The following procedures are established for the conduct of legislative and quasi-judicial public hearings where such hearings are required by the provisions of this Code. In the event that this Code and a specific provision of State law address the same subject, then the requirement of State law shall be fulfilled in lieu of the procedure provided by this Code.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Describe rules of conduct, notice requirements, order of proceedings, and action required for legislative and quasi-judicial hearings; and

B.

Provide clear and consistent rules to ensure the legal rights of individual property owners and the general public are protected.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

Within seven days from the date of the Director's request, the City Attorney shall determine whether a legislative or a quasi-judicial hearing is required. Such decision shall be based upon a construction of applicable State regulations and relevant court decisions.

When more than one application has been filed at one time for a specific property or development, and any of those applications would ordinarily be heard by the Planning Commission, all of the applications (Type II and Type III) may be heard by the Planning Commission at the same meeting.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Schedule and assign the matter for review and hearing;

B.

Conduct the correspondence of the hearing body;

C.

Give notice;

D.

Maintain a record and enter into the record relevant dates such as those of giving notice, hearings, postponement and continuances and a summary of action taken by the hearings body;

E.

Prepare minutes to include the decision on the matter heard and the reasons for the decision;

F.

Reduce the decisions of the hearings body to writing within a reasonable time;

G.

Mail a copy of the decision to the party requesting the same upon payment of a reasonable fee, if a fee has been established.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Documents and Evidence. All documents or evidence relied upon by the applicant shall be submitted to the local government and be made available to the public. All documents and evidence should be submitted at least 20 days in advance of the public hearing. If the applicant submits additional information, any party with standing may request that the scheduled public hearing be postponed to allow opportunity for noticed persons to review and comment.

B.

Burden and Nature of Proof. Except for legislative determinations, the burden of proof is upon the applicant. The proposal must be supported by proof that it conforms to any applicable elements of the Comprehensive Plan and to provisions of this Code, especially the specific criteria set forth for the particular type of decision under consideration.

C.

Neighborhood Meetings. Applicants intending to develop a major project within the City are strongly urged to conduct their own informational meetings in the neighborhood affected prior to submitting their application to the City.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

The presiding officer shall state the case and call the public hearing to order. The presiding officer may establish the time allowed for presentation of information;

B.

Any objections on jurisdictional grounds shall be noted in the record. If there is objection, the person presiding has the discretion to proceed or terminate;

C.

Disqualification shall be determined. Members shall announce all potential conflicts of interest;

D.

Declaration of Ex Parte Contacts. Members of the hearing body may view the area in dispute with or without notification to the parties, shall place the time, manner and circumstances of such view in the record;

E.

At the commencement of a hearing under a Comprehensive Plan or land use regulation, a statement shall be made to those in attendance that:

1.

Lists the applicable substantive criteria;

2.

States that testimony and evidence must be directed toward the criteria in the Plan or land use regulations which the person believes to apply to the decision; and

3.

States that failure to raise an issue accompanied by statements or evidence sufficient to afford the decision maker and the parties an opportunity to respond to the issue precludes an appeal to the Council based on that issue.

F.

Staff reports shall be presented. City staff may also present additional information whenever allowed by the presiding officer during the proceedings;

G.

Presentation of information or inquiries by the applicant or applicant's representative(s);

H.

Presentation of information or inquiries by those persons who support the proposed action;

I.

Presentation of information or inquiries by those persons who oppose the proposed action;

J.

Presentation of information or inquiries by those persons who do not necessarily support or oppose the proposed action;

K.

Persons who have testified supporting or opposing the proposed change may present rebuttal testimony. The scope of material presented during rebuttal shall be limited to matters raised during the course of the hearing. The applicant or the applicant's representative followed by those opposed to the proposed change shall first present rebuttal. The presiding officer shall limit rebuttal to avoid repetition and redundancy;

L.

Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence or testimony regarding the application. For the purposes of this section, a "participant" shall mean a person or entity that submitted written or oral comments at the public hearing; merely signing a petition does not constitute participation. The Planning Commission or City Council, as applicable, shall grant such request by either continuing the public hearing or leaving the record open for additional written evidence or testimony. A continuance or extension granted pursuant to this subsection shall be subject to the limitations of ORS 227.178 unless the continuance or extension is requested or agreed to by the applicant. A party other than the applicant has the right to request only one extension and this right is waived if it is not raised at the initial evidentiary hearing;

M.

