50.07.003 REVIEW PROCEDURESCode Interpretations Revised 2/20

1. APPLICATIONCode Interpretations Revised 2/20

a.    Application for Development

i.    Forms and Information

An application for a ministerial, minor, or major development shall be made on such forms and contain such information as the City Manager may require. If a railroad-highway crossing provides or will provide the only access to land that is the subject of the application, the applicant shall indicate that fact in the application.

ii.    Unified Site Plan

All development in the R-0, R-2, R-3, R-W, CI and any PF or commercial zones and attached development in the R-5 zones will be developed under a unified site plan. The site plan will identify circulation patterns and access points, method of provision of public services and general placement of lots and structures, and general area and type of uses. Proposals with multiple ownerships shall include a written agreement of all owners that development of the site will occur pursuant to the site plan approved.

iii.    Traffic Impact Study (TIS) Required

(1)    The purpose of a traffic impact study is to:

(a)    Ensure that the existing and proposed transportation facilities in the vicinity of the proposed development are capable of accommodating the amount of traffic expected to be generated by the proposed development;

(b)    Protect future operations and safety of transportation facilities and major transit corridors, and implement the Comprehensive Plan and Transportation System Plan.

(2)    The City Engineer shall require a traffic impact study when any of the following conditions are met:

(a)    The proposed development or site modification will generate at least 25 trips in the roadway peak hour traffic period or at least 250 daily trips, prior to applying trip reduction factors; or

(b)    The site is subject to a Zoning Map or text amendment or Comprehensive Plan or Map amendment that increases the intensity (potential vehicle trip generation) of allowed uses; or

(c)    The daily use of the property increases by ten or more vehicles with a gross vehicle weight rating of 26,000 pounds or greater; or

(d)    The traffic generated by a proposed development will result in a traffic volume increase that could potentially change the functional classification of an existing or planned transportation facility (e.g., traffic volume exceeds local street classification; or

(e)    The City Engineer finds:

(i)    The City or other roadway authority has documented traffic safety or operations concerns within the study area, such as frequent crashes, poor roadway alignment, limited sight distance; or

(ii)    Existing level of service of a nearby intersection is at or below LOS "D"; or

(iii)     A proposed development is expected to alter traffic patterns on a local street or neighborhood collector within one-half mile of the subject lot such that access to individual properties or traffic safety is adversely impacted; or

(iv)    The site lies within one-quarter mile of the ramp terminal of an interstate freeway, as traveled along roadways.

(3)    The traffic impact study shall be conducted by a registered Oregon civil or traffic engineer with special training and experience in transportation analysis and planning, and shall either follow the TIS guidelines, approved by the City Engineer, or provide justification from a registered traffic engineer as to why the TIS guidelines should not be followed in that instance. The City Engineer shall issue TIS guidelines, which at a minimum shall address:

(a)    Identification of the study area;

(b)    Analysis of existing transportation conditions, including, as applicable, level of service and safety deficiencies, if any, on transportation facilities within the study area;

(c)    Future conditions (trip generation and trip distribution) for the proposed development;

(d)    Projected levels of service on intersections within the study area;

(e)    Analysis of impacts from projected traffic on applicable surface modes of travel (vehicular, freight, bicycle, pedestrian, and transit), including as applicable level of service, safety, and capacity for streets within the study area;

(f)    A recommendation of necessary transportation improvements or other measures to mitigate deficiencies identified by the TIS and ensure a Level of Service "E" or better at peak hour traffic period for intersections within the study area, after the future traffic impacts generated by the development are considered.

The applicant’s engineer shall certify the TIS by providing a signature and engineer stamp or seal.

[Cross-Reference: See City Engineer’s Traffic Impact Study (TIS) Guidelines.]

b.    Burden of Proof

The applicant for a development permit shall bear the burden of proof that his or her application complies with all applicable review criteria or can be made to comply with applicable criteria by imposition of conditions of approval.

c.    Method of Application/Authority to Reject Applications

i.    An application for a development permit shall be filed with the City Manager. The City Manager may charge an application fee to process a development permit application.

ii.    The City Manager may decline to accept an application that, on its face, has not completed any one or more of the procedural requirements:

(1)    Pre-application conference, when required by this Code or as required by the City Manager, pursuant to LOC 50.07.003.1.e;

(2)    Neighborhood contact and notice, when required by LOC 50.07.003.1.f;

(3)    Payment of the filing fee, as required by this section.

(4)    Failure of the applicant to sign the application, or when the applicant is not the owner of the subject property, failure of the owner of the subject property to either sign the application or for the applicant to include the owner’s signed authorization for the applicant to file the application.

d.    Signature on Application

The applicant shall sign the application. If the applicant is not the owner of the property subject to the development application, the property owner shall authorize the application in writing before the City Manager may accept the application for review. For the purposes of this section, "owner" includes a public body or public agency with authority to exercise the power of eminent domain.

e.    Pre-Application Conference

i.    A pre-application conference with the City Manager is required for:

(1)    Minor and major development permit applications; and

(2)    Ministerial permit application for any type of accessory dwelling unit (ADU) that is not a conversion of existing floor area (including the garage floor area) in a primary structure. An ADU created by an addition to a primary structure is not a conversion. An ADU that is located in an accessory structure is not a conversion.

Exception: Exterior paint color review on nonhistoric buildings; modifications to an approved development permit where there is no increase in the intensity of the use and no new building permit would result; City projects to construct a nonhabitable structure not abutting a residential property; and minor variance to the fence standards when proposed to resolve a code enforcement citation.

Pre-application conferences must be scheduled by the applicant prior to submitting an application for development or prior to submitting for a building permit for an ADU that is not a conversion.

ii.    A pre-application conference is not required for ministerial applications except for accessory dwelling units as required in subsection 1.e.i of this section, but may be scheduled at the request of the applicant or when required by the City Manager.

iii.    The purpose of the pre-application conference is to discuss the proposal, the applicable criteria and the requirements for completing an application. A copy of an adopted neighborhood plan shall also be provided to the applicant, regardless whether its provisions constitute criteria for the proposed development or not.

An applicant may request one or more additional pre-application conferences in order to discuss any changes in the applicable criteria and application requirements that may occur between the date of the pre-application conference and the filing of the development permit application.

iv.    The development permit application must be filed within one year from the date of the pre-application conference; if the development permit application is not filed within one year, a new pre-application conference is required unless the applicant requests and the City Manager approves a waiver of the additional pre-application conference.

f.    Neighborhood Contact and Notice Required for Certain Applications

Following a pre-application conference, and prior to submittal of an application, the applicant shall contact and discuss the proposed development with any affected neighborhood for the following development applications:

•    A partition, subdivision, or a major development, or

•    Any other development permit if the City Manager deems neighborhood contact to be beneficial.

i.    Purpose

The purpose of neighborhood contact is to identify potential issues or conflicts regarding a proposed application so that they may be addressed prior to filing. This contact is intended to result in a better application and to expedite and lessen the expense of the review process by avoiding needless delays, appeals, remands or denials. The City expects an applicant to take the reasonable concerns and recommendations of the neighborhood into consideration when preparing an application. The City expects the neighborhood association to work with the applicant to provide such input.

The City recognizes that potential impacts of development, such as stormwater runoff, traffic, noise or impacts on natural resources, may affect not only the area immediately surrounding the site of the proposed development, but the neighborhood in which the site is located, and adjacent neighborhoods.

ii.    Selecting Date, Time, and Location of Neighborhood Meeting

In establishing the date, time and location of the meeting with the neighbors and with the neighborhoods:

(1)    Procedure

The applicant shall follow the applicable procedures in subsections 1.f.ii(1)(a)(i) and (ii) of this section.

(a)    Required Organizations

(i)    Recognized Neighborhood Association. Where the proposed development is within the boundaries of a recognized neighborhood association, the applicant shall provide the chair of the neighborhood association in which the site proposed for development is predominantly located three alternative meeting options (on three different days, with at least seven days between the first and the last date proposed).

(ii)    County Community Planning Organizations (CPOs). Where the proposed development is within the boundaries of a County-recognized CPO, or equivalent, the applicant shall provide the chair of the County CPO in which the site proposed for development is predominantly located three alternative meeting options (on three different days, with at least seven days between the first and the last date proposed).

(iii)    Homeowners Association. Where the proposed development is not within the boundaries of a recognized neighborhood association or County CPO, but is within the boundaries of a homeowners association registered with the Oregon Secretary of State, Corporation Division, the applicant shall provide the chair, president or registered agent of the homeowners association (according to the records of the Oregon Secretary of State) three alternative meeting options (on three different days, with at least seven days between the first and the last date proposed).

(iv)    Other. Where the proposed development is not within the boundaries of a recognized neighborhood association, County CPO, or registered homeowners association, the applicant shall provide the neighborhood chair of the recognized neighborhood association closest to the site proposed for development with the three alternative dates (on three different days, with at least seven days between the first and the last date proposed).

The chair of the recognized neighborhood association or County CPO, or chair, president, or registered agent of the homeowners association, as provided above in subsections 1.f.ii(i), (ii) and (iii) of this section, shall choose from the three alternatives within seven days of either the date the applicant mailed the request to establish the date and time of the neighborhood contact meeting or upon personal receipt of the written or oral request, whichever is earlier. If the chair, president, or registered agent, as applicable, fails to select the date and time of the meeting within the seven-day period, the applicant may establish the date and time of the meeting from one of the proposed alternatives.

(b)    Date, Time, and Location

Unless approved by the chair of a recognized neighborhood association:

(i)    The meeting shall not be held on a legal holiday or the day before, as defined in ORS 187.010 (Sundays and listed holidays are "legal holidays").

(ii)    The meeting shall be scheduled to commence during the evening between 6:00 and 8:00 p.m. not less than 20 days from the date of mailing of the notice.

(iii)    The meeting shall be held at a location open to the public within the boundaries of the association, County CPO, or homeowners association, as applicable under subsection 1.f.ii(1)(a)(i) and (ii) of this section, in which the proposed development is predominately located or at a public facility within the City of Lake Oswego.

(iv)    If the meeting is held at a private residence or business, it shall be posted at the time of the meeting at the meeting place and shall note that the meeting is open to the public and all interested persons may attend.

iii.    Notice to Neighborhoods, Property Owners and Residents of Neighborhood Meeting

(1)    The applicant shall contact by letter:

(a)    All recognized neighborhood associations whose boundaries contain all or part of the site of the proposed development;

(b)    All recognized neighborhood associations that are adjacent to those neighborhood(s) described in subsection 1.f.iii(1)(a) of this section; and

(c)    All property owners within 300 ft. of the site; provided, however, if there are less than 50 properties (excluding City-owned properties) within 300 ft. of the boundaries of the site, the notice area pursuant to this subsection shall be expanded, by ten-ft. increments outward from the 300-ft. boundary, until at least 50 properties (excluding City-owned properties) are included in the notice area.

(2)    The letter shall briefly describe the nature and location of the proposed development, and invite the associations and interested persons to a meeting to discuss the proposal in more detail.

(3)    On the same date the letters described above are mailed, the applicant shall provide and post notice on the property subject to the proposed application. The notice shall be posted at a location visible from the public right-of-way. The notice shall state that the site may be subject to a proposed development (e.g., partition, subdivision, major development, or as otherwise required by the City Manager) and shall set forth the name of the applicant and a telephone number where the applicant can be reached for additional information. The site shall remain posted until the conclusion of the meeting.

iv.    Manner of Providing Letter Notice of Neighborhood Meeting

(1)    Mailed Notice

The letters required by subsection 1.f.iii(1) of this section shall be sent as follows:

(a)    For recognized neighborhood associations:

(i)    By first class mail, and electronic mail if provided, to the chairs of the neighborhood associations, County CPO, or homeowners association; and

(ii)    By first class mail to the other officers of the recognized neighborhood associations; and

(b)    For property owners, by first class mail. The names and mailing addresses of the property owners shall be as shown by the most recent property tax assessment roll.

v.    Recording the Neighborhood Meeting

The neighborhood associations, the applicant, and any interested person shall have the option of audiotaping the meeting. However, it is not a requirement that the meeting be audiotaped.

vi.    Applicant’s Presentation at Neighborhood Meeting

The applicant shall provide details in the neighborhood meeting that convey the appearance (materials and colors), site design, density, natural resources protection areas, arrangement of uses, access and other relevant visual information that would be included in a complete application for the type of development proposed.

vii.    Meeting Minutes/Neighborhood Association Concerns

(1)    The applicant shall prepare minutes of the neighborhood meeting. The minutes shall contain a record of any verbal comments made at the meeting.

