Chapter 18.20 LAND USE REGULATION APPLICATION PROCEDURES AND APPROVAL CRITERIA

A. Purpose. The purpose of this section is to establish standard decision-making procedures that will enable the City, the applicant, and the public to reasonably review applications and participate in the local decision-making process in a timely and effective way. Table 18.20.010 establishes the review procedure and the decision-making body for particular approvals.

B. Applicability of Review Procedures. All land use and development permit applications and approvals, except building permits, shall be decided by using the procedures contained in this section. The procedure “type” assigned to each application governs the decision-making process for that permit or approval. There are five types of permit/approval procedures as described in subsections (1)(B)(1) through (1)(B)(5) of this section. Table 18.20.010 lists the City’s land use and development approvals and corresponding review procedure(s).

(1) Type I Land Use Review Procedure (Staff Review – Ministerial). Type I decisions are made by the City Planning Official, or his or her designee. Type I procedures are typically non-discretionary decisions that do not require public notice or opportunity for a public hearing. A Type I procedure is used in applying City standards and criteria that do not require the use of discretion (i.e., there are clear and objective standards). In certain instances, uses and permits subject to Type I procedures may have unusual circumstances that require the exercise of discretion. The Planning Official may determine notice and opportunity for hearing is appropriate for any Type I land use review; if the Planning Official determines a Type I land use review requires notice, the notice and opportunity for hearing shall be provided in the manner set forth for a Type II land use review procedure.

(2) Type II Land Use Review Procedure (Staff Review with Notice). Type II land use reviews are made by the City Planning Official, or his or her designee. Property owner notice and an opportunity to request an initial hearing with the Planning Commission within 12 days of the date the written notice of decision was mailed. If the 12-day period lapses and no request for hearing is received by the City of Burns, the staff decision shall be the final land use decision of the City. The City Planning Official may elevate any Type II application to the Planning Commission as a Type III land use review procedure.

(3) Type III Land Use Review Procedure (Quasi-Judicial Review Not Involving a Comprehensive Plan Amendment or Annexation). Type III decisions are made by the Planning Commission after a public hearing, with an opportunity to appeal the Commission’s decision to the City Council. Type III land use reviews are quasi-judicial reviews that involve discretion, apply established criteria, and do not amend the Comprehensive Plan.

(4) Type IV Land Use Review Procedure (Quasi-Judicial Review Involving a Comprehensive Plan Amendment or Annexation). Type IV decisions involve a quasi-judicial Comprehensive Plan amendment request. The Planning Commission conducts the initial public hearing and makes a recommendation to the City Council. The City Council reviews the Planning Commission recommendation and record and then conducts a de novo public hearing on the request. The City Council makes the final decision. Type IV land use reviews are quasi-judicial reviews that involve discretion and amend the Comprehensive Plan, but in a limited way that complies with the following:

(a) An applicant has requested the Comprehensive Plan amendment and an application was submitted on the required forms of the City for quasi-judicial Comprehensive Plan amendment, the required fee was paid, and sufficient information required by the City was provided by the applicant to review the request.

(b) The applicant sufficiently demonstrates that the proposed Comprehensive Plan amendment applies to a limited number of people or properties (circumscribed factual situation).

(c) The requested Comprehensive Plan amendment does not propose to change generally applicable land use regulations in the City of Burns and the amendment can be reviewed for compliance with criteria established not later than the initial hearing in front of the City Council.

(5) Type V Land Use Review Procedure (Legislative Review). The Type V procedure applies to the creation or revision, or large-scale implementation, of public policy (e.g., adoption of regulations, zone changes, plan map amendments or annexations involving numerous properties, and Comprehensive Plan amendments). Type V reviews are considered by the Planning Commission, which makes a recommendation to City Council. The City Council makes the final decision on a legislative proposal through the enactment of an ordinance.

Table 18.20.010 – Summary of Approvals by Type of Review Procedure
Land Use Request*	Review Procedures	Guidance Comments	Regulation References
Zoning Checklist Review	Type I	Typical Reviews: utility connection permits, street access permits, plot plans for dwellings on existing lots, site development not subject to site design review	18.20.015(2)
Legal Lot Determination	Type I	Complicated property history may require discretion	18.10.050
Similar Use Determination	Type I	Noticed Type I	18.10.060
Expansion of a Nonconforming Use	Type I or III	Noticed Type I or Type III conditional use permit	18.10.055(2)
Property Line Adjustments, including Lot Consolidations	Type I	May involve lot legality as well	18.20.160
Land Use Compatibility (LUCS) Statement	Type I	To be provided on the applicable agency forms	18.20.015(2)
Final Plat Review	Type I	Conditions must be met	18.20.145
Adjustment	Type II		18.20.520
Planned Unit Development Detailed Plan Review	Type I or II	Conditions must be met	18.20.650
Partition or Re-plat of 2-3 lots Preliminary Plat	Type II		18.20.120
Similar Use Determinations	Noticed Type I or consolidated with Type II – IV applications		18.10.060
Site Design Review	Type II or III		18.20.200
Variance	Type III	Cannot qualify as adjustment	18.20.525
Expansion or Alteration of a Nonconforming Development up to 50 Percent	Type III	Conditional use permit	18.10.055(3)
Conditional Use Permit	Type III		18.20.300
Planned Unit Development Concept Plan	Type III		18.20.600
Modification to Approval or Condition of Approval	Type I, II, III or IV		18.20.400
Subdivision or Replat of >3 Lots Preliminary Plat	Type III		18.20.120
Zoning Map Amendment	Type III or V		18.20.710
Annexation	Type IV or V		ORS 222
Comprehensive Plan Amendment	Type IV or V		18.20.715
Code Text Amendment	Type V		18.20.720

* The applicant may be required to obtain building permits and other approvals from other agencies, such as a road authority or natural resource regulatory agency. The City’s failure to notify the applicant of any requirement or procedure of another agency shall not invalidate a permit or other decision made by the City under this code.

[Ord. 23-887 (Exh. A), 2023]

18.20.015 Type I land use review procedure.

This section sets forth the process and information for ministerial staff reviews such as zoning checklist reviews, property line adjustments and LUCS reviews.

1. Type I Procedure (Ministerial Staff Review). The City Planning Official, or his or her designee, makes ministerial decisions through the Type I procedure. Ministerial decisions are those where City standards and criteria do not require the exercise of discretion (i.e., there are clear and objective standards). Land use review procedures identified as Type I procedures in Table 18.20.010 will be taken in as Type I applications. The Planning Official may determine notice and opportunity for hearing is appropriate for any Type I land use review; if the Planning Official determines a Type I land use review requires notice, the notice and opportunity for hearing shall be provided in the manner set forth for a Type II land use review procedure.

2. Zoning Checklist. The City Planning Official reviews general proposals requiring a Type I review using a zoning checklist, some specific other reviews require specific information like property line adjustments or LUCS reviews. The zoning checklist is intended to ensure a project proposal meets applicable standards of the code. The zoning checklist is issued before the City authorizes the Building Official to issue a building permit.

A. Application Requirements.

(1) Application Forms. Approvals requiring Type I review, including zoning checklists, shall be made on forms provided by the City.

(2) Application Requirements. When a zoning checklist is required, it shall:

(a) Include the information requested on the application form;

(b) Address the criteria in sufficient detail for review and action; and

B. Requirements. The City shall not act upon an application for land use approval, and a building permit shall not be issued, until the City Planning Official has approved a zoning checklist for the proposed project.

C. Criteria and Decision. The City Planning Official’s review of a zoning checklist is intended to determine whether minimum code development standards are met and also that any conditions of approval imposed through a Type II – IV review have been satisfied prior to issuance of a building permit.

D. Effective Date. A zoning checklist decision is final on the date it is signed by the City Planning Official. It is not a land use decision as defined by ORS 197.015, and therefore is not subject to appeal to the state Land Use Board of Appeals. [Ord. 23-887 (Exh. A), 2023]

18.20.020 Type II procedure (staff review with notice).

The City Planning Official, or his or her designee, performs staff reviews through the Type II procedure. Type II decisions are made by the City Planning Official with public notice and an opportunity to request a hearing in front of the Planning Commission. Alternatively, the City Planning Official may refer any Type II application to the Planning Commission for its review under the Type III procedures.

1. Application Requirements.

A. Application Forms. Applications for projects requiring Type II staff 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 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 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.

3. Procedure.

A. The City Planning Official shall review the submitted application and determine if the application is complete within 30 days of receiving the application. The completeness review shall be conducted in accordance with procedures set forth in ORS 227.178. Staff will determine within the 30-day completeness review period if the matter should be elevated and processed as a Type III procedure.

B. The City Planning Official shall review the application and submittal and issue a staff decision leaving time for a request for hearing in front of the Planning Commission. Notice of the staff decision shall be provided to property owners within 100 feet of the subject property. The notice of decision shall contain all of the following information:

(1) 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, identifies the applicable criteria and describes conditions of approval;

(2) 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);

(3) A statement of where the City’s decision can be obtained;

(4) The date the decision shall become final, unless a request for hearing is submitted;

(5) A statement that all persons entitled to notice may request a Planning Commission hearing.

4. Effective Date of Decision. Unless the conditions of approval specify otherwise, an administrative decision becomes effective 12 days after the City mails the decision notice, unless a hearing is requested.

5. Request for Hearing of Type II Decision. A request for hearing may be submitted for a Type II staff decision made by the City Planning Official, as applicable, pursuant to the following:

A. Who May Request a Hearing. The following people have legal standing to request a hearing of a Type II staff decision:

(1) The applicant or owner of the subject property;

(2) Any person who was entitled to written notice of the Type II decision; and

(3) Any other person who believes they are affected or aggrieved by the decision.

B. Hearing Request Procedure.

(1) Request for Hearing. Any person with standing, as provided in subsection (5)(A) of this section may request a hearing for a Type II staff decision by filing a request for hearing according to the following procedures.

(2) Time for Filing. Request for hearing shall be filed with the City Planning Official within 12 days of the date the notice of decision is mailed.

(3) Content of Request for Hearing. The request for hearing shall be accompanied by the required filing fee and shall contain:

(a) An identification of the decision for which a hearing is requested, including the date of the decision;

(b) A statement demonstrating the person filing the notice of appeal has standing to appeal.

6. Scope of Hearing. The request for hearing for a Type II administrative decision shall be a hearing de novo before the Planning Commission. The hearing shall not be limited to the application materials, evidence and other documentation, and specific issues raised in the review leading up to the staff decision but may include other relevant evidence and arguments. The Planning Commission may allow additional evidence, testimony, or argument concerning any relevant standard, criterion, condition, or issue.

7. Planning Commission Hearing Procedure. Hearings on appeals of Type II staff decisions shall follow the same procedure used for public hearings on Type III reviews under Section 18.20.025. The Planning Commission is the final decision-making authority for Type II staff decisions for which a request for Planning Commission hearing is properly filed.

8. Type II Staff Decision Alternative Procedures. At the time of application submittal, any applicant can request the application be processed as a limited land use decision, pursuant to ORS 197.195 or as an expedited land division pursuant to ORS 197.360. Such requests shall be made in writing with the application submittal materials. Staff will promptly provide a determination to the applicant confirming the City’s ability to review the application using the alternative procedure requested. [Ord. 23-887 (Exh. A), 2023]

18.20.025 Type III land use review procedure (quasi-judicial review without a Comprehensive Plan amendment or annexation).

