Ordinance No. 82-01 CITY OF TIGARD, OREGON
ORDINANCE NO. 82-�;/
AN ORDINANCE AMENDING CHAPTER 18.84 - ADMINISTRATIVE PROCEDURES,
TITLES 17 AND 18 OF THE TIGARD MUNICIPAL CODE, AND DECLARING AN
EMERGENCY.
THE CITY COUNCIL OF THE CITY OF TIGARD DOES ORDAIN AS
FOLLOWS:
Section 1. Chapter 18.84 - Administrative Procedures, Titles
17 and 18 of the Tigard Municipal Code is hereby
amended in conformance with the attached Exhibit A, which is
incorporated herein by reference.
Section 2. Inasmuch as it is necessary for the peace, health
and safety of the people of the City of Tigard that
this amendment be made with the least possible delay, an emergency
is hereby declared to exist, and this ordinance shall become
effective February 1, 1982.
PASSED: By the City Council byJ4 ruvru ct vote of all Council
members present, after being ead two times by number and title
only, this //�" day of , 1982.
i
Recorder - City Tigard
SIGNED: By the Mayor on this day of , 1982.
Mayor - City of Tigard
ORDINANCE NO. 82- ra!
• EXHIBIT A
ADMINISTRATIVE PROCEDURES
Section 18. 84 .010 Purpose
The purpose of this chapter is to establish procedures under
Titles 17 and 18 for the consideration of development applications ,
for the consideration of quasi-judicial comprehensive plan amendments
and for appeals or review of decisions.
Section 18.84 .020 Definitions
As used in this chapter:
(a) "Administrative action" means a quasi-judicial action,
including:
1. An action conducted pursuant to a portion of Titles 17
or 18 of the Tigard City Code in which the legal rights,
duties or privileges of specific parties are determined,
and any appeal or review therefrom;
2. A comprehensive plan map change; or
3. Any other proceedings as provided by ordinance, rule
or resolutionadopted by the Council.
(b) "Appeal" means a request that a final decision by the
Director be considered by a higher authority either on
the basis of a de novo hearing or with the inclusion of
evidence in addition to that considered by the maker of
the initial decision.
(c) "Approval Authority" means either the Director, the Initial
Hearing Body, or the Council, depending on the context in which
the term is used.
(d) "Commission" means the Planning Commission of Tigard,
Oregon.
(e) "Comprehensive plan" shall have the meaning set forth
in ORS 197. 015(9) , shall embody the elements listed in the
state-wide land use planning goals adopted pursuant to ORS
197.240, • and shall include text and maps.
(f) "Council" means the City Council of Tigard, Oregon.
(g) "Development application" means any application required
by an implementing ordinance or Chapters 17 and 18 for the follow-
ing activities: a man--made change to real estate, including but
not limited to, the construction, alteration or use-of buildings,
the division of land, creation of public or private streets or
1 - ADMINISTRATIVE PROCEDURES
ways, mining, excavation, any other activity specifically regulated
by the provisions of Titles 17 and 18, and specifically includes
Comprehensive Plan map changes and zoning map changes .
(h) "Director" means the Planning Director of Tigard ,
Oregon, or authorized agent.
(i) "Final action, " "final decision, " or "final order, "
means: a determination reduced to writing, signed and filed under
Section 18.84.100 (f) by the appropriate approval authority and.
(a) With respect to the Planning Director, a decision
made under Sections 18.84 . 050 (a) and 18 .84 .150
of this chapter, appealable to a further approval
authority, and subject to Council review.
(b) With respect to the initial hearing body, a
decision made under Sections 18 .84 .050 (b) or (c)
or 18.84.10Q to .140 and 18. 84 . 160 to .240 and
subject thereafter to Council review.
k`
(c) With respect to the Council, a decision made under
k
Sections 18 .84 .050 (d) or 18 . 84 . 250 to . 330, or
both, and subject to a Petition for Rehearing.
(j) "Hearings officer, " means a person appointed by the
Council under Section 18 . 84 . 045 of this chapter to hear applications
listed in Section 18. 84 .050 (c) of this chapter.
(k) "Initial hearing body" means the Planning Commission or
the hearings officer appointed by the Council. The term shall
include the City Council only with respect to those matters listed
in Section 18.84 .050 (d) (1) and (2) .
(1) "Implementing ordinance" means an ordinance adopted to
carry out the comprehensive plan, including but not limited to, the
provisions of Titles 17 and 18.
(m) "Party" means a person who has the ._ight to pursue appeal
or review of a decision of an approval authority .
(n) "Quasi-judicial action" means an action which involves the
application of adopted policy to a specific development application
or amendment, as provided by this chapter.
(o) "Review" means a request that a final decision by the
initial approval authority be considered by a higher authority only
on the basis of the record made before the initial hearing body.
Section 18.84.030 The Application Process
(a) Who May Apply
1. Applications for approval required under this chapter may
be initiated by
2 AI`MINISTRATIVE PROCEDURES �
E '
(A) The owner of the property which is the subject of
the application;
(B) The purchaser of such property who submits a duly- k
executed written contract or copy thereof which has
been recorded with the Was}?ington County Director of
Records an,? Elections;
(C) A lessee in possession of such property who
submits written consent of the owner to make such
application; or s
(D) Resolution of the Commission or Council.
t
2. Any persons authorized by this chapter to submit an
application for approval may be represented by an agent
who is authorized in writing by such a person to make a`
the application.
i
(b) Pre-Application Conference Required
1. The applicant shall be required to meet with the director
or a designee of the Director for a pre-application is
conference.
