning hearing.
Fairness has been interpreted by the courts to require that a decision is based on
evidence presented at a bearinQ. )
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So, what do you do. It is really quite simple. Not only do you discourage
any ex parte contacts, refuse to entertain them. If you are called on the phone,
explain very simply that you want to be fair to both parties, and you haive been
encouraged by the City Attorney that in order to do so, you are not to _accept any
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ex parte contacts. Suggest that they wouldn't want you to talk to the other side
and listen to their position without them being aware of that conversation. The
same appliE~s if you are accosted on the street, or receive e-mails. If e-mails are
sent to all the commissioners and then given to the party on the other side that
would be acceptable.
If, the~ contact was unavoidable, (and few are) you must disclose it. This is
the hard palrt, particularly if the conversation goes on for any length of time. You
must report the following:
a. Name of the person
b. Delte of communication
c. Facts related to you, especially those likely to influence your decision.
Determining c, and reporting it accurately is very difficult, and is the primary
reason not to have any ex parte contacts. Few are able to acCurately report what
tone, what "nuance, what inflection of voice communicated to us information that
might be determining of the outcome.
Many times you will be told that the reason for the call is that the person
will be out of town. Encourage them to write their position and send it to the
Planning DE~partment or have someone bring it and read it. Again, reiterate that
you will not take any information from either side so that you can be fair to both.
By so doing you will insure your credibility and fairness. The community needs to
know that everyone appearing before you will be treated in a like manner.
Bias
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Bias i:s easier. It is a prejudice or prejudgment of facts that will make you
incapable of rendering an objective decision on the merits. The more usual
meaning of bias is if the decision could result in financial loss or gain to you as
co.mmissioner, a member of your household or your business.
Communiqr Rules
Why is it important that you base your decision fairly and openly on the
criteria and the Comprehensive Plan? First, because you are legally required to
do so. Secondly, and this point is usually overlooked, the Comprehensive Plan
and the. Land Use Ordinances are the community rules. The citizens of Ashland
have participated in the formation of these documents. The process of adopting
them is' a public and participatory procedure. These rules belong to the people of
Ashland. They want to be assured that their rules are followed and are upheld.
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Making the procedure transparent and fair to all insures the citizens thalt they too
will be treated fairly.
Legislative Functions
Planning Commissions not only have a quasi judicial function, they also
have a legislative function. The hearings on land use changes, additions and
updates to the Comprehensive Plan are all part of the duties of Planning .
Commissions. This is where you want to encourage communication from the
citizenry. Unfortunately, it is the area where there is the least citizen involvement.
When the ordinances or community rules for land use are changed the~ broadest
viewpoints are needed to make informed decisions on those changes.
Summary
1. Decide all planning actions based on the relevant criterial.
2. Apply relevant evidence to the criteria.
3. State reasons for accepting or refusing controverted evidence.
4. Be fair to all parties. Do not entertain ex parte contacts.
5. .Come to the hearing with a "clean slate" mind set
6. Make decisions based only on evidence presented in thel hearings.
7. Declare any bias you have.
8. Make sure that your mind set is such that if you were on~9 of the
parties you would be comfortable having someone with your
mind set hear your application.
9. Be scrupulously fair.
10. Encourage participation in the legislative process.
11. Give yourself a pat on the back for your valuable service! to your
community.
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ETHICAL PRINCIPLES FOR PLAN.NING
'According, to the Oregoll Ethics (;uide, "A public office is a public trust. It Planning issues
commonly involve a conflict of values, and often there are large private interests at stake.
These acctmtuate the necessity for the highest standards of faiOless and honesty among all
participants. The AP A and AICP recommend the following ethical principles be followed
in decision-making.
Planning I~r~cess participants continuously,strive to achieve high standards of
integrity Stnd proficiency so that public respect for the planning process will be
maintained.
Planning Pl~ocess Participants should:
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1. Ext~rcise fair, honest and independent judgment in their roles as decision-makers
and advisors;
2. MaJke .public disclosure of all "personal interests" they may have regarding any
decision to be made in the planning process in which they serve, or are required to
serve, as advisor or decision-maker.
