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
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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
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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)
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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
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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
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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
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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
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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
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