Article 4. Administration of Land Use and Development
Chapter 4.1
TYPES OF REVIEW PROCEDURES
Sections:
4.1.100 Purpose and applicability of review procedures.
4.1.170 Neighborhood contact for private development projects.
4.1.190 Citizen involvement procedures for developing and amending city master plans.
4.1.195 Citizen involvement procedures for the implementation of master plans.
4.1.200 Type I procedure (ministerial).
4.1.300 Type II procedure (limited land use decisions).
4.1.400 Type III procedure (quasi-judicial).
4.1.500 Type IV procedure (legislative).
4.1.900 Traffic impact studies.
4.1.100 Purpose and applicability of review procedures.
A. Purpose. The purpose of this chapter is to establish standard decision-making procedures that will enable the city, the applicant, and the public to reasonably review applications and participate in the local decision-making process in a timely and effective way. Table 4.1.100 provides a key for determining the review procedure and the decision-making body for particular approvals.
B. Applicability of Review Procedures. All land use and development permit applications and approvals, except building permits, shall be decided by using the procedures contained in this chapter. The procedure “type” assigned to each application governs the decision-making process for that permit or approval. There are four types of permit/approval procedures: Types I, II, III, and IV. These procedures are described in subsections (B)(1) through (4) of this section. Table 4.1.100 lists all of the city’s land use and development approvals and their required review procedure(s).
1. Type I Procedure (Ministerial). Type I decisions are made by the community development director, or someone he or she officially designates, without public notice and without a public hearing. The Type I procedure is used when there are clear and objective review criteria, and applying city standards and criteria requires no use of discretion;
2. Type II Procedure (Limited Land Use Decision). Type II decisions are made by the community development director or designee with public notice, and an opportunity for a planning commission public hearing if requested. The appeal of a Type II decision made by the planning commission is heard by the city council;
3. Type III Procedure (Quasi-Judicial). Type III decisions are made by the planning commission after a public hearing, with appeals made to the city council. Type III decisions generally use discretionary review criteria;
4. Type IV Procedure (Legislative). Type IV procedures apply to legislative matters. Legislative matters involve the creation, revision, or large-scale implementation of public policy (e.g., adoption of land use regulations, zone changes, and comprehensive plan amendments that apply to entire districts, not just one property). Type IV matters are considered initially by the planning commission with final decisions made by the city council. A Type IV hearing may be conducted in a joint meeting of the city council and planning commission.
C. Number of Days. All “days” referenced by this code are calendar days, unless noted otherwise.
|
Approvals* |
Review Procedures |
Applicable Regulations |
|---|---|---|
|
Access permit (public street) |
Type I |
|
|
Appeal of a land use decision |
Type III |
|
|
Building permit |
N/A |
Building code |
|
Code interpretation |
Type II |
Chapter 4.8 SDC |
|
Code amendment |
Type IV |
Chapter 4.7 SDC |
|
Comprehensive plan amendment |
Type IV |
Comprehensive plan, Chapter 4.12 SDC |
|
Conditional use |
Type III |
Chapter 4.4 SDC |
|
Floodplain development permit |
Type I/II/III |
Chapter 2.5 SDC |
|
Planned development |
Type III |
Chapter 4.5 SDC |
|
Modification to approval |
Type II/III (minor or major) |
Chapter 4.6 SDC |
|
Zoning map change |
|
|
|
- Quasi-judicial |
Type III |
Chapter 4.7 SDC |
|
(no plan amendment required) |
|
|
|
- Legislative (plan amendment) |
Type IV |
Chapter 4.7 SDC |
|
Property line adjustments and lot consolidations |
Type II |
Chapter 4.3 SDC |
|
Lot-of-record determination |
Type I/II |
Chapter 5.3 SDC |
|
Nonconforming use or development confirmation |
Type I/II |
Chapter 5.2 SDC |
|
Partition |
Type II |
Chapter 4.3 SDC |
|
Land use review |
Type I/II |
Chapter 4.2 SDC, building code |
|
Design review |
Type II/III |
Chapter 4.2 SDC |
|
Subdivision |
|
Chapter 4.3 SDC |
|
- Preliminary plan |
Type III |
|
|
- Final plat |
Type I |
|
|
Temporary use permit |
Type I/II/III |
Chapter 4.9 SDC |
|
Annexation |
Type IV |
Chapter 4.10 SDC |
|
Urban growth boundary |
Type IV |
Chapter 4.11 SDC |
|
Vacations |
Type IV |
Chapter 4.13 SDC |
|
Variance |
Type III |
Chapter 5.1 SDC |
|
Adjustment |
Type II |
Chapter 5.1 SDC |
|
* Approvals or permits from other agencies, such as a road authority or state or federal natural resource agency, may be required for some actions. The city notifies agencies of requests (Type II, III, and IV applications) that may affect their facilities or services. |
||
(Ord. 08-06 § 3, 2008)
4.1.170 Neighborhood contact for private development projects.
A. Good Neighbor Agreement. Applicants are highly encouraged to use a good neighbor agreement as a way of involving the community during the development of their land use application. Good neighbor agreements are founded in the belief that, in part, a successful neighborhood depends on the businesses within their borders and that a successful business depends, in part, on the support of the surrounding community. The purpose of a good neighbor agreement is to proactively address livability concerns associated with the proposed use. City staff may be contacted to offer suggestions on how to establish a good neighbor agreement.
Typical elements of a GNA include, but are not limited to:
1. Noise management;
2. Hours of operation;
3. Litter management;
4. Traffic issues;
5. Lighting;
6. Communications, including a process for receiving, recording, and responding to community comments;
7. Security;
8. Safety;
9. Parking;
10. Screening of operations;
11. Maintenance of a neighborhood advisory committee;
12. Enforcement of the good neighbor agreement;
13. Exceptions to the good neighbor agreement;
14. Process and requirements for updating, amending, or terminating the good neighbor agreement; and
15. Effective date, term of the agreement, and date of expiration. (Ord. 14-01 § 1 (Exh. A), 2014)
4.1.190 Citizen involvement procedures for developing and amending city master plans.
A. Purpose. The purpose of this section is to establish guidelines for encouraging citizen involvement during all phases of the master planning process. By adequately engaging the public during the development and amendment of city master plans, it is more likely that citizens will be aware of their existence, understand their purpose, and be knowledgeable about the issues they are addressing. Most importantly, by encouraging citizens to be involved early in the master planning process, community members will have the opportunity to influence what is contained in adopted master plans. The following is intended to aid the master planning process but does not bind the city to perform every listed involvement method.
B. Citizen Involvement During the Master Plan Scoping Process. Citizens who have suggestions to improve public facilities, services, or outdated master plans are encouraged to present their ideas to city council and/or city staff in writing and/or verbally at regular council meetings. Suggestions submitted to city staff will be provided to the council during the council goal setting process for their consideration.
When city council directs staff to develop a master plan, a kickoff meeting for the project should be scheduled and advertised. The goal of the project kickoff/town hall meeting should be to inform citizens that a master plan has been initiated, what a master plan is, why it is important, future implications the plan could have on the community, and to highlight ways citizens can be involved in the process. After the project kickoff meeting, a citizen involvement plan should be developed for the project.
C. Citizen Involvement During the Development and Amendment of Draft Master Plans. The following list of citizen involvement methods is not comprehensive and may be used for the development and amendment of master plans. Failure to conduct any or all of the listed methods or other methods does not constitute an appealable issue.