(2)    The applicant shall send a copy of the written minutes of the neighborhood meeting to the respective neighborhood association chairs that received notice of the meeting pursuant to subsections 1.f.iii(1)(a) and (b) of this section, and, if applicable, pursuant to subsections 1.f.ii(1)(a)(ii) and (iii) of this section, the chair of the County CPO, or chair, president, or registered agent of the homeowners association, within 14 days following the meeting.

(3)    Each neighborhood association chair, chair of the County CPO, or chair, president, or registered agent of the homeowners association, as applicable, or representative thereof, shall submit a list of the respective neighborhood’s concerns, if any, to the City and the applicant within 14 days following the mailing of the minutes by the applicant to the neighborhood association chair or the chair’s designated representative.

(4)    The neighborhood association chairs, chair of the County CPO, or chair, president, or registered agent of the homeowners association, as applicable, shall be allowed to supplement the record with any additional comments regarding the content of the meeting, as long as such comments are filed before the record is closed.

viii.    Applicant’s Documents Filed with Application

An application shall not be accepted for filing unless and until the applicant demonstrates compliance with this section by including with the application:

(1)    A copy of the letter to the chairs of the recognized neighborhood associations, County CPO, or homeowners association;

(2)    A copy of the letter to officers of the associations and to property owners and residents pursuant to subsection 1.f.iv of this section, including an affidavit of mailing and a copy of the mailing list containing the names and addresses of such owners and residents;

(3)    A copy of the required posted notice, along with an affidavit of posting;

(4)    A copy of the minutes of the meetings, and copies of any written comments from property owners, residents, and neighborhood association members; and

(5)    A copy of the materials that were presented at the neighborhood association meeting.

g.    Determination of Completeness

i.    The purpose of this subsection and subsections 1.g.ii and iii of this section is to codify the statutory maximum review period in the applicable ORS 197.311 (Final Action on Application for Certain Residential Developments Required Within 100 Days) or 227.178 (Final Action on Certain Applications Required Within 120 Days) (referred to herein as the "Maximum Review Period Rule"). In the event of a difference in procedure for determining when an application is complete, the provisions of then ORS 197.311 or 227.178 shall supersede any inconsistent provisions of this subsection and subsections 1.g.ii and iii of this section. This subsection and subsections 1.g.ii and iii of this section are applicable only to those minor and major development applications that are subject to the requirements of the Maximum Review Period Rules under state law.

The City Manager shall review the application and determine whether it is complete. The City Manager shall mail a written notice of such determination within 30 days of the date of filing of the application. If the City Manager determines that the application is incomplete, the City Manager shall inform the applicant in the written notice of the additional information necessary to make the application complete. The application shall be complete at such time as:

(1)    All of the missing information is submitted;

(2)    Some of the missing information is submitted and written notice from the applicant that no other information will be provided; or

(3)    Written notice from the applicant is submitted that none of the missing information will be provided.

The applicant shall have 180 days to complete the application.

If the City Manager fails to mail notice of the determination within 30 days from the date of filing of an application, the application shall be deemed complete on the 31st day following filing of the application for the purposes of the applicable Maximum Review Period Rules.

ii.    When the City Manager determines the application is complete, the City Manager shall inform the applicant of the completeness by mail. A copy of the completeness letter shall also be mailed to the affected neighborhood associations identified in LOC 50.07.003.1.f.iii(1)(a) and (b). Within ten days of the mailing of the notice of completeness to the respective neighborhood associations, the chair, or the chair’s representative, of any of the noticed neighborhood associations may request a meeting with the City Manager to discuss the application. The purpose of this meeting is to identify issues. No evidence or argument presented at this meeting shall be deemed to be made part of the record; any evidence or argument shall be submitted in the manner required by LOC 50.07.003.3, Public Notice/Opportunity for Public Comment, or LOC 50.07.003.15.b.i, and LOC 50.07.003.4.a, Conduct of the Hearing. If a meeting is requested, the applicant shall be notified of the meeting and invited to attend the meeting.

iii.    A final decision on an application, including resolution of all appeals, shall be rendered within the applicable Maximum Review Period Rules after the application is deemed complete pursuant to ORS 197.311 or 227.178.

iv.    Nothing in this section shall be deemed to be a limitation on the City’s ability to render a final decision on a land use application after the expiration of the applicable Maximum Review Period Rule.

h.    Extensions or Continuances

i.    Extension to File Completed Application. The applicant for a major or minor development may request one additional 180-day extension for filing a complete application.

[Editor’s Note: ORS 227.178(3), the statute that this subsection is based on, declares the application void if the information or a request to proceed based upon the application as previously submitted is not submitted by the 180th day. The City Attorney’s Office concludes that this subsection is therefore superseded by ORS 227.178(3), and no extensions to the 180-day "additional information" period are permissible.]

ii.    Extension to Complete Review and Decision on Application. The applicant for a major or minor development may request in writing a specified period of time for a continuance of review of a complete application. A request for an extension or continuance shall be deemed a waiver of the applicable Maximum Review Period Rule deadline contained in ORS 227.178 for the period of the extension or continuance, and for any additional time required for rescheduling or renoticing review proceedings. The total of all extensions for review of a complete application may not exceed 245 days.

i.    Withdrawing an Application

An applicant may withdraw an application at any time prior to adoption of a final City decision on the application. Proceedings on the application shall terminate as of the date of withdrawal. The City Manager may refund all or part of the application fee, depending on how much staff work had been completed at the time of withdrawal.

j.    Modification of Pending Application

i.    Modifications of a pending application shall be considered under the standards in effect at the time the application was filed, if the modification:

(1)    Does not increase the amount of required parking, square footage, or the number of dwelling units; or

(2)    Does not change the form of a structure.

ii.    Any modification that does not comply with subsection 1.j.i of this section shall be considered a new application.

(Ord. 2832, Amended, 01/07/2020; Ord. 2797, Amended, 11/06/2018; Ord. 2784, Amended, 07/03/2018; Ord. 2783, Amended, 06/19/2018; Ord. 2732, Amended, 02/21/2017; Ord. 2725, Amended, 12/06/2016; Ord. 2643, Amended, 11/04/2014; Ord. 2612-A, Amended, 05/21/2013; Ord. 2579, Repealed and Replaced, 03/20/2012)

2. FEES AND DEPOSITS

a.    The City may charge fees and deposits for applications, plan reviews, inspections, interpretations, appeals, or any other action pursuant to this Code. Such fees shall be established by resolution of the City Council. The City Manager shall review application fees annually and shall recommend proposed fees and fee changes to the Council.

b.    The filing fee requirement shall not apply to appeals filed by the Oregon State Department of Land Conservation and Development or to appeals filed by recognized neighborhood associations entitled to receive notice of a pre-application neighborhood meeting.

(Ord. 2579, Repealed and Replaced, 03/20/2012)

3. PUBLIC NOTICE/OPPORTUNITY FOR PUBLIC COMMENTCode Interpretations Revised 2/20

a.    Written and Posted Notice for Minor Development

Prior to making a final decision on a minor development permit application, notice of the opportunity to comment upon an application and, if applicable, the date of a public hearing upon the application shall be given as follows:

i.    Notice to Property Owners

The City Manager shall provide written notice to property owners within 300 ft. of the entire contiguous site for which the application is made. Except for residential infill design review (RID) applications, if there are fewer than 50 properties (excluding City-owned properties) within 300 ft. of the site, the notice area shall be expanded by ten-ft. increments outward from the 300-ft. boundary until at least 50 properties (excluding City-owned properties) are included in the notice area. The list shall be compiled from the most recent property tax assessment roll.

ii.    Notice to Neighborhood Associations

Written notice shall also be sent to:

(1)    Any recognized neighborhood association(s) whose boundaries either contain part or all of the site; and

(2)    All adjacent recognized neighborhood associations (adjacent recognized neighborhood associations are those associations which share boundaries with the neighborhood(s) identified in subsection 3.a.i(2)(a) of this section, and include recognized neighborhood associations that are separated from the neighborhood association(s) identified above by a street or stream).

iii.    Notice to Other Jurisdictions and Affected Roadway and Railroad Authorities

Written notice shall be provided to:

(1)    Oregon Department of Transportation and the affected railroad company if the application indicates that a railroad-highway crossing provides or will provide the only access to land that is the subject of the application; and

(2)    A city or county or state where that jurisdiction’s boundary or transportation facility is within one-half mile of the boundary of the development site.

The City Manager may give additional notice of application to other governmental entities as deemed appropriate, e.g., TriMet.

iv.    Notice for Development within the Greenway Management Overlay District

In addition to the notification required above, the City shall notify the Oregon State Department of Transportation by first class mail (or electronic mail if consented to) immediately upon receipt of a complete application for development, change or intensification of use in the Greenway Compatibility Review Boundary area and shall notify the Department of final actions taken on the applications.

v.    Contents of Notice

The notice required by this section, above, shall:

(1)    Provide a 14-day period for submission of comments prior to the decision;

(2)    State the place, date and time that comments are due;

(3)    State that issues which may provide the basis for an appeal to the Land Use Board of Appeals shall be raised with sufficient specificity to enable the City to respond to the issue;

(4)    List, by commonly used citation, the applicable criteria for a decision;

(5)    Set forth the street address or other easily understood geographical reference to the subject property;

(6)    If the application concerns a specific location, include a map identifying the subject site in relation to the nearby neighborhood and streets;

(7)    State that copies of all evidence relied on by the applicant are available for review, and that copies can be obtained at cost;

(8)    Include the name and phone number of the City Manager or such other City staff person as may be assigned by the City Manager to review the application; and

(9)    For a similar use analysis, a description of the proposed use.

vi.    Posted Notice

Within three business days after the mailing date of the notices in LOC 50.07.003.3.a.i through iv, the City shall post notice on the property subject to the proposed application. The notice shall be posted at a location visible from the public right-of-way. The notice shall state:

(1)    That the site is the subject of a proposed development application,

(2)    The name of the applicant,

(3)    The name and telephone number of the staff coordinator for the application,

(4)    The deadline for submission of written comments,

(5)    The date of the public hearing, if applicable,

(6)    That a copy of the mailed notice (which includes a listing of the criteria for the decision) can be obtained from the planning coordinator.

The site shall remain posted until the conclusion of the date for submission of comments and, if applicable, the date set for the first evidentiary public hearing upon the application.

The City Manager shall certify that such notice was given.

b.    Reserved

c.    Notice for Initial Public Hearing for Minor and Major Development

i.    Notice of a public hearing before a hearing body containing the information required below shall be mailed at least 20 days before the initial public hearing as follows:

(1)    To the applicant;

(2)    To property owners in the same manner as provided in LOC 50.07.003.a.i;

(3)    To neighborhood associations in the same manner as provided in LOC 50.07.003.a.ii;

(4)    To a:

(a)    City and county when the lot is within one-half mile of the City’s or county’s boundary;

(b)    City, county, and ODOT when the lot is within one-half mile of the City’s, county’s or state’s transportation facility; and

(c)    Railroad company when the railroad-highway crossing provides or will provide the only access to land that is the subject of the application.