Type III decisions are made by the Planning Commission after a public hearing, with an opportunity for appeal to the City Council.

1. Application Requirements.

A. Application Forms. Applications requiring Type III quasi-judicial review shall be made on forms provided by the City Planning Official.

B. Submittal Information. The City Planning Official shall advise the applicant on application submittal requirements. At a minimum, the application shall include all the following information:

(1) The information requested on the application form;

(2) Plans and exhibits required for the specific approval(s) being sought;

(3) A written statement or letter explaining how the application satisfies each and all of the relevant criteria and standards in sufficient detail;

(4) Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable;

(5) The required fee.

2. Pre-Hearing Procedure.

A. Completeness Review. The City Planning Official shall review the submitted application and determine if the application is complete within 30 days of receiving the application. The completeness review shall be conducted in accordance with procedures set forth in ORS 227.178.

B. Mailed and Posted Notice.

(1) 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:

(a) All owners of record of real property located within a minimum of 100 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 Burns. 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.

(2) 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.

(3) At least 14 days before the first hearing, the City shall publish notice of the hearing on the City website, and/or have said notice published in a newspaper with local circulation.

C. Content of Notice. Notice of a quasi-judicial hearing to be mailed and published per subsection (2)(B) of this section shall contain all the following information:

(1) A summary of the proposal and the relevant approval criteria, in sufficient detail to help the public identify and locate applicable code requirements;

(2) The date, time, and location of the scheduled hearing;

(3) The street address or other clear reference to the location of the proposed use or development;

(4) A disclosure statement that if any person fails to address the relevant approval criteria with enough detail, he or she 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;

(5) 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;

(6) 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 a reasonable cost;

(7) A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and

(8) 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.

D. Type III Decision Alternative Procedures. At the time of application submittal, any applicant can request the Type III application be processed as a limited land use decision, pursuant to ORS 197.195 or as an expedited land division pursuant to ORS 197.360. Such requests shall be made in writing with the application submittal materials. Staff will promptly provide a determination to the applicant confirming the City’s ability to review the application using the alternative procedure requested.

3. Conduct of the Public Hearing.

A. At the commencement of the hearing, the Planning Commission chair, or his or her designee, shall state to those in attendance all the following information and instructions:

(1) The applicable approval criteria by code section that apply to the application;

(2) 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;

(3) 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;

(4) Failure to raise constitutional or other issues with sufficient detail to give the hearing body and the parties an opportunity to respond to the issue may preclude pursuit of action in court on that issue;

(5) 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 subsection (5) of this section.

(6) 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 subsection (3)(A)(10) of this subsection, or leave the record open for additional written evidence or testimony as provided in subsection (3)(A)(11) of this section.

(7) 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 of 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.

(8) Presenting and Receiving Evidence.

(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; and

(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.

(9) 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 any local, state, or federal regulations.

(10) 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 he or she 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.

(11) 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 Section 18.20.040 (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; and

(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.

(12) 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, 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);

(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 subsection (4) of this section, or may appeal the City Council’s decision to the State Land Use Board of Appeals, as applicable.

4. Appeal of Planning Commission Decision. The Planning Commission’s decision may be appealed to the City Council as follows:

A. Who May Appeal. The following people have legal standing to appeal:

(1) The applicant or owner of the subject property; and

(2) Any other person who testified orally or in writing during the subject public hearing before the close of the public record.

B. Appeal Filing Procedure.

(1) Notice of Appeal. Any person with standing to appeal, as provided in subsection (4)(A) of this section, may appeal a Type III quasi-judicial decision by filing a notice of appeal according to the following procedures.

(2) 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 10 days of the date the notice of decision is mailed.

(3) Content of Notice of Appeal. The notice of appeal shall be accompanied by the required filing fee and shall contain:

(a) An identification of the decision being appealed, including the date of the decision;

(b) A statement demonstrating the person filing the notice of appeal has standing to appeal;

(d) If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period.

C. Scope of Appeal. The appeal of a Type III quasi-judicial decision shall be on the record before the City Council. The appeal shall be limited to the application materials, evidence and other documentation, and specific issues raised in the review leading up to the quasi-judicial decision. To reverse or modify the Planning Commission’s decision, the City Council must conclude that the Planning Commission committed an error of law or that there was not sufficient evidence to support the Planning Commission’s decision.

5. Record of the Public Hearing.

A. The official public hearing record shall include all the following information:

(1) All materials considered by the hearings body;

(2) All materials submitted by the City Planning Official to the hearings body regarding the application;

(3) The minutes of the hearing;

(4) The final written decision; and

(5) Copies of all notices given as required by this section, and correspondence regarding the application that the City mailed or received.

B. 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.

C. All exhibits received and displayed shall be marked to provide identification and shall be part of the record.

6. Effective Date and Appeals to State Land Use Board of Appeals. A Type III 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 section shall be filed with the state Land Use Board of Appeals pursuant to ORS 197.805 through 197.860. [Ord. 23-887 (Exh. A), 2023]

18.20.030 Type IV land use review procedure (quasi-judicial review with Comprehensive Plan amendment or annexation).

Type IV decisions are quasi-judicial land use decisions made by the City Council following a recommendation from the Planning Commission after a public hearing. These reviews involve a Comprehensive Plan amendment or annexation.

1. Application Requirements.

A. Application Forms. Applications requiring Type IV quasi-judicial review shall be made on forms provided by the City Planning Official.

B. Submittal Information. The City Planning Official shall advise the applicant on application submittal requirements. At a minimum, the application shall include all the following information:

(1) The information requested on the application form;

(2) Plans and exhibits required for the specific approval(s) being sought;

(3) A written statement or letter explaining how the application satisfies each and all the relevant criteria and standards in sufficient detail;

(4) Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable;

(5) The required fee.

2. Pre-Hearing Procedure.

A. Completeness Review. The City Planning Official shall review the submitted application and determine if the application is complete within 60 days of receiving the application.

B. Mailed and Posted Notices.

(a) All owners of record of real property located within a minimum of 100 feet of the subject site;

(b) Any person who submits a written request to receive a notice; and

(2) The City Planning Official shall notify in writing the Oregon Department of Land Conservation and Development (DLCD) of legislative amendments (zone change, rezoning with annexation, or Comprehensive Plan amendment) at least 35 days before the first public hearing at which public testimony or new evidence will be received. The notice shall include a DLCD Certificate of Mailing.

(3) 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.

(4) At least 14 days before the first hearing, the City shall publish notice of the hearing on the City website, and/or have said notice published in a newspaper with local circulation.

C. Content of Notice. Notice of a quasi-judicial hearing to be mailed and published per subsection (2)(B)(1) of this section shall contain all of the following information:

(1) A summary of the proposal and the relevant approval criteria, in sufficient detail to help the public identify and locate applicable code requirements;

(2) The date, time, and location of the scheduled hearing;

(3) The street address or other clear reference to the location of the proposed use or development;

(4) A disclosure statement that if any person fails to address the relevant approval criteria with enough detail, he or she may not be able to appeal to the 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;

(7) A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and

(8) A statement that the initial public hearing will be in front of the Planning Commission who will make a recommendation to the City Council. A second public hearing in front of the City Council will follow the Planning Commission hearing. After which, 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.

3. Conduct of the Public Hearing.

A. At the commencement of the hearing, the chairperson of the Commission or Mayor, as applicable, or his or her designee, shall state to those in attendance all of the following information and instructions:

(1) The applicable approval criteria by code section that apply to the application;

(6) 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 subsection (3)(A)(10) of this section, or leave the record open for additional written evidence or testimony as provided in subsection (3)(A)(11) of this section.

(8) Presenting and Receiving Evidence.

(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; and

(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.

(9) 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 any local, state, or federal regulations.

(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; and

(12) The notice of quasi-judicial decision shall contain all the following information:

(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);

(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 Section 18.20.025(4), or may appeal the City Council’s decision to the state Land Use Board of Appeals, as applicable.

4. Record of the Public Hearing.

A. The official public hearing record shall include all of the following information:

(1) All materials considered by the hearings body;

(2) All materials submitted by the City Planning Official to the hearings body regarding the application;

(3) The minutes of the hearing;

(4) The final written decision; and

(5) Copies of all notices given as required by this section, and correspondence regarding the application that the City mailed or received.

B. 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.

C. All exhibits received and displayed shall be marked to provide identification and shall be part of the record.

5. Effective Date and Appeals to State Land Use Board of Appeals. For LUBA appeals purposes, a Type IV land use decision is a final decision on the date the City mails the decision notice. Appeals of City Council decisions under this section shall be filed with the state Land Use Board of Appeals pursuant to ORS 197.805 through 197.860. For City operations and land development purposes, the effective date of the decision shall be the effective date of the ordinance. [Ord. 23-887 (Exh. A), 2023]

18.20.035 Type V amendments (legislative decisions).

1. Timing of Requests. The City Council may establish a schedule for when it will accept legislative code amendment or plan amendment requests, or the City Council may initiate its own legislative proposals at any time. Legislative requests are not subject to the 120-day review period under ORS 227.178.

2. Application Requirements.

A. Initiation Action. Type V legislative amendments to the City’s Comprehensive Plan or land use regulations may only be initiated by a two-thirds majority of the Planning Commission or by resolution of the City Council. When initiated by the Planning Commission, the City Planning Official shall provide a memo to the City Council describing the Commission’s initiation action. The City Planning Official shall open a new planning file following initiation of the planning project by the Planning Commission or the City Council.

B. Working Documents. The City Planning Official shall maintain copies of working documents, digital and analog as applicable and store them in the project file so the legislative history of the actions can be understood. Analog working documents may be digitized and kept with the balance of the digital records.

3. Procedure. Hearings on legislative land use requests are conducted similar to City Council hearings on other legislative proposals, except the notification procedure for legislative land use requests must conform to state land use laws (ORS 227.175), as follows:

A. The City Planning Official shall notify in writing the Oregon Department of Land Conservation and Development (DLCD) of legislative amendments (zone change, rezoning with annexation, or Comprehensive Plan amendment) at least 35 days before the first public hearing at which public testimony or new evidence will be received. The notice shall include a DLCD Certificate of Mailing.

B. At least 20 days, but not more than 40 days, before the date of the first hearing on an ordinance that proposes to amend the Comprehensive Plan or any element thereof, or to adopt an ordinance for any zone change, a notice shall be prepared in conformance with ORS 227.175 and mailed to:

(1) Each owner whose property would be directly affected by the proposal (e.g., rezoning or a change from one Comprehensive Plan land use designation to another, commonly referred to as “Ballot Measure 56 Notice”). See ORS 227.186 for instructions;

(2) Any affected governmental agency;

(3) Any person who requests notice in writing; and

(4) For a zone change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175.

C. At least 10 days before the scheduled City Council public hearing date, public notice shall be published in a newspaper of general circulation in the City.

D. For each mailing and publication of notice, the City Planning Official shall keep an affidavit of mailing/publication in the record.

4. Final Decision and Effective Date. A legislative land use decision, if approved, shall take effect and shall become final as specified in the enacting ordinance. [Ord. 23-887 (Exh. A), 2023]

18.20.040 Time limit, consolidated review, and City Planning Official’s duties.

1. Time Limit – 120-Day Rule. The City shall take final action on Type II and Type III applications, pursuant to this section, including resolution of all appeals, within 120 days from the date the City Planning Official deems the application complete for purposes of processing, unless the applicant requests an extension in writing. Any exceptions to this rule shall conform to the provisions of ORS 227.178. (Note: The 120-day rule does not apply to Comprehensive Plan amendments or annexations.)

