Chapter 18.210
ADMINISTRATIVE PROVISIONS
Sections:
18.210.010 Application information and procedures.
18.210.020 Notice of public hearing.
18.210.030 Date of public hearing.
18.210.040 Availability of staff reports.
18.210.050 Public hearing procedure and requirements.
18.210.060 Request for review of a decision (appeals).
18.210.070 Final action on application for permit or zone change request.
18.210.100 Authorization of similar uses.
18.210.110 Traffic impact study.
18.210.010 Application information and procedures.
A. An application for a permit or zone change provided for in this title shall consist of:
1. A completed application form.
2. Proof that the property affected by the application is in the exclusive ownership of the applicant, or that the applicant has the consent of all partners in ownership of the affected property.
B. If the application is complete when first submitted, or the applicant submits the requested additional information within 180 days of the date the application was first submitted, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted.
C. If an application for a permit or zone change is incomplete, the city shall notify the applicant of the additional information required within 30 days of the receipt of the application. The applicant shall be given the opportunity to submit the additional information required. The application shall be deemed complete upon receipt of additional information required. If the applicant refuses to submit the required additional information, the application shall be deemed complete on the thirty-first day after the governing body first received the application.
D. All documents or evidence provided by the applicant shall be submitted to the city and be made available to the public at the time the notice of public hearing required by GMC 18.210.020 is provided.
E. Where a proposed development requires more than one permit, or zone change request from the city, the applicant may request that the city consider all necessary permit and zone change requests in a consolidated manner. If the applicant requests that the city consolidate its review of the development proposal, all necessary public hearings before the planning commission shall be held on the same date. [Ord. 290 § 3(11.010), 2006.]
18.210.020 Notice of public hearing.
A. Notice of a public hearing shall be reasonably calculated to give actual notice and shall contain the following information:
1. The name of the applicant.
2. The date, time, place of hearing and who is holding the public hearing.
3. A description reasonably calculated to inform a person of the location of the property for which a permit or other action is pending, including the street address, and the subdivision lot and block designation, or tax map designation of the county assessor. This is not required for legislative actions under this title.
4. A concise description of the proposed development action.
5. A description, in general terms, of the applicable criteria from this title and comprehensive plan known to apply to the issue.
6. A statement that failure of an issue to be raised in a hearing, in person or by letter, or a failure to provide sufficient specificity to afford decision makers an opportunity to respond to the issue precludes an appeal based on that issue.
7. A statement describing where the complete application, criteria and other relevant information is available for review.
8. The name and phone number of a local government representative to contact for more information.
9. A statement that a copy of the application, all documents and evidence relied upon by the applicant and applicable criteria are available for inspection at no cost, and that copies can be provided at reasonable cost.
10. A statement that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing, and that copies can be provided at reasonable cost.
11. A general explanation of the requirements for submission of testimony and the procedure for conduct of hearings.
B. Mailed Notice.
1. Mailed notice shall be sent to property owners with the following distances from the exterior boundary of the subject property:
a. Legislative change to this title: none.
b. Quasi-judicial change to this title: 200 feet.
c. Conditional use: 200 feet.
d. Variance request: 100 feet.
e. Appeal of a planning commission decision: same as for the initial hearing (e.g., variance: 100 feet).
2. Mailed notice shall be sent to the applicant.
3. Addresses for a mailed notice required by this title shall be obtained from the county assessor’s real property tax records. The failure of a property owner to receive notice shall not invalidate an action if a good faith attempt was made to comply with the requirements of this title for notice.
In addition for persons to receive notice as required by the matter under consideration, the city shall provide notice to others it has reason to believe are affected or otherwise represent an interest that may be affected by the proposed action.
4. Notice shall be sent to ODOT and other affected agencies for the following: all public hearings, subdivisions and partitions and any land use application affecting public or private access to a state facility.
C. Published Notice. Notice shall be given for the proposed actions described below by publication in a newspaper of general circulation of the city of Garibaldi:
1. Legislative change to this title.
2. Quasi-judicial change to this title.
3. Conditional use.
4. Variance.
5. Appeal of a planning commission decision.
D. Notice shall be mailed or published not less than 20 days prior to the hearing requiring the notice. [Ord. 290 § 3(11.020), 2006.]
