Hood River City Zoning Code

17.09 Review

Procedures

Legislative History: Ord. 1488 (1980); Ord. 1489 (1981); Ord. 1535 (1983); Ord. 1559 (1985); Ord. 1578 (1986); Ord. 1638 (1991); Ord. 1816 (2001); Ord. 1877 (2005); Ord. 2002 (2011).

17.09.010 Purpose.

This chapter describes the review procedures required to make final decisions regarding applications for ministerial actions, administrative actions, quasi-judicial actions, and legislative actions, and to provide for appeals. The provisions of ORS chapters 197 and 227 also apply, and in the event of conflict, the provisions of ORS control.

17.09.020 Ministerial actions.

A. The Director has the authority to review and approve, approve with conditions, or deny ministerial actions.

B. Decision Types. Ministerial actions are not land use decisions or limited land use decisions. Ministerial actions include, but are not limited to, the following:

1. Final subdivision approval

2. Final partition approval

3. Boundary line adjustments

4. Sign permits

5. Expediated Land Divisions, Partition, or Lot Consolidation

C. Applications. An application for a ministerial action shall be submitted by the owner of the subject property, or shall be accompanied by the owner’s written authorization, on a form provided by the City and shall

1. Include the information requested on the application form

2. Address the criteria in sufficient detail for review and action; and

3. Be accompanied by the required filing fee.

D. Time Limits. The Director shall approve, approve with conditions, or deny an application for a ministerial action within twenty-one (21) days of accepting the application unless the time limit is extended with the consent of the applicant. A ministerial action not approved within the required time period is deemed approved.

E. Final Decision. A ministerial decision is final for purposes of appeal on the date it is mailed or otherwise provided to the applicant, whichever occurs first. A ministerial decision becomes effective the day after the twelve (12) day appeal period expires.

F. Appeal. The applicant can appeal a ministerial action to the Planning Commission per the provisions of the Appeal Procedures of this Chapter within twelve (12) days of the final decision. (Ord. 2053 §3, 2020)

17.09.030 Administrative actions.

A. The Director has the authority to review and approve, approve with conditions, or deny applications processed as administrative actions.

B. Option to Process as Quasi-judicial Action. At the discretion of the Director or the request of the applicant, an administrative action may be processed as a quasi-judicial action, per the provisions of Quasi-Judicial Actions of this Chapter.

C. Decision Types. Administrative actions include limited land use decisions and may include land use decisions that are made by the Director without a hearing. Administrative actions include, but are not limited to, the following:

1. Site Plan Review

2. Partition

3. Extensions of time limits for approved Administrative and Quasi-judicial actions

4. Minor amendments to subdivisions and partitions

5. Minor historic alterations

6. Interpretation of nonconforming use and structures (Chapter 17.05)

7. Bed and breakfast facilities

8. Change of use

9. Annexations

10. Written interpretations made under Section 17.01.040

D. Pre-Application Conference. A pre-application conference may be required at the Director’s discretion prior to filing an application for an administrative action. Pre-application conference requirements and procedures are found in Section 17.09.120 of this Chapter.

E. Applications. An application for an administrative action shall be submitted by the owner of the subject property, or shall be accompanied by the owner’s written authorization, on a form provided by the City and shall

1. Include the information requested on the application form

2. Address the criteria in sufficient detail for review and action; and

3. Be accompanied by the required filing fee.

1. Within ten (10) days after receipt of a complete application for administrative action, notice of the request shall be mailed to:

a. The applicant and owners of property within 250 feet of the subject property. The list shall be completed from the most recent property tax assessment roll.

b. Any affected governmental agency, department, or public district within, or adjacent to, whose boundaries the subject property lies. For subject sites located adjacent to a state roadway or where proposals may have an impact on a state facility, notice of the application shall be sent to ODOT.

