The purpose of this chapter is to establish standard decision-making
procedures that will 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.
All land use and development permit applications shall be decided by using the procedures contained in this chapter. General procedures for all permits are contained in Section
16.208.070. Specific procedures for certain types of permits are contained in Sections
16.208.020 through
16.208.060. The procedure "type" assigned to each permit governs the decision-making process for that permit. There are four types of permit/decision-making procedures: Type I, II, III, and IV. These procedures are described in subsections A through D of this section. In addition, Table 16.208.020 lists all of the City's land use and development applications and their required permit procedure(s).
A. Type
I Procedure (Ministerial). Type I decisions are made by Community
Development Director or someone he or she officially designates, 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 requires no use of discretion. The appeal
of a Type I decision is heard by the Planning Commission.
B. Type II Procedure (Administrative). Type II decisions are made by the Community Development Director after the mailing of a public notice and publication of notice in accordance with Section
16.208.040. The appeal of a Type II decision is heard by the Planning Commission.
C. Type
III Procedure (Quasi-Judicial). Type III decisions are made by:
1. The Planning Commission after the mailing of a public notice and
publication of notice of the hearing. Appeals of the Planning Commission
decision shall be directly to the City Commission; or
2. Hearings Officer.
a. City Commission may appoint, upon recommendation by the Community
Development Director, a hearings officer by general resolution.
b. Review and Decision-Making Responsibilities. The hearings officer
shall conduct hearings and may render decisions for such classes of
land use applications (Type III) which shall be carried out in accordance
with the terms of this Code.
c. Decisions Are Final. The hearings officer shall have the authority
to render a final decision on quasi-judicial land use applications,
unless appealed under subsection (C)(3) of this section.
3. An appeal of a land use action where the City Commission is the hearings
body:
a. The City Commission may, on a case-by-case basis or by standing order
for a class of cases, decide at a public meeting that the decision
of the lower hearings body of an individual land use action or a class
of land use action decisions shall be the final decision of the City.
b. If the City Commission decides that the lower hearings body decision
shall be the final decision of the City, then the Commission shall
not hear the appeal and the party appealing may continue the appeal
to the Land Use Board of Appeals (LUBA). In such a case, the City
shall provide written notice of its decision to all parties. The decision
on the land use application(s) becomes final upon mailing of the Commission's
decision to decline review.
c. The decision of the City Commission not to hear a land use action
appeal is entirely discretionary.
d. In determining whether to hear an appeal, the City Commission may
consider only:
i. The record developed before the lower hearings body;
ii. The notice of appeal; and
iii.
Recommendations of staff.
Type III decisions generally use discretionary approval criteria.
D. Type
IV Procedure (Legislative and Map Amendments). Type IV procedures
apply to legislative matters and map amendments. Legislative matters
involve the creation, revision, or large-scale implementation of public
policy (e.g., adoption of land use regulations and Comprehensive Plan
amendments which apply to entire districts). The Type IV procedure
is also used for land use district map amendments and Comprehensive
Plan map amendments. Type IV matters are considered initially by the
Planning Commission with final decisions made by the City Commission.