18.210.030 Date of public hearing.
The planning commission shall hold a public hearing within 60 days of the filing of a complete application unless the applicant grants an extension. [Ord. 290 § 3(11.030), 2006.]
18.210.040 Availability of staff reports.
Any staff report to be used at a public hearing shall be available at least seven days prior to the hearing. If additional documents or evidence are provided in support of the application, any party shall be entitled to a continuance of the hearing. This continuance period shall not be counted as part of the 120-day time limit in GMC 18.210.070. [Ord. 290 § 3(11.035), 2006.]
18.210.050 Public hearing procedure and requirements.
A. Public hearings conducted under this title shall follow the procedures and requirements of this section.
B. Procedural Entitlements. The following procedural entitlements shall be provided at the public hearings:
1. An impartial review as free from potential conflicts of interest and prehearing ex parte contact as is reasonably possible:
a. No member of a hearing body shall participate in a discussion of the proposal or vote on the proposal when any of the following conditions exist:
i. Any of the following have a direct or substantial financial interest in the proposal: the hearing body member or the member’s spouse, brother, sister, child, parent, father-in-law, mother-in-law, any business in which the member is then serving or has served within the previous two years, or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment.
ii. The member owns property within the area entitled to receive notice of the public hearing.
iii. The member has a direct private interest in the proposal.
iv. For any other valid reason, the member has determined that participation in the hearing and decision cannot be in an impartial manner.
b. Disqualifications due to a conflict of interest or personal bias may be ordered by a majority of the members present. The person who is the subject of the motion may not vote on the motions.
c. Hearing body members shall reveal any prehearing or ex parte contacts with regard to any matter at the commencement of the first public hearing following the prehearing or ex parte contact where action will be considered or taken on the matter. If such contacts have not impaired the member’s impartiality or ability to vote on the matter, the member shall so state and shall participate in the public hearing. If the member determines that such contact has affected his impartiality or ability to vote on the matter, the member shall remove himself from the deliberations. Disqualifications due to ex parte contact may be ordered by a majority of the members present. The person who is the subject of the motion may not vote on the motion.
d. A party to a hearing may challenge the qualifications of a member of the hearing body to participate in the hearing and decision regarding the matter. The challenge shall state the facts relied upon by the challenger relating to a person’s bias, prejudgment, personal interest, ex parte contact or other facts from which the challenger has concluded that the member of the hearing body cannot participate in an impartial manner. The hearing body shall deliberate and vote on such a challenge. The person who is the subject of the challenge may not vote on the motion.
e. A party to a hearing may rebut the substance of the communication that formed the basis for an ex parte contact declared by a member of the hearing body.
f. 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 each interest.
2. A reasonable opportunity for those persons potentially affected by the proposal to present evidence.
3. A reasonable opportunity for rebuttal of new material.
C. Rights of Disqualified Member of the Hearing Body.
1. An abstaining or disqualified member of the hearing body may be counted for the 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. A member absent 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.
D. Burden and Nature of Proof. Except for a determination, the burden of proof is upon the proponent. The proposal must be supported by proof that it conforms to the applicable provisions of this title, especially the specific criteria set forth for the particular type of decision under consideration.
E. Nature of Proceedings. An order of proceeding for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate:
1. Before receiving information on the issue, the following shall be addressed:
a. Any objections on jurisdictional grounds shall be noted in the record and, if there is an objection, the person presiding has the discretion to proceed or terminate.
b. Any abstentions or disqualifications shall be determined, based on conflict of interest, personal bias, or ex parte contacts.
c. A statement by the person presiding that:
i. Describes the applicable substantive criteria against which the application will be reviewed.
ii. Testimony at the hearing must be directed towards the criteria which will be used to review the land use action, or other criteria in the plan or land use regulations which a party believes to apply to the land use action.
iii. Failure to raise an issue or address criteria with sufficient specificity to afford the decision makers and the parties to the hearing an opportunity to respond to the issue precludes an appeal based on that issue or criteria.
iv. Describes the review and appeal process provided for by this title.
