Chapter 17.24 PROCEDURES FOR DECISION-MAKING

(1) Purpose. This code uses a combination of nondiscretionary and discretionary reviews to evaluate land use proposals for compliance with the use and development requirements of the code. The combination is necessary to provide a comprehensive set of implementation tools. The nondiscretionary reviews provide the certainty needed in most situations by providing straight-forward, clear, and objective standards. Discretionary reviews provide needed flexibility by allowing more subjective standards and objectives, and providing for the modification of regulations in response to specific site conditions. This chapter addresses discretionary reviews.

(2) Explanation of Discretionary Reviews. A discretionary review is one that involves judgment or discretion in determining compliance with the approval requirements. The review is discretionary because not all of the approval requirements are objective. That is, they are not easily definable or measurable. The amount of discretion and the potential impact of the request varies among different reviews. Some have less discretion or impact, such as the reduction of a garage setback for a house on a hillside. Others may involve more discretion or potential impacts, such as the design review of a new downtown building or the siting of a firm which uses hazardous materials. Discretionary reviews must provide opportunities for public involvement.

(3) Scope. This chapter concerns procedures for the consideration of quasi-judicial land use applications. The Oregon Supreme Court formulated a three-pronged test to aid in determining whether action is quasi-judicial: (a) whether the process is bound to result in a decision; (b) whether the decision is bound to apply preexisting criteria to concrete facts; and (c) whether the action is directed at a closely circumscribed factual situation or a relatively small number of persons. Strawberry Hill 4-Wheelers v. Benton County Board of Commissions, 287 Or. 591, 601 P.2d 769 (1979). Common quasi-judicial applications include but are not limited to the following: site-specific comprehensive plan map amendment, site-specific rezoning subdivision, partition, variance, site design review.

(4) The Function of Approval Criteria.

(a) The approval criteria that are listed with a specific review reflect the findings that must be made to approve a request. The criteria set the bounds for the issues that must be addressed by the applicant and which may be raised by the city or affected parties. A proposal that complies with all of the criteria will be approved. A proposal that can comply with the criteria with mitigation measures or limitations will be approved with conditions. A proposal that cannot comply with the criteria outright or cannot comply with mitigation measures will be denied.

(b) The approval criteria have been derived from and are based on the comprehensive plan. Reviews against the goals and policies of the comprehensive plan are not required unless specifically stated. Fulfillment of all requirements and approval criteria means the proposal is in conformance with the comprehensive plan.

(c) When approval criteria refer to the request meeting a specific threshold, such as adequacy of services or no significant detrimental environmental impacts, the review body will consider any proposed improvements, mitigation measures, or limitations proposed as part of the request when reviewing whether the request meets the threshold. All proposed improvements, mitigation measures, and limitations must be submitted for consideration prior to a final decision by a review body.

(5) The Burden of Proof. The burden of proof is on the applicant to show that the approval criteria are met. The burden is not on the city or other parties to show that the criteria have not been met.

(6) Conditions of Approval. The city may attach conditions to the approval of all discretionary reviews. However, conditions may be applied only to ensure that the proposal will conform to the applicable approval criteria for the review or to ensure the enforcement of other city regulations. (Ord. 2875 § 1.070.010, 2003)

17.24.020 The application process.

(1) Applications for approval required under this chapter may be initiated by:

(a) Order of the council;

(b) Resolution of a majority of the commission;

(2) Any persons authorized by this code to submit an application for approval may be represented by an agent authorized in writing to make the application. (Ord. 2875 § 1.070.020, 2003)

17.24.030 Time period for certain quasi-judicial decisions (ORS 227.178).

The city shall take final action on an application for a permit, limited land use decision, or a zone change, including the resolution of all appeals, within 120 days after the application is deemed complete, except:

(1) The 120-day period may be extended for a reasonable period of time at the request of the applicant;

(2) The 120-day period applies only to a decision wholly within the authority and control of the city;

(3) The 120-day period does not apply if the parties have agreed to mediation as described in ORS 197.319(2)(b);

(4) The 120-day period does not apply to an amendment to an acknowledged comprehensive plan or land use regulation or adoption of a new land use regulation forwarded to the Department of Land Conservation and Development pursuant to ORS 197.610(1); and

(5) Failure to comply with the time limitations of this section makes available the enforcement and refund remedies identified in the Oregon Revised Statutes. (Ord. 2875 § 1.070.030, 2003)

17.24.040 Preapplication conference.

(1) Unless excepted herein, all applicants for quasi-judicial land use applications shall be required to meet with the director for a preapplication conference. Another preapplication conference is required if an application is submitted more than six months after the initial preapplication conference. Unless excepted, a preapplication conference is a jurisdictional prerequisite to filing an application.

(2) Preapplication Conference Issues. At the preapplication conference, the director, the applicant, and the representatives from other city departments and county and state agencies, as applicable, shall discuss issues that relate to the proposed development and application. Those issues shall include but not be limited to the following, as applicable to the proposed development:

(a) The burden on the applicant to demonstrate consistency with the comprehensive plan and the requirements of the Land Development Code;

(b) Identification of the application requirements and appropriate development review procedures for the proposed development, and a tentative schedule of review for any proposed consolidation of review for more than one application;

(d) The relationship between the proposed development and surrounding land uses;

(e) Physical characteristics of the site proposed for development including but not limited to environmentally sensitive areas, wetlands, uplands, wildlife protection issues and existing roads, utilities, easements, and facilities;

(f) The characteristics of the proposed site development including proposed on-site streets, utilities or other public and private facilities, including common open areas, recreation areas and maintenance mechanisms designed to guarantee the care and upkeep of the common elements;

(g) Status of public facilities that would serve the proposed development, including specifically water, sewer, solid waste, drainage, roads, parks and mass transit. When the proposed action is located adjacent to a state roadway or the proposed action may have an impact on a state roadway, ODOT shall be invited to participate in the preapplication conference and review of the application.

(3) The applicant has the burden to demonstrate strict compliance with each and every applicable approval criterion by providing competent substantial evidence of compliance for the record. The burden is on the applicant to ascertain for themselves what is required for approval from the text of the local code, plan and state statutes. The information and opinions provided in a preapplication conference are for the general assistance of the applicant, and shall not be binding on the city, the applicant or any of the participants. Failure of the director to cite or identify any of the information required by this chapter shall not constitute a waiver of the standards, criteria, or other requirements of the application.

(4) The following applications are exempt from the preapplication requirement of this section:

(a) Tree removal permit.

(b) Accessory structure permit.

(d) Sign permits.

Nothing herein prohibits a voluntary preapplication conference. (Ord. 3232 § 2 (Att. A), 2018; Ord. 3150 § 3 (Att. B), 2011; Ord. 3144 § 2 (Att. A), 2011; Ord. 2875 § 1.070.040, 2003)

17.24.050 Application submittal requirements – Refusal of an application.

(1) The application shall be made on forms approved by the director.

(2) The application shall:

(a) Include the information requested on the application form;

(b) Address appropriate criteria in sufficient detail for review and action;

(d) The records of the Columbia County department of assessment and taxation shall be the official records for determining ownership.

(3) The director shall not accept:

(a) An incomplete application, except as otherwise provided by subsection (7) of this section; or

(b) Applications not accompanied by the required fee.

(4) An application shall be deemed incomplete unless it addresses each element required to be considered under applicable provisions of this code and the application form.

(5) If an application for a permit or zone change is incomplete, the director shall:

(a) Notify the applicant within 30 days of receipt of the application of exactly what information is missing; and

(b) Allow the applicant to submit the missing information.