1. Stakeholder Interviews. Stakeholders are community members which are not serving on the project advisory committee, but have a vested interest in the outcome of the master plan. Interviews of stakeholders could be conducted by phone or in person.
2. Surveys. Questionnaires could be distributed by mail, distributed at public meetings, or be set up online.
3. Public Meetings at Key Milestones. Over the planning process, city staff should host public meetings at key project milestones. Because each project will have unique information to communicate and different types of citizen input required, the public meeting formats will vary. Formats may include workshops, town hall meetings, open houses, presentations, and discussion groups. Public meetings should be interactive whenever possible. To ensure equal access to all community members, the city of Silverton should reasonably modify policies/procedures and provide auxiliary aids/services to persons with disabilities. Staff can also provide materials in other languages when requested.
4. Private Organization Meetings and Events. When requested, city staff should present master plan project information, solicit input, and participate in neighborhood/HOA meetings, community association meetings, and community events and festivals.
5. Website. The city’s website should host a specific web page for each master plan under development or amendment. The site will include an overview of the planning project, meeting calendar, project updates, meeting agendas, notes, technical project documents, frequently asked questions and answers, and a summary of public comments received.
6. Updates for Planning Commission and City Council. Staff should provide regular updates regarding the plan and the citizen involvement process to gain planning commission and city council input.
7. Community development department staff should provide regular updates to all individuals that participated in the planning process. Care should be taken to obtain contact information from everyone that provides comments or input on a master plan so that city staff can keep them updated with newsletters, fact sheets, and schedule changes. The project advisory committee and other interested citizens should be sent status updates at the completion of each project milestone. An ongoing record of citizen input shall be maintained and available to the public at City Hall.
8. Upon development or amendment of a draft master plan, city staff should send a notice of public hearing before the planning commission and city council to all individuals who have participated in the planning process, at least 20 days before each hearing. Staff should make a hard copy of the draft plan available for public viewing in the community development department. Notice of the hearings should also be sent to specifically affected areas. This notice should contain general information about the master plan and capital projects. (Ord. 14-01 § 1 (Exh. A), 2014)
4.1.195 Citizen involvement procedures for the implementation of master plans.*
A. Purpose. The purpose of this section is to establish procedures for encouraging citizen involvement during the implementation of capital projects identified in city master plans. By adequately engaging the public during the implementation of public projects, citizens will be able to understand the purpose of a project and the issues it will be addressing.
B. Citizen Involvement Procedures. Utilizing city master plans developed with citizen input, city council should approve a capital improvement plan that prioritizes projects listed in the master plan. Council could then identify projects during the budget process to allocate funds to construct the project. Projects that replace aging infrastructure, provide a necessary increase in utility capacity, address a health and safety issue, provide routine maintenance, and similar projects may provide an informational notice to residents near the project area in advance of construction. When a decision has been made to move forward with a public project that affects the public interest (such as a park or streetscape improvement project), an open house type meeting should be publicly advertised to discuss the project with the community and citizens in the affected area.
The open house should inform citizens of specific project details and provide community members with the opportunity to publicly ask questions and provide comments on the project. Notice of the open house should also be sent to all individuals who have participated in the master planning process, including members of the master plan’s project advisory committee. City staff should present a summary of the open house public comments to city council so that they may consider refinement of the project scope or design. Once city council determines the final scope and design of a project, city staff can be directed to construct the project. (Ord. 14-01 § 1 (Exh. A), 2014)
* Code reviser’s note: Ord. 14-01 adds this section as 4.1.200. It has been editorially renumbered to avoid duplication of numbering.
4.1.200 Type I procedure (ministerial).
A. Application Requirements.
1. Application Forms. Type I applications shall be made on forms provided by the community development director or designee.
2. Application Requirements. Type I decisions are generally made within 30 days of the city receiving a complete application. Type I applications shall:
a. Include the information requested on the application form;
b. Address the criteria in sufficient detail for review and action; and
c. Be filed with the required, nonrefundable fee.
d. Applications which are not filled out completely and include all information required by the application form will not be processed by the city.
B. Administrative Decision Requirements. The community development director’s or designee’s decision shall address all of the review criteria, including applicable requirements of any road authority. Based on the criteria and the facts contained within the record, the community development director shall approve or deny the requested permit or action. A written record of the decision shall be provided to the applicant and kept on file at City Hall.
C. Final Decision. A Type I decision is the final decision of the city. It cannot be appealed to city officials.
D. Effective Date. A Type I decision is final on the date it is made. (Ord. 10-02 Exh. A § B, 2010; Ord. 08-06 § 3, 2008)
4.1.300 Type II procedure (limited land use decisions).
A. Pre-Application Conference. A pre-application conference is required for Type II reviews unless waived by the community development director. Pre-application conference procedures are in SDC 4.1.600.
B. Application Requirements.
1. Application Forms. Type II applications shall be made on forms provided by the community development director or designee.
2. Submittal Information. Applications to be reviewed by the planning commission must be submitted and complete at least 45 days before the requested planning commission meeting date. For staff reviews, a total of five copies of the application shall be submitted. For planning commission reviews, an additional seven copies shall be submitted after the community development director has deemed the application complete.
a. Include the information requested on the application form;
b. Be filed with a narrative statement that explains how the application satisfies each and all of the relevant criteria and standards in sufficient detail for review and decision-making. Note: additional information may be required under the specific application requirements for each approval, e.g., Chapter 4.2 SDC, Land Use Review and Design Review, Chapter 4.3 SDC, Land Divisions and Property Line Adjustments, Chapter 4.6 SDC, Modifications to Approved Plans and Conditions of Approval, Chapter 4.8 SDC, Code Interpretations, and Chapter 4.9 SDC, Miscellaneous Permits;
c. Be accompanied by the required, nonrefundable fee;
d. Plans, studies, exhibits, and/or other information as may be required by the community development director, to assist the city in making findings under the applicable review criteria; and
e. A certified list prepared by a title company or certified by the Marion County tax assessor’s office with the names and addresses of all property owners within 500 feet of the subject site.
f. Applications which are not filled out completely and include all information required by the application form will not be processed by the city.
C. Notice of Application for Type II (Limited Land Use) Decision.
1. Before making a Type II limited land use decision, the community development director or designee shall mail notice to:
a. All owners of record of real property and residents within a minimum of 500 feet of the subject site;
b. All city-recognized neighborhood groups or associations whose boundaries include the site;
c. Any person who submits a written request to receive a notice; and
d. Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the city. The city may notify other affected agencies. The city shall notify the road authority and transit and transportation service providers when there is a proposed development abutting or affecting their transportation facility or service and allow the agency to review, comment on, and suggest conditions of approval for the application.
2. The purpose of the notice is to give nearby property owners and other interested people the opportunity to submit written comments about the application before the Type II decision is made. The goal of this notice is to invite people to participate early in the decision-making process.
