Chapter 17.20
PROCEDURES FOR DECISION-MAKING – LEGISLATIVE
Sections:
17.20.020 The application process.
17.20.030 Time periods – Submissions/hearings.
17.20.040 Additional information required, waiver of requirements, and report required.
17.20.050 Duties of the director.
17.20.060 Recommendation and alternative recommendation by the director.
17.20.070 Consolidation of proceedings.
17.20.080 Public hearing – Notice requirements.
17.20.090 Mechanics of giving notice and failure to give notice.
17.20.110 Continuation of the public hearing.
17.20.120 The standards of the decision.
17.20.130 Approval process and authority.
17.20.140 Vote required for a legislative change.
17.20.155 Notice of final decision.
17.20.160 The record of the public hearing.
17.20.010 Purpose.
The purpose of this chapter is to establish procedures applicable to the Community Development Code for consideration of legislative changes to the provisions of the comprehensive plan, implementing ordinances, and maps. (Ord. 2875 § 1.060.010, 2003)
17.20.020 The application process.
(1) A request for a legislative change may be initiated by:
(a) Order of the council;
(b) Resolution of a majority of the commission;
(c) The director;
(d) Any person or the person’s agent authorized in writing to make the application.
(2) Application acceptance:
(a) Form must be complete;
(b) City council must approve the concept;
(c) Fee must be paid unless previously waived by the city council. (Ord. 2875 § 1.060.020, 2003)
17.20.030 Time periods – Submissions/hearings.
(1) The director may receive proposed legislative changes four times a year, and the completed application shall be submitted not more than 75 days and not less than 45 days before the first commission meetings in March, June, September, and December.
(2) The commission shall normally hear the matter at the first meeting in March, June, September, or December, depending upon which date the item has been scheduled.
(3) The council shall normally receive the commission’s recommendations within 30 days after the commission’s decision and schedule a public hearing of the commission’s recommendation. If the planning commission fails to act within 60 days after the scheduled public hearing date, the application shall be forwarded to the city council without a recommendation.
(4) The application shall be made on forms provided by the director.
(5) The application shall be complete and shall:
(a) Contain the information requested on the form;
(b) Address the appropriate criteria in sufficient detail for review and action;
(c) Be accompanied by the required fee except as allowed under SHMC 17.24.345; and
(d) Be accompanied by a narrative addressing the standards in SHMC 17.20.120.
(6) An application shall be deemed incomplete unless it addresses each element required by the form and each element required by this code and is accompanied by the required fee.
(7) The director shall not accept an incomplete application.
(8) The director shall have the authority to waive a requirement of this code in the manner provided by SHMC 17.20.040(2). (Ord. 2875 § 1.060.030, 2003)
17.20.040 Additional information required, waiver of requirements, and report required.
(1) The director may require information in addition to that required by a specific code provision provided:
(a) The information is needed to properly evaluate the proposed development proposal; and
(b) The need can be justified on the basis of a special or unforeseen circumstance.
(2) The director may waive a special requirement for information or a requirement to address a certain approval standard subject to the provisions of subsection (3) of this section provided:
(a) The director finds that specific information is not necessary to properly evaluate the application; or
(b) The director finds that a specific approval standard is not applicable to the application.
(3) Where a requirement is waived, the director shall:
(a) Prepare a memorandum to the record and to the applicant citing the grant of authority, the specific requirements waived, and the reasons;
(b) Advise the applicant in writing that the waiver may be challenged at the hearing on the matter and may be denied by the approval authority; and
(c) Cite in the staff report for the application the specific requirements waived, the reasons for the waiver, and the specific grant of authority. (Ord. 2875 § 1.060.040, 2003)