(5)    Persons filing comments within any comment period: If the hearing regards an appeal of a City Manager decision on a minor development application, to any person not otherwise required to be notified by this section who submitted comments during the 14-day comment period.

ii.    Nothing in subsection 3.c.i of this section shall preclude the City Manager from providing additional public notice as the City Manager deems appropriate.

iii.    Except as otherwise provided in subsection 3.c.iv of this section, the notice shall:

(1)    Explain the nature of the application and the use or uses which could be authorized;

(2)    List the applicable criteria from the ordinance and plan that apply to the application at issue;

(3)    Set forth the street address or other easily understood geographical reference to the subject property;

(4)    If the application concerns a specific location, include a map identifying the subject site in relation to the nearby neighborhood and streets;

(5)    State the date, time and location of the hearing;

(6)    State that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the hearing body an opportunity to respond to the issue precludes appeal to the City Council and the Oregon State Land Use Board of Appeals on that issue;

(7)    Include the name and phone number of the City staff person assigned to the application from whom additional information may be obtained;

(8)    State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;

(9)    State that a copy of the staff report will be available for inspection at no cost at least ten days prior to the hearing and will be provided at reasonable cost; and

(10)    Include a general explanation of the requirements for submission of testimony and the procedure for conduct of the hearing.

iv.    In addition to the mailed notice above, notice shall be given by posting upon the subject property in the same manner as required by LOC 50.07.003.3.a.vi.

[Editor’s Note: Per LOC 50.07.004.5, notification of a circulation analysis is required if a minor development is subject to the Street Connectivity Development Standard.]

d.    Notice for Legislative Hearing

Notice of a hearing on a legislative decision shall be published at least once in a newspaper of general circulation in the City of Lake Oswego at least ten days in advance of the hearing. Notice shall also be mailed at least ten days in advance to the Committee for Citizen Involvement and to all recognized neighborhood associations. The notice shall include:

i.    The time, date, and place of the public hearing;

ii.    A brief description of the proposed legislative amendment; and

iii.    A phone number for obtaining additional information.

(Ord. 2832, Amended, 01/07/2020; Ord. 2783, Amended, 06/19/2018; Ord. 2732, Amended, 02/21/2017; Ord. 2725, Amended, 12/06/2016; Ord. 2668, Amended, 12/01/2015; Ord. 2644, Amended, 04/07/2015; Ord. 2643, Amended, 11/04/2014; Ord. 2579, Repealed and Replaced, 03/20/2012)

4. HEARINGS

a.    Conduct of the Hearing

The Chair of the hearing body shall conduct the initial evidentiary hearing on a major development application or an appeal of a decision on a minor development as follows:

i.    The Chair shall open the hearing by stating the general nature of the application, followed by a summary of these procedures.

ii.    The Chair shall ask whether any member of the hearing body has any potential bias, conflict of interest, or had ex parte contact. "Ex parte contact" is any contact regarding the subject application outside of the public hearing, including a site visit. Ex parte contact does not include contact with City staff members. Any member of the hearing body who has bias, a conflict of interest, or has had an ex parte contact shall explain the nature of such bias, conflict or ex parte contact.

iii.    The Chair shall next ask if there is any challenge to a hearing body member’s right to consider the application. Unless the challenge is based upon information revealed pursuant to subsection 4.a.xi(2) of this section, a challenging party must deliver a written document setting forth the reasons and authority for such challenge to the member challenged and the hearing body Chair at least 24 hours prior to the hearing.

iv.    The Chair shall next call for presentation of the staff report. Staff shall list the applicable substantive criteria and shall explain the reasons behind the City Manager’s recommendation or decision, in the case of an appeal.

v.    The Chair shall state that evidence and testimony must be directed to the applicable criteria described by staff or to other criteria in the Comprehensive Plan or land use regulations which the person believes to apply to the decision. The Chair shall also state that failure to raise an issue accompanied by statements or evidence sufficient to afford the decision-maker and the parties an opportunity to respond precludes appeal to the City Council or LUBA on that issue.

vi.    The Chair shall call for the applicant’s testimony.

vii.    The Chair shall call for other evidence or testimony in support of the application.

viii.    The Chair shall call for evidence or testimony in opposition to the application.

ix.    The Chair shall call for neutral evidence or testimony.

x.    The Chair shall call for rebuttal by the applicant. The applicant’s rebuttal is limited to responding to testimony previously submitted and shall be based solely on the evidence in the record. If the applicant submits new evidence in aid of rebuttal, the Chair shall allow any person to respond to that evidence, and provide for final rebuttal by the applicant.

xi.    Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence or testimony regarding the application. The hearing body shall grant such request by continuing the hearing pursuant to subsection 4.a.xi(1) of this section or leaving the record open for additional written evidence or testimony pursuant to subsection 4.a.xi(2) of this section.

(1)    If the hearing body grants a continuance, the hearing shall be continued to a date, time and place certain at least seven days from the date of the initial evidentiary hearing. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence and testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to submit additional written evidence or testimony for the purpose of responding to the new written evidence.

(2)    If the hearing body leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days. Any participant may file a written request with the City for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearing body shall reopen the record for a specific period of time. During this period, any person may submit written testimony raising new issues which relate to the new evidence, testimony or criteria for decision-making which apply to the matter at issue.

(3)    A continuance or extension granted pursuant to this section shall be subject to the applicable Maximum Review Period, unless the continuance or extension is requested or agreed to by the applicant.

xii.    Unless waived by the applicant, the hearing body shall allow the applicant at least seven days after the record is closed to all other parties to submit final written arguments in support of the application. The applicant’s final submittal shall be considered part of the record, but shall not include any new evidence.

xiii.    If no continuance is granted and the record is not left open, or at the conclusion of such continuance or open record period and/or any additional seven-day rebuttal period granted to the applicant pursuant to subsection 4.a.xii of this section, the Chair shall return the matter to the table for deliberation and decision. The hearing body’s deliberations may include questions to or testimony by City staff regarding the criteria, evidence and testimony in the record. The hearing body may also direct questions to any person present. If any person other than City staff is questioned or allowed to make comments during deliberation, the Chair shall allow any other person to respond to such comments.

xiv.    For purposes of this section:

(1)    "Argument" means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by the proponent to a decision. "Argument" does not include facts.

(2)    "Evidence" means facts, documents, data or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision.

b.    Time Limits on Testimony

i.    The purpose of time limits on testimony is to provide all interested persons with an adequate opportunity to present and respond to testimony while at the same time ensuring that the hearing can be conducted in an efficient and expeditious manner. The following time limits on testimony shall be observed during a hearing conducted by a hearing body, subject to the right of the Chair, with hearing body consent, to amend or waive the time limits:

(1)    Twenty minutes for the applicant’s presentation;

(2)    Ten minutes for a representative of a recognized neighborhood association, homeowners association, government or government agency, or other incorporated public interest organization;

(3)    Five minutes for other persons; and

(4)    Five minutes for rebuttal.

ii.    The time limits set forth in this section shall not include time taken up resolving objections or by questions or response to questions from the hearing body.

iii.    As a general guideline, if the Chair decides to increase or decrease the time limits for testimony, the Chair shall do so in equal proportion for both the appellant and the applicant. The Chair may increase the time limit for rebuttal without increasing other time limits on testimony, however, in cases where the testimony in opposition is so complex or extensive that five minutes would not give the applicant an adequate opportunity to respond to the testimony.

iv.    Any person in attendance at the hearing may cede his or her time for testimony to a representative or another person and thereby increase that representative’s or other person’s time for testimony. No person’s or other representative’s testimony may be increased to greater than ten minutes. No person may cede his or her time to the applicant or the appellant.

c.    Testimony, Exhibits, and Other Evidence

i.    Any person may present testimony at a public hearing before a hearing body on a major development application or appeal of a minor development decision.

ii.    Any person may submit exhibits or written comments prior to or at the public hearing. Written comments or exhibits submitted prior to the public hearing must be received by the City Manager by noon on the day of the scheduled hearing to be submitted by staff at the hearing. Written comments or exhibits submitted at the hearing must be filed with the Recording Secretary and placed before the hearing body. Exhibits or written comments that are merely referred to in testimony but which are not placed before the hearing body pursuant to this section shall not become part of the record of the proceedings.

iii.    The hearing body may take official notice of all adjudicative facts and law which may be judicially noticed pursuant to ORS 40.060 to 40.090, including an ordinance, comprehensive plan, resolution, order, written policy or other enactment of the City of Lake Oswego. Matters officially noticed need not be established by evidence and may be considered by the hearing body in determination of the matter.

d.    Objections

The purpose of the hearing procedures set forth in this Code is to provide all interested persons a reasonable opportunity to participate in the hearing process and to provide a full and impartial hearing on the application or appeal before the hearing body. Any question concerning the proper conduct of a hearing held pursuant to this Code may be raised by any person during the proceeding by making an objection. The Chair shall rule on any objection, subject to the right of the hearing body to overturn the Chair’s ruling by majority vote.

e.    Preservation of Order

The Chair shall preserve order and decorum, discourage personal attacks, and confine debate to the material issues. The Chair may eject from the hearing any person in attendance who becomes disorderly, abusive or disruptive, or who fails or refuses to obey a ruling of the Chair. The Chair may summon assistance of the Lake Oswego Police to assist in maintaining order.

f.    Continuances

i.    The hearing body shall continue a public hearing or leave the record open when required to do so, pursuant to LOC 50.07.003.4.a.xi.

ii.    The hearing body may elect to continue a hearing one or more times on its own motion or at the reasonable request of a party. Any continuance or extension of the record requested by an applicant shall result in a corresponding extension of the time limitations of the applicable Maximum Review Period. If the initial evidentiary hearing has not been completed pursuant to LOC 50.07.003.4.a, the continued hearing shall resume at the point in the proceedings at which the hearing was continued. If the initial evidentiary hearing has been concluded and the hearing body desires a continuance to reopen the record for additional testimony, the continued hearing shall be conducted as provided in subsection 4.f.iii of this section. In the latter case, the hearing body may limit evidence or testimony to a particular issue or issues, but any person shall be allowed to raise new issues which relate to the new evidence, testimony or criteria for decision-making for which the hearing body continued the hearing.

iii.    Except as otherwise provided in subsection 4.f.ii of this section, a continued hearing shall be conducted as follows:

(1)    The Chair shall open the continued hearing.

(2)    The City Manager shall give a staff report which shall include the reason for the continuance.

(3)    If applicable, the Chair shall state that testimony at the hearing is limited to addressing the new documents or evidence described by staff and any new issues which relate to such documents or evidence.

(4)    The Chair shall call for the applicant’s testimony.

(5)    The Chair shall call for testimony from persons in favor of the application.

(6)    The Chair shall call for testimony from persons opposed to the application.

(7)    The Chair shall call for testimony from persons neutral on the application.

(8)    The Chair shall call for rebuttal by the applicant.

