18.5.1.075 Middle Housing Land Divisions (MHLD)
Middle housing land division decisions are made by the Staff Advisor using the expedited land division procedure detailed below. Middle housing land divisions may be appealed to a referee/Hearings Officer. Middle housing land divisions are not a land use or limited land use decision.
A. Procedural Handling. Unless the applicant requests to use the land partition procedures in section 18.5.3.030, middle housing land divisions shall be processed under the expedited land divisions procedure from ORS 197.360 to 197.380 as detailed below:
1. Pre-Application Conference. A pre-application conference is voluntary for a middle housing land division.
2. Application Requirements. Applications for development permits shall be submitted upon forms established by the Staff Advisor. Applications will not be accepted in partial submittals, and all of the following items must be submitted to initiate completeness review:
a. Application Form and Fee. Applications for middle housing land divisions 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 application shall not be considered complete unless the appropriate application fee accompanies it.
b. Submittal Information. The application shall include all of the following information:
i. The information requested on the application form.
ii. Drawings and supplementary materials for preliminary plat as required in section 18.5.3.040.B.
iii. A narrative explanation of how the application satisfies each and all of the relevant criteria and standards in section 18.5.3.140.C.1.
iv. Additional materials necessary to demonstrate compliance with the Oregon Residential Specialty Code.
v. Information demonstrating compliance with all prior approvals and conditions of approval for the parent lot or parcel, as applicable.
3. Completeness Review. The Staff Advisor shall review the application submittal and advise the applicant in writing whether the application is complete or incomplete within 21 calendar days after the City receives the application submittal.
a. Incompleteness shall be based solely on failure to pay required fees, failure of the applicant’s narrative to address the relevant criteria or development standards, or failure to supply the required submittal information and shall not be based on differences of opinion as to the quality or accuracy of the information provided. Determination that an application is complete indicates only that the application contains the information necessary for a qualitative review of compliance with the applicable criteria and standards.
b. If the application was complete when first submitted or the applicant submits the additional information within 180 days of the date the application was first submitted, approval or denial of the application shall be based upon the applicable criteria and standards that were in effect at the time the application was first submitted.
c. If an application is incomplete, the completeness notice shall list what information is missing and allow the applicant to submit the missing information. The completeness notice shall include a form, designed to be returned to the Staff Advisor by the applicant, indicating whether or not the applicant intends to amend or supplement the application. For purposes of computation of time under this section, the application shall be deemed complete on the date the applicant submits the requested information or refuses in writing to submit it.
4. Notification.
a. Mailing of Notice of Complete Application. The Staff Advisor shall provide written notice of the receipt of the completed application for a middle housing land division to:
i. The applicant and/or authorized representative.
ii. The owner(s) of record of the subject property.
iii. Neighborhood group(s) or community organization(s) officially recognized by the City whose boundaries include or are within 100 feet of the subject property.
iv. Owners of record for properties located within 100 feet of the perimeter of the subject property.
v. Affected City departments, governmental agencies or special districts responsible for providing public facilities or services which are entitled to notice under an intergovernmental agreement with the City which includes provision for such notice or is otherwise entitled to such notice.
b. Content of Notice of Complete Application. The notice of the receipt of the completed application shall include all of the following:
i. The street address or other easily understood geographical reference to the subject property.
ii. A summary of the proposal.
iii. The time and place where copies of all evidence submitted by the applicant will be available for review.
iv. The applicable criteria for the decision, listed by commonly used citation.
v. The name and telephone number of a local government contact person.
vi. A brief summary of the local decision-making process for the middle housing land division.
vii. A statement that issues that may provide the basis for an appeal to the Hearings Officer must be raised in writing prior to the expiration of the comment period.
viii. A statement that issues must be raised with sufficient specificity to enable the local government to respond to the issue.
ix. The place, date and time that comments are due.
c. 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.
d. Comment Period. After notification according to the procedure set out above, the Staff Advisor shall provide a 14-day period for submission of written comments prior to the decision.
5. Decision. The Staff Advisor shall make a decision to approve or deny the application within 63 days of receiving a completed application, based on whether the application satisfies the substantive requirements of section 18.5.3.140.C.
a. Approval may include conditions to ensure that the application complies with the applicable criteria and standards for middle housing land divisions.
b. For middle housing land divisions, the Staff Advisor:
i. Shall not hold a hearing on the application; and
ii. Shall issue a written determination of compliance or noncompliance with applicable criteria and standards for middle housing land divisions that includes a summary statement explaining the determination.
c. The decision shall include a statement of the facts the Staff Advisor relied upon to determine whether the application satisfied or failed to satisfy each applicable approval criteria.
d. Notice of the decision shall be provided to the applicant and to those who received notice under subsection 18.5.1.075.A.4 within 63 days of the date of a completed application. The notice of decision shall include:
i. The summary statement described in subsection 18.5.1.075.A.5.b above; and
ii. An explanation of appeal rights under ORS 197.375 (Appeal of decision on application for expedited land division).
