Hermiston City Zoning Code
ARTICLE XV
ADMINISTRATION AND ENFORCEMENT
§ 157.215 INFILL DEVELOPMENT DESIGNATION.
(A)
Purpose. The purpose of the infill development designation is to encourage construction of new residential development in existing, underdeveloped neighborhoods when designated by the Planning Commission. Infill development encourages efficient use of land and helps to utilize existing public facility infrastructure, avoiding costly extensions of new facilities. A property owner may apply to have existing property designated as infill property and obtain deviation from property development standards when following the existing clear and objective development standards is not feasible or will result in sub-standard development.
(B)
Criteria. When the Planning Commission determines that a property is eligible for designation as an infill property, the city may grant deviations from the city’s development standards, including but not limited to: zoning standards, public works standards, access and circulation standards, and other requirements of the city zoning and public works requirements. In order to be considered for designation as an infill property, a property owner or their authorized agent must demonstrate compliance with four of the following eligibility standards:
(1)
A lot with a single-family or two-family dwelling constructed prior to February 28, 1994;
(2)
A lot in existence prior to the adoption of the zoning standards adopted in Ordinance 1840 on February 28, 1994;
(3)
A lot within the city limits, except as provided in subsection (C)(2) of this section;
(4)
A lot located within the R-1, R-2, R-3, R-4, or RR zone; and
(5)
The property will be used for residential development.
(C)
Property not eligible. The following items shall not be considered criteria used to determine eligibility for consideration as infill property:
(1)
A landlocked parcel with no street access or dedicated access easement;
(2)
A parcel outside the city limits unless annexation is applied for simultaneously;
(3)
A wetland is not a development constraint eligible for infill waiver as a wetland is considered a water of the state and under the jurisdiction of the Department of State Lands; and
(4)
Existing residential property within the C-1, C-2, DCO, and NCO zones is not eligible for residential infill.
(D)
Constraints. When the Planning Commission determines that a property meets the eligibility standards in subsection (B) of this section, a property owner or their authorized agent must demonstrate that the property is constrained and cannot be developed in the standard manner. Constrained property may include but is not limited to such factors as:
(1)
A lot is not adjacent to existing municipal sewer and/or water lines;
(2)
A lot is serviced by existing municipal sewer and/or water line which is sized below minimum standard pipe size;
(3)
A lot receives access from a street which has no paving, curb, gutter, or sidewalk, and is not adjacent to any existing improvements;
(4)
A lot with a depth of at least 300% of the lot width;
(5)
An existing dwelling situated on the property in such a location that it is impossible to create a second parcel while maintaining the required setbacks for the dwelling and minimum lot width and depth for a new parcel;
(6)
A lot of at least 175% of the minimum lot size in the underlying zone but less than 250% of the minimum lot size;
(7)
A lot of at least 175% of the minimum lot width or depth in the underlying zone but less than 250% of the minimum lot width or depth;
(8)
A property is bounded on at least two sides by development which does not meet current lot size, lot width, lot coverage, or setback requirements;
(9)
A property contains a physical constraint, such as an unusual shape, steep slope, canal, utility easement, alley, or similar feature which makes conventional development impossible;
(10)
A property with an existing dwelling has an assessed land value greater than the assessed value of the improvements; and
(11)
A property contains a dwelling which is no longer functional due to neglect, damage, or other age-related issue.
(E)
Application procedure. A property owner or their authorized agent may initiate a request for an infill designation and deviation by filing an application with the city using forms prescribed for the purpose. The application shall be accompanied by a site plan, drawn to scale, showing the dimensions and arrangement of the proposed development. The Planning Commission may require other drawings or information necessary to understand the proposed use and its relationship to surrounding properties. The applicant shall pay a fee as established by the City Council at the time the application is filed.
(F)
Public hearing; recess. Before the Planning Commission may act on a request for an infill designation and deviation, it shall hold a public hearing in accordance with the procedures set forth in § 157.229. At the time of the public hearing, the Planning Commission shall determine if the property meets the eligibility for an infill designation and the appropriate deviations necessary to facilitate development.
The Planning Commission may recess a hearing on a request for an infill designation in order to obtain additional information or to serve further notice on other property owners or persons who it decides may be interested in the request. Recess or continuance of the hearing shall be in accordance with the provisions in ORS 197.763(6) and (7) for a quasi-judicial hearing.
