Cannon Beach City Zoning Code
ARTICLE II
Procedures
§ 17.08.010 Purpose.
This article establishes the procedures and requirements to be applied in reviewing and acting on a development proposal.
(Ord. 24-05, 6/5/2024)
§ 17.10.005 Purpose.
The following are the major participants in the planning process in the city. The roles of these participants are generally outlined in this chapter. The roles and responsibilities may be further defined by the city council through ordinance or resolution.
(Ord. 24-05, 6/5/2024)
§ 17.10.010 City council.
A.
The city council is the policy and ultimate decision-making body for the city except as otherwise provided by the comprehensive Plan, the Constitution of the State of Oregon, Oregon State Statutes, or Chapter IV of the Cannon Beach Charter. The city council retains and exercises all the powers granted to the city except as provided herein, by the comprehensive plan, or by action of the city council through either the adoption of an ordinance or resolution.
B.
The city council may interpret this title where ambiguity exists as to the meaning of specific provisions. This interpretation, when made, shall be used to guide staff and the approval authority in applying provisions of this title to specific situations. The city council by ordinance or resolution shall develop procedures for implementing this section.
(Ord. 24-05, 6/5/2024)
§ 17.10.020 Planning commission.
A.
The planning commission shall operate as provided in Chapter 2.12 of the Cannon Beach Municipal Code.
B.
The planning commission shall advise the city council on legislative planning and development issues as provided in Section 2.12.020 of the Cannon Beach Municipal Code.
C.
The planning commission shall serve as the approval authority as provided in this title.
(Ord. 24-05, 6/5/2024)
§ 17.10.030 Design review board.
A.
The design review board shall operate as provided in Chapter 2.10 of the Cannon Beach Municipal Code.
B.
The design review board shall advise the city council on legislative planning and development issues as provided in Section 2.10.020 of the Cannon Beach Municipal Code.
C.
The planning commission shall serve as the approval authority as provided in this title.
(Ord. 24-05, 6/5/2024)
§ 17.10.040 City manager.
A.
The city manager or manager shall fulfill the duties as provided in Section 22 of the Cannon Beach Charter.
B.
For the administration of this title, the city manager may designate other city employees to fulfill the duties of the city manager, including, but not limited to, the community development director, public works director, and building official.
(Ord. 24-05, 6/5/2024)
§ 17.10.050 Community development director.
The community development director shall be responsible for the administration of planning and development activities within the city, as directed by the city manager. The director's responsibilities may include, but are not limited to, the following activities:
A.
Schedule and assign cases for review and hearings;
B.
Conduct all pertinent correspondence of the hearings bodies;
C.
Give notice as required by this title;
D.
Maintain agendas and minutes of all planning commission and design review board meetings;
E.
Compile and maintain all necessary records, files, and indexes for planning and development activities;
F.
Provide professional expertise, staff assistance and act as secretary to the planning commission and design review board, keeping an accurate, permanent, and complete record of all proceedings;
G.
Provide professional expertise and staff assistance to the city manager and city council as necessary regarding planning matters;
H.
Coordinate planning functions with other city departments and other agencies as is necessary to carry out planning duties;
I.
Provide assistance and information to the public on land use activities;
J.
The director shall serve as the approval authority as provided in this title or as designated by the city manager; and
K.
Other activities as specified by the city council.
(Ord. 24-05, 6/5/2024)
§ 17.12.010 Development permit required.
A development permit is required for:
A.
The construction, enlargement, alteration, repair, moving, improvement, removal, conversion or demolition of any structure or building which requires a building permit pursuant to either the State of Oregon, One and Two Family Dwelling Code, or the state of Oregon, Structural Specialty Code. (For the purpose of this section, these are referred to as Type I action); or
B.
An activity, development, or structure specifically listed in this title as requiring a development permit.
C.
In the case of a structure or building requiring a building permit, the development permit may be part of the building permit.
(Ord. 24-05, 6/5/2024)
§ 17.12.020 Exclusions from development permit requirement.
The following activities are permitted in each district but are excluded from the requirement of obtaining a development permit. Exclusion from the permit requirement does not exempt the activity from otherwise complying with all applicable standards, conditions, and other provisions of this title.
A.
Landscaping or other treatment or use of the land surface outside any flood plain, wetland and drainageways and not involving a structure or paved parking lot.
B.
Any change or repair to a building or other structure that does not alter or expand the use thereof or require a building permit.
C.
An emergency measure necessary for immediate safety of persons or protection of property, provided however, that an application for a development permit shall be promptly filed if the measure otherwise would require such a permit but for the emergency.
D.
The establishment, construction, maintenance, preservation or termination of public roads, transportation facilities and other public facilities including sewer and water lines, electrical and gas distribution lines, and telephone and television transmission lines that are substantially in the public right-of-way directly serving development or as shown on the comprehensive plan or adopted Public Facility Plan, together with piping and culverts, accessory drainage systems such as catch basins, and necessary accessory structure and easements. Notwithstanding this exemption, said facilities within sensitive lands, shall obtain a development permit as provided in this title. This permit shall be approved if the applicant demonstrates compliance with the applicable approval standards.
