CIRCUMSTANCES
OF CLAIMED VIOLATION
RESULTING
IN A WRIT OF MANDAMUS
Report
To
Mayor
Sheldon Meyer and the Dunes City Council
Prepared by
Ralph
Farnsworth and John Stead
September
13, 2007
OVERVIEW
On
August 9, 2007
, the City received a
Petition for Alternative Writ of Mandamus (Writ) as prepared by Michael E,
Farthing, Attorney for the Plaintiff (developer of Little Woahink). The
petition seeks to compel City approval of what they refer to as; “The
Woods at Little Woahink Subdivision Tentative Plan”, [i]
and the “alternative subdivision application,” regarding Little
Woahink PUD (01-06) and Little Woahink Phase III, which was hand delivered
on March 2, 2007. [ii]
The
writ asserts that the 120-day time limit [iii]
had expired without a decision so the City should be required to honor the
request. [iv]
At a special meeting of the City Council on August 28, the council
appointed Ralph Farnsworth and John Stead, under the guidance of the City
Attorney, to determine the facts regarding the 120-day time limit and give
a report at the September 13th Council Meeting. [v]
The authors
consulted with City Attorney Darnielle who suggested that we talk with
Teri Tinker, review the records, describe the existing application
process, and make recommendations on how the process might be
strengthened.
The
applications’ paper trails, related statutes and City ordinances were
reviewed. Findings were made, conclusions were drawn and recommendations
were prepared.
FINDINGS
1.
Timing The Application Process: ORS
227.178 requires that final
action including resolution of all appeals be taken 120 days after the
application is deemed complete. [vi]
The application is deemed complete upon a determination that the
application complies with all applicable standards and criteria, [vii]
including Comprehensive Plan and ordinance provisions. [viii]
The Comprehensive Plan requires that final action occur 120 days after a complete application has been
received, [ix]
and under the “Old” City Code, the Planning Commission must consider
the application no more than 45 days after submittal [x]
and City Council consideration must take place no more than 45 days after
Planning Commission action. [xi]
Regarding PUD action by the Commission, the City Recorder shall notify the
applicant in writing within five days. [xii]
2.
Naming Applications: The Little Woahink subject property is
commonly identified as Assessor’s Map 19-12-11-4, Tax Lot 100.
Names associated with this property have included: Little Woahink
Lake Estates, [xiii]
Little Woahink Lake, [xiv]
Little Woahink PUD, [xv]
The Woods at Little Woahink PUD, [xvi]
Little Woahink Phase III [xvii]
(As recommended by LCOG’s Associate Planner [xviii])
Woods at Little Woahink Lake, [xix]
Little Woahink Lake PUD, [xx]
and, Little Woahink Lake PUD and Subdivision. [xxi]
3.
The Application Process: The application process began in April,
2005 with the receipt of an application for Little Woahink Lake PUD. This
application was accepted as complete on October 25, 2005. [xxii]
*
Those who
attended the Planning Commission meeting on September 15th
learned that, “. . . the hearing on Little Woahink PUD had been
postponed and would be heard October 20, 2005, but that anyone who would
not be able to attend that meeting would be allowed to give testimony
tonight since there was no open hearing.”[xxiii]
The Planning Commission then took testimony from seven individuals. [xxiv]
The proposed October hearing was rescheduled to January, [xxv]
and postponed to at least the February Planning Commission meeting. [xxvi]
City
Ordinance §155.048. (A), requires that the Planning Commission consider
the application no more than 45 days after submittal, unless further
information is required. [xxvii]
At the March 2006 City Council meeting, the application for Little Woahink
PUD was formally withdrawn. The City Attorney, “. . . said that the
current application was not feasible and would have had to have been
changed [and] . . . that the current application had to be completed
within 240 days.”[xxviii]
LCOG’s Associate Planner advised the applicant that the 245 day
window expired on
April 28, 2006
.[xxix]
The City
received seven complete copies of, “Applications for Approval of
Subdivision, Planned Unit Development and Zone Change (Little Woahink PUD)”
on April 20, 2006. [xxx]
On May 18th, the applicant was notified that additional information was
needed. [xxxi]
On June 20th the application materials were provided and
the City was informed simultaneously that the name had been changed to,
“The Woods at Little Woahink PUD”. [xxxii]
The
application forms state that all information must be provided at least 30
days prior to the Planning Commission hearing. [xxxiii]
Eight copies of a Geotechnical Assessment were sent to the Planning
Secretary on August 2nd, [xxxiv]
and on August 23rd, as a follow up to telephone conversations, the
Planning Secretary, as required by statute, [xxxv]
sent a letter to the applicant requesting clarification of the issues. [xxxvi]
* NOTE: See Eratta on Page 13.
