Division 17.400. Application Review Procedures and Approval Criteria
Chapter 17.401
GENERAL REVIEW PROCEDURES
Sections:
17.401.010 Purpose and applicability.
17.401.020 Type I procedure (staff review).
17.401.030 Type II procedure (administrative review).
17.401.040 Type III procedure (quasi-judicial review – planning commission decision).
17.401.050 Type IV procedure (quasi-judicial review – city council decision).
17.401.060 Type V (legislative review – city council decision).
17.401.070 General provisions applicable to all reviews.
17.401.010 Purpose and applicability.
A. Purpose. The purpose of this chapter is to establish standard decision-making procedures that will enable the city, the applicant, and the public to review applications and participate in the local decision-making process in a timely and effective way. Table 17.401.010 provides a key for determining 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 chapter. 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 (B)(1) through (B)(5) of this section. Table 17.401.010 lists the city’s land use and development approvals and corresponding review procedure(s).
1. Type I Procedure (Staff Review). Type I decisions are made by the city planning official, or his or her designee, without public notice and without 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., clear and objective standards).
2. Type II Procedure (Administrative/Staff Review with Notice). Type II decisions are made by the city planning official with public notice and an opportunity for appeal to the planning commission.
3. Type III Procedure (Quasi-Judicial Review – Planning Commission Hearing). Type III decisions are made by the planning commission after a public hearing, with an opportunity for appeal to the city council.
4. Type IV Procedure (Quasi-Judicial Review – Planning Commission and City Council Hearings). The Type IV procedure applies to certain small-scale quasi-judicial decisions (i.e., small zone changes, right-of-way vacations, and annexations) that are considered by the planning commission for a recommendation to city council, and then by the city council for a final decision.
5. Type V Procedure (Legislative Review – Planning Commission and City Council Hearings). The Type V procedure applies to the creation or revision, or large-scale implementation, of public policy (i.e., adoption of regulations, zone changes, annexation, and comprehensive plan amendments). Type V reviews are considered by the planning commission for a recommendation to city council. City council makes the final decision on legislative proposals.
|
Approvals* |
Review Procedures |
Applicable Regulations |
|---|---|---|
|
Adjustment |
Type II |
Chapter 17.406 DMC |
|
Annexation |
Type IV or V |
Chapter 17.408 DMC |
|
Code Interpretation |
Type II or III |
Chapter 17.103 DMC |
|
Code Text Amendment |
Type V |
Chapter 17.405 DMC |
|
Comprehensive Plan Amendment |
Type IV or V |
Chapter 17.405 DMC |
|
Conditional Use Permit |
Type III |
Chapter 17.404 DMC |
|
Home Occupation |
Type I |
Chapter 17.203 DMC |
|
Legal Lot Determination |
Type I |
|
|
Nonconforming Use or Structure, Expansion of |
Type III |
Chapter 17.104 DMC |
|
Park and Open Space Master Plan |
Type III** |
Chapter 17.203 DMC |
|
Partition or Replat of 2 – 3 Lots |
|
|
|
Preliminary Plat |
Type II |
Chapter 17.403 DMC |
|
Final Plat |
Type I |
Chapter 17.403 DMC |
|
Planned Unit Development |
Type III |
Chapter 17.407 DMC |
|
Property Line Adjustments, including Lot Consolidations |
Type I |
Chapter 17.403 DMC |
|
Riparian Corridor |
Type II |
Chapter 17.204 DMC |
|
Sign Permit |
Type I |
Chapter 17.306 DMC |
|
Similar Use Authorization |
Type I |
Chapter 17.103 DMC |
|
Site Development Review |
Type I or II |
Chapter 17.402 DMC |
|
Short-Term Rentals |
Type II |
DMC 17.203.240 |
|
Subdivision or Replat of > 3 Lots |
|
|
|
Preliminary Plat |
Type III |
Chapter 17.403 DMC |
|
Final Plat |
Type I |
Chapter 17.403 DMC |
|
Temporary Use |
Type I |
Chapter 17.203 DMC (Special Uses – DMC 17.203.160) |
|
Vacation |
Type V |
See ORS Chapter 271 |
|
Variance |
Type III |
Chapter 17.406 DMC |
|
Zoning Map Change |
Type IV or V |
Chapter 17.405 DMC |
*The applicant may be required to obtain building permits and other approvals. 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.