E.
Construction, maintenance, or demolition of an accessory structure not requiring a building permit.
F.
The following excavations or fills, unless a development permit is required by the environmental resources and hazards provisions in Article V:
1.
Excavations below finish grade for basements and footings of a building, retaining wall or other structure authorized by a valid development permit;
2.
Excavations for wells, tunnels, or utilities;
3.
Excavations or fills for public projects, conducted by or under contract of the city;
4.
Exploratory excavations affecting or disturbing areas less than 5,000 square feet in size, under the direction of soil engineers or engineering geologists;
5.
An excavation which is less than two feet in depth, or which does not create a cut slope greater than five feet in height and steeper than one and one-half horizontal to one vertical;
6.
A fill less than one foot in depth and placed on natural terrain with a slope flatter than five horizontal to one vertical, or, a fill less than three feet in depth, not intended to support structures, which does not exceed 150 cubic yards on any one lot and does not obstruct a drainage course;
7.
Underground pipes and conduits; and
8.
Above ground electrical transmission, distribution, communication, and signal lines on a single pole system where a single pole system is defined as above ground electrical lines and their supporting concrete, wood, or metal poles, but does not include self-supporting steel lattice-type structures.
G.
Continued use of a valid nonconforming use or exercise of a vested right, except that any change, alteration, restoration, or replacement of a nonconforming use shall require a development permit as provided in this title.
(Ord. 24-05, 6/5/2024)
§ 17.12.030 Development permit application.
A.
Application. A property owner or their designated representative may initiate a request for a development permit or building permit by filing an application with the city using forms provided by the city.
B.
Consolidated Application Procedure. Where a proposed development requires more than one development permit, or a change in zone designation from the city, the applicant may request that the city consider all necessary permit requests in a consolidated manner. If the applicant requests that the city consolidate his or her permit review, all necessary public hearings before the planning commission shall be held on the same date.
C.
Filing Fee. It shall be the responsibility of the applicant to pay for the full cost of processing permit applications. Minimum fees shall be set by resolution by the city council, and the applicant shall pay the minimum fee to the city upon the filing of an application. Such fees shall not be refundable. The applicant shall be billed for costs incurred over and above the minimum permit fee at the conclusion of city action of the permit request.
D.
Building Permit Issuance. Before issuing a permit for the construction, reconstruction, or alteration of a structure, it will be the responsibility of the building official to make sure that provisions of this title will not be violated.
(Ord. 24-05, 6/5/2024)
§ 17.12.040 Development permit expiration.
A.
A development permit shall be void one year after the date of approval unless the approval authority granted an extended expiration date not to exceed two years, a building permit has been obtained, development has commenced as provided in Section 17.12.050 or an extension is approved as provided in Section 17.14.040(B).
B.
If an extension is desired, the holder of the development permit must file an application for an extension prior to expiration of the development permit. Unless approved, an extension request does not extend the expiration date. Extension requests shall be processed as a Type I action. An extension may be granted for a maximum of two years from the original date of expiration.
(Ord. 24-05, 6/5/2024)
§ 17.12.050 When development has commenced.
Development authorized by a development permit has commenced when:
A.
The necessary permits including, but not limited to, building permit or grading permit have been issued; and
B.
Physical alteration of the land or structures has begun in a manner consistent with the development permit approval, including, but not limited to, structures, grading, installation of utilities, and required off-site improvements.
(Ord. 24-05, 6/5/2024)
§ 17.12.060 Compliance with conditions of approval.
Compliance with conditions imposed on the development permit, and adherence to the submitted plans, as approved, is required. Any departure from these conditions of approval and approved plans constitutes a violation of this title.
(Ord. 24-05, 6/5/2024)
§ 17.12.070 Revocation of development permit.
A.
Revocation shall be processed as a Type I action.
B.
A development permit may be revoked upon a finding of:
1.
Noncompliance with the standards or conditions set forth in this title, or any special conditions imposed upon the permit;
2.
Intentional fraud, misrepresentation or deceit upon the part of the applicant as to an issue material to the issuance of the development permit;
3.
Abandonment or discontinuance as determined by failure to make reasonable progress toward completion of a commenced development for a continuous period of one year. Bona fide good faith efforts to market the development shall not constitute abandonment or discontinuance; or
4.
A change in this title, the comprehensive plan, or state law which would make the approved development unlawful or not permitted, prior to the development obtaining a vested right or nonconforming use status.
C.
Revocation shall be effective immediately upon the manager providing written notice thereof to the holder of the permit. Unless provided otherwise by the manager, revocation terminates the ability to continue the use. Continued use without a current valid development permit shall be a violation of this title.
D.
The holder of a revoked permit may reapply for a new permit at any time as an entirely new application.
(Ord. 24-05, 6/5/2024)
§ 17.14.010 Classification of land use actions.