2. The notice shall:

a. Briefly explain the nature of the application and the proposed use or uses which could be authorized.

b. Set forth the street address or other easily understood geographical reference to the subject property.

c. Provide a fourteen (14) day comment period, from the day notice was mailed, for submission of written comments prior to the decision.

d. State that failure to raise an issue in writing within the comment period, or failure to provide statements or evidence sufficient to afford the decision maker an opportunity to respond to the issue, precludes appeal to the Council or LUBA on that issue.

e. List, by commonly used citation, the applicable criteria for the decision.

f. State the place, date, and time that comments are due.

g. State that the application, all documents, and evidence relied upon by the applicant, and all applicable criteria are available for inspection at no cost and copies will be provided at a reasonable cost.

h. Include the name and telephone number of the planning staff to contact for additional information.

i. Briefly summarize the decision making process for the decision being made.

3. The failure of a property owner to receive notice as provided in this Section shall not invalidate the proceedings if the Department can show that the notice was given pursuant to this section.

4. Administrative site plan review applications, excluding change of use applications, will require an additional noticing requirement. The notice of application shall be published one (1) time in the local newspaper of record.

G. Findings and Decision. Administrative actions shall be approved, approved with conditions, or denied in a written decision signed by the Director that includes

1. An explanation of the criteria and standards considered relevant to the decision;

2. A statement of basic facts relied upon in rendering the decision; and

3. Findings that explain and justify the reason for the decision based on the criteria, standards, and basic facts set forth.

H. Final Decision. An administrative decision is final for purposes of appeal on the date the Notice of Decision is mailed by the City. An administrative decision becomes effective the day after the twelve (12) day appeal period expires.

I. Notice of Decision. Decision notice shall be provided to the applicant, any party of record, the Planning Commission, and any person entitled to notice within five (5) working days of date the decision is signed. The decision notice shall include

1. A brief summary of the decision and the decision making process; and

2. An explanation of appeal rights and requirements.

J. Appeal. Administrative actions may be appealed to the Planning Commission, per the provisions of the Appeal Procedures within this Chapter, within twelve (12) days of the date the decision became final. A Commission decision on appeal may be further appealed to the City Council per the provisions of Appeal Procedures, within twelve (12) days of the date the Commission’s appeal decision became final.

17.09.040 Quasi-judicial actions.

A. The Commission, Landmarks Review Board, and Council, on appeal, have the authority to review and approve, approve with conditions, or deny applications processed as quasi-judicial actions.

B. Decision Types. Quasi-judicial actions are land use decisions, and may include certain limited land use decisions. Quasi-judicial actions include, but are not limited to, the following:

1. Site plan review

2. Conditional use permits

3. Planned unit developments (PUDs)

4. Variances

5. Non-conforming uses

6. Subdivisions

7. Zone changes

8. Street vacations

9. Appeals of Ministerial decisions, Administrative decisions, Landmarks Review Board decisions, or Planning Commission decisions

10. Landmarks Review Board decisions

C. Pre-Application Conference. A pre-application conference may be required at the discretion of the Director prior to filing an application for a quasi-judicial action. Pre-application conference requirements and procedures are found in Section 17.09.120 of this Chapter.

D. Applications. An application for a quasi-judicial action shall be submitted by the owner of the subject property, or shall be accompanied by the owner’s written authorization, on a form provided by the City and shall

1. Include the information requested on the application form

2. Address the criteria in sufficient detail for review and action; and

3. Be accompanied by the required filing fee.

E. Staff Report. The Director shall prepare a written staff report for each quasi-judicial action that identifies the criteria and standards that apply to the application and summarizes the basic findings of fact. The staff report may also include a recommendation for approval, approval with conditions, or denial.

1. Complete applications for quasi-judicial planning actions shall be heard at a regularly scheduled meeting of the hearing body.

2. Hearings on applications for quasi-judicial actions shall be conducted per the procedures in Public Hearings section of this Chapter.

3. Unless otherwise ordered by the hearing body, the Director shall schedule complete applications for quasi-judicial actions in the order in which they are deemed complete.

4. The hearings body shall hold at least one (1) public hearing on a complete application.

5. The applicant has the burden of proof to show why the application complies with the applicable criteria or can be made to comply through applicable conditions.

6. The applicant, appellant, or authorized representative, shall attend the prescribed public hearing for the quasi-judicial action, unless otherwise authorized by the hearing body.