**The city council through the Type III procedure reviews park and open space master plans.
C. Determination of Procedure Type. If there is a question of which procedure type a particular application should follow, the planning official shall determine the procedure to use. [Ord. 586-2024 § 1 (Exh. A); Ord. 582-2023 § 3 (Exh. C); Ord. 572-2021 § 1 (Exh. B); Ord. 521-2013 § 3 (Exh. A)].
17.401.020 Type I procedure (staff review).
The city planning official, or his or her designee, without public notice and without a public hearing, makes ministerial decisions through the Type I procedure. The Type I procedure is used in applying city standards and criteria that do not require the exercise of discretion (i.e., clear and objective standards).
A. Application Requirements.
1. Application Forms. Approvals requiring Type I review shall be made on forms provided by the city.
2. Application Requirements.
a. Include the information requested on the application form;
b. Address the criteria in sufficient detail for review and action; and
c. Be filed with the required fee.
B. Requirements. A building permit shall not be issued until the city planning official has approved a Type I application for the proposed project.
C. Criteria and Decision. The city planning official’s review is intended to determine whether minimum code requirements are met and whether any other land use permit or approval is required prior to issuance of a building permit.
D. Effective Date. A Type I decision is final on the date it is signed by the city planning official. It is not a land use decision or limited land use decision as defined by ORS 197.015. Decisions may only be appealed to the planning commission where specifically noted. [Ord. 521-2013 § 3 (Exh. A)].
17.401.030 Type II procedure (administrative review).
The city planning official or his or her designee performs administrative staff reviews through the Type II procedure. Type II decisions are made by the city planning official with public notice and an opportunity for appeal to the planning commission.
A. Application Requirements.
1. Applications for projects requiring administrative review shall be made on forms provided by the city.
2. The city planning official shall advise the applicant of the application submittal requirements. At a minimum, the application shall include all of the following information:
a. The information requested on the application form;
b. Plans and exhibits required for the specific approval(s) being sought (for example, requirements for property line adjustments are in Chapter 17.403 DMC);
c. A written statement or letter explaining how the application satisfies each and all of the relevant criteria and standards in sufficient detail;
d. Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable;
e. Draft public notice and public mailing list; and
f. The required fee.
B. Procedure.
1. The city planning official shall mail public notice of applications subject to administrative review not less than 14 days prior to decision. The city planning official shall prepare an affidavit of notice stating the date the notice was mailed, which shall be made a part of the file.
2. The purpose of the administrative review notice is to give nearby property owners and other interested people and agencies the opportunity to submit written comments on the application before the planning official issues the decision. The intent is to invite people to participate early in the decision-making process. Therefore all of the following individuals and agencies shall be notified:
a. All owners of record of real property 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 Dundee. 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.
3. The notice shall contain all of the following information:
a. The deadline for submitting written comments;
b. A summary of the proposal and the relevant approval criteria. The notice must have sufficient detail to help the public identify and locate applicable code requirements;
c. The address and city contact person for submitting written comments;
d. The street address or other easily understandable reference to the location of the proposed use or development;
e. Disclosure statement indicating that if any person fails to address the relevant approval criteria with enough detail, they may not be able to appeal to the Land Use Board of Appeals or circuit court on that issue. Only comments on the relevant approval criteria are considered relevant evidence;
f. Statement that all evidence relied upon by the city planning official to make its decision is in the public record and is available for public review. Copies of this evidence can be obtained at a reasonable cost from the city; and
g. Statement that after the comment period 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.
4. At the conclusion of the comment period, the city planning official shall review the comments received and prepare a decision notice approving, approving with conditions, or denying the application based on the applicable code criteria.
