Loading...
04/18/2005 - Minutes CITY OF TIGARD PLANNING COMMISSION Meeting Minutes April 18, 2005 1. CALL TO ORDER President Padgett called the meeting to order at 7:00 p.m. The meeting was held in the Tigard Civic Center, Red Rock Creek Conference Room, at 13125 SW Hall Blvd. 2. ROLL CALL Commissioners Present: President Padgett; Commissioners Buehner, Caffall, Duling, Inman, and Meads. Also present was David Walsh, Commission alternate. Commissioners Absent: Commissioners Anderson, Haack, and Munro Staff Present: Dick Bewersdorff, Planning Manager; Jerree Gaynor, Planning Commission Secretary 3. PLANNING COMMISSION COMMUNICATIONS Commissioner Meads gave a brief report on the Park and Recreation Board. She asked for clarification about development and annexation on Bull Mountain. Staff and President Padgett advised that the City is allowing islands (unincorporated areas completely surrounded by the City). If an area is totally surrounded by City property, it can be annexed under the island annexation provision which does not need voter approval. The City does not annex non-contiguous areas; if the area is contiguous, the City requires annexation if they are developing the property. Commissioner Duling reported on the Committee for Citizen Involvement. She noted that the CCI would be meeting with City Council tomorrow night. Commissioner Buehner reported on the Transportation Financing Task Force. She said they were doing research with trucking and gas organizations about a possible gas tax. Buehner also reported on the Planned Development Review Committee. They are trying to finalize a list of issues. They will be coming to the Planning Commission on May 16th 4. APPROVE MEETING MINUTES It was moved and seconded to approve the March 7, 2005 meeting minutes as submitted. The motion passed by a vote of 4-0. Commissioners Inman and Meads abstained. It was moved and seconded to approve the March 21, 2005 meeting minutes as submitted. The motion passed by a vote of 5-0. Commissioner Caffall abstained. PLANNING COMMISSION MEETING MINUTES—April 18,2005—Page 1 5. LAND USE LAW TRAINING WITH CITY ATTORNEY The Commission received land use law training from City Attorney Gary Firestone (see Exhibit A). Firestone briefed the Planning Commission on their responsibilities and decision-making roles. He described their authority and discussed their two main roles — providing recommendations to Council for legislative actions and making quasi-judicial land use decisions. He explained the differences between legislative and quasi-judicial cases. He advised that, for land use decisions, State land use guidelines are always applicable. The Commission is bound by Statewide Planning Goals and Statutes — they must decide whether an application meets applicable standards and if so, they must approve the application. If the Commission wants to deny an application, they have to find criteria in code that weren't met. He noted that some criteria are subjective, but the Commission has limited discretion (they must find a basis in the code to approve or deny). Firestone reviewed the requirements of hearings, including conflicts of interest and ex parte contacts. He discussed findings and conditions of approval. He advised that findings are required to support land use decisions and that they must address all relevant standards and criteria. Quasi-judicial decisions must be based on findings — there must be a statement of findings and an explanation that applicable criteria are met. This is also highly recommended for legislative decisions. Firestone noted that, if somebody raises an issue, there should be a finding. He reported that amendments to the Community Development Code must be consistent with the Comprehensive Plan. Changes can be made to the Comprehensive Plan as long as the amended document is not internally inconsistent— if you make a change to one part, you have to make sure it doesn't conflict with any other part of the Comp Plan. It also must be consistent with Statewide Planning Goals. Firestone discussed conditions of approval —when they may be imposed, who drafts them, and timing requirements. He noted three things that make conditions clear: a list of applicable criteria or standards, a statement of ultimate fact, and a conclusion on how it meets the criteria. Firestone advised that, in their motion to approve or deny an application, the Commission needs to state the findings and the conditions being imposed or adopted. The Commission may amend or add conditions of approval, but they must be feasible or reasonably possible. Conditions should be supported by evidence or a finding of feasibility, particularly if there's an issue. They need to be as clear and objective as possible. The Commission requested that Mr. Firestone draft some language that the Commission can use when making motions. PLANNING COMMISSION MEETING MINUTES—April 18,2005—Page 2 6. OTHER BUSINESS None 7. ADJOURNMENT The meeting adjourned at 9:07 p.m. Jerree G ynor, Plan .ng Com ssion Secretary ATTEST: President M ' Padgett • PLANNING COMMISSION MEETING MINUTES—April 18,2005—Page 3 PLANNING COMMISSION RESPONSIBILITIES AND DECISION-MAKING Presented By Gary Firestone Ramis Crew Corrigan &t Bachrach LLP City Attorneys Commission Authority • TMC 2.08.100 gives the Planning Commission the following authority: - Authority to make rules governing itself - Authority to make recommendations to Council regarding • The Comprehensive Plan and related plans • Transportation planning • Zoning (including CDC and zoning maps) • Housing and sanitation • Solar Access • Growth regulation and provision of public services • Promotion, development and regulation of industrial and economic activity I Two Roles • The Planning Commission has two main roles: - 1 - Provide recommendations to Council for legislative action relating to planning and land use - 2 - Make quasi-judicial land use decisions Legislative Recommendations • The Planning Commission has authority to make recommendations to the Council regarding amendments to the Comprehensive Plan and related documents and to the Community Development Code. CDC 18.390.060D, CDC Table 18390.1 2 Standards for Legislative Decisions • Amendments to the Comprehensive Plan must be consistent with the Statewide Land Use Planning Goals and consistent with unamended portions of the Comprehensive Plan, as well as with any applicable statute • Amendments to the CDC must be consistent with the Comprehensive Plan • Despite