1. At least twenty (20) days before a scheduled quasi-judicial public hearing, notice of the hearing shall be mailed to

a. The applicant and owners of property within 250 feet of the subject property. The list shall be compiled from the last available complete property tax assessment roll; and

b. Any affected governmental agency, department, or public district within, or adjacent to, whose boundaries include the subject property lines. For subject sites located adjacent to a state roadway or where proposals may have an impact on a state facility, notice of the application shall be sent to ODOT.

2. The notice shall

a. Explain the nature of the application and the proposed use or uses which could be authorized.

b. Set forth the street address or other easily understood geographical references to the subject property.

c. State that failure to raise an issue in writing within the comment period, or failure to provide statements or evidence sufficient to afford the decision maker an opportunity to respond to the issue, precludes appeal to the Council or LUBA on the issue.

d. List, by commonly used citation, the applicable criteria for the decision.

e. State the place, date, and time of the hearing.

f. State that the application, all documents and evidence relied upon by the applicant, and all applicable criteria are available for inspection at no cost and copies will be provided at a reasonable cost.

g. State that the staff report will be available for inspection at no cost and a copy will be provided at a reasonable cost at least seven (7) days prior to the hearing.

h. Include the name and telephone number of the planning staff to contact for additional information.

i. Include a general explanation of the requirements for submission of testimony and procedure for conduct of hearings.

3. The failure of a property owner to receive actual notice as provided in this Section shall not invalidate the proceedings if the Department can show that the notice was given pursuant to this section.

4. Written notice shall be provided to the Department of Land Conservation and Development as required by ORS 197.610.

1. Except as otherwise provided below, when a hearing is continued, it may be continued to a specific time and place or an undetermined time and place, notice of the continuance will be made as follows:

a. To a specific time and place. If notice of a subsequent hearing is made at a public hearing on the same matter and the specific time and place of the subsequent hearing is stated, then no additional notice is required.

b. Undetermined time and place. If a subsequent hearing has not been scheduled at the time of a previous hearing, as provided in subsection (a) above, then notice of the subsequent hearing must be mailed to all persons who responded to the matter in writing, testified at the previous hearing, or have requested notice. The notice should, but need not, be mailed at least twenty (20) days before the hearing.

2. Applicant Requested Continuance. At any time prior to the date and time set for the initial public hearing, the applicant shall receive a continuance upon any request if accompanied by a corresponding extension of the 120 – day rule under ORS 227.179. At the date and time originally scheduled for the public hearing, the hearing body shall open and continue the public hearing to a date and time certain. This provision also applies to the initial public hearing on appeal. No additional written notice is required.

3. Any Participant. Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, arguments, or testimony regarding the application. The hearings body shall grant the request by continuing the public hearing or leaving the record open for additional written evidence, arguments, or testimony. The granting of a continuance or record extension is at the discretion of the hearings body.

a. Continuance. If the hearings body grants a continuance of the public hearing, the hearing shall be continued to a date, time, and place certain at least seven (7) days from the date of the initial evidentiary hearing. No additional notice of hearing is required if the matter is continued to a specified place, date, and time. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence, arguments, or 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 (7) days to submit additional written evidence, arguments, or testimony for the purpose of responding to the new written evidence.

b. Leave the Record Open. If the hearings body leaves the record open for additional written evidence, arguments or testimony, the record shall be left open for at least seven (7) days. Any participant may file a written request with the local government for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearings body shall reopen the record according to the following procedure:

i. When the hearings body re-opens the record to admit new evidence or testimony, any person may raise new issues which relate to that new evidence or testimony;

ii. An extension of the hearing or record is subject to the limitations of ORS 227.178 (“120-day rule”), unless the continuance or extension is requested or agreed to by the applicant;

iii. The hearings body shall allow the applicant at least seven (7) 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. The applicant’s final submittal shall be part of the record but shall not include any new evidence.

