Chapter 15.100
LAND USE PROCESSES AND PROCEDURES

Sections:

Article I. Procedure Types and Determination of Proper Procedures

15.100.010    Procedures for processing development permits.

15.100.020    Type I procedure – Administrative decision.

15.100.030    Type II procedure.

15.100.040    Repealed.

15.100.050    Type III procedure – Quasi-judicial hearing.

15.100.060    Type IV procedure – Legislative.

15.100.070    Legislative enactments not restricted.

15.100.080    Determination of proper procedure type.

Article II. Processing Type I – IV Development Actions

15.100.090    Development permit application.

15.100.100    Submission and acceptance of applications for land use decisions.

15.100.110    Responsibility of director.

15.100.120    Referral of development permit applications.

15.100.130    Permit decision – Type I.

15.100.140    Permit decision – Type II.

15.100.150    Decision, findings and order – Types III and IV.

Article III. Appeals

15.100.160    Appeal procedures.

15.100.170    Notice of appeal – Type I, II and III.

15.100.180    Scope of review.

15.100.190    Review body decision on appeal of a Type I, II or III.

Article IV. Notice

15.100.200    Compliance required.

15.100.210    Mailed notice.

15.100.220    Additional notice procedures of Type II development applications.

15.100.230    Additional notice procedures for Type III quasi-judicial hearing.

15.100.240    Additional notice for Type III quasi-judicial hearing for annexations.

15.100.250    Notice procedures for Type IV legislative hearing.

15.100.260    Procedure for posted notice for Type II and III procedures.

15.100.270    Procedure for published notice on Type III and Type IV procedures.

Article V. Hearing

15.100.280    Challenges to impartiality.

15.100.290    Disqualification.

15.100.300    Participation by interested officers or employees.

15.100.310    Ex parte contacts.

15.100.320    Abstention or disqualification.

15.100.330    Rights of abstaining or disqualified member.

15.100.340    Burden and nature of proof.

15.100.350    Order of proceedings.

15.100.360    Record of proceedings.

Article VI. Development Permit

15.100.370    Development permit required.

15.100.380    Exclusions from development permit requirement.

Article I. Procedure Types and Determination of Proper Procedures

15.100.010 Procedures for processing development permits.

All development permits shall be classified as one of the following: Type I, Type II, Type III, or Type IV procedures. [Ord. 2451, 12-2-96. Code 2001 § 151.020.]

15.100.020 Type I procedure – Administrative decision.

A. Type I development actions shall be decided by the director without public notice or public hearing. Notice of a decision shall be provided to the applicant.

B. Type I actions include, but are not limited to:

1. Design review permits for single-family dwellings, duplexes, additions, accessory structures, or other additions specifically listed in NMC 15.220.020(A)(1).

2. Home occupation permits.

3. Signs, not in conjunction with a new development or major remodel.

4. Adjustments.

5. Processing final land division maps and plats.

6. Determining compliance with the conditions of approval for a land use action processed under a Type II or Type III procedure.

C. A Type I decision may be appealed by an affected party, Type I, in accordance with NMC 15.100.160 et seq.

D. The director shall make a decision based on the information presented, and shall issue a development permit if the applicant has complied with all of the relevant requirements of the Newberg comprehensive plan and this code. The director may add conditions to the permit to ensure compliance with all requirements of this code, the comprehensive plan and other relevant policies and regulations. [Ord. 2451, 12-2-96. Code 2001 § 151.021.]

15.100.030 Type II procedure.

A. Type II development actions shall be decided by the director.

B. Type II actions include, but are not limited to:

1. Site design review.

2. Variances.

3. Manufactured dwelling parks and mobile home parks.

4. Partitions.

5. Subdivisions, except for subdivisions with certain conditions requiring them to be processed using the Type III process, pursuant to NMC 15.235.030(A).

C. The applicant shall provide notice pursuant to the requirements of NMC 15.100.200 et seq.

D. The director shall make a decision based on the information presented and shall issue a development permit if the applicant has complied with all of the relevant requirements of this code. The director may add conditions to the permit to ensure compliance with all requirements of this code.

E. Appeals may be made by an affected party, Type II, in accordance with NMC 15.100.160 et seq. All Type II development action appeals shall be heard and decided by the planning commission.

F. If the director’s decision is appealed as provided in subsection (E) of this section, the hearing shall be conducted pursuant to the Type III quasi-judicial hearing procedures as identified in NMC 15.100.050.

G. The decision of the planning commission on any appeal may be further appealed to the city council by an affected party, Type III, in accordance with NMC 15.100.160 et seq. and shall be a review of the record supplemented by written or oral arguments relevant to the record presented by the parties.

H. An applicant shall have the option to request at the time the development permit application is submitted that the proposal be reviewed under the Type III procedure. [Ord. 2813 § 1 (Exh. A § 3), 9-5-17; Ord. 2747 § 1 (Exh. A § 4), 9-6-11; Ord. 2451, 12-2-96. Code 2001 § 151.022.]