3. Notice of a pending Type II limited land use decision shall:
a. Provide a 14-day period for submitting written comments before a decision is made on the permit;
b. List the relevant review criteria by name and number of code sections;
c. State the place, date and time the comments are due, and the person to whom the comments should be addressed;
d. Include the name and telephone number of a contact person regarding the decision;
e. Describe the proposal and identify the specific permits or approvals requested;
f. Describe the street address or other easily understandable reference to the location of the site;
g. State that if any person fails to address the relevant review criteria with enough detail, they may not be able to appeal to the land use board of appeals or circuit court on that issue. Only comments on the relevant review criteria are considered relevant evidence;
h. State that all evidence relied upon by the community development director or designee to make this decision is in the public record, available for public review. Copies of this evidence can be obtained at a reasonable cost from the city;
i. State that after the comment period closes, the community development director or designee shall issue a Type II limited land use decision, and that the decision shall be mailed to the applicant and to anyone else who submitted written comments or who is otherwise legally entitled to notice;
j. Contain the following notice:
Notice to mortgagee, lien holder, vendor, or seller: The City of Silverton Development Code requires that if you receive this notice it shall be promptly forwarded to the purchaser.
4. Posting Notice. The site shall be posted with a notice that contains a brief description of the project, the file number assigned to the project by the city and the address of City Hall and the phone number for the community development department 14 days prior to a decision being made. The notice shall be clearly visible to pedestrians and motorists and must be able to withstand adverse weather.
D. Type II Decision Requirements. The community development director or designee shall make a Type II written decision addressing all of the relevant review criteria and standards. Based upon the criteria and standards, and the facts contained within the record, the community development director or designee shall approve, approve with conditions, or deny the requested permit or action. Alternatively, the community development director, and/or the applicant, may refer the application to the planning commission for review in a public hearing, in which case the review shall follow the Type III procedures in SDC 4.1.400. If the applicant refers the application to a Type III hearing, he or she shall pay the fee for a Type III review.
E. Notice of Decision.
1. Within five business days after the community development director or designee signs the decision, a notice of decision shall be sent by mail to:
a. The applicant and all owners or contract purchasers of record of the site that is the subject of the application;
b. Any person who submits a written request to receive notice, or provides comments during the application-review period;
c. Any city-recognized neighborhood group or association whose boundaries include the site; and
d. Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the city, and other agencies that were notified or provided comments during the application review period.
2. The community development director or designee shall cause an affidavit of mailing the notice to be prepared and made a part of the file. The affidavit shall show the date the notice was mailed and shall demonstrate that the notice was mailed to the parties above and was mailed within the time required by law.
3. The Type II notice of decision shall contain:
a. A description of the applicant’s proposal and the city’s decision on the proposal (i.e., may be a summary);
b. The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area, where applicable;
c. A statement of where the city’s decision can be obtained;
d. The date the decision shall become final, unless appealed;
e. A statement that all persons entitled to notice may appeal the decision; and
f. A statement briefly explaining how to file an appeal, the deadline for filing an appeal, and where to obtain further information concerning the appeal process.
F. Final Decision and Effective Date. A Type II administrative decision is final for purposes of appeal, when it is mailed by the city. A Type II decision is effective on the day after the 10-day appeal period expires. If an appeal is filed, the decision is effective when the appeal is decided. (See also subsection (G) of this section.)
G. Appeal. Appeals of Type II decisions are heard by the planning commission or the historic landmarks commission, as applicable, and follow the procedures below:
1. Who May Appeal. The following people have legal standing to appeal a Type II decision:
a. The applicant or owner of the subject property;
b. Any other person who participated in the proceeding by submitting oral or written comments.
2. Appeal Filing Procedure.
a. Notice of Appeal. Any person with standing to appeal, as provided in subsection (G)(1) of this section, may appeal a Type II decision by filing a notice of appeal according to the following procedures;
b. Time for Filing. A notice of appeal shall be filed with the community development director or designee within 10 days of the date the notice of Type II decision was mailed;
c. Content of Notice of Appeal. The notice of appeal shall contain:
i. An identification of the decision being appealed, including the date of the decision;
ii. A statement demonstrating the person filing the notice of appeal has standing to appeal;
iii. A statement explaining the specific issues being raised on appeal;
iv. If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period;
v. Filing fee.
vi. Appeal applications which are not filled out completely and include all information required by the application form will not be processed by the city.
3. Scope of Appeal. The appeal of a Type II decision by a person with standing shall be limited to the project proposal; new evidence and arguments may be presented, but the specific issues raised in the prior proceedings must also be addressed by the appellant. The review body may allow additional evidence, testimony or argument concerning any relevant standard, criterion, condition, or issue raised in the notice of appeal.
4. Appeal Procedures. Type III notice, hearing procedures and decision process shall also be used for appeals of Type II decisions, as provided in SDC 4.1.400.
5. Further Appeal to LUBA. The decision of the review body regarding an appeal of a Type II decision is the final decision of the city. The decision of the review body on an appeal is final and effective on the date it is mailed by the city. The review body’s decision may be appealed to the State Land Use Board of Appeals pursuant to ORS 197.805 through 197.860. (Ord. 20-09 § 3 (Exh. B), 2020; Ord. 10-02 Exh. A § B, 2010; Ord. 08-06 § 3, 2008)
4.1.400 Type III procedure (quasi-judicial).
A. Pre-Application Conference. A pre-application conference is required for all Type III applications. The procedures for a pre-application conference are described in SDC 4.1.600(C).
B. Application Requirements.
1. Application Forms. Type III applications shall be made on forms provided by the community development director or designee; if a Type II application is referred to a Type III hearing, either voluntarily by the applicant or staff or upon appeal, no new application is required.
2. Submittal Information. Type III applications must be submitted and complete at least 45 days before the requested planning commission hearing date. For the initial staff review, a total of five copies of the application shall be submitted. An additional seven copies shall be submitted after the community development director has deemed the application complete. All Type III applications shall:
a. Include the information requested on the application form;
b. Contain plans, exhibits, studies, and/or other information as required by the community development director, in order to assist the city in making findings under the applicable review criteria;
c. Be filed with a narrative statement that explains how the application satisfies each and all of the relevant criteria and standards in sufficient detail for review and decision-making. Note: additional information may be required under the specific application requirements for each approval, e.g., Chapter 4.2 SDC, Land Use Review and Design Review, Chapter 4.3 SDC, Land Divisions and Property Line Adjustments, Chapter 4.6 SDC, Modifications to Approved Plans and Conditions of Approval, Chapter 4.8 SDC, Code Interpretations, and Chapter 4.9 SDC, Miscellaneous Permits;
d. Be accompanied by the required nonrefundable fee;
e. A certified list prepared by a title company or certified by the Marion County tax assessor’s office with the names and addresses of all property owners within 500 feet of the subject site; and
f. Applications which are not filled out completely and include all information required by the application form will not be processed by the city.
C. Notice of Hearing.
1. Mailed Notice. The city shall mail the notice of the Type III hearing. The records of the county assessor’s office are the official records for determining ownership. Notice of a Type III application hearing or Type II appeal hearing shall be given by the community development director or designee in the following manner:
a. At least 20 days before the hearing date, notice shall be mailed to:
i. The applicant and all owners or contract purchasers of record of the property that is the subject of the application;
ii. All property owners of record and residents within 700 feet of the site;
iii. Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the city. The city may notify other affected agencies. The city shall notify the road authority and transit and transportation service provider when there is a proposed development abutting or affecting their transportation facility or service and allow the agency to review, comment on, and suggest conditions of approval for the application;
iv. Owners of airports in the vicinity shall be notified of a proposed zone change in accordance with ORS 227.175;
v. Any neighborhood or community organization recognized by the city council and whose boundaries include the property proposed for development;
vi. Any person who submits a written request to receive notice;
vii. For appeals, the appellant and all persons who provided testimony in the original decision; and
viii. For a zone change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175.
b. The community development director or designee shall have an affidavit of notice be prepared and made a part of the file. The affidavit shall state the date that the notice was mailed to the persons who must receive notice.
c. At least 10 business days before the hearing, notice of the hearing shall be printed in a newspaper of general circulation in the city. The newspaper’s affidavit of publication of the notice shall be made part of the administrative record.