2. Time Periods. In computing time periods prescribed or allowed by this section, the day of the act or event from which the designated period of time begins shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which case the period runs until the end of the next day that is not on a weekend or legal holiday.

3. Consolidated Review of Applications. When an applicant applies for more than one type of land use or development permit for the same one or more contiguous parcels of land, the proceedings shall be consolidated for review and decision. When proceedings are consolidated, the highest procedural level of review shall be applied to all the applications. For example, a consolidated application requiring one Type III land use review and two Type II land use reviews will be consolidated and all applications processed in accordance with the Type III procedures. Notices may be consolidated, but the notice shall identify each application to be decided.

4. City Planning Official’s Duties. The City Planning Official, or his or her designee, shall perform all of the following duties with regard to administration of this code:

A. Prepare application forms based on the provisions of this code and applicable state law;

B. Prepare required notices and process applications for review and action;

C. Assist the Planning Commission and City Council in administering the hearings process;

D. Answer questions from the public regarding the City’s land use regulations;

E. Prepare staff reports summarizing pending applications, including applicable decision criteria;

F. Prepare findings consistent with City decisions on land use and development applications;

G. Prepare notices of final decisions, file the notices in the City’s records, and mail a copy of the notices to all parties entitled to notice under this code; and

H. Maintain and preserve the file and public record for each application. [Ord. 23-887 (Exh. A), 2023]

Article I. Land Divisions and Property Line Adjustments

18.20.110 Purpose.

The purpose of this article is to implement the following objectives:

1. Provide rules, regulations, and standards governing the approval of subdivisions, partitions, and property line adjustments as follows:

A. Subdivisions are the creation of four or more lots from one parent lot, parcel, or tract within one calendar year.

B. Partitions are the creation of three or fewer lots from one parent lot, parcel, or tract within one calendar year.

C. Property line adjustments are modifications to lot lines or parcel boundaries that do not result in the creation of new lots (includes consolidation of lots).

2. Carry out the City’s development pattern, as envisioned by the City’s Comprehensive Plan.

3. Encourage efficient use of land resources and public services, and to provide transportation options.

4. Promote the public health, safety, and general welfare through orderly and efficient urbanization.

5. Ensure units of land are appropriately configured for urban development in a manner that takes appropriate account of transportation facilities, water supply, sanitary sewage, fire protection, pollution control, surface water management, and protection against natural hazards. [Ord. 23-887 (Exh. A), 2023]

18.20.115 General requirements.

1. Subdivision and Partition Approval Through Two-Step Process. Applications for subdivision or partition approval shall be processed by means of a preliminary plat evaluation and a final plat evaluation, according to the following two steps:

A. The preliminary plat must be approved before the final plat can be submitted for approval consideration; and

B. The final plat must demonstrate compliance with all conditions of approval of the preliminary plat.

Note: Property line adjustments and lot consolidation requests (i.e., no new lot is created) are subject to Section 18.20.160; they are not subject to Sections 18.20.115 through 18.20.155.

2. Compliance With ORS 92. All subdivision and partition proposals shall conform to state regulations in ORS 92, Subdivisions and Partitions.

3. Future Redivision Plan. When subdividing or partitioning tracts into large lots (i.e., greater than three times the minimum lot size allowed by the underlying land use district), the lots shall be of such size, shape, and orientation as to facilitate future redivision and extension of streets and utilities. The applicant shall submit a future redivision plan, or shadow plan, indicating how redivision of oversized lots and extension of planned public facilities to adjacent parcels can occur in the future in a manner that would allow future development at not more than 150 percent of the minimum density for the zone. See also Section 18.20.130, Schematic planning for large sites.

4. Utilities. All lots created through land division shall have public utilities and facilities such as streets, water, sewer, gas, and electrical systems at the property boundary for each newly created lot pursuant to Chapter 18.40. These systems shall be located and constructed underground where feasible.

5. Drainage. All subdivision and partition proposals shall comply with Section 18.30.325 for floodplain development permit within a regulatory flood hazard zone and shall provide surface water drainage facilities engineered to accommodate the design year storm, the 10-year storm, in a manner that will release waters in quantity and location less than or equal to the pre-development conditions.

6. Adequate Access. All lots created or reconfigured shall have adequate vehicle access and parking, as may be required, pursuant to Sections 18.50.220 and 18.50.400. [Ord. 23-887 (Exh. A), 2023]

18.20.120 Preliminary plat approval process.

1. Review of Preliminary Plat. Subdivision preliminary plats shall be processed using the Type III procedure under Section 18.20.025 and partition preliminary plats shall be processed using the Type II procedure (unless elevated to a Type III at the discretion of the Planning Official). All preliminary plats, including partitions and subdivisions, are subject to the approval criteria in Section 18.20.145.

2. Preliminary Plat Approval Period. Preliminary plat approval shall be effective for a period of four years from the date of approval. The preliminary plat shall lapse if a final plat has not been submitted or other assurance provided, pursuant to Section 18.20.145, within the four-year period. The Planning Commission may approve phased subdivisions, pursuant to Section 18.20.125, with an overall time frame of more than four years between preliminary and final plat approvals. For phased subdivisions, the applicant shall specifically request the effective period requested for the phased project and the approving authority shall specify the effective time frames as conditions of approval.

3. Modifications and Extensions. The applicant may request changes to the approved preliminary plat or conditions of approval following the procedures and criteria provided in Article IV of this chapter. The Planning Commission may, upon written request by the applicant and payment of the required fee, grant written extensions of the approval effective period not to exceed one year per extension, provided that all of the following criteria are met:

A. Any changes to the preliminary plat follow the procedures in Article IV of this chapter;

B. The applicant has submitted written intent to file a final plat within the one-year extension period;

C. An extension of time will not prevent the lawful development of abutting properties;

D. There have been no changes to the applicable code provisions on which the approval was based. If such changes have occurred, a new preliminary plat application shall be required; and

E. The extension request shall be received by the Burns Planning Department addressing all the requirements in subsections (3)(A) through (3)(D) of this section before expiration of the original approved plan. [Ord. 23-887 (Exh. A), 2023]

18.20.125 Phased subdivision.

The Planning Commission may approve plans for phasing a subdivision, and changes to approved phasing plans, provided the applicant’s proposal meets all of the following criteria:

1. In no case shall the construction time period (i.e., for required public improvements, utilities, streets) for the first subdivision phase be more than four years;

2. Public facilities shall be constructed in conjunction with or prior to each phase;

3. The phased development shall not result in requiring the City or a third party (e.g., owners of lots) to construct public facilities that are required as part of the approved development proposal;

4. The proposed phasing schedule shall be reviewed with the preliminary subdivision plat application; and

5. Planning Commission approval is required for modifications to phasing plans. [Ord. 23-887 (Exh. A), 2023]

18.20.130 Schematic planning for large sites.

1. Purpose. This section requires the schematic planning of large sites. Applications requesting annexation or zone change shall include a consolidated application for schematic plan approval or shall be conditioned to require a schematic plan prior to land division or vertical construction. Schematic plans are intended to avoid piecemeal development and plan the logical extension of infrastructure.

2. Applicability. This section applies to annexations or zone changes affecting more than 40 acres of land under the same contiguous ownership, even where only a portion of the site is proposed for annexation or zone change. This section does not apply to annexations or zone changes that file concurrent applications for planned unit development. For the purposes of this section, the same contiguous ownership means the same individual, or group of individuals, corporations, or other entities, controls a majority share of ownership.

3. Schematic Plan Required. Prior to submittal of an annexation petition or zone change for an area subject to this section, the schematic plan shall be submitted to the City Planning Official with the required application materials for the project or proposal. The schematic plan shall illustrate the type and location of planned streets, utility corridors, parks, open spaces, and land uses for the ultimate buildout of the subject property and all lands under contiguous ownership.

4. Criteria. The schematic plan required under subsection (3) of this section shall include sufficient level of detail so that the City officials can determine that it meets the following land development layout criteria:

A. Streets are interconnected to the extent practicable; blocks in residential and commercial areas are walkable in scale. Blocks in commercial and residential areas shall be less than 800 feet in length (centerline-to-centerline). The approving authority may allow longer blocks at their discretion based upon topography, existing development, other physical features, or planned land uses that require larger blocks. The approving authority may require pedestrian access ways that connect through blocks that exceed 800 feet;

B. Water, sewer, and storm drainage facilities shall be planned logically for extension to serve the site at buildout, consistent with adopted public facility plans. Where a public facility plan identifies a need for new capacity-related improvements (e.g., water storage, sewage treatment, pump stations, etc.) in the future, the plan shall describe conceptually how such improvements will be accommodated;

C. Overall, the plan can feasibly achieve a housing density that is consistent with the Comprehensive Plan and development code; and

D. The plan identifies land areas needed for public use (e.g., schools, parks, fire stations, and other facilities), in accordance with the Comprehensive Plan and to the extent allowed under applicable law.

5. Implementation. The City will review the schematic plan required by this section. The City will refer the plan to outside agencies with jurisdiction for their input. Future development and land division requests shall be consistent with the approved schematic plan with respect to block layout and infrastructure extension or the applicant shall request an amendment to the schematic plan prior to or concurrently with the subsequent development or land division applications. [Ord. 23-887 (Exh. A), 2023]

18.20.135 Lot size averaging, flag lots, and infill lots.

1. Lot Size Averaging for Subdivisions. To allow flexibility in subdivision design and to address physical constraints, such as topography, existing development, significant trees, and other natural and built features, the approval body may grant up to a 20 percent modification to the lot area and/or lot dimension (width/depth) standards in Section 18.50.100 on up to 25 percent of the proposed lots in the subdivision; provided, that the overall density of the subdivision does not exceed the allowable density of the district; except this section shall not be used to modify the lot width to less than 45 feet.

2. Flag Lots. Flag lots may be created when the spacing between existing parallel streets in the street grid are spaced 800 feet or less centerline-to-centerline. A flag lot driveway (“flag pole”) shall serve not more than two parcels. The width of the flagpole shall be not less than 22 feet and not more than 40 feet. The length of the flagpole shall not be longer than two and one-half times the lot depth (excluding the flagpole).

3. Emergency Vehicle Access. A drive serving more than one lot shall have a reciprocal access and maintenance easement recorded for all lots it serves. No fence, structure, or other obstacle shall be placed within the drive area. Where required, emergency vehicle apparatus lanes, including any required turn-around, shall conform to applicable building and fire code requirements. Fire sprinklers may also be required for buildings that cannot be fully served by fire hydrants (i.e., due to distance from hydrant or insufficient fire flow).

4. Maximum Drive Lane Length. The maximum length of a drive serving more than one dwelling is subject to requirements of the Uniform Fire Code. [Ord. 23-887 (Exh. A), 2023]

18.20.140 Preliminary plat submission requirements.

Applications for preliminary plat approval shall contain all of the following information:

1. General Submission Requirements.

A. Information required for a Type II review for partitions and Type III reviews for subdivisions (see Sections 18.20.020 and 18.20.025); and

B. Public Facility Plan. An Oregon registered professional engineer shall provide a preliminary public facility plan that demonstrates how all lots to be created will be served by streets, municipal water, sanitary sewer and storm drainage. The City’s Public Works Department is available to advise as to the scope of the study, which shall address, at a minimum, the transportation system, including required improvements for vehicles and pedestrians; the drainage system; the parks system (for subdivisions and planned unit developments of 20 or more dwelling units); water system; and sewer system. For each system, the plan shall propose improvements necessary to meet City standards under adopted ordinances and identify any off-site facility improvements necessary to implement adopted facility master plan projects necessary to serve the proposed lots or to meet service standards identified adopted facility master plans or the Comprehensive Plan. The City may require a traffic impact analysis pursuant to Section 18.40.015 for proposed land divisions in commercial or industrial zones.

