Milwaukie City Zoning Code
CHAPTER 19
1000 REVIEW PROCEDURES
§ 19.1001 General Provisions
(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2242, 4/16/2024)
§ 19.1001.1 Purpose.
The purpose of this chapter is to establish procedures for the review and processing of land use applications. This chapter is intended to make the land use review process clear and understandable, to facilitate timely review of land use applications by the City, and to enable the public to participate in the local land use decision-making process. The provisions contained in this chapter are intended to be consistent with Oregon law regulating land use review.
§ 19.1001.2 Applicability.
All land use applications shall be reviewed using the procedures contained in this Chapter.
§ 19.1001.3 Consistency with Statute.
The processing of applications and permits authorized under Titles 14, 17, and 19 shall be consistent with the Oregon Revised Statutes (ORS). The City shall follow the provisions of the ORS in instances where following the provisions of this chapter alone would fail to meet State requirements for the processing or review of land use applications or permits.
§ 19.1001.4 Review Types.
All land use applications have both a review type and an application type. This chapter establishes the review procedures associated with each review type. Chapter 19.900 contains a list of application types and their associated review types.
A.
Review Types
There are 5 types of review: Types I, II, III, IV, and V. Table 19.901 contains a list of the City's land use applications and their associated review types. In addition, there are land uses that are allowed by right. These land uses do not require land use review and are only required to obtain a building permit.
B.
Determination
When a review type for a land use application is not specified in Table 19.901, or otherwise required by law, the Planning Director shall determine the review type. This determination is not applicable to the determination of whether a Comprehensive Plan map or Zoning Map amendment is a quasi-judicial or legislative matter, as described in Subsections 19.902.4 and 19.902.6. The Planning Director's determination shall favor the review type that provides the most appropriate public notice and opportunity for public comment. The Director's review type determination is not a land use decision per ORS 197.015 and is not subject to appeal.
C.
Notice
The notice requirements in this chapter shall be the minimum amount of notice required for each specific review type. The City may provide notice in excess of the minimum requirement.
§ 19.1001.5 Review and Appeal Authorities.
A.
The review authority for each review type is listed in Table 19.1001.5. The review authority is also the decision authority, except for Type IV and V reviews as described below.
B.
The appeal authority for each review type is listed in Table 19.1001.5. The decision of the Appeal authority is the City of Milwaukie's final decision for a permit, land use action, or zone change. Parties with standing may appeal the City's final decision to the Oregon Land Use Board of Appeals or other court.
Table 19.1001.5 Land Use Application Review and City Appeal Authorities | ||
|---|---|---|
Review Type | Review Authority | Appeal Authority |
Type I | Planning Director | Planning Commission |
Type II | Planning Director | Planning Commission |
Type III | Planning Commission | City Council |
Type IV | City Council, with initial hearing and recommendation by Planning Commission | None |
Type V | City Council, with initial hearing and recommendation by Planning Commission | None |
§ 19.1001.6 Applications.
A.
Initiation
Type I, II, III, and IV applications may be initiated by the property owner or contract purchaser of the subject property, any person authorized in writing to represent the property owner or contract purchaser, and any agency that has statutory rights of eminent domain for projects they have the authority to construct. Type III and IV applications involving map amendments may also be initiated by the Milwaukie City Council, Planning Commission, or Planning Director.
Type V applications may be initiated by the Milwaukie City Council, Planning Commission, Planning Director, or any individual.
B.
Review of Multiple Applications
When multiple land use applications are required for a single proposal, the applicant may request, or the City may require, that the applications be processed concurrently or individually.
The City shall generally allow applicants the choice of having multiple applications for a single proposal processed concurrently or individually. The City may require that applications be reviewed concurrently for proposals where a review of an application(s) would be difficult without the context of the other applications related to the proposal. Alternatively, the City may require parts of an application to be processed separately in order to comply with the 120-day decision requirement (or the 100-day decision requirement for a project meeting all provisions of ORS 197.311) or to allow decisions on parts of a proposal to be made with a lower level of review.
1.
Applications Processed Concurrently
A concurrent application review consolidates the review of multiple applications into a single review process. The applications shall be processed according to the highest numbered review type required for any part of the application. For example, a concurrent review of a Type II review and a Type III review would be processed through a Type III review. A single decision shall be issued that includes findings for all of the applications that are part of the concurrent review.
The applicant shall submit an application form and application fee for each application type being reviewed. The application shall contain the information and documentation required for each individual application type.
2.
Applications Processed Individually
Multiple applications related to a single proposal may be submitted individually at the same time or at different points in time. Each individual application, or group of concurrent applications, shall be processed according to their specified review type. Any concurrent applications shall be processed as specified in Subsection 19.1001.6.B.1. For each application or group of concurrent applications, the review authority will issue a separate decision.
The applicant shall submit an application form and application fee for each application type being reviewed. The application shall contain the information and documentation required for each individual application type.
C.
Notice Requirements
1.
Sign Notice
b.
Signs shall be posted in a location which is clearly visible to vehicles traveling on a public street and legible to pedestrians walking by the property. If the sign is providing notice of a public hearing, the sign shall include the date, time, and place of the hearing. The number and size of signs shall be appropriate given the size of the property, the number of street frontages, and the functional classification of surrounding streets. The City shall provide the applicant at least one sign and instructions for posting. An affidavit of posting shall be submitted by the applicant prior to the issuance of the decision and made part of the case file.
c.
If the affidavit of posting is not submitted on time or if the required number and type of notice signs are not posted for the required period of time, the City may require an extension of the 120-day decision requirement (or the 100-day decision requirement for a project meeting all provisions of ORS 197.311), delay the decision, and/or postpone or continue the public hearing on the application as necessary. The applicant will be required to repost the notice signs as necessary to meet the requirements of Sections 19.1005—19.1008 respectively.
d.
The Planning Director shall adopt administrative rules for sign postings. The rules shall ensure that sign postings are consistent in appearance, legible to the public, and appropriate for the type and location of development being proposed. They will also ensure that the applicant's affidavit contains all necessary information, including but not limited to photographic documentation, to confirm that the requirements of this subsection have been met.
2.
Mailed Notice
Where a review type in this chapter specifies that mailed notice of an application or hearing is required, the notice is deemed to have been provided upon the date the notice is deposited in the mail. Failure of the addressee to receive such notice shall not invalidate the proceedings if it can be demonstrated by affidavit that notice to the required parties was deposited in the mail. Notice to surrounding property owners shall be provided using the most recent property ownership information from the County Assessor that is available to the City.
3.
Continued Hearing Notice
4.
Department of Land Conservation and Development Notice
a.
Notice of Proposed Change
Applications that involve amendments described by Section 19.902 may require notice of the proposed change to the Oregon Department of Land Conservation and Development (DLCD). The notice shall meet the submittal requirements specified in OAR 660-018-0020. The notice shall be submitted to DLCD at least 35 days prior to the first evidentiary hearing on the application, unless the proposed change is exempt or eligible for a shorter notice period per OAR 660-018-0022.
b.
Notice of Adopted Change
Following a final decision on an application described by Section 19.902 that results in a change to an acknowledged comprehensive plan or a land use regulation, notice of the adopted change shall be provided to the Oregon Department of Land Conservation and Development (DLCD). The notice shall meet the submittal requirements specified in OAR 660-018-0040. The notice shall be submitted to DLCD within 20 days of making the decision. The notice of adopted change is required regardless of whether a notice of proposed change was required.