2. At such conference, the Director or designee shall :
i
(A) Cite the applicable comprehensive plan policies f
and map designation;
(B) Cite the applicable substantive and procedural
ordinance provisions; I
(C) Provide technical data and assistance which will
aid the applicant;
(D) Identify other policies and regulations that
relate to the application; and
(E) Identify other opportunities or constraints that
relate to the application.
3. The failure of the Director to provide any of the
information required by this Section shall not consti-
tute a waiver of the utilization of the standards,
criteria, or .requirements to the application.
(c) The Requirements for Making an Application - Refusal
of an Application
( 1. The application shall be made on forms provided by the
director as provided by Section 18.84 .040 (a) (1) of this
code.
3 ADMINISTRATIVE PROCEDURES
2. The application shall be complete, and shall contain
the information requested on the form, address the
appropriate criteria in sufficient detail for review
and action, and be accompanied by the requisite fee.
3. The director shall not accept:
(A) Incomplete applications or applications not
accompanied by the requisite fee; or
E
(B) Applications which the Director determines cannot
be acted upon initially within sixty (60) days due
to such considerations as the complexity of the
application or the status of future agendas, except
where the applicant has consented to a longer period
for action.
An application shall be deemed "incomplete" unless it
addresses each element required to be considered under
applicable provisions of the Tigard Municipal Code and
the application form.
(d) Fees
The Council shall adopt by resolution a schedule of fees '
reasonably calculated to defray the expenses of the adminis-
trative processes of Titles 17 and 18 and this chapter. The
Council may waive any fee upon timely application and shall
charge no fees for city-initiated applications or Neighborhood
Planning Organization appeals or requests for review.
Section 18.84.040 Duties of the Director
(a) The Director shall:
1. Prepare application worms made pursuant to the standards
contained in the applicable state law, comprehensive
plan and implementing ordinance provisions;
2. Accept all development applications which comply with
the provisions of Section 18 .84.030 of this code;
4
3. Within sixty (60) days after accepting an applica-
tion pursuant to this chapter:
(A) Give notice as provided by Section 18.84.070 and
18.84.080;
(B) Prepare a staff report which shall include:
i. The facts deemed relevant to the proposal and
found by the Director to be true.
ii. Until the Tigard Comprehensive Plan and imple-
menting ordinances be acknowledged, those State-
wide Planning Goals deemed to be applicable and
the reasons tray any other goal is not applicable
to the proposal. The Director or approval
authority need not deal with State.-wide Planning
Goals 15-19, which are not applicable in Tigard.
4 ADVIINISTRATWE PROCEDURES
iiiThose portions of the Tigard Comprehensive Pl .lii
and implementing ordinances which the Director
deems to be applicable to the proposal . If any
portion of the plan or ordinances appear to be
reasonably related to the proposal and are deemed'.
not applicable by the Director, the Director shall_
explain why such portion or portions are not
applicable.
iv. An analysis relating the facts deemed true by
the Director to the applicable criteria and a
consideration of alternatives open to
the
approval,
authority, resulting in a recommendation of denies;
approval, or approval with conditions under
Section 18. 84 . 110 ,
(C) Make the staff report and all case--file materials
available at least seven (7) days prior to the
scheduled date of the final decision to all persons
entitled to notice under Section 18 . 840. 70 or
otherwise made a party to the proceeding under
Section 18. 84.140 of this chapter;
(D) Act on the development application pursuant to
Sections 18. 84 .050 (a) and 18 . 84 . 150 of this chapter
or cause a hearing to be held pursuant to Sections
18 .84 . 050 (b) through (d) and 18 . 84 .160 to 18 . 84 . 240
of this chapter, unless the applicant has requested
or consented to a delay;
4
4 . Administer the hearings process pursuant to Sections
18 .84. 160 through 18 .84 . 240 of this chapter;
5. Maintain a register of all applications which have been
filed for a decision_ The register shall at all times i
identify at what stage the application is in the process;
t_
6. File notice of the final decision in the records of
the Planning Department and mail a copy of the notice
of the final decision to the applicant and all parties
and to those persons requesting copies of such notices
who pay the necessary fees therefor. The notice of the
final decision shall contain the information set forth
under Section 18,84. 130 (b) of this chapter; '
7. 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
given pursuant to Section 18. 84 .070 and the accompanying
affidavits, the application and all supporting information,;
the staff report, the final decision, :including the
findings, conclusions and conditions , if any, all j
correspondence, the minutes or any meeting at which the f
application was considered, and any other exhibit,
information or documentation which was considered by the
hearing body with respect to the application; and € '
c hnMTMTCrPR3a°!TVF PF2l?C'EDURES.
B. Administer the appeals process pursuant to Sections
18. 84. 250 through 18. 84. 330 of this chapter .
Section 18.84 .045 Hearings Officer - AEpaintment ; Removes-11.
Planning Commission Review
(a) Position of Hearings officer is hereby established to
hear applications under Section 18 .84 .050 (c) of this
chapter.
(b) A Hearings officer shall be appointed by the Council for
a term of one year.
(c) Prior to appointment of a Hearings officer, an interview
team, consisting of one member from the Council, one
member from the Commission, and the City Administrator
shall review prospective applications and make a
recommendation of one or more qualified persons to
Council.
