Lincoln City City Zoning Code
CHAPTER 17
76 PROCEDURES
§ 17.76.010 Purpose.
A.
Purpose. The purpose of this chapter is to establish standard decision-making procedures for review and processing land use applications and permits, for the following reasons:
1.
To make the review process clear and understandable for applicants and property owners;
2.
To enable the public to effectively participate in the local decision-making process; and
3.
To facilitate timely review of land use applications and permits by the city.
(Ord. 2020-15 § 1)
§ 17.76.020 Summary of procedure types.
A.
General. All land use applications and approvals shall be decided by using Type I, II, III, or IV procedures. The procedure types govern the decision-making process for that application.
B.
Description of Procedure Types. There are four types of decision-making procedures:
1.
Type I Procedure. Type I procedures apply to ministerial permits and applications. Decisions on ministerial permits and applications are made by the director, based on approval criteria that do not require exercise of policy or legal judgment.
2.
Type II Procedure. Type II procedures apply to administrative permits and applications. Decisions on administrative applications are made by the director, based on reasonably objective criteria that require only limited discretion in applying approval criteria. Type II procedures require public notice and an opportunity for appeal, but do not require a public hearing.
3.
Type III Procedure. Type III procedures apply to quasi-judicial applications. Decisions on quasi-judicial applications are made by either the planning commission or the city council, and require substantial exercise of discretion and judgment in applying approval criteria. Type III procedures require public notice and one or more public hearings.
4.
Type IV Procedure. Type IV procedures apply to legislative matters. Legislative decisions are made by the city council, taking into consideration a recommendation from the planning commission, and involve the adoption or amendment of policy by ordinance. Legislative decisions may also apply to applications involving a large geographic area containing many properties. Type IV procedures require public notice and one or more public hearings.
C.
Determination of Proper Procedure Type. Unless already specified in Table 17.76.020-1, the director shall determine whether an application is processed as a Type I, II, III, or IV procedure based on the descriptions in subsection (B) of this section. Questions regarding the appropriate procedure shall be resolved in favor of the procedure type providing the widest notice and opportunity to participate.
D.
Consolidated Reviews.
1.
Multiple Type II or III applications for a single proposal shall be consolidated and processed concurrently under the highest numbered procedure required for any part of the application. For example, a proposal requesting both development review (Type II) approval and conditional use permit (Type III) approval is processed concurrently as a Type III procedure.
2.
When consolidated, the following processes shall be applied:
a.
Separate responses to the applicable criteria shall be submitted for each application;
b.
The public notice shall identify each application to be decided; and
c.
Separate findings and decisions shall be made on each application.
3.
If the consolidated proposal includes an application for a comprehensive plan map amendment, the final decision on the plan map amendment shall precede any decision on a proposed zone change and all other decisions on a proposed development. Similarly, the final decision on a zone change shall precede a decision on proposed development review or any other action.
E.
Summary Table. Table 17.76.020-1 summarizes land use applications and permits by procedure.
F.
Application Elevation. Notwithstanding Table 17.76.020-1 or the director's determination, an applicant may request to elevate a Type I or II application to a higher numbered procedure type, and the request shall be granted if the director determines that the statutory timelines for reaching a final decision can be met.
G.
Application of Days in Procedures. Timelines in this chapter are expressed in 24-hour calendar days, unless the deadline for an action falls on a weekend or legal holiday, in which case the deadline will be considered to be the (calendar) day after the weekend or legal holiday.
Table 17.76.020-1: Land Use Applications and Procedure Types | ||
|---|---|---|
Application | Procedure Type | Review Authority |
Administrative adjustment | Type II | Director |
Adjustment – Design standard | Type II | Director |
Annexation | Type IV | Planning commission recommends City council decides |
Appeal | Type III | Planning commission |
Bed and breakfast accommodations | Type I | Director |
Comprehensive plan map amendment | Type III or IV | Planning commission recommends City council decides regardless of Type III or Type IV |
Conditional use permit application | Type III | Planning commission |
Development review application | Type II | Director |
Director's interpretation | Type II | Director |
Extensions | See 17.76.140 | Director |
Geologic hazard report and/or beach protective structure review | Type II | Director |
Home occupation application | Type I | Director |
Mobile food unit application | Type I | Director |
Modification of approved applications, plans, or conditions of approval | Type II or Type III, based upon the procedure type of the original application | Director if Type II Planning commission if Type III |
Natural resources development review | Type II | Director |
Natural resources development variance | Type III | Planning Commission |
Nonconforming – Determining that nonconforming use, site, or structure is lawful | Type II | Director |
Nonconforming – Restoration of a substantially damaged lawful, nonconforming structure or use | Type II – Single-unit dwelling or duplex | Director |
Type III – Multi-unit dwelling, mixed use, or commercial | Planning commission | |
Partition | Type II | Director |
Planned development | ||
Preliminary master plan | Type III | Planning commission |
Final master plan | Type I | Director |
Property line adjustment | Type II | Director |
Subdivision | ||
Preliminary plat | Type III | Planning commission |
Final plat | Type I | Director |
Text amendment | Type IV | Planning commission recommends City council decides |
Tree permit | Type I | Director |
Vacation rental dwelling | Type II | Director |
Variance | Type III | Planning commission |
Zone change | Type III or IV | Planning commission recommends City council decides Regardless of Type III or Type IV |
Zoning sign permit | Type I | Director |
(Ord. 2020-15 § 1; Ord. 2021-17 § 3; Ord. 2022-15 § 45; Ord. 2022-36 § 5)
§ 17.76.030 Type I procedure.