15.100.040 Type II procedure – Residential subdivisions.

Repealed by Ord. 2813. [Ord. 2451, 12-2-96. Code 2001 § 151.023.]

15.100.050 Type III procedure – Quasi-judicial hearing.

A. All Type III decisions shall be heard and decided by the planning commission. The planning commission’s decision shall be final unless the decision is appealed or the decision is a recommendation to the city council.

B. Type III actions include, but are not limited to:

1. An appeal of a Type I or Type II decision: This action of the planning commission is a final decision unless appealed to the city council.

2. Conditional use permits: This action is a final decision unless appealed.

3. Planned unit developments: This action is a final decision unless appealed.

4. Substantial change to the exterior appearance of a historic landmark: This action is final unless appealed.

5. Establishment of a historic landmark: This is a final decision by the planning commission, unless appealed.

6. Establishment of a historic landmark subdistrict: This is a recommendation to the city council.

7. Comprehensive plan map amendments: This action is a recommendation to the city council.

8. Zoning map amendments and designation of subdistricts: This action is a recommendation to the city council.

9. Annexation: This action is a recommendation to the city council.

10. Subdivisions with certain conditions requiring them to be processed using the Type III process, pursuant to NMC 15.235.030(A).

C. Planning Commission Decisions and Recommendation Actions.

1. Planning Commission Decision. Development actions shall be decided by the planning commission for those land use actions that require a Type III procedure and do not require the adoption of an ordinance. The decision shall be made after public notice and a public hearing is held in accordance with the requirements of NMC 15.100.090 et seq. A Type III decision may be appealed to the city council by a Type III affected party in accordance with NMC 15.100.160 et seq.

2. Planning Commission Recommendation to City Council. Land use actions that would require the adoption of an ordinance shall be referred to the city council by the planning commission together with the record and a recommendation. The recommendation shall be made after public notice and a public hearing is held in accordance with the requirements of NMC 15.100.090 et seq.

D. City Council Action. If a recommendation to the city council is required, the matter shall be reviewed by the city council as a new hearing. The final decision on these actions is made by the city council.

E. The applicant shall provide notice pursuant to NMC 15.100.200 et seq.

F. The hearing body may attach certain conditions necessary to ensure compliance with this code.

G. If the application is approved, the director shall issue a building permit when the applicant has complied with all of the conditions and other requirements of this code.

H. If a Type III application is denied, or if the applicant wishes to make substantive modifications to an approved application, the applicant may modify the application after the planning commission hearing and request a new planning commission hearing to consider the application. An application so modified shall be considered a new application for purposes of the 120-day time limit for processing applications in accordance with NMC 15.100.100 and state statutes. The applicant shall acknowledge in writing that this is a new application for purposes of the 120-day rule. The city council shall establish a fee for such a reconsideration or modification by resolution. Application of this provision is limited to three times during a continuous calendar year. [Ord. 2813 § 1 (Exh. A § 5), 9-5-17; Ord. 2590, 11-6-03; Ord. 2565, 4-1-02; Ord. 2451, 12-2-96. Code 2001 § 151.024.]

15.100.060 Type IV procedure – Legislative.

A. Type IV Actions Are Legislative. The planning commission shall hold a public hearing and make a recommendation to the city council. The city council shall hold another public hearing and make a final decision.

B. Legislative actions include, but are not limited to:

1. Amendments to the Newberg comprehensive plan text;

2. Amendments to the Newberg development code;

3. The creation of any land use regulation.

C. The public hearing before the planning commission shall be held in accordance with the

requirements of this code. Notice of a hearing on a legislative decision need not include a mailing to property owners or posting of property (refer to NMC 15.100.200 et seq.).

D. Interested persons may present evidence and testimony relevant to the proposal. If criteria are involved, the planning commission shall make findings for each of the applicable criteria.

E. The city council shall conduct a new hearing pursuant to this code. At the public hearing, the staff shall present the report of the planning commission and may provide other pertinent information. Interested persons shall be given the opportunity to present new testimony and information relevant to the proposal that was not heard before the planning commission.

F. To the extent that a finding of fact is required, the city council shall make a finding for each of the applicable criteria and in doing so may sustain or reverse a finding of the planning commission. In granting an approval, the city council may delete, add, or modify any of the provisions in the proposal or attach certain conditions beyond those warranted for the compliance with standards if the city council determines that the conditions are necessary to fulfill the approval criteria.

G. The city council’s decision shall become final upon the effective date of the ordinance or resolution. [Ord. 2451, 12-2-96. Code 2001 § 151.025.]

15.100.070 Legislative enactments not restricted.

Nothing in this code shall limit the authority of the city council to make changes to the Newberg comprehensive plan and/or implementing ordinances as part of an extensive revision of the comprehensive plan and/or implementing ordinances. [Ord. 2451, 12-2-96. Code 2001 § 151.026.]

