Meyer Farm subdivision rejected by City Council, but city staff are trying to keep it alive.

Ah, the games City of Salem staff like to play, even when they seem illegal, or at least, decidedly improper. 

Last Monday night the City Council voted 5-2 to reject an application to build a 139 single-family lot subdivision on the beautiful property in south Salem known as the Meyer Farm.

I wrote about this last October in "Thirty-acre Meyer Farm property in south Salem may be developed." Neighbors, along with others concerned about the proposed development, formed a Facebook group, Friends of The Meyer Farm.

I've followed their persistent, thoughtful, energetic efforts, finding them impressive.

Fighting a subdivision is a David versus Goliath exercise. The developer has way more money, and the City of Salem tends to favor development, since more houses means more property tax revenue for the city.

So it was a pleasant surprise to read a Salem Reporter story, "Salem City Council denies proposed subdivision on historic farm citing concerns about tree removal." 

The Salem City Council denied an application by a developer to build 139 single family lots on the historic Meyer Farm in south Salem.  

In a 5-2 vote, the council voted in favor of denying the planning administrator’s approval of the project, citing concerns over the removal of significant trees on the property.  

Mayor Chuck Bennett and Councilor Jose Gonzalez were in favor of approving the administrator’s decision. Councilor Virginia Stapleton was absent and Councilor Jim Lewis has resigned. 

The planning administrator approved the tentative plan submitted by Portland-based developer Kehoe Northwest Properties on Nov. 3.  

The plan has drawn vocal opposition from the community with members concerned about the loss of Oregon white oaks, traffic and the degradation of open space.  

Not so pleasant was a video of part of the City Council meeting shared on Facebook where Dan Atchison, the city attorney, jumps in after the 5-2 vote to say, among other things, that the developer, Kehoe Northwest Properties, can submit a revised application at the next council meeting on March 14.

This sure seems to be either illegal or highly irregular.

What the hell is going on here? The City Council had just voted to reject the subdivision application. An order to that effect should be prepared by city staff and presented to the council for a vote at the next meeting.

If Kehoe Northwest Properties wants to appeal the decision, that's their right.

But Dan Atchison shouldn't be acting like he's the attorney for the developer. He's the attorney for the City of Salem. He's supposed to represent the interests of the City of Salem, which now includes supporting the City Council rejection of the subdivision application. 

The Friends of the Meyer Farm folks see what Atchison did as wrong. And some of them are highly familiar with how land use decisions are handled by the City of Salem. A member of the group says:

If you listen to the recording of the Council vote (see above) you will then hear the City Attorney say "The Applicant has the right to modify the application and propose conditions on the 14th." That statement is alarming and sounds illegal. 

It isn't true that the only controversial part of the proposed development was how significant/protected white oaks and other trees on the property were being handled. (Mostly by being cut down.) Atchison seemed to be suggesting that all Kehoe Northwest Properties has to do is make a few changes to its tree preservation plan and, bingo, a revised application can be approved at the next city council meeting.

In a comment on a Statesman Journal story about the subdivision rejection, "Controversial plan to build homes on South Salem Meyer Farm property halted," Peter Meyer, a member of the Meyer family, said:

As would be expected, Mr. Kehoe would say he thought the deal was done. But it's not. Aside from the many serious environmental (cutting down protected trees) and transportation (terrible traffic) issues with his proposal, he doesn't even have title to the property, which is something the City Council should take seriously.

He clearly knows -- there's a paragraph about it in his Preliminary Sales Agreement -- that ownership of the farm has been in litigation since August of 2019 and continues to this day. A majority of the Henry Meyer Trust (which owns the property) beneficiaries do not want to sell the farm and a majority of Henry Meyer's descendants do not want to sell it. The Council made the right decision by refusing to commit the City's good will and resources to this bogus proposal. --peter meyer

To summarize: the city planning department wanted the application to be approved. But the City Council disagreed, voting 5-2 to deny the application. Now City of Salem staff are required to assist in carrying out the City Council order that rejects the subdivision application. The council has no staff of its own. The job of city staff is to carry out City of Salem policies and priorities. Now that includes working to carry out the rejection of the development application, not trying to undermine that decision.

UPDATE: Roger Kaye of Friends of Marion County, a land use advocacy organization, asked an attorney with 1000 Friends of Oregon about whether the Meyer Farm application could be amended by the developer. This was the response Kaye got:

Without having attended the Council meeting or read its decision, it looks like ORS 197.522(3) would not apply if the denial constitutes the city's final decision on the application. Did the council issue a written final decision or specifically state during the vote that the vote was for a final decision?