(d) The Planning Commission shall, in an annual report, review
the work of the Hearings Officer and recommend to Council
whether there be a continuing need for the position of
Hearings officer and whether the work of the incumbent
in that position is, or is not, adequate.
(e) A Hearings officer shall not be removed from such position
prior to the expiration of his or her term, except for
neglect or malfeasance in office.
Section 18.84 .050 Approval Authority
(a) The Director shall have the authority to approve, deny
or approve with conditions pursuant to Section 18 .84 .110
the following development applications in accord with
the provisions of Section 18 .84 .150 of this chapter:
1. Minor partition applications pursuant to Title 17 .
2. Design review applications pursuant to Chapter 18.59.
3. Temporary use applications pursuant to Chapter 18.80.
4. Applications for extensions of time in which to file
final plats under Section 17 .06.085, or to carry out
phased development pursuant to Section 17 .06 .090,
or extensions for no more than six months to carry
out phased development pursuant to Section 18 .56.170.
(b) The Planning Commission shall have the authority to approve,
deny, or approve with conditions pursuant to Section
18.84.110, the following development applications, as the
initial hearings body, pursuant to Section 18.84 .160
w
through 18.84.240 of this chapter:
6 AD14INIST ATIVE PROCEDURE
1. Subdivision and major land partition applications
pursuant to Title 17.
2. A quasi-judicial comprehensive plan map amendment, '=
provided, however, that all such amendments shall be
reviewed by the Council. a
3 . A development application referred to the Commission
by the Director pursuant to Section 18 .84 .150 (a) (2) .
E
4 . An appeal of a decision made by the Director under
Section 18 .84 .250 (a) and subsection (a) of this s
section.
E'.
5. A planned unit development proposal under Chapter
18. 56.
6. Interpretations of the Tigard Comprehensive Plan and
Neighborhood Plans thereunder or Titles 17 and 18 F
of this Code, if requested by the Director or other
interested persons. '
E'
7 . Any other matter not specifically assigned to the
Director, the Hearings Officer, or City Council
under Titles 17 or 18.
t
t,
)
(
6a - ADMINISTRATIVE PROCEDURES
(c) The Hearings Officer shall have the authority to approve,
deny, or approve with coad:itions pursuant to Section
18.84.110, the following development applications in F
accordance with Sections 18.84.160 through 18.84 .240
of this chapter;
s
1. Conditional use permit applications pursuant to
Chapter 18.72.
2. Variance applications pursuant to Chapter 18.76.
3. Sensitive land permits pursuant to Chapter 18.57.
4. Quasi-judicial zoning map amendments pursuant to
Chapter 18.88.
(d) The City Council shall have the authority to approve, deny,
or approve with conditions pursuant to Section 18.84.110,
the folXowing development applications in accordance with
the provisions of Section 18 .84 .160 through 18.84.240
of this chapter:
1. The formal imposition of plan and zone designations
made to lands annexed to the city, so long as such
designations be made within one year of such annexa-
tion.
E
2. Matters referred to the Council by the Planning
Commission or Hearings Officer for review under
Section 18.84.250 (b) (3) .
3. Review of decisions of the initial hearings body,
whether on the Council' s own motion or otherwise,
as provided in Section 18.84.250 to 18.84 .330.
(e) Alternative recommendation for zoning map change
The initial hearing body may consider an alternative means of E
amending the zoning map of Tigard, in addition to that
proposed in the application upon the decision of the
Planning Director to do so, or upon its own motion.
Such alternative zoning map change shall be considered
only if
i ,
1. Notice of such alternative be given as part of the
Hearing Notice in addition to the matters contained
in Section 18.84.080;
2. The alternative classification be in the same general
category (e.g. , low density, medium density, high
density residential; industrial, commercial, etc.) ; a
and s
7 ADMINISTRATIVE PROCEDURES E
i
3. The staff report prepared under Section 18 .84 . 040
(a) (3) (H) justifies such an alternative.
Section 18.84.060 Consolidation of Proceedings
Whenever an applicant requests more than one approval and more
than one approval authority is required to decide the applica-
tions, the proceedings shall be consolidated so that one
approval authority shall decide all applications in one pro- i
ceeding. in such cases, the hearings shall be held by the
approval authority having original jurisdiction over one
of the applications under Section 18 .84 .050, in the following
order of preference: City Council, Planning Commission,
Hearings Officer, or the Planning Director. {
i
Section 18.84.070 Notice
(a) Decisions by the Director
1. Notice of a proposed action on a development applica-
tion pursuant to Section 18 . 84 . 050 (a) shall be given by
the Director in the following manner :
(A) At least twenty (20) days prior to the date of
final decision set forth in the notice, notice
shall be sent by mail to:
1. The applicant and all owners or contract
purchasers of record of the property which
is the subject of the application;
i
2. All owners of record of property within one
hundred (100) feet of the property;
3. The affected Neighborhood Planning Organization,
if active;
4. Any governmental agency which is entitled to
notice under an intergovernmental agreement
entered into with the city which includes
provision for such notice;
5. Any person who requests, in writing, and pays
a fee established by the Council.
The Director shall cause an affidavit of mailing of notice
to be filed and made a part of the administrative record.
