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Dunes City City Zoning Code

TYPES OF

APPLICATIONS AND REVIEW PROCEDURES

§ 155.280 PURPOSE.

   The purpose of this subchapter is to establish standard decision-making procedures that enable the city, the applicant, and the public to reasonably review applications and participate in the local decision-making process in a timely and effective way.
(Ord. 259, passed - -)

§ 155.281 DESCRIPTION OF PERMIT/DECISION MAKING PROCEDURES.

   All land use and development applications, except permits required in Chapters 151, 153, and 154 are decided by using the procedures contained in this subchapter. General provisions for all permits are contained in § 155.282. Specific procedures for certain types of permits are contained §§ 155.283 through 155.286. The procedure “type” assigned to each permit governs the decision-making process for that permit.
   (A)   Procedure types. There are four types of permit/decision-making procedures: Type I, II, III, and IV. These procedures are described in divisions (A)(1) through (A)(4) below. The table in division (B) below list most of the city’s land use and development applications and their required permit procedures.
      (1)   Type I procedure (ministerial).
         (a)   Type I decisions are made by the Planning Official, or his or her designee, without public notice and without a public hearing.
         (b)   The Type I decisions apply clear and objective approval criteria to an application. Instead of Type I procedures, the Planning Official may refer any application for a Type I decision to the Planning Commission for review using the Type II process.
      (2)   Type II procedure (quasi-judicial). Type II decisions are made by the Planning Commission after public notice and an opportunity to submit written testimony without a public hearing, An appeal of a Type II decision is heard by the City Council with a public hearing. Type II decisions generally apply discretionary approval criteria to an application for development.
      (3)   Type III procedure (quasi-judicial). Type III decisions are considered initially for a recommendation by the Planning Commission with a final decision made by the City Council. Both bodies provide public notice and a hearing. Type III decisions generally apply discretionary approval criteria to an application for development.
      (4)   Type IV procedure (legislative).
         (a)   Type IV decisions are considered initially for a recommendation by the Planning Commission with final decisions made by the City Council.
         (b)   Both bodies provide public notice and a hearing.
         (c)   Type IV decisions generally involve the creation, revision, or large-scale implementation of public policy (for example, adoption of land use regulations, zone changes, and Comprehensive Plan amendments that apply to a large number of properties or entire zones).
   (B)   Development/use permit procedures table.
Summary of Development/Use Permit by Type of Review Procedure*
Summary of Development/Use Permit by Type of Review Procedure*
Access permit
Type II
Code amendments
Type III/IV
Conditional use permit
Type III
§§ 155.325 through 155.330
Conditional use permit: review/renewal
Type I/II/III
Determination of zone boundaries
Type II
Home occupation permit
Type I
Land use zone map amendments
Type III/IV
§§ 155.385 through 155.389
Partition: final plat
Type II
Partition: tentative plan
Type II
PUD: final plat
Type II
PUD: tentative plan
Type III
Sign permit
Type I
§§ 155.079 and 155.102
Subdivision: final plat
Type II
Subdivision: tentative plan
Type II
Temporary use permits
Type I/II
Recreational vehicle (RV) parks: final plan
Type II
Recreational vehicle (RV) parks: tentative plan
Type III
Recreational and vacation of plats
Type II
Residential care facility: plan review
Type I
Variances
Type III
§§ 155.465 through 155.470
Notes to Table:
*   The sections referenced in this table describe the type of land uses and development activity that require permits under this chapter. The applicant may be required to obtain building permits and other approvals or permits not regulated by this chapter. The city’s failure to notify the applicant of any other requirements of other city code provisions or other agencies shall not invalidate a permit or decision made by the city under this chapter.
 
(Ord. 259, passed - -)

§ 155.282 GENERAL PROVISIONS.

