17.09.040 Quasi-judicial actions | Hood River Municipal Code

17.09.040 Quasi-judicial actions.

A. The Commission, Landmarks Review Board, and Council, on appeal, have the authority to review and approve, approve with conditions, or deny applications processed as quasi-judicial actions.

B. Decision Types. Quasi-judicial actions are land use decisions, and may include certain limited land use decisions. Quasi-judicial actions include, but are not limited to, the following:

1. Site plan review

2. Conditional use permits

3. Planned unit developments (PUDs)

4. Variances

5. Non-conforming uses

6. Subdivisions

7. Zone changes

8. Street vacations

9. Appeals of Ministerial decisions, Administrative decisions, Landmarks Review Board decisions, or Planning Commission decisions

10. Landmarks Review Board decisions

C. Pre-Application Conference. A pre-application conference may be required at the discretion of the Director prior to filing an application for a quasi-judicial action. Pre-application conference requirements and procedures are found in Section 17.09.120 of this Chapter.

D. Applications. An application for a quasi-judicial action shall be submitted by the owner of the subject property, or shall be accompanied by the owner’s written authorization, on a form provided by the City and shall

1. Include the information requested on the application form

2. Address the criteria in sufficient detail for review and action; and

3. Be accompanied by the required filing fee.

E. Staff Report. The Director shall prepare a written staff report for each quasi-judicial action that identifies the criteria and standards that apply to the application and summarizes the basic findings of fact. The staff report may also include a recommendation for approval, approval with conditions, or denial.

1. Complete applications for quasi-judicial planning actions shall be heard at a regularly scheduled meeting of the hearing body.

2. Hearings on applications for quasi-judicial actions shall be conducted per the procedures in Public Hearings section of this Chapter.

3. Unless otherwise ordered by the hearing body, the Director shall schedule complete applications for quasi-judicial actions in the order in which they are deemed complete.

4. The hearings body shall hold at least one (1) public hearing on a complete application.

5. The applicant has the burden of proof to show why the application complies with the applicable criteria or can be made to comply through applicable conditions.

6. The applicant, appellant, or authorized representative, shall attend the prescribed public hearing for the quasi-judicial action, unless otherwise authorized by the hearing body.

1. At least twenty (20) days before a scheduled quasi-judicial public hearing, notice of the hearing shall be mailed to

a. The applicant and owners of property within 250 feet of the subject property. The list shall be compiled from the last available complete property tax assessment roll; and

b. Any affected governmental agency, department, or public district within, or adjacent to, whose boundaries include the subject property lines. For subject sites located adjacent to a state roadway or where proposals may have an impact on a state facility, notice of the application shall be sent to ODOT.

2. The notice shall

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

b. Set forth the street address or other easily understood geographical references to the subject property.

c. State that failure to raise an issue in writing within the comment period, or failure to provide statements or evidence sufficient to afford the decision maker an opportunity to respond to the issue, precludes appeal to the Council or LUBA on the issue.

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

e. State the place, date, and time of the hearing.

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

g. State that the staff report will be available for inspection at no cost and a copy will be provided at a reasonable cost at least seven (7) days prior to the hearing.

h. Include the name and telephone number of the planning staff to contact for additional information.

i. Include a general explanation of the requirements for submission of testimony and procedure for conduct of hearings.

3. The failure of a property owner to receive actual notice as provided in this Section shall not invalidate the proceedings if the Department can show that the notice was given pursuant to this section.

4. Written notice shall be provided to the Department of Land Conservation and Development as required by ORS 197.610.

1. Except as otherwise provided below, when a hearing is continued, it may be continued to a specific time and place or an undetermined time and place, notice of the continuance will be made as follows:

a. To a specific time and place. If notice of a subsequent hearing is made at a public hearing on the same matter and the specific time and place of the subsequent hearing is stated, then no additional notice is required.

b. Undetermined time and place. If a subsequent hearing has not been scheduled at the time of a previous hearing, as provided in subsection (a) above, then notice of the subsequent hearing must be mailed to all persons who responded to the matter in writing, testified at the previous hearing, or have requested notice. The notice should, but need not, be mailed at least twenty (20) days before the hearing.

2. Applicant Requested Continuance. At any time prior to the date and time set for the initial public hearing, the applicant shall receive a continuance upon any request if accompanied by a corresponding extension of the 120 – day rule under ORS 227.179. At the date and time originally scheduled for the public hearing, the hearing body shall open and continue the public hearing to a date and time certain. This provision also applies to the initial public hearing on appeal. No additional written notice is required.

3. Any Participant. Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, arguments, or testimony regarding the application. The hearings body shall grant the request by continuing the public hearing or leaving the record open for additional written evidence, arguments, or testimony. The granting of a continuance or record extension is at the discretion of the hearings body.

a. Continuance. If the hearings body grants a continuance of the public hearing, the hearing shall be continued to a date, time, and place certain at least seven (7) days from the date of the initial evidentiary hearing. No additional notice of hearing is required if the matter is continued to a specified place, date, and time. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence, arguments, or testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven (7) days to submit additional written evidence, arguments, or testimony for the purpose of responding to the new written evidence.

b. Leave the Record Open. If the hearings body leaves the record open for additional written evidence, arguments or testimony, the record shall be left open for at least seven (7) days. Any participant may file a written request with the local government for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearings body shall reopen the record according to the following procedure:

i. When the hearings body re-opens the record to admit new evidence or testimony, any person may raise new issues which relate to that new evidence or testimony;

ii. An extension of the hearing or record 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;

iii. The hearings body shall allow the applicant at least seven (7) 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.

4. All other continuances and record extensions shall be governed by ORS 197.797(6).

I. Decision on Quasi-Judicial Actions. The decision of the hearing body shall be set forth in writing and signed by the presiding officer. For quasi-judicial annexations and zone changes, the Council’s decision shall be by ordinance. The written decision shall approve, approve with conditions, or deny the action and be based upon and accompanied by a statement that includes

1. An explanation of the criteria and standards considered relevant to the decision;

2. A statement of basic facts relied upon in rendering the decision; and

3. Facts that explain and justify the reason for the decision based on the criteria, standards, and basic facts set forth.

J. Notice of Decision. Decision notice shall be mailed to the applicant, any party of record, and any person or entity entitled to notice within five (5) working days of the date the decision is signed. The decision notice shall include the following:

1. The date of decision,

2. A brief description of the action taken,

3. The place where, and time when, the decision may be reviewed, and

4. An explanation of appeal rights and requirements.

K. Final Decision and Effect Date. A quasi-judicial decision is final for purposes of appeal on the date the Notice of Decision is mailed to the applicant and parties of record. The quasi-judicial decision is effective the day after the initial appeal period expires, regardless of whether an appeal is filed, or as specified in the ordinance containing the decision. Notwithstanding Section 17.09.070(A), a quasi-judicial decision of the Planning Commission is final for purposes of appeal to LUBA if the 120-day period in ORS 227.178 will expire prior to the expiration of , or during, the appeal period for appeal to the City Council.

1. Planning Commission and Landmarks Review Board decisions on quasi-judicial actions may be appealed to the City Council, per the provisions of Appeal Procedures within this Chapter, within twelve (12) days of the date the decision became final.

2. A City Council decision on appeal may be further appealed to LUBA in accordance with the appeal procedures in ORS Chapter 197, within twenty-one (21) days of the date the decision became final.