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City's appeal process is a waste of staff time and taxpayers money

The majority of 2012 and the start of 2013 have been consumed by the Lake Oswego-Tigard Water Partnership projects. The cities of West Linn, Lake Oswego and Tigard, including their residents, have spent time, energy and money on supporting or opposing the proposed water treatment plant and pipeline projects in West Linn.

The projects went through West Linn land use hearings twice last year — once in the spring and again in late fall. By Nov. 1, the West Linn Planning Commission denied the projects 7-0, citing the lack of community benefit.

However, thanks to West Linn’s unique de novo land use appeals process, LOT partnership appealed the commission’s decision to the city council for what is essentially a complete redo.

Here is where we think West Linn’s system fails. One of the few cities in Oregon to hold land use hearings de novo, the concept wastes city staff time and taxpayer money with few ramifications for those making the appeals. The city switched to this system in 2003.

Though the ability to appeal a hearing decision is an important step in due process, how it is conducted can be up for scrutiny.

Currently, the city charges just $400 to appeal a land use decision to the city council, and it is free for recognized neighborhood associations. The low/free rate doesn’t curb those wanting to appeal decisions based on whim or just to stall the system.

In 2010, three cases were appealed to the city council at the cost of $94,033 to the city. In each of the appeals the council upheld the planning commission’s decision. In 2012, two cases were appealed to the council: the LOT projects and the Bland pump station. The council upheld the Bland pump station decision, and time will only tell how the council will vote Monday on the water treatment plant.

The cost of planning staff time for the two conditional use applications for the water treatment plant and pipeline project is currently at $165,685. So far on the appeal process, the city has spent another $16,171 in additional staff time with costs still accruing.

All of these costs are the burden of taxpayers.

De novo is Latin, meaning “from the beginning,” “new” or “fresh.” In an appeal hearing, this means everything resets and the record continues on. This allows applicants, such as LOT, to revise, amend or tweak their applications to improve their chances of approval. An example would be the newly proposed $5 million payment from LOT to West Linn for the pipeline right of way, as well as the reduction in the size of the water treatment plant to reduce construction time.

Another major disadvantage of de novo includes essentially reducing the planning commission to making recommendations rather than decisions. The planning commission spent countless hours reading documents, listening to presentations, asking questions and hearing testimony. It is also time-consuming for city staff and members of the public who are following the hearings.

Holding appeals de novo does offer a few advantages, such as allowing residents to provide more information for consideration and allowing new people to testify at the appeal hearing.

However, the disadvantages and the costs far outweigh the few advantages. The city should return to its former on-the-record hearing process, where appeals would cost just a 10th of a de novo appeal hearing.

Appeal hearings held on the record proceed with the original materials and testimonies the planning commission heard. No new issues could be raised, and no changes to the applications would be allowed.

When the city is facing a $1.2 million shortfall in the next biennium, members of staff are taking voluntarily cuts to preserve positions and programs and the city’s water infrastructure is crumbling, wasting taxpayer dollars with this inefficient process does not add up.




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