The purpose of this section is to designate and define the responsibilities of the approving authorities and to set forth the procedural requirements for land use actions requiring public notice before or after the decision.

The following is a description of four general types of land use actions/decision-making procedures utilized for land use and limited land use decisions within the City of Newport:

A.

Type I Land Use Actions. Type I decisions are generally made by the Community Development Director without public notice prior to the decision and without a public hearing. A notice of the decision and opportunity to appeal is provided. Type I decisions involve limited administrative discretion. An example of a Type I action is an estuarine review. An appeal of a Type I decision is heard by the Planning Commission.

B.

Type II Land Use Actions. Type II decisions are generally made by the Community Development Director with public notice and an opportunity to comment but without a public hearing. Type II decisions involve administrative discretion in the application of criteria but usually involve land use actions with limited impacts or involve limited land use decisions. Examples of Type II actions include Conditional Use Permits that generate less than 50 vehicle trips per day and involve property that is less than an acre in size, Property Line Adjustments, Partitions, Replats, Subdivisions, and requests to alter or expand a non-conforming use. An appeal of a Type II decision by the Community Development Director is heard by the Planning Commission, and an appeal of a Type II decision by the Planning Commission is heard by the City Council.

C.

Type III Land Use Actions. Type III decisions are considered quasi-judicial land use actions and generally are made by the Planning Commission after public notice and a public hearing. Type III decisions generally use discretionary criteria or involve land use actions with larger impacts than those reviewed under a Type I or Type II procedure. Examples of Type III actions include conditional use permits that generate more than 50 trips per day, variances, and preliminary and final planned development applications. An appeal of a Type III permit decision is heard by the City Council.

D.

Type IV Land Use Actions. Type IV decisions are made by the City Council as either quasi-judicial or legislative decisions involving land use action such as urban growth boundary amendments, Comprehensive Plan map/text amendments, Zoning map/text amendments, annexation requests, planned destination resorts conceptual master plans, and street/plat vacations for which an ordinance must be adopted by the City Council. Most Type IV decisions require a public hearing and recommendation by the Planning Commission prior to the City Council public hearing.

(Ordinance No. 1989, January 1, 2010; Ordinance No. 2228, January 6, 2025; Ord. No. 2025-06, § 2(Exh. A), 10-6-2025)

The approving authority for the various land use and ministerial actions shall be as follows:

A.

City Council. A public hearing before the Council is required for all land use actions identified below. Items with an "*" require a public hearing and recommendation from the Planning Commission prior to a City Council hearing.

1.

Annexations*.

2.

Comprehensive Plan amendments (text or map)*.

3.

Planned destination resorts—conceptual master plans*.

4.

Urban growth boundary amendments*.

5.

Vacations (plat or street)*.

6.

Withdrawals of territory (public hearing required).

7.

Zone Ordinance amendments (text or map)*.

8.

Any other land use action defined in ordinance as a Type IV action*.

9.

Any land use action seeking to modify any action or conditions on actions above previously approved by the City Council where no other modification process is identified.

10.

Appeals of a Planning Commission action.

B.

Planning Commission. A public hearing before the Commission is required for all land use actions identified below. Items with an "*" are subject to Planning Commission review as defined in the section of the ordinance containing the standards for that particular type of land use action. Planning Commission decisions may be appealed to the City Council.

1.

Conditional use permits*.

2.

Planned destination resorts - preliminary and final development plans*.

3.

Planned developments.

4.

Variances.

5.

Adjustments*.

6.

Design review*.

7.

Any land use decision defined as a Type III action.

8.

Any land use action seeking to modify any action or conditions on actions above previously approved by the Planning Commission where no other modification process is identified.

9.

Appeal of the Community Development Director decision under a Type I or Type II action.

C.

Community Development Director. Land use actions decided by the Director are identified below. A public hearing is not required prior to a decision being rendered. Items with an "*" are subject to Director review as defined in the section of the ordinance containing the standards for that particular type of land use action. Decisions made by the Community Development Director may be appealed to the Planning Commission.

1.

Conditional use permits*.

2.

Subdivision.

3.

Partitions.

4.

Replats.

5.

Estuarine review.

6.

Adjustments*.

7.

Nonconforming use changes or expansions.

8.

Design review*.