(H) A notice published once in a newspaper of general
circulation in the city at least fifteen (15) days
prior to the date of final decision set forth in
the notice. An affidavit of publication shall be
made part of the administrative record.
8 ADMINISTRATIVE PROCEDD;2ES
• t
(b)
Decisions b all other A roval Authorities f
end Administrative Action pursuant 4
1, Notice of an imp g c and (d) shall be given by
to Section 18.84 .050 (bl ( )
the Director in the following manner:
t ten (10) days prior to the scheduled ,.
(A) At leas
hearing date, notice shall be sent by mail to:
c
1. The applicant and all owners or contract
purchasers of record of the p p
erty which
is the subject of the application;
2. All owners of record of property within two
hundred and fifty (
250) feet of the property;
has
3 . ch Any affected governmental agency which
has �
entered into an intergovernmental afie for
with the city which includes provision
such notice;
4 . The affected Neighborhood planning organization,
if active;
writiii and pays
5. Any person who requests, pirector;gand
a fee established by
6, All "parties" described inoSection 18 .84 .140 of
this chapter to an appeal
The Director shall cause an affidavimailing
eoord notice to
be filed and made a part of the administrative
At least te:-' (10) days prior to the hearing,
iven in a newspaper of general
{B} 1
notice shall be g
circulation in the city. An affidavit of publication
shall be made part of the administrative record.
-Contents of the Notice
Section 18.84. 080
to
Notice given persons entitled to mailed or published
notice pursuant to Section 1.8.84 .070 shall include the
following information:
a. The number and title of the file honenumber
containing the
of the
application and the address and p
Director's office formation can
where additional in
be obtained; c
s
R
F
4
9 - ADMINISTRATIVE PR®CEDUFtE ¢
F;';`
b, A description of the subject property , I uel.;un;abl y
calculated to give notice as to its actual location
which shall include, but not be limited to, the
.. metes and bounds description or the tax map desig-
nations of the applicable county assessor 's office;
C . The nature of the application in sufficient detail
to apprise persons entitled to notice of the
applicant' s proposal; and
d . In the case of a Decision by the Director as
provided by Section 10 .84 .050 (a) , the nature of the
Director 's proposed action, the date the decision
will be final and a statement that:
(A) An appeal to the proposal, filed in writing
before the proposed decision is final, shall
cause a public hearing to be held; and
(B) Sets forth the •last day on which the decision
of the Director may be appealed.
e. In the case of an Administrative Action as provided
by Sections 18.84 , 050 (b) , (c) and (d) , the time,
place and date of the public hearing , a statement
that public oral and written testimony is invited ,
and a statement that the hearing will be held under
this chapter and any rules of procedure adopted by
Council and available at City Hall. !
Section 18.89 .090 Mechanics of Giving Notice and Failure to
Receive Notice
(a) The records of the applicable county assessor's office
shall be the official records used for giving notice
required by this ordinance, and a person 's name and :
address which is not on file at the time the notice
mailing list is initially prepared is not a person 4
entitled to notice under Section 18 . 84 .070 of this
chapter.
(b) The failure of a property owner to receive notice shall
not invalidate the action provided a good-faith attempt
was made to notify all persons entitled to notice.
(c) Personal notice is deemed given when the notice is
deposited with the United States Postal Service.,
Published notice is deemed given on the date it is
published.
10 ,ADMINISTRATIVE PROCEDURES '
i
is
Eqq
(d) In computing the length of time that notice was given,
ce is e excluded
the first date noiAdministrativelHearingven lorbDecision 1by
and the day of theE.
the Director shall be included unlessgnhwhichtcase,fthes $
on any legal holiday or on Saturday,
last day shall be the next business day.
Section 18.84.100 The Decision Process of the A roval Authorit
(a) The decision shall be based on consideration of the
following factors:
Proof by the applicant that the application fully
complies with:
comprehensive plan policies and map
1. The applicable
designation;
Goals adopted under ORS
2. The State-wide Planning and plan and
f the Tigard
197. 240 until acknowledgment o
ordinances; and
livable standards of any provision of this
3. The app or other applicable implementing
Title or Title 17,
ordinance. :.
Consideration may also be given to :
ood
1. Proof is takehingthenthe comprehensbovehplanoor�ozoningty
or a mistake which is the
map as it relates to the propeltcation; and
subject of the developmements from
ent app
2. Factual oral testimony or written stat
overnmental
the parties, other persons and other g
agencies relevant to the existing conditions ,
livable standards and criteria, possible
other app proposal
-
or
or positive attributes of the prop
or factors in subsection (a) or subsection (b) (1) ,
above.
(e) In all cases, the decision shall include:
A statement in a form generally conforming to the
ction 18 .84 .040 (a) (3) (B) .
requirements of Se
(d) The Approval Authority may:. �
1] ADMINISTRATIVE PROCEDURES
i. Adopt findings and conclusions contained in the
staff report;
ii. Adopt findings and conclusions of a lower approval
authority;
iii. Adopt its own findings and conclusions;
iv. Adopt findings and conclusions submitted by any
party; or
V. Adopt findings and conclusions, either with or
without modification of the findings and conclusions
from other sources, which, upon making a tentative
decision, it directs staff to prepare upon review
and an opportunity for all parties to comment upon
the same.
