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Home My WebLink About2025-09-09_Planning PACKET Planning Commission Meeting Agenda ASHLAND PLANNING COMMISSION REGULAR MEETING AGENDA Tuesday, September 9, 2025 Note: Anyone wishing to speak at any Planning Commission meeting is encouraged to do so. If you wish to speak, please rise and, after you have been recognized by the Chair, give your name and complete address for the record. You will then be allowed to speak. Please note the public testimony may be limited by the Chair. I.CALL TO ORDER 7:00 p.m., Civic Center Council Chambers, 1175 E. Main Street II.ANNOUNCEMENTS 1.Staff Announcements 2.Advisory Committee Liaison Reports III.CONSENT AGENDA Approval of Minutes 1.August 12, 2025 Regular Meeting Minutes IV.PUBLIC FORUM Note: To speak to an agenda item in person you must fill out a speaker request form at the meeting and will then be recognized by the Chair to provide your public testimony. Written testimony can be submitted in advance or in person at the meeting. If you wish to discuss an agenda item electronically, please contact PC-public-testimony@ashland.or.us by 10:00 a.m. on September 9, 2025 to register to participate via Zoom. If you are interested in watching the meeting via Zoom, please utilize the following link: https://zoom.us/j/96070091196 V.UNFINISHED BUSINESS Approval of Findings for PA-T2-2025-00059, Kestrel Park Phase III VI.DISCUSSION ITEMS Public Meeting Law Training Ashland Legal Department – Overview presentation and Q&A Optional Video – Two-hour Public Meeting Law training available for home https://www.youtube.com/watch?v=DKaBlcaaGAk VII.OPEN DISCUSSION VIII.ADJOURNMENT Next meeting Date: September 23, 2025 If you need special assistance to participate in this meeting, please contact Derek Severson at planning@ashlandoregon.gov or 541.488.5305 (TTY phone number Notification at least three business days before the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting in compliance with the Americans with Disabilities Act. Page 1 of 1 Total Pge Number: 1 Total Pge Number: 2 Planning CommissionMinutes Note: Anyone wishing to speak at any Planning Commission meeting is encouraged to do so. If you wish to speak, please rise and, after you have been recognized by the Chair, give your name and complete address for the record. You will then be allowed to speak. Please note the public testimony may be limited by the Chair. August 12, 2025 REGULAR MEETING DRAFT Minutes I.CALL TO ORDER: Chair Verner called the meeting to order at 7:00 p.m. at the Civic Center Council Chambers, 1175 E. Main Street. Commissioners Present: Staff Present: Lisa Verner Brandon Goldman, Community Development Director Susan MacCracken Jain Derek Severson, Planning Manager John Maher Aaron Anderson, Senior Planner Russell Phillips Michael Sullivan, Executive Assistant Absent Members: Council Liaison: Eric Herron Jeff Dahle (absent) Kerry KenCairn II.ANNOUNCEMENTS 1.Staff Announcements: Community Development Director Brandon Goldman made the following announcements: The City Council will hold a public hearing regarding the annexation of 1511 Highway 99 at their meeting on Tuesday, August 19. The City Council will be reviewing the second reading of ordinances implementing the SOU Masterplan at their next meeting. The Parks Department will hold an open house on August 14 from 5:00 PM to 6:00 PM at the Senior Center to gather feedback on the East Main park project. The Water Treatment plant work on Granite Street is underway, with the culvert crossing currently in process and a temporary pedestrian crossing over Ashland Creek in place. 2.Advisory Committee Liaison Reports – None III. CONSENT AGENDA Approval of Minutes 1.July 22, 2025 Special Meeting Minutes Chair Verner noted that Staff had submitted revised minutes for the July 22, 2025 Special Meeting Page 1 of 4 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Total Pge Number: 3 Planning CommissionMinutes which clarified Staff announcements regarding the SOU Masterplan project. Commissioners Phillips/Maher m/s to approve the Consent Agenda as amended by Staff. Voice Vote: All AYES. Motion passed 4-0. IV.PUBLIC FORUM Alison Laughlin/Ms. Laughlin spoke regarding dangerous flooding conditions at Roca Street and Fern Street. V.UNFINISHED BUSINESS A.Approval of revised Findings on remand from City Council for PA-T2-2024-00053, 231 Granite Street Chair Verner explained that the Planning Commission's earlier decision regarding 231 Granite Street had been appealed to the City Council. While the Council upheld the Commission's decision, they requested more robust findings in anticipation of a possible appeal to the Land use Board of Appeals (LUBA.) The revised findings before the Commission included suggested revisions from staff, the applicants, Commissioner Phillips, and Chair Verner (see attachment #1). Chair Verner noted that a question had been raised about section 2.5 of the findings, which contained the statement "the Commission notes that with the proposal one additional home serving a lot with a pre-existing easement will be served from the shared driveway." Staff clarified that this referred to the home proposed in the application, not implying additional future construction. Ex Parte Contact Commissioners Maher and Phillips disclosed site visits. No ex parte contact was disclosed. Decision Chair Verner proposed removing a sentence in the middle of page 6 that stated "The Commission finds that the proposed development reduces adverse impacts, potential hazards, and limits the amount of hillside disturbance," stating that it went beyond what the Commission had directly found. Commissioners Phillips/Maher m/s to approve the amended findings, incorporating revisions from staff and the updated condition 2.5 provided by Chair Verner, and also included removing the sentence "The Commission finds that the proposed development reduces adverse impacts, potential hazards, and limits the amount of hillside disturbance." Roll Call Vote: All AYES. Motion passed 4-0. Page 2 of 4 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Total Pge Number: 4 Planning CommissionMinutes VI.TYPE II PUBLIC HEARINGS PLANNING ACTION: PA-T2-2025-00059 SUBJECT PROPERTY: 39-1E-04-AD Tax Lot 8600 OWNER/APPLICANT: PDK Properties LLC DESCRIPTION: A request for Final Plan approval for a 15-lot Performance Standard Option (PSO) subdivision. The Subdivision Outline Plan was approved by the Ashland Planning Commission adopted findings approving PA-T2-2024-00054, on January 14, 2025. The Proposed final plan come before the Planning Commission because a section that was approved as an alley is now proposed to be pedestrian access due to the existing adjacent grade. The application also includes a modification to the previous Site Design Review. COMPREHENSIVE PLAN DESIGNATION: North Mountain l; ZONING: NM-MF; MAP: 39 1E 04 AD; TAX LOTS: 8600 Chair Verner acknowledged public comments received before the meeting but after the packet had been published (see attachment #2). Ex Parte Contact Commissioners Phillips and Verner disclosed site visits. No ex parte contact was disclosed. Staff Presentation Senior Planner Aaron Anderson briefly outlined the project with the following proposed changes to the previously approved plan: altering a vehicle traffic connection to a pedestrian pathway; changing building layouts and elevations; removing underbuilding parking in favor of a small parking area on Julian Court; and lowering building heights. Items addressed were increasing rights-of-way from 47 to 48 feet and additional alleyway dedications. Staff also added Condition #8 regarding new irrigation, and removed a mistakenly included condition related to another planning project (see attachment #3). Questions of Staff Commissioner Phillips requested clarification regarding the walkway's grade; Mr. Anderson confirmed a 15% grade with steps. Mr. Goldman elaborated that improvements in the public right-of-way often exceed ADA standards in the City due to the terrain, while internal sidewalks and the ADA parking space would be subject to ADA accessibility requirements. Applicant Presentation Applicant Mark Knox explained that the civil plans revealed the grade was steeper than initially anticipated, especially at the connection to Patton Lane, resulting in the proposed revisions. The applicant team determined that while a vehicle connection wasn't feasible, a pedestrian connection would align with the North Mountain plan's goal of facilitating pedestrian movement. He noted that the 15% grade was a worst-case scenario, and the addition of steps would likely reduce it to about 12%. He Page 3 of 4 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Total Pge Number: 5 Planning CommissionMinutes mentioned that other paths in the development also have similar grades with steps. Applicant Kyle Taylor explained that the requested modifications were refinements from the outline plan. He explained that the team had struggled with the grade on the pedestrian path and needed to drop the buildings to address neighbor concerns about views. This made the parking underneath the buildings unreasonable, so the parking was relocated and the structures rearranged while maintaining the same number of units with similar square footage. He noted that pushing the building frontage on Patton down would make it appear more like a single-story property from the uphill perspective. Questions of the Applicant Chair Verner asked about a market for small units, with the applicant responding to demand focused on affordable and workforce housing. Public Comments Mark Abelle/Mr. Abelle raised concerns regarding wildfire risk and advocated for changes enhancing safety. Chair Verner closed the Public Hearing and Public Record at 7:50 p.m. Deliberation and Decision Commissioner Russell requested clarification on the conditions of approval. Staff confirmed that the original condition #2 had already been removed from the packet prior to distribution, and the new condition regarding irrigation would be added as condition #8. Commissioners Russell/Maher m/s to approve the application consistent with the conditions recommended by staff, with the addition of Condition #8 as proposed by staff. Roll Call Vote: All AYES. Motion passed 4-0. VII.OPEN DISCUSSION The Commission discussed planning it’s annual