Agenda - Planning Commission - 12/07/1999

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Page 6 -- November 10, 1999 g.]3. other people to respond to that evidence. Since the city council did neither, LUBA returned the decision to the city council for the purpose of allowing opponents to the application to respond. Schwerdt appealed. She claimed that since LUBA returned the decision for failure to allow opponents to respond to the new evidence, LU]3A should not have reached and rejected her challenges to the city council's decision. DECISION: Affirmed. LUBA had to consider Schwerdt's arguments in order to determine whether the .city council deserved an outfight reversal rather than having the decision retflrned to them: LUBA's decision on the substance of the argument did not make a return to the city council purposeless. Any new mat6rial that was pre- sented to the e'ity council must be considered and included in the record that could be brought up in any later appeals taken. Sending the decision back to the city council was not purposeless, unless Schwerdt had nothing further of substance to offer. The court should defer to a local interpretation of the land development code. To reverse the city council's decision, there had to be a "clearly wrong" interpretation. An interpretation was clearly wrong when no person could rea- sonably interpret the provision in the manner that the city council did. The land development code clearly stated that a use could be classified under one or more use types and the city council was not clearly wrong in deciding that the proposed hotel fit under two different use types. Citation: Schwerdt v. City of Corvallis, Court of Appeals of Oregon, No. CA A106739 (]999). see also: Clark v. Jackson County, 836 P. 2d 710 (]992). see also: Hendgen v. Clackamas County, 859 P. 2d 1135 (1993). Ordinance m Does local ordinance trump state license? OHIO (10/13/99) -- Browning-Ferris Industries of Ohio Inc. (BFI) proposed to construct and operate a construction and demolition debris facility in an industrial district in the village of Sheffield. Sheffield sued BFI on the grounds that the proposed construction would violate several ordinances. The ordinances prohibited: most excavations; the reduction or storago of garbage, offal, and dead animals; the storage, sorting, or baling of junk, scrap metal, paper or rags; and uses that could be offensive because of the emission of odor, dust, smoke, vibration, or noise. BFI responded by stating that the proposed construction was not in viola- tion of the ordinances and that state law preempted those ordinances. Both sides asked for judgment without a trial. The trial court found for BFI, holding that state law preempted the ordinances. The court of appeals confirmed and Sheffield appealed again.