Jefferson City Zoning Code
CHAPTER 12
72 HEARING AND APPEAL PROCEDURES
§ 12.72.010 Application review procedures designated.
Five procedures to review and decide land use applications are designated. They vary in the decision authority, provision of public notice and review process. They shall be known as written comment, Type A, Type B, Type C, and Type D.
When an applicant applies for more than one type of land use application for the same one or more contiguous parcels of land, the proceedings shall be consolidated for review and decision. When proceedings are consolidated, required notices may be consolidated, provided the notice identifies each application to be decided. When more than one application is reviewed in a hearing, separate findings and decisions shall be made on each application.
(DC § 2.010; Ord. 642 § 20, 2003; Ord. 672 § 8, 2011; Ord. 723 § 16, 2023)
§ 12.72.020 Application submission.
Completed applications and appropriate fees shall be submitted to the City Recorder.
(DC § 2.015; Ord. 536 § 1, 1993; Ord. 668 § 1, 2010)
§ 12.72.025 Written comment procedure.
A.
Written comment actions are decided by the City Recorder or designee. A public hearing is not provided.
B.
The City Recorder or designee shall mail a public notice to the applicant and owners of all property within 100 feet of the subject property. For a property line adjustment application, the City Recorder, or designee, shall mail the public notice and a copy of the application to the Marion County Surveyor.
C.
The mailed notice shall:
1.
Provide a 15 day period for submission of written comments prior to the decision;
2.
State that issues which may provide the basis for an appeal to the Planning Commission shall be raised in writing prior to the expiration of the comment period. Issues shall be raised with sufficient specificity to enable the City Recorder or designee to respond to the issue;
3.
List, by commonly used citation, the applicable criteria for the decision;
4.
Set forth the street address or other easily understood geographical reference to the subject property;
5.
State the place, date and time that comments are due;
6.
State that copies of all evidence relied upon by the applicant are available for review, and that copies can be obtained at cost;
7.
Include the name and phone number of a city contact person; and
8.
Briefly summarize the local decision making process.
D.
For purposes of appeal, subsection C, above, shall be deemed met when the City can provide an affidavit or other certification that such notice was given. The applicant shall supply the list of names and addresses of property owners to receive the notice, and the Assessor's map number and tax lot number for each property. The mailing list shall be certified by the applicant as accurate and complete and that it was obtained from a title company or the current County Assessor's records. The applicant shall also provide two copies of the names and addresses and Assessor's map information on peel-off address labels.
E.
After reviewing the application, relevant decision criteria, relevant code provisions, and written comments submitted in writing during the 15 day comment period, the City Recorder or designee shall approve, approve with conditions, or deny the application. The City Recorder or designee may attach conditions in granting an approval if the City Recorder or designee determines the conditions are necessary for the approval criteria to be met, or to mitigate detrimental effects.
F.
The City Recorder or designee shall mail a copy of the written comment decision to the applicant and a notice of the decision shall be mailed to the applicant, to parties that submitted written comments during the 15 day comment period, to parties that requested such notice, and, in accordance with ORS 227.175(10)(a), to any person who is adversely affected or aggrieved by the decision. The notice shall state the parties are provided a 15 day appeal period, and any appeal shall be in writing and must be received by the City Recorder within the 15 day appeal period.
G.
The written comment decision may be appealed to the Planning Commission by a party that received a notice of the decision or by any person who is adversely affected or aggrieved by the decision by submitting a written appeal to the City Recorder within 15 days of the day the written notice of decision was mailed beginning with the day after the notice was mailed. If no appeal is filed within the 15 day appeal period, the decision becomes effective on the sixteenth (16th) day.
(Ord. 642 § 21, 2003; Ord. 672 § 9, 2011; Ord. 728 § 1, 2023)
§ 12.72.030 Type A procedures.
A.
Type A actions are decided by the Planning Commission. A public hearing is not required.
B.
Upon receipt of an application for a Type A action, the City staff shall review the application and, within 30 days of its receipt, notify the applicant in writing whether the application is complete.
1.
If the City determines the application contains sufficient information for review, the City shall advise the applicant in writing that the application is deemed complete as of the date of submittal and begin the application review process.
2.
If the City determines the application is incomplete, the City shall advise the applicant in writing of the necessary missing information. The City shall begin review of the application:
a.
Upon receipt of all of the missing information requested by the City; or
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; or
c.
Upon receipt of a written statement from the applicant indicating that none of the missing information will be provided.
4.
Upon the written request of the applicant submitted to the City Recorder, any applicable time limits may be extended for a specified period of time, but in no case may the total exceed 245 days.
C.
The City Recorder, or designee, shall mail a public notice to the applicant and owners of all property within 100 feet of the subject property.
D.
The mailed notice shall:
1.
Provide a 15 day period for submission of written comments prior to the decision;
2.
State that issues which may provide the basis for an appeal to the City Council or Oregon Land Use Board of Appeals shall be raised in writing prior to the expiration of the comment period. Issues shall be raised with sufficient specificity to enable the Planning Commission to respond to the issue;
3.
List, by commonly used citation, the applicable criteria for the decision;
4.
Set forth the street address or other easily understood geographical reference to the subject property;
5.
State the place, date and time that comments are due;
6.