(6) The application for a permit or a zone change shall be deemed complete when the missing information is provided and at that time the 120-day time period shall begin to run for the purposes of satisfying state law.

(7) If the applicant refuses to submit the missing information required for a permit or a zone change application, the application shall be deemed complete on the thirty-first day after the director first received the application. This in no way negates the applicant’s burden of proof, but it is for the purpose of allowing an application to be submitted for a decision. (Ord. 2875 § 1.070.050, 2003)

17.24.055 Applicant’s evidence.

(1) All documents or evidence relied upon by the applicant, but submitted after the application has been determined to be complete, shall be submitted to the planning staff at least seven days prior to the time notice is mailed as provided in SHMC 17.24.120.

(2) When documents or evidence submitted pursuant to subsection (1) of this section significantly alter an application previously deemed complete, the director may recalculate the date the application is deemed complete. The recalculated completion date may then be used to determine:

(a) The 120-day time period for decision-making as set forth in SHMC 17.24.030; and

(b) A new decision or hearing date.

(3) If additional evidence or documents are provided in support of the application after the time set forth in subsection (2)(b) of this section that is after the time set forth in subsection (1) of this section, any party is entitled to request a continuance of the hearing. Such continuance does not count as part of the 120-day provision in ORS 227.178. (Ord. 2875 § 1.070.055, 2003)

17.24.060 Duties of the director.

The director shall:

(1) Prepare application forms made pursuant to the standards contained in the applicable state law, comprehensive plan, and implementing ordinance provisions;

(2) Accept all development applications which comply with the provisions of SHMC 17.24.050;

(3) Within 60 days after an application is deemed complete pursuant to this chapter, except as provided by SHMC 17.24.050:

(a) Develop a list of affected property owner names and addresses;

(b) Give notice as provided by SHMC 17.24.120 and 17.24.130, except as provided by SHMC 17.24.110;

(i) The facts deemed relevant to the proposal and found by the director to be true;

(ii) Those portions of the St. Helens comprehensive plan and/or implementing ordinances which the director deems to be applicable to the proposal. If any portion of the plan or ordinances appears to be reasonably related to the proposal and is deemed not applicable by the director, the director shall explain why such portion or portions are not applicable;

(iii) An analysis relating the facts deemed true by the director to the applicable criteria and a consideration of alternatives open to the approval authority, resulting in a recommendation of denial, approval, or approval with conditions under SHMC 17.24.250; and

(iv) A statement regarding a waiver of information or additional information required by the director as provided by SHMC 17.24.080;

(d) In the case of an application subject to a director’s decision, make the staff report and all case-file materials available at the time the notice of the decision is given; and

(e) In the case of an application subject to a hearing, make the staff report available seven days prior to a scheduled hearing date and the case-file materials available when notice is mailed, as provided by SHMC 17.24.130(1)(a).

(4) Act on the development application pursuant to SHMC 17.24.090(1) and 17.24.110 or cause a hearing to be held pursuant to SHMC 17.24.090(2) through (4), and 17.24.160 through 17.24.230, unless the applicant has requested or consented to a delay;

(5) Administer the hearings process pursuant to SHMC 17.24.155 through 17.24.230;

(6) Maintain a register of all applications which have been filed for a decision. The register shall identify at what stage the application is in the process;

(7) File notice of the final decision in the records of the planning department and mail a copy of the notice of the final decision to the applicant and all parties and to those persons requesting copies of such notices who pay the necessary fees therefor as provided by SHMC 17.24.120 or 17.24.130;

(8) Maintain and preserve the file for each application. The file shall include, as applicable, a list of persons required to be given notice and a copy of the notice given pursuant to SHMC 17.24.120 or 17.24.130 and the accompanying affidavits, the application and all supporting information, the staff report, the final decision, including the findings, conclusions, and conditions, if any, all correspondence, the minutes of any meeting at which the application was considered and any other exhibit, information, or documentation which was considered by the hearing body with respect to the application; and

(9) Administer the appeals and review process pursuant to SHMC 17.24.290 through 17.24.370. (Ord. 2875 § 1.070.060, 2003)

17.24.070 Alternative recommendation by director.

(1) The director may make a recommendation to the initial hearings body on the application; however, in addition, the director may recommend an alternative or alternatives.

(2) Such alternatives shall be considered only if:

(a) Notice of such alternative(s) has been given as part of the hearing notice in addition to the matters contained in SHMC 17.24.140; and

(b) The staff report prepared as provided by SHMC 17.24.060(3)(c) supports such an alternative(s). (Ord. 2875 § 1.070.070, 2003)

17.24.080 Additional information required, waiver of requirements, and report required.

(1) The director may require information in addition to that required by a specific provision of this code, provided:

(a) The information is needed to properly evaluate the proposed development proposal; and

(b) The need can be justified on the basis of a special or unforeseen circumstance.

(2) The director may waive the submission of information for a specific requirement subject to the provisions of subsection (3) of this section, provided:

(a) The director finds that specific information is not necessary to properly evaluate the application; or

(b) The director finds that a specific approval standard is not applicable to the application.

(3) Where a requirement is found by the director to be inapplicable the director shall:

(a) Indicate for the record and to the applicant the specific requirements waived;

(b) Advise the applicant in writing that the waiver may be challenged on appeal or at the hearing on the matter and may be denied by the approval authority; and

(c) Cite in the staff report on the application the specific requirements waived, the reasons for the waiver, and the specific grant of authority. (Ord. 2875 § 1.070.080, 2003)

17.24.090 Approval authority responsibilities.

(1) In addition to ministerial and administrative decisions, the director shall have the authority to approve, deny, or approve with conditions the following applications and/or activities:

(a) Accessory structures pursuant to Chapter 17.124 SHMC.

(b) Expedited land division per ORS 197.360.

(d) Home occupation pursuant to Chapter 17.120 SHMC.

(e) Lot line adjustments pursuant to Chapter 17.140 SHMC.

(f) Partitions pursuant to Chapter 17.140 SHMC.

(g) Sign permits.

(h) Site development pursuant to Chapter 17.96 SHMC.

(i) Solar access for new construction on lots not covered by subsection (3)(a) of this section pursuant to Chapter 17.48 SHMC.

(j) Temporary use pursuant to Chapter 17.116 SHMC.

(k) Unlisted uses (approve or deny), pursuant to Chapter 17.32 SHMC.

(l) Variance pursuant to Chapter 17.108 SHMC.

(m) Minor modification to conditional use permit pursuant to Chapter 17.100 SHMC.

(n) Access variances pursuant to Chapter 17.84 SHMC.

(o) Sensitive lands pursuant to Chapter 17.44 SHMC.

(p) Nonconforming status pursuant to Chapter 17.104 SHMC.

(q) Revocation proceedings pursuant to SHMC 17.24.390.

(r) Review of uses in Willamette Greenway overlay zone per SHMC 17.32.160.

(s) Any other matter not specifically assigned to others.

(2) The director may refer any application for review to the planning commission.

(3) The planning commission shall conduct a public hearing in the manner prescribed by this chapter and shall have the authority to approve, deny, or approve with conditions the following applications and enforcement proceedings:

(a) Solar access requirements for new subdivisions pursuant to Chapter 17.48 SHMC.

(b) Conditional use pursuant to Chapter 17.100 SHMC.

(d) Subdivisions pursuant to Chapter 17.136 SHMC when not part of a planned development.

