City of Happy Valley, OR Chapter 16.61 TYPES OF REVIEW PROCEDURES

§ 16.61.010 Purpose and applicability of review procedures.

A. Purpose. This chapter sets forth the provisions, conditions, procedures and fees administering the adopted Happy Valley Comprehensive Plan and Land Development Code. This chapter establishes decision-making procedures that enable the City, the applicant and the public to reasonably review applications and participate in the local decision-making process in a timely and effective way. Table 16.61.010-1 provides a key for determining the review procedure and the decision-making body for specific applications and decisions.

B. Review Procedures. All land use and development permit applications and approvals described in Title 16, except building permits and final plat reviews, shall be decided by using the procedures contained in this chapter. The procedure "type" assigned to an application governs the decision-making process for that permit or approval. There are eight types of permit/approval procedures: Types I, II, II-DR, III-PC, III-PC/CC, III-DRB, III-HO and IV. These procedures are described in subsections 1 through 6 below. Table 16.61.010 lists all of the City's land use and development approvals and the required review procedure(s).

1. Type I Procedure (Administrative). A Type I decision is made by the Planning Official or designee, without public notice and without a public hearing. The Type I procedure is used when there are clear and objective approval criteria and applying City standards and criteria does not require the use of discretion.

2. Type II Procedure (Administrative). A Type II decision is made by the Planning Official or person designated by the Planning Official following public notice. Appeal of a Type II decision is heard by the Hearings Officer.

3. Type II-DR Procedure (Administrative). A Type II-DR decision is made by the Planning Official or person designated by the Planning Official following public notice. Appeal of a Type II-DR decision is heard by the Hearings Officer (with assistance from contract architect).

4. Type III-PC Procedure (Quasi-Judicial). A Type III-PC decision is made by the Planning Commission, Design Review Board, or Hearings Officer at a public hearing, with appeals reviewed by the City Council. Certain types of Planning Commission Type III decisions (see Table 16.61.010-1) are a recommendation to the City Council.

5. Type III-PC/CC Procedure (Quasi-Judicial). A Type III-PC/CC decision (e.g., Land Use/Comprehensive Plan Map Amendments under the City's "one-map" system 20 acres or above) is considered initially by the Planning Commission which makes a recommendation to the City Council.

6. Type III-DRB and Type III-HO Procedures (Quasi-Judicial). A Type III-DRB decision is made by the Design Review Board after a public hearing. A Type III-HO decision is made by the Hearings Officer. Appeal of a Type III-DRB or Type III-HO decision is heard by the City Council.

7. Type IV Procedure (Legislative). Type IV procedures apply to legislative matters. Legislative matters involve the creation, revision, or large-scale implementation of public policy initiated by the City (e.g., adoption of Comprehensive Plan amendments, adoption of ancillary documents to the Comprehensive Plan, land use regulations, government initiated changes to the Comprehensive Plan map/land use district map, etc.). Except for an expedited annexation, a Type IV decision is considered initially by the Planning Commission which makes a recommendation to the City Council. The final decision is made by the City Council.

C. Official Action. All officials, departments, commissions and employees of the City vested with the authority to make decisions regarding the Comprehensive Plan and Land Development Code, or issue permits, certificates or licenses, shall adhere to and require conformance with all applicable sections of all plans, codes and regulations with regard to land use in the City.

D. Interpretation of this Chapter. In interpreting and applying the provisions of this chapter, they shall be construed as the minimum requirement for all promotion of the public safety, health, peace and general welfare. It is not intended by this chapter to interfere with or annul any other covenants or agreements between private parties. However, from the effective date of this Land Development Code, all divisions and development of land shall conform to this chapter. When this chapter imposes a greater restriction upon the use of buildings or premises or upon the height of buildings, or requires larger space than is imposed or required by other codes, ordinances, rules, regulations, covenants or agreements, the provisions of this chapter shall govern.

E. Conditional Approval. The following limitations apply to conditional approval of an application for a land use or limited land use permit:

1. Conditions shall be fulfilled within the time limits set forth in the approval.

2. The review authority may impose such conditions as it deems necessary to ensure compliance with the Comprehensive Plan, Land Development Code and other applicable review criteria including conditions necessary to insure the construction of transportation facilities described in the transportation system plan.

3. A request for modifications of conditions may, at the City's discretion, be processed as a new land use action.

4. The City may require a guarantee or agreement, or both, between the City and the owner, and any contract purchasers.

5. The City may refuse to grant approval for a development on land if a prior permit of any kind on the same land has not been complied with.

6. Unless otherwise noted in the conditions of approval, the applicant or its successors and assigns shall bear the entire expense of compliance with the conditions imposed.

7. The City may delay surface work (except for surveying and staking) on land if the City finds a danger of uncontrollable erosion exists, in the City's opinion, that cannot be adequately controlled by present erosion control methods. No surface work other than surveying and staking on land having slopes of more than 15% shall be permitted during the months of November through April, inclusive.

F. Legislative Comment. The City has experienced land washouts, flooding of downhill sites, turbidity of streams and damage to downhill properties as a result of surface work on land during heavy precipitation and during the months of November through April despite the best of erosion control measures. The City does not want to unreasonably delay development, but finds that controls on surface work are necessary in an effort to prevent the conditions described in this legislative comment. The City further notes that it has adopted the most recent iteration of the "Erosion Prevention and Sediment Control Plan Technical Guidance Handbook" produced by Clackamas County. These erosion control measures represent latest efforts for erosion control, and although they have been applied in Happy Valley there have still been erosion control problems.

G. Noncompliance. A violation of the provisions of this chapter or failure to comply with any conditions of approval are subject to the enforcement and violations provisions provided in Chapter 16.13. The City may withhold a certificate of occupancy until such time as the use or development is consistent with this chapter, including any conditions of approval required to assure compliance with this chapter.

Table 16.61.010-1 Summary of Approvals by Type of Review Procedure
Approvals1	Review Procedures	General Applicable Regulations (not an exclusive list for crafting findings)
Annexation (non-expedited)	Type IV	Chapter 16.67
Annexation (expedited)	Type IV 3	Chapter 16.67
Code Interpretation	Type I/II (Depending on Discretion)	Chapter 16.68
Comprehensive Plan Map/Land Use District Map Amendment	Less than 20 acres (applicant initiated): Type III-PC 20 acres or above (applicant initiated): Type III-PC-CC City initiated: Type IV	Chapter 16.67, Comprehensive Plan
Conditional Use Permit	Type III-PC	Chapter 16.64
Design Review—Minor	Type I	Chapter 16.622
Design Review—Minor	Type II-PO	Chapter 16.622
Design Review—Minor	Type II-HO	Chapter 16.622
Design Review—Major	Type III-DRB	Chapter 16.622
Home Occupation Permit	Type III-HO	Section 16.69.020
Lot Line Adjustments and Lot Consolidations, including Re-Plat	Type I	Chapter 16.63
Lot of Record Determination	Type I/II (Depending on Discretion)	Chapter 16.72
Master Planned Development (Preliminary)	Type III-PC	Chapter 16.65
Master Planned Development (Final)	Type II
Modification to Approval
Minor	Type I/II	Chapter 16.66
Major	Same as Approval Being Modifed
Environmental Review Permit
Steep Slopes Development Overlay Zone	Type I/II
Historic Properties Overlay Zone	Type I/II	Chapters 16.32, 16.34, and 16.35
Natural Resources Overlay Zone	Type I/II
Flood Management Overlay Zone	Type I/II
Environmental Review Permit	Type II	Chapters 16.32, 16.34, and 16.35
Nonconforming Use or Development Confirmation	Type I/II (Depending on Discretion)	Chapter 16.72
Partition (2 - 3 lots)	Type II	Chapter 16.63
Planned Unit Development (4—9 lots)	Type II	Chapter 16.63
Planned Unit Development (10— 49 lots)	Type III-HO	Chapter 16.63
Planned Unit Development (50 lots or larger)	Type III-PC	Chapter 16.63
Plat or Easement Vacation or RePlat	Type I	Chapter 16.63
Sign Permit	Type I	Chapter 16.45
Public Right-of-Way Vacation	Type IV3	Chapter 16.63
Subdivision (4—9 lots)	Type II	Chapter 16.63
Subdivision (10—49 lots)	Type III-HO	Chapter 16.63
Subdivision (50 lots or larger)	Type III-PC	Chapter 16.63
Temporary Use Permit	Type I	Section 16.69.010
Text Amendment	Type III-PC/CC/IV	Chapter 16.67
Tree Removal
Class B	Type I	Section 16.42.050
Variance
Class B	Type II	Section 16.71.040
Class C	Type III-PC	Section 16.71.050

NOTES:
1	The applicant may be required to obtain approvals from other agencies, such as a road authority or sewer district for some types of approvals. The City notifies agencies of applications that may affect their facilities or services.
2	For an explanation of the design benchmarks delineating these types of reviews, see Table 16.62.020-1.
3	The expediated Type IV review shall be sent directly to the City Council for review and shall not be considered by the Planning Commission.

