Type II decisions are made by the Planning Commission after a public hearing, with an opportunity for appeal to the City Council.
A. Application Requirements.
1. Application Form and Fee. Applications for Type II review shall be made on forms provided by the Staff Advisor. One or more property owners of the property for which the planning action is requested, and their authorized agent, as applicable, must sign the application. The required application fee must accompany the application for it to be considered complete.
2. Submittal Information. The application shall include all of the following information.
a. The information requested on the application form.
b. Plans and exhibits required for the specific approvals sought.
c. A written statement or letter explaining how the application satisfies each and all of the relevant criteria and standards in sufficient detail.
d. Information demonstrating compliance with all prior decision(s) and conditions of approval for the subject site, as applicable.
e. The required fee.
B. Initial Evidentiary Hearing. Once a Type II application is deemed complete, the Staff Advisor may hold an initial evidentiary hearing pursuant to ORS 227.165. The Staff Advisor shall transmit copies of the record developed at the evidentiary hearing to the Planning Commission for consideration at the public hearing.
C. Notice of Public Hearing.
1. Mailing of Notice of Public Hearing.
a. The City shall mail notice of public hearing not less than ten days before the hearing. Such notice shall be mailed to all individuals and organizations listed below.
ii. Owners of the subject property.
iii. Owners of record for properties located within 200 feet of the perimeter of the subject site.
iv. Neighborhood group or community organization officially recognized by the City that includes the area of the subject property.
v. Any person who submits a written request to receive a notice.
2. Owners of Record. The notices shall be mailed to owners of record of property on the most recent property tax assessment roll. See section 18.104.22.168 Failure to Receive Notice.
3. Content of Notice of Public Hearing. Notices mailed and posted pursuant to this section shall contain all of the following information.
a. The street address or other easily understandable reference to the location of the proposed use or development.
b. A summary of the proposal.
c. The applicable criteria for the decision, listed by commonly used citations.
d. The date, time and location of the scheduled hearing.
e. A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards are available for review and that copies will be provided at a reasonable cost.
f. The name and phone number of a City contact person.
g. A statement that a copy of the City’s staff report and recommendation to the hearings body will be available for review at no cost at least seven days before the hearing, and that a copy will be provided on request at a reasonable cost.
h. A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings.
i. A statement that after the public hearing closes the City will issue its decision and mail it to the applicant and to anyone else who submitted written comments or provided oral testimony in the public hearing.
j. A disclosure statement that an issue which may be the basis for an appeal to the Land Use Board of Appeals shall be raised not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied by statements or evidence sufficient to afford the hearings body and the parties an adequate opportunity to respond to each issue.
4. Posted Notice. The City shall post the notice of public hearing on the project site in clear view from a public right-of-way using a poster format prescribed by the Staff Advisor. Posting shall occur not later than the date of the mailing of the notice.
5. Certification of Notices. The City shall prepare an affidavit or other certification stating the date(s) the notices were mailed and posted, which shall be made a part of the file.
6. Newspaper Notice. In addition to the mailed and posted notice specified in subsection 18.5.1.060.C, above, the City shall publish a notice in a newspaper of general circulation in the City at least ten days prior the date of the public hearing.
D. Conduct of the Public Hearing.
1. Announcements. At the commencement of the hearing, the Chairperson, or his or her designee, shall state to those in attendance all of the following information and instructions.
a. The applicable approval criteria by ordinance chapter that apply to the application.
b. Testimony and evidence shall concern the approval criteria described in the staff report, or other criteria in the comprehensive plan or land use regulations that the person testifying believes to apply to the decision.
c. Failure to raise an issue with sufficient detail to give the hearing body and the parties an opportunity to respond to the issue may preclude appeal to the State Land Use Board of Appeals on that issue.
d. At the conclusion of the initial evidentiary hearing, the hearing body shall deliberate and make a decision based on the facts and arguments in the public record.
e. Any participant may ask the hearing body for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing; if the hearing body grants the request, it will schedule a date to continue the hearing as provided in subsection 18.5.1.060.C.5, below, or leave the record open for additional written evidence or testimony as provided in subsection 18.5.1.060.D.6, below.