 

If, so it seems that returning with an amended application would not be consistent with ORS 197.522(3). However, on the flip side, if the council voted to deny the current version of the application but to allow the applicant to return with an amended application prior to the final decision, returning with an amended application would be ok. 

 

ORS 197.522 is pretty commonly used to allow modifications to applications. While it's possible that an applicant could have a closed door meeting with staff to amend the application, there's nothing unlawful about that as long as the amended application goes through the public land use process for the final decision. 

 

Hope this helps!

Comments

[Michael Slater]

Hi Brian,

Dan Atchtinson correctly informed the Council that the applicant could come back with an amended proposal. It is a right subdivision applicants have under Oregon state law. Whether we like it or not, Oregon law, implemented by Salem Revised code, provides landowners with a set of rights and processes that facilitate the increasingly dense development of urban land. Applications that meet the criteria must be approved. Applications that don't meet the criteria but can if conditions are placed on the application must be provided with those conditions and approved. In this case, the City Council decided that the applicant did not meet their burden of proof that there we no design alternatives (part of the criteria) available to preserve more trees. This struck me as a wise decision and echos the council's decision on Costco. (The Land Use Board of Appeals [LUBA] upheld the City's decision related to trees.) Oregon law allows a subdivision applicant to offer an amended plan before the Council finalizes its order. Even if the council were to reject the revised plan, nothing (except no longer having a right to the land) would preclude the applicant from coming back with something different, even if slightly different. When a City wrongly denies an application, an applicant can take the City to first LUBA and the Court of appeals. if the city loses, the city pays the cost of the case. As frustrating as it is, there is not a lot of discretion in land use cases.

[Brian Hines]

Michael, what you said above isn't quite right. The applicant can come back with an amended application only if the City Council said that it wanted to receive an amended application. Otherwise, the 5-2 vote to reject the application is a final decision which can be appealed by the applicant, but not amended.

Roger Kaye of Friends of Marion County, a land use advocacy organization, asked an attorney with 1000 Friends of Oregon about whether the Meyer Farm application could be amended by the developer. This was the response Kaye got:
-----------------------------
Without having attended the Council meeting or read its decision, it looks like ORS 197.522(3) would not apply if the denial constitutes the city's final decision on the application. Did the council issue a written final decision or specifically state during the vote that the vote was for a final decision?

If, so it seems that returning with an amended application would not be consistent with ORS 197.522(3). However, on the flip side, if the council voted to deny the current version of the application but to allow the applicant to return with an amended application prior to the final decision, returning with an amended application would be ok. 

ORS 197.522 is pretty commonly used to allow modifications to applications. While it's possible that an applicant could have a closed door meeting with staff to amend the application, there's nothing unlawful about that as long as the amended application goes through the public land use process for the final decision. 

[Michael Slater]

I'm not a lawyer, nor am I am advocate of subdivisions, but I have served on the planning commission for the past two years and have learned (often to my frustration) a lot about the process. My guess is that the final determination is when the City Council votes on the "Facts and Findings" in the case. This comes at the next council meeting.

The statutes, codes, and processes are designed to get a municipality and a landowner "to yes." It's a regulatory process for a legally permitted activity (developing your land). It is not an adversarial process, although obviously parties may disagree.

We may find Dan got it wrong on this procedure. He may also have gotten it wrong on whether single family homes falls within the needed housing statute as applied to Salem. But I don't think City staff, in this case, is doing anything illegal, improper, or unseemly. The land use process is just a different kettle of fish than say, tree enforcement or the third bridge. If we don't like the outcome of a land use decision, we need to change the process at the level of code or statute so prevent another similar occurrence of whatever we didn't like from happening. I got into this issue with a subdivision in West Salem that impacted riparian areas.

[Liz]

I do not believe it is ORS 197.522(3) that applies in this case, it should be ORS 197.522(4), which reads:
"A local government shall deny an application that is inconsistent with the comprehensive plan and applicable land use regulations and that cannot be made consistent through amendments to the application or the imposition of reasonable conditions of approval."

Dan Atchinson stated "the code does require the significant trees be preserved--that is the clear and objective criteria--and in our opinion, the ability to apply a reasonable design alternative is an alternative approach that the applicant can take if they desire. In this case, as I noted, staff has determined that there are no reasonable design alternatives that would allow them to develop the property as they applied for."

So the application is inconsistent with the applicable land use regulation, and it cannot be made consistent according to both the applicant and the city planners. As such, it must be denied.