Solberg v. City of Newberg

641 P.2d 44, 56 Or. App. 23, 1982 Ore. App. LEXIS 2356
CourtCourt of Appeals of Oregon
DecidedFebruary 22, 1982
DocketNo. 81-049, CA A22262
StatusPublished
Cited by3 cases

This text of 641 P.2d 44 (Solberg v. City of Newberg) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Solberg v. City of Newberg, 641 P.2d 44, 56 Or. App. 23, 1982 Ore. App. LEXIS 2356 (Or. Ct. App. 1982).

Opinions

RICHARDSON, P. J.

Petitioners appeal from the Land Use Board of Appeals’ (LUBA) affirmance of the City of Newberg’s denial of petitioners’ application for extension of a building permit. We affirm.

The building permit was issued in April, 1979, and authorized the construction of a 10-plex. Petitioners completed the excavation phase of the project in June, 1979. They then encountered difficulties in procuring financing. While they attempted to secure financing, they substantially discontinued construction work. The evidence is conflicting as to whether any construction took place after June, 1979. Petitioners contend that some did, consisting of the placement of a protective fence around the excavation area and, later, the pumping of water from the area by the city in January, 1980. However, LUBA found that the evidence in the city proceedings did not support petitioners’ contentions that work was performed after the spring of 1979.

In July, 1979, the city enacted a zoning ordinance which had the effect of limiting the residential density on petitioners’ property to four units. However, the ordinance contains a saving clause which provides, as pertinent:

“To avoid undue hardship, nothing in this ordinance shall be deemed to require a change in plans, construction, or use of any building on which a building permit in accordance with the Newberg Building Code has been legally issued prior to the effective date or amendment of this ordinance, except that applications for extension of a building permit shall not be approved to exceed a period of one year from the date of adoption or amendment of this ordinance.”

Section 303(d) of the city’s building code provides:

“Expiration. Every permit issued by the building official under the provisions of this code shall expire by limitation and become null and void if the building or work authorized by such permit is not commenced within 180 days from the date of such permit, or if the building or work authorized by such permit is suspended or abandoned at any time after the work is commenced for a period of 180 days. Before such work can be recommenced, a new permit shall be first obtained so to do, and the fee therefor shall be [26]*26one-half the amount required for a new permit for such work, provided no changes have been made or will be made in the original plans and specifications for such work; and provided further that such suspension or abandonment has not exceeded one year.
“Any permittee holding an unexpired permit may apply for an extension of the time within which he may commence work under that permit when he is unable to commence work within the time required by this section for good and satisfactory reasons. The building official may extend the time for action by the permittee for a period not exceeding 180 days upon written request by the permittee showing that circumstances beyond the control of the permittee have prevented action from being taken. No permit shall be extended more than once. In order to renew action on a permit after expiration, the permittee shall pay a new full permit fee.”

In the spring of 1980, petitioners obtained a loan commitment and then communicated with various city officials about the continuation of the 10-plex construction project. In June, 1980, petitioners formally applied to the city for an extension of their building permit; they contended generally that they were entitled to the extension by the terms of the saving clause in the zoning ordinance. The city denied the application. LUBA affirmed on the ground that petitioners’ permit had lapsed pursuant to section 303(d) of the building code, because petitioners had discontinued construction work for a period exceeding 180 days. Consequently, there was no permit in effect to be extended.1

Petitioners’ first assignment is that LUBA erred in ruling that they had lost “the benefit of the ‘saving clause’ because their building permit lapsed.” Petitioners argue:

“First, the expiration language of the UBC [building code] is simply not relevant to the land use questions raised by this appeal. The limitation language of § 303(d) of the UBC serves a very limited and specific function in keeping with the overall purpose of the UBC, assuring that building permits are kept reasonably current so that construction is in conformance with the most recent UBC [27]*27requirements. As the City’s own building inspector indicated, extensions of permits are routinely granted if the plans are in conformance with existing building codes. The only consequence of allowing a building permit to expire under § 303(d) is that one must pay an additional building permit fee to reinstate the permit. There is simply no notion of forfeiture under the UBC that would alert petitioners that their entire development would be lost if their permit expired.
“Second, the City of Newberg should not be permitted to use § 303(d) of the UBC as the basis for the land use planning decision because the relevant standards under the zoning ordinance and the UBC are markedly different. Newberg Zoning Ordinance § 572 applies an abandonment standard to determine if a nonconforming use may continue (‘it is the intent of this ordinance to permit these nonconformities until they are removed or abandoned ***’). The UBC, on the other hand, sets forth a ‘suspension or abandonment’ standard to determine if a building permit has expired. By allowing the City of Newberg to use the UBC standard to deny petitioners an extension of their permit, LUBA sanctioned the City’s use of a less demanding standard than the zoning ordinance required. Under LUBA’s interpretation, the City needed to find only that work had been suspended, not that petitioners had abandoned their project. The distinction is critical here, since petitioners never abandoned their development; petitioners’ continual efforts to secure financing is conclusive evidence of that fact.”

The fundamental assumption — and flaw — in petitioners’ argument is that the zoning ordinance’s saving clause provides a standard for or right to extension of permits wholly independent of and more liberal than the building code’s provision relating to duration and expiration of permits. As we understand the saving clause, it does quite the opposite: it adds a supplemental limitation to those in the building code on the city’s authority to extend permits for construction of nonconforming buildings. In any event, both provisions relate to the expiration and extension of building permits. We conclude that they must be read together and that they operate together.

We also disagree with petitioners’ understanding that section 303(d) of the building code imposes no condition on renewal or extension of permits other than the [28]*28payment of a fee. The section requires a permittee who holds an unexpired permit to apply for an extension of the time within which to commence work and to show that circumstances beyond the permittee’s control “have prevented action from being taken.” Where a permit has expired, work cannot be recommenced unless “a new permit shall be first obtained.” Nothing in the language of the section suggests that the city’s issuance of a new permit is any less discretionary than is issuance of an original permit.

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Related

City of Kalispell v. Schaffer
700 P.2d 1000 (Montana Supreme Court, 1985)
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646 P.2d 1349 (Court of Appeals of Oregon, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
641 P.2d 44, 56 Or. App. 23, 1982 Ore. App. LEXIS 2356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solberg-v-city-of-newberg-orctapp-1982.