2. Ex Parte Contacts and Conflict of Interest. The public is entitled to an impartial hearing body as free from potential conflicts of interest and pre-hearing ex parte (outside the hearing) contacts as reasonably possible. After the announcements are made, the Planning Commission or City Council members shall declare any actual or potential conflicts of interest and any ex parte contacts including the substance of those contacts and any conclusions the member reached because of those contacts.
a. No member shall serve on any proceeding in which such member has an actual conflict of interest; in which the member, or those persons or businesses described in ORS 227.035, has a direct or substantial financial interest; or in which the member is biased. If a member refuses to disqualify him or herself, the Hearings Board, for hearings before the Board; the Planning Commission, for hearings before the Commission, or the City Council for hearings before the Council, shall have the power to remove such member for that proceeding.
b. All parties shall be advised that they have the right to rebut the substance of any ex parte communications.
3. Presenting and Receiving Evidence.
a. The hearing body may set reasonable time limits for oral presentations and may limit or exclude cumulative, repetitious, irrelevant, or personally derogatory testimony or evidence.
b. No oral testimony shall be accepted after the close of the public hearing. Written testimony may be received after the close of the public hearing only as provided by this section.
c. Members of the hearing body may visit the property and the surrounding area, and may use information obtained during the site visit to support their decision, if the information relied upon is disclosed at the beginning of the hearing and an opportunity is provided to dispute the evidence.
4. The hearing body, in making its decision, shall consider only facts and arguments in the public hearing record, except that the hearing body may take notice local, state, or federal regulations; previous City decisions; case law; staff reports and similar evidence not in the record upon announcing its intention to take notice of such facts. Where the hearing body takes notice of new facts in its deliberations, it must allow persons who previously participated in the hearing to request the hearing record be reopened and to present evidence concerning the newly presented facts.
5. If the hearing body decides to continue the hearing, the hearing shall be continued to a date that is at least seven days after the date of the first evidentiary hearing; where the date is announced during the proceedings of the subject hearing, the City is not required to issue new notices. An opportunity shall be provided at the continued hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the continued hearing, any person may request, before the conclusion of the hearing, that the record be left open for at least seven days, so that they can submit additional written evidence or arguments in response to the new written evidence. In the interest of time, the hearing body may close the hearing and limit additional testimony to arguments and not accept additional evidence.
6. If the hearing body leaves the record open for additional written testimony, the record shall be left open for at least seven days after the hearing. Any participant may ask the hearing body in writing for an opportunity to respond to new evidence (i.e., information not disclosed during the public hearing) submitted when the record was left open). If such a request is filed, the hearing body shall reopen the record, as follows.
a. When the record is reopened to admit new evidence or arguments (testimony), any person may raise new issues that relate to that new evidence or testimony.
b. An extension of the hearing or record granted pursuant to this section is subject to the limitations of subsection 18.5.1.090.B (ORS 227.178 - “120-day rule”), unless the applicant voluntarily waives his or her right to a final decision being made within 120 days of filing a complete application.
c. If requested by the applicant, the hearing body shall grant the applicant at least seven days after the record is closed to all other persons to submit final written arguments, but not evidence, provided the applicant may expressly waive this right.
E. Notice of Decision.
1. Mailing of Notice of Decision. The City shall mail notice of the decision to the following.
a. Applicant or authorized agent.
b. Owners of the subject property.
d. Parties of record; this includes any group or individual who submitted written comments during the comment period.
e. Those groups or individuals who requested notice of the decision.
2. Content of Notice of Decision. The notice shall include all of the following.
a. The decision.
b. Findings relied upon in making the decision.
c. Conditions of approval.
d. A statement that the decision becomes final when the period for filing a local appeal has expired.
e. An explanation that a person who is mailed written notice of the decision cannot appeal directly to LUBA; an appeal must be filed with the City before a party with standing may appeal to LUBA.
F. Certification of Notices. The City shall prepare an affidavit or other certification stating the date(s) the notices were mailed and posted, which shall be made a part of the file.
G. Effective Date of Decision. Unless a condition of approval specifies otherwise or the decision is appealed pursuant to subsection 18.5.1.060.I, a Type II decision becomes effective ten days after the City mails the notice of decision.
