The Land Use Board of Appeals has ordered the city of Gearhart to re-consider Shannon Smith’s conditional use permit for her historic livery and determine if she’s completed substantial construction and, if not, whether she’s entitled to another six-month extension.

“What happened was positive for me and, I think, for Gearhart,” Smith said. “We’re very excited to get it behind us and make this a wonderful gathering place for people in the city.”

She announced during public comment of the Gearhart City Council’s meeting April 1 that she had received the Land Use Board of Appeals’ decision, but it was not further discussed at the meeting.

The three-member board heard oral arguments in Portland on Feb. 26, the final stage of a lengthy appeal process. Shelby Rihala, an associate with Jordan Ramis PC who specializes in land-use issues, represented the city; Smith was represented by her attorney Dan Kearns, of Portland.

The written opinion provided by the board summarizes that Smith was appealing the city’s decision that her conditional use permit was void and, subsequently, denying her request for a second extension of the permit.

For several years, Smith has planned to use her Neacoxie Creek Barn as an events center. She was issued a conditional use permit to do so in 2012, and it was subject to 13 conditions for approval, such as notifying the city prior to activities, holding no more than six events and no more than one event per weekend in a month, making plans to supply appropriate parking and obtaining a certificate of occupancy.

Gearhart’s Zoning Ordinance says authorization of a conditional use is void after one year “unless substantial construction pursuant thereto has taken place” and that the city may extend authorization for an additional six months upon request.

Smith was granted a six-month extension in October 2013. The city believed the permit expired April 26, but the board rejected that contention. On April 15, 2014, Smith submitted a letter to the city in which she claimed substantial construction on the barn would be done by April 26, 2014, but she also submitted a request for an extension “in the event additional time was needed to complete the construction,” the board’s written opinion states.

If a permit application is incomplete, Oregon law requires a city to notify the applicant what information is missing within 30 days of receiving the application. The applicant must then submit the missing information or notify the city no more information will be submitted.

Less than two weeks after she submitted her letter, Gearhart City Administrator Chad Sweet determined she had not completed substantial construction and denied her application, saying the city only could grant one six-month extension.

Smith appealed Sweet’s decision on April 25, 2014, and he responded five days later on April 30, restating the city did not agree she had substantially completed her project and denied her appeal.

“If the city was waiting for ‘missing information’ to be supplied it would not, and could not, have made those decisions because it did not have a complete application,” the board opinion states, adding the city also did not give Smith “a clear signal that her application for an extension” was incomplete.

Most importantly, the board opinion states that Smith indicated she did not plan to submit additional documentation except for a bid estimate and stated “any denial is required to be provided to me in writing citing specific criteria and citing specifically how the documentation submitted fails to meet the criterion cited.”

That statement shows Smith believed her application complete, and it was the city’s responsibility to tell her what information was missing, the board concluded.

Ultimately, the Land Use Board of Appeals sided with Smith that a remand is necessary in order for the city to issue a decision on her local appeal. If substantial construction pursuant to her 2012 conditional use permit has taken place, then no extension of the permit is required, the board decided.

If the city determines, however, that substantial construction has not taken place, “the city will need to determine whether to grant (Smith’s) request for an extension” according to the Zoning Ordinance, the board’s opinion states.

The city is entitled to a judicial review of the order, but Sweet does not think it will be necessary. He plans to speak with the city’s attorney to lay out the next steps for Smith and the city.

Smith hopes the Planning Commission will determine at its May or June meeting whether she’s reached substantial completion on her conditional use permit. She plans to be present at that meeting with her architect David Vonada and structural engineer Tim Wolden.

“I’d like to just get it behind us, for sure,” Smith said. “But I’d like to have all the pieces in order.”

For instance, she wants to go into the meeting with a solution to sanitation issues.

“There should kind of be a streamlined approval, we hope and are excited about,” she said.

Smith has not obtained a building permit or occupancy permit, but she believes she’s taken many other steps to fulfill the 13 conditions of her conditional use permit. The Planning Commission has the authority to determine if Smith’s substantially completed the conditions of her permit, in which case her permit would be vested. If they determine she has not, she will have to apply for another extension.

In other news from the City Council meeting:

- The council approved in a 4-1 vote to increase Sweet’s salary by 5 percent for fiscal year 2015-16; the increase will kick in July 1. Sweet’s current salary is $77,168 and will be $81,026 for the next fiscal year. Councilor Dan Jesse cast the dissenting vote. While Sweet’s review – which was conducted in executive session March 25 – went well, Jesse said, he believes the city needs to be fiscally responsible with taxpayer money, and a 5 percent increase is hard to justify to the community when employees in many other sectors aren’t experiencing similar pay increases.

- The council voted unanimously to hold the Gearhart Earth Day Free Community Cleanup event April 25. Recology will deliver four 20-yard drop boxes for trash and one 3-yard drop box for electronics to City Hall. The boxes will be available in front of City Hall for residents to dump trash from 8 to 11 a.m. at no cost. The estimated cost to the city for the dump day is $820 after Recology’s donated discount of about 50 percent.

- On the suggestion of Councilor Kerry Smith, the council agreed to send a letter, as a body, to the Oregon Department of Transportation advocating to dissolve the four-lane portion of U.S. Highway 101 in the Gearhart and instead add a left turn lane to get to the east side of the city. The four-lane system has presented a safety issue, Smith said.

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