4. All other continuances and record extensions shall be governed by ORS 197.797(6).

I. Decision on Quasi-Judicial Actions. The decision of the hearing body shall be set forth in writing and signed by the presiding officer. For quasi-judicial annexations and zone changes, the Council’s decision shall be by ordinance. The written decision shall approve, approve with conditions, or deny the action and be based upon and accompanied by a statement that includes

1. An explanation of the criteria and standards considered relevant to the decision;

2. A statement of basic facts relied upon in rendering the decision; and

3. Facts that explain and justify the reason for the decision based on the criteria, standards, and basic facts set forth.

J. Notice of Decision. Decision notice shall be mailed to the applicant, any party of record, and any person or entity entitled to notice within five (5) working days of the date the decision is signed. The decision notice shall include the following:

1. The date of decision,

2. A brief description of the action taken,

3. The place where, and time when, the decision may be reviewed, and

4. An explanation of appeal rights and requirements.

K. Final Decision and Effect Date. A quasi-judicial decision is final for purposes of appeal on the date the Notice of Decision is mailed to the applicant and parties of record. The quasi-judicial decision is effective the day after the initial appeal period expires, regardless of whether an appeal is filed, or as specified in the ordinance containing the decision. Notwithstanding Section 17.09.070(A), a quasi-judicial decision of the Planning Commission is final for purposes of appeal to LUBA if the 120-day period in ORS 227.178 will expire prior to the expiration of , or during, the appeal period for appeal to the City Council.

1. Planning Commission and Landmarks Review Board decisions on quasi-judicial actions may be appealed to the City Council, per the provisions of Appeal Procedures within this Chapter, within twelve (12) days of the date the decision became final.

2. A City Council decision on appeal may be further appealed to LUBA in accordance with the appeal procedures in ORS Chapter 197, within twenty-one (21) days of the date the decision became final.

17.09.050 Legislative actions.

A. The Planning Commission, and where appropriate, the Historic Landmarks Review Board, review all requests processed as legislative actions and make a recommendation to Council to approve, approve with conditions, or deny the request. The Council makes the final decision per the provisions of this section. Legislative actions may be appealed to LUBA, subject to ORS 197.830.

B. Decision Types. Legislative actions are land use decisions that are broad in scope. Legislative actions include, but are not limited to, the following:

1. Legislative Zone Changes

2. Legislative Ordinance Amendments

3. Legislative Comprehensive Plan Map Amendments

4. Legislative Amendments to the Comprehensive Plan

5. Urban Growth Boundary Amendments

1. The Planning Commission and/or Landmarks Review Board shall hold at least one (1) legislative public hearing to review legislative actions and make a recommendation to the Council to approve, approve with conditions, or deny.

2. The City Council shall hold a legislative hearing on legislative actions within thirty (30) days of the date it receives the Planning Commission’s recommendation.

1. At least twenty (20) days before the first legislative hearing before the Council, notice of the hearing shall be published in a newspaper of general circulation.

2. The notice shall:

a. Explain the application and the proposed amendment(s), change(s), or use(s) which could be authorized;

b. List the applicable Ordinance standards and/or criteria, Comprehensive Plan Policies, Oregon Planning Goals and Guidelines, Oregon Administrative Rules, and Oregon Revised Statues that apply to the particular application;

c. Set forth the geographical reference to the subject area;

d. State that in order to preserve any potential appeal rights to LUBA, persons must participate either orally or in writing in the legislative action proceeding in question; and

e. Include the name and telephone number of the planning staff to contact for additional information.

f. Include the hearing dates for the Planning Commission, Landmarks Review Board, and City Council hearings.

1. Written notice shall be provided to property owners when required by ORS 227.186.

2. Written notice shall be provided to the Department of Land Conservation and Development as required by ORS 197.610. For subject sites located adjacent to a state roadway or where proposals may have an impact on a state facility, notice of the application shall be sent to ODOT.

F. When a hearing body holds more than one (1) hearing or continues the hearing, additional notice will be made as follows:

a. To a specific time and place. If notice of a subsequent hearing is made at a public hearing on the same legislative matter and the specific time and place of the subsequent hearing is stated, then no additional notice is required.

