Chapter 18.15
REVIEW PROCEDURES
Sections:
18.15.020 Legislative enactments not restricted.
18.15.050 Interested officers or employees.
18.15.060 Hearing body – Conflicts of interest.
18.15.080 Record of proceedings.
18.15.010 Application review.
Applications for site development permits and land divisions shall be reviewed as follows. A zone change shall be reviewed in accordance with the procedures set forth in CMC 18.125.010.
(A) Type I – Administrative Review. A Type I application shall be processed without need for a public hearing or notification of other property owners.
(B) Type II – Administrative Review. A Type II application shall be processed without need for a public hearing, except as determined appropriate by the community development director.
(1) Upon receipt of an application for a Type II action, public notice of the impending application shall be given pursuant to the provisions of CMC 18.15.030. Notice shall be given for general information purposes to provide affected parties the opportunity to review submitted plans and make their comments to the community development director orally or in writing. The community development director shall not hold a public hearing but may allow affected parties to attend meetings of the city for informational purposes.
(2) If the community development director contemplates that persons other than the applicant can be expected to question the application compliance with the comprehensive plan and development standards, the community development director may initiate a public hearing before the planning commission pursuant to subsection (C) of this section, or the applicant may request that the application for a Type II decision go directly to the planning commission, in which case the notice provision shall follow that for a Type III action as discussed in CMC 18.15.030.
(3) Within 10 days of the final response date, set forth in the notice, the community development director shall review comments received and make a finding for each of any points in dispute and make a final decision. The final decision and supporting findings shall be forwarded to the applicant and affected parties who submitted comments. The notice of decision shall indicate the date of final action, conditions attached, if any, and the right of appeal pursuant to CMC 18.15.090.
(4) A Type II decision of the community development director may be appealed by the applicant, any person who is adversely affected or aggrieved or anyone who is entitled to notice under CMC 18.15.030(A).
(C) Type III – Commission Review. A Type III request, as set forth in CMC 18.10.070(B), shall be processed with notice and a public hearing pursuant to CMC 18.15.040, as follows:
(1) All Type III requests shall require a preapplication meeting between the applicant and the design review team. The purpose of a preapplication meeting is to obtain a preliminary understanding of the proposed project and to collectively discuss considerations related to planning and land use; building; fire, life, and safety; and public works standards. The community development director shall make available a preapplication meeting request form to be completed and submitted by the applicant to the community development department. Following receipt of the preapplication meeting request form, CDD staff shall schedule a preapplication meeting with the applicant at the earliest available regularly scheduled pre-application meeting date.
(2) Prior to submittal of a Type III request which requires review by the planning commission, and for the application to be complete, the applicant shall provide an opportunity to meet with neighboring property owners, residents and businesses by conducting a neighborhood review meeting.
(3) Once a complete application is accepted, the community development director shall schedule a public hearing before the planning commission at their next regularly scheduled meeting where legally sufficient notice can be provided to the public prior to the hearing. Notice shall be provided pursuant to CMC 18.15.030.
(4) The community development director shall prepare a staff report, including conclusionary findings. Said report shall be forwarded to the commission and made available to interested parties at least seven days prior to the date of public hearing. At the public hearing, the staff, any applicant, and interested persons may present information relevant to the policies, criteria, and standards pertinent to the proposal, giving reasons why the application should or should not be approved or proposing modifications or conditions and the reasons the person believes they are necessary for approval. The hearing body shall make a finding for each of the applicable policies, criteria and standards. The decision, including findings, of the hearing body shall be written and adopted, setting forth all conditions of approval or basis for denial and relevant time periods for compliance with said conditions.
(5) The community development director shall provide notice of final decision to the applicant and interested parties. The notice shall indicate the date the action is to become effective, conditions attached, if any, and the right of appeal pursuant to CMC 18.15.090. The notice shall invite persons to submit information within 10 days relevant to the standards pertinent to the proposal and giving reasons why the application should or should not be approved or proposing conditions the person believes are necessary for approval according to the standards. The notice shall also advise the person of the right to appeal the decision on the proposed development if the person’s concerns are not resolved. If the application is approved and no appeal filed within the time period allowed, the community development director shall issue a development permit consistent with the standards and conditions of approval.
(6) A decision of the commission may be appealed by the applicant or affected party pursuant to CMC 18.15.090.
(D) Council Review.
(1) When a decision or approval of the council is required, the community development director shall schedule a public hearing pursuant to CMC 18.15.040. Said hearing shall be scheduled within 60 days of the date of appeal. At the public hearing the staff shall review the report of the planning commission and provide other pertinent information, and interested persons shall be given the opportunity to present testimony and information relevant to the proposal and make final arguments why the matter shall not be approved and, if approved, the nature of the provisions to be contained in approving action.
