Agenda - Planning Commission - 04/02/1996

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Page 8 ~ February 15, 1996 z.g. Appeal -4': Board Says Variance Opponent Did Not Exhaust Local Remedies Shafted' ~: City of Salem, 905 P. 2d 1175 (Orego~O 1995 A hea!'ings officer for the city of Salem, Ore., granted Tosco Northwest Co. a vari[ance. Shaffer appealed the hearings officer's decision to the City Council. The ciiy code said final decisions on land use matters could be appealed to the counciil, and that written notice of an appeal had to be filed with the city administr{tor within 15 business days of the decision. If there was no notice of the hea~ing at which the decision was made, any person adversely affected or who owned property in the notification area had 15 days from when they knew (or s~ould have known) of the decision to file a written notice of appeal. The cit~ planning manager notified Shaffer the city had to reject his appeal because it ~Was not filed within 15 days after the decision. Shaffe~ appealed the planning manager's decision to the Land Use Board of Appeals!~ arguing he had not received timely notice of the hearings officer's decision, a~nd that his time for appealing to the City Council was therefore extended. ?he city argued Shaffer had not satisfied a state statute requiring the exhaus!ion of all local remedies before the board could hear the matter, because Sl~affer never appealed the planning manager's decision to the City Council. T~he board agreed and dismissed the appeal. Shafferi asked a court to review the board's decision. The board argued Shaffer should have exhausted local remedies by appealing the city planning manager's .~inal dismissal of his appeal to the City Council. According to the board, the planning manager's decision was a land use decision. Therefore, Shaffer hadI an unqualified right to appeal it to the council. The board claimed there was n~ reason to conclude the planning manager's decision was in fact a decision Of the council. It also alleged nothing indicated the council told the planning mt~nager to make his decision, or even thht it knew about Shaffer's appeal. DECISIONi Reversed, with an order to return the matter to the City Council.' The board improperly dismissed Shaffer's appeal. It should have returned the matter to the City Council to rule on the appeal. The cit~ code clearly provided that the hearings officer's decision was appealable to the City Council. That was the course Shaffer pursued. Nothing in the code s~aid such an appeal came within the planning manager's jurisdic-" tion or auth:_ority. The planning manager had no authority to take action, and nothisg in the code indicated the planning manag.er's decision was appealable to the coun- cil. Shaffer ~appealed the hearings officer's approval of the variance to the council, and',the council had not yet ruled on that appeal. Tarjoto ~. Lane Co,mO; 904 P..2d 641 (1995).