2. Preliminary Plat Information. In addition to the general information described in subsection (1) of this section, the preliminary plat application shall consist of drawings and supplementary written material (i.e., on forms and/or in a written narrative) adequate to provide all the following information, in quantities determined by the City Planning Official:

A. General Information.

(1) Name of subdivision (partitions are named by year and file number), which shall not duplicate the name of another land division in Harney County;

(2) Date, north arrow, and scale of drawing;

(3) Location of the development sufficient to define its location in the City, boundaries, and a legal description of the site;

(4) Zoning of parcel to be divided, including any overlay zones;

(5) A title block including the names, addresses, and telephone numbers of the owners of the subject property and, as applicable, the name of the engineer and surveyor, and the date of the survey; and

(6) Identification of the drawing as a “preliminary plat.”

B. Existing Conditions. Except where the City Planning Official deems certain information is not relevant, applications for preliminary plat approval shall contain all the following information on existing conditions of the site:

(1) Streets. Location, name, and present width of all streets, alleys, and rights-of-way on and abutting the site;

(2) Easements. Width, location, and purpose of all existing easements of record on and abutting the site;

(3) Utilities. Location and identity of all utilities on and abutting the site. If water mains and sewers are not on or abutting the site, indicate the direction and distance to the nearest one and show how utilities will be brought to standards;

(4) Ground elevations shown by contour lines at two-foot vertical intervals or less. Such ground elevations shall be related to some established benchmark or other datum approved by the county surveyor;

(5) The location and elevation of the closest benchmark(s) within or adjacent to the site (i.e., for surveying purposes);

(6) The base flood elevation, per FEMA flood insurance rate maps, as applicable if any portion of the land to be divided is located within a regulatory floodplain;

(7) North arrow and scale; and

(8) Other information, as deemed necessary by the City Planning Official for review of the application. The City may require studies or exhibits prepared by qualified professionals to address specific site features and code requirements.

C. Proposed Development. Except where the City Planning Official deems certain information is not relevant, applications for preliminary plat approval shall contain all the following information on the proposed development:

(1) Proposed lots, streets, tracts, open space, and park land (if any); location, names, right-of-way dimensions, approximate radius of street curves; and approximate finished street center line grades. All streets and tracts that are being held for private use and all reservations and restrictions relating to such private tracts shall be identified;

(2) Easements: location, width, and purpose of all proposed easements;

(3) Lots and private tracts (e.g., private open space, common area, or street): approximate dimensions, area calculation (e.g., in square feet), and identification numbers for all proposed lots and tracts;

(4) Proposed uses of the property, including all areas proposed to be dedicated as public right-of-way or reserved as open space for the purpose of surface water management, recreation, or other use;

(5) Proposed public street improvements, pursuant to Section 18.40.015;

(6) On slopes exceeding an average grade of 10 percent, as determined by the City Public Works Department, the preliminary location of development on lots (e.g., building envelopes), demonstrating that future development can meet minimum required setbacks and applicable engineering design standards;

(7) Preliminary design for extending City water and sewer service to each lot, per Section 18.40.025;

(8) Proposed method of stormwater drainage and treatment, if required, pursuant to Section 18.40.030;

(9) The approximate location and identity of other utilities, including the locations of street lighting fixtures, as applicable;

(10) Evidence of compliance with applicable overlay zones, including but not limited to City of Burns Flood Hazard Area Overlay; and

(11) Evidence of facility access coordination with the applicable road authority for proposed new street connections. [Ord. 23-887 (Exh. A), 2023]

18.20.145 Preliminary plat approval criteria.

1. Approval Criteria. The Planning Commission may approve, approve with conditions, or deny a preliminary plat. The Planning Commission decision shall be based on findings of compliance with all the following approval criteria:

A. The land division application shall conform to the requirements of Sections 18.20.110 through 18.20.140;

B. All proposed lots, blocks, and proposed land uses shall conform to the applicable provisions of Chapters 18.30, 18.40 and 18.50, except where as allowed by Section 18.20.135.

C. Access to individual lots and public improvements necessary to serve the development, including but not limited to water, sewer, and streets, shall conform to Chapters 18.40 and 18.50;

D. The proposed plat name is not already recorded for another subdivision, and satisfies the provisions of ORS 92;

E. The proposed streets, utilities, and surface water drainage facilities conform to City of Burns adopted master plans and applicable engineering standards, and allow for logical extension to adjacent lands. The preliminary plat shall identify all proposed public improvements and dedications;

F. All proposed private common areas and improvements, if any, are identified on the preliminary plat and maintenance of such areas will be assured through appropriate legal instrument;

G. Evidence that any required state and federal permits, as applicable, are not precluded as a matter of law; and

H. Evidence that improvements or conditions required by the City, road authority, Harney County, special districts, utilities, and/or other service providers, as applicable to the project, have been or can be met.

2. Conditions of Approval. The Planning Commission may attach such conditions as are necessary to carry out the provisions of this code, and other applicable ordinances and regulations. [Ord. 23-887 (Exh. A), 2023]

18.20.150 Land division-related variances.

Variances shall be processed in accordance with Section 18.20.525. Applications for variances shall be submitted concurrently with an application for land division or lot line adjustment is submitted; the applications shall be reviewed concurrently. [Ord. 23-887 (Exh. A), 2023]

18.20.155 Final plat submission requirements and approval criteria.

Final plats require review and approval by the Planning Official, Public Works Director and the Fire Chief prior to recording with Harney County. The final plat submission requirements, approval criteria, and procedure are as follows:

1. Submission Requirements. The applicant shall submit the final plat within four years of the approval of the preliminary plat as provided by Section 18.20.120. The format of the plat shall conform to ORS 92.

2. Approval Process and Criteria. By means of a Type I Review, the City Planning Official shall review and approve or deny the final plat application based on findings of compliance or noncompliance with all the following criteria:

A. The final plat is substantially consistent in design (e.g., number, area, dimensions of lots, easements, tracts, rights-of-way) with the approved preliminary plat, and all conditions of approval have been satisfied;

B. All public improvements required by the preliminary plat have been installed and approved by the City or applicable service provider if different than the City of Burns (e.g., road authority), or otherwise bonded in conformance with Section 18.40.120;

C. The streets and roads for public use are dedicated without reservation or restriction other than reversionary rights upon vacation of any such street or road and easements for public utilities;

D. All required streets, access ways, roads, easements, and other dedications or reservations are shown on the plat;

E. The plat and deed contain a dedication to the public of all public improvements, including, but not limited to, streets, public pathways and trails, access reserve strips, parks, and water and sewer facilities, as applicable;

F. As applicable, the applicant has furnished acceptable copies of covenants, conditions, and restrictions (CC&Rs); easements; maintenance agreements (e.g., for access, common areas, parking, etc.); and other documents pertaining to common improvements recorded and referenced on the plat;

G. Verification by the City that water and sanitary sewer service is available to every lot depicted on the plat; and

H. The plat contains an affidavit by the surveyor who surveyed the land, represented on the plat to the effect the land was correctly surveyed and marked with proper monuments as provided by ORS 92, indicating the initial point of the survey, and giving the dimensions and kind of each monument and its reference to some corner approved by the Harney County Surveyor for purposes of identifying its location. [Ord. 23-887 (Exh. A), 2023]

18.20.160 Filing and recording.

A new lot is not a legal lot for purposes of ownership (title), sale, lease, or development/land use until a final plat is recorded for the subdivision or partition containing the lot is recorded. Requests to validate an existing lot created through means other than a final plat (“lot of record”) shall follow the procedures set forth in ORS 92.010 to 92.190. The final plat filing and recording requirements are as follows:

1. Filing and Recording Plat with County. Within 60 days of City approval of the final plat, the applicant shall submit the final plat to Harney County for signatures of county officials, as required by ORS 92. The final plat shall be recorded with the county no later than 120 days after City approval.

2. Proof of Recording. Upon final recording with the county, the applicant shall submit to the City a mylar copy and three paper copies of all sheets of the recorded final plat. This shall occur prior to the issuance of building permits for the newly created lots.

3. Prerequisites to Recording the Plat.

A. No plat shall be recorded unless all ad valorem taxes and all special assessments, fees, or other charges required by law to be placed on the tax roll have been paid in the manner provided by ORS 92.

B. No plat shall be recorded until the county surveyor approves it in the manner provided by ORS 92. [Ord. 23-887 (Exh. A), 2023]

18.20.165 Re-platting and vacation of plats.

Any plat or portion thereof may be re-platted or vacated upon receiving an application signed by all of the owners as appearing on the deed. Except as required for street vacations, the same procedure and standards that apply to the creation of a plat (preliminary plat followed by final plat) shall be used to re-plat or vacate a plat. Street vacations are subject to ORS 271. A re-plat or vacation application may be denied if it abridges or destroys any public right in any of its public uses, improvements, streets or alleys; or if it fails to meet any applicable City standards. [Ord. 23-887 (Exh. A), 2023]

18.20.170 Property line adjustments.

A property line adjustment is the modification of a lot or parcel boundary when no lot or parcel is created. The City Planning Official reviews applications for property line adjustments pursuant to the Type I procedure under Section 18.20.015. The application submission and approval process for property line adjustments is as follows:

1. Submission Requirements. All applications for property line adjustment shall be made on forms provided by the City and shall include information required for a Type I review, pursuant to Section 18.20.015. The application shall include a preliminary lot line map drawn to scale identifying all existing and proposed lot lines and dimensions, footprints and dimensions of existing structures (including accessory structures), location and dimensions of driveways and public and private streets within or abutting the subject lots/parcels, location of lands subject to the City of Burns Flood Hazard Area Overlay, existing fences and walls, and any other information deemed necessary by the Planning Official for ensuring compliance with City codes. The application shall be signed by all the owners as appearing on the deeds of the subject lots.

2. Approval Criteria. The City Planning Official shall approve or deny a request for preliminary property line adjustment in writing, based on all of the following criteria:

A. Parcel Creation. No additional parcel or lot is created by the lot line adjustment;

B. Lot Standards. All lots and parcels conform to the applicable lot standards of the zoning district in Chapter 18.50 including lot area, dimensions, setbacks, and coverage. In the case of nonconformities, the adjusted property lines shall not create any new nonconformity nor shall any lawful pre-existing nonconformity be made less conforming. As applicable, all lots and parcels shall conform to the City of Burns Flood Hazard Area Overlay; and

C. Access and Road Authority Standards. All lots and parcels before and after the adjustment shall conform to the standards or requirements of Chapter 18.50, Article II, Access and Circulation, and all applicable road authority requirements are met. If a lot is nonconforming to any City or road authority standard, it shall not be made less conforming by the property line adjustment.

