(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2242, 4/16/2024)
The purpose of this chapter is to establish procedures for the
review and processing of land use applications. This chapter is intended
to make the land use review process clear and understandable, to facilitate
timely review of land use applications by the City, and to enable
the public to participate in the local land use decision-making process.
The provisions contained in this chapter are intended to be consistent
with Oregon law regulating land use review.
All land use applications shall be reviewed using the procedures
contained in this Chapter.
The processing of applications and permits authorized under Titles 14, 17, and 19 shall be consistent with the Oregon Revised Statutes (ORS). The City shall follow the provisions of the ORS in instances where following the provisions of this chapter alone would fail to meet State requirements for the processing or review of land use applications or permits.
All land use applications have both a review type and an application type. This chapter establishes the review procedures associated with each review type. Chapter 19.900 contains a list of application types and their associated review types.
A.
Review Types
There are 5 types of review: Types I, II, III, IV, and V. Table
19.901 contains a list of the City's land use applications and their
associated review types. In addition, there are land uses that are
allowed by right. These land uses do not require land use review and
are only required to obtain a building permit.
B.
Determination
When a review type for a land use application is not specified in Table 19.901, or otherwise required by law, the Planning Director shall determine the review type. This determination is not applicable to the determination of whether a Comprehensive Plan map or Zoning Map amendment is a quasi-judicial or legislative matter, as described in Subsections 19.902.4 and 19.902.6. The Planning Director's determination shall favor the review type that provides the most appropriate public notice and opportunity for public comment. The Director's review type determination is not a land use decision per ORS 197.015 and is not subject to appeal.
C.
Notice
The notice requirements in this chapter shall be the minimum
amount of notice required for each specific review type. The City
may provide notice in excess of the minimum requirement.
A.
The review authority for each review type is listed in Table 19.1001.5.
The review authority is also the decision authority, except for Type
IV and V reviews as described below.
B.
The appeal authority for each review type is listed in Table 19.1001.5.
The decision of the Appeal authority is the City of Milwaukie's final
decision for a permit, land use action, or zone change. Parties with
standing may appeal the City's final decision to the Oregon Land Use
Board of Appeals or other court.
|
Table 19.1001.5
Land Use Application Review and City Appeal Authorities
| ||
|---|---|---|
|
Review Type
|
Review Authority
|
Appeal Authority
|
|
Type I
|
Planning Director
|
Planning Commission
|
|
Type II
|
Planning Director
|
Planning Commission
|
|
Type III
|
Planning Commission
|
City Council
|
|
Type IV
|
City Council, with initial hearing and recommendation by Planning
Commission
|
None
|
|
Type V
|
City Council, with initial hearing and recommendation by Planning
Commission
|
None
|
A.
Initiation
Type I, II, III, and IV applications may be initiated by the
property owner or contract purchaser of the subject property, any
person authorized in writing to represent the property owner or contract
purchaser, and any agency that has statutory rights of eminent domain
for projects they have the authority to construct. Type III and IV
applications involving map amendments may also be initiated by the
Milwaukie City Council, Planning Commission, or Planning Director.
Type V applications may be initiated by the Milwaukie City Council,
Planning Commission, Planning Director, or any individual.
B.
Review of Multiple Applications
When multiple land use applications are required for a single
proposal, the applicant may request, or the City may require, that
the applications be processed concurrently or individually.
The City shall generally allow applicants the choice of having
multiple applications for a single proposal processed concurrently
or individually. The City may require that applications be reviewed
concurrently for proposals where a review of an application(s) would
be difficult without the context of the other applications related
to the proposal. Alternatively, the City may require parts of an application
to be processed separately in order to comply with the 120-day decision
requirement (or the 100-day decision requirement for a project meeting
all provisions of ORS 197.311) or to allow decisions on parts of a
proposal to be made with a lower level of review.
1.
Applications Processed Concurrently
A concurrent application review consolidates the review of multiple
applications into a single review process. The applications shall
be processed according to the highest numbered review type required
for any part of the application. For example, a concurrent review
of a Type II review and a Type III review would be processed through
a Type III review. A single decision shall be issued that includes
findings for all of the applications that are part of the concurrent
review.
The applicant shall submit an application form and application
fee for each application type being reviewed. The application shall
contain the information and documentation required for each individual
application type.
2.
Applications Processed Individually
Multiple applications related to a single proposal may be submitted
individually at the same time or at different points in time. Each
individual application, or group of concurrent applications, shall
be processed according to their specified review type. Any concurrent
applications shall be processed as specified in Subsection 19.1001.6.B.1.
For each application or group of concurrent applications, the review
authority will issue a separate decision.
The applicant shall submit an application form and application
fee for each application type being reviewed. The application shall
contain the information and documentation required for each individual
application type.
C.
Notice Requirements
1.
Sign Notice
b.
Signs shall be posted in a location which is clearly visible
to vehicles traveling on a public street and legible to pedestrians
walking by the property. If the sign is providing notice of a public
hearing, the sign shall include the date, time, and place of the hearing.
The number and size of signs shall be appropriate given the size of
the property, the number of street frontages, and the functional classification
of surrounding streets. The City shall provide the applicant at least
one sign and instructions for posting. An affidavit of posting shall
be submitted by the applicant prior to the issuance of the decision
and made part of the case file.
c.
If the affidavit of posting is not submitted on time or if the required number and type of notice signs are not posted for the required period of time, the City may require an extension of the 120-day decision requirement (or the 100-day decision requirement for a project meeting all provisions of ORS 197.311), delay the decision, and/or postpone or continue the public hearing on the application as necessary. The applicant will be required to repost the notice signs as necessary to meet the requirements of Sections 19.1005—19.1008 respectively.
d.
The Planning Director shall adopt administrative rules for sign
postings. The rules shall ensure that sign postings are consistent
in appearance, legible to the public, and appropriate for the type
and location of development being proposed. They will also ensure
that the applicant's affidavit contains all necessary information,
including but not limited to photographic documentation, to confirm
that the requirements of this subsection have been met.
2.
Mailed Notice
Where a review type in this chapter specifies that mailed notice
of an application or hearing is required, the notice is deemed to
have been provided upon the date the notice is deposited in the mail.
Failure of the addressee to receive such notice shall not invalidate
the proceedings if it can be demonstrated by affidavit that notice
to the required parties was deposited in the mail. Notice to surrounding
property owners shall be provided using the most recent property ownership
information from the County Assessor that is available to the City.
3.
Continued Hearing Notice
4.
Department of Land Conservation and Development Notice
a.
Notice of Proposed Change
Applications that involve amendments described by Section 19.902 may require notice of the proposed change to the Oregon Department of Land Conservation and Development (DLCD). The notice shall meet the submittal requirements specified in OAR 660-018-0020. The notice shall be submitted to DLCD at least 35 days prior to the first evidentiary hearing on the application, unless the proposed change is exempt or eligible for a shorter notice period per OAR 660-018-0022.
b.