H. Reconsideration. Reconsideration requests are limited to errors identified below and not the failure of an issue to be raised by letter or evidence during the opportunity to provide public input on the application sufficient to afford the Staff Advisor an opportunity to respond to the issue prior to making a decision. The Staff Advisor may reconsider a Type II decision as set forth below.
1. The Staff Advisor on his/her own motion, or any party entitled to notice of the planning action may request reconsideration of the action after the Planning Commission final decision has been made by providing evidence to the Staff Advisor addressing one or more of the following.
a. New evidence material to the decision exists which was unavailable, through no fault of the requesting party, when the record of the proceeding was open.
b. A factual error occurred through no fault of the requesting party which is relevant to an approval criterion and material to the decision.
c. A procedural error occurred, through no fault of the requesting party, that prejudiced the requesting party's substantial rights and remanding the matter will correct the error.
2. Reconsideration requests shall be received within seven days of mailing the notice of decision. The Staff Advisor shall promptly decide whether to reconsider the matter.
3. If the Staff Advisor is satisfied that an error occurred as identified above and is crucial to the decision, the Staff Advisor shall schedule reconsideration with notice to parties before the Planning Commission. Reconsideration shall be scheduled before the Commission at the next regularly scheduled meeting. Reconsideration shall be limited to the portion of the decision affected by the alleged errors identified in subsection 18.5.1.060.H.1, above.
4. The Planning Commission shall decide to affirm, modify, or reverse the original decision. The City shall send notice of the reconsideration decision to affirm, modify, or reverse to any party entitled to notice of the planning action.
5. If the Staff Advisor is not satisfied that an error occurred crucial to the decision, the Staff Advisor shall deny the reconsideration request. Notice of denial shall be sent to those parties that requested reconsideration.
I. Appeal of Type II Decision. The City Council may call up a Type II decision pursuant to section 18.5.1.060.J. A Type II decision may also be appealed to the Council as follows.
1. Who May Appeal. Appeals may only be filed by parties to the planning action. "Parties" shall be defined as the following.
a. The applicant.
b. Persons who participated in the public hearing, either orally or in writing. Failure to participate in the public hearing, either orally or in writing, precludes the right of appeal to the Council.
c. Persons who were entitled to receive notice of the action but did not receive notice due to error.
2. Appeal Filing Procedure.
a. Notice of Appeal. Any person with standing to appeal, as provided in subsection 18.5.1.060.I.1, above, may appeal a Type II decision by filing a notice of appeal and paying the appeal fee according to the procedures of this subsection.
b. Time for Filing. The notice of appeal shall be filed with the City Administrator within ten days of the date the notice of decision is mailed.
c. Content of Notice of Appeal. The notice shall include the appellant's name, address, a reference to the decision sought to be reviewed, a statement as to how the appellant qualifies as a party, the date of the decision being appealed, and a clear and distinct identification of the specific grounds for which the decision should be reversed or modified, based on identified applicable criteria or procedural irregularity.
d. The appeal requirements of this section must be fully met or the appeal will be considered by the City as a jurisdictional defect and will not be heard or considered.
3. Mailed Notice. The City shall mail the notice of appeal together with a notice of the date, time, and place to consider the appeal by the City Council to the parties, as provided in subsection 18.5.1.060.I.1, at least 20 days prior to the meeting.
4. Scope of Appeal.
a. Except upon the election to reopen the record as set forth in subsection 18.5.1.060.I.4.b, below, the review of a decision of the Planning Commission by the City Council shall be confined to the record of the proceeding before the Commission. The record shall consist of the application and all materials submitted with it; documentary evidence, exhibits, and materials submitted during the hearing or at other times when the record before the Commission was open; recorded testimony; (including DVDs when available), the executed decision of the Commission, including the findings and conclusions. In addition, for purposes of Council review, the notice of appeal and the written arguments submitted by the parties to the appeal, and the oral arguments, if any, shall become part of the record of the appeal proceeding.
b. Reopening the Record. The City Council may reopen the record and consider new evidence on a limited basis, if such a request to reopen the record is made to the City Administrator together with the filing of the notice of appeal and the City Administrator determines prior to the Council appeal hearing that the requesting party has demonstrated one or more of the following.
