Smith v. City of Gearhart

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 04-01-2015
  • Case #: 2014-058
  • Judge(s)/Court Below: Opinion by Ryan
  • Full Text Opinion

Under Gearhart Zoning Ordinance 12.060(7), the city council must make a decision on review that includes findings and if remanded, a statement explaining the reasons; not reaching a vote constitutes failure to make the decision.

Smith owns a one-acre property which contains a 124-year old barn. In 2012, she applied to the City of Gearhart (City) for a conditional use permit to use it as an event center. The CUP was approved, but would lapse after one year unless substantial construction had taken place. Smith received one extension, but was denied further extensions due to the city administrator finding that Smith had not obtained building permits and thus could not have completed any substantial construction. Smith appealed to the city council. One councilor moved to grant an extension, but no other councilor seconded the motion. Smith then appealed to LUBA.

Smith argued that the city council committed procedural error by failing to make a decision supported by findings. Under ORS 227.178, the CUP becomes void after 181 days, but the statute also requires City to identify to the applicant what information is missing. LUBA held that the CUP had not become void, because City failed to make clear that it needed additional information to make a decision. City attempted to argue that Smith had not exhausted administrative remedies, because Gearhart Zoning Ordinance (GZO) 12.060(1)-(2) directs an appeal from the city administrator to the planning commission. However, LUBA held that City had waived this requirement by agreeing to hear Smith’s petition at the city council. LUBA agreed with Smith that the city council had failed to make a decision on her application for extension as required by GZO 12.060(7), and remanded for a determination of whether substantial construction had taken place or whether to grant an additional extension. REMANDED.