   (A)   One hundred twenty day rule. The city shall take final action on Type II and Type III applications within 120 days from the date the application is deemed complete unless additional time is allowed consistent with state law.
   (B)   Time computation. In computing any period of time prescribed or allowed by this chapter, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or legal holiday, including Sunday, in which event, the period runs until the end of the next day which is not a Saturday or legal holiday.
   (C)   Pre-application conferences.
      (1)   Participants. When a pre-application conference is required or otherwise applied for, the applicant shall meet with the City Planning Official, or his or her designee(s), and other parties as appropriate.
      (2)   Information provided by the applicant. The applicant is required to submit the following information at least ten days prior to the date of such meeting:
         (a)   A written statement setting forth:
            1.   The name and address of the applicant;
            2.   A statement of the applicant’s legal interest in the property (owner, contract purchaser, lessee, renter, and the like), a description of that interest, and, in case the applicant is not the owner, that the owner knows of the application;
            3.   The map and tax lot number(s) of the property; and
            4.   A statement explaining the intended request.
         (b)   Any other materials or information the applicant wishes to submit. For example, these materials might consist of a schematic development plan of the proposed development, showing:
            1.   The general location of the proposed development;
            2.   Existing physical and natural features, such as watercourses, rock outcroppings, and marshes;
            3.   The location of existing drainage ways and utilities;
            4.   The location and names of public streets, parks, and utility rights-of-way within or adjacent to the proposed development;
            5.   The general location and dimensions of proposed streets, driveways, sidewalks, pedestrian ways, trails, off-street parking, and loading areas;
            6.   The general location and approximate dimensions of proposed structures;
            7.   Proposed landscaping features;
            8.   Approximate contours;
            9.   Sketches showing the scale, character, and relationship of buildings, streets, and open space;
            10.   The approximate location and type of proposed drainage, water, and sewerage facilities; and
            11.   Site evaluation for solar access potential.
      (3)   Information provided by the city. At such conference, the City Planning Official or designee will:
         (a)   Cite the zoning map designations applicable to the proposal;
         (b)   Cite the ordinance provisions, including substantive and procedural requirements that are applicable to the proposal, based on the information provided by the applicant;
         (c)   Provide available technical data and assistance that will aid the applicant;
         (d)   Identify other governmental policies and regulations that relate to the application; and
         (e)   Reasonably identify other opportunities or constraints concerning the application.
      (4)   Disclaimer. Failure of the City Planning Official, or his or her designee, to provide any of the information required by division (C)(3) above shall not constitute a waiver of any of the standards, criteria, or requirements for the application.
      (5)   Changes in the law. Due to possible changes in federal, state, regional, and local law, the applicant is responsible for ensuring that the application complies with all applicable laws on the day the application is deemed complete.
   (D)   Applications.
      (1)   Initiation of applications.
         (a)   Applications for approval under this chapter may be initiated by:
            1.   The City Council;
            2.   The Planning Commission;
            3.   The Planning Official; and
            4.   Except for Type IV application categories, a record owner of property (person(s) whose name is on the most recently recorded deed) or contract purchaser with written permission from the record owner. Such persons are encouraged to appear before the Planning Commission or the City Council to request initiation of Type IV applications.
         (b)   Any person authorized to submit an application for approval may designate a representative, authorized in writing, to make the application on his or her behalf.
      (2)   Check for acceptance and completeness. In reviewing an application for completeness, the following procedure shall be used:
         (a)   Essential items. When the city receives an application from a record owner of property or contract purchaser (as described in division (D)(1)(a) above), the Planning Official shall immediately determine whether the following essential items are present. If the following items are not present, the application shall not be accepted and shall be immediately returned to the applicant:
            1.   The required form;
            2.   The required fee; and/or
            3.   The signature of a record owner of property or contract purchaser (as described in division (D)(1)(a) above) on the required form, including written authorization designating a representative to make the application on the applicant’s behalf.
         (b)   Completeness.
            1.   After the application is accepted, the Planning Official shall review the application for completeness in accordance with the application submittal requirements of this chapter.
            2.   If the Planning Official determines that the application contains sufficient information for review, the city shall advise the applicant in writing that the application is deemed complete and begin the application review process.
            3.   If the application is incomplete, the Planning Official shall notify the applicant in writing of exactly what information is missing within 30 days of receipt of the application. In this case, the city will begin review of the application:
               a.   Upon receipt of all of the missing information requested by the city;
               b.   Upon receipt of some of the missing information and a written statement from the applicant indicating that none of the other missing information will be provided, and requesting that the application be processed without it, forcing the application to be deemed complete; or
               c.   Upon receipt of a written statement from the applicant indicating that none of the missing information will be provided and requesting that the application be processed without it, forcing the application to be deemed complete.
            4.   On the one hundred eighty-first day after being accepted by the city, the application will be void if the applicant has been notified of missing information and has no complied with divisions (D)(2)(b)3.a. through (D)(2)(b)3.c. above.
            5.   Approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first accepted.
   (E)   Planning Official’s duties. The Planning Official shall maintain and preserve the file for each application for the time period required by law. The file shall include, as applicable, a list of persons given notice and a copy of the notice given; the affidavits of notice; the application and all supporting information; the staff report; the final decision, including the findings, conclusions, and conditions, if any; all correspondence; minutes of any meeting at which the application was considered; and any other exhibit, information, or documentation which was considered by the decision-maker(s) on the application.
   (F)   Corrected decision. Notice of a corrected decision shall be given using the same mailing and distribution list as for the original decision notice.
   (G)   Re-submittal of application following denial. An application which has been denied and is no longer subject to appeal may not be re-submitted as the same or a substantially similar proposal for the same land for a period of at least 12 months from the date of the final city action is made denying the application.
   (H)   Americans with Disabilities Act. All public meeting notices shall comply with the Americans with Disabilities Act.
(Ord. 259, passed - -)

§ 155.283 TYPE I PROCEDURE (MINISTERIAL).