At
the December 28, 2006, Planning Commission Meeting, commissioners were
assured that a waiver the statutory deadline had been submitted. [xxxvii]
4.
Alternative Subdivision Application:
On March 2, 2007, a letter delivered to the City Council % Joanne
Hickey, City Recorder included new maps and reports.
[xxxviii]
This was followed on March 7th by a hand delivered letter
containing additional documents.” [xxxix]
According
to the Writ of Mandamus, the alternative subdivision application was
submitted and accepted by the City on March 2, 2007. The applicant deemed
it complete on March 2nd, [xl]
or no later than April 2nd. [xli]
The
City’s new Ordinance 182 — Chapter 155 Zoning and Development — became
effective
December 25, 2006
. [xlii]
As
such, the City is required to immediately determine whether the
application is complete. If the City is unable to deem the application
complete, it shall not be accepted and shall be immediately returned to
the applicant. [xliii]
No
evidence was found to indicate that the City had taken the required
action.
5.
The Writ filed in
Circuit Court of the State of
Oregon
for
Lane
County
on
August 7, 2007
indicates that MLK,LLC,
is an
Oregon
limited liability
company. [xliv]
According
to the Oregon Business Registry this company was not renewed in June of
2007. Action taken was Administrative Dissolution. [xlv]
6,
The applicant(s) repeatedly added material after agreeing the application was
complete. (So did the City.)
CONCLUSIONS
See
#1 – Compliance with the 120-day requirement calls for careful planning
and procedures to be sure the City follows the law. In this case Staff and
the City Attorney failed to insure that the City adhered to their own
procedures.
See
#2 – The name changes in the various applications for this parcel of
land made communication difficult and created confusion for staff.
See
#3 – The application processing procedures were not followed.
See
#4 - The City failed to process this application
as required by the City Code.
See
#5 – The filing of the Writ is questionable.
See
#6 – Once the application is deemed complete the file should not be left
open as was done here repeatedly. This encouraged more confusion, made it
difficult for citizen participation, and made it hard for Staff to do
their job,
RECOMMENDATIONS
1.
Following a determination of application status, (deemed complete or
incomplete) the Planning Commission’s decision should immediately be
conveyed to the applicant, in writing.
2. Once an application is deemed complete the
file is closed. No additions, deletions nor changes are allowed
unless the file is re-opened, reviewed, deemed complete
again, after which the 120-day clock is re-started.
3.
Once an application is filed with the City the name associated with the
application should not be changed.
4.
To facilitate application processing a ‘timeline based’ list of
procedures, checklists, Flow Charts and
Control Charts should be developed to facilitate the application
processing and status reporting as required by the statutes, the City’s
Comprehensive Plan, and the City ordinances.
Control Charts should be maintained as the
topmost sheet in the correspondence file so that the various dates are
foremost in the Planning Secretary’s focus.
5.
To help the processing stay on track the City should consider splitting their
files on any future development into two, and maintained as follows:
a) A correspondence
file containing the application and any letters regarding the flow of the
process, to or from the applicant or any other interested parties.
b) Any drawings or
other materials of any kind either submitted or requested by the City
should be put into an Engineering or Compliance file.
6. Applications should
be reviewed when submitted and a list made of anything the City requires
that hasn’t been provided. This list should be double checked by a
designated member of the Planning Commission.
7. Consider creating an
Evidentiary Hearing and Waiver
Document such as is used by
Portland
. (See the
attached copy of Portland’s
Form and the Application Procedures sample from
The Dalles.)
8.
Consider adding Application Procedures to Ordinance 182/155. (See
the attached copy of
Portland
’s
Form
and the Application Procedures sample from The Dalles.)
END NOTES
[i] Exhibit A, Date 02-27-07; Plat Date
Aug. 09, 2007; Petition
For Alternative Writ of Mandamus,
Kronberger vs. City of Dunes City, No. 16-07-01728,
Michael E. Farthing, Attorney at Law, August 9, 2007.
[ii] Letter dated March 2, 2007, Hand Delivered, from
Michael Farthing to Dunes City Council,
% Joanne
Hickey, City Recorder
Re: Little Woahink PUD (01-06)
Little Woahink Phase III
The above matter is scheduled for public hearing on March 8.
