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§ 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)
§ 155.032 TYPE IV LEGISLATIVE AND OTHER DECISIONS.
   (A)   Pre-application conference. A pre-application conference is required for all Type IV legislative applications initiated by a party other than the city. The City Manager may waive this requirement upon request of the applicant. The requirements and procedures for a pre-application conference are described in § 155.026 of this chapter.
   (B)   Timing of requests. The city accepts legislative requests at any time. The City Council may initiate its own legislative proposals at any time.
   (C)   Application requirements.
      (1)   Application forms. A legislative application shall be made on forms provided by the city.
      (2)   Submittal information. The application shall contain:
         (a)   The information requested on the application form;
         (b)   A map and/or plan addressing the appropriate criteria and standards in sufficient detail for review and decision (as applicable);
         (c)   The required fee pursuant to § 155.009 of this chapter;
         (d)   One copy of a letter or narrative statement that explains how the application satisfies all of the relevant approval criteria and standards;
         (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.
   (D)   Notice of hearing.
      (1)   Required hearings. A minimum of two hearings, one before the Planning Commission and one before the City Council, are required for all legislative applications.
      (2)   Notification requirements. Notice of public hearings for the application shall be given by the city in the following manner:
         (a)   At least ten days before the date of the first hearing on an ordinance that proposes to amend the Comprehensive Plan or any element thereof, rezone property or amend this chapter, a notice shall be mailed to:
            1.   Each owner whose property would be rezoned in order to implement the ordinance (including owners of property subject to a Comprehensive Plan amendment if a zone change will be required to implement the proposed Comprehensive Plan amendment);
            2.   Owners of property within 250 feet of property to be rezoned;
            3.   Any affected governmental agency; and
            4.   Any person who requests notice in writing.
         (b)   For a zone change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175; and
         (c)   For a zone change affecting an airport, the owners of the airport in accordance with ORS 227.175.
      (3)   At least ten days before the first evidentiary hearing, public notice shall be published in a newspaper of general circulation in the city.
      (4)   The City Planner or designee shall:
         (a)   For each mailing of notice, file an affidavit of mailing in the record as provided by division (D)(2)(a) above;
         (b)   For each published notice, file in the record the affidavit of publication in a newspaper that is required in division (D)(3) above;
         (c)   The state’s Department of Land Conservation and Development (DLCD) shall be notified in writing of proposed Comprehensive Plan and chapter amendments at least 35 days before the first public hearing at which public testimony or new evidence will be received, or at such lesser time as the law may allow. The notice to DLCD shall include a DLCD notice of proposed change form;
         (d)   Notice of a proposed annexation shall follow the provisions of §§ 155.720 through 155.733 of this chapter;
         (e)   The mailed and published notices shall include the following information:
            1.   The number and title of the file containing the application, and the address and telephone number of the City Planner or designee’s office where additional information about the application can be obtained;
            2.   The proposed site location;
            3.   A description of the proposed site and the proposal in enough detail to determine what change is proposed, and the place where all relevant materials and information may be obtained or reviewed;
            4.   The time(s), place(s) and date(s) of the public hearing(s); a statement that public oral or written testimony is invited; and a statement that the hearing will be held under this title and rules of procedure as put forth in division (E) of this section, adopted by the Council and available at City Hall; and
            5.   Each mailed notice required by division (D)(4) above shall contain the following statement: “Notice to mortgagee, lienholder, vendor or seller: If you receive this notice, it shall be promptly forwarded to the purchaser.”
         (f)   The failure of a person to receive notice shall not invalidate the action; provided:
            1.   Mailed notice is deemed given where the notice is deposited with the United States Postal Service; and
            2.   Published notice is deemed given on the date it is published.
   (E)   Hearing process and procedures. Unless otherwise provided in the rules of procedure adopted by the City Council:
      (1)   The Presiding Officer of the Planning Commission and of the City Council have the authority to:
         (a)   Regulate the course, sequence and decorum of the hearing;
         (b)   Direct procedural requirements or similar matters; and
         (c)   Impose reasonable time limits for oral presentations.