retreat, including potential topics, such as wildfire risk and how it pertains to land use, Public Meeting law, and a site visit to projects completed with the previous year. The date of the retreat was not determined. VIII.ADJOURNMENT Meeting adjourned at 8:14 p.m. Submitted by, Michael Sullivan, Executive Assistant Page 4 of 4 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Total Pge Number: 6 _________________________________ Total Pge Number: 7 Total Pge Number: 8 _________________________________ Total Pge Number: 9 Total Pge Number: 10 THE CITY OF ASHLAND BEFORE THE PLANNING COMMISSION SEPTEMBER 9, 2025 IN THE MATTER OF PLANNING ACTION #PA-T2-2025-00059 A) REQUEST FOR MODIFICATIONTO THE PREVIOUSLY APPROVED ) PLANNING ACTION #PA-T2-2024-00054 WHICH WAS AN OUTLINE ) PLANAPPROVAL OF A PERFORMANCE STANDARDS OPTION (PSO) ) FINDINGS, SUBDIVISION AND RESIDENTIAL SITE DESIGN REVIEW. THE ) CONCLUSIONS, APPLICATION ALSO INCLUDES FINAL PLAN APPROVALFOR THE ) AND ORDERS. PSO SUBDIVISION. ) ) * OWNER: PDK PROPERTIES LLC) APPLICANT: TAYLORED ELEMENTS) _______________________________________________________________) RECITALS: 1)The application is a request for Final Plan approval for a 13-lot Performance Standard Option (PSO) subdivision. The application also includes two modifications to the previously approved planning action: a.A modification to the Outline Plan Approval as it relates to the street design. The application proposes to change what was understood to be analley to a pedestrian connection from Patton Lane to the Julian Court alley, and; b.A modification to the Site Design Review approval as it relates to the layout and design of the buildings as well as the design of the parking area in “Area Six.” 2)The Subdivision Outline Plan was planning action #PA-T2-2024-00054 and was approved by the Ashland Planning Commissionon December 10, 2024,with findings adopted on January 14, 2025. a.Following the Planning Commission’s approval of the planning action an appeal was timely filed.The City Council, following proper public notice, held a public hearing on March 4, 2025. Following a public hearing the City Council deliberated and voted in favor of affirming the decision of the Planning Commission, rejected the appeal, and adopted the Planning Commission’s Findings as the Council’s own. b.Both the Planning Commission’s Findings Conclusions and Ordersdated January 14, 2025, as well as the City Council’s Findings Conclusions and Orders dated March 4, 2025 (collectively, the “previous approval’s findings”) are attached *Previous staff reports and findings in this and other planning actions associated with Kestrel Park Phase 3 have incorrectly identified CMK Development LLC as the property owner. The property was previously owned by CMK Development LLC but has since changed ownership to PDK Properties LLC. Both CMK Development LLC and PDK Properties LLC are owned by the same entity. PA-T2-2025-00059 September 9, 2025 Page 1 Total Pge Number: 11 hereto. 3)In these Findings Conclusions and Orders, we only address Final Plan approval, and Major Modification to a Previously Approved Plan as they relate to theproposed changes to the Outline Plan and Site Design Reviewwith “the scope of review limited to the modification request.” 4)Final Plan approval is a Type Iplanning action and therefore would not typically come before the Planning Commission. Because of the proposed modifications to the Site Design Review approval involve changes in the building envelopes and elevations it qualifies as a “major modification.” a.AMC 18.5.6.030(A) requires that “The approval authority and review procedure for Major Modification applications is the same as for the original project or plan approval.” Therefore, review and approval by the Planning Commission is required because the Planning Commission originally approved the application. 5)The subject property is tax lot #8600of Assessor’s Map 39-1E-04-AD (it does not presently have a streetaddress). The property was created as Lot 31 of Kestrel Park Phase II and was reserved for this final phase of the Kestrel Park Subdivision. 6)The property is zoned “North Mountain-Multi Family” (NM-MF) and is regulated by the North Mountain Neighborhood Plan (NMNP) which is codified at Ashland Municipal Code (AMC) 18.3.5. This chapter applies to properties within the North Mountain Neighborhood Plan area adopted by Ordinance 2800 in April 1997. 7)The North Mountain Neighborhood District regulations require that all applications involving the creation of three or more lots shall be processed under chapter 18.3.9 Performance Standards Option (PSO) Overlay (AMC 18.3.5.040.K). 8)The applicant’s proposal is detailed in plans which are on file at the Department of Community Developmentand by their reference are incorporated herein as if set out in full. 9)The criteria for approval for Major Modifications to previously approved plans are described AMC 18.5.6.030 in as follows: C.Major Modification Approval Criteria. A Major Modification shall be approved only upon the approval authority finding that all of the following criteria are met. 1.Major Modification applications are subject to the same approval criteria used for the initial project approval, except that the scope of review is limited to the modification request. For example, a request to modify a commercial development’s parking lot shall require Site Design Review only for the proposed parking lot and any changes to associated access, circulation, etc. 2.A modification adding or altering a conditional use, or requiring a variance, administrative variance, or exception may be subject to other ordinance requirements. 3.The approval authority shall approve, deny, or approve with conditions the application, based on written findings. AMC 18.3.9.040.A.3 10)The criteria of approval for Outline Plan are described in as follows: PA-T2-2025-00059 September 9, 2025 Page 2 Total Pge Number: 12 A. The development meets all applicable ordinance requirements of the city. B. Adequate key city facilities can be provided including water, sewer, paved access to and through the development, electricity, urban storm drainage, police and fire protection, and adequate transportation; and that the development will not cause a city facility to operate beyond capacity. C. The existing and natural features of the land; such as wetlands, floodplain corridors, ponds, large trees, rock outcroppings, etc., have been identified in the plan of the development and significant features have been included in the common open space,common areas, and unbuildable areas. D. The development of the land will not prevent adjacent land from being developed for the uses shown in the comprehensive plan. E. There are adequate provisions for the maintenance of common open space and common areas, if required or provided, and that if developments are done in phases that the early phases have the same or higher ratio of amenities as proposed in the entire project. F. The proposed density meets the base and bonus density standards established under this chapter. G. The development complies with the street standards. H.The proposed development meets the common open space standards established under section 18.4.4.070. Common open space requirements may be satisfied by public open space in accordance with section 18.4.4.070 if approved by the city of Ashland. AMC 18.3.9.040.B.5 11)The criteriafor approval for FinalPlan are described in as follows: 5.Approval Criteria for Final Plan. Final Plan approval shall be granted upon finding of substantial conformance with the Outline Plan. This substantial conformance provision is intended solely to facilitate the minor modifications from one planning step to another. Substantial conformance shall exist when comparison of the outline plan with the final plan meets all of the following criteria. a.The number of dwelling units vary no more than ten percent of those shown on the approved outline plan, but in no case shall the number of units exceed those permitted in the outline plan. b.The yard depths and distances between main buildings vary no more than ten percent of those shown on the approved outline plan, but in no case shall these distances be reduced below the minimum established within this Ordinance. c.The open spaces vary no more than ten percent of that provided on the outline plan. d.The building size does not exceed the building size shown on the outline plan by more than ten percent. e.The building elevations and exterior materials are in conformance with the purpose and intent of this ordinance and the approved outline plan. f.That the additional standards which resulted in the awarding of bonus points in the outline plan approval have been included in the final plan with substantial detail to ensure that the performance level committed to in the outline plan will be achieved. g.The development complies with the Street Standards. h.Nothing in this section shall limit reduction in the number of dwelling units or increased open space provided that, if this is done for one phase, the number of dwelling units shall not be transferred to another phase, nor the open space reduced below that permitted in the outline plan. 6.Any substantial amendment to an approved Final Plan shall follow a Type I procedure in section 18.5.1.050 and be reviewed in accordance with the above criteria. AMC 18.5.2.050 12)The criteria for approval for Site Design Revieware described in as follows: PA-T2-2025-00059 September 9, 2025 Page 3 Total Pge Number: 13 An application for Site Design Review shall be approved if the proposal meets the criteria in subsections A, B, C, and D below. The approval authority may, in approving the application, impose conditions of approval, consistent with the applicable criteria. Underlying Zone. A.The proposal complies with all of the applicable provisions of the underlying zone (part 18.2), including but not limited to: building and yard setbacks, lot area and dimensions, density and floor area, lot coverage, building height, building orientation, architecture, and other applicable standards. Overlay Zones. B.The proposal complies with applicable overlay zone requirements (part 18.3). Site Development and Design Standards C.. The proposal complies with the applicable Site Development and Design Standards of part 18.4, except as provided by subsection E, below. City Facilities D.. The proposal complies with the applicable standards in section 18.4.6 Public Facilities, and that adequate capacity of City facilities for water, sewer, electricity, urban storm drainage, paved access to and throughout the property, and adequate transportation can and will be provided to the subject property. Exception to the Site Development and Design Standards E.. The approval authority may approve exceptions to the Site Development and Design Standards of part 18.4 if the circumstances in either subsection 1, 2, or 3, below, are found to exist. 