17.20.050 Duties of the director.
(1) The director shall:
(a) Give notice of the commission hearing as provided by SHMC 17.20.080(3) and (4) and 17.20.090;
(b) Prepare a staff report which includes:
(i) The facts found relevant to the proposal and found by the director to the true;
(ii) The statewide planning goals and guidelines adopted by ORS Chapter 197 found to be applicable and the reasons why any other goal(s) and guideline(s) are not applicable to the proposal;
(iii) Any federal or state statutes or rules the director found applicable;
(iv) Those portions of the comprehensive plan found to be applicable, and if any portion(s) of the plan appears to be reasonably related to the proposal and is not applied, the director shall explain the reasons why such portion(s) of the plan is not applicable;
(v) Those portions of the implementing ordinances relevant to the proposal, and if the provisions are not considered, the director shall explain the reasons why such portion(s) of the ordinances were not considered; and
(vi) An analysis relating the facts found to be true by the director to the applicable criteria and a statement of the alternatives, a recommendation for approval, approval with modification or denial, and, at the option of the director, an alternative recommendation;
(c) Make the staff report and all case-file materials available seven days prior to the scheduled date of the public hearing under SHMC 17.20.080 in writing; and
(d) Cause the public hearing to be held pursuant to SHMC 17.20.080.
(2) The director shall administer the hearings process.
(3) The director shall transmit the record to the council for a hearing as set forth in SHMC 17.20.030(3), and:
(a) Give notice of the council hearing as provided by SHMC 17.20.080;
(b) Prepare a report which shall include, at a minimum, the following:
(i) A copy of the staff report submitted to the commission;
(ii) A copy of the commission recommendation; and
(iii) A copy of the minutes of the commission public hearing;
(c) Make a report to the council; and
(d) Administer the hearings process.
(4) The director shall maintain a register of all applications which have been filed for a decision. The register shall at all times identify at what stage the application is in the process.
(5) The director shall maintain and preserve the file for each application. The file shall include, as applicable, a list of persons required to be given notice and a copy of the notice pursuant to SHMC 17.20.080 and the accompanying affidavits, the application and all supporting information, the staff report, the final adopted document, all correspondence, the minutes of any meetings at which the application was considered and any other exhibits, information or documentation which was considered with respect to the application. (Ord. 2875 § 1.060.050, 2003)
17.20.060 Recommendation and alternative recommendation by the director.
(1) The director may make a recommendation to the commission on the application; however, in addition, the director may recommend an alternative(s).
(2) As a result of the public hearing on the proposed change, the commission may on its own motion recommend to the council an alternative recommendation; however, in addition, the commission must take action on the specific application before it. (Ord. 2875 § 1.060.060, 2003)
17.20.070 Consolidation of proceedings.
In the event there is an application for a legislative change to the plan text or map, and an application for a legislative change to an implementing ordinance text or map, both of which involve either the same geographic area or the same subject matter, the hearings may be consolidated; however:
(1) The decision on the proposed plan change shall precede the decision on the proposed change to the implementation ordinance;
(2) Separate actions shall be taken on each application; and
(3) The change to the implementing ordinance shall implement the change to the plan. (Ord. 2875 § 1.060.070, 2003)
17.20.080 Public hearing – Notice requirements.
(1) The commission shall hold at least one public hearing on each applicable application request.
(2) The council shall hold at least one public hearing on each applicable application request.
(3) Notice of the public hearings on the proposed change and alternatives, if any, shall be given by the director in the following manner:
(a) At least 10 days prior to the scheduled hearing date, notice shall be sent to:
(i) The applicant;
(ii) Any affected governmental agency. Notice shall be sent to ODOT when land subject to the proposed action is located adjacent to a state roadway or the proposed action may have an impact on a state roadway;
(iii) Any person who requests notice in writing and pays a fee established by council resolution; and
(b) At least 14 days prior to the scheduled public hearing date, notice shall be given in a newspaper of general circulation in the city.
(4) The director shall:
(a) For each mailing of notice, cause an affidavit of mailing to be filed and made a part of the record as provided by SHMC 17.20.160; and
(b) For each published notice, cause an affidavit of publication to be filed and made part of the record as provided by SHMC 17.20.160.
(5) The director shall mail notice in accordance with ORS Chapter 197 when applicable. (Ord. 3150 § 3 (Att. B), 2011; Ord. 2875 § 1.060.080, 2003)
17.20.090 Mechanics of giving notice and failure to give notice.
(1) Where either the commission or council or both intend to hold more than one public hearing on the same application, notice of several public hearings before both approval authorities may be given in one notice in the same manner provided under SHMC 17.20.080(3).
