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LOCAL APPEAL FEES

by Michael L. Walker, Member

Hugo Land Use Committee

December 3, 2006

Appeal Of Josephine County’s Increase of Fees: Order No. 2006-125

Several citizens in Josephine County, Oregon have appealed to the Oregon Land Use Board of Appeals (LUBA) the county’s third increase in user and permits fees, in as many years, without any analysis of actual or average costs supporting the increases (S ommer v. Josephine County, __ Or LUBA __ LUBA No. 2006-150, August 14, 2006, Notice of Intent to Appeal).

"Notice is hereby given that petitioners intend to appeal the land use decision of Respondent entitled: Order No. 2006-125 In the Matter of Uniform Procedure for Setting Fees Charged by County: Provision of Planning Permits and Services; Adopting Fee Schedule"

User fees dedicated to the user through the county’s "current planning" function are required to be no more than the actual or average cost of providing that service. A change to user fees should not be undertaken until some effort has been made to develop a real assessment study designed to address the legal issue of actual or average costs.

Fee surveys of other adjacent counties does not satisfy the law, nor are they reliable as there are many factors that affect how and why other communities have set their fees at "their" levels. For example, many communities have established their own policies that some services are a benefit to the entire community rather than to special interests: public safety emergency response services such as police patrol services and fire suppression; maintaining and developing public facilities on a uniform, community-wide basis such as streets, parks, and general-purpose buildings; and providing social service programs, economic development activities, and planning services because they are clearly intended to serve the broader community. Where other counties have made these policies their associated services have very low cost recovery goals.

The following summary covers:

1. Applicable laws,
2. Outline,
3. Appeal history of Josephine County’s increase of fees: LUBA Order No. 2006-125
4. A county decision regarding local land use and appeals fees is a land use decision subject to LUBA’s jurisdiction - court rulings,
5. Fiscal decisions excluded from LUBA’s jurisdiction - court rulings,
6. LUBA headnotes - appeals, and
7. Papers

Applicable Laws:

ORS 215.416(1) When required or authorized by the ordinances, rules and regulations of a county, an owner of land may apply in writing to such persons as the governing body designates, for a permit, in the manner prescribed by the governing body. The governing body shall establish fees charged for processing permits at an amount no more than the actual or average cost of providing that service.

ORS 215.422(1)(c) The governing body may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon an appeal from a hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript. The governing body may establish a fee for the preparation of a written transcript. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to $500. In lieu of a transcript prepared by the governing body and the fee therefor, the governing body shall allow any party to an appeal proceeding held on the record to prepare a transcript of relevant portions of the proceedings conducted at a lower level at the party’s own expense. If an appellant prevails at a hearing or on appeal, the transcript fee shall be refunded.

LOCAL APPEAL FEES (Outline)

Appeal Of Josephine County’s Increase of Fees: Order No. 2006-125

. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss)(http://www.oregon.gov/LUBA/2006Orders.shtml)
. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, Petitioners Response To Respondents’ Motion To Dismiss And Motion For Extension Of Time For Filing The Record)
. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, September 1, 2006, Respondent’s Motion To Dismiss And Motion For Extension Of Time for Filing Record)
. Sommer v. Josephine County, __ Or LUBA __ LUBA No. 2006-150, August 14, 2006, Notice of Intent to Appeal)

A County Decision Regarding Local Land Use and Appeals Fees Is a Land Use Decision Subject to LUBA’s Jurisdiction - Court Rulings

. Landwatch Lane County v. Lane County, __ Or LUBA __ (LUBA No. 2006-039, June 26, 2006).
. Doty v. City of Bandon, 49 Or LUBA 411 (2005)
. Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003).
. Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002).
. Ramsey v. City of Portland, 29 Or LUBA 139 (1995).
. DLCD v. Jackson County, 21 Or LUBA 93 (1991).
. Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980)