9.

Ocean shorelands review.

10.

Interpretations of provisions of the Comprehensive Plan or Zoning Ordinance that require factual, policy, or legal discretion.

11.

Any land use decision or limited land use decision defined as a Type I or Type II action.

12.

Any land use action seeking to modify any action or conditions on actions above previously approved by the Community Development Director where no other modification process is identified.

13.

Ministerial actions necessary to implement Title XIV of the Newport Municipal Code, including final plats, property line adjustment conveyance documents, public improvement agreements, temporary uses (unless an alternative process is provided), and confirmation that building permits satisfy clear and objective approval standards.

(Ordinance No. 2222, September 16, 2024; Ordinance No. 2228, January 6, 2025; Ord. No. 2025-06, § 2(Exh. A), 10-6-2025)

All requests for land use actions shall be on forms prescribed by the city. The Community Development Department prepares the application forms and, from time to time, amends the forms as the need arises. At a minimum, the application shall require the following:

A.

Name and address of the applicant.

B.

Name and address of the property owner, if different and applicable.

C.

Legal description of the property, if applicable.

D.

A site plan drawn to scale, if applicable, which shows dimension, property lines, existing buildings, and/or the proposed development.

E.

A Lincoln County Assessor's map showing the subject property and the notification area, if applicable.

F.

Street address of the subject property, if applicable.

G.

Names and addresses of property owners within the notification area, if applicable, as shown in the records of the county assessor.

H.

Signature blocks for the applicant and property owner, if different and applicable.

I.

Comprehensive plan and zoning designation of the subject property, if applicable.

J.

Findings of fact and other information that support the request and address all the applicable criteria.

K.

A current list of the site addresses of any structure in the area proposed to be annexed, if applicable.

L.

Any other information as identified by ordinance for the applicable type of land use action.

A.

Purpose and Intent. The purpose of the conference shall be to acquaint the applicant with the substantive and procedural requirements of the Development Code and to identify issues likely to arise in processing an application. Pre-application conferences shall be conducted by the Community Development Director and/or his or her designee and shall include other city officials and public agency representatives as may be necessary for preliminary staff review of the proposal and to provide guidance to the applicant.

B.

Applicability. A pre-application conference with the City of Newport is required for Type III, and Type IV applications and other permit types as specified, unless waived by the Community Development Director.

C.

Pre-application Materials. The applicant is requested to provide the following materials prior to the pre-application conference.

1.

Location and conceptual site plan of the proposed development.

2.

List of questions for staff.

(Ordinance No. 2199, August 15, 2022)

A property owner, any person with the written approval of the property owner, or the City Manager, may apply for a land use action. All documents or evidence in the file on an application shall be available to the public.

A.

Not later than 30 calendar days after receipt, the Community Development Director or designate shall determine whether or not the applicant is complete and notify the applicant in writing of what information is missing and allow the applicant to submit the missing information. If the Community Development Director or designate does not make a determination of an incomplete application within 30 days after receipt, the application is deemed complete. Complete applications shall be accepted and processed. If an application is deemed incomplete, the application shall be deemed complete upon receipt by the Community Development Department of:

1.

All of the missing information;

2.

Some of the missing information and written notice that no other information will be provided; or

3.

Written notice that none of the missing information will be provided.

B.

The completeness determination is not a review of the merit of the application and a positive completeness determination is not a conclusion that the application can be approved.

C.

On the 181st calendar day after first being submitted, the application shall be void if the applicant has been notified of the missing information as required under subsection A above and has not submitted:

1.

All of the missing information;

2.

Some of the missing information and written notice that no other information will be provided; or

3.

Written notice that none of the missing information will be provided.

D.

For applications subject to ORS 227.178, if the application was complete when first submitted, or if the applicant submits the requested information within 180 calendar days of the date the application was first submitted, approval or denial of the application shall be based on the standards and criteria that were applicable at the time the application was first submitted.

E.

For applications subject to ORS 227.178, the 100 and 120 day rules as specified in ORS 227.178 shall be applicable.

(Ordinance No. 2125, December 4, 2017)

The notification requirements in general for the various types of land use actions are identified below. The applicant shall provide city staff with the required names and addresses for notice. Notice of hearings to individual property owners is not required for Type IV legislative actions unless required by state law, such as ORS 227.186 (notice to owners whose property is rezoned). These notification requirements are in addition to any other notice requirements imposed by state law or city ordinance.

