18.190.050 Type III procedure (quasi-judicial)

18.190.050 Type III procedure (quasi-judicial).

A. Preapplication Conference. A preapplication conference is required for Type III applications. Preapplication conference requirements and procedures appear in TMC 18.190.080(C). In addition, the applicant may be required to present his or her development proposal to a city-recognized neighborhood association or group before the city accepts the application as complete.

1. Application Forms. Type III applications shall be made on forms provided by the city planner;

2. Submittal Information. The application shall include:

a. The information requested on the application form;

b. Be filed with three copies of 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;

c. Be accompanied by the required fee;

d. Include one set of pre-stamped and preaddressed envelopes for all real property owners of record who will receive a notice of the application. The records of the Jackson County department of assessment and taxation are the official records for determining ownership. The applicant shall demonstrate that the most current assessment records have been used to produce the notice list (alternatively, the applicant may pay a fee for the city to prepare the public notice mailing);

e. Include all relevant data and narrative materials to support the land division and/or site plan review application. Data may include an impact study to quantify or assess the effect of the development on public facilities and services. A traffic impact study shall be required if the proposal exceeds the thresholds of Chapter 18.185 TMC, Traffic Impact Study. The study should be consistent with the provisions of Chapter 18.185 TMC. In situations where TMC Title 17 and/or this title requires the dedication of real property to the city, the applicant shall either specifically agree to the dedication requirement, or provide evidence that clearly demonstrates that the real property dedication requirement is not roughly proportional to the projected impacts of the development.

1. Mailed Notice. Notice of a Type III application hearing or Type II appeal hearing (TMC 18.190.040(E)) shall be given by the city planner in the following manner:

a. At least 20 calendar days before the hearing date, notice shall be mailed to:

i. The applicant and all owners or contract purchasers of record of the property which is the subject of the application;

ii. All property owners of record within 250 feet of the site;

iii. Any governmental agency which has entered into an intergovernmental agreement with the city and includes provision for such notice, or who is otherwise entitled to such notice;

iv. Any neighborhood or community organization recognized by the city council and whose boundaries include the property proposed for development;

v. Any person who submits a written request to receive notice;

vi. For appeals, the appellant, all persons who provided written and oral testimony, and any person adversely affected or aggrieved; and

vii. For a land use district change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175;

b. The city planner 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 posted on the property and mailed to the persons who must receive notice;

c. At least 10 days and not more than 14 calendar 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;

d. At least 10 days and not more than 14 calendar days before the hearing, the applicant shall post notice of the hearing on the property per subsection (C)(2) of this section. The applicant shall prepare and submit an affidavit of posting of the notice, which shall be made part of the administrative record.

2. Content of Notice. Notice of appeal of a Type II administrative decision or a Type III hearing to be mailed, posted, 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, which 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 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, lienholder, vendor, or seller: The city of Talent Zoning Code requires that if you receive this notice it shall be promptly forwarded to the purchaser.”

1. At the commencement of the hearing, the hearings body shall declare to those in attendance that:

a. The applicable approval criteria and standards that apply to the application or appeal;

b. A statement that testimony and evidence shall concern the approval criteria described in the staff report, or other criteria in the comprehensive plan or land use regulations which 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 hearings body for an opportunity to present additional relevant evidence or testimony that is within the scope of the hearing. The hearings body may 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 hearings body 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 hearings body 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 the record was left open. If such a request is filed, the planning commission shall reopen the record per subsection (F) of this section.

a. When the planning commission reopens the record to admit new evidence or testimony, any person may raise new issues which relate to that new evidence or testimony;

b. An extension of the hearing or record granted pursuant to 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.

a. The record shall contain all testimony and evidence that are submitted to the city and the hearings body and not rejected;

b. The hearings body may take official notice of judicially recognizable facts under the applicable law. If the review authority takes official notice, it must announce its intention and allow persons participating in the hearing to present evidence concerning the noticed facts; and

c. The review authority shall retain custody of the record until the city issues a final decision.

5. Participants in the appeal of a Type II administrative decision or a Type III hearing are entitled to an impartial review authority as free from potential conflicts of interest and prehearing ex parte contacts (see subsection (D)(6) of this section) as reasonably possible. However, the public has a countervailing right to hear and present arguments at a public hearing. Therefore:

a. At the beginning of the public hearing, hearings body members shall disclose the substance of any prehearing ex parte contacts (as defined in subsection (D)(6) 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 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 as a result of contacts or conflict may be ordered by a majority of the voting members present. The person who is the subject of the motion may not vote on the motion to disqualify;

d. If all members abstain or are disqualified, those members present who declare their reasons for abstention or disqualification shall not be requalified to make a decision;

e. If a member of the hearings body abstains or is disqualified, the city may provide a substitute in a timely manner to make a quorum, subject to the impartiality rules in subsection (D)(6) of this section; and

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.

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, except upon giving notice, per subsection (D)(5) of this section; and

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, 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.

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. 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; and

c. 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 hearing and an opportunity is provided to dispute the evidence. In the alternative, a member of the hearings body may visit the property to familiarize himself or herself with the site and surrounding area, but not to independently gather evidence. In the second situation, at the beginning of the hearing, he or she shall disclose the circumstances of the site visit and shall allow all participants to ask about the site visit.

1. Basis for Decision. Approval or denial of an appeal of a Type II administrative decision or a Type III application shall be based on standards and criteria in this title, TMC Title 17, and any other applicable ordinances. The standards and criteria shall relate approval or denial of a discretionary development 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 hearings body shall issue a final written order containing the findings and conclusions stated in subsection (E)(2) of this section, which approves, denies, or approves with specific conditions. The hearings body may also issue appropriate intermediate rulings when more than one permit or decision is required; and

4. Decision-Making Time Limits. A final order for any Type II administrative appeal or Type III action shall be written and filed by the city planner within 30 calendar days after the close of the deliberation.

F. Appeal Procedures. An appeal of a Type III application to the city council shall be heard through a de novo hearings procedure. Only those with standing to appeal may present arguments, but can submit new evidence into the record. The hearings officer may place conditions of approval to meet the applicable criteria or deny an application based on applicable criteria not met, but must be supported by findings of fact in the record. An appeal of a hearings officer decision may be appealed by those with standing to the State Land Use Board of Appeals within 21 days of the date of the notice of decision or order, whichever is later.

G. Notice of Decision. Written notice of a Type II administrative appeal decision or a Type III decision shall be mailed to the applicant and to all participants of record within five business days after the final order of 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.

H. 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 appeal period expires. If an appeal is filed, the decision becomes effective on the day after the appeal is decided by the designated hearings body. The notification and hearings procedures for Type III applications on appeal to the hearings officer shall be the same as for the initial hearing. [Ord. 966 § 2 (Exh. B), 2021; Ord. 911 § 2 (Exh. A), 2016; Ord. 817 § 8-3M.150, 2006.]