(9)    Unless an extension of the record is requested pursuant to LOC 50.07.003.4.a.xi(1), and/or the applicant exercises his or her right to final rebuttal pursuant to LOC 50.07.003.4.a.xii, the Chair shall return the matter to the table for deliberation and decision as described in LOC 50.07.003.4.a.xiii. If an extension of the record is requested and/or the applicant exercises his or her right of final rebuttal, the Chair shall continue deliberation to a time, date and place certain following final closure of the record.

iv.    Notice

No additional notice of a continued hearing is required if the hearing body continues the hearing to a date, time and place certain. If a public hearing must be continued due to lack of a quorum of the hearing body, no additional notice of the continued hearing is required if all entrances to the hearing location are posted by the time and date of the originally scheduled hearing with a conspicuous written notice setting forth a date, time and place certain for the continued hearing. In all other cases, public notice of a continued hearing shall be given pursuant to LOC 50.07.003.3.c.

g.    Decision of the Hearing Body

i.    At the conclusion of deliberations, the hearing body shall make a preliminary oral decision to approve, approve with conditions pursuant to LOC 50.07.003.5, or deny an application based upon the applicable standards and criteria and the evidence and testimony in the record. The preliminary oral decision is not a final decision. At any time prior to the adoption of the final order pursuant to subsection 4.g.ii of this section, the hearing body may modify or change its decision or choose to reopen the hearing.

ii.    The hearing body shall adopt a final written order either immediately after making its preliminary oral decision or at a public meeting within a reasonable time after making the preliminary oral decision. The final written order shall consist of a brief statement that explains the criteria and standards considered relevant, states the facts relied upon in rendering the decision and explains the justification for the decision based upon the criteria, standards and facts set forth. The order shall also contain or incorporate by reference any conditions of approval deemed necessary or appropriate by the hearing body. A proposed order may be prepared by the City Manager or may be prepared by the prevailing party subject to review and approval of the City Manager. The hearing body shall amend the proposed order if it finds that the proposed order does not accurately articulate the hearing body’s decision. Except as provided in subsection 4.g.iii of this section, the written order is the final decision on the application and the date of the order for purposes of appeal is the date on which it is adopted by the hearing body.

iii.    In the case of a major development which requires an amendment of the Comprehensive Plan, or the text or map of this Code, the hearing body’s order adopted pursuant to subsection 4.g.ii of this section shall be considered a recommendation to Council and not a final decision. The notice of the hearing body’s decision provided pursuant to LOC 50.07.003.4.h shall be modified to note that the decision is a recommendation which will be forwarded to the Council for public hearing and final decision. The Council shall review the recommendation pursuant to LOC 50.07.003.7.f through o, Appeals, and LOC 50.07.003.4.e, Preservation of Order, except that, for purposes of the appeal hearing in LOC 50.07.003.7.i, Conduct of the Appeal Hearing, the applicant shall proceed with testimony, followed by persons in favor of the application, opponents, and rebuttal by the applicant.

iv.    Motions for reconsideration of either a preliminary decision or final order filed by a party shall not be allowed. The City Manager may recommend reconsideration prior to adoption of the final order if the City Manager, in consultation with the City Attorney, believes reconsideration is necessary to correct a procedural error that prejudiced a party’s substantial rights.

h.    Notice of Decision

Notice of the decision shall be sent to the applicant and to all persons who testified either orally or in writing before the hearing body. The notice of decision shall:

i.    Include the file number, date and brief summary of the final decision;

ii.    Include the name and address of the applicant;

iii.    Include an easily understood geographical reference to the subject property and a map, if applicable;

iv.    State that a copy of the decision is available for review, and that a copy can be obtained at cost; and

v.    State that the decision may be appealed by filing a written notice of intent to appeal with the City Manager within 15 calendar days of the date of the final decision. The notice shall include the requirements for filing a notice of intent to appeal contained in LOC 50.07.003.7.d. The name, address and phone number of the City Manager shall be included in the notice.

i.    Record of Proceedings

The City Manager shall maintain a record of all proceedings on requests processed pursuant to this Code. The record of proceedings leading to approval of a request shall be maintained for a period of time to be determined by the City Manager, which shall not be less than two years from the date of the approval.

(Ord. 2797, Amended, 11/06/2018; Ord. 2732, Amended, 02/21/2017; Ord. 2643, Amended, 11/04/2014; Ord. 2579, Repealed and Replaced, 03/20/2012)

5. CONDITIONS ON DEVELOPMENTCode Interpretations

a.    The reviewing authority may impose conditions of approval on a major or minor development permit in one or more of the following circumstances:

i.    The condition is necessary to bring the application into compliance with applicable approval criteria.

ii.    The condition is required as a condition of approval, construction or implementation by the development standards, the Lake Oswego Code or state statute.

iii.    The condition is reasonably related to alleviation of a need for public services or facilities created or contributed to by the proposed development. As used in this section, "public services or facilities" includes sewer, water, surface water management, parks, open space, streets, sidewalks, and pathways.

iv.    The condition is reasonably related to eliminating or mitigating a negative impact on natural features or processes or on the built environment of the neighborhood which is created or contributed to by the proposed development. As used in this section, "natural features or processes" includes tree groves, stream corridors and natural drainage ways, significant tree(s), wetlands, and other natural areas.

v.    The proposed variance or exception to a code requirement is based on the preservation of tree(s), and the condition of approval is reasonably related to preserving the tree(s) that is the basis for the variance or exception.

b.    Conditions of approval contemplated by LOC 50.07.003.5.a include, but are not limited to:

i.    Imposition of a development schedule.

ii.    Requiring reservation or protection of land for open space or to protect significant natural features.

iii.    Requiring dedication of property, rights-of-way, easements or conservation easements for public facilities such as streets, utilities, pathways, sidewalks, surface water management and street trees, or for protection of tree groves, wetlands, stream corridors or other natural features. Dedications of property or property rights pursuant to this subsection must be based upon findings pursuant to LOC 50.07.003.5.a.iii or iv.

iv.    Requiring on-site and off-site construction of or improvements to public facilities where necessary to ensure adequate capacity and where service demand will be created or increased by the proposed development. The costs of off-site improvements may be pro-rated between the applicant and the City in proportion to the increased service demand which will be created by the project when compared to the demand existing if the project were not constructed.

v.    Requiring construction and maintenance guarantees to ensure that required public facilities are constructed to and will comply with City standards, regulations or conditions.

vi.    Requiring modifications in the design or intensity of a proposed development or to require or prohibit certain construction methods.

vii.    Requiring approval, inspection, or evaluation by another agency, jurisdiction, public utility or consultant.

viii.    Limiting the number, location or design of street accesses to a proposed development to maintain street capacity, improve safety, or otherwise comply with an approval criterion.

ix.    Requiring covenants, conditions or restrictions to be recorded against the property.

(Ord. 2643, Amended, 11/04/2014; Ord. 2579, Repealed and Replaced, 03/20/2012)

6. EFFECT OF DECISION

a.    Effective Date of a Decision

i.    Except as provided by subsection 6.a.ii of this section, a final decision approving a development permit becomes effective upon expiration of the local appeal period, unless an ordinance amendment is required in order to implement the approval. In the latter case, the approval becomes effective at the time the ordinance becomes effective pursuant to the Lake Oswego Charter. The filing of an appeal automatically stays the decision until resolution of the appeal by City appellate authorities.

ii.    A final decision of the City Council approving a development permit is effective immediately and is not stayed by appeal to Land Use Board of Appeals (LUBA), unless LUBA so orders pursuant to ORS 197.845.

b.    Effect of Decision to Approve

An approved and effective development permit is binding upon the City, the applicant and successors in interest, unless it expires, is amended or is revoked pursuant to this Code.

c.    Effect of Denial; Resubmittal

i.    A final decision denying a development permit is effective immediately.

ii.    If an application is denied and is not appealed, or the denial is affirmed on appeal, no new application for the same or a substantially similar proposal shall be filed within six months after the date of final denial. A new application shall not be considered "the same or substantially similar" if it can be modified, and is modified, to address the reasons why the original application was denied.

(Ord. 2579, Repealed and Replaced, 03/20/2012)

7. APPEALS Revised 2/20

a.    Review by Hearing Body

An application for a major development, minor developments in the R-DD zone pursuant to LOC 50.07.003.14.a.ii(1), or an appeal of a decision of the City Manager regarding a minor development application (except any minor development decision specified by this Code to be made by the City Engineer) shall be decided by a hearing body following a public hearing held pursuant to this Code.

b.    Appeal of Minor Development Decision

i.    A final decision of the City Manager on a minor development application may be appealed to a hearing body by the applicant or any person aggrieved by the decision. An appeal shall be made by filing a written request for a hearing with the City Manager within 15 calendar days of the date of decision.

Exception: Minor development decision specified by this Code to be made by the City Engineer.

For decisions made by the City Manager on historic resources, the applicant or any person aggrieved by the decision may appeal that decision. (If notice of the application was given, the person must have participated in the process leading to the Manager’s decision in order to appeal.) The City Manager shall determine if the Development Review Commission or Historic Resources Advisory Board is the appropriate hearing body based upon the nature of the decision appealed, the notice of appeal, and the expertise of the Commission and Board.

For decisions made by the City Manager on a similar use analysis, the Planning Commission is the hearing body for an appeal.

ii.    A written request for a hearing shall contain:

(1)    A reference to the City application number and date of the final decision;

(2)    A request that a hearing be held on the application;

(3)    The name, address, and signature of the appellant; and

(4)    A filing fee. The filing fee shall be set by resolution of the City Council, but shall be no more than authorized by state law. The filing fee shall be refunded if the appellant prevails at the hearing or on a subsequent appeal. The filing fee requirement shall not apply to appeals filed by the Oregon State Department of Land Conservation and Development or to appeals filed by recognized neighborhood associations entitled to receive notice of a pre-application neighborhood meeting pursuant to LOC 50.07.003.1.f.iii(1)(a) and (b).

(5)    Neighborhood Association Documentation: Not later than 5:00 p.m. on the business day prior to the public hearing for persons opposing the application, a neighborhood association shall submit documentation that the request for hearing filed on behalf of the neighborhood association was approved or is ratified in the manner provided by the association’s bylaws or by board or membership vote. If this documentation is not provided, the neighborhood association’s request for hearing shall be deemed withdrawn and the appeal shall be dismissed.

iii.    The City Manager shall reject the appeal if it is not filed within the 15-day appeal period set forth in subsection 7.b.i of this section, is not filed in the form required by subsection 7.b.ii of this section, or does not include the filing fee required by subsection 7.b.ii of this section. If the City Manager rejects an appeal, the City Manager shall so notify the appellant by letter. This letter shall include a brief explanation of the reason why the City Manager rejects the appeal. A decision of the City Manager to reject an appeal pursuant to this section is final and is not subject to appeal to the hearing body or the City Council. An appeal rejected pursuant to subsection 7.b.ii of this section may be corrected if it is refiled within the 15-day appeal period set forth in subsection 7.b.i of this section.

iv.    An appeal of a City Manager decision regarding a minor development shall be heard de novo by the hearing body pursuant to LOC 50.07.003.3.c, 50.07.003.4 and 50.07.003.15.b.i and ii.

Exception: Minor development decision specified by this Code to be made by the City Engineer.

c.    Filing an Appeal of a Hearing Body or City Engineer Decision

i.    A final decision of a hearing body or City Engineer may be appealed to the Lake Oswego City Council by the applicant, any person who appeared before the hearing body either orally or in writing regarding the application, or any person that submitted written comment to the City Engineer on the City Engineer’s decision. An appeal shall be made by filing a notice of intent to appeal with the City Manager within 15 calendar days of the date of the hearing body’s final decision.

ii.    A notice of intent to appeal shall be in writing and shall contain:

(1)    A reference to the City application number and date of the final decision;

(2)    A statement that demonstrates the appellant is the applicant or appeared either orally or in writing in front of the hearing body;

(3)    The name, address, and signature of the appellant or the appellant’s representative;

(4)    An appeal fee, if applicable, per subsections 7.b.ii(4) and (5) of this section; and

(5)    A discussion of the specific issues raised for Council’s consideration and the specific reasons why the appellant contends that the hearing body decision is incorrect or not in conformance with the applicable criteria. This requirement shall not limit, however, the right of the appellant or other persons appearing at the hearing from raising other issues that were raised before the hearing body.

