Chapter 19.414
APPEAL PROCESS

Sections:

19.414.010    Type I appeal process.

19.414.020    Type II appeal process.

19.414.030    Type III appeal process.

19.414.040    Type IV appeal procedures.

19.414.050    Resubmittal of applications following denial.

19.414.010 Type I appeal process.

Type I decisions may not be appealed. (Ord. 6-2009 § 2 (Att. 1))

19.414.020 Type II appeal process.

Type II administrative decisions may be appealed to the planning commission as follows:

A. Who May Appeal. Legal standing to appeal a Type II administrative decision applies as follows:

1. The applicant;

2. Any other person who participated in the proceeding by submitting written comments.

B. Appeal Procedure.

1. Notice of Appeal. Any person with standing to appeal, as provided in subsection A of this section, may appeal a Type II administrative decision by filing a notice of appeal according to the following procedures;

2. Time for Filing. A notice of appeal shall be filed with the community development director within 14 days of the date the tentative notice of decision became final (FMC 19.413.020(B));

3. 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 explaining the specific issues raised on appeal along with a statement or evidence documenting that the issues were raised during the comment period;

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

e. Filing fee.

C. Fees. The amount of the filing fee shall be established by resolution of the city council.

D. Scope of Appeal. The appeal of a Type II administrative decision by a person with standing shall be limited to the specific issues raised during the written comment period and presented in the notice of appeal, unless the hearings body decides otherwise. Only in extraordinary circumstances should new issues be considered by the hearings body on appeal of a Type II administrative decision. The applicant must submit the request in writing for community development consideration. The appeals shall be limited to the record unless the hearings body determines additional evidence is necessary to resolve the case. The purpose of this requirement is to limit the scope of Type II administrative appeals by encouraging persons with standing to submit their specific concerns in writing during the comment period.

E. Failure to file an appeal with the community development director by 5:00 p.m. on the due date in conformance with the requirements of this section including the proper filing fee shall be a jurisdictional defect, resulting in the immediate rejection of the appeal. Failure to amend an appeal to correct any identified deficiency within 14 calendar days of notice thereof shall be a jurisdictional defect, resulting in immediate rejection of the appeal.

E. Appeal Procedures. Type III notice and hearing procedures shall be used for all Type II administrative appeals.

F. Record. The record for a Type II appeal shall include all testimony and evidence submitted to the city during the 14-day comment period and not specifically rejected by the community development director. Evidence or testimony submitted after the comment period is generally not included within the record unless the hearings body expressly incorporates that information into the record.

G. Appeal to City Council. The decision of the planning commission for an appeal of a Type II administrative decision is the final decision unless the planning commission decision is appealed to city council. An appeal to city council shall follow the same notification and hearing procedures as for the planning commission appeal (FMC 19.414.030). (Ord. 6-2009 § 2 (Att. 1))

19.414.030 Type III appeal process.

A. Appeal of Planning Commission Decisions. Any action or ruling of the planning commission pursuant to this title may be appealed to the city council. Written notice of the appeal shall be filed with the community development director within 14 calendar days of the date the planning commission notice of final decision was mailed.

B. Who May Appeal.

1. Any person who participated in the proceeding by submitting written comments.

2. Any person who testified at the public hearing.

3. All participants of record.

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

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

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

3. A statement explaining the specific issues raised on appeal along with a statement or evidence documenting that the issues were raised during the comment period;

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

D. Filing Fee.

1. Fees. The amount of the filing fee shall be established by resolution of the city council.

E. Appeal Process. If the appeal is not filed within the 14-day period, the decision of the planning commission shall be final. If the appeal is filed, a report and recommendation on the planning commission’s decision shall be forwarded to the city council; and the council shall hold a public hearing on the appeal within 40 calendar days of receiving a request for an appeal. An appeal of a planning commission decision shall specify, in detail, the issues or findings in contention so as to afford the city council and interested parties an adequate opportunity to respond to and resolve each issue. The appeal shall be limited to the record, unless the city council determines additional evidence is necessary to resolve the case.

F. Failure to file an appeal with the community development director by 5:00 p.m. on the due date in conformance with the requirements of FMC 19.414.020 including the proper filing fee shall be a jurisdictional defect resulting in immediate rejection of the appeal. Failure to amend an appeal to correct any identified deficiency within 14 calendar days of notice thereof shall be a jurisdictional defect resulting in the immediate rejection of the appeal.

G. Notice of Appeal Hearing. Notice of the appeal hearing shall be provided to the applicant and other persons as otherwise provided by law; include a description of applicable criteria; include a street address or other geographical reference; state the time, date, and location of the hearing; state that failure to raise an issue in person or by letter precludes appeal and that failure to specify to which criterion the comment is directed precludes appeal based on that criterion; and be mailed at least 10 calendar days before the hearing. At the commencement of the city council appeal hearing, a statement shall be made to those in attendance that: describes the applicable substantive criteria, testimony and evidence must be directed at the issues raised in the appeal, and failure to address a criterion precludes an appeal based on that criterion. (Ord. 6-2009 § 2 (Att. 1))

19.414.040 Type IV appeal procedures.

Type IV decisions made by the city council are appealed to the State of Oregon Land Use Board of Appeals (LUBA). (Ord. 6-2009 § 2 (Att. 1))

19.414.050 Resubmittal of applications following denial.

An application which has been denied, or an application which was denied and which on appeal or review has not been reversed by a higher authority, including the land use board of appeals, the land conservation and development commission or the courts, may not be resubmitted as the same or a substantially similar proposal for the same land for a period of at least 12 months from the date the final city action is made denying the application, unless there is substantial change in the facts or a change in city policy which would change the outcome, as determined by the community development director. (Ord. 6-2009 § 2 (Att. 1))