Fiscal Decisions Excluded From LUBA’s Jurisdiction - Court Rulings

. Lewis v. City of Bend, 45 Or LUBA 122, 124 (2003)
. Jesinghaus v. City of Grants Pass, 42, Or LUBA 477, 483 (2002)
. Baker v. City of Woodburn, 37 Or LUBA 563, 568-69, aff’d 167 Or App 259, 4 P3d 775 (2000)
. The Petrie Company v. City of Tigard, 28 Or LUBA 535, 540 (1995)
. Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980)

LUBA Headnotes - Appeals

 

Papers

LOCAL APPEAL FEES

by Mike Walker, Education Chair, Hugo Neighborhood Association & Historical Society; Mike Walker, Director, Goal One Coalition, & Mike Walker, Director, Rogue Advocates

December 3, 2006

The following is a summary of the what I believe to be the history and the authorities in Sommer v. Josephine County, __ Or LUBA __ LUBA No. 2006-150.

Appeal History Of Josephine County’s Increase of Fees: Order No. 2006-125

. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss)(http://www.oregon.gov/LUBA/2006Orders.shtml)

"The county does not argue that those cases were wrongly decided, or offer any other basis to conclude that the Board lack jurisdiction over Order No. 2006-125. Accordingly, the county’s motion to dismiss is denied."

"The county also argues that several petitioners do not have standing to appeal Order No. 2006-125."

"As we explained in Friends of Linn County,

"* * * Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews. The legislature has adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters. ORS 215.416(11)(b), 215.422(1)(c), 227.175(10)(b), 227.180(1)(c). See Housing Council, 48 Or App at 538 (noting a possible exception to its holding, where the challenged decision involves financing of the citizen involvement program required by Statewide Planning Goal 1 (Citizen Involvement))." 45 Or LUBA at 415-16."

. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, Petitioners Response To Respondents’ Motion To Dismiss And Motion For Extension Of Time For Filing The Record)

"Petitioners request, because the Respondent refers to fee increase matters from 2004, the record shall contain all and any information relating to Planning Department Fee changes since January 2004 unit now."

. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, September 1, 2006, Respondent’s Motion To Dismiss And Motion For Extension Of Time for Filing Record)

"It is Josephine county’s position that the fee increases that are the subject of this pending matter before LUBA are a fiscal matter related to the budgetary process of county government. Even though the fees have some slight impact on land use they do not constitute a land use decision or limited land use decision; LUBA is therefore without jurisdiction to review the budgetary process involved in the increase. Because LUBA is without jurisdiction to hear the appeal in this matter, the appeal should be dismissed."

. Sommer v. Josephine County, __ Or LUBA __ LUBA No. 2006-150, August 14, 2006, Notice of Intent to Appeal)

"Notice is hereby given that petitioners intend to appeal the land use decision of Respondent entitled: Order No. 2006-125 In the Matter of Uniform Procedure for Setting Fees Charged by County: Provision of Planning Permits and Services; Adopting Fee Schedule"

 

A County Decision Regarding Local Land Use and Appeals Fees Is a Land Use Decision Subject to LUBA’s Jurisdiction - Court Rulings

. Landwatch Lane County v. Lane County, __ Or LUBA __ (LUBA No. 2006-039, June 26, 2006).

Opinion - "The above-emphasised findings, if they were supported by substantial evidence, would likely be adequate to respond to the issue that petitioner raised below and again raises in this assignment of error. For example, if the record included a focused representation by the planning staff regarding the average or actual costs to the county of providing a local appeal to challenge a planning commission or hearings official decision and that explanation supported a conclusion that the costs exceed the existing and proposed increased fee, we would almost certainly be required to deny this assignment of error unless some opposing evidence had been submitted to the county to rebut that representation.3 However, as we explain below, the county does not cite and we are unable to find the "representation" that finding four appears to rely on. The representations that the county identifies in its brief are generally directed at total Land Management Division costs and total Land Management Division fee revenues and make no attempt at all to focus on the three fees that are at issue in this appeal. . . .There does not appear to be any dispute that the total cost of operating the county Land Management Division, both before and after the challenged fee increases, exceeds the aggregate revenues that have been collected in the past and likely will exceed the revenue that will be collected in the future under the increased fee structure. The relevant question is whether a reasonable person would conclude from the fact that the three fees the challenged order adopts for appeals of planning commission and hearings official decisions will not exceed the average or actual costs of such appeals. Based on the present record, we do not believe a reasonable person would reach that conclusion."