2. Content of Notice. Notice of appeal of a Type II administrative decision or notice of a Type III hearing to be mailed and published per subsection (C)(1) of this section shall contain the following information:
a. The nature of the application and the proposed land use or uses that could be authorized for the property;
b. The applicable criteria and standards from the development code(s) that apply to the application;
c. The street address or other easily understood geographical reference to the subject property;
d. The date, time, and location of the public hearing;
e. A statement that the failure to raise an issue in person, or by letter at the hearing, or failure to provide statements or evidence sufficient to afford the decision-maker an opportunity to respond to the issue, means that an appeal based on that issue cannot be filed with the State Land Use Board of Appeals;
f. The name of a city representative to contact and the telephone number where additional information on the application may be obtained;
g. A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards can be reviewed at Silverton City Hall at no cost and that copies shall be provided at a reasonable cost;
h. A statement that a copy of the city’s staff report and recommendation to the hearings body shall be available for review at no cost at least seven days before the hearing, and that a copy shall be provided on request at a reasonable cost;
i. A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and
j. The following notice: “Notice to mortgagee, lien holder, vendor, or seller: The city of Silverton development code requires that if you receive this notice it shall be promptly forwarded to the purchaser.”
3. Posting Notice. The site shall be posted with a notice that contains a brief description of the project, the file number assigned to the project by the city and the address of City Hall and the phone number for the community development department. The notice shall be clearly visible to pedestrians and motorists and must be able to withstand adverse weather.
D. Conduct of the Public Hearing.
1. At the commencement of the hearing, the hearings body shall state to those in attendance:
a. The applicable review criteria and standards that apply to the application or appeal;
b. A statement that testimony and evidence shall concern the review criteria described in the staff report, or other criteria in the comprehensive plan or land use regulations that the person testifying believes to apply to the decision;
c. A statement that failure to raise an issue with sufficient detail to give the hearings body and the parties an opportunity to respond to the issue, means that no appeal may be made to the State Land Use Board of Appeals on that issue;
d. Before the conclusion of the initial evidentiary hearing, any participant may ask the planning commission for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing. The hearings body shall grant the request by scheduling a date to finish the hearing (a “continuance”) per subsection (D)(2) of this section, or by leaving the record open for additional written evidence or testimony per subsection (D)(3) of this section.
2. If the planning commission grants a continuance, the completion of the hearing shall be continued to a date, time, and place at least seven days after the date of the first evidentiary hearing. An opportunity shall be provided at the second hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the second hearing, any person may request, before the conclusion of the second hearing, that the record be left open for at least seven days, so that they can submit additional written evidence or testimony in response to the new written evidence.
3. If the planning commission leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days after the hearing. Any participant may ask the city in writing for an opportunity to respond to new evidence submitted during the period that the record was left open. If such a request is filed, the planning commission shall reopen the record.
a. When the planning commission reopens the record to admit new evidence or testimony, any person may raise new issues that relate to that new evidence or testimony;
b. An extension of the hearing or record granted pursuant to subsection (D) of this section is subject to the limitations of ORS 227.178 (“120-day rule”), unless the continuance or extension is requested or agreed to by the applicant;
c. If requested by the applicant, the city shall allow the applicant at least seven days after the record is closed to all other persons to submit final written arguments in support of the application, unless the applicant expressly waives this right. The applicant’s final submittal shall be part of the record but shall not include any new evidence;
d. The record shall contain all testimony and evidence that is submitted to the city and that the hearings body has not rejected;
e. In making its decision, the hearings body may take notice of facts not in the hearing record (e.g., local, state, or federal regulations; previous city decisions; case law; staff reports). The review authority must announce its intention to take notice of such facts in its deliberations, and allow persons who previously participated in the hearing to request the hearing record be reopened, if necessary, to present evidence concerning the noticed facts;
f. The review authority shall retain custody of the record until the city issues a final decision.
4. Participants in the appeal of a Type II administrative decision or participants in a Type III hearing are entitled to an impartial review authority as free from potential conflicts of interest and pre-hearing ex parte contacts (see subsection (D)(5) of this section) as reasonably possible. However, the public has a countervailing right of free access to public officials. Therefore:
a. At the beginning of the public hearing, hearings body members shall disclose the substance of any pre-hearing ex parte contacts (as defined in subsection (D)(5) of this section) concerning the application or appeal. He or she shall state whether the contact has impaired their impartiality or their ability to vote on the matter and shall participate or abstain accordingly;
b. A member of the hearings body shall not participate in any proceeding in which they, or any of the following, have a direct or substantial financial interest: their spouse, brother, sister, child, parent, father-in-law, mother-in-law, partner, any business in which they are then serving or have served within the previous two years, or any business with which they are negotiating for or have an arrangement or understanding concerning prospective partnership or employment. Any actual or potential interest shall be disclosed at the hearing where the action is being taken;
c. Disqualification of a member of the hearings body due to contacts or conflict may be ordered by a majority of the members present and voting. The person who is the subject of the motion may not vote on the motion to disqualify;
d. If a member of the hearings body abstains or is disqualified, the city may provide a substitute in a timely manner subject to the impartiality rules in subsections (D)(4) and (5) of this section. In this case, a member of the city council appointed by a majority vote of the city council may substitute for a member of the planning commission;
e. If all members of the planning commission abstain or are disqualified, the city council shall be the hearing body. If all members of the city council abstain or are disqualified, a quorum of those members present who declare their reasons for abstention or disqualification shall be requalified to make a decision;
f. Any member of the public may raise conflict of interest issues prior to or during the hearing, to which the member of the hearings body shall reply in accordance with this section.
5. Ex Parte Communications.
a. Members of the hearings body shall not:
i. Communicate directly or indirectly with any applicant, appellant, other party to the proceedings, or representative of a party about any issue involved in a hearing without giving notice per subsection (D)(4) of this section;
ii. Take official notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case, unless all participants are given the opportunity to respond to the noticed materials.
b. No decision or action of the hearings body shall be invalid due to ex parte contacts or bias resulting from ex parte contacts, if the person receiving contact:
i. Places in the record the substance of any written or oral ex parte communications concerning the decision or action; and
ii. Makes a public announcement of the content of the communication and of all participants’ right to dispute the substance of the communication made. This announcement shall be made at the first hearing following the communication during which action shall be considered or taken on the subject of the communication.
c. A communication between city staff and the hearings body is not considered an ex parte contact.