Table 16.208.020
Summary of Development Decisions and Permit by Type of Decision-Making
Procedure
|
---|
Permit Type or Development Decision
|
Decision-Making Procedure
|
Code, Statute, or Ordinance Reference
|
---|
Annexation
|
Type IV
|
|
Appeal
|
Type III
|
|
Code Interpretation
|
Type II
|
|
Code Amendment
|
Type IV
|
|
Comprehensive Plan Amendment
|
Type IV
|
Comprehensive Plan Article 20
|
Conditional Use Permit
|
Type III
|
|
Impact Assessment and Resource Capability
|
Type II
|
|
Floodplain Development Permit
|
Type I
|
|
Flood Zone Determination
|
N/A
|
Flood Insurance Rate Maps (FIRM) for Warrenton/Hammond
|
Hardship (Wetland) Variance
|
Type III
|
|
Home Occupation Permit
|
Type II
|
|
Home Office Permit
|
Type I
|
|
Land Partition (Preliminary Plat)
|
Type II
|
|
Land Partition (Final Plat)
|
N/A
|
|
Land Use Compatibility Statement (LUCS)
|
N/A
|
WDC and Comprehensive Plan
|
Land Use District Map Amendment (Quasi-Judicial)
|
Type IV
|
|
Land Use District Map Amendment (Legislative)
|
Type IV
|
|
Large-Scale Development
|
Type II/III
|
|
Legal Lot/Lot of Record Determination
|
Type I
|
WDC, Clatsop County Deed Records, and ORS Chapter 92
|
Lot Line Adjustment
|
Type I
|
|
Manufactured Dwelling Park
|
Type III
|
Chapter 16.172, ORS Chapter 446, and OAR Division 918
|
Transfer of Development Rights (TDR)
|
Type III
|
|
Modification to Approval
|
Type II/III
|
|
Nonconforming Use or Development Confirmation
|
Type II
|
|
Planned Unit Development
|
Type III
|
|
Urban Growth Boundary Adjustment/Amendment
|
Type III/IV
|
Comprehensive Plan Article 2.320
|
Street Development (Classification and Design Standards)
|
Type II/III
|
Division 3 (applicable sections)
|
Sign Permit
|
Type I
|
|
Site Design Review
|
Type II/III
|
|
Subdivision (Preliminary Plat)
|
Type III
|
|
Subdivision (Final Plat)
|
N/A
|
|
Plat Vacation
|
Type III
|
|
Temporary Use Permit
|
Type II/III
|
|
Vacation (Street)
|
Type I or III and City Commission Public Hearing per ORS 271
|
|
Variance
|
Type II/III
|
|
Wetland Area Boundary Adjustment
|
Type I
|
|
Wetland Significance Determination Amendment
|
Type III
|
|
Wireless Communication Facility (WCF) Permit
|
Type III
|
|
Zoning Map Amendment (see Land Use District Map)
|
Type IV
|
|
Notes:
|
---|
1.
|
The Code, statute, or ordinance references in Table 16.208.020
are not intended to be inclusive of all applicable review criteria.
Please refer to the referenced document for all applicable criteria.
|
2.
|
In addition to any project that abuts, or requires direct access
from, a State highway, the City shall send notice to ODOT for the
following applications: annexation, code amendment, Comprehensive
Plan amendment, conditional use permit, home occupation permit, land
use district map amendment (quasijudicial and legislative), large-scale
development, manufactured dwelling park, subdivision (preliminary
plat), vacation (street), wireless communication facility permit,
and zoning map amendment.
|
(Ord. 1175-A § 18, 2013)
A. Pre-application Conference. A pre-application conference is required for all Type III applications. The requirements and procedures for a pre-application conference are described in Section
16.208.070.
B. Application
Requirements.
1. Application Forms. Type III applications shall be made on forms provided
by the City of Warrenton.
2. Content. Type III applications shall:
a. Include the information requested on the application form.
b. Be filed with three copies of a narrative statement that explains
how the application satisfies each and all of the relevant criteria
in sufficient detail for review and action.
c. Be accompanied by the required fee.
d. Include one set of pre-stamped and pre-addressed envelopes for all property owners of record as specified in subsection
C of this section. The records of the Clatsop County Department of Assessment and Taxation are the official records for determining ownership. The applicant shall demonstrate that the most current assessment records have been used to produce the notice list. Alternatively, the applicant may pay a fee for the City to prepare the public notice mailing.
e. Include an impact study for all Type III applications. The impact
study shall quantify/assess the effect of the development on public
facilities and services. The study shall address, at a minimum, the
transportation system, including pedestrian ways and bikeways, the
drainage system, the parks system, the water system, the sewer system,
and the noise impacts of the development. For each public facility
system and type of impact, the study shall propose improvements necessary
to meet City standards and to minimize the impact of the development
on the public at large, public facilities systems, and affected private
property users. In situations where this Code requires the dedication
of real property to the City, the applicant shall either specifically
agree to the dedication requirement, or provide evidence that shows
that the real property dedication requirement is not roughly proportional
to the projected impacts of the development.
C. Notice
of Hearing.
1. Mailed Notice. Notice of a Type III application hearing (or appeal)
or Type I or II appeal hearing shall be given by the Community Development
Director in the following manner:
a. At least 20 days before the hearing date, notice shall be mailed
to:
i. The applicant and all owners or contract purchasers of record of
the property which is the subject of the application;
ii. All property owners of record within 200 feet of the site (N/A for
Type I appeal);
iii.