State that copies of all evidence relied upon by the applicant are available for review, and that copies can be obtained at cost;
7.
Include the name and phone number of a City contact person; and
8.
Briefly summarize the local decision making process.
E.
For purposes of appeal, subsection C, above, shall be deemed met when the City can provide an affidavit or other certification that such notice was given. The applicant shall supply the list of names and addresses of property owners to receive the notice, and the Assessor's map number and tax lot number for each property. The mailing list shall be certified by the applicant as accurate and complete and that it was obtained from a title company or the current County Assessor's records. The applicant shall also provide two copies of the names and addresses and Assessor's map information on peel-off address labels.
F.
Where a railroad-highway crossing provides or will provide the only access to land that is the subject of an application, the City Recorder, or designee, shall mail notice to the Oregon Department of Transportation, Rail Division, and the railroad company consistent with ORS 197.794.
G.
Except where a land use application would allow a structure less than 35 feet in height and the property is located outside of the runway "approach surface" as defined by the Oregon Department of Aviation, the City Recorder, or designee, shall mail notice of a land use application to the owner of an airport defined by the Oregon Department of Aviation as a "public use airport" in accordance with ORS 227.175(6).
H.
The City Recorder, or designee, shall mail notice to the Oregon Department of Aviation consistent with ORS 197.183 when the land use application, if approved, would result in a water impoundment larger than one-quarter acre (10,890 square feet) within 10,000 feet of an airport identified in ORS 836.610(1).
I.
The City Recorder, or designee, shall mail notice to transportation agencies, including the Oregon Department of Transportation, when the land use application, if approved, may impact facilities or services under their jurisdiction.
J.
The City Recorder, or designee, shall provide to the applicant at the time the application is submitted an all-weather plastic notice at least two feet by two feet.
K.
At a Planning Commission meeting the Planning Commission shall consider the application materials, staff report and the written comments submitted during the 15 day comment period. The Planning Commission may attach conditions in granting an approval if the Planning Commission determines the conditions are necessary for the approval criteria to be met, or to mitigate detrimental effects. The Planning Commission shall pass an oral motion directing staff to prepare a Planning Commission order approving, approving with conditions or denying the application. The order shall include findings addressing the relevant criteria of the Development Code. The Planning Commission Chair or Vice-Chair shall sign the order.
L.
The City Recorder, or designee, shall mail a copy of the Type A decision to the applicant, and a notice of the decision shall be mailed to the applicant, to parties that submitted written comments during the 15 day comment period, to parties that requested such notice, and, in accordance with ORS 227.175(10)(a)(A), to any person who submits a letter to the City Recorder that was received by the City Recorder before the notice of the decision was mailed stating they are adversely affected or aggrieved by the decision and the reasons therefor.
M.
The notice of the decision shall:
1.
Explain the nature of the application and the proposed use or uses which could be authorized;
2.
Set forth the street address or other easily understood geographical reference to the subject property;
3.
Include the name and telephone number of a City contact person;
4.
State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;
5.
State that any person who is adversely affected or aggrieved or who receives this written notice may appeal the decision to the City Council;
6.
State that a 15 day appeal period is provided and any appeal shall be in writing and shall be received by the City Recorder within the 15 day appeal period;
7.
State that the decision will not become effective until the period for filing an appeal has expired; and
8.
State that a person who is mailed written notice of the decision cannot appeal the decision directly to the Oregon Land Use Board of Appeals under ORS 197.830 to 197.845.
N.
The Type A decision may be appealed to the City Council by a party that received a notice of the decision, or by any person who is adversely affected or aggrieved by the decision, by submitting a written appeal to the City Recorder within 15 days of the day the written notice of decision was mailed beginning with the day after the notice was mailed. If no appeal is filed within the 15 day appeal period, the decision becomes effective on the sixteenth (16th) day.
O.
Where the Planning Commission decision is appealed, the effective date is stayed until the final determination on the appeal is rendered.
(DC § 2.020; Ord. 688 § 1, 2010; Ord. 672 § 10, 2011; Ord. 723 § 17, 2023; Ord. 728 § 1, 2023)
§ 12.72.040 Type B procedures.
A.
Type B actions are decided by the Planning Commission. The Planning Commission holds a public hearing pursuant to this chapter before the decision is made.
B.
Upon receipt of an application for a Type B action, the City staff shall review the application and, within 30 days of its receipt, notify the applicant in writing whether the application is complete.
1.
If the City determines the application contains sufficient information for review, the City shall advise the applicant in writing that the application is deemed complete as of the date of submittal and begin the application review process.
2.
If the City determines the application is incomplete, the City shall advise the applicant in writing of the necessary missing information. The City shall begin review of the application:
a.
Upon receipt of all of the missing information requested by the City; or
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; or
c.
Upon receipt of a written statement from the applicant indicating that none of the missing information will be provided.
4.
Upon the written request of the applicant submitted to the City Recorder, any applicable time limits may be extended for a specified period of time, but in no case may the total exceed 245 days.
C.
The City Recorder, or designee, shall mail a public notice of the hearing to the applicant and owners of all property within 300 feet of the subject property at least 20 days before the evidentiary hearing.
D.
The mailed notice shall:
1.
Explain the nature of the application and the proposed use or uses which could be authorized;
2.