2. Presentation and Evidence.
a. The presiding officer shall preserve order at the public hearing and shall decide questions of order subject to a majority vote.
b. The presiding officer may set reasonable time limits for oral presentations. The presiding officer may determine not to receive cumulative, repetitive, immaterial or derogatory testimony.
c. Evidence shall be received from the staff and from proponents and opponents.
i. Evidence shall be admissible if it is of a type commonly relied upon by reasonable and prudent persons in the conduct of serious affairs. Erroneous evidence shall not invalidate or preclude action unless shown to have prejudiced the substantial rights of a party to the hearing.
ii. Members of the hearing body may take official notice of judicially cognizable facts of a general or technical nature within their specialized knowledge. Such notice shall be stated and may be rebutted.
iii. The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.
d. The hearing body may recess a hearing in order to obtain additional information or to serve further notice upon other property owners or persons it decided may be interested in the proposal being considered. The time and date when the hearing is to resume shall be announced.
e. The hearing body may view the area in dispute with or without notification to the parties, but shall place the time, manner and circumstances of such view in the record.
f. When the hearing has been closed, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff, if opportunity for rebuttal is provided. No testimony shall be accepted after the close of the public hearing unless the hearing body provides an opportunity for review and rebuttal of that testimony.
g. At the conclusion of the public hearing, a participant in the public hearing may request that the record remain open for at least seven days for the purpose of submitting additional evidence. Whenever the record is supplemented in this manner, any person may raise new issues that relate to the new evidence, testimony or criteria for decision making that applies to the matter at issue. This extension of time shall not be counted as part of the 120-day limit in GMC 18.210.070.
F. Decision. Following the procedure described in subsections A through E of this section, the hearing body shall approve, approve with conditions or deny the application, or, if the hearing is in the nature of an appeal, affirm, affirm with modifications or additional conditions, reverse or remand the decision that is on appeal.
1. The decision of the hearing body shall be by a written order signed by the chair or his designee.
2. The order shall incorporate findings of fact and conclusions that include:
a. A statement of the applicable criteria and standards against which the proposal was tested.
b. A statement of the facts which the hearing body relied upon in establishing compliance or noncompliance with each applicable criteria or standard, briefly stating how those facts support the decision.
c. In the case of a denial, it shall be sufficient to address only those criteria upon which the applicant failed to carry the burden of proof or, when appropriate, the facts in the record that support denial.
3. The written order is the final decision on the matter and the date of the order is the date that it is signed. The order becomes effective on the expiration of the appeal period, unless an appeal has been filed.
G. Record of Proceedings. The secretary to the hearing body shall be present at each hearing and shall cause the proceedings to be recorded stenographically or electronically.
1. Testimony shall be transcribed if required for judicial review or if ordered by the hearing body.
2. The hearing body shall, where practicable, retain as part of the hearing records 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.
3. The finding shall be included in the record.
4. A person shall have access to the record of proceedings at reasonable times, places and circumstances. A person shall be entitled to make copies of the record at the person’s own expense.
H. Notice of Decision. Notice of a decision by a hearing body shall be provided to all parties to the hearing within five working days of the date that the final order was signed. The notice of the decision shall include:
1. A brief description of the decision reached.
2. A statement that the decision may be appealed by filing, with the city, an appeal within 10 calendar days of the date that the final order was signed.
3. A description of the requirements for an appeal.
4. A statement that an appeal may only be filed concerning criteria that were addressed at the initial public hearing.
5. A statement that the complete case including the final order is available for review at the city. [Ord. 290 § 3(11.040), 2006.]
18.210.060 Request for review of a decision (appeals).
A. A decision of a city administrative officer regarding a requirement of this title may be appealed to the planning commission by an affected party by filing an appeal with the city recorder within 10 days of the notice of decision. The notice of appeal that is filed with the city shall indicate the interpretation that is being appealed. The matter at issue will be a determination of the appropriateness of the interpretation of the requirements of this title.
B. A decision of the planning commission may be appealed to the city council by a party to the hearing by filing an appeal within 10 days of the date the final notice is signed. The notice of appeal filed with the city shall contain the information outlined in subsection C of this section.
C. Request for Appeal of a Planning Commission Decision. An appeal of a planning commission decision shall contain:
1. An identification of the decision sought to be reviewed, including the date of the decision.
2. A statement of the interest of the person seeking review and that he was a party to the initial proceedings.
3. The specific grounds relied upon for the review, including a statement that the criteria against which review is being requested were addressed at the planning commission hearing.