3. Def~rie "personal interest" broadly to include any actual or potential benefits or
advantages that they, a spouse, family member or person living in their household
might directly or indirectly obtain from a planning deci~ion~
4. Abstain completely from direct or indirect participation as an advisor or decision-
maker in any matter in 'which they have a personal interest, and leave any chamber
in which such a matter is under deliberation, unless theIr personal interest has been
made it matter of public record~ their employer~ if any, has given approval, and the
publlic official, public agency or court with jurisdiction to rule on ethics matters has
expressly authorized' their participation~
5. Seek no gifts or favors, nor offer any, under circumstances in which it might
reasonably be inferred that the gifts or favors were intended or expected to
influence a participant's objectivity as an advisor or decision-maker in the
plannin~ process; .
6. . Not participate as an advisor or decision-maker on any plan or project in which
they have previously participated as an advocate;
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7. Serve as advocates only when the client's objectives are legal and consistent with
the public interest~ . .
8.
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Not participate as an advocate on any aspect of a plan or program on which they
have previously served as advisor or decision-maker unless thleir role as advocate
is authorized by applicable law, agency regulation, or ruling of an ethics officer or
agency~ such participation as an advocate should be allowed only after prior
disclosure to, and approval by, their affected client or employc~r; under no
circumstance should such participation commence earlier than one year following
termination of the role as advisor or decision-maker;
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9.
Not use confidential information acquired in the course of their duties to further a
per~onalinterest~
Not discuss confidential information acquired in the course of their duties except
when required by law, to prevent a clear violation of law or to prevent substantial
injury to their persons~ provided that disclosure in the latter 1\'10 situations may not
be made until after verification of the facts and issues involved and consultation
with other planning process participants to obtain their separate opinions;
11.
Not misrepresent facts or distort intormation tor the purpose of achieving a desired
outcome.
12. Not participate in any matter unless adequately prepared and sufficiently
capacitated to render thorough and diligent .service~
13. Respect the rights of all persons and not improperly discriminate against or harass
others based on characteristics which are protected under civil rights laws and
regulations.
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Summary of Ethical Principles for Planning
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1. Planning officials ought to serve the public interest.
2. Planning officials ought to recognize the right of citizens to influence decisions.
3. Planning officials ought to recognize the long range nature of planning decisi9ns.
.4. Planning officials ought to strive to expand choice and. opportunity for all persons.
5. Planning offic~als ought to encourage the coordination of activities, and efforts in
accommodation of all interests.
6.' Planning officials ought to avoid conflicts of interest.
7. Planning officials ought to be thorough and diligent.
8. Planning officials ought not to seek or o~er.favors to. special interests.
9. Planning officials ought not disclose or irnpropetly use confidential information for
financial gain.
10. Planning officials ought to insure equal access to public records.
11. Planning officials ought to insure that all relevant information is disclosed at public
meetings. .
12. Planning officials ought to maintain the public confidence.
13.
Planning offici~ls ought to respect the professional code of ethics (published by the
American Institute of Certified Planners as'a guid~ to its membe(s).
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CITY OF ASHLAND
PLANNING COMMISSION WORKSHOP
October 25, 1994
EX PARTE CONTACTS
1. The requirement of an impartial tribunal. The Oregon Supreme Court in
Fasano 1 and the state legislature2 have recognized that in a quasi-judicial decision
the parties before the planning commission are entitled to an unbiased decision,
based solely on the evidence. If you have received an ex parte communication, you
have been given information which may have rendered you biased for or against one
side of the issue. If you receive communications from only one side of the
controversy, you can never be sure that the other side could not have effectively
rebutted this information if they had known about it. By the same token, in order for
the public to accept the fairness of your decisions, they must know that you are
, making that decision fairly. Fairness has generally been interpreted by thE! courts to
require a decision based solely upon the evidence presented at the hearinQ:.
2. What Is an ex parte communication? Ex Parte is a Latin term which is defined as
Hon one side only; by or for one party; done for, in behalf of, or on the application of,
one party only." In practical terms, for an ex parte communication to exist, three tests
must be met:
2.1. The communication must be regarding the merits of a given question or
proposal.
