Nicita v. City of Oregon City

Under ORS 227.180(1)(c), nothing prohibits a city from adopting local appeal fee enabling legislation by ordinance and setting its fee schedule by resolution, the fact that a city’s appeal fee is based on an estimate of average costs instead of an arithmetic average of prior costs provides no basis for reversal or remand, and local governments are afforded broad discretion in calculating and assessing local appeal fees.

Petitioner appeals two city decisions, one denying his request for a local appeal fee waiver and the other approving a development plan with conditions. Intervenor applied for approval of a general development concept plan for a mixed-use project to be constructed in two phases over 10 years in downtown Oregon City. The planning commission approved the development plan with conditions. Petitioner appealed the planning commission’s decision and requested a local appeal fee waiver. The city commission denied petitioner’s fee waiver request and approved intervenor’s development plan with conditions. This appeal followed.

ORS 227.180(1)(c) provides that a local government “may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon [a local] appeal” and that “[t]he amount of the fee shall be no more than the average cost of such appeals or the actual cost of the appeal….” Oregon City Municipal Code (OCMC) 17.50.290 provides that “[t]he city may adopt by resolution…a schedule of fees for applications and appeals.” OCMC 17.50.290 was enacted as part of an ordinance in 2004. Later that year, the city adopted a resolution setting its fee schedule based on staff time estimates and processing costs, with an annual increase based on inflation estimates, and charging attorney fees at the actual cost to the city. In his first assignment of error, petitioner argues the city’s appeal fee violates ORS 227.180(1)(c) because (1) the fees were adopted by resolution instead of by ordinance, (2) the fees were not calculated based on an “arithmetic” average, and (3) the fees include both average and actual costs. LUBA states that, under ORS 227.180(1)(c), nothing prohibits a city from adopting local appeal fee enabling legislation by ordinance and setting its fee schedule by resolution, the fact that a city’s appeal fee is based on an estimate of average costs instead of an arithmetic average of prior costs provides no basis for reversal or remand, and local governments are afforded broad discretion in calculating and assessing local appeal fees. The first assignment of error is therefore denied.

In reviewing intervenor’s application, the city found that neither the End of the Oregon National Historic Trail 1990 Master Plan nor the 1991 District Design Guidelines (EOT Plan and Guidelines) were relevant approval criteria. In his second assignment of error, petitioner argues the city commission improperly construed the applicable law in reaching this conclusion. LUBA agrees with intervenor and the city that, while the city commission was aware of and expressed support for the EOT Plan, and while the Guidelines were “incorporated by reference” into the city’s 1999 Downtown Community Plan, that “endorsement” does not amount to an adoption of and those references are aspirational, not mandatory. The second assignment of error is therefore denied and the city’s decision is AFFIRMED.