G. Decision on Legislative Actions. The Council’s decision shall be by ordinance. The decision shall be based upon and accompanied by a brief statement that includes

1. An explanation of the criteria, standards, policies, and laws considered relevant to the decision;

2. A statement of basic facts relied upon in rendering the decision; and

3. Ultimate facts that explain and justify the reason for the decision based on the criteria, standards, policies, laws, and basic facts set forth.

H. Final Decision and Effective Date. The Council’s decision on legislative actions is the final decision. The date a decision on legislative actions becomes final is the day thirty (30) days after the date the ordinance is adopted by the Council, unless the decision is adopted as an emergency ordinance, in which case the decision is final on the date specified in the ordinance. If the action is not approved, the date the decision becomes final is upon mailing of the notice of decision to the parties of record.

I. Notice of Decision. Decision notice shall be mailed to all participating parties and DLCD within five (5) working days of the date the ordinance is adopted by the Council and signed by the Mayor or, in the case no ordinance is adopted, within five (5) working days of the date of the Council’s action. The decision notice shall include the following:

1. The date of decision

2. A brief description of the action taken

3. The place where, and time when, the decision may be read

4. An explanation of appeal rights and requirements

5. Date the decision is final

J. Appeal. The Council’s decisions on legislative actions may be appealed to LUBA, in accordance with the appeal procedures of ORS Chapter 197, within twenty-one (21) days of the date the decision became final.

17.09.060 Quasi-judicial and legislative public hearings.

The Planning Director may adopt supplemental rules of procedure for quasi-judicial and legislative public hearings.

A. Quasi-Judicial Hearing Procedure. All quasi-judicial hearings shall be held in accordance with Oregon public meeting laws as described in ORS 192.610-192.710. The following rules shall apply to all quasi-judicial hearings:

1. Any questions concerning the conduct of a hearing shall be addressed to the Chair with a request for a ruling. Rulings from the Chair shall be made in light of the stated purpose of these procedures and supplemental rules. Any ruling made by the Chair may be modified or reversed by a majority of those members of the hearing body present and eligible to vote on the application before the hearing body.

2. The rules of procedure for the conduct of hearings under this section are as follows:

a. At the commencement of the hearing, the Chair, or the Chair’s designee, shall ascertain whether a quorum is present. A quorum is necessary to conduct the hearing and to deliberate. The Chair shall explain the nature of the application and list the substantive criteria of Title 16 or Title 17 of the Hood River Municipal Code, the Comprehensive Plan, and/or state statute that apply to the decision before the hearing body.

b. The Chair shall then request abstentions by members of the hearing body. Prior to abstaining, the member shall explain the basis for his/her abstention. No member of the hearing body shall participate in discussion of the application or vote on the application when

1. Any of the following has a direct or substantial financial interest in the proposal:

a. The member of the hearing body or his/her spouse, brother, sister, child, parent, or like relative of his/her spouse has a direct or substantial financial interest in the proposal, or

b. A business in which the member of the hearing body or any spouse or relative is then serving, or has served within the previous two (2) years has a direct or substantial financial interest in the proposal; or

c. Any business, that has a direct or substantial financial interest in the proposal, that the member, spouse, or relative is negotiating for or has an arrangement or understanding concerning prospective partnership or employment;

2. He/she owns property within the area entitled to receive notice of the public hearing; or

3. He/she has a direct personal interest in the proposal.

c. The Chair shall then request that all hearing body members disclose any significant pre-hearing or ex parte contact regarding the application. No member shall participate in any proceeding in which the member has an actual conflict of interest or in which the member, or those persons or businesses described in ORS 244.135, has a direct or substantial financial interest. If the member refuses to disqualify him or /herself for conflict of interest, ex parte contact, or bias, the hearing body shall have the power to disqualify the member by majority vote of those present for that proceeding.

d. The Chair shall then provide an opportunity for questioning of the hearing body members by interested persons as to a hearing body member’s qualifications to hear the application or appeal. Based upon the disclosures of the hearing body members or any challenges by interested persons, the Chair shall then entertain motions by any member of the hearing body to disqualify any of its members. A member may be disqualified if a majority of the hearing body determines that a member is biased in favor of or against the applicant or proposal.

e. The Chair shall then request presentation of the City Planning Department’s report. The Chair shall then state the rules of conduct for the hearing as follows:

1. No person shall testify without first being recognized by the Chair and stating his/her full name and residence address.

