Chapter 18.10 LAND USE ACTIONS

Chapter 18.10
LAND USE ACTIONS

Sections:

18.10.010 Application types and review procedures.

18.10.020 Application for land use actions.

18.10.030 Persons who may apply for a land use action.

18.10.035 Preapplication conferences.

18.10.037 Neighborhood review meeting.

18.10.040 General provisions.

18.10.050 Notice for public hearings.

18.10.060 Conduct of public hearings.

18.10.070 Resubmission of requests.

18.10.080 Rescission of a land use action.

18.10.090 Appeal of Planning Commission actions.

18.10.100 Supplemental application for remaining permitted uses following denial of an initial application.

18.10.110 Site plan review.

18.10.120 Design review.

18.10.130 Approval, expiration, and extension.

18.10.140 Modifications to approved plans and conditions.

18.10.150 Parking determinations.

18.10.010 Application types and review procedures.

All development permits and land use actions are processed under the City’s administrative procedures. There are five types of actions, each with its own procedures.

(1) Zoning Checklist. For proposals that do not require a Type I – IV land use application, the City Planner reviews proposals using a zoning checklist. The zoning checklist is done concurrently with building permit review and is intended to ensure a project proposal meets the basic requirements of Article 2 (Zoning) before more detailed plans are prepared and before the City authorizes the Building Official to issue a building permit. The zoning checklist is not an official land use action; it is a ministerial process.

(2) Type I Action. Type I decisions are made by the City Planner, or their designee, without public notice and without a public hearing. A Type I procedure is used in applying City standards that do not require the use of discretion (i.e., there are clear and objective standards). Type I decisions are not appealable.

Actions processed under the Type I procedure are listed in Table 18.10-A.

(3) Type II Action. Type II decisions are made by the City Planner, with public notice and an opportunity for appeal to the Planning Commission. Alternatively, the City Planner may refer a Type II application to the Planning Commission for its review and decision through a Type III procedure.

Actions processed under the Type II procedure are listed in Table 18.10-A.

(4) Type III Action. Type III decisions are made by the Planning Commission or Historic Commission after a public hearing, with an opportunity for appeal to the City Council. Type III decisions involve discretion but implement established policy.

Actions processed under the Type III procedure are listed in Table 18.10-A.

(5) Type IV Action. A Type IV action is a legislative review in which the City considers and enacts or amends laws and policies. Private parties may request a Type IV action; however, it must be initiated by the Planning Commission, or City Council. The City Council makes the final, local decision. MCC 18.10.050 lists the notice requirements and MCC 18.10.060 describes the hearing procedures.

Actions processed under the Type IV procedure are listed in Table 18.10-A.

Table 18.10-A Land Use Procedures and Applications Summary*
	Application Process			Review Authority
Land Use Application	Procedure Type	Preapplication Conference	Neighborhood Meeting	Decision	Appeal
Zoning checklist	None	None	None	Staff/Director	None
Type I Reviews
Floodplain development permit	Type I	Optional	Optional	Staff/Director	None
Historic alteration permit	Type I	Optional	Optional	Staff/Director	None
Home occupations (with on-site customers)	Type I	Optional	Optional	Staff/Director	None
Lot line adjustment	Type I	Optional	Optional	Staff/Director	None
Modification, minor	Type I	Optional	Optional	Staff/Director	None
Partition, minor	Type I	Optional	Optional	Staff/Director	None
Type II Reviews
Modification, major – Type II (see MCC 18.10.140)	Type II	Optional	Optional	Staff/Director	PC
Parking determination	Type II	Optional	Optional	Staff/Director	PC
Similar use determination	Type II	Optional	Optional	Staff/Director	PC
Site plan review	Type II	Optional	Required if 20 or more multidwelling units Optional if less than 20 multidwelling units	Staff/Director	PC
Variance, minor	Type II	Optional	Optional	Staff/Director	PC
Type III Reviews
Conditional use permit	Type III	Required	Optional	PC	CC
Design review	Type III	Required	Required if 50,000 SF or more Optional if less than 50,000 SF	PC	CC
Historic landmark demolition permit	Type III	Required	Optional	HC	CC
Historic landmark designation	Type III	Required	Optional	HC	CC
Modification, major – Type III (see MCC 18.10.140)	Type III	Required	Optional	PC	CC
Partition, major	Type III	Required	Optional	PC	CC
Planned unit development	Type III	Required	Required if 20 lots or more Optional if less than 20 lots	PC	CC
Subdivision	Type III	Required	Required if 20 lots or more Optional if less than 20 lots	PC	CC
Variance, major	Type III	Required	Optional	PC	CC
Zoning Map amendments (initiated by an applicant) (see Chapter 18.15 MCC)	Type III	Required	Required	PC	CC
Type IV Reviews
Annexations	Type IV	Required	Optional	CC	LUBA1
City plan document adoption, e.g., water system plan	Type IV	None	None	CC	LUBA1
Comprehensive Plan amendment (see Chapter 18.15 MCC)	Type IV	None	None	CC	LUBA1
Zoning Code and Zoning Map amendments (initiated by the City) (see Chapter 18.15 MCC)	Type IV	None	None	CC	LUBA1
* Applications are listed by type and alphabetically Notes: Staff/Director – City Planner/Community Development Director CC – City Council PC – Planning Commission HC – Historic Commission LUBA – Land Use Board of Appeals 1. The Land Use Board of Appeals (LUBA) is a state appeal authority and not a local decision-maker.

