By Terri Harber
Baker City councilors on Tuesday didn't accept an appeal challenging a Planning Commission decision allowing a business to operate in a residential area.
The seven-member planning commission approved a conditional-use permit on May 23 allowing attorneys Robert Moon and Kyra Rohner-Ingram to run their law practice from a house in the 2600 block of Main Street.
Matt Shirtcliff lives near the attorneys' business site.
Shirtcliff, who is the Baker County district attorney, believes the commissioners' decision was based on faulty information and that he has a right to appeal.
Shirtcliff lives about 260 feet away from the Main Street property. People living within 100 feet of a site that might be modified must receive written notification before the Planning Commission considers a conditional-use permit request.
There also were signs posted outside the law office location - a new requirement for such matters within the city's borders - but Shirtcliff said he didn't pay much attention to them.
"Everybody on my street saw the postings but didn't know what it was," Shirtcliff told the councilors.
A residential neighborhood becoming more commercialized is his main concern because of children running around amid increased traffic, for example, he said.
Shirtcliff said a mistake in the staff report about the project makes the commissioners' decision invalid. It stated that the property being used was only 1,400 square feet. He pointed out to the city that it's actually 2,002 square feet.
The space on the second floor of the home had been left out of the total square footage.
Though a letter written by Rohner-Ingram already stated this and was part of the information provided to the commissioners, the decision more likely was based on the staff-generated list of facts, Shirtcliff contends.
He said this difference allows him to appeal because he's "affected" by having a business operating in a residential area.
The commissioners were provided with the staff report and Rohner-Ingram's letter to consider before approving the conditional-use permit, according to the city.
Shirtcliff also argued that the site exceeding 2,000 square feet in size makes it too large to be approved in a high-density residential area without commissioners taking it into consideration.
The staff report was amended after the commissioners had made their decision. City staff refers to the action as "a minor change that did not materially alter the decision."
One part of the city's planning code states that Shirtcliff also wouldn't have been able to appeal because he lives outside the written notification area and didn't become involved in the permit process until after the commissioners' approved it.
His appeal to the councilors was filed within the deadline, however.
"We could start over and do this right," Shirtcliff suggested.
Along with asking the councilors to remand the permit matter back to the planning commission for another vote, Shirtcliff suggested the city consider following Baker County's wider-ranging notification process.
Brent Smith, the city's attorney, disagreed with Shirtcliff's interpretations of the city's development code.
He said the correct information was provided to the commissioners before they made their decision.
The city has a duty to people applying for permits as well as to nearby residents, Smith told the councilors. Not making a timely decision would provide the person or people seeking the permit to seek redress, Smith said.
Shirtcliff has no stranding to make an appeal, Smith told the councilors.
The next body that would hear this type of matter - if the argument is lawfully allowed by the permit applicant or appellant - is the state Land Use Board of Appeals (LUBA).
The councilors could have allowed the matter to go back to the commission. It would have provided others without standing precedent for an appeal, however.
"I don't recommend that," Smith said.
Moon and Shirtcliff have been trying to reach an agreement on the dispute. That could include new conditions for the permit for the law office, said Mark Bennett, director of the Baker County Planning Department, which absorbed the city's planning operations as of July 1.
Funding for windmill cleanup
Councilors approved entering into agreements with the state Department of Environment Quality and Solid Waste Orphan Fund, the latter of which would provide the city with $100,000 for remediation of 17 acres of land near Windmill Road.
The site served as part of the city's landfill for about 25 years, until 1973, and operated on about 20 acres of land within a 38.7-acre site that has since been subdivided and partitioned. A road and underground utility corridor run through the middle of the old landfill, and there are some structures in place.
Significant amounts of methane were detected at four locations during testing, and precautions were taken to make the areas safer by dissipating the gas, said Michelle Owen, the city's public works director.
The agreement between the city and DEQ describes these as "potentially explosive soil gas concentrations" and points out that the soil underground still is unstable.
A report about the test findings hasn't been completed, however.
The DEQ has requested further testing.
While the agreements would acknowledge the city's responsibility to the former landfill, "it does not preclude the city from seeking assistance from other involved parties such as the landfill operator or property owner," the report also stated.
Representatives of the Bootsma family, the current landowners, met with local and state officials in February to talk about whether it was a viable development site as well as what could be done to clean it up.
The land was annexed into the city several years ago.
In other business, the councilors:
andbull; Were told the Quail Ridge Golf Course pond project is complete. Access for disabled visitors also has been improved. A golf tournament scheduled Aug. 11-12 will benefit improvements at the golf course. A benefit auction also is being planned.
andbull; Found out that street workers discovered asbestos in vaults underneath Resort Street. These workers moved to a different site because working around asbestos requires special care.
andbull; Heard from the Parks and Recreation Committee about the survey it recently conducted.
andbull; Awarded a total of $4,410 in city sidewalk grants to seven applicants. The deadline has been extended to July 29 to distribute the remaining $8,792 available this year.
andbull; Noted that no one has filed to run for Baker City Council in November, and that volunteers are needed to fill two seats on the Tree Board.