If the Planning Commission or City Council grants a continuance, the hearing shall be continued to a date, time and place certain at least seven 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 written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to submit additional written evidence or testimony for the purpose of responding to the new written evidence;

N.

If requested by any participant in the initial hearing, when the public hearing is not to be continued, the record shall remain open for submittal of additional written testimony for a period of seven days after the close of the hearing and may be permitted for a longer period at the discretion of the hearing authority. If the Planning Commission or City Council leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days. Any participant may file a written request with the City for an opportunity to respond to new evidence submitted during the period that the record is left open. If such a request is filed, the Planning Commission or City Council shall reopen the record pursuant to this section;

O.

When the hearing has ended, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided;

P.

Once a hearing has been closed, no further evidence shall be received except in response to specific questions directed to staff or one of the parties to clarify earlier evidence.

Q.

If the hearing is closed, it shall be reopened only upon a majority vote of the hearing authority and only after a reasonable showing that:

1.

There is evidence that was not reasonably available at the time of the hearing;

2.

Evidence is now available to the person seeking to reopen the hearing; and

3.

The evidence is factual, substantial, and material.

R.

When the Planning Commission or City Council reopens a record to admit new evidence or testimony, any person may raise new issues, which relate to the new evidence, testimony or criteria for decision-making, which apply to the matter at issue.

S.

The above requirements generally refer to quasi-judicial hearings. Except as may be necessary under state law, these requirements do not apply to legislative hearings.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Following the hearing procedure, the hearing body shall approve or deny the application or if the hearing is in the nature of an appeal, affirm, reverse or remand the decision that is on appeal. If the applicant requests or assents to an extension, the 120-day rule is tolled for the duration of the extension. Processing of a matter under consideration may be extended for a reasonable period of time by the applicant but the total of all extensions may not exceed 245 days.

B.

If a quorum of the hearing authority does not appear for a hearing, the hearing shall automatically be continued to the date and time of the next regularly scheduled meeting.

C.

The hearing body or its designee shall approve findings of fact to include:

1.

A statement of the applicable criteria and standards against which the proposal was tested, and of the hearing body's interpretation of what would be required to achieve compliance with the criteria and standards;

2.

Findings and conclusions individually numbered. The findings may require an explanation of possible conflict between provisions of identified legal criteria and an explanation of how any such conflicts were resolved;

3.

A statement of the facts which the hearing body found establishing compliance or noncompliance with each applicable criteria and assurance of compliance with applicable standards;

4.

The decision to deny or approve the proposed change with or without conditions.

All parties shall be encouraged to prepare and submit written findings for the consideration of the hearing authority. The authority may direct staff to prepare proposed findings or, in the event that the authority does not follow staff's recommendation, the prevailing party may be directed to prepare findings.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

Following the signing of the Final Order and Findings of Fact, the Director shall issue a Notice of Decision that describes the decision of the hearing authority, a reference to findings leading to it, any conditions of approval, and application appeal period deadline. Subject to any requirements of state law, the notice of decision will be issued to persons who submitted written testimony and were not in attendance at the hearing, in addition to those persons who are entitled to receive a notice of decision by other provisions of this Code.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

A copy of these provisions shall be made available to any interested person requesting such a copy.

B.

Copies of the Rules of Procedure shall be available to the public within the hearing room prior to and during every public hearing conducted pursuant to this chapter.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Formal rules of evidence shall not apply.

B.

Written exhibits, visual aids, affidavits, maps, and the like may be submitted as part of the evidence. Any signed writing presented to or received by any member of the hearing authority or by any other city agency or official outside the public hearing may be received as argument and placed in the record. Unless the hearing authority specifically allows later filing of argument, no writings received after the close of the hearing will be considered.

C.

All information received by the hearing authority shall be retained and preserved and shall be transmitted to an appellate body in the event an appeal is filed in accordance with Chapter 17.28—Appeals. True copies of original information may be substituted for original documents.

D.

All evidence and argument shall be as brief as possible, consistent with full presentation.

E.

Redundancy shall be avoided.

F.