Any governmental agency which has entered into an intergovernmental
agreement with the City, which includes provision for such notice,
or who is otherwise entitled to such notice. ODOT shall be notified
when there is a land division abutting a state facility for review
of, comment on, and suggestion of conditions of approval for, the
application. Transit and other transportation facility and service
providers, including the Astoria Warrenton Regional Airport, shall
be notified of Type III application hearings. [Owners of airports
shall be notified of a proposed zone change in accordance with ORS
227.175.];
iv. Any neighborhood or community organization recognized by the City
Commission and whose boundaries include the property proposed for
development;
v. Any person who submits a written request to receive notice;
vi. For appeals, the appellant and all persons who provided testimony;
and
vii.
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.
b. The Community Development Director shall have an affidavit of notice
be prepared and made a part of the file. The affidavit shall state
the date that the notice was posted on the property and mailed to
the persons who must receive notice.
c. At least 10 days before the hearing, notice of the hearing shall
be printed in a newspaper of general circulation in the City. The
newspaper's affidavit of publication of the notice shall be made part
of the administrative record.
2. Content of Notice. Notice of appeal of a Type I or II decision or
a Type III hearing (or appeal) to be mailed and published per paragraph
1 of this subsection shall contain the following information:
a. The nature of the application and the proposed land use or uses which
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 Warrenton 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.
j. The following notice: "Notice to mortgagee, lienholder, vendor, or
seller: The Warrenton Development Code requires that if you receive
this notice it shall be promptly forwarded to the purchaser."
D. Conduct
of the Public Hearing.
1. At the commencement of the hearing, the hearings body shall state
to those in attendance that:
a. The applicable approval criteria and standards that apply to the
application or appeal.
b. A statement 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 which the person testifying believes
to apply to the decision.
c. A statement 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 State Land Use
Board of Appeals on that issue.
d. Before the conclusion of the initial evidentiary hearing, any participant
may ask the hearings body 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") per paragraph 2 of this subsection,
or by leaving the record open for additional written evidence or testimony
per paragraph 3 of this subsection.
e. Record of the public hearing is subject to the same procedures as stated in Section
16.208.060.
2. If the hearings body grants a continuance, the completion of the
hearing shall be continued to a date, time, and place at least seven
days after the date of the first evidentiary hearing. An opportunity
shall be provided at the second 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 hearings 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 the record was left open. If such a request is filed, the Planning Commission shall reopen the record per subsection
E of this section.
a. When the Planning Commission re-opens the record to admit new evidence
or testimony, any person may raise new issues which relates to that
new evidence or testimony.
b. An extension of the hearing or record granted pursuant to this subsection
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. If requested by the applicant, the City shall allow the applicant
at least seven days after the record is closed to all other persons
to submit final written arguments in support of the application, unless
the applicant expressly waives this right. The applicant's final submittal
shall be part of the record but shall not include any new evidence.
4. The Record.
a. The record shall contain all testimony and evidence that is submitted
to the City and the hearings body and not rejected.
b. The hearings body may take official notice of judicially cognizable
facts under the applicable law. If the review authority takes official
notice, it must announce its intention and allow persons participating
in the hearing to present evidence concerning the noticed facts.
c. The review authority shall retain custody of the record until the
City issues a final decision.
5. Participants in the appeal of a Type I or II decision or a Type III
hearing are entitled to an impartial review authority as free from
potential conflicts of interest and pre-hearing ex parte contacts
(see paragraph 6 of this subsection) as reasonably possible. However,
the public has a countervailing right of free access to public officials.
Therefore:
a. At the beginning of the public hearing, hearings body members shall
disclose the substance of any pre-hearing ex parte contacts (as defined
in paragraph 6 of this subsection) concerning the application or appeal.
He or she shall state whether the contact has impaired their impartiality
or their ability to vote on the matter and shall participate or abstain
accordingly.
b. A member of the hearings body shall not participate in any proceeding
in which they, or any of the following, has a direct or substantial
financial interest: Their spouse, brother, sister, child, parent,
father-in-law, mother-in-law, partner, any business in which they
are then serving or have served within the previous two years, or
any business with which they are negotiating for or have 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 hearings body due to contacts
or conflict may be ordered by a majority of the members present and
voting. The person who is the subject of the motion may not vote on
the motion to disqualify.
d. If all members abstain or are disqualified, those 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, to which the member of the hearings body
shall reply in accordance with this section.