(2) The notice given to persons entitled to mailed or published notice pursuant to SHMC 17.20.080(3) shall include the following information:
(a) The number and title of the file containing the application and the address and phone number of the director’s office where additional information can be obtained;
(b) A description of the location of the proposal reasonably calculated to give notice as to the location of the affected geographic area;
(c) A description of the substance of the proposal in sufficient detail for people to determine that a change is contemplated and the place where all relevant materials and information may be obtained or reviewed; and
(d) The time(s), place(s), and date(s) of any public hearing(s); a statement that public oral or written testimony is invited; and a statement that the hearing will be held under this code and rules of procedure adopted by the council and available at City Hall or the rules of procedure set forth in SHMC 17.20.100.
(3) The failure of a person entitled to notice under SHMC 17.20.080(3)(a) to receive notice shall not invalidate the action provided a good faith attempt was made to notify all persons entitled to notice.
(4) Personal notice is deemed given where the notice is deposited with the United States Postal Service.
(5) Published notice is deemed given on the date it is published.
(6) In computing the length of time that notice is given, the first date notice is given shall be excluded and the day of the hearing or the date on which the appeal period or review period expires shall be included unless the last day falls on any legal holiday or on Saturday, in which case, the last day shall be the next business day. (Ord. 2875 § 1.060.090, 2003)
17.20.100 Hearings procedure.
(1) Unless otherwise provided in the rules of procedure adopted by the city council:
(a) The presiding officer of the commission and of the council shall have the authority to:
(i) Regulate the course, sequence, and decorum of the hearing;
(ii) Dispose of 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 mailing address; and
(c) Disruptive conduct such as audience demonstrations in the form of 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 hearing shall be opened by a statement from the presiding officer setting forth the nature of the matter before the body, a general summary of the procedures set forth in this section, a summary of the standards set forth in SHMC 17.20.120, and whether the decision will be made as a recommendation to the city council or whether it will be a final decision of the council;
(b) A presentation of the director’s report and other applicable staff reports shall be given;
(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 body’s deliberation may include questions to the staff, comments from the staff, or inquiries directed to any person present. (Ord. 2875 § 1.060.100, 2003)
17.20.110 Continuation of the public hearing.
The commission or the council may continue any hearing and no additional notice shall be required if the matter is continued to a place, date, and time certain. (Ord. 2875 § 1.060.110, 2003)
17.20.120 The standards of the decision.
(1) The recommendation by the commission and the decision by the council shall be based on consideration of the following factors:
(a) The statewide planning goals and guidelines adopted under ORS Chapter 197, including compliance with the Transportation Planning Rule, as described in SHMC 17.08.060;
(b) Any federal or state statutes or guidelines found applicable;
(c) The applicable comprehensive plan policies, procedures, appendices and maps;
(d) The applicable provisions of the implementing ordinances; and
(e) A proposed change to the St. Helens zoning district map that constitutes a spot zoning is prohibited. A proposed change to the St. Helens comprehensive plan map that facilitates a spot zoning is prohibited.
(2) Consideration may also be given to:
(a) Proof of a change in the neighborhood or community or a mistake or inconsistency in the comprehensive plan or implementing ordinance which is the subject of the application. (Ord. 3215 § 4 (Att. D), 2017; Ord. 3150 § 3 (Att. B), 2011; Ord. 2875 § 1.060.120, 2003)
17.20.130 Approval process and authority.
(1) The commission shall:
(a) After notice and a public hearing, formulate a recommendation to the council to approve, to approve with modifications, or to deny the proposed change, or to adopt an alternative; and
(b) Within 30 days of determining a recommendation, cause the written recommendation to be signed by the presiding officer of the commission and to be filed with the director.
(2) Any member of the commission who voted in opposition to the recommendation by the commission on a proposed change may file a written statement of opposition with the director prior to any council public hearing on the proposed change. The director shall transmit a copy to each member of the council and place a copy in the record.
