Agenda - Planning Commission - 02/03/1998

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Z.B. January 25, 1998 Page 5 including that the fire marshall and the city of Beaverton, Ore., approve the plans. Subject to those conditions, the court ordered the county to approve the application. It also ordered Crist to pay the developer's attorney's fees. Crist appealed. Under the statute, the 120-day time limit applied to only decisions "wholly within the authority and control of the county." Therefore, she said, because the plan's approval now involved the fire marshall and the city, the county had more than 120 days to make a final decision. Crist also appealed the attorney's fees award. DECISION: Reversed in part and returned to the lower court. The lower court correctly ordered the county to approve the developer's application. However, it should not have ordered Crist to pay the developer's attorney's fees. The authority to approve the developer's application was entirely within the county's control, so the 120-day time limit applied. The fire marshall and the city played a role in the application process, because the county's approval was conditioned on theirs. The county, however, still had the authority to approve the application once the developer fulfilled all the conditions. Moreover, approval of the fire marshall and city were conditions the court, not the county, had imposed. The time limit had run even before the other entities got involved in the process. Crist didn't have to pay the developer's attorney's fees. Courts could award attorney's fees to prevailing parties in this case, the developer -- at their discretion. But it wasn't fair to require a private citizen to pay the fees simply because the county chose not to defend itself. Regardless of that choice, the county still was being sued. Also, the developer prevailed based on the county's failure to reach a decision within the time limit. As Crist correctly argued, she was forced to defend her position in court because the county failed to hear her Opinion during the application process. If the court ordered her to pay the developer's attorney's fees, other citizens in her situation would be discouraged from asserting their rights.' see also: Crist v. City of Beaverton, 922 P. 2d 1253 (1996). Special Use Permit-- Town denies permit for theater, citing traffic concerns Lerner v. Town Board of the Town of Oyster Bay, 663 N.Y.S. 2d 661 (New york) :997 Lerner owned a 24-acre parcel in the town of Oyster Bay, N.Y. The property was in an industrial district zoned for light industry, and was being used as a drive-in movie theater with three screens. Lerner wanted to build a ll6,716-square-foot retail warehouse and a 40,800- square-foot, 14-screen, 3,000-seat theater on the property. The project didn't need setback or parking variances. The proposed buildings would be 50 per- cent lower than that permitted as of right, and the setbacks would be four to 10 times greater than the required setbacks. The project did, however, need a special use permit.