15.100.080 Determination of proper procedure type.

A. The director shall determine the proper procedure for all development actions. If there is a question as to the appropriate type of procedure, the director shall resolve it in favor of the higher procedure type number.

B. An application that involves two or more procedures may be processed collectively under the highest numbered procedure required for any part of the application or processed individually under each of the procedures identified by this code. The applicant may determine whether the application shall be processed collectively or individually. If the application is processed under the individual procedure option, the highest numbered type procedure must be processed prior to subsequent lower numbered procedure. [Ord. 2451, 12-2-96. Code 2001 § 151.027.]

Article II. Processing Type I – IV Development Actions

15.100.090 Development permit application.

Applications for development permits shall be submitted upon forms established by the director. An application shall consist of all materials required by this code, including the following information:

A. A completed development permit application form.

B. Proof that the property affected by the application is in the exclusive ownership of the applicant, or that the applicant has the consent of all owners of the affected property.

C. Other information required by this code.

D. The applicable fees. [Ord. 2451, 12-2-96. Code 2001 § 151.040.]

15.100.100 Submission and acceptance of applications for land use decisions.

A. A decision on a development permit application, including all local appeals, shall be completed within 120 days of the date the application is found to be complete. If the city fails to meet the 120-day time period, the applicant may file a writ of mandamus with the circuit court of Yamhill County to compel the city to issue the approval. The 120-day time period can be extended upon the request of the applicant. The 120-day time period only applies to decisions wholly within the authority of the city and does not apply to amendments to the Newberg comprehensive plan text, adoption of land use regulations, or adoption of a new land use regulation that is forwarded to the Director of the Department of Land Conservation and Development.

B. Applications shall be submitted to the office of the director. The date of submission shall be indicated on the material submitted. The director shall determine whether the application is complete or incomplete. Acceptance of an application only represents an acceptance of the information for review. If the director determines that the application is incomplete, the director shall provide the applicant with a complete list of the information that needs to be submitted to complete the application. An applicant shall have 180 days to submit the necessary information to complete the application. If the director fails to determine whether the application is complete or incomplete, or, if the applicant refuses in writing to submit additional information required by the director, the application will be considered complete for review on the thirty-first day after the director received the application. Resubmitted applications shall be subject to another 10-day completeness check. If the applicant does not submit the required information within the 180-day period and does not in writing refuse to do so, the director shall make findings and issue a decision, according to the Type I procedure, that the application is denied based upon the lack of information necessary to complete the review.

C. If an applicant either refuses in writing to submit the additional information requested by the director or submits the information but the director determines that it is incomplete, the application will be considered complete on the thirty-first day after the director received the application. The application shall then be processed in accordance with the provisions of this code. However, the planning commission must make a finding that the application is in fact complete or the planning commission may either deny the application based on insufficient information or continue the hearing in order to allow the applicant time to provide the additional information that was requested.

D. When a development permit application is complete, the director shall accept it and note the date of acceptance. The city’s review of an application will be based on the applicable standards and criteria that were in effect at the time the application was first submitted. [Ord. 2451, 12-2-96. Code 2001 § 151.041.]

15.100.110 Responsibility of director.

The director shall:

A. Determine the type of procedure to be used in accordance with the provisions of this code.

B. Schedule development permit applications for review and/or hearing.

C. Provide notice for Type II, III, and IV development permit applications pursuant to NMC 15.100.200 et seq.

D. Prepare minutes for Type III and IV proceedings to include the decision on the matter heard and the reasons for the decision.

E. Mail a copy of the decision to those required by this code to receive such information. [Ord. 2451, 12-2-96. Code 2001 § 151.042.]

15.100.120 Referral of development permit applications.

Within five working days of accepting an application, the director shall do the following:

A. On Type I procedures, the director is only required to make referrals to the extent necessary to make a decision on the development permit.

B. On Type II and Type III procedures, the director shall transmit a copy of the application, or appropriate parts of the application, to each affected agency and city department for review and comment, including ODOT and others responsible for determining compliance with state and federal requirements. The affected agencies and city departments shall have 15 calendar days to comment. The referral agency or city department is presumed to have no comments if comments are not received within the specified time period. The director shall grant an extension only if the application involves unusual circumstances. Any extension shall only be for a maximum of 15 additional days.

C. On Type IV procedures, the director shall provide referrals to ODOT and other agencies in compliance with state law and as otherwise determined by the city. [Ord. 2619, 5-16-05; Ord. 2451, 12-2-96. Code 2001 § 151.043.]

Cross-reference: See Chapter 197 of Title 19 ORS pertaining to comprehensive land use planning coordination.

15.100.130 Permit decision – Type I.

A. The director shall approve or deny the development permit for Type I action within 60 days of accepting a complete permit application.

B. The decision of the director shall be based upon the application, the evidence, comments from referral agencies, and approvals required by others.