List the applicable criteria that apply to the application at issue;
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 failure of an issue to be raised in a hearing, 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 precludes appeal to the Oregon Land Use Board of Appeals based on that issue;
6.
Include the name and phone number of a City contact person;
7.
State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;
8.
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;
9.
Include a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings;
10.
State that all documents or evidence relied upon by the applicant is available to the public; and
11.
State that prior to the conclusion of the hearing, any participant may request an opportunity to present additional evidence, arguments or testimony regarding the application.
E.
For purposes of appeal, subsection C, above, shall be deemed met when the City can provide an affidavit or other certification that such notice was given. The applicant shall supply the list of names and addresses of property owners to receive the notice, and the Assessor's map number and tax lot number for each property. The mailing list shall be certified by the applicant as accurate and complete and that it was obtained from a title company or the current County Assessor's records. The applicant shall also provide two copies of the names and addresses and Assessor's map information on peel-off address labels.
F.
Except where a land use application would allow a structure less than 35 feet in height and the property is located outside of the runway "approach surface" as defined by the Oregon Department of Aviation, the City Recorder, or designee, shall provide notice of a public hearing on a land use application to the owner of an airport defined by the Oregon Department of Aviation as a "public use airport" in accordance with ORS 227.175(6).
G.
The City Recorder, or designee, shall provide notice to the Oregon Department of Aviation consistent with ORS 197.183 when the land use application, if approved, would result in a water impoundment larger than one-quarter acre (10,890 square feet) within 10,000 feet of an airport identified in ORS 836.610(1).
H.
Where a railroad-highway crossing provides or will provide the only access to land that is the subject of an application, the City Recorder, or designee, shall provide notice to the Oregon Department of Transportation, Rail Division, and the railroad company consistent with ORS 197.794.
I.
The City Recorder, or designee, shall mail notice to transportation agencies, including the Oregon Department of Transportation, when the land use application, if approved, may impact facilities or services under their jurisdiction.
J.
The City Recorder, or designee, shall provide to the applicant at the time the application is submitted an all-weather plastic notice at least two feet by two feet.
K.
At the public hearing, the Planning Commission shall consider the application materials and staff report, and the applicant and interested persons may present testimony relevant to the criteria and standards pertinent to the proposal, giving reasons why the application should or should not be approved or proposing modifications that are necessary for approval. The Planning Commission may attach conditions in granting an approval if the Planning Commission determines the conditions are necessary for the approval criteria to be met, or to mitigate detrimental effects to others. The Planning Commission shall pass an oral motion directing staff to prepare a Planning Commission order approving, approving with conditions or denying the application. The order shall include findings addressing the relevant criteria of the Development Code. The Planning Commission Chair or Vice-Chair shall sign the order.
L.
The City Recorder, or designee, shall mail a copy of the Type B decision to the applicant, and a notice of the decision shall be mailed to the applicant, to parties who participated orally or in writing at the public hearing, to parties that requested such notice, and, in accordance with ORS 227.175(10)(a)(A), to any person who submits a letter to the City Recorder that was received by the City Recorder before the notice of the decision was mailed stating they are adversely affected or aggrieved by the decision and the reasons therefor.
M.
The notice of the decision shall:
1.
Explain the nature of the application and the proposed use or uses which could be authorized;
2.
Set forth the street address or other easily understood geographical reference to the subject property;
3.
Include the name and telephone number of a City contact person;
4.
State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;
5.
State that any person who is adversely affected or aggrieved or who receives this written notice may appeal the decision to the City Council;
6.
State that a 15 day appeal period is provided and any appeal shall be in writing and shall be received by the City recorder within the 15 day appeal period;
7.
State that the decision will not become effective until the period for filing an appeal has expired; and
8.
State that a person who is mailed written notice of the decision cannot appeal the decision directly to the Oregon Land Use Board of Appeals under ORS 197.830 to 197.845.
N.
The Type B decision may be appealed to the City Council by a party that received a notice of the decision, or by any person who is adversely affected or aggrieved by the decision, by submitting a written appeal to the City Recorder within 15 days of the day the written notice of decision was mailed beginning with the day after the notice is mailed. If no appeal is filed within the 15 day appeal period, the decision becomes effective on the sixteenth (16th) day.
O.
Where the Planning Commission decision is appealed, the effective date is stayed until the final determination on the appeal is rendered.
(DC § 2.030; Ord. 688 § 1, 2010; Ord. 672 § 11, 2011; Ord. 723 § 18, 2023)
§ 12.72.050 Type C procedures.
A.
Type C actions are quasi-judicial and are decided by the City Council. The Planning Commission holds a public hearing pursuant to this chapter and then makes a recommendation to the City Council. The City Council holds a public hearing pursuant to this chapter before the decision is made.
B.
Upon receipt of an application for a Type C action, the City staff shall review the application and, within 30 days of its receipt, notify the applicant in writing whether the application is complete.
1.
If the City determines the application contains sufficient information for review, the City shall advise the applicant in writing that the application is deemed complete as of the date of submittal and begin the application review process.
2.
If the City determines the application is incomplete, the City shall advise the applicant in writing of the necessary missing information. The City shall begin review of the application:
a.
Upon receipt of all of the missing information requested by the City; or
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; or
c.
Upon receipt of a written statement from the applicant indicating that none of the missing information will be provided.