A.
General Description. Type I procedures apply to ministerial permits. Decisions are made by the director, based on clear and objective approval criteria, and do not require interpretation or the exercise of policy or legal judgment.
B.
When Applicable. Table 17.76.020-1 identifies Type I applications. Applications not listed in Table 17.76.020-1 may be identified as Type I by the director based on the general description in this section.
C.
Pre-Application Conference. A pre-application conference is not required for Type I applications.
D.
Application Requirements. Type I applications shall:
1.
Be submitted on application forms provided by the department and shall include all information, exhibits, plans, reports, and signatures requested on the application form.
2.
Be accompanied by the required fee adopted by city council resolution.
3.
Be subject to the completeness review procedures set forth in LCMC § 17.76.110(D) and (E).
E.
Public Notice. Type I applications do not require public notice.
F.
Review Authority. The review authority for Type I applications shall be the director. The director shall approve, approve with conditions, or deny a Type I application within 15 days of being deemed complete.
G.
Notice of Decision. The notice of decision consists of the approved permit or application signed by the director or a copy of the permit or application marked "denied" and signed by the director.
H.
Effective Date. A Type I decision is final on the date it is signed by the director.
(Ord. 2020-15 § 1)
§ 17.76.040 Type II procedure.
A.
General Description. Type II procedures apply to administrative permits and applications. Decisions on administrative applications are made by the director, based on reasonably objective approval criteria that require only limited discretion. Type II procedures require public notice and an opportunity for appeal, but do not require a public hearing or a public meeting.
B.
When Applicable. Table 17.76.020-1 identifies Type II applications. Applications not listed in Table 17.76.020-1 may be identified as Type II by the director based on the general description in this section.
C.
Pre-Application Conference. A pre-application conference is not required for Type II procedures.
D.
Application Requirements. Type II applications shall:
1.
Be submitted on application forms provided by the department and shall include all information, exhibits, plans, reports, and signatures requested on the application forms.
2.
Be accompanied by the required fee as adopted by city council resolution.
3.
Be subject to the completeness review procedure set forth in LCMC § 17.76.110(D) and (E).
E.
Public Notice of Application and Comment Period. Type II applications require public notice of receipt of a complete application with an opportunity for area property owners and other interested parties to provide written comment prior to issuance of the decision.
1.
After a Type II application has been accepted as complete under LCMC § 17.76.110(E), the department shall mail a written public notice to the following:
a.
The applicant and applicant's representative;
b.
The owners of record of the subject property;
c.
Property owners of record within 250 feet of the perimeter property line of the property or properties subject to the application, using the most recently provided property tax assessment roll of the Lincoln County assessor's office as provided to the city to determine property owners of record; and
d.
Any neighborhood or community organization or association recognized by the governing body and whose boundaries include the site.
2.
The written public notice shall include the following:
a.
A brief description of the request;
b.
The applicable criteria from the ordinance and the comprehensive plan that apply to the application at issue;
c.
The street address or other easily understood geographical reference to the subject property;
d.
Statement that failure of an issue to be raised in writing prior to the expiration of the public comment period, or failure to provide statements or evidence sufficient to afford the review authority an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals (LUBA);
e.
The name of a department staff member to contact and the telephone number where additional information may be obtained; and
f.
Statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant, and applicable criteria are available for inspection at no cost and will be provided at reasonable cost.
3.
The failure of a property owner to receive notice does not invalidate the land use action if the notice was sent.
4.
Public notices for receipt of complete Type II applications shall include a written comment period of 14 days from the date the notice was mailed for the submission of written comments before the decision is issued.
F.
Review Authority. The review authority for Type II applications shall be the director.
G.
Decision.
1.
Based on the criteria and facts contained within the record, the director shall approve, approve with conditions, or deny the request. The decision shall address all relevant approval criteria and consider written comments submitted before the close of the comment period.
2.
The decision is considered final for purposes of appeal on the date the notice of the decision is mailed. Within seven days after the director has issued the decision, a notice of the decision shall be sent by mail to the following:
a.
The applicant and applicant's representative;
b.
The owners of record of the subject property;
c.
Any person, group, agency, association, or organization who submitted written comments during the comment period; and
d.
Any person, group, agency, association, or organization who submitted a written request to receive notice of the decision.
3.
The notice of the decision shall include the following:
a.
A brief description of the request;
b.
A statement of the decision and the applicable approval criteria used in making the decision;
c.
The street address or other easily understood geographical reference to the subject property;
d.
A statement that the decision is final, unless appealed as provided in LCMC § 17.76.180;
e.
The requirements for filing an appeal of the decision, including a statement of the date and time by which an appeal must be filed;
f.
A statement that the complete file is available for review; and
g.
The name of a department staff member to contact and the telephone number where additional information may be obtained.
H.
Appeal.
1.
The decision may be appealed by the applicant, property owner of the subject property, or any person who provided written comments during the public comment period prior to its closure.
2.
The decision shall become final unless an appeal is filed.
3.
The review authority for an appeal of a Type II application is the planning commission.
4.
The appeal shall follow the requirements and procedures of LCMC § 17.76.180, and shall be a hearing de novo. The appeal shall not be limited to the application materials, evidence and other documentation, and specific issues raised in the review leading up to the Type III decision, but may include other relevant evidence and arguments. The hearing appeal body may allow additional evidence, testimony, or argument concerning any applicable standard, criterion, condition, or issue.
5.