(2) To the extent that a finding of fact is required, the council shall make a finding for each of the criteria applicable and in doing so may sustain or reverse a finding of the planning commission. The council may delete, add, or modify any of the provisions pertaining to the proposal or attach certain development or use conditions beyond those warranted for compliance with standards in granting an approval if the council determines the conditions are appropriate to fulfill the criteria for approval.
(3) To the extent that a policy is to be established or revised, the council shall make its decision after information from the hearing has been received. The decision shall become effective by passage of an ordinance, resolution, or order. [Code 2000 § 11.10.31; Ord. 841 Exhs. 1, 2, 2003; Ord. 2016-011 § 1 (Exh. A), 2016; Ord. 2017-04 § 1 (Exh. A), 2017; Ord. 2020-05 § 1 (Exh. A), 2020; Ord. 2024-03 § 1 (Exh. A), 2024.]
18.15.020 Legislative enactments not restricted.
Nothing in CMC 18.15.010(A) through (D) shall limit the authority of the council to make changes in district designations or requirements as part of some more extensive revision of the comprehensive plan, the implementing ordinance or development standards, or relieve a use or development from compliance with other applicable laws. [Code 2000 § 11.10.32.]
18.15.030 Notice.
(A) Administrative Review. Notice of a Type II administrative review without a hearing shall:
(1) Provide a 20-day period for submitting written comments prior to a final decision;
(2) Explain the nature of the application and the proposed use or uses which could be authorized;
(3) Set forth the street address or other easily understood geographical reference to the subject property;
(4) Include the name of a local government representative to contact and the telephone number where additional information may be obtained;
(5) State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;
(6) State that any person who is adversely affected or aggrieved or who is entitled to written notice under this section may appeal the decision by filing a written appeal in the manner as provided in CMC 18.15.090;
(7) State that the decision will not become final until the period for filing an appeal has expired;
(8) State that a person who is mailed written notice of the decision cannot appeal the decision directly to the land use board of appeals under ORS 197.830.
Notice under this section shall be provided to the applicant and to the owners of record of property on the most recent property tax assessment roll where such property is located within 250 feet of the property that is the subject of the notice.
(B) Quasi-Judicial Evidentiary Hearing. Notice of a Type III decision before the planning commission or an appeal to the planning commission from a Type I or II decision shall:
(1) Comply with subsections (A)(2) through (5) of this section;
(2) State the date, time and location of the hearing;
(3) List the applicable criteria from this title and the plan that apply to the application at issue;
(4) State that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the decision maker an opportunity to respond to the issue precludes an appeal of the decision based on that issue;
(5) State that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and will be provided at reasonable cost; and
(6) Include a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings.
Notice under this section shall be provided to the applicant and the owners of record of property on the most recent property tax assessment roll where such property is located within 250 feet of the property that is the subject of the notice at least 20 days prior to the date of the hearing.
(C) Appeal to City Council. Notice of a hearing on appeal to the city council pursuant to CMC 18.15.090(D) and (E) shall be provided in the following manner:
(1) For an on the record appeal, notice shall state the issues raised in the appeal and comply with subsections (B)(1) through (6) of this section. The notice shall state that the appeal will be limited to the issues raised in the appeal and to the evidence contained in the record of the planning commission.
(2) For a de novo hearing, state the issues raised in the appeal and comply with subsections
(B)(1) through (6) of this section. The notice shall state whether the city council will permit a new evidentiary hearing or limit new evidence to the issues raised in the appeal.
(D) Legislative Hearings. A legislative hearing before the planning commission or city council shall be provided in the following manner:
(1) Notice shall be published in a newspaper of general circulation within the city at least 20 days prior to the initial hearing before the planning commission and city council. If the decision will “rezone” property as that term is defined in ORS 227.186, notice will also be provided to certain property owners in accordance with ORS 227.186.
(2) Notice shall be provided to all affected agencies and organizations recognized in the comprehensive plan and any person or entity requesting notice.
(3) Notice shall include:
(a) The time, date and location of the hearing.
(b) A summary of the proposed amendments.
(c) A statement that a copy of the proposed amendments are available for review or to purchase a copy. [Code 2000 § 11.10.33; Ord. 841 Exh. 1, 2003; Ord. 2020-05 § 1 (Exh. A), 2020.]
18.15.040 Hearing procedures.
(A) Public hearings shall be conducted in accordance with procedures for evidentiary hearings set forth in CMC 2.40.020, Government and Administration, or as otherwise amended by city council action.
