Chapter 18.190 APPEALS

Chapter 18.190
APPEALS

Sections:

18.190.010 Appeals of city administrator decision.

18.190.020 Review of planning commission decision.

18.190.040 Amendments to land use actions.

18.190.010 Appeals of city administrator decision.

(1) Any action taken by the city administrator in the interpretation, administration or enforcement of this title shall be subject to review by the planning commission.

(2) Any person or entity who would have been entitled to notice, or a person who is adversely affected or aggrieved by the city administrator’s decision, may file a timely written statement to appeal a decision of the city administrator relative to an administrative action. In the conduct of an appeal hearing, the planning commission shall establish that the appellant is qualified as a party as defined by this title, or the appeal shall not be heard and the contested decision shall become final.

(3) The planning commission may review the action of the city administrator upon its own motion by resolution filed within 12 days of the city administrator’s decision, or upon receipt of a notice of appeal as prescribed herein. For the purpose of this section, an appeal shall be filed with the city administrator no later than 12 days following the date of the decision or action of the city administrator.

(4) Every notice of appeal shall contain:

(a) A reference to the application sought to be appealed.

(b) The date of the final decision on the action.

(d) The specific facts from the record of the hearing which form the basis of the petitioner’s request for review.

(5) The appeal shall be accompanied by the required fee, as designated in the city of Myrtle Creek handbook of fees and charges.

(6) At least 20 days prior to the date of the planning commission meeting, the city administrator shall give notice as provided by MCMC 18.185.170 and 18.185.180 of the time and place of the meeting to all interested persons to the case.

(7) Members of the planning commission shall neither:

(a) Communicate, directly or indirectly, with any party or representative in connection with any issue related to the appeal except upon notice and opportunity for all parties to participate; nor

(b) Take notice of any communication, reports, staff memoranda, or any other materials prepared in connection with the particular case, unless the parties are afforded an opportunity to review the material so noticed.

(8) During the course of the review, the city administrator or the city administrator’s designee shall first present to the planning commission the decision and the reasons for such action. The appellant then may present his argument and may call witnesses to give additional testimony.

(9) Appeal of an administrative decision to the planning commission shall be conducted as a new hearing without prejudice (de novo hearing).

(10) The review shall be accomplished in accordance with the provisions of this title. The planning commission may continue the appeal hearing to a specified time to gather additional evidence or to consider the application fully, or to allow a party to respond. Unless otherwise provided by the planning commission, no additional notice need be given of continued hearings if the matter is continued to a specific date.

(11) The planning commission shall act upon appeal within 30 days of filing thereof, unless such time limitation is extended with the consent of the applicant; provided, that unless otherwise ordered by the planning commission, the city administrator shall forward such appeals in the order in which they are filed.

(12) Any person wishing to subpoena or depose witnesses to an appeal may do so by application to the city administrator not less than seven days prior to the hearing, and by showing that the witness resides in Oregon, is unable or unwilling to appear, and his testimony is material and relevant. Such subpoenas or depositions shall be enforceable upon proper completion and inclusion of those fees applicable to civil cases in the Douglas County circuit court.

(13) All evidence offered may be received. Evidence received at any hearing shall be of the quality that reasonable persons rely upon in the conduct of their everyday affairs. All evidence received shall become a part of the record of the hearing.

(14) The planning commission may affirm, reverse or modify the action of the city administrator and may reasonably grant approval subject to conditions necessary to carry out the purpose and intent of this title.

(a) For all cases, the planning commission shall make a decision based upon the findings and conclusions from the record of the hearing.

(b) The planning commission shall make its decision upon the close of its hearing, or upon continuance of the matter to a specific date.

(c) Only those members of the planning commission reviewing the entire record may act on the matter reviewed. Upon failure of a majority of a quorum to agree, the decision of the lesser authority shall stand.

(d) The city administrator shall send a copy of the planning commission’s final written decision to all parties to the appeal within seven days of said decision and shall, at the same time, file a copy of the planning commission’s final order in the records of the city.

(e) If a request is denied by the planning commission, and no higher local authority reverses such denial upon appeal, no new application for the same or substantially similar action shall be filed for at least 12 months from the date of the final order on the action denying the application. [Ord. 508 § 9.05.1, 1982].

18.190.020 Review of planning commission decision.

(1) Ten days from the date of the written decision of the planning commission, the decision shall become effective, unless review is sought pursuant to this section.

(2) Review of the decision of the planning commission:

(a) Shall be made by the city council upon any party filing a notice of review with the city administrator within 10 days of the filing of the written decision sought to be reviewed. Review by the city council shall be conducted pursuant to MCMC 18.190.030.

(b) May be made by the city council on its own motion passed within 10 days of the filing of the written decision sought to be reviewed. Review by the city council shall be conducted pursuant to MCMC 18.190.030.

(3) Notice of the time and place of the review, together with any notice of review filed, shall be mailed to all parties at least 10 days prior to the date of review by the city council.

(4) A record of the review shall be made and shall be the same as that required at the hearing before the planning commission, pursuant to MCMC 18.185.270.

(5) Every notice of review shall contain:

(a) A reference to the decision sought to be reviewed.

