Vannatta v. City of St. Helens

(1) Under ORS 197.835(9)(a)(B), in order to establish a procedural error, petitioners must identify the procedure allegedly violated, show that the cited procedures are applicable to the local government’s proceedings, and establish that the local government’s actions violated the cited procedures. (2) Under ORS 197.829(1)(a), LUBA must affirm a city council’s interpretation of its land use regulation unless the interpretation is inconsistent with the express language of the comprehensive plan or land use regulation.

Petitioners appeal a city decision approving a conditional use permit for a retail and medical marijuana dispensary. The planning commission denied the application and the intervenor-respondent appealed to the city council. At the appeal hearing, the council vote resulted in a 2-2 tie, with one councilor absent. The city subsequently mailed and published notice that continued deliberations on the appeal would occur during a later city council meeting. At that later meeting, the council voted unanimously to overturn the planning commission’s decision and approve the application. This appeal followed.

In the single assignment of error, petitioners argue the council committed procedural error by making its decision to continue the deliberations without a public hearing on that specific issue. Petitioners cite (1) a provision from a 2008 resolution that adopted operating rules and procedures for the council addressing motions to reconsider and (2) St. Helens Municipal Code (SMC) 17.20.110, which specifies circumstances under which the city may continue a public hearing without providing additional notice. Because neither party takes the position that a motion to reconsider was made here, and because the city did provide additional notice of the continued deliberations, LUBA concludes that petitioners have shown neither that the cited procedures are applicable to the council’s proceedings nor that the council’s actions have violated either procedure if applicable.

SMC 17.24.220(5) provides that “[i]n the event of a tie, the decision which is the subject of appeal . . . shall stand.” Petitioners argue the council improperly construed applicable law by interpreting SMC 17.24.220(5) as not limiting its ability to vote more than once. Specifically, petitioners argue the express language of SMC 17.24.220(5) requires that if any vote results in a tie, the council is prohibited from voting again and the planning commission’s decision is final. Because SMC 17.24.220(5) specifies what decision is the final city decision for purposes of a subsequent appeal, but does not address whether the council may vote more than once on a matter, LUBA concludes that the council’s interpretation is not inconsistent with the express language of the provision. The assignment of error is denied and the city’s decision is AFFIRMED.