(G)
Approval criteria. Based on the testimony and evidence contained in the record, the Planning Commission shall develop findings of fact to justify either approving or denying an infill designation and deviation as set forth in subsection (H) of this section. The Planning Commission may approve the requests when it is determined the request is in conformance with all the following requirements or can be made to conform through the impositions of conditions:
(1)
The property is constrained by internal or external physical features which preclude development conforming to adopted city standards;
(2)
Public facilities have the capacity to service the development at the proposed density and are either in place or may be extended at the developer’s expense;
(3)
Granting of an infill designation will not have a negative impact on the ability of fire and life services to service the property;
(4)
Approval of infill development will result in a development that is reasonably compatible with the existing neighborhood and adjacent properties; and
(5)
Granting of an infill designation will result in residential development on property that would otherwise remain vacant or developed below the approved density.
(H)
Approval of infill designation. In granting approval of an infill designation, the Planning Commission may grant deviations from the city’s development standards. Standards which qualify for a deviation include:
(1)
Lot width;
(2)
Lot depth;
(3)
Minimum lot size;
(4)
Lot coverage;
(5)
Front, rear, and side setbacks;
(6)
Minimum street frontage;
(7)
Minimum utility sizing standards;
(8)
Building height;
(9)
Off-street parking standards; and
(10)
Street improvement standards.
When approving an infill designation on a property, the Planning Commission shall adopt conditions it deems necessary to ensure that the property develops in a manner that is reasonably compatible with neighboring properties. These conditions may include but are not limited to: |
(1) | Specifying exterior construction materials; |
(2) | Requiring landscape improvements; |
(3) | Requiring fencing improvements; and |
(4) | Requiring certain architectural features to insure neighborhood compatibility. |
(I)
Notification. Within five days after a decision has been rendered, the city shall provide the parties to the hearings with written notice of the city’s action on the request for an infill designation. A decision on an infill designation may be appealed to the City Council following the procedures in § 157.231.
(Ord. 2250, passed 9-25-2017; Am. Ord. 2322, passed 6-14-2021)
§ 157.225 VARIANCES.
(A)
Authority to grant variances.
(1)
The Planning Commission may authorize variances from the requirements of this chapter where it can be shown that, owing to special and unusual circumstances related to a specific piece of property, the literal interpretation of this chapter would cause an undue or unnecessary hardship, except that no variance shall be granted to allow the use of the property for purposes not authorized within the zone in which the proposed use would be located. In granting a variance, the Planning Commission may attach conditions which it finds necessary to protect the best interests of the surrounding property or neighborhood and to otherwise achieve the purpose of this chapter. No variance shall be granted unless it can be shown that all of the following conditions exist:
(a)
Exceptional or extraordinary conditions apply to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of the lot size, topography or other circumstances over which the applicant has no control;
(b)
The variance is necessary for the preservation of a property right of the applicant substantially the same as is possessed by owners of other property in the same zone or vicinity;
(c)
The authorization of the variance shall not be materially detrimental to the purpose of this ordinance, be injurious to the property in the zone or vicinity in which the property is located, or be otherwise detrimental to the objectives of any development pattern or policy; or
(d)
It is impractical to maintain the zoning code requirements and, at the same time, build, erect or use the structure as desired.
(2)
Variance procedure. The procedure to be followed in applying for and acting on a variance shall be the same as that provided in § 157.229 of this chapter.
(3)
Granting or denying minor variances. The city administration may grant a minor variance to the requirements of the chapter where it can be shown that, owing to special and unusual circumstances, strict application of the chapter would cause an undue or unnecessary hardship. In granting a minor variance, conditions may be imposed which are necessary to protect the best interest of the surrounding property or vicinity or otherwise achieve the purpose of this chapter.
(4)
Minor variances. One variance involving the following may be granted by the city administration after a thorough examination and upon presentation of evidence that the variance requested involves one of the issues listed below:
(a)
Deviation from a minimum property development standard by not more than 10%.
(b)
Expansion of a conditional or nonconforming use by not more than 10% of the gross building volume.
(c)
Extension or restoration of a nonconforming structure.
(B)
Procedure.
(1)
Upon receipt of the application form and payment of 25% of the usual application fee for a variance, the city administration shall render a decision within five working days, or the decision may be deferred to the Planning Commission.
(2)
Additional information may be requested to arrive at a decision; and, if so, the decision shall be rendered within five working days following the submission of information.