The decision of the review authority on the appeal shall be the final decision of the city. Any further appeal shall be made to the Land Use Board of Appeals (LUBA).
(Ord. 2020-15 § 1; Ord. 2022-15 §§ 46, 47)
§ 17.76.050 Type III procedure.
A.
General Description. Type III procedures apply to quasi-judicial permits and applications. Decisions on quasi-judicial permits and applications are made by either the planning commission or the city council, and require substantial exercise of discretion and judgment in applying approval criteria. Type III procedures require public notice and one or more public hearings.
B.
When Applicable. Table 17.76.020-1 identifies Type III applications. Applications not listed on Table 17.76.020-1 may be identified as Type III by the director based on the general description in this section.
C.
Pre-Application Conference. A pre-application conference is not required prior to application submittal of a Type III application, but is strongly encouraged. Guidelines for pre-application conferences are set forth in LCMC § 17.76.090.
D.
Application Requirements. Type III applications shall:
1.
Be submitted on application forms provided by the department and shall include all information, exhibits, plans, reports, and signatures requested on the application forms.
2.
Be accompanied by the required fee as adopted by city council resolution.
3.
Be subject to the completeness review procedure set forth in LCMC § 17.76.110(D) and (E).
E.
Notice of Public Hearing.
1.
After a Type III application has been accepted as complete under LCMC § 17.76.110(E), the department shall mail a written notice of public hearing to the following:
a.
The applicant and applicant's representative;
b.
Owner of record of the subject property;
c.
Property owners of record within 500 feet of the perimeter property line of the property or properties subject to the application, using the most recently provided property tax assessment roll of the Lincoln County assessor's office as provided to the city to determine property owners of record;
d.
Any neighborhood or community organization recognized by the governing body and whose boundaries include the site;
e.
At the discretion of the applicant, the department also shall provide notice to the Oregon Department of Land Conservation and Development.
2.
The notice of public hearing provided shall include the following:
a.
A brief description of the request;
b.
A list of the applicable criteria from the ordinance and the comprehensive plan that apply to the application at issue;
c.
The street address or other easily understood geographical reference to the subject property;
d.
The date, time, and location of the hearing;
e.
A statement 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 Board based on that issue;
f.
The name of a department staff member to contact and the telephone number where additional information may be obtained;
g.
A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant, and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;
h.
A statement that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and will be provided at reasonable cost; and
i.
A general explanation of the requirements for submission of testimony and the procedure for conduct of hearings.
F.
Public notices for Type III applications shall be mailed a minimum of 20 days prior to the first evidentiary public hearing. The failure of a property owner to receive notice does not invalidate the land use action if the notice was sent. Notice of the public hearing for Type III applications shall also be published in a newspaper of general circulation in the city, at least 10 days but not more than 21 days before the first scheduled public hearing on the proposal.
G.
Decision Authority. Table 17.76.020-1 identifies the decision authority for each Type III application.
H.
Public Hearing Procedure. The public hearing shall be conducted in accordance with the procedures set forth in LCMC § 17.76.160.
I.
Notice of the Decision.
1.
Following a decision on the application, a written decision in the form of a final order shall be prepared by the department. The final order shall include the following information:
a.
The decision to deny or to approve the application and, if approved, any conditions of approval necessary to ensure compliance with applicable criteria;
b.
A list of the applicable approval criteria by code section number;
c.
A statement or summary of the facts upon which the decision authority relied to determine whether the application satisfied or failed to satisfy the applicable approval criteria and to justify any conditions of approval. The decision authority may adopt or incorporate by reference a staff report or written findings prepared by any party to the proceeding into the final order to satisfy this requirement; and
d.
A statement of conclusions based on the facts and findings.
2.
A notice of the decision, including the full final order, shall be mailed to the applicant and to all parties of record within seven days of the date of signing the final order. The decision is final for purposes of appeal on the date the notice of the decision is mailed. Failure of any person to receive mailed notice shall not invalidate the decision; provided, that a good faith effort was made to mail the notice.
3.
The notice of the decision shall include the following:
a.
A summary of the decision and a list of any conditions of approval;
b.
A description of the subject site reasonably sufficient to inform the reader of its location, including assessor's tax map, tax lot number, and site address if available;
c.
A statement that the decision is final unless appealed as provided in LCMC § 17.76.180;
d.
The requirements for filing an appeal of the decision, including a statement of the date and time by which an appeal must be filed; and
e.
A statement noting that only those persons who made an appearance of record, either in person or by written comment, are entitled to appeal the decision.
4.
Final Recommendation on Comprehensive Plan Map Amendments and Zone Changes. A final recommendation from the planning commission is issued to the city council for Type III comprehensive plan map or zone changes. Notice of the public hearing for Type III comprehensive plan map or zone changes before city council is done concurrently with the notice of public hearing before the planning commission.
J.
Appeal.
1.
The decision of the planning commission may be appealed to the city council. Only the applicant, property owner, persons who made an appearance of record at the public hearing before the review authority, or persons who submitted written comment for consideration of the review authority have standing to appeal.
2.
The appeal shall follow the requirements and procedures of LCMC § 17.76.180, and shall be a hearing de novo. The appeal shall not be limited to the application materials, evidence and other documentation, and specific issues raised in the review leading up to the Type III decision, but may include other relevant evidence and arguments. The hearing appeal body may allow additional evidence, testimony, or argument concerning any applicable standard, criterion, condition, or issue.
3.
The city council decision shall be the final local decision. Any further appeal shall be made to LUBA.