Exception: For appeal of the City Engineer’s decision, a discussion of the specific issues raised for Council’s consideration and the specific reasons why the appellant contends the City Engineer’s decision is incorrect or not in conformance with the applicable criteria.

iii.    The appeal fee shall be set by resolution of the City Council. The appeal fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal.

iv.    The City Manager shall reject the appeal if it is not filed within the 15-day appeal period set forth in subsection 7.c.i of this section, is not filed in the form required by subsection 7.c.ii of this section, or does not include the filing fee required by subsections 7.c.ii and iii of this section. If the City Manager rejects an appeal, the City Manager shall so notify the appellant by letter. This letter shall include a brief explanation of the reason why the City Manager rejects the appeal. A decision of the City Manager to reject an appeal pursuant to this section is a final City decision as of the date of the letter and is not subject to appeal to a hearing body or the City Council. The appellant shall be allowed to correct a failure to comply with subsection 7.c.ii or iii of this section, if the correction can be made and is made within the 15-day appeal period provided in subsection 7.c.i of this section.

d.    Multiple Appeals; Consolidation

i.    If more than one person files a Notice of Intent to Appeal a specific hearing body decision, the appeals shall be consolidated into one proceeding. The appeal fee shall be divided equally among the multiple appellants; any amount deposited in excess of the amount determined by the City Recorder to be owed shall be refunded on a pro rata basis.

ii.    The appellants shall share the appellant’s time for testimony equally or may make such other split as they mutually agree, or the appellants may elect to have one person represent all appellants. If appeals are filed by opposing parties (i.e., an applicant for a project and a person opposed to the project), they may be consolidated into one proceeding but shall be heard separately prior to the decision. The Mayor, with Council consent, may decide to alter the time limits for testimony depending on the circumstances.

e.    Withdrawing an Appeal

A Notice of Intent to Appeal may be withdrawn at any time prior to a final decision. Proceedings on the appeal shall terminate as of the date of withdrawal. The City Manager may refund the appeal fee either in full or in part, depending on the amount of staff work expended preparing the appeal for hearing.

f.    Preparation of Record and Staff Report; Transcript

i.    Record of Hearing Body Proceedings

Following receipt of a Notice of Intent to Appeal filed in compliance with subsection 7.b of this section, the City Manager shall prepare a record for Council review containing:

(1)    All staff reports and memoranda prepared regarding the application that were presented to the hearing body;

(2)    Minutes of all hearing body proceedings at which the application was considered;

(3)    All written testimony and all exhibits, maps, documents or other written materials presented to and not rejected by the hearing body during the proceedings on the application; and

(4)    The final written order of the hearing body, or for a minor development decision of the City Engineer the written order of the City Engineer.

ii.    Staff Report

The City Manager shall prepare a staff report on the appeal explaining the basis for the decision as relates to the reasons for appeal set forth in the Notice of Intent to Appeal, and such other matters related to the appeal as deemed appropriate. The staff report shall be available for public inspection at least ten days prior to the appeal hearing.

iii.    Transcript

A verbatim transcript of the hearing body proceedings is not required. Any person who appeared before the hearing body on the application may prepare a certified verbatim transcript of all or part of the hearing body proceedings at that person’s own expense. The City Manager may prepare a certified verbatim transcript of all or part of the hearing body proceedings at the City’s expense if the City Manager deems a transcript necessary or advisable. A certified transcript prepared pursuant to this subsection shall be considered to be part of the record of the hearing body proceedings, and, if offered, shall be accepted into evidence and considered by the City Council.

g.    Notice of the Appeal Hearing

i.    Written notice of the appeal hearing before the City Council shall be sent by regular mail no later than 14 days prior to the date of the hearing to the appellant, the applicant if different from the appellant, and all persons who testified either orally or in writing before the hearing body, or, for a minor development decision of the City Engineer, submitted written testimony to the City Engineer.

ii.    Notice of the hearing shall:

(1)    Reference the applicable Planning Department file number or numbers;

(2)    Set forth the street address or other easily understood geographical reference to the subject property;

(3)    State the date, time and location of the hearing;

(4)    State that an appeal has been filed, set forth the name of the appellant or appellants and contain a brief description of the reasons for appeal;

(5)    State that City Council review is confined to the record before the hearing body, that only persons who testified either orally or in writing before the hearing body may testify before the City Council, and that the only issues that may be raised before the Council are issues that were raised before the hearing body with sufficient specificity to enable the hearing body to respond;

Exception: For appeal of the City Engineer’s decision, state that City Council review is confined to the record before the City Engineer, that only persons who testified in writing may testify before the City Council, and that the only issues that may be raised before the Council are issues that were raised before the City Engineer with sufficient specificity to enable the City Engineer to respond.

(6)    Include the name and phone number of the City staff person assigned to the application from whom additional information may be obtained;

(7)    State that a copy of the decision being appealed, the application, all documents and evidence contained in the record, and the applicable criteria are available for inspection at no cost and will be provided at reasonable cost; and

(8)    Include a general explanation of the requirements for submission of testimony and the procedure for conduct of the hearing.

h.    Scope of Council Review

i.    Except as provided in subsections 7.h.ii and iii of this section, Council review is limited to the evidence in the record. No new evidence may be presented at the hearing and no person may testify unless that person appeared either orally or in writing before the hearing body or City Engineer, as applicable. No issue may be raised on appeal to the Council that was not raised with sufficient specificity to enable the hearing body and the parties or, if applicable, the City Engineer, to respond.

ii.    The City Council may take official notice of all adjudicative facts and law which may be judicially noticed pursuant to ORS 40.060 to 40.090, including an ordinance, comprehensive plan, resolution, order, written policy or other enactment of the City of Lake Oswego. Matters officially noticed need not be contained within the record and may be considered by the hearing body in determination of the matter.

iii.    The Council may reopen the record and consider new evidence if such a request is made prior to or at the Council hearing by the appellant or any person who testified before the hearing body or, if applicable, the City Engineer, and the requesting party demonstrates:

(1)    That a procedural error was committed that prejudiced the requesting party’s substantial rights and that reopening the record is the only alternative to remanding the application to the hearing body or, if applicable, the City Engineer, to correct the error; or

(2)    That new evidence material to the decision on appeal exists and could not have been initially presented. A requesting party may only qualify for this exception if he or she demonstrates that the new evidence concerns an unanticipated event which occurred after the close of the time to submit evidence. This exception shall be strictly construed by the Council in order to ensure that all relevant evidence and testimony is submitted to the hearing body or, if applicable, the City Engineer.

i.    Conduct of the Appeal Hearing Before City Council

The Mayor shall conduct a hearing on appeal pursuant to the requirements of LOC 50.07.003.4.a.i through x and 50.07.003.4.a.xiii, Conduct of the Hearing. For the purposes of this section, "Mayor" includes the Council President or any other Councilor who serves as presiding officer of the Council in the Mayor’s absence.

j.    Time Limits on Testimony

The provisions of LOC 50.07.003.4.b shall be applicable here with the following time frames substituted for those in LOC 50.07.003.4.b.i:

i.    If the appellant is the applicant:

(1)    Fifteen minutes for the applicant’s presentation;

(2)    Ten minutes for a representative of a recognized neighborhood association, homeowners association, government or government agency, or other incorporated public interest organization;

(3)    Five minutes each for other persons; and

(4)    Five minutes for the applicant’s rebuttal.

ii.    If the appellant is not the applicant:

(1)    Fifteen minutes for the applicant’s presentation, except if the time is expanded by the Mayor pursuant to LOC 50.07.003.4.b.iii;

(2)    Fifteen minutes for the appellant’s presentation. If there is more than one appellant, the appellants shall have a total of 15 minutes, unless the time is expanded by the Mayor pursuant to LOC 50.07.003.4.b.iii;

(3)    Ten minutes for a representative of a recognized neighborhood association, homeowners association, government or government agency, or other incorporated public interest organization;

(4)    Five minutes each for other persons; and

(5)    Five minutes for the applicant’s rebuttal.

k.    Presenting Testimony

i.    Any person who testified either orally or in writing before the hearing body (or for an appeal of a decision of the City Engineer, any person who testified in writing before the City Engineer) may testify either orally or in writing before the Council on appeal. Such testimony shall be limited to argument regarding issues raised before the hearing body (or City Engineer), and shall be based solely upon the record of the proceedings. Enlargements, illustrations, maps or other exhibits may be submitted as long as they are part of the record or are entirely derived from evidence in the record.

ii.    Written testimony may be submitted prior to or at the public hearing. Written testimony submitted prior to the public hearing must be received by the City Recorder by 5:00 p.m. on the day of the scheduled hearing to be submitted by staff at the public hearing. Written testimony submitted at the hearing must be filed with the recording secretary and placed before the City Council. Written comments that are merely referred to in testimony but which are not placed before the hearing body pursuant to this section shall not become part of the record of the proceedings. Written comments that attempt to present new evidence or raise new issues not presented or raised before the hearing body shall be rejected.

l.    Objections

The purpose of the hearing procedures is to provide all interested persons a reasonable opportunity to participate in the hearing process and to provide a full and impartial hearing on the application or appeal before the hearing body.

Exception: For minor development decisions of the City Engineer, the purpose of the review procedure is to provide, per ORS 197.195, all interested persons a reasonable opportunity to participate in the review process and to provide a full and impartial opportunity to comment on the application.

Any question concerning the proper conduct of a hearing held pursuant to this Code may be raised by any person during the proceeding by making an objection. The Mayor shall rule on any objection, subject to the right of the Council to overturn the Mayor’s ruling by majority vote.

m.    Continuances

i.    The Council may elect to continue a hearing one or more times on its own motion or at the reasonable request of a party. No continuance shall be granted at the request of the applicant unless the applicant waives the applicable Maximum Review Period in writing or on the record. If the hearing has not been completed pursuant to LOC 50.07.003.7.j, the continued hearing shall resume at the point in the proceedings at which the hearing was continued. If the hearing has been concluded and the Council desires a continuance to reopen the hearing for additional testimony, the continued hearing shall be conducted as provided in subsection 7.m.ii of this section. In the latter case, the Council may limit testimony to a particular issue or issues. If the appeal hearing has been concluded and the Mayor has returned the matter to the table for deliberations, the Council may continue deliberations to a date, time and place certain.

ii.    If an appeal hearing is continued to reopen the record for additional testimony, it shall be conducted as follows:

(1)    The Mayor shall open the continued hearing.

(2)    The City Manager shall give a staff report which shall include the reason for the continuance.

(3)    The Mayor shall call for the appellant’s testimony.

(4)    The Mayor shall call for testimony from persons in favor of the appeal.

(5)    The Mayor shall call for testimony from persons opposed to the appeal, beginning with the applicant, if the applicant is not the appellant.

(6)    The Mayor shall call for testimony from persons neutral on the appeal.

(7)    The Mayor shall call for rebuttal by the appellant.

(8)    The Mayor shall return the matter to the table for deliberation and decision as described in LOC 50.07.003.4.a.xiii.

iii.    Notice

No additional notice of a continued hearing is required if the Council continues a hearing to a date, time and place certain. If a public hearing must be continued due to lack of a quorum of the Council, no additional notice of the continued hearing is required if all entrances to the hearing location are posted by the time and date of the originally scheduled hearing with a conspicuous written notice setting forth a date, time and place certain for the continued hearing. In all other cases, public notice of a continued hearing shall be given pursuant to LOC 50.07.003.7.h.

n.    Decision of the Council

i.    At the conclusion of deliberations, the Council shall make a preliminary oral decision. The Council may affirm, reverse or modify the hearing body’s decision in whole or in part, or may remand the decision back to the hearing body for additional evidence or consideration. The preliminary oral decision is not a final decision. At any time prior to the adoption of the final order pursuant to subsection 7.n.ii of this section the Council may modify its decision based upon the record or choose to reopen the hearing.

ii.    The Council shall adopt a final written order either immediately after making its preliminary oral decision or at a public meeting within a reasonable time after making the preliminary oral decision. The final written order shall consist of a brief statement that explains the criteria and standards considered relevant, states the facts relied upon in rendering the decision and explains the justification for the decision based upon the criteria, standards and facts set forth. The order shall also contain or incorporate by reference any conditions of approval deemed necessary or appropriate by the Council. A proposed order may be prepared by the City Attorney or may be prepared by the prevailing party subject to review and approval of the City Attorney. The Council shall amend the proposed order if it finds that the proposed order does not accurately articulate the Council’s decision. The written order is the final decision on the application and the date of the order for purposes of appeal is the date on which it adopted by the Council.

iii.    Motions for reconsideration of either a preliminary decision or final order filed by a party shall not be allowed. The City Manager may recommend reconsideration prior to adoption of the final order if the City Manager, in consultation with the City Attorney, believes reconsideration is necessary to correct a procedural error that prejudiced a party’s substantial rights.

o.    Notice of Decision

Notice of the Council’s decision shall be sent by regular mail to the appellant, the applicant if different from the appellant, and to all persons who testified either orally or in writing before the Council. The notice of decision shall:

i.    Include the file number, date and brief summary of the final decision;

ii.    Include the name and address of the applicant;

iii.    Include an easily understood geographical reference to the subject property and a map, if applicable;

iv.    State that the decision is available for review, and that a copy can be obtained at cost; and

v.    State that the decision may be appealed by filing a written notice of intent to appeal with the Oregon State Land Use Board of Appeals (LUBA) within 21 days of the date of the final decision. The address and telephone number of the Land Use Board of Appeals shall be included in the notice.

