A. Purpose.
The purpose of this Chapter is to establish procedures for approval
of development required by this Code, appeals from aggrieved persons
and parties, and review of any decision by a higher authority.
B. Review
process. An application for development approval required by this
Code shall be processed by quasi-judicial public hearing or administrative
action, pursuant to applicable provisions of this Code. Quasi-judicial
hearings shall be held on all applications, except that hearings shall
not be held in those matters the Director has authority to act upon,
unless appealed or referred pursuant to the provisions of this Chapter.
Notwithstanding anything required by this Code, when requested by
the applicant, an application for development approval which is an
"expedited land division" as defined by state law shall be processed
according to the procedures set forth in state law and shall not be
subject to this Chapter.
C. Coordination
of development approval.
1. The
Community Development Director shall be responsible for the coordination
of a development application and decision-making procedures, and shall
approve or recommend that the Approving Authority approve developments
when proper application is made and the proposed development is in
compliance with the provisions of this Code and the Roseburg Urban
Area Comprehensive Plan. Before approving or recommending approval
of any development, the Director shall be provided with information
by the applicant sufficient to establish full compliance with the
requirements of this Code and the Plan. Before approving any development,
the Director shall consider comments received from other public agencies
during the comment and public hearing period.
2. After
an application has been submitted, no building or occupancy permit
for the proposed use shall be issued until final action has been taken.
D. Who
may apply. Applications for development approval may be initiated
by one or more of the following:
1. The
owner of the property which is the subject of the application; or
2. The
purchaser of such property who submits a duly executed written contract
or copy thereof; or
3. A
lessee in possession of such property who submits written consent
of the owner to make such application; or
4. Resolution
of the City Council.
E. Pre-application
conference. An applicant may request a pre-application conference
prior to submitting a request for development approval. The purpose(s)
of the conference may include: to acquaint the applicant with the
substantive and procedural requirements of this Code, provide for
an exchange of information regarding applicable elements of the Comprehensive
Plan and development requirements, arrange such technical and design
assistance as will aid the applicant, and to identify policies and
regulations that create opportunities or pose significant constraints
for the proposed development. The requirements of this Section may
be waived at the discretion of the Community Development Director.
F. Application.
Application for development approval shall be made pursuant to applicable
provisions of this Code on forms provided by the Community Development
Director. An application shall be complete, contain the information
required by this Code, and address the appropriate criteria for review
and approval of the request. All documents or evidence relied upon
by the applicant shall be submitted to the Director and be made available
to the public. All applications shall be accompanied by the required
fee.
G. General
provisions regarding notice.
1. The
records of the Douglas County Assessor's Office shall be used for
notice required by this Code. Persons whose names and addresses are
not on file with the Assessor at the time of the filing of the application
need not be notified of the action. The failure of a person to receive
notice shall not impair or invalidate the action if the City can demonstrate
by affidavit that the prescribed notice was sent to the persons entitled
thereto as shown by the Assessor's records.
2. Any
person who requests, in writing, and pays a fee established by the
Community Development Director, shall be entitled to receive copies
of notices for applications for development approvals, either on an
urban area wide or site-specific basis, as specified by such person.
3. Public
agencies providing transportation facilities and services shall be
notified of the following:
a. Land use applications that require a public hearing;
b. Subdivision and partition applications;
c. Applications that involve major private access to public streets
and roads, such as private streets, and large commercial and multi-family
developments;
d. Applications within the Airport Impact Overlay Section
12.04.080 of this Code.
H. Establishment
of party status.
1. In
order to have standing under this Section, a person shall be recognized
as a party by the Approving Authority. Party status, when recognized
by the Approving Authority, establishes the right of the person to
be heard, whether orally or in writing, and to pursue a review or
appeal under this Chapter.
2. Party
status may be established by a written request for establishment of
party status made at least eight days before the date set for a quasi-judicial
public hearing or administrative decision of the Community Development
Director by a person filing with the Community Development Department
a written statement regarding the application being considered. Such
statement shall include:
a. The name, address, and telephone number of the person filing the
statement;
b. How the person qualifies as a party, as defined in Chapter
12.02 of this Code;
c. Comments which the party wishes to make with respect to the application
under consideration; and
d. Whether the person desires to appear and be heard at the hearing.
3. Seven
or more days before the date set for a public hearing, the Community
Development Director shall mail the applicant any statements that
have been filed to date.
4. Party status may also be established by a person or entity providing testimony at the hearing of the Approving Authority before the close of the evidentiary portion thereof, and providing sufficient basis for qualifying as a party, as defined in Chapter
12.02 of this Code.