A.

Information Required in All Notices of Actions and Hearings.

1.

Name of applicant and property owner (if different), and file number.

2.

Location of property (if applicable).

3.

Date, time, and location for public hearing (for all hearings).

4.

A brief summary of the nature and substance of the application or decision.

5.

A list of applicable Newport Ordinance and/or Comprehensive Plan standards and where the applicable criteria may be found.

6.

A statement that relevant information (decision, staff report, application or other materials) may be reviewed and providing information about where and when they can be reviewed, and a statement that copies are available at cost).

7.

Staff contact information, including name, address, and phone number.

8.

Date the notice is mailed.

B.

Information Required in Specific Notices.

1.

Date of decision (for Type I actions).

2.

A statement describing the process and the deadline for filing comments (for Type II actions).

3.

A statement that the failure to raise an issue with sufficient specificity to allow the decision maker an opportunity to respond to the issue precludes raising the issue on appeal, including an appeal to the Land Use Board of Appeals (for Type II and III and quasi-judicial Type IV actions).

4.

Date, time, and location of the hearing (all hearing notices).

5.

A statement that the staff report will be available for view at no cost and that copies will be available at a reasonable cost at least seven days before the hearing (Type III and Type IV quasi-judicial actions).

6.

A general description of the hearing process, including the process for submitting written materials (Type III and IV actions).

7.

An explanation of the use or uses that could be authorized by the decision (Type IV actions).

C.

Mailing of Notice. Notices of hearings and applications shall be mailed by first class mail at least 14 days prior to the deadline for providing testimony for Type II actions and at least 20 days prior to the public hearing for Type III and Type IV quasi-judicial actions. Notices shall be mailed to:

1.

The applicant and property owner (if different).

2.

Any affected public agency, including ODOT or Lincoln County Transit, or public/private utility.

3.

Any person who has requested notice of the hearing or action in writing.

4.

Any officially recognized neighborhood association whose boundaries include the subject property.

5.

Record owners of property (as specified in the most recent Lincoln County Assessor's property tax assessment roll):

a.

Within 100 feet of the subject property (Type II actions involving limited land use decisions).

b.

Within 200 feet of the subject property (Type I actions, Type II actions other than limited land use decisions, and Type III actions).

c.

Within 300 feet of the subject property (Type IV quasi-judicial actions).

D.

Written Notice for Rezoning of Mobile Home or Manufactured Dwelling Park. If an application would change the zone of property that includes all or part of a mobile home or manufactured dwelling park, written notice by first class mail shall be given 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, before the date of the first hearing on the application.

E.

Written Notice to Airport Owners. Notice of a public hearing on a zone use application shall also be provided to the owner of an airport, defined by the Department of Transportation as a "public use airport," if:

1.

The name and address of the airport owner has been provided by the Aeronautics Division of the Department of Transportation to the City Community (Planning) Department; and

2.

The property subject to the zone use hearing is:

a.

Within 5,000 feet of the side or end of a runway of an airport determined by the Department of Transportation to be a "visual airport," or

b.

Within 10,000 feet of the side or end of the runway of an airport determined by the Department of Transportation to be an "instrument airport."

3.

Notice of a zone use hearing need not be provided if the permit or zone change would only allow a structure less than 35 feet in height, and the property is located outside of the runway "approach surface" as defined by the Department of Transportation.

F.

Published Notice. Notice of each Type III and Type IV hearing shall be published at least once in a print format or digital newspaper of general circulation in the city at least five days, and no more than 14 days, prior to the date set for public hearing. For the purpose of this subsection, a digital newspaper is an online newspaper delivered in an electronic form that is formatted similarly to a printed newspaper and produced in an archivable format.

G.

Written Notice for Land Use Decision in Estuary Zone Districts. The City of Newport shall notify state and federal agencies with jurisdiction in estuaries of estuary use applications which may require their review. This notice will include a description of the use applied for, references to applicable policies and standards, and notification of comment and appeal period.