(Amended by Ord. 1260, January 3, 2008; Ord. 1299, November 15, 2011; Ord. 1408, § 1 (Exh. A), May 2, 2023. Code 1983 § 90.205.)

18.10.020 Application for land use actions.

Applications for all land use actions as defined in this title shall be filed with the City Planner. An application shall be submitted in writing on the form provided by the City Planner and shall include the following:

(1) Name, address and telephone number of the applicant;

(2) Name, address and telephone number, and signature of the owner of the record of the subject property;

(3) Name, address and telephone number, and signature of any agent acting on behalf of the applicant;

(4) Township, range, section, and tax lot number of the subject property;

(5) A legal description of the property (for zone change and Comprehensive Plan Map amendment applications only);

(6) All information specifically required on the application form;

(7) The fee for the land use action, as determined by order of the City Council;

(8) Other information required by this title or deemed necessary by the City Planner or Planning Commission. (Amended by Ord. 1260, January 3, 2008; Ord. 1352, § 1 (Exh. A), December 2, 2014; Ord. 1408, § 1 (Exh. A), May 2, 2023. Code 1983 § 90.210.)

18.10.030 Persons who may apply for a land use action.

An application for a land use action may be filed by any of the following:

(1) The owner of record of the property that is the subject of the request;

(2) A contract purchaser of the subject property; provided, that a written statement of the owner of record’s consent to the request accompanies the application;

(3) A lessee of the subject property; provided, that a written statement of the owner of record’s consent to the request accompanies the application; or

(4) The agent of any of the above persons. A written statement of the owner of record’s consent to the request and a written statement that the agent is authorized to act on behalf of the applicant must accompany any application made by an agent.

(5) For the purpose of this section, if the subject property is owned by more than one person, all owners of record must apply or consent to an application for a land use action. (Amended by Ord. 1408, § 1 (Exh. A), May 2, 2023. Code 1983 § 90.215.)

18.10.035 Preapplication conferences.

(1) The purposes of preapplication conferences are:

(a) To acquaint the applicant or representative with the requirements of this code, including relevant approval criteria, standards and procedures;

(b) To advise the applicant or representative of previous land use applications or earlier issues associated with the site; and

(c) To provide opportunity for the applicant and City staff to identify and resolve potential concerns at the earliest opportunity in the development process.

(2) Applicability. Preapplication conferences are required, prior to land use application submittal, for all Type III and Type IV actions. For all other types of actions, preapplication conferences are optional. Preapplication conferences are not required for actions initiated by the City.

(3) Preapplication Waiver. An applicant may request a waiver of the preapplication requirement if the following conditions are met:

(a) The application is a Type III application and does not trigger a traffic impact analysis per MCC 18.150.030.

(b) The applicant fills out a preapplication waiver request form and submits it to the City.

The City Planner will review the preapplication waiver request and notify the applicant of their decision within seven days of receiving the request.

(4) Procedures for Preapplication Conferences.

(a) Preapplication conferences are initiated by the applicant by submitting a completed preapplication conference request form and payment of fees. Applicable review material including a description of the proposed use, a site plan, building plans, utility plans, and other material related to the proposal shall be provided at the time of the request.

(b) City staff will coordinate attendance by other jurisdictions, service providers, and City departments, as appropriate. Applicants are responsible for obtaining information necessary for a complete application submittal from any department or agency not able to attend.

(5) At preapplication conferences, staff will review the preliminary project material and evaluate the project for compliance with applicable zoning, building, and public works standards.

(6) Staff Summary. After the meeting, staff will provide the applicant a written summary of items discussed at the preapplication conference within 15 days of the date of the meeting.

(7) Validity Period. If an application for a proposed development action is not submitted within 12 months of a preapplication conference on that development, or if the applicant chooses to modify a proposed development in such a way that additional code sections may be applicable, the applicant shall schedule a new preapplication conference.

(8) Disclaimer. The preapplication conference and staff summary do not constitute a land use decision, and information provided to an applicant is in no way binding upon the city. The preapplication conference does not preclude the applicability of standards, fees, reviews, or processes not identified during a preapplication conference to a subsequent land use application.

(9) Public. The preapplication request and staff summary may be reviewed, upon request, by any member of the public. The public does not have a right to attend, observe, or participate in the preapplication conference unless allowed by the applicant. (Ord. 1408, § 1 (Exh. A), May 2, 2023.)

18.10.037 Neighborhood review meeting.

(1) Purpose. The purpose of the neighborhood review meeting is to allow neighbors and interested persons an opportunity to become familiar with the proposal and to identify any associated issues. The neighborhood review meeting is intended to assist in producing applications that are responsive to neighborhood concerns and to reduce the likelihood of delays and appeals. An applicant is encouraged to revise proposed development plans in response to input received at a neighborhood meeting; however, no revisions are required except to the extent necessary to meet applicable code standards or criteria.

(2) Applicability. A neighborhood review meeting is required for the following types of land use applications:

(a) Subdivisions with 20 or more lots;

(b) Applicant-initiated zone changes and plan amendments;

(d) Design review for projects with more than 50,000 square feet of building area;

(e) Site plan review for multidwelling developments with 20 or more units.

(3) Process. Prior to submitting a land use application requiring a neighborhood review meeting, the applicant shall arrange and attend one neighborhood review meeting for the purpose of sharing their proposal with the neighbors prior to application submittal. For consolidated land use applications where at least one application type requires a neighborhood review meeting, the applicant shall present all applications at the meeting. The neighborhood review meeting shall be open to the public and shall be arranged, publicized, and conducted as follows:

(a) Date and Time. The neighborhood review meeting shall:

(i) Be held not more than six months prior to land use application submittal and at least 14 days after providing mailed and posted notice as required in this title.