Notice of Adopted Change
Following a final decision on an application described by Section 19.902 that results in a change to an acknowledged comprehensive plan or a land use regulation, notice of the adopted change shall be provided to the Oregon Department of Land Conservation and Development (DLCD). The notice shall meet the submittal requirements specified in OAR 660-018-0040. The notice shall be submitted to DLCD within 20 days of making the decision. The notice of adopted change is required regardless of whether a notice of proposed change was required.
D.
Additional Requirements
For applications where the subjective aspects of the height
and mass of the proposed development will be evaluated at a public
hearing, temporary on-site "story pole" installations that simulate
the proposed development, and photographic representations thereof,
may be required prior to the public hearing.
A.
Conditions of Approval
The review authority shall impose conditions of approval on
an application as necessary to ensure conformance with relevant approval
criteria and development standards.
B.
Applicable Standards and Criteria
Approval or denial of all ministerial or quasi-judicial applications,
as defined by the ORS, shall be based upon the development standards
and approval criteria that were in effect at the time the application
was first submitted.
C.
120-Day Decision Requirement
The City shall take final action on land use actions subject
to ORS 227.178, including resolution of all local appeals, within
120 days after the application has been deemed complete, unless the
applicant provides a written statement consenting to an extension
of the 120-day decision requirement. The total of all extensions,
except as provided for mediation per ORS 227.178(11), shall not exceed
245 days.
E.
Expiration of Approved Decisions
1.
Type I, II, III, and IV land use approvals granted pursuant
to this chapter for land use applications submitted on or after May
14, 2011, the effective date of Ordinance #2025, shall expire and
become void unless the following criteria are satisfied:
a.
For proposals requiring any kind of development permit, the
development must complete both of the following steps:
b.
For proposals not requiring development permits, the development
must utilize its approvals within four years of land use approval.
c.
For boundary adjustments and land divisions approved
under Title 17 Land Division, evidence of recording of the required
instruments must be provided to the city within two years of the original
approval.
2.
Land use approvals shall expire as outlined above unless one
of the following occurs:
F.
Extensions to Expiring Approvals
The time period during which a land use approval is valid may be extended per Section 19.908.
(Ord. 2025 § 2, 2011; Ord. 2161 § 2, 2018)
The purpose of the preapplication conference is to acquaint
the applicant or applicant's representative with the requirements
of the municipal code in preparation for submission of a land use
application, including relevant approval criteria, development standards,
and procedures. The preapplication conference is not an exhaustive
review of all potential issues or requirements. Furthermore, the information
provided by the City is not binding, and it does not preclude the
City from raising new issues or identifying additional requirements
during the land use review process.
The Planning Director shall adopt administrative rules for how
the City processes preapplication conferences. The rules shall ensure
that preapplication conferences are held in a timely fashion and provide
a thorough explanation of all required City permits, fees, and approvals
for any given development proposal. They shall include standards for
scheduling, conducting, and communicating the outcomes of preapplication
conferences.
A.
A preapplication conference is valid for 2 years. If a land use application
or development permit has not been submitted within 2 years of the
conference date, the applicant is required to schedule a new preapplication
conference prior to submittal. This requirement may be waived per
Subsection 19.1002.2.B.1.
B.
An applicant may request additional preapplication conferences at
any time. There is no limit to the number of preapplication conferences
that may be requested.
C.
If a development proposal is significantly modified after a preapplication
conference occurs, the Planning Director may require a new preapplication
conference. The City may refuse to accept a land use application or
development permit for a significantly altered development proposal
until a new preapplication conference is held.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2219 § 2 (Exh. B), 2022)
A.
The City shall supply land use application forms pursuant to the
standards contained in the applicable State law, Comprehensive Plan,
and implementing ordinance provisions.
B.
The City shall supply checklists or information sheets that specify
the information that must be contained in the application, including
format and number of copies.
All application information must be sufficiently detailed and
specific to the development being proposed to allow for adequate public
review. The application submittal must include all of the items listed
below for the City to accept the application and initiate completeness
review.
If the application requires sign notice, a sign posting and
sign posting affidavit will be required per Subsection 19.1001.6.C.1.
If the application requires a public hearing, additional items may
be required per Subsection 19.1001.6.D prior to the public hearing.
A.
Application form, including signature(s) of the property owner or
public agency initiating the application.
B.
Deed, title report, or other proof of ownership.
C.
Detailed and comprehensive description of all existing and proposed
uses and structures, including a summary of all information contained
in any site plans. The description may need to include both a written
and graphic component such as elevation drawings, 3-D models, and
photo simulations, etc. For applications where the subjective aspects
of the height and mass of the proposed development will be evaluated
at a public hearing, temporary on-site "story pole" installations
that simulate the proposed development, and photographic representations
thereof, may be required at the time of application submittal.
D.
Detailed statement that demonstrates how the proposal meets all applicable
approval criteria, zoning and land use regulations, and development
standards.
E.
Site plan(s), preliminary plat, or final plat as applicable.
F.
All materials identified on the Submittal Requirements form, including
the signature(s) of the applicant submitting the materials.
G.
Payment of all applicable land use application fee(s) and deposit(s),
based on the fee schedule in effect on the date of application submittal.
All applications are subject to the provisions of Subsections
19.1003.3.A-D below. Type I, II, III, and IV applications are also
subject to the provisions of Subsections 19.1003.3.E-G below.
A.
The City shall review the application submittal within 30 days of
receipt of the application and advise the applicant in writing as
to whether the application is complete or incomplete. The City shall
review the application submittal for an expedited land division or
middle housing land division within 21 days of receipt of the application
and advise the applicant in writing as to whether the application
is complete or incomplete.
C.
Incompleteness shall not be based on differences of opinion as to
quality or accuracy.
D.
Determination that an application is complete indicates only that
the application contains the information necessary to review it for
compliance against applicable development standards and approval criteria.
E.
If an application is incomplete, the completeness notice shall identify
the information that is missing. The applicant has 180 days from the
date of first submittal to make the application complete.
F.
An application will be deemed complete by the City upon submission
of any of the following:
G.
An application will be deemed void if it has been on file with the
City for more than 180 days and the applicant has not made the application
complete per Subsection 19.1003.3.F. The City will not refund application
fees for voided applications. The applicant may resubmit a voided
application to the City; however, it will be treated as a new application
and will be subject to all current fees, development standards, approval
criteria, and submittal requirements.
A.
If an application for a land use action has been denied, an application
for the same or similar project on the same property may not be resubmitted
unless one or more of the following occurs:
1.
2 years have passed since the denial became final.
2.
Substantial changes are made to the application. Substantial
changes to an application have occurred only if the changes resolve
all findings for denial of the original application.
3.
Standards and criteria relative to the findings of the original
denial have changed and now support the application.
4.
For Type IV or V decisions, there has been a substantial change
in the composition of the City Council and the Council was the final
decision-maker. A substantial change in the composition of the Council
occurs if fewer than 3 Council members who voted to deny the original
application remain on the Council.
A.
An application may be withdrawn by the applicant at any time prior
to issuance of the final decision with the written consent of the
property owner or contract purchaser.
B.
If an application is withdrawn after the City has mailed the public
notice, the City shall send another notice to all parties who received
the original notice that the application has been withdrawn.
C.