All land use actions shall be classified as one of the following unless state law mandates different or additional procedures for particular land use actions or categories of land use actions.
(Ord. 24-05, 6/5/2024)
§ 17.14.020 Type I procedure.
A.
Type I development actions involve permitted uses or development governed by clear and objective review criteria. Type I actions do not encompass discretionary land use decisions. Impacts have been recognized by the development and public facility standards.
C.
If the manager determines that the proposed development does not conform, with the applicable Type II or Type III decision, or requires submittal of a new Type II or Type III application, it shall be processed as provided in this title. The manager's determination shall not be subject to appeal.
D.
Type I development actions shall be decided by the manager without public notice or hearing. Notice of a decision shall be provided to the applicant or the applicant's representative and owners of the subject property. The decision may be appealed by the applicant as provided in Chapter 17.18. The appeal shall be reviewed as a Type III hearing except that only the applicant and owners of the subject property shall be entitled to notice.
(Ord. 24-05, 6/5/2024)
§ 17.14.030 Type II procedure.
A.
Type II land use actions are presumed to be appropriate in the relevant zoning district. They generally involve uses or development for which review criteria are reasonably objective, requiring only limited discretion. Impacts on nearby properties may be associated with these uses, which may necessitate imposition of specific conditions of approval to minimize those impacts or ensure compliance with this title.
B.
Type II actions are identified as such in this title.
C.
Type II development actions shall be decided by the manager without a public hearing. The decision shall be by signed written order. The order shall comply with Sections 17.16.090(B) and (C).
D.
The notice of the decision shall be provided pursuant to Sections 17.16.090(A), (B), and (C). The decision may be appealed as provided in Chapter 17.18. The appeal shall be reviewed as a Type III hearing.
(Ord. 24-05, 6/5/2024)
§ 17.14.040 Type III procedure.
A.
Type III actions involve development or uses which may be approved or denied, thus requiring the exercise of discretion and judgment when applying the development criteria contained in this title. Impacts may be significant and the development issues complex. Extensive conditions of approval may be imposed to mitigate impacts or ensure compliance with this title and the comprehensive plan.
B.
The following are Type III actions:
1.
Those identified in this title as Type III;
2.
Those not identified or otherwise classified, which are determined by the manager to be substantially similar to the uses or development designated as Type III, require the exercise of significant discretion or judgment, involve complex development issues, or which likely will have significant impact. The determination may be challenged on appeal of the decision on the proposed development but is not subject to appeal on its own; and
3.
Quasi-judicial plan amendments.
C.
Type III actions shall be decided by the planning commission or design review board after a public hearing, except that the city council shall decide Type III actions for quasi-judicial plan amendments.
(Ord. 24-05, 6/5/2024)
§ 17.14.050 Type IV procedure.
A.
Type IV actions are legislative. They involve the creation, broad scale implementation or revision of public policy. These include amendments to the text of the comprehensive plan or this title. Large scale changes in planning and development maps also may be characterized as legislative where a larger number of property owners are directly affected.
B.
Type IV actions are made through adoption of city ordinances.
C.
Type IV actions shall be decided by the city after a public hearing. The city council may also request that the planning commission hold a public hearing in advance of the city council hearing to consider the proposal, public testimony, and provide a recommendation.
(Ord. 24-05, 6/5/2024)
§ 17.14.060 Determination of proper procedure type.
A.
The manager shall determine whether an application or decision is a Type I, II, or III action in accordance with the standards set forth above. Questions as to the appropriate procedure shall be resolved in favor of the type providing the greatest notice and opportunity to participate. The decision of the manager is subject to appeal on its own, or it may be alleged as an error in an appeal of the decision on the proposed development. Upon appeal of the decision on the merits of a development action not specifically classified in this title, the planning commission or city council may determine, based on the standards set forth in Section 17.14.020 through 17.14.040, that a different procedure type should have been used and direct that the proposed development action be processed accordingly.
B.
The determination as to whether a matter is subject to a Type IV procedure shall be made by the manager in accordance with the standards of this title. Concurrent actions involving legislative and non-legislative actions shall be separated for proper processing. The decision of the manager is not subject to appeal on its own but may be alleged as an error on appeal of the decision on the proposed development. Upon appeal of the final decision on the merits of the action, the planning commission or city council may determine, based on the standards set forth in Sections 17.14.020 through 17.14.050, that a different procedure type should have been used, and direct that the proposed development action be processed accordingly.
C.
An applicant may choose to have the proposal processed under a procedure type (except Type IV), which provides greater notice and opportunity to participate than would otherwise be required.
D.
At no additional cost to the applicant, the manager may choose to process a Type II application under the Type III procedure to provide greater notice and opportunity to participate than would otherwise be required, or in order to comply with the time requirements for reviewing development applications in Section 17.16.040.
(Ord. 24-05, 6/5/2024)
§ 17.16.010 Application.
A.