(Ord. 2832, Amended, 01/07/2020; Ord. 2797, Amended, 11/06/2018; Ord. 2768, Amended, 01/16/2018; Ord. 2732, Amended, 02/21/2017; Ord. 2644, Amended, 04/07/2015; Ord. 2643, Amended, 11/04/2014; Ord. 2579, Repealed and Replaced, 03/20/2012)

8. REMANDS

a.    Remands from the Council to the Hearing Body

i.    An order of the City Council remanding an application to a hearing body is a final decision for purposes of appeal to LUBA. If not appealed, all issues resolved by the remand order shall be considered decided and may not be revisited on remand, unless addressing the remanded issues results in amendments to the application which change the criteria or the factual basis on which the Council based its decision regarding an issue or issues not remanded.

ii.    The hearing body shall issue public notice and hear the application on remand as provided in LOC 50.07.003.15.b.i and ii and LOC 50.07.003.3.c, except that issues shall be limited as provided in subsection 8.a.i of this section.

b.    Remands from LUBA to the City Council

When a final decision of the City Council is remanded to the City by the Oregon Land Use Board of Appeals (LUBA), the City Council shall either:

i.    Hold a hearing on remand if the issue upon which LUBA remanded the decision can be resolved by the City Council without reopening the record for additional evidence. Notice of the hearing on remand shall be given pursuant to LOC 50.07.003.7.g, Notice of the Appeal Hearing, to all persons who testified before the City Council at the public hearing or hearings that led to the decision remanded by LUBA. Instead of the explanation contained in LOC 50.07.003.7.g.ii(4), the notice shall set forth issues on remand that will be considered by the Council. The hearing shall be conducted pursuant to LOC 50.07.003.4, Hearings, except that testimony shall be limited to the issues upon which LUBA remanded the decision to the City, unless the application is amended on remand in a manner which changes the applicable criteria or the factual basis on which LUBA or the City Council based its decision regarding an issue or issues not remanded.

ii.    Remand the application to the hearing body if the issue upon which LUBA remanded the decision requires reopening the record for additional evidence. Notice of the hearing on remand shall be given pursuant to LOC 50.07.003.3.c, Notice for Public Hearing, and the hearing shall be conducted pursuant to LOC 50.07.003.4, Hearings, except that the notice of the applicable criteria and the testimony shall be limited to the criterion or criteria or the issue or issues upon which LUBA remanded the decision to the City, unless the application is modified in a manner which changes the applicable criteria or the factual basis on which LUBA or the City Council based its decision regarding an issue or issues not remanded. A decision of the hearing body on remand may be appealed to the City Council pursuant to LOC 50.07.003.7.c, Filing an Appeal of a Hearing Body Decision.

(Ord. 2643, Amended, 11/04/2014; Ord. 2579, Repealed and Replaced, 03/20/2012)

9. IMPROVEMENTS AND SECURITY

a.    Obligation to Construct Public Facilities; Security; Acceptance of Improvements

i.    When an applicant for a development permit has an obligation to construct or improve public facilities imposed as a condition of the permit, the obligation shall be fulfilled prior to the issuance of a permit for building construction on the site unless the City Manager has granted a waiver in writing of this requirement and the applicant has filed with the City Manager an acknowledgment of the obligation. The acknowledgment shall state the nature of the obligation, the time within which the obligation is to be met, identify the property subject to the obligation and contain a security deposit in a form acceptable to the City Manager and in an amount equal to 120% of the cost of fulfilling the obligation as estimated by the City Manager for the year in which fulfillment of the obligation is anticipated. A sufficient performance bond, cash deposit, or letter of credit are acceptable forms of security. Return of the security deposit shall be conditioned upon the applicant carrying out the obligation.

ii.    As an additional and separate part of the acknowledgment, the applicant shall agree to maintain the public facility for a period of one year following acceptance by the City Manager, to include but not be limited to repair, replacement and all things necessary to ensure the operational integrity of the facility, and shall provide the City with security in the amount of 10% of the cost of the improvement to insure the fulfillment of this obligation.

iii.    The security shall be forfeited to the City if the applicant does not fulfill the requirements stated in the acknowledgment. The City may use the security to complete the obligation or any part of it. Until the obligation is completed the security shall remain in the custody of the City or shall be placed in an escrow account subject to City control.

iv.    Upon receipt of written notice to the City Manager that the public facility has been completed and is ready for final inspection and acceptance, the City Manager shall within ten calendar days make such inspection. If the City Manager finds the work to be acceptable, there shall promptly be issued a final certificate stating that the work has been completed and is accepted.

(Ord. 2579, Repealed and Replaced, 03/20/2012)

10. CERTIFICATE OF OCCUPANCY

In order to assure completion of the work in the manner and at the time approved, the premises shall not be used or occupied for the purposes set forth in the permit until the City has issued a certificate of occupancy following completion of the work in substantial conformance to the permit. Prior to the final completion of all work, a certificate of occupancy may be issued for a portion of the premises or conditioned upon further work being completed by a date certain.

(Ord. 2579, Repealed and Replaced, 03/20/2012)

11. MODIFICATION OF DEVELOPMENT PERMITSCode Interpretations

a.    Modification of Approved Permit

For ministerial or minor development permits, modifications to a development permit are classified as the same type of development as the original permit and shall be reviewed under the applicable review criteria for that classification of development, except that the review criteria shall be limited to those criteria that are affected by the requested modification.

[Cross-References: See LOC 50.07.007.4.c – Planned Development zone requirement modifications; LOC 50.07.006.8, Changes to the Overall Development Plan and Schedule; LOC 50.07.005.4, Modification of Conditional Use Permit.]

(Ord. 2612-A, Amended, 05/21/2013; Ord. 2579, Repealed and Replaced, 03/20/2012)

12. EXEMPT DEVELOPMENT

a.    Classification

Exempt developments include:

i.    Landscaping or landscape alterations, unless:

(1)    Such landscaping or alterations would modify or violate a condition of approval of a prior permit. In such instance, the permit shall be processed as a modification of the prior permit;

(2)    Located within the Greenway Management Overlay District; or

(3)    Located within an RP or RC overlay district, or an RC or HBA protection area, and not exempt from the requirements of the Sensitive Lands regulations pursuant to LOC 50.05.010.2.b.

ii.    Normal or emergency repair or maintenance of public or private buildings, structures, or utilities.

iii.    Construction of a structure that does not require a building permit.

iv.    Interior remodeling which does not change a structure’s occupancy classification or change the structure to a use that does not qualify as a permitted use in the zone.

v.    Exterior remodeling of a structure that does not require a building permit.

vi.    Street vacations.

vii.    Temporary structures and uses listed in LOC 50.03.005 or which are for relief of victims of disaster or in an emergency.

viii.    Where an awning is the only change to the facade of an existing building, and the awning is funded or partially funded utilizing a financial incentive grant, provided by or obtained through the authority of the City of Lake Oswego or LORA. "Financial incentive" includes a grant, fee waiver, revolving loan, tax abatement, property exchange, or similar financial incentive provided by or secured through the City or LORA.

b.    Development Review

i.    No development permit pursuant to this Code is required for exempt development.

Note: Projects that are exempt from development permit review under this chapter may be subject to requirements in other chapters of Lake Oswego Code.

(Ord. 2695, Amended, 02/16/2016; Ord. 2687, Amended, 12/15/2015; Ord. 2579, Repealed and Replaced, 03/20/2012)

13. MINISTERIAL DEVELOPMENT DECISIONS Revised 2/20

a.    Ministerial Development Classification

i.    Requirements of Ministerial Decisions

A ministerial development is a development which requires a permit or review from the City where the decision:

(1)    Is made pursuant to land use standards which do not require interpretation or the exercise of policy or legal judgment;

(2)    Approves or denies a building permit issued under clear and objective land use standards; or

(3)    Determines final engineering design, construction, operation, maintenance, repair or preservation of a transportation facility which is otherwise authorized by and consistent with the Comprehensive Plan and land use regulations.

ii.    Ministerial Development Types

(1)    Exterior modification of single-family detached dwellings (including exterior modifications that reduce setbacks pursuant to LOC 50.04.003.3.c), accessory dwelling unit, a single duplex on a lot or zero lot line dwellings or modification of an accessory structure in the R-DD zone.

(2)    Construction or exterior modification of a detached single-family dwelling, accessory dwelling unit, a single duplex on a lot, zero lot line dwelling or a structure accessory to such structures which:

(a)    Is not processed through the residential infill design review process pursuant to LOC 50.08.003.2.e;

(b)    Is not located within a delineated RP resource, RC protection area, or HBA protection area pursuant to LOC 50.05.010, Sensitive Lands Overlay Districts;

(c)    Does not impact a historic landmark designated pursuant to LOC 50.06.009;

(d)    Does not change the nature of the use or occupancy classification to a use that does not qualify as a permitted use in the zone or as an approved conditional use;

(e)    Does not require special design review by the zone, design district, prior development approval or Overall Development Plan and Schedule (ODPS) for the development in which the subject property is located; or

(f)    Is not located in the Greenway Management Overlay District, as identified in LOC 50.05.009.

(3)    Exterior modification of a structure other than a detached single-family dwelling, accessory dwelling unit, duplex, zero lot line dwelling, or structure accessory to such structures which:

(a)    Does not increase building footprint or height, except if the increase in building height is required to comply with Building or Fire Codes and does not substantially modify any street-facing facade, or the increase in building footprint is 100 sq. ft. or less and does not substantially modify any street-facing facade; or

(b)    Does not modify, either by itself or cumulatively with prior modifications after December 1, 2011, more than 25% of the facade, as the facade existed on December 1, 2011, excluding in both cases a change of color of the facade; or

(c)    If the property abuts property zoned for residential use, does not modify any portion of the facade visible from the residentially zoned property; or

(d)    Does not modify any facade, including change of color of facade, for a building that was the subject of a prior development review approval ("change of color" occurs when the new color is not within the shades or tones of the approved color); or

(e)    Does not result in additional illumination of the facade, including accent lighting, for a building that was the subject of a prior development review approval; and

(f)    Complies with subsections a.ii(2)(a) through (f) of this section.

(4)    Lot line adjustments that:

(a)    Do not increase the allowable density on a site; and

(b)    Do not involve a historic landmark site and are not located in an historic district.

(5)    Resource enhancement projects in an RP or RC district, or HBA protection area.

(6)    Passive use recreational facilities within an RC or RP district, or HBA protection area, if such facility would otherwise qualify as a ministerial development.

(7)    Passive use recreational facilities that require a building permit such as pedestrian bridges, observation decks and handicapped facilities.

(8)    Construction or alteration of public transportation or utility facilities, and associated development abutting the public right-of-way when designed to address impacts of a transportation project, consistent with the applicable public facility master plan and land use regulations, and is not located in a delineated RP district, RC protection area, or HBA protection area.

(9)    Mitigation required under LOC 50.05.010.4.f for exempt development or sensitive lands violation mitigation.

(10)    Building permits for structures approved pursuant to a prior approved major or minor development.

(11)    Collocated telecommunications facilities.

(12)    Delineation of an RC or HBA resource boundary.

(13)    Fill in quantities of ten cubic yards or less when located within the Flood Management Area and outside of the floodway boundary.

(14)    When located within the floodplain of Oswego Lake, fill in quantities greater than ten cubic yards, provided the fill is associated with development of a single-family dwelling, duplex, zero lot line dwelling, water dependent use, or related accessory structure.

(15)    Change of Use/Parking Effect

A change of use from one permitted use to another, including from the use assumed in a development review approval, that increases on-site parking or loading requirements under LOC 50.06.002.2 and:

(a)    There are sufficient number of parking spaces available (off-street parking, or if in the Downtown Redevelopment Design District, also on-street parking, pursuant to LOC 50.05.004.9.a.vi), applying the reductions permitted in Table 50.06.002-4, Parking Requirement Modifiers, except for reductions permitted by a parking study; or

(b)    The use of a parking easement to provide some or all of the parking or loading requirements under LOC 50.06.002.2.