The City may refund application fees if staff has, in writing, recommended
withdrawal and an application is withdrawn prior to being referred
for comment. In all other cases, the City will not refund application
fees for withdrawn applications.
The procedures of this subsection shall apply if an applicant
modifies an application after the City has deemed it complete but
prior to a public hearing or issuance of a decision.
A.
Upon receipt of materials that modify an application, the Planning
Director shall evaluate the modifications, determine which of the
3 categories listed below describes the modification, and follow the
related procedures. This decision is not a land use decision and is
not appealable.
1.
Substantial Modification
A substantially modified application greatly differs from the
application that was deemed complete. Such differences may include
the land use; size, height, and/or design of proposed structures;
location of uses and structures on the site; or other such characteristics
of the proposal. Substantial modifications may alter which approval
criteria and Development standards apply to the development proposal.
The Planning Director shall notify the applicant of this determination
and take one of the following actions, at the direction of the applicant:
a.
Allow the applicant to withdraw the original application and submit the modified proposal as a new application. The applicant shall submit all items required by Subsection 19.1003.2 for the new submittal.
b.
Reject the modifications and continue processing the original
application. Rejecting a substantial modification does not preclude
the applicant from submitting significant or minor modifications.
2.
Significant Modification
Significant modifications change an application so that one
or more aspects of the modified proposal differ from the original
proposal, while the overall proposal remains similar to the proposal
that was deemed complete. Significant modifications typically should
not alter which approval criteria and development standards apply
to the development proposal.
The Planning Director shall notify the applicant of this determination
and take one of the following actions, at the direction of the applicant:
a.
Accept the modifications and proceed with the review of the
modified application. The applicant shall pay the required fee for
review of a modified application per the adopted fee schedule. The
Planning Director may repeat any part of the public notice or referral
process to provide appropriate opportunity for public review of the
modifications. The applicant shall also extend the 120-day decision
requirement in writing to a date that is sufficient to allow for additional
review, public notice, or evaluation by the City.
b.
Reject the modifications and continue processing the original
application. Rejecting a significant modification does not preclude
the applicant from submitting minor modifications.
3.
Minor Modification
Minor modifications change an application so that a limited
number of aspects differ from the original proposal and the differences
are small relative to the original proposal. The magnitude of a minor
modification should be small enough that another review of the proposal
by other agencies or the public is not warranted.
The Planning Director shall notify the applicant of this determination
and take one of the following actions, at the direction of the applicant:
a.
Accept the modifications and proceed with the review of the
modified application. The applicant shall extend the 120-day decision
requirement in writing to a date that is sufficient to allow for additional
review or evaluation by the City.
b.
Reject the modifications and continue processing the original
application.
B.
In addition to the procedures of Subsection 19.1003.6.A, modifications
received after the issuance of a staff report for a public hearing
are subject to the following provisions:
1.
If an applicant submits a substantial modification and chooses
the option listed in Subsection 19.1003.6.A.1.a, the hearing shall
be cancelled or suspended without the issuance of a decision by the
review authority.
Type I applications involve permitted uses or development governed
by clear and objective approval criteria and/or development standards
that may require the exercise of professional judgment about technical
issues. Type I review provides for ministerial review of an application
by the Planning Director and does not include public notice.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2226 § 2, 2023)
A preapplication conference is not required for Type I applications.
Written notice of the decision for Type I applications shall
be provided to the applicant and property owner of record. The decision
shall be issued with sufficient time to allow the appeal authority
for a Type I application to issue a final decision within 120 days
from when the application was deemed complete. The final decision
for an affordable housing application, as defined in and subject to
all of the provisions of ORS 197.311, shall be issued within 100 days
from when the application was deemed complete.
A.
A brief summary of the proposal.
B.
A description of the subject property reasonably sufficient to inform
the reader of its location, including street address, if available,
map and tax lot number, and zoning designation.
C.
A statement of the facts upon which the review authority relied to
determine whether the application satisfied or failed to satisfy each
applicable approval criterion.
D.
The decision to approve or deny the application, and, if approved,
any conditions of approval necessary to ensure compliance with the
applicable criteria.
E.
The date the decision shall become final, unless appealed. The decision
shall state in boldface type the date and time by which an appeal
must be filed. The statement shall reference the requirements for
filing an appeal of the decision.
F.
A statement that the complete case file, including findings, conclusions,
and conditions of approval, if any, is available for review. The decision
shall list when and where the case file is available and the name
and telephone number of the City representative to contact about reviewing
the case file.
A Type I decision may be appealed by filing a written appeal within 15 days from the date that the notice of decision was mailed. The appeal authority for a Type I decision is the Planning Commission. Appeal requirements and procedures are outlined in Section 19.1010.
Type II applications involve uses or development governed by
subjective approval criteria and/or development standards that may
require the exercise of limited discretion. Type II review provides
for administrative review of an application by the Planning Manager
and includes notice to nearby property owners to allow for public
comment prior to the decision. The process does not include a public
hearing.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2219 § 2 (Exh. B), 2022; Ord. 2235 § 2, 2023)
A preapplication conference is required for all Type II applications per Section 19.1002. The Planning Director may waive this requirement.
A.
Referral
Within 7 days after the application has been deemed complete,
the City will provide a copy of all application materials to the parties
listed below for their review and comment. If no comments are received
within 14 days from the date of referral, the City will presume that
no comments will be submitted.
B.
Mailed Notice
The purpose of the public notice is to provide nearby property
owners and other interested parties with an opportunity to review
the application and submit written comments concerning the application
prior to issuance of the Type II decision. The goal of this notice
is to invite relevant parties of interest to participate in the process.
1.
Within 7 days after the application has been deemed complete,
public notice of the application shall be mailed to the following
parties:
2.
The public notice shall include the following information:
a.
The case file number and a brief summary of the proposal.
b.
A brief description of the subject property, including street
address, if available, map and tax lot number, and zoning designation.
c.
A statement that the City will consider written comments submitted
prior to the issuance of the decision, and that the decision may be
issued as early as 14 days from the date of the public notice.
d.
The place, date, and time that comments are due.
e.
The applicable approval criteria and/or development standards
against which the proposal will be evaluated.
f.
A statement that all application materials and applicable approval
criteria and development standards are available for review at the
City, and that copies can be obtained at a reasonable cost.
g.
The name and phone number of the City representative to contact
for additional information.
h.
The following statement: "Notice to mortgagee, lien holder,
vendor or seller: The Milwaukie Municipal Code requires that if you
receive this notice it shall be promptly forwarded to the purchaser."
3.
The City shall prepare an affidavit of mailing of notice for
the file. The affidavit shall indicate the date that the public notice
was mailed to the parties required by Subsection 19.1005.3.B.1.
C.
Sign Notice
No more than 7 days after the application has been deemed complete,
notice of the application shall be posted on the subject property
by the applicant and shall remain continuously posted until the decision
is issued. Sign notice shall meet the requirements of Subsection 19.1001.6.C.1.b.
A.
The review authority for Type II applications shall be the Planning
Director.
B.