(Ordinance No. 2216, January 2, 2024; Ordinance No. 2225, October 7, 2024; Ordinance No. 2228, January 6, 2025)

Staff reports on any quasi-judicial land use action shall be available for public inspection at least seven days prior to the date set for public hearing, and copies will be provided at the city's rate for photocopies.

This section shall govern the conduct of quasi-judicial/limited land use hearings. The following public hearing procedures are the minimum procedures for use in conduct of quasi-judicial and limited land use hearings and may be supplemented by any duly adopted rules of procedure.

A.

Nature and General Conduct of Hearing. The approving authority, in conducting a hearing involving a land use action, is acting in a quasi-judicial capacity, and all hearings shall be conducted accordingly. Parties to the hearing are entitled to an opportunity to be heard, to present and rebut evidence, and to have a decision based on evidence supported by findings of fact and supporting information. Testimony shall be made with sufficient specificity so as to afford the approving authority and other parties an adequate opportunity to respond to each issue.

B.

Disqualification, Ex Parte Contacts, Bias, Challenges to Participation. Proponents and opponents are entitled to an impartial tribunal that judge land use actions. A proponent or opponent may, therefore, challenge the qualifications of a member of the approving authority to participate in the meeting or decision. A challenge must state with sufficient specificity the facts relied upon by the submitting party relating the person's bias, prejudgment, personal interest, or other facts from which the party has concluded that the member of the approving authority may be unable to participate and make a decision in an impartial manner. Challenges shall be incorporated into the record of the meeting.

1.

Disqualification. No member of the approving authority shall participate in discussion of an application or vote on an application for any land use action when any of the following conditions exist:

a.

Any of the following have a direct or substantial financial interest in the proposal: members of the approving authority or a member's spouse, brother, sister, child, parent, father-in-law, mother-in-law, or household, or there is an actual conflict of interest under state law.

b.

The land use action involves a business in which the member is directly associated or has served within the past two years, or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment.

c.

The member owns property within the area entitled to receive notice of the action.

d.

For any other reason, the member has determined that participation in the decision cannot be in an impartial manner.

2.

Disclosure of Potential Conflict of Interest. Even if an approval authority member chooses to participate, the member shall disclose any potential conflict of interest as required by state law.

3.

Ex Parte Contacts. In quasi-judicial matters, approving authority members shall reveal any ex parte contacts, including site visits. Parties to a hearing shall have the right to rebut the substance of an ex parte contact.

4.

Challenges. Any person may challenge the participation of a member of the approving authority in a decision-making process. A challenge must state with sufficient specificity the factual and legal basis of the reasons for the challenge.

5.

Rights of Disqualified Members of the Approving Authority. An abstaining or disqualified member of the approving authority shall be counted if present for purposes of forming a quorum. A member who represents personal interest at a meeting may do so only by abstaining from voting on the proposal, vacating the seat on the approving authority, and physically joining the audience, and by making full disclosure of his or her status and position at the time of addressing the approving authority.

6.

Requalification of Disqualified Members of the Approving Authority. If all members of the approving authority abstain or are disqualified, all members present, after stating their reasons for abstention or disqualification, shall by doing so be requalified unless prohibited by state law and proceed to hear the issues and make a decision.

7.

Participation in Decision by Absent Member of Approving Authority. A member of the approving authority absent during the presentation of evidence in a land use action meeting may not participate in the deliberations or final decision regarding the matter of the meeting unless the member has reviewed all the evidence in the record to date, including audio tapes of prior meetings.

8.

Failure to Achieve Meeting Quorum. In the event an approving authority is not able to achieve a quorum for a meeting at which there is scheduled a consideration of a land use action, the land use action shall be automatically set over to the next regularly-scheduled approving authority meeting. In the event that an approving authority other than the City Council is unable to achieve quorum for two consecutive meetings, the land use action shall be scheduled for a public hearing before the next level of approving authority and shall be renoticed and a new public hearing held.

9.

Failure to Make a Final Decision on a Quasi-Judicial Land Use Action, Limited Land Use Action, or on Appeal. In the event an approving authority other than the City Council is not able to make a final decision on a quasi-judicial land use action within three meetings after the hearing or record is closed, the land use action shall be scheduled for a public hearing before the next level of approving authority and shall be renoticed and a new public or appeal hearing held. In the event that an approving authority other than the City Council becomes deadlocked through an even split in the approving authority such that a decision cannot be made, the approving authority shall forward the land use action to the next higher review authority for a new public or appeal hearing.