2.2. The communication must concern a question which is before or which
subsequently comes before the decision maker for actio!"'.
2.3. The communication must be received in a context whereby those parties
who might disagree with the communication are not afforded an opportunity to
respond.
Ex parte contact includes all information relevant to the matter at hclndgained'
outside the forma/ proceedings and not in the record. While ex palte contacts
may affect. . . impartiality, the risk to the integrity of . . . proceedings from ex
parte contacts is that the decision may be made on the basis of facts not
disclosed in the record. The risk is reduqed when information gained ex parte
1 Fasano v. Washington County, 264 Or. 574 (1973)
2 ORS 227.180(3) through (5). See paragraph 4.
PAGE 1-PLANNING COMMISSION WORKSHOP - OCTOBER '94 (p:planning\workshop.094)
is made part of the record by disclosure in the proceeding. The function of
disclosure is therefor corrective. Failure to disclose information gathered ex
part~3, on the other hand, wil/ invalidate the decision. 3
3. Obligation to discourage ex parte communications. A difficult aspect of being a
planning commissioner is to tactfully but firmly inform citizens that you cannot discuss
a given matter with them. Some jurisdictions have adopted a rule that is a matter is
before thern for action, the planning commissioners absolutely will not discuss the
matter with private citizens. This is the proper position to take.
If a citizen telephones you or stops you on a street corner and begins to
discuss a rnatter which you believe is likely to go to the merits of a controversy which
will be before you as a planning commissioner, there are several ways the encounter
can be handled:
3.1. Advise the person that the City Attorney has advised that you cannot
discuss this matter because it concerns a subject which is or will soon be before the
planning commission for action.
3.2. Advise the person that it's against the law for you to discuss the matter
privately since this issue will soon be before the planning commission.
3.3. Advise the person that the law says that you are only allowed to get
information concerning this issue at a public hearing. Have the person call the
Planning D,epartment for information as to whether there is any way that you can still
present this information to the City.
4. Ex parte contact rule modified by the legislature. The right to an impartial
tribunal as expressed in the Fasano case has been modified by the legislature. The
statutes provide that no decision shall be invalid due to an ex parte contact or to bias
resulting from an ex parte contact with a member
4.1. If the member places on the record the substance of a written or oral ex
parte comrnunication concerning the decision; and
4.2. Has a public announcement of the content of the communication made at
the first hearing following the communication where action will be considered or taken
on the subjject to which the communication related. ORS 227.180(3)
In other words, if you receive an ex parte communication you must disclose it.
In order to effectively disclose an ex parte communication, you must do more than
simply notE~ that you had a conversation with a given citizen on a given date
concerning the subject in question. Your disclosure must contain enough information
so that the party who was affected by the communication has an opportunity to
3 100 Friends of Oregon v. Wasco Co. & Knapp, 14 Or LUBA 315, 321 (1986).
PAGE 2-PlANNING COMMISSION WORKSHOP - OCTOBER '94 (p:planning\workshop.094)
effectively rebut it. If you simply disclose that you had a conversation without going
into some detail concerning the information which you received, there is no way that
the party affected will have a true opportunity to present an effective rebuttal.
Remember, the communication you received may have contained false information.
The best way to determine whether the information is true or not is to give! all parties
affected an opportunity to respond so that you can make an informed decision. The
quality of your decision will be improved if you make sure that the party affected by an
ex parte communication has a fair opportunity to rebut it.
5. Effective disclosure of ex parte communications. An effective disclosure of an
ex parte communication must include the following:
The name of the person who communicated with you.
The approximate date of the communication (this is probably not as critical as
the other factors).
A summary of the facts related to you (give special attention to any facts which
you believe and which are likely to influence your decision).
6. Site views. Whenever the planning commission views property as a commission
all parties should be notified of the date and time of the view and that the parties may
attend if they so desire. Commission members should refrain from makin!;;) any
contact with any of the parties while participating in the view. Commission members
should refrain from discussing among themselves the merits of the matter before
them.
