Originally published October 3, 2012 at noon, updated October 3, 2012 at 3:14 p.m.
This article has been updated and clarified from the Oct. 3 print edition.
Backers of a ballot measure which seeks to limit the amount of money the city of Hood River can charge for land use decision appeals are cleared to try for a spring ballot.
The ballot measure is seeking to cap appeal fees for individuals at $500 or 1 percent of annual income and $500 for registered nonprofits.
The measure was submitted by Derek Bell, Linda Maddox and Michelle Hollister, who then proceeded to challenge, through attorney Brent Foster, the language used by City Attorney Dan Kearns in the ballot title the city submitted.
The group believed that Kearns used biased language in drafting the ballot measure question, caption and summary which would appear on the ballot and challenged the language in court.
Judge John Olson agreed with petitioners that Kearns’ language did not meet state law — but also ruled that the alternative language posed by the petitioners did not, either.
“We were encouraged the judge found the ballot measure adopted by the city didn’t comply with state law; that was an important finding and why we challenged it,” Foster said.
“I find that that ballot title fails to comply with ORS 250.035 (1),” Olson wrote. “But that Mr. Foster’s proposed alternatives would also fail to comply with ORS 250.035 (1).”
Instead, he drafted his own alternative language, which it appears both sides wound up somewhat happy with.
“He wove them both together,” Kearns said of the approach Olson took to the competing languages submitted by the two sides.
In his rewrites, Olson substituted or deleted language he felt was editorial, and attempted to clarify areas he felt were ambiguous or unclear.
Some of those changes included substituting “people and nonprofit groups” for “certain groups and individuals” in the ballot question to clarify for whom appeals would be capped.
The question now reads “shall Hood River revise its charter to limit and subsidize land use appeal fees for people and nonprofit groups?”
He agreed with Kearns over ambiguity of the words “applicant” and “appellant” in the measure.
He cited the case of Wolf v. Meyers as precedent for not attempting to resolve the confusion between the two terms, which Kearns argued made it unclear whether the measure capped fees for the original land use permit or applicant or the appellant, and Foster argued was the language used in the city code.
“When it appears that more than one reading of the wording of the contested measure is plausible, our precedents are clear that it is inappropriate for this court, at this stage, to resolve the ambiguity in the measure,” Olson wrote, quoting from Wolf v. Meyers.
Instead of clarifying the meaning of the language, Olson inserted “(undefined)” after the word “applicant” in his measure text.
‘‘He chose a reasonable and common-sense way of approaching it,” said Hood River Mayor Arthur Babitz.
“(Olson) did a better job of making clear what this measure does in limiting appeal fees to citizens and nonprofits to a maximum of $500,” Foster said. “It’s reasonable to have an appeal fee but not to have a $5,000 appeal fee; that blocks the majority of the people in Hood River from arguing their case before city council.”
Foster said the measure’s backers had not figured out their timeline on proceeding, but that getting on a special election ballot as soon as March remains a possibility.