C.

Public Hearing. This subsection shall govern the conduct of all public hearings.

1.

Nature of Hearing. All parties participating in a public hearing shall have an opportunity to be heard, to present and rebut evidence, to have the proceedings recorded, and to have a decision rendered in accordance with the facts on record and the law. The presiding officer of the approving authority shall have authority to:

a.

Regulate the course and decorum of the meeting.

b.

Dispose of procedural requests and similar matters.

c.

Impose reasonable limitations on the number of witnesses heard and set reasonable time limits for oral presentation, questions, and rebuttal testimony.

d.

Question any person appearing, and allow other members to question any such person.

e.

Waive the application of any rule herein where the circumstances of the hearing indicate that it would be expedient and proper to do so, provided that such waiver does not act to prejudice or deny any party substantial rights as provided herein or otherwise by law.

f.

Take such other action as authorized by the approving authority to appropriately conduct the hearing.

A ruling of the presiding officer may be challenged by any member of that approving authority present at the hearing. The challenge must be seconded. A ruling may be reversed by a majority of the members present and voting. A tie vote upholds the presiding officer's decision.

2.

Conduct of Participants. Proceedings shall at all times be orderly and respectful. The presiding officer may refuse to recognize or may exclude from the hearing anyone who:

a.

Is disorderly, abusive, or disruptive.

b.

Takes part in or encourages audience demonstrations such as applause, cheering, display of signs, or other conduct disruptive to the hearing.

c.

Testifies without first receiving recognition from the presiding officer.

d.

Presents irrelevant, immaterial, or repetitious evidence.

3.

Order of Procedure. The hearing shall proceed in the following manner:

a.

Open Public Hearing. The presiding officer shall open the public hearing and announce the nature and purpose of the hearing, identify the applicant, describe the general nature of the proposal, and state (or defer to staff to state) the applicable substantive criteria by which the application is being judged. The presiding officer shall also state that testimony and evidence must be directed toward the applicable criteria. In addition, for quasi-judicial land use actions or limited land use actions, the presiding officer shall state that failure to raise an issue with sufficient specificity to afford the approving authority and the parties an opportunity to respond to the issue precludes an appeal based on that issue, including to the Land Use Board of Appeals.

b.

Call for Abstentions. The presiding officer shall call for any conflicts of interest, and, if applicable, ex parte contacts, or site visits by members of the approving authority.

c.

Call for Objections. The presiding officer shall call for any objections to the approving authority hearing the matter before it.

d.

Staff Report. Staff present a staff report and any recommendations.

e.

Proponents' Presentation. The presiding officer shall call for testimony from the applicant and from any person supporting the application.

f.

Opponents' Presentation. The presiding officer shall call for testimony from any person objecting to the application.

g.

Rebuttal by Applicant. The presiding officer shall call for rebuttal from the applicant in response to evidence or issues raised by the opponents.

h.

Continuance. Review authorities may continue a public hearing or leave a record open to allow for additional testimony. In a quasi-judicial or limited land use action, prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, arguments, or testimony regarding the application. If the request is made prior to the conclusion of the initial evidentiary hearing, the review authority shall grant the request by either continuing the public hearing or leaving the record open in conformance with the requirements of ORS 197.763.

i.

Close Public Hearing. Unless there is a continuance, the presiding officer shall close the public hearing and state that no further testimony will be received by the approving authority.

j.

Deliberation by Approving Authority. The approving authority shall consider the testimony and evidence before it in open discussion. The approving authority may ask questions of staff. The approving authority may ask proponents or opponents for clarification on a matter; but if they choose to do so, others must be given opportunity to rebut.

k.

Decision. Following deliberation, the approving authority shall vote on the matter, including on any conditions of approval to be attached (or in the case of a review and recommendation, any recommended conditions of approval).

l.

Adoption of Findings of Fact. The approving authority shall adopt findings of fact that support their decision. If there are no findings available to support their decision, staff may prepare findings of fact to be presented at a future meeting. The approving authority may also call for the preparation of findings of fact by the proponent or opponent, or any combination, including staff, of each to be presented at a future meeting. The approving authority may also request that findings of fact be presented at a future meeting other than the next regularly-scheduled meeting. For hearings that are for a review and recommendation only, no findings of fact are required.

m.