(e) The decision may be for denial, approval or approval with
conditions, pursuant to Section 18.84 .110 , where such
conditions are necessary to:
1. Carry out the Tigard Comprehensive Plan;
2. Carry out the applicable implementing ordinances ;
3. Protect the public or surrounding property
from possible deleterious effects of the proposed
use; or
4. Assure 'that adequate public services are
provided as a part of the development or
to assure that other required improvements
are made.
(f) The final decision shall be a decision which is in writing
and which has been:
1. Formally adopted and signed by the Approving
Authority other than the Director_ in the
case of an Administrative Action and filed
with the Director and the City Recorder
within ten (10) calendar days of the formai'
adoption of the decision; or
2 Signed by the Director in the case of a
Decision by the Director and filed as a
final decision within ten (10) calendar
days of the signed decision,
12 ADMINISTRATIVE PROCEDURES
b
Section 18.84 . 110 Conditto )'ulf i] t Condi tit
(a) Conditions of approval shall be fulfilled within the
time limit set forth in the decision; or , if no time
limit is set forth, within one year. Failure to
fulfill any condition of approval within the time
limitations provided may be grounds for revocation of
approval, after notice and an opportunity to be heard
as an administrative action.
(b) Changes, alterations or amendments to the substance
of the conditions of approval shall be processed as a
new administrative action.
(c) Prior to the commencement of development, i .e . the issuance
of any permits or the taking of any action under the
approved development application, the owner , and any
contract purchasers, of the property which is the subject
of the approved application, shall sign and deliver to
the Director their acknowledgment and consent to such
conditions.
(d) The conditional approval may require the owner of the
property to sign within a time certain or, if no time
is designated, within a reasonable time, a contract
with the City for enforcement of the conditions. The
Council shall have the authority to execute such
contracts on behalf of the City. If a Contract be
required by a conditional approval, no building permit
shall be issued for the use covered by the applications
until the executed contract is recorded in the real
property records of the applicable County and filed in the
County Records. Such contracts shall be enforceable
against the signing parties , their heirs , successors,
and assigns by the City by appropriate action in law
or suit in equity for the benefit of public health,
safety and welfare.
(e) A bond, in a form acceptable to the Director or, upon
appeal or review, by the appropriate approval authority,
or a cash deposit from the property owners or contract
purchasers in such an amount as will assure compliance
with the conditions imposed pursuant to. this Section
may be required. Such bond or deposit shall be posted
prior to the issuance of a building permit for the use
covered by the application.
13 - ADMINISTRATIVE. PROCEDURES
1
pSection 18,84.120 DenialRPPlication - Resubmittal
a An application which has been denied and whichon appeal
(a) a higher authority ,
has not been reversed by Appeals, the Land Conservation and
the Land Use Board of Rpp ma not be re- i
Development Commission, r the courts, Y proposal
submitted for the same or a ally similar yaction afor a
or for the same or substantially
period of at least twelve (12) months from the date the
final decision is made denying the app
Section 18.84.130 Notice of the Final Decision
(a) The final decision shall be filed in the records
of the Planning Director within andten notice) thereofashalls
after the decision is signedartier to the action,
be mailed to the applicant, all p
and shall be available to members of the Council.
(b) Notice of a final decision shall contain:
1. A statement that all required notices under Section
18.84 .070 have been given;
2. A statement of where the adopted findings of fact,
decision and statement of conditions can be obtained;
3. The date the final decision was filed; and
4. A statement that a party to the proceeding may
seek appeal or review of the decision, as appropriate.
The statement shall explain briefly how an appeal or
review can be taken, the deadlines and where
information can be obtained. In the case
fhas
decision by the Director in which no appeal
been filed, the notice shall state that fact and
that the decision is, therefore, final .
rant the application with respect
{c) to less alloofmthegparcel which is the subject -Of
the application.
Section 18.84. 140 Establishment of Party
Status - Standing to
Appeal or Review
Any person shall be considered a party to a matter, thus having
"standing" to pursue an appeal or to seek review , provided:
1. The person appeared before an Approval Authority
other than the Director either orally or in writing
_ or appeared in writing before the Director in a
decision made by the Director; and
14 ADMINISTRATIVE PROCEDURES
2. The person is a person entitled as a matter of
right to notice and hearing or is a person whose
interests are adversely affected or is a person
who has been aggrieved by the decision.
Section 18.84.150 A Decision by the Director
(a) Pursuant to Section 18.84 .050(a) of this chapter, the
Director is authorized to make certain decisions, and
no hearing shall be held except where:
1. A written appeal under Section 18.84 . 250 (a) of the
Director's proposed action with respect to the
development application has been filed with the
Director by a party prior to the date the decision
is scheduled to be final made as set forth in the
notice. in such case, the application shall be
treated as if it were filed under Section
18.84. 050 (b) of this chapter;
2. The Director has an interest in the outcome of the
decision, due to some past or present involvement
with the applicant, other interested persons or in
the property or surrounding property, and cannot
render an impartial decision. In such cases the
application shall be treated as if it were filed
under Section 18.84 . 050 (b) of this chapter.