Applications for development actions shall be submitted in accordance with the format and upon such forms as may be established by the city manager.
B.
A complete application is one which contains the information required to address the relevant standards of the comprehensive plan and this title. It shall consist of the following:
1.
A completed original application form;
2.
Proof that the property affected by the application is in the exclusive ownership of the applicant, or that the applicant has the consent of all partners in ownership of the affected property;
3.
A legal description and current Clatsop County tax map(s) showing the subject property(ies) and all properties within 250 feet of the subject property;
4.
Relevant public facilities information;
5.
Additional information required by other provisions of this title and the comprehensive plan;
6.
Additional information directly related to the applicable standards of this title or the comprehensive plan as deemed essential by the manager to evaluate adequately the specific application for compliance with those criteria and standards; and
7.
The applicable fees adopted by the city council are hereby incorporated by reference as the fees herein. These fees may be amended by resolution and order by the council.
(Ord. 24-05, 6/5/2024)
§ 17.16.020 Pre-application conference.
A.
No application for a Type II or Type III action shall be received by the city manager unless the applicant or the applicant's representative has:
B.
The purpose of the pre-application conference is to acquaint the applicant or representative with the requirements of this title, the comprehensive plan, and other relevant criteria. It is designed to assist the applicant. The applicant assumes the risk for delays or other problems caused by failure to attend. It is impossible, however, for the conference to be an exhaustive review of all potential issues and failure of the city manager to provide any information required by this title shall not constitute a waiver of the policies, standards, or criteria relevant to the application.
C.
Pre-application conferences shall be scheduled by the city manager at the earliest reasonable time.
D.
As soon as practicable, the manager shall provide the applicant or representative with a written summary of the meeting.
E.
Information given by the city manager and/or staff to the applicant during the preapplication conference is valid for no longer than one year. Another preapplication conference is required if an application is submitted more than one year after the preapplication conference is held.
(Ord. 24-05, 6/5/2024)
§ 17.16.030 Application submittal and acceptance.
A.
Applications shall be submitted to the manager in the number specified on the application form. The manager, however, may waive copies of specific documents, maps or exhibits upon a determination that the difficulty or burden of copying outweighs the usefulness of the copies.
B.
No application shall be received by the city for determination of completeness without the appropriate application fee.
C.
The date of submission shall be recorded. Within 30 days the manager shall determine whether the application is complete. The manager shall notify the applicant when the application is accepted as complete or rejected as incomplete if deficiencies are found. Resubmitted applications shall be subject to another 30-day completeness check.
D.
Upon determination of completeness, applications shall be accepted immediately. The date of acceptance shall be recorded. The manager shall notify the applicant that the application is complete. Unless otherwise directed by the city council, applications shall be processed in the order accepted.
E.
The decision of the manager as to completeness of an application, including any required engineering, traffic, or other such studies, shall be based on the criteria for completeness, adequacy and methodology set forth in this title or by resolution and order of the council. Rejection by the manager for incompleteness shall be based solely on failure to address the relevant standards or supply required information and shall not be based on differences of opinion as to quality or accuracy. Acceptance indicates only that the application is ready for review.
F.
Upon rejection for incompleteness, the applicant may object in writing to any alleged deficiencies and direct that the application be processed. During review, the applicant may submit additional information relating to the alleged deficiencies, but the manager is not obligated to review such information. The staff report may recommend denial or deferral due to insufficient or inaccurate information.
G.
The approval authority shall approve or approve with conditions an application which the manager has determined to be incomplete only if it determines that sufficient, accurate information has been submitted and adequately reviewed by the approval authority with an opportunity for review by affected parties or that conditions can be imposed to ensure proper review at the appropriate time. In all other cases the approval authority shall defer or deny.
H.
All documents or evidence relied upon by the applicant shall be submitted to the city and made available to the public at least 20 days before a public hearing. If additional documents or evidence is provided in support of the application, any party shall be entitled to a continuance of the hearing. Such a continuance shall be subject to the limitations of Section 17.16.040.
I.
If additional documents or evidence is provided in opposition to the application, the applicant shall be entitled to a continuance of the hearing.
(Ord. 24-05, 6/5/2024)
§ 17.16.040 Final action on applications.
The city shall take final action on an application for a permit, limited land use decision, or zone change within 120 days of the receipt of a complete application. The 120-day period does not apply to an amendment to the comprehensive plan or zoning ordinance, or the adoption of a new land use regulation. At the request of the applicant, the 120-day period may be extended for a reasonable period of time.
(Ord. 24-05, 6/5/2024)
§ 17.16.050 Staff report.
A.
No decision regarding a Type II, Type III, or Type IV action shall be made without a staff report. This report shall be provided to the applicant. All others may obtain a copy upon request and payment of a reasonable fee to cover the cost of reproduction, overhead, and mailing.
B.
