Byrnes v. City of Hillsboro
Byrnes v. City of Hillsboro
Opinion of the Court
Petitioners seek review of LUBA’s decision remanding the City of Hillsboro’s disposition of respondent Prendergast’s (respondent) application to alter a historical site and to relocate historical structures now located on the site, known as the Imbrie Farmstead.
Section 132(5) provides:
“Application for Alteration, Demolition or Moving a Designated Cultural Resource
“(a) No designated cultural resource shall be altered, demolished or moved without prior approval of the Planning Commission.
“(b) Cultural resource owners desiring to alter, demolish or move a cultural resource shall apply for a permit to the Planning Commission and shall provide all information considered necessary by the Planning Commission as part of the application.
“(c) The Planning Commission shall hold a public hearing and shall evaluate the application with reference to the following actions:
“1. the economic or structural necessity of the proposed action;
“2. the extent of visible modification to the resource;
*310 “3. the relationship of the proposed action to the resource’s original character;
“4. the possibility of any alternative action which would reduce negative impacts on the cultural resource; and
“5. in the case of moving or demolition, the scheduling of redevelopment of the resource site.
“(d) The Planning Commission shall work with the applicant, interested citizens and technical staff to minimize the negative impact of the proposed action, wherever possible.
“(e) Approval of an application for alteration or demolition may be delayed up to 60 days by the Planning Commission if it deems additional information or consideration with the applicant necessary. Approval of the application may be conditioned to secure interior and/or exterior documentation of the site prior to the proposed action, to preserve selected architectural features and to preserve site landscaping. The Planning Commission may, however, approve an alteration or demolition permit at any time within the 60 day period if it feels the applicant has made an effort in good faith to retain, document, and/or preserve the culturally significant characteristics of the resource.
“(f) The City Council may extend a demolition delay by an additional 60 days at the request of the Planning Commission or an interested party.
“(g) Applications for alteration, demolition, or moving permits for a designated cultural resource which are complete and which are in compliance with all other City regulations and ordinances shall not be denied outright. If no action on an application has been taken by the Planning Commission within 60 days of submission of the completed application, the application shall be considered approved.”
The substantive disagreement between the parties
In our view, respondent and LUBA place undue emphasis on the phrase “shall not be denied outright” and seem to read that phrase in a vacuum. Subsection (g) does not contain an unqualified prohibition of “outright”
We therefore disagree with LUBA and respondent that subsection (g) prohibits the denial of applications. They also appear to have based their interpretation on the fact that subsection (e) does not enumerate the denial of an application as one of the courses available to the planning commission. However, we do not read that subsection as a comprehensive statement of dispositional options. It addresses the limited situations where approval of an application requires further consideration or further data and where approval is made subject to certain kinds of conditions. Indeed, to the extent
LUBA also considered a jurisdictional issue that respondent raised before it but does not renew here, at least in jurisdictional terms. Respondent argued that the decision from which petitioners appealed, the city council’s affirmance of the planning commission’s 60-day delay of approval, was not a final decision. Rather, the final decision was the effective approval of the application, which occurred without further formal action 60 days after the commission’s decision. LUBA disagreed. It reasoned that, under subsection (e), a planning commission decision to delay approval is final when made, subject to appeal to the council, and does not depend on the passage of the delay period to become final. LUBA further noted that the very fact that approval of an application ensues automatically “upon the expiration of the 60 [day]” delay period, “without further action by the planning commission or city council,” means that the delay of approval rather than the approval itself is the final decision. We do not necessarily agree with that reasoning, insofar as it is intended as an interpretation of the ordinance. Indeed, our conclusion that the city has the ability to deny an application casts considerable doubt on the construction that a decision to delay approval can be final, without a later dispositive decision to approve or deny. Whether or not LUBA’s analysis is correct as an interpretation of the ordinance, however, it does correctly reflect the way in which the city applied the ordinance to Prendergast’s application.
Under these circumstances, the way in which the ordinance was applied rather than the way it should have been
Reversed and remanded for further proceedings not inconsistent with this opinion.
The remand was based on one of petitioners’ three assignments in their appeal to LUBA. LUBA rejected the other assignments, and petitioners contend that it erred by doing so. None of the parties challenges LUBA’s ruling on the assignment that it found meritorious.
The city is a respondent, but it has not appeared.
The parties also dispute the meaning of “outright.” Our interpretation of the provision does not turn on the meaning of that word.
Our interpretation of the ordinance makes it unnecessary for us to address petitioners’ argument that, if the ordinance were interpreted otherwise, it would be contrary to the comprehensive plan and Goal 5. We therefore do not comment on the arguments of the parties regarding the fact that the ordinance is acknowledged and regarding the effect of any inconsistency between the ordinance and the plan or the goal. However, as noted in the text, relevant plan provisions are among the “city regulations” with which the ordinance requires applications to comply.
Reference
- Full Case Name
- BYRNES v. CITY OF HILLSBORO
- Cited By
- 1 case
- Status
- Published