I. Limited
land use decisions by the Director. The Community Development Director
shall have the authority to review the following applications for
administrative action, as limited land use decisions, and shall follow
the procedure provided by this Code and by state law to accomplish
such review:
J. Ministerial
decisions by the Director. The Community Development Director shall
have the authority to review the following applications as ministerial
decisions and shall follow the procedures provided by this Code and
by state law to accomplish such review:
2. Common Boundary Line Adjustments (Subsection
12.12.010(U) of this Code);
3. Signs
Permit (Section 12.08.02 of this Code);
5. Residential Site Plan Review (Section
12.06.010 of this Code).
K. Comprehensive
plan standards and limited land use decisions.
1. The following comprehensive plan standards are applicable to partitions (Chapter
12.12) and are fully incorporated herein by this reference:
a. Natural Resources Policies 6, 7, 8, 11, 12, 13, 14, 17, and 18;
b. Economic Growth Policy 7;
c. Transportation Polices 1, 4, 5, 6, 7, 10, 11, 14, and 15;
d. Energy Conservation Policies 2 and 3;
e. Facilities and Services Policies 2, 3, 5, 7, 8, 9, 10, and 11;
f. Housing Policies 1, 2, 3, 4, 5, 6, 7, 8, and 10;
g. Urbanization, Land Use, and Growth Management (Urban Growth) Policies
3, 5, 6, 7, 8, 10, 11, 12, and 13;
h. Residential Development (Urban Growth) Policy 1;
i. Commercial Development (Urban Growth) Policies 6, 7, 8, 9, and 12;
j. Industrial Development (Urban Growth) Policies 1, 2, and 4;
k. Transportation Development (Urban Growth) Policies 1, 2, 3, and 4;
l. Resource Area and Hazardous Area Development (Urban Growth) Policies
2, 3, and 4.
2. The following Comprehensive Plan standards are applicable to Subdivision preliminary plat (Chapter
12.12) and are fully incorporated herein by this reference:
a. Natural Resources Policies 6, 7, 8, 11, 12, 13, 14, 17, and 18;
b. Economic Growth Policy 7;
c. Transportation Polices 1, 4, 5, 6, 7, 10, 11, 14, and 15;
d. Energy Conservation Policies 2 and 3;
e. Facilities and Services Policies 2, 3, 5, 7, 8, 9, 10, and 11;
f. Housing Policies 1, 2, 3, 4, 5, 6, 7, 8, and 10;
g. Urbanization, Land Use, and Growth Management (Urban Growth) Policies
3, 5, 6, 7, 8, 10, 11, 12, and 13;
h. Residential Development (Urban Growth) Policy 1;
i. Commercial Development (Urban Growth) Policies 6, 7, 8, 9, and 12;
j. Industrial Development (Urban Growth) Policies 1, 2, and 4;
k. Transportation Development (Urban Growth) Policies 1, 2, 3, and 4;
l. Resource Area and Hazardous Area Development (Urban Growth) Policies
2, 3, and 4.
L. Other
administrative actions. The Community Development Director shall have
the authority to review the following applications for administrative
action, as well as all other reviews and other actions required by
other provisions of this Code constituting land use decisions and
not specifically listed elsewhere in this Chapter:
1. Administrative variance, except where Planning Commission review is required by Section
12.10.060 of this Code;
2. Temporary Use Permit (Section
12.10.090 of this Code);
3. Alteration or Repair of a Nonconforming Use (Section
12.08.010 of this Code);
4. Private Road Approval (Chapter
12.12 of this Code);
5. Conditional Use Permit (Section
12.10.080 of this Code);
M. Notice
of administrative action.
1. Notice of applications for administrative actions pursuant to Subsections
12.10.010(I) and
12.10.010(L) shall be sent by the Community Development Director to all property owners within 100 feet of the property subject to the application at least 15 days prior to the decision.
2. Notice
shall also be posted by the applicant in at least three conspicuous
places in the immediate vicinity of the property which is the subject
of the application at least 10 days prior to the date of the action.
An affidavit of posting shall be filed by the applicant or his/her
authorized representative on a form to be provided by the Director.
3. The
notice shall:
a. Include the location, file number, and title of the file containing
the request and the date such notice was sent.
b. Include a description of the subject property, reasonably calculated
to give notice as to its actual location and for the purpose of this
Section, shall include, but not be limited to, metes and bounds descriptions
or the tax map designations of the Douglas County Assessor's Office.
c. Include the deadline established for rendering a final decision.
d. Include the deadline for filing comments on the request.
e. Explain the nature of the application and the proposed use or uses
which could be authorized.
f. List the applicable criteria from this Code and the plan that apply
to the application at issue.
g. Set forth the street address or other easily understood geographical
reference to the subject property.
h. State that failure of an issue to be raised or failure to provide
statements or evidence sufficient to afford the Approving Authority
an opportunity to respond to the issue precludes appeal based on that
issue.
i. Include the name of a City representative to contact and the telephone
number where additional information may be obtained.
j. State that a copy of the application, all documents and evidence
submitted by or on behalf of the applicant and applicable criteria
are available for inspection at no cost and will be provided at reasonable
cost.