(ii) Be held at a time between 5:30 p.m. and 9:00 p.m. Monday through Friday, or between 9:00 a.m. and 9:00 p.m. on Saturday or Sunday; and

(iii) Shall not be held on a legal holiday.

(b) Location. The neighborhood review meeting shall be held at a location open to the public and in compliance with the Americans with Disabilities Act.

(c) Written Notice. At least 14 days prior to the meeting, the applicant shall provide written notice of the neighborhood review meeting to:

(i) The City Planner.

(ii) All property owners and mailing addresses within 250 feet of the subject site. Upon request by the applicant, the City will provide a list of addresses that must be notified.

(iii) Written notice shall include:

(A) The name, telephone number, and email address of the applicant or applicant representative;

(B) The address of the subject property;

(D) The date, time, and location of the neighborhood review meeting;

(E) A summary of the proposal; and

(F) A conceptual site plan, if applicable, that includes the proposed development.

(d) Posted Notice. Posted notice of the neighborhood review meeting shall be provided as follows:

(i) The applicant shall post notice on the property affected by the proposal a minimum of 10 days prior to the meeting.

(ii) The posted notice shall:

(A) Be made of weatherproof materials to preserve the sign’s legibility during posting;

(B) Be posted on each street frontage of the subject property in a place that is visible from the public right-of-way. If no street abuts the subject property, the notice shall be placed as near as possible to the subject property in a place that can be readily seen by the public;

(D) Contain the following information:

1. The name, telephone number, and email address of the applicant or representative;

2. The address of the subject property;

3. The date, time, and location of the neighborhood review meeting;

4. A brief summary of the proposal.

(e) Demonstration of Compliance. The applicant shall include the following in all land use application submittals that require a neighborhood review meeting:

(i) A copy of the notice sent to surrounding property owners and mailing addresses.

(ii) A copy of the mailing list used to send out meeting notices.

(iii) A written statement containing the information posted on the property (a photograph of the sign posted on the site will meet this requirement).

(iv) An affidavit of mailing and posting notices.

(v) Copies of written materials and eight and one-half inch by 11 inch size plans presented at the neighborhood review meeting.

(vi) Notes of the meeting, including the meeting date, time, and location, the name and address of those attending, and a summary of oral and written comments received.

(vii) If responses to the meeting notice were not received by the applicant and no one attended the neighborhood review meeting or persons in attendance made no comments, the applicant shall submit evidence as indicated above, with the notes reflecting the absence of comment, attendance, or both.

(f) Failure of a property owner to receive notice shall not invalidate the neighborhood review meeting proceedings. (Ord. 1408, § 1 (Exh. A), May 2, 2023.)

18.10.040 General provisions.

In order to provide for citizen review of the planning process and the orderly keeping of records of actions relating to this title, the City shall ensure that the following measures are maintained and available for public review:

(1) City staff shall prepare a written report relating to all applications and actions pursuant to this title.

(2) The City shall maintain a record of all actions taken pursuant to this title. The record shall include the required application materials, any exhibits presented to the decision-making bodies, findings for approval or denial, conditions of approval, and any other materials that may have a bearing on the decision.

(3) Citizen and Agency Involvement. The City shall provide opportunities for public and agency input in the planning process. To ensure that there is a coordinated effort to permit land use projects, when applicable, notice shall be sent to interested agencies such as City departments, police and fire departments, school district, utility companies, and City, County, and State agencies. Affected jurisdictions and agencies include Polk County, Mid-Willamette Valley COG, the Department of Environmental Quality, the Oregon Department of Transportation, the City of Independence, and other affected or interested local, State or Federal agencies. The City shall give notice to the Oregon Department of Transportation (ODOT) regarding any proposed land use action within 250 feet of a State transportation facility.

Information conveyed to reviewing agencies and jurisdictions shall include the project location, proposed land use action, and the location of project access points.

(4) Completeness. Upon receipt of a land use application, City staff shall review the application for completeness with respect to the submission requirements of this title. If the application is incomplete, staff shall notify the applicant of exactly what information is missing within 30 days of the receipt of the application and allow the applicant to submit the missing information. The applicant has 180 days from the date of first submittal to provide one of the responses required under subsection (4)(a) of this section.

(a) An application will be deemed complete by the City if City staff determines, upon review of the application, that it includes the submission requirements of this title or, in the case of an application that the staff has found to be incomplete on filing, upon submission of any of the following:

(i) All of the missing information.

(ii) Some of the missing information and written notice from the applicant that no other information will be provided.

(iii) Written notice from the applicant that none of the missing information will be provided.

(b) If an applicant receives notice that the application is incomplete and fails to provide one of the responses required under subsection (4)(a), of this section, within 180 days from the date of first submittal, the application will be deemed void. The City will not refund application fees for voided applications. The applicant may resubmit a voided application to the City; however, it will be treated as a new application and will be subject to all current fees, development standards, approval criteria, and submittal requirements.

(c) Information submitted to the City after the date the application is determined to be or deemed complete that constitutes a substantial change from the original application shall authorize review as a new application. The City Planner shall determine whether a submission constitutes a substantial change from the original application.

(5) Type I. This subsection establishes the procedures to be followed in Type I actions. Applications subject to Type I review shall be reviewed and decided by the City Planner.