C. The director shall approve a permit application if applicable approvals by others have been granted and the proposed development or land use request otherwise conforms to the requirements of the Newberg comprehensive plan and this code.

D. The director shall deny the permit application if required approvals are not granted or the application otherwise fails to comply with code requirements.

E. The director shall notify the applicant of the disposition of the application. The notice shall indicate that the decision is final unless appealed by the applicant. The notice shall describe the right of appeal pursuant to NMC 15.100.160 et seq. [Ord. 2451, 12-2-96. Code 2001 § 151.044.]

15.100.140 Permit decision – Type II.

A. The director shall approve or deny the development permit for a Type II action within 60 days of accepting a complete permit application, unless it is a subdivision which has been converted to a Type III process pursuant to NMC 15.235.030(A).

B. The applicant shall provide notice pursuant to NMC 15.100.200 et seq. together with a 14-day comment period for the submission of written comments prior to the decision.

C. The decision of the director shall be based upon the application, the evidence, comments from referral agencies, and approvals required by others.

D. The director shall notify the applicant and others entitled to notice of the disposition of the application. The notice shall indicate the date that the decision will take effect and describe the right of appeal pursuant to NMC 15.100.160 et seq. A decision on a Type II development shall take effect on the fifteenth day following the notice of a decision unless an appeal is filed pursuant to NMC 15.100.160 et seq.

E. Approval or denial of a Type II development permit application shall be accompanied by written findings that explain the criteria, facts and justification for the decision.

F. The director shall approve a permit application if applicable approvals by others have been granted and the proposed development or land use request otherwise conforms to the requirements of this code. The director may add conditions to the permit to ensure compliance with all requirements of this code.

G. The director shall deny the permit application if required approvals are not obtained or the application otherwise fails to comply with code requirements.

H. Notice of approval or denial of a Type II decision shall be provided to the applicant, parties providing written testimony, or anyone requesting such notice. Notice shall include a description of the item, the decision, conditions that may have been added, and the rights of appeal.

I. Type II applications are required to be reviewed under the Type III procedures at the request of the applicant, or the application is a subdivision which has been converted to a Type III process pursuant to NMC 15.235.030(A), or through an appeal of the director’s decision. Type II development permit applications that require a Type III procedure must conclude the hearing procedure before a land use or construction permit application can be considered to be complete by the director. Upon receiving a final decision by the hearing body on a Type III application, the subsequent review of a permit application may be reviewed by the director as a Type I process. [Ord. 2813 § 1 (Exh. A § 6), 9-5-17; Ord. 2451, 12-2-96. Code 2001 § 151.045.]

15.100.150 Decision, findings and order – Types III and IV.

A. Following the hearing for review of a development permit, 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.

B. The hearing body shall prepare written findings of fact and an order which shall include:

1. A statement of the applicable criteria against which the proposal was tested.

2. A statement of the facts that the hearing body found establishing compliance or noncompliance with each applicable criterion and assurance of compliance with applicable standards.

3. The reasons for a conclusion to approve or deny.

4. The decision to approve the proposed change with or without conditions, or the decision to deny the proposed change.

C. The director shall notify the applicant and others entitled to notice of the disposition of the application within five calendar days of the written decision. This shall include the applicant, anyone providing written testimony prior to the close of the hearing, anyone providing oral testimony at the hearing, or anyone requesting such notice. The notice shall include a description of the item, indicate the date that the decision will take effect and describe the right of appeal pursuant to NMC 15.100.160 et seq. [Ord. 2691 § 3, 2-19-08; Ord. 2451, 12-2-96. Code 2001 § 151.046.]

Article III. Appeals

15.100.160 Appeal procedures.

A. Type I. An appeal of a Type I decision by the director may be appealed within 14 calendar days of the date of the decision by the director. Appeals may be made only by an affected party, Type I (the person or party submitting the application). Appeals of a Type I application are processed as a Type III procedure and proceed to the planning commission.

B. Type II. An appeal of a Type II decision by the director may be appealed within 14 calendar days of the date of the decision. Appeals may be made only by an affected party, Type II (the applicant, any party entitled to receive notice of the decision, or anyone providing written comments within 14 calendar days prior to the date of the decision). Appeals of a Type II application are processed as a Type III procedure and proceed to the planning commission.

C. Type III. An appeal of a Type III decision by the planning commission may be appealed within 14 calendar days of the date of the planning commission’s written decision. Appeals may be made only by an affected party, Type III. [Ord. 2691 § 2, 2-19-08; Ord. 2451, 12-2-96. Code 2001 § 151.055.]

15.100.170 Notice of appeal – Type I, II and III.

A. An appeal for Type I, II, and III decisions shall include an identification of the decision sought to be reviewed, the date of the decision and shall be accompanied by a notice of appeal form provided by the planning and building department. The notice of appeal shall be completed by the applicant and shall contain:

1. An identification of the decision sought to be reviewed, including the date of the decision.

2. A statement of the interest of the person seeking review and that they were a party to the initial proceedings.

3. A detailed statement of the specific grounds on which the appeal is filed.

B. Notice shall be filed with the community development department together with the filing fee and deposit for transcript costs. [Ord. 2451, 12-2-96. Code 2001 § 151.056.]