(e) Sign code exceptions and sign code variances pursuant to Chapter 17.88 SHMC.

(f) An appeal of decisions made by the director, under subsection (1) of this section.

(g) Referral from the director of any decision.

(h) Subdivisions pursuant to Chapter 17.148 SHMC when requested as part of planned development and/or in conjunction with a variance to the subdivisions standard or a variance to any requirement of this code.

(i) A quasi-judicial comprehensive plan map or text amendment except:

(i) The commission’s function shall be limited to a recommendation to the council; and

(ii) The commission may transmit their recommendation in any form and a final order need not be formally adopted.

(j) Recommendations to the city council on quasi-judicial zoning map amendments without comprehensive plan changes, pursuant to SHMC 17.08.030.

(k) A recommendation to the city council on quasi-judicial rezoning concurrent with a quasi-judicial comprehensive plan amendment.

(l) A recommendation to the city council on annexation applications.

(m) A recommendation to the city council on comprehensive plan and zoning designations made to lands annexed to the city.

(n) A recommendation to the city council on development agreement.

(o) A recommendation to the city council on a preliminary planned development zone change proposal under Chapter 17.148 SHMC.

(p) A preliminary plan/plat for planned development proposal under Chapter 17.148 SHMC.

(q) Revocation proceedings pursuant to SHMC 17.24.390.

(4) The planning commission may refer any matter directly to the city council with or without cause with a two-thirds affirmative vote from appointed members.

(5) The historic landmark commission shall approve, approve with conditions, or deny any application filed under the provisions of this chapter. The historic landmark commission shall apply the standards herein set forth in this chapter.

(a) The historic landmark commission shall be composed of three members pursuant to SHMC 17.36.020; and

(b) Decisions of the historic landmark commission shall be made in a public meeting; notice shall be published at least 10 days prior to the meeting.

(6) The city council shall conduct a public hearing in a manner prescribed by this chapter and shall have the authority to approve, deny, or approve with conditions the following development applications:

(a) The formal imposition of comprehensive plan map and zoning designations made to lands annexed to the city.

(b) Matters referred to the council by the commission for review.

(c) Review of initial decisions of other city land use approving authorities, whether on the council’s own motion or otherwise (including appeal or referral) of the following:

(i) Appeal or referral of any final decision made by an approving authority that is not specifically assigned to the director or the city council under this code.

(d) Supplemental application pursuant to ORS 227.184:

(1) A person whose application for a permit is denied by the governing body of a city or its designee under ORS 227.178 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 governing body of a 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 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 zoning variance that may be required to issue a permit under the city’s comprehensive plan and land use regulations.

(4) The governing body of a city or its designee 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. [1999 c.648 s.4]

(e) Appeals of revocations of land use permits issued by the planning commission as original approving authority.

(f) Appeal of matters decided by the planning commission pursuant to referral from the director.

(g) Preliminary plan/plat for planned development proposal under Chapter 17.148 SHMC.

(h) Director decisions not normally reviewed by or appealed to the planning commission.

(i) Quasi-judicial zoning map amendment without comprehensive plan change pursuant to SHMC 17.08.030 (ordinance required).

(j) Quasi-judicial rezoning concurrent with quasi-judicial comprehensive plan amendment (ordinance required).

(k) Quasi-judicial comprehensive plan map or text amendments (ordinance required).

(l) Subdivisions pursuant to Chapter 17.148 SHMC when requested as part of planned development and/or in conjunction with a variance to the subdivisions standard.

(m) Development agreement (ordinance required).

(n) Annexations. (Ord. 3084 § 2, 2008; Ord. 2875 § 1.070.090, 2003)

17.24.110 A decision by the director – No hearing required.

(1) Pursuant to SHMC 17.24.090(1), the director is authorized to make certain decisions, and no hearing shall be held unless an appeal is filed as provided herein, or unless:

(a) An appeal is filed pursuant to SHMC 17.24.310; or

(b) The director has an interest in the outcome of the decision, due to some past or present involvement (interpret as in conflict of interest laws) with the applicant, other interested persons or in the property or surrounding property. In such cases, the application shall be treated as if it were filed under SHMC 17.24.090(3); or

(c) The director believes that there may be the appearance of conflict of interest or it may be in the public interest to require a more public process and deems it best to refer it.

(2) The decision shall be in the form set forth in SHMC 17.24.120.

(3) The decision shall be based on the approval criteria set forth in SHMC 17.24.250.

(4) Notice of the decision by the director shall be given as provided by SHMC 17.24.120 and notice shall be governed by the provisions of SHMC 17.24.140, Contents of the notice for public hearings, and 17.24.150, Failure to receive notice – Computations.

(5) The record shall include:

(a) A copy of the application and all supporting information, plans, exhibits, graphics, etc.;

(b) All correspondence relating to the application;

(d) Any staff report or decision of the director prepared under SHMC 17.24.060;

(e) A list of the conditions, if any are attached to the approval of the application; and

(f) A copy of the notice advising of the director’s decision which was given pursuant to SHMC 17.24.090, and accompanying affidavits, and a list of all persons who were given mailed notice.

(6) Standing to appeal shall be as provided by SHMC 17.24.290.

(7) The appeal period shall be computed as provided by SHMC 17.24.300.

(8) The method for taking the appeal shall be as provided by SHMC 17.24.310 and the notice of appeal submitted by the appellant shall be as provided by SHMC 17.24.340.

(9) The appeal hearing shall be de novo as provided by SHMC 17.24.320.

(10) Notice of the final decision on appeal shall be as provided by SHMC 17.24.270, Notice of final decision, and 17.24.260, The form of the final decision.

(11) No decision by the director may be modified from that set out in the notice except upon being given new notice.

(12) The action on the appeal shall be as provided by SHMC 17.24.370, Action on appeal – Time limit and authority to change the decision.

(13) Resubmittal shall be as provided by SHMC 17.24.280, Denial of the application – Resubmittal. (Ord. 2875 § 1.070.110, 2003)

17.24.120 Notice of decision by the director.

(1) Notice of the director’s decision on an application pursuant to SHMC 17.24.090 shall be given by the director in the following manner:

(a) Within 10 working days of signing the proposed decision, notice shall be sent by mail to:

(i) The applicant and all owners or contract purchasers of record of the property which is the subject of the application for the following types of director decisions:

(A) Minor modifications to site design reviews;

(B) Nonconforming status;

(ii) All surrounding property owners of record of property within the applicable notice area of the property for the following types of director decisions:

(A) Lot line adjustments, major site development reviews, minor modifications to conditional use permits, sensitive lands, temporary uses, accessory structures, subdivision final plats: 100 feet;

(B) Land partitions: 200 feet;

(iii) For home occupations see SHMC 17.120.060;

(iv) Any governmental agency which is entitled to notice under an intergovernmental agreement entered into with the city which includes provision for such notice. For subject sites located adjacent to a state roadway or where proposals may have an impact on a state facility, notice of the decision shall be sent to ODOT; and

(v) Any person who requests, in writing, and pays the required fee established by the council.

(2) The director shall cause an affidavit of mailing and/or publication of notice where newspaper publication was required to be filed and made a part of the administrative record. (Newspaper publication is required for all decisions in excess of 100 feet notice radius for property owners.)

(3) Notice of the decision by the director shall contain:

(a) The nature of the application in sufficient detail to apprise persons entitled to notice of the applicant’s proposal and of the decision;

(b) The address and legal description of the subject property;

(d) The date the director’s decision will become final;

(e) A statement that a person entitled to notice or adversely affected or aggrieved by the decision may appeal the decision:

(i) The statement shall explain briefly how an appeal can be taken, the deadlines, and where information can be obtained; and

(ii) The statement shall explain that if an appeal is not filed, the decision shall be final;

(f) A map showing the location of the property.