(C)
Notice.
(1)
Should a minor variance be granted by administrative action, a notice of the variance decision and reasoning shall be mailed to all property owners within 100 feet of the subject property, including any public rights-of-way, soliciting comments or objections. If any written objections to the proposed variance are received within ten days of the mailing, a public hearing shall be required in accordance with § 157.229 of this chapter. If no objections to the variance are received within the ten-day period, the variance shall become effective at the end of that period.
(2)
In addition to notice to abutting property owners, the Planning Commission shall be notified of all minor variances granted by administrative variance.
(Ord. 1840, passed 2-28-1994)
§ 157.226 AMENDMENTS.
(A)
Authorization to initiate amendments. An amendment to the text or the zoning map of this chapter may be initiated by the City Council, by the Planning Commission or by application of a property owner or his authorized agent. The Planning Commission shall, within 40 days after a public hearing in accordance with procedures set forth in § 157.229, recommend to the City Council approval, disapproval or modification of the proposed amendment.
(B)
Types of amendments. An amendment to this chapter may be either:
(1)
Amendment to the text. Legislative revision.
(2)
Amendment to the map. Legislative revision or quasi-judicial change.
(C)
Legislative revisions. Proposed amendments to this chapter shall be deemed legislative revisions if:
(1)
The proposed amendment involves the text of this chapter; and/or
(2)
The proposed amendment involves the map, when such an amendment would have widespread and significant impact beyond the immediate area of the proposed amendment.
(D)
Quasi-judicial proceedings.
(1)
A proposed amendment to this chapter shall be deemed a quasi-judicial change if the proposed amendment involves the zoning map and does not have widespread and significant impact beyond the immediate area of the proposed amendment.
(2)
Quasi-judicial changes may be initiated by property owners or contract purchases or his or her authorized agent.
(3)
In case of a controversy as to whether an amendment be deemed a legislative or quasi-judicial matter, the decision of the Planning Commission shall be final.
(E)
Approval criteria.
(1)
The following criteria must be followed in deciding upon a quasi-judicial proceeding:
(a)
The burden in all land use proceedings is upon the applicant, whether a zone change, conditional use or variance is the subject of the hearing;
(b)
The requested zone change or conditional use must be justified by proof that:
1.
The change is in conformance with the Comprehensive Plan and also the goals and policies of the plan;
2.
The showing of public need for the rezoning and whether that public need is best served by changing the zoning classification on that property under consideration;
3.
The public need is best served by changing the classification of the subject site in question as compared with other available property.
4.
The potential impact upon the area resulting from the change has been considered.
(c)
The courts will require a "graduated burden of proof" depending upon the more intensive land use that will occur as a result of the proposed rezoning.
(d)
Procedural process for a quasi-judicial hearing.
1.
Parties at a public hearing must have an opportunity to be heard, to present and rebut evidence.
2.
There must be a record which will support the findings made by the City Council or Planning Commission.
(F)
Amendment hearings. The Planning Commission shall conduct a public hearing on a proposed amendment at the earliest regular meeting, after the application is submitted, in accordance with the public hearing procedures under § 157.229 of this chapter. Both text and map amendments shall also be submitted to the Department of Land Conservation and Development 45 days prior to the date set for final action except as provided for under ORS 197.610.
(G)
Application and fee. An application for amendment by a property owner or his authorized agent shall be filed with the city. The application shall be accompanied by a fee equal to the average cost of applications as established by the City Council.
(H)
Recess of hearing. The Planning Commission may recess a hearing in order to obtain additional information or to serve further notice upon other property owners or persons it decides may be interested in the proposed amendment. Upon recessing for this purpose, the Commission shall announce the time and date when the hearing will be resumed.
(I)
Records of amendments. The city shall maintain a record of amendments to the text and map of this chapter in a form convenient for the use of the public.
(Ord. 1840, passed 2-28-1994)
§ 157.227 DUTIES OF CITY MANAGER.
The City Manager or his designee shall have the power and duty to enforce the provisions of this chapter. An appeal from a ruling of the city staff shall be made to the Planning Commission. No decision of the city shall be influenced by factors relating to race, religion, gender, age or physical disability.
(Ord. 1840, passed 2-28-1994)
§ 157.228 PERMIT REQUIRED; TIME LIMIT.