Final Decision. The decision of the approving authority is final when reduced to writing and signed by the presiding officer of the approving authority. Final decisions shall be by order unless an ordinance is required for the decision. Appeal periods shall begin from the date the final decision is signed. For hearings that are for a review and recommendation only, no final order is required.

n.

Notice of Decision. A notice of the decision (except for those made for the purpose of a review and recommendation only) made by the approving authority shall be given to:

i.

Anyone who has made appearance of record (see Section 14.39.045); and

ii.

Anyone who has filed a written request for notice of the approving authority's decision; and

iii.

Anyone who has requested notice of any appeal hearing.

This section shall govern the conduct of legislative land use hearings. The following public hearing procedures are the minimum procedures for use in conduct of legislative land use hearings and may be supplemented by any duly adopted rules of procedure.

A.

Nature and General Conduct of Hearing. The approving authority, in conducting a hearing involving a legislative land use action, is acting in a legislative capacity, and all hearings shall be conducted accordingly.

B.

Disqualification. No member of the approving authority shall participate in discussion of an application or vote on an application for any land use action when there exists an actual conflict of interest under state law. Potential conflicts of interest under state law shall be disclosed by members of the approving authority. An abstaining or disqualified member of the approving authority shall be counted if present for purposes of forming a quorum.

C.

Failure to Achieve Meeting Quorum. In the event an approving authority is not able to achieve a quorum for a meeting at which there is scheduled a consideration of a land use action, the land use action shall be automatically set over to the next regularly-scheduled approving authority meeting. In the event that an approving authority other than the City Council is unable to achieve quorum for two consecutive meetings, the land use action shall be scheduled for a public hearing before the next level of approving authority and shall be renoticed and a new public hearing held.

D.

Public Hearing. The public hearing process identified above in 14.52.080(C) for quasi-judicial/limited land use hearings shall be utilized with the following modifications noted for the legislative hearing process to the following subsections of 14.52.080(C)(3):

1.

Final Decision. The decision of the approving authority is final when reduced to writing and signed by the presiding officer of the approving authority. Final decisions shall be by order unless an ordinance is required for the decision. Appeal periods shall begin from the date the final decision is signed. For hearings that are for a review and recommendation only, no final order is required. Unless required by law to do so, the approving authority is not obligated to adopt a final order or ordinance if the approving authority chooses not to adopt a legislative amendment.

2.

Notice of Decision. A notice of the decision (except for those made for the purpose of a review and recommendation only) made by the approving authority shall be given to:

a.

Anyone who has made appearance of record (see Section 14.52.080(B)) and submitted a written request for a notice of decision; and

b.

Anyone who has filed a written request for notice of the approving authority's decision.

c.

The Department of Land Conservation and Development as required for a post acknowledgement plan amendment.

Any person with standing may appeal a decision of the approving authority. No person shall have standing to appeal unless the person made an appearance of record in the initial proceeding prior to the close of the public comment period, public hearing, or close of the record. All appeals shall be made no later than 15 calendar days after the date the final order is signed. "Appearance of record" shall mean either appearance in person or in writing. City Council decisions may be appealed to the Oregon Land Use Board of Appeals as provided by state law.

A.

Appeal Document. All appeals shall be signed by the appellant or authorized agent and shall contain:

1.

An identification of the decision sought to be reviewed, including the date of the decision.

2.

A statement demonstrating that the appellant has standing to appeal.

3.

A statement of the specific grounds which the appellant relies on as the basis for the appeal. If the appellant contends that the findings of fact made by the approving authority are incorrect or incomplete, the application shall specify the factual matters omitted or disputed. If the appellant contends that the decision is contrary to city code, an ordinance statute, or other law, the appeal shall identify the city code, an ordinance, statute, or other legal provision, and state how the applicable provision has been violated. For appeals of a quasi-judicial or limited land use action, a statement demonstrating that the appeal issues were raised with sufficient specificity in the hearing below.

B.