1.There is a demonstrable difficulty meeting the specific requirements of the Site Development and Design Standards due to a unique or unusual aspect of an existing structure or the proposed use of a site; and approval of the exception will not substantially negatively impact adjacent properties; and approval of the exception is consistent with the stated purpose of the Site Development and Design; and the exception requested is the minimum which would alleviate the difficulty; 2.There is no demonstrable difficulty in meeting the specific requirements, but granting the exception will result in a design that equally or better achieves the stated purpose of the Site Development and Design Standards; or 3.There is no demonstrable difficulty in meeting the specific requirements for a cottage housing development, but granting the exception will result in a design that equally or better achieves the stated purpose of section 18.2.3.090. 13)The Planning Commission, following proper public notice, held a public hearing on August 12, 2025. Testimony was received, and exhibits were presented.The Planning Commission deliberated and approved the application subject to conditions of approval. Now, therefore, the Planning Commission of the City of Ashland finds, concludes, and recommends as follows: SECTION 1. EXHIBITS For the purposes of reference to these Findings, the attached index of exhibits, data, and testimony will be used. Staff Exhibits lettered with an "S" Proponent's Exhibits, lettered with a "P" Opponent's Exhibits, lettered with an "O" Hearing Minutes, Notices, and MiscellaneousExhibits lettered with an "M" PA-T2-2025-00059 September 9, 2025 Page 4 Total Pge Number: 14 SECTION 2. CONCLUSORY FINDINGSOF FACT 2.1The Planning Commission notes that chapter 18 of the Ashland Municipal Code (AMC) is the City’s Land Use Ordinance (LUO). The LUOregulates the development pattern envisioned by the Comprehensive Plan and encouragesefficient use of land resources among other goals. The Planning Commission notes that when considering the decision to approve or deny an application the Planning Commission considers the application materials against the relevant approval criteria in the LUO. 2.1.2The Planning Commission finds that it has received all information necessary to rendera decision based on the applicationitself,the August 12, 2025 Staff Report, the applicant’s testimony,the exhibits received, and public testimony received both written and at the public hearing. 2.2The Planning Commission notes that the application was deemed complete and that the notice for the public hearing was both posted at the frontage of the subject property and mailed to all property owners within 200-feet of the subject property on July 22, 2025(21 days prior to the th August 12Meeting). 2.3The Planning Commission finds that the proposal for a Major Modifications to a previously approved plan meets all applicable approval criteria for described in AMC 18.5.6.030 and detailed below. 2.3.1The first approval criterion for a Major Modifications to a previously approved plan is that “Major Modification applications are subject to the same approval criteria used for the initial project approval, except that the scope of review is limited to the modification request.” The Planning Commission notes that there are two distinct modifications, one to Outline Plan, the other to Site Design Review. The Planning Commission notes that the request modifications are: The modification to the Outline Plan approval as it relates to the street design. The application proposes to change what was understood to be analley to a pedestrian connection between Patton Lane and the Julian Court alley A modification to the Site Design Review approval as it relates to the layout and design of the buildings and building elevations as well as the design of the parking area and site improvements. The Planning Commission notes that below are complete findings addressing these modifications as they relate to the approval criteria for Outline Plan and Site Design Review. The Planning Commission concludes that with the findings belowthis criterion of approval is met. 2.3.2The second approval criterion for a Major Modifications to a previously approved plan is that “A modification adding or altering a conditional use, or requiring a variance, administrative variance, or exception may be subject to other ordinance requirements.” The Planning Commission notes that the application does not include a conditional use, a variance or an exception other than those approved in conjunction with Outline Plan approval. The PA-T2-2025-00059 September 9, 2025 Page 5 Total Pge Number: 15 Planning Commission findsthat this criterion of approval is met. 2.3.3The third approval criterion for a Major Modifications to a previously approved plan is that “The approval authority shall approve, deny, or approve with conditions the application, based on written findings.” The Planning Commission notes that this document is the findings that are required, and conditions of approval have been included below. The Planning Commission finds that that this criterion of approval is met. 2.4 The Planning Commission finds that the proposal for Outline Planof a Performance Standard Option (PSO) subdivision meets all applicable criteria for described in AMC 18.3.9.040.A.3and detailed below. 2.4.1The first approval criterion for Outline Plan approval is that “The development meets all applicable ordinance requirements of the City.”The Planning Commission notes that this is an all-encompassing criterion and that it has considered which city ordinances are applicable. The Planning Commission notes that for the purposes of resolving this criterion we rely on the entirety of the record including the applicant’s submittal, and the Staff Report dated August 12, 2025. The Planning Commission notes that with the findings that are set out below, and the adopted conditions of approval, that the proposal will meet all applicable ordinance requirements andfinds that this criterion of approval is met. 2.4.2The second approval criterion for Outline Plan approval is that “Adequate key City facilities can be provided including water, sewer, paved access to and through the development, electricity, urban storm drainage, police and fire protection, and adequate transportation; and that the development will not cause a City facility to operate beyond capacity.” The Planning Commission notes that the only change in city facilities is that section of alley from Patton Lane to the Julian Court alley now being proposed to be a pedestrian connection rather than analley due to the existing adjacent grade. The Planning Commission notes that the revised parking area, discussed further below, still provides access to the alley as well as the additional parking proposed along the alley. In addition, the Planning Commission notes that the applicant has now proposed additional parking bays along Patton Lane. The Planning Commission notes that as it relates to other city facilities the proposed modificationswill have no change to their impactincluding water sewer electricity, storm drain, police or fire protection. The Planning Commission notes that with the modification to a pedestrian connection from analley the project still provides adequate transportation, and finally that this proposed modification will not cause any city facility to operate beyond its capacity.The Planning Commission findsthat with the foregoing this criterion of approval is met. 2.4.3The third criterion for approval of an Outline Plan is that “The existing and natural features of the land; such as wetlands, floodplain corridors, ponds, large trees, rock outcroppings, etc., have been identified in the plan of the development and significant features have been included in the open space, common areas, and unbuildable areas.” The Planning Commission notes that the wetlands, floodplain corridors and large trees were previously addressed in the earlier phases of the subdivision. The Planning Commission notes that there are no other natural features to address and concludes that this criterion of approval is met. PA-T2-2025-00059 September 9, 2025 Page 6 Total Pge Number: 16 2.4.4The fourth criterion for approval of an Outline Plan is that “The development of the land will not prevent adjacent land from being developed for the uses shown in the Comprehensive Plan.”The Planning Commission findsthatthe modification to a pedestrian connection from analley is not applicable to this approval criteria. The Planning Commission notes that “the scope of review \[is\]limited to the modification request” and therefore concludes that this criterion of approval is met. 2.4.5The fifth criterion for approval of an Outline Plan is that “There are adequate provisions for the maintenance of open space and common areas, if required or provided, and that if developments are done in phases that the early phases have the same or higher ratio of amenities as proposed in the entire project.” The Planning Commission notes again that this is the final phase of the Kestrel Park Subdivision and that thehomeowner’sassociation’s ( HOA’s) governing instruments have obligations for the maintenance of the open space and other common amenitiesthat have already been developed.The Planning Commission notes that this will include any required weed abatement adjacent to the modified alley with the pedestrian connection, and that a condition of approval has been included below requiring this to beincluded in thecontracts, covenants and restrictions (CC&R’s) for the subdivision.The Planning Commission finds thatwith the foregoingthere are adequate provisions for the maintenance of the open space and common areas and concludes that this