6. Presenting and Receiving Evidence.
a. The hearings body may set reasonable time limits for oral presentations and may limit or exclude cumulative, repetitious, irrelevant or personally derogatory testimony or evidence;
b. There may be a presentation of a staff report, a presentation by the applicant or those representing the applicant, a presentation by those who oppose the proposed application, by those in favor of the proposed application and by those who do not necessarily support or oppose the proposed application;
c. A rebuttal by the applicant shall be limited to issues raised during the presentation of evidence in opposition or neutral. A surrebuttal shall be limited to issues raised during the rebuttal of the evidence;
d. No oral testimony shall be accepted after the close of the public hearing. Written testimony may be received after the close of the public hearing, only as provided in subsection (D) of this section;
e. Members of the hearings body may visit the property and the surrounding area, and may use information obtained during the site visit to support their decision, if the information relied upon is disclosed at the beginning of the hearing and an opportunity is provided to dispute the evidence.
E. The Decision Process.
1. Basis for Decision. Approval or denial of an appeal of a Type II administrative decision or of a Type III application shall be based on standards and criteria in the development code. The standards and criteria shall relate approval or denial of a discretionary development permit application to the development regulations and, when appropriate, to the comprehensive plan for the area in which the development would occur and to the development regulations and comprehensive plan for the city as a whole;
2. Findings and Conclusions. Approval or denial shall be based upon the criteria and standards considered relevant to the decision. The written decision shall explain the relevant criteria and standards, state the facts relied upon in rendering the decision, and justify the decision according to the criteria, standards, and facts;
3. Form of Decision. The planning commission shall issue a final written order containing the findings and conclusions stated in subsection (E)(2) of this section, which either approves, denies, or approves with specific conditions. The planning commission may also issue appropriate intermediate rulings when more than one permit or decision is required;
4. Decision-Making Time Limits. A final order for any Type II administrative appeal or Type III action shall be filed with the community development director or designee within 10 business days after the close of the deliberation;
5. Notice of Decision. Written notice of a Type II administration appeal decision or a Type III decision shall be mailed to the applicant and to all participants of record within 10 business days after the hearings body decision. Failure of any person to receive mailed notice shall not invalidate the decision; provided, that a good faith attempt was made to mail the notice;
6. Final Decision and Effective Date. The decision of the hearings body on any Type II appeal or any Type III application is final for purposes of appeal on the date it is mailed by the city. The decision is effective on the day after the 10-day appeal period expires. If an appeal for a Type III application is filed, the decision becomes effective on the day after the appeal is decided by the city council. The notification and hearings procedures for Type III applications on appeal to the city council shall be the same as for the initial hearing. An appeal of a Type II appeal decision to the State Land Use Board of Appeals must be filed within 21 days of the review body’s written decision. An appeal of a land use decision to the State Land Use Board of Appeals must be filed within 21 days of the city council’s written decision;
7. Appeals. Appeals of Type III decisions are heard by the city council, as applicable, and follow the procedures below:
a. Who May Appeal. The following people have legal standing to appeal a Type III decision:
i. The applicant or owner of the subject property;
ii. Any other person who participated in the proceeding by submitting oral or written comments.
b. Appeal Filing Procedure.
i. Notice of Appeal. Any person with standing to appeal, as provided in subsection (E)(1) of this section may appeal a Type III decision by filing a notice of appeal according to the following procedures;
ii. Time for Filing. A notice of appeal shall be filed with the community development director or designee within 10 days of the date the notice of Type III decision was mailed;
iii. Content of Notice of Appeal. The notice of appeal shall contain:
(A) An identification of the decision being appealed, including the date of the decision;
(B) A statement demonstrating the person filing the notice of appeal has standing to appeal;
(C) A statement explaining the specific issues being raised on appeal;
(D) If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period;
(E) If de novo review is requested, a statement summarizing the new evidence which will be offered and the criteria to which it will relate. The decision to grant a de novo hearing rests solely upon the discretion of the city council;
(F) Filing fee.
c. Scope of Appeal. The review body shall determine the scope of review on appeal to one of the following:
i. Restricted to the record made on the decision being appealed. The record shall include a factual report prepared by the community development director, all exhibits, materials, pleadings, memoranda, stipulations, and motions submitted by any party and received or considered in reaching the decision under review, and the minutes of the hearing. The reviewing body may make its decision based only upon the record or may grant the right of oral argument to all affected parties, but not the introduction of additional evidence.
ii. Limited to such issues as the reviewing body determines necessary for a proper resolution of the matter.
iii. A de novo hearing on the merits. “De novo hearing” shall mean a hearing by the review body as if the request had not been previously heard and as if no decision had been rendered, except that all testimony, evidence, and other material from the record of the previous consideration may be included in the record of the review. The presiding officer may establish a time limit for presentation of information at the public hearing.
d. Appeal Procedures. A Type III notice, hearing procedures and decision process shall also be used for appeals of Type III decisions, as provided in SDC 4.1.400. Appeal applications which are not filled out completely and include all information required by the application form will not be processed by the city.
e. Further Appeal to LUBA. The decision of the review body regarding an appeal of a Type III decision is the final decision of the city. The decision of the review body on an appeal is final and effective on the date it is mailed by the city. The review body’s decision may be appealed to the State Land Use Board of Appeals within 21 days of the written notice of decision pursuant to ORS 197.805 through 197.860.
8. City Council Call-Up of Planning Commission Decision. The city council may call up any planning action for a decision upon motion and majority vote, provided such vote takes place in the required appeal period. Unless the planning action is appealed and a public hearing is required, the council review of the planning action is limited to the record and public testimony is not allowed. The council may affirm, modify, or reverse the decision of the planning commission, or may remand the decision to the commission for additional consideration if sufficient time is permitted for making a final decision of the city. The council shall make findings and conclusions and cause copies of a final order to be sent to all parties of the planning action. (Ord. 20-09 § 3 (Exh. B), 2020; Ord. 15-12 § 1 (Exh. A), 2015; Ord. 14-01 § 1 (Exh. A), 2014; Ord. 10-02 Exh. A § B, 2010; Ord. 08-06 § 3, 2008)
4.1.500 Type IV procedure (legislative).
A. Pre-Application Conference. A pre-application conference is required for all Type IV applications initiated by a party other than the city of Silverton. The requirements and procedures for a pre-application conference are described in SDC 4.1.600(C).
B. Timing of Requests. The city council may establish a calendar for the purpose of accepting Type IV requests only at designated time(s). At a minimum, Type IV requests shall be filed not less than 60 days prior to the requested initial hearing date. The city council may initiate its own legislative proposals at any time.
C. Application Requirements.
1. Application Forms. Type IV applications shall be made on forms provided by the community development director or designee.
2. Submittal Information. A total of five copies of the application shall be submitted. An additional seven copies shall be submitted after the community development director has deemed the application complete, and additional copies may be required after the planning commission has completed its review and has forwarded a recommendation to city council. The application shall contain:
a. The information requested on the application form;
b. Plans, exhibits, studies, and/or other information, as required by the community development director, to assist the city in addressing the applicable criteria and standards in sufficient detail for review and decision;
c. The required, nonrefundable fee;
d. A letter or narrative statement that explains how the application satisfies each and all of the relevant review criteria and standards; and
e. A certified list prepared by a title company or certified by the Marion County tax assessor’s office with the names and addresses of all property owners within 500 feet of the subject site.
f. Applications which are not filled out completely and include all information required by the application form will not be processed by the city.
D. Notice of Hearing.
1. Required Hearings. A minimum of two hearings, one before the planning commission and one before the city council, are required for all Type IV applications (e.g., rezonings and comprehensive plan amendments).