15.100.180 Scope of review.

A. The initial appeal of a Type I, Type II, or Type III decision shall be a new hearing. Any second appeal to the city council of a Type I or Type II decision shall be a record hearing unless the applicant requests a new hearing and waives the 120-day time limit for processing applications in accordance with NMC 15.100.100 and state statutes. Appeal of a Type II decision must be based on the written comments raised prior to the expiration notice comment period pursuant to NMC 15.100.220. Appeal of a Type III decision made by the planning commission must be based on the written or oral testimony and evidence raised in the record of the planning commission.

B. Type III actions that require an ordinance or city council order to be adopted in order to become effective shall be reviewed by the city council as a new hearing. The city council shall receive the recommendation from the planning commission to the city council on these actions. The action will not be considered final for the purpose of appeals, until a final decision is rendered by the city council.

C. The record shall include:

1. A factual report prepared by the director.

2. All exhibits, material, pleadings, memoranda, stipulations, and motions submitted by any party and reviewed or considered in reaching the decision under review.

3. The minutes of the hearing and a detailed summary of the evidence.

D. For a record hearing on a second appeal of a Type I or Type II decision, no new testimony or evidence may be presented. Written argument will be allowed only from parties who testified at the prior evidentiary hearings. Written argument must be limited to evidence already in the record. No oral argument will be allowed at the city council level. [Ord. 2691 § 1, 2-19-08; Ord. 2590, 11-6-03; Ord. 2451, 12-2-96. Code 2001 § 151.057.]

15.100.190 Review body decision on appeal of a Type I, II or III.

A. Upon review, the review body may by order affirm, reverse, or modify in whole or in part a determination or requirement of the decision that is under review. When the review body modifies or renders a decision that reverses a decision of a hearing body, the review body, in its order, shall set forth its findings and state its reasons for taking the action encompassed in the order. When the review body elects to remand the matter to the hearing body for further consideration, it shall include a statement explaining the error that materially affected the outcome of the original decision and the action necessary to rectify it.

B. The review body shall render its decision no later than 45 days after the filing of the request for review and shall file that decision with the director within 10 days after it is rendered.

C. A party aggrieved by the final determination may appeal the decision to the Land Use Board of Appeals. [Ord. 2451, 12-2-96. Code 2001 § 151.058.]

Article IV. Notice

15.100.200 Compliance required.

Notice on all Type I through Type IV actions, including appeals, shall be conducted in accordance with this article. [Ord. 2451, 12-2-96. Code 2001 § 151.070.]

15.100.210 Mailed notice.

Mailed notice shall be provided as follows:

A. Type I Actions. No public notice is required.

B. Type II and Type III Actions. The applicant shall provide public notice to:

1. The owner of the site for which the application is made; and

2. Owners of property within 500 feet of the entire site for which the application is made. The list shall be compiled from the most recent property tax assessment roll. For purposes of review, this requirement shall be deemed met when the applicant can provide an affidavit or other certification that such notice was deposited in the mail or personally delivered.

3. To the owner of a public use airport, subject to the provisions of ORS 215.416 or 227.175.

C. The director may request that the applicant provide notice to people other than those required in this section if the director believes they are affected or otherwise represent an interest that may be affected by the proposed development. This includes, but is not limited to, neighborhood associations, other governmental agencies, or other parties the director believes may be affected by the decision.

D. The director shall provide the applicant with the following information regarding the mailing of notice:

1. The latest date by which the notice must be mailed;

2. An affidavit of mailing (to be signed and returned) certifying that the notice was mailed, acknowledging that a failure to mail the notice in a timely manner constitutes an agreement by the applicant to defer the 120-day process limit and acknowledging that failure to mail will result in the automatic postponement of a decision on the application; and

3. A sample notice.

E. The notice of a Type II and Type III development application shall be reasonably calculated to give actual notice and shall:

1. Set forth the street address or other easily understood geographical reference to the subject property;

2. List, by commonly used citation, the applicable criteria for the decision;

3. Include the name and phone number of a local government contact person, the telephone number where additional information may be obtained and where information may be examined;

4. Explain the nature of the application and the proposed use or uses which could be authorized;

5. State that a copy of the application, all documents and evidence relied upon by the applicant and applicable criteria are available for inspection at no cost and will be provided at a reasonable cost.

F. Prior to mailing or posting any notice required by this code, the applicant shall submit a copy of the notice to the director.

G. The applicant shall mail the notice for Type II actions at least 14 days before a decision is rendered. The applicant shall file with the director an affidavit of mailing as identified in subsection (D) of this section within two business days after notice is mailed.