(a) Within 30 days of an application being deemed complete, or such longer period mutually agreed to by both staff and the applicant, staff shall review the application and shall make a decision based on an evaluation of the proposal and on applicable criteria as set forth in this title.

(b) Written notice of any Type I decision shall be mailed to the applicant.

(d) The timing requirements established in this subsection are intended to allow a final action within 120 days from the date the City deems the application complete.

(6) Type II Actions. This subsection establishes the procedures to be followed in Type II land use actions.

(a) Once the application is deemed complete, notice of the application will be sent to interested agencies such as City departments, school district, utility companies, and applicable State agencies.

(b) Notice of the application will be sent to all property owners of record within 250 feet of the subject property. Property owners who receive notice will have 14 days to respond with written comments prior to issuance of a decision.

(c) If the staff finds that the facts of the particular case require interpretation of existing standards, then the application may be forwarded to the Planning Commission for review. The procedures for conducting the public hearing shall comply with the standards in MCC 18.10.060.

(d) If staff does not forward the application to the Planning Commission for review, then within 30 days of being deemed complete, or such longer period mutually agreed to by both staff and the applicant, staff shall make a decision based on an evaluation of the proposal and on applicable criteria as set forth in this title.

(e) Written notice of any Type II decision shall be mailed to the applicant and any person that requested a copy of the decision. The decision shall include a summary of the appeal process, including the appeal deadline, appeal fee, and instructions for submitting an appeal.

(f) Conditions of Approval. Approvals of any Type II action may be granted subject to conditions. The following limitations shall be applicable to conditional approvals:

(i) Conditions shall be related to the following:

(A) Protection of the public from the potentially deleterious effects of the proposed use; or

(B) Fulfillment of the need for public service demands created by the proposed use.

(ii) Changes or alterations of conditions shall be processed consistent with the level of review provided for the original approval.

(iii) Whenever practical, all conditions of approval required by the City shall be completed prior to the issuance of an occupancy permit. When an applicant provides information that demonstrates to the satisfaction of the City that it is not practical to fulfill all conditions prior to issuance of such permit, the City may require a performance guarantee to ensure compliance with zoning regulations or fulfillment of required conditions.

(g) A Type II land use decision may be appealed to the Planning Commission by the applicant or other interested party. The appeal must be filed within 12 days from the date of the decision, pursuant to the provisions of MCC 18.10.090.

(h) The timing requirements established in this subsection are intended to allow a final action, including resolution of any appeals, within 120 days from the date the City deems the application complete. If for any reason it appears that such final action may not be completed within the 120-day period, unless the time period is voluntarily extended by the applicant, the following procedures shall be followed regardless of other processes set forth elsewhere in this title:

(i) The City staff shall notify the Planning Commission of the time conflict by the ninety-fifth day. The Planning Commission shall, in accordance with its own procedures, set a time for a meeting within the 120-day period.

(ii) Public notice shall be mailed to affected parties as specified in this section.

(iii) The Planning Commission shall hold a public hearing on the specified date and render a decision approving or denying the request within the 120-day period. Such action shall be the final action by the City on the application.

(7) Type III Actions. This subsection establishes the procedures to be followed in Type III land use actions.

(a) Combination of Review Procedures. Applications for more than one Type III land use action for the same property may, at the applicant’s discretion, be combined and heard or reviewed concurrently.

(b) Application Review. After notice has been given pursuant to MCC 18.10.050, Type III applications shall be heard by the Planning Commission or Historic Commission at a public hearing conducted in accordance with the provisions of MCC 18.10.060.

(c) Review Standards. If an application for a Type III land use action was complete when first submitted, or if the applicant submits the requested additional information within 180 days of the original submittal date, 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.

(d) Written notice for all Type III decisions shall be sent to the applicant and all individuals who provided testimony at the public hearing or requested notice of the decision. Notice shall specify findings justifying the approval or denial of the request and any applicable conditions of approval.

(e) A Type III land use decision of the Planning Commission or Historic Commission may be appealed to the City Council, pursuant to the provisions of MCC 18.10.090.

(f) The timing requirements established in this subsection are intended to allow a final action, including resolution of any appeals, within 120 days from the date the application is deemed complete. If for any reason it appears that such final action may not be completed within the 120-day period, unless the time period is voluntarily extended by the applicant, the following procedures shall be followed regardless of other processes set forth elsewhere in this title.

(i) City staff shall notify the City Council of the time conflict by the ninety-fifth day. The City Council shall, in accordance with its own procedures, set a time for a meeting within the 120-day period.

(ii) Public notice shall be mailed to affected parties as specified in this section.

(iii) The City Council shall hold a public hearing on the specified date and render a decision approving or denying the request within the 120-day period. Such action shall be the final action by the City on the application.

(g) Conditions of Approval. Approvals of any Type III action may be granted subject to conditions. The following limitations shall be applicable to conditional approvals:

(i) Conditions shall be related to the following:

(A) Protection of the public from the potentially deleterious effects of the proposed use; or

(B) Fulfillment of the need for public service demands created by the proposed use.

(ii) Changes or alterations of conditions shall be processed consistent with the level of review provided for the original approval.

(8) Type IV Actions. This subsection establishes the procedures to be followed by the City in the consideration of Type IV land use actions.

(a) Initiation. A Type IV legislative land use action may be initiated by a majority vote of either the Planning Commission or the City Council.