      (2)   A person may not address the Commission or the Council without:
         (a)   Receiving recognition from the Presiding Officer; and
         (b)   Stating the person’s full name and address.
      (3)   Disruptive conduct such as, but not limited to, applause or cheering may be cause for expulsion from the hearing, termination or continuation of the hearing or other appropriate action determined by the Presiding Officer.
      (4)   Unless otherwise provided in the rules of procedures adopted by the Council, the Presiding Officer of the Commission and of the Council shall conduct the hearing as follows.
         (a)   The Presiding Officer shall begin the hearing with a statement of the nature of the matter before the body, a general summary of the procedures, a summary of the standards for decision-making and whether the decision which will be made is a recommendation to the City Council or the final decision of the Council;
         (b)   The City Planner or designee’s report and other applicable staff reports shall be presented;
         (c)   The public shall be invited to testify. The public hearing may be continued to allow additional testimony or it may be closed; and
         (d)   The body’s deliberation may include questions to the staff, comments from the staff and inquiries directed to any person present.
   (F)   Continuation of the public hearing. The Planning Commission or the City Council may continue any hearing and no additional notice of hearing shall be required if the matter is continued to a specified place, date and time.
   (G)   Approval process and authority.
      (1)   The Planning Commission shall:
         (a)   After notice and a public hearing, prepare and vote on a recommendation to the City Council whether to approve, approve with modifications, approve with conditions or deny the proposed change or adopt an alternative;
         (b)   Within 14 days of adopting a recommendation, the Presiding Officer shall sign the written recommendation and it shall be filed with the City Planner or designee; and
         (c)   Any member of the Planning Commission who votes in opposition to the Planning Commission’s majority recommendation may file in the city planning file a written statement of opposition prior to the hearing on the proposal before the City Council. City planning staff shall send a copy to each Council member and place a copy in the record.
      (2)   If the Planning Commission fails to adopt a recommendation to approve, approve with modifications, approve with conditions, deny the proposed change or adopt an alternative proposal within 60 days of its first public hearing on the proposed change, city staff shall:
         (a)   Report the failure together with the proposed change to the City Council; and
         (b)   Provide notice and put the matter on the City Council’s agenda for the City Council to hold a public hearing and make a decision. Thereafter, no further action shall be taken by the Commission.
      (3)   The City Council shall:
         (a)   Approve, approve with modifications, approve with conditions, deny or adopt an alternative to an application for legislative change. The City Council also may remand the application to the Planning Commission for rehearing and reconsideration on all or part of the application; and
         (b)   Consider the recommendation of the Planning Commission; however, the City Council is not bound by the Commission’s recommendation.
      (4)   The City Council shall approve any legislation by ordinance, which shall be signed by the Mayor after adoption.
   (H)   Vote required for a legislative change.
      (1)   A vote by a majority of the qualified voting members of the Planning Commission present is required for a recommendation for approval, approval with modifications and approval with conditions, denial or adoption of an alternative.
      (2)   A vote by a majority of the qualified members of the City Council present is required to decide any motion made on the proposal.
   (I)   Notice of decision. Notice of a legislative decision shall be mailed to the applicant, all participants of record and the Department of Land Conservation and Development (DLCD), within five days after the City Council’s decision, per DLCD regulations. The city shall also provide notice to all persons as required by other applicable laws.
   (J)   Final decision and effective date. A legislative decision, if approved, shall take effect and shall become final as specified in the enacting ordinance, or if not approved, upon mailing of the notice of decision to the applicant.
   (K)   Record of the public hearing.
