Type III decisions are made by the Planning Commission after a public hearing, with an opportunity for appeal to the City Council.
(A) Application forms.
(1) Application forms. Applications shall be made on forms provided by the City Planning Official.
(2) Submittal information. The City Planning Official shall advise the applicant on what constitutes a complete application. At a minimum, the application shall include all of the following information:
(a) The information requested on the application form;
(b) Plans and exhibits required for the specific approval(s) being sought;
(c) A written statement or letter explaining how the application satisfies each and all of the relevant code criteria and standards in sufficient detail;
(d) Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable;
(e) Other information, studies, exhibits, or data as the Planning Official deems necessary to demonstrate compliance with city policies and ordinances; and
(f) The required fee; and
(g) Evidence of neighborhood contact, as applicable, pursuant to § 151.236.
(B) Procedure.
(1) Mailed and posted notice. The city shall mail public notice of a public hearing on a Type III application at least 20 days before the hearing date to individuals and organizations listed below. The City Planning Official shall prepare an affidavit of notice, which shall be made a part of the file. The affidavit shall state the date that the notice was mailed. Notice shall be mailed to:
(a) All owners, residents, or tenants of record of real property within a minimum of 300 feet of the subject site;
(b) Any person who submits a written request to receive a notice; and
(c) Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the city and any other affected agencies. At a minimum, the City Planning Official shall notify the road authority if different than the City of Banks. The failure of another agency to respond with written comments on a pending application shall not invalidate an action or permit approval made by the city under this Code.
(d) The city shall notify the Oregon Department of Transportation of projects involving a change access to a state highway.
(e) At least 14 days before the first hearing, the applicant or applicant's representative shall post notice of the hearing on the project site in clear view from a public right-of-way using a poster format prescribed by the City Planning Official. The applicant shall submit an affidavit of notice using a form provided by the city, which shall be made a part of the file. The affidavit shall state the date that the notice was posted.
(2) Content of notice. Notice of a Type III hearing to be mailed per division (B)(1) above shall contain all of the following information:
(a) A summary of the proposal and the relevant approval criteria. The notice must have sufficient detail to help the public identify and locate applicable code requirements;
(b) The date, time and location of the Planning Commission hearing;
(c) Describe the street address or other clear reference to the location of the proposed use or development;
(d) A disclosure statement that if any person fails to address the relevant approval criteria with enough detail, they may not be able to appeal to the City Council, Land Use Board of Appeals, or Circuit Court, as applicable, on that issue; and that only comments on the relevant approval criteria are considered relevant evidence;
(e) A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards shall be available for review at (City Hall/the office of the City Planning Official) and that copies shall be provided at a reasonable cost;
(f) A statement that a copy of the city's staff report and recommendation to the Planning Commission shall be available for review at no cost at least 7 days before the hearing, and that a copy shall be provided on request at a reasonable cost;
(g) A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and
(h) A statement that after the public hearing closes, the city will issue its decision, and the decision shall be mailed to the applicant and to anyone else who submitted written comments or who is otherwise legally entitled to notice.
(C) Conduct of the public hearing.
(1) At the commencement of the hearing, the Planning Commission Chairperson, or their designee, shall state to those in attendance all of the following information and instructions:
(a) The applicable approval criteria by Code chapter that apply to the application;
(b) Testimony and evidence shall concern the approval criteria described in the staff report, or other criteria in the comprehensive plan or land use regulations that the person testifying believes to apply to the decision;
(c) Failure to raise an issue with sufficient detail to give the Planning Commission and the parties an opportunity to respond to the issue, may preclude appeal to the City Council or State Land Use Board of Appeals on that issue;
(d) At the conclusion of the initial evidentiary hearing, the Planning Commission shall deliberate and make a decision based on the facts, applicable approval criteria, and arguments in the public record. See division (F), record of the public hearing;
(e) Any participant may ask the Planning Commission for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing; if the Planning Commission grants the request, it will schedule a date to continue the hearing as provided in division (C)(5) of this section, or leave the record open for additional written evidence or testimony as provided in division (C)(6) of this section.
(2) The public is entitled to an impartial review body as free from potential conflicts of interest and pre-hearing ex parte (outside the hearing) contacts as reasonably possible. Where questions related to ex parte contact are concerned, Planning Commissioners shall follow the guidance for disclosure of ex parte contacts contained in O.R.S. 227.180. Where a Planning Commissioner has an actual conflict of interest, the Commissioner shall disclose such interest and recuse themselves from decision making, except where state law provides otherwise. Where the appearance of a conflict of interest is likely, the Planning Commissioner(s) shall individually disclose their relationship to the applicant in the public hearing and state whether they are capable of rendering a fair and impartial decision. If they are unable to render a fair and impartial decision, they shall be excused from the proceedings.
(3) Presenting and receiving evidence.
