This chapter sets forth procedures for processing an appeal of a decision made by staff, the Planning Commission, or the City Council.

(Ord. No. 2022-07, § 4(Exh. D), 5-2-2022; Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Type I or Type II Procedure. An affected party may appeal a Type I or Type II decision to the Planning Commission. Except for an expedited land division, the party must file an appeal with the Director within 12 calendar days of the date the City mails notice of the decision. The notice of appeal shall indicate the nature of the decision that is being appealed. The Director may create and periodically amend an appeal form and require affected parties to use this form to appeal Type I and II decisions. Appeal of an expedited land division is subject to Section 17.28.70.

B.

Type III Procedure. An affected party may appeal a decision of the Planning Commission to the City Council. The party must file an appeal within 12 calendar days of notice of the decision. The notice of appeal shall indicate the decision that is being appealed. The Director may create and periodically amend an appeal form and require affected parties to use this form to appeal Type III decisions. The City Council's decision regarding an appeal of a Planning Commission decision is final for the purposes of an appeal to the Land Use Board of Appeals.

C.

Type IV Procedure. A Type IV decision of the City Council may be appealed to the Land Use Board of Appeals (LUBA) or to other tribunals in accordance with Oregon law.

(Ord. No. 2022-07, § 3(Exh. C), 5-2-2022; Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

An application for an appeal shall contain at least the following:

1.

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

2.

A statement of the interest of the person seeking review and that he/she was a party to the initial proceedings;

3.

The specific grounds relied upon for review;

4.

If de novo review or review by additional testimony and other evidence is requested, a statement relating the request to the factors listed in Section 17.28.50;

5.

Payment of required filing fees. Payment of required filing fees is jurisdictional and must accompany an appeal at the time it is filed;

6.

The name and mailing address of the person or entity appealing the decision; and

7.

List and two sets of mailing labels for property owners within 300 feet of the subject property (for appeal of a Type I decision), 500 feet of the subject property for appeal of a Type II, III, or IV decision, or 1,000 feet for appeal of an annexation request. The property owner list and labels shall be obtained from a Title Company no more than seven days prior to submitting the appeal.

(Ord. No. 2022-07, § 3(Exh. C), 5-2-2022; Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

Except where a de novo hearing is required, an appeal is limited to a review of the record and a hearing for receipt of oral arguments regarding the record. At its discretion, the hearing body may allow an appeal to include new evidence on specific issues, or it may allow a full de novo hearing.

(Ord. No. 2022-07, § 3(Exh. C), 5-2-2022; Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

Unless otherwise provided under Section 17.28.50, review of the decision on appeal shall be confined to the record of the proceeding as specified in this section. The record shall include:

A.

A factual report prepared by the Director;

B.

All exhibits, materials, pleadings, memoranda, stipulations and motions submitted by any party and received or considered in reaching the decision under review; and,

C.

The transcript of the hearing below, if previously prepared; otherwise, a detailed summary of the evidence, but the details need not be set forth verbatim.

The reviewing body shall make its decision based upon the record after first granting the right of argument but not the introduction of additional evidence to any party who has filed a notice of appeal. If requested, the reviewing body shall allow the applicant and/or appellant to present an oral summary of the evidence and Code sections that support their position.

(Ord. No. 2022-07, § 3(Exh. C), 5-2-2022; Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

A.

Except where a de novo hearing is required, the reviewing body may hear the entire matter de novo or it may admit additional testimony and evidence on specific issues if it determines that the additional testimony or other evidence could not reasonably have been presented and included in the earlier decision. The reviewing body shall consider all of the following in making such a decision:

1.

Prejudice to the parties;

2.

Convenience or availability of evidence at the time of the initial hearing;

3.

Surprise to opposing parties; and,

4.

The competency, relevancy, and materiality of the proposed testimony or other evidence.

B.

De novo hearing means a hearing at which the issues, evidence and testimony are not limited. All testimony, evidence, and other material from the prior decision shall be included in the record of the review.

(Ord. No. 2022-07, § 3(Exh. C), 5-2-2022; Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)

Upon review, the review body may by order affirm, reverse or modify in whole or in part a determination or requirement of the decision that is under review. When the review body modifies or renders a decision that reverses a decision of the hearing body, the review body, in its order, shall set forth its finding and state its reasons for taking the action encompassed in the order. When the review body elects to remand the matter back to the hearing body for such further consideration as it deems necessary, it shall include a statement explaining the error found to have materially affected the outcome of the original decision and the action necessary to rectify it.

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

A.

Filing an Appeal of the Director's Decision on Expedited Land Division or Middle Housing Land Division Application.

1.

Within 14 days of the date of the mailing of notice of the Director's decision on an Expedited Land Division application or a Middle Housing Land Division application, the decision may be appealed to the municipal judge by:

a.

The applicant.

b.

Any group or individual who submitted written comments during the 14-day comment period identified in the notice mailed pursuant to Chapter 17.22.

2.

The appeal shall be submitted on a form approved by the Director, be accompanied by a deposit for costs established by the City's Master Fee Schedule and two sets of mailing labels for property owners within 100 feet of the subject property, and be received by the city no later than 5:00 p.m. on the 14 ^th day after the notice of decision is mailed. The record from the Director's proceeding shall be forwarded to the municipal judge. New evidence shall be accepted.