5. The city planning official shall prepare a notice of decision and mail it to the applicant, property owner (if different), those who provided written comments on the proposal, and those who requested a copy of the decision. The administrative notice of decision shall contain all of the following information:
a. A description of the applicant’s proposal and the city’s decision on the proposal. The notice may be a summary, provided it references the specifics of the proposal and conditions of approval in the public record;
b. The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area (i.e., copy of assessor’s map may be used);
c. A statement of where the city’s decision can be obtained;
d. The date the decision shall become final, unless appealed; and
e. A statement that all persons entitled to notice may appeal the decision to the planning commission pursuant to subsection (D) of this section.
C. Effective Date of Decision. Unless the conditions of approval specify otherwise, an administrative decision becomes effective 10 days after the city mails the decision notice unless the decision is appealed pursuant to subsection (D) of this section.
D. Appeal of Type II (Administrative) Decision. A Type II administrative decision made by the city planning official may be appealed to the Dundee planning commission, pursuant to the following:
1. Who May Appeal. The following people have legal standing to appeal a Type II administrative decision:
a. The applicant or owner of the subject property;
b. Any person who was entitled to written notice of the administrative review;
c. Any other person who participated in the proceeding by submitting written comments on the application to the city by the specified deadline.
2. Appeal Filing Procedure.
a. Notice of Appeal. Any person with standing to appeal, as provided in subsection (D)(1) of this section, may appeal a Type II administrative decision by filing a notice of appeal according to the following procedures.
b. Time for Filing. A notice of appeal shall be filed with the city planning official within the time frame specified on the notice of decision; this will be within 10 days of the date the notice of decision is mailed.
c. Content of Notice of Appeal. The notice of appeal shall be accompanied by the required filing fee and shall contain:
i. An identification of the decision being appealed, including the date of the decision;
ii. A statement demonstrating the person filing the notice of appeal has standing to appeal;
iii. A statement explaining the specific issues being raised on appeal; and
iv. If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period.
3. Scope of Appeal. The appeal of a Type II administrative decision shall be a hearing de novo before the planning commission, where the contested decision was made by the city planning official. The appeal shall not be limited to the application materials, evidence and other documentation, and specific issues raised in the review leading up to the administrative decision, but may include other relevant evidence and arguments. The hearing appeal body may allow additional evidence, testimony or argument concerning any relevant standard, criterion, condition, or issue.
4. Appeal Hearing Procedure. Hearings on appeals of Type II decisions shall follow the same procedure used for public hearings on Type III reviews under DMC 17.401.040. DMC 17.401.040 contains requirements for public hearing notices, conduct of hearings, and decision-making procedures. [Ord. 521-2013 § 3 (Exh. A)].
17.401.040 Type III procedure (quasi-judicial review – planning commission decision).
The planning commission makes Type III quasi-judicial decisions. The Type III review procedure involves a public hearing, and provides an opportunity for those who appear to appeal the planning commission decision to the city council.
A. Application Requirements.
1. Application Forms. Applications requiring a quasi-judicial public hearing shall be made on forms provided by the city planning official.
2. Submittal Information. The city planning official shall advise the applicant on application submittal requirements. At a minimum, the application shall include all of the following information:
a. The information requested on the application form;
b. Plans and exhibits required for the specific approval(s) being sought;
c. A written statement or letter explaining how the application satisfies each and all of the relevant criteria and standards in sufficient detail;
d. Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable;
e. Draft public notice and public mailing list; and
f. The required fee.
B. Procedure.
1. Mailed and Published Notice. The city planning official shall mail public notice of a public hearing on a quasi-judicial application not less than 20 days prior to the first hearing date on the application to the individuals and organizations listed below. The city planning official shall prepare an affidavit of notice stating the date the notice was mailed, which shall be made a part of the file. 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 Dundee. 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. Posted Notice. The city planning official shall post public notice(s) of the public hearing on the subject site not less than 20 days prior to the first hearing date on the application. Notice posters shall be posted in conspicuous locations, with at least one poster on each street frontage adjacent to the subject site. Notices shall be posted at least once every 600 feet of street frontage along the perimeter of the property. The city planning official shall prepare a signed affidavit of posting, which shall be made a part of the file. The affidavit shall state the date and location(s) where the notice was posted.