(16)    Developments in parks, on Park and Natural Area (PNA) zoned land, when the development is in accordance with a master plan adopted pursuant to LOC 50.07.004.6.c, including parks within the Greenway Management Overlay District.

(17)    Landscaping or landscape alterations that are not "exempt development" per LOC 50.07.003.12.a. (No ministerial permit shall be required; City Manager review and approval shall be sufficient for the ministerial decision.)

(18)    Construction of a residential fence or fence/wall combination that meets the standards for an exception to LOC 50.06.004.2.b.i(1).

[Cross-Reference: LOC 50.05.009, Greenway Management Overlay District.]

b.    Application

Application for a ministerial decision shall be made pursuant to LOC 50.07.003.1, Application.

c.    Public Notice/Opportunity for Public Comment

Ministerial decisions are made without notice or opportunity for appeal.

d.    Hearing

No public hearing is required for a ministerial decision.

e.    Review and Decision

i.    Decision-Making Authority

Ministerial development applications shall be reviewed and approved by the City Manager.

ii.    Review Criteria for Ministerial Developments

A ministerial development shall comply with the requirements of the zone, including overlay zones, in which the subject lot or parcel is located, the Stormwater Management Code (LOC Article 38.25) and shall comply with the following sections of the development standards:

(1)    Parking, LOC 50.06.002.

(2)    Hillside Protection, LOC 50.06.006.2.

(3)    On-Site Circulation – Driveways and Fire Access Roads, LOC 50.06.003.2.

(4)    If the ministerial development involves placement of a manufactured home, Manufactured Homes, LOC 50.03.003.1.b.

(5)    Building Design Standard, LOC 50.06.001.5.b.viii (mechanical equipment screening).

(6)    Weak Foundation Soils, LOC 50.06.006.1, for construction of structures where the requirements of LOC 50.06.006.1 have not been previously addressed for the development site.

(7)    If located in the Flood Management Area, LOC 50.05.011.

(8)    Building Design Standard, LOC 50.06.001.2 – 4, for construction or exterior modification of a detached single-family dwelling, a single duplex on a lot, zero lot line dwelling, or a structure accessory to such structures.

f.    Appeal

Ministerial decisions are made without the opportunity for appeal.

[Cross-Reference: LOC 50.05.009, Greenway Management Overlay District.]

(Ord. 2832, Amended, 01/07/2020; Ord. 2784, Amended, 07/03/2018; Ord. 2753, Amended, 11/07/2017; Ord. 2732, Amended, 02/21/2017; Ord. 2695, Amended, 02/16/2016; Ord. 2687, Amended, 12/15/2015; Ord. 2668, Amended, 12/01/2015; Ord. 2644, Amended, 04/07/2015; Ord. 2651, Amended, 02/17/2015; Ord. 2643, Amended, 11/04/2014; Ord. 2526, Amended, 12/18/2012; Ord. 2579, Repealed and Replaced, 03/20/2012)

14. MINOR DEVELOPMENT DECISIONSCode Interpretations Revised 2/20

a.    Minor Development Classification

i.    A minor development is a development which requires a permit from the City that:

(1)    Requires a more discretionary level of review than a ministerial decision. "Minor development" is intended to include decisions defined as "limited land use decisions" pursuant to ORS 197.015(12); or

(2)    Is reviewed based on Clear and Objective Housing Standards for Approval in LOC 50.06.001.7, Building Design; LOC 50.05.004.13, Downtown Redevelopment Design District; LOC 50.05.006.9, Old Town Neighborhood Design; or LOC 50.05.005.9,West Lake Grove Design District, together with other applicable zoning and development standards.

ii.    "Minor development" under subsection 14.a.i(1) of this section includes:

(1)    In the R-DD zone:

(a)    Construction of new single-family detached dwellings, duplexes, multi-family dwellings, zero lot line dwellings or exterior modification of a structure containing a nonconforming use that requires a building permit.

(b)    Expansion or reconstruction that results in a change of use (e.g., from single-family to duplex) or in an expansion of floor area of an existing structure by more than 50%.

(c)    Any exterior modification of a single-family detached dwelling that reduces setbacks pursuant to LOC 50.08.003.2.a, R-DD Administrative Modification.

(2)    Construction or exterior modification of a detached single-family structure, duplex, zero lot line dwelling or a structure accessory to such structures which:

(a)    Does not qualify as a ministerial decision pursuant to LOC 50.07.003.13.a.ii(1) or (2); or

(b)    Requires one or more variances.

(3)    Involves a determination by the City Manager that a use not expressly permitted in the zone may be allowed pursuant to the considerations contained in LOC 50.03.002.1.g, Authorization for Similar Uses.

(4)    Involves an improvement to an existing school facility that will not increase the capacity of the school facility, generate additional traffic, or generate significant additional noise or other negative impact on the surrounding neighborhood.

(5)    Construction of a structure other than a detached single-family dwelling, duplex, zero lot line dwelling or accessory structure, or an exterior modification of such a structure which does not qualify as a ministerial development pursuant to LOC 50.07.003.13.a.ii(3).

(6)    Lot line adjustments that:

(a)    Increase allowable density on the site; or

(b)    Involve a historic landmark site or are located in an historic district.

(7)    Partitions.

(8)    Subdivisions (with or without a planned development overlay).

(9)    Review of development phases subject to an ODPS.

(10)    Change of Use or Access/Parking Study

A change of use from one permitted use to another, including from the use assumed in a development review approval that:

(a)    Changes access requirements pursuant to LOC 50.06.003.1, Access/Access Lanes (Flag Lots), or that will result in the construction of private streets, driveways; or

(b)    Involves the use of a parking study pursuant to LOC 50.06.002.

(11)    Determining an RC district protection area or HBA protection area pursuant to LOC 50.05.010.5.b, except as required under LOC 50.07.003.15, Major Development Decisions.

(12)    Construction of a structure described in LOC 50.06.003.4.a.iii, Local Street Connectivity.

(13)    Fill in the floodway or fill in quantities greater than ten cubic yards when located elsewhere in the Flood Management Area, excluding fill for single-family detached dwellings, duplexes, zero lot line dwellings, water dependent uses, or related accessory structures when the fill is located within the floodplain of Oswego Lake, as provided by LOC 50.05.011, Flood Management Area.

(14)    Outright permitted residential dwellings or accessory structures in residential zones, other than in the R-DD zone, Downtown Redevelopment Design District, and Lake Grove Village Overlay District, when processed through the residential infill design review process (LOC 50.08.003.2.e).

(15)    Minor variances, design variances, and major variances.

(16)    Construction of any public or private road, or major transportation or utility facility within a delineated RP district, RC protection area, or HBA protection area.

(17)    Permitted uses in the PNA zone that are not listed as exempt in LOC 50.07.003.12 or classified as a ministerial use.

(18)    Minor changes to minor or major development review permits, pursuant to LOC 50.07.003.11.

(19)    Delineation of an RP district.

(20)    Modification of dimensional standards and setbacks pursuant to LOC 50.05.010.4.b (Sensitive Lands), Modifications to Dimensional Standards, Setbacks, and Floor Area of the Underlying Zone, and LOC 50.05.010.6.b.iii, Reduction of RP District.

(21)    Development within the Greenway Management Overlay District that is not classified as ministerial development.

(22)    Expansion of an existing parking lot.

(23)    Exterior painting of any structure that was the subject of a major or minor development permit including all structures in the R-DD zone, with the exception of detached single-family dwellings, duplexes, zero lot line dwellings, or structures accessory to those dwelling types.

Exception: Exterior painting that is the same color palette as the existing color(s).

(24)    Building paint color change on a historic landmark.

(25)    Establishment of a marijuana facility.

(26)    Reduction to the special street setback as authorized in Table 50.04.002-1.

[Cross-Reference: LOC 50.05.009, Greenway Management Overlay District.]

[Editor’s Note: Ord. 2689 bans all marijuana facilities in the City, and the voters approved continuation of the ban on Nov. 8, 2016.]

b.    Application

Application for a minor development decision shall be made pursuant to LOC 50.07.003.1, Application.

c.    Public Notice/Opportunity for Public Comment

i.    Notice shall be provided pursuant to LOC 50.07.003.3, Public Notice/Opportunity for Public Comment.

d.    Review and Decision

i.    Review by City Manager

Except for applications for a minor development in the R-DD zone, downtown redevelopment, LGVCO, and FMU district design variances (LOC 50.08.003.2.a through 50.08.003.2.d), major variances, and appeals of a decision of the City Manager regarding a minor development application, minor development permit applications shall be reviewed and decided by the City Manager. In the alternative, the City Manager may refer a minor development application directly to a hearing body for public hearing and decision pursuant to LOC 50.07.003.4, Hearings.

Minor development in the R-DD zone, design variances in the downtown redevelopment, LGVCO, and FMU districts, and major variances shall be reviewed by the Development Review Commission pursuant to LOC 50.07.003.4, Hearings.

ii.    Review Criteria for Minor Developments

A minor development shall comply with:

(1)    The requirements of the zone in which it is located;

(2)    The development standards applicable to minor developments;

(3)    Any additional statutory, regulatory or Lake Oswego Code provisions which may be applicable to the specific minor development application, as provided for in this Community Development Code (LOC Chapter 50), Stormwater Management Code (LOC Article 38.25), streets and sidewalks chapter (LOC Chapter 42), and the tree cutting chapter (LOC Chapter 55); and

(4)    Any applicable condition of approval imposed pursuant to an approved ODPS or prior development permit affecting the subject property.

[Cross-Reference: If applicable, see LOC 50.05.009 – Greenway Management Overlay District.]

iii.    Final Decision

(1)    City Manager Approve, Condition, or Deny Application

The City Manager shall make a final decision on a minor development application following expiration of the 14-day comment period. The City Manager shall approve, approve with conditions pursuant to LOC 50.07.003.5, or deny the application based upon the applicable criteria and the evidence submitted by the applicant and other interested persons during the comment period. Approval or denial of an application shall be accompanied by written findings that explain the criteria and standards considered relevant to the decision, state the facts relied upon in rendering the decision and explain the justification for the decision based on the criteria, standards and facts set forth. The date of the decision for purposes of appeal is the date on which the City Manager signs the written findings.

(2)    Notice of Final Decision

The City Manager shall send notice of a final decision on a minor development application to the applicant, all persons and neighborhood associations entitled to notice of the application pursuant to LOC 50.07.003.3, Public Notice/Opportunity for Public Comment, and any other persons who submitted comments during the comment period. The notice of decision shall:

(a)    Include the file number, date of the decision, and the name and address of the applicant;

(b)    Include an easily understood geographical description of the property and a map, if applicable;

(c)    Briefly summarize the decision-making process and the decision made;

(d)    State that a copy of the decision is available for review, and that a copy can be obtained at cost; and

(e)    State that the decision may be appealed by filing a written request for a hearing before the appropriate hearing body with the City Recorder within 15 calendar days of the date of the final decision. In addition, the notice shall contain the requirements for requesting a hearing pursuant to LOC 50.07.003.7.b. The name, address and phone number of the City Recorder shall be included in the notice.

e.    Appeal

The appeal procedures for minor development decisions are provided by LOC 50.07.003.7.b, Appeal of a Minor Development Decision.

(Ord. 2832, Amended, 01/07/2020; Ord. 2784, Amended, 07/03/2018; Ord. 2768, Amended, 01/16/2018; Ord. 2732, Amended, 02/21/2017; Ord. 2723, Amended, 10/18/2016; Ord. 2713, Amended, 09/20/2016; Ord. 2695, Amended, 02/16/2016; Ord. 2687, Amended, 12/15/2015; Ord. 2668, Amended, 12/01/2015; Ord. 2644, Amended, 04/07/2015; Ord. 2651, Amended, 02/17/2015; Ord. 2612-A, Amended, 05/21/2013; Ord. 2579, Repealed and Replaced, 03/20/2012)

15. MAJOR DEVELOPMENT DECISIONS

a.    Major Development Classification

i.    A major development is a development which requires a permit from the City involving the greatest level of review.

ii.    "Major development" includes:

(1)    Conditional uses;

(2)    Any development defined as major development pursuant to this section which is proposed to be phased pursuant to adoption of an Overall Development Plan and Schedule (ODPS); and

(3)    Any development which requires a quasi-judicial Comprehensive Plan and/or zoning map amendment.

iii.    A major development is subject to public notice, hearing and opportunity for appeal as described in this section.