D.
Additional Requirements
For applications where the subjective aspects of the height and mass of the proposed development will be evaluated at a public hearing, temporary on-site "story pole" installations that simulate the proposed development, and photographic representations thereof, may be required prior to the public hearing.
§ 19.1001.7 Decisions.
A.
Conditions of Approval
The review authority shall impose conditions of approval on an application as necessary to ensure conformance with relevant approval criteria and development standards.
B.
Applicable Standards and Criteria
Approval or denial of all ministerial or quasi-judicial applications, as defined by the ORS, shall be based upon the development standards and approval criteria that were in effect at the time the application was first submitted.
C.
120-Day Decision Requirement
The City shall take final action on land use actions subject to ORS 227.178, including resolution of all local appeals, within 120 days after the application has been deemed complete, unless the applicant provides a written statement consenting to an extension of the 120-day decision requirement. The total of all extensions, except as provided for mediation per ORS 227.178(11), shall not exceed 245 days.
E.
Expiration of Approved Decisions
1.
Type I, II, III, and IV land use approvals granted pursuant to this chapter for land use applications submitted on or after May 14, 2011, the effective date of Ordinance #2025, shall expire and become void unless the following criteria are satisfied:
a.
For proposals requiring any kind of development permit, the development must complete both of the following steps:
b.
For proposals not requiring development permits, the development must utilize its approvals within four years of land use approval.
c.
For boundary adjustments and land divisions approved under Title 17 Land Division, evidence of recording of the required instruments must be provided to the city within two years of the original approval.
2.
Land use approvals shall expire as outlined above unless one of the following occurs:
§ 19.1002 Preapplication Conference
(Ord. 2025 § 2, 2011; Ord. 2161 § 2, 2018)
§ 19.1002.1 Purpose.
The purpose of the preapplication conference is to acquaint the applicant or applicant's representative with the requirements of the municipal code in preparation for submission of a land use application, including relevant approval criteria, development standards, and procedures. The preapplication conference is not an exhaustive review of all potential issues or requirements. Furthermore, the information provided by the City is not binding, and it does not preclude the City from raising new issues or identifying additional requirements during the land use review process.
§ 19.1002.2 Applicability.
§ 19.1002.3 Preapplication Conference Procedures.
The Planning Director shall adopt administrative rules for how the City processes preapplication conferences. The rules shall ensure that preapplication conferences are held in a timely fashion and provide a thorough explanation of all required City permits, fees, and approvals for any given development proposal. They shall include standards for scheduling, conducting, and communicating the outcomes of preapplication conferences.
§ 19.1002.4 Preapplication Conference Expiration.
A.
A preapplication conference is valid for 2 years. If a land use application or development permit has not been submitted within 2 years of the conference date, the applicant is required to schedule a new preapplication conference prior to submittal. This requirement may be waived per Subsection 19.1002.2.B.1.
B.
An applicant may request additional preapplication conferences at any time. There is no limit to the number of preapplication conferences that may be requested.
C.
If a development proposal is significantly modified after a preapplication conference occurs, the Planning Director may require a new preapplication conference. The City may refuse to accept a land use application or development permit for a significantly altered development proposal until a new preapplication conference is held.
§ 19.1003 Application Submittal and Completeness Review
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2219 § 2 (Exh. B), 2022)
§ 19.1003.1 Application Forms and Checklists.
A.
The City shall supply land use application forms pursuant to the standards contained in the applicable State law, Comprehensive Plan, and implementing ordinance provisions.
B.
The City shall supply checklists or information sheets that specify the information that must be contained in the application, including format and number of copies.
§ 19.1003.2 Application Submittal Requirements.
All application information must be sufficiently detailed and specific to the development being proposed to allow for adequate public review. The application submittal must include all of the items listed below for the City to accept the application and initiate completeness review.
If the application requires sign notice, a sign posting and sign posting affidavit will be required per Subsection 19.1001.6.C.1. If the application requires a public hearing, additional items may be required per Subsection 19.1001.6.D prior to the public hearing.
A.
Application form, including signature(s) of the property owner or public agency initiating the application.
B.
Deed, title report, or other proof of ownership.
C.
Detailed and comprehensive description of all existing and proposed uses and structures, including a summary of all information contained in any site plans. The description may need to include both a written and graphic component such as elevation drawings, 3-D models, and photo simulations, etc. For applications where the subjective aspects of the height and mass of the proposed development will be evaluated at a public hearing, temporary on-site "story pole" installations that simulate the proposed development, and photographic representations thereof, may be required at the time of application submittal.
D.
Detailed statement that demonstrates how the proposal meets all applicable approval criteria, zoning and land use regulations, and development standards.
E.
Site plan(s), preliminary plat, or final plat as applicable.
F.
All materials identified on the Submittal Requirements form, including the signature(s) of the applicant submitting the materials.
G.
Payment of all applicable land use application fee(s) and deposit(s), based on the fee schedule in effect on the date of application submittal.
§ 19.1003.3 Application Completeness Review.
All applications are subject to the provisions of Subsections 19.1003.3.A-D below. Type I, II, III, and IV applications are also subject to the provisions of Subsections 19.1003.3.E-G below.
A.
The City shall review the application submittal within 30 days of receipt of the application and advise the applicant in writing as to whether the application is complete or incomplete. The City shall review the application submittal for an expedited land division or middle housing land division within 21 days of receipt of the application and advise the applicant in writing as to whether the application is complete or incomplete.
C.
Incompleteness shall not be based on differences of opinion as to quality or accuracy.
D.
Determination that an application is complete indicates only that the application contains the information necessary to review it for compliance against applicable development standards and approval criteria.
E.
If an application is incomplete, the completeness notice shall identify the information that is missing. The applicant has 180 days from the date of first submittal to make the application complete.
F.
An application will be deemed complete by the City upon submission of any of the following:
G.
An application will be deemed void if it has been on file with the City for more than 180 days and the applicant has not made the application complete per Subsection 19.1003.3.F. The City will not refund application fees for voided applications. The applicant may resubmit a voided application to the City; however, it will be treated as a new application and will be subject to all current fees, development standards, approval criteria, and submittal requirements.
§ 19.1003.4 Resubmittal of Applications Following Denial.
A.
If an application for a land use action has been denied, an application for the same or similar project on the same property may not be resubmitted unless one or more of the following occurs:
1.
2 years have passed since the denial became final.
2.
Substantial changes are made to the application. Substantial changes to an application have occurred only if the changes resolve all findings for denial of the original application.
3.
Standards and criteria relative to the findings of the original denial have changed and now support the application.
4.
For Type IV or V decisions, there has been a substantial change in the composition of the City Council and the Council was the final decision-maker. A substantial change in the composition of the Council occurs if fewer than 3 Council members who voted to deny the original application remain on the Council.
§ 19.1003.5 Withdrawal of Applications Under Review.
A.
An application may be withdrawn by the applicant at any time prior to issuance of the final decision with the written consent of the property owner or contract purchaser.
B.
If an application is withdrawn after the City has mailed the public notice, the City shall send another notice to all parties who received the original notice that the application has been withdrawn.
C.