(Ord. 389 § 1(Exh. A), 2009; Ord. 406 § 1, 2010; Ord. 427 § 1, 2012; Ord. 501 § 1, 2016; Ord. 521 § 3, 2017; Ord. 526 § 1, 2017; Ord. 539 § 1, 2018; Ord. 582, 3/19/2024)

§ 16.61.020 Type I procedure (administrative).

A. Application Requirements.

1. Application Forms. Type I applications shall be made on forms provided by the Planning Official or designee.

2. Application Requirements. Type I applications shall:

a. Include the information requested on the application form;

b. Address the criteria in sufficient detail for review and action; and

c. Be filed with the required fee, unless waived by the Planning Official or designee.

B. Administrative Decision Requirements. The Planning Official or designee's decision shall address all of the approval criteria, including applicable requirements of any road authority. Based on the criteria and the facts contained within the record, the Planning Official or designee shall approve or deny the requested permit or action. A written record of the decision shall be provided to the applicant and kept on file at City Hall.

C. Final Decision. A Type I decision is the final decision of the City. It cannot be appealed to City officials.

D. Effective Date. A Type I decision is final on the date it is made.

(Ord. 389 § 1(Exh. A), 2009; Ord. 427 § 1, 2012; Ord. 582, 3/19/2024)

§ 16.61.030 Type II procedure (administrative).

A. Pre-application Conference. A pre-application conference is required for a Type II review, unless waived by the Planning Official. Pre-application conference requirements and procedures are described in Section 16.61.060.

B. Application Requirements.

1. Application Forms. Type II applications shall be made on forms provided by the Planning Official or designee.

2. Submittal Information. The application shall:

a. Include the information requested on the application form;

b. A narrative statement that explains how the application satisfies each and all of the relevant criteria and standards in sufficient detail for review and decision making. Note: additional information may be required under the specific application requirements for each approval, e.g., Chapters 16.62 (Land Use Review), 16.63 (Land Divisions), 16.66 (Modifications), 16.68 (Code Interpretations), and 16.69 (Miscellaneous Permits);

c. Be accompanied by the required fee; and

d. Include one set of mailing labels for all real property owners of record who will receive a notice of the application as required in Section 16.61.040. The records of the Clackamas County Assessor's Office are the official records for determining ownership. The applicant shall prepare the public notice mailing list. The applicant shall use the most current County real property assessment records to produce the notice list. The City shall mail the notice of application.

e. Include a Title or Trio for each property associated with the application.

C. Notice of Application for Type II Administrative Decision.

1. Before making a Type II Administrative Decision, the Planning Official or designee shall mail notice to:

a. All property owners of record within 300 feet of the subject site;

b. All active City-recognized neighborhood groups or associations whose boundaries include the site;

c. Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the City. The City may notify other affected agencies; and

d. Clackamas County, METRO, and the Oregon Department of Transportation when the proposed development abuts or significantly affects agency's transportation facility.

2. The purpose of the notice is to give nearby property owners and other interested people the opportunity to submit written comments about the application before the decision is made.

3. Notice of a pending Type II administrative decision shall:

a. Provide a 21 day period for submitting written comments before a decision is made on the permit;

b. List the relevant approval criteria by name and number of code sections;

c. Identify the date and time the comments are due and how they may be submitted;

d. Include the name and contact information for City staff;

e. Describe the proposal and identify the specific permits or approvals requested;

f. Describe the street address or other easily understandable reference to the location of the site;

g. State that if any person fails to address the relevant approval criteria with enough detail, they may not be able to appeal to the Land Use Board of Appeals or Circuit Court on that issue. Only comments on the relevant approval criteria are considered relevant evidence;

h. State that all evidence relied upon by the Planning Official or designee to make this decision is in the public record, available for public review. Copies of this evidence can be obtained at a reasonable cost from the City;

i. State that after the comment period closes, the Planning Official or designee shall issue a Type II administrative decision, and that the decision shall be mailed to the applicant and to anyone who submitted written comments or who is otherwise legally entitled to notice;

j. Contain the following notice: "Notice to mortgagee, lien holder, vendor, or seller: The City of Happy Valley Development Code requires that if you receive this notice it shall be promptly forwarded to the purchaser."

D. Administrative Decision Requirements. A Type II written decision shall address all of the relevant approval criteria and standards. Based upon the criteria, standards and the evidence in the record, the Planning Official or designee shall approve, approve with conditions, or deny the application. Alternatively, the Planning Official or the applicant may refer the application to the Hearings Officer for a public hearing, in which case the review shall follow the Type III procedures in Section 16.61.040, including payment of all applicable fees.

E. Notice of Decision.

1. A notice of decision shall be sent by mail to:

a. The applicant and all owners or contract purchasers of record of the site that is the subject of the application;

b. Any person who submits a written request to receive notice, or provides comments during the application-review period;

c. Any active City-recognized neighborhood group or association whose boundaries include the site; and

d. Agencies that were notified or provided comments during the application review period.

2. The Type II notice of decision shall contain:

a. A description of the applicant's proposal and the City's decision on the proposal;

b. The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area, where applicable;

c. A statement of where the City's decision can be obtained;

d. A statement that all persons entitled to notice may appeal the decision; and

e. A statement briefly explaining how to file an appeal, the deadline for filing an appeal, and where to obtain further information concerning the appeal process.

3. Posted Notice. In addition to any other notice, the applicant shall post the property subject to the application with at least one sign for every 300 feet of the exterior frontage. Such sign shall remain continuously posted for at least 14 days prior to the end of the public written comment period. A statement of posting shall be submitted to the City recorder prior to the final decision. Failure to post the sign may result in invalidating the final decision.

F. Final Decision and Effective Date. A Type II administrative decision is final for purposes of appeal, when it is mailed by the City. A Type II administrative decision is effective on the day after the appeal period expires. If an appeal is filed, the decision is effective when the appeal is decided.

G. Appeal. A Type II administrative decision may be appealed to the City Council per section 16.61.055.

(Ord. 389 § 1, 2009; Ord. 501 § 1, 2016; Ord. 582, 3/19/2024; Ord. 592, 6/3/2025)

§ 16.61.035 Reserved.

§ 16.61.040 Type III-HO, Type III-PC and Type III-PC/CC procedure (quasi-judicial).

A. Type III-HO, Type III-PC and Type III-PC/CC, Type III DRB procedures apply to all quasi-judicial decisions that involve the use of discretion and include but are not limited to uses specified in Table 16.61.010-1. The City Council may call up the application for review if it is determined to be in the public interest. Said decision shall be made within the appeal period.

B. Pre-application Conference. A pre-application conference is required for all Type III applications.

C. Application Requirements.

1. Application Forms. Type III applications shall be made on forms provided by the Planning Official or designee; if a Type II application is referred to a Type III hearing, either voluntarily by the applicant or staff, or upon appeal, no new application is required.

2. Submittal Information. When a Type III application is required, it shall:

a. Include the information requested on the application form;

b. A narrative statement that explains how the application satisfies each and all of the relevant criteria and standards in sufficient detail for review and decision-making. Note: additional information may be required under the specific application requirements for each approval, e.g., Chapters 16.62 (Land Use Review), 16.63 (Land Divisions), 16.66 (Modifications), 16.68 (Code Interpretations), and 16.69 (Miscellaneous Permits);

c. Be accompanied by the required fee; and

d. Include one set of pre-addressed mailing labels for all real property owners of record who will receive a notice of the application as required in Subsection 16.61.040(D). The records of the Clackamas County Assessor's Office are the official records for determining ownership. The applicant shall prepare the public notice mailing list. The applicant shall use the most current County real property assessment records to produce the notice list. The City shall mail the notice of application.

