Jacksonville error blamed for loss of appeal against church
Friends and councilman say the city provided an incorrect filing date, causing the denial of an appeal against the church
JACKSONVILLE ' A councilman says the city's failure to correct an error may have led to the dismissal of Friends of Jacksonville's appeal against an expansion planned by First Presbyterian Church.
This is exactly where we didn't want to be, said Bill Leep. Have we disadvantaged a party? Could this have been avoided?
The Land Use Board of Appeals ruled Wednesday that the Friends' appeal against a conditional use permit for the church expansion was filed too late. It upheld the church's corresponding motion to dismiss the case because of the filing error.
Friends said it filed the appeal based on a deadline published by the city in its Notice of Decision, but the Feb. — date given was seven days too late.
— Leep revealed the details of a February executive session in which the city's attorney, Kurt Knudsen, said he had lost confidence in the accuracy of the Feb. — filing deadline. Leep said Knudsen urged the council to consider rescinding and then reissuing the church's permit to allow an appeal by the community group to proceed on its merits rather than be kicked out on a technicality potentially caused by the city's error.
Leep said that if the city wanted to prove itself an impartial body in the long-standing battle between Friends and the church, it should have heeded Knudsen's advice and remedied its noticing error.
Friends attorney Liam Sherlock said he not only will file an appeal to LUBA's decision, but is also evaluating the option of filing a lawsuit against the city.
The city attorney tried to do the right thing in order to ensure that the city provided all its citizens a full and fair opportunity to be heard, said Sherlock. The church has won its motion to have our appeal dismissed at LUBA, but the city has lost credibility.
Church attorney Alan Harper said Sherlock should have kept better track of his calendar and that LUBA was clear in its ruling.
All opponents had an equal and fair opportunity to appeal the city's decision within the 21 days allowed by statute, said Harper. We understand the opponents have the right to bring this to the Oregon Court of Appeals, but we hope that LUBA's decision is clear enough that they won't find that necessary.
City Administrator Paul Wyntergreen, who is on vacation and could not be reached for comment, said in February the city believed the date to be accurate at the time.
Friends is against the church's plans for an 18,163-square-foot expansion on 10 acres adjacent to the Pleasant Meadows subdivision. The conditional use permit was approved Jan. 7. Friends filed its appeal on Jan. 31.
Leep, who has openly opposed the project on the grounds of land-use issues, said he came forward with details of the Feb. 18 executive session because he believed the process was flawed.
It's truly been one of the hardest things I've ever done, said Leep. I've heard the heartfelt want for this application. But it's not about the church; it's about land use. And this thing hasn't been clean from the day it started.
We were trying to unwind a mistake in that executive session, said Leep. The attorneys can chase (deadline issues), and that's their business. But it's the city's business to say, 'Has everybody been heard?' Where's their personal accountability?
Councilwoman Donna Schatz said accepting Knudsen's advice would have caused more delays and further clouded the issue.
If we had followed Kurt's advice, we would have had to go back to issues at the December meeting, said Schatz. Kurt may have alluded to the issue of fair play. He laid it out as if it (the LUBA ruling) could go either way. It's one of those gray areas.
Leep disagreed. We recognized clearly there was a dispute ' there was a timing issue. That should have invited the city to make a level playing field. Now we look like a colluded party.
Leep said he believed the council came to a consensus in the executive session that rescinding and reissuing the permit would avoid court appeals delays and be fair for all parties involved.
But when the public meeting began before a house packed with community members on both sides of the issue, it was a different story.
Mayor Jim Lewis called for a motion to reconsider the church's permit. Leep said he made the motion when the other council members didn't. But the motion failed for lack of a second.
Schatz ' a First Presbyterian church member for more than 20 years ' disagreed there was consensus at the executive session and is upset that Leep would take the context public.
I am appalled at Bill's frankness with this. I thought what was said in executive sessions was strictly private, said Schatz.
The executive session was held under ORS 192-660 and closed to the public because matters being discussed involved possible pending litigation, according to City Recorder Cathy Hall.
Leep believes it was the sight of the church's pastor, Larry Jung, and many of his congregation that caused the council members to fail to second his motion.
It's peer pressure, said Leep. It's very tough to be up there and make the right decision under those circumstances. ... I don't blame them, but that's not how you do process. In effect, it's mob rule.
Attempts to obtain comment from other council members or Mayor Lewis proved unsuccessful.
Reach reporter Sanne Specht at 776-4497 or e-mail .
The church's three-year struggle
Here is a history of the Jacksonville First Presbyterian Church's plan to expand into a new building.
November 1999: The Jacksonville Planning Commission denies the church's request for a conditional use permit to build a 400-seat sanctuary on 10 acres the church owns near the Pheasant Meadows subdivision. The congregation wants the new building because it has outgrown its present location, a 120-year-old historic building near downtown.
January 2000: The City Council reverses the Planning Commission's decision and approves the new church building.
February 2000: In a joint meeting with the Planning Commission, the City Council establishes conditions of approval, including a ban on weddings and funerals at the new building. The council also sets hours of operation for the new church. Media reports about the restrictions spark a public outcry.
March 2, 2000: The City Council reverses itself and denies the church permit, saying the conditions would infringe on the church's religious freedom.
March 24, 2000: The church appeals the city's denial to the state Land Use Board of Appeals.
January 2001: The City Council votes 5-2 to hold new hearings on the church's request for a conditional use permit. The church drops its LUBA appeal.
May 2001: The City Council votes 5-2 to approve the conditional use permit.
May 2001: Friends of Jacksonville, a group of about 10 people, including Pheasant Meadows neighbors and former City Council members, appeals to LUBA.
May 15, 2002: LUBA remands the case to the City Council for a new hearing,citing bias of Councilman Jerry Mathern, who is a church member.
Dec. 3, 2002: City Council tentatively approves conditional use permit on a 4-2 vote.
Jan. 7, 2003: City Council finalizes approval of conditional use permit.
Jan. 13, 2003: City sends notice informing interested parties that the deadline for appealing to LUBA is Feb. 3, 2003.
Jan. 31, 2003: Friends of Jacksonville files appeal to LUBA.
Feb. 4, 2003: First Presbyterian Church files motion to dismiss for untimely filing, stating deadline is Jan. 27, 2003.
Feb. 18, 2003: Friends of Jacksonville files response to church's motion to dismiss. City Council holds executive session to consider reissuing the church's conditional use permit in order to restart LUBA appeal period. Motion to reconsider the church's permit fails in open session for lack of second.
April 16, 2003: LUBA rules in favor of church's motion to dismiss, saying Friends missed its deadline to file an appeal.