(Ord. 2020-15 § 1; Ord. 2022-15 §§ 48 – 50)
§ 17.76.060 Type IV procedure (legislative).
A.
General Description. Type IV procedures apply to legislative matters. Legislative decisions are made by the city council and involve the adoption or amendment of policy by ordinance. Legislative decisions may also apply to applications involving a geographic area containing many properties. Type IV procedures require general public notice and a public hearing.
B.
When Applicable. Table 17.76.020-1 identifies Type IV applications. Applications not listed in Table 17.76.020-1 may be identified as Type IV by the director based on the general description in this section.
C.
Pre-Application Conference. Pre-application conferences are not required for Type IV applications.
D.
Application Requirements.
1.
Application Forms. Legislative applications must be made on forms provided by the department.
2.
Submittal Information. The application shall contain all of the following information:
a.
The information requested on the application form;
b.
A map and/or plan addressing the appropriate criteria and standards in sufficient detail for review and decision (as applicable); and
c.
The required fee as adopted by city council resolution, except when the city initiates the request.
E.
Mailed Notice of Public Hearing. The notification procedure for Type IV requests must conform to state land use laws (ORS 227.175) and as follows:
1.
In accordance with procedures required by the Oregon Department of Land Conservation and Development (DLCD), the department shall notify DLCD of legislative amendments at least 35 days before the first public hearing at which public testimony or new evidence will be received.
2.
At least 20 days, but not more than 40 days, before the date of the first public hearing, a notice shall be prepared in conformance with ORS 227.175 and mailed to:
a.
Each owner whose property would be directly affected by the proposal (e.g., rezoning or a change from one comprehensive plan land use designation to another); see ORS 227.186 for instructions;
b.
Any affected governmental agency;
c.
Any person who requests notice in writing; and
d.
For a zone change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175.
F.
Published Notice of Public Hearing. Notice of the public hearings for Type IV applications shall be published two times in a newspaper of general circulation in the city, at least 10 days but not more than 21 days before the first scheduled public hearing on the proposal.
G.
Public Hearing Procedure. The planning commission shall conduct the public hearing on Type IV applications in accordance with the procedures set forth in LCMC § 17.76.160. In addition to the public hearing held by the planning commission, the city council shall also conduct a public hearing on Type IV applications.
H.
Recommendation Authority.
1.
Following receipt of testimony and deliberation at the public hearing held before the planning commission, the planning commission shall provide a recommendation to the City council for all Type IV applications. The planning commission shall recommend that the city council approve or deny the proposed amendments, with or without changes. The planning commission's recommendation shall be issued as a final recommendation, and shall include findings supporting the recommendation, based on public testimony and the application's success or failure to satisfy the applicable criteria.
2.
Decision Authority. Upon receiving the planning commission's final recommendation, the city council shall hold a public hearing on the Type IV application.
I.
Notice of Decision.
1.
Not more than seven days after the date the city council approves a Type IV application, the director shall mail a notice of decision to persons of record who appeared orally or in writing before either the planning commission or the city council.
2.
The director shall also notify DLCD of the decision within the timeframe and method prescribed by DLCD.
3.
The city council's decision is final for purposes of appeal on the date the notice is mailed.
J.
Appeal. The final decision of the city council to approve or deny a Type IV application may be appealed to the Land Use Board of Appeals (LUBA) only when such appeal is authorized under applicable state law.
(Ord. 2020-15 § 1; Ord. 2022-15 § 51)
§ 17.76.070 Reserved.
(Ord. 2020-15 § 1)
§ 17.76.080 Initiation of an application.
Applications may be initiated by either the property owner of record or the contract purchaser of the subject property, or any person authorized in writing to act as agent of the owner or contract purchaser. All applications shall be signed by all property owners of record as shown on the most current recorded deed, as well as all contract purchasers if applicable, prior to submittal. Type IV applications may also be initiated by the city council by motion or by the planning director.
(Ord. 2020-15 § 1; Ord. 2022-07 § 1)
§ 17.76.085 Withdrawal of an application.
A.
An application may be withdrawn by the applicant, applicant's representative, or property owner of record or contract purchaser at any time prior to adoption of a final city decision if the director determines that:
1.
The applicant, applicant's representative, and property owners or contract purchasers have all consented in writing to withdraw the application; and
2.
The application is not intended to correct an identified code violation on the subject property which would remain unresolved were the application withdrawn.
B.
The city may withdraw a city-initiated application at any time.
C.
Fees for withdrawn applications are not refundable.
(Ord. 2020-15 § 1)
§ 17.76.090 Pre-application conference.
A.
Purpose. The purposes of pre-application conferences are:
1.
To acquaint property owners and applicants with the general requirements of the code, including applicable approval criteria; and
2.
To advise the property owners and applicants of previous land use applications associated with the subject property.
B.
Pre-application conferences are strongly advised for all applications, but are not required.
C.
Pre-application conferences are intended to be advisory only, and are specifically not intended to be an exhaustive review of all potential issues. Participation in a pre-application conference does not absolve the property owners or applicants of any responsibility for legal or technical due diligence investigation.
D.
Participation in a pre-application conference does not bind the city to provision of any level of service or approval, nor does it preclude the city from enforcing all applicable regulations or from applying regulations differently than may have been indicated at the pre-application conference.
E.
Pre-Application Conference Guidelines.
1.
Applicants should provide any available plans for the proposed development. Any plans provided to the city before, during, or after the pre-application conference may be considered public information, unless specifically requested in writing by the property owners or applicants to remain confidential.
2.