A decision will not be issued sooner than 14 days after mailing of
the public notice and referral. Once issued, the decision is final
and may only be reconsidered by appeal. Comments submitted within
14 days of the date of the public notice shall be considered. Comments
submitted after 14 days from the date of the public notice and prior
to the issuance of the decision may be considered.
C.
The review authority shall approve, approve with conditions, or deny
an application based on applicable approval criteria, development
standards, and written comments received.
A.
The decision shall be issued with sufficient time to allow the appeal
authority for a Type II application to issue a final decision within
120 days from the date that the application was deemed complete. The
final decision for an affordable housing application, as defined in,
and subject to all of the provisions of ORS 197.311, shall be issued
within 100 days from when the application was deemed complete. Pursuant
to Subsection 17.12.020.G, the final decision for a middle housing
or expedited land division as defined in, and subject to the applicable
provisions of ORS 92.010 to 92.192 and further referenced in ORS 197.360
and ORS 197.380, must be issued within 63 days from when the application
was deemed complete, or extended by the city not to exceed 120 days.
B.
Written notice of decision shall be mailed to the following parties.
The date the notice is mailed shall be considered the date of the
decision.
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments during
the comment period.
4.
Any governmental agency that is entitled to notice by the municipal
code or has requested notice of the decision.
5.
Any group or individual who requested notice of the decision.
C.
The notice of decision shall include the following information:
1.
A description of the proposal with sufficient detail to explain
the applicant's proposal.
2.
A description of the subject property reasonably sufficient
to inform the reader of its location, including street address, if
available, map and tax lot number, and zoning designation.
3.
A statement of the facts upon which the review authority relied
to determine whether the application satisfied, or failed to satisfy,
each applicable approval criterion.
4.
The decision to approve or deny the application and, if approved,
any conditions of approval necessary to ensure compliance with the
applicable criteria.
5.
The date the decision shall become final, unless appealed. The
notice of decision shall state in boldface type the date and time
by which an appeal must be filed. The statement shall reference the
requirements for filing an appeal of the decision.
6.
A statement that any person who is adversely affected or aggrieved
by the decision may appeal the decision by filing a written appeal
within the 15-day appeal period.
7.
A statement that the complete case file is available for review,
including findings, conclusions, and conditions of approval, if any.
The notice shall list when and where the case file is available and
the name and telephone number of the City representative to contact
about reviewing the case file.
A Type II decision may be appealed by filing a written appeal within 15 days from the date that the notice of decision was mailed. The appeal authority for a Type II decision is the Planning Commission. Appeal requirements and procedures are outlined in Section 19.1010.
Appeals of a Type II decision for a middle housing or expedited
land division are processed subject to the applicable provisions found
in ORS 197.360 – ORS 197.375.
Type III applications are quasi-judicial in nature and are subject
to approval criteria that require the exercise of discretion and judgment
and about which there may be broad public interest. Impacts may be
significant and development issues complex. Extensive conditions of
approval may be imposed to mitigate impacts or ensure compliance with
applicable approval criteria and development standards. The review
process requires notice to nearby property owners and at least one
public hearing before the Planning Commission.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2229 § 2, 2023; Ord. 2235 § 2, 2023)
A preapplication conference is required for Type III applications per Section 19.1002.
A.
DLCD Notice
For Zoning Map amendments, the City shall provide notification
to the Department of Land Conservation and Development, as described
in Subsection 19.1001.6.C.4.a.
B.
Metro Notice
For Zoning Map amendments, the City shall provide notification
to Metro at least 35 days prior to the initial evidentiary hearing
on adoption.
C.
Referral
Within 7 days after the application has been deemed complete,
the City will provide a copy of all application materials to the parties
listed below for their review and comment. If no comments are received
within 14 days from the date of the referral, the City will presume
that no comments will be submitted.
D.
Mailed Notice
The purpose of the public notice is to provide nearby property
owners and other interested parties with an opportunity to review
the application, submit written comments, and participate in the proceedings
concerning the Type III decision. The goal of this notice is to invite
relevant parties of interest to participate in the process.
1.
At least 20 days prior to the first public hearing on the application,
except for continuations as noted in Subsection 19.1001.6.C.3, public
notice of the application shall be mailed to the parties listed below.
Notice requirements specific to Zoning Map amendments are listed in
Subsection 19.1006.3.D.3.
2.
The public notice shall include the following information:
a.
The case file number and a brief summary of the proposal.
b.
A brief description of the subject property, including street
address, if available, map and tax lot number, and zoning designation.
c.
The date, time, and place of the hearing.
d.
A statement that any member of the public may submit written
comments prior to the hearing and may appear and provide written or
oral testimony at the hearing.
e.
A statement that only those who have submitted written comments
prior to the hearing or participated at the hearing shall be entitled
to appeal.
f.
A general explanation of the requirements for submission of
testimony and the procedure for conduct of public hearings.
g.
A statement that a copy of the staff report will be available
for review at no cost, and a copy will be provided at a reasonable
cost, at least 7 days prior to the hearing.
h.
The applicable approval criteria and/or development standards
against which the proposal will be evaluated.
i.
A statement that all application materials and applicable approval
criteria and development standards are available for review at the
City, and that copies can be obtained at a reasonable cost.
j.
The name and phone number of the City representative to contact
for additional information.
k.
The following statement: "Notice to mortgagee, lien holder,
vendor or seller: The Milwaukie Municipal Code requires that if you
receive this notice it shall be promptly forwarded to the purchaser."
3.
Notice requirements specific to Zoning Map amendments are as
follows:
a.
At least 20 days prior to the first public hearing on the application,
public notice of an application that conforms to Subsection 19.1006.3.D.2
shall be mailed to the following parties:
b.
A Measure 56 notice that conforms to Subsection 19.1008.3.D
shall be mailed at least 20 days, but not more than 40 days, prior
to the first public hearing on the application to all owners of property
affected by the proposal. A Measure 56 notice is not required for
owner-initiated zoning map amendments when the subject property or
properties are owned by a single person or entity.
c.
For applications that would change the zoning designation of
a property that includes all or part of a mobile home or manufactured
dwelling park, the City shall mail written notice to each existing
mailing address for tenants of the mobile home or manufactured dwelling
park at least 20 days, but not more than 40 days, prior to the date
of the first public hearing on the application. This notice shall
conform to the requirements of Subsection 19.1008.3.D.
4.
The City shall prepare an affidavit of mailing of notice for
the file. The affidavit shall indicate the date that the public notice
was mailed to the parties required by Subsection 19.1006.3.D.
E.
Sign Notice
At least 14 days prior to the hearing, except for continuations
as noted in Subsection 19.1001.6.C.3, notice of the application shall
be posted on the subject property by the applicant and shall remain
continuously posted until the hearing. Sign notice shall meet the
requirements of Subsection 19.1001.6.C.1.b.
A.
The decision shall be issued with sufficient time to allow the appeal
authority for a Type III application to issue a final decision within
120 days from the date that the application was deemed complete. The
final decision for an affordable housing application, as defined in,
and subject to all of the provisions of ORS 197.311, shall be issued
within 100 days from when the application was deemed complete.
B.
Written notice of decision shall be mailed to the following parties
within 7 days of the date of the decision:
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments at or
prior to the public hearing.