2. No person shall be disorderly, abusive, or disruptive of the orderly conduct of the hearing.

3. There shall be no audience demonstrations such as applause, cheering, display, signs, or conduct disruptive of the hearing. Such conduct may be cause for immediate termination of the hearing by the hearing body.

4. No person shall present irrelevant, immaterial, or unduly repetitious testimony or evidence.

5. Testimony and evidence must be directed toward the applicable substantive criteria. Failure to raise an issue with sufficient specificity to afford the hearing body and the parties an opportunity to respond to the issue precludes appeal to the board based on that issue.

6. The Chair; members of the hearing body; and with the approval of the Chair, the City Attorney; and any other officer or employee of the City may question and cross-examine any person who testifies.

7. No other officer or employee of the City who has a financial or other private interest or has previously participated in a hearing on the application 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 such interest.

8. The hearing body may set such time limitations for hearings provided that proponents and opponents are provided equal time for presentation of evidence and argument.

g. The Chair shall then request:

1. The proponent’s case;

2. Other testimony or evidence in support of the application;

3. The opponent’s case;

4. Other testimony or evidence against the application;

5. Testimony or evidence concerning the application, which by its nature is neither in favor nor against; and

6. Rebuttal, which should shall be limited to comments on evidence in the record.

h. The Chair shall then close the hearing and the hearing body shall commence deliberations. The hearing body’s deliberations may include questions directed to City staff, comments from City staff, or inquiries directed to any person present. If new evidence, conditions, or modifications not presented in the staff report are raised after the close of the hearing, an opportunity shall be provided for any person to comment on or rebut that evidence or information.

i. When the hearing body reopens a record to submit new evidence or testimony, any person may raise new issues, which relate to the new evidence, testimony, or criteria for decision making that apply to the matter at issue.

j. Prior to the conclusion of the public hearing, any participant may request an opportunity to present additional evidence or testimony regarding the application. The Commission shall grant the request (a “continuance”) by continuing the public hearing or leaving the record open for additional evidence or testimony in accordance with the provisions of ORS 197.797.

k. The hearing body shall, within thirty days (30) after closing the hearing, adopt a written decision, which specifically sets forth the basis for that decision. The hearing body’s final decision shall be based on adequate findings of fact presented during the hearing. If a finding is challenged by a Commissioner or Councilor, a vote may be taken on the finding singly, apart from the motion. A proposed order may be submitted by the Planning Director, or the Planning Commission or City Council may request the applicant or appellant to submit a proposed order.

B. Legislative Hearing Procedure. The Historic Landmarks Boards, Planning Commission, and Council each have the authority to hold legislative hearings. All legislative hearings will be held in accordance with Oregon public meeting laws as described in ORS 192.610-192.710, “Public Meetings”.

1. At the start of each public hearing on legislative actions, the presiding officer shall ask if any member of the hearings body wishes to make any disclosure, or abstain from participating or voting on the matter being heard because of possible financial gain resulting from the legislative action.

2. A member with an actual conflict of interest shall not participate as a member in the hearing, but may vote if the member’s vote is necessary to meet the minimum number of votes required to take official action.

17.09.070 Appeal procedures.

The following procedures apply to appeals of final decisions on ministerial and administrative planning actions made by the Director and final decisions on quasi-judicial planning actions made by either the Historic Landmarks Board or the Commission. The Planning Director may adopt supplemental rules of procedure addressing matters not included in this section.