The director will coordinate attendance by city staff responsible for development review and infrastructure and building construction requirements as applicable.
3.
Pre-application conferences are not open to the general public and are not public meetings. Pre-application conferences are not recorded.
4.
The city may or may not provide a brief written summary of the pre-application conference. If provided, the purpose of the written summary is to provide a preliminary assessment of a proposal and shall not be construed as a recommendation by the city or by any other outside agency or service provider on the merits of the proposal.
(Ord. 2020-15 § 1)
§ 17.76.100 Reserved.
(Ord. 2020-15 § 1)
§ 17.76.110 Application submittal and completeness review.
A.
Application Forms and Checklists.
1.
Forms for the submittal of all land use applications shall be available in the department. The department shall ensure that these forms comply with applicable standards in state law and city code.
2.
Land use applications may include checklists or information sheets detailing specific information and plans to be contained in that application, including document formats.
B.
Fees. A fee schedule for land use applications and other department services provided by the city shall be adopted by resolution of the city council. Required fees shall be paid at the time of application submittal or at the time of request for a particular service.
C.
Application Submittal. Land use applications or permits shall be submitted on the appropriate forms from the department.
D.
Application Materials. All of the following items must be submitted to initiate the 30-day completeness review of the application, and all information supplied shall be complete and correct as to the applicable facts:
1.
Completed application form, including the signature of all property owners shown on the most current recorded deed, and, if applicable, the signature of all prospective purchases shown on the purchase contract;
2.
Payment in full of the appropriate land use application or permit fee(s), based on the fee schedule in effect on the date of application submittal;
3.
A written narrative listing the criteria and development standards applicable and relevant to the application and stating the evidence demonstrating the application's compliance with each criterion and standard. If compliance with a criterion or standard is stated to be demonstrated in a plan, drawing, or technical study in the application, the citation in the narrative to the demonstration must be sufficiently specific to allow convenient reference;
4.
Required plans and drawings for the particular type of application as noted on the application checklist. Such plans generally include, but are not limited to, the following:
a.
Existing conditions plan;
b.
Site plan;
c.
Building elevations;
d.
Landscaping plan;
e.
Exterior lighting plan;
f.
Grading and erosion control plan; and
g.
Public infrastructure and utilities plan;
5.
Required technical reports, analyses, assessments, etc., for the particular type of application as noted on the application checklist (e.g., traffic impact analysis, floodplain or wetland delineation, significant natural resource report, geotechnical report, tree survey, noise study, etc.) and/or as required by city code;
6.
Upon written request by the applicant prior to application submittal, the director may modify application requirements based on the nature of the proposed application, development, site, or other factors. Any such waiver must be specifically approved by the director in writing prior to submittal.
E.
Determination of Completeness and Commencement of Review.
1.
To be deemed complete, an application must include all materials, information, and fees listed in subsections (D)(1) through (D)(6) of this section, unless a specific waiver has been granted by the director under subsection (D)(6) of this section.
2.
The department shall review the application submittal and advise the applicant in writing whether the application is complete or incomplete within 30 days after the department receives the submittal.
3.
If the application is deemed complete, the completeness notice shall advise the applicant of the commencement of application review and the date of the public hearing if required by the particular application.
4.
Determination that an application is complete indicates only that the application is ready for review on its merits, not that the city will make a favorable decision on the application.
5.
If an application is deemed to be complete upon initial submittal, approval or denial of the application shall be based on the code standards and criteria that were in effect on the date of submittal. See subsection (F)(4) of this section for incomplete applications upon initial submittal.
6.
Pursuant to ORS 227.178, the city will reach a final decision on an application within 120 days from the date the application is determined to be or deemed complete unless the applicant agrees to extend the 120-day timeline or unless state law provides otherwise.
7.
Pursuant to ORS 227.178, the 120-day timeline may be extended at the written request of the applicant. The total of all extensions may not exceed 245 days beyond the first 120-day extension, or 365 days from the date the application was deemed complete.
F.
Determination of Incompleteness.
1.
If an application is determined to be incomplete, that determination shall be based solely on failure to pay required fees, failure of the applicant's narrative to address the relevant approval criteria or development standards, or failure to supply the required signatures, information, documents listed on the application, application checklist, or in city code. A determination of incompleteness shall not be based on differences of opinion as to the quality or accuracy of the application.
2.
If an application is deemed incomplete, the incompleteness notice shall list what information is missing and allow the applicant to submit the missing information. The incompleteness notice shall also include a statement to the applicant of the need to indicate to the director whether or not the applicant intends to amend or supplement the application.
3.
If an application is deemed incomplete upon initial submittal, it shall be deemed complete for purposes of this section when the city receives the following:
a.
All of the missing information listed in the completeness notice; or
b.
Some of the missing information, together with written notice from the applicant that no other information will be provided, and a request to proceed with review of the application; or
c.
Written notice from the applicant that none of the missing information will be provided, and a request to proceed with review of the application.
4.
If the applicant submits the additional information within 180 days of the date the application was first submitted, approval or denial of the application shall be based on the code standards and criteria that were in effect at the time the application was first submitted.
5.
The application will be deemed void if it has been on file with the city for 181 days or more and the applicant has not submitted, pursuant to subsection (F)(3) of this section, some or all of the required additional information and/or a request to proceed with application review.
(Ord. 2020-15 § 1)
§ 17.76.120 Conditions of approval.
A.
Imposition of Conditions. Conditions may be imposed on any Type I, II or III approval, in accordance with relevant city code, to ensure that the proposal complies with the applicable approval criteria and code standards and requirements.