4.
Upon the written request of the applicant submitted to the City Recorder, any applicable time limits may be extended for a specified period of time, but in no case may the total exceed 245 days.
C.
The City Recorder, or designee, shall mail a public notice for each of the Planning Commission and City Council hearings to the applicant and owners of all property within 300 feet of the subject property at least 20 days before each hearing.
D.
The mailed notice shall:
1.
Explain the nature of the application and the proposed use or uses which could be authorized;
2.
List the applicable criteria that apply to the application at issue;
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 failure of an issue to be raised in a hearing, 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 precludes appeal to the Oregon Land Use Board of Appeals based on that issue;
6.
Include the name of a City representative to contact and the telephone number where additional information may be obtained;
7.
State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;
8.
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;
9.
Include a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings;
10.
State that all documents or evidence relied upon by the applicant is available to the public; and
11.
State that prior to the conclusion of the hearing, any participant may request an opportunity to present additional evidence, arguments or testimony regarding the application.
E.
For purposes of appeal, subsection C, above, shall be deemed met when the City can provide an affidavit or other certification that such notice was given. The applicant shall supply the list of the names and addresses of property owners, manufactured park tenants and other parties to receive the notice, and the Assessor's map number and tax lot number for each property. The mailing list shall be certified by the applicant as accurate and complete and that it was obtained from a title company or the current County Assessor's records. The applicant shall also provide three copies of the names and addresses and Assessor's map information on peel-off address labels.
F.
For a rezoning of a manufactured home park or mobilehome park, the City Recorder, or designee, shall give written notice by first class mail to each existing mailing address for tenants of the manufactured home park or mobilehome park, as provided by the applicant, at least 20 days, but not more than 40 days before the date of the first hearing on the application consistent with ORS 227.175(8).
G.
Where State Statute for a proceeding, including, but not limited to, a right-of-way vacation or annexation, requires newspaper notice, the City Recorder, or designee, shall provide newspaper notice consistent with State Statute in addition to any required notice set forth in Section 12.72.050.
H.
Except where a land use application would allow a structure less than 35 feet in height and the property is located outside of the runway "approach surface" as defined by the Oregon Department of Aviation, the City Recorder, or designee, shall provide notice of a public hearing on a land use application to the owner of an airport defined by the Oregon Department of Aviation as a "public use airport" in accordance with ORS 227.175(6).
I.
The City Recorder, or designee, shall provide notice to the Oregon Department of Aviation consistent with ORS 197.183 when the land use application, if approved, would result in a water impoundment larger than one-quarter acre (10,890 square feet) within 10,000 feet of an airport identified in ORS 836.610(1).
J.
If a railroad-highway crossing provides or will provide the only access to land that is the subject of an application, the City Recorder, or designee, shall provide notice to the Oregon Department of Transportation, Rail Division, and the railroad company consistent with ORS 197.794.
K.
The City Recorder, or designee, shall mail notice to transportation agencies, including the Oregon Department of Transportation, when the land use application, if approved, may impact facilities or services under their jurisdiction.
L.
The City Recorder, or designee, shall provide to the applicant at the time the application is submitted an all-weather plastic notice at least two feet by two feet.
M.
At the public hearing, the Planning Commission shall consider the staff report, and the applicant and interested persons may present testimony relevant to the criteria and standards pertinent to the proposal, giving reasons why the application should or should not be approved or proposing modifications they believe are necessary for approval. The Planning Commission shall pass an oral motion directing staff to prepare a Planning Commission order recommending approval, approval with conditions or denial of the application. The order shall include findings addressing the relevant criteria of the Development Code. The Planning Commission Chair or Vice-Chair shall sign the order. The Planning Commission recommendation shall be included in the staff report to the City Council. The Planning Commission order may be provided, but is not required to be provided, to the applicant and those parties who participated orally or in writing at the public hearing.
N.
The City Council shall conduct a public hearing within 60 days of the signing of the Planning Commission order.
O.
At the public hearing the City Council shall consider the staff report, and the applicant and interested persons may present testimony relevant to the criteria and standards pertinent to the proposal, giving reasons why the application should or should not be approved or proposing modifications they believe are necessary for approval. The City Council shall adopt findings addressing the relevant criteria of the Development Code and in doing so may adopt findings different than the Planning Commission's findings. The City Council may delete, add, or modify any of the provisions pertaining to the application, or attach conditions in granting an approval if the City Council determines the conditions are necessary for the approval criteria to be met or to mitigate detrimental effects.
P.
Type C quasi-judicial decisions shall be by passage of a resolution, or an ordinance for amendments to the Comprehensive Plan text or map or to the Development Code text.
Q.
The City Recorder, or designee, shall mail a copy of a Type C decision to the applicant, and a notice of the decision shall be mailed to the applicant, to parties who participated orally or in writing at the public hearing, to parties that requested such notice in writing, and, in accordance with ORS 227.175(10)(a)(A), to any person who submits a letter to the City Recorder that was received by the City Recorder before the notice of the decision was mailed stating they are adversely affected or aggrieved by the decision and the reasons therefor.
R.
The notice of decision shall:
1.
Explain the nature of the application and the proposed use or uses which could be authorized;
2.
Set forth the street address or other easily understood geographical reference to the subject property;
3.