criterion of approval is met. 2.4.6The sixth criterion for approval of an Outline Plan is that is that “The proposed density meets the base and bonus density standards established under this chapter.” The Planning Commission findsthatthe modification to a pedestrian connection from a vehicle alley is not applicable to this approval criteria. The Planning Commission again notes that “the scope of review \[is\]limited to the modification request” and therefore concludes that this criterion of approval is met. 2.4.7The seventh Outline Plan approval criterion is that “The development complies with the Street Standards.” The Planning Commission notes that among the Street Design Standards a multi-use path requires a travel lane between six to ten feet wide with additional unpaved strips on either side. The Planning Commission notes that the proposed six-foot pedestrian path inside a twenty-foot right of way exceeds this standard. The Planning Commission therefore concludes that this criterion of approval is met. 2.4.8The final criterion for approval of an Outline Plan is that is that “The proposed development meets the common open spacestandards established under section 18.4.4.070. Common open space requirements may be satisfied by public open space in accordance with section 18.4.4.070 if approved by the City of Ashland.” The Planning Commission findsthat the modification to a pedestrian connection from a vehicle alley is not applicable to this approval criterion. The Planning Commission notes that “the scope of review \[is\] limited to the modification request” and therefore concludes that this criterion of approval is met. 2.4.9The Planning Commission concludes based on the above that all applicable approval criteria for Outline Plan subdivision approval have been satisfied. PA-T2-2025-00059 September 9, 2025 Page 7 Total Pge Number: 17 2.5 The Planning Commission finds that the proposal for Site Design Review approval meets all applicable criteria for described in AMC 18.5.2.050 as detailed below: 2.5.1The Planning Commission notes that the first criterion of approval for Site Design Review is that “The proposal complies with all of the applicable provisions of the underlying zone (part 18.2), including but not limited to: building and yard setbacks, lot area and dimensions, density and floor area, lot coverage, building height, building orientation, architecture, and other applicable standards.” The Planning Commission notes that the property is in the NMNP and is required to be processed in accordance with the Performance standards of AMC 18.3.9. The Planning Commission further notes that the PSO applicability provides “that developments subject to \[the PSO\] chapter are not required to meet the minimum lot size, lot width, lot depth, and setback standards of part 18.2.”Additionally, The Planning Commission would take particular note of the Site Plan exhibit titled ‘Area 6’ (Sheet 10 of 12) of the Dezin plan set which includes detailed dimensions with regard to the parking area, building separation, and required buffering between parking and buildings.The Planning Commission also would take note of the Planting Plan (sheet L1.0) which shows all required landscape buffering. The Planning Commission concludes that based on the PSO standardsand the application materials mentioned above that this criterion of approval is met. 2.5.2The Planning Commission notes that the second criterion of approval for Site Design Review is that “The proposal complies with applicable overlay zone requirements (part 18.3).” As mentioned above in 2.5.2, the Planning Commission again notes that the only overlay is the city-wide wildfire overlay and that all proposed construction will meet the adopted wildfire standards. The Planning Commission finds that this criterion of approval is met. 2.5.3The Planning Commission notes that the third criterion of approval for Site Design Review is that “The proposal complies with the applicable Site Development and Design Standards of part 18.4, except as provided below.” The Planning Commission notes that the most notable component of the change is that the parking is no longer incorporated under the second floors andinstead are in a common multi-unit parking lot, and that this change was necessary to allow the development to work with the existing topography. The Planning Commission notes that despite these revisions the building orientation, proposed building materials, preliminary landscape plan and open space standards are all met. The Planning Commission would note that the exhibits provided show that solar setbacks are met and the revised building layout actually has a lesser impact on the adjacent existing development. The Planning Commission would take particular note of the Site Plan exhibit titled ‘Area 6 - Topography’ (Sheet 11 of 12) of the Dezin plan set, as well as page 13 of 20 of the Elevation plan set showing the relationship between the buildings and the streetscape. The Planning Commission finds that with the foregoing and a comprehensive review of the application materials that this criterion of approval is met. 2.5.4The Planning Commission notes that the fourth criterion of approval for Site Design Review is that “The proposal complies with the applicable standards in section 18.4.6 PA-T2-2025-00059 September 9, 2025 Page 8 Total Pge Number: 18 Public Facilities, and that adequate capacity of City facilities for water, sewer, electricity, urban storm drainage, paved access to and throughout the property, and adequate transportation can and will be provided to the subject property.”The Planning Commission notes that this was addressed in detail above in the second approval criterion for Outline Plan in the context of the modification of the alley to a pedestrian connection. The Planning Commission reiterates that this is the third phase of the subdivision and that all city facilities were sized for the expected density during the first phase. Additionally, the Planning Commission notesthatthe modification of the building design and parking area is not applicable to this approval criteria in terms of impact to city facilities. The Planning Commission notes that “the scope of review\[is\]limited to the modification request” and therefore concludes that this approval criterion is satisfied. 2.5.5The Planning Commission notes that the last criterion of approval for Site Design Review is that “The approval authority may approve exceptions to the Site Development and Design Standards of part 18.4 if the circumstances in either subsection 1, 2, or 3, below, are found to exist…” The Planning Commission notes that there are no requested exceptions to the above standards and finds that this criterion of approval has been met. 2.5.6The Planning Commission concludes based on the above that all applicable approval criteria for Site Design Review approval have been satisfied. 2.6The Planning Commission finds that the proposal for Final Plan approval meets all applicable approval criteria described in AMC 18.3.9.040.B.5 whichprovides the following: “Final plan approval shall be granted upon finding of substantial conformance with the outline plan. This substantial conformance provision is intended solely to facilitate the minor modifications from one planning step to another. Substantial conformance shall exist when comparison of the outline plan with the final plan meets all of the following criteria:” 2.6.1The first approval criterion for Final Plan approval is that “The number of dwelling units vary no more than ten percent of those shown on the approved outline plan, but in no case shall the number of units exceed those permitted in the outline plan.” The Planning Commission notes that the number of dwelling units/lots is identical to the Outline Plan approval and therefore is within the ten percent allowance. The Planning Commission conclude that this criterion of approval is met. 2.6.2The second approval criterion for Final Plan approval is that “The yard depths and distances between main buildings vary no more than ten percent of those shown on the approved outline plan, but in no case shall these distances be reduced below the minimum established within this ordinance.” The Planning Commission would note that itwas discussed in first criterion of approval for Site Design Review that PSO subdivisions are free from the standards of 18.2. The Planning Commission would also note that the applicant has provided detailed site plans for each area of the subdivision meeting the base standards of the North Mountain Neighborhood Plan. The Planning Commission concludes that this criterion of approval is met. 2.6.3The third approval criterion for Final Plan approval is that “Thecommon open spaces vary no more than ten percent of that provided on the outline plan.” The Planning PA-T2-2025-00059 September 9, 2025 Page 9 Total Pge Number: 19 Commission notes that this phase of the subdivision includes no open space. As the Outline Plan approval staff report dated December 10, 2024 explained,the first phase of the Kestrel Park Subdivision was 13.48 acres in size of which 5.13 acres was dedicated as open space (North Mountain/Bear Creek Greenway areaas required in AMC 18.3.5.090) and another 0.7 acres was platted as private open space for the subdivision’s on-site wetlands. This open space dedication was 43 percent of the subdivisionparent parcel’s acreage,far exceeding the requirement of eight percent, and satisfied the open space requirement for all future phasesof the subdivision.The Planning Commission concludes that this criterion of approval is met. 2.6.4The fourth approval criterion for Final Plan approval is that “The building size does not exceed the building size shown on the outline plan by more than ten percent.” The Planning Commission notes that the proposed building footprints in Area Six are slightly smaller than originally proposed. The Planning Commission notes that the building permits will be required to be in substantial conformance with those plan reviewed and approved here. The Planning Commission concludes that this criterion of approval is met. 2.6.5The fifth criterion for Final Plan approval is that “The building elevations and exterior materials are in conformance with the purpose and intent of this ordinance and the approved outline plan.” The Planning Commission notes