Type III decisions are made by the Planning Commission after a public hearing, with an opportunity for appeal to the City Council.
(A) Application requirements.
(1) Application forms. Applications requiring quasi-judicial review shall be made on forms provided by the City Planning Official.
(2) Submittal information. The City Planning Official shall advise the applicant on application submittal requirements. 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 criteria and standards in sufficient detail;
(d) Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable; and
(e) The required fee.
(B) Procedure.
(1) Mailed and posted notice.
(a) The city shall mail public notice of a public hearing on a quasi-judicial application at least 20 days before the hearing date to the 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:
1. All owners of record of real property located within a minimum of 100 feet of the subject site;
2. Any person who submits a written request to receive a notice; and
3. 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. 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 chapter.
(b) At least 14 days before the 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 quasi-judicial hearing to be mailed and published 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 scheduled hearing;
(c) The street address or other easily understandable 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. 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 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 hearing body shall be available for review at no cost at least seven 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 Council 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 Chairperson of the Commission or the Mayor, as applicable, or his or her 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 address 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 hearing body and the parties an opportunity to respond to the issue, may preclude appeal to the State Land Use Board of Appeals on that issue;
(d) At the conclusion of the initial evidentiary hearing, the hearing body shall deliberate and make a decision based on the facts and arguments in the public record. See division (E) below; and
(e) Any participant may ask the hearing body for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing; if the hearing body grants the request, it will schedule a date to continue the hearing as provided in division (C)(5) below or leave the record open for additional written evidence or testimony as provided in division (C)(6) below.
(2) The public is entitled to an impartial hearing 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, members of the hearing body shall follow the guidance for disclosure of ex parte contacts contained in ORS 227.180. Where a real conflict of interest arises, that member or members or the hearing body shall not participate in the hearing, except where state law provides otherwise. Where the appearance of a conflict of interest is likely, that member or members of the hearing body 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) (a) The hearing body 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 hearing body 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 hearing body, in making its decision, shall consider only facts and arguments in the public hearing record; except that it may take notice of facts not in the hearing record (e.g., local, state or federal regulations; previous city decisions; case law; or 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 hearing body decides to continue the hearing, the hearing shall be continued to a date that is at least seven 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 seven 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 hearing body may limit additional testimony to arguments and not accept additional evidence.
(6) If the hearing body leaves the record open for additional written testimony, the record shall be left open for at least seven days after the hearing. Any participant may ask the hearing body 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 hearing body 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 § 153.210 (ORS 227.178: “120-day rule”) unless the applicant waives his or her right to a final decision being made within 120 days of filing a complete application.
(c) If requested by the applicant, the hearing body shall grant the applicant at least seven days after the record is closed to all other persons to submit final written arguments, but not evidence, provided the applicant may expressly waive this right.
(7) The notice of quasi-judicial decision shall contain all of the following information:
(a) A description of the applicant’s proposal and the city’s decision on the proposal. The notice 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 (i.e., 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 division (D) below, or may appeal the City Council’s decision to the State Land Use Board of Appeals, as applicable
(C) Effective date of decision. Unless the conditions of approval specify otherwise, a quasi-judicial decision becomes effective ten days after the city mails the decision notice unless the decision is appealed pursuant to division (D) below.
(D) 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;
(b) Any person who was entitled to written notice; and
(c) Any other person who testified orally or in writing during Planning Commission 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 (D)(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 time frame specified on the notice of decision; typically, this will be within ten 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.
(E) Record of the public hearing.
(1) The official public hearing record shall include all of the following information:
(a) All materials considered by the hearing body;
(b) All materials submitted by the City Planning Official to the hearing 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 subchapter and correspondence regarding the application that the city mailed or received.
(2) The meeting minutes shall be filed in hard copy form with the City Planning Official. 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.
(F) Effective 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 notice. Appeals of City Council decisions under this subchapter shall be filed with the State Land Use Board of Appeals pursuant to ORS 197.805 through 197.860.
(Ord. 1267, passed 1-3-2012)