N. Administrative
action procedure.
1. Within 45 days after accepting a completed application for administrative action pursuant to Subsection
12.10.010(I) or
12.10.010(L) of this Code, the Community Development Director shall act on the application or refer it to the Planning Commission, unless such time limitation is extended with the consent of the applicant.
2. Within
such 45-day period, the Director shall:
b. Prepare a decision to approve or deny the request including findings
of fact and conclusions of law or refer the application to the Planning
Commission. Approvals may include conditions considered necessary
to assure conformance with the purpose and intent of this Code.
3. If the application does not meet the criteria, or if written objections are received, or if the applicant or the Community Development Director so desire for any reason, the Director may schedule any application for public hearing before the Planning Commission, as if on appeal pursuant to Subsection
12.10.010(Q) and the Commission shall hear and decide the matter as if the matter were listed in Subsection
12.10.010(R).
4. The
Community Development Director shall provide for a register of all
applications for administrative action which have been filed, all
such applications which have been acted upon initially and are awaiting
final decision, and all such applications which are the subject of
administrative review or appeal.
O. Decision
of the Director.
1. In making a decision on an administrative action under Subsection
12.10.010(I) or
12.10.010(L), the Community Development Director shall consider the following:
a. The burden of proof is placed upon the applicant seeking an action
pursuant to the provisions of this Chapter. Unless otherwise provided
for in this Section, such burden shall be to prove:
i. The proposed action fully complies with the applicable land use map
element of the Comprehensive Plan, and also the written policies of
the Comprehensive Plan.
ii. The proposed action is in accordance with the applicable criteria
of this Code.
b. Written comments from parties.
2. In
all cases, the Director shall prepare findings and conclusions to
justify his/her decision.
3. If
an application is denied by the Director, and no higher authority
reverses such denial upon appeal, no new application for the same
or substantially similar action shall be filed for at least 12 months
from the date of the prior application.
P. Notice
of a decision by the Director.
1. Notice
of a decision by the Community Development Director shall be filed
in the records of the Director, and mailed to the applicant and all
parties. Notice shall also be forwarded to the Planning Commission
and the City Council.
2. Notice
of a decision shall contain:
a. Identification of the application;
b. Where the findings of fact and decision may be found;
c. Other information pertinent to the application, if any;
d. The date of the decision of the Director;
e. Notice that any party may appeal the decision within 14 days from
the date of the decision by filing a timely statement with the Director.
3. The
decision of the Director shall be final unless an appeal from a party
or a person or entity aggrieved by the decision is received by the
Director within the 14 days after the date of a decision on an administrative
action, or unless any two members of the Commission or City Council
request review within 14 days after the date of the proposed decision.
Q. Appeal
from decision of the Director.
1. Any
action taken by the Community Development Director in the interpretation,
administration, or enforcement of this Code shall be subject to review
by the Commission.
2. Any
party or any person or entity aggrieved by the decision may appeal
a decision of the Director relative to an administrative action.
3. The
Planning Commission may review the action of the Director upon written
notice from two members of the Commission filed within 14 days of
the Director's decision, or upon receipt of a notice of appeal as
prescribed herein. For the purposes of this Section, an appeal shall
be filed with the Director no later than 14 days following the date
of the decision or action of the Director.
4. Every
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 relied upon in the petition request for review.
d. The date of the final decision on the action.
5. The
appeal shall be accompanied by the required fee. The maximum fee shall
be the cost to the City of preparing for and conducting the appeal,
or $500.00, whichever is less.
6. At least 15 days prior to the date of the Commission hearing, the Director shall give notice as provided by Subsection
12.10.010(S) of the time and place of the hearing to all parties.
7. Appeal of an action of the Community Development Director to the Planning Commission shall be de novo and shall be conducted in accordance with Subsection
12.10.010(T).
R. Land use decisions of the Commission. The following applications for development approval shall be heard by the Planning Commission, pursuant to Subsection
12.10.010(T) of this Code:
1. Planned Unit Development (Section
12.12.020 of this Code).
2. Comprehensive Plan Map Amendment recommendations to the City Council (Subsection
12.10.130(G) of this Code).
3. Revocation hearing (Section
12.10.130 of this Code).
4. Reviews and appeals of actions and interpretations by the Community Development Director (Subsection
12.10.010(Q) of this Code).
5. Appeals of decisions of the Community Development Director (Subsection
12.10.010(Q) of this Code).
6. Interpretations of Title
12 of this Code as outlined in Section
12.02.070.