that the building elevations are significantly different than what was reviewed and approved during outline plan. The Planning Commission also notes that was the reason that theMajor Modificationrequired review and approval by the Planning Commission. The Planning Commission concludes that with the approval of the Major Modificationthis criterion of approval is met. 2.6.6The sixth criterion for Final Plan approval is that “That the additional standards which resulted in the awarding of bonus points in the outline plan approval have been included in the final plan with substantial detail to ensure that the performance level committed to in the outline plan will be achieved.” The Planning Commission notes that there were no additional standards that were required to be met and no bonus points awarded at Outline Plan. 2.6.7The seventh criterion for Final Plan approval is that “Thedevelopment complies with the street standards.” The Planning Commission notes that the civil plans submitted for review have been modified to show a 48-foot right-of-way and that they meet all of the city street design standards for the North Mountain Neighborhood. The Planning Commission concludes that this criterion of approval is met. 2.6.8The last Final Plan approval criterion is that “Nothing in this section shall limit reduction in the number of dwelling units or increased open space; provided, that if this is done for one phase, the number of dwelling units shall not be transferred to another phase, nor the common open space reduced below that permitted in the outline plan.” The Planning Commission notes that this approval criterionrelates to issues that arise with a project that has multiple phases of Final Plan. This Final Plan is for the entirety of the project in a single phase therefore this standard is not applicable. The Planning Commission concludes that this criterion of approval is met. PA-T2-2025-00059 September 9, 2025 Page 10 Total Pge Number: 20 The Planning Commission concludes based on the above that all applicable approval criteria for Final Plan approval have been satisfied. 2.7 The Planning Commission notes that following proper public notice, a public hearing was held on August 12, 2025 where testimony was received, and exhibits were presented. 2.8The Planning Commission notes that the record includes the applicant’s submittal;the Planning Commission Staff Report for Outline Plan dated December10, 2024; the Planning Commission’s Findings,Conclusions and Orders dated January 14, 2025; the City Council’s Findings, Conclusions and Orders dated March 4, 2025;the Planning Commission Staff Report dated August 12, 2025; and the testimony received at the public hearing,and each of these by their reference are incorporated herein as if set out in full. 2.9The Planning Commission finds that there is substantial evidence in the record to make findings that each of the criteriaof approval for the modification to the previously approved Outline Plan and Site Design Review are met, and additionally that each of the criteria of approval for FinalPlan have been met. SECTION 3. DECISION 3.1 Based on the record of the Public Hearings on this matter, the Planning Commission concludes that the requests forthe modification to the Performance Standards Option (PSO) subdivision OutlinePlan, as well as for the modification of the residential Site Design Review for Area 6, and for Final Plan approval are supported by evidence contained within the whole approved record and are subject to the conditions of approval below. The conditions of approval are below: 1.All proposals of the applicant shall be conditions of approval unless otherwise specifically modified herein. 2.All proposed public improvements including sidewalks, curbs, gutters, park rows with irrigated street trees and the alley shall be installed, including the surrounding Area 7, prior to the recording of final plat. 3.Permits shall be obtained from the Ashland Public Works Department prior to any work within the public rights-of-way. 4.A final Fire Prevention and Control Plan addressing the General Fuel Modification Area requirements in AMC 18.3.10.100.A.2 of the Ashland Land Use Ordinance shall be provided prior to bringing combustible materials onto the property, and any new landscaping proposed shall comply with these standards and shall not include plants listed on the Prohibited Flammable Plant List per Resolution 2018-028. 5.Afinal survey plat shall be submitted for review and approval within 18months of Final Plan approval. Prior to submittal of the final subdivision survey plat for signature: a.All easements including but not limited to public and private utilities, drainage, irrigation, mutual access, conservation area easements, and fire apparatus access PA-T2-2025-00059 September 9, 2025 Page 11 Total Pge Number: 21 shall be indicated on the final subdivision plat submittal for review by the Planning, Engineering, Building and Fire Departments. b.Subdivision infrastructureimprovements including but not limited to utilities, drivewayapproaches,full street improvements, and conservation area easements, shall be completed according to approved plans, inspected,and approved. c.Electric services shall be installed underground to serve all lots, inspected,and approved. The final electric service plan shall be reviewed and approved by the Ashland Electric, Building, Planning and Engineering Divisions prior to installation. d.Sanitary sewer laterals and water services including connection with meters at the street shall be installed to serve all lots within the applicable phase, inspected and approved. 6.The building permit submittals shall include the following: a.Identification of all easements, including but not limited to any public and private utility easements, mutual access easements, conservation area easements, and fire apparatus access easements. b.Solar setback calculations demonstrating that all units comply with the performance Solar Setback StandardAas approved in the Outline and Final Plans. c.Final lot coverage calculations demonstrating how lot coverage complies with the lot coverage approved in the Outline and Final Plans. d.Storm water from all new impervious surfaces and runoff associated with peak rainfalls must be collected on site and channeled to the City storm water collection system through the curb or gutter at a public street, a public storm pipe, an approved public drainage way, or through an approved alternativein accordance with Ashland Building Division policy BD-PP-0029. On-site collection systems shall be detailed on the building permit submittals. September 9, 2025 Planning Commission Approval Date PA-T2-2025-00059 September 9, 2025 Page 12 Total Pge Number: 22 Total Pge Number: 23 Total Pge Number: 24 Total Pge Number: 25 Total Pge Number: 26 Total Pge Number: 27 Total Pge Number: 28 Total Pge Number: 29 Total Pge Number: 30 Total Pge Number: 31 Total Pge Number: 32 Total Pge Number: 33 Total Pge Number: 34 Total Pge Number: 35 Total Pge Number: 36 Total Pge Number: 37 Total Pge Number: 38 Total Pge Number: 39 Total Pge Number: 40 _________________________________ Total Pge Number: 41 Total Pge Number: 42 State Of Oregon Understanding Oregon's Land Use Planning Program Training for Local Officials and the Public Excerpt Chapter 4: Making Land Use Decisions Welcome to Chapter 4 – Making Land Use Decisions. In this section, we discuss the different types of land use decisions made by city and county government, time requirements for these decisions and the public hearing and appeals processes. We have divided them into specific sections for easy reference. It is important to note that this chapter is only a general summary of planning procedures and requirements. For information about a specific statute, legal precedent, goal or rule, cities and counties should contact the appropriate governmental agency. Ifyou have legal issues or concerns, consult an attorney who specializes in land use law. Local Land Use Decisions According to state law, there are three main types of land use decisions: legislative, quasi-judicial and ministerial. In most cases, public notice is required. Public hearings are required for certain types of decisions. Although local governments must establish procedures and requirements consistent with state statutes, they have considerable flexibility in assigning responsibility for decisions. For example, in many cases, staff makes the initial decision, subject to appeal to the planning commission. Some planning commission decisions may be appealed to the governing body. Some jurisdictions employ hearings officers to make certain types of land use decisions which are then subject to appeal to the planning commission or governing body. In all cases, local government land use decisions may be appealed to the Land Use Board of Appeals, or LUBA. All decisions must be consistent with state statutes, the statewide planning goals, case law and other applicable legal requirements. Limited land use decisions and expedited land divisions are special categories of local decisions that are subject to specific procedures and standards outlined in state statutes. Legislative Land Use Decisions Legislative decisions establish local land use policies. They typically become part of the comprehensive plan or zoning code. In the case of map designations, legislative decisions are applicable to broad geographical areas rather than single properties orsites. In most communities, proposed legislative amendments to the comprehensive plan or zoning code are considered first by the planning commission, which holds one or more public hearings. The commission’s recommendation is then considered by the governing body which holds at least one public hearing before taking final action. Understanding Oregon's Land Use Planning Program Training for Local Officials and the Public Total Pge Number: 43 Quasi-Judicial Land Use Decisions Local governmental bodies make quasi-judicial decisions when they apply existing policies or regulations to specific situations or development proposals. Other quasi-judicial decisions amend the zoning or comprehensive plan map, policies or regulations in relation to a specific development proposal. Additional examples of quasi-judicial decisions are conditional use permits, variances, partitions, subdivisions, annexations