(A)
Permit required. Prior to the erection, movement, reconstruction, extension, enlargement or alteration of a structure, a permit for erection, movement, reconstruction, extension, enlargement or alteration shall be obtained from the city. The applicant shall pay a fee as established by the City Council at the time the application is filed.
(B)
Time limit on a permit. All land use decisions and approvals shall be based upon findings of fact. In order to assure that these decisions remain valid, all land use approvals shall be void after one year if no substantial construction has taken place. However, the Planning Commission may grant two one-year extensions upon a determination that the applicant is pursuing the completion of the project and that no material changes of surrounding land uses or designation has occurred.
(Ord. 1840, passed 2-28-1994)
§ 157.229 PUBLIC HEARINGS; NOTICE OF PUBLICATION.
Whenever this chapter prescribes that a public hearing shall be held on the applications for conditional use permits, variances or amendments to this chapter, notice thereof shall be given as provided in this section.
(A)
Notices of public hearings shall be consistent with ORS 197.195 for limited land use decisions and consistent with ORS 197.763 for quasi-judicial land use decisions by publication in a newspaper of general circulation in the city.
(B)
The applicant in all land use actions shall post a sign on the property declaring that a land use application has been filed. The notice shall be posted not less than 20 days prior to the initial public hearing for quasi-judicial land use actions and not less than 14 days prior to the initial public hearing for limited land use decisions. The notice posted on the property shall:
(1)
Be posted on the property in a location clearly visible to the public and no more than 50 feet from a public right-of-way.
(2)
State in letters at least two inches tall the following items:
(a)
"Notice of Proposed Land Use Action."
(b)
The street address of the property proposed for action.
(c)
"For additional information, please contact:" and provide a contact number for the Hermiston Planning Department.
(d)
"Comments must be submitted to the Hermiston Planning Department no later than:" and provide the date for submission of testimony.
(3)
Following posting, the applicant must submit a declaration to the planning department stating that the notice was posted in accordance with this section.
(C)
Notice of public hearing on a conditional use, variance, amendment to a zone boundary, or Comprehensive Plan map amendment shall be mailed to owners of property within 300 feet of the property for which the variance, conditional use, or zone boundary amendment has been requested. The notice of hearing shall be mailed consistent with ORS 197.763 for quasi-judicial land use decisions. The names and addresses of property owners as shown in the records of the County Assessor shall be used. The notice shall:
(1)
Explain the nature of the application and proposed use or uses which could be authorized;
(2)
List the applicable criteria from the chapter and the plan that apply to the application;
(3)
Set forth the street address or other easily understood geographical reference to the subject property;
(4)
State the date, time and location of the hearing;
(5)
State that the failure to raise an issue by the close of the record at or following the final evidentiary hearing, in person or by letter, precludes appeal to LUBA or the City Council based on that issue, and appeal will be on the record unless directed otherwise by the City Council;
(6)
State that failure to present an issue with sufficient specificity to afford the decision maker an opportunity to respond to that issue precludes appeal to LUBA or to the City Council based on that issue;
(7)
Include the name of a local government representative to contact and a telephone number where additional information may be obtained;
(8)
State that copies of the following are available for inspection at no cost and will be provided at a reasonable cost:
(a)
The application;
(b)
All documents and evidence relied upon by the applicant; and
(c)
Applicable criteria.
(9)
State 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; and
(10)
Include a general explanation of the requirements for submission of testimony and the procedure for the conduct of hearings.
(D)
If a proposed zone boundary amendment is legislative in nature, the mailing of individual notice is not required but additional means of informing the public as may be specified by the Council shall be observed.
(E)
Notice shall be published no later than ten days prior to the hearing date in a newspaper of general circulation in the city for all public hearing items.
(F)
Failure of a person to receive the notice prescribed in this section shall not impair the validity of a hearing, nor the action taken.
(G)
Except as provided for under ORS 227.178, the city shall take final action on all zone change applications, conditional use permits, and variances including resolution of all appeals to the City Council under ORS 227.180, within 120 days from the date a completed application is submitted to the city. Within 30 days of receipt of an application, the city will review the application to determine whether it is complete. The applicant will be notified of any missing materials within the 30-day period. The 120-day time period will commence on the date the application is complete.
(Ord. 1840, passed 2-28-1994; Am. Ord. 2177, passed 7-25-2011)
§ 157.230 HEARINGS BEFORE PLANNING COMMISSION.