The City may refund application fees if staff has, in writing, recommended withdrawal and an application is withdrawn prior to being referred for comment. In all other cases, the City will not refund application fees for withdrawn applications.
§ 19.1003.6 Modifications to Applications Under Review.
The procedures of this subsection shall apply if an applicant modifies an application after the City has deemed it complete but prior to a public hearing or issuance of a decision.
A.
Upon receipt of materials that modify an application, the Planning Director shall evaluate the modifications, determine which of the 3 categories listed below describes the modification, and follow the related procedures. This decision is not a land use decision and is not appealable.
1.
Substantial Modification
A substantially modified application greatly differs from the application that was deemed complete. Such differences may include the land use; size, height, and/or design of proposed structures; location of uses and structures on the site; or other such characteristics of the proposal. Substantial modifications may alter which approval criteria and Development standards apply to the development proposal.
The Planning Director shall notify the applicant of this determination and take one of the following actions, at the direction of the applicant:
a.
Allow the applicant to withdraw the original application and submit the modified proposal as a new application. The applicant shall submit all items required by Subsection 19.1003.2 for the new submittal.
b.
Reject the modifications and continue processing the original application. Rejecting a substantial modification does not preclude the applicant from submitting significant or minor modifications.
2.
Significant Modification
Significant modifications change an application so that one or more aspects of the modified proposal differ from the original proposal, while the overall proposal remains similar to the proposal that was deemed complete. Significant modifications typically should not alter which approval criteria and development standards apply to the development proposal.
The Planning Director shall notify the applicant of this determination and take one of the following actions, at the direction of the applicant:
a.
Accept the modifications and proceed with the review of the modified application. The applicant shall pay the required fee for review of a modified application per the adopted fee schedule. The Planning Director may repeat any part of the public notice or referral process to provide appropriate opportunity for public review of the modifications. The applicant shall also extend the 120-day decision requirement in writing to a date that is sufficient to allow for additional review, public notice, or evaluation by the City.
b.
Reject the modifications and continue processing the original application. Rejecting a significant modification does not preclude the applicant from submitting minor modifications.
3.
Minor Modification
Minor modifications change an application so that a limited number of aspects differ from the original proposal and the differences are small relative to the original proposal. The magnitude of a minor modification should be small enough that another review of the proposal by other agencies or the public is not warranted.
The Planning Director shall notify the applicant of this determination and take one of the following actions, at the direction of the applicant:
a.
Accept the modifications and proceed with the review of the modified application. The applicant shall extend the 120-day decision requirement in writing to a date that is sufficient to allow for additional review or evaluation by the City.
b.
Reject the modifications and continue processing the original application.
B.
In addition to the procedures of Subsection 19.1003.6.A, modifications received after the issuance of a staff report for a public hearing are subject to the following provisions:
1.
If an applicant submits a substantial modification and chooses the option listed in Subsection 19.1003.6.A.1.a, the hearing shall be cancelled or suspended without the issuance of a decision by the review authority.
§ 19.1004 Type I Review
Type I applications involve permitted uses or development governed by clear and objective approval criteria and/or development standards that may require the exercise of professional judgment about technical issues. Type I review provides for ministerial review of an application by the Planning Director and does not include public notice.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2226 § 2, 2023)
§ 19.1004.1 Preapplication Conference.
A preapplication conference is not required for Type I applications.
§ 19.1004.2 Type I Application Requirements.
§ 19.1004.3 Type I Public Notice.
§ 19.1004.4 Type I Review Authority.
§ 19.1004.5 Type I Decision.
Written notice of the decision for Type I applications shall be provided to the applicant and property owner of record. The decision shall be issued with sufficient time to allow the appeal authority for a Type I application to issue a final decision within 120 days from when the application was deemed complete. The final decision for an affordable housing application, as defined in and subject to all of the provisions of ORS 197.311, shall be issued within 100 days from when the application was deemed complete.
A.
A brief summary of the proposal.
B.
A description of the subject property reasonably sufficient to inform the reader of its location, including street address, if available, map and tax lot number, and zoning designation.
C.
A statement of the facts upon which the review authority relied to determine whether the application satisfied or failed to satisfy each applicable approval criterion.
D.
The decision to approve or deny the application, and, if approved, any conditions of approval necessary to ensure compliance with the applicable criteria.
E.
The date the decision shall become final, unless appealed. The decision shall state in boldface type the date and time by which an appeal must be filed. The statement shall reference the requirements for filing an appeal of the decision.
F.
A statement that the complete case file, including findings, conclusions, and conditions of approval, if any, is available for review. The decision shall list when and where the case file is available and the name and telephone number of the City representative to contact about reviewing the case file.
§ 19.1004.6 Appeal of a Type I Decision.
A Type I decision may be appealed by filing a written appeal within 15 days from the date that the notice of decision was mailed. The appeal authority for a Type I decision is the Planning Commission. Appeal requirements and procedures are outlined in Section 19.1010.
§ 19.1005 Type II Review
Type II applications involve uses or development governed by subjective approval criteria and/or development standards that may require the exercise of limited discretion. Type II review provides for administrative review of an application by the Planning Manager and includes notice to nearby property owners to allow for public comment prior to the decision. The process does not include a public hearing.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2219 § 2 (Exh. B), 2022; Ord. 2235 § 2, 2023)
§ 19.1005.1 Preapplication Conference.
A preapplication conference is required for all Type II applications per Section 19.1002. The Planning Director may waive this requirement.
§ 19.1005.2 Type II Application Requirements.
§ 19.1005.3 Type II Public Notice.
A.
Referral
Within 7 days after the application has been deemed complete, the City will provide a copy of all application materials to the parties listed below for their review and comment. If no comments are received within 14 days from the date of referral, the City will presume that no comments will be submitted.
B.
Mailed Notice
The purpose of the public notice is to provide nearby property owners and other interested parties with an opportunity to review the application and submit written comments concerning the application prior to issuance of the Type II decision. The goal of this notice is to invite relevant parties of interest to participate in the process.
1.
Within 7 days after the application has been deemed complete, public notice of the application shall be mailed to the following parties:
2.
The public notice shall include the following information:
a.
The case file number and a brief summary of the proposal.
b.
A brief description of the subject property, including street address, if available, map and tax lot number, and zoning designation.
c.
A statement that the City will consider written comments submitted prior to the issuance of the decision, and that the decision may be issued as early as 14 days from the date of the public notice.
d.
The place, date, and time that comments are due.
e.
The applicable approval criteria and/or development standards against which the proposal will be evaluated.
f.
A statement that all application materials and applicable approval criteria and development standards are available for review at the City, and that copies can be obtained at a reasonable cost.
g.
The name and phone number of the City representative to contact for additional information.
h.
The following statement: "Notice to mortgagee, lien holder, vendor or seller: The Milwaukie Municipal Code requires that if you receive this notice it shall be promptly forwarded to the purchaser."
3.
The City shall prepare an affidavit of mailing of notice for the file. The affidavit shall indicate the date that the public notice was mailed to the parties required by Subsection 19.1005.3.B.1.
C.
Sign Notice
No more than 7 days after the application has been deemed complete, notice of the application shall be posted on the subject property by the applicant and shall remain continuously posted until the decision is issued. Sign notice shall meet the requirements of Subsection 19.1001.6.C.1.b.
§ 19.1005.4 Type II Review Authority.
A.
The review authority for Type II applications shall be the Planning Director.
