WEST COAST MEDIA, LLC v. CITY OF GLADSTONE, LUBA No. 2002-098 (Or. LUBA 5/15/2003), LUBA No. 2002-098.
| Decision Date | 15 May 2003 |
| Docket Number | LUBA No. 2002-098. |
| Parties | WEST COAST MEDIA, LLC, Petitioner, v. CITY OF GLADSTONE, Respondent. |
| Court | Oregon Land Use Board of Appeals |
Petitioner appeals a letter from the city attorney denying petitioner's applications to construct four "billboards" in commercial and industrial zoned areas along Interstate 205.1
Petitioner moves to file a reply brief to address an argument in the response brief that any interpretations of the city's code in the challenged decision are entitled to deference under ORS 197.829(1). We agree with petitioner that a reply brief is warranted, and the motion is allowed.
The city moves to dismiss this appeal, arguing that the petition for review fails to establish that petitioner has standing to appeal to LUBA.
To have standing to appeal to LUBA, petitioner must "appear" before the local government. ORS 197.830(2)(b). The petition for review must set forth the facts that establish petitioner's standing. ORS 197.830(12)(a); OAR 661-010-0030(4)(a). The petition for review does not explicitly address petitioner's standing. However, the petition for review asserts, and the city does not dispute, that petitioner is the applicant for the permits denied by the city. See also Record 16, 43, 71, 99 (building permit applications filed on petitioner's behalf). As the applicant for the disputed permits, petitioner satisfies the ORS 197.830(2)(b) requirement for a local appearance. The city's standing challenge is without merit.
The pertinent facts in this case were stated in our order denying the city's motion to dismiss. West Coast Media v. City of Gladstone, 43 Or LUBA 585, 585-86 (2002):
The city attorney's July 11, 2002 letter states, in relevant part:
"Our office has instructed * * * [the] Clackamas County Building Official, to deny your client's four (4) building permits. As is true for any structure, in order for [petitioner] to be issued the building permits, billboards (or `outdoor advertising signs') must be an outright permitted use in the relevant zone.
Notwithstanding your argument to the contrary, as detailed in your May 31, 2002 letter, we believe it is quite clear that Gladstone's code does not permit billboards to be located anywhere within Gladstone's city limits." Record 2.
Petitioner moves to strike two statements in the response brief that petitioner contends are not based on the record: (1) an assertion that the city's basis for denial was the size of the proposed billboards, not the fact that the proposed signs were billboards; and (2) an assertion that the city council reviewed petitioner's applications and adopted the interpretation of the city's sign ordinance that is reflected in the city attorney's July 11, 2002 letter. Petitioner also moves to strike a June 18, 2002 letter attached to the response brief that is not in the record.2
The city responds that there is support in the record for the disputed assertions. In support of the first assertion, the city argues that the basis for denial in the city attorney's letter quoted above is nonspecific, and the denial could be based on a number of different considerations, including size of the proposed billboards. In support of the second assertion, the city points to a letter from the city attorney in the record that refers to "our review" of the code, and argues that use of the plural pronoun is some evidence that the city council, and not just the city attorney, interpreted the code in the challenged decision. 3
With respect to the June 18, 2002 letter attached to the response brief, the city argues that LUBA may consider the letter for the limited purpose of determining whether the city council interpreted the city code to prohibit construction of the proposed billboards, as the city contends. However, the city does not request that we consider the letter, pursuant to OAR 661-010-0045.4
The cited record pages provide only the most tenuous factual support for the two disputed assertions. However, as discussed below, we disagree with the merits of the city's arguments that (1) the basis for denial was the size of the disputed billboards, rather than
their status as billboards, and (2) the interpretation reflected in the city attorney's letter is attributable to the city council, for purposes of our standard of review under ORS 197.829(1). Given our rulings on those legal arguments, we see no need to resolve whether the factual predicates for those arguments are supported by the record. Petitioner's motion to strike the two disputed assertions is denied.
As for the June 18, 2002 letter, we may not consider that document over petitioner's objection, in the absence of a motion to consider extra-record evidence pursuant to OAR 661-010-0045. Petitioner's motion to strike the June 18, 2002 letter is sustained.
Petitioner moves to take evidence not in the record, specifically an April 23, 2002 letter from petitioner's attorney to the city attorney. The April 23, 2002 letter was previously stricken from the record pursuant to petitioner's record objection. See n 2; Record 130.
However, petitioner now asks that LUBA consider that letter, to resolve a factual dispute regarding whether the city was aware that the proposed billboards are "off-premises signs," i.e., signs that advertise goods, services or facilities located some place other than the property on which the sign is located.
Petitioner explains that the city takes the position in its response brief that the allegedly "off-premises" nature of the proposed signs could not have been the basis for denial, and that nothing in the record indicates that petitioner proposed to construct "off-premises" signs. Respondent's Brief 8. Petitioner notes that the April 23, 2002 letter refers to petitioner's "proposal to erect as many as five off-premises signs in Gladstone," and argues that the city knew very well that petitioner sought approval for "off-premises signs." Record 130. The city objects to our consideration of the April 23, 2002 letter.
Our authority to consider evidence that is not included in the local government record is limited to the grounds stated in OAR 661-010-0045(1). Petitioner makes no attempt to demonstrate that the alleged factual dispute concerns the unconstitutionality of the decision,
standing, ex parte contacts, actions for the purpose of avoiding the requirements of ORS 215.427 or 227.178, or procedural irregularities not shown in the record. Absent that demonstration, we have no grounds to accept and consider the proffered evidence.5 Petitioner's motion is denied.
Because the city's sign code is the central issue in petitioner's interpretative and constitutional challenges to the city's decision, we begin by describing the sign code in some detail.
The sign code, at Gladstone Municipal Code (GMC) Chapter 17, Section 52, has nine subsections. GMC 17.52.010, entitled "Applicability," states in relevant part that "[t]he standards of this chapter shall apply to all signs." GMC 17.52.020 is entitled "Signs— Generally," and sets forth a number of general provisions governing all signs.6 As relevant
here, GMC 17.52.020 states that "[s]igns shall be allowed in commercial and industrial zoning districts pursuant to the standards of GMC 17.52.020 through 17.52.070." GMC 17.52.020(8) sets forth the method for calculating the maximum area for signs, where GMC Chapter 17.52 establishes a maximum area.
GMC 17.52.040 is entitled "Freestanding identification signs," and provides for "[f]reestanding signs oriented to off-site circulation and identifying the use of the premises," subject to a number of conditions.7 GMC 17.52.050 is entitled "On-building identification
signs," and allows "[o]n-building signs identifying the use of the premises," subject to a number of conditions. 8
GMC 17.52.055 allows an "electronic message center sign" to be incorporated into a permanent identification sign, subject to a number of conditions.9 GMC 17.52.060 allows
for signs that direct the flow of traffic to and from or within a development, and also provides for directories that identify multiple tenants, uses or buildings within a development. GMC 17.52.070 permits for temporary signs that advertise special sales or events, subject to obtaining a temporary sign permit.10
GMC 17.52.080 allows "[t]emporary campaign signs" on private property or in unimproved portions of a street...
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