(b) The date of the decision sought to be reviewed.

(d) The specific facts from the record of the hearing which form the basis of the petitioner’s request for review.

(6) Except when filed by the city council, a notice of review shall be accompanied by the required fee, as designated in the city of Myrtle Creek handbook of fees and charges.

(a) If the city council does not desire a transcript, the applicant or any party may request a transcript. Any such transcript request shall be paid for by the person requesting it in the manner provided in this section. The estimated cost of the transcript shall be specified by the city administrator. Within five days of such estimate, the person making the request for a transcript shall deposit the estimated cost with the city administrator. Any deposit excess shall be returned to the depositing person.

(b) If a transcript is desired by the city council, the costs shall be borne by the city. [Ord. 508 § 9.05.2, 1982].

18.190.030 Review by the city council.

(1) The review of the planning commission’s decision by the city council shall be confined to the arguments of the parties and the record of the proceeding below, which will include the following:

(a) All materials, pleadings, memoranda, stipulations and motions submitted by any party to the proceeding and recorded or considered by the planning commission as evidence.

(b) All materials submitted by the city administrator to the planning commission with respect to the application.

(c) The transcript of the hearing, if desired by the city council, or the tape recording of the hearing or other evidence of the proceedings before the planning commission.

(d) The written findings, conclusions and decision of the planning commission.

(e) Additional evidence, upon election of the council, to cure ex parte contacts.

(2) Review by the city council upon appeal by a party shall be limited to the facts from the record of the hearing which form the basis of the petitioner’s request for review. New materials or testimony containing facts which were not made part of the original hearing shall not be received.

(3) At the commencement of the review of any application, a statement shall be made to those in attendance that describes the applicable substantive criteria; that the arguments to be heard on the testimony and evidence in the record must be directed towards these criteria; and that the failure to address a criterion precludes appeal based on that criterion.

(4) Order of Procedure. In the conduct of a hearing, the city council shall:

(a) Announce the nature and purpose of the hearing.

(b) Permit members of the city council to announce a potential conflict of interest, direct or substantial financial interest or any prejudice of bias as specified in MCMC 18.185.240(3)(c). No member shall serve in any proceeding in which such member has bias or the member has a direct or substantial financial interest. If a member refuses to disqualify himself or herself for bias or direct or substantial financial interest, the council shall have the power to remove such member for that proceeding.

(d) Request the city administrator or the city administrator’s designee for an introductory and summary report of the matter before the council and to provide such other information as may be requested by the council.

(e) Allow the appellant to be heard first.

(f) Allow other parties in support of the appellant to be heard next.

(g) Allow parties opposed to the appeal to be heard next.

(h) Allow the appellant and parties in support of the appeal to make any rebuttal arguments they may have. The scope and extent of rebuttal shall be determined by the council.

(i) Allow parties opposed to the appeal to make any rebuttal arguments they may have. The scope and extent of rebuttal shall be determined by the council.

(j) Conclude the hearing.

(5) The city council may affirm, reverse or modify the action of the planning commission, and may approve or deny the request, or grant approval subject to special conditions necessary to carry out the purpose and intent of this title.

(a) For all cases, the city council shall make a decision based upon the findings and conclusions from the record of the original hearing.

(b) The city council shall enter such findings, conclusions and final orders upon the close of its hearings or upon continuance of the matter to a specific time.

(c) The city council shall, within seven days of its final order, cause copies of its final written order to be sent to all parties participating in the review before it.

(6) The city council may remand the matter to the planning commission if it is satisfied that testimony or other evidence could not have been presented at the initial hearing. In deciding such remand, the city council shall consider and make findings and conclusions:

(a) That substantial prejudice to parties resulted;

(b) That material, relevant and competent evidence at the time of the initial hearing was unavailable through no lack of diligence of the party offering such testimony and evidence; or

(7) Only those members of the city council reviewing the entire record may act on the matter reviewed. The agreement of a majority of those reviewing is necessary to amend, reverse or remand the action of the planning commission. Upon failure of a majority of those reviewing to agree, the decision of the planning commission shall stand.

(8) City council decisions for discretionary permits may be appealed to the Land Use Board of Appeals (LUBA), as provided in ORS 197.830. It shall be the responsibility of the appellant to contact LUBA regarding proper appeal procedure. [Ord. 508 § 9.05.3, 1982].

18.190.040 Amendments to land use actions.

(1) “Minor amendment” means a change which:

(a) Does not increase the intensity of the approved land use;

(b) Does not change the general location or amount of land devoted to an approved land use; or

(c) Includes only minor shifting of established lines, location of buildings, proposed public or private streets, pedestrian ways, utility easements, parks or other public open spaces.

(2) “Major amendment” means any change which is not a minor amendment.

(3) Approval of Minor Amendments. A minor amendment to an approved ministerial, administrative or quasi-judicial land use action may be approved by the city administrator.

(4) Approval of Major Amendments. Approval of a major amendment to an approved land use action requested within two years of the date of decision (or within the extension period for the decision if an extension has been authorized) shall be a land use action subject to the provisions of Chapters 18.185 and 18.195 MCMC and this chapter. [Ord. 508 § 9.05.4, 1982].