   (A)   Application requirements.
      (1)   Application forms. Type I applications shall be made on forms provided by the Planning Official.
      (2)   Application requirements. Type I applications shall:
         (a)   Include the information requested on the application form, § 155.282(D), and any provisions of this chapter that pertain specifically to the type of application submitted;
         (b)   Address the criteria in sufficient detail for review and action; and
         (c)   Be accompanied by the required fee.
   (B)   Ministerial decision requirements. The Planning Official will issue a decision addressing all of the approval criteria. Based on the criteria and the facts contained with the record, the Planning Official shall approve, approve with conditions, or deny the requested permit or action. In the alternative, the Planning Official may refer the application to the Planning Commission for its review and action using Type II procedures. A written record of the decision shall be provided to the applicant and kept on file at the City Hall.
   (C)   Final decision. The Planning Official’s decision shall become final 14 calendar days after the date it is mailed or otherwise provided to the applicant in writing, whichever occurs first.
(Ord. 259, passed - -)

§ 155.284 TYPE II PROCEDURE (QUASI-JUDICIAL).

   (A)   Pre-application conference. A pre-application conference shall be required for all Type II applications.
   (B)   Application requirements.
      (1)   Application forms. Type II application shall be made on forms provided by the Planning Official.
      (2)   Submittal information. The application shall:
         (a)   Include the information requested on the application form, § 155.282(D), and any provisions of this chapter that pertain specifically to the type of application submitted;
         (b)   Be filed with a narrative statement that explains how the application satisfies each of the relevant criteria in sufficient detail for review and action;
         (c)   Be accompanied by the required fee; and
         (d)   Include an impact statement for achieving compliance with all of the city codes relating to transportation systems, wetlands, riparian areas and shorelands. (See §§ 155.145 through 155.154, 155.165 through 155.171, 155.117, and 155.231.)
   (C)   Notice of application.
      (1)   Before a Type II decision is made, the city shall mail notice to:
         (a)   The applicant;
         (b)   All owners of record of real property within 300 feet of the subject site; and
         (c)   Any government agency that has entered into an intergovernmental agreement with the city that includes provisions for such notice, or that is otherwise entitled to such notice.
      (2)   The notice of a pending Type II decision shall:
         (a)   Provide a 14-day period for submitting written comments before a decision is made on the application;
         (b)   List the relevant approval criteria by commonly used citation;
         (c)   State the place, date, and time the comments are due;
         (d)   Include the name and telephone number of a city contact person regarding the decision;
         (e)   Identify the specific permits or approvals requested;
         (f)   Describe the street address or other geographic description of the property proposed for development;
         (g)   State that issues which may provide the basis for an appeal shall be raised in writing prior to the expiration of the comment period and that issues must be raised with sufficient specificity to enable the Planning Commission to respond;
         (h)   Briefly summarize the decision-making process; and
         (i)   State that copies of all evidence relied upon by the applicant are available for review, and that copies can be obtained at cost.
   (D)   Americans with Disabilities Act. All public meeting notices shall comply with the Americans with Disabilities Act.
   (E)   Planning Commission decision. The Planning Commission shall convene to consider the application and written testimony received during the 14-day period described in the mailed notice. The Planning Commission shall deliberate and issue a written decision addressing all of the relevant approval criteria. Based upon the criteria, and the facts contained within the record, the Planning Commission shall approve, approve with conditions, or deny the requested permit or action.
   (F)   Notice of Planning Commission decision.
      (1)   Within five business days after the Planning Commission decision is signed, a notice of decision shall be sent by mail to:
         (a)   All owners of record of real property within 300 feet of the subject property;
         (b)   The applicant; and
         (c)   Any person who submitted comments for the Planning Commission’s consideration.
      (2)   The Type II notice of decision shall contain:
         (a)   A description of the applicant’s proposal and the use or uses which could be authorized;
         (b)   The street address or other geographic description of the property proposed for development:
         (c)   A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant, the applicable criteria, and the city’s decision are available for inspection at no cost, and copies will be provided at cost;
         (d)   The date the decision shall become final, unless appealed;
         (e)   A statement that all persons entitled to notice or who are otherwise adversely affected or aggrieved by the decision may appeal the decision as provided in division (H) below, and may not appeal directly to the State Land Use Board of Appeals; and