A. Right to Appeal Decisions. The following persons may appeal a final decision described above:

a. The applicant.

b. Any person who was mailed a notice of decision.

c. A person entitled to notice and to whom no notice was mailed. A person to whom notice is mailed is deemed notified even if the notice is not received.

d. Any party of record to the particular action.

e. The City Council upon a majority vote.

f. The Planning Commission upon a majority vote; the Planning Commission may only appeal administrative decisions or Historic Landmarks Review Board decisions. An appeal by the Planning Commission on an administrative decision shall go before the Planning Commission.

g. The Historic Landmarks Review Board upon a majority vote; the Historic Landmarks Board may only appeal administrative decisions made pursuant to the Historic Preservation Section. An appeal by the Landmarks Review Board on an administrative decision is heard by the Landmarks Review Board.

a. The applicant.

b. Any person who was mailed a notice of decision.

c. A person entitled to notice and to whom no notice was mailed. A person to whom notice is mailed is deemed notified even if the notice is not received.

d. Any party of record to the particular action.

e. The City Council upon a majority vote.

B. Filing Appeals. To file an appeal an appellant must

1. File a completed Notice of Appeal application on a form prescribed by the Planning Department.

2. Include the standard appeal fee as part of the Notice of Appeal application.

3. File the Notice of Appeal application and appeal at the Planning Department office no later than 5:00 PM on the twelfth (12th) day following the date the decision became final.

C. Notice of Appeal Application. Every Notice of Appeal application shall include

1. The appellant’s name and address, and a statement describing how the appellant qualifies as a party;

2. The date and a brief description of the decision being appealed;

3. The specific grounds why the decision should be reversed or modified based on the applicable criteria or procedural error;

4. For appeals to City Council if the appellant is not the applicant, a statement demonstrating that the appeal issues were raised below; and

5. The appeal fee.

1. Any Notice of Appeal application that is received after the deadline, or is not accompanied by the required appeal fee shall not be accepted for filing.

2. The failure to comply with any other provision of Subsections (B) or (C) above shall constitute a jurisdictional defect. A jurisdictional defect means the appeal is invalid and no appeal hearing will be held. Determination of a jurisdictional defect shall be made by the Planning Director, with the advice of the City Attorney, after the expiration of the twelve (12) day appeal period described in Subsection (B)(3) above. The Planning Director’s determination may be subject to appeal to the State Land Use Board of Appeals (LUBA).

E. Consolidation of Appeals. If more than one (1) party files a Notice of Appeal application on a planning action decision, the appeals shall be consolidated, noticed, and heard as one (1) proceeding.

F. Notification of Appeal Hearing. The Notice of Appeal application, together with notice of the date, time, and place of the appeal hearing shall be mailed to all parties of record at least fourteen (14) days prior to the hearing.

G. Appeal Hearing Procedures. All quasi-judicial hearings shall be held in accordance with Oregon public meeting laws as described in ORS 192.610 - 192.710.

1. Administrative and Ministerial action appeals are heard de novo before the Planning Commission or Landmarks Review Board, as appropriate, pursuant to the procedures in Public Hearings section of this Chapter with the following exception:

a. The order of testimony shall be as follows:

1. The appellant’s case

2. Other testimony or evidence in support of the appeal

3. The applicant’s case

4. Other testimony or evidence in support of the applicant’s case

5. Rebuttal by the appellant, which shall be limited to comments on evidence in the record

2. Quasi-Judicial action appeals are heard on the record before City Council. Appeals to the City Council are conducted per the procedures in the Public Hearings section of this Chapter with the following exceptions:

a. Scope of Appeal. The appeal of a quasi-judicial decision is limited to the specific grounds in the Notice of Appeal application provided those grounds were raised below. The appeal record is limited to the record created below during the proceedings prior to appeal to the City Council.

b. The order of testimony shall be as follows:

1. The appellant’s case

2. The applicant’s case

3. Rebuttal by the appellant, which shall be limited to comments on evidence in the record

3. Unless excused by the hearing body, the appellant shall attend the appeal hearing.

1. The hearing body on appeal may affirm, reverse, or modify the planning action decision being appealed, including approving, approving with conditions, or denying a particular application.

2. The hearing body on appeal shall make findings and conclusions, and make a decision based on the hearing record, except in cases of appeals of ministerial and administrative actions, which are heard de novo.