Commission members participating in the view or commission merrlbers who
view the site by themselves must disclose at the hearing the information they acquired
during the view (what they saw or believe as a result of the view). This requirement is
not so crucial if all parties have received sufficient notice of the time and date of the
view and have been given a reasonable opportunity to accompany the commission at
its view.
PAGE 3-PLANNING COMMISSION WORKSHOP - OCTOBER '94 (p:planning\workshop.094)
THE DOLAN4 DECISION
7. Brief re!view of facts. This case involved exactions required by the City of Tigard
for a development permit to Mrs. Dolan to double the size of her plumbing supply
store (A-Boy Plumbing) in downtown Tigard and to pave the previously unpaved
parking lot. The city required, among other things, a dedicated greenway and
pedestrianlbikepath. Dolan appealed the dedication conditions on the basis they were
not related and therefor amounted to an uncompensated taking of her property. She
lost appeals at LUBA, the Oregon Court of Appeals and the Oregon Supreme Court.
8. The U.S. Supreme Court holding. The U.S. Supreme Court found that the city
had demonstrated the "essential nexus" between the dedications and the projected
impacts of the expansion as required in Nollan v. California Coastal Commission. The
court used this case as an opportunity, however, to expand on Nollan to define the
degree of connection necessary between the proposed exactions and the projected
impact of the development. The court answered this issue by reducing the complex
constitutional requirement under the Takings Clause in the Fifth Amendment ("nor shall
private property be taken for public use without just compensation") to "rough
proportionality: "
"No precise mathematical calculation is required, but the city must make
some sort of individualized determination that the required dedication is
related both in nature and extent to the proposed development's impact."
The court found a nexus existed between the city's requirement of a greenway
and flood control, but that the city went too far when it required the greenway to be
dedicated. The court determined that the city never articulated why a public
greenway, as opposed to a private one, was required in the interest of flood control.
The court found this to be a taking of Dolan's property rights, in that it took her ability
to exclude persons from her property, "one of the essential sticks in the bundle of
rights that are commonly characterized as property. II
In addition, the court held that the city failed to demonstrate that the additional
number of vehicle and bicycle trips generated by the development reasonably related
to the city's requirement for a dedication of the pedestrian/bicycle pathway easement.
The court quoted with favor the dissent in. the Oregon Supreme Court involving Dolan:
4 Dolan v. City of Tigard, _ S.Ct. _ (1994 WL 276693), June 24, 1994.
PAGE 4-PlANNING COMMISSION WORKSHOP - OCTOBER '94 (p:planning\workshop.094)
"As Justice Peterson of the Supreme Court of Oregon explained in his
dissenting opinion, however, '[t]he findings of fact that the bicycle
pathway system could offset some of the traffic demand is a far cry from
a finding that the bicycle pathway system will, or is likely to, offset some
of the traffic demand. '"
The court said the city must make some effort to quantify its findin~Js in support
of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement
that it could offset some of the traffic generated.
9. Dolan doctrine. 1) Dolan makes it clear that the city can deny a permit for
development if the impacts of the development are not mitigated. 2) If land
dedications are required as a result of the conditions of approval, the burden is on the
city to prove it meets the requirements of Dolan. 3) The city must quantify the
effects of development but does not have to be mathematically precise in measuring
effects against exactions. The formula "must be "roughly proportional" or reasonable in
nature and extent.
10. Dolan downside. The burden of proof shift to the city increases the cost of
evaluating proposed projects. The city can react in at least two different fashions: It
can Increase fees to pay for the additional cost of gathering quantifiable ,evidence or it
can use Its denial authority when the developer fails to quantify impacts"
11. Dolan details.
11.1. Never use the tic" word. The Supreme Court rejected Tigard's
pedestrian-bicycle pathway dedication condition largely because the planning
commission used the word "could" instead of "would" in its findings. Although the
Court said it was not requiring a "precise mathematical calculation," at least some
effort should be made to quantify findings to avoid generalized or conclusory
statements. If your findings say the dedication or exaction "couldll alleviate a project's
impact, this should tip you off that your analysis is inadequate and must be refined to
enable you to say "would.1I
11.2. Individually tailor findings to the specific project. Don't automatically
assume that just because the plan requires certain dedications that you have satisfied
the city's burden to show the required degree of connection. Remember that Dolan
requires some sort of individualized determination to be made.