         (f)   A statement briefly explaining how an appeal can be filed, the deadline for filing an appeal, the name of a city representative to contact, and telephone number and where further information can be obtained concerning the appeal process.
   (G)   Final decision and effective date. The Planning Commission’s decision is final for purposes of appeal when it is mailed by the city. It is effective on the day after the local appeal period expires with no valid appeal filed.
   (H)   Appeal of a Type II Planning Commission decision. The Planning Commission’s decision may be appealed to the City Council as follows:
      (1)   Who may appeal. The following people have legal standing to appeal the Planning Commission’s decision:
         (a)   The applicant;
         (b)   Any person who was mailed written notice of the Planning Commission’s decision;
         (c)   Any person who is adversely affected or aggrieved by the Planning Commission’s decision; or
         (d)   Any other person who participated in the proceeding by submitting written comments.
      (2)   Notice of appeal.
         (a)   Time for filing. A notice of appeal shall be filed with the city by 5:00 p.m. on the fourteenth day after the notice of decision was mailed.
         (b)   Content of notice of appeal. The notice of appeal shall contain:
            1.   The appeal form provided by the city;
            2.   An identification of the Planning Commission decision being appealed, including the date of the decision;
            3.   A statement demonstrating the person filing the notice of appeal has standing to appeal; and
            4.   The filing fee.
      (3)   Notice of City Council hearing.
         (a)   Notice. The city shall give notice of the City Council hearing in the following manner:
            1.   At least 20 days before the hearing date, notice shall be mailed to:
               a.   The applicant and all owners of record of the property which is the subject of the application;
               b.   All property owners of record within 300 feet of the site;
               c.   The appellant and persons who provided testimony during the Planning Commission’s proceedings; and
               d.   For a zoning change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with O.R.S. 227.175(8).
            2.   At least 14 days before the first hearing, notice of the City Council hearing shall be printed in a newspaper of general circulation in the city; and
            3.   At least 14 days before the hearing, the applicant shall post notice of the hearing on the property.
         (b)   Content of notice.
            1.   Notice to be mailed per division (H)(3)(a) above shall contain the following information:
               a.   The nature of the application and the proposed land use or uses which could be authorized for the property;
               b.   The criteria from the development code that apply to the application;
               c.   The street address or other easily understood geographical reference to the subject property;
               d.   The date, time, and location of the public hearing;
               e.   A statement that the failure to raise an issue in person, or by letter, or failure to provide statements or evidence sufficient to afford the decision-maker an opportunity to respond to the issue, means that an appeal based on that issue cannot be filed with the State Land Use Board of Appeals;
               f.   The name of a city representative to contact and the telephone number where additional information on the application may be obtained;
               g.   A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards can be reviewed at City Hall at no cost, and that copies will be provided at reasonable cost;
               h.   A statement that a copy of the city’s staff report will be available for review at no cost at least seven days before the hearing, and that a copy will be provided on request at reasonable cost; and
               i.   A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings.
            2.   All public meeting notices shall comply with the Americans with Disabilities Act.
      (4)   City Council standard of review and conduct of the public hearing. The City Council shall determine whether the application is consistent with the applicable criteria or can be made consistent through the imposition of reasonable conditions. The City Council shall accept new evidence with respect to all applicable criteria. The City Council shall conduct its public hearing as the first evidentiary hearing, consistent with the provisions at § 155.285(D).
      (5)   City Council decision. The City Council shall issue a final written decision containing findings and conclusions, which either approves, approves with specific conditions, or denies the application.
      (6)   Notice of City Council decision.
         (a)   Written notice of the City Council decision shall be mailed to the applicant and to all participants of record within five business days after the City Council’s decision. Failure of any person to receive mailed notice shall not invalidate the decision.
         (b)   The notice shall include an explanation of appeal procedures.
      (7)   Final decision and effective date. The decision of the City Council on any Type II application is effective and final for purposes of appeal on the date the notice of decision is mailed by the city.
(Ord. 259, passed - -)

§ 155.285 TYPE III PROCEDURE (QUASI-JUDICIAL).