Scope of Review. Unless the appeal is heard de novo, the appeal of a decision by a person with standing shall be limited to the specific issues raised during the hearing from which the decision is being appealed. Approving authorities may hear appeals on the record of the initial hearing (if a previous hearing was held) or de novo. An appeal of a limited land use decision, or a land use decision that had a previous hearing, shall be held on the record unless the approving authority determines that a de novo hearing is warranted.

1.

When De Novo Hearing is Warranted.

a.

Where a land use decision was made without a public hearing, the appeal shall be heard de novo.

b.

For a limited land use decision, or land use decision made following a public hearing, the approving authority may consider holding the appeal de novo for any of the following reasons:

i.

The appellant(s) have documented as part of a petition to appeal a significant procedural error that resulted in a substantive harm to their ability to participate that could be cured by a de novo hearing.

ii.

The appeal of the decision is part of a package of land use actions submitted by the applicant that include other land use actions that will be considered in a public hearing before the review authority, and it would be more efficient to conduct the appeal de novo in conjunction with the hearings for the other land use actions.

iii.

A significant number of appeals have been filed such that the efficiency of the appeal process would be better served through a de novo hearing.

2.

Procedure for Determining when De Novo Hearing Is Warranted on Appeal from a Land Use Decision Made Following a Public Hearing.

a.

Following the end of the appeal period for which an appeal has been filed with a request for a de novo hearing, the matter of the de novo appeal hearing request shall be scheduled at the next available approving authority meeting for consideration.

b.

The appeal authority shall review the submitted request for de novo hearing along with any staff and applicant (if other than appellant) input on the matter and make a decision.

C.

Notice of Appeal. Notice of the appeal hearing shall be given to the applicant, the applicant's authorized agent (if any), and to interested persons. Interested persons are:

1.

Anyone who has made appearance of record;

2.

Anyone who has filed a written request for notice of the approving authority's decision; and

3.

Anyone who has requested notice of any appeal hearing.

D.

Appeal Hearings. The following is a minimum set of procedures supplemented by any duly adopted rules of procedure:

1.

Appeal hearings on the record shall be conducted as follows:

a.

A record of hearing shall be prepared by the Community Development Department containing the written material involving the approval through the filing of the appeal. A transcript of the hearing shall be prepared and included with the record.

b.

Following preparation of the record, a date for the on-the-record hearing shall be set by the Community Development Department, and notice of the date of the appeal hearing shall be given.

c.

The appellant(s) shall have seven calendar days from the date the record is available to supplement the petition for appeal by identifying items in the record in support of the appeal ("support brief").

d.

The applicant(s) (if other than the appellant) and city staff shall have seven calendar days from the date the appellant support brief is due to respond ("response brief").

e.

The appeal hearing will allow for comments by city staff, argument from appellant(s), applicant(s) (if other than appellant), rebuttal, and questions and deliberation by the approving authority.

2.

De novo appeal hearings may be held by the appeals approving authority. In cases of a de novo hearing, the same procedure shall be used as was employed in the initial hearing.

3.

Ability for City Council to deny appeal without hearing. The City Council may deny an appeal from a Planning Commission decision where the Planning Commission has held a de novo hearing following an appeal of a decision of the Community Development Director for land use actions subject to the 120-day rule in ORS 227.178. If the City Council votes to deny an appeal, the Council shall adopt the Planning Commission Final Order as the final decision of the City.

E.

Appeals Decision. Upon review of the appeal, the appeals approving authority may, by final order, affirm, reverse, or modify in whole or part the initial decision. When the appeals approving authority modifies or reverses a decision of the initial approving authority, the final order shall set forth findings and reasons for the change. The appeals approving authority may also remand the matter back to the initial approving authority for further consideration or clarification. A notice of the decision made by the approving authority shall be given to:

1.

Anyone who has made appearance of record; and

2.

Anyone who has filed a written request for notice of the approving authority's decision; and

3.

Anyone who has requested notice of any appeal hearing.

F.

Judicial Finality. No permit shall be issued, no permit or approval shall be considered valid, and no project may proceed, based on any land use decision of the City of Newport for a land use action processed under this section of the Ordinance, until such time as all rights of appeal from such decision have been exhausted and such decision is "judicially final." A decision shall be considered judicially final at such time as any applicable period for the appeal of such decision shall have expired without initiation of an appeal, or any properly initiated appeal shall have been exhausted, whichever is later. However, this shall not preclude the making of an application for, or the conduct of proceedings to consider, the issuance of a permit or approval based on such land use decision.