(4) If not listed in subsection (1) of this section, no notice of a director’s decision is required (e.g., final plat partitions, building permits). (Ord. 3264 § 2 (Att. A), 2021; Ord. 3232 § 2 (Att. A), 2018; Ord. 3203 § 2 (Att. A), 2016; Ord. 3189 § 2 (Att. A), 2015; Ord. 3150 § 3 (Att. B), 2011; Ord. 3144 § 2 (Att. A), 2011; Ord. 2875 § 1.070.120, 2003)

17.24.130 Notice of planning commission, historic landmark commission and city council proceedings.

(1) Notice of an impending action pursuant to SHMC 17.24.090 shall be given by the director in the following manner:

(a) At least 20 days prior to the scheduled hearing date, or if two or more hearings are scheduled, 10 days prior to the first hearing and 20 days prior to the second hearing, notice shall be sent by mail to:

(i) The applicant and all owners or contract purchasers of record of the property which is the subject of the application;

(ii) All property owners of record within the following distances of the property for the following types of applications:

(A) Subdivisions: 300 feet;

(B) Sign code exceptions/variances: 100 feet;

(D) Planned developments: 300 feet;

(E) Comprehensive plan amendments: 300 feet;

(F) Zone changes: 300 feet;

(G) Zone ordinance amendments: 300 feet;

(H) Historic sites and districts reviews: 300 feet;

(I) Referrals or appeals of director decisions or planning commission decisions shall follow the same notice guidelines as stated in SHMC 17.24.120 and this section;

(iii) Any affected governmental agency which has entered into an intergovernmental agreement with the city which includes provision for such notice or public agency that provides service within the city. When the application site is located adjacent to a state roadway or was determined by a traffic impact analysis to have an effect on a state roadway, notice of the decisions shall be sent to ODOT;

(iv) Any person who requests, in writing, and pays a fee established by the council; and

(v) The appellant and all parties to an appeal.

(b) Notice of a hearing on a proposed zone change for a mobile home park shall be given to tenants to that mobile home park at least 20 days but no more than 40 days prior to the hearing; and

(2) At least 10 days prior to the hearing, notice shall be given for publication in a newspaper of general circulation in the city. An affidavit of publication shall be made part of the administrative record.

(3) Where applicable, other notices required by law shall be accomplished. (Ord. 3150 § 3 (Att. B), 2011; Ord. 3144 § 2 (Att. A), 2011; Ord. 3084 § 2, 2008; Ord. 2875 § 1.070.130, 2003)

17.24.140 Contents of the notice for public hearings.

(1) Notice given to persons entitled to mailed or published notice pursuant to SHMC 17.24.130 shall include the following information, in accordance with ORS 197.763(3):

(a) The number and title of the file containing the application and the address and phone number of the director’s office where additional information can be obtained;

(b) A description of the subject property, reasonably calculated to give notice as to its actual location which shall include, but not be limited to, the address (if any), geographical description or the tax map designations of the county assessor’s office;

(d) The nature of the application in sufficient detail to apprise persons entitled to notice of the application’s proposal; and

(e) The time, place, and date of the public hearing, a statement that both public oral and written testimony is invited, and a statement that the hearing will be held under this chapter and any rules of procedure adopted by the council and available at City Hall.

(2) When the proceeding is an initial evidentiary hearing before the planning commission or the city council, the following information shall be included in the mailed notice, in addition to the information required in subsection (1) of this section:

(a) A list of applicable criteria from ordinance and plan;

(b) A statement that failure to raise an issue, including constitutional or other issues relating to the proposed conditions of approval, in this hearing, in person, or by letter, or failure to raise an issue accompanied by statements or evidence sufficient to afford the approving authority an opportunity to respond to the issue precludes appeal to LUBA, the Land Use Board of Appeals, on that issue, and precludes an action for damages in circuit court;

(c) A statement that all documents in the file are available for inspection at no cost, or copies at a reasonable cost; and

(d) A statement that a copy of the staff report will be available for inspection at no cost, or copies at reasonable cost, at least seven days prior to the hearing.

(3) Other notices shall follow the procedures as per applicable governing rules. (Ord. 2875 § 1.070.140, 2003)

17.24.150 Failure to receive notice – Computations.

(1) The failure of property owner to receive notice shall not invalidate the action provided a good faith attempt was made to notify all persons entitled to notice.

(2) Personal notice is deemed given when the notice is deposited with the United States Postal Service, and published notice is deemed given on the date it is published.

(3) The records of the Columbia County assessor’s office shall be the official records used for giving notice required by the ordinances codified in this code, and a person’s name and address which is not on file at the time the notice mailing list is initially prepared is not a person entitled to notice under SHMC 17.24.120 and 17.24.130.

(4) In computing the length of time that notice is given, the first date notice is given shall be excluded and the day of the hearing or the date on which the appeal period or review period expires shall be included unless the last day falls on any legal holiday or on Saturday, in which case, the last day shall be the next business day. (Ord. 2875 § 1.070.150, 2003)

17.24.155 Hearing procedure – Preliminary matters, ex parte communications, bias, conflict of interest.

(1) Members of the approval authority shall not:

(a) Communicate, directly or indirectly, with any party or representative of a party, in connection with any issue involved; nor

(b) Take notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case.

(2) No decision or action of the approval authority shall be invalid due to an ex parte contact with a member of the decision-making body, if the member of the decision-making body receiving the contact:

(a) Places on the record the substance of any written or oral ex parte communications concerning the decision or action; and

(b) Makes a public announcement of the content of the communication and of the parties’ right to rebut the substance of the communication made at the first hearing following the communication where action will be considered or taken on the subject to which the communication related.

(3) Members of the commission shall be governed by the provisions of ORS 227.035, St. Helens Ordinance No. 2197 and amendments, and the provisions of this code.

(4) This section shall not apply to director decisions made under SHMC 17.24.090.

(5) A communication between the city staff and the decision-makers shall not be considered an ex parte contact.

(6) In addition to the provisions of ORS 227.035 which apply to commission members or ORS Chapter 244 which applies to all members of an approval authority, each member of the approval authority shall be impartial. Any member having any substantial past or present involvement with the applicant, or other interested persons, the property or surrounding property, or having a financial interest in the outcome of the proceeding, or having any prehearing contacts, shall state for the record the nature of their involvement or contacts, and shall either:

(a) State that they are not prejudiced by the involvement or contacts and will participate and vote on the matter; or

(b) State that they are prejudiced by the involvement or contact and will withdraw from participation in the matter. (Ord. 2875 § 1.070.155, 2003)

17.24.160 Hearings procedure.

(1) Unless otherwise provided by the rules of procedure adopted by the council, the approval authority shall have the authority to conduct a public hearing, and:

(a) Determine who qualifies as a party;

(b) Regulate the course, sequence, and decorum of the hearing;

(d) Rule on offers of proof and relevancy of evidence and testimony;

(e) Impose reasonable limitations on the number of witnesses heard and set reasonable time limits for oral presentation and rebuttal testimony;

(f) Take such other action appropriate for conduct commensurate with the nature of the hearing; and

(g) Approve or deny applications or approve with conditions pursuant to SHMC 17.24.250.