and road and street vacations. Ministerial Land Use Decisions Ministerial land use decisions are made by local planning staff based on clear and objective standards and requirements applicable to a specific development proposal or factual situation. Examples include building permits for a use permitted by code or a determination that a proposed structure meets setback or height requirements. Ministerial decisions do not require a public notice or hearing. Limited Land Use Decisions and Expedited Land Divisions To streamline approval of relatively minor actions within an urban growth boundary, or UGB, the legislature has approved two other kinds of decisions. The first, limited land use decisions, are made by the locally designated decision-maker and are subject to procedures and notice requirements outlined in state statutes. Examples include tentative partitions, tentative subdivisions, site review and design review. The second, expedited land divisions for residential uses within a UGB, are made by planning staff after public notice. They are subject to procedures and requirements outlined in state statutes. The local government may not hold a hearing on such an application and must make its decision within 63 days of the application. Decisions may be appealed to a referee hired by the local government and finally to the State Court of Appeals according to state law. Process Procedures for legislative and quasi-judicial land use decisions are outlined in statutes and interpreted through case law. These procedures are ultimately incorporated into local plans and ordinances. Legislative procedures are generally more flexible than quasi-judicial procedures because they deal with relatively broad public policy issues. Quasi-judicial procedures are often more complex and specific, and require "due process." This is a legal term that entitles all affected parties prior notification of a proposed action and the opportunity to present and rebut evidence before an impartial tribunal. For quasi-judicial decisions, governing body members, hearings officers and planning commission members should avoid or limit communications outside of the formal public hearing process. They are required to disclose any contact outside the public hearing regarding a specific case in order to provide an opportunity for rebuttal or other corrective action. The local government must maintain a record of the proceedings and adopt findings of fact regarding the reasons for their decision. Within UGBs, this process must be completed within 120 days. Outside UGBs, the process must be completed within 150 days. In both cases, there are specific provisions to extend the time limit. Land Use Application Legislative land use decisions are subject to post acknowledgment plan amendment (PAPA) requirements contained in state statutes. For quasi-judicial land use decisions, the 120- or 150-day review process begins after the planning staff receives required application forms and supporting Understanding Oregon's Land Use Planning Program Training for Local Officials and the Public Total Pge Number: 44 information that advocate for a certain land use or proposed development. Many local governments will schedule pre-application conferences with the prospective applicant. Public Notice Notice for legislative land use decisions must be provided to the public as outlined in local procedures and must be forwarded to the Director of DLCD as required by the state statute. DLCD provides notice to those who have requested to be included on the agency’s notice list. For quasi-judicial decisions, specific parties must be notified at least 20 days prior to the public hearing: the applicant; property owners within 100 feet of the property if within a UGB, within 250 feet if located outside a UGB and within 500 feet if located within a farm or forest zone; and any neighborhood or community organizations whose boundaries include the site. Some local governments also require that notice be posted on the property. Public Hearing For legislative decisions, the planning commission usually holds initial hearings on a proposal before forwarding its recommendation to the governing body. Legislative decisions require final action by the governing body. Hearing procedures are relatively flexible and there are no limitations on outside contact between decision makers and the public. For quasi-judicial decisions, most cities and counties hold at least one hearing before the planning commission or hearings officer prior to forwarding a recommendation or allowing an appeal to the governing body. At the hearing, the presiding officer summarizes the procedures and planning staff describes the case, including the applicable criteria in the comprehensive plan or zoning code, and its recommendation. Applicants then present their case for approval and others may support them. Opponents then have the opportunity to challenge the applicant’s case. All parties have the right to present and rebut evidence directed toward the applicable criteria. Failure toraise an issue orally or in writing in advance of or during the hearing precludes appeal to LUBA on that issue. This is commonly referred to as the "raise it or waive it" requirement. Under state law, some types of land use decisions may be made without ahearing if notice is provided and no party requests it. Decision and Findings Legislative decisions require a record and findings, but the requirements are less rigorous than for quasi- judicial decisions. The record must be adequate to show that the legislative action is within the legal authority of the city or county. The record must show that the jurisdiction followed applicable procedures. Legislative decisions must be consistent with substantive requirements in state statutes and the statewide planning goals. For example, an updated housing element must be consistent with ORS 197.303-314 and Statewide Planning Goal 10 (Housing). After hearing the staff report and public testimony on an application for a quasi-judicial decision, the hearings body makes its decision. As noted before, this must be based only on applicable criteria in the local code and relevant evidence and testimony. There are four choices of action: approve the application; approve the application subject to specific conditions; deny the application; or continue the review process to obtain additional information. In this case, the applicant may need to agree to a time extension. Understanding Oregon's Land Use Planning Program Training for Local Officials and the Public Total Pge Number: 45 The final decision must include findings of fact and conclusions of law that are adequate to explain the basis for the action. Draft findings are often prepared by staff and may be available in advance of the hearing. Adoption of findings may occur immediately following the hearing and include any modifications to the draft, based on additional evidence and testimony. In some cases, the prevailing party, legal counsel or staff are asked to prepare the final version of the findings which are then adopted at a separate meeting before the time limit expires. The final decision must be based on what is known as "substantial evidence" that a reasonable person would rely on in reaching the decision. Appeals Local ordinances specify how initial decisions by local staff, a hearings officer, or the planning commission can be appealed to the local governing body. Certain appeals are limited to evidence submitted to the initial decision-maker and may include an opportunity for additional oral or written argument. As we have noted before, only parties that have stated their case before the local government have 21 days to file a Notice of Intent to Appeal with LUBA. Following this filing, and during a timeframe prescribed by law the local government must provide thecomplete record of the proceedings with the board. Once the record is filed and accepted, the petitioner and respondent(s) file their briefs with the board. LUBA will hear oral arguments from the parties and issue a written opinion that either affirms, reverses, or remands the decision for additional consideration. The board’s decision may be appealed to the Court of Appeals, or finally, to the Oregon Supreme Court. Specific timelines in state law provide for a speedy review of land use decisions and increase certainty for both the community and applicant. Alternatives to formal appeals include mediation, which can save all parties time and money. For more information on mediation assistance, contact DLCD. Staff Role Planning staff are usually the first individuals an applicant meets. They are responsible for explaining all procedures and requirements, reviewing the application for completeness and preparing the staff report. Staff presents its report and recommendation to the decision maker. Often, the staff recommendation is accepted with or without conditions. Staff generally prepares the final decision documents and findings of fact documenting the reasoning to support the decision. A pre-application conference with prospective applicants may help them understand the procedures and requirements for the land use proposal, including any additional research or information that may be needed. In some cases, applicants may be encouraged tomeet with neighborhood groups or other affected parties to review their proposal. Staff prepares a public notice for proposed land use decisions that describes the location of the subject property, the nature of the application and the proposed use. The notice also explains: criteria from the comprehensive plan and land use regulations that pertain to the application; the date, time, and location of the public hearing; the name of a local government representative to contact; and requirements for public testimony and how the hearing is conducted. When a staff report is prepared, it must be made available to all interested parties seven days prior to the public hearing. In some cases, the staff report includes draft findings explaining the reasoning for the recommended decision. As noted earlier, LUBA may remand or return a case to the local government for additional review. If a decision is remanded, the local government must decide whether to proceed, based on the existing record or to allow additional evidence and testimony. Legal requirements