Each person presenting information or argument shall be permitted to complete the presentation without interruption except by the presiding officer to enforce this Code.

G.

Discussion of personalities shall be avoided to the extent possible in making a complete presentation.

H.

No person present shall engage in applause, cheers, or other vocal or outward expressions of approval, or disapproval, agreement or disagreement. If any person persists in such conduct after warning by the presiding officer, such person may be expelled from the hearing.

I.

The presiding officer has complete authority to enforce these provisions to assure that a fair hearing is held including the authority to expel from the public hearing and to bar from further appearance at the public hearing any person who willfully violates any one or more of these provisions.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

The failure of an affected property owner to receive notice as provided in this section shall not invalidate such proceedings if the City can demonstrate by affidavit that such notice was given. The notice provisions of this section shall not restrict the giving of notice by other means, including posting, newspaper publication, radio and television.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Impartiality. Except for Type IV legislative hearings conducted by the governing body, a party to a hearing or a member of a hearing body may challenge the qualifications of a member of the hearing body to participate in the hearing and decision regarding the matter. The challenge shall state the facts relied upon by the challenger relating to a person's bias, pre-judgment, personal interest, or other facts from which the challenger has concluded that the member of the hearing body cannot participate in an impartial manner.

B.

Disqualification. Except for Type IV legislative hearings conducted by the governing body, no member of a hearing body shall participate in a discussion of the proposal or vote on the proposal when any of the following conditions exist:

1.

The hearing body member or the member's spouse, brother, sister, child, parent, father-in-law, mother-in-law, any business in which the member is then serving or has served within the previous two years, or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment;

2.

The member has a direct private interest in the proposal;

3.

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

C.

Ex Parte Contacts. Except for Type IV legislative hearings conducted by the governing body, the general public has a right to have hearing body members free from pre-hearing or ex parte contacts on matters heard by them. It is recognized that a countervailing public right is free access to public officials on any matter. Therefore, hearing body members shall reveal any significant pre-hearing or ex parte contacts with regard to any matter at the commencement of the public hearing on the matter. If such contacts have not impaired the member's impartiality or ability to vote on the matter, the member shall so state and shall participate or abstain in accordance with Chapter 17.20.120.

Ex parte contacts with a member of the decision making body shall not invalidate a final decision or action of the decision making body, provided that the member receiving the contact places the substance of the content of the ex parte communication in the record of the hearing and makes a public announcement of the content of the communication and of the right of the parties to rebut the content at the first hearing where action will be considered or taken.

D.

Abstention or Disqualification. Except for Type IV hearings conducted by the governing body, 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.

E.

Rights of Disqualified Member of the Hearing Body.

1.

An abstaining or disqualified member of the hearing body may be counted for purposes of forming a quorum. A member who represents personal interest at a hearing may do so only by physically joining the audience and vacating the seat on the hearing body. He shall make full disclosure of his status and position at the time of addressing the hearing body and shall not vote;

2.

If all members of a hearing body disqualify themselves all members present after stating their reasons for abstention or disqualification shall by so doing be re-qualified and proceed to resolve the issues;

3.

Except for Type IV legislative hearings conducted by the governing body, a member absent during the presentation of evidence in a hearing may not participate in the deliberations or final decision regarding the matter of the hearing unless the member has reviewed the evidence received.

F.

Voting Eligibility. When a member of the hearing authority becomes ineligible to vote due to absence from a portion of the public hearing on the proposed development, the member may revive voting eligibility by listening to the completed audio or video tape recording of the portion of the hearing missed. The member shall then announce to the hearing authority that the tapes have been listened to, thus reviving voter eligibility.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

The secretary to the hearing body shall be present at each hearing and shall cause the proceedings to be recorded stenographically or electronically.

A.

Testimony shall only be transcribed if required for judicial review or if ordered by the hearing body;

B.

The hearing body shall, where practicable, retain as part of the hearing record each item of physical or documentary evidence presented and shall have the items marked to show the identity of the person offering the same and whether presented on behalf of a proponent or opponent. Exhibits received into evidence shall be retained in the hearing file until after the applicable appeal period has expired, at which time the exhibits may be released to the person identified thereon, or otherwise disposed of;

C.

The findings and order shall be included in the record;

D.

A person shall have access to the record of the proceeding at reasonable times.

(Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)