3. Include a Title or Trio for each property associated with the application.

D. Notice of Hearing.

1. Mailed Notice. The City shall mail notice of a Type III hearing to the record owner of real property as shown in the records of the Clackamas County Assessor's Office. Notice of a Type III hearing shall be given by the Planning Official or designee in the following manner:

a. At least 21 days before the hearing date, notice shall be mailed to:

i. The applicant and all owners or contract purchasers of record of the property that is the subject of the application;

ii. All property owners of record within 300 feet of the subject site;

iii. Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the City and other affected agencies deemed applicable by the Planning Official;

iv. The road authority, and rail authority and owner, when the proposed development abuts or significantly affects their transportation facility;

v. The owner of an airport in the vicinity shall be notified in accordance with ORS 227.175 when the application proposes a zone change;

vi. Any active neighborhood or community organization recognized by the City Council and whose boundaries include the property proposed for development;

vii. For an appeal, the applicant, the appellant and all persons who provided testimony in the original decision;

viii. For a land use district change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175; and

ix. For expedited annexations, all interested and necessary parties, as defined by the Metro Code, shall be notified by mail.

2. Posted Notice. In addition to any other notice, the applicant shall post the property subject to the application with at least one sign for every 300 feet of exterior frontage. The sign shall be purchased from the City. Such sign shall remain continuously posted from at least 14 days prior to the end of the public written comment period. A statement of posting shall be submitted to the Planning Official or designee prior to the public hearing.

3. Content of Notice. Notice of a Type III hearing to be mailed and published shall contain the following information:

a. The nature of the application and the proposed land use or uses that could be authorized for the property;

b. The applicable criteria and standards from the development code(s) that apply to the application;

c. The street address or other easily understood geographical reference to the subject property;

d. The date, time, and location of the public hearing;

e. A statement that the failure to raise an issue in person, or by letter at the hearing, or failure to provide statements or evidence sufficient to afford the decision-maker an opportunity to respond to the issue, means that an appeal based on that issue cannot be filed with the State Land Use Board of Appeals;

f. The name of a City representative to contact and the telephone number where additional information on the application may be obtained;

g. A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards can be reviewed at Happy Valley City Hall at no cost and that copies shall be provided at a reasonable cost;

h. A statement that a copy of the City's staff report and recommendation to the hearings body shall be available for review at no cost at least seven days before the hearing, and that a copy shall be provided on request at a reasonable cost;

i. A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and

j. The following notice: "Notice to mortgagee, lien holder, vendor, or seller: The City of City of Happy Valley Development Code requires that if you receive this notice it shall be promptly forwarded to the purchaser."

E. Conduct of the Public Hearing.

1. At the commencement of the hearing, the review body shall state:

a. The applicable approval criteria and standards that apply to the application or appeal;

b. That 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 and that the applicant must raise any constitutional objections on the record (or they cannot be raised on appeal);

c. That failure to raise an issue with sufficient detail to give the hearings body and the parties an opportunity to respond to the issue, means that no appeal may be made to the City Council or State Land Use Board of Appeals on that issue;

d. Before the conclusion of the initial evidentiary hearing, any participant may ask for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing. The hearings body shall grant the request by scheduling a date to finish the hearing (a "continuance"), or by leaving the record open for additional written evidence or testimony;

2. If the review body grants a continuance, the hearing shall be continued to a date, time, and place at least seven days after the date of the prior hearing. An opportunity shall be provided at the subsequent hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the second hearing, any person may request, before the conclusion of the second hearing, that the record be left open for at least seven days, so that they can submit additional written evidence or testimony in response to the new written evidence.

3. If the review body leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days after the hearing. Any participant may ask the City in writing for an opportunity to respond to new evidence submitted during the period that the record was left open. If such a request is filed, the review body shall reopen the record.

a. When the review body reopens the record to admit new evidence or 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 Subsection 16.61.040(E) is subject to the limitations of ORS 227.178 ("120-day rule"), unless the continuance or extension is requested or agreed to by the applicant.

c. The record shall contain all testimony, evidence and argument that is submitted to the City and that the hearings body has not rejected.

d. In making its decision, the hearings body may take notice of facts not in the hearing record (e.g., local, state, or Federal regulations; previous City decisions; case law). The review authority must announce its intention to take notice of such facts in its deliberations, and allow persons who previously participated in the hearing to request the hearing record be reopened, if necessary, to present evidence concerning the noticed facts.

4. Participants in a Type III hearing are entitled to an impartial review and decision.

a. At the beginning of the public hearing, a member of the review body shall disclose the substance of any ex parte contacts (as defined in Subsection 16.61.040(E)(9) below). The member shall state whether the contact has impaired the member's impartiality or ability to vote on the matter and shall participate or abstain accordingly.

b. A member of the review body shall not participate in any proceeding in which the member, or any of the following, has a direct or substantial financial interest: the member's spouse, brother, sister, child, parent, father-in-law, mother-in-law, partner, any business in which the member is then serving or has served within the previous two years, or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment. Any actual or potential interest shall be disclosed at the hearing where the action is being taken.

c. Disqualification of a member of the review body due to ex parte contacts, bias or a conflict of interest may be ordered by a majority of the members present and voting. The member who is the subject of the motion may not vote on the motion to disqualify.

d. If, due to abstaining or disqualification, a quorum of the Planning Commission is not obtainable, the City Council shall be the review body. If all members of the City Council abstain or are disqualified, a quorum of those City Council members present who declare their reasons for abstention or disqualification shall be re-qualified to make a decision.

e. Any member of the public may raise conflict of interest issues prior to or during the hearing and the member of the hearings body shall reply in accordance with this section.

5. Ex Parte Communications.

a. Members of the review body shall not:

i. Communicate directly or indirectly with any applicant, appellant, other party to the proceedings, or representative of a party about any issue involved in a hearing without giving notice as provided in subsection C above;

ii. Take official notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case, unless all participants are given the opportunity to respond.

b. A decision or action of the review body shall not be invalid due to ex parte contacts or bias resulting from ex parte contacts, if the person receiving contact:

i. Places in the record the substance of any written or oral ex parte communications concerning the decision or action; and

ii. Makes a public announcement of the content of the communication and of all participants' right to dispute the substance of the communication made. This announcement shall be made at the first hearing following the communication during which action shall be considered or taken on the subject of the communication.

c. A communication between City staff and the review body is not considered an ex parte contact.

6. Presenting and Receiving Evidence.

a. The review body may set reasonable time limits for oral presentations and may limit or exclude cumulative, repetitious or irrelevant testimony or evidence;

b. Oral testimony shall not be accepted after the close of the public hearing. Written testimony may be received after the close of the public hearing, only as provided in Subsection 16.61.040(E);

c. Members of the review 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.

F. The Decision Process.

1. Basis for Decision. Approval or denial of an appeal of a Type II administrative decision or of a Type III application shall be based on standards and criteria in this Development Code. The standards and criteria shall relate approval or denial of a discretionary development permit application to the development regulations and, when appropriate, to the Comprehensive Plan for the area in which the development would occur and to the development regulations and Comprehensive Plan for the City as a whole.

2. Findings and Conclusions. Approval or denial shall be based upon the criteria and standards considered relevant to the decision. The written decision shall explain the relevant criteria and standards, state the facts relied upon in rendering the decision, and justify the decision according to the criteria, standards, and facts.

3. Form of Decision. The review body shall issue a final decision containing the findings and conclusions stated in subsection (F)(2). The decision shall either approve, approve with conditions or deny the application. The review body may also issue appropriate intermediate rulings when more than one permit or decision is required.

4. Notice of Decision. Written notice of a Type III application decision shall be mailed to the applicant and to all participants of record. Failure of a person to receive mailed notice shall not invalidate the decision provided a good faith attempt was made to mail the notice.

5. The decision is final for purposes of appeal on the date it is mailed by the City. The decision is effective on the day after the appeal period expires. If an appeal is filed, the decision becomes effective on the day after the appeal is decided by the City Council.

G. Appeal. A Type III decision may be appealed to the City Council per section 16.61.055.

(Ord. 389 § 1(Exh. A), 2009; Ord. 427 § 1, 2012; Ord. 468 § 1, 2014; Ord. 501 § 1, 2016; Ord. 521 § 3, 2017; Ord. 526 § 1, 2017; Ord. 545 § 1, 2019; Ord. 582, 3/19/2024)

§ 16.61.045 Type III-DR procedure (quasi-judicial).