3.

The appeal shall include a statement of issues on appeal. The appeal statement shall explain specifically how:

a.

The Director's decision violates the substantive provisions of land use regulations applicable to the application;

b.

The Director's decision is unconstitutional;

c.

The application is not eligible for review under the procedures for an expedited or middle housing land division review in Chapter 17.18; or

d.

The parties' substantive rights have been substantially prejudiced by an error in procedure made by the City.

B.

Notice of Appeal Procedure for an Expedited Land Division or Middle Housing Land Division.

1.

Within seven days of the date an appeal is filed, City staff, on behalf of the municipal judge, shall mail written notice of the appeal to all of the following:

a.

Applicant.

b.

Owner of the subject property.

c.

Appellant.

d.

Any person or organization entitled to notice under Section 17.22.80 that provided written comments prior to the close of the public comment period identified in the notice mailed pursuant to Section 17.22.80.

e.

Any state agency, local government, or special district responsible for providing public facilities or services to the subject property.

2.

The notice shall include all of the following:

a.

The street address or other easily understood geographical reference to the subject property.

b.

The applicable criteria for the decision.

c.

The nature of the application and the proposed use or uses which could be authorized.

d.

An explanation of the requirements for submission of testimony and appeal procedures.

e.

A statement that copies of the application and all evidence and documents submitted by or on behalf of the applicant are available for review, and that copies can be obtained at cost.

f.

The name and telephone number of a City contact person.

g.

A statement that a person or organization that provided written comments to the Director prior to the close of the public comment period identified in Section 17.22.80, but did not file an appeal within the time set by Subsection 17.28.70.A.1., may participate in the appeal only with respect to the issues raised in the written comments submitted to the Director by that person or organization.

C.

Appeal Procedure for an Expedited Land Division or Middle Housing Land Division.

1.

Only written evidence and argument will be accepted unless the municipal judge conducts a public hearing, in which case those parties who submitted comments on the original middle housing land division application (Director's decision) may testify.

2.

The municipal judge may use any appeal procedure that is consistent with the interests of the parties and will ensure a fair opportunity to present information and argument.

3.

The municipal judge shall provide the City an opportunity to explain the Director's decision, but the municipal judge is not limited to reviewing the Director's decision and may consider information not presented to the Director.

4.

A person or organization that provided written comments to the Director prior to the close of the public comment period identified in Section 17.22.80, but did not file an appeal within the time set by Subsection 17.28.70.A.1., may participate in the appeal only with respect to the issues raised in the written comments submitted to the Director by that person or organization.

D.

Decision for an Expedited Land Division or Middle Housing Land Division.

1.

The municipal judge shall issue a written decision on an appeal of an Expedited Land Division application or a Middle Housing Land Division application within 42 days of the date the appeal is received by the City.

2.

Except as provided in Subsection 17.28.70.D.5., the municipal judge shall affirm, reverse, or modify the decision of the Director. Before reversing or modifying the Director's decision, the municipal judge shall make findings and conclusions clearly stating how the Director failed to properly evaluate the application or render a decision consistent with applicable criteria. The municipal judge shall seek to identify means by which the application can satisfy the applicable approval criteria.

3.

The decision of the municipal judge is final.

4.

The municipal judge's decision is not a land use decision or limited land use decision.

5.

If the municipal judge finds that the application does not qualify as an Expedited Land Division application or a Middle Housing Land Division application, the municipal judge shall remand the application to the appropriate initial decisionmaker for consideration as a land use application or limited land use application.

6.

The municipal judge's decision may not reduce the density of an Expedited Land Division application.

7.

The municipal judge shall assess the costs of the appeal as follows:

a.

If the municipal judge's decision materially improves the appellant's position in comparison to the Director's decision, the municipal judge shall order the City to refund the deposit for costs required by Subsection 17.28.70.A.2. to the appellant.

b.

If the municipal judge's decision does not materially improve the appellant's position in comparison to the Director's decision, the municipal judge shall order the appellant to pay to the City the costs of the appeal that exceed deposit required by Subsection 17.28.70.A.2., up to a maximum of $500.00.

8.

As used in subsection 7., "costs of the appeal" include the compensation paid the municipal judge and other costs incurred by the City, but not the costs incurred by other parties.

E.

Notice of Decision of an Appeal of an Expedited Land Division or Middle Housing Land Division.

1.

Within five days after the date of the municipal judge's decision on the appeal of an Expedited Land Division application or a Middle Housing Land Division application, notice of the decision shall be mailed to all of the following:

a.

Applicant.

b.

Appellant.

c.

Any person who provided testimony or evidence in a timely manner during the appeal.

d.

Any person who requested notice of the appeal decision.

2.

The notice shall:

a.

Summarize the decision of the municipal judge.

b.

State that the decision may be appealed as provided in ORS 197.375.

(Ord. No. 2022-07, § 3(Exh. C), 5-2-2022; Ord. No. 2024-01, § 1(Exh. A), 2-20-2024)