(b) Procedures. Legislative land use actions shall be heard by the Planning Commission at a public hearing conducted in accordance with the provisions of MCC 18.10.060. Public notice shall be in accordance with the procedures set forth in MCC 18.10.050. The Planning Commission may continue any meeting in order to make a reasonable recommendation to the City Council. Following Planning Commission action, the City Council shall hold a public hearing to consider the Planning Commission’s recommendation on proposed amendments pursuant to the notification requirements of MCC 18.10.050 and the hearing procedures of MCC 18.10.060. (Amended by Ord. 1275, June 16, 2009; Ord. 1299, November 15, 2011; Ord. 1408, § 1 (Exh. A), May 2, 2023. Code 1983 § 90.220.)

18.10.050 Notice for public hearings.

Whenever a public hearing is required under this title, the City Planner shall give notice of all public hearings before the Planning Commission or the City Council in the following manner:

(1) Notice of public hearing on a land use action shall be sent by first class mail to all mailing addresses and property owners of record within 250 feet of the property. Such notice shall be sent at least 20 days before the hearing. Notice shall also be provided to any neighborhood or community organization recognized by the City and whose boundaries include the site.

(2) The failure of any property owner of record within the notification area to receive such notice shall not affect the validity of any subsequent hearing or proceedings. Notice of the public hearing shall indicate the following:

(a) Explain the nature of the application and the proposed use or uses, which could be authorized;

(b) List the applicable criteria from the Zoning Ordinance and the Comprehensive Plan that apply to the application at issue;

(d) State the date, time and location of the hearing;

(e) State that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide sufficient specificity to afford the decision maker an opportunity to respond to the issue precludes appeal to the land use board of appeals based on that issue;

(f) Include the name of a City representative to contact and the telephone number where additional information may be obtained;

(g) State 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 will be provided at reasonable cost;

(h) 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;

(i) Include a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings; and

(j) State that failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow the local government or its designee to respond to the issue precludes an action for damages in circuit court.

(3) At least one sign shall be posted on the subject property or on a public right-of-way adjoining the property. Such a sign shall be placed so that it can be seen readily and shall face a public street if the subject property adjoins a public street. Such a sign shall have an area of at least 90 square inches and shall bear the words “Notice of Public Hearing Affecting This Area” in letters at least one inch high. Such a sign shall be provided by the City to the applicant at the time the application is received. It shall be the responsibility of the applicant to post such a sign at least 10 days prior to the public hearing and during the appeal period following the public hearing. The applicant shall remove such sign at the conclusion of the appeal period.

(4) Legislative Hearings (Type IV). Notice of public hearing by the Planning Commission or City Council relating to any legislative action shall be published in a newspaper of general circulation a minimum of 10 days prior to the date of the hearing.

(5) For Type III and Type IV plan amendments and zone changes, notice shall be provided to the Department of Land Conservation and Development at least 35 days prior to the first evidentiary hearing consistent with ORS 197.610.

(6) For land use regulations that would affect permitted uses of property, a Measure 56 notice shall be provided consistent with ORS 227.186.

(7) The requirements for public notice stated in this chapter shall be construed to be the minimum measures necessary to notify the public of a request for a land use action. Nothing in this chapter shall prohibit additional notification measures deemed necessary by the City Council, Planning Commission or City Manager. (Amended by Ord. 1408, § 1 (Exh. A), May 2, 2023. Code 1983 § 90.225.)

18.10.060 Conduct of public hearings.

The Planning Commission or City Council shall hear and decide upon requests for land use actions in accordance with the following procedures:

(1) Applicant’s Documents and Evidence. All documents or evidence relied upon by the applicant shall be submitted to the City and be made available to the public at the time notice of the public hearing is mailed. If additional documents or evidence is provided in support of the application, any party shall be entitled to a continuance of the hearing. Delays caused by the allowance of such a continuance shall extend any deadlines within which the City is required to complete final action on a land use application.

(2) Staff Reports. Any staff report to be used at a public hearing shall be available at City Hall at least seven days prior to the hearing.

(3) Commencement of Hearing. At the commencement of the public hearing, a statement shall be made to those in attendance that:

(a) Lists the applicable substantive criteria;

(b) States that testimony and evidence must be directed toward the criteria described in subsection (3)(a) of this section or other criteria in the Comprehensive Plan or Zoning Ordinance which the person believes to apply to the decision;

(c) States that failure to raise an issue with sufficient specificity to afford the decision maker and the parties an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals (LUBA) based on that issue; and

(d) State that failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow the local government or its designee to respond to the issue precludes an action for damages in circuit court.

(4) Proponents and opponents of the request shall have an opportunity to present and rebut evidence at the hearing.

(5) Applicants for and proponents and opponents of a land use action may be represented at the hearing by legal counsel.

(6) The Planning Commission and the City Council shall establish procedures for the conduct of hearings. Hearings shall be conducted in accordance with those procedures. A written description of such procedures shall be kept at the place of the hearing and shall be available to all persons at the hearing.

(7) Close of Record. Unless there is a continuance, if a participant so requests before the conclusion of the initial evidentiary hearing, the record shall remain open for at least seven days after the hearing. Delays caused by keeping the record open under this subsection shall extend any deadlines within which the City is required to complete final action on a land use application.

(8) If the record of a public hearing is reopened to admit new evidence or testimony, any person may raise new issues, which relate to the new evidence, testimony or criteria for decision-making, which apply to the matter at issue.

(9) Members of the Planning Commission and City Council shall disclose any ex parte contacts made with any person interested in the request being heard.

(10) Any decision made by the Planning Commission or City Council on a request for a land use action shall be supported by findings. Such findings shall indicate the facts and reasons used to make the decision.