2. Notification Requirements. Notice of public hearings for the request shall be given by the community development director or designee in the following manner:
a. At least 20 days, but not more than 40 days, before the date of the first hearing on an ordinance that proposes to amend the comprehensive plan or any element thereof, or to adopt an ordinance that proposes to rezone property, a notice shall be prepared in conformance with ORS 227.186 and mailed to:
i. Each owner whose property would be rezoned in order to implement the ordinance (including owners of property subject to a comprehensive plan amendment) shall be notified if a zone change would be required to implement the proposed comprehensive plan amendment;
ii. All property owners and residents within 700 feet of the subject site;
iii. Any affected governmental agency, including road authorities and transportation service providers;
iv. Any person who requests notice in writing;
v. For a zone change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175;
vi. Owners of airports shall be notified of a proposed zone change in accordance with ORS 227.175.
b. At least 10 days before the scheduled planning commission public hearing date, and 14 days before the city council hearing date, public notice shall be published in a newspaper of general circulation in the city.
c. The community development director or designee shall:
i. For each mailing of notice, file an affidavit of mailing in the record as provided by subsection (D)(2)(a) of this section; and
ii. For each published notice, file in the record the affidavit of publication in a newspaper that is required in subsection (D)(2)(b) of this section.
d. The Oregon Department of Land Conservation and Development (DLCD) shall be notified in writing of proposed comprehensive plan and development code amendments at least 35 days before the first public hearing at which public testimony or new evidence will be received. The notice to DLCD shall include a DLCD certificate of mailing.
e. Notifications for annexation shall follow the provisions of this chapter.
3. Content of Notices. The mailed and published notices shall include the following information:
a. The number and title of the file containing the application, and the address and telephone number of the community development director or designee’s office where additional information about the application can be obtained;
b. The proposed site location;
c. A description of the proposed site and the proposal in enough detail for people to determine what change is proposed, and the place where all relevant materials and information may be obtained or reviewed;
d. The time(s), place(s), and date(s) of the public hearing(s); a statement that public oral or written testimony is invited; and a statement that the hearing will be held under this title and rules of procedure adopted by the council and available at City Hall (see subsection (E) of this section); and
e. Each mailed notice required by subsection (D) of this section shall contain the following statement: “Notice to mortgagee, lien holder, vendor, or seller: The city of Silverton development code requires that if you receive this notice it shall be promptly forwarded to the purchaser.”
4. Posting Notice. The site shall be posted with a notice that contains a brief description of the project, the file number assigned to the project by the city and the address of City Hall and the phone number for the community development department 10 days prior to the first public hearing. The notice shall be clearly visible to pedestrians and motorists and must be able to withstand adverse weather.
5. Failure to Receive Notice. The failure of any person to receive notice shall not invalidate the action, providing:
a. Personal notice is deemed given where the notice is deposited with the United States Postal Service;
b. Published notice is deemed given on the date it is published.
E. Hearing Process and Procedure.
1. Unless otherwise provided in the rules of procedure adopted by the city council:
a. The presiding officer of the planning commission and of the city council shall have the authority to:
i. Regulate the course, sequence, and decorum of the hearing;
ii. Direct procedural requirements or similar matters; and
iii. Impose reasonable time limits for oral presentations.
b. No person shall address the commission or the council without:
i. Receiving recognition from the presiding officer; and
ii. Stating their full name and address.
c. Disruptive conduct such as applause, cheering, or display of signs shall be cause for expulsion of a person or persons from the hearing, termination or continuation of the hearing, or other appropriate action determined by the presiding officer.
2. Unless otherwise provided in the rules of procedures adopted by the council, the presiding officer of the commission and of the council shall conduct the hearing as follows:
a. The presiding officer shall begin the hearing with a statement of the nature of the matter before the body, a general summary of the procedures, a summary of the standards for decision-making, and whether the decision that will be made is a recommendation to the city council or the final decision of the council;
b. The community development director or designee’s report and other applicable staff reports shall be presented;
c. The public shall be invited to testify;
d. The public hearing may be continued to allow additional testimony or it may be closed; and
e. The hearing body’s deliberation may include questions to the staff, comments from the staff, and inquiries directed to any person present.
F. Continuation of the Public Hearing. The planning commission or the city council may continue any hearing, and no additional notice of hearing shall be required if the matter is continued to a specified place, date, and time.
G. Decision-Making Criteria. The recommendation by the planning commission and the decision by the city council shall be based on the following factors:
1. Approval of the request is consistent with the statewide planning goals;
2. Approval of the request is consistent with the comprehensive plan; and
3. The property and affected area is presently provided with adequate public facilities, services and transportation networks to support the use, or such facilities, services and transportation networks are planned to be provided concurrently with the development of the property.
H. Approval Process and Authority.
1. The planning commission shall:
a. After notice and a public hearing, vote on and prepare a recommendation to the city council to approve, approve with modifications, approve with conditions, deny the proposed change, or adopt an alternative; and
b. Within 14 business days of determining a recommendation, the presiding officer shall sign the written recommendation, and it shall be filed with the community development director or designee;
2. Any member of the planning commission who votes in opposition to the planning commission’s majority recommendation may file a written statement of opposition with the community development director or designee before the council public hearing on the proposal. The community development director or designee shall send a copy to each council member and place a copy in the record;
3. If the planning commission fails to adopt a recommendation to approve, approve with modifications, approve with conditions, deny the proposed change, or adopt an alternative proposal within 60 days of its first public hearing on the proposed change, the community development director or designee shall:
a. Report the failure together with the proposed change to the city council; and
b. Provide notice and put the matter on the city council’s agenda for the city council to hold a public hearing and make a decision. No further action shall be taken by the commission;
4. The city council shall:
a. Approve, approve with modifications, approve with conditions, deny, or adopt an alternative to an application for legislative change, or remand the application to the planning commission for rehearing and reconsideration on all or part of the application;
b. Consider the recommendation of the planning commission; however, the city council is not bound by the commission’s recommendation; and
c. Act by ordinance, which shall be signed by the mayor after the council’s adoption of the ordinance.
I. Vote Required for a Legislative Change.
1. A vote by a majority of the qualified voting members of the planning commission present is required for a recommendation for approval, approval with modifications, approval with conditions, denial or adoption of an alternative.
2. A vote by a majority of the qualified members of the city council present is required to decide any motion made on the proposal.
J. Notice of Decision. Notice of a Type IV decision shall be mailed to the applicant, all participants of record, and the Department of Land Conservation and Development, within five business days after the city council decision is filed with the community development director or designee. The city shall also provide notice to all persons as required by other applicable laws. Failure of any person to receive mailed notice shall not invalidate the decision; provided, that a good faith attempt was made to mail the notice.
K. Final Decision and Effective Date. A Type IV decision, if approved, shall take effect and shall become final as specified in the enacting ordinance, or if not approved, upon mailing of the notice of decision to the applicant.
L. Appeal. The decision of the review body regarding an appeal of a Type IV decision is the final decision of the city. A legislative decision may be appealed to the State Land Use Board of Appeals by a person with standing within 21 days of the written notice of decision.