4.
Any group or individual who submitted oral testimony during
the public hearing.
5.
Any governmental agency which is entitled to receive notice
per the municipal code or has requested notice of the decision.
6.
Any group or individual who requested notice of the decision,
including those who signed the attendance sheet at any public hearing
on the application.
C.
The notice of decision shall include the following information:
1.
A description of the proposal with sufficient detail to explain
the applicant's proposal.
2.
A description of the subject property reasonably sufficient
to inform the reader of its location, including street address, if
available, map and tax lot number, and zoning designation.
3.
A statement of the facts upon which the review authority relied
to determine whether the application satisfied, or failed to satisfy,
each applicable approval criterion.
4.
The decision to approve or deny the application and, if approved,
any conditions of approval necessary to ensure compliance with the
applicable criteria.
5.
The date the decision shall become final, unless appealed. The
notice of decision shall state in boldface type the date and time
by which an appeal must be filed. The statement shall reference the
requirements for filing an appeal of the decision.
6.
A statement that only persons who submitted comments or made
an appearance of record at the public hearing have standing to appeal
the decision by filing a written appeal within the 15-day appeal period.
7.
A statement that the complete case file is available for review,
including findings, conclusions, and conditions of approval, if any.
The notice shall list when and where the case file is available and
the name and telephone number of the City representative to contact
about reviewing the case file.
D.
In addition to the requirements of Subsections 19.1006.5.A, B, and
C, the following requirements apply to Zoning Map amendments evaluated
through a Type III review process.
1.
Following the close of the appeal period for a Zoning Map amendment
for which no Appeal was filed, the Planning Director shall prepare
an ordinance to enact the approved Zoning Map amendment.
2.
The ordinance shall be publicized per Milwaukie Charter, Chapter VIII, Section 31, Subsection (c). The ordinance shall be brought before Council at the first meeting following the close of the appeal period that meets the notice requirements of Milwaukie Charter, Chapter VIII, Section 31, Subsection (c).
3.
The City Council shall enact the ordinance per the procedures of Milwaukie Charter, Chapter VIII, Section 31, Subsection (b), with the reading being by title only.
4.
The City shall provide the required notice of adoption to the
Department of Land Conservation and Development, as described in Subsection
19.1001.6.C.4.b.
A Type III decision may be appealed by filing a written appeal within 15 days from the date that the notice of decision was mailed. Only the applicant or persons who submitted comments or made an appearance of record at the public hearing have standing to Appeal a Type III decision. Appeal requirements and procedures are outlined in Section 19.1010.
Type IV applications involve amendments to the City's zoning
or land use maps. They are quasi-judicial in nature and require an
initial hearing by the Planning Commission and a final decision by
the City Council. They typically require a great detail of professional
analysis, are reviewed against subjective approval criteria, and have
a broader impact on the City's overall land use pattern than Type
III Zoning Map amendments. The review process requires notice to nearby
property owners and at least 2 public hearings.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2235 § 2, 2023)
A preapplication conference is required for Type IV applications per Section 19.1002.
A.
DLCD Notice
For Zoning Map or Comprehensive Plan map amendments, the City
shall provide notification to the Department of Land Conservation
and Development, as described in Subsection 19.1001.6.C.4.a.
B.
Metro Notice
For Zoning Map or Comprehensive Plan map amendments, the City
shall provide notification to Metro at least 35 days prior to the
initial evidentiary hearing on adoption.
C.
Referral
Within 7 days after the application has been deemed complete,
the City will provide a copy of all application materials to the parties
listed below for their review and comment. If no comments are received
within 14 days from the date of the referral, the City will presume
that no comments will be submitted.
D.
Mailed Notice
The purpose of the public notice is to provide nearby property
owners and other interested parties with an opportunity to review
the application, submit written comments, and participate in the proceedings
concerning the Type IV decision. The goal of this notice is to invite
relevant parties of interest to participate in the process.
1.
At least 20 days prior to each public hearing on the application,
except for continuations as noted in Subsection 19.1001.6.C.3, public
notice of the application shall be mailed to the parties listed below.
Notice requirements specific to Zoning Map amendments are listed in
Subsection 19.1007.3.D.3.
2.
The public notice shall include the following information:
a.
The case file number and a brief summary of the proposal.
b.
A brief description of the subject property, including street
address, if available, map and tax lot number, and zoning designation.
c.
The date, time, and place of the hearing.
d.
A statement that any member of the public may submit written
comments prior to the hearing and may appear and provide written or
oral testimony at the hearing.
e.
A statement that only those who have submitted written comments
prior to the hearing or participated at the hearing shall be entitled
to appeal.
f.
A general explanation of the requirements for submission of
testimony and the procedure for conduct of public hearings.
g.
A statement that a copy of the staff report will be available
for review at no cost, and a copy will be provided at a reasonable
cost, at least 7 days prior to the hearing.
h.
The applicable approval criteria and/or development standards
against which the proposal will be evaluated.
i.
A statement that all application materials and applicable approval
criteria and development standards are available for review at the
City, and that copies can be obtained at a reasonable cost.
j.
The name and phone number of the City representative to contact
for additional information.
k.
The following statement: "Notice to mortgagee, lien holder,
vendor or seller: The Milwaukie Municipal Code requires that if you
receive this notice it shall be promptly forwarded to the purchaser."
3.
Notice requirements specific to Zoning Map amendments are as
follows:
a.
A Measure 56 notice that conforms to Subsection 19.1008.3.D
shall be mailed at least 20 days, but not more than 40 days, prior
to the first public hearing on the application to all owners of property
affected by the proposal.
b.
For applications that would change the zoning designation of
a property that includes all or part of a mobile home or manufactured
dwelling park, the City shall mail written notice to each existing
mailing address for tenants of the mobile home or manufactured dwelling
park at least 20 days, but not more than 40 days, prior to the date
of the first public hearing on the application. This notice shall
conform to the requirements of Subsection 19.1008.3.D.
4.
The City shall prepare an affidavit of mailing of notice for
the file. The affidavit shall indicate the date that the public notice
was mailed to the parties required by Subsection 19.1007.3.D.
E.
Sign Notice
At least 14 days prior to each hearing, except for continuations
as noted in SubSection 19.1001.6.C.3, notice of the application shall
be posted on the subject property by the applicant and shall remain
continuously posted until the hearing. Sign notice shall meet the
requirements of Subsection 19.1001.6.C.1.b.
A.
The Planning Commission shall serve as the recommendation authority
for Type IV applications.
B.
The Planning Commission shall conduct an initial evidentiary hearing
and provide a recommendation to the City Council with sufficient time
to allow the City Council to issue a final decision within 120 days
from the date that the application was deemed complete. The final
decision for an affordable housing application, as defined in, and
subject to all of the provisions of ORS 197.311, shall be issued within
100 days from when the application was deemed complete.
C.
The Planning Commission may recommend that the City Council approve
or deny the application with or without changes. The Planning Commission
shall provide a written justification for the recommendation.
D.
The City shall provide notice of the hearing before the City Council
consistent with the public notice requirements in Subsections 19.1007.3.D
and E, except that a second notice per Subsection 19.1007.3.D.3 is
not required.
