Follow up: Nehalem’s code violations could jeopardize prior development decisions

While some Nehalem officials said violating certain city codes is “an administrative issue at best” without serious ramifications, others believe noncompliance delegitimizes public service and could lead to legal challenges of civic decisions.

By Ann Powers

Concerns over the Nehalem Planning Commission not following its own monthly meeting ordinance and five-year comprehensive plan review policy surfaced at an Oct. 25 joint public meeting with the city council on annexation.

And more recently, apprehensions regarding the commission not electing its chair and vice-chair person at its first calendar meeting annually, as required by city codes, were also raised.

Monthly meetings
At the Oct. 25 meeting, planning commission newcomer Lucy Brook asked why the board wasn’t meeting monthly – as required by the city itself.

Under the Nehalem Code of Ordinances, Chapter 31, it states: “The Commission shall meet at least once a month. Meetings of the Commission shall be open to the public.”

“Since it says the commission ‘shall’ meet at least once a month, I’m wondering why we met a couple of months ago and a year-and-a-half before that – which I wasn’t on the planning commission yet,” Brook said. “How do I have information to effectively make a decision?”

Public meeting attendees added they would like to receive notices (by mail or email) of monthly meetings so they could attend, ask questions, learn about community issues and be more engaged with their local government.

“That’s why it’s a public meeting,” said Micah White, Nehalem People’s Association founder.

Others agreed, adding concerns about a lack of representation for Nehalem residents living outside city limits.

“It’s always us having to be proactive for you to be proactive,” said Nehalem rural resident Shawn Brigl. “It’s like, secret.”

Nehalem City Manager Dale Shafer
Nehalem City Manager Dale Shafer

City Manager Dale Shafer said she would develop an electronic email list for notices, but it was “senseless” to call a meeting “just to have a meeting.”

She explained the monthly meeting ordinance was written in 1996 when the city issued all building permits, so there was regular business on the agenda. That task has since been taken over by Tillamook County.

“If and when there is business, then the planning commission will hold a public meeting,” she said in an email exchange White provided to the North Coast Citizen. “This is an administrative issue at best.”

The city’s attorney, Lois Albright, acknowledged Nehalem is in violation, but said there are no consequences for the noncompliance.

“Technically, the planning commission would be in violation of its ordinance for not holding public meetings monthly, as per the ordinance establishing it,” she said. “However, there are no ramifications for the commission to not hold public meetings when there is no business to be conducted.”

Planning commission elections
Some contend Shafer and Albright could be wrong about the seriousness of the violations and subsequent ramifications.

Nehalem Planning Commission Ordinance 31.01(E) states: “Presiding members. At its first meeting of each calendar year, the Commission shall elect a Chairperson and Vice-Chairperson to serve one-year terms.”

In order to do that, the commission would have to meet at least once a year.

But, according to the commission’s minutes and agenda dated April 23, 2014, no regular planning commission meetings were scheduled from July 2012 to March 2014, due to a lack of business.

The minutes and agenda dated Oct. 28, 2015, shows the same for the time period between May 2014 and September 2015; as does the June 2, 2016 agenda from November 2015 to June 2016.

“This election was not done in 2016, 2015 or 2014,” White noted. “In fact, it is completely unclear when this happened in the past.”

Nehalem Planning Commission Vice Chairman John Coopersmith
Nehalem Planning Commission Vice Chairman John Coopersmith

Planning Commission Vice-Chairman John Coopersmith wasn’t sure either. He said he’s been on that board for about five years, and the vice chair the past four. He thought there might have been an election last June.

However, there is no election listed on the June 2, 2016, agenda.

“They think it is a minor infraction because they do not understand the implications,” White said. “If Nehalem is violating these laws then their meetings lack legitimacy. Therefore it might be possible to reverse the decisions of city council and the planning commission by bringing a court case. I believe citizens have up to 60 days after an illegitimate meeting to challenge it in court. So now it is just a question of waiting for the best decision to challenge.”

Legal experts said if municipal procedure isn’t being followed, legality could become a concern.

“I think by not following code calls into question the legality of the action that’s been taken,” said Jack Orchard, Oregon Newspaper Publishers Association attorney. “I think there has yet to be an explanation. If a code is not being done, then the question residents need to know is – why?”

Coopersmith said regular business for planning commissioners includes zoning changes, annexations and preparations for the Nehalem Comprehensive Review. He added if a request meets all necessary requirements, it wouldn’t require a commission meeting for approval.

Comprehensive Plan Review
City officials confirmed the last time the Nehalem Comprehensive Plan was reviewed was in 2007.

Nehalem Comprehensive Plan Procedure Policies, Section 2.020, states: “The Planning Commission and City Council shall review the Comprehensive Plan at least once every five years.”

Shafer said a review has been budgeted – nearly a decade after the last evaluation.

But, Nehalem City Planner John Morgan believed Nehalem was not out of compliance on this. He said Oregon cities with a population less than 10,000 were only required to do “periodic” reviews, according to Oregon State Land Use Law, Chapter 197.

Sadie Carney, of the Department of Land Conservation and Development, disagreed.

“A city’s policy may be more specific, but not less specific, than the relevant state law,” she noted.

And that means Nehalem’s five-year policy would trump the state’s periodic review stipulation for cities with populations less than 10,000, according to Orchard.

“It seems to me the city has boxed itself in a bit,” he said. “It’s not a staff thing – the city council adopted it.”

White said city officials’ reaction to the matter was indicative of an unresponsive local government.

“It’s sad,” he said. “They are literally breaking the law. If a city doesn’t follow its own laws, than what incentive do the citizens have to follow its laws? (The city) is run by a city manager who doesn’t even live in Nehalem and a mayor who is not super engaged.”

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