3. Content of Notices. Notice of a quasi-judicial hearing to be mailed and published shall contain all of the following information:
a. A summary of the proposal and the relevant approval criteria. The notice must have sufficient detail to help the public identify and locate applicable code requirements;
b. The date, time and location of the scheduled hearing;
c. The street address or other easily understandable reference to the location of the proposed use or development;
d. A disclosure statement that if any person fails to address the relevant approval criteria with enough detail, they may not be able to appeal to the city council, Land Use Board of Appeals, or circuit court, as applicable, on that issue. Only comments on the relevant approval criteria are considered relevant evidence;
e. A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards shall be available for review at the office of the city planning official and that copies shall be provided at a reasonable cost;
f. A statement that a copy of the city’s staff report and recommendation to the hearing body shall be available for review at no cost at least seven days before the hearing, and that a copy shall be provided on request at a reasonable cost;
g. A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and
h. A statement that after the public hearing closes, the planning commission will issue its decision, and the decision shall be mailed to the applicant and to anyone else who submitted written comments or who is otherwise legally entitled to notice.
C. Conduct of the Public Hearing.
1. Hearing Instructions. 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:
a. The applicable approval criteria by code chapter that apply to the application;
b. 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;
c. Failure to raise an issue with sufficient detail to give the hearing body and the parties an opportunity to respond to the issue may preclude appeal to the State Land Use Board of Appeals on that issue;
d. At the conclusion of the initial evidentiary hearing, the hearing body shall deliberate and make a decision based on the facts and arguments in the public record. See subsection (F) of this section, Record of the Public Hearing;
e. Any participant may ask the hearing body for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing; if the hearing body grants the request, it will schedule a date to continue the hearing as provided in subsection (C)(5) of this section, or leave the record open for additional written evidence or testimony as provided in subsection (C)(6) of this section.
2. Impartial Tribunal. The public is entitled to an impartial hearing body as free from potential conflicts of interest and prehearing 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, the 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 excuse themselves from the proceedings.
3. 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;
c. Members of the hearing body may visit the property and the surrounding area, and may use information obtained during the site visit to support their decision, if the information relied upon is disclosed at the beginning of the hearing and an opportunity is provided to dispute the evidence.
4. Record. The hearing body, in making its decision, shall consider only facts and arguments in the public hearing record; except that it may take notice of facts not in the hearing record (e.g., local, state, or federal regulations; previous city decisions; case law; staff reports) upon announcing its intention to take notice of such facts in its deliberations and allowing persons who previously participated in the hearing to request the hearing record be reopened, as necessary, to present evidence concerning the newly presented facts.
5. Continuances. If the hearing body decides to continue the hearing, the hearing shall be continued to a date that is at least seven days after the date of the first evidentiary hearing (e.g., next regularly scheduled meeting). An opportunity shall be provided at the continued hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the continued hearing, any person may request, before the conclusion of the hearing, that the record be left open for at least seven days, so that they can submit additional written evidence or arguments in response to the new written evidence. In the interest of time, after the close of the hearing, the hearing body may limit additional testimony to arguments and not accept additional evidence.
6. Record Left Open for Additional Testimony. 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 DMC 17.401.070 (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.
7. Decision Notice. The notice of quasi-judicial decision shall contain all of the following information:
a. A description of the applicant’s proposal and the city’s decision on the proposal. The notice may be a summary, provided it references the specifics of the proposal and conditions of approval in the public record;
b. The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area (i.e., copy of assessor’s map may be used);
c. A statement of where the city’s decision can be obtained;
d. The date the decision shall become final, unless appealed; and
e. A statement that all persons entitled to notice may appeal the planning commission’s decision to city council pursuant to subsection (E) of this section, or may appeal the city council’s decision to the State Land Use Board of Appeals, as applicable.