(a) The Planning Commission may set reasonable time limits for oral presentations and may limit or exclude cumulative, repetitious, irrelevant or personally derogatory testimony or evidence;
(b) No oral testimony shall be accepted after the close of the public hearing. Written testimony may be received after the close of the public hearing only as provided by this section;
(c) Members of the Planning Commission may visit the property and the surrounding area, and may use information obtained during the site visit to support their decision, if the information relied upon is disclosed at the beginning of the hearing and an opportunity is provided to dispute the evidence.
(4) The Planning Commission, in making its decision, shall consider only arguments in the public hearing record; except that the Commission may take notice of facts not in the hearing record (e.g., local, state, or federal regulations; previous city decisions; case law; staff reports). Upon announcing its intention to take notice of such facts in its deliberations, it must allow persons who previously participated in the hearing to request the hearing record be reopened, as necessary, to present evidence concerning the newly presented facts.
(5) If the Planning Commission decides to continue the hearing, the hearing shall be continued to a date that is at least 7 days after the date of the first evidentiary hearing (e.g., next regularly scheduled meeting). An opportunity shall be provided at the continued hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the continued hearing, any person may request, before the conclusion of the hearing, that the record be left open for at least 7 days, so that they can submit additional written evidence or arguments in response to the new written evidence. In the interest of time, after the close of the hearing, the Planning Commission may limit additional testimony to arguments and not accept additional evidence.
(6) If the Planning Commission leaves the record open for additional written testimony, the record shall be left open for at least 7 days after the hearing. Any participant may ask the Planning Commission in writing for an opportunity to respond to new evidence (i.e., information not disclosed during the public hearing) submitted when the record was left open. If such a request is filed, the Planning Commission shall reopen the record, as follows:
(a) When the record is reopened to admit new evidence or arguments (testimony), any person may raise new issues that relate to that new evidence or testimony;
(b) An extension of the hearing or record granted pursuant to this section is subject to the limitations of § 151.235 and O.R.S. 227.178 ("120-day rule"), unless the applicant waives their right to a final decision being made within 120 days of filing a complete application; and
(c) If requested by the applicant, the Planning Commission shall grant the applicant at least 7 days after the record is closed to all other persons to submit final written arguments, but not evidence, unless the applicant expressly waives this right.
(D) Notice of decision.
(1) The notice of Type III decision shall contain all of the following information:
(a) A description of the applicant's proposal and the city's decision on the proposal, which may be a summary, provided it references the specifics of the proposal and conditions of approval in the public record;
(b) The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area (a copy of assessor's map may be used);
(c) A statement of where the city's decision can be obtained;
(d) The date the decision shall become final, unless appealed; and
(e) A statement that all persons entitled to notice may appeal the Planning Commission's decision to City Council pursuant to § 151.233(C) or may appeal the City Council's decision to the state Land Use Board of Appeals, as applicable.
(E) Appeal of Planning Commission decision. The Planning Commission's decision may be appealed to the City Council as follows:
(1) Who may appeal. The following people have legal standing to appeal:
(a) The applicant or owner of the subject property; and
(b) Any other person who testified orally or in writing during the subject public hearing before the close of the public record.
(2) Appeal filing procedure.
(a) Notice of appeal. Any person with standing to appeal, as provided in division (E)(1), above, may appeal a Type III quasi-judicial decision by filing a notice of appeal according to the following procedures.
(b) Time for filing. A notice of appeal shall be filed with the City Planning Official within the timeframe specified on the notice of decision; typically, this will be within 10 days of the date the notice of decision is mailed.
(c) Content of notice of appeal. The notice of appeal shall be accompanied by the required filing fee and shall contain:
1. An identification of the decision being appealed, including the date of the decision;
2. A statement demonstrating the person filing the notice of appeal has standing to appeal;
3. A statement explaining the specific issues being raised on appeal; and
4. If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period.
(3) Scope of appeal. The appeal of a Type III quasi-judicial decision shall be a hearing de novo before the City Council. The appeal shall not be limited to the application materials, evidence and other documentation, and specific issues raised in the review leading up to the quasi-judicial decision, but may include other relevant evidence and arguments. The hearing appeal body may allow additional evidence, testimony, or argument concerning any applicable standard, criterion, condition, or issue.
(F) Record of the public hearing.
(1) The official public record shall include all of the following information:
(a) All materials considered by the hearings body;
(b) All materials submitted by the City Planning Official to the hearings body regarding the application;
(c) The minutes of the hearing;
(d) The final written decision; and
(e) Copies of all notices given as required by this chapter, and correspondence regarding the application which the city mailed or received.
(2) The meeting minutes shall be filed in hardcopy form with the City Recorder. The minutes and other evidence presented as a part of the hearing shall be part of the record.
(3) All exhibits received and displayed shall be marked to provide identification and shall be part of the record.
(G) Final date and appeals to State Land Use Board of Appeals. A quasi-judicial decision or appeal decision, as applicable, is effective the date the city mails the decision. The Planning Commission's decision may be appealed to the City Council. Appeals of City Council decisions under this chapter shall be filed with the state Land Use Board of Appeals pursuant to O.R.S. 197.805 through 197.860.
(Ord. 2021-08-02, passed 10-12-2021)