(3) If the commission fails to recommend approval, approval with modification, or denial of the proposed legislative change within 60 days of the first public hearing on the proposed change, the director shall:
(a) Report the failure together with the proposed change to the council; and
(b) Cause notice to be given, the matter to be placed on the council’s agenda, a public hearing to be held and a decision to be made by the council. No further action shall be taken by the commission.
(4) The council shall:
(a) Have the responsibility to approve, approve with modifications, or deny an application for the legislative change or to remand to the commission for rehearing and reconsideration on all or part of an application transmitted to it under this code;
(b) Consider the recommendation of the commission; however, it is not bound by the commission’s recommendation; and
(c) Act by ordinance, if application approved with or without modifications. (Ord. 2875 § 1.060.130, 2003)
17.20.140 Vote required for a legislative change.
An affirmative vote by a majority of the voting members present of the commission shall be required for a recommendation for the approval or approval with modifications. (Ord. 2875 § 1.060.140, 2003)
17.20.150 The final decision.
The approved legislative change shall take effect after adoption as specified in the enacting ordinance. (Ord. 2875 § 1.060.150, 2003)
17.20.155 Notice of final decision.
Per ORS 197.615:
197.615 Local government notice of adopted amendment or new regulation; content; notice by director. (1) A local government that amends an acknowledged comprehensive plan or land use regulation or adopts a new land use regulation shall mail or otherwise submit to the Director of the Department of Land Conservation and Development a copy of the adopted text of the comprehensive plan provision or land use regulation together with the findings adopted by the local government. The text and findings must be mailed or otherwise submitted not later than five working days after the final decision by the governing body. If the proposed amendment or new regulation that the director received under ORS 197.610 has been substantially amended, the local government shall specify the changes that have been made in the notice provided to the director. 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.
(2)(a) On the same day that the text and findings are mailed or delivered, the local government also shall mail or otherwise submit notice to persons who:
(A) Participated in the proceedings leading to the adoption of the amendment to the comprehensive plan or land use regulation or the new land use regulation; and
(B) Requested of the local government in writing that they be given such notice.
(b) The notice required by this subsection shall:
(A) Describe briefly the action taken by the local government;
(B) State the date of the decision;
(C) 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;
(D) List the place where and the time when the amendment to the acknowledged comprehensive plan or land use regulation or the new land use regulation, and findings, may be reviewed; and
(E) Explain the requirements for appealing the action of the local government under ORS 197.830 to 197.845.
(3) Not later than five working days after receipt of an amendment to an acknowledged comprehensive plan or land use regulation or a new land use regulation submitted under subsection (1) of this section, the director shall notify by mail or other submission any persons who have requested notification. The notice shall:
(a) Explain the requirements for appealing the action of the local government under ORS 197.830 to 197.845; and
(b) List the locations where the comprehensive plan or land use regulation amendment or new land use regulation may be reviewed. [1981 c.748 s.5; 1983 c.827 s.9; 1999 c.255 s.1]
(Ord. 2875 § 1.060.155, 2003)
17.20.160 The record of the public hearing.
(1) A verbatim record of the proceeding shall be made by stenographic or mechanical means. It shall not be necessary to transcribe testimony. 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 so as to provide identification and shall be part of the record. Nothing shall be accepted for the record if it cannot be stored in files nine by 14.75 inches or less.
(3) The official record shall include:
(a) All materials considered by the hearings body;
(b) All materials submitted by the director to the hearings body with respect to the application;
(c) The verbatim record made by the stenographic or mechanical means, the minutes of the hearing, and other documents considered;
(d) The final ordinance;
(e) All correspondence; and
(f) A copy of the notice which was given as provided by SHMC 17.20.080 and 17.20.090, accompanying affidavits, and list of persons who were sent mailed notice. (Ord. 2875 § 1.060.160, 2003)
17.20.170 Reapplication.
If an application has been made and denied in accordance with the provisions set forth in this chapter or by action by the Land Use Board of Appeals, the Land Conservation and Development Commission, or the courts, no new application for the same or substantially similar change shall be accepted within one year from the date of the final action denying the application; except the council may reinitiate an application upon a finding that there has been a substantial change in the facts surrounding the application or a change in policy which would support the reapplication. (Ord. 2875 § 1.060.170, 2003)