For your review and consideration
at the public hearing,,(sic) I am enclosing several new maps and
reports that respond to
issues and concerns that
have been raised previously by staff, the Planning Commission,
interested parties and individual Councilors. Fifteen (15) copies of
each are provided. . .
[iii] ORS 227.178 specifies that final action is
required within 120 days after the application is deemed
complete—including resolution of all appeals.
[iv] Petition For Alternative Writ of Mandamus,
Kronberger vs. City of Dunes City,
No. 16-07-01728, Michael E. Farthing, Attorney at Law, August
9, 2007.
[v] Mandamus Motion, Adopted at the Special
Dunes City Council Meeting, August 28, 2007:
In view of the
City’s rulings on the Little Woahink development
applications and its related efforts to consider
the public interests, which are jeopardized
by the filing of the writ of mandamus, I move for the
following:
1) that the City
determine the nature of the representations
made by the Developer’s attorneys
or other representatives to the City attorney
or the City regarding any extension of the 120-day time limit and
2) that the City
appoint John Stead and Ralph Farnsworth
to act on behalf of the
City to work under the
guidance of the City attorney’s office
to determine the facts about extensions of this
120-day time limit and give a report at the
September
Council Meeting.
[vi]
ORS 227.178
Final action on certain applications required within 120 days;
procedure; exceptions; refund of fees.
(1) Except as provided in subsections (3) and (5) of this section, the
governing body of a city or its
designee 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.
[vii]
ORS 227.180 (2)
If an application for a permit, limited land use decision or zone
change is incomplete, the governing body or its designee shall notify
the applicant in writing 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 designee of:
(a) All of the missing information;
(b)
Some of the missing information and written notice from the
applicant that no other information
will be provided; or
(c) Written notice from the applicant that none of the
missing information will be provided.
(3)(a)
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.
[viii]
ORS 227.175 (4)
The application shall not be approved unless the proposed development
of land would be in compliance
with the comprehensive plan for the city and other applicable land use
regulation or ordinance provisions. The approval may include such
conditions as are authorized by ORS 227.215 or any city legislation.
[ix]
Comp Plan policy A16 – Final action shall occur 120 days
after a complete application has been received by the City, as per ORS
227.178.
[x]
DCC §155.048 . (A) The Planning Commission shall consider the
tentative plan application and all reports
and recommendations at a regular meeting no more than 45 full
days after submittal of the tentative
plan. The Commission shall recommend approval, denial, or when
further information is required, the
Commission may postpone a decision on the application.
(B) Approval must
include affirmative findings that: (1) the tentative plan complies
with all applicable provisions of state law requirements and city plans
and policies and ordinances.
[NOTE: This ordinance applies to those applications
submitted prior to December 25,
2006.]
[xi]
DCC §155.049 Review by the Council
The City Council shall
consider the tentative plan application, the recommendations of the
Planning Commission, and all
reports at a regular meeting no more than 45 days after action by the
Planning Commission. The Council
shall approve, deny or, when further information is required, postpone
a decision on the
application. Approval must include the affirmative findings listed in
155.048.
[NOTE: This ordinance applies to those applications
submitted prior to December 25,
2006.]
[xii]
DCC
§156.185 [PUD Procedure For Preliminary Plan Approval]
(B) (3) Within five days following consideration by the Planning
Commission of the zone
change and
accompanying preliminary development plan, the applicant shall be
notified in writing by the City Recorder of the Commission’s action.
(4) The City Recorder
shall forward approved Preliminary Planned Unit Development
applications to the City Council for public hearing.
[NOTE: This ordinance applies to those applications
submitted prior to December 25,
2006.]
[xiii] Notice of Public Hearing, Siuslaw News,
published September 7 and October 6, 2005
[xiv] Agenda, Planning Commission, Regular
Meeting, September 15, 2005
[xv] Minutes, Planning Commission, Regular
Meeting, September 15, 2005, (Page 1)
[xvi] Letter dated June 20, 2006, from Farthing
to Dunes City Planning Commission,
% Teri Tinker,
Re: The Woods at
Little Woahink PUD (Formerly known as Little Woahink PUD)
[xvii] Letter dated October 25, 2006, from Michael
Farthing to the Planning Commission,
Re: The Woods at Little
Woahink PUD 01-06,
Little
Woahink Phase III
[xviii]
E-Mail
From: Dearborn, Hilary,
Sent: Wednesday,
December 20, 2006
To:
Teri Tinker
Cc: Farthing,
Michael
Subject: RE: Little
Woahink PUD
I forgot to mention that
I added a paragraph in the staff report to address the naming issue
that we've
talked about. . . we can't have duplication of names, names that are
too similar. Which is why
"Little Woahink Phase III" is preferred. As required by
Dunes
City
code.