(A)
Raising issues for appeals. An issue which may be the basis for an appeal shall be raised not later than the close of the record at the final evidentiary hearing on the proposal before the local government. The issues shall be raised with sufficient specificity to afford the Planning Commission and the parties an adequate opportunity to respond to each issue.
(B)
Documents, evidence and reports.
(1)
All documents or evidence relied upon by the applicants shall be submitted to the local government and be made available to the public not less than 21 days prior to the hearing.
(2)
Any staff report used at the hearing shall be available at least seven days prior to the hearing.
(C)
Commencement of hearing. At the commencement of a hearing, a statement shall be made to those in attendance that:
(1)
Lists the substantive criteria which will form the basis of the decision;
(2)
Testimony and evidence must be directed toward the criteria described in subsection (C)(1) of this section or other criteria which the person believes apply to the decision;
(3)
Failure to raise an issue with sufficient specificity to afford the decision maker and the parties an opportunity to respond to the issue precludes appeal to the Council based on that issue; and
(4)
The hearing shall result in a final decision.
(Ord. 1840, passed 2-28-1994)
§ 157.231 APPEAL TO CITY COUNCIL.
(A)
An action or ruling of the Planning Commission authorized by this chapter may be appealed to the City Council within 12 days (or within the time limit required by ORS Chapter 227 if it is greater) after notice of the Planning Commission’s decision and of the right of appeal has been mailed to all persons involved in the Planning Commission’s decision. Appeals may be made by submitting a notice of appeal on forms provided by the city and paying the prescribed fee.
(B)
Aggrieved persons are those who have appeared in person or in writing in the evidentiary hearing. They will be given notice of the "notice of decision and right to appeal," and they are the only ones who may appeal and in event of appeal will have the right of notice.
(C)
Fees, costs and records.
(1)
This appeal shall be on the record which means that the hearing is for the presentation of argument against the interpretation or application of the chapter in reaching the decision. The Council shall consider the record of the Planning Commission which should be prepared in synopsis form (not necessarily verbatim) and either stenographic or electronic record of the hearing shall be available to the appellants and to the Council.
(2)
There shall be a filing fee as prescribed by the City Council.
(3)
The actual cost of preparation of any transcription shall not exceed $500 or $10 per tape for copies of the audio tapes of the Planning Commission hearing if desired by appellants. The actual cost of mailing required notices to parties to the appeal shall be in addition, and the applicant shall pay a fee as prescribed by the City Council in advance for out-of-pocket costs and mailing by the city. Costs exceeding the advance will be billed. These costs shall be refunded to the appellants if they prevail.
(4)
The Council may affirm, reverse, modify or remand the decision of the Planning Commission.
(Ord. 1840, passed 2-28-1994; Am. Ord. 2265, passed 9-24-2018)
§ 157.232 PETITIONS, APPLICATIONS AND APPEALS.
All applications and appeals provided for in this chapter shall be made on forms provided for the purpose or as otherwise prescribed by the Planning Commission in order to assure the fullest practical presentation of pertinent facts and to maintain a permanent record. All applications for permits shall be accompanied by plans, in duplicate, drawn to scale, showing the actual shape and dimensions of the lot to be built upon; the exact sizes and locations on the lot of the building and other structures, existing and proposed; and the existing and intended use of each building, structure or part thereof; the number of families to be accommodated, if any; and other information as is needed to determine their conformance with the provisions of this chapter. Where multiple land use permits or zone changes are required, the hearing and applications may be applied for and conducted at one time.
(Ord. 1840, passed 2-28-1994)
§ 157.233 SEVERABILITY.
If any portion of the zoning ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, that portion is to be deemed severed from the subdivision or zoning ordinance, and in no way affects the validity of the remainder of the subdivision or zoning ordinance.
(Ord. 2177, passed 7-25-2011)
§ 157.999 PENALTY.
The owner or owners of any buildings or premises, or part thereof, where anything in violation of this chapter shall be placed, or shall exist, or be maintained, and any architect, builder or contractor who shall assist in the commission of any violation, and all persons or corporations who shall violate or maintain any violation of any of the provisions of this chapter or who shall fail to comply therewith, or with any requirements thereof, or who shall build in violation of any detained statement of plan submitted and approved thereunder, shall for each and every violation or noncompliance be deemed guilty of a violation and upon conviction thereof, shall be fined not more than $250. Each day that a violation of this chapter continues shall be considered a separate offense.
(Ord. 1840, passed 2-28-1994)