D. Effective Date of Decision. Unless the conditions of approval specify otherwise, a quasi-judicial decision becomes effective 10 days after the city mails the decision notice unless the decision is appealed pursuant to subsection (E) of this section.
E. Appeal of Planning Commission Decision. The planning commission’s decision may be appealed to the Dundee city council as follows:
1. Who May Appeal. Only persons who “appear” during a quasi-judicial proceeding, by testifying orally or in writing, prior to the close of the public record, may appeal the planning commission decision.
2. Appeal Filing Procedure.
a. Notice of Appeal. Any person with standing to appeal, as provided in subsection (E)(1) of this section, may appeal a Type III quasi-judicial decision by filing a notice of appeal according to the following procedures.
b. Time for Filing. A notice of appeal shall be filed with the city planning official within the time frame specified on the notice of decision; typically, this will be within 14 days of the date the notice of decision is mailed.
c. Content of Notice of Appeal. The notice of appeal shall be accompanied by the required filing fee and shall contain:
i. An identification of the decision being appealed, including the date of the decision;
ii. A statement demonstrating the person filing the notice of appeal has standing to appeal;
iii. A statement explaining the specific issues being raised on appeal; and
iv. If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period.
3. Scope of Appeal. The appeal of a Type III quasi-judicial decision shall be a de novo hearing before the city council, which may allow additional evidence, testimony or argument concerning any issue raised at the planning commission.
F. Record of the Public Hearing.
1. Official Record. The official public hearing record shall include all of the following information:
a. All materials considered by the hearing body;
b. All materials submitted by the city planning official to the hearing body regarding the application;
c. The minutes of the hearing;
d. The final written decision; and
e. Copies of all notices given as required by this chapter, and correspondence regarding the application that the city mailed or received.
2. Minutes. The meeting minutes shall be filed in hard copy form with the city planning official. The minutes and other evidence presented as a part of the hearing shall be part of the record.
3. Exhibits. All exhibits received and displayed shall be marked to provide identification and shall be part of the record.
G. Effective Date and Appeals to State Land Use Board of Appeals. Final decisions, including appeal decisions, are effective the date the city mails the decision. Appeals of city council final decisions under this code shall be filed with the State Land Use Board of Appeals pursuant to ORS 197.805 to 197.860, except where state law requires review by a different court. [Ord. 521-2013 § 3 (Exh. A)].
17.401.050 Type IV procedure (quasi-judicial review – city council decision).
Type IV quasi-judicial decisions are heard first by the planning commission for a recommendation to the city council, and then by the city council for a final decision. The Type IV review procedure involves two public hearings.
A. Application Requirements.
1. Application Forms. Applications requiring a quasi-judicial public hearing shall be made on forms provided by the city planning official.
2. Submittal Information. The city planning official shall advise the applicant on application submittal requirements. At a minimum, the application shall include all of the following information:
a. The information requested on the application form;
b. Plans and exhibits required for the specific approval(s) being sought;
c. A written statement or letter explaining how the application satisfies each and all of the relevant criteria and standards in sufficient detail;
d. Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable;
e. Draft public notice and public mailing list; and
f. The required fee.
B. Procedure.
1. Mailed and Published Notice. The city planning official shall mail public notice of a public hearing on a quasi-judicial application not less than 20 days prior to the first hearing date on the application to the individuals and organizations listed below. The city planning official shall prepare an affidavit of notice stating the date the notice was mailed, which shall be made a part of the file. 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 Dundee. 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. Posted Notice. The city planning official shall post public notice(s) of the public hearing on the subject site not less than 20 days prior to the first hearing date on the application. Notice posters shall be posted in conspicuous locations, with at least one poster on each street frontage adjacent to the subject site. Notices shall be posted at least once every 600 feet of street frontage along the perimeter of the property. The city planning official shall prepare a signed affidavit of posting, which shall be made a part of the file. The affidavit shall state the date and location(s) where the notice was posted.
