(A)
To file an appeal, an appellant must file a completed notice of appeal on a form prescribed by the Director and pay an appeal fee.
(B)
Unless a request for reconsideration has been filed, the notice of appeal and appeal fee must be received by the Community Development Director no later than the close of the public counter on the 12th day following mailing of the decision. If a decision has been modified on reconsideration, an appeal must be filed no later than the 12th day following mailing of the decision as modified. Notices of appeals must not be received by facsimile machine or e-mail.
(C)
In the case of an appeal of a Type 2 decision to the Hearings Officer or to the Planning Commission, the Hearings Authority’s decision on appeal is final 12 days after the decision is mailed. Except that, within 12 days after the decision is mailed, the City Council may, on its own motion and at its discretion, call up a decision of the Planning Commission and conduct an on the record review of the decision and limit issues identified in the Council’s motion.
(D)
In the case of an appeal of a Type 3 decision, the City Council’s decision whether to grant review is discretionary. If the City Council declines review, the appellant may be entitled to a partial refund according to the City’s adopted Fees Resolution.
(E)
The Hearings Officer’s decision on a Type 3 decision or upon appeal of a Type 2 decision is the City’s final decision and is appealable only.
(6443)
(A)
The Notice of Appeal must contain:
(1)
A description of the decision which is being appealed, including the date of decision.
(2)
A statement describing the interest the person who is appealing has in the decision. Only persons who have proper standing as provided by the law, and who have participated in the decision being appealed (if provision for such participation was provided in the previous proceeding), may appeal the decision. The statement of interest must demonstrate the person’s standing and participation.
(3)
A description of the issues sought to be raised by the appeal; and a statement that the issues were raised during the proceeding that produced the decision being appealed. This description must include the specific criteria relied upon as the basis for the appeal, and an explanation of why the decision has not complied with the standards or requirements of the criteria. The issues raised by the appeal must be stated with sufficient specificity to afford the reviewing authority an opportunity to resolve each issue raised.
(4)
In the case of a discretionary appeal request to the City Council, the Notice of Appeal must include the following additional information to assist the City Council in deciding whether to grant discretionary review of the decision being appealed:
(a)
How the appeal presents issues that have significant public policy or community-wide implications for the City, as opposed to more limited issues which primarily involve the directly affected property or persons involved in the land use decision being appealed.
(b)
Why it is necessary or desirable for the City Council to review these issues; and why the issues cannot be adequately and fairly reviewed by the Oregon Land Use Board of Appeals.
(6443)
(A)
Any failure to conform to the requirements of SDC 5.1.810, Filing Appeals, and 5.1.815, Notice of Appeal, will constitute a jurisdictional defect and the appeal will be dismissed.
(B)
Determination of jurisdictional defects in an appeal must be made by the Approval Authority to which an appeal has been made.
(6443)
(A)
If more than 1 party files a notice of appeal on a land use action decision, the appeals must be consolidated and noticed and heard as 1 proceeding.
(B)
In instances of multiple appeals where separate appellants have asked for a differing scope of review, any grant of de novo review controls over a separate request for a more limited review on appeal.
(6443)
(A)
Before Hearings Official or Planning Commission. The review of a Type 2 decision on appeal before a Hearings Authority is de novo.
(B)
Before the Council.
(1)
Review of land use decisions by the City Council on appeal is discretionary. A decision by the City Council to not grant discretionary review of the appeal is the final determination of the City and will be considered to be an adoption by the Council of the decision being appealed, including any interpretations of this code or of the plan provisions included in the decision. The final decision may be appealed to the Land Use Board of Appeals as provided by law. The City Council’s decision whether to grant discretionary review will be made without testimony or argument from persons interested in the appeal.
(2)
The scope of review for appeals that are granted discretionary review by the City Council must be:
(3)
The record for discretionary review by the City Council must include:
(a)
The land use application or request which is the subject of the appeal, any staff report, and all written comments, exhibits, or any other materials or information considered by the decision-maker in the proceedings that produced the decision being appealed.
(b)
A written transcript of all proceedings before the decision-maker, or a stipulated written summary of the proceedings submitted by all of the parties to the appeal.
(c)
Appellants must submit the transcript or stipulated written summary of the proceedings to the Community Development Division no later than the close of the day 5 days prior to the date set for receipt of written arguments.
(d)
An appellant is excused from providing a transcript or stipulated written summary of the proceedings if the appellant was prevented from complying by:
(i)
The Director’s inability to supply the appellant with an audio recording of the prior proceeding; or
(ii)
Defects on the audio recording of the prior proceeding that make it not reasonably possible for the appellant to supply a transcript. Appellants must comply to the maximum extent reasonably and practicably possible.
(4)
An appeal hearing before the City Council must be conducted according to such procedures as the City Council prescribes, which may include an opportunity for presentations by the parties to the appeal.
(5)
Decisions reviewed by the City Council can be affirmed, remanded, reversed, or modified in whole or in part by the City Council.
(6443)
(A)
The appellant and all other parties to the decision below must be mailed notice of the hearing on appeal at least 20 days prior to any de novo hearing or deadline for submission of written arguments.
(B)
Except as otherwise provided in this section, the appeal must be heard as provided in SDC 5.1.500, Quasi-Judicial Hearings. The applicant must proceed first in all appeals.
(C)
The order of Approval Authority must be as provided in SDC 5.1.550, Hearings Procedure.
(D)
The record of the proceeding from which appeal is taken must be a part of the record on appeal.
(E)
The record for a review on the record must consist of the following:
(1)
Minutes and audio recordings of any prior hearing, if available;
(2)
All written and graphic materials that were part of the record below;
(3)
The Approval Authority’s decision appealed from;
(4)
Written arguments, based upon the record developed below, submitted by any party to the decision;
(5)
A staff report and staff comment based on the record; and
(6)
Other information deemed relevant by the Approval Authority.
(F)
The City Council must not consider any new factual information in an “on the record” proceeding. Brief oral argument by the applicant and the appellant on the record may be allowed by the City Council.
(6443)
Re-hearings are not allowed.
(6443)
Applications must not be remanded to a lower level Approval Authority after appeal, except by City Council as provided in SDC 5.1.830(B)(5).
(6443)
An appeal may be withdrawn in writing by an appellant at any time prior to the rendering of a final decision. Subject to the existence of other appeals on the same application, in such event the appeal proceedings must terminate as of the date the withdrawal is received. An appeal may be withdrawn under this section regardless of whether other non-filing parties have relied upon the appeal filed by the appellant.
(6443)