   (A)   Pre-application conference. A pre-application conference shall be required for all Type III applications.
   (B)   Application requirements.
      (1)   Type III applications shall be made on forms provided by the Planning Official.
      (2)   Type III applications shall:
         (a)   Include the information requested on the application form, § 155.282(D), and any provisions of this chapter that pertain specifically to the type of application submitted;
         (b)   Be file with a narrative statement that explains how the application satisfies each and all of the relevant criteria in sufficient detail for review and action;
         (c)   Be accompanied by the required fee; and
         (d)   Include an impact statement for achieving compliance with all city code provisions relation to transportation systems, wetlands, riparian areas, and shorelands. (See §§ 155.145 through 155.154, 155.165 through 155.171, 155.117, and 155.231.)
   (C)   Notice of hearing.
      (1)   A minimum of two hearings, one before the Planning Commission and one before the City Council, is required for all Type III applications submitted to the city.
      (2)   The Planning Official shall give notice of a Type III application hearing in the following manner: At least 20 days before the hearing date, notice shall be mailed to:
         (a)   The applicant and all owners or contract purchasers of record of the property which is the subject of the application;
         (b)   All property owners of record within 300 feet of the property which is the subject of the application;
         (c)   Any governmental agency which has entered into an intergovernmental agreement with the city that includes provision for such notice, or who is otherwise entitled to such notice;
         (d)   Any person who submits a written request to receive notice; and
         (e)   For a zoning change affecting a mobile home or manufactured home park, all mailing addresses within the park.
      (3)   Notice of a Type III hearing to be mailed per division (C)(2) above shall contain the following information:
         (a)   The nature of the application and the proposed land use or uses, which could be authorized for the property;
         (b)   The applicable criteria and standards from the development codes(s) that apply to the application;
         (c)   The street address or other easily understood geographical reference to the subject property;
         (d)   The date, time, and location of the public hearing;
         (e)   A statement that the failure to raise an issue in person, or by letter at the hearing, or failure to provide statements or evidence sufficient to afford the decision-maker an opportunity to respond to the issue, means that an appeal based on that issue cannot be filed with the State Land Use Board of Appeals;
         (f)   The name of a city representative to contact and the telephone number where additional information on the application may be obtained;
         (g)   A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards can be reviewed at the City Hall at no cost and that copies shall be provided at a reasonable cost;
         (h)   A statement that a copy of the city’s staff report will be available for review at City Hall at no cost at least seven days before the hearing, and that a copy will be provided on request at reasonable cost; and
         (i)   A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings.
      (4)   All public meeting notices shall comply with the Americans with Disabilities Act.
      (5)   The failure of any person to receive notice shall not invalidate the action.
   (D)   Conduct of the quasi-judicial public hearing.
      (1)   Unless otherwise provided in the rules of procedure adopted by the City Council:
         (a)   The presiding officer of the Planning Commission and of the City Council shall have the authority to:
            1.   Regulate the course, sequence, and decorum of the hearing;
            2.   Direct procedural requirements or similar matters; and
            3.   Impose reasonable time limits for oral presentations.
         (b)   No person shall address the Commission or the Council without:
            1.   Receiving recognition from the presiding officer; and
            2.   Stating their full name and city of residence and providing a mailing address.
         (c)   Disruptive conduct such as applause, cheering, or display of signs shall be cause for expulsion of a person or persons from the hearing, termination or continuation of the hearing, or other appropriate action determined by the presiding officer.
      (2)   At the commencement of the hearing, the presiding officer shall state:
         (a)   The applicable approval criteria and standards that apply to the application;
         (b)   Testimony and evidence must be directed toward the approval criteria described in the staff report, or other criteria in the Comprehensive Plan or land use regulations, which the person testifying believes to apply to the decision;
         (c)   Failure to raise an issue with sufficient detail to give the City Council or Planning Commission and the parties involved an opportunity to respond to the issue precludes appeals on that issue; and
         (d)   If the hearing is the first evidentiary hearing, that before the conclusion of the public hearing any participant may ask the City Council or Planning Commission for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing. The City Council or Planning Commission shall grant the request by scheduling a date to finish the hearing (a “continuance”) per division (D)(3) below, or by leaving the record open for additional written evidence or testimony per division (D)(4) below.
      (3)   If the City Council or Planning Commission grants a continuance, the completion of the hearing shall be continued to a date, time, and place at least seven days after the date of the first evidentiary hearing. An opportunity shall be provided at the second hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the second hearing, any person may request, before the conclusion of the second hearing, that the record be left open for at least seven days so that they can submit additional written evidence or testimony in response to the new written evidence.
      (4)   If the City Council or Planning Commission leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days after the hearing. Any participant may ask the city in writing for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the City Council or Planning Commission shall reopen the record.
         (a)   When the City Council or Planning Commission reopens the record to admit new evidence or testimony, any person may raise new issues that relate to that new evidence or testimony.
         (b)   An extension of the hearing or record granted pursuant to division (E) below is subject to the limitations of O.R.S. 227.178 (120-day rule), unless the continuance or extension is requested or agreed to by the applicant.
         (c)   1.   If requested by the applicant, the city shall allow the applicant at least seven days after the record is closed to all other persons to submit final written arguments in support of the application, unless the applicant expressly waives this right.
            2.   The applicant’s final submittal shall be part of the record, but shall not include any new evidence.
      (5)   (a)   The record shall contain all testimony and evidence that is submitted to the city, the Planning Commission, and the City Council and not rejected.