(Ordinance No. 2228, January 6, 2025)

Once a complete application is received by the City of Newport, the city shall take final action, including resolution of all local appeals, on applications subject to ORS 227.178 within 100 or 120 days, as applicable, unless otherwise waived by the applicant in accordance with state requirements. In circumstances where a land use action involving the development of residential structures has been tentatively approved, the 100 or 120 day time limits shall be extended up to seven additional days to allow for the adoption of a final order affirming the tentative decision.

(Ordinance No. 2125, December 4, 2017; Ordinance No. 2216, January 2, 2024)

All city decision makers have the authority to impose reasonable conditions of approval designed to ensure that all applicable approval standards are, or can be met.

Any applicant for a land use action may apply at one time for all related land use actions. Where different land use actions requiring different review authorities are submitted, decisions on applications made by a lower level review authority may be made contingent on the applicant receiving approval from the higher level review authority. Alternatively, the higher level reviewing authority may take action on all of the related land use actions. Fees for land use actions that are consolidated are set forth as established by resolution of the City Council for land use fees.

Expiration or extension of all land use actions shall be as follows:

A.

All land use actions shall be void if within 24 months of the date of the final decision:

1.

All necessary building permit(s) have not been issued, if required; or

2.

The authorized use has been established; or

3.

In cases where a final plat is required, the final plat has not been signed by the city and referred for recording.

B.

Notwithstanding Subsection (A) of this section, the approval authority may set forth in its written decision specific instances or time periods when a permit expires.

C.

The Community Development Department may extend any approved land use action for a period of 12 months; provided the permit holder:

1.

Submits a written request for an extension of time prior to expiration of the approval period; and

2.

There have been no changes to the applicable comprehensive plan policies and ordinance provisions on which the approval was based.

D.

The Planning Commission may grant an additional 12-month extension after conducting a public hearing. Notice shall be the same as what was provided for the original land use action. The criteria for an extension are:

1.

An unforeseen change in the economic condition has affected the real estate market for the project; or

2.

The weather has prevented the physical work; or

3.

Other unanticipated hardship, such as change or turnover in engineering firms, contractors, or significant delays in obtaining required state or federal permits requires additional time to complete the project.

4.

There have been no changes to the applicable comprehensive plan policies and ordinance provisions on which the approval was based.

E.

The granting of an extension pursuant to this section is a ministerial action, and is not subject to appeal as a limited land use decision, or land use decision.

F.

Expiration of an approval shall require a new application for any use on the subject property that is not otherwise allowed outright.

G.

If a permit decision is appealed beyond the jurisdiction of the city, the expiration period shall not begin until review before the Land Use Board of Appeals and the appellate courts has been completed, including any remand proceedings before the city. The expiration period provided for in this section will begin to run on the date of final disposition of the case (the date when an appeal may no longer be filed).

(Ordinance No. 2199, August 15, 2022; Ordinance No. 2228, January 6, 2025)

In the event an applicant, or the applicant's successor in interest, fails to fully comply with all conditions of approval or otherwise does not comply fully with the city's approval, the city may institute a revocation proceeding under this section.

A.

Type I, Type II, and Type III actions may be revoked or modified if the Planning Commission determines a substantial likelihood that any of the following situations exists:

1.

One or more conditions of the approval have not been implemented or have been violated: or

2.

The activities of the use, or the use itself, are substantially different from what was approved or represented by the applicant.

B.

A revocation shall be processed as a Type III action. The Community Development Department or any private complaining party shall have the burden of proving, based on substantial evidence in the whole record, that the applicant or the applicant's successor has in some way violated the city's approval.

C.

Effect of Revocation. In the event that the permit approval is revoked, the use or development becomes illegal. The use or development shall be terminated within 30 days of the date the revocation final order is approved by the Planning Commission, unless the decision provides otherwise. In the event the Planning Commission's decision on a revocation request is appealed, the requirement to terminate the use shall be stayed pending a final, unappealed decision.

(Ordinance No. 2228 on January 6, 2025; effective February 6, 2025)

The provisions of this section supersede all conflicting provisions in the Newport Zoning Ordinance.