(B) Decision. Following the hearing procedure, the hearing body shall approve, conditionally approve, or deny the application, or, if the hearing is in the nature of an appeal, affirm, reverse, or remand the decision that is on appeal. A decision will be made in a timely manner and within any deadlines imposed by state or federal law.
(C) Findings and Order. The hearing body shall prepare findings of fact and a final order which shall include:
(1) A statement of the applicable criteria against which the proposal was tested, and of the hearing body’s interpretation of what would be required to achieve compliance with the criteria and standards.
(2) A statement of the facts which the hearing body found establishing compliance or noncompliance with each applicable criteria and assurance of compliance with applicable standards.
(3) The reasons for a conclusion to approve or deny.
(4) The decision to deny or approve the proposed change with or without conditions. [Code 2000 § 11.10.34; Ord. 2020-05 § 1 (Exh. A), 2020.]
18.15.050 Interested officers or employees.
No officer or employee of the city who has a financial or other private interest in a proposal shall participate in discussion with or give an official opinion to the hearing body on the proposal without first declaring for the record the nature and extent of such interest. [Code 2000 § 11.10.35.]
18.15.060 Hearing body – Conflicts of interest.
(A) A member of the hearing body shall disclose any actual or potential conflict of interest before participating in any hearing body proceeding or action on a planning matter involving action on any particular parcel of real estate. No member shall participate as a member of the hearing body if he has an actual conflict of interest. A member of the hearing body may participate as a member of the public at large in cases where he has an actual conflict of interest.
(B) An actual conflict of interest arises when any of the following persons have direct or substantial financial interest in the particular parcel of real estate or in property immediately adjacent to that real estate:
(1) The member or his spouse;
(2) A brother, sister, child, parent, father-in-law, or mother-in-law of the member;
(3) Any business associate of the member within the previous two years, a prospective partner, an employer or prospective employer.
(C) If a member of the hearing body shows evidence of or declares a potential conflict of interest, members of the public or other members of the hearing body may challenge his participation in hearing body proceedings on the particular issue involved. Following such a challenge, the member of the hearing body may either withdraw from participation or explain the invalidity of the challenge. In cases of potential conflict, the hearing body member himself will decide on his final participation.
(D) A potential conflict of interest arises when the member has an indirect financial interest in the particular parcel of real estate or in property immediately adjacent to that real estate or exhibits bias toward the real estate, its owners, or its tenants.
(E) Disqualification for reasons other than the member’s own judgment may be ordered by a majority of the members of a hearing body present and voting. The member who is the subject of the motion for disqualification may not vote on the motion.
(F) Rights of Disqualified Member of the Hearing Body.
(1) An abstaining or disqualified member of the hearing body shall be counted for purposes of forming a quorum. A member who represents personal interest at a hearing may do so only by abstaining from voting on the proposal, physically joining the audience and vacating the seat on the hearing body, and making full disclosure of his or her status and position at the time of addressing the hearing body.
(2) If a majority of the hearing body abstains or is disqualified, all members present, after stating their reasons for abstention or disqualification, shall by so doing be requalified and proceed to resolve the issues.
(3) Except for appeal hearings conducted by the council, a member present during the presentation of evidence in a hearing may not participate in the deliberations or final decision regarding the matter of the hearing unless the member has reviewed the evidence received. [Code 2000 § 11.10.36; Ord. 2019-03 § 1.]
18.15.070 Ex parte contacts.
The general public has a right to have hearing body members free from prehearing or ex parte contacts on matters heard by them. It is recognized that a countervailing public right is free access to public officials on any matter. Therefore, hearing body members shall reveal any significant prehearing or ex parte contacts with regard to any matter; the member shall so state and shall participate or abstain in accordance with CMC 18.15.060. [Code 2000 § 11.10.37.]
18.15.080 Record of proceedings.
City staff shall be present at each hearing and shall cause the proceedings to be recorded electronically, by computer or in writing:
(A) Testimony shall be transcribed if required for judicial review or if ordered by the hearing body.
(B) The hearing body shall, where practicable, retain as part of the hearing record each item of physical or documentary evidence presented and shall have the items marked to show the identity of the person offering the same and whether presented on behalf of a proponent or opponent. Exhibits received into evidence shall be retained in the hearing file until after the applicable appeal period has expired, at which time the exhibits may be released to the person identified thereon, or otherwise disposed of.
(C) Included in the record shall be a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision, and explains the justification for the decision based on the criteria, standards, and facts set forth.
(D) A person shall have access to the record of the proceedings at reasonable times, places, and circumstances. A person shall be entitled to make copies of the record at the person’s own expense. [Code 2000 § 11.10.38.]
18.15.090 Appeal procedures.
(A) Reviewing Body.