         (b)   The City Council or Planning Commission may take official notice of judicially cognizable facts under the applicable law. If the review authority takes official notice, it must announce its intention and allow persons participating in the hearing to present evidence concerning the noticed facts.
      (6)   Participants in a quasi-judicial hearing are entitled to an impartial review authority as free from potential or actual conflicts of interest and pre-hearing ex parte contacts (see division (D)(7) below) as reasonably possible. However, the public has a countervailing right of free access to public officials, therefore:
         (a)   A member of the Planning Commission or City Council shall not participate in any proceeding which they, or any of the following, has a direct or substantial financial interest: their spouse, brother, sister, child, parent, father-in-law, mother-in-law, partner, or any business in which they are then serving or have served within the previous two years, or any business with which they are negotiating for or have an arrangement or understanding concerning prospective partnership or employment. Any actual or potential conflict of interest shall be disclosed at the beginning of a public hearing where an action is being taken;
         (b)   When met with a potential conflict of interest, the Planning Commission or City Council member shall announce publicly the nature of the potential conflict;
         (c)   When met with an actual conflict of interest, announce publicly the nature of the actual conflict and:
            1.   Except as provided in division (D)(6)(c)2. below, refrain from participating as a Planning Commissioner or City Council member in any discussion or debate on the issue out of which the actual conflict arises or from voting on the issue; and
            2.   If any Planning Commissioner’s or City Council member’s vote is necessary to meet a requirement of a minimum number of votes to take official action, be eligible to vote, but not to participate as a Planning Commissioner or City Council member in any discussion or debate on the issue out of which the actual conflict arises.
         (d)   1.   At the beginning of the public hearing, Planning Commission and City Council members shall disclose the substance of any pre-hearing ex parte contacts (defined in division (D)(7) below) concerning the issue under consideration; and
            2.   He or she shall state whether the contact has impaired their impartiality or their ability to vote on the matter, and shall participate or abstain accordingly.
         (e)   At the beginning of the public hearing, Planning Commission and City Council members shall disclose the substance of any pre-hearing ex parte contacts (defined in division (D)(7) below) concerning the application or appeal-issue under consideration. He or she shall state whether the contact has impaired their impartiality or their ability to vote on the matter and shall participate or abstain accordingly; and
         (f)   Disqualification of a member of the Planning Commission or City Council due to contacts or conflict may be ordered by a motion by the members present and voting. The person who is the subject of the motion may not vote on the motion to disqualify.
      (7)   Ex parte communications.
         (a)   Members of the City Council and Planning Commission shall not:
            1.   Communicate, directly or indirectly, with any applicant, appellant, other party to the proceedings, or representative of a party, about any issue involved in a hearing, except upon giving notice, per division (D)(6) above; or
            2.   Take official notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case, unless all participants are given the opportunity to respond to the noticed materials.
         (b)   No decision or action of the City Council or Planning Commission shall be invalid due to ex parte contacts or bias resulting from ex parte contacts, if the person receiving contact:
            1.   Places in the record the substance of any written or oral ex parte communications concerning the decision or action; and
            2.   Makes a public announcement of the content of the communication and of all participants’ right to dispute the substance of the communication made. This announcement shall be made at the first hearing following the communication during which action shall be considered or taken on the subject of the communication.
         (c)   A communication between city staff and the City Council or Planning Commission is not considered an ex parte contact.
      (8)   Presenting and receiving evidence.
         (a)   The City Council and Planning Commission may set reasonable time limits for oral presentations and may limit or exclude cumulative, repetitious, irrelevant, or personally derogatory testimony or evidence.
         (b)   No oral testimony shall be accepted after the close of the public hearing. Written testimony may be received after the close of the public hearing only as provided in divisions (D)(3) and (D)(4) above.
         (c)   Members of the City Council and Planning Commission may visit the property and the surrounding area, and may use information obtained during the site visit to support their decision, if the information relied upon is disclosed at the hearing and an opportunity is provided to dispute the evidence. In the alternative, a member of the City Council or Planning Commission may visit the property to familiarize himself or herself with the site and surrounding area, but not to independently gather evidence. In the second situation, at the beginning of the hearing, he or she shall disclose the circumstances of the site visit and shall allow all participants to ask about the site visit.
   (E)   The Planning Commission recommendation process.
      (1)   Approval or denial of a Type III application shall be based on standards and criteria in the Development Code.
      (2)   After the Planning Commission’s record has closed, the Planning Commission shall convene to consider the application and written testimony received. The Planning Commission shall deliberate and issue a written recommendation addressing all of the relevant approval criteria. Based upon the criteria and the facts contained within the record, the Planning Commission shall recommend approval, approval with conditions, or denial of the requested permit or action.
   (F)   The City Council decision process.
      (1)   At least ten days prior to the City Council hearing on the application, the Planning Official shall mail notice of the City Council hearing as described in divisions (C)(2) and (C)(3) above.
      (2)   The City Council shall hold a public hearing as described in division (D) above.
      (3)   After the City Council’s record has been closed, the City Council shall convene to consider the application, the written testimony received, and the Planning Commission’s recommendation. The City Council shall issue a final written order containing the findings and conclusions which approves, approves with specific conditions, or denies the requested permit or action.
      (4)   Written notice of a Type III decision shall be mailed to the applicant and to all participants of record within ten business days after the City Council’s decision. Failure of any person to receive mailed notice shall not invalidate the decision, provided that a good faith attempt was made to mail notice. The notice of decision shall include an explanation of appeal rights and briefly summarize the decision-making process for the decision being made.
      (5)   The decision of the City Council on any Type III application is final for purposes of appeal on the date it is mailed by the city. The decision is effective on the day after the appeal period expires.
(Ord. 259, passed - -)