D. Scope of Review. The reviewing body may determine, as a nonpublic hearing item, that the scope of review, on appeal, will be one of the following:
1. Restricted to the record made on the decision being appealed;
2. Limited to the admission of additional evidence on such issues as the reviewing body determines for a proper resolution of the matter;
3. Remand the matter to the hearing body for additional consideration;
4. A de novo hearing on the merits.
E. Review on the Record.
1. Unless otherwise provided for by the reviewing body, review of the decision on appeal shall be confined to the record of the proceeding as specified in this section. The record shall include the following:
a. A factual report prepared by the city recorder;
b. All exhibits, materials, pleadings, memoranda, stipulations and motions submitted by any party and received or considered in reaching the decision under review;
c. The final order and findings of fact adopted in support of the decision being appealed;
d. The request for an appeal filed by the appellant;
e. The minutes of the public hearing. The reviewing body may request that a transcript of the hearing be prepared.
2. All parties to the initial hearing shall receive a notice of the proposed review of the record. The notice shall indicate the date, time and place of the review and the issue(s) that are the subject of the review.
3. The reviewing body shall make its decision based upon the record after first granting the right of argument, but not the introduction of additional evidence, to parties to the hearing.
4. In considering the appeal, the reviewing body need only consider those matters specifically raised by the appellant. The reviewing body may consider other matters if it so desires.
5. The appellant shall bear the burden of proof.
F. Review Consisting of Additional Evidence or De Novo Review.
1. The reviewing body may hear the entire matter de novo, or it may admit additional testimony and other evidence without holding a de novo hearing. The reviewing body shall grant a request for a new hearing only where it finds that:
a. The additional testimony or other evidence could not reasonably have been presented at the prior hearing; or
b. A hearing is necessary to fully and properly evaluate a significant issue relevant to the proposed development action; and
c. The request is not necessitated by improper or unreasonable conduct of the requesting party or by a failure to present evidence that was available at the time of the previous review.
2. Hearings on appeal, either de novo or limited to additional evidence on specific issue(s), shall be conducted in accordance of GMC 18.210.050.
3. All testimony, evidence and other material from the record of the previous consideration shall be included in the record of review. [Ord. 290 § 3(11.050), 2006.]
18.210.070 Final action on application for permit or zone change request.
The city shall take final action on an application for a permit or zone change within 120 days of the receipt of a complete application. The 120-day period does not apply to an amendment to the comprehensive plan or zoning ordinance, or the adoption of a new land use regulation. At the request of the applicant, the 120-day period may be extended for a reasonable period of time. [Ord. 290 § 3(11.060), 2006.]
18.210.080 Filing fees.
Filing fees shall be established by resolution of the city council. It shall be the responsibility of the applicant to pay for the full cost of processing permit applications, and shall be paid to the city upon the filing of an application. Such fees shall not be refundable. The applicant shall be billed for costs incurred over and above the minimum permit fee at the conclusion of the city action on the permit request. In no case shall the actual cost of the amendment, appeal, or permit exceed the cost to the city. Such fees shall not include the cost of preparing transcripts for appeals. [Ord. 290 § 3(11.070), 2006.]
18.210.090 Building permits.
A. No permit shall be issued by the building official for the construction, reconstruction, alteration or change of use for a structure or lot that does not conform to the requirements of this title.
B. Building permits are required for any change, alteration or addition that affects the foundation, roofline, area of structure or enclosure of porches, decks, patios or carports. Building permits are required for any alteration, modification or repair to a structure that is open to the general public.
C. No building permit shall be issued for any new construction or any alteration or addition to an existing structure that approaches any lot line unless an official survey accompanies the application for a building permit. The survey shall also show the elevation of the building site in areas that are located within flood hazard areas as defined by FEMA.
D. Construction on property for which a permit has been issued must be started within 120 days from the date of issue. Construction must not be abandoned for over 120 days, or a new permit must be obtained at one-half the original fee. Building permits may be renewed only once.
E. If manufactured dwellings, recreational vehicles, or other temporary structures are used during construction, water and sewer facilities must be installed within 30 days.
F. Premises may not be occupied unless furnished with sewer and water facilities.
G. The building permit shall be on forms prescribed by the city. [Ord. 290 § 3(11.080), 2006.]
18.210.100 Authorization of similar uses.
The planning commission may permit, in a particular zone, a use not listed in this title, provided the use is of the same general type as the uses permitted there by this title. However, this section does not authorize the inclusion in a zone, where it is not listed, of a use specifically listed in another zone. [Ord. 290 § 3(11.090), 2006.]
