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- Subscribe - Contact Us - Rate Card - Place an Ad Valley&State Backpage O&E Sports Archives Classifieds Faith&Beliefs Obituaries Revels July 22, 2004 Bemis appeal will be heard by LUBA Aug. 5 By Steve Zimmerman Ashland Daily Tidings Now that everyone from local advocates to city councilors has weighed in on a proposed building project downtown, the Land Use Board of Appeals will enter the fray in a hearing Aug. 5 in Salem. The one-hour hearing could determine if Ed and Tanya Bemis' 81,000-square-foot condominium and retail building proposed for the current parking lot of the Ashland Springs Hotel will be built. The appeal was filed early this year but was delayed by omissions in the original draft record submitted by the city. Once the missing information was sent to LUBA, the appeal was put on the fast track. The Bemis project met city standards in effect at the time of the approval. But opposition was raised primarily over the size of the project. The city council was in the final stages of approving the new "big box" ordinance, which would limit the size of future projects in the city, when the Bemises made their application. Many in the community said the application was rushed to beat the implementation of the new ordinance. With the decision of the city council to reinterpret the ordinance in effect at the time of the application, that decision triggered the appeal process. A quick hearing City Attorney Mike Franell said he doesn't expect to take long in stating the case against the project. Each side has 30 minutes to present its side of the story. "Actually in this instance, the issue is fairly defined so I would be surprised if I take the full 30 minutes," he said. The Bemises contend that the city erroneously interpreted the ordinance that was already in effect, leading to the rejection of their application. "Our position is pretty straightforward," Bemis attorney Greg Hathaway said. "We feel the city did not have the authority to change their interpretation they had applied in previous cases and to implement a law that came into effect after we filed our application. "We do not believe the law, or for that matter equity, permits the city to do that. The law is clear that the law that was in effect at the time of the application is the law that is applicable. Basically, what the city did, in our opinion, was to adopt an ordinance, after we filed our application, that was not applicable. Then they changed their interpretation to make that new law applicable to us, which it isn't." The hearing begins at 1:30 p.m. in the small hearing room on the second floor of LUBA's office building. Hathaway said he will start the hearing, reserving 10 minutes of their 30 minutes for rebuttal. The Bemis brief is 80 pages, laying out their case in detail. Hathaway said this type of case is not seen often in the state. "It doesn't happen all that much and in our opinion that is because it is not authorized," he said. "You don't see it happen very often because it is not supposed to happen. It happened here and LUBA will be the judge as to whether that was appropriate or not." Franell said the city was well within their rights to interpret the ordinance the way it did. "The city's response is that we did reinterpret the code provision that is applicable in this instance," he said. "However, we do not believe our reinterpretation is erroneous. The city council and planning commission, a long time ago, had expressed dissatisfaction with he way the code provision had been interpreted. We had approximately two years of hearings discussing that and where they wanted to go with the code interpretation. "The Bemises contend the city did not have that authority to reinterpret the ordinance. We believe the council did have the authority to come in and evaluate it as long as they were not being discriminatory or capricious in their application." In May of 2003, the city council agreed with the planning commission that the ordinance should be interpreted to apply to the gross floor area and not the footprint. Staff was instructed to prepare an ordinance and a new ordinance was passed. Despite the long road of hearings and appeals this project has already wandered down, the LUBA decision is not the final say on the matter. Once LUBA delivers its decision, probably within 30 days, any party that is unhappy with the decision can appeal the decision to the Oregon Court of Appeals. That appeal must be filed within 21 days. DailyTidings.com Home Page Valley&State | Backpage | O&E | Sports | Archives | Weather | Classifieds Columnists | Faith&Beliefs | Obituaries | Revels | Subscribe | Contact Us Copyright 2004 Ashland Daily Tidings and Ottaway Newspapers All Rights Reserved Click Here Site Search: .:Advertisements:. RESOURCES - Mail Tribune News - ODOT Road Cams