A staff report shall be available no later than seven days before a public hearing regarding a Type III or Type IV application or any hearing on appeal. A staff report shall be mailed approximately seven days prior to the public hearings to the applicant and interested parties who request it. Mailing the report does not guarantee sufficient time prior to the public hearing to respond to the conditions of approval. Obtaining a copy of the staff report in person at the city best assures ample time for review and comment at the public hearing.
C.
Notwithstanding the above, the staff report may be amended as necessary to address issues or information not reasonably known at the time the report is due.
D.
If staff submits additional evidence or an amended staff report in support of the application, any party shall be entitled to a continuance of the hearing. Such a continuance shall be subject to the limitations of Section 17.16.040.
E.
If staff submits additional evidence or an amended staff report in opposition to the application, the applicant shall be entitled to a continuance of the hearing.
(Ord. 24-05, 6/5/2024)
§ 17.16.060 Notice of pending development actions.
A.
General Provisions.
1.
All public notices for pending development actions shall be deemed to have been provided or received upon the date the notice is deposited in the mail or personally delivered, whichever occurs first.
2.
The records of the Clatsop County Department of Assessment and Taxation shall be used for determining the property owner of record. Persons not on file with that department at the time an application is filed need not be notified. Failure to actually receive notice shall not invalidate an action if a good faith attempt was made to notify all persons entitled to notice. A sworn certificate of mailing issued by the person conducting the mailing shall be conclusive evidence of a good faith attempt to contact all persons listed in the certificate. Mortgagees, lien holders, vendors and sellers receiving notice shall promptly forward a copy by mail to the purchaser.
3.
For notice purposes, the boundary of the subject property shall be the property, which is the subject of the application, together with all contiguous property under identical ownership.
B.
Type I and Type II Actions Do Not Require Public Notice of Review.
C.
Type III Actions.
1.
Notice of public hearing shall be mailed, published, and posted at least 20 days before the hearing.
3.
The notice of public hearing shall contain:
a.
The name of the property owner and applicant, if different from the property owner, and the city's case file number;
b.
The date, time, place of the hearing and who is holding the public hearing;
c.
A description of the location of the property for which a permit or other action is pending, including the street address, and a subdivision lot and block designation, or the tax map designation of the county assessor;
d.
A concise description of the proposed action;
e.
A listing of the applicable criteria known to apply to the application at issue;
f.
A statement that a failure by the applicant or other parties to the hearing to raise an issue at a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the decision makers an opportunity to respond to the issue, precludes appeal based on that issue;
g.
A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at a reasonable cost;
h.
A statement that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and will be provided at reasonable cost;
i.
The name of a city representative to contact and the telephone number where additional information may be obtained; and
j.
A general explanation of the requirements for submission of testimony and the procedure for the conduct of hearings.
E.
Notice of appeal of a Type II or Type III decision shall be provided in the same manner as required for Type III actions as required in subsection (C)(3) of this section. Notice of decision on appeal shall be provided to all parties of record.
(Ord. 24-05, 6/5/2024)
§ 17.16.070 Public hearing procedure and requirements.
Public hearings conducted under this title shall comply with the following procedures and requirements:
A.
Procedural Rights. The following procedural entitlements shall be provided at the public hearing:
1.
An impartial review as free from potential conflicts of interest and prehearing ex parte contacts as is reasonably possible.
a.
No member of a hearing body shall participate in a discussion of the proposal or vote on the proposal when any of the following conditions exist:
I.
Any of the following have a direct or substantial financial interest in the proposal: the hearing body member or the member's spouse, brother, sister, child, parent, father-in-law, mother-in-law, any business in which the member is then serving or has served within the previous two years or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment;
II.
The member owns property within the area entitled to receive notice of the public hearing;
III.
The member has a direct private interest in the proposal; or
IV.
For any other valid reason, the member has determined that participation in the hearing and decision cannot be in an impartial manner.
b.
Disqualification due to a conflict of interest or personal bias may be ordered by a majority of the members present. The person who is the subject of the motion may not vote on the motion.
c.
Hearing body members shall reveal any prehearing or ex parte contacts regarding any matter at the commencement of the first public hearing following the pre-hearing or ex parte contact where action will be considered or taken on the matter. If such contacts have not impaired the member's impartiality or ability to vote on the matter, the member shall so state and shall participate in the public hearing. If the member determines that such contact has affected his impartiality or ability to vote on the matter, the member shall remove himself from the deliberations. Disqualifications due to ex parte contact may be ordered by a majority of the members present. The person who is the subject of the motion may not vote on the motion.
d.
A party to a hearing may challenge the qualifications of a member of the hearing body to participate in the hearing and decision regarding the matter. The challenge shall state the facts relied upon by the challenger relating to a person's bias, prejudgment, personal interest, ex parte contact, or other facts from which the challenger has concluded that the member of the hearing body cannot participate in an impartial manner. The hearing body shall deliberate and vote on such a challenge. The person who is the subject of the challenge may not vote on the motion.
e.
A party to a hearing may rebut the substance of the communication that formed the basis for an ex parte contact declared by a member of the hearing body.
f.