(b) A decision made by the Director shall be made in accord- t
ance with the provisions of Section 18 . 84 .100 of this
Ordinance, and a record shall be made which shall include:
1. A copy of the application and all supporting infor-
mation, plans , exhibits, graphics., etc.
a
2. All correspondence relating to the application;
3. All information considered by the Director in making
the decision; - -
4 . The staff report of the Director prepared under
Section 18.84 .040 (a) (3) (B) ;
5. A list of the conditions, if any are attached to the
approval of the application; and
5. A copy of the notice which was given pursuant to
Section 18.84 .070(a) , and accompanying affidavits,
and a list of all persons who were given mailed
notice; and -
5 - ADMINISTRATIVE PROCEDURES
7 . A signed statement by the Director stating the
nature of any past or present involvement with the
applicant, other interested persons or the property
if the Director makes a decision, and if there could
reasonably be expected to be a challenge to the
fairness of the decision.
(c) A decision made by the Director shall be final unless:
1. A party to the action files a written appeal with
the Director on or before the date given in the
notice pursuant to Section 18 .84 .080 (d) , but in no
case less than fourteen (14) days after
notice is given pursuant to Section 18 .84 .070 (a) .
2. The commission or the Council, on its own
motion., orders review on or before the date given
in the notice pursuant to Section 18 .84 .080 (d) .
(d) The Director shall give notice of the final decision,
as provided by Section 18. 84 . 130 and report to the
Commission and Council Notices of Decisions given under
Section 18.84.070 (4.) on a regular basis before such
decisions be final.
(e) The Director may grant the application with respect to
less than all of the parcel which is the subject of the
application.
(f) No Director's decision may be modified from that set out
in the notice given under Section 18 .84 .070 and 18 .84 .080
unless new notice be given.
Section 18. 84 .160 An Administrative Action - Hearings Procedure
(a) Pursuant to Sections 18 .84 .050(b) , (c) and (d) of this
chapter, the Approval Authority shall have the authority
pursuant to Mules of Procedure adopted by the Council,
to conduct a public hearing; and
1. Determine who qualifies as a party.
2. Regulate the course, sequence and decorum of
the hearing.
3. Dispose of procedural requirements or similar
matters.
4. Rule on offers of proof and relevancy of evidence
and testimony.
5. Impose reasonable limitations on the number of
witnesses heard and set reasonable time limits
for oral presentation, cross examination of
witnesses and rebuttal testimony.
t
16 ADMINISTRATIVE PROCEDURES
r
' e
6. Take such other action appropriate for conduct
commensurate with the nature of the hearing .
7. Approve or deny applications or approve with
conditions pursuant to Section 18 .84 .110 of
this Ordinance.
v
(b) Unless otherwise provided in the Rules of Procedure
adopted by the Council, the Approval Authority shall
conduct the hearing as follows :
1. Announce the nature and purpose of the hearing
and summarize the rules for conducting the hearing;
2. Recognize parties;
3. Request the Director to present the staff report,
to explain any graphic or pictorial displays which
are a part of the report, summarize the findings,
recommendations and conditions, if any, and to
provide such other information as may be requested
by the Approval Authority;
4. Allow the applicant to be heard on his , her or its
own behalf or by his, her, or its representative;
5. Allow parties or witnesses in favor of the appli-
cant's proposal to be heard; F
6. Allow parties or witnesses in opposition to the
applicant's proposal to be heard;
7. Upon failure of any party to appear, the Approval
Authority shall take into consideration written
material submitted by such party;
8. Allow the parties to offer rebuttal evidence and
testimony, and to respond to any additional evidence.
The scope and extent of rebuttal -shall be determined
by the Approval Authority;
9. Conclude the hearing by announcing officially the
pubic hearing is closed; and
10. Make a decision pursuant to Section 18 .84 ,100 or
take the matter under advisement pursuant to
Section 18.84.180 of this chapter.
(c) The following rules shall apply to the general conduct
of the hearing:
17 ADI4INISTRATIVE PROCEDURES
i
i
1 , The Approval Authority may ask questions at any
time, before the close of the hearing, and the
answers shall be limited to the substance of
the question;
2. Parties or the Director must receive approval from
the Approving Authority to submit directly questions
to other parties or witnesses or the Director;
3. A reasonable amount of time shall be given to
persons to respond to questions;
4 . No person shall testify without first receiving
recognition from the Approval Authority and
stating a full name and address;
5. The approval authority may require that testimony
be under oath or affirmation.
6. Audience demonstrations such as applause, cheering
and display of signs, or other conduct disruptive
of the hearing shall not be permitted. Any such
conduct may be cause for lrlulfediate suspens�--^n of
the hearing; and
7. No person shall be disorderly, abusive, or disruptive
of the orderly conduct of the hearing.
(d) The initial hearing body may refer any matter for Council.
action on the record made before it.
Section 18. 84.170 Ex-Parte Communications with Approval Authority
(a) Members of the Approval Authority shall not:
1. Communicate, directly or indirectly, with any party
or representative of a party in connection with any
issue involved except upon giving notice and oppor-
tunity -for all parties to participate; nor -
2. Take notice of any communication, report, or other
materials prepared by the proponents or opponents
in connection with the particular case unless the
parties are afforded an opportunity to contest the
material so noticed.
(b) This section shall not apply to director decisions made
under Section 18,.84.050 (x) ,
18 - ADMINISTRATIVE PROCEDURES
Section 18.84 .180 Continuation of the Hearing - Notice
An Authority may continue the hearing from time to time to
gather additional evidence, to consider the application fully,
or to give notice to additional persons. Unless otherwise
provided by the Approval Authority, no additional notice need
be given of the continued hearing if the matter is continued
to a date certain.