E.
At the conclusion of the first public hearing before City Council,
the City Council shall take one of the following actions:
1.
Continue the matter to a date, time, and place certain.
2.
Approve the application, with or without changes. City staff,
with review from the City Attorney, shall prepare written findings
that demonstrate how the application meets all applicable approval
criteria.
3.
Deny the application. City staff, with review from the City
Attorney, shall prepare written findings that demonstrate how the
application fails to meet any applicable approval criteria.
F.
Written notice of decision shall be mailed to the following parties
within 7 days of the date of the decision:
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments at or
prior to any public hearing.
4.
Any group or individual who submitted oral testimony during
any public hearing.
5.
Any governmental agency which is entitled to receive notice
per the municipal code or has requested notice of the decision.
6.
Any group or individual who requested notice of the decision,
including those who signed the attendance sheet at any public hearing
on the application.
G.
The City shall provide the required notice of adoption to the Department
of Land Conservation and Development, as described in Subsection 19.1001.6.C.4.b.
H.
The notice of decision shall include the following:
1.
A description of the proposal with sufficient detail to explain
the applicant's proposal.
2.
A description of the subject property reasonably sufficient
to inform the reader of its location, including street address, if
available, map and tax lot number, and zoning designation.
3.
A statement of the facts upon which the review authority relied
to determine whether the application satisfied, or failed to satisfy,
each applicable approval criterion.
4.
The decision to approve or deny the application and, if approved,
any conditions of approval necessary to ensure compliance with the
applicable criteria.
5.
The date the decision shall become final, unless appealed. The
notice of decision shall state in boldface type the date and time
by which an appeal must be filed. The statement shall reference the
requirements for filing an appeal of the decision.
6.
A statement that only persons who submitted comments or made
an appearance of record at a public hearing on the application have
standing to appeal the decision by filing a written appeal within
the appeal period for the Land Use Board of Appeals.
7.
A statement that the complete case file is available for review,
including findings, conclusions, and conditions of approval, if any.
The notice shall list when and where the case file is available and
the name and telephone number of the City representative to contact
about reviewing the case file.
8.
A summary of the requirements for appealing the decision to
the Land Use Board of Appeals.
The City Council decision on a Type IV application is the City's
final decision. A Type IV decision may be appealed to the Land Use
Board of Appeals consistent with ORS 197 and OAR 661, as may be amended.
Only the applicant or persons who submitted comments or made an appearance
of record at a public hearing on the application have standing to
appeal a Type IV decision.
Type V applications are legislative in nature and involve the
creation, revision, or largescale implementation of public policy
(e.g., adoption of land use regulations, zone changes, and Comprehensive
Plan amendments that apply to more than just one property). Type V
review applications are evaluated by the Planning Commission at an
initial evidentiary hearing and then forwarded to the City Council
for a decision at a public hearing. The review process requires broader
public notice than other types of applications and at least 2 public
hearings.
The City Council, Planning Commission, Planning Director, or
any individual may initiate a Type V application to amend the Milwaukie
Comprehensive Plan or Zoning Ordinance.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019)
A preapplication conference is required for Type V applications
that are initiated by any individual or party other than the City.
A.
General Public Notice
The purpose of general public notice for Type V applications
is to allow the public, organizations, and other governmental agencies
a meaningful opportunity to review and comment on legislative proposals.
1.
The Planning Director shall provide opportunities for public
review and input on legislative proposals at an early stage in the
adoption process. This may include the referral process for Type III
or IV applications; open houses; discussions with neighborhood district
associations; work sessions with the City Council, Planning Commission,
and other City boards and commissions; and/or direct communication
with parties that may be affected by the proposal. This subsection
is not prescriptive with regard to the timing or manner of public
notice.
2.
At least 30 days prior to a public hearing on a Type V application,
except for continuations as noted in Subsection 19.1001.6.C.3, the
City shall provide notice of the hearing. At a minimum, the notice
shall be available on the City web site and at City facilities that
are open to the public and that customarily display public information.
At a minimum, the notice shall include:
3.
Individual property owners shall be notified if the proposal
involves a discrete geographic area or specific properties in the
City. The Planning Director shall decide when individual property
owner notification is warranted. The content of the notice shall be
as described in Subsection 19.1008.3.A.2. The notice parties and timeline
shall be as described in Subsection 19.1006.3.D.3.a and signage shall
be provided as described in Subsection 19.1006.3.E.
B.
DLCD Notice
Notice of a Type V application shall be mailed to the Department
of Land Conservation and Development as described in Subsection 19.1001.6.C.4.a.
C.
Metro Notice
Notice of a Type V application shall be mailed to Metro at least
35 days prior to the initial evidentiary hearing on adoption.
D.
Property Owner Notice (Measure 56)
At least 20 days but not more than 40 days before the initial
evidentiary hearing on a Type V application, the City shall mail notice
to owners of property within the City for which the proposed ordinance,
if adopted, may, in the Planning Director's opinion, affect the permissible
uses of land for those property owners. The notice shall, at a minimum,
include the following information:
1.
A statement in bold type across the top of the first page of
the notice that reads substantially as follows: "This is to notify
you that the City of Milwaukie has proposed a land use regulation
that may affect the permissible uses of your property or other properties."
2.
The case file number and/or ordinance number.
3.
A brief summary of the proposal, including how it may, if adopted,
affect the permissible uses and value of property in the City.
4.
The date, time, and place of the hearing.
5.
A statement that a copy of the proposal is available for review
at the City at no cost and that a copy can be obtained at a reasonable
cost.
6.
The name and phone number of the City representative to contact
for additional information.
7.
If applicable, a statement that the proposal is a result of
an order of the Land Conservation and Development Commission.
E.
The City shall prepare an affidavit of mailing of notice for the
file. The affidavit shall indicate the date that the required property
owner notice was mailed to the parties required by SubSection 19.1008.3.D.
The following procedures apply to applications evaluated through
a Type V review.
A.
The Planning Commission shall serve as the recommendation authority
for Type V applications.
B.
The Planning Commission shall conduct an initial evidentiary hearing
and provide a recommendation to the City Council within 180 days from
the date that the application was deemed complete.
C.
The Planning Commission may recommend that the City Council approve
or deny the application with or without changes. The Planning Commission
shall provide a written justification for the recommendation.
D.
The City shall provide notice of the hearing before the City Council
consistent with the public notice requirements in Subsection 19.1008.3.A.
E.
At the conclusion of the first public hearing before City Council,
the City Council shall take one of the following actions:
1.
Continue the matter to a date, time, and place certain.
2.
Remand the matter back to the recommendation authority for additional
deliberation.
3.
Approve the proposal, with or without changes. City staff, with
review from the City Attorney, shall prepare the ordinance with written
findings that demonstrate how the proposal meets all applicable approval
criteria.
4.
Deny the proposal. This action is appealable.
5.
Take no action on the proposal. This decision is not appealable.
F.
The City shall provide the required notice of adoption to the Department
of Land Conservation and Development, as described in Subsection 19.1001.6.C.4.b.