No officer or employee of the city who has a financial or other private interest in a proposal shall participate in discussion with or give an official opinion to the hearing body on the proposal without first declaring for the record the nature and extent of each interest.
2.
A reasonable opportunity for those persons potentially affected by the proposal to present evidence.
3.
A reasonable opportunity for rebuttal of new material.
B.
Rights of Disqualified Member of Hearing Body. A disqualified member of the hearing body shall have the following rights:
1.
An abstaining or disqualified member of the hearing body may be counted for purposes of forming a quorum. A member who represents personal interest at a hearing may do so only by abstaining from voting on the proposal, physically joining the audience and vacating the seat on the hearing body and making full disclosure of his or her status and position at the time of addressing the hearing body.
2.
A member absent during the presentation of evidence in a hearing may not participate in the deliberations or final decision regarding the matter of the hearing unless the member has reviewed the evidence received.
C.
Burden and Nature of Proof. Except for a determination of the applicability of chapter provisions, the burden of proof is upon the proponent. The proposal must be supported by proof that it conforms to the applicable provisions of this title, especially the specific criteria set forth for the particular type of decision under consideration.
D.
Nature of Proceedings. An order of proceedings for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate:
1.
Before receiving information on the issue, the following shall be addressed:
a.
Any objections on jurisdictional grounds shall be noted in the record and if there is objection, the person presiding has the discretion to proceed or terminate.
b.
Any abstentions or disqualifications, based on conflicts of interest, personal bias, or ex parte contacts, shall be determined.
c.
A statement by the person presiding that:
I.
Describes the applicable substantive criteria against which the application will be reviewed;
II.
Testimony and evidence must be directed toward the criteria described in subsection (D)(1)(a) above or other criteria in the comprehensive plan or land use regulations which a person believes to apply to the land use action;
III.
Failure to raise an issue accompanied by statements or evidence sufficient to afford the decision makers and parties to the hearing an opportunity to respond to the issue precludes an appeal based on that issue;
IV.
Prior to the conclusion of the hearing, any participant may request an opportunity to present additional evidence or testimony regarding the application. The request may be granted to continuing the public hearing or leaving the record open for additional written evidence or testimony; and
V.
Describes the review and appeal process provided for by this chapter.
2.
Presentations and Evidence.
a.
The presiding officer shall preserve order at the public hearing and shall decide questions of order subject to a majority vote.
b.
The presiding officer may set reasonable time limits for oral presentations. The presiding officer may determine not to receive cumulative, repetitious, immaterial, or derogatory testimony.
c.
Evidence shall be received from the staff and from proponents and opponents:
I.
Evidence shall be admissible if it is of a type commonly relied upon by reasonable and prudent persons in the conduct of serious affairs. Erroneous evidence shall not invalidate or preclude action unless shown to have prejudiced the substantial rights of a party to the hearing.
II.
Members of the hearing body may take official notice of judicially cognizable facts of a general, technical, or scientific nature within their specialized knowledge. Such notice shall be stated and may be rebutted.
III.
The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.
d.
The hearing body may view the area in dispute with notification to the parties to the hearing, of the time, manner, and circumstances of such a visit.
e.
The hearing body may recess a hearing to obtain additional information or to serve further notice upon other property owners or persons it decides may be interested in the proposal being considered. The time and date when the hearing is to resume shall be announced.
f.
Prior to the conclusion of the hearing, any participant may request an opportunity to present additional evidence or testimony regarding the application. The request shall be granted by continuing the public hearing or leaving the record open for additional written evidence or testimony.
I.
If the hearing is continued, the hearing shall be continued to a date, time, and place certain which is at least seven days from the date of the initial hearing. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence and testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to submit additional written evidence or testimony for the purpose of responding to the new written evidence.
II.
If the record is held open for additional written evidence or testimony, the record shall be left open for at least seven days. Any participant may file a written request with the city for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearing shall be reopened, and any person may raise new issues which relate to the evidence, testimony or criteria which apply to the matter.
III.
Unless waived by the applicant, the applicant shall have at least seven days after the record is closed to all parties to submit final written arguments in support of the application. This final submittal shall be considered part of the record but shall not include any new evidence. For the purposes of this section, "evidence" means facts, documents, data, or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision. For the purposes of this section "argument" means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by the proponents to a decision; "argument" does not include facts.
g.
When the hearing has been closed, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff, if opportunity for rebuttal is provided. No testimony shall be accepted after the close of the public hearing unless the hearing provides an opportunity for review and rebuttal of that testimony.
h.
At the conclusion of the public hearing, a participant in the public hearing may request that the record remain open for at least seven days for the purpose of submitting additional evidence. Such a request may only be made at the first de novo hearing held in conjunction with a permit application or zoning ordinance text or map amendment. Whenever the record is supplemented in this manner any person may raise new issues which relate to the new evidence, testimony or criteria for decision making which apply to the matter at issue. This extension of time shall not be counted as part of the 120-day limit in Section 17.16.040.