(11) The Planning Commission or City Council may grant, deny, continue, or table any request for a land use action. Written notice of the Planning Commission’s action shall be sent to the applicant, persons participating in the hearing, persons who have requested a copy of the decision, and to the City Council within 10 days of the Planning Commission’s action.

(12) Any public hearing may be continued prior to the closing of the hearing. Notice of the time and place at which the hearing is to be resumed shall be publicly announced during the initial hearing. Such announcement shall serve as sufficient notice of the continuance to all interested persons. (Code 1983 § 90.230.)

18.10.070 Resubmission of requests.

Any request for a land use action which has been denied by the Planning Commission or City Council shall not be resubmitted for a period of one year following the notice of decision mailing date, unless consent for resubmission is approved by the Planning Commission or the City Council. (Code 1983 § 90.235.)

18.10.080 Rescission of a land use action.

Any land use action granted under this title may be rescinded by the Planning Commission or City Council if it is found that the application for such action contains false statements, or if subsequent division, development, or use of land occurs in a manner different from that that was approved. (Code 1983 § 90.240.)

18.10.090 Appeal of Planning Commission actions.

(1) Appeal. Any land use action or ruling made by the Planning Commission in accordance with the provisions of this title may be appealed to the City Council. Such an appeal shall be filed, in writing on a form provided by the City, within 12 days of the date of the Planning Commission decision. If no appeal is filed within the time specified, the Planning Commission’s decision is final.

(2) Standing to Appeal. Appeals may be filed by any person meeting the following qualifications:

(a) Filed notice of intent to appeal the decision as provided in subsection (1) of this section;

(b) Appeared before the Planning Commission, either personally or in writing; or obtains a waiver from City Council that because of factors beyond the person’s control was unable to attend the hearing;

(i) Was entitled to notice of the Planning Commission hearing; or

(ii) Is aggrieved or has interests adversely affected by the decision.

(3) Review. Any decision of the Planning Commission may be called up for review by the City Council. Reviews by Council shall be treated as appeals as set forth below except that no fee shall be charged.

(4) Procedure. If an appeal is filed, the City Council shall be given a report of the Planning Commission’s action or ruling. The City Council shall hold a public hearing of the appeal. Notice for such a public hearing shall be provided in accordance with the provisions for public hearing set forth in this title. The public hearing of an appeal shall be conducted in accordance with the procedures for public hearings set forth in this title. The decision of the City Council regarding any appeal shall be final and shall become effective on the date of the City Council’s action on the appeal.

(5) Fees. Fees for filing appeals shall be set by resolution from time to time by the City Council. (Amended by Ord. 1352, § 1 (Exh. A), December 2, 2014. Code 1983 § 90.245.)

18.10.100 Supplemental application for remaining permitted uses following denial of an initial application.

(1) A person whose application for a permit is denied by the City may submit to the City a supplemental application for any or all other uses allowed under the City’s Comprehensive Plan and land use regulations in the zone that was the subject of the denied application.

(2) The City or its designee shall take final action on a supplemental application submitted under this section, including resolution of all appeals, within 240 days after the application is deemed complete. Except that 240 days shall substitute for 120 days, all other applicable provisions of ORS 227.178 (“the 120-day rule”) shall apply to a supplemental application submitted under this section.

(3) A supplemental application submitted under this section shall include a request for any rezoning or variance that may be required to issue a permit under the City’s Comprehensive Plan and land use regulations.

(4) The City shall adopt specific findings describing the reasons for approving or denying:

(a) A use for which approval is sought under this section; and

(b) A rezoning or variance requested in the application. (Code 1983 § 90.250.)

18.10.110 Site plan review.

(1) Applicability of Provisions. Site plan review shall be applicable to all new developments and major remodeling of existing developments except as follows:

(a) Single-detached dwellings;

(b) A duplex, triplex, townhome, or cottage cluster;

(c) Any commercial or industrial site alteration or building remodel that does not exceed 25 percent of the total square footage of the site or structure; or

(d) Any development or redevelopment that is subject to design review per MCC 18.10.120.

(2) Site plan review is also required for new multidwelling development that meets the clear and objective standards of MCC 18.50.050.

(3) For developments subject to site plan review, no building permit shall be issued for that development until site plan review has been approved.

(4) Review Process. Site plan review shall be conducted through a Type II procedure, pursuant to MCC 18.10.010(3).

(5) Review Criteria. An application for site plan review shall be approved if the proposal meets all of the following criteria:

(a) The proposal complies with all of the applicable provisions of the underlying zone, including, but not limited to, building and yard setbacks, lot area and dimensions, density and floor area, lot coverage, building height, building orientation, architecture, and other applicable standards;

(b) The proposal complies with all applicable development and design standards of this code, including, but not limited to:

(i) Chapter 18.30 MCC, Special Use Standards;

(ii) Chapter 18.130 MCC, Parking;

(iii) Chapter 18.145 MCC, Landscaping and Street Trees;

(iv) Chapter 18.150 MCC, Transportation Improvements;

(c) The proposal meets all existing conditions of approval for the site or use, as required by prior land use decision(s), as applicable. (Amended by Ord. 1260, January 3, 2008; Ord. 1352, § 1 (Exh. A), December 2, 2014; Ord. 1408, § 1 (Exh. A), May 2, 2023. Code 1983 § 90.255.)

18.10.120 Design review.

(1) Purpose. The purpose of design review is to preserve and enhance the character of multidwelling developments and the commercial areas within the three districts described below and to ensure the physical and operational characteristics of proposed buildings and uses are compatible with buildings in the district. The attractiveness and economic vitality of a downtown is largely a reflection of the shape, placement, design and quality of its buildings and sites. These guidelines seek to improve each district by establishing a development pattern in which new buildings and building remodels enhance the existing town environment and promote harmony.