6. Ex Parte Communications.
a. Members of the hearings 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, except upon giving notice, per paragraph
5 of this subsection.
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 to the noticed materials.
b. No decision or action of the hearings body shall 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 hearings body is not considered
an ex parte contact.
7. Presenting and Receiving Evidence.
a. The hearings body may set reasonable time limits for oral presentations
and may limit or exclude cumulative, repetitious, irrelevant or personally
derogatory testimony or evidence.
b. No oral testimony shall be accepted after the close of the public hearing. Written testimony may be received after the close of the public hearing, only as provided in subsection
D of this section.
c. Members of the hearings 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
hearing and an opportunity is provided to dispute the evidence. In
the alternative, a member of the hearings body may visit the property
to familiarize him or herself with the site and surrounding area,
but not to independently gather evidence. In the second situation,
at the beginning of the hearing, he or she shall disclose the circumstances
of the site visit and shall allow all participants to ask about the
site visit.
E. The
Decision Process.
1. Basis for Decision. Approval or denial of an appeal of a Type I or
II decision or a Type III application shall be based on standards
and criteria in this 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 hearings body shall issue a final written order
containing the findings and conclusions stated in paragraph 2 of this
subsection, which either approves, denies, or approves with specific
conditions. The hearings body may also issue appropriate intermediate
rulings when more than one permit or decision is required.
4. Decision-Making Time Limits. A final order for any Type I or II appeal
or Type III action shall be filed with the Community Development Director
within 10 business days after the hearings body decision.
F. Notice
of Decision. Written notice of a Type I or II appeal decision or a
Type III decision shall be mailed to the applicant and to all participants
of record within 10 business days after the hearings body decision.
Failure of any person to receive mailed notice shall not invalidate
the decision, provided that a good faith attempt was made to mail
the notice.
G. Final
Decision and Effective Date. The decision of the hearings body on
any Type I or II appeal or any Type III application 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 Commission.
H. Appeal.
A Type III quasi-judicial decision may be appealed to the City Commission
as follows:
1. Who May Appeal. The following people have legal standing to appeal
a Type III quasi-judicial decision:
b. Any person who submitted written or oral testimony to the decision
making body.
c. The Planning Director or City Manager.
2. Appeal Procedure.
a. Notice of Appeal. Any person with standing to appeal, as provided
in subsection (H)(1) of this section, may appeal a Type III quasi-judicial
decision by filing a notice of appeal according to the following procedures:
i. Time for Filing. A notice of appeal shall be filed with the Community
Development Director within 14 days of the date the notice of decision
was mailed.
ii. Content of Notice of Appeal. The notice of appeal shall contain:
(A)
An identification of the decision being appealed, including
the date of the decision.
(B)
A statement demonstrating the person filing the notice of appeal
has standing to appeal.
(C)
A statement identifying the specific issues raised on appeal.
(D)
A statement demonstrating that the appeal issues were raised
by oral or written testimony during the comment period or prior to
the close of the record established at the Planning Commission's public
hearing.
b. Scope of Appeal. The appeal of a Type III quasi-judicial decision
shall be limited to the specific issues raised during the written
comment period or at the public hearing, as provided under Subsection
ii.D above, unless the City Commission allows additional evidence
or testimony concerning any other relevant issue. The City Commission
may allow such additional evidence if it determines that such evidence
is necessary to resolve the case. Written or oral comments received
during the comment period or public hearing will usually limit the
scope of issues on appeal. Only in extraordinary circumstances should
new issues be considered by the City Commission on appeal of a Type
III Quasi-Judicial Decision.
c. Appeal Procedures. Type III notice as provided in this section and hearing procedures as provided by Section
16.208.060 shall be used for all Type III quasi-judicial decision appeals.
I. Appeal
to Land Use Board of Appeals (LUBA). The decision of an appeal to
the City Commission is final unless appealed to LUBA. An appeal to
LUBA shall be filed pursuant to ORS 197.830.
(Ord. 1175-A § 19, 2013; Ord. 1225 § 9, 2019; Ord. 1247 § 1, 2021)