Section 18.84.190 Subpoena or Deposition of Witnesses
Any person wishing to subpoena or depose witnesses to an
appeal may do so by application to the Director not less than
seven (7) days prior to the hearing and a showing that the
witness resides in Oregon, is unable or unwilling to appear
and the testimony is material and relevant. Upon approval by
the Director, application for subpoenas or depositions shall
be made after proper completion and payment of those fees
applicable to civil cases , to the Washington County Circuit
Court.
Section 18.84. 200 Evidence
(a) All evidence offered and not objected to may be received
unless excluded by the Approval Authority on its own
motion;
(b) Evidence received at any hearing shall be of the quality
that reasonable persons rely upon in the conducting of
their everyday affairs;
(c) No person shall present irrelevant, immaterial, or unduly
repetitious testimony or' evidence;
(d) Evidence shall be received and notice may be taken of
those facts in a manner sirailar to that provided for in
contested cases before state administrative agencies -
pursuant to ORS 183.450, except as otherwise provided for
herein; and
(e) Formal rules of evidence, as used in courts of law, shall
not apply.
C
t
Section 18.84.210 Official Notice
(a) The Approval Authority may take official notice of the
following:
1. All facts which are judicially noticeable.
Such noticed facts shall be stated and made
part of the record.
19 ADMINISTRATIVE PROCEDURES
e
2 . •Tile State=wide planning goals adopted pursuant
to QRS 197. 240 .
3. The Comprehensive Plan and other officially
adopted plans, implementing ordinances , rules and
regulations of the City of Tigard and the compre-
hensive plans and implementing ordinances of other
planning authorities within the Metropolitan
Service District Boundary.
(b) Matters officially noticed need not be established by
evidence and may be considered by the Approval Authority
in the determination of the application.
Section 18.84.220 Participation in the Decision--Voting
(a) Each member of the Approval Authority shall be impartial;
any member having any substantial past or present
involvement with the applicant, other interested persons,
the property or surrounding property, or having a financial
interest ;n the outcome of the proceeding, or having any
pre-hearing contacts, shall state for the record the
nature of their involvement or contacts, and shall either:
1. State that they are not prejudiced by the involvement
or contacts and will participate and vote on the
matter; or
2. State that they are prejudiced by the involvement
or contact and will withdraw from participation in
the matter.
In the event of a challenge to the impartiality of a
member of the approval authority, the remaining members
shall decide the issue of participation. Such challenge
shall be raised at the earliest possible opportunity.
(b) An affirmative vote by a majority of the members of the
Approval Authority who are present and voting is required
to approve an application or to amend, modify or reverse
a decision on appeal.
(c) Notwithstanding subsections (a) and (b) of this section,
no member of an Approval Authority having a financial
interest in the outcome of an application shall take
part in proceedings on that application; provided,
however, with respect to the Council only, a member may
vote upon a finding of necessity made by the majority of
the Council present.
Section 18.84. 230 Record of Proceeding
(a) A verbatim record of the proceeding shall be made by
stenographic or mechanical means. It shall not be
20 ADMINISTRATIVE PROCEDURES
i
i
t necessary to transcribe testimony except it!; p)-ovidod
for in Section 18. 84 . 300 . The minutes or transcript
of testimony, or other evidence of the proceedings ,
shall be part of the record.
(b) All exhibits received shall be marked so as to provide
identification upon review.
(c) The official record shall include :
i
1. All materials, pleadings, memoranda, stipulations
and motions submitted by any party to the proceeding i
and recorded or considered by the Hearings Officer
as evidence;
i
2. All materials, submitted by the Director to the
Approval Authority with respect to the application;
3. The transcript of the hearing, if requested by the
Council or a party or the minutes of the hearing, or
other evidence of the proceedings before the
Hearings Body;
4 . The written findings, conclusions , decision, and,
if any, conditions of approval, of the Hearings
Body; and
5. Argument by the parties or their legal representa-
tives permitted pursuant to Section 18 . 84 . 290 (b) (3) at
i
the time of review before the Council;
f
6. All correspondence relating to the application; and
7. A copy of the notice which was given as provided by
Section 18.84 .070 -of this chapter , accompanying s
affidavits and list of persons who were sent
mailed notice. `
6'
Section 18.84 . 240 The Effective Date of the Decision
- Appeal or Review
(a) Any decision made under the provisions of this chapter
shall become effective on the fifteenth day from the date
notice of the final decision is given, as provided in
Section 18. 84 .130 of this chapter, unless an appeal or
review is taken pursuant to Section 18 .84 . 250 of this
C
chapter.
i
Section 18.84 . 250 Authority to Appeal or Seek Review of a Decision
(a) Any decision made by the Director on a development
application as provided by Section 18 . 84 . 050 (a) may be
appealed to the Commission as provided in Section
18.84 .150 (c) .
21 - ADMINISTRATIVE PROCEDURES
t,
(b) Any decision made by any other Approval Authority under
Section 18.84 .050 (b) or (c) may be reviewed by the Council
by:
1. The filing of a Notice of Review by any party to
the decision within fourteen (14) days of sending
of the notice of final decision; or
2. The Council or Commission, on its own motion, seeks
review by resolution filed within fourteen (14) days
of notice of the final decision; or
3. Referral of a matter under Section 18 .84 . 160 (d) by the
initial hearings body to the Council, upon closure of
the hearing, when the case presents a policy issue
which requires Council deliberation and determination.