18.210.110 Traffic impact study.
A. Purpose. The purpose of this section is to implement Section 660-012-0045(2)(e) of the State Transportation Planning Rule that requires the city to adopt a process to apply conditions to development proposals in order to minimize adverse impacts to and protect transportation facilities. This section establishes the standards for when a proposal must be reviewed for potential traffic impacts; when a traffic impact study must be submitted with a development application in order to determine whether conditions are needed to minimize impacts to and protect transportation facilities; what must be in a traffic impact study; and who is qualified to prepare the study.
B. Typical Average Daily Trips. Standards by which to gauge average daily vehicle trips include: 10 trips per day per single-family household, five trips per day per apartment; and 30 trips per day per 1,000 square feet of gross floor area such as a new supermarket or other retail development.
C. When Required. A traffic impact study may be required to be submitted to the city and ODOT with a land use application when the following conditions apply:
1. The development application involves one or more of the following actions:
a. A change in zoning or a plan amendment designation;
b. Any proposed development or land use action that ODOT states may have operational or safety concerns along a state highway;
c. The development shall cause one or more of the following effects, which can be determined by field counts, site observation, traffic impact analysis or study, field measurements, crash history, Institute of Transportation Engineers Trip Generation Manual, and information and studies provided by the local reviewing jurisdiction and/or ODOT:
i. An increase in site traffic volume generation by 150 average daily trips (ADT) or more; or
ii. An increase in ADT hour volume of a particular movement to and from the state highway by 20 percent or more; or
iii. An increase in use of adjacent streets by vehicles exceeding the 20,000 pound gross vehicle weights by 10 vehicles or more per day; or
iv. The location of the access driveway does not meet minimum site distance requirements, or is located where vehicles entering or leaving the property are restricted, or such vehicles queue or hesitate on the state highway, creating a safety hazard; or
v. A change in internal traffic patterns that may cause safety problems, such as backup onto the highway or traffic crashes in the approach area.
2. As requested by the planning commission, acting on the recommendation of city staff.
D. Traffic Impact Study Requirements.
1. Preparation. A traffic impact study shall be prepared by a professional engineer in accordance with OAR 734-051-180.
2. Review of Plan and Land Use Regulation Amendments for Effect on Transportation Facilities. Where and when required, a traffic impact study shall review a proposed plan or land use regulation amendment for its effect upon transportation facilities, pursuant to GMC 18.200.060.
E. Approval Criteria.
1. Criteria. When a traffic impact study is required, approval of the development proposal requires satisfaction of the following criteria:
a. The traffic impact study was prepared by a professional engineer in accordance with OAR 734-051-180; and
b. If the proposed development shall cause one or more of the effects in subsection (C)(1)(c) of this section, or other traffic hazard or negative impact to a transportation facility, the traffic impact study shall include mitigation measures satisfactory to the city of Garibaldi, and ODOT when applicable; and
c. The proposed site design and traffic and circulation design and facilities, for all transportation modes, including any mitigation measures, are designed to:
i. Have the least negative impact on all applicable transportation facilities; and
ii. Accommodate and encourage non-motor vehicular modes of transportation to the extent practicable; and
iii. Make the most efficient use of land and public facilities as practicable; and
iv. Provide the most direct, safe and convenient routes practicable between on-site destinations, and between on-site and off-site destinations; and
v. Comply with the performance standards as described in the TSP and/or the Oregon Highway Plan (whichever is applicable); and
vi. Otherwise comply with applicable requirements of this title and subdivision and land partitioning procedures.
2. Conditions of Approval. The city may deny, approve, or approve the proposal with appropriate conditions. [Ord. 290 § 3(11.095), 2006.]
18.210.120 Interpretation.
Where a provision of this title is less restrictive than another ordinance or requirement of the city, the provision or requirements which are less restrictive shall govern. [Ord. 290 § 3(11.100), 2006.]
18.210.125 Applicability.
No use may be established or authorized under this title for an activity or purpose prohibited by, or in violation of, state or federal law. [Ord. 319 § 24, 2013.]
18.210.130 Severability.
The provisions of this title are severable. If a section, sentence, clause or phrase of this title is adjudged by a court of competent jurisdiction to be invalid, the decision shall not affect the validity of the remaining portions of this title. [Ord. 290 § 3(11.110), 2006.]