B.
A decision will not be issued sooner than 14 days after mailing of the public notice and referral. Once issued, the decision is final and may only be reconsidered by appeal. Comments submitted within 14 days of the date of the public notice shall be considered. Comments submitted after 14 days from the date of the public notice and prior to the issuance of the decision may be considered.
C.
The review authority shall approve, approve with conditions, or deny an application based on applicable approval criteria, development standards, and written comments received.
§ 19.1005.5 Type II Decision.
A.
The decision shall be issued with sufficient time to allow the appeal authority for a Type II application to issue a final decision within 120 days from the date that the application was deemed complete. The final decision for an affordable housing application, as defined in, and subject to all of the provisions of ORS 197.311, shall be issued within 100 days from when the application was deemed complete. Pursuant to Subsection 17.12.020.G, the final decision for a middle housing or expedited land division as defined in, and subject to the applicable provisions of ORS 92.010 to 92.192 and further referenced in ORS 197.360 and ORS 197.380, must be issued within 63 days from when the application was deemed complete, or extended by the city not to exceed 120 days.
B.
Written notice of decision shall be mailed to the following parties. The date the notice is mailed shall be considered the date of the decision.
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments during the comment period.
4.
Any governmental agency that is entitled to notice by the municipal code or has requested notice of the decision.
5.
Any group or individual who requested notice of the decision.
C.
The notice of decision shall include the following information:
1.
A description of the proposal with sufficient detail to explain the applicant's proposal.
2.
A description of the subject property reasonably sufficient to inform the reader of its location, including street address, if available, map and tax lot number, and zoning designation.
3.
A statement of the facts upon which the review authority relied to determine whether the application satisfied, or failed to satisfy, each applicable approval criterion.
4.
The decision to approve or deny the application and, if approved, any conditions of approval necessary to ensure compliance with the applicable criteria.
5.
The date the decision shall become final, unless appealed. The notice of decision shall state in boldface type the date and time by which an appeal must be filed. The statement shall reference the requirements for filing an appeal of the decision.
6.
A statement that any person who is adversely affected or aggrieved by the decision may appeal the decision by filing a written appeal within the 15-day appeal period.
7.
A statement that the complete case file is available for review, including findings, conclusions, and conditions of approval, if any. The notice shall list when and where the case file is available and the name and telephone number of the City representative to contact about reviewing the case file.
§ 19.1005.6 Appeal of a Type II Decision.
A Type II decision may be appealed by filing a written appeal within 15 days from the date that the notice of decision was mailed. The appeal authority for a Type II decision is the Planning Commission. Appeal requirements and procedures are outlined in Section 19.1010.
§ 19.1006 Type III Review
Type III applications are quasi-judicial in nature and are subject to approval criteria that require the exercise of discretion and judgment and about which there may be broad public interest. Impacts may be significant and development issues complex. Extensive conditions of approval may be imposed to mitigate impacts or ensure compliance with applicable approval criteria and development standards. The review process requires notice to nearby property owners and at least one public hearing before the Planning Commission.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2229 § 2, 2023; Ord. 2235 § 2, 2023)
§ 19.1006.1 Preapplication Conference.
A preapplication conference is required for Type III applications per Section 19.1002.
§ 19.1006.2 Type III Application Requirements.
§ 19.1006.3 Type III Public Notice.
A.
DLCD Notice
For Zoning Map amendments, the City shall provide notification to the Department of Land Conservation and Development, as described in Subsection 19.1001.6.C.4.a.
B.
Metro Notice
For Zoning Map amendments, the City shall provide notification to Metro at least 35 days prior to the initial evidentiary hearing on adoption.
C.
Referral
Within 7 days after the application has been deemed complete, the City will provide a copy of all application materials to the parties listed below for their review and comment. If no comments are received within 14 days from the date of the referral, the City will presume that no comments will be submitted.
D.
Mailed Notice
The purpose of the public notice is to provide nearby property owners and other interested parties with an opportunity to review the application, submit written comments, and participate in the proceedings concerning the Type III decision. The goal of this notice is to invite relevant parties of interest to participate in the process.
1.
At least 20 days prior to the first public hearing on the application, except for continuations as noted in Subsection 19.1001.6.C.3, public notice of the application shall be mailed to the parties listed below. Notice requirements specific to Zoning Map amendments are listed in Subsection 19.1006.3.D.3.
2.
The public notice shall include the following information:
a.
The case file number and a brief summary of the proposal.
b.
A brief description of the subject property, including street address, if available, map and tax lot number, and zoning designation.
c.
The date, time, and place of the hearing.
d.
A statement that any member of the public may submit written comments prior to the hearing and may appear and provide written or oral testimony at the hearing.
e.
A statement that only those who have submitted written comments prior to the hearing or participated at the hearing shall be entitled to appeal.
f.
A general explanation of the requirements for submission of testimony and the procedure for conduct of public hearings.
g.
A statement that a copy of the staff report will be available for review at no cost, and a copy will be provided at a reasonable cost, at least 7 days prior to the hearing.
h.
The applicable approval criteria and/or development standards against which the proposal will be evaluated.
i.
A statement that all application materials and applicable approval criteria and development standards are available for review at the City, and that copies can be obtained at a reasonable cost.
j.
The name and phone number of the City representative to contact for additional information.
k.
The following statement: "Notice to mortgagee, lien holder, vendor or seller: The Milwaukie Municipal Code requires that if you receive this notice it shall be promptly forwarded to the purchaser."
3.
Notice requirements specific to Zoning Map amendments are as follows:
a.
At least 20 days prior to the first public hearing on the application, public notice of an application that conforms to Subsection 19.1006.3.D.2 shall be mailed to the following parties:
b.
A Measure 56 notice that conforms to Subsection 19.1008.3.D shall be mailed at least 20 days, but not more than 40 days, prior to the first public hearing on the application to all owners of property affected by the proposal. A Measure 56 notice is not required for owner-initiated zoning map amendments when the subject property or properties are owned by a single person or entity.
c.
For applications that would change the zoning designation of a property that includes all or part of a mobile home or manufactured dwelling park, the City shall mail written notice to each existing mailing address for tenants of the mobile home or manufactured dwelling park at least 20 days, but not more than 40 days, prior to the date of the first public hearing on the application. This notice shall conform to the requirements of Subsection 19.1008.3.D.
4.
The City shall prepare an affidavit of mailing of notice for the file. The affidavit shall indicate the date that the public notice was mailed to the parties required by Subsection 19.1006.3.D.
E.
Sign Notice
At least 14 days prior to the hearing, except for continuations as noted in Subsection 19.1001.6.C.3, notice of the application shall be posted on the subject property by the applicant and shall remain continuously posted until the hearing. Sign notice shall meet the requirements of Subsection 19.1001.6.C.1.b.
§ 19.1006.4 Type III Review Authority.
§ 19.1006.5 Type III Decision.
A.
The decision shall be issued with sufficient time to allow the appeal authority for a Type III application to issue a final decision within 120 days from the date that the application was deemed complete. The final decision for an affordable housing application, as defined in, and subject to all of the provisions of ORS 197.311, shall be issued within 100 days from when the application was deemed complete.
B.
Written notice of decision shall be mailed to the following parties within 7 days of the date of the decision:
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments at or prior to the public hearing.
4.