H. The applicant shall mail the notice for Type III actions at least 20 days before the first new hearing, or if two or more new hearings are allowed, 10 days before the first new hearing. The applicant shall file with the director an affidavit of mailing as identified in subsection (D) of this section within two business days after notice is mailed.

I. All public notices shall be deemed to have been provided or received upon the date the notice is deposited in the mail or personally delivered, whichever occurs first. The failure of a property owner to receive notice shall not invalidate an action if a good faith attempt was made to notify all persons entitled to notice. An affidavit of mailing issued by the person conducting the mailing shall be conclusive evidence of a good faith attempt to contact all persons listed in the affidavit.

J. Failure to mail the notice and affirm that the mailing was completed in conformance with the code shall result in:

1. Postponement of a decision until the mailing requirements have been met; or

2. Postponement of the hearing to the next regularly scheduled meeting or to such other meeting as may be available for the hearing; or

3. The entire process being invalidated; or

4. Denial of the application. [Ord. 2581, 7-7-03; Ord. 2451, 12-2-96. Code 2001 § 151.071.]

15.100.220 Additional notice procedures of Type II development applications.

In addition to the requirements of NMC 15.100.210, mailed notice for development actions shall also contain the following:

A. Provide a 14-day period from the date of mailing for the submission of written comments prior to the decision;

B. State that issues that may provide a basis for appeal must be raised in writing during the comment period;

C. State that issues must be raised with sufficient specificity to enable the local government to respond to the issue;

D. State the place, date and time that comments are due;

E. State that notice of the decision, including an explanation of appeal rights, will be provided to any person who submits comments under subsection (A) of this section;

F. Briefly summarize the local decision-making process.

G. Type II notice for subdivisions shall also include a description of how an interested party may request a public hearing before the planning commission. [Ord. 2451, 12-2-96. Code 2001 § 151.072.]

15.100.230 Additional notice procedures for Type III quasi-judicial hearing.

In addition to the requirements of NMC 15.100.210, mailed notice for Type III development actions shall also contain the following:

A. State that an issue which may be the basis for an appeal to the Land Use Board of Appeals shall be raised not later than the close of the record at or following the final new hearing on the proposal before the city. Such issues shall be raised with sufficient specificity so as to afford the hearing body and the parties an adequate opportunity to respond to each issue;

B. State the date, time and location of the hearing;

C. State that the failure of an issue to be raised in a hearing, in person or by letter, or failure to provide sufficient specificity to afford the hearing body an opportunity to respond to the issue may preclude appeal to the Land Use Board of Appeals on that issue;

D. State that a copy of the staff report will be available for inspection at no cost at least seven calendar days prior to the hearing and will be provided at reasonable cost;

E. Include a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings. [Ord. 2451, 12-2-96. Code 2001 § 151.073.]

15.100.240 Additional notice for Type III quasi-judicial hearing for annexations.

In addition to notice requirements in NMC 15.100.210 and 15.100.230, annexations are required to be published each week for two consecutive weeks prior to the day of the first new hearing before the city council, in a newspaper of general circulation in the city, and shall also be noticed by posting notice of the hearing in four public places in the city for a like period. [Ord. 2451, 12-2-96. Code 2001 § 151.074.]

15.100.250 Notice procedures for Type IV legislative hearing.

A. There is no requirement for mailed notice to property owners or posting of property.

B. Notice shall be provided to the Department of Land Conservation and Development as follows:

1. When LCDC Goals Apply. When the city determines that the statewide land conservation and development goals do apply to a proposal to amend the Newberg comprehensive plan, this code, or adoption of a new land use regulation, the proposal shall be forwarded to the Director of the Department of Land Conservation and Development at least 45 days before the final hearing on adoption. The proposal shall contain the text and any supplemental information that the city believes is necessary to inform the director as to the effect of the proposal.

2. When Emergency Circumstances Require Expedited Review. The city may submit an amendment or new regulation to the Director of the Department of Land Conservation and Development with less than 45 days’ notice if the city determines that there are emergency circumstances requiring expedited review.

3. When LCDC Goals Do Not Apply. When the city determines that the statewide land conservation and development goals do not apply to a proposal to amend the Newberg comprehensive plan, this code, or adoption of a new land use regulation, notice to the Director of the Department of Land Conservation and Development is not required. [Ord. 2451, 12-2-96. Code 2001 § 151.075.]

15.100.260 Procedure for posted notice for Type II and III procedures.

A. Posted Notice Required. Posted notice is required for all Type II and III procedures. The notice shall be posted on the subject property by the applicant.

B. Notice Information Provided by City. The director shall provide the applicant with the following information regarding the posting of notice:

1. The number of notices required;

2. The latest date by which the notice must be posted;

3. An affidavit of posting (to be signed and returned) certifying that the notice was posted on site, acknowledging that a failure to post the notice in a timely manner constitutes an agreement by the applicant to defer the 120-day process limit and acknowledging that failure to post will result in the automatic postponement of a decision on the application; and

4. A sample notice.

C. Submission of Notice. Prior to posting any notice required by this section, the applicant shall submit a copy of the notice to the director for review.