3. Content of Notices. Notice of a quasi-judicial hearing to be mailed and published shall contain all of the following information:
a. A summary of the proposal and the relevant approval criteria. The notice must have sufficient detail to help the public identify and locate applicable code requirements;
b. The date, time and location of the scheduled hearing;
c. The street address or other easily understandable reference to the location of the proposed use or development;
d. A disclosure statement that if any person fails to address the relevant approval criteria with enough detail, they may not be able to appeal to the Land Use Board of Appeals or circuit court, as applicable, on that issue. Only comments on the relevant approval criteria are considered relevant evidence;
e. A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards shall be available for review at the office of the city planning official and that copies shall be provided at a reasonable cost;
f. A statement that a copy of the city’s staff report and recommendation to the hearing body shall be available for review at no cost at least seven days before the hearing, and that a copy shall be provided on request at a reasonable cost;
g. A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and
h. A statement that after the public hearing closes, the city council will issue its decision, and the decision shall be mailed to the applicant and to anyone else who submitted written comments or who is otherwise legally entitled to notice.
C. Conduct of the Public Hearing.
1. Hearing Instructions. 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:
a. The applicable approval criteria by code chapter that apply to the application;
b. 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;
c. Failure to raise an issue with sufficient detail to give the hearing body and the parties an opportunity to respond to the issue may preclude appeal to the State Land Use Board of Appeals on that issue;
d. At the conclusion of the initial evidentiary hearing, the hearing body shall deliberate and make a decision based on the facts and arguments in the public record. See subsection (E) of this section, Record of the Public Hearing;
e. Any participant may ask the hearing body for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing; if the hearing body grants the request, it will schedule a date to continue the hearing as provided in subsection (C)(5) of this section, or leave the record open for additional written evidence or testimony as provided in subsection (C)(6) of this section.
2. Impartial Tribunal. The public is entitled to an impartial hearing body as free from potential conflicts of interest and prehearing 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, the 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 excuse themselves from the proceedings.
3. 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;
c. Members of the hearing body may visit the property and the surrounding area, and may use information obtained during the site visit to support their decision, if the information relied upon is disclosed at the beginning of the hearing and an opportunity is provided to dispute the evidence.
4. Record. The hearing body, in making its decision, shall consider only facts and arguments in the public hearing record; except that it may take notice of facts not in the hearing record (e.g., local, state, or federal regulations; previous city decisions; case law; staff reports) upon announcing its intention to take notice of such facts in its deliberations and allowing persons who previously participated in the hearing to request the hearing record be reopened, as necessary, to present evidence concerning the newly presented facts.
5. Continuances. If the hearing body decides to continue the hearing, the hearing shall be continued to a date that is at least seven days after the date of the first evidentiary hearing (e.g., next regularly scheduled meeting). An opportunity shall be provided at the continued hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the continued hearing, any person may request, before the conclusion of the hearing, that the record be left open for at least seven days, so that they can submit additional written evidence or arguments in response to the new written evidence. In the interest of time, after the close of the hearing, the hearing body may limit additional testimony to arguments and not accept additional evidence.
6. Record Left Open for Additional Testimony. 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 DMC 17.401.070 (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.
7. Decision Notice. The notice of quasi-judicial decision shall contain all of the following information:
a. A description of the applicant’s proposal and the city’s decision on the proposal. The notice may be a summary, provided it references the specifics of the proposal and conditions of approval in the public record;
b. The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area (i.e., copy of assessor’s map may be used);
c. A statement of where the city’s decision can be obtained;
d. The date the decision shall become final, unless appealed; and
e. A statement that all persons entitled to notice may appeal the city council’s decision to the State Land Use Board of Appeals, as applicable.
D. Effective Date of Decision. Unless the conditions of approval specify otherwise, a quasi-judicial decision becomes effective 10 days after the city mails the decision notice unless the decision is appealed pursuant to DMC 17.401.040(E).