requirement for consistency, the Planning Commission has a wide range of discretion as to what to recommend and can consider policy issues Quasi-Judicial Decisions • The Planning Commission decides certain applications related to land division or development. CDC 18.390.050, Table 18.390.1 - Historic designation - Planned developments - Quasi-judicial text and map amendments 3 Quasi-Judicial Standards • Must decide whether the application meets applicable standards • Must approve if it meets the standards • May impose conditions of approval to ensure that an application will meet the standards Hearings • A hearing is required for any legislative or quasi-judicial matter • CDC Chapter 18.390 contains procedural rules for hearings • Legislative hearings are governed by CDC 18.390.060 • Quasi-judicial hearings are subject to CDC 18.390.050 and ORS 197.763 4 Basic Hearing Concepts • Notice of hearings is required • All persons have a right to present testimony and arguments • All persons have a right to rebut new evidence • The applicant usually goes first and last • The decision-maker must be unbiased - No conflict of interest - Must be able to decide based on evidence - Ex parte contacts must be disclosed FINDINGS AND CONDITIONS 5 What are findings and conditions? • A finding is a statement of fact, based on evidence in the record, that is related to an applicable standard or criterion — Conclusions drawn from factual findings are also considered "findings" in a broader sense • A condition is a requirement imposed as part of an approval that must be satisfied for the approval to remain valid FINDINGS 6 Major Concepts • Findings are statements of fact — Statements of ultimate fact — Conclusions of fact • Findings are required to support a land use decision • Findings must address all relevant standards and criteria • These concepts are not absolute rules Relationship between findings and decision • Decisions, especially quasi-judicial decisions must be based on findings • Because decisions must be based on applicable standards and criteria, findings should address applicable standards and criteria Who drafts findings? • Staff normally drafts findings, applicants sometimes draft findings • At hearings, the City Council or Planning Commission may add new findings or direct that new findings may be drafted, in which case staff, the city attorney, or even a party may draft the finding Statement Needed To Support Decision • The City must include in its decision a statement that explains the criteria, states the facts, and justifies the decision based on the facts. ORS 227.173. • People refer to both the fact section of the required statement and to the entire statement as "findings" 8 Format • There are many ways the required statement can be formatted • My preference is to list the applicable criterion or standard (usually a code section), followed by statements of ultimate fact (the true findings), followed by a conclusion explaining how the facts demonstrate that the criterion is met All Is Not Lost • LUBA will uphold a decision that has inadequate findings if the evidence is clear that the criterion has been met (or the issue was not raised below) 9 Address Every Standard and Criterion • Every code standard/criterion applicable to an application should be addressed with one or more findings (a finding can address more than one standard or criterion) • LUBA can reverse if a decision is not supported by findings addressing applicable criteria How detailed? • In an ideal world, every land use decision would have a complete set of findings addressing in detail every single possibly applicable criterion • In reality, that is a waste of time and paper • If a LUBA appeal is expected, the decision should have a complete set of findings addressing each criterion • In most cases, specific findings as to the main issues are needed, but minor issues that are not controversial can be addressed by conclusory findings 10 Findings in Controversial Cases • In controversial cases, the following findings should be considered: — Findings regarding credibility of witnesses — Findings stating which experts are relied on and why - Findings addressing arguments or facts disagreed with by the decision-maker Adopting Findings • The hearing body must formally adopt findings: — The motion to approve or deny must refer to findings that are being adopted — The standard motion is to adopt the findings prepared by staff, as modified at the hearing. • This is usually included as part of the motion approving or denying the application — The more specific the statement of adoption is, the better 11 CONDITIONS OF APPROVAL Conditions of Approval • r val Conditions of app may be imposed: y osed:p — When authorized by code — When application could be denied if conditions not imposed — To insure compliance with applicable criteria — If applicant has agreed to the condition 12 Drafting Conditions • Staff will normally draft conditions • Planning Commission or City Council may add conditions in the same way that findings are added or amended Timing of Compliance • Condition should specify when the condition must be satisfied: — By building permit issuance — By certificate of occupancy — By final plat approval — On an ongoing basis 13 Conditions Should Be Thorough • Conditions should be drafted to ensure full ongoing compliance • For example, if a front-facing entrance is required by code and the plans don't show one, conditions are needed as follows: — Amend site plan by time of building permit issuance to show front-facing entrance — Construction of front-facing entrance as shown on amended plans required prior to certificate of occupancy — Maintain front-facing entrance as functional entrance (on an ongoing basis) Conditions Should Ensure All Applicable Criteria Are Complied With • For every standard or criterion that is not otherwise assured of compliance, a condition of approval should be imposed to ensure compliance • Conditions that assure compliance with criteria or standards must be supported by evidence and findings that compliance with the condition is feasible • Compliance with conditions must be objectively determinable, otherwise a new hearing would be required to determine compliance • It is not always necessary to specifically address every criterion with a separate condition of approval • All approvals should contain the basic condition that the project will be built and maintained according to the approved site plan 14