MEMORANDUM

DATE:  January 22, 2004
TO:  Mayor and City Council
FROM:  Michael W Franell
THROUGH:  Paul Nolte
RE: Analysis of letter received from Gary C. Peterson, dated January 20, 2004, on behalf of Ed and Tanya Bemis

After reviewing the letter and legal memorandum submitted by Gary C. Peterson on January 20, 2004, on behalf of Ed and Tanya Bemis we have the following comments:

1) We agree with the assertion that ORS 227.178(3) and the holding in Holland v. City of Cannon Beach, 154 Or App 450 (1998) require a municipality to apply the ordinances and development standards which are in place at the time the Bemis application was filed.

ORS 227.178. Final action on certain applications required within 120 days; procedure; exceptions; refund of fees.

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(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.

Based upon the record, the applicants initially submitted their application on September 12, 2003. Even though the application was not deemed complete until October 3, 2003, approval or denial of their application is to be based upon the standards and criteria that were applicable on the September 12th date. Therefore the provisions of the "big box "ordinance passed in 1992 are the applicable provisions.

2) All of that being said, we do not believe that the provisions of ORS 227.178(3) or the holding in Holland would necessarily prohibit the city council from reinterpreting the meaning of the applicable ordinance.

In Holland the issue involves an instance where the council reinterpreted its decision as to whether a particular standard was applicable, not as to how an applicable standard was to be interpreted. The council first determined that the standard had been impliedly repealed and did not apply to similar projects before and after the applicant's proposed project. However, as to the applicant's project, the council determined that the standard had not been repealed and therefor was applicable.

In contrast to the Holland case, here, there has not been a question that the 1992 version of Ashland Land Use Ordinance (ALUO) § 18.72.050.C is the applicable provision of the code. Rather, the question that the council needs to address is what does application of that code provision mean to the proposed project.

What the court did not decide in Holland is that the Council is precluded from reinterpreting an ordinance when it has had a prior contradictory interpretation. Instead, the Court noted:

"We do not categorically foreclose the possibility that, as LUBA concluded, there may be circumstances under which a city governing body may appropriately change a previous interpretation as to whether a particular provision is an approval standard during its proceedings on a particular application." Holland @ 459.

LUBA, when it addressed this issue, stated:

"As a general matter, local governments may interpret their ordinances to determine which provisions constitute approval criteria, and we accord that interpretation significant deference. Local governments may also change existing interpretations in the course of ongoing proceedings." (Emphasis added.)

Should the council choose to reinterpret ALUO §18.72.050.C. consistent with its direction in the public meetings held prior to the submission of the Bemis application (that the 45,000 square feet limitation applies to the gross total floor area square footage, rather than the footprint square footage), at least one appellate court decision has indicated, depending upon the particular circumstances, an opportunity to comment on the proposed new interpretation may need to be provided to the parties. However, the fact that the council and planning commission have already held an extensive public process on this matter may suffice to have met this requirement. This would be even more likely if the applicants participated in the public process on the reinterpretation.

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