Developer seeks to have city's denial of project permit overturned

Photo Credit: FILE - The bluff that S. St. Helens LLC wants to remove in north St. Helens.The unanimous decision by the St. Helens Planning Commission to deny a crucial permit for the demolition of a rocky bluff in a north St. Helens neighborhood has been appealed.

The Oregon Land Use Board of Appeals will consider the application by S. St. Helens LLC, a development firm looking to remove as much as 500,000 cubic feet of basalt to make way for new residential construction between North 10th and 12th streets. The appeal could be decided this fall.

“The notice of intent to appeal was filed by certified mail on July 18. We received the record from the city of St. Helens on Aug. 7, and that starts the timeline for either objecting to the record or the briefing schedule,” said Kelly Burgess, a LUBA paralegal.

If the appellant — represented by Lake Oswego-based attorney Andrew Stamp — objects to the record the city has presented, which includes evidence submitted during the appeal hearing, the appeal will be delayed while the dispute is resolved, Burgess said.

But otherwise, proceedings are expected to begin within weeks.

“An average appeal is about four months from beginning to end,” Burgess said.

S. St. Helens LLC applied to the city for a sensitive lands permit last year. The permit is needed because the bluff area includes protected wetland areas.

While the developer has faced questions and criticisms over its proposed treatment of the wetlands and stormwater runoff — and even went so far as to produce an alternative plan earlier this year its representatives said would minimize the project’s impact on the wetlands — the major controversy over the project has become the question of whether removing the bluff and underlying rock amounts to surface mining. City statute prohibits mining and quarrying outside of heavy industrial areas.

City Planner Jacob Graichen initially said he would approve the permit in July 2013. But after neighbors protested, circulating a petition against the project and saying it ran afoul of the city’s rules on mining, Graichen reconsidered, and he issued a revised decision denying the permit. The applicant promptly appealed the denial to the St. Helens Planning Commission, which sided with Graichen and handed down a unanimous decision against the developer last month.

Graichen suggested St. Helens will be on solid footing in the LUBA appeal process.

“We spent a lot of time looking at the facts for the purposes of helping the Planning Commission, and if we felt like it was a weak argument, I don’t think we would have recommended that the Planning Commission make the decision it did,” Graichen said.

Stamp, the attorney who represented S. St. Helens LLC during the Planning Commission appeal, disputes the Planning Commission decision. He said excavating rock to make way for development is not mining.

“How the heck else are you supposed to build on these lots if you don’t excavate rock?” Stamp asked rhetorically. “It doesn’t seem to me to be possible to build on most of those lots.”

Stamp acknowledged the basalt excavated as part of the project would be resold, but said, “What I’ve been told is that they estimate that the cost of the removal of the rock will more or less pay for [itself]. ... The homebuilder won’t really get anything out of it other than having that flat area.”

For his part, Stamp sounded bullish on the prospects for S. St. Helens LLC, whether LUBA rules in its favor or not. He suggested the city may be forced to purchase the bluff property itself if the company is not able to develop it.

“The way we’re headed right now is they either lose the LUBA case, in which case we build, or they win the LUBA case, in which case they buy,” Stamp said.

He added, “From my standpoint, it’s going to turn out OK for the client no matter how the LUBA case turns out.”

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