Any group or individual who submitted oral testimony during the public hearing.
5.
Any governmental agency which is entitled to receive notice per the municipal code or has requested notice of the decision.
6.
Any group or individual who requested notice of the decision, including those who signed the attendance sheet at any public hearing on the application.
C.
The notice of decision shall include the following information:
1.
A description of the proposal with sufficient detail to explain the applicant's proposal.
2.
A description of the subject property reasonably sufficient to inform the reader of its location, including street address, if available, map and tax lot number, and zoning designation.
3.
A statement of the facts upon which the review authority relied to determine whether the application satisfied, or failed to satisfy, each applicable approval criterion.
4.
The decision to approve or deny the application and, if approved, any conditions of approval necessary to ensure compliance with the applicable criteria.
5.
The date the decision shall become final, unless appealed. The notice of decision shall state in boldface type the date and time by which an appeal must be filed. The statement shall reference the requirements for filing an appeal of the decision.
6.
A statement that only persons who submitted comments or made an appearance of record at the public hearing have standing to appeal the decision by filing a written appeal within the 15-day appeal period.
7.
A statement that the complete case file is available for review, including findings, conclusions, and conditions of approval, if any. The notice shall list when and where the case file is available and the name and telephone number of the City representative to contact about reviewing the case file.
D.
In addition to the requirements of Subsections 19.1006.5.A, B, and C, the following requirements apply to Zoning Map amendments evaluated through a Type III review process.
1.
Following the close of the appeal period for a Zoning Map amendment for which no Appeal was filed, the Planning Director shall prepare an ordinance to enact the approved Zoning Map amendment.
2.
The ordinance shall be publicized per Milwaukie Charter, Chapter VIII, Section 31, Subsection (c). The ordinance shall be brought before Council at the first meeting following the close of the appeal period that meets the notice requirements of Milwaukie Charter, Chapter VIII, Section 31, Subsection (c).
3.
The City Council shall enact the ordinance per the procedures of Milwaukie Charter, Chapter VIII, Section 31, Subsection (b), with the reading being by title only.
4.
The City shall provide the required notice of adoption to the Department of Land Conservation and Development, as described in Subsection 19.1001.6.C.4.b.
§ 19.1006.6 Appeal of a Type III Decision.
A Type III decision may be appealed by filing a written appeal within 15 days from the date that the notice of decision was mailed. Only the applicant or persons who submitted comments or made an appearance of record at the public hearing have standing to Appeal a Type III decision. Appeal requirements and procedures are outlined in Section 19.1010.
§ 19.1007 Type IV Review
Type IV applications involve amendments to the City's zoning or land use maps. They are quasi-judicial in nature and require an initial hearing by the Planning Commission and a final decision by the City Council. They typically require a great detail of professional analysis, are reviewed against subjective approval criteria, and have a broader impact on the City's overall land use pattern than Type III Zoning Map amendments. The review process requires notice to nearby property owners and at least 2 public hearings.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2235 § 2, 2023)
§ 19.1007.1 Preapplication Conference.
A preapplication conference is required for Type IV applications per Section 19.1002.
§ 19.1007.2 Type IV Application Requirements.
§ 19.1007.3 Type IV Public Notice.
A.
DLCD Notice
For Zoning Map or Comprehensive Plan map amendments, the City shall provide notification to the Department of Land Conservation and Development, as described in Subsection 19.1001.6.C.4.a.
B.
Metro Notice
For Zoning Map or Comprehensive Plan map amendments, the City shall provide notification to Metro at least 35 days prior to the initial evidentiary hearing on adoption.
C.
Referral
Within 7 days after the application has been deemed complete, the City will provide a copy of all application materials to the parties listed below for their review and comment. If no comments are received within 14 days from the date of the referral, the City will presume that no comments will be submitted.
D.
Mailed Notice
The purpose of the public notice is to provide nearby property owners and other interested parties with an opportunity to review the application, submit written comments, and participate in the proceedings concerning the Type IV decision. The goal of this notice is to invite relevant parties of interest to participate in the process.
1.
At least 20 days prior to each public hearing on the application, except for continuations as noted in Subsection 19.1001.6.C.3, public notice of the application shall be mailed to the parties listed below. Notice requirements specific to Zoning Map amendments are listed in Subsection 19.1007.3.D.3.
2.
The public notice shall include the following information:
a.
The case file number and a brief summary of the proposal.
b.
A brief description of the subject property, including street address, if available, map and tax lot number, and zoning designation.
c.
The date, time, and place of the hearing.
d.
A statement that any member of the public may submit written comments prior to the hearing and may appear and provide written or oral testimony at the hearing.
e.
A statement that only those who have submitted written comments prior to the hearing or participated at the hearing shall be entitled to appeal.
f.
A general explanation of the requirements for submission of testimony and the procedure for conduct of public hearings.
g.
A statement that a copy of the staff report will be available for review at no cost, and a copy will be provided at a reasonable cost, at least 7 days prior to the hearing.
h.
The applicable approval criteria and/or development standards against which the proposal will be evaluated.
i.
A statement that all application materials and applicable approval criteria and development standards are available for review at the City, and that copies can be obtained at a reasonable cost.
j.
The name and phone number of the City representative to contact for additional information.
k.
The following statement: "Notice to mortgagee, lien holder, vendor or seller: The Milwaukie Municipal Code requires that if you receive this notice it shall be promptly forwarded to the purchaser."
3.
Notice requirements specific to Zoning Map amendments are as follows:
a.
A Measure 56 notice that conforms to Subsection 19.1008.3.D shall be mailed at least 20 days, but not more than 40 days, prior to the first public hearing on the application to all owners of property affected by the proposal.
b.
For applications that would change the zoning designation of a property that includes all or part of a mobile home or manufactured dwelling park, the City shall mail written notice to each existing mailing address for tenants of the mobile home or manufactured dwelling park at least 20 days, but not more than 40 days, prior to the date of the first public hearing on the application. This notice shall conform to the requirements of Subsection 19.1008.3.D.
4.
The City shall prepare an affidavit of mailing of notice for the file. The affidavit shall indicate the date that the public notice was mailed to the parties required by Subsection 19.1007.3.D.
E.
Sign Notice
At least 14 days prior to each hearing, except for continuations as noted in SubSection 19.1001.6.C.3, notice of the application shall be posted on the subject property by the applicant and shall remain continuously posted until the hearing. Sign notice shall meet the requirements of Subsection 19.1001.6.C.1.b.
§ 19.1007.4 Type IV Review Authority.
§ 19.1007.5 Type IV Decision.
A.
The Planning Commission shall serve as the recommendation authority for Type IV applications.
B.
The Planning Commission shall conduct an initial evidentiary hearing and provide a recommendation to the City Council with sufficient time to allow the City Council to issue a final decision within 120 days from the date that the application was deemed complete. The final decision for an affordable housing application, as defined in, and subject to all of the provisions of ORS 197.311, shall be issued within 100 days from when the application was deemed complete.
C.
The Planning Commission may recommend that the City Council approve or deny the application with or without changes. The Planning Commission shall provide a written justification for the recommendation.
D.
The City shall provide notice of the hearing before the City Council consistent with the public notice requirements in Subsections 19.1007.3.D and E, except that a second notice per Subsection 19.1007.3.D.3 is not required.
E.
