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March 02, 2022


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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.

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. 

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.

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.

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