A. Procedures. Except as noted below, Type III-DR applications shall follow the same procedures as Type III applications. For a Type III-DRB hearing, if sufficient members of the Design Review Board abstain or are disqualified such that the Board cannot achieve a quorum, the City Council shall be the hearing body. If sufficient members of the City Council abstain or are disqualified such that the Council cannot achieve a quorum, a quorum of those City Council members present who declare their reasons for abstention or disqualification shall make the decision. For a Type III-HO hearing, if the Hearings Officer has a conflict or otherwise cannot participate in the hearing, the hearing shall be conducted by an alternate Hearings Officer.

B. Appeal. A Type III-DR quasi-judicial decision may be appealed to the City Council using the appeal procedures as for an appeal of a Type III decision.

(Ord. 389 § 1(Exh. A), 2009; Ord. 501 § 1, 2016; Ord. 521 § 3, 2017)

§ 16.61.050 Type IV procedure (legislative).

A. Pre-Application Conference. A pre-application conference is required for all Type IV applications initiated by a party other than the City of Happy Valley. The requirements and procedures for a pre-application conference are described in Section 16.61.060(C).

B. Application Requirements.

1. Application Forms. Type IV applications shall be made on forms provided by the Planning Official or designee.

2. Submittal Information. The application shall contain:

a. The information requested on the application form;

b. A map and/or plan addressing the appropriate criteria and standards in sufficient detail for review and decision (as applicable);

c. The required fee; and

d. A letter or narrative statement that explains how the application satisfies each and all of the relevant approval criteria and standards.

C. Notice of Hearing.

1. Required Hearings. A minimum of two hearings, one before the Planning Commission and one before the City Council, are required for all Type IV applications, unless otherwise noted.

2. Notification Requirements. Notice of public hearings for the request shall be given by the Planning Official or designee in the following manner:

a. At least 20 days, but not more than 40 days, before the date of the first hearing on an ordinance that proposes to amend the Comprehensive Plan or any element thereof, or to adopt an ordinance that proposes to rezone property, a notice shall be prepared in conformance with ORS 227.186 and mailed to:

i. The record owner of real property as shown on the County tax roll that will be rezoned in order to implement the ordinance (including owners of property subject to a Comprehensive Plan amendment shall be notified if a zone change would be required to implement the proposed Comprehensive Plan amendment);

ii. Any affected governmental agency;

iii. For a zone change affecting a manufactured home or mobilehome park, all mailing addresses within the park, in accordance with ORS 227.175;

iv. The owner of an airport shall be notified of a proposed zone change in accordance with ORS 227.175.

b. The Oregon Department of Land Conservation and Development (DLCD) shall be notified in writing of proposed Comprehensive Plan and Development Code amendments at least 35 days before the first public hearing at which public testimony or new evidence will be received. The notice to DLCD shall include a DLCD Certificate of Mailing.

c. Notifications for annexation shall follow the provisions of this chapter.

3. Content of Notices. The mailed and published notices shall include the following information:

a. The number and title of the file containing the application, and the address and telephone number of the Planning Official or designee's office where additional information about the application can be obtained;

b. The proposed site location;

c. A description of the proposed site and the proposal in enough detail for people to determine what change is proposed, and the place where all relevant materials and information may be obtained or reviewed;

d. The time(s), place(s), and date(s) of the public hearing(s); a statement that public oral or written testimony is invited; and a statement that the hearing will be held under this title and rules of procedure adopted by the Council and available at City Hall; and

e. Each mailed notice required by Section 16.61.050(C) shall contain the following statement: "Notice to mortgagee, lien holder, vendor, or seller: The City of Happy Valley Land Development Code requires that if you receive this notice it shall be promptly forwarded to the purchaser."

4. Failure to Receive Notice. The failure of any person to receive notice shall not invalidate the action, providing:

a. Personal notice is deemed given where the notice is deposited with the United States Postal Service;

b. Published notice is deemed given on the date it is published.

D. Hearing Process and Procedure.

1. Unless otherwise provided in the rules of procedure adopted by the City Council:

a. The presiding officer of the Planning Commission and of the City Council shall have the authority to:

i. Regulate the course, sequence, and decorum of the hearing;

ii. Direct procedural requirements or similar matters; and

iii. Impose reasonable time limits for oral presentations.

b. No person shall address the Commission or the Council without:

i. Receiving recognition from the presiding officer; and

ii. Stating their full name and address.

c. Disruptive conduct such as applause, cheering, or display of signs shall be cause for expulsion of a person or persons from the hearing, termination or continuation of the hearing, or other appropriate action determined by the presiding officer.

2. Unless otherwise provided in the rules of procedures adopted by the Council, the presiding officer of the Planning Commission, Design Review Board and of the Council shall conduct the hearing as follows:

a. The presiding officer shall begin the hearing with a statement of the nature of the matter before the body, a general summary of the procedures, a summary of the standards for decisionmaking, and whether the decision which will be made is a recommendation to the City Council or the final decision of the Council;

b. The Planning Official or designee's report and other applicable staff reports shall be presented;

c. The public shall be invited to testify;

d. The public hearing may be continued to allow additional testimony or it may be closed; and

e. The body's deliberation may include questions to the staff, comments from the staff, and inquiries directed to any person present.

E. Continuation of the Public Hearing. The Planning Commission or the City Council may continue any hearing, and no additional notice of hearing shall be required if the matter is continued to a specified place, date, and time.

F. Decision-Making Criteria. The recommendation by the Planning Commission and the decision by the City Council shall be based on the following factors:

1. Approval of the request is consistent with the Statewide planning goals;

2. Approval of the request is consistent with the Comprehensive Plan and any pertinent ancillary documents or plans adopted by the City; and

3. The property and affected area is presently provided with adequate public facilities, services and transportation networks to support the use, or such facilities, services and transportation networks are planned to be provided concurrently with the development of the property.

G. Approval Process and Authority.

1. The Planning Commission shall:

a. After notice and a public hearing, vote on and prepare a recommendation to the City Council to approve, approve with modifications, approve with conditions, deny the proposed change, or adopt an alternative; and

2. Any member of the Planning Commission who votes in opposition to the Planning Commission's majority recommendation may file a written statement of opposition with the Planning Official or designee before the Council public hearing on the proposal. The Planning Official or designee shall send a copy to each Council member and place a copy in the record;

3. If the Planning Commission fails to adopt a recommendation to approve, approve with modifications, approve with conditions, deny the proposed change, or adopt an alternative proposal within 60 days of its first public hearing on the proposed change, the Planning Official or designee shall:

a. Report the failure together with the proposed change to the City Council; and

b. Provide notice and put the matter on the City Council's agenda for the City Council to hold a public hearing make a decision. No further action shall be taken by the Commission.

4. The City Council shall:

a. Approve, approve with modifications, approve with conditions, deny, or adopt an alternative to an application for legislative change, or remand the application to the Planning Commission for rehearing and reconsideration on all or part of the application;

b. Consider the recommendation of the Planning Commission; however, the City Council is not bound by the Commission's recommendation; and

c. Act by ordinance, which shall be signed by the Mayor after the Council's adoption of the ordinance.

H. Vote Required for a Legislative Change.

1. A vote by a majority of the qualified voting members of the Planning Commission present is required for a recommendation for approval, approval with modifications, approval with conditions, denial or adoption of an alternative.

2. A vote by a majority of the qualified members of the City Council present is required to decide any motion made on the proposal.

I. Notice of Decision. Notice of a Type IV decision shall be mailed to the applicant, all participants of record, and all persons as required by other applicable laws within five business days.

J. Final Decision and Effective Date. A Type IV decision, if approved, shall take effect and shall become final as specified in the enacting ordinance, or if not approved, upon mailing of the notice of decision to the applicant.

K. Record of the Public Hearing.

1. A verbatim record of the proceeding shall be made by stenographic, mechanical, or electronic means. It is not necessary to transcribe an electronic record. The minutes and other evidence presented as a part of the hearing shall be part of the record.

2. All exhibits received and displayed shall be marked to provide identification and shall be part of the record.

3. The official record shall include:

a. All materials considered by the hearings body;

b. All materials submitted by the Planning Official or designee to the hearings body regarding the application;

c. The verbatim record made by the stenographic, mechanical, or electronic means; the minutes of the hearing; and other documents considered;

d. The final ordinance;

e. All correspondence; and

f. A copy of the notices that were given as required by this chapter.