Hilary Dearborn
Associate
Planner
LCOG-Lane
Council of Governments
[xix] Supplemental Findings, Received December 13, 2006
[xx] Letter dated May 3, 2007, Hand Delivered
from Michael Farthing to Mayor Meyer andDunes City Council,
% Joanne Hickey,
[xxi]
Letter dated June 25, 2007, from Michael Farthing to Mayor
Meyer and Dunes City Council,
[xxii]
Staff
Report, Report date: November
14, 2006*
Application
Received: April
, 2005
Complete
for Processing:
October 25,
2006
Notice
Published: November
15, 2006
Report
Date: November
14, 2006
Planning
Commission
Hearing
Date:November 21, 2005
[xxiii] Minutes, September 15, 2005, Planning
Commission Regular Meeting (Page 1)
[xxiv] Minutes, December 15, 2005, Planning
Commission, Regular Meeting (Pages 1 – 3)
[xxv] Minutes, December 15, 2005, Planning
Commission Regular Meeting (Page 1)
[xxvi] Minutes, January 12, 2006, City Council
(Page 2)
[xxvii] DCC §155.048 . (A)
The Planning Commission shall consider the tentative plan
application and all reports and recommendations at a regular meeting no
more than 45 full days after submittal of the tentative plan. The
Commission shall recommend approval, denial, or when further
information is required, the Commission may postpone a decision on the application.
[NOTE: This ordinance applies to those applications
submitted prior to December 25,
2006.]
[xxviii] Minutes, March 9, 2006, City Council (Page
37)
[xxix]
E-Mail
From: DEARBORN Hilary
* NOTE: See Eratta on Page 13.
Sent: Thursday, January 05, 2006 8:01 AM
To:
'Martinlegal
(at) cs.com'
Cc:
teridunescity (at) charterinternet.com; DARNIELLE Gary L; Christina
(at) charterinternet.com
Subject: RE:
Developments--Little Woahink PUD
Regarding the Little Woahink PUD: Michael Farthing's letter of
November 15, 2005
was the official request to
postpone the hearing until January. . . I spoke to Mr. Farthing on
Tuesday this week. . .
I advised Michael that the application must be processed within the 245
day window which expires
on
April 28, 2006
, and that it would be best to
hold the first public hearing at the February Planning
Commission meeting.
[xxx] Letter dated April 20, 2006, Hand
Delivered, from Michael Farthing to Dunes City Council,
% Teri Tinker, Planning Secretary;
Re: Applications for Approval of Subdivision, Planned Unit
Development and Zone
Change (Little Woahink
PUD)
Applicant:
MJK, LLC
Enclosed are seven complete copies of applications for
subdivisions, planned unit development and zone change that I am
submitting on behalf of MJK, LLC and its principal members, Darren and
Alsia Kronberer. Also enclosed are separate checks for $1,000 (zone
change) and $2,850 (subdivision and PUD) which I understand are the
fees for these applications.
The applications
include a lengthy narrative and several maps.
[xxxi] Letter dated May 18, 2006, from Teri
Tinker, Planning Secretary to MJK, LLC, Darren and
Alisa Kronberger, Copy to Michael Farthing.
[xxxii] Letter with enclosures dated June 20, 2006,
from Michael Farthing to Dunes City Planning
Commission, % Teri Tinker
[xxxiii] Application for Considering a Proposal,
dated April 20, 2006, received June 22, 2006,
from Michael Farthing, [The following information is found
below the signature line on page 4 at the end of the application.]
NOTE: All of the above information must be in the City
Recorder’s office at least THIRTY (30) DAYS
PRIOR TO THE PLANNING COMMISSION HEARING
or your request will not be heard. . .
IF
THE PLANNING COMMISSION RECOMMENDS DENIAL, TO THE
CITY COUNCIL, THE APPLICANT
MUST WITHIN 30 DAYS NOTIFY
THE CITY RECORDER THAT (1) THE APPLICANT
WISHES THE MATTER
REVIEWED BY THE CITY COUNCIL AND DECIDED AS SUBMITTED, OR (2) APPLICANT WILL MODIFY THE APPLICATION TO THE
PLANNING COMMISSION.
[xxxiv] Letter dated August 2, 2006, from Michael
Farthing to Teri Tinker
[xxxv]
ORS 227.178
(2)
If an application for a permit, limited land use decision or zone
change is incomplete, the governing
body or its designee shall notify the applicant in writing of
exactly what information is missing within 30 days of receipt of the
application and allow the applicant to submit the missing information.