Opinion - "Had Land Management Division staff made any particularized effort to explain why it believes the three fees proposed for planning commission and hearings officer appeals do not exceed the average or actual costs of those appeals, it might be appropriate for the county to fault petitioner for not attempting to refute that testimony. However, as far as we can tell, the Land Management Division did not make any particular effort to explain why the three fees that are subject to ORS 215.422(1)(c) comply with the limitation imposed by that statute."

. Doty v. City of Bandon, 49 Or LUBA 411 (2005).

Headnote - "Absent any contravening evidence or need for more detailed analysis, staff testimony that proposed application fee increases accurately reflect increased costs and are less than the maximum amount that cities my charge under ORS 227.175(1) is substantial evidence supporting a finding of compliance with the statute."

. Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003)

Headnote - "Under ORS 227.180(1)(c), the question of whether local appeal fees are "reasonable" is not separable from the question of whether the appeal fees are not more than the average or actual cost of such appeals, absent evidence that the local government spends an unreasonable amount of time or incurs unreasonable expenses in processing appeals." Headnote - That the legislature has capped local fees for providing a hearing under ORS 215.416(11)(b) and 227.175(10)(b) at $250 does not demonstrate that a $500 fee to appeal a planning commission decision to the governing body is unreasonable, for purposes of ORS 227.180(1)(c)."

"Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews. The legislature has adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters. ORS 215.416(11)(b), 215.422(1)(c), 227.175(10)(b), 227.180(1)(c). See Housing Council, 48 Or App at 538 (noting a possible exception to its holding, where the challenged decision involves financing of the citizen involvement program required by Statewide Planning Goal 1 (Citizen Involvement))."

. Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002).

Headnote - "Where a county order establishes a fee of $700 to, among other things, request a hearing on a permit application or file a local appeal of a permit decision rendered without a hearing, LUBA will remand the order where the $700 fee appears to violate the $250 maximum fees established by ORS 215.416(11)(b), and the county offers no defense of the order."

. Ramsey v. City of Portland, 29 Or LUBA 139 (1995).

Headnote - "Petitioner’s contention that the fee charged for a local appeal violates ORS 227.180(1)(c) must fail where there is no evidence in the record establishing that the local appeal fee is unreasonable or that it exceeds the average or actual cost of such an appeal, and petitioner does not move for an evidentiary hearing to submit such evidence."

. DLCD v. Jackson County, 21 Or LUBA 93 (1991).

Headnote - "ORS 215.416 and ORS 215.422 do not prohibit a county from establishing a fee requirement for appeals of decisions on permit application made by the planning director without a hearing." Some legislative history in opinion.

. Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980).

LUBA - Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss) - "In Housing Council, the Court of Appeals held that the Land Conservation and Development Commission (LCDC) did not have jurisdiction to review an ordinance adopting a system development charge for compliance with statewide planning goals, notwithstanding that such charges have impacts on land use. According to the court, the legislature did not intend LCDC to have the authority to review and ordinance that is primarily a fiscal measure designed to raise and allocate public revenue."

Fiscal Decisions Excluded From LUBA’s Jurisdiction - Court Rulings

. Lewis v. City of Bend, 45 Or LUBA 122, 124 (2003)
. Jesinghaus v. City of Grants Pass, 42, Or LUBA 477, 483 (2002) Do not have.
. Baker v. City of Woodburn, 37 Or LUBA 563, 568-69, aff’d 167 Or App 259, 4 P3d 775 (2000) Do not have.
. The Petrie Company v. City of Tigard, 28 Or LUBA 535, 540 (1995) Do not have.
. Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980) Do not have.

LUBA Headnotes - Appeals

Papers

Land Use Committee, Hugo Neighborhood Association & Historical Society & Goal One Coalition. November 28, 2006. Perils of An Applicant-Driven User Fee Funded Planning Office. Hugo, OR.

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