D. Size, Number and Location Requirements. A waterproof notice which measures a minimum of two feet by three feet shall be placed on each frontage of the site. If a frontage is over 600 feet long, a notice is required for each 600 feet, or fraction of 600 feet. If possible, notices shall be posted within 10 feet of a street lot line and shall be visible to pedestrians and motorists in clear view from a public right-of-way. Notices shall not be posted in a public right-of-way or on trees.

E. Contents of Notice. The posted notice shall only contain the following information: planning action number, brief description of the proposal, phone number and address for contact at the Newberg planning and building department.

F. Standards and Timing, Type II Actions. The applicant shall post the notice at least 14 days before a decision is rendered. The applicant shall file with the director an affidavit of posting as identified in subsection (B) of this section within two business days after notice is posted.

G. Standards and Timing, Type III Actions. The applicant shall post the notice at least 10 days before the first scheduled hearing. The applicant shall file with the director an affidavit of posting as identified in subsection (B) of this section within two business days after notice is posted.

H. Removal of Notice. The applicant shall not remove the notice before the final decision. All posted notice shall be removed by the applicant within 10 days following the date of the final decision on the request.

I. Failure to Post Notice. The failure of the posted notice to remain on the property shall not invalidate the proceedings. Failure by the applicant to post a notice and affirm that the posting was completed in conformance with the code shall result in:

1. Postponement of a decision until the mailing requirements have been met; or

2. Postponement of the hearing to the next regularly scheduled meeting or to such other meeting as may be available for the hearing; or

3. The entire process being invalidated; or

4. Denial of the application. [Ord. 2451, 12-2-96. Code 2001 § 151.076.]

15.100.270 Procedure for published notice on Type III and Type IV procedures.

A. Notice shall be provided within a newspaper of general circulation within the city at least 10 days prior to the first public hearing on the action.

B. The notice shall reasonably describe:

1. Type III Proceedings. The proposed development permit request, location, file number, the name and phone number of a local government contact person and the location where information may be examined.

2. Type IV Proceedings. The nature of the proposed final action of an amendment to the Newberg comprehensive plan, code or new land use regulation.

C. The notice shall include a statement that all interested persons may appear and provide testimony and that only those persons who participate either orally or in writing in the hearing proceedings leading to the adoption of the action may appeal the decision.

D. The notice shall state the place, date and time of the hearing.

E. See NMC 15.100.240 for Type III notice for annexations. [Ord. 2451, 12-2-96. Code 2001 § 151.077.]

Article V. Hearing

15.100.280 Challenges to impartiality.

A. Except for Type IV hearings, an affected party or a member of a hearing body may challenge the qualifications of a member of the hearing body to participate in the hearing and decision. The challenge shall state by affidavit the facts relied upon by the challenger relating to a person’s bias, prejudgment, personal interest, or other facts from which the challenger has concluded that the member of the hearing body cannot participate in an impartial manner. Except for good cause shown, challenge shall be delivered by personal service to the director not less than 48 hours preceding the time set for the public hearing.

B. The director shall attempt to notify the person whose qualifications are challenged prior to the meeting. The challenged person shall have an opportunity to respond orally and in writing to the challenge. The challenge shall be incorporated into the record of the hearing. [Ord. 2451, 12-2-96. Code 2001 § 151.090.]

15.100.290 Disqualification.

Except for Type IV hearings, no member of a hearing body may participate in a discussion of the proposal or vote on the proposal when any of the following conditions exist:

A. Any of the following have a direct or substantial financial interest in the proposal: the member or member’s spouse, brother, sister, child, parent, father-in-law, mother-in-law, any business in which the member is then serving or has served within the previous two years, or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment.

B. The member owns property within the area entitled to receive notice of the public hearing.

C. The member has a direct private interest in the proposal.

D. For any other valid reason, the member has determined that participation in the hearing and decision cannot be in an impartial manner. [Ord. 2451, 12-2-96. Code 2001 § 151.091.]

15.100.300 Participation by interested officers or employees.

No officer or employee of the city who has a financial or other private interest in a proposal may participate in discussion with or give an official opinion to the hearing body on the proposal without first declaring for the record the nature and extent of such interest. [Ord. 2451, 12-2-96. Code 2001 § 151.092.]

15.100.310 Ex parte contacts.

Except for Type IV hearings, the general public has a right to have hearing body members free from prehearing or ex parte contacts on the matter to be heard. It is recognized that a countervailing public right is free access to public officials on any matter.

Hearing body members shall reveal any significant prehearing or ex parte contacts with regard to any matter at the commencement of the public hearing on the matter. If such contacts have impaired the members’ impartiality or ability to vote on the matter, 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, on the subject to which the communication relates, with the member at the commencement of the public hearing on the matter. [Ord. 2451, 12-2-96. Code 2001 § 151.093.]