7. Matters referred to the Commission by the Director pursuant to Subsection
12.10.010(N) of this Code.
8. Administrative Variance as required by Section
12.10.060 of this Code.
9. Family Hardship Permit (Section
12.10.100 of this Code).
10. Zone Change recommendations to the City Council (Section
12.10.040 of this Code).
S. Notice
of commission hearings.
1. At least 20 days prior to the date of a quasi-judicial public hearing under Subsection
12.10.010(R) of this Code, notice shall be sent by mail to: the applicant and all owners or contract purchasers of record of the property which is the subject of the application; all owners of property within 300 feet of the property; and any affected governmental agency which has entered into an agreement with the City to coordinate planning efforts and to receive notices of such hearings.
2. Notice
shall also be posted by the applicant in three conspicuous places
in the immediate vicinity of the property which is the subject of
the application at least 15 days prior to the date of the hearing.
3. Notice
shall also be given by publication in a newspaper of general circulation
in the area affected at least 20 days prior to the date of the hearing.
An affidavit of publication shall be made part of the record.
4. If
an application would change the zone of property which includes all
or part of a mobile home park, written notice shall also be given
by first class mail to each existing mailing address for tenants of
the mobile home park at least 20 days but not more than 40 days before
the date of the first hearing on the application. The Director may
require the applicant for such a zone change to pay the cost of such
notice.
5. The
notice shall:
a. Include the location, file number, and title of the file containing
the request and the date such notice was sent.
b. Include a description of the subject property, reasonably calculated
to give notice as to its actual location, and for the purpose of this
Section, shall include, but not be limited to, metes and bounds descriptions
or the tax map designations of the Douglas County Assessor's Office.
c. Include the deadline for filing comments on the request.
d. Explain the nature of the application and the proposed use or uses
which could be authorized.
e. List the applicable criteria from this Code and the plan that apply
to the application at issue.
f. Set forth the street address or other easily understood geographical
reference to the subject property.
g. State the date, time, and location of the hearing.
h. State that failure of an issue to be raised in a hearing, in person
or by letter, or failure to provide statements or evidence sufficient
to afford the Approving Authority an opportunity to respond to the
issue precludes appeal based on that issue.
i. Include the name of a City representative to contact and the telephone
number where additional information may be obtained.
j. State that a copy of the application, all documents and evidence
submitted by or on behalf of the applicant, and applicable criteria
are available for inspection at no cost and will be provided at reasonable
cost.
k. State that a copy of the staff report will be available for inspection
at no cost at least seven days prior to the hearing and will be provided
at reasonable cost.
l. Include a general explanation of the requirements for submission
of testimony and the procedure for conduct of hearings.
T. Hearing
procedure.
1. Any
staff report used at the hearing shall be available at least seven
days prior to the hearing. If additional documents or evidence are
provided by any party, the Approving Authority may allow a continuance
or leave the record open to allow the parties a reasonable opportunity
to respond. Any continuance or extension of the record requested by
the applicant shall result in a corresponding extension of the time
limitations of ORS 227.178.
2. Any
and all issues which may be the basis for an appeal shall be raised
and accompanied by statements or evidence sufficient to afford the
Approving Authority and the parties an adequate opportunity to respond
to each issue.
3. In
the conduct of a public hearing, the Approving Authority shall have
the authority, pursuant to the provisions of this Code, to:
a. Dispose of procedural requirements or similar matters.
b. Rule on offers of proof and relevancy of evidence and testimony.
c. Impose reasonable limitations on the number of witnesses heard and
set reasonable time limits for oral presentation, cross-examination
of witnesses, and rebuttal of testimony.
d. Take such other action appropriate for conduct commensurate with
the nature of the hearing.
e. Grant, deny, or, in appropriate cases, attach conditions to the matter
being heard.
4. The
applicant or any party wishing to subpoena witnesses to a hearing
may do so by application to the Community Development Director. Such
subpoenas shall be enforceable upon proper completion and inclusion
of those fees applicable to civil cases in the Douglas County Circuit
Court. Payment of fees and services shall be the responsibility of
the party desiring such service.
5. Order
of Procedure. Unless otherwise specified, the Approving Authority,
in the conduct of a hearing, shall:
a. At the commencement of the hearing, read a statement to those in
attendance that:
i. Lists the applicable substantive criteria;
ii. States that testimony and evidence must be directed toward the criteria described in Subparagraph (5)(a)(i) above of Subsection
12.10.010(T) or other criteria in the plan or this Code which the person believes to apply to the decision; and
iii.