(1) Type I and II Decisions. An appeal of a decision by the community development director on issuance of a development permit may be appealed to the planning commission.
(2) Type III Decision. A decision of the planning commission may be appealed to the council.
(B) Timeliness of Appeal.
(1) An appeal must be received by the city within 10 days of the date the notice of decision is mailed.
(2) Failure to receive the appeal within 10 days is jurisdictional.
(3) The day the notice of decisions was mailed shall not be included for purposes of determining the expiration of the appeal period.
(4) If the 10-day appeal period ends on a weekend or a holiday, the appeal period closes on the next working day.
(C) Contents of an Appeal. The appeal shall set forth:
(1) The name of the person or entity appealing the decision.
(2) The decision being appealed.
(3) A statement of the issue(s) being appealed with sufficient specificity to allow the city and any person an opportunity to respond.
(D) Hearing on Appeal.
(1) Planning Commission. An appeal to the planning commission shall be de novo.
(2) City Council. An appeal to the council shall be on the record unless otherwise approved by the city council under subsection (E) of this section. The record shall include:
(a) A staff report.
(b) All written documents or other evidence submitted to the city in the proceeding before the planning commission and, if applicable, the proceeding before the community development director.
(c) The transcript of the hearing before the planning commission.
(d) Any notices provided by the city.
(E) Petition for a De Novo Hearing before City Council. The applicant may petition the city council for a de novo hearing. The city will not accept a petition unless the applicant provides a written extension of the 120-day period under state law for a period of 30 days. The city council shall take final action on the request within 30 days. The decision to approve or deny this request shall be based on the following factors:
(1) Prejudice to the parties.
(2) Convenience or availability of evidence at the time of the initial hearing.
(3) Surprise to opposing parties.
(4) The competency, relevancy, and materiality of the proposed testimony or other evidence.
The council may allow a new evidentiary hearing or limit new evidence to the issues raised in the appeal. The request shall be decided at a public meeting without hearing or comment. Any comments on the city council’s decision on whether to accept additional evidence may be presented at the time of the appeal hearing.
(F) Effective Date of Decisions. A decision of the community development director or planning commission shall become effective 11 days after the date of the decision unless an appeal is received by the city in accordance with subsection (A) of this section. [Ord. 810, 2000; Code 2000 § 11.10.39; Ord. 841 Exhs. 1, 2, 2003; Ord. 2024-03 § 1 (Exh. A), 2024.]
18.15.100 Time extensions.
Prior to the expiration date of a land use approval, the applicant and property owner may request an extension of time.
(A) Land Use Approval Extension Time Limit.
(1) The community development director may grant the two one-year extensions if the request complies with the land use approval extension criteria and the original granting authority may grant one additional subsequent one-year extension. Temporary use permit extensions may be granted by the community development director as a Type I permit.
(2) No more than three extensions may be granted. No variances may be granted from this provision.
(3) Following the second one-year extension by the community development director, the original granting authority may grant one additional subsequent one-year extension. Temporary use permit extensions may be granted by the community development director as a Type I permit.
(4) This section shall apply to all extensions requested after the date of enactment regardless of the date of the original permit final decision. If a land use approval has been granted extensions prior to adoption of the ordinance codified in this section, subsequent extension requests shall be reviewed by the granting authority. Three total extensions may be granted.
(B) Land Use Approval Extension Criteria. The granting authority may grant an extension of a land use approval upon written findings that the request complies with the following:
(1) The applicant has made a written request for an extension of the land use approval prior to expiration of the approval period; and
(2) The applicant demonstrates one or more reasons that reasonably caused the applicant to delay substantial construction prior to expiration of the approval period; and
(3) The city determines that the applicant was unable to obtain substantial construction during the approval period for reasons for which the applicant was not responsible; and
(4) The property subject to the land use approval complies with all city code requirements.
(C) Land Use Approval Extension Procedures.
(1) Applications for extensions shall be submitted in accordance with the review procedures of this chapter. Extension requests shall be submitted to the community development department prior to permit expiration.
(2) Public notice and procedures on applications for extension requests shall be in accordance with the review procedures of this chapter. However, in addition to mailed notice as required in review procedures of this chapter, notice shall be provided also to those on the record for the original land use approval, associated appeals, and associated extensions.
(3) The administrative decision, public hearing, and/or commission decision concerning an extension may occur after the land use approval would have expired but for a timely filed request for an extension.
(D) Appeals. The decision concerning an extension may be appealed. Appeals shall be made in accordance with review procedures of this chapter. Appeals on land use approval extensions shall be limited to the issues relevant to the extension criteria only and not to issues relevant to the original approval. [Ord. 2024-03 § 1 (Exh. A), 2024.]