(Ord. 24-05, 6/5/2024)
§ 17.16.090 Decision.
A.
After review of all evidence that is submitted to the record for a Type I through Type IV action, the approval authority may:
B.
The order shall incorporate finding of facts and conclusions that include:
1.
A statement of the applicable criteria and standards against which the proposal was tested;
2.
A statement of the facts which the hearing body relied upon in establishing compliance or noncompliance with each applicable criteria or standards and briefly state how those facts support the decision; and
3.
In the case of a denial, it shall be sufficient to address only those criteria upon which the applicant failed to carry the burden of proof or, when appropriate, the facts in the record that support denial.
C.
The written order is the final decision on the matter and the date of the order is the date that it is signed. The order becomes effective on the expiration of the appeal period unless an appeal has been filed.
D.
Record of the Proceedings Shall Be Provided. The secretary to the hearing body shall be present at each hearing and shall cause the proceedings to be recorded stenographically or electronically.
1.
Testimony shall be transcribed if required for judicial review or if ordered by the hearing body.
2.
The hearing body shall, where practicable, retain as part of the hearing records each item of physical or documentary evidence presented and shall have the items marked to show the identity of the person offering the same and whether presented on behalf of a proponent or opponent. Exhibits received into evidence shall be retained in the hearing file until after the applicable appeal period has expired, at which time the exhibits may be released to the person identified thereon, or otherwise disposed of.
3.
The findings shall be included in the record.
4.
A person shall have access to the record of proceedings at reasonable times, places, and circumstances. A person shall be entitled to make copies of the record at the person's own expense.
E.
Notice of a Type I decision shall be provided to the applicant.
F.
Notice of a Type II decision shall be provided to the applicant and to all property owners of record within 100 feet of the subject property. The notice of decision shall include:
1.
A brief description of the decision reached;
2.
A statement that the decision may be appealed by filing an appeal within 14 days of the date that the final order was signed;
3.
A description of the requirements for an appeal, including the type of appeal that may be requested; and
4.
A statement that the complete case, including the final order is available for review at the city.
G.
Notice of a decision by a hearing body shall be provided to all parties to the hearing within five working days of the date that the final order was signed. The notice of the decision shall include:
1.
A brief description of the decision reached;
2.
A statement that the decision may be appealed by filing an appeal within 14 days of the date that the final order was signed;
3.
A description of the requirements for an appeal, including the type of appeal that may be requested;
4.
A statement that an appeal may only be filed concerning criteria that were addressed at the initial public hearing; and
5.
A statement that the complete case, including the final order is available for review at the city.
H.
Date of Final Decision Shall Be Established.
1.
Decisions issued for Type I, Type II, and Type III development applications shall be deemed final and effective upon expiration of the appeal period if no petition for review is filed within that time. Once final and effective, the decision cannot be appealed.
2.
Decisions of the council on an application shall be deemed final as follows:
a.
If no petition for reconsideration is timely filed, the decision shall be deemed final on the date notice of the decision was provided to the parties.
b.
If a petition for reconsideration is filed and denied, the decision shall be deemed final on the date notice of the denial of reconsideration is provided to the parties.
c.
If a petition is filed and reconsideration granted, the decision shall be deemed final on the date notice of the decision on the development, as reconsidered, is provided.
I.
Limitations on Reapplications. No application of a property owner or local resident for an amendment to the text of the ordinance codified in this title or to the zone boundary shall be considered by the planning commission within the one-year period immediately following a previous denial of such request. The planning commission may permit a new application if, in the opinion of the planning commission, substantial new evidence or a change of circumstances warrant reconsideration.
(Ord. 24-05, 6/5/2024)
§ 17.18.010 Appeal of decision.
A decision of the approval authority may be appealed only if requested within 14 days after written notice of the decision is provided to the parties.
A.
A party files a complete petition for review with the manager;
B.
The manager files a complete petition for review; or
C.
The city council directs that an appeal be initiated. The grounds for directing an appeal shall be set forth by the council.
(Ord. 24-05, 6/5/2024)
§ 17.18.020 Appeal authority.
§ 17.18.030 Requirements of a request for appeal.
An appeal of a development permit or design review board or planning commission decision shall contain the following:
A.
An identification of the decision sought to be reviewed, including the date of the decision;
B.
A statement of the interest of the person seeking the review. For a review of a decision by the design review board or planning commission, a statement that he/she was a party to the initial proceedings;
C.
The specific grounds relied upon for review. For a review of a decision by the design review board or planning commission, a statement that the criteria against which review is being requested was addressed at the design review board or planning commission hearing; and
(Ord. 24-05, 6/5/2024)
§ 17.18.040 Scope of review.
A.
An appeal of a permit or development permit shall be heard as a de novo hearing.
B.
In an appeal of a design review board or planning commission decision, the reviewing body may determine, as a nonpublic hearing item, that the scope of review, on appeal will be one of the following:
1.
Restricted to the record made on the decision being appealed;
2.