      (1)   A verbatim record of the proceeding shall be made by stenographic, mechanical or electronic means. It is not necessary to transcribe an electronic record. The minutes and other evidence presented as a part of the hearing shall be part of the record;
      (2)   All exhibits received and displayed shall be marked to provide identification and shall be part of the record;
      (3)   The official record shall include:
         (a)   All materials considered by the hearings body;
         (b)   All materials submitted by city staff to the hearings body regarding the application;
         (c)   The verbatim record made by the stenographic, mechanical or electronic means; the minutes of the hearing; and other documents considered;
         (d)   Application requirements and review procedures;
         (e)   The final ordinance;
         (f)   All correspondence; and
         (g)   A copy of the notices that were given as required by this chapter.
(Prior Code, § 16.170.035) (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)
§ 155.033 APPEALS.
   A decision issued under the procedures of this chapter may be appealed to the Planning Commission or City Council as follows.
   (A)   Who may appeal. The following people may appeal a land use decision:
      (1)   The applicant or owner of the subject property;
      (2)   Any person who was entitled to written notice of the decision; and
      (3)   Any other person who participated in the proceeding by submitting written comments.
   (B)   Appeal filing procedure.
      (1)   Notice of appeal. A person described in division (A) above may appeal the decision by filing a notice of appeal.
      (2)   Time for filing. A notice of appeal shall be filed with the City Planner or designee within 14 days of the date the notice of decision was mailed.
      (3)   Content of notice of appeal. The notice of appeal shall:
         (a)   Identify the decision being appealed, including the date of the decision;
         (b)   Demonstrate that the person filing the notice of appeal has standing to appeal;
         (c)   Explain the specific issues being raised on appeal; and
         (d)   Include the filing fee for each appeal.
   (C)   Scope of appeal. Appeal of a Type I or Type II land use decision shall be to a de novo hearing before the Planning Commission. The hearing appeal shall not be limited to the application materials, evidence and other documentation, and specific issues raised in the review by the city staff. The Planning Commission may allow additional evidence, testimony or argument concerning any relevant standard, criteria, condition or issue.
   (D)   Appeal procedures. Quasi-judicial notice, hearing procedures and decision process shall also be used for all appeals under this section.
   (E)   Appeal to City Council. A decision of the Planning Commission regarding a land use issue or an appeal of a Type II limited land use decision is the final decision of the city unless appealed to City Council. An appeal to City Council is de novo and shall be based on the record before the Planning Commission public hearing and any new evidence or testimony entered into the record before the City Council without substantive changes to the application reviewed by the Planning Commission. The appeal shall follow the same notification and hearing procedures as for the original Planning Commission hearing. The decision of the City Council on an appeal is final and effective on the date it is sent by the city. The City Council’s decision may be appealed to the state’s Land Use Board of Appeals pursuant to ORS 197.805 to197.860.
(Prior Code, § 16.170.040) (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)
DESIGN REVIEW
§ 155.045 PURPOSE.
   (A)    The purpose of design review approval is to ensure compliance with the objectives and provisions of this chapter and the Comprehensive Plan; to mitigate the impacts where development may cause a conflict between uses in the same or adjoining zones, to reduce and eliminate unsightly, unhealthful or unsafe conditions, which adversely affect the public health, safety, and general welfare.
   (B)   This subchapter is designed to address the location and design of a use that is allowed within the zone. In considering the design review requirements, the city shall take into account the impact of the proposed development on nearby properties, the capacity and circulation of the street system, the capacity of the utility and service systems, and the appearance of the street and the community.
(Prior Code, §16.175.000) (Ord. 445, passed 5-15-2017; Ord. 450, passed 12-18-2017; Ord. 451, passed 6-4-2018; Ord. 477, passed 2-22-2022)
§ 155.046 DESIGN REVIEW APPROVAL REQUIREMENTS.
    A building, grading, parking, or development permit, as specified in this chapter shall not be issued for a use subject to this section, nor shall such uses be commenced, enlarged, altered, changed or moved until a design review application is approved by the city.
(Prior Code, §16.175.005) (Ord. 445, passed 5-15-2017; Ord. 450, passed 12-18-2017; Ord. 451, passed 6-4-2018; Ord. 477, passed 2-22-2022)
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