(Ord. 389 § 1(Exh. A), 2009; Ord. 427 § 1, 2012; Ord. 501 § 1, 2016; Ord. 582, 3/19/2024)

§ 16.61.055 Appeal of a Type II or Type III decision.

A. Appeal. A Type II decision may be appealed as follows:

1. Who May Appeal. The following people have legal standing to appeal a Type II decision:

a. The applicant or owner of the subject property;

b. Any person who was entitled to written decision;

c. Any other person or group who participated in the proceeding while the record was open.

2. Appeal Filing Procedure. A person may appeal a Type II decision by filing a notice of appeal according to the following procedures:

a. Time for Filing. A notice of appeal shall be filed with the Planning Official or designee within 14 days of the date the notice of decision was mailed;

b. Content of Notice of Appeal. The notice of appeal shall contain:

i. An identification of the decision being appealed, including the date of the decision;

ii. A statement demonstrating the person filing the notice of appeal has standing to appeal;

iii. A statement specifying the issues being raised on appeal;

iv. If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period;

v. The filing fee.

3. Scope of Appeal. The appeal is limited to the record that was before the Planning Official.

4. Appeal Procedures. Appeal of a Type II decision shall be heard before the City Council.

a. Notice of the appeal shall be mailed to those with the right to appeal the initial decision who provided adequate contact information a minimum of 14 days prior to the hearing. No other notice is required. The notice shall include:

i. An identification of the decision being appealed, including the date of the decision and the site location;

ii. The person filing the notice of appeal;

iii. A general summary of the issues being raised on appeal; and

iv. The time, place, and date of the appeal hearing; a statement that public oral or written testimony is invited.

b. The hearing procedure and decision process for a Type III decision shall be used for Type II appeals.

c. The City Council's decision is final and effective on the date it is mailed by the City.

B. Appeal. A Type III decision may be appealed as follows:

1. Who May Appeal. The following people have legal standing to appeal a Type III decision:

a. The applicant or owner of the subject property;

b. Any person who was entitled to written decision;

c. Any other person or group who participated in the proceeding while the record was open.

2. Appeal Filing Procedure. A person may appeal a Type III decision by filing a notice of appeal according to the following procedures;

a. Time for Filing. A notice of appeal shall be filed with the Planning Official or designee within 14 days of the date the notice of decision was mailed;

b. Content of Notice of Appeal. The notice of appeal shall contain:

i. An identification of the decision being appealed, including the date of the decision;

ii. A statement demonstrating the person filing the notice of appeal has standing to appeal;

iii. A statement specifying the issues being raised on appeal;

iv. If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period;

v. The filing fee.

3. Scope of Appeal. The appeal is not limited to the record ("de novo") that was before the prior hearings body. The City Council shall allow additional evidence, testimony or argument concerning any relevant standard, criterion, condition, or issue.

4. Appeal Procedures. Type III appeals shall be heard by the City Council.

a. Notice of the appeal shall be mailed to those with the right to appeal the initial decision who provided adequate contact information a minimum of 14 days prior to the hearing. No other notice is required. The notice shall include;

i. An identification of the decision being appealed, including the date of the decision and the site location;

ii. The person filing the notice of appeal;

iii. A general summary of the issues being raised on appeal; and

iv. The time, place, and date of the appeal hearing; a statement that public oral or written testimony is invited.

b. The hearing procedure and decision process for a Type III decision shall be used for Type III appeals, excluding the Planning Commission review.

c. The City Council's decision is final and effective on the date it is mailed by the City.

5. Further Appeal of the City Council's Decision. The decision of the City Council is final and effective on the date it is mailed. The City Council's decision may be appealed as provided by law.

(Ord. 582, 3/19/2024; Ord. 592, 6/3/2025)

§ 16.61.060 General provisions—120-day rule; time computation; pre-application conferences; acceptance and review; planning official's duties, amended applications; re-submittal; reconsiderations.

A. 120-day Rule. The City shall take final action on Type I—III applications, including resolution of all appeals, within 120 days from the date the application is deemed complete, unless the applicant requests an extension in writing. Any exceptions to this rule shall conform to the provisions of ORS 227.178.

B. Time Computation. In computing any period of time prescribed or allowed by this chapter, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or legal holiday, including Sunday, in which event, the period runs until the end of the next day which is not a Saturday or legal holiday.

1. Deferral of the Expiration Period Due to Appeals. If a permit decision is appealed beyond the jurisdiction of the City, the expiration period shall not begin until review before the land use board of appeals and the appellate courts has been completed, including any remand proceedings before the City. The expiration period provided for in this section will begin to run on the date of final disposition of the case (the date when an appeal may no longer be filed).

C. Pre-application Conference.

1. Participants. When a pre-application conference is required, the applicant shall meet with the Planning Official or his/her designee(s) and other parties as appropriate. If the applicant is not the property owner of record per the Clackamas County Assessor's office, the applicant must submit proof of property owner consent. A pre-application conference shall become invalid one year after the meeting date. A new pre-application conference is required if the previous pre-application conference is invalid, unless waived by the Planning Official.

2. Submittal Requirements. At the time of the pre-application conference, the developer applicant shall submit sketches, drawings, plans and descriptions as may be necessary to convey the following information to staff. This information shall be presented informally and shall not be used for the purposes of making any decisions or obtaining any commitment from the City, or the applicant.

a. Proposed land use and densities;

b. Building types;

c. Circulation pattern;

d. Open space and recreation facilities;

e. Existing features, both natural and manmade;

f. Available services and facilities, including sanitary and storm sewers, water, natural gas, mass transit, schools, police protection, fire protection and other pertinent and appropriate services and facilities;

g. Land dedication or fees in lieu of dedication.

3. Information Provided. Based on the information provided by the applicant, the Planning Official or designee at the pre-application conference shall:

a. Reasonably identify the Comprehensive Plan/Zoning Map designations/districts applicable to the proposal;

b. Cite the ordinance provisions, including substantive and procedural requirements applicable to the proposal;

c. Provide available technical data and assistance that will aid the applicant;

d. Identify other governmental policies and regulations that relate to the application; and

e. Reasonably identify other opportunities or constraints concerning the application.

4. Disclaimer. Failure of the Planning Official or designee to provide any of the information required by this subsection C shall not constitute a waiver of any of the standards, criteria or requirements for the application.

5. Changes in the Law. Due to possible changes in Federal, State, regional, and local law, the applicant is responsible for ensuring that the application complies with all applicable laws on the day the application is deemed complete.

D. Acceptance and Review of Applications.

1. Initiation of Applications.

a. Applications for approval under this chapter may be initiated by:

i. Order of City Council;

ii. Resolution of the Planning Commission;

iii. The Planning Official or designee;

iv. A record owner of property (person(s) whose name is on the most recently recorded deed), or contract purchaser with written permission from the record owner.

b. Any person authorized to submit an application for approval may be represented by an agent authorized in writing to make the application on their behalf.

2. Consolidation of Proceedings. When an applicant applies for more than one type of land use or development permit (e.g., Type II and III) for the same one or more parcels of land, the proceedings may be consolidated for review and decision at the discretion of the City.

a. For Type I—III applications, if more than one approval authority would be required to decide the applications if submitted separately, a consolidated decision shall be made by the approval authority with jurisdiction over one of the applications in the following order: the City Council, the Planning Commission, Hearings Officer or the Planning Official or designee. When proceedings are consolidated:

i. The notice shall identify each application to be decided;

ii. An application that is dependent on approval of a higher ranking application shall follow the higher-ranking decisions. For example, a Comprehensive Plan map amendment/zone change must proceed a subdivision or PUD approval; and

iii. Combined findings and decisions may be made on each application.

b. Type II-DR appeals and Type III applications shall be heard by the Planning Commission, Hearings Officer or Design Review Board (as applicable); however, when an applicant applies for more than one type of land use or development permit (e.g., Type III and III-DR) for the same one or more parcels of land, the proceedings for review and decision shall be processed consecutively, with the non-design review applications occurring first. For example, a Type III conditional use permit before the Hearings Officer shall precede a Type III-DR development application.