6. Appeals. An appeal of the Staff Advisor’s decision made under this section shall be made as follows:
a. An appeal must be filed within 14 days of mailing of the notice of the decision and be accompanied by a $300.00 deposit toward the cost of an appeal hearing. This deposit shall be refunded if the appellant materially improves his or her position from the Staff Advisor’s decision. The referee shall assess the cost of the appeal in excess of the deposit for costs, up to a maximum of $500.00, against an appellant who does not materially improve his or her position from the decision of the Staff Advisor.
b. A decision may be appealed by:
i. The applicant.
ii. Any person or organization who filed written comments within the 14-day comment period.
c. An appeal shall be based solely on allegations:
i. Of violation of the substantive provisions of the applicable criteria and standards;
ii. Of the unconstitutionality of the decision;
iii. That the application is not eligible for review as a Middle Housing Land Division under section 18.5.3.140 or as an expedited land division under ORS 197.360 through 197.380 and should instead be reviewed as a land use decision or limited land use decision; or
iv. That the parties’ substantive rights have been substantially prejudiced by an error in procedure.
d. The City of Ashland’s Hearings Officer is designated as the referee for appeals of a decision made under this section and ORS 197.360 and 197.365.
e. Within seven days of receiving the appeal, the City, on behalf of the Hearings Officer, shall notify the applicant, the appellant if other than the applicant, any person or organization entitled to notice under section 18.5.1.075.A.4.a that provided written comments to the local government and all providers of public facilities and services entitled to notice under section 18.5.1.075.A.4.a and advise them of the manner in which they may participate in the appeal. A person or organization that provided written comments to the local government but did not file an appeal under subsection 18.5.1.075.A.6 may participate only with respect to the issues raised in the written comments submitted by that person or organization. The Hearings Officer may use any procedure for decision-making consistent with the interests of the parties to ensure a fair opportunity to present information and argument. The Hearings Officer shall provide the local government an opportunity to explain its decision but is not limited to reviewing the local government decision and may consider information not presented to the local government.
f. The Hearings Officer shall apply the substantive requirements of section 18.5.3.140.C and ORS 197.360. If the Hearings Officer determines that the application does not qualify as an expedited land division under ORS 197.360 or a middle housing land division under section 18.5.3.140, the Hearings Officer shall remand the application for consideration as a land use decision or limited land use decision. In all other cases, the Hearings Officer shall seek to identify means by which the application can satisfy the applicable requirements.
g. The Hearings Officer shall not reduce the density of the land division application.
h. The Hearings Officer shall make a written decision approving or denying the application or approving it with conditions designed to ensure that the application satisfies the applicable criteria and standards, within 42 days of the filing of an appeal. The Hearings Officer shall not remand the application to the local government for any reason other than as set forth in this subsection.
i. Unless the City Council finds exigent circumstances, a Hearings Officer who fails to issue a written decision within 42 days of the filing of an appeal shall receive no compensation for service as Hearings Officer in the appeal.
j. Notwithstanding any other provision of law, the Hearings Officer shall order the local government to refund the deposit for costs to an appellant who materially improves his or her position from the decision of the local government. The Hearings Officer shall assess the cost of the appeal, up to a maximum of $500.00, against an appellant who does not materially improve his or her position from the decision of the local government. The local government shall pay the portion of the costs of the appeal not assessed against the appellant. The costs of the appeal include the compensation paid the Hearings Officer and costs incurred by the local government, but not the costs of other parties.
k. The Land Use Board of Appeals (LUBA) does not have jurisdiction to consider any decisions, aspects of decisions or actions made for middle housing land divisions under section 18.5.3.140 or expedited land divisions under ORS 197.360 through 197.380.
l. Any party to a proceeding before a Hearings Officer under this section may seek judicial review of the Hearings Officer’s decision in the manner provided for review of final orders of the Land Use Board of Appeals (LUBA) under ORS 197.850 and 197.855. The Court of Appeals shall review decisions of the Hearings Officer in the same manner as provided for review of final orders of the Land Use Board of Appeals (LUBA) in those statutes. However, notwithstanding ORS 197.850(9) or any other provision of law, the court shall reverse or remand the decision only if the court finds:
i. That the decision does not concern middle housing land divisions under section 18.5.3.140 or expedited land divisions under ORS 197.360 and the appellant raised this issue in proceedings before the Hearings Officer;
ii. That there is a basis to vacate the decision as described in ORS 36.705(1)(a) through (d), or a basis for modification or correction of an award as described in ORS 36.710; or
iii. That the decision is unconstitutional. (Ord. 3217 § 2, added, 02/21/2023)