15.100.320 Abstention or disqualification.

Except for Type IV 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 and shall not participate in the deliberation of the hearing body. [Ord. 2451, 12-2-96. Code 2001 § 151.094.]

15.100.330 Rights of abstaining or disqualified member.

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 abstention from voting on the proposal, vacating the seat on the hearing body, physically joining the audience, and making full disclosure to the hearing body.

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 to resolve the issues.

C. Except for Type IV hearings, a member absent during the presentation of evidence in a hearing may not participate in the deliberations or decision unless the member has reviewed the evidence received. [Ord. 2451, 12-2-96. Code 2001 § 151.095.]

15.100.340 Burden and nature of proof.

Except for Type IV determinations, the burden of proof is upon the proponent. The proposal must be supported by proof that it conforms to the applicable requirements of this code. [Ord. 2451, 12-2-96. Code 2001 § 151.096.]

15.100.350 Order of proceedings.

An order of proceeding for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate:

A. Before receiving information on the issue, the following shall be determined:

1. Any objections on jurisdictional grounds shall be noted in the record and if there is objection, the hearing body has the discretion to proceed or terminate.

2. Any abstentions or disqualifications shall be determined.

B. The presiding officer may take official notice of known information related to the issue, such as:

1. A provision of the charter, state law, ordinance, resolution, rule, or officially promulgated policy of the city.

2. Other public records and facts judicially noticeable by law.

C. Matters officially noticed need not be established by evidence and may be considered by the hearing body in the determination of the matters. Parties requesting notice shall do so on the record. However, the hearing body may take notice of matters listed in subsection (B) of this section if stated for the record. Any matter given official notice may be rebutted.

D. The hearing body may view the area in dispute with or without notification to the parties, but shall place the time, manner, and circumstances of such view in the record.

E. Information shall be received from the staff and from proponents and opponents. The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.

F. When the hearing has ended, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided. [Ord. 2451, 12-2-96. Code 2001 § 151.097.]

15.100.360 Record of proceedings.

The secretary to the hearing body shall take minutes at each hearing and shall cause the proceedings to be recorded.

A. Minutes from the meeting shall be transcribed and made available for public review within 45 days of the proceeding.

B. The hearing body shall, where practicable, retain as part of the hearing record each item of physical or documentary evidence presented and shall have the items marked to show the identity of the person offering the item and whether presented on behalf of a proponent or opponent. Exhibits received into evidence shall be retained in the hearing file until after the applicable appeal period has expired or in accordance to the city’s records retention schedule, whichever retention is longer, at which time the exhibits may be released to the person identified on the exhibit, or otherwise disposed of.

C. Included in the record shall be a brief statement that explains the criteria and standards considered relevant to the decision; states the facts relied upon in rendering the decision; and explains the justification for the decision based on the criteria, standards and facts set forth.

D. Any person shall have access to the record of proceedings, copies of which shall be made available in accordance to the city’s records request policy. [Ord. 2733 Att. A, 2-7-11; Ord. 2451, 12-2-96. Code 2001 § 151.098.]

Article VI. Development Permit

15.100.370 Development permit required.

A. Except as excluded by NMC 15.100.380, no person may engage in or cause to occur a development without first obtaining a development permit through the procedures set forth in this code.

B. No person shall create a street or dedicate land to the public without first obtaining a development permit.

C. No land may be divided without first obtaining a development permit.

D. If a proposed development complies with the requirements of this code, the director shall issue a development permit.

E. Unless appealed, a decision on a development permit shall be final upon the expiration of the period provided for filing an appeal or, if appealed, upon a decision by the reviewing body. [Ord. 2451, 12-2-96. Code 2001 § 151.110.]

Penalty: See NMC 15.05.120.

15.100.380 Exclusions from development permit requirement.

The following activities do not require a development permit, except as required by Chapter 15.342 NMC:

A. Landscaping not involving a structure. Landscaping does not include the paving of a parking lot.

B. An emergency measure necessary for the immediate safety of persons or the protection of property. An application for a development permit shall be filed promptly if the action otherwise would require a development permit but for the emergency.

C. Farming.

D. The establishment, construction, maintenance, or termination of the following authorized public facilities and utilities:

1. Streets, sidewalks, wastewater systems, stormwater systems and water lines if constructed by a governmental entity within an existing street right-of-way;

2. Electrical power and gas distribution lines located outside of a street right-of-way;

3. Telephone and television cable transmission lines located outside of a street right-of-way.

E. Excavations or filling of land not regulated by Chapter 70 of the Oregon Structural Specialty Code.

F. Exclusion from a development permit does not exempt the development or its use from complying with all other applicable requirements of this code, or the laws of the state or federal government. [Ord. 2451, 12-2-96. Code 2001 § 151.111.]