City Council approves return to 'de novo' appeal process
Upcoming land use appeal hearings in West Linn will have a decidedly different feel than in years past, as the City Council voted unanimously Monday, Nov. 13 to return to the "de novo" or "as new" process that was abandoned in 2014 in favor of an "on the record" system.
De novo allows for new evidence and issues to be introduced during an appeal hearing, while the previous process restricts discussion on appeal to what was deliberated at the original decision body. The current city councilors — who were not in office when the process was changed in 2014 — have long wished to return to de novo to allow for what they feel to be a more inclusive and comprehensive appeal process.
"The City has some experience with this approach to appeal hearings," City Attorney Tim Ramis said just before the vote. He added that the West Linn Planning Commission recommended approval of the ordinance to return to de novo.
The 2014 decision to move away from de novo was part of a larger "code streamlining" effort that was intended to simplify the City's land use process. The controversial Lake Oswego-Tigard Water Partnership (LOT) decision in 2013 was cited as an example of where de novo could go awry.
The current council, on the other hand, felt handcuffed by the on the record process, particularly during a series of recent development appeal hearings when evidence the councilors viewed as important could not be introduced.
City Council President Brenda Perry, while in support of returning to de novo, asked Ramis to clarify the limits on introducing new evidence.
"How many times can it go back and forth and (people) keep bringing new evidence?" Perry said.
"Ultimately you're the judge of that," Ramis said. "Once the case comes to the council, this is no longer the first evidentiary hearing, so we're essentially relying on your judgement of what a fair process is."
Ramis said that after initial arguments and rebuttals, if a party wants to introduce more evidence then staff will often recommend a period for written arguments to be submitted.
"That would typically involve an initial opportunity for a written submittal, a chance for everybody to respond to the other side's information and finally a written argument by the party that has the burden of proof, with no new evidence submitted during (that time)," Ramis said.
As was discussed at prior work sessions, the council may revisit this ordinance as part of a broader effort to revamp its development review process.
"The City is in the process of reconsidering all of its procedures," Ramis said.