(2) Unless otherwise provided in the rules of procedure adopted by the council, the approval authority shall conduct the hearing as follows:

(a) Announce the nature and purpose of the hearing and summarize the rules of conducting the hearing, address preliminary matters such as ex parte communications, conflict of interest and bias, and make a statement that:

(i) Lists the applicable substantive criteria;

(ii) States that testimony, arguments, and evidence must be directed toward the criteria described in subsection (2)(a)(i) of this section, or to the other criteria in the comprehensive plan, or the Development Code which the person believes applies to the decision;

(iii) States that failure to raise an issue accompanied by statements or evidence sufficient to afford the decision-maker and the parties an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue;

(b) Recognize parties;

(c) Request the director to present the staff report, to explain any graphic or pictorial displays which are a part of the report, to summarize the findings, recommendations and conditions, if any, and to provide such other information as may be requested by the approval authority;

(d) Allow the applicant or a representative of the applicant to be heard;

(e) Allow parties or witnesses in favor of the applicant’s proposal to be heard;

(f) Allow parties or witnesses in opposition to the applicant’s proposal to be heard;

(g) Upon failure of any party to appear, the approval authority shall take into consideration written material submitted by such party;

(h) Allow the applicant to offer rebuttal evidence and testimony limited to rebuttal of points raised. New testimony will not be heard;

(i) If the proceeding is an initial evidentiary hearing before a decision-making body, announce that, upon the request of a participant, the body must either grant a continuance for no less than seven days or leave the record open for no less than seven days. Ask if any participant requests a continuance or requests that the record be left open;

(j) If no request for a continuance, conclude the hearing by announcing officially the public hearing is closed;

(k) If no request to leave the record open, close the record;

(l) Ask if the applicant waives the opportunity to submit final written argument after the close of the record; and

(m) If no request to submit final argument by the applicant, make a decision pursuant to SHMC 17.24.250 or take the matter under advisement pursuant to SHMC 17.24.180.

(3) Unless otherwise provided by the rules of procedures adopted by the council, the following rules shall apply to the general conduct of the hearing:

(a) The approval authority may ask questions at any time before the close of the hearing, and the answers shall be limited to the substance of the question; questions may also be asked of staff at any time after the close of the hearing and the record; however, such questions shall be limited to the evidence in the record and the applicable law;

(b) Parties or the director must receive approval from the approving authority to submit questions directly to other parties or witnesses or the director;

(d) No person shall testify without first receiving recognition from the approval authority and stating their full name and address;

(e) The approval authority may require that testimony be under oath or affirmation;

(f) Audience demonstrations such as applause, cheering, and display of signs, or other conduct disruptive of the hearing shall not be permitted. Any such conduct may be cause for immediate suspension of the hearing;

(g) No person shall be disorderly, abusive, or disruptive of the orderly conduct of the hearing; and

(h) After the close of the hearing and the record, the approval authority may obtain legal advice from its lawyer concerning legal issues raised during the proceedings, instructions on the applicable law, and the application of the law to the evidence in the record. There is no right to rebut legal advice from the approval authority’s lawyer provided after the close of the record. (Ord. 2875 § 1.070.160, 2003)

17.24.165 Continuation of the hearing and request to leave the record open.

(1) If the proceeding is an initial evidentiary hearing, prior to the close of the hearing, the chair shall announce that, upon the request of a participant, the hearing authority must either grant a continuance for no less than seven days or leave the record open for no less than seven days as set forth in ORS 197.763:

(a) A continued hearing is conducted in the same manner as the original hearing; and

(b) When the record is left open, any person may submit relevant written testimony, argument or evidence and any person may raise new issues which relate to the new testimony, argument or evidence, as specified in ORS 197.763.

(2) In addition to a continuance or request to leave the record open pursuant to subsection (1) of this section, the hearing authority may continue a public hearing or leave the record open at its discretion. Said continuance or opening may be to gather additional evidence, to consider the application fully, or to give notice to additional persons.

(3) Unless otherwise provided by the approval authority, no additional notice need be given of the continued hearing if the matter is continued to a date, time, and place certain. Notwithstanding the above, renotification in accordance with the notice and advertising requirements of this chapter shall be required if:

(a) The requested continuance would delay or continue the hearing over 60 calendar days from the date of the original hearing date. The requestor shall pay the cost of the renotification if the requestor had previously been granted a continuance; or

(b) The continuation results in a change in the application to such a degree that the notice of the proposed action does not reasonably describe the application.

(4) If a quorum of the hearing authority does not appear for a scheduled public hearing, the public hearing shall automatically be continued to the date and time of the next regularly scheduled meeting.

(5) Unless requested or agreed to by the applicant, the time period of the continuance or period of time the record is held open is included in the time limit for final decision as set forth in SHMC 17.24.030. (Ord. 2875 § 1.070.165, 2003)

17.24.170 Final written argument.

After the close of the record, the chair shall ask the applicant if the applicant desires to waive submission of final written argument as provided by ORS 197.763. If final argument is waived, the approval authority may proceed to deliberate and make a decision. If the applicant desires to submit final written argument, a date and time certain no less than seven calendar days from the date of request shall be set for the submission of written argument and deliberations on the matter shall be continued to the next regularly scheduled meeting after the submission of written argument. The time period for this delay in obtaining a final decision shall not be included in the time limits for final decision as set forth in SHMC 17.24.030. (Ord. 2875 § 1.070.170, 2003)

17.24.180 Continuation of the hearing.

(1) An approval authority may continue the hearing from time to time to gather additional evidence, to consider the application fully, or to give notice to additional persons.

(2) Unless otherwise provided by the approval authority, no additional notice need be given of the continued hearing if the matter is continued to a date, time, and place certain. (Ord. 2875 § 1.070.180, 2003)

17.24.200 Evidence.

(1) All evidence offered and not objected to may be received unless excluded by the approval authority on its own motion.

(2) Evidence received at any hearing shall be of a quality that reasonable persons rely upon in the conducting of their everyday affairs.

(3) No person shall present irrelevant, immaterial, or unduly repetitious testimony or evidence.

(4) Formal rules of evidence, as used in courts of law, shall not apply. (Ord. 2875 § 1.070.200, 2003)

17.24.210 Judicial notice.

(1) The approval authority may take notice of the following:

(a) All facts which are judicially noticeable. Such noticed facts shall be stated and made part of the record, pursuant to ORS 183.450:

(1) Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude agency action on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible. Agencies and hearing officers shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form.

(2) All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except as provided in subsection (4) of this section no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.

(3) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence. Persons appearing in a limited party status shall participate in the manner and to the extent prescribed by rule of the agency.

(4) The hearing officer and agency (Note: For purposes of this Code – The Approving Authority) may take notice of judicially cognizable facts, and may take official notice of general, technical or scientific facts within the specialized knowledge of the hearing officer or agency. Parties shall be notified at any time during the proceeding but in any event prior to the final decision of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed. The hearing officer and agency may utilize the hearing officer’s or agency’s experience, technical competence and specialized knowledge in the evaluation of the evidence presented.

(5) No sanction shall be imposed or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party, and as supported by, and in accordance with, reliable, probative and substantial evidence. [1957 c.717 s.9; 1971 c.734 s.15; 1975 c.759 s.12; 1977 c.798 s.3; 1979 c.593 s.21; 1987 c.833 s.1; 1995 c.272 s.5; 1997 c.391 s.1; 1997 c.801 s.76; 1999 c.448 s.5; 1999 c.849 s.34]

(b) The statewide planning goals adopted pursuant to ORS Chapter 197; and

(c) The comprehensive plan and other officially adopted plans, implementing ordinances, and rules and regulations of the city of St. Helens.