Limited to the admission of additional evidence on such issues as the reviewing body determines necessary for a proper resolution of the matter;
3.
Remand the matter to the hearing body for additional consideration; or
4.
A de novo hearing on the merits.
(Ord. 24-05, 6/5/2024)
§ 17.18.050 Review on the record.
A.
Unless otherwise provided for by the reviewing body, review of the decision on appeal shall be confined to the record of the proceeding as specified in this section. The record shall include the following:
1.
A factual report prepared by the city manager;
2.
All exhibits, materials, pleadings, memoranda, stipulations and motions submitted by any party and received or considered in reaching the decision under review;
3.
The final order and findings of fact adopted in support of the decision being appealed;
4.
The request for an appeal filed by the appellant; and
5.
The minutes of the public hearing. The reviewing body may request that a transcript of the hearing be prepared.
B.
All parties to the initial hearing shall receive a notice of the proposed review of the record. The notice shall indicate the date, time and place of the review and the issue(s) that are the subject of the review.
C.
The hearing body shall make its decision based upon the record after first granting the right of argument, but not the introduction of additional evidence, to parties to the hearing.
D.
In considering the appeal, the hearing body need only consider those matters specifically raised by the appellant. The hearing body may consider other matters if it so desires.
E.
The appellant shall bear the burden of proof.
(Ord. 24-05, 6/5/2024)
§ 17.18.060 Review consisting of additional evidence or de novo review.
A.
The hearing body may hear the entire matter de novo; or it may admit additional testimony and other evidence without holding a de novo hearing. The hearing body shall grant a request for a new hearing only where it finds that:
1.
The additional testimony or other evidence could not reasonably have been presented at the prior hearing;
2.
A hearing is necessary to fully and properly evaluate a significant issue relevant to the proposed development action; or
3.
The request is not necessitated by improper or unreasonable conduct of the requesting party or by a failure to present evidence that was available at the time of the previous review.
B.
Hearings on appeal, either de novo or limited to additional evidence on specific issue(s), shall be conducted in accordance with the requirements of Sections 17.16.070 and 17.16.080.
C.
All testimony, evidence, and other material from the record of the previous consideration shall be included in the record of the review.
(Ord. 24-05, 6/5/2024)
§ 17.18.070 Review body decisions.
A.
Upon review, the planning commission or city council may affirm, reverse, or modify in whole or part, a determination or requirement of the decision that is under review. When the planning commission modifies or renders a decision that reverses an administrative decision, the planning commission shall set forth its findings and state its reasons for taking the action in conformance with the requirements of Section 17.16.090. When the city council modifies or renders a decision that reverses a decision of the design review board or the planning commission, the city council shall set forth its findings and state its reasons for taking the action in conformance with the requirements of Section 17.16.090. When the city council elects to remand the matter back to the design review board or the planning commission for further consideration as it deems necessary, it shall include a statement explaining the error found to have materially affected the outcome of the original decision and the action necessary to rectify such.
B.
Notice of the city council decision shall be provided to all parties to the hearing within five working days of the date that the final order was signed. The notice of decision shall include:
1.
A brief description of the decision reached;
2.
A statement that the decision may be appealed to the land use board of appeals by filing a notice of intent to appeal a land use decision within 21 days after the date of the decision sought to be reviewed becomes final; and
3.
A statement that the complete case, including the final order is available for review at the city.
(Ord. 24-05, 6/5/2024)
§ 17.20.010 Enforcement authority.
The city manager shall have the power and principal responsibility for enforcing provisions of this title. The city shall not issue any permit or license for any use, activity or structure which violates provisions of this title. Any permit or license issued in conflict with the provisions of this title, intentionally or otherwise, shall be void.
(Ord. 24-05, 6/5/2024)
§ 17.20.020 Revocation of development permit.
A development permit approval may be revoked by the manager in accordance with Section 17.12.070 upon finding that the applicant provided false information, that activities related to the approved development permit are inconsistent with the standards of this title, or that activities related to approved development permit are inconsistent with conditions of approval. No aspect of this section shall prevent enforcement of violations as otherwise provided for by this title or the Cannon Beach Municipal Code.
(Ord. 24-05, 6/5/2024)
§ 17.20.030 Violation - Penalty.
A person convicted of violating a provision of this title is punishable by a fine of not less than $100.00 nor more than $500.00. Each day in which a violation of this title occurs shall be considered a separate violation.
(Ord. 24-05, 6/5/2024)
§ 17.20.040 Alternative remedy.
In case a building or other structure is, or is proposed to be, located, constructed, maintained, repaired, altered, or used in violation of this title, the building or land in violation shall constitute a nuisance. The city may, as an alternative to other remedies that are legally available for enforcing this title, institute injunction, mandamus, abatement, or other appropriate proceedings to prevent, enjoin temporarily or permanently abate, or remove the unlawful location, construction, maintenance, repair, alteration, or use.
(Ord. 24-05, 6/5/2024)