At the conclusion of the first public hearing before City Council, the City Council shall take one of the following actions:
1.
Continue the matter to a date, time, and place certain.
2.
Approve the application, with or without changes. City staff, with review from the City Attorney, shall prepare written findings that demonstrate how the application meets all applicable approval criteria.
3.
Deny the application. City staff, with review from the City Attorney, shall prepare written findings that demonstrate how the application fails to meet any applicable approval criteria.
F.
Written notice of decision shall be mailed to the following parties within 7 days of the date of the decision:
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments at or prior to any public hearing.
4.
Any group or individual who submitted oral testimony during any public hearing.
5.
Any governmental agency which is entitled to receive notice per the municipal code or has requested notice of the decision.
6.
Any group or individual who requested notice of the decision, including those who signed the attendance sheet at any public hearing on the application.
G.
The City shall provide the required notice of adoption to the Department of Land Conservation and Development, as described in Subsection 19.1001.6.C.4.b.
H.
The notice of decision shall include the following:
1.
A description of the proposal with sufficient detail to explain the applicant's proposal.
2.
A description of the subject property reasonably sufficient to inform the reader of its location, including street address, if available, map and tax lot number, and zoning designation.
3.
A statement of the facts upon which the review authority relied to determine whether the application satisfied, or failed to satisfy, each applicable approval criterion.
4.
The decision to approve or deny the application and, if approved, any conditions of approval necessary to ensure compliance with the applicable criteria.
5.
The date the decision shall become final, unless appealed. The notice of decision shall state in boldface type the date and time by which an appeal must be filed. The statement shall reference the requirements for filing an appeal of the decision.
6.
A statement that only persons who submitted comments or made an appearance of record at a public hearing on the application have standing to appeal the decision by filing a written appeal within the appeal period for the Land Use Board of Appeals.
7.
A statement that the complete case file is available for review, including findings, conclusions, and conditions of approval, if any. The notice shall list when and where the case file is available and the name and telephone number of the City representative to contact about reviewing the case file.
8.
A summary of the requirements for appealing the decision to the Land Use Board of Appeals.
§ 19.1007.6 Appeal of a Type IV Decision.
The City Council decision on a Type IV application is the City's final decision. A Type IV decision may be appealed to the Land Use Board of Appeals consistent with ORS 197 and OAR 661, as may be amended. Only the applicant or persons who submitted comments or made an appearance of record at a public hearing on the application have standing to appeal a Type IV decision.
§ 19.1008 Type V Review
Type V applications are legislative in nature and involve the creation, revision, or largescale implementation of public policy (e.g., adoption of land use regulations, zone changes, and Comprehensive Plan amendments that apply to more than just one property). Type V review applications are evaluated by the Planning Commission at an initial evidentiary hearing and then forwarded to the City Council for a decision at a public hearing. The review process requires broader public notice than other types of applications and at least 2 public hearings.
The City Council, Planning Commission, Planning Director, or any individual may initiate a Type V application to amend the Milwaukie Comprehensive Plan or Zoning Ordinance.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019)
§ 19.1008.1 Preapplication Conference.
A preapplication conference is required for Type V applications that are initiated by any individual or party other than the City.
§ 19.1008.2 Type V Application Requirements.
§ 19.1008.3 Type V Public Notice.
A.
General Public Notice
The purpose of general public notice for Type V applications is to allow the public, organizations, and other governmental agencies a meaningful opportunity to review and comment on legislative proposals.
1.
The Planning Director shall provide opportunities for public review and input on legislative proposals at an early stage in the adoption process. This may include the referral process for Type III or IV applications; open houses; discussions with neighborhood district associations; work sessions with the City Council, Planning Commission, and other City boards and commissions; and/or direct communication with parties that may be affected by the proposal. This subsection is not prescriptive with regard to the timing or manner of public notice.
2.
At least 30 days prior to a public hearing on a Type V application, except for continuations as noted in Subsection 19.1001.6.C.3, the City shall provide notice of the hearing. At a minimum, the notice shall be available on the City web site and at City facilities that are open to the public and that customarily display public information. At a minimum, the notice shall include:
3.
Individual property owners shall be notified if the proposal involves a discrete geographic area or specific properties in the City. The Planning Director shall decide when individual property owner notification is warranted. The content of the notice shall be as described in Subsection 19.1008.3.A.2. The notice parties and timeline shall be as described in Subsection 19.1006.3.D.3.a and signage shall be provided as described in Subsection 19.1006.3.E.
B.
DLCD Notice
Notice of a Type V application shall be mailed to the Department of Land Conservation and Development as described in Subsection 19.1001.6.C.4.a.
C.
Metro Notice
Notice of a Type V application shall be mailed to Metro at least 35 days prior to the initial evidentiary hearing on adoption.
D.
Property Owner Notice (Measure 56)
At least 20 days but not more than 40 days before the initial evidentiary hearing on a Type V application, the City shall mail notice to owners of property within the City for which the proposed ordinance, if adopted, may, in the Planning Director's opinion, affect the permissible uses of land for those property owners. The notice shall, at a minimum, include the following information:
1.
A statement in bold type across the top of the first page of the notice that reads substantially as follows: "This is to notify you that the City of Milwaukie has proposed a land use regulation that may affect the permissible uses of your property or other properties."
2.
The case file number and/or ordinance number.
3.
A brief summary of the proposal, including how it may, if adopted, affect the permissible uses and value of property in the City.
4.
The date, time, and place of the hearing.
5.
A statement that a copy of the proposal is available for review at the City at no cost and that a copy can be obtained at a reasonable cost.
6.
The name and phone number of the City representative to contact for additional information.
7.
If applicable, a statement that the proposal is a result of an order of the Land Conservation and Development Commission.
E.
The City shall prepare an affidavit of mailing of notice for the file. The affidavit shall indicate the date that the required property owner notice was mailed to the parties required by SubSection 19.1008.3.D.
§ 19.1008.4 Type V Decision Authority.
§ 19.1008.5 Type V Recommendation and Decision.
The following procedures apply to applications evaluated through a Type V review.
A.
The Planning Commission shall serve as the recommendation authority for Type V applications.
B.
The Planning Commission shall conduct an initial evidentiary hearing and provide a recommendation to the City Council within 180 days from the date that the application was deemed complete.
C.
The Planning Commission may recommend that the City Council approve or deny the application with or without changes. The Planning Commission shall provide a written justification for the recommendation.
D.
The City shall provide notice of the hearing before the City Council consistent with the public notice requirements in Subsection 19.1008.3.A.
E.
At the conclusion of the first public hearing before City Council, the City Council shall take one of the following actions:
1.
Continue the matter to a date, time, and place certain.
2.
Remand the matter back to the recommendation authority for additional deliberation.
3.
Approve the proposal, with or without changes. City staff, with review from the City Attorney, shall prepare the ordinance with written findings that demonstrate how the proposal meets all applicable approval criteria.
4.
Deny the proposal. This action is appealable.
5.
Take no action on the proposal. This decision is not appealable.
F.
The City shall provide the required notice of adoption to the Department of Land Conservation and Development, as described in Subsection 19.1001.6.C.4.b.
G.
Within 7 days after the date on which one of the actions in Subsection 19.1008.5.E.3 or 4 is taken, the City shall mail, or otherwise provide, notice to persons who testified orally or in writing to the recommendation or review authority while the public record was open regarding the proposal. The notice shall include the following information:
§ 19.1008.6 Appeal of a Type V Decision.