B.
Nexus and Proportionality of Conditions. All conditions imposed must have a clear nexus with the development's impacts. Certain conditions must also be proportional to the development's impacts if the conditions affect interests in real property.
C.
Challenge to Condition(s). If an applicant asserts that he/she cannot legally be required, as a condition of land use approval, to provide improvements or real property interests at the level required by the code, the applicant shall provide a development impact analysis report, prepared by a qualified civil or traffic engineer, as appropriate, showing:
1.
The estimated extent to which the improvements will be used by persons served by the building or development, whether the use is for safety or for convenience;
2.
The estimated level of improvements needed to meet the estimated extent of use by persons served by the building or development;
3.
The estimated impact of the building or development on the public infrastructure system of which the improvements will be a part; and
4.
The estimated level of improvements needed to mitigate the estimated impact on the public infrastructure system.
D.
Development Impact Analysis Consideration. The development impact analysis shall be considered by the review authority in making a determination whether the condition(s) and required improvements are reasonably related and roughly proportional to the impacts of the proposed development.
E.
Modification of Conditions. Modification of conditions of approval may be sought by any of the following methods:
1.
Upon appeal of the original application, pursuant to LCMC § 17.76.180(E); or
2.
As a new development application.
F.
Violation of Conditions of Approval. Failure to fulfill any conditions of approval within any time limits provided shall constitute a violation of the code and the subject approval will be subject to code enforcement proceedings. Enforcement proceedings may include revocation of the approval.
(Ord. 2020-15 § 1)
§ 17.76.130 Effective date of decision.
A.
Land use action and permit decision on Type I procedures are effective on the date of the director's decision approving or denying the application or permit, as signified by the dated signature of the director. Land use action and permit decisions on Type II and III procedures shall become effective the day after the appeal period expires if no appeal is filed. Type IV legislative actions shall become effective 30 days after the date of adoption, unless specified otherwise in the adopting ordinance.
B.
If an appeal is filed on a land use action or permit decision on a Type I, II or III procedure, the decision shall become final and effective upon the date of the written decision of the final local appeal body.
C.
Each land use action or permit for a Type II or III procedure shall specify the approval granted or development authorized and shall be subject to the standards and conditions set forth in this code, together with any conditions imposed by the review authority, excepting only those variances or adjustments authorized by the review authority.
(Ord. 2020-15 § 1)
§ 17.76.140 Expiration of decision.
A.
Unless a different period of time is established within the decision, or under subsection (D) of this section, a land use action or land use application approval granted pursuant to this chapter expires and becomes void automatically as provided under Table 17.76.140-1 unless one of the following circumstances has occurred:
1.
Substantial construction, which includes required infrastructure construction, has begun and is actively in progress in compliance with the land use action or land use application approval; or
2.
The required structural permits and/or site development permits have been issued and have not expired; or
3.
The approved land use has commenced and is in active operation in compliance with any applicable conditions of approval; or
4.
An extension application has been filed pursuant to LCMC § 17.76.150; or
5.
A copy of the recorded final plat for a partition or subdivision or a copy of both the recorded survey map and recorded deeds for a property line adjustment has been submitted to the department prior to the decision expiration as noted in Table 17.76.140-1.
B.
If multiple applications are processed concurrently, the review authority shall specify in the notice of decision a uniform expiration period for the concurrent applications.
C.
If a final local decision is on appeal, the effective date of the decision and corresponding valid period before expiration shall begin when the final decision is issued on the appeal.
D.
A comprehensive plan amendment, map amendment, or zone change processed under LCMC § 17.77.150 is not subject to expiration or extension.
Table 17.76.140-1: Decision Expirations and Extensions | |||
|---|---|---|---|
Decision Expiration | Extensions Allowed | Review Authority | |
Type I | 1 year | None | Not applicable |
Type II | 3 years | One extension for 1 year | Director as a Type I procedure |
Type III | 3 years | One extension for 1 year | Director as a Type I procedure |
Type IV | None | Not applicable | Not applicable |
(Ord. 2020-15 § 1; Ord. 2022-15 § 52; Ord. 2022-36 § 6)
§ 17.76.150 Extension of decision.
A.
Written Request for Extension Required. A request for an extension of the expiration date of a decision must be submitted to the department, on the appropriate form provided by the department, prior to the expiration date of the decision.
B.
Extension. One extension request may be granted for the applicable period of time as specified in Table 17.76.140-1. If granted, an extension is vested against any code changes adopted since the original decision. The extension is subject to the following approval criterion:
1.
The previous land use decision will not be modified in design, use, or conditions of approval.
(Ord. 2020-15 § 1; Ord. 2022-36 § 7)
§ 17.76.155 COVID timetable extension.
Notwithstanding any other provision of this title, upon application and payment of the $50.00 application fee, the director shall grant an 18-month timetable extension for any eligible existing land use permit or planning action as defined below. To meet the eligibility requirement for an extension, the following must be demonstrated:
A.
The permit or planning action must have been finally approved by a city decision-maker prior to April 1, 2020; and
B.
The permit or planning action must have been current and unexpired as of June 28, 2021; and
C.
The permit or planning action must be the type of approval (Type II or Type III) that is eligible for a timetable extension under this title; and
This extension is a ministerial decision and is in addition to any other time extension previously granted or that may be granted under LCMC § 17.76.150 or other applicable provision of the municipal code. The director is authorized to make the timetable adjustment regardless of the original approval authority.
(Ord. 2021-09 § 1)
§ 17.76.160 Public hearings.