3. Recording Property Line Adjustments.

A. Recording. Upon the City’s preliminary planning approval of the proposed property line adjustment, the applicant shall record the property line adjustment documents with Harney County within one year of approval (or the decision expires) and submit a copy of the recorded survey map to the City, to be filed with the approved application. Extension may be requested and granted in the manner provided for preliminary partition plat extension.

B. Time Limit. The applicant shall submit a copy of the recorded property line adjustment survey map to the City within 30 days of recording and prior to any application being filed for a building permit on the reconfigured lots. [Ord. 23-887 (Exh. A), 2023]

Article II. Site Design Review

18.20.210 Purpose.

The purpose of this article is to advance all the following objectives in the public interest:

1. Carry out the development pattern and plan of the City and its Comprehensive Plan policies through efficient and effective review of site development proposals;

2. Promote the public health, safety, and general welfare;

3. Provide adequate light and air, prevent overcrowding of land, and provide for adequate transportation, water supply, sewage, fire protection, pollution control, surface water management, and protection against natural hazards; and

4. Encourage efficient use of land resources and public services, and the provision of transportation options. [Ord. 23-887 (Exh. A), 2023]

18.20.215 Applicability.

Site design review approval is required for all new development, except for development for which an exception is specifically provided for herein. The Planning Official may require site design review for the expansion of a nonconforming use or development during application completeness review. Except as specified by a condition of approval of a prior City decision, or unless subject to conditional use permit approval, a Type II site design review is not required for the following:

1. Change in occupancy of an existing developed site, provided the number of existing lawful off-street parking spaces for the proposed new use is not less than 75 percent of the minimum off-street parking spaces required for the proposed use as if the use were proposed as new development on the site. The applicant can comply with this standard by obtaining and providing evidence of long-term parking leases of at least a 10-year duration on property within 300 feet of the site;

2. Single-family detached dwelling (including manufactured home) on its own lot;

3. A single duplex;

4. Nonresidential building construction of up to 20 percent increase in building square footage is proposed or less than 1,500 square feet is proposed, whichever is greater. The 20 percent increase shall be calculated in aggregate based upon the most recent site design review approval for the site. If there is no site design review approval of record for the site, the 20 percent increase shall be calculated in aggregate based upon the best estimate of building square footage that existed on the site as shown on the 1994 aerial photos of the City.

Notwithstanding the expansion provisions in this section, the applicant shall demonstrate the minimum off-street parking spaces required by the code for the existing uses plus the proposed construction shall be provided and all applicable development standards of the code shall be met by the proposed construction. Notwithstanding the foregoing in this section, a Type II site design review is still required if the proposed construction will create any additional or relocated access points to the public right-of-way or proposes any drive-through lanes or proposes any new loading berths;

5. Home occupation, except for uses requiring a conditional use permit;

6. Development and land uses that are substantially consistent with an approved site design review or conditional use permit application;

7. Public improvements required by City standards or as stipulated by a condition of land use approval (e.g., transportation facilities and improvements, parks, trails, utilities, and similar improvements), as determined by the City Planning Official, except where a condition of approval requires site design review; and

8. Regular maintenance, repair, and replacement of materials (e.g., roof, siding, awnings, etc.), parking resurfacing, and similar maintenance and repair.

9. Horizontal construction of a new surface parking lot in a commercial or industrial zone of less than 40 spaces subject to all applicable surface parking lot and landscaping design standards of the code. [Ord. 23-887 (Exh. A), 2023]

18.20.220 Review procedure.

Outside the Downtown Commercial Core overlay, site design review shall be conducted using the Type II procedure in Section 18.20.020. Within the Downtown Commercial Core overlay, all site design reviews shall be conducted using the Type III procedure in Section 18.20.025. Site design reviews are often required to be submitted concurrently with other application types requiring a higher level of review such as conditional use permits, variances, expansion of nonconforming use, etc., and in such cases the site design review will be processed in accordance with the level of review prescribed by the code. [Ord. 23-887 (Exh. A), 2023]

18.20.225 Application submission requirements.

All the following information is required for site design review application submittal, except where the City Planning Official determines that some information is not pertinent and therefore is not required.

1. General Submission Requirements.

A. Information required for Type II or Type III review, as applicable (see Sections 18.20.020 and 18.20.025).

B. A public facilities and services impact study for nonresidential development is required unless waived in writing by the Planning Official. The impact study shall quantify and assess the effect of the development on public facilities and services. The City Public Works Department shall advise as to the scope of the study, as will ODOT for any proposals that take access from a state highway. The study shall address, at a minimum, the transportation system, including required improvements for vehicles and pedestrians; the drainage system; the parks system; water system; and sewer system. For each system and type of impact, the study shall propose improvements necessary to meet City requirements. The City may require a traffic impact analysis pursuant to Section 18.40.015. Applicants are entitled to rely on any public facilities and services impact study provided as part of a previously approved zone change for the site where the proposed site development is substantially consistent with impacts projected to result at the time the zone change was approved.

2. Site Design Review Information. In addition to the general submission requirements an applicant for site design review shall provide the following information, as deemed applicable by the City Planning Official. The City Planning Official may request any information that he or she needs to review the proposal and prepare a complete staff report and recommendation to the approval body.

A. Site Analysis Map. The site analysis map shall contain all the following information, as the City Planning Official deems applicable:

(1) The applicant’s entire property and the surrounding property to a distance sufficient to determine the location of the development in the City, and the relationship between the proposed development site and adjacent property and development. The property boundaries, dimensions, and gross area shall be identified;

(2) Topographic contour lines at two-foot intervals for slopes, except where the Public Works Director determines that larger intervals will be adequate for steeper slopes;

(3) Identification of slopes greater than 15 percent, with slope categories identified in five percent increments (e.g., zero percent to five percent, greater than five percent to 10 percent, greater than 10 percent to 15 percent, greater than 15 percent to 20 percent, and so forth);

(4) The location and width of all public and private streets, drives, sidewalks, pathways, rights-of-way, and easements on the site and adjoining the site;

(5) Potential natural hazard areas, including, as applicable, the base flood elevation identified on FEMA flood insurance rate maps or as otherwise determined through site specific survey, areas subject to high water table, and areas designated by the City, county, or state as having a potential for geologic hazards;

(6) Areas subject to overlay zones;

(7) Site features, including existing structures, pavement, large rock outcroppings, areas having unique views, and drainage ways, canals, and ditches;

(8) The location, size, and species of trees and other vegetation (outside proposed building envelope) having a caliper (diameter) of 12 inches greater at four feet above grade;

(9) North arrow, scale, and the names and addresses of all persons listed as owners of the subject property on the most recently recorded deed; and

(10) Name and address of project designer, engineer, surveyor, and/or planner, if applicable.

B. Proposed Site Plan. The site plan shall contain all the following information:

(1) The proposed development site, including boundaries, dimensions, and gross area;

(2) Features identified on the existing site analysis maps that are proposed to remain on the site;

(3) Features identified on the existing site map, if any, which are proposed to be removed or modified by the development;

(4) The location and dimensions of all proposed public and private streets, drives, rights-of-way, and easements;

(5) The location and dimensions of all existing and proposed structures, utilities, pavement, and other improvements on the site. Setback dimensions for all existing and proposed buildings shall be provided on the site plan;

(6) The location and dimensions of entrances and exits to the site for vehicular, pedestrian, and bicycle access;

(7) The location and dimensions of all parking and vehicle circulation areas (show striping for parking stalls and wheel stops);

(8) Pedestrian and bicycle circulation areas, including sidewalks, internal pathways, pathway connections to adjacent properties, and any bicycle lanes or trails;

(9) Loading and service areas for waste disposal, loading, and delivery;

(10) Outdoor recreation spaces, common areas, plazas, outdoor seating, street furniture, and similar improvements;

(11) Location, type, and height of outdoor lighting;

(12) Location of mail boxes, if known;

(13) Name and address of project designer, if applicable;

(14) Locations of bus stops and other public or private transportation facilities; and

(15) Locations, sizes, and types of signs.

C. Architectural Drawings. Architectural drawings shall include, as applicable:

(1) Building elevations with dimensions;

(2) Building materials, colors, and type; and

(3) Name and contact information of the architect or designer.

D. Preliminary Grading Plan. A preliminary grading plan prepared by a registered engineer shall be required for development sites one-half acre or larger, or where otherwise required by the City. The preliminary grading plan shall show the location and extent to which grading will take place, indicating general changes to contour lines, slope ratios, slope stabilization proposals, and location and height of retaining walls, if proposed.

E. Landscape Plan. Where a landscape plan is required, it shall show the following, pursuant to Section 18.50.315:

(1) The location and height of existing and proposed fences, buffering, or screening materials;

(2) The location of existing and proposed terraces, retaining walls, decks, patios, shelters, and play areas;

(3) The location, size, and species of the existing and proposed plant materials (at time of planting);

(4) Existing and proposed building and pavement outlines;

(5) Specifications for soil at time of planting, irrigation if plantings are not drought tolerant (may be automatic or other approved method of irrigation), and anticipated planting schedule; and

(6) Other information as deemed appropriate by the City Planning Official. An arborist’s report may be required for sites with mature trees that are to be retained and protected.

F. Deed Restrictions. Copies of all existing and proposed restrictions or covenants, including those for roadway access control.

G. Narrative. Letter or narrative report documenting compliance with the applicable approval criteria contained in Section 18.20.230.

H. Traffic Impact Analysis. When required by Section 18.40.015.

I. Other Information Determined by the City Planning Official. The City may require studies or exhibits prepared by qualified professionals to address specific site features or project impacts (e.g., traffic, noise, environmental features, natural hazards, etc.), as necessary to determine a proposal’s conformance with this code. [Ord. 23-887 (Exh. A), 2023]

18.20.230 Approval criteria.

An application for site design review shall be approved if the proposal meets all of the following criteria. The approving authority, in approving the application, may impose reasonable conditions of approval, consistent with the applicable criteria.

1. The applicant’s submittal information, in accordance with Section 18.20.225, is adequate to determine compliance with applicable development standards, required public improvements based upon (but not necessarily limited to) the public facility and services impact study, and criteria;

2. The proposal includes required upgrades, if any, to existing development that does not comply with the applicable land use district standards, pursuant to Section 18.10.055, Nonconforming situations;

3. The proposal complies with all of the applicable zoning regulations, public facility standards, and development standards in Chapters 18.30, 18.40, and 18.50;

4. For nonresidential uses, the project site layout and improvements are designed to minimize potential impacts, such as light, glare, noise, odor, vibration, smoke, dust, or visual impact in a manner that gives appropriate consideration to the physical development fundamentals of the proposed use; and

5. The proposal meets all existing conditions of approval for the site or use, as required by prior land use decision(s), as applicable.

Note: Compliance with other City codes and requirements, though not applicable land use criteria, may be required prior to issuance of building permits. [Ord. 23-887 (Exh. A), 2023]

18.20.235 Assurances.

Public improvement required as part of a site design review approval shall be subject to the performance guarantee and warranty bond provisions of Section 18.40.120, as applicable. [Ord. 23-887 (Exh. A), 2023]

18.20.240 Compliance with conditions, permit expiration, and modifications.

Development shall not commence until the applicant has received all applicable land use and development approvals. Construction of public improvements shall not commence until the City has approved all required public improvement plans (e.g., utilities, streets, public land dedication, etc.). The City may require bonding or other assurances for improvements. Site design review approvals are subject to all the following standards and limitations:

1. Approval Period. Site design review approvals shall be effective for a period of four years from the date of approval.