[Editor’s Note: Rezone of a parcel is not a "development" and hence is not a major development, but is to be processed as a major development. Also see LOC 50.05.009 – Greenway Management Overlay District.]

b.    Application

Application for a major development decision shall be made pursuant to LOC 50.07.003.1, Application. The following additional requirements shall be applicable to applications for major development:

i.    Applicant’s Evidence

All documents or evidence relied on by the applicant for a development shall be submitted to the City and be available for inspection by the public at no cost.

ii.    Staff Report

The City Manager shall prepare a staff report on the application. The staff report shall contain an analysis of the applicable criteria and the evidence in the record. Based upon this review, the City Manager shall recommend approval, approval with conditions, denial, or continuance of the application. The staff report shall be completed and shall be available for public inspection at no cost at least ten days prior to the date of the public hearing.

c.    Public Notice/Opportunity for Public Comment

Notice shall be provided pursuant to LOC 50.07.003.3, Public Notice/Opportunity for Public Comment.

d.    Review and Decision

i.    Decision-Making Authority

Major developments are reviewed by a hearing body.

ii.    Review Criteria for Major Developments

(1)    Major Development Other Than Rezoning to FMU in the Foothills Special District Plan Area. A major development shall comply with:

(a)    Any applicable regulatory policies of the Lake Oswego Comprehensive Plan;

(b)    The requirements of the zone in which it is located;

(c)    The development standards applicable to major developments;

(d)    Any additional statutory or Lake Oswego Code provisions which may be applicable to the specific major development application, such as the variance provisions, Stormwater Management Code (LOC Article 38.25), the streets and sidewalks chapter (LOC Chapter 42), and the tree cutting chapter (LOC Chapter 55); and

(e)    Any conditions of approval imposed as part of an approved ODPS or prior development permit affecting the subject property.

(2)    Rezoning to FMU in the Foothills Special District Plan Area. Rezoning within the Foothills Special District Plan to the FMU zone shall comply with the following:

(a)    The property is designated FMU on the Comprehensive Plan.

(b)    The proposed development is in substantial conformance with the conceptual lot and street pattern of the Foothills Special District Plan Chapter of the Comprehensive Plan.

(c)    The owner of the property has executed (or will execute as a condition of the rezone) a development agreement with either the City or LORA for a proposed development on the property that is consistent with the Goals and Policies of the Foothills Special District Plan, including street and other public right-of-way improvements.

(d)    The proposed development, including any street improvements, will not result in other properties within the Foothills Special District Plan Area becoming functionally inaccessible or otherwise rendered unviable.

e.    Appeal

Major development determinations are subject to appeal as provided by LOC 50.07.003.7.c, Filing an Appeal of a Hearing Body Decision.

(Ord. 2695, Amended, 02/16/2016; Ord. 2599, Amended, 12/18/2012; Ord. 2579, Repealed and Replaced, 03/20/2012)

16. LEGISLATIVE DECISIONS

a.    Legislative Decisions Defined

i.    A "legislative decision" is an amendment to the policies, procedures, standards, criteria or map designations of the Comprehensive Plan, and this Community Development Code, unless such amendment applies to a small number of identified properties only or is required to effect a particular development permit application.

ii.    An amendment to the policies, procedures, standards, criteria or map designations of the Comprehensive Plan or this Community Development Code which is not a "legislative decision" as defined in subsection 16.a.i of this section shall be considered "quasi-judicial" and shall be processed as a major development.

b.    Criteria for a Legislative Decision

A legislative decision is generally a policy decision which is up to the discretion of the City Council, but shall:

i.    Comply with any applicable state law;

ii.    Comply with any applicable statewide planning goal or administrative rule adopted pursuant to ORS Chapter 197; and

iii.    In the case of a legislative amendment to this Community Development Code, comply with any applicable provision of the Lake Oswego Comprehensive Plan.

c.    Required Notice to DLCD

i.    Except as provided by subsections 16.c.ii and iii of this section, any proposed amendment or addition to the City’s acknowledged Comprehensive Plan or land use regulations shall be forwarded to the Director of the Oregon Department of Land Conservation and Development (DLCD) as required by OAR 660-018-0020 before the first evidentiary hearing on adoption. The City shall include the text of the proposed amendment and any supplemental information that the City believes is necessary to inform the Director as to the effect of the proposal. The notice shall include the date set for the first evidentiary hearing.

ii.    Advance notice to the Director of DLCD is not required when the City determines that the statewide planning goals do not apply to the proposed amendment or new regulation.

iii.    The City may submit the proposed amendment or new regulation with less than the required notice by OAR 660-018-0020 where the City determines an emergency exists requiring expedited review.

iv.    Not later than 20 days following a final decision pursuant to subsections 16.c.i through iii of this section, the City shall provide a copy of the adopted text and the findings to the Director of DLCD. If the text of the amendment as adopted differs substantially from that sent to the Director of DLCD pursuant to subsection 16.c.i of this section, the City Manager shall note the changes that have been made in the notice to the Director of DLCD. If the text and findings are mailed, they shall include a signed statement by the person mailing them indicating the date of deposit in the mail.

v.    On the same day that the text and findings are mailed or delivered, pursuant to subsections 16.c.i through iii of this section, the City shall also mail notice of the decision to all persons who participated in the hearings leading up to the decision who have filed a written request for notice of the final decision with the City Recorder. The notice shall:

(1)    Briefly describe the decision;

(2)    State the date of the decision;

(3)    If delivered by mail, include a certificate of mailing containing a statement signed by the person mailing it indicating the date the notice was deposited in the mail;

(4)    State the date, time and place where the decision, including the text and the findings, may be reviewed; and

(5)    Explain the requirements for appeal of the decision pursuant to ORS 197.830 to 197.845.

[Cross-Reference: See also ORS 227.186 (individual property owner mailed notice at least 20 days prior to first evidentiary hearing) if legislative change "changes the base zone" or "limits or prohibits land uses previously allowed in the affected zone."]

d.    Planning Commission Recommendation Required

i.    Except in cases where a legislative amendment is mandated by state statute, a legislative decision shall be referred to the Planning Commission for review and recommendation. In cases where a legislative amendment is mandated by state statute, referral to the Planning Commission for review and recommendation is not required. If an amendment is not referred to the Planning Commission for review and recommendation, a copy of the proposed amendment shall be sent to the Planning Commission, along with notice of the City Council’s hearing on the proposed amendment. In cases where part of a proposed amendment is mandated by state statute but part is not, the legislative decision shall be referred to the Planning Commission for review and recommendation pursuant to this section.

ii.    The Planning Commission shall hold at least one public hearing on the proposed legislative decision.

iii.    Notice

Notice of a Planning Commission hearing on a legislative decision shall be published pursuant to LOC 50.07.003.3.d, Notice for Legislative Hearing.

iv.    Conduct of the Hearing

The Chair of the Planning Commission shall follow the following procedures when conducting a legislative decision hearing:

(1)    The Chair shall briefly explain the nature of the legislative decision.

(2)    The Chair shall call for the staff report. The staff shall explain the applicable criteria, if any, and the reasons for the proposed legislative amendment.

(3)    The Chair shall open the public hearing and take testimony or evidence presented. Any person may appear and be heard.

(4)    The Chair shall close the public hearing and return the matter to the table for deliberation and decision. The hearing body may ask questions of staff or any member of the public during deliberations.

v.    Time Limits on Testimony

The following time limits on testimony shall be observed, subject to the right of the Chair, with Planning Commission consent, to modify or waive the time limits: five minutes each for individuals and ten minutes each for recognized neighborhood organizations, homeowners associations, government or governmental agency or other incorporated public interest organizations. The time limits shall not include time taken up by questions and response from the Planning Commission. Any person in attendance may cede his or her time for testimony to another person, but in no case shall any person’s testimony be increased to greater than ten minutes.

vi.    Recommendation of Planning Commission

(1)    The Planning Commission shall make a preliminary decision recommending enactment, enactment with modifications, or rejection of the proposed amendment. Within a reasonable time after making its preliminary decision, the Planning Commission shall adopt an order setting forth its recommendation and explaining the reasons for its decision.

(2)    A final recommendation of the Planning Commission shall be forwarded to the Council for review.

e.    City Council Review and Decision

The City Council shall hold at least one public hearing on the proposed legislative decision.

i.    Notice

Notice of a City Council hearing on a legislative decision shall be published pursuant to LOC 50.07.003.3.d, Notice for Legislative Hearing. Notice shall also be mailed at least ten days in advance to the Committee for Citizen Involvement, to all recognized Neighborhood Associations and to all persons who appeared either orally or in writing at the Planning Commission hearing. The notice shall include:

(1)    The time, date and place of the public hearing;

(2)    A brief description of the proposed legislative amendment; and

(3)    A phone number for obtaining additional information.

ii.    Conduct of the Hearing

The Mayor shall follow the same procedures identified for the Planning Commission hearing in LOC 50.07.003.16.d.iv, Conduct of the Hearing, when conducting a legislative decision hearing.

iii.    Time Limits on Testimony

The following time limits on testimony identified for the Planning Commission in LOC 50.07.003.4.b shall be observed in the City Council hearing.

iv.    Decision

(1)    The Council may approve, reject or modify the proposed amendment in whole or in part. Within a reasonable time after making its preliminary decision, the Council shall adopt findings setting forth its decision and explaining the reasons for such decision. The legislative decision shall be enacted by ordinance. The ordinance adoption procedures of the Lake Oswego Charter shall be followed.

(2)    The legislative decision shall become final for purposes of appeal on the date of enactment of the ordinance pursuant to the Lake Oswego Charter.

f.    Effective Date of Legislative Decision

i.    A legislative decision becomes effective on the thirtieth day from the date of enactment of the ordinance, or immediately if adopted by emergency, pursuant to the Lake Oswego Charter, unless a stay of application is granted by LUBA pursuant to ORS 197.845.

ii.    A decision on an application subject to a legislative amendment that is effective pursuant to subsection 16.f.i of this section, but which has not been acknowledged pursuant to ORS 197.610 to 197.650, shall include findings of compliance with those statewide land use planning goals applicable to the legislative amendment. The issuance of a permit under an effective but unacknowledged comprehensive plan or land use regulation shall not be relied on to justify retention of improvements so permitted if the comprehensive plan or land use regulation does not gain acknowledgment.

(Ord. 2668, Amended, 12/01/2015; Ord. 2643, Amended, 11/04/2014; Ord. 2579, Repealed and Replaced, 03/20/2012)

17. EXPIRATION OF DEVELOPMENT PERMIT Revised 2/20

a.    Except as otherwise provided in LOC 50.07.007.3, 50.07.007.4.f, another provision of this Code, or as specifically stated as a condition of approval of a development permit, any permit issued under this Code shall expire three years following the final decision and effective date of any order constituting or approving the development permit unless:

i.    If development involves construction of a structure, at least 15% of the structural construction has occurred within three years of the date of final decision. For major public facilities, the three-year limitation does not apply to a Conditional Use Permit (or modification) and a Development Review Permit (or modification) is subject to a five-year deadline; and

ii.    Development authorized by the permit is commenced and work has reasonably continued to completion of the development.

b.    Upon expiration, no further work on the development or use authorized by the development permit may be undertaken without obtaining a new development permit.

c.    The City Manager shall, in writing grant, a one-year extension to a development permit where the request for the extension is made by written application prior to the expiration of the three-year period.

d.    If the City Manager believes that work on the development has ceased prior to completion, or has otherwise been abandoned, the City Manager may, at any time, require the applicant to demonstrate that the applicant is proceeding with efforts to commence or to continue the development.

(Ord. 2832, Amended, 01/07/2020; Ord. 2579, Repealed and Replaced, 03/20/2012)