[xxxvi] Letter dated August 23, 2006, from Teri
Tinker, Planning Secretary, to Michael Farthing Re: The Woods at Little Woahink PUD 01-06
Little Woahink Phase III
[xxxvii] Minutes, December 28, 2006, Planning
Commission, Regular Meeting (Page 5)
Farthing said he did submit a waiver for the
statutory deadline in which Dunes City must make a final decision (Exhibit B).
[xxxviii] Letter, dated March 2, 2007, Hand
Delivered, from Michael Farthing to Dunes City Council,
% Joanne Hickey, City Recorder
Re: Little Woahink PUD (01-06) Little Woahink Phase III.
The above matter is
scheduled for public hearing on March 8. For your review and
consideration at the public hearing I am enclosing several new maps
and reports that respond to issues and concerns that have been raised
previously by staff, the Planning Commission, interested parties and
individual Councilors. Fifteen (15) copies of each are provided.
[xxxix] Letter, dated March 7, 2007, Hand
Delivered, from Michael Farthing to Dunes City Council, c/o Joanne Hickey,
Re:The Woods at Little Woahink PUD
PUD 01-06, ZON 01-06
As
a further supplement to our application, I am enclosing two documents.
. . Because of time constraints, we are only enclosing 12 copies of
this document. . . We enclose 15copies of this letter for your review
and inclusion in the record. . .We look forward to
the hearing tomorrow night . .
[xl]
Petition For Alternative Writ of Mandamus, Kronberger vs. City of Dunes City,
No. 16-07-01728, Michael E. Farthing, Attorney at Law, August
9, 2007,
(Pages 3 and 4)
No
additional information has been requested by the City to make
application “complete” for processing
in the meaning of ORS 227.178(2). Therefore, the application was
deemed complete for processing on no later than March 2, 2007.
[xli]
Petition For Alternative Writ of Mandamus, Kronberger vs. City of Dunes City,
No. 16-07-01728, Michael E. Farthing, Attorney at Law, August
9, 2007, (Page 5)
.
. . In the alternative, it was complete for
processing by the passage of 30 days time on April
2, 2007.
[xlii]
Ordinance No.182 was adopted on December 12, 2006 — The new
Chapter 155 Zoning
and Development replaces the old Ordinances 155 and 156 —
took effect on the thirteenth day
after its enactment per the City Charter Section 35.
[xliii]
Chapter 155 Zoning and Development
155.4 — Application and Review Procedures
155.4.1.3 General Provisions
A.
120-day Rule.
The
City shall take final action on Type III applications that are subject
to this Chapter
within 120 days from the date the application is deemed complete. Any
exceptions to this rule shall conform to the provisions of ORS
227.178. (The 120-day rule does
not apply to Type IV legislative decisions – plan and code
amendments – under ORS
227.178.)
E.
2. a. When the City
receives an application, the Planning Secretary shall immediately
determine whether the following essential items are present. If the
following items are not present, the application shall not be accepted
and shall be immediately returned to the
applicant;
E.
3. e. If a new application is submitted by the applicant, that
applicant shall be subject to a
separate check for acceptance and completeness and will be subject to
the standards and criteria in effect at the time the new application
is accepted.
[xliv] Petition For Alternative Writ of Mandamus,
Kronberger vs. City of Dunes City,
No.
16-07-01728, Michael E. Farthing, Attorney at Law, August 9, 2007,
(Page 1)
[xlv] Oregon Business Registry Business Name Search, dated
September 13, 2007 (Page 2)
____________________________________________________________________________________
ERATTA
CIRCUMSTANCES
OF CLAIMED VIOLATION
RESULTING
IN A WRIT OF MANDAMUS
Report
To
Mayor
Sheldon Meyer and the Dunes City Council
Prepared
by
Ralph
Farnsworth and John Stead
September
13, 2007
As
the result of scrivener’s errors, please make changes as indicated
in italics.
Page
2
11th
line from the top begins:
as complete on
August
26,
2005
.
Page
9
XXII
Staff Report date:
September
8, 2005
Application
Received: July
21, 2005
Accepted
as Complete: August
26, 2005
Notice
Published:September 8, 2005
Report
Date:
September 8, 2005
Planning
Commission
Hearing
Date:
September
15, 2005
XXIV Minutes, September
15, 2005
XXV Minutes, December 15, 2005, Planning
Commission Regular Meeting (Page 3)
We are sorry for the inconvenience.
RF and JS
###
|