Include the name and telephone number of a City contact person;
4.
State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;
5.
State that the decision may be appealed to the Oregon Land Use Board of Appeals;
6.
State that a notice of intent to appeal the decision to the Oregon Land Use Board of Appeals shall be filed consistent with Oregon Revised Statute 197.830 to 197.845 not later than 21 days after the decision becomes final; and
7.
State that the decision will not become effective until the period for filing a notice of intent to appeal has expired, provided no intent to appeal was filed.
S.
The City Council's decision is final when the resolution or ordinance is signed, and for a resolution it is effective on the day after the period for filing a notice of intent to appeal to the Oregon Land Use Board of Appeals has expired, provided an intent to appeal was not timely filed.
T.
The City Council's decision may be appealed in accordance with Oregon Revised Statute 197.830 to 197.845.
U.
Where the City Council decision is appealed, the effective date is stayed until the final determination on the appeal is rendered.
(DC § 2.040; Ord. 688 § 1, 2010; Ord. 672 § 12, 2011; Ord. 723 § 19, 2023)
§ 12.72.055 Type D procedures.
A.
Type D actions are legislative and are decided by the City Council. The Planning Commission holds a public hearing pursuant to this chapter and then makes a recommendation to the City Council. The City Council holds a public hearing pursuant to this chapter before the decision is made.
1.
Nothing in this Code shall limit the authority of the City Council to make changes in the Comprehensive Plan or Development Code provisions and designations where such changes are legislative actions.
2.
The Planning Commission and City Council shall each hold a public hearing on any legislative matter.
B.
The City Recorder, or designee, shall cause a public notice to be published in a newspaper of general circulation for the Planning Commission hearing and the City Council hearing at least 20 days before each hearing. The City Recorder, or designee, shall provide a copy of the newspaper notice for each of the Planning Commission and City Council hearings to the applicant at the time the notice is provided to the newspaper.
1.
The newspaper notice shall:
a.
Explain the nature of the application;
b.
List the applicable criteria that apply to the application;
c.
Set forth a general geographical reference to the area affected;
d.
State the date, time and location of the hearing;
e.
Include the name and telephone number of a City representative; and
f.
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.
2.
Except where a legislative application would allow a structure less than 35 feet in height and the property is located outside of the runway "approach surface" as defined by the Oregon Department of Aviation, the City Recorder, or designee, shall mail a copy of the newspaper notice on a legislative application to the owner of an airport defined by the Oregon Department of Aviation as a "public use airport" in accordance with ORS 227.175(6).
3.
The City Recorder, or designee, shall mail a copy of the newspaper notice on a legislative application to the Oregon Department of Aviation consistent with ORS 197.183 when the application, if approved, would result in a water impoundment larger than one-quarter acre (10,890 square feet) within 10,000 feet of an airport identified in ORS 836.610(1).
4.
If a railroad-highway crossing provides or will provide the only access to land that is the subject of an application, the City Recorder, or designee, shall mail a copy of the newspaper notice on a legislative application to the Oregon Department of Transportation, Rail Division, and the railroad company consistent with ORS 197.794.
5.
The City Recorder, or designee, shall mail notice to transportation agencies, including the Oregon Department of Transportation, when the land use application, if approved, may impact facilities or services under their jurisdiction.
C.
At the public hearing the Planning Commission shall consider the staff report, and the applicant and interested persons may present testimony relevant to the criteria and standards pertinent to the proposal, giving reasons why the application should or should not be approved or proposing modifications they believe are necessary for approval. The Planning Commission shall pass an oral motion directing staff to prepare a Planning Commission order recommending approval, approval with modifications or denial of the application. The order shall include findings addressing the relevant criteria of the Development Code, applicable Comprehensive Plan Goals and Policies and the applicable Statewide Planning Goals. The Planning Commission Chair or Vice-Chair shall sign the order. The Planning Commission recommendation shall be included in the staff report to the City Council. The Planning Commission order may be provided, but is not required to be provided, to the applicant and those parties who participated orally or in writing at the public hearing.
D.
The City Council shall open a de novo public hearing within 60 days of the signing of the Planning Commission order.
E.
At the public hearing the City Council shall consider the staff report, and the applicant and interested persons may present testimony relevant to the criteria and standards pertinent to the proposal, giving reasons why the application should or should not be approved or proposing modifications they believe are necessary for approval. The City Council shall adopt findings addressing the relevant criteria of the Development Code, applicable Comprehensive Plan Goals and Policies and the applicable Statewide Planning Goals, and in doing so may adopt findings different than the Planning Commission's findings. The City Council may delete, add, or modify any of the provisions pertaining to the application, or make modifications in granting an approval if the City Council determines the modifications are necessary for the approval criteria, Comprehensive Plan policies or goals, or the Statewide Planning Goals to be met, or to mitigate detrimental effects.
F.
Consistent with ORS 227.186(2) a Type D decision to approve a legislative application shall be by passage of an ordinance for amendments to the Comprehensive Plan text or map, or to the Development Code text or zoning districts.
G.
The City Recorder, or designee, shall:
1.
Mail or hand deliver a copy of the adopted decision to the Oregon Department of Land Conservation and Development (DLCD) using the Department's Form within five working days of the Council's adoption of the amendment.
2.