§ 155.286 TYPE IV PROCEDURE (LEGISLATIVE).

   (A)   Application requirements.
      (1)   Except when initiated by the City Council, Type IV applications shall be made on forms provided by the Planning Official.
      (2)   Except when initiated by the City Council, the application shall contain:
         (a)   The information requested on the application form;
         (b)   A map and/or plan addressing the appropriate criteria and standards in sufficient detail for review and decision (as applicable);
         (c)   The required fee; and
         (d)   Two copies of a letter or narrative statement that explains how the application satisfies each and all of the relevant approval criteria and standards.
   (B)   Notice of hearing.
      (1)   A minimum of two hearings, one before the Planning Commission and one before the City Council, are required for all Type IV applications.
      (2)   The Planning Official shall give notice of public hearings for the request in the following manner:
         (a)   At least 20 days, but not more than 40 days, before the date of the first hearing on an ordinance that proposes to amend the Comprehensive Plan or any element thereof, or to adopt an ordinance that proposes to rezone property, a notice shall be mailed to:
            1.   Each owner whose property would be rezoned in order to implement the ordinance (for example, owners of property subject to a Comprehensive Plan amendment shall be notified if a rezone would be required to implement the proposed Comprehensive Plan amendment);
            2.   Any affected governmental agency;
            3.   Recognized neighborhood groups or associations affected by the ordinance;
            4.   Any person who requests notice in writing; and
            5.   If an application would change the zone of property that includes all or part of a mobile home or manufactured dwelling park, all mailing addresses within the mobile home or manufactured dwelling park.
         (b)   At least 14 days before the scheduled Planning Commission public hearing date, and 14 days before the City Council hearing date, notice shall be published in a newspaper of general circulation in the city.
         (c)   The Planning Official shall:
            1.   For each mailing of notice provided in division (B)(2)(a) above, file an affidavit of mailing in the record; and
            2.   For each published notice provided in division (B)(2)(a) above, file an affidavit of publication in the record.
         (d)   The Department of Land Conservation and Development (DLCD) shall be notified in writing of proposed Comprehensive Plan and Development Code Amendments at least 35 days before the first public hearing at which public testimony or new evidence will be received.
      (3)   The mailed and published notices shall include the following information:
         (a)   The number and title of the file containing the application, and the address and telephone number of the Planning Official’s office where additional information about the application can be obtained;
         (b)   The identification of the tax map and lot and the street address if applicable and available on the proposal;
         (c)   A description of the proposal in enough detail for people to determine the nature of the change proposed;
         (d)   The time(s), place(s), and date(s) of the public hearing(s); a statement that public oral or written testimony is invited; a statement that the hearing will be held under this subchapter and rules of procedure adopted by the Council and available at City Hall (see division (C) below); and written testimony shall be submitted to the city at least 14 days prior to the hearing; and
         (e)   Each mailed notice required by division (B)(2)(a) above shall contain the following statement: “Notice to mortgagee, lien holder, vendor, or seller: The Dunes City Development Code requires that if you receive this notice it shall be promptly forwarded to the purchaser.”
      (4)   All public meeting notices shall comply with the Americans with Disabilities Act.
      (5)   The failure of any person to receive notice shall not invalidate the action, providing:
         (a)   Personal notice is deemed given when the notice is deposited with the United States Postal Service; and
         (b)   Published notice is deemed given on the date it is published.
   (C)   Hearing process and procedure.
      (1)   Unless otherwise provided in the rules of procedure adopted by the City Council:
         (a)   The presiding officer of the Planning Commission and of the City Council shall have the authority to:
            1.   Regulate the course, sequence, and decorum of the hearing;
            2.   Direct procedural requirements or similar matters; and
            3.   Impose reasonable time limits for oral presentations.
         (b)   No person shall address the Planning Commission or the City Council without:
            1.   Receiving recognition from the presiding officer; and
            2.   Stating his or her full name and city of residence, and providing his or her mailing address.
         (c)   Disruptive conduct, such as applause, cheering, or display of signs, shall be cause for expulsion of a person or persons from the hearing, termination or continuation of the hearing, or other appropriate action determined by the presiding officer.
      (2)   Unless otherwise provided in the rules of procedures adopted by the Council, the presiding officer of the Planning Commission and of the City Council shall conduct the hearing as follows:
         (a)   The presiding officer shall begin the hearing with a statement of the nature of the matter before the body, a general summary of the procedures, a summary of the standards for decision-making, and whether the decision which will be made is a recommendation to the City Council or the final decision of the City Council;
         (b)   The Planning Official’s report and other applicable staff reports shall be presented;
         (c)   The public shall be invited to testify;
         (d)   The public hearing may be continued to allow additional testimony or it may be closed; and
         (e)   The body’s deliberation may include questions to the staff, comments from the staff, and inquiries directed to any person present.
   (D)   Continuation of the public hearing. The Planning Commission or the City Council may continue any hearing, and no additional notice of hearing shall be required if the matter is continued to a specified place, date, and time.
   (E)   Decision-making considerations.
      (1)   The recommendation by the Planning Commission and the decision by the City Council shall be based on consideration of the following factors:
         (a)   The State-Wide Planning Goals and Guidelines adopted under O.R.S. Chapter 197 (for Comprehensive Plan amendments only);
         (b)   Comments from any applicable federal or state agencies regarding applicable statutes or regulations;
         (c)   Any applicable intergovernmental agreements; and
         (d)   Any applicable Comprehensive Plan policies and provisions of this code that implement the Comprehensive Plan.
      (2)   Compliance with §§ 155.385 through 155.389 shall be required for Comprehensive Plan amendment and Master Transportation Plan amendment.
   (F)   Approval process and authority.
      (1)   The Planning Commission shall, after notice and a public hearing, vote on and prepare a recommendation to the City Council to approve, approve with modifications, approve with conditions, deny the proposed change, or adopt an alternative.
      (2)   Any member of the Planning Commission who votes in opposition to the Planning Commission’s majority recommendation may file a written statement of opposition with the Planning Official within 14 days of the decision. The Planning Official shall provide a copy to each City Council member and place a copy in the record.
      (3)   If the Planning Commission fails to adopt a recommendation to approve, approve with modifications, approve with conditions, deny the proposed change, or adopt an alternative proposal within 30 days of its first public hearing on the proposed change, the Planning Official shall:
         (a)   Report the failure, together with the proposed change, to the City Council; and
         (b)   Provide notice and put the matter on the City Council’s agenda, a public hearing to be held, and a decision to be made by the City Council. The Planning Commission shall take no further action.
      (4)   The City Council shall:
         (a)   After the City Council’s record has closed, the City Council shall convene to consider the application, the written testimony received, and the Planning Commission’s recommendation;
         (b)   If the City Council takes action on the application, it shall issue a final written decision containing the findings and conclusions to approve, approve with modifications, approve with conditions, deny, or adopt an alternative to an application for legislative change, or remand the application to the Planning Commission for rehearing and reconsideration on all or part of the application;
         (c)   The City Council will consider the recommendations of the Planning Commission, however, it is not bound by the Commission’s recommendation; and
         (d)   Act by ordinance, which shall be signed by the Mayor after the City Council’s adoption of the ordinance.
   (G)   Vote required for a legislative change.
      (1)   A vote by a majority of the qualified voting members of the Planning Commission present is required for a recommendation.
      (2)   A vote by a majority of the qualified members of the City Council present is required to decide any motion made on the proposal.
   (H)   Notice of decision. Notice of a Type IV decision shall be mailed to the applicant, all participants of record, and the Department of Land Conservation and Development within five business days after the City Council decision. The city shall also provide notice to all persons as required by other applicable laws.
   (I)   Final decision and effective date. A Type IV decision, if approved, shall take effect and shall become final as specified in the City Council’s final action, or if not specified, upon mailing of the notice of decision to the applicant.
   (J)   Record of the public hearing.
      (1)   A verbatim record of the proceeding shall be made by electronic means. It is not necessary to transcribe the electronic record. The minutes and other evidence presented, as a part of the hearing, shall be part of the record;
      (2)   All exhibits received and displayed shall be marked to provide identification and shall be part of the record;
      (3)   The official record shall include:
         (a)   All materials considered by the Planning Commission;
         (b)   All materials submitted by the Planning Official to the Planning Commission regarding the application;
         (c)   The verbatim record made by the stenographic, mechanical, or electronic means, the minutes of the hearing, and other documents considered;
         (d)   The final ordinance;
         (e)   All correspondence; and
         (f)   A copy of the notices, which were given as required by this subchapter.
   (K)   City initiated changes. Land use code, Master Transportation Plan, and Comprehensive Plan changes initiated by the city shall follow normal city code change procedures.
(Ord. 259, passed - -)