3. Check for acceptance and completeness. In reviewing an application for completeness, the following procedure shall be used:

a. Acceptance. When an application is received by the City, the Planning Official or designee shall immediately determine whether the following essential items are present. If the following items are not present, the application shall not be accepted and shall be immediately returned to the applicant:

i. The required form;

ii. The required fee;

iii. The signature of the applicant on the required form and signed written authorization of the property owner of record if the applicant is not the owner.

b. Completeness.

i. Review and Notification. After the application is accepted, the Planning Official or designee shall review the application for completeness. If the application is incomplete, the Planning Official or designee shall notify the applicant in writing of exactly what information is missing within 30 days of receipt of the application and allow the applicant 180 days from first submittal, to submit the missing information, or to submit a refusal statement;

ii. Application Deemed Complete for Review. In accordance with the application submittal requirements of this chapter, the application shall be deemed complete upon the receipt by the Planning Official or designee of all required information. The applicant shall have the option of withdrawing the application, or refusing to submit information requested by the Planning Official or designee in Section 16.61.060(D)(3)(b)(1), above. For the refusal to be valid, the refusal shall be made in writing and received by the Planning Official or designee no later than 14 days after the date on the Planning Official or designee's letter of incompleteness. If the applicant refuses in writing to submit the missing information, the application shall be deemed complete on the 31st day after the Planning Official or designee first accepted the application.

iii. Standards and Criteria that Apply to the Application. Approval or denial of the application shall be based upon the standards and criteria that were applicable at the time it was first accepted.

iv. Coordinated Review. The City shall also submit the application for review and comment to the City Engineer, road authority, and other applicable County, State, and Federal review agencies.

4. Changes or Additions to the Application During the Review Period. Once an application is deemed complete:

a. All documents and other evidence relied upon by the applicant shall be submitted to the Planning Official or designee at least seven days before the notice of action or hearing is mailed, if possible. Documents or other evidence submitted after that date shall be received by Planning Official or designee, and transmitted to the hearings body, but may be too late to include with the staff report and evaluation.

b. When documents or other evidence are submitted by the applicant during the review period but after the application is deemed complete, the assigned review person or body shall determine whether or not the new documents or other evidence submitted by the applicant significantly change the application.

c. If the assigned reviewer determines that the new documents or other evidence significantly change the application, the reviewer shall include a written determination that a significant change in the application has occurred as part of the decision. In the alternate, the reviewer may inform the applicant either in writing, or orally at a public hearing, that such changes may constitute a significant change (see "d", below), and allow the applicant to withdraw the new materials submitted, in order to avoid a determination of significant change.

d. If the applicant's new materials are determined to constitute a significant change in an application that was previously deemed complete, the City shall take one of the following actions, at the choice of the applicant:

i. Continue to process the existing application and allow the applicant to submit a new second application with the proposed significant changes. Both the old and the new applications will proceed, but each will be deemed complete on different dates and may therefore be subject to different criteria and standards and different decision dates;

ii. Suspend the existing application and allow the applicant to submit a new application with the proposed significant changes. Before the existing application can be suspended, the applicant must consent in writing to waive the 120-day rule (Section 16.61.060(A) above) on the existing application. If the applicant does not consent, the City shall not select this option;

iii. Reject the new documents or other evidence that has been determined to constitute a significant change, and continue to process the existing application without considering the materials that would constitute a significant change. The City will complete its decision-making process without considering the new evidence.

e. If a new application is submitted by the applicant, that application shall be subject to a separate check for acceptance and completeness and will be subject to the standards and criteria in effect at the time the new application is accepted.

E. Planning Official's Duties. The Planning Official or designee shall:

1. Prepare application forms based on the criteria and standards in applicable state law, the City's Comprehensive Plan, and implementing ordinance provisions;

2. Accept all development applications that comply with Section 16.61.060;

3. Prepare a staff report that summarizes the application(s) and applicable decision criteria, and provides findings of conformance and/or nonconformance with the criteria. The staff report may also provide a recommended decision of: approval, denial, or approval with specific conditions that ensure conformance with the approval criteria;

4. Prepare a notice of the proposed decision:

a. In the case of an application subject to a Type I—III review process, the Planning Official or designee shall make the staff report and/or decision and all case-file materials available at the time that the notice of the decision is issued,

b. In the case of an application subject to a public hearing, the Planning Official or designee shall make the staff report available to the public at least seven days prior to the scheduled hearing date, and make the case-file materials available when notice of the hearing is mailed, as provided by this title;

5. Administer the hearings process;

6. File notice of the final decision in the City's records and mail a copy of the notice of the final decision to the applicant, all persons who provided comments or testimony, persons who requested copies of the notice; and any other persons entitled to notice by law;

7. Maintain and preserve the file for each application for the time period required by law. The file shall include, as applicable, a list of persons required to be given notice and a copy of the notice given; the affidavits of notice, the application and all supporting information; the staff report; the final decision including the findings, conclusions and conditions, if any; all correspondence; minutes of any meeting at which the application was considered; and any other exhibit, information or documentation which was considered by the decision-maker(s) on the application; and

8. Administer the appeals and review process.

F. Amended Decision Process.

1. The purpose of an amended decision process is to allow the Planning Official or designee to correct typographical errors, rectify inadvertent omissions and/or make other minor changes that do not materially alter the decision.

2. The Planning Official or designee may issue an amended decision after the notice of final decision has been issued but before the appeal period has expired. If such a decision is amended, the decision shall be issued within 14 business days after the original decision would have become final, but in no event beyond the 120 day period required by state law. A new 10 day appeal period shall begin on the day the amended decision is issued.

3. Notice of an amended decision shall be given using the same mailing and distribution list as for the original decision notice.

4. Modifications to approved plans or conditions of approval requested by the applicant shall follow the procedures in Chapter 16.66. All other changes to decisions that are not modifications under Chapter 16.66 follow the appeal process.

G. Re-submittal of Application Following Denial. An application that has been denied, or an application that was denied and 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 as the same or a substantially similar proposal for the same land for a period of at least 12 months from the date the final City action is made denying the application, unless there is substantial change in the facts or a change in City policy that would change the outcome, as determined by the Planning Official or designee.

H. Appeal Process. An appeal shall be processed per Section 16.61.055.

I. Reconsideration of Permit Approvals.

1. Purpose. The ability to reconsider publicly a land use or limited land use approval provides an opportunity to determine if the use or development is in compliance with this chapter. It also allows for clarification of prior land use approvals. As part of this reconsideration, the ability to add new conditions or revoke the approval provides a strong enforcement mechanism and/or an opportunity to improve the terms of the development.

2. Situations When Permit Approvals May Be Reconsidered. All quasi-judicial land use and limited land use approvals and master plans, except plan amendments and zone changes, and those uses that become conditional uses or nonconforming uses due to a change of zoning regulations, mapping or annexation, may be reconsidered upon a request by the City Manager to the City Council. A decision may be reconsidered by the City Council if there is evidence of any of the following:

a. One or more conditions of the approval have not been implemented or have been violated;

b. The activities of the use, or the use itself, are substantially different from what was approved;

c. The use is subject to the conditional use or nonconforming use regulations, has not been subject to a conditional use or nonconforming use review, and has substantially changed its activities. or substantially increased the intensity of its operations since it became a conditional use or a nonconforming use;

d. When the City and the applicant agree that the approval terms and/or conditions can be improved; and

e. Reconsideration will not cause the City to violate the deadline for a final local decision (i.e., the "120-day" deadline), including any extensions requested by the applicant.

3. Initiating the Reconsideration. The City Manager and designee may initiate a reconsideration if there is substantial evidence that one of the situations described applies to the use or development. The evidence relied on shall be made part of the record. The reconsideration may be initiated any time after 30 days have passed from the first notice of violation pursuant to subparagraphs (a), (b) and (c) in the preceding paragraph.

4. Procedure for Reconsideration by Review Authority.

a. After initiation, the reconsideration is processed using the public hearings procedure. An application does not have to be submitted, a preapplication conference is not required, and a fee shall not be charged.

b. The review authority shall be the City Council.

c. Notice.

i. The property owner, applicant or operator of the site shall be notified that the reconsideration process has been initiated. This notice shall be mailed at least 20 days prior to the scheduled hearing. Written comments from the property owner, applicant, or operator shall be received 15 days prior to the public hearing date to be included in the staff report.

ii. Additional Public Notice. In addition to people who are mailed notice pursuant to the public hearing procedure requirements, people who have complained or otherwise provided comment or input in writing about the use or development shall also be mailed notice of the hearing.