On the same day that the decision and findings are mailed or delivered to DLCD, the local government shall mail or otherwise submit notice to persons who:
3.
The notice shall:
a.
Briefly describe the action taken by the local government;
b.
State the date of the decision;
c.
If delivered by mail, include a certificate of mailing containing a statement signed by the person mailing it indicating the date the notice was deposited in the mail;
d.
List the place where and the time when the amendment to the acknowledged Comprehensive Plan or land use regulation or the new land use regulation, and findings, may be reviewed; and
e.
Explain the requirements for appealing the action of the local government under ORS 197.830 to 197.845.
H.
The City Council's decision approving the application is final when the ordinance is signed, or where the application is denied, when the resolution is signed.
I.
The City Council's decision approving a legislative amendment may be appealed in accordance with ORS 197.830 to 197.845.
J.
Consistent with ORS 197.620(1) a decision to not adopt a legislative amendment or a new land use regulation is not appealable, except where the amendment is necessary to address the requirements of a new or amended State Planning Goal, Oregon Administrative Rule or State Statute. Because a decision to deny a legislative application cannot, generally, be appealed, no ordinance or resolution must be passed, however, a resolution would provide better documentation compared to the meeting minutes.
K.
Where the City Council decision is appealed, the effective date is stayed until the final determination on the appeal is rendered.
(Ord. 672 § 13, 2011; Ord. 723 § 20, 2023)
§ 12.72.060 Type of procedure by application.
Applications submitted to the City shall be processed according to the procedure listed below.
A.
The following changes or activities do not require any application to the City or review:
1.
Change in owner, tenant, or occupant without change in use;
2.
Change in use within a category of use as listed in the relevant section of the Development Code (e.g., 12.12.040, Zoning Districts Permitted and Conditional Uses, and 12.30.030, Mixed Use Permitted Uses);
3.
Operation of a group child day care home as defined by ORS 418.805 or a residential home as defined by ORS 443.400 that does not require a building permit.
B.
A building permit for the following shall be reviewed by the development official without notice or hearing:
1.
Construction, alteration or expansion of detached single-family dwellings and duplexes, except for nonconforming structures and uses which shall be reviewed consistent with Chapter 12.92 before the building permit is issued;
2.
Construction of the first accessory building in a residential zone, except for a nonconforming use which shall be reviewed consistent with Chapter 12.92 before the building permit is issued; and
3.
Accessory dwellings.
C.
Written Comment Procedure. This procedure shall be used to process the following applications:
1.
Change of use of an existing building from one category of use to a different category of use, as listed in Sections 12.12.040, Zoning Districts Permitted and Conditional Uses, 12.12.050, Other Uses, and 12.30.030, Mixed Use Permitted Uses.
2.
Site plan review for an expansion of a building, except for a single family dwelling or duplex, by less than 400 square feet or by less than 25% of the gross floor area, whichever is less.
3.
Floodplain development permit (when factual, policy or legal judgment is not exercised).
4.
Property line adjustment.
D.
Type A Procedure. This procedure shall be used to process the following applications:
1.
Site plan review for an accessory building, except as provided under subsection (B)(2) or under Section 12.62.040 for an accessory dwelling;
2.
Site plan review for an expansion of a building (other than a single-family dwelling or duplex) by more than 400 square feet or by more than 25% of the gross floor area, whichever is less;
3.
Partitions;
4.
Time extension for restoration of a nonconformity allowed in Section 12.92.030(D); and
5.
Floodplain development permit (when factual, policy or legal judgment is exercised).
E.
Type B Procedure. This procedure shall be used to process the following applications:
1.
Conditional use permits for activities listed as conditional uses, Sections 12.12.040, Permitted Uses, 12.12.050, Other Uses, and 12.30.040, Mixed Use Conditional Uses;
2.
Subdivisions;
3.
Variances;
4.
Development on nonconforming lots, expansion or alteration to a nonconforming use;
5.
Interpretation of the Comprehensive Plan or Development Code; and
(DC § 2.100; Ord. 642 § 22, 2003; Ord. 688 § 1, 2010; Ord. 672 § 14, 2011; Ord. 719 §§ 9, 10, 2021; Ord. 721 § 7, 2021; Ord. 728 § 1, 2023)
§ 12.72.070 Responsibility for hearings.
The City Recorder, or designee, shall carry out the following duties pertaining to a hearing in accordance with other provisions of the Development Code and the following:
A.
Schedule and assign the matter for review and hearing;
B.
Conduct the correspondence of the hearing body;
C.
Mail and cause to be published required notices of public hearings consistent with the requirements of Chapter 12.72; and
D.
Provide notice of all hearings and written decisions to persons requesting the same and who are not entitled to such by this chapter, provided the request is in writing and is received by the City Recorder, and that such persons pay the actual cost for the service provided as established by the City (applicants excepted).
(DC § 4.010; Ord. 536 § 2, 1993; Ord. 688 § 1, 2010; Ord. 672 § 15, 2011)
§ 12.72.080 Planning Commission's responsibility for hearing.
City staff shall carry out the following duties pertaining to a hearing before the Planning Commission:
A.
Record the meetings by tape recording, electronic or digital means and retain the recordings in accordance with applicable State Statutes;
B.
Prepare written meeting minutes to include postponements, continuances, decisions on the matters heard and a summary of the reasons given for the decision.