G.
Within 7 days after the date on which one of the actions in Subsection
19.1008.5.E.3 or 4 is taken, the City shall mail, or otherwise provide,
notice to persons who testified orally or in writing to the recommendation
or review authority while the public record was open regarding the
proposal. The notice shall include the following information:
The City Council decision on a Type V application is the City's
final decision. A Type V decision may be appealed to the Land Use
Board of Appeals consistent with ORS 197 and OAR 661, as may be amended.
Only the applicant or persons who submitted comments or made an appearance
of record at a public hearing on the application have standing to
appeal a Type V decision.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019)
The City shall:
A.
Schedule land use applications for review and public hearing before
the appropriate review authority as required per Table 19.1001.5.
B.
Provide public notice of the public hearing consistent with the requirements
in this chapter.
C.
Prepare minutes for the public hearing that include the decision
on the matter and the reasons for the decision.
D.
Provide a copy of the notice of decision to all parties, consistent
with the requirements in this chapter.
A.
Public hearings shall be conducted in accordance with the bylaws and rules of procedure adopted for the hearing body by City Council. Additionally, the provisions in Subsections 19.1009.4-13 below apply to all public hearings.
B.
At the commencement of a hearing, a statement shall be made to those
in attendance that:
1.
Lists the applicable approval criteria.
2.
States that testimony and evidence must be directed toward the
applicable approval criteria or other criteria in the Zoning Ordinance
or Comprehensive Plan that the person testifying believes is applicable
to the proposal.
3.
States that failure to raise an issue accompanied by testimony
or evidence sufficient to afford the review authority an opportunity
to respond to the issue precludes an appeal of the decision.
A.
Except for Type V hearings, any hearing participant or a member of
the hearing body may challenge the qualifications of a member of the
hearing body to participate in the hearing and decision on the proposal.
The challenge shall state the facts relied upon by the challenger
relating to a person's bias, prejudgment, personal interest, ex parte
contact or other facts from which the challenger has concluded that
the member of the hearing body cannot participate in an impartial
manner.
B.
The challenged person shall have an opportunity to respond to the
challenge. The challenge and any response to the challenge shall be
incorporated into the record of the hearing.
C.
The hearing body shall deliberate and vote to decide whether or not
the challenged person may remain a member of the hearing body for
the decision on which their impartiality was challenged. The person
who is the subject of the challenge may not vote on the motion.
An employee or elected or appointed official of the City who
has a direct or substantial financial interest in a proposal may not
give an official opinion to the hearing body on the proposal. An elected
or appointed official of the City who has a conflict of interest shall
refrain from participating as a public official in any discussion
or debate on the proposal out of which the actual conflict arises
or from voting on the proposal per ORS 244.
Except for Type V hearings, the general public has a right to
have the hearing body members unbiased by prehearing or ex parte contacts
on proposals heard by them. This must be balanced with the public's
right to access public officials on any matter. Therefore, hearing
body members shall reveal any relevant prehearing or ex parte contacts
at the commencement of the public hearing on the proposal. If such
contacts have impaired the member's impartiality or ability to vote
on the proposal, the member shall so state and shall abstain from
voting. In addition, parties who had the communication with the member
have the right to rebut the substance of the communication at the
commencement of the public hearing on the proposal.
Except for Type V hearings, disqualification for reasons other
than the member's own judgment may be ordered by a majority of the
members of a hearing body present and voting. The member who is the
subject of the motion for disqualification may not vote on the motion.
A.
An abstaining or disqualified member of the hearing body shall be
counted for purposes of forming a quorum. A member who represents
a personal interest at a hearing may do so only by making full disclosure
to the hearing body, abstaining from voting on the proposal, vacating
the seat on the hearing body, and physically joining the audience.
A member representing a personal interest at a hearing shall not be
counted for purposes of forming a quorum.
B.
If all members of a hearing body abstain or are disqualified, all
members present after stating their reasons for abstention or disqualification
shall be requalified and shall proceed with the hearing.
Except for Type V hearings, a member absent during the presentation
of evidence or testimony in a hearing may not participate in the deliberations
or decision unless the member has reviewed all the evidence or testimony
received.
Except for Type V applications, the applicant shall bear the
burden of proof and persuasion that the proposal complies with applicable
provisions of the municipal code. The applicant and any opponents
may submit a set of written findings or statements of factual information
which are intended to demonstrate that the proposal complies, or fails
to comply, with any or all applicable development standards and approval
criteria.
A.
Receipt of Additional Materials
All evidence, testimony, or documents relied upon by the applicant
shall be submitted to the City and made available to the public. If
additional evidence, testimony, or documents is provided by any hearing
participant, the hearing body may allow a continuance or leave the
record open for at least 7 days to allow other parties a reasonable
opportunity to respond. The hearing body may ask the applicant to
consider granting an extension of the 120-day decision requirement
(or the 100-day decision requirement for a project meeting all provisions
of ORS 197.311) if a delay in proceedings could impact the ability
of the City to take final action on the application, including resolution
of any local appeals.
B.
Request to Submit Additional Evidence or Testimony
Prior to closing the initial evidentiary hearing, any hearing
participant may request an opportunity to present additional evidence
or testimony regarding the application. The hearing body shall grant
such request by continuing the public hearing or leaving the record
open for additional written evidence or testimony pursuant to SubSection
19.1009.11.C below.
C.
Granting of Continuance
If the hearing body grants a continuance, the hearing shall
be continued to a date, time, and place certain, at least 7 days from
the date of the initial evidentiary hearing. An opportunity shall
be provided at the continued hearing for persons to present and rebut
new evidence and testimony. If new evidence or testimony is submitted
at the continued hearing, any person may request, prior to the conclusion
of the continued hearing, that the record be left open to submit additional
written evidence or testimony for the purpose of responding to the
new written evidence or testimony.
D.
Leaving the Record Open
If the hearing body leaves the record open for additional written
evidence or testimony, the record shall be left open for at least
7 days. Any participant may file a written request with the hearing
body for an opportunity to respond to new evidence or testimony submitted
during the period the record was left open. If such a request is filed,
the hearing body shall reopen the record and any person may raise
new issues which relate to the new evidence, testimony, or criteria
for decision-making.
E.
120-Day Decision Requirement
Except for Type V applications, a continuance or extension granted pursuant to Subsection 19.1009.11 shall be subject to the limitations of the 120-day decision requirement (or the 100-day decision requirement for projects meeting the provisions of ORS 197.311) unless the continuance or extension is requested or agreed to in writing by the applicant.
F.
Final Arguments by Applicant
Unless waived by the applicant, the hearing body shall allow
the applicant at least 7 days after the record is closed to all other
parties to submit final written arguments in support of the application.
The applicant's final arguments shall be considered part of the record,
but shall not include any new evidence. For purposes of Subsection
19.1009.11.F, "argument" means assertions and analysis regarding the
satisfaction or violation of legal standards or policies believed
relevant by the applicant. "Argument" does not include facts. "Evidence"
means facts, documents, data or other information offered to demonstrate
compliance or noncompliance with the standards believed by the applicant
to be relevant to the decision.
A.
