§ 155.031 TYPE III QUASI-JUDICIAL DECISIONS BY THE PLANNING COMMISSION.
   (A)   Required. A pre-application conference is required for all Type III quasi-judicial applications under this section. The City Manager may waive this requirement at the request of the applicant.
   (B)   Requirements and procedures generally. The requirements and procedures for a pre-application conference are described in § 155.026 of this chapter.
   (C)   Application requirements.
      (1)   Application form. A quasi-judicial application shall be made on forms provided by the City Planner or his or her designee. The application shall include all property owner’s signatures of consent. Entities with condemnation authority are not required to provide a consent signature.
      (2)   Submittal information. A quasi-judicial application shall include:
         (a)   The information requested on the application form;
         (b)   One copy of a narrative statement that explains how the application satisfies each of the relevant criteria and standards in sufficient detail for review and decision-making;
         (c)   The required fee pursuant to § 155.009 of this chapter;
         (d)   One set of pre-stamped and pre-addressed envelopes for the record owner of all real property located within 250 feet of the site. The records of the County Assessor’s office are the official records for determining ownership. The applicant shall produce the notice list. At the applicant’s request, and upon payment of the fee noted on the city’s fee list, the city may prepare the public notice mailing list. The city or the applicant shall use the most current county real property assessment records to produce the notice list. The city shall mail the notice of application;
         (e)   Evidence of the required neighborhood meeting, as specified in § 155.027 of this chapter; and
         (f)   Appropriate service provider letters including, but not limited to, Clean Water Services and Tualatin Valley Fire & Rescue.
      (3)   Completeness. Within 30 days of receiving an application for a Type III application, the city staff shall provide a dated notice to the applicant indicating whether the application is deemed complete or incomplete. If the application is incomplete, the City Planner shall notify the applicant in writing of exactly what information is missing. If deemed incomplete, the applicant has 180 days to submit the missing information, a refusal statement or to withdraw the application. If the applicant refuses to submit the required information and does not withdraw, the application shall be deemed complete upon receipt of the refusal letter.
      (4)   Final action. Final action on an application under this section shall occur within 120 days of completeness pursuant to § 155.011 of this chapter.
   (D)   Notice of application.
      (1)   Mailed notice. The city shall mail and publish notice of a Type III application. The records of the County Assessor’s office are the official records for determining ownership. Notice of the initial hearing or an appeal hearing shall be given by the city in the following manner:
         (a)   At least 20 days before the hearing date, notice shall be mailed to:
            1.   The applicant and all owners or contract purchasers of record of the property that is the subject of the application;
            2.   All property owners of record within 250 feet of the site;
            3.   Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the city. The city may notify other affected agencies. The city shall notify the road authority, and rail authority and owner, when there is a proposed development abutting or affecting their transportation facility and allow the agency to review, comment on and suggest conditions of approval for the application;
            4.   Owners of airports in the vicinity shall be notified of a proposed zone change in accordance with ORS 227.175;
            5.   Any neighborhood or community organization recognized by the City Council and whose boundaries include the property proposed for development;
            6.   Any person who submits a written request to receive notice;
            7.   For appeals, the appellant and all persons who provided testimony in the original decision; and
            8.   For a land use district change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175.
         (b)   The City Planner or designee shall prepare an affidavit of notice. The affidavit shall state the date that the notice was mailed to the persons who must receive notice; and
         (c)   At least 14 days before the hearing, notice of the hearing shall be printed in a newspaper of general circulation in the city. The newspaper’s affidavit of publication of the notice shall be made part of the administrative record.
      (2)   Content of notice. Notice of a Type III application shall contain the following information:
         (a)   The nature of the application and the proposed land use or uses that could be authorized for the property;
         (b)   The applicable criteria and standards that apply to the application;
         (c)   The street address or other easily understood geographical reference to the subject property;
         (d)   The date, time and location of the public hearing;
         (e)   A statement that the failure to raise an issue in sufficient detail to afford the decision-maker an opportunity to respond to the issue may preclude an appeal based on that issue with the state’s Land Use Board of Appeals or the Circuit Court;
         (f)   The name of a city representative to contact and the telephone number where additional information on the application may be obtained;
         (g)   A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards are available for inspection at City Hall at no cost and that copies shall be provided at a reasonable cost;
         (h)   A statement that a copy of the city’s staff report and recommendation to the hearings 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 reasonable cost;
         (i)   A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and
         (j)   The following notice; “Notice to mortgagee, lienholder, vendor or seller: if you receive this notice it shall be promptly forwarded to the purchaser”.
   (E)   Conduct of the public hearing.
      (1)   At the commencement of the hearing, the hearings body shall state:
         (a)   The applicable approval criteria and standards that apply to the application or appeal;
         (b)   That testimony and evidence must 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)   That failure to raise an issue with sufficient detail to give the hearings body and the parties an opportunity to respond to the issue, means that no appeal may be made on that issue;
         (d)   Before the conclusion of the initial evidentiary hearing, 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. The hearings body shall grant the request by scheduling a date to finish the hearing (a “continuance”) per division (E)(2) below, or by leaving the record open for additional written evidence or testimony per division (E)(3) below.
      (2)   If the Planning Commission grants a continuance, the completion of the hearing shall be continued to a date, time and place at least seven days after the date of the first evidentiary hearing. An opportunity shall be provided at the second hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the second hearing, any person may request, before the conclusion of the second hearing, that the record be left open for at least seven days, so that they can submit additional written evidence or testimony in response to the new written evidence.