2. Extension. The City Planning Official, upon written request by the applicant, may grant a written extension of the approval period not to exceed one year; provided, that:

A. No changes are made on the original approved plan;

B. The applicant can show intent of initiating construction on the site within the one-year extension period;

C. There have been no changes to the applicable code provisions on which the approval was based. If there have been changes to the applicable code provisions and the subject plan does not comply with those changes, then the extension shall not be granted; in this case, a new site design review shall be required; and

D. The applicant demonstrates that failure to obtain building permits and substantially begin construction within four years of site design approval was beyond the applicant’s control.

3. Modifications to Approved Plans and Developments. Modifications to approved plans are subject to City review and approval under Article IV of this chapter. [Ord. 23-887 (Exh. A), 2023]

Article III. Conditional Use Permits

18.20.310 Purpose.

There are certain uses which, due to the nature of their impacts on surrounding land uses and public facilities, require a case-by-case review and analysis. Conditional uses are identified in Chapter 18.30, Zoning Regulations. The purpose of this article is to provide procedures and standards for permitting conditional uses. [Ord. 23-887 (Exh. A), 2023]

18.20.315 Approvals process.

The Planning Commission using a Type III procedure, per Section 18.20.025, reviews conditional use applications. Modifications to conditional use permits are subject to Article IV of this chapter. [Ord. 23-887 (Exh. A), 2023]

18.20.320 Application submission requirements.

In addition to the submission requirements for a Type III review under Section 18.20.025, applications for conditional use permits shall include a description of existing conditions, a site plan, and information on any existing and any proposed restrictions or covenants. (For a more detailed description of each item, please refer to Section 18.20.225, Application submission requirements). An application for a conditional use permit shall provide proposed findings of fact and conclusions of law explaining how the applicable approval criteria in Section 18.20.325 are satisfied. [Ord. 23-887 (Exh. A), 2023]

18.20.325 Criteria, standards, and conditions of approval.

The Planning Commission shall approve, approve with conditions, or deny an application for a conditional use, including requests to enlarge or alter a conditional use, based on findings of fact with respect to all the criteria and standards in subsections (1) and (2) of this section.

1. Use Criteria.

A. The site size, dimensions, location, topography, and access are adequate for the needs of the proposed use, considering the proposed building mass, parking, traffic, noise, vibration, exhaust/emissions, light, glare, erosion, odor, dust, visibility, safety, and aesthetic considerations.

B. Site design review submittals demonstrate all applicable development standards of the code are satisfied.

C. The potential negative impacts of the proposed use, if any, on adjacent properties and on the public can be substantially mitigated through application of other code standards, or other reasonable conditions of approval.

D. In the alternative to the criterion in subsection (1)(C) of this section, the approving authority may conclude there is an overriding public interest and benefit to be derived from the proposed use in the proposed location that justifies the conditional use permit in spite of the potential for negative impacts that are not substantially mitigated. The approving authority shall still consider and impose reasonable conditions of approval intended to reduce the identified potential negative impacts.

E. All required public facilities, including water, sanitary sewer, and streets, have adequate capacity or are to be improved to serve the proposal, consistent with City standards.

F. A conditional use permit shall only be issued for uses or development designated as conditionally allowed uses in the applicable zoning district, and except where the code specifically allows for expansions or alterations of nonconforming use or development through conditional use permit. A conditional use permit shall not function as an alternative to a variance.

2. Conditions of Approval. The City may impose conditions that are found necessary to ensure that the use is compatible with other uses in the vicinity, and that the negative impact of the proposed use on the surrounding uses and public facilities is minimized (or reduced in the case of a conditional use) with an overriding public benefit. These conditions include, but are not limited to, one or more of the following:

A. Limiting the hours, days, place, and/or manner of operation;

B. Requiring site or architectural design features which minimize environmental impacts such as noise, vibration, exhaust/emissions, light, glare, erosion, odor, and/or dust;

C. Requiring larger setback areas, lot area, and/or lot depth or width;

D. Limiting the building or structure height, size, lot coverage, and/or location on the site;

E. Designating the size, number, location, and/or design of vehicle access points or parking and loading areas;

F. Requiring street right-of-way to be dedicated and street improvements made, or the installation of pathways or sidewalks, as applicable;

G. Requiring landscaping, screening, drainage, water quality facilities, and/or improvement of parking and loading areas;

H. Limiting the number, size, location, height, and/or lighting of signs;

I. Limiting or setting standards for the location, type, design, and/or intensity of outdoor lighting;

J. Requiring berms, screening, or landscaping and the establishment of standards for their installation and maintenance;

K. Requiring and designating the size, height, location, and/or materials for fences;

L. Requiring the protection and preservation of existing trees, soils, vegetation, watercourses, habitat areas, drainage areas, historic resources, cultural resources, and/or sensitive lands; and

M. Requiring improvements to water, sanitary sewer, or storm drainage systems, in conformance with City standards. [Ord. 23-887 (Exh. A), 2023]

Article IV. Modifications to Approved Plans and Conditions

18.20.410 Purpose.

The purpose of this article is to provide an efficient process for modifying land use decisions and approved development plans, in recognition of the cost and complexity of land development and the need to conserve City resources. [Ord. 23-887 (Exh. A), 2023]

18.20.415 Applicability.

This artricle applies when an applicant proposes to modify an approved application or condition of approval. [Ord. 23-887 (Exh. A), 2023]

18.20.420 Major modifications.

1. Major Modification. Major modifications shall be reviewed pursuant to the procedure applicable to the original application. Any one of the following changes constitutes a major modification:

A. A change in land use prior to occupancy of the site by the use originally contemplated for the site, from a less intensive use to a more intensive use, as evidenced by parking, paved area, an estimated increase in automobile or truck trips (peak and/or average daily trips), an increase in hours of operation, an increased demand for parking, additional paved area, or similar factors, where the increase is 20 percent or more of one of these factors;

B. An increase in floor area or lot coverage in a commercial or industrial development, or an increase in the number of dwelling units in a multifamily development, by 20 percent or more, or an increase in floor area or lot coverage in a public/community/institutional use development of 50 percent or more;

C. A change in the type and/or location of vehicle access points or approaches, driveways, or parking areas affecting off-site traffic when the roadway authority determines the change could cause a significant adverse impact on traffic operations or safety (i.e., requiring mitigation);

D. A reduction to screening, or a reduction to the area reserved for common open space or landscaping by 20 percent or more;

E. Change to a condition of approval, or a change similar to items in subsections (1)(A) through (1)(D) of this section, that could have a detrimental impact on adjoining properties. The City Planning Official shall have discretion in determining detrimental impacts triggering a major modification; or

F. Other changes similar to those in items in subsections (1)(A) through (1)(E) of this section, in scale, magnitude, or impact to adjacent properties, as determined by the City Planning Official.

2. Major Modification Applications – Approval Criteria. Requests for major modifications shall conform to all the following procedures and criteria:

A. The applicant shall submit an application form, filing fee, letter describing the modification, and site plan using the same plan format as in the original approval. The City may require other relevant information, as necessary, in evaluating the request;

B. The application shall be subject to the same approval criteria used for the initial project approval; except that a modification adding a conditional use to a project approved without a conditional use shall require findings in conformance with Article III of this chapter;

C. The scope of review shall be limited to the modification request. For example, a request to modify a commercial development’s parking lot shall require site design review only for the proposed parking lot and any changes to associated access, circulation, etc. Notice shall be provided in accordance with this chapter; and

D. The approving authority shall approve, deny, or approve with conditions an application for major modification based on written findings on the applicable code criteria (e.g., subdivision, site design review, conditional use, etc.). [Ord. 23-887 (Exh. A), 2023]

18.20.425 Minor modifications.

1. Minor Modification. The City Planning Official through a Type I or II procedure, depending on whether the proposal involves the exercise of discretion, shall review proposals for minor modifications. Minor modifications include changes to an approved plan or conditions of approval, and technical corrections to comply with codes and regulations, that fall below the thresholds in Section 18.20.420(1), as determined by the City Planning Official.

2. Minor Modification Applications – Approval Criteria.

A. An application for minor modification shall include an application form, filing fee, letter describing the modification, and site plan using the same plan format as in the original approval. The City Planning Official may require other relevant information, as necessary, in evaluating the request.

B. The City Planning Official shall approve, deny, or approve with conditions an application for minor modification based on findings of compliance or noncompliance with the applicable requirements of the development code and the conditions of approval of the original decision. [Ord. 23-887 (Exh. A), 2023]

Article V. Adjustments and Variances

18.20.510 Purpose.

This article provides standards and procedures for adjustments and variances, which are modifications to development standards that are not otherwise permitted elsewhere in this code. [Ord. 23-887 (Exh. A), 2023]

18.20.515 Intent.

Adjustments are a form of variances that are intended to provide relief from code standards in specific situations. Both procedures are intended to ensure that the resulting development is compatible with adjacent properties and is consistent with the intent of the code.

1. Adjustments. Adjustments provide relief from specific code provisions when a code provision has the unintended effect of preventing reasonable development in conformance with all other code requirements. Adjustments are allowed in limited situations pursuant to Section 18.20.520.

2. Variances. Variances provide greater flexibility to code standards than adjustments, where the physical characteristics of a site or its surroundings prevent reasonable development in compliance with a code standard. Variances are allowed pursuant to Section 18.20.525. [Ord. 23-887 (Exh. A), 2023]

18.20.520 Adjustments.

Adjustments are minor modifications to code standards that are intended to provide reasonable flexibility for planned land uses and development. Adjustments are subject to the following standards and procedures. Use permissibility, as provided in Chapter 18.30, shall not be adjusted.

1. Applicability. The City Planning Official, through a Type II procedure, may adjust the following standards:

A. Side and Rear Yard Setbacks. Up to a 15 percent reduction to minimum side and rear-yard setbacks. In addition, one side or one rear yard setback may be reduced to three feet for proposed structures less than 15 feet in height on lots that were lawfully created prior to January 1, 1995, with an existing single-family dwelling built (or manufactured dwelling placed) prior to January 1, 1995.

B. Lot Coverage. Up to a 15 percent increase to the maximum lot coverage.

C. Lot Dimensions. Up to a 15 percent decrease to a minimum lot dimension.

D. Lot Area. Up to a 15 percent decrease in minimum lot area.

E. Other Dimensional Standards. Up to a 10 percent increase or decrease in a quantitative (numerical) standard not listed above. This option is limited to standards in Chapter 18.50; it does not include building code requirements, engineering design standards, public safety standards, or standards implementing state or federal requirements, as determined by the City Planning Official.

2. Approval Criteria. The City may grant an adjustment only upon finding that all the following criteria are met. The burden is on the applicant to demonstrate compliance with the criteria.

A. The adjustment allows for a building plan that does not create a substantial conflict with adjacent uses when compared to development under the code without the adjustment;

B. The adjustment is appropriate to allow for normal interior building functions, such as mechanical equipment/utility closets, heating and ventilation systems, restrooms, stockrooms, shelving, and similar interior building functions;

C. Approval of the adjustment does not create (a) violation(s) of any other adopted ordinance or code standard, and does not cause an exogenous need for a variance;

D. An application for an adjustment is limited to one lawful pre-existing lot per application. Single tax lots with multiple underlying pre-existing subdivision lots shall be treated as a single lot for processing purposes under this section; however, the specific proposal may require conditions of approval that the pre-existing subdivision lots be consolidated by deed or property line adjustment prior to issuance of building permits;

E. Requests for more than one adjustment on the same lot shall be consolidated on one application and reviewed concurrently by the City;

F. Not more than two adjustments may be approved for one lot or parcel; and

G. All applicable building code requirements and engineering design standards shall be met. [Ord. 23-887 (Exh. A), 2023]

18.20.525 Variances.

1. Applicability. A variance is an adjustment that does not otherwise meet the criteria under Section 18.20.520, and is requested for a development standard. Variances cannot be taken to required procedures or any approval criteria.