Following the close of the public portion of the hearing, the hearing
body shall approve, conditionally approve, or deny the application.
If the hearing is an appeal, the hearing body shall affirm, reverse,
or remand the decision that is on appeal. Remanding the decision to
a prior hearing body requires that there is adequate time, pursuant
to Subsection 19.1001.7.C for the prior hearing body to issue a decision
and for the City to issue a final decision if the decision resulting
from the remand is appealed.
B.
A final local decision on a Type I, II, III, or IV land use application
shall be made within 120 days from the date the application was deemed
complete (or within 100 days for a project meeting all provisions
of ORS 197.311), except that, with the agreement of the hearing body
and the applicant or appellant, the processing of a matter under consideration
may be extended per Subsection 19.1001.7.C.
C.
Notice of decision shall be provided consistent with the requirements
established for Type III, IV, and V applications and appeals in this
chapter.
D.
The hearing body shall prepare written findings for the decision.
The findings shall include:
1.
A statement of the applicable approval criteria against which
the application was evaluated.
2.
A statement of the facts that the hearing body relied upon to
determine whether the application satisfied, or failed to satisfy,
each applicable approval criterion and Development standard.
3.
The decision to approve, conditionally approve, or deny an application
and the reasons for that decision.
The City shall prepare and maintain minutes of all proceedings
in accordance with the bylaws adopted by the City Council for the
hearing body.
A decision on the approval of a Type I, II, or III application
may be appealed by filing a written appeal with the City within 15
days of the date on the notice of decision. If the 15th day falls
upon a weekend or legal holiday, the end of the appeal period shall
be extended to the end of the next day which is not a weekend or legal
holiday. Table 19.1001.5 identifies the review authority and appeal
authority for each review type.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2229 § 2, 2023; Ord. 2235 § 2, 2023)
A.
An appeal application shall contain the following information:
1.
Date and case file number of the decision being appealed.
2.
Documentation that the person filing the application has standing
to appeal per SubSections 19.1010.4.A, 5.A, and 6.A.
3.
Detailed statement describing the basis of the appeal.
a.
For appeal of a Type I or III decision, the statement must identify
which approval criterion or development standard is believed to have
been overlooked or incorrectly interpreted or applied and/or which
aspect of the proposal is believed to have been overlooked or incorrectly
evaluated.
b.
For appeal of a Type II decision, the statement must identify
either an error described in Subsection 19.1010.1.A.3.a or the manner
in which the person filing the appeal was adversely impacted or aggrieved
by the decision.
B.
The appeal application fee shall be paid at the time of filing.
C.
If the appeal application and applicable fee are not submitted within
the 15-day appeal period, or if the appeal application does not contain
the required items specified in Subsections 19.1010.1.A.1-3 above,
the application shall not be accepted by the City. A decision by the
City to not accept an appeal within the specified appeal period shall
be final.
Appeal hearings before the appropriate appeal authority, as specified in Table 19.1001.5, shall be conducted in accordance with the public hearing provisions in Section 19.1009.
The City has two types of hearings used for appeals of land
use decisions. The general procedures for these hearings are as follows.
A.
Unrestricted De Novo Hearing
An unrestricted de novo hearing allows for the presentation
of new evidence, testimony, and argument by any party. The appeal
authority shall consider all relevant evidence, testimony, and argument
that are provided at the hearing by the appellant or any party. The
scope of the hearing shall not be limited to the issues that were
raised on appeal. The standard of review for an unrestricted de novo
hearing is whether the initial decision has findings and/or conditions
that are in error as a matter of fact or law.
B.
On the Record De Novo Hearing
An on the record de novo hearing does not allow for the presentation
of new evidence by any party. New testimony is allowed. New arguments
are allowed based on evidence already in the record and testimony
that is new or already in the record. The scope of the hearing is
not limited to the issues that were raised on appeal. The standard
of review for an on the record de novo hearing is a new evaluation
of existing evidence, new and existing testimony, and new and existing
arguments.
A.
A Type I decision may only be appealed by the applicant or the applicant's
representative.
B.
The City shall mail written notice of the appeal hearing to the applicant
or the applicant's representative at least 20 days prior to the appeal
hearing.
C.
The appeal hearing shall be an unrestricted de novo hearing.
D.
The decision of the designated appeal authority for appeals of Type
I decisions shall be the final local decision.
A.
A Type II decision may be appealed by the applicant, the applicant's
representative, or any other person or organization who is adversely
affected or aggrieved by the decision.
B.
At least 20 days prior to the appeal hearing, the City shall mail
written notice of the appeal hearing to all parties who were entitled
to Type II public notice per Subsection 19.1005.3.B.1, interested
persons, and the appellant(s).
C.
The appeal hearing shall be an unrestricted de novo hearing.
D.
The decision of the designated appeal authority for appeals of Type
II decisions shall be the final local decision.
A.
A Type III decision may be appealed by the applicant, applicant's
representative, or any other person or organization who participated
in the original decision by providing either testimony or evidence
on the record leading to the decision by the review authority.
B.
At least 20 days prior to the appeal hearing, the City will mail
written notice of the appeal hearing to all parties who were entitled
to Type III public notice per Subsection 19.1006.3.D.1, interested
persons, the appellant(s), and Planning Commission.
C.
The appeal hearing shall be an on the record de novo hearing.
D.
The record shall include:
1.
A factual report prepared by the Planning Director.
2.
All exhibits, materials, pleadings, memoranda, stipulations,
and motions submitted by any party and reviewed or considered in reaching
the decision under appeal.
3.
The minutes from the original hearing and a detailed summary
of the evidence and testimony.
E.
The decision of the designated appeal authority for appeals of Type
III decisions shall be the final local decision.
A.
Written notice of decision shall be mailed to the following parties
within 7 days of the date of the decision:
1.
The applicant and/or the applicant's authorized representative.
2.
The owner(s) of record of the subject property.
3.
Any group or individual who submitted written comments at or
prior to any public hearing.
4.
Any group or individual who submitted oral testimony during
any public hearing.
5.
Any governmental agency that is entitled to receive notice per
the municipal code or has requested notice of the decision.
6.
Any group or individual who requested notice of the decision,
including those who signed the attendance sheet at any public hearing
on the application.
B.
The notice of decision shall include the following:
1.
A description of the proposal with sufficient detail to explain
the project background.
2.
A description of the hearings and process to date.
3.
A statement of the limitations on evidence.
4.
A statement of the applicable criteria, findings, and conditions
of approval.
5.
A statement that only persons who submitted comments or made
an appearance of record at a public hearing on the application have
standing to appeal the decision by filing a written appeal within
the appeal period for the Land Use Board of Appeals.
6.
A statement that the complete case file is available for review,
including findings, conclusions, and conditions of approval, if any.
The notice shall list when and where the case file is available and
the name and telephone number of the City representative to contact
about reviewing the case file.
7.
A summary of the requirements for appealing the decision to
the Land Use Board of Appeals.
City of Milwaukie decisions remanded by the Land Use Board of Appeals shall be heard by the appeal authority following the procedures of Section 19.1009 and shall be decided within 90 days from the date of the remand.
