Background
HopeTree Family Services owned approximately 62 acres in Salem that had long been zoned residential single family. In June 2024, the City Council approved HopeTree’s application to rezone the property as a planned unit district. Carlos B. Hart Jr., a nearby resident, and others then sued, alleging procedural defects in that approval.
While that litigation was pending, HopeTree filed a substantially similar rezoning application, with supplemental information and an adjusted phasing plan, seeking a protective re-adoption of the rezoning. The Planning Commission recommended approval, and the City Council approved the second application in November and December 2024. Hart sued again, arguing that Salem Code § 106-520(D) barred consideration of the second application for one year because HopeTree had effectively withdrawn the first one.
The Court’s Holding
The Court of Appeals affirmed dismissal of Hart’s complaint on demurrer. It held that the ordinance’s one-year bar applies only when the Council denies a rezoning application or when an applicant withdraws an application after Council consideration but before the Council approves or denies it.
HopeTree’s first application had been approved, not denied, and it was not withdrawn while pending. The incorporated legislative record showed that HopeTree and the Council continued to rely on the first application’s materials and proffers; the second application was filed to address asserted procedural defects in the first approval, not to abandon it. The court therefore concluded that the one-year restriction never attached.
Key Takeaways
- A rezoning application generally cannot be withdrawn after the governing body has already approved it.
- A substantially similar follow-up application does not itself amount to withdrawal of an earlier approved application.
- On demurrer, documents properly incorporated into the pleadings may defeat contradictory factual inferences.
Why It Matters
The decision preserves localities’ ability to re-adopt or supplement an approved rezoning when litigation raises procedural concerns. It also limits one-year bars on repeat zoning applications to unsuccessful or still-pending applications that are denied or affirmatively withdrawn.