States that failure to raise an issue accompanied by statements
or evidence sufficient to afford the Approving Authority and the parties
an opportunity to respond to the issue precludes appeal based on that
issue.
b. Announce the nature and purpose of the hearing and summarize the
rules for conducting the hearing;
d. Request the Community Development Director to present the introductory
report of the Director and explain any graphic or pictorial displays
which are a part of the report. Request the Director to read findings
and recommendations, if any, and provide such other information as
may be requested by the Approving Authority;
e. Allow the applicant to be heard first, on his/her own behalf, or
by representative;
f. Allow parties or witnesses in favor of the applicant's proposal to
be heard;
g. Allow other parties or witnesses to be heard next in the same manner
as in the case of the applicant.
6. Questions
may be asked at any time by the Approving Authority. Questions by
the parties or Director may be allowed by the Approving Authority
upon request. Upon recognition by the Approving Authority, questions
may be submitted directly to the witnesses or parties. The witnesses
or parties shall be given a reasonable amount of time to respond solely
to the questions.
7. Prior to the conclusion of the hearing, any party may request an opportunity to present additional evidence or testimony regarding the application. The Approving Authority shall grant such requests by continuing the hearing pursuant to the following Subparagraph (7)(a) of Subsection
12.10.010(T) or leaving the record open for additional written evidence or testimony pursuant to the following Subparagraph (7)(b) of Subsection
12.10.010(T).
a. If the Approving Authority grants a continuance, the hearing shall
be continued to a date, time, and place certain at least seven days
later. An opportunity shall be provided at the continued hearing for
parties to present and rebut new evidence and testimony. If new written
evidence is submitted at the continued hearing, any party may request,
prior to the conclusion of the continued hearing, that the record
be left open for at least seven days to submit additional written
evidence or testimony for the purpose of responding to the new written
evidence.
b. If the Approving Authority leaves the record open for additional
written evidence or testimony, the record shall be left open for at
least seven days. Any party may file a written request with the Approving
Authority for an opportunity to respond to new evidence submitted
during the period the record was left open. If such a request is filed,
the Approving Authority shall reopen the record pursuant to the following
Paragraph 12.10.010(T)(8) of this Section.
c. A continuance or extension granted pursuant to this Subsection shall
be subject to the limitations of ORS 227.178, unless the continuance
or extension is requested or agreed to by the applicant.
d. Unless waived by the applicant, the Approving Authority shall allow
the applicant at least seven days after the record is closed to all
other parties to submit final written arguments in support of the
application. The applicant's final submittal shall be considered part
of the record, but shall not include any new evidence.
8. When
the Approving Authority reopens the record to admit new evidence or
testimony, any party may raise new issues which relate to the new
evidence, testimony, or criteria for decision-making which apply to
the matter at issue.
9. For
purposes of this Section:
a. "Argument" means assertions and analysis regarding the satisfaction
or violation of legal standards or policy believed by the proponent
relevant to the decision. "Argument" does not include facts.
b. "Evidence" means facts, documents, data, or other information offered
to demonstrate compliance or noncompliance with the standards believed
by the proponent to be relevant to the decision.
10. At the conclusion of the hearing, the Approving Authority shall either
make a decision and state findings which may incorporate findings
proposed by any party, or the Community Development Director, or may
take the matter under advisement. The Approving Authority may request
proposed findings and conclusions from any party to the hearing. The
Approving Authority, before finally adopting findings and conclusions,
may circulate the same in proposed form to the parties for written
comment. All actions taken by the Approving Authority pursuant to
adopting findings and conclusions shall be made a part of the record.
The decision and findings and conclusions which support the decision
of the Approving Authority shall not be final until reduced to writing
and signed by the Approving Authority. The Approving Authority shall
grant, deny, or, in appropriate cases, attach conditions to the proposal
being heard, and the Director shall notify by mail the parties of
the decision.
11. General Conduct of Hearing. The following rules apply to the general
conduct of the hearing:
a. No person shall be disorderly, abusive, or disruptive of the orderly
conduct of the hearing.
b. No person shall testify without first receiving recognition from
the Approving Authority and stating his/her full name and address.
c. No person shall present irrelevant, immaterial, or unduly repetitious
testimony or evidence. Formal rules of evidence as used in courts
of law shall not apply. Evidence received at any hearing shall be
of the quality that reasonable persons rely upon in the conduct of
their everyday affairs.
d. 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.
U. Quasi-judicial
hearings—Challenges to impartiality.
1. Any
party to a matter to be heard under this Section and any member of
the Approving Authority may challenge the qualification of any other
member of that Approving Authority to participate in the hearing and
decision regarding the matter. The challenge shall state by affidavit
the facts relied upon by the challenger as the basis for the challenge.
a. Except for good cause shown, the challenge shall be delivered by
personal service to the City Recorder and the person whose qualification
is challenged, not less than 48 hours preceding the time set for the
hearing.
b. The challenge shall be made a part of the record of the hearing.