Design review is also intended to ensure that industrial developments meet all applicable standards while minimizing potential health and safety hazards.

(2) Applicability. Design review approval is required for the following types of proposals:

(a) All new and major redevelopment of commercial structures in the three districts described below. Major redevelopment is any site or building alteration that exceeds 25 percent of the total square footage of the site or building.

(i) Downtown District. The area encompassed by Jackson Street, Clay Street, Pacific Highway and Monmouth Avenue.

(ii) Pacific Highway District. Commercial highway zoned property along Pacific Highway, from Church Street to Gwinn Street.

(iii) E. Main Street – Highway 51 District. Highway 51 from Pacific Highway east to the City limits.

(b) Multidwelling developments that do not meet the clear and objective standards for multi-dwelling development in MCC 18.50.050.

(c) Proposals in industrial zones for new development and significant alteration of existing industrial developments. Any industrial site alteration or building remodel that does not exceed 25 percent of the total square footage of the site or structure is exempt from the design review process and is instead subject to a Type II site plan review per MCC 18.10.110.

(3) Process. Design review shall be conducted by the Planning Commission through a Type III review procedure pursuant to MCC 18.10.010(4).

(4) Design Review Approval Criteria. In reviewing applications for design review, the following criteria shall apply.

General commercial and multidwelling development standards in all districts:

(a) Architectural Style.

(i) Architectural character is to be in harmony with the buildings in and be compatible with the developing character of the district.

(ii) Compatibility shall be achieved through such techniques as the repetition of roof lines; the use of similar proportions in building mass, outdoor spaces and landscaping; similar window and door patterns; and similar use of building materials, colors and textures.

(iii) Buildings that are stylized in an attempt to use the building itself as advertising or are a franchise style shall be discouraged.

(b) Exterior and Finishing Materials. Exterior and finishing materials shall either be similar to the materials already being used in the district, or other characteristics, such as scale, proportion, form, architectural detailing, color and texture shall be used to ensure that sufficient similarity exists for the building to be compatible, despite the difference in materials.

(c) Window. Clear or lightly tinted glass shall be used for commercial storefront display windows and doors. Windows shall be individually defined with detail elements such as frames, sills and lintels, and be placed to visually establish and define the building stories.

(d) Building Color.

(i) Paint and building materials shall blend into the neighborhood.

(ii) Conduit, meters, vents and other equipment attached to the building or protruding from the roof shall be painted to match the building surfaces.

(iii) All rooftop mechanical equipment shall be screened from public view from both above and below by integrating it into the building and roof design to the maximum extent feasible.

(e) Land Use Transition. When significantly different land uses are proposed adjacent to each other, the development plan shall achieve compatibility through compliance with the standards set forth above and by using mitigating techniques such as buffering, landscaping, limits on hours of operation and deliveries, lighting, placement of noise generating activities, placement and illumination of outdoor vending machines and similar techniques.

(5) Specific District Standards.

(a) Downtown District.

(i) The heritage, history and architecture of existing buildings should be preserved.

(ii) Store fronts are to be oriented to the sidewalk. Primary facades and entries shall face the adjacent street with a direct connection to the adjoining sidewalk.

(iii) Parking is to be on the street or in the rear of the business.

(iv) In infill downtown development, a building shall be similar in size and height, or if larger, be subdivided so that it is proportional to the mass and scale, of other buildings in the district.

(b) Pacific Highway District.

(i) Landscaping is required.

(ii) Shared parking facilities are encouraged.

(iii) Building orientation is to emphasize pedestrian access. Entries are to front directly onto the sidewalk or are located to facilitate pedestrian access from street perimeter sidewalks.

(iv) Provide safe walkways from parking areas to the business, which separate pedestrian and vehicular traffic.

(v) Parking facilities are encouraged to be in the interior of the lot or block.

(vi) Landscaping shall be designed to reinforce and enhance the streetscape.

(i) Aesthetically appropriate landscaping is required.

(ii) Shared parking facilities are encouraged.

(iii) Building orientation is to emphasize pedestrian access. Entries are to front directly onto the sidewalk or are located to facilitate pedestrian access from street perimeter sidewalks.

(iv) Provide safe and aesthetically appropriate walkways from parking areas to the business, which separate pedestrian and vehicular traffic.

(v) Parking facilities are encouraged to be in the interior of the lot or block.

(vi) Landscaping shall be designed to reinforce and enhance the streetscape.

(d) Industrial Developments. Industrial developments shall demonstrate compliance with all of the applicable development standards of the applicable industrial zone, including design review standards and industrial performance standards. Recreational marijuana production and processing facilities, testing laboratories, and wholesale sales facilities shall demonstrate compliance with the applicable standards from MCC 18.30.040. (Amended by Ord. 1260, January 3, 2008; Ord. 1372, § 1 (Exh. A), February 7, 2017; Ord. 1374 § 1 (Exh. A), June 20, 2017; Ord. 1408, § 1 (Exh. A), May 2, 2023. Code 1983 § 90.260.)

18.10.130 Approval, expiration, and extension.

(1) Expiration of Approval. All decisions on Type I applications shall expire one year after the date of approval. Type II and Type III land use decisions shall expire two years after the date of approval.