(DC § 4.015; Ord. 672 § 16, 2011)
§ 12.72.090 Notice of hearing.
§ 12.72.100 Availability of documents and additional evidence.
A.
All documents or evidence relied upon by the applicant shall be submitted to the City and the City shall make them available for inspection at no cost and will be provided at reasonable cost.
B.
A land use decision staff report shall be available at least seven days prior to the meeting for a Type A action or hearing for a Type B, C or D action.
C.
If additional documents or evidence are provided by any party, the City may allow a continuance or leave the record open to allow the parties a reasonable opportunity to respond. Any continuance or extension of the record requested by an applicant shall result in a corresponding extension of the time limitation commonly known as the "120-day Rule" set forth in ORS 227.178 and ORS 227.179.
D.
Prior to the conclusion of the hearing, any participant may request an opportunity to present additional information regarding the application. The City shall grant such request as determined by the hearing body by continuing the public hearing or leaving the record open for additional written information.
(DC § 4.025; Ord. 536 § 2, 1993; Ord. 672 § 18, 2011)
§ 12.72.110 Procedure for mailed notice.
A.
In addition to persons receiving notice as required by the matter under consideration, the City Recorder or designee, may provide notice to others believed to be affected, or otherwise represent an interest that may be affected by the proposed development.
B.
Cost of notice mailings shall be included in the development application fee.
(DC § 4.030; Ord. 672 § 19, 2011)
§ 12.72.120 Challenges to impartiality.
Except for legislative hearings, a party to a hearing may challenge the qualifications of a member of the hearing body to participate in the hearing and decision regarding the matter. The challenge shall state by affidavit the facts relied upon by the challenger relating to a person's bias, prejudgment, personal interest, or other facts from which the challenger has concluded that the member of the hearing body cannot participate in an impartial manner. A challenge shall be delivered by personal service to the City Recorder not less than 48 hours preceding the time set for public hearing. The City Recorder shall attempt to notify the person whose qualifications are challenged prior to the meeting. The challenge shall be incorporated into the record at the time of hearing. The challenge shall be decided by the hearing body.
(DC § 4.040; Ord. 672 § 20, 2011)
§ 12.72.130 Disqualification.
No member of a hearing body shall participate in their official capacity as a Planning Commissioner or City Councilor in the public hearing phase or the deliberation phase of the decision making process and shall not vote on the proposal when any of the following conditions exist:
A.
A violation of the Oregon Revised Statutes or Oregon Administrative Rules regarding a conflict of interest exists;
B.
If a quorum of a hearing body abstains or is disqualified, all members present after stating their reasons for abstention or disqualification shall, by so doing, be requalified and proceed to resolve the issues;
C.
Except for legislative hearings, any members absent during the presentation of evidence in a hearing may not participate in the deliberations or final decision regarding the matter of the hearing unless the member has reviewed the evidence received and so states on the record.
(DC § 4.050; Ord. 672 § 21, 2011)
§ 12.72.140 Burden and nature of proof.
The burden of proof is upon the applicant. The more significant the change or the greater the impact of the proposal, the greater is the burden upon the applicant. The proposal must be supported by proof that it conforms to the approval criteria listed in the Development Code, Comprehensive Plan or Statewide Planning Goals, as applicable.
(DC § 4.100; Ord. 672 § 22, 2011)
§ 12.72.145 Written comments.
Interested persons may submit written recommendations and comments in advance of the hearing and this information shall be available for public inspection. At the hearing, written recommendations and other information will be received and oral statements will be permitted.
(Ord. 643 § 51, 2004)
§ 12.72.150 Order of proceeding.
The order of proceedings for a hearing will depend, in part, on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate:
B.
Before receiving information on the issue, the following shall be determined:
C.
The person presiding at the hearing may take official notice of known information related to the issued, such as the following:
D.
Matters officially noticed need not be established by evidence and may be considered by the hearing body in the determination of the matters. Parties requesting notice shall do so on the record; provided, that the hearing body may take notice of matters listed in subsection B of this section if stated for the record. Any matter given official notice may be rebutted.
E.
The hearing body may view the area in dispute with or without notification to the parties, but shall place the time, manner and circumstances of such view in the record.
F.
Information shall be received from the staff and from proponents and opponents. The presiding officer may approve or deny a request to ask a question from a person attending the hearing. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.
G.
When the hearing has ended, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided.
(DC § 4.110; Ord. 536 § 2, 1993)
§ 12.72.160 Decision.
Following the hearing procedure described above, the hearing body shall approve, amend or deny the application; or if the hearing is in the nature of an appeal, either affirm, modify, reverse or remand the decision that is on appeal. The decision shall also be subject to the following time constraints:
A.
The City shall take final action an any permit or zone change application, including all appeals, within 120 days of the filing with the city recorder of a completed application.
B.
If an application for a permit or zone change is incomplete, the city recorder, or his or her designate shall notify the applicant of exactly what information is missing within 30 days of receipt of the application and allow the applicant to submit the missing information. The application shall be deemed complete upon receipt by the city recorder of the indicated missing information. If the applicant refuses to submit the missing information, the application shall be deemed complete on the thirty-first day after the City first received the application.
C.