5. Possible Actions at the Reconsideration Hearing. Depending on the situation, the review authority may take any of the actions described below. The review authority may not approve the new use or one more intense than originally approved unless the possibility of this change has been stated in the public notice:

a. Uses or development which are alleged to have not fulfilled conditions or are alleged to be different from what was approved or which violate conditions are subject to the following actions:

i. The review authority may find that the use or development is complying with the conditions of the approval. In this case, the use or development is allowed to continue.

ii. The review authority may find that the use or development does not fully comply with the conditions of approval, but that the violations are not substantial enough to warrant revocation, and that the use can comply with the original approval criteria if the conditions are met. In this case, the review authority may modify the existing conditions, add new conditions to ensure compliance with the approval criteria, and refer the case to the City Manager for enforcement of the existing conditions.

iii. The review authority may revoke the approval if it finds that there are substantial violations of conditions or failure to implement conditions of prior land use decisions, such that the original approval criteria for the use or development are not being met.

b. Where the City Manager and the applicant convince the review authority that the development terms can be improved and the review authority so finds, the review authority may modify the terms of development approval.

J. Reconsideration of Conditional and Nonconforming Uses. Conditional uses and nonconforming uses that have not been subject to a land use review by the City are subject to the following actions:

1. The review authority may find that the use and its activities, including its intensity, are consistent with what was on the site at the time it became a conditional or nonconforming use. In this case, the use may continue.

2. The review authority may find that the use and its activities are substantially different from what was on the site at the time it became a conditional use or nonconforming use and that the differences do not comply with the current approval criteria for the site. In this case, the review authority may apply conditions or restrictions or require an application for a development permit to ensure that the differences comply with the approval criteria.

K. Enforcement of Revocation. In the event that the land use or limited land use approval is revoked, the use or development becomes illegal. The use or development shall be terminated within 30 days of the date the revocation decision is signed by the City Council, unless the decision provides otherwise. Revocation actions are appealable pursuant to land use decision appeals. The filing of an appeal shall stay the revocation action but not any other action taken by the City.

L. Use of New Regulations or Mapping. Applications shall not be accepted for building permits or land use reviews based on plan amendments, zone changes or land use regulations that have been approved but are not yet effective. However, preapplication conferences may be requested and held.

M. Prior Conditions of Land Use Approvals.

1. Incorporating Prior Conditions of Land Use Actions. Over time, there are instances when uses or development previously approved with conditions are subject to new zoning regulations. This may result from a change of the content of zoning regulations or from legislative zone changes including annexation rezonings. This subsection addresses situations where a use or development was approved with conditions as a part of a land use or limited land use review under zoning regulations that no longer apply to the site. The regulations stated below apply to all prior conditions of approval unless the conditions of approval or the ordinance adopting the conditions specifically refer to the situations outlined below and provide for the continuance of the conditions. In that instance, the conditions of approval will continue to apply.

2. Zone Changes. If a site is subject to conditions as the result of a zone change, the conditions continue to apply if the site is rezoned to a comparable zone as part of an annexation rezoning or as part of a legislative remapping.

3. Conditional Uses.

a. An Allowed Conditional Use. If a use was an approved conditional use under the prior regulations, and is a conditional use under the new regulations pertaining to the site, any conditions of approval shall continue to apply.

b. Use Allowed Outright. If the use is a permitted use, the conditions of approval shall continue to apply.

c. Use No Longer Allowed. If the use was a conditional use without an expiration date and is no longer allowed, it becomes a nonconforming use under the new regulations, and shall continue to meet the conditions, as well as the nonconforming use regulations.

4. Variances. If the variance was to a standard or regulation which is now allowed, and the development on the site conforms with the current regulations, then the prior variance conditions of approval no longer apply.

5. Other Land Use Actions. If the use or development was approved with conditions under a review which is no longer in effect on the site, the conditions continue to apply.

(Ord. 389 § 1(Exh. A), 2009; Ord. 501 § 1, 2016; Ord. 521 § 3, 2017; Ord. 582, 3/19/2024)

§ 16.61.070 Special procedures.

A. Expedited Land Divisions. An expedited land division ("ELD") shall be defined and may be used as provided under ORS 197.360 through 197.380.

1. Selection. An applicant who wishes to use an ELD procedure for a partition, subdivision or planned development instead of the regular procedure type assigned to it, must request the use of the ELD in writing at the time the application is filed, or the right to use it is waived.

2. Review Procedure and Approval Criteria. All applications for expedited land divisions shall comply with ORS 197.360 through 197.380, and the Happy Valley Comprehensive Plan, zoning designation, and submittal requirements in Section 16.61.030(B)(2). A pre-application conference is required in accordance with Section 16.61.060 prior to submittal of an application.

a. For an ELD to be considered for a townhome, duplex, triplex, quadplex or cottage development, the proposed division must demonstrate how it complies with the following:

i. The parent lot is zoned for residential use and is within the urban growth boundary.

ii. The parent lot is solely for the purpose of residential use, including recreational or open space uses accessory to residential use.

b. The land division will not provide for dwellings or accessory buildings to be located on land that is within the following overlay zones:

i. Steep Slopes Development Overlay Zone (Chapter 16.32);

ii. Historic Properties Overlay Zone (Chapter 16.33);

iii. Natural Resources Overlay Zone (Chapter 16.34);

iv. Flood Management Overlay Zone (Chapter 16.35).

c. The land division satisfies minimum street or other right-of-way connectivity standards established by the City's Transportation System Plan, Engineering Design Manual, and the Land Development Code.

d. The land division will result in development that either:

i. Creates enough lots or parcels to allow building residential units at 80% or more of the maximum net density permitted by the zoning designation of the site; or

ii. All dwellings will be sold or rented to households with incomes below 120% of the median family income for Clackamas County. A copy of a deed restriction or other legal mechanism approved by the Director shall be submitted.

3. Appeal Procedure. An appeal of an ELD shall follow the procedures described in subsection (C)(9) through (C)(11) of this section. Where the City has not otherwise appointed a hearings officer (referee) for such appeals, and the City Attorney is a contractor (not a City employee), the City Attorney shall serve as the referee for ELD appeals.

B. Middle Housing Land Division. A middle housing land division ("MHLD") is the creation of multiple lots or parcels from a single parent lot on which a middle housing type (duplex, triplex, quadplex, townhouse, cottage cluster) is developed or proposed, which results in an individual lot for each of the middle housing units. The MHLD process follows the procedures defined by ORS 197.360(1). The MHLD criteria and process is as follows:

1. Submittal. Applicants may not submit an application for a MHLD if permits for middle housing have been submitted to the Building Division and have not been issued. New middle housing permits may not be submitted for sites with an active MHLD review until the final plat is recorded. A pre-application conference is required in accordance with Section 16.61.060 prior to submittal of an application.

2. Approval Criteria. The applicant for a MHLD shall demonstrate that the application meets of the following criteria:

a. Existing Compliance. The middle housing development complies with the Oregon Residential Specialty Code and applicable LDC middle housing regulations. To demonstrate compliance with this criterion, the applicant shall submit building permits demonstrating that existing or proposed structures comply with the Oregon Residential Specialty Code and LDC middle housing regulations.

b. Separate Utility Connections. Separate utility service connections for public water, sewer, and stormwater will be provided for each dwelling unit.

c. Easements. Easements will be provided as necessary for each dwelling unit per Section 16.63.060(C) on the site for:

i. Locating, accessing, replacing, and servicing all utilities;

ii. Pedestrian access from each dwelling unit to a private or public road;

iii. Any common use areas or shared building elements;

iv. Any dedicated driveways or parking;

v. Any dedicated common area.

d. One Dwelling Unit per Lot. Exactly one dwelling unit will be located on each resulting lot or parcel (child lot), except for lots, parcels, or tracts used as common areas, on which no dwelling units will be permitted.

e. Comply with Building Code. Buildings or structures on a child lot will comply with applicable Building Code provisions relating to new property lines.

f. Notwithstanding the creation of new child lots, structures or buildings located on the newly created lots will comply with the Oregon Residential Specialty Code.

g. Frontage Improvements. Where a resulting child lot abuts a street that does not meet City standards, street frontage improvements will be constructed and, if necessary, additional rightof-way will be dedicated, pursuant Section 16.63.060(D).