A.
Purposes. The purposes of this section are:
1.
To describe rules of conduct, order of proceedings, and action required for legislative and quasi-judicial hearings; and
2.
To provide clear and consistent rules to ensure the legal rights of individual property owners and the general public are protected.
B.
Applicability. The provisions of this section shall apply to all proceedings on land use applications requiring public hearings under the procedures of this chapter.
C.
Responsibilities of the Director for Public Hearings. For all land use applications requiring public hearings, the director shall:
1.
Schedule the land use application for review and public hearing before the appropriate review authority as required by Table 17.76.020-1;
2.
Provide public notice of the public hearing or appeal hearing as required by this code;
3.
Prepare and make available to the public a staff report summarizing the proposal, the relevant criteria and issues, and any comments received prior to the public hearing;
4.
Mail notice of the decision to those entitled to such notice as specified for the particular application procedure type;
5.
Maintain a record of the proceedings; and
6.
Prepare minutes of the proceedings, including the decision on the matter heard.
D.
Provision of Public Notice. Notice of public hearings shall be provided for applications or appeals as specified in the applicable section of this chapter, based on the procedure type.
E.
Compliance with Notice Requirements. Mailed notice shall be deemed to have been provided upon the date the notice is deposited in the mail. The failure of a property owner to receive notice does not invalidate the land use action if the notice was sent.
F.
Rules of Procedure. Public hearings shall be conducted in accordance with the rules of procedure adopted by the applicable review authority, if any, and with applicable state law.
G.
Procedural Rights. Subject to the specific standards and limitations set forth in this code, the following procedural rights shall be provided at the public hearing:
1.
A reasonable opportunity for those persons participating in the decision to present and rebut evidence; and
2.
An impartial review authority.
H.
Review Authority Disclosures. Prior to the beginning of a public hearing, the review authority members shall disclose any ex parte contacts, biases or conflicts of interest.
1.
Review authority members shall disclose the substance of any significant pre-hearing ex parte contacts regarding the application as early as reasonably possible during the public hearing on the application, so that persons wishing to participate in the hearing have an opportunity to respond. The member shall state whether the contact has impaired his/her impartiality or ability to vote on the matter and shall participate or abstain accordingly.
2.
A member of the review authority shall not participate in any proceeding or action in which member has an actual conflict of interest as defined in state law. Any actual or potential conflicts of interest shall be disclosed at the meeting of the review authority where the action is being taken.
3.
A review authority member may be disqualified due to actual conflicts of interest or actual bias based on a motion if a majority of the review authority members present and voting approve such a motion. The member who is the subject of the motion may not vote.
I.
Presentations.
1.
The review authority may set reasonable time limits for oral presentations. The review authority may choose not to receive cumulative, repetitious, immaterial, derogatory or abusive testimony. Persons may be required to submit written testimony in lieu of oral testimony.
2.
No testimony shall be accepted after the close of the public hearing unless the review authority sets a deadline for receipt of such testimony and provides an opportunity for review and rebuttal prior to making a decision.
3.
Counsel for the review authority may be consulted on legal or procedural issues without reopening the public hearing. Objections alleging that counsel is discussing or testifying as to factual matters shall be heard at the discretion of the review authority.
4.
Staff may confer with the review authority after the close of the record on technical review or procedural matters, but may not engage in argument or present additional evidence.
5.
The presiding officer shall preserve order at all public hearings and shall decide questions of order subject to a majority vote of the review authority. Persons who become disruptive or abusive may be removed from the hearing.
J.
Continuance of Public Hearing. Public hearings may be continued in accordance with the rules of procedure adopted by the applicable review authority, if any, and with applicable state law.
K.
Evidence and Argument. Evidence and argument shall be received and reviewed in accordance with the rules of procedure adopted by the applicable review authority and with applicable state law.
L.
Burden of Proof. The applicant shall bear the burden of proof that the proposal complies with all applicable approval criteria and development standards.
M.
Action by Review Authority Following Public Hearing.
1.
An action of the review authority on a land use application or appeal may be to:
a.
Approve the application as submitted or uphold the appeal;
b.
Approve the application with conditions or uphold the appeal with conditions;
c.
Approve the application with modified conditions or approve the appeal with modified conditions; or
d.
Deny the application or the appeal.
2.
Findings in support of any decision shall be made in accordance with the review authority's adopted rules of procedure and with applicable state law. The findings must be factual and must be supported by substantial evidence submitted into the record.
a.
For the city council to adopt an ordinance for an amendment to this title, comprehensive plan document, and/or map, findings must be made and adopted as part of said ordinance that are adequate to support the proposed amendment. The amendment must comply with and conform to the comprehensive plan and comprehensive plan map. For amendments to the comprehensive plan, comprehensive plan map, zoning map, and/or this title, proposals must be consistent with provisions in the Oregon Transportation Planning Rule, OAR 660-012-0060. If statewide planning goals provide a more specific direction than is provided by the city's comprehensive plan, then the findings must provide evidence that the proposed amendment is in conformance with statewide planning goals.
N.
Record.
1.
Absent mechanical failure or inadvertent error, a verbatim written or mechanical record of the hearing shall be made. In addition, written minutes accurately citing the statements of the participants shall be taken. Such minutes may substitute for a verbatim record in the event of mechanical failure or inadvertent error.
2.
An interested party may request a verbatim transcript of the recorded proceedings before the review authority on the matter. Requests for verbatim transcripts shall be accompanied by the fee for a verbatim transcript, as specified in the adopted fee schedule.
