Zoning: Challenge to zoning approval fails

Where the plaintiff challenged the City Council for the City of Salem’s second approval of a zoning application, the court sustained the demurrers.

Background

On Nov. 30, 2023, HopeTree Family Services submitted an application that sought to rezone the 62.318-acre parcel from residential single family to a planned unit district, or PUD. On June 24, 2024, City Council for the City of Salem approved this rezoning application. The City Council approved HopeTree’s second rezoning application on Dec. 9, 2024. Carlos B. Hart Jr. then filed this suit challenging the City Council’s decision to approve HopeTree’s second rezoning application. Both HopeTree and the City Council filed demurrers to each count in plaintiff’s complaint.

Salem Code § 106-520(D)

Plaintiff first argues that City Council’s decision to approve HopeTree’s second rezoning application was in violation of Salem Code § 106-520(D). Specifically, plaintiff alleges that HopeTree “effectively withdrew” its original rezoning application when it submitted a “new” rezoning application on Aug. 30, 2024, and City Council prematurely considered the second rezoning application because it was “substantially the same application for the same property within one year of the Council action.”

The court disagrees with plaintiff’s argument that HopeTree “effectively withdrew” the originally approved rezoning application. The legislative record shows that City Council and HopeTree relied on the original rezoning application during the second rezoning process as evidenced, for example, by the recitals included in City Council’s rezoning ordinance from December 2024.

Plaintiff’s suggested interpretation would also require the court to read into the ordinance additional language concerning “withdrawn” applications and ignore the ordinance’s plain meaning. This suggested reading would prevent supplementation and feedback from City Council and the community on new applications submitted within a one-year period by already approved and successful applicants seeking to provide further clarification on their application. Such a reading of Salem Code § 106-520(D) would be counterintuitive and “lead to an absurd result.”

Moreover, plaintiff’s interpretation would require the court to disregard the ordinance’s legislative intent, which only focuses on limiting the ability for applications to be resubmitted by those who have a denied or withdrawn application within the same year period. The court also notes that the zoning administrator had the authority to prohibit consideration of HopeTree’s second rezoning application, if he determined it was either denied or withdrawn, and chose not to exercise this authority as provided by Salem Code§  106-520(D).

Salem Code § 106-228.4

This portion of the ordinance states that “[a]ll information submitted shall be of sufficient clarity and scale to clearly and accurately identify the location, nature, and character of the proposed district,” before listing 10 different types of required information. Plaintiff argues that the second rezoning application, including its master plan, does not satisfy the requirements of the ordinance.

The court finds that plaintiff has failed to put forward the requisite probative evidence of unreasonableness. Even if plaintiff met this burden, the legislative record contains sufficient evidence demonstrating that this issue is fairly debatable. A review of the legislative record before the court, which contains, for example, the rezoning application, master plan and land use plan, staff report and revised staff report and the rezoning narrative, demonstrate that City Council was reasonable in approving the rezoning application. And while plaintiff argues that City Council relied on “inaccurate facts,” and “failed to adequately study the traffic impacts,” the record demonstrates the contrary.

Defendants’ demurrers sustained.

Hart Jr. v. City Council for the City of Salem, Case CL25-05, Aug. 7, 2025. Circuit Court for the City of Salem (Carson). VLW 025-8-026. 7 pp.