If the application was complete when first submitted or the applicant submits the requested information within 180 days of the date the application was first submitted, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted.
D.
The 120 day period may be extended for a reasonable period of time at the request of the applicant.
E.
The 120 day period applies only to decisions wholly within the authority and control of the City.
F.
The 120 day period does not apply to an amendment of the Comprehensive Plan or land use regulations or adoption of a new land use regulation that was forwarded to the director under ORS 197.610 (1).
G.
If the City does not take final action on the application for a permit or zone change within 120 days after the application is deemed complete, the applicant may apply in the circuit court of Marion County for a writ of mandamus to compel the City to issue the approval. The writ shall be issued unless the City shows that the approval would violate a substantive provision of the Comprehensive Plan or land use regulation.
(DC § 4.120)
§ 12.72.170 Findings.
The hearing body shall adopt findings based upon the applicant's report, staff report and/or testimony presented at the hearing. The staff report and findings shall include:
A.
A statement of the applicable criteria and standards of the Development Code against which the proposal was tested, and what is required to achieve compliance with the criteria and standards;
B.
A statement of the facts establishing compliance or noncompliance with each applicable criteria and assurance of compliance with applicable standards;
C.
The reasons for a conclusion to approve or deny;
D.
The decision or recommendation to deny or approve the proposed change with or without conditions.
(DC § 4.130)
§ 12.72.180 Record of proceedings.
When possible, the secretary to the hearing body will be present at each hearing and shall cause the proceedings to be recorded. Should it not be possible for the secretary to be present, proceedings will be recorded electronically and minutes will be taken from the tape.
A.
Testimony shall be transcribed at the cost of the requesting party if required for judicial review.
B.
The hearing body shall, where practicable, retain as part of the hearing record each item of physical or documentary evidence presented and shall have the items marked to show the identity of the person offering the same and whether presented on behalf of a proponent or opponent. Exhibits received into evidence shall be retained in the hearing file until after all appeal periods have expired, at which time the exhibits may be released to the person identified thereon or otherwise disposed of.
C.
The staff report and decision shall be included in the record.
D.
A person shall have access to the record of the proceedings at reasonable times, places and circumstances. A person shall be entitled to make copies of the record at the person's own expense.
(DC § 4.140)
§ 12.72.190 Appeals.
A.
A decision of the Planning Commission may be appealed to the City Council by an affected party by filing a notice of appeal within 15 days of the decision. The notice of appeal shall indicate the decision that is being appealed.
B.
An applicant or appellant shall be required to raise any issue before the Planning Commission or the City Council with sufficient specificity so as to have afforded the commission or council, and the applicant if appropriate, an adequate opportunity to respond to and resolve each issue.
C.
At its discretion, the Planning Commission or City Council may limit an appeal or review to a review of the record and a hearing for receipt of oral arguments regarding the record, or may accept new evidence and testimony. If new evidence is to be received, a hearing shall be conducted pursuant to this chapter after notice has been provided to the affected parties.
(DC § 4.150)
§ 12.72.200 Appeals of expedited land division.
§ 12.72.210 Requirements of notice of appeal.
A notice of appeal shall contain:
A.
An identification of the decision sought to be reviewed, including the date of the decision;
B.
A statement of the interest of the person seeking review and that he/she was a party to the initial proceedings;
C.
The specific grounds relied upon for review;
D.
If de novo review or review by additional testimony and other evidence is requested, a statement relating the request to the factors listed below.
(DC § 4.160)
§ 12.72.220 Scope of review.
The reviewing body shall in all appeal cases consider the record of the decision being appealed and shall provide that a hearing will be conducted to afford interested parties an opportunity to be heard.
(DC § 4.170)
§ 12.72.230 Review of the record.
A.
Unless otherwise provided for by the reviewing body, review of the decision on appeal shall be confined to the record of the proceeding as specified in this section. The record shall include:
B.
The reviewing body shall make its decision based upon the record after first granting the right of argument, but not the introduction of additional evidence to any party who has filed a notice of appeal.
(DC § 4.180)
§ 12.72.240 Review consisting of additional evidence or de novo review.
A.
The reviewing body may hear the entire matter de novo; or it may admit additional testimony and other evidence without holding a de novo hearing if it is satisfied that the additional testimony or other evidence could not reasonably have been presented at the prior hearing. The reviewing body shall consider all of the following in making such a decision:
B.
"De novo hearing" shall mean a hearing by the review body as if the action had not been previously heard and as if no decision had been rendered, except that all testimony of the previous consideration shall be included in the record of the review.
(DC § 4.190)
§ 12.72.250 Decision of the reviewing body.
A.
Upon review, the reviewing body may affirm, reverse or modify in whole or part a determination or requirement of the decision that is under review. When the reviewing body modifies or renders a decision that reverses a decision of the hearing body, the review body shall set forth its findings and state its reasons for taking the action.
B.
When the reviewing body elects to remand the matter back to the hearing body for such further consideration as the reviewing body deems necessary, it shall include a statement explaining the error found to have materially affected the outcome of the original decision and the action necessary to rectify such.
C.
Action by the reviewing body shall be decided by a majority vote of its members present at the meeting at which review was made and shall be taken either at that or any subsequent meeting. The reviewing body shall render its decision no later than 90 days after the filing of the request for review.
(DC § 4.200)