i. That the Planning Commission committed a procedural error, through no fault of the requesting party, that prejudiced the requesting party's substantial rights and that reopening the record before the Council is the only means of correcting the error.
ii. That a factual error occurred before the Commission through no fault of the requesting party which is relevant to an approval criterion and material to the decision.
iii. That new evidence material to the decision on appeal exists which was unavailable, through no fault of the requesting party, when the record of the proceeding was open, and during the period when the requesting party could have requested reconsideration. A requesting party may only qualify for this exception if he or she demonstrates that the new evidence is relevant to an approval criterion and material to the decision. This exception shall be strictly construed by the Council in order to ensure that only relevant evidence and testimony is submitted to the hearing body.
iv. Re-opening the record for purposes of this section means the submission of additional written testimony and evidence, not oral testimony or presentation of evidence before the Council.
5. Appeal Hearing Procedure. The decision of the City Council is the final decision of the City on an appeal of a Type II decision, unless the decision is remanded to the Planning Commission.
a. Oral Argument. Oral argument on the appeal shall be permitted before the Council. Oral argument shall be limited to ten minutes for the applicant, ten for the appellant, if different, and three minutes for any other party who participated below. A party shall not be permitted oral argument if written arguments have not been timely submitted. Written arguments shall be submitted no less than ten days prior to the Council consideration of the appeal. Written and oral arguments on the appeal shall be limited to those issues clearly and distinctly set forth in the notice of appeal; similarly, oral argument shall be confined to the substance of the written argument.
b. Scope of Appeal Deliberations. Upon review, and except when limited reopening of the record is allowed, the Council shall not re-examine issues of fact and shall limit its review to determining whether there is substantial evidence to support the findings of the Planning Commission, or to determining if errors in law were committed by the Commission. Review shall in any event be limited to those issues clearly and distinctly set forth in the notice of appeal. No issue may be raised on appeal to the Council that was not raised before the Commission with sufficient specificity to enable the Commission and the parties to respond.
c. Council Decision. The Council may affirm, reverse, modify, or remand the decision and may approve or deny the request, or grant approval with conditions. The Council shall make findings and conclusions, and make a decision based on the record before it as justification for its action. The Council shall cause copies of a final order to be sent to all parties participating in the appeal. Upon recommendation of the Administrator, the Council may elect to summarily remand the matter to the Planning Commission. If the Council elects to remand a decision to the Commission, either summarily or otherwise, the Commission decision shall be the final decision of the City, unless the Council calls the matter up pursuant to subsection 18.5.1.060.J.
6. Record of the Public Hearing. For purposes of City Council review, the notice of appeal and the written arguments submitted by the parties to the appeal, and the oral arguments, if any, shall become part of the record of the appeal proceeding.
The public hearing record shall include the following information.
a. The notice of appeal and the written arguments submitted by the parties to the appeal.
b. Copies of all notices given as required by this chapter, and correspondence regarding the application that the City mailed or received.
c. All materials considered by the hearings body including the application and all materials submitted with it.
d. Documentary evidence, exhibits and materials submitted during the hearing or at other times when the record before the Planning Commission was open.
e. Recorded testimony (including DVDs when available).
f. All materials submitted by the Staff Advisor to the hearings body regarding the application;
g. The minutes of the hearing.
h. The final written decision of the Commission including findings and conclusions.
7. Effective Date and Appeals to State Land Use Board of Appeals. City Council decisions on Type II applications are final the date the City mails the notice of decision. Appeals of Council decisions on Type II applications must be filed with the State Land Use Board of Appeals, pursuant to ORS 197.805 - 197.860.
J. City Council Call-Up of Planning Commission Decision. The City Council may call up any planning action for a decision upon motion and majority vote, provided such vote takes place in the required appeal period. Unless the planning action is appealed and a public hearing is required, the Council review of the Planning Action is limited to the record and public testimony is not allowed. The Council may affirm, modify, or reverse the decision of the Planning Commission, or may remand the decision to the Commission for additional consideration if sufficient time is permitted for making a final decision of the city. The Council shall make findings and conclusions and cause copies of a final order to be sent to all parties of the planning action.