E. Record of the Public Hearing.
1. Official Record. The official public hearing record shall include all of the following information:
a. All materials considered by the hearing body;
b. All materials submitted by the city planning official to the hearing body regarding the application;
c. The minutes of the hearing;
d. The final written decision; and
e. Copies of all notices given as required by this chapter, and correspondence regarding the application that the city mailed or received.
2. Minutes. The meeting minutes shall be filed in hard copy form with the city planning official. The minutes and other evidence presented as a part of the hearing shall be part of the record.
3. Exhibits. All exhibits received and displayed shall be marked to provide identification and shall be part of the record.
F. Effective Date and Appeals to State Land Use Board of Appeals. Final decisions, including appeal decisions, are effective the date the city mails the decision. Appeals of city council final decisions under this code shall be filed with the State Land Use Board of Appeals pursuant to ORS 197.805 to 197.860, except where state law requires review by a different court. [Ord. 521-2013 § 3 (Exh. A)].
17.401.060 Type V (legislative review – city council decision).
A legislative action for the purposes of this code is a land use decision requiring city council enactment of an ordinance. Legislative actions include amendments to the city of Dundee comprehensive plan, amendments to the city of Dundee transportation system plan and other facility plans which are ancillary to the comprehensive plan, and amendments to the city’s zoning map and development code that are not otherwise reviewable as quasi-judicial actions under DMC 17.401.040.
A. Initiation of Requests. The city council or planning commission may initiate a legislative action at any time by a majority vote. Legislative requests are not subject to the 120-day review period under ORS 227.178.
B. Application Requirements.
1. Application Forms. Applications for legislative action shall be made on forms provided by the city.
2. Submittal Information. Applications for legislative action shall contain all of the following information:
a. The information requested on the application form;
b. A map and/or plan addressing the appropriate criteria and standards in sufficient detail for review and decision (as applicable);
c. The required fee, except when city of Dundee initiates request; and
d. One copy of a letter or narrative statement that explains how the application satisfies each and all of the relevant approval criteria and standards.
C. 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:
1. The city planning official shall notify in writing the Oregon Department of Land Conservation and Development (DLCD) of proposed legislative amendments 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.
2. 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:
a. 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). See also ORS 227.186 for instructions;
b. Any affected governmental agency;
c. Any person who requests notice in writing; and
d. For a zone change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175.
3. 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.
4. For each mailing and publication of notice, the city planning official shall keep an affidavit of mailing/publication in the record.
D. 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, or if not approved, upon mailing of the notice of decision to the applicant. Notice of a legislative land use decision shall be mailed to the applicant, all participants of record, and the Department of Land Conservation and Development within five business days after the city council decision is filed with the city planning official. The city shall also provide notice to all persons as required by other applicable laws. [Ord. 521-2013 § 3 (Exh. A)].
17.401.070 General provisions applicable to all reviews.
A. Time Limit – 120-Day Rule. The city shall take final action on administrative and quasi-judicial land use applications, pursuant to this chapter, 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 legislative land use decisions.)
B. Time Periods. In computing time periods prescribed or allowed by this chapter, 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.
C. 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 lots, the proceedings shall be consolidated for review and decision at the applicant’s request or at the city’s discretion. The consolidated application shall be considered using the highest procedure type of any of the applications. When proceedings are consolidated, required notices may be consolidated, provided the notice shall identify each application to be decided. When more than one application is reviewed in a hearing, separate findings and decisions shall be made on each application.
D. 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:
1. Prepare application forms based on the provisions of this code and applicable state law;
2. Review required notices, and process applications;
3. Assist planning commission and city council in administering the hearings process;
4. Answer questions from the public regarding the city’s land use regulations;
5. Prepare staff reports summarizing pending applications, including applicable decision criteria;
6. Prepare findings consistent with city council decisions on land use and development applications;
7. 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
8. Maintain and preserve the file and public record for each application.
E. Fees. Fees for land use applications are established by city council resolution. [Ord. 521-2013 § 3 (Exh. A)].