M. Record of the Public Hearing.
1. A verbatim record of the proceeding shall be made by stenographic, mechanical, or electronic means. It is not necessary to transcribe an electronic record. The minutes and other evidence presented as a part of the hearing shall be part of the record;
2. All exhibits received and displayed shall be marked to provide identification and shall be part of the record;
3. The official record shall include:
a. All materials considered by the hearings body;
b. All materials submitted by the community development director or designee to the hearings body regarding the application;
c. The verbatim record made by the stenographic, mechanical, or electronic means; the minutes of the hearing; and other documents considered;
d. The final ordinance;
e. All correspondence; and
f. A copy of the notices that were given as required by this chapter. (Ord. 20-09 § 3 (Exh. B), 2020; Ord. 14-01 § 1 (Exh. A), 2014; Ord. 10-02 Exh. A § B, 2010; Ord. 08-06 § 3, 2008)
4.1.600 General provisions applicable to all reviews – 120-day rule – Time computation – Pre-application conferences – Acceptance and review – Community development director’s duties – Amended applications – Resubmittal – Appeals.
A. One-Hundred-Twenty-Day Rule. The city shall take final action on Type I, II, and III permit applications that are subject to this chapter, including resolution of all appeals, within 120 days from the date the application is deemed as complete, unless the applicant requests an extension in writing. Any exceptions to this rule shall conform to the provisions of ORS 227.178. (The 120-day rule does not apply to Type IV legislative decisions or plan and code amendments under ORS 227.178.)
B. Time Computation. In computing any period of time prescribed or allowed by this chapter, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or legal holiday, including Sunday, in which event, the period runs until the end of the next day that is not a Saturday or legal holiday.
C. Pre-Application Conferences.
1. Applicant’s Responsibility. When a pre-application conference is required or requested, the applicant shall submit a summary of the proposal to the community development director with a nonrefundable fee at least seven days beforehand, then meet with the community development director or his/her designee(s) and other parties as appropriate at the scheduled time;
2. Information Provided. At such conference, the community development director or designee shall:
a. Cite the comprehensive plan policies and map designations applicable to the proposal;
b. Cite the ordinance provisions, including substantive and procedural requirements applicable to the proposal;
c. Provide available technical data and assistance that will aid the applicant;
d. Identify other governmental policies and regulations that relate to the application; and
e. Reasonably identify other opportunities or constraints concerning the application;
3. Disclaimer. Failure of the community development director or his/her designee to provide any of the information required by this subsection (C) shall not constitute a waiver of any of the standards, criteria or requirements for the application;
4. Changes in the Law. Due to possible changes in federal, state, regional, and local law, the applicant is responsible for ensuring that the application complies with all applicable laws on the day the application is deemed complete.
5. Agency Participation. The city shall invite agencies potentially affected by the proposal, including road authorities and transportation service providers, to participate in the preapplication conference, whether in person or in written comments.
D. Acceptance and Review of Applications.
1. Initiation of Applications.
a. Applications for approval under this chapter may be initiated by:
i. Order of city council;
ii. Resolution of the planning commission;
iii. The community development director or designee;
iv. A record owner of property (person(s) whose name is on the most recently recorded deed), or contract purchaser with written permission from the record owner.
b. Any person authorized to submit an application for approval may be represented by an agent authorized in writing to make the application on their behalf.
2. Consolidation of Proceedings. When an applicant applies for more than one type of land use or development permit (e.g., Type II and III) for the same one or more parcels of land, the proceedings shall be consolidated for review and decision.
a. If more than one approval authority would be required to decide on the applications if submitted separately, then the decision shall be made by the approval authority having original jurisdiction over one of the applications, in the following order of preference: the council, the commission, or the community development director or designee.
b. When proceedings are consolidated:
i. The notice shall identify each application to be decided;
ii. The decision on a plan map amendment shall precede the decision on a proposed zone change and other decisions on a proposed development. Similarly, the decision on a zone map amendment shall precede the decision on a proposed development and other actions; and
iii. Separate findings and decisions shall be made on each application.
3. Check for Acceptance and Completeness. In reviewing an application for completeness, the following procedure shall be used:
a. Acceptance. When an application is received by the city, the community development director or designee shall immediately determine whether the following essential items are present. If the following items are not present, the application shall not be accepted and shall be immediately returned to the applicant:
i. The required forms;
ii. The required, nonrefundable fee;
iii. The signature of the applicant on the required form and signed written authorization of the property owner of record if the applicant is not the owner.
b. Completeness.
i. Review and Notification. After the application is accepted, the community development director or designee shall review the application for completeness. If the application is incomplete, the community development director or designee shall notify the applicant in writing of exactly what information is missing within 30 days of receipt of the application and allow the applicant 180 days to submit the missing information, or 14 days to submit a refusal statement;
ii. Application Deemed Complete for Review. In accordance with the application submittal requirements of this chapter, the application shall be deemed complete upon the receipt by the community development director or designee of all required information. The applicant shall have the option of withdrawing the application, or refusing to submit information requested by the community development director or designee in this subsection (D)(3)(b). For the refusal to be valid, the refusal shall be made in writing and received by the community development director or designee no later than 14 days after the date on the community development director or designee’s letter of incompleteness. If the applicant refuses in writing to submit the missing information, the application shall be deemed complete for processing on the thirty-first day after the community development director or designee first accepted the application.
iii. Standards and Criteria That Apply to the Application. Approval or denial of the application shall be based upon the standards and criteria that were applicable at the time it was first accepted.
iv. Coordinated Review. The city shall also submit the application for review and comment to the city engineer, road authority, and other applicable county, state, and federal review agencies.
4. Changes or Additions to the Application During the Review Period. Once an application is deemed complete:
a. All documents and other evidence relied upon by the applicant shall be submitted to the community development director or designee at least seven days before the notice of action or hearing is mailed, if possible. Documents or other evidence submitted after that date shall be received by the community development director or designee, and transmitted to the hearings body, but may be too late to include with the staff report and evaluation;
b. When documents or other evidence are submitted by the applicant during the review period but after the application is deemed complete, the assigned review person or body shall determine whether or not the new documents or other evidence submitted by the applicant significantly change the application;
c. If the assigned reviewer determines that the new documents or other evidence significantly change the application, the reviewer shall include a written determination that a significant change in the application has occurred as part of the decision. In the alternative, the reviewer may inform the applicant, either in writing or orally at a public hearing, that such changes may constitute a significant change (see subsection (D)(4)(d) of this section), and allow the applicant to withdraw the new materials submitted, in order to avoid a determination of significant change;
d. If the applicant’s new materials are determined to constitute a significant change in an application that was previously deemed complete, the city shall take one of the following actions, at the choice of the applicant:
i. Continue to process the existing application and allow the applicant to submit a new second application with the proposed significant changes. Both the old and the new applications will proceed, but each will be deemed complete on different dates and may therefore be subject to different criteria and standards and different decision dates;
ii. Suspend the existing application and allow the applicant to submit a new application with the proposed significant changes. Before the existing application can be suspended, the applicant must consent in writing to waive the 120-day rule (SDC 4.1.600(A)) on the existing application. If the applicant does not consent, the city shall not select this option;
iii. Reject the new documents or other evidence that has been determined to constitute a significant change, and continue to process the existing application without considering the materials that would constitute a significant change. The city will complete its decision-making process without considering the new evidence;
e. If a new application is submitted by the applicant, that application shall be subject to a separate check for acceptance and completeness and will be subject to the standards and criteria in effect at the time the new application is accepted.