      (3)   If the Planning Commission leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days after the hearing. Any participant may ask the city in writing for an opportunity to respond to new evidence submitted during the period that the record was left open. If such a request is filed, the Planning Commission shall reopen the record.
      (4)   When the Planning Commission reopens the record to admit new evidence or testimony, any person may raise new issues that relate to that new evidence or testimony.
      (5)   An extension of the hearing or record is subject to the limitations of ORS 227.178 (“120-day rule”), unless the continuance or extension is requested or agreed to by the applicant.
      (6)   Unless expressly waived by the applicant, the city shall allow the applicant at least seven days after the record is closed to all other persons to submit final written arguments in support of the application. The applicant’s final submittal shall be part of the record, but shall not include any new evidence.
      (7)   The record shall contain all testimony and evidence that is submitted to the city and that the hearings body has not rejected.
      (8)   In making its decision, the hearings body may take notice of facts not in the hearing record (in other words, local, state or federal regulations; previous city decisions; case law; staff reports).
      (9)   Participants in a land use hearing are entitled to an impartial review authority as free from potential conflicts of interest and pre-hearing ex parte contacts as reasonably possible.
         (a)   At the beginning of the public hearing, hearings body members shall disclose the substance of any pre-hearing ex parte contacts concerning the application or appeal. The member shall state whether the contact has impaired the member’s impartiality or their ability to vote on the matter and shall participate or abstain accordingly.
         (b)   A member of the hearings body shall not participate in any proceeding in which they have a direct or substantial conflict of interest. Any actual or potential conflict of interest shall be disclosed at the hearing.
         (c)   A member of the hearings body may be disqualified due to contacts or conflict and may be ordered not to participate in the vote by a majority of the members present and voting. The person who is the subject of the motion may not vote on the motion to disqualify.
         (d)   If a member of the hearings body abstains or is disqualified, the city may provide a substitute in a timely manner subject to the impartiality rules in this section. In this case, a member of the City Council appointed by the Mayor may substitute for a member of the Planning Commission.
         (e)   If all members of the Planning Commission abstain or are disqualified, the City Council shall be the hearing body, if all members of the City Council abstain or are disqualified, a quorum of those members present who declare their reasons for abstention or disqualification shall make the decision.
         (f)   Any member of the public may raise conflict of interest issues prior to ordering the hearing, to which the member of the hearings body shall reply in accordance with this section.
   (F)   Ex parte communications. A decision or action of the hearings body is not invalid due to ex parte contacts or bias resulting from ex parte contacts, if the person receiving contact:
      (1)   Places in the record the substance of any written or oral ex parte communications concerning the decision or action;
      (2)   Publicly announces the content of the communication and the participants’ right to dispute the substance of it. The announcement shall be made at the first hearing following the communication; and
      (3)   Communication between city staff and the hearings body is not ex parte contact.
   (G)   Presenting and receiving evidence.
      (1)   The hearings body may set reasonable time limits for oral presentations and may limit or exclude cumulative, repetitious, irrelevant or personally derogatory testimony or evidence.
      (2)   Verbal testimony shall not be accepted after the record is closed. Written testimony may be received after the close of the public hearing, only as provided in division (E) above.
      (3)   A member of the hearings body may visit the property and the surrounding area, and may use information obtained during the site visit to support the member’s decision; provided, the information relied upon is disclosed at the beginning of the hearing and an opportunity is provided to dispute the evidence.
   (H)   Decision process.
      (1)   Basis for decision. Approval or denial of a land use application shall be based on standards and criteria in this chapter and other applicable laws.
      (2)   Findings and conclusions. The decision shall include written findings that explain the relevant criteria and standards, the facts relied on in rendering the decision and justify the decision according to the criteria, standards and facts.
      (3)   Form of decision. The Planning Commission shall issue a final written order containing the findings and conclusions stated in division (H)(2) above and any conditions of approval. The Planning Commission may also issue appropriate intermediate rulings when more than one permit or decision is required.
      (4)   Decision-making time limits. A final order for an action under this section shall be filed with the City Planner or his or her designee within ten business days after the close of the deliberation.
      (5)   Notice of decision. Written notice of a decision under this section shall be mailed to the applicant and to all participants of record within ten business days after the hearings body decision. Failure of a person to receive mailed notice shall not invalidate the decision; provided that, a good faith attempt was made to mail the notice.
      (6)   Final decision and effective date. The decision of the hearings body on an application is final for purposes of appeal on the date it is mailed by the city. The decision is effective on the day after the appeal period expires. If an appeal is filed, the decision becomes effective on the day after the appeal is decided by the City Council. The notice and hearings procedures for a quasi-judicial application on appeal to the City Council shall be the same as for the initial hearing. An appeal of a land use decision to the state’s Land Use Board of Appeals must be filed within the period required by state law.
   (I)   Appeals. A decision issued by the Planning Commission under this section may be appealed to the City Council as described in the appeals section of this chapter.
(Prior Code, § 16.170.030) (Ord. 427, passed 5-16-2016; Ord. 435, passed 12-5-2016; Ord. 445, passed 5-15-2017; Ord. 451, passed 6-4-2018; Ord. 467, passed 1-21-2020)