2. Approval Criteria. The Planning Commission through a Type III procedure may approve a variance upon finding that it meets all of the following criteria:

A. The variance is necessary because the subject code provision does not account for special or unique physical circumstances of the subject site, existing development patterns, or adjacent land uses. A legal lot determination can function as evidence of a hardship for purposes of approving a variance;

B. The variance is the minimum appropriate to address the special or unique physical circumstances related to the subject site;

C. The need for the variance is not self-imposed by the applicant or property owner. (For example, the variance request does not arise as a result of a property line adjustment or land division approval previously granted to the applicant);

D. The variance does not conflict with other applicable City policies or other applicable regulations;

E. The variance will result in no foreseeable harm to adjacent property owners or the public; and

F. All applicable building code requirements and engineering design standards shall be met. [Ord. 23-887 (Exh. A), 2023]

18.20.530 Expiration.

Approvals granted under Sections 18.20.520 and 18.20.525 shall expire if not acted upon by the property owner within two years of the City approving the adjustment or the variance. Where the owner has applied for a building permit or final plat, has made site improvements consistent with an approved development plan (e.g., site design review or preliminary subdivision plan), or provides other evidence of working in good faith toward completing the project, the City Planning Official may extend an approval accordingly. [Ord. 23-887 (Exh. A), 2023]

Article VI. Planned Unit Developments

18.20.610 Purpose.

The purposes of this article are to:

1. Implement the Comprehensive Plan by providing a means for master planning development sites as an alternative to traditional subdivision development;

2. Encourage innovative planning that results in projects that benefit the community, for example, through greater efficiency in land use, improved protection of open spaces, transportation efficiency, and housing choices;

3. Encourage housing options for a range of household sizes, incomes, and lifestyles;

4. Promote an economic arrangement of land use, buildings, circulation systems, open space, and utilities;

5. Preserve to the greatest extent possible the existing landscape features and amenities that may not otherwise be protected through conventional development;

6. Encourage energy efficiency and improved air and water quality;

7. Implement public facility master plans; and

8. Provide flexibility in development standards, consistent with the above purposes. [Ord. 23-887 (Exh. A), 2023]

18.20.615 Applicability.

The planned unit development designation may be applied to any of the City’s zoning districts. It is an option available for all development and land use review applications for sites at least two net acres in size (two net acres being the fee acreage exclusive of adjacent rights-of-way). [Ord. 23-887 (Exh. A), 2023]

18.20.620 Review and approvals process.

1. Review Steps. There are three required steps to planned unit development approval. The first two steps may be completed individually or combined for concurrent review:

A. Application for planned unit development concept plan approval;

B. Application for detailed development plan approval, which may include a preliminary land division plan; and

C. Application(s) for final development plan (e.g., final plat and/or site design review for conditions compliance) approval.

2. Approval Process.

A. The planned unit development concept plan shall be reviewed pursuant to the Type III procedure in Section 18.20.025, the submission requirements in Section 18.20.630, and the approval criteria in Section 18.20.635.

B. The detailed development plan and preliminary land division plan shall be reviewed using the Type II procedure in Section 18.20.020 to ensure substantial compliance with the approved concept plan.

C. Site design review applications for approved planned developments shall be reviewed using a Type II procedure in Section 18.20.020 to ensure substantial compliance with the approved concept plan.

D. Steps in subsections (2)(A) through (2)(C) of this section may be combined in any manner, so long as the decision-making sequence follows the above order. Notification and hearings may also be combined. [Ord. 23-887 (Exh. A), 2023]

18.20.625 Modifications to development standards.

The standards of Chapters 18.30, 18.40, and 18.50 may be modified through the planned unit development process without the need for adjustments or variances under Sections 18.20.520 and 18.20.525. Applications shall identify and clearly explain the modifications to development standards proposed in the planned unit development. Modifications may be proposed as part of concept plan and detail plan submittals; modifications submitted with final plans are reviewed for compliance with the concept plan or detail plan approvals, but new modifications cannot be requested as part of final plan submittal and review. In evaluating this criterion, the approving authority shall consider whether the proposal, on balance, will result in superior quality development that provides greater community benefits than would otherwise occur under the base development code requirements. In evaluating community benefits, the approving authority shall apply the following criteria; the City may deny an application for planned unit development concept plan approval that does not meet all the following criteria:

1. Comprehensive Plan. The modification does not conflict with the Comprehensive Plan. A planned unit development may exceed the maximum residential density (minimum lot size) permitted by the underlying zone; provided, that the overall density of the project (average of total dwelling units per acre) is not greater than 120 percent of the density permitted by the underlying zone.

2. Superior Quality Development Demonstration. The proposed modifications are reasonably expected to result in an overall development that will be superior in quality to development under the base regulations by demonstrating one or more of the following:

A. Greater variety of housing types or lot sizes than would be achieved under the base development code standards;

B. More open space or more usable open space than would result from application of the base development code standards;

C. Greater protection of natural features than would result from application of the base development code standards;

D. Avoidance of natural hazards (e.g., geological hazards, river resources, or flood hazards);

E. Improved transportation connectivity or facilities, such as the provision of pathways and/or other transportation facilities, that would not otherwise be provided pursuant to base development code requirements; or

F. Integrated mix of housing and employment that will have complementary design elements throughout.

3. Engineering Design Standards. Planned unit developments shall not be a basis to modify the City’s engineering design standards for public improvements, such as street structural sections, acceptable water line materials, etc. This section does not prohibit code modifications that request alternative streetscape elements like planter strips, lane widths, sidewalks, curbs, pedestrian bulb-outs, special street lighting and similar streetscape elements. [Ord. 23-887 (Exh. A), 2023]

18.20.630 Concept plan submission.

1. General Submission Requirements. An application for a concept development plan shall follow the submission requirements for a Type III review under Section 18.20.025, and shall include all the following:

A. Statement of planning objectives to be achieved by the planned unit development through the particular approach proposed by the applicant. This statement should include a description of the character of the proposed development and the rationale behind the assumptions and choices made by the applicant;

B. Development schedule indicating the approximate dates when construction of the project and its various phases, if any, including public facilities, are expected to be initiated and completed;

C. Proposed findings of fact and conclusions of law explaining how the proposed PUD concept plan complies with the relevant criteria in Section 18.20.635;

D. Maintenance plan for any common areas or lands not dedicated to a public agency or owned in fee simple; and

E. Additional reports or studies prepared by qualified professionals, as required by the City Manager, to determine potential project impacts and mitigation, if any, related to transportation; public facilities; geologic or other hazards; architecture; noise, light, solar access, air quality, or similar concerns; and natural features.

2. Additional Information. In addition to the general information described in subsection (1) of this section, the concept plan, data, and narrative shall include all the following exhibits and information:

A. Existing conditions map, as defined in Section 18.20.225, Application submission requirements;

B. Conceptual plan (e.g., general land use, building envelopes, circulation, open space, utility connections, and other information necessary to convey the concept plan);

C. Grading concept (for hillside or sloping properties, or where extensive grading is anticipated);

D. Landscape concept (e.g., shows retention of existing vegetation and general planting areas);

E. Architectural concept (e.g., plans illustrate architectural styles, building heights, and general materials);

F. Sign concept plan (e.g., locations, general size, style, and materials of signs), as applicable; and

G. Copy of all existing covenants and restrictions, and a general description of proposed restrictions or covenants (e.g., for common areas, access, parking, etc.). [Ord. 23-887 (Exh. A), 2023]

18.20.635 Concept plan approval criteria.

The City, in approving or approving with conditions a concept plan, shall make findings that all the following criteria are met:

1. The proposal conforms to any Comprehensive Plan intended by the language and context to function as approval criteria for the proposed PUD concept plan;

2. If a tentative plan for land division is concurrently proposed, and except as may be modified under Section 18.20.625, all the requirements for land divisions, under Chapter 18.20, Article I, Land Divisions and Property Line Adjustments, are met;

3. Except as may be modified under Section 18.20.625, all other applicable requirements of Chapters 18.30, 18.40, and 18.50 are met;

4. Concept plans for PUDs that are between five acres and 12 acres shall contain a minimum of 10 percent open space, and PUDs larger than 12 acres shall contain a minimum of 15 percent open space, which may be public, private, or a combination of public and private open space. The identified open space areas shall relate to the rest of the PUD in a manner that is appropriate for the intended use and function of the open space area; active recreation components shall be convenient to access for intended users of the open space area. Plans may provide space for both active and passive recreational uses, and may include, but are not limited to, neighborhood parks, pathways/trails, natural areas, plazas, and play fields. Open space areas shall be shown on the final plan and recorded with the final plat or separate instrument; the open space shall be conveyed in accordance with one of the following methods:

A. By dedication to the City as publicly owned and maintained open space. Open space proposed for dedication to the City must be acceptable to the Planning Commission with regard to the size, shape, location, improvement, environmental condition (i.e., the applicant may be required to provide an environmental assessment), and approved by City Council based on budgetary, maintenance, and liability considerations; or

B. By leasing or conveying title (including beneficial ownership) to a corporation, homeowners’ association, or other legal entity. The terms of such lease or other instrument of conveyance must include provisions for maintenance and property tax payment acceptable to the City. The City, through conditions of approval, may also require public access be provided, where the open space is deemed necessary, based on impacts of the development and to meet public recreational needs pursuant to the Comprehensive Plan.

5. Modifications to Standards. Modifications to code standards must conform to the criteria in Section 18.20.625. [Ord. 23-887 (Exh. A), 2023]

18.20.640 Concept plan and expiration and termination.

1. Filing. Upon approval of a concept plan, the approved plan, including any conditions of approval, shall be binding on future uses and development of the property, except where an approval expires or if an applicant obtains approval to terminate the PUD.

2. Expiration. Except as provided by subsection (3) of this section, a concept plan shall become void four years after the date of approval if the applicant, or successor, has not filed with the City an application for detailed development plan and final plat (if land division was approved concurrently with the PUD concept plan) approval in conformance with Sections 18.20.645 and 18.20.650 for at least the first phase. After the detailed plan and final plan for at least the first phase has been approved, final plat has been obtained (if land division was approved with the concept plan) and all required public improvements for the first phase have been constructed, then the PUD plan shall be considered initiated and nonexpiring.

3. Extension. The City may grant extensions of the concept plan approval period, not to exceed one year per extension; provided, that the extension request is made before expiration of the planned unit development approval, the applicant can show intent of applying for detailed development plan review within the one-year extension period, and there have been no substantive changes to the applicable Comprehensive Plan policies and ordinance provisions on which the approval was based.

4. Termination. Termination of the PUD can be requested according to a Type III procedure. The request for termination shall be made by at least 50 percent of the ownership of at least 50 percent of the vacant portions of the PUD, subject to the following criteria:

A. Less than 20 percent of the land area of the PUD has been issued building permits for vertical construction, unless at least 70 percent of the owners of the portions of the PUD with building permits for vertical construction consent in writing to the termination of the PUD.