Section 18. 84.260 Notice of Appeal or Review
(a) The Notice of Appeal or Review shall contain:
1. A reference to the application sought to be appealed
or reviewed;
2 . A statement as to how the petitioner qualifies as
a party;
3. The specific grounds for the appeal or review; and {
r
4 . The date of the filing of the final decision on the {
action.
(
(b) The .-appeal or review application shall be accompanied by E
the required fee. f
(c) The appeal or review shall be limited to the grounds E'
listed under subsection (a) (3) ,of this section. '
Section 18.84.270 Persons Entitled to Notice on Appeal or Review
Type of Notice
Upon appeal or review, notice shall be given by the Director
as provided by Section 18.84.070 (b) of this chapter.
t
Section 18.84.280 Contents of Notice on Appeal or Review
Notice shall include those matters 'provided by Section 18 .84 .080
of this chapter, as applicable.
s :
22 - ADMINISTRATIVE PROCEDURES
a
i ,
i
Section 18.84 . 290 Type of Appeal or Review Hearing - Scope of
Review
(a) The appeal of a decision made by the Director under
Section 18.84 . 050 (a) and Section 18 .84 .150 of this
chapter shall be de novo and conducted as if brought
under Section 18.$4.050 (b) .
(b) The review of a decision by the Commission or Hearings
officer by Council shall be:
1. Confined to the record of the proceedings as
provided in Section 18 . 84 . 230 of this chapter;
2. Limited to the grounds relied upon in the Notice
tion
of Review as provided in Sec LS V11 13. v•a . vv ,...,
this chapter, and conducted in accordance with the
provisions of Sections 18. 84 .100, 18 .84 .130, and
18.84.160 through 18. 84 . 250 of this chapter.
3. The subject of written argument only. Such argument
shall be submitted not less than five (5) days prior
to Council consideration.
Section 18. 84 . 300 Transcripts
(a) The petitioner for review shall request that a transcript
be made of the proceedings before the initial Hearings Body.
The Director shall estimate the cost, and the person
requesting the transcript shall bear the cost. The
person making the request shall deposit the estimated
cost with the Director within five days of requesting
the transcript, and any excess shall be returned. If the
cost of the transcript be greater than the estimate, the
petitioner shall pay such excess within ten days of notice
by the Director.
(b) Failure to pay the costs of the transcript shall be
grounds for dismissal of review. _
Section 18.84 .310 Action on Appeal or Review - Time Limit and
Authority to Change the Decision
(a) The Approval Authority shall act upon the appeal or review
within 60 days of filing unless such time limitation is
extended with the consent of the parties; provided
that, unless otherwise ordered by the Hearings Body
or Council, the Director shall take such appeals in
the order in which they are filed; and
23 ADMINISTRATIVE PROCEDURES
(b) The Approval Authority may affirm, reverse or modify
` the decision which is the subject of the appeal;
however, the decision shall be made in accordance
with the provisions of Section 18 .84 .100 of this
chapter; or
(c) The Approval Authority may remand the matter if it is
satisfied that testimony or other evidence could not
have been presented or was not available at the hearing.
In deciding to remand the matter, the Approval Authority
shall consider and make findings and conclusions respect-
ing:
1. The prejudice to parties;
2. The convenience or availability of evidence at
the time of the i tial iearIng;
3. The surprise to opposing parties;
4 . The date notice was given to other parties as to
an attempt to admit; and
5. The competency, relevancy and materiality of the
proposed testimony or other evidence.
Section 18.84. 320 Participation by Members of the Approval
Authority in the Decision and Voting
(a) The provisions of Section 18 .84 . 220 of this chapter apply
and, in addition:
1. Only those members who have reviewed the entire
record shall vote; and
2. A majority of the voting members of the Approval.
Authority must vote affirmatively to amend, reverse
or remand the decision.
(b) Unless a decision be deferred, in the event of a tie, the
decision which is the subject of appeal or review shall
stand.
Section 18.84 .330 Final Action of the Approval Authority;
Effective Date; Petition for Rehearing
(a) Action by the Approval Authority on appeal or review,
known as a '"final order," shall be effective on the
fifteenth day from the filing of the order with the
Director tinder Section 18. 84 .100 (f) .
24 - ADMINISTRATIVE PROCEDURES
r •w •
(b) The final order of the Council shall be stayed upon the
filing of a petition for rehearing, which shall be filed
AIR-
within fourteen (19) days of the notice of the Council 's
decision and shall contain the matters set forth in
Section 18.89 ,260. No fee need accompany such petition.
(c) The Council shall decide whether to grant such a petition
at its next practicable regular or special meeting.
(d) No person failing to apply for such Petition for Review
shall have been deemed to have exhausted administrative
remedies. It is the purpose of this section to provide
parties every remedy possible, prior to litigation.
To that end, the filing of a Petition for Review is a
condition precedent for further administrative or judicial
(e) No time period for challenging Council action shall
commence until the Council has disposed of the Petition
for Rehearing. j
(f) Within. seven (7) days of the filing of the final order
of Council, or upon a final order on the avant of a
petition for rehearing, the Director shall give
notice of the final order to all parties to the proceed-
ing, informing them of the date of filing, the opportunity
for further remedy by petition for rehearing, the decision I
rendered, and where a copy may be found.
r
i
s
t
f
_g.
t
1 >
F
25 - ADMINISTRATIVE PROCEDURES
f
g