11.3. Reserve land or require a use restriction where it achieves the same
purpose as a dedication. The Supreme Court faulted Tigard for imposing the
dedication of the floodplain portion of Dolan's property, instead of merely prohibiting
Dolan from building upon the floodplain. The court placed a very high value on
Dolan's right to exclude others from the floodplain area, a right she would forfeit with
the dedication. If a reservation or use restriction achieves the same purpose as an
outright dedication, then a very specific analysis must be done to demonstrate why the
dedication is essential. (In many situations property owners may willingly accept the
PAGE 5-PLANNING COMMISSION WORKSHOP - OCTOBER '94 (p:planning\workshop.0941
dedication as a way to avoid liability and maintenance concerns.)
12. Dolan deeds. Mac and staff will have to perform the following deeds to ease
complianCEt with Dolan:
12.1. Develop or identify code language that clearly allows the city to deny a
project if the developer does not quantify impacts.
12.2. Eliminate, automatic dedication requirements.
12.3. ' Develop a strong record with adequate findings.
PAGE 6-PL.ANNING COMMISSION WORKSHOP - OCTOBER '94 (p:planning\workshop.0941
THE COMPASS6 CASE
When 120 Days Means 120 Days
13. Origin and history of the 120 day rule. The 120 day rule requires the city to
make a land use decision within 120 days of the date the application for a land use
permit is deemed complete6. The 120 day rule was adopted in 1983, as part of the
5 State ex reI Compass Corporation v. City of Lake Oswego, 319 Or 5:37 (1994)
6 227.178 Final action on certain applications required within 120 days; exceptions; mandamus
authorized. (1) Except as provided in subsections (3) and (4) of this section, the governinlg body of a
city or its designate shall take final action on an application for a permit, limited land use decision or
zone change, including resolution of all appeals under ORS 227.180, within 120 days after the
application is deemed complete.
(2) If an application for a permit, limited land use decision or zone change is incomplete!, the governing
body or its designate shall notify the applicant of exactly what information is missing within 30 days of
receipt of the application and allow the applicant to submit the missing information. The application shall
be deemed complete for the purpose of subsection (1) of this section upon receipt by thE~ governing
body or its designate of the missing information. If the applicant refuses to submit the missing
information, the application shall be deemed complete for the purpose of subsection (1) of this section
on the 31st day after the governing body first received the application.
(3) If the application was complete when first submitted or the applicant submits the requested
additional Information within 180 days of the date the application was first submitted and the city has a
comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial of
the application shall be based upon the standards and criteria that were applicable at the time the
application was first submitted.
(4) The 120-day period set in subsection (1) of this section may be extended for a reasonable period of
time at the request of the applicant.
(5) The 120-day period set in subsection (1) of this section applies:
(a) Only to decisions wholly within the authority and control of the governing body of the city; and
(b) Unless the parties have agreed to mediation as described in ORS 197.318 (2)(b).
(6) Notwithstanding subsection (5) of this section, the 120-day period set in subsection (1) of this
section does not apply to an amendment to an acknowledged comprehensive plan or land use
regulation or 'adoption of a new land use regulation that was forwarded to the director under ORS
197.610 (1).
(7) If the governing body of the city or its designate does not take final action on an application for a
permit, limited land use decision or zone change within 120 days after the application is deemed
complete, the applicant may apply in the circuit court of the county where the application was filed for a
writ of mandamus to compel the governing body or its designate to issue the approval. The writ shall be
PAGE 7-PLANNING COMMISSION WORKSHOP - OCTOBER '94 (p:planning\workshop.094)
same bill VI/hich enacted the expedited LU BA review of land use appeals 7. (The city
gets the same 120 days to resolve an application for a variance to a front porch as it
does for a 120 unit retirement home complex requiring conditional use and site design
approval.)