(Ord. 2020-15 § 1; Ord. 2022-15 §§ 53 – 55)
§ 17.76.170 Public hearings on cases remanded from LUBA.
A.
The procedures in this section shall be used for hearings involving cases either voluntarily or involuntarily remanded from the Land Use Board of Appeals (LUBA).
B.
Upon receipt of the remand opinion, the director shall present the opinion directly to the city council. The director shall inform the city council of the nature of the remand, and the city council shall make a formal decision regarding procedures prior to any hearing to decide the matter. The council may decide to do any of the following:
1.
Send the matter to a lower review authority; or
2.
Set a date to decide the matter without reopening the public hearing on the case; or
3.
Set a hearing date and reopen the public hearing for consideration.
C.
When considering a remand, the review authority may consider the case in whole or in part.
D.
Procedures for public notice and order of proceedings for remands shall comply with LCMC § 17.76.160. In cases where a public hearing is held, required notices shall be mailed a minimum of 20 days in advance of any public hearing on the remand.
(Ord. 2020-15 § 1)
§ 17.76.180 Appeals.
A.
In General. Appeals of director decisions are heard by the planning commission. Appeals of planning commission decisions are heard by city council. There is no local appeal of city council decisions. The city council decision is the final local decision.
B.
Notice of Appeal. Where the appeal authority is the city, notices of appeal shall be filed with the department within 12 days of the mailing date of the written notice of the decision. Appeals must be received in the department no later than 5:00 p.m. of the twelfth day of the mailing date of the written notice of the decision. At a minimum, the notice of appeal shall include the following items:
1.
Identification of the decision being appealed, including the case file number, the review authority which made the decision, and the date of the decision;
2.
Documentation that the appellant was a party to the initial proceedings;
3.
A detailed statement on the basis of the appeal, including which approval criteria, development standards, or conditions of approval were allegedly improperly evaluated or applied to the decision; and
4.
Payment of the appropriate fee, as adopted by city council resolution.
C.
Failure to File Notice of Appeal. Failure to file a notice of appeal that fully complies with subsection (B) of this section, by 5:00 p.m. on the due date, with the fee specified in the notice of decision, shall be a jurisdictional defect.
D.
Request for Transcript. Pursuant to LCMC § 17.76.160(N)(2), the appellant or any interested party may request a verbatim transcript of the recorded proceedings before review authority on the matter.
E.
General Procedures Applicable to All Appeals.
1.
Public Hearing Required for Appeals. Appeal hearings before the appropriate review body as specified in subsection (A) of this section shall be conducted in accordance with the public hearing provisions in applicable state law and in LCMC § 17.76.160.
2.
Notice of Public Hearing on Appeal. Notices of appeal hearings shall be sent in accordance with the notification requirements in LCMC § 17.76.050(E).
3.
Staff Report. At least seven days before the date of the appeal hearing, the director shall prepare and make available to the public a copy of the staff report regarding the appeal. A copy of the staff report and recommendation shall be provided to the appeal body, the applicant, and to the appellant. Copies of the staff report shall also be provided at reasonable cost to the public upon request to the department.
4.
Action of Appeal Body. At the conclusion of the hearing on the appeal, the appeal body shall take one of the following actions:
a.
Reverse or affirm the decision under appeal at the conclusion of the initial appeal hearing, with or without conditions or changes; or
b.
Continue the appeal hearing to a date, time, and location certain, which shall be announced by the presiding officer. Notice of the date, time, and location certain of the continued hearing is not required to be mailed or published;
c.
Continue the appeal hearing without announcing a date, time and location certain, in which case notice of the continued hearing shall be provided as was the notice for the initial hearing;
d.
Provisions for continuing an appeal hearing or holding the record open as set forth in LCMC § 17.76.160(J) shall apply under this code in a manner consistent with state law.
5.
Written Decision of Appeal Body. After the public record on the appeal closes, a written decision regarding the appeal shall be prepared. The written decision shall contain the following:
a.
A statement of the facts relied upon by the appeal body, which demonstrate the reasons why the decision under appeal is reversed or affirmed based on the applicable criteria and/or standards;
b.
A statement of conclusions based on the findings; and
c.
An explanation of the basis for any changes in the earlier decision:
i.
Denial reversed to approval, with or without conditions;
ii.
Approval changed to denial; or
iii.
Additions, deletions or revisions to conditions of approval.
6.
Mailing Notice of the Decision. Following the adoption of a decision by the appeal authority, the department shall mail the signed and dated decision to the appellant, the applicant, and any other persons who appeared orally or in writing in the record of the appeal.
F.
Withdrawal of an Appeal.
1.
At any time before the close of an appeal hearing held by any review authority, any appellant may withdraw the appeal. Withdrawal of the appeal is subject to the following:
a.
If requested before the hearing, the withdrawal must be submitted in writing;
b.
Any unexpended portion of the appeal fee will be refunded only if the withdrawal is received before the public notice of the hearing has been sent; and
c.
Where multiple people or parties sign and file a single notice of appeal, all the parties must consent to the withdrawal of the appeal.
2.
A withdrawn appeal cannot be refiled by any party.
3.
If all appeals in a matter are withdrawn, no decision by the review authority is necessary.
4.
If all appeals are withdrawn, the department shall issue a notice of appeal withdrawal to the applicant, the appellant, and the parties listed in LCMC § 17.76.050(E)(1). The notice of appeal withdrawal shall specify the new effective date of the original decision to be the date of the withdrawal of the appea l(s).
(Ord. 2020-15 § 1)