3. Preliminary Plat Submittal. In addition to the items listed in Sections 16.63.060 and 16.61.030(B)(2), an application for a MHLD shall include the following:

a. A description of the manner in which the proposed division complies with each of the provisions of subsection 2 of this section, including copies of building permits or permit applications and other evidence necessary to demonstrate:

i. How buildings or structures on a resulting child lot will comply with applicable building codes provisions related to new property lines; and

ii. Notwithstanding the creation of new lots, how structures or buildings located on the newly created child lots will comply with the Oregon Residential Specialty Code.

b. In addition to the items listed in Section 16.63.060, copies of a plat showing the following details:

i. Separate utility connections for each dwelling unit, demonstrating compliance with approval criterion in subsection (B)(2)(b) of this section.

ii. Existing or proposed easements necessary for each dwelling unit on the plan, demonstrating compliance with the criterion Section 16.63.060(C).

c. Copies of all required easements in a form approved by the City Attorney.

4. Preliminary Plat Conditions of Approval.

a. The preliminary plat for a MHLD shall:

i. Prohibit further division of the resulting child lots.

ii. Require that a notation appear on the final plat indicating:

(A) The approval was given under ORS Chapter 92.

(B) The type of middle housing approved on the subject site and noting that this middle housing type shall not altered by the middle housing land division.

(C) Accessory dwelling units are not permitted on child lots resulting from a middle housing land division.

b. The City shall not attach conditions of approval that a child lot require driveways, vehicle access, parking, or minimum or maximum street frontage.

C. Preliminary Plat Procedures for Expedited and Middle Housing Land Division. Unless the applicant requests to use the procedure set forth in Section 16.63.040, the City shall use the following procedure for an expedited land division (ELD), as described in ORS 197.360, or a middle housing land division (MHLD).

1. Completeness Review.

a. If the application for an ELD or MHLD is incomplete, the City shall notify the applicant of the missing information within 21 days of receiving an application. The application shall be deemed complete on the date the applicant submits the requested information or refuses in writing to submit it.

b. If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted.

2. Notice of Application.

a. On receipt of a complete application, written notice shall be provided to owners of property within 100 feet of the entire contiguous site for which the application is made and to any City Council-recognized neighborhood association(s) whose boundaries include the site. Notice shall also be provided to any agency responsible for providing public services or facilities to the subject site. The notification list shall be compiled from the most recent property tax assessment roll. For purposes of appeal to the referee under ORS 197.375, this requirement shall be deemed met when the local government can provide an affidavit or other certification that such notice was given.

b. The notice shall include the following:

i. The deadline for submitting written comments;

ii. A statement of issues that may provide the basis for an appeal to the referee must be raised in writing prior to the expiration of the comment period; and

iii. A statement that issues must be raised with sufficient specificity to enable the local government to respond to the issue.

iv. The applicable criteria for the decision.

v. The place, date, and time that comments are due.

vi. A time and place where copies of all evidence submitted by the applicant will be available for review.

vii. The street address or other easily understood geographical reference to the subject property.

viii. The name and telephone number of a local government contact.

ix. A brief summary of the local decision-making process for the land division decision being made.

3. There shall be a minimum 14 day period to allow for submission of written comments prior to the Planning Official's decision.

4. There shall be no public hearing on the application.

5. The Planning Official shall make a decision on the application within 63 days of receiving a completed application.

6. The Planning Official's decision shall be based on applicable elements of the Happy Valley Municipal Code and Comprehensive Plan. An approval may include conditions to ensure that the application meets applicable land use regulations.

7. Notice of the decision shall be provided to the applicant and to those who received notice under subsection (C)(2) within 63 days of the date of a completed application. The notice of decision shall include:

a. A summary statement explaining the determination; and

b. An explanation of appeal rights under ORS 197.375.

8. Failure to approve or deny application within specified time.

a. After seven days' notice to the applicant, the City Council may, at a regularly scheduled public meeting, take action to extend the 63 day time period to a date certain for one or more applications for an expedited land division prior to the expiration of the 63 day period, based on a determination that an unexpected or extraordinary increase in applications makes action within 63 days impracticable. In no case shall an extension be to a date more than 120 days after the application was deemed complete. Upon approval of an extension, the provisions of ORS 197.360 to 197.380, including the mandamus remedy provided by subsection (a), shall remain applicable to the expedited land division, except that the extended period shall be substituted for the 63 day period wherever applicable.

b. The decision to approve or deny an extension under subsection (C)(2)(b) of this section is not a land use decision or limited land use decision.

9. A decision may be appealed within 14 days of the mailing of the decision notice by the applicant or a person or organization who file written comments within the time period described in subsection (C)(3) of this section. The appeal must include the appeal application and a three hundred dollar ($300.00) deposit for costs.

10. An appeal shall be based solely on one or more of the allegations:

a. The decision violates the substantive provisions of the applicable land use regulations;

b. The decision is unconstitutional;

c. The application was not eligible for review under subsection B of this section, (Middle Housing Land Division) and should be reviewed as a land use decision or limited land use decision.

d. The appellant's substantive rights were substantially prejudiced by a procedural error.

11. The City shall appoint a referee to decide the appeal decision and the appointed referee shall comply with ORS 197.375(3) through (6) when issuing a decision. The referee may not be a City employee or official.

D. Final Plat Requirements for Expedited and Middle Housing Land Divisions.

1. Expedited Land Division (ELD)—Final Plan Review Criteria. Approval of a final plat for an ELD shall be consistent with the review criteria for Land Divisions and Property Line Adjustments (Section 16.63.080).

2. Middle Housing Land Division (MHLD)—Final Plan Review Criteria. Approval of a final plat for a MHLD will be granted if the review body finds the applicant has met the following criteria:

a. The final plat substantially conforms to the preliminary plat.

b. Conditions of approval attached to the preliminary plat have been satisfied.

c. All proposed improvements required to satisfy applicable standards of the LDC have been constructed.

3. Final Plat Submittal. An application for an ELD or MHLD final plat shall include the items listed in Section 16.63.080.

(Ord. 389 § 1(Exh. A), 2009; Ord. 561 § 1(Exh. A), 2022; Ord. 582, 3/19/2024)

§ 16.61.080 Neighborhood meetings.

Applicants filing Type II or Type III applications are encouraged to meet with adjacent property owners and neighborhood representatives prior to submitting their application to the City in order to solicit input and exchange information about the proposed development. Applicants are encouraged to hold a neighborhood meeting with a recognized neighborhood or community organization. If no organization exists, then the applicant may hold a meeting with adjacent property owners who will receive public notice (a minimum 300 foot radius from subject property).

(Ord. 389 § 1(Exh. A), 2009)

§ 16.61.090 Traffic impact studies.

The purpose of this section of the code is to assist in determining which road authorities participate in land use decisions, and to implement Section 660-012-0045(2)(e) of the State Transportation Planning Rule that requires the City to adopt a process to apply conditions to development proposals in order to minimize impacts and protect transportation facilities. This chapter establishes the standards for when a proposal must be reviewed for potential traffic impacts; when a traffic impact study must be submitted with a development application in order to determine whether conditions are needed to minimize impacts to and protect transportation facilities; what must be in a traffic impact study; and who is qualified to prepare the study.

A. When a Traffic Impact Study is Required. The City or other road authority with jurisdiction may require a traffic impact study (TIS) as part of an application for development, a change in use, or a change in access. A TIS shall be required when a land use application involves one or more of the following actions:

1. A change in zoning or a plan amendment designation;

2. Any proposed development or land use action that a road authority states may have operational or safety concerns along its facility(ies);

3. An increase in site traffic volume generation. Increase in site traffic volume generation shall be subject to the City's transportation impact study guidelines;

4. An increase in peak hour volume of a particular movement to and from the State highway by 20% or more;

5. An increase in use of adjacent streets by vehicles exceeding the 20,000 pound gross vehicle weights by 10 vehicles or more per day;

6. The location of the access driveway does not meet minimum sight distance requirements, or is located where vehicles entering or leaving the property are restricted, or such vehicles queue or hesitate on the State highway, creating a safety hazard; and

7. A change in internal traffic patterns that may cause safety problems, such as back up onto a street or greater potential for traffic accidents.

B. Traffic Impact Study Preparation. A traffic impact study shall be prepared by a professional engineer in accordance with the requirements of the road authority. If the road authority is the Oregon Department of Transportation (ODOT), consult ODOT's regional development review planner and OAR 734-051-180.

(Ord. 389 § 1(Exh. A), 2009)