Tuesday, February 20, 2007
INDEPENDENCE -- Officials must revisit a decision that led to the installation of a crematory in a residential area, the Oregon Land Use Board of Appeals (LUBA) said.
Some community members filed a LUBA claim against the city not long after the owners of Farnstrom Mortuary added a crematorium to their business at Fourth and Monmouth streets last July.
The neighbors contended Independence failed to notify them of the operation and violated its own zoning laws because the facility wasn't a permitted use.
LUBA remanded the issue in late December, and advised that the city conduct a new land-use process regarding the property and offer a basis for findings.
The parties are to present their arguments in April. But the matter is mostly moot at this point.
Ben Farnstrom, who owns and operates the mortuary with his brother, Alex, removed and relocated the crematory to their Portland funeral parlor in December because of the complaints.
"Neighbors were upset, and we're here to please the community," Ben Farnstrom said. "It is disappointing not to have it here ... it was quite a bit of expense to move it."
Mortuaries are allowed in commercial zones under current city codes, though crematories may be added as a conditional use.
The Farnstrom property sits in a residential neighborhood, but operates under a "grandfather" clause. Petitioners argued that expansion of a business under a non-conforming use and allowing the crematory in a residential zone was a violation of city laws.
In 1999, the city allowed Farnstrom to add 1,800 square feet, with infrastructure allotted for a crematory later on.
Much of the dispute centered on the city's role in approval of the crematory by the Department of Environmental Quality (DEQ).
City Manager Greg Ellis wrote that the crematory was a permitted use and that no planning review of the matter was required when he was asked on a DEQ permit application whether the crematory was compatible with Independence land laws.
"We agree with petitioners that the city manager's conclusion that the crematory is a 'permitted use' is inadequately explained and appears to be legally incorrect," the LUBA opinion said.
"Nothing in the LUCS (land-use compatibility statement) or elsewhere in the record indicates the basis for that conclusion," it also said.
Neither the city nor the Farnstroms contested the petitioners' claims during the LUBA appeal.
Ben Farnstrom said he didn't intervene "because we felt like we had gotten the permit once without breaking any laws, by following the city's guidance."
Rich Rodeman, Independence legal counsel, said the Farnstroms asked "for the sign to 'sign off' on a permit from DEQ, and that from that point, the city viewed the matter as an issue between the property owners and the agency.
"This dispute does not involve the application of a city ordinance or comprehensive plan provision, did not involve a decision by the planning commission or city council, and therefore the city does not have sufficient legal interest in the dispute to warrant filing a brief," Rodeman said.
Farnstrom said the business still offers cremation service, just not in-house.
He said would abide by whatever results from the April hearings and added that if officials determine it's a permitted use on the property, he may bring the equipment back to Independence.
Even though the crematory is gone, the issue may linger a bit longer. The petitioners filed a tort claim with the city on Jan. 31 seeking $7,652 to pay for legal fees, and may take the matter to Polk County Circuit Court if they aren't reimbursed.
"The whole thing could have been avoided if (city officials) had walked down the street and said they made a mistake," said Jay Hallowell, a petitioner who owns a home next to the mortuary. The city "needs to figure out you can't run things on a basis where anything goes."