Tuesday, April 17, 2007
INDEPENDENCE -- Revisiting what had been a dead issue for months, the Independence City Council unanimously denied Farnstroms Mortuary last week an opportunity to operate a crematorium from its residential area location because of zoning laws.
Officials held the April 10 public hearing in accordance with a December decision by the Oregon Land Use Board of Appeals (LUBA) on a petition filed by neighbors of the 410 Monmouth St. business against Independence.
LUBA then opined that the city's reasoning in signing off on the crematorium was poorly explained and appeared to be "legally incorrect."
The agency remanded the issue and asked the city to adopt findings to support its position and decide whether the addition of the crematorium expanded the scope of the mortuary business.
Owners Ben and Alex Farnstrom had previously indicated that they would bring the crematorium back if they received council approval.
More than 30 crematorium supporters and opponents showed up for the meeting after learning that City Manager Greg Ellis had recommended that councilors allow the facility.
"You rode the LUBA thing to the very end ... you lost," said Jay Hallowell, one of the chief LUBA petitioners. "You've never conceded and you haven't conceded now ... it's ridiculous."
Mortuaries are allowed in commercial zones under current city codes. Crematoriums may be added as a conditional use.
Though the Farnstrom property sits in a residential neighborhood, it operates as a non-conforming use under a grandfather clause.
The city allowed Farnstroms to add 1,800 square feet in 1999, with infrastructure allotted for a crematory later on.
The Farnstroms installed a crematorium in July 2006. A LUBA petition was later filed that argued that the non-conforming use only applied to the mortuary and that the crematorium was an expansion that violated of zoning laws.
Much of the dispute centered on the city's role in approval of the crematorium by the Department of Environmental Quality (DEQ).
Ellis wrote last year that the crematorium was a permitted use and that no planning review of the matter was required when he was asked on a DEQ land use compatibility statement (LUCS) whether the the facility complied with municipal land laws.
LUBA ruled against the city and remanded the issue. In an April staff report, Ellis wrote that the 1999 blueprints of the mortuary expansion showed a new entry point for a natural gas line and reinforced concrete walls, and there were no appeals of the construction.
Ellis also wrote that cremation was a common service in mortuaries, citing several general definitions of "mortuary."
Wally Lien, legal counsel for the petitioners, said that city code prohibits against expanding the scope of activity of properties already operating under a non-conforming use.
Adding an in-house crematorium to the mortuary qualifies as a violation, Lien said.
"LUBA already looked at this ... the petitioners are correct," Lien said at the hearing. "I don't know how much clearer it can get.
Lien also noted that neither Independence nor Farnstroms defended the original decision during the appeal process.
"You don't have any choice ... the law is clear," Lien said. "You have to deny the LUCS."
Several local residents voiced their concerns and support for the crematorium during a hearing that lasted almost two hours. Elaine Stuart said the service was vital and necessary for a growing community.
"For people to move in next door to the mortuary after it's been there for years and come forward with all this baloney ... why did they even buy a house there in the first place?" she said.
Carolyn Baker said the facility, when fired up, made a lot of noise and could easily be heard above the traffic on Monmouth Street. Others neighbors said that the smokestack shot black fumes into the air and complained of the odor.
Melissa Killion argued that those claims were exaggerated and stem from what was an operator error during an early cremation.
Council members struggled to reach a decision, with Jerry Hoffman and Marilyn Morton stating that Farnstroms had locally advertised cremation services for years prior through their Portland mortuary.
Hoffman wondered if the crematorium might not technically constitute expansion of the business' activities.
"I'm leaning toward denial," Councilor Jim Kirkendall said. Building a crematorium "is a pretty major change."
Surprisingly, the council first voted 3-2, with Kirkendall and Nancy Lodge dissenting, to uphold the application.
The approving councilors reconsidered their positions a few minutes later, however, after considering that a zone change would be required to allow a restricted use in a non-conforming site.
They passed a second motion denying the request.