2. No
member of the Approving Authority may discuss or vote on a matter
when:
a. Any of the following has a direct or substantial pecuniary interest
in the matter: the member of his or her spouse, brother, sister, child,
parent, father-in-law, or mother-in-law; any organization in which
the member is then serving as an officer or director or has so served
within the previous two years; or any business with which the member
is negotiating for or has an arrangement or understanding concerning
a prospective partnership, employment, or other business affiliation.
b. The member owns all or a portion of the property that is the subject
of the matter before the Approving Authority or owns abutting or adjacent
property.
c. The member has a direct personal interest in the matter or for any
other reason cannot participate in the hearing and decision impartially.
This includes matters where by past conduct or statements the member:
has a bias which in the exercise of sound judgment the member cannot
vote upon the matter impartially and without prejudice to the substantial
rights of the challenging party; owes a present or future fiduciary
duty to one of the parties; shares the member's residence with a party
which has a pecuniary interest in the matter; or has a personal bias
or prejudice against a party.
3. Because
of the importance of preserving public confidence in decisions made
by the Approving Authority, a member of that authority or body may
elect to abstain from a particular hearing when in fact the member
is not disqualified but simply desires to avoid the mere appearance
of partiality. Abstention in such an instance shall be solely a matter
of the member's own judgment. A member who feels that abstention may
be necessary or desirable under this Section shall seek the advice
of the Approving Authority and then state the member's decision and
the reasons therefore.
4. No
other officer or employee of the City who has a financial or other
private interest in a matter before the Approving Authority may participate
in discussion of the matter with, or give an official opinion on the
matter to the Approving Authority without first declaring for the
record the nature and extent of that interest.
5. At
the commencement of the hearing on a matter, members of the Approving
Authority shall reveal all significant pre-hearing and ex parte contacts
they have had about the matter. If the contacts have not impaired
the member's impartiality, the member shall so state that fact and
participate or abstain in accordance with the above Paragraph 12.10.010(U)(4)
and with the member's own judgment.
6. Notwithstanding
any other rule, an abstaining or disqualified member shall constitute
part of a quorum and may represent the member's interest at a hearing,
provided the member joins the audience, makes full disclosure of the
member's status and position when addressing the Approving Authority
and abstains from discussion and from voting on the matter as a member
of the Approving Authority.
7. Whenever
the qualifications of a member of the Approving Authority are challenged,
the presiding officer of the Approving Authority shall give precedence
to the challenge by first giving the challenged member an opportunity
to respond and then, if necessary, putting the challenge to the Approving
Authority for decision.
8. Disqualification
for reasons set forth in the above Paragraphs 12.10.010 (U)(1), (2),
(3), or (5) of this Section may be ordered by a majority of the Approving
Authority. The member who is the subject of the motion for disqualification
may not vote on the motion.
9. If
all members of the Approving Authority abstain or are disqualified
and consequently cannot reach a decision while so abstaining or disqualified,
all members present, after stating their reasons for abstention or
disqualification, shall by so doing be re-qualified and proceed to
resolve the issues.
10. A member absent during the presentation of any evidence in a hearing
may not participate in the deliberations or final decision regarding
the matter of the hearing unless he or she has reviewed the evidence
received.
V. Official
notice.
1. The
Approving Authority may take official notice of the following:
a. All facts which are judicially noticeable. Judicially noticed facts
shall be stated and made part of the record.
b. The Comprehensive Plan and other officially adopted plans, ordinances,
rules and regulations.
2. Matters
officially noticed need not be established by evidence, and may be
considered by the Approving Authority in the determination of the
application.
W. Record
of proceeding.
1. A verbatim record of the proceeding shall be made by stenographic or mechanical means. It shall not be necessary to transcribe testimony except as provided for in Subsection
12.10.010(X). In all cases, the tape, 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.
X. Review
of decisions of commission. Fifteen days from the date of a written
decision of the Planning Commission, the decision shall become effective,
unless review is sought pursuant to this Section.
1. Review
of the decision of the Commission.
a. Shall be made by the City Council upon any party filing a Notice of Review with the Director within 14 days of the date of the written decision sought to be reviewed. Review by the City Council shall be conducted pursuant to Subsection
12.10.010(Y).
b. May be made by the City Council on any two members of the City Council giving written notice to the City Manager within 14 days of the date of the written decision sought to be reviewed. Review by the City Council shall be conducted pursuant to Subsection
12.10.010(Y).
2. Notice
of the time and place of the review, together with any Notice of Review
filed, shall be mailed to parties at least 10 days prior to the date
of review.
3. A
record of the review shall be the same as that required at the hearing
before the Commission, pursuant to Subsection 12.010(W).