(2) Extensions. Approvals may be extended up to six months upon submission of written request to the original decision-making authority. One extension of the approval period, not to exceed six months, will be granted provided that:

(a) No changes are made on the original plan as approved; and

(b) There have been no changes in the ordinance provisions on which the approval was based. (Ord. 1408, § 1 (Exh. A), May 2, 2023.)

18.10.140 Modifications to approved plans and conditions.

(1) Purpose. The purpose of this section is to provide an efficient process for modifying land use decisions and approved development plans, in recognition of the cost and complexity of land development and the need to conserve City resources.

(2) Applicability. This section applies when an applicant proposes to modify an approved application or condition of approval.

(3) Minor Modifications. The City Planner through a Type I procedure shall review proposals for minor modifications. Minor modifications include technical corrections to comply with codes and regulations, and changes that do not meet the thresholds of a major modification in subsection (4) of this section, as determined by the City Planner.

(a) Minor Modification Application. An application for minor modification shall include an application form, filing fee, letter describing the modification, and site plan using the same plan format as in the original approval. The City Planner may require other relevant information, as necessary, in evaluating the request.

(b) Minor Modification Approval Criteria. The City Planner shall approve or deny an application for minor modification based on findings of compliance or noncompliance with the applicable requirements of the Development Code and the conditions of approval of the original decision.

(4) Major Modifications. Major modifications are subject to the same procedure type as the original application. Any one of the following changes constitutes a major modification:

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

(b) An increase in floor area in a commercial or industrial development, or an increase in the number of dwelling units in a multidwelling development, by 20 percent or more;

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

(e) Change to a condition of approval, or a change similar to subsections (4)(a) through (d) of this section, that could have a detrimental impact on adjoining properties. The City Planner shall have discretion in determining detrimental impacts triggering a major modification; or

(f) Other changes similar to those in this subsection (4) in scale, magnitude, or impact to adjacent properties, as determined by the City Planner.

(5) Major Modification Approval Criteria. Requests for major modifications shall comply with the following procedures and criteria:

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

(b) The application shall be subject to the same approval criteria used for the initial project approval; except that a modification adding a conditional use to a project approved without a conditional use shall require findings in conformance with Chapter 18.25 MCC;

(c) The scope of review shall be limited to the modification request. For example, a request to modify a commercial development’s parking lot shall require review only for the proposed parking lot and any changes to associated access, circulation, and similar modifications.

(d) The Planning Commission shall approve, deny, or approve with conditions an application for major modification based on written findings on the applicable code criteria (e.g., subdivision, site design review, conditional use, etc.). (Ord. 1408, § 1 (Exh. A), May 2, 2023.)

18.10.150 Parking determinations.

This section allows for the modification of minimum parking ratios from the table in MCC 18.130.040. Parking determinations shall be made when the proposed use is not listed in MCC 18.130.040 and for developments that demonstrate parking demands that are lower than the minimum required.

(1) Applicability. The procedures of this section shall apply in the following situations:

(a) If the proposed use is not listed in MCC 18.130.040 and the quantity requirements for a similar listed use cannot be applied.

(b) If the applicant seeks a modification from the minimum required quantities as calculated pursuant to MCC 18.130.040.

(2) Application. Determination of parking ratios in situations listed above shall be reviewed as a Type II land use decision, per MCC 18.10.010. The application for a determination must include the following:

(a) Describe the proposed uses of the site, including information about the size and types of the uses on site, and information about site users, including employees, customers, and residents.

(b) Identify factors specific to the proposed use and/or site, such as the proximity of transit, parking demand management programs, availability of shared parking, and/or special characteristics of the customer, client, employee, or resident population that affect parking demand.

(c) Provide data and analysis to support the determination request. The City Planner may waive requirements of this subsection if the information is not readily available or relevant, so long as sufficient documentation is provided to support the determination request. Supporting data may include:

(i) Analyze parking demand information from professional literature that is pertinent to the proposed development. Such information may include data or literature from the Institute of Transportation Engineers, American Planning Association, Urban Land Institute, or other similar organizations.

(ii) Review parking standards for the proposed use or similar uses found in parking regulations from other jurisdictions.

(iii) Present parking quantity and parking use data from existing developments that are similar to the proposed development. The information about the existing development and its parking demand shall include enough detail to evaluate similarities and differences between the existing development and the proposed development.

(iv) Identify factors specific to the site, such as the preservation of trees or natural resource areas.

(v) For middle housing, provide occupancy and use data quantifying conditions of the on-street parking system within 200 feet of the subject site.

(vi) Proximity to public transit.

(vii) Provision or availability of bike share option.

(d) Propose a minimum parking ratio. For phased projects, and for projects where the user mix is unknown or subject to change, the applicant may propose a range (low and high number of parking spaces) for each development phase and a minimum number of parking spaces to be provided at buildout of the project.

(e) Address the approval criteria in subsection (3) of this section.

(3) Approval Criteria. The City Planner shall consider the following criteria in deciding whether to approve the determination. The City Planner, based on the applicant’s materials, shall set the minimum parking requirement. Conditions of approval may be placed on the decision to ensure compliance with the parking determination.

(a) All determinations must demonstrate that the proposed parking quantities are reasonable based on existing parking demand for similar use in other locations, parking quantity requirements for the use in other jurisdictions, and professional literature about the parking demands of the proposed use.

(b) The use, frequency, and proximity of transit, parking demand management programs, and/or special characteristics of the site users will reduce expected vehicle use and parking space demand for the proposed use or development, as compared with the standards in MCC 18.130.040. (Ord. 1408, § 1 (Exh. A), May 2, 2023.)