The City Council decision on a Type V application is the City's final decision. A Type V decision may be appealed to the Land Use Board of Appeals consistent with ORS 197 and OAR 661, as may be amended. Only the applicant or persons who submitted comments or made an appearance of record at a public hearing on the application have standing to appeal a Type V decision.
§ 19.1009 Public Hearings
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019)
§ 19.1009.1 Responsibility of City for Public Hearings.
The City shall:
A.
Schedule land use applications for review and public hearing before the appropriate review authority as required per Table 19.1001.5.
B.
Provide public notice of the public hearing consistent with the requirements in this chapter.
C.
Prepare minutes for the public hearing that include the decision on the matter and the reasons for the decision.
D.
Provide a copy of the notice of decision to all parties, consistent with the requirements in this chapter.
§ 19.1009.2 General Public Notice Requirements.
§ 19.1009.3 Rules of Procedure.
A.
Public hearings shall be conducted in accordance with the bylaws and rules of procedure adopted for the hearing body by City Council. Additionally, the provisions in Subsections 19.1009.4-13 below apply to all public hearings.
B.
At the commencement of a hearing, a statement shall be made to those in attendance that:
1.
Lists the applicable approval criteria.
2.
States that testimony and evidence must be directed toward the applicable approval criteria or other criteria in the Zoning Ordinance or Comprehensive Plan that the person testifying believes is applicable to the proposal.
3.
States that failure to raise an issue accompanied by testimony or evidence sufficient to afford the review authority an opportunity to respond to the issue precludes an appeal of the decision.
§ 19.1009.4 Challenges to Impartiality.
A.
Except for Type V hearings, any hearing participant or a member of the hearing body may challenge the qualifications of a member of the hearing body to participate in the hearing and decision on the proposal. The challenge shall state the facts relied upon by the challenger relating to a person's bias, prejudgment, personal interest, ex parte contact or other facts from which the challenger has concluded that the member of the hearing body cannot participate in an impartial manner.
B.
The challenged person shall have an opportunity to respond to the challenge. The challenge and any response to the challenge shall be incorporated into the record of the hearing.
C.
The hearing body shall deliberate and vote to decide whether or not the challenged person may remain a member of the hearing body for the decision on which their impartiality was challenged. The person who is the subject of the challenge may not vote on the motion.
§ 19.1009.5 Financial Interests and Conflicts of Interest.
An employee or elected or appointed official of the City who has a direct or substantial financial interest in a proposal may not give an official opinion to the hearing body on the proposal. An elected or appointed official of the City who has a conflict of interest shall refrain from participating as a public official in any discussion or debate on the proposal out of which the actual conflict arises or from voting on the proposal per ORS 244.
§ 19.1009.6 Ex Parte Contacts.
Except for Type V hearings, the general public has a right to have the hearing body members unbiased by prehearing or ex parte contacts on proposals heard by them. This must be balanced with the public's right to access public officials on any matter. Therefore, hearing body members shall reveal any relevant prehearing or ex parte contacts at the commencement of the public hearing on the proposal. If such contacts have impaired the member's impartiality or ability to vote on the proposal, the member shall so state and shall abstain from voting. In addition, parties who had the communication with the member have the right to rebut the substance of the communication at the commencement of the public hearing on the proposal.
§ 19.1009.7 Disqualification.
Except for Type V hearings, disqualification for reasons other than the member's own judgment may be ordered by a majority of the members of a hearing body present and voting. The member who is the subject of the motion for disqualification may not vote on the motion.
§ 19.1009.8 Rights of Abstaining or Disqualified Member of the Hearing Body.
A.
An abstaining or disqualified member of the hearing body shall be counted for purposes of forming a quorum. A member who represents a personal interest at a hearing may do so only by making full disclosure to the hearing body, abstaining from voting on the proposal, vacating the seat on the hearing body, and physically joining the audience. A member representing a personal interest at a hearing shall not be counted for purposes of forming a quorum.
B.
If all members of a hearing body abstain or are disqualified, all members present after stating their reasons for abstention or disqualification shall be requalified and shall proceed with the hearing.
§ 19.1009.9 Absence of a Member of the Hearing Body.
Except for Type V hearings, a member absent during the presentation of evidence or testimony in a hearing may not participate in the deliberations or decision unless the member has reviewed all the evidence or testimony received.
§ 19.1009.10 Burden and Nature of Proof.
Except for Type V applications, the applicant shall bear the burden of proof and persuasion that the proposal complies with applicable provisions of the municipal code. The applicant and any opponents may submit a set of written findings or statements of factual information which are intended to demonstrate that the proposal complies, or fails to comply, with any or all applicable development standards and approval criteria.
§ 19.1009.11 Continuance of Hearing.
A.
Receipt of Additional Materials
All evidence, testimony, or documents relied upon by the applicant shall be submitted to the City and made available to the public. If additional evidence, testimony, or documents is provided by any hearing participant, the hearing body may allow a continuance or leave the record open for at least 7 days to allow other parties a reasonable opportunity to respond. The hearing body may ask the applicant to consider granting an extension of the 120-day decision requirement (or the 100-day decision requirement for a project meeting all provisions of ORS 197.311) if a delay in proceedings could impact the ability of the City to take final action on the application, including resolution of any local appeals.
B.
Request to Submit Additional Evidence or Testimony
Prior to closing the initial evidentiary hearing, any hearing participant may request an opportunity to present additional evidence or testimony regarding the application. The hearing body shall grant such request by continuing the public hearing or leaving the record open for additional written evidence or testimony pursuant to SubSection 19.1009.11.C below.
C.
Granting of Continuance
If the hearing body grants a continuance, the hearing shall be continued to a date, time, and place certain, at least 7 days from the date of the initial evidentiary hearing. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence and testimony. If new evidence or testimony is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open to submit additional written evidence or testimony for the purpose of responding to the new written evidence or testimony.
D.
Leaving the Record Open
If the hearing body leaves the record open for additional written evidence or testimony, the record shall be left open for at least 7 days. Any participant may file a written request with the hearing body for an opportunity to respond to new evidence or testimony submitted during the period the record was left open. If such a request is filed, the hearing body shall reopen the record and any person may raise new issues which relate to the new evidence, testimony, or criteria for decision-making.
E.
120-Day Decision Requirement
Except for Type V applications, a continuance or extension granted pursuant to Subsection 19.1009.11 shall be subject to the limitations of the 120-day decision requirement (or the 100-day decision requirement for projects meeting the provisions of ORS 197.311) unless the continuance or extension is requested or agreed to in writing by the applicant.
F.
Final Arguments by Applicant
Unless waived by the applicant, the hearing body shall allow the applicant at least 7 days after the record is closed to all other parties to submit final written arguments in support of the application. The applicant's final arguments shall be considered part of the record, but shall not include any new evidence. For purposes of Subsection 19.1009.11.F, "argument" means assertions and analysis regarding the satisfaction or violation of legal standards or policies believed relevant by the applicant. "Argument" does not include facts. "Evidence" means facts, documents, data or other information offered to demonstrate compliance or noncompliance with the standards believed by the applicant to be relevant to the decision.
§ 19.1009.12 Decision.
A.