4. Every
Notice of Review shall contain:
a. A reference to the decision sought to be reviewed;
b. A statement as to how the petitioner qualifies as a party;
c. The specific grounds relied upon in the petition request for review;
d. The date of the decision sought to be reviewed.
5. Except
when filed by members of the City Council, a Notice of Review shall
be accompanied by a fee established by the City Council.
a. If the reviewing body does not desire a transcript, the applicant
or any party may request a transcript. Any such transcript request
shall be paid for by the person requesting it in the manner provided
in this Section. The estimated cost of the transcript shall be specified
by the Community Development Director. Within five days of such estimate,
the person making the request for a transcript shall deposit the estimated
cost with the Director. Any deposit excess shall be returned to the
depositing person.
b. Failure to comply with this Subsection shall be a jurisdictional
defect.
c. If a transcript is desired by the City Council, the costs shall be
borne by the City Council.
Y. Review
by City Council.
1. Except
upon the election of the City Council to take additional evidence,
the review of a decision of the Planning Commission by the City Council
shall be confined to the record of the proceeding, which will include
the following:
a. All materials, pleadings, memoranda, stipulations, and motions submitted
by any party to the proceeding and received or considered by the Commission
as evidence;
b. All materials in the record submitted by the Director with respect
to the application;
c. The transcript of the hearing, if required by the City Council or
otherwise provided, or the tape recording or other evidence of the
proceeding of the hearing and review by the Commission;
d. The findings and conclusions of the Commission;
e. Argument by the applicant or parties or their legal representatives
upon the record at the time of review by the City Council.
2. Except
upon the election of the City Council communicated to the parties
with reasonable time to prepare, review by the City Council upon appeal
by a party shall be limited to the grounds relied upon in the petition
request for review.
3. The
City Council may affirm, reverse, modify, or remand the action of
the Planning Commission, and may approve or deny the request, or grant
approval subject to conditions necessary to carry out the purpose
and intent of this Code.
a. For all cases, the City Council shall make findings and conclusions,
and make a decision based on the record before it as justification
for its final action.
b. The City Council shall enter such findings, conclusions, and final
orders upon the close of its hearings or upon continuance of the matter
to a time certain.
c. The City Council shall cause copies of a final order to be sent to
all parties participating in the review before it.
4. The
City Council may remand the matter to the Planning Commission if it
is satisfied that testimony or other evidence essential to the City
Council's decision was not presented at the initial hearing.
5. Only
those members of the City Council reviewing the entire record may
act on the matter reviewed. The agreement of a majority of those reviewing
is necessary to amend, reverse, or remand the action of the Planning
Commission. Upon failure of a majority of those reviewing to agree,
the decision of the Commission shall stand.
(Ord. 3561, § 8, 6-28-2021)
A. Description and purpose. Uses identified in this Code as requiring Conditional Use Permits may be permitted, enlarged or altered in accordance with the provisions of this Section. In addition, where a proposed use or similar use is not listed in Chapter
12.02 of this Code, or where ambiguity exists concerning the appropriate classification of a particular use or type of development within this Code, said use or type of development may be established by a Conditional Use Permit in accordance with this Section.
The purpose of Conditional Use Permits is to allow determination
of the appropriateness and compatibility of certain uses proposed
to be located in areas not specifically designated for such uses and
which may only be suitable for location in such areas with application
of special conditions as allowed by this Section.
B. Application procedure. An application for a Conditional Use Permit shall be processed as an administrative action by the Community Development Director. The Conditional Use Permit application shall be prepared and submitted by the owner of the subject property or authorized agent on a form prescribed by the Community Development Department and shall be accompanied by the prescribed fee and evidence demonstrating compliance with the criteria stated in Subsection
12.10.080(F). An application for a Conditional Use Permit and for Site Plan Review may be combined in a single application. When so combined the requirements of Sections
12.10.070 and
12.10.080 shall apply, except appeals shall be governed by Subsection
12.10.080(C) below.
C. Appeal procedure. The Director's decision regarding an application for a Conditional Use Permit may be appealed to the Planning Commission as provided in Subsection
12.10.010(Q) of this Code. The decision by the Commission shall be final and no party shall be entitled to review by the City Council under Subsections
12.10.010(X) and
12.10.010(Y) of this Code unless the City Council votes to allow review as provided in Subsection
12.10.080(D) of this Code.
D. Review
by City Council.
1. Any party seeking to obtain review of a decision of the Planning Commission under Subsection
12.10.080(C) shall file a request for review within 14 days of the filing of the written decision sought to be reviewed.
2. Every
request for review shall contain:
a. A reference to the decision sought to be reviewed;
b. The date of the decision sought to be reviewed;
c. A statement as to how the petitioner qualifies as a party;
d. The specific grounds relied upon in the request for review, including
a concise statement of each reason asserted for reversal or modification
of the decision of the Planning Commission;
e. A statement of specific reasons, apart from those asserted for review,
why the issues presented have importance beyond the particular case
and require decision by the City Council.