(2) Matters judicially noticed need not be established by evidence and may be considered by the approval authority in the determination of the application. (Ord. 2875 § 1.070.210, 2003)

17.24.220 Participation in the decision – Voting.

(1) In addition to the provisions of ORS 227.035 which apply to commission members or ORS Chapter 244 which applies to all members of an approval authority, each member of the approval authority shall be impartial. Any member having any substantial past or present involvement with the applicant, or other interested persons, the property or surrounding property, or having a financial interest in the outcome of the proceeding, or having any prehearing contacts, shall state for the record the nature of their involvement or contacts, and shall either:

(a) State that they are not prejudiced by the involvement or contacts and will participate and vote on the matter; or

(b) State that they are prejudiced by the involvement or contact and will withdraw from participation in the matter.

(2) An affirmative vote by a majority of the qualified voting members of the approval authority who are present is required to approve, approve with conditions, or deny an application or to amend, modify, or reverse a decision on appeal or review.

(3) Notwithstanding subsections (1) and (2) of this section, no member of an approval authority having a financial interest in the outcome of an application shall take part in proceedings on that application; provided, however, with respect to the council only, a member may vote upon a finding of necessity which shall be placed on the record by the presiding officer.

(4) Only those qualified members who have reviewed the entire record shall vote.

(5) In the event of a tie, the decision which is the subject of appeal or review shall stand. (Ord. 2875 § 1.070.220, 2003)

17.24.230 Record of proceeding for public hearings.

(1) A verbatim record of the proceeding shall be made by stenographic or mechanical means, and:

(a) It shall not be necessary to transcribe testimony except as provided for in SHMC 17.24.330; and

(b) The minutes or transcript of testimony, or other evidence of the proceedings, shall be part of the record.

(2) All exhibits received shall be marked so as to provide identification upon review.

(3) The official record shall include:

(a) All materials, pleadings, memoranda, stipulations, and motions submitted by any party to the proceeding and recorded or considered by the approval authority as evidence;

(b) All materials submitted by the director to the approval authority with respect to the application including, in the case of an appeal taken pursuant to SHMC 17.24.290, the record of the director’s decision as provided by SHMC 17.24.110;

(c) The transcript of the hearing, if requested by the council or a party, or the minutes of the hearing, or other evidence of the proceedings before the approval authority;

(d) The written findings, conclusions, decision and, if any, conditions of approval of the approval authority;

(e) Argument by the parties or their legal representatives permitted pursuant to SHMC 17.24.320 at the time of review before the council;

(f) All correspondence relating to the application; and

(g) A copy of the notice which was given as provided by SHMC 17.24.130, accompanying affidavits and list of persons who were sent mailed notice. (Ord. 2875 § 1.070.230, 2003)

17.24.250 The decision process of the approval authority.

(1) The decision shall be based on:

(a) Proof by the applicant that the application fully complies with:

(i) Applicable portions of the city of St. Helens comprehensive plan; and

(ii) The relevant approval standards found in the applicable chapter(s) of this code or other applicable implementing ordinances; and

(iii) The Oregon Transportation Planning Rule as applicable, pursuant to SHMC 17.08.060.

(b) The standards and criteria that were applicable at the time the application was determined to be complete; at such time as the city’s plan and applicable ordinances are acknowledged.

(2) Consideration may also be given to:

(a) Proof of a change in the neighborhood community or a mistake in the comprehensive plan or zoning map as it relates to the property which is the subject of the development application; and

(b) Factual oral testimony or written statements from the parties, other persons and other governmental agencies relevant to the existing conditions, other applicable standards and criteria, possible negative or positive attributes of the proposal or factors in subsection (1) or (2) of this section.

(3) In all cases, the decision shall include a statement in a form addressing the requirements of SHMC 17.24.060 which refers to the director’s staff report.

(4) The approval authority may:

(a) Adopt findings and conclusions contained in the staff report;

(b) Adopt findings and conclusions of a lower approval authority;

(d) Adopt findings and conclusions submitted by any party provided all parties have had an opportunity to review the findings and comment on the same; or

(e) Adopt findings and conclusions from another source, whether with or without modification, having made a tentative decision, and having directed staff to prepare findings for review and to provide an opportunity for all parties to comment on the same.

(5) The decision may be for denial, approval, or approval with conditions. Any additional conditions shall be pursuant to subsections (5)(a) through (f) of this section.

(a) Conditions may be imposed where such conditions are necessary to:

(i) Carry out the applicable provisions of the St. Helens comprehensive plan; and

(ii) Carry out the applicable implementing ordinances;

(b) Conditions of approval shall be fulfilled within the time limit set forth in the decision or, if no time limit is set forth, within one year. Failure to fulfill any condition of approval within the time limitations provided may be grounds for revocation of approval;

(c) Changes, alterations, or amendments to the substance of the conditions of approval shall be processed as a new action;

(d) Prior to the commencement of development (i.e., the issuance of any permits or the taking of any action under the approved development application), the owner and any contract purchasers of the property which is the subject of the approved application, if made a condition of approval, may be required to sign and deliver to the director their acknowledgment and consent to such conditions;

(e) The conditional approval may require the owner of the property to sign within a time certain or, if no time is designated, within a reasonable time, a contract with the city for enforcement of the conditions and:

(i) The council shall have the authority to execute such contracts on behalf of the city;

(ii) If a contract is required by a conditional approval, no building permit shall be issued for the use covered by the application until the executed contract is recorded in a real property record of the applicable county and filed in the county records; and

(iii) Such contracts shall be enforceable against the signing parties, their heirs, successors, and assigns by the city by appropriate action in law or suit in equity for the benefit of public health, safety, and welfare;

(f) A bond in a form acceptable to the director or, upon appeal or review by the appropriate approval authority, a cash deposit from the property owners or contract purchasers, in such an amount as will ensure compliance with the conditions imposed pursuant to this section, may be required. Such bond or deposit shall be posted prior to the issuance of a building permit for the use covered by the application. (Ord. 3150 § 3 (Att. B), 2011; Ord. 2875 § 1.070.250, 2003)

17.24.260 The form of the final decision.

(1) The final decision shall be a decision which is in writing and which has been:

(a) Signed by the director in the case of a final decision by the director, and filed as a final decision within 10 calendar days unless extended pursuant to SHMC 17.24.300; or

(b) Formally adopted and signed by the chairperson of the planning commission, or the duly authorized commissioner designated by planning commission vote, and filed with the director within 10 calendar days of the formal adoption of the decision; or

(c) Formally adopted by the council, and signed by the mayor, or the duly authorized councilor designated by city council vote, and filed with the director within 10 calendar days of the formal adoption of the decision; or

(d) Formally adopted by the historic landmark commission and signed by the chair and filed with the director within 10 calendar days of the formal adoption of the decision.

(2) The final decision shall be filed in the records of the director within 10 calendar days after the decision is signed. (Ord. 3084 § 2, 2008; Ord. 2875 § 1.070.260, 2003)

17.24.270 Notice of final decision.

(1) Notice of a final decision shall contain:

(a) A statement that all required notices under SHMC 17.24.130 have been met;

(b) A statement of where the adopted findings of fact, decision, and statement of conditions can be obtained;

(d) A statement of whether a party to the proceeding may seek review of the decision, as appropriate.