3. Copies of the appeal decision shall be sent to all parties participating in the appeal.

17.09.080 Resubmittal.

If an application is denied by the City Planning Department and no appeal is filed, or if upon review or appeal the denial is affirmed, no new request for the same or substantially similar proposal shall be filed within six (6) months after the date of final decision denying the application. An application may be denied without prejudice and with a waiver of the six (6) month restriction. If a waiver is not granted upon denial and conditions have changed to an extent that further consideration of an application is warranted, the hearing body, on its own motion, may consider new evidence and waive the six (6) month restriction.

17.09.090 Filing fees.

The filing fees for land use application(s), pre-application(s), and appeals shall be established by the Council by resolution. The fees shall be paid to the City Recorder upon filing of an application. Fees may be changed by Council resolution.

17.09.100 Criteria for approval.

The burden of proof shall be upon the applicant seeking approval. For purposes of an appeal, the burden of proof is upon the appellant. For any application to be approved, it shall be established that the proposal conforms to the City Comprehensive Plan – Zoning Ordinance – Land Division Ordinance – Oregon Revised Statutes, as applicable – and other requirements as they relate to the specific proposal.

17.09.110 Restrictions.

The decision maker may include restrictions and conditions as part of any approval. The purpose of the restrictions and conditions may be to.

1. Protect the public from the potentially negative effects of the proposal;

2. Fulfill the need for public services created or increased by the proposal; and/or

3. Further the purposes of the Comprehensive Plan and Zoning Ordinance.

17.09.120 Pre-Application Conferences.

A. When a pre-application conference is required, the applicant shall schedule a meeting with the Planning Department. When the proposed action is located adjacent to a state roadway or the proposed action may have an impact on a state roadway, ODOT shall be invited to participate in the pre-application conference and review of the application. At the conference, the City may address the following:

1. The comprehensive plan policies, and map designations applicable to the proposal;

2. The ordinance provisions, including substantive and procedural requirements applicable to the proposal;

3. Availability of technical data and assistance which will aid the applicant; and

4. Other governmental policies and regulations that relate to the application.

B. Disclaimer. Failure of the City to provide any of the information required by this section does not constitute a waiver of any of the standards, criteria, or requirements for the application.

C. Pre-application comments expire one year from the date of the pre-application meeting.

17.09.130 Neighborhood meeting requirement.

A. Applicants are encouraged to meet with adjacent property owners and neighborhood representatives prior to submitting their application in order to solicit input and exchange information about the proposed development. If required by subsection (B), an applicant will be required to contact all adjacent property owners within 250 feet of the development proposal to arrange a neighborhood meeting before the application is deemed complete. If a neighborhood meeting is mandatory, written verification of the date, time, attendance, and outcome of the meeting is required for a complete application, as well as a copy of the written notice, official mailing list, and affidavit of mailing.

B. Notwithstanding subsection (A), a neighborhood meeting is required for the following types of applications:

1. Subdivisions

2. PUDs

3. Other development applications that are likely to have neighborhood or community-wide impacts (e.g., traffic, parking, noise, or similar impacts), as determined by the Planning Director.

17.09.140 Amended decision process and correction of clerical errors.

The Director may correct typographical errors, rectify inadvertent omissions, and/or make other minor changes to decisions made under this Title, so long as the changes do not materially alter the decision. The decision may be changed through one of the following amended decision processes. All other requested changes to decisions that do not qualify as minor changes under this section shall follow the appropriate appeal or amendment process.

A. The Planning Director may make the minor changes and issue an amended decision after the notice of final decision has been issued but before the appeal period has expired. If a decision is amended, the decision shall be issued within twelve (12) business days after the original decision would have become final, but in no event beyond the 120-day period required by state law. A new twelve (12) day appeal period shall begin on the day the amended decision is issued. Notice of an amended decision is given using the same mailing and distribution list as for the original decision notice.

B. The City Council may, subject to any applicable public notice and hearing requirements, adopt a resolution correcting minor changes and typographical errors in annexation, plan amendment, or zone change ordinances and any appendices or maps appended thereto.