B. The approving authority concludes that vacant land within the PUD can feasibly be developed in a manner consistent with base standards of the applicable zoning districts within the PUD. [Ord. 23-887 (Exh. A), 2023]

18.20.645 Detailed development plan submission.

Detailed development plan submittal requirements are determined based on the conditions of approval for the concept plan. At a minimum, the detailed development plan submittal shall meet the minimum requirements for final plat submission under Section 18.20.155 (if the PUD included land division) and shall contain information demonstrating compliance with the concept plan. The detailed development plan and preliminary land division plan shall be reviewed using the Type II procedure in Section 18.20.020 to ensure substantial conformance to the approved concept plan. Where the proposal is for a multifamily, commercial, or industrial development, site design review is required, pursuant to Article II of this chapter. Site design review for detailed development plans shall be processed through the Type II procedure. [Ord. 23-887 (Exh. A), 2023]

18.20.650 Detailed development plan criteria.

Approval of the detailed development plan shall be based upon a finding that the final plan substantially conforms to the concept plan, including any concept plan conditions of approval. The detailed development plan shall comply with applicable code standards except where modifications were approved as part of the concept plan review or new proposed modifications are shown to comply with the criteria for modifications at Section 18.20.625.

Minor changes to the approved concept plan may be approved with the detailed plan where the City Planning Official finds that the modification is necessary to correct an error or to address changes in circumstances beyond the applicant’s control that have occurred since the date of project approval or where changes reflect a logical detailed plan refinement to the original concept plan approval.

Other changes must be reviewed as major modifications under Section 18.20.420. [Ord. 23-887 (Exh. A), 2023]

18.20.655 Type I final plan reviews.

Where the City has previously approved PUD concept plan and detailed development plan, final plan reviews for the same project will be processed through a Type I review. The Type I review will verify the final development plans are consistent with the detailed development plan for the applicable portions of the project and that any conditions of approval required prior to final plan review have been satisfied. [Ord. 23-887 (Exh. A), 2023]

Article VII. Amendments to the Zoning Map or Land Use Regulations or the Comprehensive Plan

18.20.700 Amendments to the Zoning Map or land use regulations or the Comprehensive Plan.

This article sets forth the submittal requirements and criteria for Zoning Map amendments, changes to the City’s land use regulations or amendments to the Comprehensive Plan. [Ord. 23-887 (Exh. A), 2023]

18.20.710 Quasi-judicial Zoning Map amendments.

1. General Submission Requirements for Type III Zoning Map Amendments (Zone Change).

A. Information required for Type III review, as applicable (See Section 18.20.025).

B. A public facilities and services impact study is required unless waived in writing by the Planning Official. The impact study shall quantify and assess the effect of the development on off-site public facilities and services and shall explain how the site can feasibly be connected to the City’s infrastructure network. The City Public Works Department shall advise as to the scope of the study and so will ODOT for any proposals that take access from or have the potential to significantly impact a state highway. Potential impacts shall be based upon assumptions of development intensity typically expected to result from the proposed zoning districts when compared to the existing zoning on the site. The study shall address, at a minimum, the transportation system, including required improvements for vehicles and pedestrians; the drainage system; the parks system; water system; and sewer system. For each system and type of impact, the study shall propose improvements necessary to meet City requirements.

C. Proposed findings of fact and conclusions of law demonstrating how all the applicable criteria for quasi-judicial Zoning Map amendment are satisfied.

2. Zoning Map Amendment Site Information. In addition to the general submission requirements, the applicant shall provide the following information, as deemed applicable by the City Planning Official. The City Planning Official may request any information that he or she needs to review the proposal and prepare a complete staff report to the approving authority.

A. Site Analysis Map. The site analysis map shall contain all the following information, as the City Planning Official deems applicable:

(1) The applicant’s entire property and the surrounding property to a distance sufficient to determine the location of the property in the City, and the relationship between the proposed development site and adjacent property and development. The property boundaries, dimensions, and gross area shall be identified;

(2) A series of land use maps with north arrow, scale, and legend. One map shall depict the existing Comprehensive Plan map designation for the property and shall also depict any Comprehensive Plan map overlays that apply to the property. Another map shall depict the existing Zoning Map designation and shall also depict any Zoning Map overlays that apply to the property. Another map shall depict proposed zoning for the property;

(3) Topographic contour lines at five-foot intervals for slopes, except where the Public Works Director determines that larger intervals will be adequate for steeper slopes;

(4) The location and width of all public and private streets, drives, sidewalks, pathways, rights-of-way, and easements on the site and adjoining the site;

(5) Site features, including existing structures, pavement, large rock outcroppings, areas having unique views, and drainage ways, canals, and ditches;

(6) Names and addresses of all persons listed as owners of the subject property on the most recently recorded deed.

3. Criteria. The Planning Commission shall approve a quasi-judicial zone change if it finds that the zone change complies with subsections (3)(A) through (3)(C) of this section:

A. The proposed zone is consistent with the transportation system plan (TSP) and the Comprehensive Plan map designation.

B. For proposed zone changes to SFR-7, the minimum contiguous area of SFR-7 zoning shall be three or more gross acres, and the average lot size of single-family residential parcels developed with dwellings within 250 feet of the proposed zoning district shall be no greater than 7,000 square feet.

C. The proposed zone can feasibly and will be served with urban services and facilities, as described below, to adequately serve the subject property with the permitted uses allowed under the proposed zoning, except as provided in subsection (3)(C)(3) of this section. The minimum standards for transportation facilities and other public facilities are set forth in the applicable facility master plans.

(1) Storm drainage, sanitary sewer, and water facilities must already be adequate in condition, capacity, and location to serve the property or they must be able to be extended or otherwise improved to adequately serve the property at the time of issuance of a building permit for vertical construction. Off-site facilities can be shown to be adequate if the site was assumed to be developed at an intensity typical for the proposed zone in the applicable facility master plan and if the master plan does not identify the need for off-site improvements necessary to serve the site under the proposed zoning.

(2) Adequate streets and street capacity must be provided in accordance with OAR 660-012-0060, commonly referred to as the Transportation Planning Rule (TPR). Any request for approval under subsection (9) of the TPR may be allowed but the Planning Commission is under no obligation to approve a zone change seeking to rely on subsection (9); the Planning Commission may request the applicant provide additional information concerning safety impacts, congestion impacts and public benefits for any zone change request pursuant to subsection (9). For planned improvements that may otherwise be relied upon for transportation facility adequacy under the TPR, Public Works Department may still require that planned improvements be constructed prior to issuance of building permits for reasons of public safety and, when possible, shall base findings for the required improvements on the safety review required by the public facilities and services impact study.

(3) The Planning Commission may mitigate potential impacts on public facilities and services through the imposition of special development conditions, stipulations, or restrictions attached to the zone change. Special development conditions, stipulations, or restrictions shall be established by deed restriction or covenant and must be recorded at the Harney County Recorder’s office with proof of recordation returned to the planning department. Such special development conditions include but are not limited to:

(a) Development amount thresholds that can be undertaken before specific infrastructure components are constructed.

(b) Public facilities and services impact study refinements that will identify when specific infrastructure components, identified in the public facilities and services impact study for the entire zone change area, will be needed to serve certain zone change areas or development amount thresholds.

(d) For transportation facilities, other mitigation measures allowed by the Transportation Planning Rule. [Ord. 23-887 (Exh. A), 2023]

18.20.715 Quasi-judicial Comprehensive Plan map amendments.

1. General Submission Requirements for Type IV Quasi-judicial Comprehensive Plan Amendments.

A. Information required for Type IV review, as applicable (See Section 18.20.030).

B. A public facilities and services impact study is required unless waived in writing by the Planning Official. The impact study shall quantify and assess the effect of the development on off-site public facilities and services and shall explain how the site can feasibly be connected to the City’s infrastructure network. The City Public Works Department shall advise as to the scope of the study and so will ODOT for any proposals that take access from or have the potential to significantly impact a state highway. Potential impacts shall be based upon assumptions of development intensity typically expected to result from the proposed Comprehensive Plan map designations when compared to the existing Comprehensive Plan map designations on the site. The study shall address, at a minimum, the transportation system, including required improvements for vehicles and pedestrians; the drainage system; the parks system; water system; and sewer system. For each system and type of impact, the study shall propose improvements necessary to meet City requirements.

C. Proposed findings of fact and conclusions of law demonstrating how all the applicable criteria for quasi-judicial Comprehensive Plan amendment are satisfied.

2. Comprehensive Plan Amendment Site Information. In addition to the general submission requirements for an applicant for Comprehensive Plan amendment, the applicant shall provide the following information, as deemed applicable by the City Planning Official. The City Planning Official may request any information that he or she needs to review the proposal and prepare a complete staff report.

A. Site Analysis Map. The site analysis map shall contain all the following information, as the City Planning Official deems applicable:

(3) Topographic contour lines at five-foot intervals for slopes, except where the Public Works Director determines that larger intervals will be adequate for steeper slopes;

(4) The location and width of all public and private streets, drives, sidewalks, pathways, rights-of-way, and easements on the site and adjoining the site;

(5) Site features, including existing structures, pavement, large rock outcroppings, areas having unique views, and drainage ways, canals, and ditches;

(6) Names and addresses of all persons listed as owners of the subject property on the most recently recorded deed.

3. Criteria. The City Council may approve a quasi-judicial Comprehensive Plan amendment if it finds that the amendment satisfies all the criteria in subsections (3)(A) through (3)(D) of this section:

A. The proposed changes are consistent with the balance of the Comprehensive Plan.

B. The proposed amendment will significantly advance one or more goals, policies or objectives that are established and set forth in the Comprehensive Plan; map amendments shall include an analysis that demonstrates the proposed map designation is locationally appropriate when considering impacts and interactions with the planned land uses around the area where the map amendment is proposed.

C. Public facilities are adequate or can be made adequate to support the proposed Comprehensive Plan amendment or public facilities planning can feasibly and will be completed to serve the Comprehensive Plan amendment.

D. The proposed amendment is consistent with Oregon state law, the Oregon Statewide Planning Goals and all applicable Oregon Administrative Rules. [Ord. 23-887 (Exh. A), 2023]

18.20.720 Legislative amendment criteria.

The City Council may approve legislative amendments to the Comprehensive Plan or land use regulations. Amendments will address the criteria in subsections (1) through (5) of this section.

1. Appropriateness of the Type V planning process that was undertaken for the planning project in terms of scale, scope, and content.

2. Consistency with the balance of the City’s Comprehensive Plan and land use regulations.

3. Advancement of Council goals, objectives, or policies, and/or necessity to comply with Oregon state law, the Statewide Planning Goals, or Oregon Administrative Rules.

4. Public facility planning implications of the proposed amendments.

5. Consistency with Oregon state law, the Oregon Statewide Planning Goals and all applicable Oregon Administrative Rules. [Ord. 23-887 (Exh. A), 2023]

18.20.725 Record of amendments.

The City Planning Official shall maintain a record of amendments to the Comprehensive Plan map and Zoning Map, as well as amendments to the text of the Comprehensive Plan and this development code. Said record shall be kept in a format convenient for public reference and use, and in the case of Comprehensive Plan map and Zoning Map amendments, the map shall be made a part of this code. [Ord. 23-887 (Exh. A), 2023]