E. Community Development Director’s Duties. The community development director or designee shall:
1. Prepare application forms based on the criteria and standards in applicable state law, the city’s comprehensive plan, and implementing ordinance provisions;
2. Accept all development applications that comply with this section;
3. Prepare a staff report that summarizes the application(s) and applicable decision criteria, and provides findings of conformance and/or nonconformance with the criteria. The staff report and findings may also provide a recommended decision of: approval, denial, or approval with specific conditions that ensure conformance with the review criteria;
4. Prepare a notice of the proposal decision:
a. In the case of an application subject to a Type I or II review process, the community development director or designee shall make the staff report and all case-file materials available at the time that the notice of the decision is issued;
b. In the case of an application subject to a hearing (Type III or IV process), the community development director or designee shall make the staff report available to the public at least seven days prior to the scheduled hearing date, and make the case-file materials available when notice of the hearing is mailed, as provided by SDC 4.1.300(C) (Type II), 4.1.400(C) (Type III), or 4.1.500(D) (Type IV);
5. Administer the hearings process;
6. File notice of the final decision in the city’s records and mail a copy of the notice of the final decision to the applicant; all persons who provided comments or testimony; persons who requested copies of the notice; and any other persons entitled to notice by law;
7. Maintain and preserve the file for each application for the time period required by law. The file shall include, as applicable, a list of persons required to be given notice and a copy of the notice given; the affidavits of notice; the application and all supporting information; the staff report; the final decision including the findings, conclusions and conditions, if any; all correspondence; minutes of any meeting at which the application was considered; and any other exhibit, information or documentation that was considered by the decision-maker(s) on the application; and
8. Administer the appeals and review process.
F. Amended Decision Process.
1. The purpose of an amended decision process is to allow the community development director or designee to correct typographical errors, rectify inadvertent omissions and/or make other minor changes that do not materially alter the decision.
2. The community development director or designee may issue an amended decision after the notice of final decision has been issued but before the appeal period has expired. If such a decision is amended, the decision shall be issued within 14 business days after the original decision would have become final, but in no event beyond the 120-day period required by state law. A new 10-day appeal period shall begin on the day the amended decision is issued.
3. Notice of an amended decision shall be given using the same mailing and distribution list as for the original decision notice.
4. Modifications to approved plans or conditions of approval requested by the applicant shall follow the procedures in Chapter 4.6 SDC. All other changes to decisions that are not modifications under Chapter 4.6 SDC follow the appeal process.
G. Resubmittal of Application Following Denial. An application that has been denied, or an application that was denied and on appeal or review has not been reversed by a higher authority, including the Land Use Board of Appeals, the land conservation and development commission or the courts, may not be resubmitted as the same or a substantially similar proposal for the same land for a period of at least 12 months from the date the final city action is made denying the application, unless there is substantial change in the facts or a change in city policy that would change the outcome, as determined by the community development director or designee. (Ord. 20-09 § 3 (Exh. B), 2020; Ord. 08-06 § 3, 2008)
4.1.700 Reserved.
(Ord. 08-06 § 3, 2008)
4.1.800 Neighborhood contact.
Applicants are encouraged to meet with adjacent property owners and neighborhood representatives prior to submitting their application to the city in order to solicit input and exchange information about the proposed development. An applicant is encouraged to hold a neighborhood meeting with a city-recognized neighborhood or community organization and adjacent property owners before submitting the application to the city. (Ord. 08-06 § 3, 2008)
4.1.900 Traffic impact studies.
The purpose of this section is to assist in determining which road authorities participate in land use decisions, and to implement Section 660-012-0045(2)(e) of the State Transportation Planning Rule that requires the city to adopt a process to apply conditions to development proposals in order to minimize impacts and protect transportation facilities. This chapter establishes the standards for when a proposal must be reviewed for potential traffic impacts; when a traffic impact study must be submitted with a development application in order to determine whether conditions are needed to minimize impacts to and protect transportation facilities; what must be in a traffic impact study; and who is qualified to prepare the study.
A. When a Traffic Impact Study Is Required. The city or other road authority with jurisdiction may require a traffic impact study (TIS) as part of an application for development, a change in use, or a change in access. A TIS shall be required when a land use application involves one or more of the following actions:
1. A change in zoning or a plan amendment designation if required by the public works director;
2. Any proposed development or land use action resulting in an increase of 20 single-family dwellings or 200 average daily trips, whichever is less, per the Institute of Transportation Engineers (ITE) Trip Generation Manual;
3. Where a road authority states that it has operational or safety concerns with its facility(ies);
4. A change in land use that may cause an increase in use of adjacent streets by vehicles exceeding the 20,000 pound gross vehicle weights by 20 peak hour trips or more per day;
5. The location of the access driveway does not meet minimum sight distance requirements, or is located where vehicles entering or leaving the property are restricted, or such vehicles queue or hesitate on the state highway, creating a safety hazard;
6. A change in internal traffic patterns that may cause safety problems, such as backup onto a street or greater potential for traffic accidents;
7. An increase in traffic volume of 25 vehicles during the peak hour on a local residential or neighborhood collector residential street.
B. Traffic Impact Study Preparation. A traffic impact study shall be prepared and certified by a professional engineer in accordance with the requirements of the road authority and public works design standards, with the specific scope of work to be determined by the public works director. The study shall account for nearby development and past traffic impact studies, as determined by the public works director. If the road authority is the Oregon Department of Transportation (ODOT), consult ODOT’s regional development review planner and OAR 734-051-180.
C. Approval Criteria. The traffic impact study report shall be reviewed according to the following criteria:
1. The study complies with the content requirements set forth by the city and/or other road authorities as appropriate.
2. The study demonstrates that adequate transportation facilities exist to serve the proposed land use action or identifies mitigation measures that resolve identified traffic safety problems in a manner that is satisfactory to the road authority.
3. For affected city facilities, the study demonstrates that the project meets mobility and other applicable performance standards established in the adopted transportation system plan, and includes identification of multimodal solutions used to meet these standards, as needed.
4. The proposal demonstrates that mitigation measures will address any increases in traffic on affected neighborhood streets that result in total volumes greater than 1,200 average daily trips.
5. Proposed design and construction of transportation improvements are in accordance with the design standards and the access spacing standards specified in the transportation system plan.
D. Conditions of Approval.
1. The city may deny, approve, or approve a proposal with conditions necessary to meet operational and safety standards; provide the necessary right-of-way for planned improvements; and require construction of improvements to ensure consistency with the future planned transportation system.
2. Construction of off-site improvements may be required to mitigate impacts resulting from development that relate to capacity deficiencies and public safety; and/or to upgrade or construct public facilities to city standards.
3. Where the existing transportation system is shown to be impacted by the proposed use, improvements such as paving; curbing; installation of or contribution to traffic signals; and/or construction of sidewalks, bikeways, access ways, paths, or streets that serve the proposed use may be required.
4. The city may require mitigation actions to address traffic impacts that would add significant traffic volumes or change vehicle speeds on surrounding neighborhood or local streets, including beyond the following thresholds:
a. Average daily traffic volumes exceeding 1,200 vehicles on local residential streets.
b. Average speeds above 28 miles per hour (based on 85th percentile speed) on local residential or neighborhood collector residential streets.
5. Improvements required as a condition of development approval, when not voluntarily provided by the applicant, shall be roughly proportional to the impact of the development on transportation facilities. Findings in the development approval shall indicate how the required improvements directly relate to and are roughly proportional to the impact of development. (Ord. 20-09 § 3 (Exh. B), 2020; Ord. 08-06 § 3, 2008)