14. Starting the clock. The 120 day clock starts to run "after the application is
deemed complete." ORS 227.178(10). The planning department has 30 days from the
date the application is filed to inform the applicant whether the application is complete
and explain to the applicant exactly what information is necessary is necessary. ORS
227.178(2). The application is deemed complete upon receipt of the additional
information. If the applicant refuses to submit any additional information, the
application is deemed complete on the 31st day after filing. ORS 227.178(2).
TIP: At the department level, if the developer wants additional time or wants to
argue whether a requirement is applicable, ask for a written waiver of the rule
for that time period under ORS 227.178(4). If the developer refuses, deny or
recommend denial of the application based upon lack of substantial evidence
derr,onstrating compliance with the criteria.
15. Stopping the clock. The 120 day period may be extended for a reasonable time
at the request of the applicant. ORS 227.178(4). ORS 197.763(4)(b) exempts from the
120 day pE3riod a continuance of a public hearing granted to address new evidence in
favor of an application, and ORS 197.763(6) exempts the period of time that the record
remains open after the hearing where there has been a request to submit additional
evidence or testimony.
TIP: At the hearing level, require an express extension on the record every time
an cipplicant desires additional time.
16. After Compass, local government can no longer beat the clock. Prior to
Compass, mere expiration of the 120 day period did not divest a local government of
the jurisdiction to make a decisions. If local government made a decision after
expiration of the 120 day period but prior to the filing of a mandamus action, circuit
court could not exercise its mandamus powers because LUBA then had jurisdiction.
Ultimately this principle was extended by the court to include decisions made by local
government after filing of the writ in circuit court but prior to the decision of the court9.
Issued unless the governing body shows that the approval would violate a substantive provision of the
city comprehensive plan or land use regulations as defined in ORS 197.015.
7 198~J Or Laws. Chapter 827, 99 23, 27, 31 and 35.
S See Simon v. Marion County, 91 Or App 487 (1988) and Bigej Enterprises v.
Tillamook (Jaunty, 118 Or App 342 (1993).
9 EdnE~y v. Columbia County, 119 Or App 6 (1993).
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In Compass, the court applied the statutes as written noting that OHS
227.178(7) states that the circuit court shall issue an order requiring approval of the
application "unless the governing body shows that the approval would violate a
substantive provision of the city comprehensive plan or land use regulations. . . .10
The court concluded that the legislature intended to grant an applicant a special right
to a decision compelling approval pursuant to a much more favorable standard for
review:
"Our review of the text and context of ORS 227.178(7) leads us to conclude that
the legislature's intention behind that statute is clear. It creates a re1medy - a
judicially compelled approval - for a city's violation of the 120~day deadline in
ORS 227.178(1). The applicant's right to that remedy is not affected by the
city's decision, after the 120-day period has expired, to deny the application.1I
319 Or at 546.
17. Impact of decision.
If the city makes a final decision any time after 120 days has expired, the
applicant now has the right to go to circuit court to compel approval regardless of
whether the petition for the writ is filed before or after the final local decision.
In order to avoid issuance of a writ forcing the city to approve the application,
the city must go to circuit court and demonstrate that the approval would violate a
substantive portion of the city comprehensive plan or land use regulations. ORS
227.178(7). If the city loses (Le. a writ is issued forcing approval of the application) the
city can be assessed attorney fees.
18. Suggestions to avoid 120 day violations.
1. Make clear on the application form or at the pre-application conference
exactly what information is needed to complete an application.
2. If an application is incomplete, clearly articulate in writing prior to the
expiration of the 30 day period exactly what is needed to complete the application and
why.
3. If the applicant has not submitted the required information to complete the
application after written notice of the deficiencies, deny the application.
4. Do not attempt to make a weak application fit the process and fulfill the
requirements, unless the applicant waives the 120 day period.
5. Do not grant any continuances requested by the applicant without a waiver
of the 120 day period.
10 319 Or at 543-545.
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6. Do not grant continuances at the request of anyone other than the applicant
unless the continuance is an exception to the 120 day rule (ORS 197.763(4)(b)
exempts from the 120 day period a continuance of a public hearing granted to
address new evidence in favor of an application and ORS 197.763(6) exempts the
period of tilme that the record remains open after the hearing where there has been a
request to submit additional evidence or testimony).
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