Following the close of the public portion of the hearing, the hearing body shall approve, conditionally approve, or deny the application. If the hearing is an appeal, the hearing body shall affirm, reverse, or remand the decision that is on appeal. Remanding the decision to a prior hearing body requires that there is adequate time, pursuant to Subsection 19.1001.7.C for the prior hearing body to issue a decision and for the City to issue a final decision if the decision resulting from the remand is appealed.
B.
A final local decision on a Type I, II, III, or IV land use application shall be made within 120 days from the date the application was deemed complete (or within 100 days for a project meeting all provisions of ORS 197.311), except that, with the agreement of the hearing body and the applicant or appellant, the processing of a matter under consideration may be extended per Subsection 19.1001.7.C.
C.
Notice of decision shall be provided consistent with the requirements established for Type III, IV, and V applications and appeals in this chapter.
D.
The hearing body shall prepare written findings for the decision. The findings shall include:
1.
A statement of the applicable approval criteria against which the application was evaluated.
2.
A statement of the facts that the hearing body relied upon to determine whether the application satisfied, or failed to satisfy, each applicable approval criterion and Development standard.
3.
The decision to approve, conditionally approve, or deny an application and the reasons for that decision.
§ 19.1009.13 Record of Proceedings.
The City shall prepare and maintain minutes of all proceedings in accordance with the bylaws adopted by the City Council for the hearing body.
§ 19.1010 Appeals
A decision on the approval of a Type I, II, or III application may be appealed by filing a written appeal with the City within 15 days of the date on the notice of decision. If the 15th day falls upon a weekend or legal holiday, the end of the appeal period shall be extended to the end of the next day which is not a weekend or legal holiday. Table 19.1001.5 identifies the review authority and appeal authority for each review type.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2229 § 2, 2023; Ord. 2235 § 2, 2023)
§ 19.1010.1 Filing an Appeal.
A.
An appeal application shall contain the following information:
1.
Date and case file number of the decision being appealed.
2.
Documentation that the person filing the application has standing to appeal per SubSections 19.1010.4.A, 5.A, and 6.A.
3.
Detailed statement describing the basis of the appeal.
a.
For appeal of a Type I or III decision, the statement must identify which approval criterion or development standard is believed to have been overlooked or incorrectly interpreted or applied and/or which aspect of the proposal is believed to have been overlooked or incorrectly evaluated.
b.
For appeal of a Type II decision, the statement must identify either an error described in Subsection 19.1010.1.A.3.a or the manner in which the person filing the appeal was adversely impacted or aggrieved by the decision.
B.
The appeal application fee shall be paid at the time of filing.
C.
If the appeal application and applicable fee are not submitted within the 15-day appeal period, or if the appeal application does not contain the required items specified in Subsections 19.1010.1.A.1-3 above, the application shall not be accepted by the City. A decision by the City to not accept an appeal within the specified appeal period shall be final.
§ 19.1010.2 General Procedures Applicable to All Appeals.
Appeal hearings before the appropriate appeal authority, as specified in Table 19.1001.5, shall be conducted in accordance with the public hearing provisions in Section 19.1009.
§ 19.1010.3 Types of Appeal Hearings.
The City has two types of hearings used for appeals of land use decisions. The general procedures for these hearings are as follows.
A.
Unrestricted De Novo Hearing
An unrestricted de novo hearing allows for the presentation of new evidence, testimony, and argument by any party. The appeal authority shall consider all relevant evidence, testimony, and argument that are provided at the hearing by the appellant or any party. The scope of the hearing shall not be limited to the issues that were raised on appeal. The standard of review for an unrestricted de novo hearing is whether the initial decision has findings and/or conditions that are in error as a matter of fact or law.
B.
On the Record De Novo Hearing
An on the record de novo hearing does not allow for the presentation of new evidence by any party. New testimony is allowed. New arguments are allowed based on evidence already in the record and testimony that is new or already in the record. The scope of the hearing is not limited to the issues that were raised on appeal. The standard of review for an on the record de novo hearing is a new evaluation of existing evidence, new and existing testimony, and new and existing arguments.
§ 19.1010.4 Specific Provisions for Appeal of a Type I Decision.
A.
A Type I decision may only be appealed by the applicant or the applicant's representative.
B.
The City shall mail written notice of the appeal hearing to the applicant or the applicant's representative at least 20 days prior to the appeal hearing.
C.
The appeal hearing shall be an unrestricted de novo hearing.
D.
The decision of the designated appeal authority for appeals of Type I decisions shall be the final local decision.
§ 19.1010.5 Specific Provisions for Appeal of a Type II Decision.
A.
A Type II decision may be appealed by the applicant, the applicant's representative, or any other person or organization who is adversely affected or aggrieved by the decision.
B.
At least 20 days prior to the appeal hearing, the City shall mail written notice of the appeal hearing to all parties who were entitled to Type II public notice per Subsection 19.1005.3.B.1, interested persons, and the appellant(s).
C.
The appeal hearing shall be an unrestricted de novo hearing.
D.
The decision of the designated appeal authority for appeals of Type II decisions shall be the final local decision.
§ 19.1010.6 Specific Provisions for Appeal of a Type III Decision.
A.
A Type III decision may be appealed by the applicant, applicant's representative, or any other person or organization who participated in the original decision by providing either testimony or evidence on the record leading to the decision by the review authority.
B.
At least 20 days prior to the appeal hearing, the City will mail written notice of the appeal hearing to all parties who were entitled to Type III public notice per Subsection 19.1006.3.D.1, interested persons, the appellant(s), and Planning Commission.
C.
The appeal hearing shall be an on the record de novo hearing.
D.
The record shall include:
1.
A factual report prepared by the Planning Director.
2.
All exhibits, materials, pleadings, memoranda, stipulations, and motions submitted by any party and reviewed or considered in reaching the decision under appeal.
3.
The minutes from the original hearing and a detailed summary of the evidence and testimony.
E.
The decision of the designated appeal authority for appeals of Type III decisions shall be the final local decision.
§ 19.1010.7 Notice of Decision.
A.
Written notice of decision shall be mailed to the following parties within 7 days of the date of the decision:
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments at or prior to any public hearing.
4.
Any group or individual who submitted oral testimony during any public hearing.
5.
Any governmental agency that is entitled to receive notice per the municipal code or has requested notice of the decision.
6.
Any group or individual who requested notice of the decision, including those who signed the attendance sheet at any public hearing on the application.
B.
The notice of decision shall include the following:
1.
A description of the proposal with sufficient detail to explain the project background.
2.
A description of the hearings and process to date.
3.
A statement of the limitations on evidence.
4.
A statement of the applicable criteria, findings, and conditions of approval.
5.
A statement that only persons who submitted comments or made an appearance of record at a public hearing on the application have standing to appeal the decision by filing a written appeal within the appeal period for the Land Use Board of Appeals.
6.
A statement that the complete case file is available for review, including findings, conclusions, and conditions of approval, if any. The notice shall list when and where the case file is available and the name and telephone number of the City representative to contact about reviewing the case file.
7.
A summary of the requirements for appealing the decision to the Land Use Board of Appeals.
§ 19.1010.8 Remand from the Land Use Board of Appeals.
City of Milwaukie decisions remanded by the Land Use Board of Appeals shall be heard by the appeal authority following the procedures of Section 19.1009 and shall be decided within 90 days from the date of the remand.