3. A
request for review shall be allowed if a majority of the City Council
present at the time of consideration of the request for review vote
to allow it.
4. If
the City Council accepts review, it may limit the questions on review.
If review is not so limited, the questions before the City Council
include all questions properly before the Commission that the request
for review claims was erroneously decided by the Commission.
5. Except where otherwise specified in this Section, review by the City Council shall be conducted according to the procedures set forth in Subsection
12.10.010(Y).
E. Plan
requirements. The applicant for a Conditional Use Permit shall submit
to the Community Development Director plans consisting of maps, drawings,
written descriptions, or other materials necessary and appropriate
for the Director to determine that the proposed development will conform
to the general requirements of this Section and the specific requirements
of this Code. The Director may require an applicant proposing to site
a residential facility within the City to supply the City with a copy
of the entire application and supporting documentation for state licensing
of the facility, except for information which is exempt from public
disclosure under ORS 192.345-192.355. However, the Community Development
Director shall not require independent proof of the same conditions
that have been required by the state Department of Human Resources
for licensing of a residential facility.
F. Criteria. A Conditional Use Permit shall be granted only if the Approving Authority finds that the proposal conforms to all five of the following criteria, the conditions set forth in Section
12.06.010, Site Plan Review, and any additional criteria made applicable by other Sections of this Code:
1. That
the proposed development is compatible with the existing or anticipated
uses in terms of scale, bulk, coverage, density, architectural, and
aesthetic design;
2. That
the development is consistent with the purpose of the base zone and
enhances the operation characteristics of the particular neighborhood;
3. That
the site for the proposed development is served by streets and highways
which are adequate in width, construction, and placement to safely
carry the quantity and kind of traffic generated by the proposed use;
4. That
the proposed development will not have an adverse physical effect
on the development or use of abutting or contiguous property; and
5. The
proposed development will conform to the policies of the Comprehensive
Plan and adopted plans and policies of the City Council.
G. Conditions. In addition to the requirements of Site Plan Review detailed in Section
12.06.010, the Approving Authority may designate conditions in granting a Conditional Use Permit as it deems necessary to secure the purpose of this Section and may require guarantees and evidence that such conditions shall be met. Such conditions may include:
2. Special
yards and spaces;
4. Street
right-of-way dedications and street improvements;
5. Regulation
of points of vehicular ingress and egress;
7. Landscaping,
screening, and buffering where necessary to increase compatibility
with adjoining uses;
8. Regulation
of noise, vibration, odors, or other similar nuisances;
9. Regulation
of hours for certain activities;
10. Time period within which the proposed shall be completed;
12. Regulation of building textures, colors, architectural features and
height;
13. Preservation of natural vegetative growth and open space;
14. Transportation improvements to mitigate the impact of increased traffic
and to protect transportation facilities.
H. Limitations
on conditional approval. The following limitations shall be applicable
to Conditional Use Permit approvals:
1. Conditions
shall be fulfilled within the time limitations set forth in the approval.
2. Such
conditions shall be reasonably conceived to fulfill public needs emanating
from the proposed land use as set forth in the application in the
following respects:
a. Protection of the public from the potentially deleterious effects
of the proposed use; or
b. Fulfillment of the need for public service demands created by the
proposed use.
3. Changes
or alterations of conditions shall be processed as a new administrative
action.
4. The
conditional approval may require the owner of the property to sign
a contract with the City for enforcement of the conditions. Such contract
shall be executed within 30 days after conditional approval is granted,
provided, however, the Community Director may grant time extensions
for practical difficulty. The Director shall have the authority to
execute such contracts on behalf of the City. 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 the real property records of Douglas County. Such contract
shall not restrict the power of subsequent administrative action with
or without conditions. Such contracts shall be enforceable against
the signing parties, their heirs, successors and assigns.
5. Failure
to fulfill any conditions of approval within the time limitations
provided may be grounds for revocation of approval.
6. A
bond, in a form acceptable to the Director, or, upon appeal or review
by the Planning Commission, or a cash deposit from the property owners
or contract purchasers in such an amount as will assure compliance
with the conditions imposed pursuant to this Section may be required.
Such bond or deposit shall be posted at the same time the contract
containing the conditions of approval is filed with the Douglas County
Clerk.
I. Invalidation
of conditional use permit. A Conditional Use Permit is site-specific
yet transferrable between owners. The Permit is automatically revoked
when:
1. The
permit is not exercised within one year of the date of approval.
2. The
use approved by the Conditional Use Permit is discontinued for any
reason for more than one year.
(Ord. 3538, § 5, 3-23-2020)