(2) Notice of the final decision shall be mailed to the applicant and to all the parties to the decision, and shall be made available to the members of the council. (Ord. 2875 § 1.070.270, 2003)

17.24.275 Amended decision process.

(1) The approving authority may issue an amended decision after the notice of final decision has been issued and within 10 working days of receipt of a proper request for an amended decision.

(2) A request for an amended decision shall be in writing, accompanied with the appropriate fee, and filed with the director within the appeal period, after the notice of final decision has been filed.

(3) A request for an amended decision may be filed within the appeal period by:

(a) The city council (via minutes of meeting and majority voting);

(b) The planning commission (via minutes of meeting and majority voting);

(d) Any party entitled to notice of the original decision (via application and required fee); or

(e) Any party who submitted comments in writing on the original decision (via application and required fee).

(4) The amended decision process shall be limited to one time for each original application.

(5) The approving authority shall make the determination as to issuance of an amended decision based on findings that one or more of the following conditions exist (except when agreed in writing by applicant):

(a) An error or omission was made on the original notice of final decision;

(b) The original decision was based on incorrect information; and

(c) New information becomes available during the appeal period which was not available when the decision was made which alters the facts or conditions in the original decision.

(6) An amended decision shall be processed in accordance with SHMC 17.24.120 and 17.24.130. (Ord. 2875 § 1.070.275, 2003)

17.24.280 Denial of the application – Resubmittal.

(1) An application which has been denied or an application which was denied and which on appeal or review has not been reversed by a higher authority, including the Land Use Board of Appeals, the Land Conservation and Development Commission or the courts, may not be resubmitted for the same or a substantially similar proposal or for the same or substantially similar action for a period of at least 12 months from the date the final city action is made denying the application unless there is a substantial change in the facts or a change in city policy which would change the outcome, except as per subsection (2) of this section.

(2) An applicant may resubmit a denied application pursuant to ORS 227.184:

(4) The governing body of a city or its designee 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. [1999 c.648 s.4]

(Ord. 2875 § 1.070.280, 2003)

17.24.290 Standing to appeal.

(1) In the case of a decision by the director, any person entitled to notice of the decision under SHMC 17.24.120 or any person who is adversely affected or aggrieved by the decision may file a notice of appeal as provided by SHMC 17.24.310.

(2) In the case of a decision by the planning commission, except for a decision on an appeal of the director’s decision, any person shall be considered a party to a matter, thus having standing to appeal, provided:

(a) The person appeared before the planning commission orally or in writing and:

(i) The person was entitled as of right to notice and hearing prior to the decision being appealed; or

(ii) The person is aggrieved or has interests adversely affected by the decision.

(3) In the case of a decision by the historic landmark commission, except for a decision on an appeal of the director’s decision, any person shall be considered a party to a matter, thus having standing to appeal, provided:

(a) The person appeared before the historic landmark commission orally or in writing and:

(i) The person was entitled as of right to notice and hearing prior to the decision being appealed; or

(ii) The person is aggrieved or has interests adversely affected by the decision. (Ord. 3084 § 2, 2008; Ord. 2875 § 1.070.290, 2003)

17.24.300 Computation of appeal period from a director’s decision and effective date of the decision.

(1) In computing the length of the appeal period of any approval authority and the effective date for a director’s decision, the day the notice is mailed shall be excluded, and the last day for filing the appeal and the effective date shall be included unless the last day falls on a legal holiday for the city or on a Saturday, in which the last day shall be the next business day. The director may extend the appeal period and the effective date to the day following a planning commission or city council meeting when the computed appeal period would not otherwise provide an opportunity for the planning commission or city council to be notified regarding the decision. The appeal period thus computed shall not be less than seven nor greater than 20 days. Unless an extension is granted, decisions of the director shall normally be 10 calendar days; decisions of the planning commission and historic landmark commission shall normally be 14 calendar days (unless required to be longer by law).

(2) The director may grant an extension of the appeal period and effective date on a director’s decision for a reasonable time only if requested by the applicant and in the condition where no appeal has been filed to that date, except as described in subsection (1) of this section. (Ord. 3084 § 2, 2008; Ord. 2875 § 1.070.300, 2003)

17.24.310 Determination of appropriate reviewing body.

(1) All land use and limited land use decisions made by the director may be appealed pursuant to SHMC 17.24.090, as provided in Table A, located at SHMC 17.24.400.

(2) Final decisions, excluding appeals and reviews of the director’s decision, made by the planning commission under SHMC 17.24.090(2) or (3) may be appealed to the council, as provided in Table A, located at SHMC 17.24.400, by:

(a) The filing of a notice of appeal (application) as provided by SHMC 17.24.340 by any party to the decision by 5:00 p.m. on the final date of the appeal period, as stated in the notice of final decision; or

(b) The council, on its own motion, seeking review by majority voice vote prior to the final date of the appeal period.

(3) Final decision made by the historic landmark commission may be reviewed by the city council.

(4) Failure to file an appeal shall be deemed a failure to exhaust administrative remedies. It is the purpose of this section to provide parties every remedy possible. The filing of an appeal is a condition precedent to litigation. (Ord. 3084 § 2, 2008; Ord. 2875 § 1.070.310, 2003)

17.24.320 Type of appeal.

(1) The appeal of a decision made by the director under SHMC 17.24.090(1) and 17.24.110 shall be de novo and conducted as if brought under SHMC 17.24.090(2) or (3).

(2) The appeal of an original decision made by the planning commission to the city council shall be de novo and conducted as if brought under SHMC 17.24.090(4), pursuant to SHMC 17.24.155 through 17.24.270. (Ord. 2875 § 1.070.320, 2003)

17.24.330 Transcripts.

(1) The appellant or any party who is the first to request a transcript shall be responsible to satisfy all costs incurred for preparation of the transcript at a rate of actual costs. Payment shall be made in full at least five days prior to the hearing.

(2) Any party other than the appellant or the first party to request a transcript shall be charged copy costs as per St. Helens Resolution 1332 and amendments thereafter. (Ord. 2875 § 1.070.330, 2003)

17.24.340 Notice of appeal (application).

(1) The notice of appeal shall contain:

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

(b) A statement as to how the petitioner qualifies as a party;

(c) The specific grounds for the appeal. Grounds shall include specific reference to the Development Code sections or comprehensive plan provisions which form the basis for the appeal; and

(d) The date of the filing of the final decision on the action or, in the case of a decision by the director, the date the decision was filed and the date notice of the final or proposed decision was given.

(2) The appeal shall be accompanied by the required fee.

(3) The appeal shall be filed in accordance with the appeal deadline specified in the notice of decision.

(4) All the requirements of this section are jurisdictional requirements for filing a valid petition for appeal. (Ord. 2875 § 1.070.340, 2003)

17.24.345 Fee waiver for appeals.

(1) The fee for a petition (application) for appeal may be waived or reduced and/or refunded in whole or in part to the applicant by the council upon written request if:

(a) The proposed project will benefit the general public; or

(b) The applicant is a public agency or nonprofit, community-oriented service organization; or

(2) Only the “local” portion of a fee may be waived or reduced when a portion of a fee must be remitted to another agency as required by law.

(3) If the reason for the appeal is found to be due to a mistake by the original approving authority and the appellant is the final prevailing party after all appeals are completed, then the fee shall be refunded in full. (Ord. 2875 § 1.070.345, 2003)

17.24.350 Persons entitled to notice on appeal – Type of notice.

Upon appeal, notice shall be given to parties entitled to notice under SHMC 17.24.130 and 17.24.290. (Ord. 2875 § 1.070.350, 2003)

17.24.360 Contents of notice on appeal.

Notice shall include those matters provided by SHMC 17.24.140. (Ord. 2875 § 1.070.360, 2003)

17.24.370 Action on appeal – Time limit and authority to change the decision.

(1) The approval authority shall affirm, reverse, or modify the decision which is the subject of the appeal; however, the decision shall be made in accordance with the provisions of SHMC 17.24.250; or

(2) Upon the written consent of all parties to extend the 120-day limit, the approval authority may remand the matter if it is satisfied that testimony or other evidence could not have been presented or was not available at the time of the hearing. In deciding to remand the matter, the approval authority shall consider and make findings and conclusions regarding:

(a) The prejudice to parties;

(b) The convenience or availability of evidence at the time of the initial hearing;

(d) The date notice was given to other parties as to an attempt to admit; or

(e) The competency, relevancy, and materiality of the proposed testimony or other evidence. (Ord. 2875 § 1.070.370, 2003)

17.24.380 Final action of the approval authority – Effective date.

(1) Final action by the approval authority on appeal shall be effective on the day of the decision or the day that the final order is signed, whichever is later.

(2) Within five working days of the filing of the final action of the appeal authority, the director shall give notice of the final action to all parties to the proceeding, informing them of the date of filing, the decision rendered, and where a copy may be found. (Ord. 2875 § 1.070.380, 2003)

17.24.390 Revocation of approvals.

(1) An approval authority may, after a hearing conducted pursuant to this chapter, modify or revoke any approval granted pursuant to this chapter for any of the following reasons:

(a) A material misrepresentation or mistake of fact made by the applicant in the application or in testimony and evidence submitted, whether such misrepresentation be intentional or unintentional; or

(b) A failure to comply with the terms and/or conditions of approval; or

(d) A material misrepresentation or mistake or fact or policy by the city in the written or oral report regarding the matter whether such misrepresentation be intentional or unintentional.

Note: Misrepresentation or mistake referred to in subsections (1)(a) and (d) of this section must be material to the criteria for the decision.

(2) In the case of a decision made by the director, the hearing on whether to modify or revoke an approval shall be held by the applicable appeal authority.

(3) Revocations of approval made by the planning commission may be appealed to the city council as provided by SHMC 17.24.290 and other applicable portions of this chapter.

(4) Revocations of approval made by the historic landmark commission may be appealed to the city council as provided by SHMC 17.24.290 and other applicable portions of this chapter. (Ord. 3084 § 2, 2008; Ord. 2875 § 1.070.390, 2003)

17.24.400 Table A.

TABLE A

LAND USE DECISION PROCESS

(Note: for all land use decisions there can only be one approval authority and one appeal authority in the city)
DIRECTOR Decision without hearing	PLANNING COMMISSION Public hearing	CITY COUNCIL Public hearing
ACCESSORY STRUCTURES pursuant to Chapter 17.124 SHMC	Appeal or referral*
LOT LINE ADJUSTMENTS pursuant to Chapter 17.140 SHMC	Appeal or referral*
PARTITIONS pursuant to Chapter 17.140 SHMC	Appeal or referral*
	SUBDIVISIONS pursuant to Chapter 17.136 SHMC when not part of a planned development	Appeal or referral
	Recommendation on SUBDIVISIONS pursuant to Chapter 17.148 SHMC when requested as part of PLANNED DEVELOPMENT and/or in conjunction with a VARIANCE to the subdivisions standard	SUBDIVISIONS pursuant to Chapter 17.148 SHMC when requested as part of PLANNED DEVELOPMENT and/or in conjunction with a VARIANCE to the subdivisions standard
REVIEW OF USES in Willamette Greenway zone	Appeal or referral*	Ordinance required
EXPEDITED LAND DIVISION (partition, subdivision, or PUD meeting definition and requirements of ORS 197.360)	Appointed referee	Oregon Court of Appeals
SITE DEVELOPMENT pursuant to Chapter 17.96 SHMC	Referral	Appeal
	VARIANCE pursuant to Chapter 17.108 SHMC	Appeal or referral
HOME OCCUPATION pursuant to Chapter 17.120 SHMC	Appeal or referral*
SOLAR ACCESS for new construction on lots not covered by SHMC 17.24.090(3)(a) pursuant to Chapter 17.48 SHMC	Appeal or referral*
	SOLAR ACCESS requirements for new subdivisions pursuant to Chapter 17.48 SHMC	Appeal or referral
SIGN PERMITS	Appeal or referral*
	SIGN CODE ADJUSTMENTS/ VARIANCES pursuant to Chapter 17.88 SHMC	Appeal or referral
TEMPORARY USE pursuant to Chapter 17.116 SHMC	Appeal or referral*
UNLISTED USES	Appeal or referral*
SENSITIVE LAND PERMIT (by director)	Appeal or referral*
	SENSITIVE LAND PERMIT (by commission)	Appeal or referral
	CONDITIONAL USE pursuant to Chapter 17.100 SHMC	Appeal or referral
	Appeal of revocation of director decision	Appeal of revocation of planning commission or historic sites and overlay district committee decisions
	Recommendation on a preliminary PLANNED DEVELOPMENT ZONE CHANGE proposal under Chapter 17.148 SHMC	A preliminary PLANNED DEVELOPMENT ZONE CHANGE proposal under Chapter 17.148 SHMC; ordinance required
	Preliminary plan/plat for PLANNED DEVELOPMENT proposal under Chapter 17.148 SHMC	Appeal or referral
Final land division plan/plat	Appeal
	Recommendation on quasi-judicial ZONING MAP AMENDMENT without comprehensive plan change pursuant to SHMC 17.08.030	Quasi-judicial ZONING MAP AMENDMENT without comprehensive plan change pursuant to SHMC 17.08.030; ordinance required
	Recommendation on quasi-judicial REZONING concurrent with a quasi-judicial comprehensive plan amendment	Quasi-judicial REZONING concurrent with quasi-judicial comprehensive plan amendment; ordinance required
	Recommendation on quasi-judicial COMPREHENSIVE PLAN MAP OR TEXT AMENDMENT	Quasi-judicial COMPREHENSIVE PLAN MAP OR TEXT AMENDMENTS; ordinance required
	Recommendation on ANNEXATION request	ANNEXATIONS as referred by the planning commission; ordinance required
	Recommendation on COMPREHENSIVE PLAN AND ZONING DESIGNATIONS made to lands ANNEXED to the city	The formal imposition of COMPREHENSIVE PLAN MAP AND ZONING DESIGNATIONS made to lands ANNEXED to the city
	Recommendation on DEVELOPMENT AGREEMENT	DEVELOPMENT AGREEMENT; ordinance required
	ANY OTHER LAND USE MATTER not specifically assigned to the director or the city council under this code	Appeal or referral
MINOR MODIFICATIONS TO CONDITIONAL USE PERMIT	Appeal or referral*
	ACCESS VARIANCE	Appeal or referral
NONCONFORMING STATUS	Appeal or referral*
		Supplemental application per ORS 227.184
	HISTORIC LANDMARK COMMISSION Public hearing	CITY COUNCIL Public hearing
	Recommendation on historic sites pursuant to Chapter 17.36 SHMC	Final decisions
	Approval for alterations and demolitions to historic sites pursuant to Chapter 17.36 SHMC	Appeals only

* Referrals can be appealed to the city council.

(Ord. 3189 § 2 (Att. A), 2015; Ord. 3084 § 2, 2008; Ord. 2875 § 1.070, Table A, 2003)