related to remand may be Understanding Oregon's Land Use Planning Program Training for Local Officials and the Public Total Pge Number: 46 complicated. Staff should work with their legal counsel to define procedures and requirements before the remand is formally considered. Ex ParteContact, Bias and Conflicts of Interest Ex Parte Contact An ex parte contact occurs when a decision-maker receives information, discusses the land use application or visits the site in question outside the formal public hearing. This does not include discussions with and information received from staff. Failure to disclose such contact may result in reversal or remand of the decision. If ex parte contact does occur, the decision-maker must disclose it on the record at the hearing, describe the circumstances under which it occurred and present any new evidence introduced through that contact. The presiding officer must give parties the opportunity to rebut the substance of the ex parte contact. State statutes clearly delineate requirements for ex parte contacts. Bias Bias occurs when decision-makers have a prior judgment of the case that prevents them from making an objective decision based on the facts. Such decision-makers should excuse themselves from the proceedings. Even though bias is often subjective, not all personal views or positions are actual bias in the eyes of the law. While it is not unusual for decision-makers to have a perspective or background, the threshold test is if this will influence their decision. Decision-makers should carefully consider any issues related to their personal bias and be prepared to step aside if necessary. Conflict of Interest A conflict of interest occurs if any action by public officials results in financial gain or loss to themselves or a relative or business associate. According to state law, it must be disclosed. There are two types of conflicts of interest, actual and potential. An actual conflict of interest is one that would occur as a result of the decision. If that is likely, the decision-maker must disclose it and not participate in the decision. A potential conflict is one that could occur as a result of the decision.In that case, disclosure is still required, but the decision-maker may participate in the decision. Legal Issues Related to Ex Parte Contacts, Bias or Conflicts of Interest Decision makers should consult with the local government’s legal counsel if they have any questions or concerns regarding Ex parte contacts, Bias or Conflicts of Interest. Understanding Oregon's Land Use Planning Program Training for Local Officials and the Public Total Pge Number: 47 Oregon Municipal Handbook CHAPTER 9: PUBLIC MEETINGS LAW Published by the League of Oregon Cities September 2020 Total Pge Number: 48 Table of Contents I. Covered Entities .................................................................................................................................... 4 A. Governing Bodies of Public Bodies .................................................................................................. 4 i. A body that makes decisions for a public body ............................................................................ 4 ii. A body that makes recommendations to a public body ................................................................ 5 B. Governing Bodies of Certain Private Bodies .................................................................................... 5 II. Covered Meetings ................................................................................................................................. 6 A. ‘Convening’ a Meeting ..................................................................................................................... 6 B. Meeting ‘Quorum’ ............................................................................................................................ 7 C. Meeting for a ‘Decision’ ................................................................................................................... 8 III. Requirements .................................................................................................................................... 9 A. Meeting Types and Notice ................................................................................................................ 9 i. When Notice is Required .............................................................................................................. 9 ii. Contents of the Notice................................................................................................................... 9 iii. Amount of Notice ....................................................................................................................... 10 iv. Noticing Executive Sessions ....................................................................................................... 11 B. Proper Meeting Space ..................................................................................................................... 11 i. Capacity ...................................................................................................................................... 12 ii. Geography ................................................................................................................................... 12 iii. Accessibility ................................................................................................................................ 12 iv. Equality ....................................................................................................................................... 13 C. Recording and Retaining Minutes ................................................................................................... 13 D. Public Attendance and Participation ............................................................................................... 14 i. Maintaining Order ....................................................................................................................... 14 xecutive Sessions .......................................................................................................................... 17 IV. E A. Executive Sessions for Municipalities ............................................................................................ 18 B. Final Decision Prohibition .............................................................................................................. 20 C. Media Representation at an Executive Session ............................................................................... 21 V. Enforcement ........................................................................................................................................ 22 A. General Enforcement ...................................................................................................................... 22 B. Civil Penalties for Violations of ORS 192.660 ............................................................................... 23 Oregon Municipal Handbook – Chapter 9: Public Meetings Law 2 League of Oregon Cities Total Pge Number: 49 Chapter 9: Public Meetings Law The purpose of the Oregon Public Meetings Law (OPML) is to make decision-making of state and local governing bodies available to the public. This policy is stated expressly in the law: “The Oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which such decisions were made. It 1 is the intent of \[this law\] that decisions of governing bodies be arrived at openly.” That policy is given effect through various substantive provisions contained under ORS 2 192.610 to ORS 162.690, discussed below. Although compliance with these provisions might reduce the speed and efficiency of local decision-making, local residents benefit from a better understanding of the facts and policies underlying local actions. The required process and formality also can make it easier for cities to justify a decision if one is later challenged in an 3 administrative or judicial proceeding. This chapter will touch on the basic requirements of the law, beginning with the criteria for what gatherings constitute “meetings” and what organizations constitute “governing bodies” 4 under the OPML. Where applicable, the OPML generally requires that meetings be open to the public unless an executive session is permitted, that proper notice be given, and that meeting 56 minutes and votes be recorded.The OPML also governs the locationof meetings. Finally, the 7 OPML includes enforcement provisions for when these provisions are violated. Please note that this chapter is meant to provide LOC members with an overview of the OMPL. LOCmembers with specific questions are encouraged to contact their city’s attorney. Further, note that this chapter of the Handbook is based extensively on material in the Oregon Attorney General’s Public Records and Meetings Manual (2019). LOC strongly recommends that cities purchase the print version of this manual, which is updated every two years. A free online version is availableat https://www. doj.state.or.us/oregon-department-of-justice/public- records/attorney-generals-public-records-and-meetings-manual/. Finally, note that the Oregon Department of Justice (ODOJ) reserves its legal advice for the state of Oregon and its agencies; as such, cities with specific questions on the OPML again should consult their legal counsel. 1 ORS 192.620. 2 Id. 3 See, e.g., ORS 192.650. By recording the minutes of any meeting, including the “substance of any discussion on any matter,” cities build a record that shows the basis for their actions. This record can dispel claims that a city’s action is arbitrary, discriminatory, retaliatory, etc. 4 ORS 192.610. 5 ORS 192.630 to ORS 192.660. 6 Id. 7 ORS 192.680. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 3 League of Oregon Cities Total Pge Number: 50 I.CE OVERED NTITIES Understanding the scope of the OPML is critical for ensuring compliance with the law. In short, the OPML applies to (A) governing bodies of a public body that (B) hold meetings for 8 which a quorum is required to make a decision or deliberate toward a decision on any matter. The first of those elements addresses the who of the OPML — that is, which entities are subject to the law. The second of those elements addresses the what of the OPML — that is, what types of meetings are subject to the law. This section addresses the first of those elements. A.Governing Bodies of Public Bodies 9 The OPML applies only to the “governing bodies” of a public body.” A public body includes state bodies, any regional council, a county, a city, a district, or any other municipal or 10 public corporation. A “public body” also includes a Examples: board, department, commission, council, bureau, A city is a public body under committee, subcommittee, or advisory group of any of ORS 192.610(4), and a five- 11 the aforementioned entities. A “governing body,” member city council is a meanwhile, does not just mean city council; it means two governing body of the city. or more members of any public body with “the authority Further, a planning commission to make decisions for or recommendations to a public of a city is also a public body, 12 and a three-member board of body on policy or administration.” The following commissioners is a governing subsections examine in more detail the authority to make body of the planning decisions and recommendations, and what entities might commission. ORS 192.610(3). in turn qualify as a “governing body.” i. A body that makes decisions for a public body A body with the authority to make decisions for a public body on “policy or 13 administration” is a governing body. For instance, cities are public bodies and their governing bodies are city councils. Sometimes, cities delegate decision-making authority to lower bodies, such as planning commissions; these too are governing bodies for the purposes of the OPML. 8 ORS 192.610(5); ORS 192.630(1). 9 ORS 192.630(1). 10 ORS 192.610(4). 11 Id. 12 ORS 192.610(3). 13 ORS 192.610(3). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 4 League of Oregon Cities Total Pge Number: 51 ii. A body that makes recommendations to a public body A body that has the authority to make recommendations to a public body on policy or 14 administration is itself “a governing body” under the OPML. These recommending bodies are 15 sometimes called “advisory bodies.” From time to time, a local government agency or official may appoint a group or committee to gather information about a subject. If this “advisory body” makes a recommendation to a governing body, then it shares the title of governing body and 16 becomes subject to the OPML. For cities, common examples of bodies that make recommendations to a governing body include subcommittees of the city council and city boards and commissions. The OPML applies to local advisory bodies and all of their members, including private citizens. The language of the OPML is not limited to public officials; rather, it applies to all “members” of a body making 17 decisions or recommendations to a public body, even if all of the members are private citizens. B.Governing Bodies of Certain Private Bodies 18 Technically, only “public bodies” are covered by the OPML. However, it is at least possible that some private bodies might fall under the gamut of the law if they assume clear public functions. There is no test for determining whether or when a private entity should be considered a “public body” for purposes of the OPML. Therefore, cities should consult their attorney when in doubt about whether a private body is covered by the law. Note that the Oregon Supreme Court follows a six-part test for determining when a private entity is the “functional equivalent” of a 19 Those factors include (1) the entity’s “public body” under Oregon’s Public Records Law. origin, (2) the nature of the functions, i.e., whether the function performed is traditionally private or public, (3) the scope of authority exercised by the entity, (4) whether the entity receives financial support from the government, (5) the degree of government control over the entity, and 20 (6) the status of the entity’s offices and employees. That said, the OPML has its own definition 21 of “public body,” and so it is not clear whether these factors apply in the meetings context. 14 ORS 192.610(3). 15 ODOJ,AG’PRMM138(2019). TTORNEY ENERALS UBLIC ECORDS AND EETINGS ANUAL 16 ORS 192.610(3). 17 ORS 192.610(3). 18 ORS 192.610. 19 See Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 463-65 (1998) (interpreting ORS 192.311). 20 Id. 21 ORS 192.610(4). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 5 League of Oregon Cities Total Pge Number: 52 II.CM OVERED EETINGS The previous section explained that the OPML applies to the “governing bodies” of a 22 Not every action that a governing body takes, of course, is subject to the OPML. public body.” Only a “meeting” of a governing body of a public body is subject to the law. The OPML defines a meeting as (1) the “convening of a governing body” in order to (2) 23 “make a decision or deliberate toward a decision” and for which (3) “a quorum is required.” Taken together, a meeting only occurs where a governing body convenes, reaches a quorum, and 24 discusses or deliberates on city matters.This section examines each of these elements under the OPML and how courts have interpreted them. Before reviewing the meeting elements, please note that at least two categories of gatherings that might otherwise qualify as “meetings” under the OPML have been exempted by 25 statute. As such, these gatherings are not “meetings” for the purposes of the OPML. The on-site inspection of any project or program; and A gathering of any national, regional, or state association to which the public body or its members belong. This includes any monthly, quarterly, or annual gatherings of the League of Oregon Cities or National League of Cities. A.‘Convening’ a Meeting For governing bodies, the most natural method of convening is in person. Of course, modern technology provides many other ways for members of a governing body to convene with one another. Because convening might occur by accident, members of governing bodies need to be mindful about how they communicate with each other and staff to avoid holding a “meeting” under the OPML. Outside in-person meetings, the OPML applies to teleconferences, web conferences, and 26 Moreover, the OPML applies in more generally to “telephone or electronic communications.” 27 exactly the same way to these meetings as it does to in-person meetings. Inherent in this are 22 ORS 192.630(1). 23 ORS 192.610(5). 24 Id. Under the OPML, a decision is any action that requires a “vote of the governing body.” ORS 192.610(1). 25 ORS 192.610(5). 26 ORS 192.670. 27 Id. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 6 League of Oregon Cities Total Pge Number: 53 logistical issues, such as guaranteeing public attendance to the meeting and ensuring that the medium of communication can accommodate everyone who wishes to attend. Local governing bodies must solve these issues and comply with all other OPML requirements if they hold a 28 meeting that it is not in-person. It may be possible for a governing body to convene through serial communications on a 29 topic. In 2015, the Oregon Court of Appeals found that three county commissioners — a quorum of the governing body — had violated the OPML by using a series of phone calls and 30 emails to reach a county decision. While the Oregon Supreme Court reversed the ruling, the 31 court did not express an opinion one way or the other on serial communications. Therefore, that portion of the Court of Appeals ruling still holds at least some weight. The Court of Appeals noted “not all private, serial communications among members” are 32 OPML violations. Just as it is with meeting in person, members of a governing body may correspond through email or voicemail on topics unrelated to city business. These serial communications may become an issue only when they are “conducted for the purpose of 33 deliberation or decision.” B.Meeting ‘Quorum’ 34 By law, a meeting cannot take place without a “quorum” of the governing body. Oddly enough, the term “quorum” is not defined in the OPML. For cities, quorum requirements often are set by charter, bylaws, council rules, or ordinance. In the absence of a specific definition, the 35 general definition of “quorum” under state law is a majority of the governing body. If a quorum of members convenes, then the OPML will apply unless the subject matter discussed is completely unrelated to a city decision or recommendation. Conversely, if less than a quorum convenes, then a “meeting” has not taken place, as that term is defined in the law. Quorum is a technical requirement. As a practice, cities should take care not to deliberate toward decisions or recommendations in small groups. Gatherings that are below quorum and 28 Id. 29 See Handy v. Lane County, 274 Or App 644, 664-65 (2015), reversed on other grounds, 360 Or 605 (2016). 30 Id. 31 See generally Handy v. Lane County, 360 Or 605 (2016). 32 See Handy, 274 Or App at 664-66 (2015). 33 Id. The Court of Appeals noted that a plaintiff likely needs “some evidence of coordination, orchestration, or other indicia of a purpose…to deliberate or decide out of the public eye.” Id. 34 ORS 192.630. 35 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 142 (2019). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 7 League of Oregon Cities Total Pge Number: 54 clearly deliberations violate (if nothing more) the policy of OPML, which is to include the public 36 in the decision-making process. Significantly, meetings that do not require a quorum are not “public meetings” under the OPML. As such, meetings with staff generally do not constitute public meetings. A single city council member may meet with staff to discuss city business because staff are not members of the city council. C.Meeting for a‘Decision’ By law, members of a governing body only meet for purposes of the OPML if they are 37 making or deliberating toward a “decision.” The OPML defines a “decision” as the following: Any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is 38 required, at any meeting at which a quorum is present. In other words, only topics that relate to the business of Social Gatherings? A quorum of the governing body trigger the OPML. This subject a governing body is permitted to meet in a social setting without matter requirement means that members of a governing triggering the OPML. Care must body are free to gather to discuss a number of topics — be taken, however, to avoid any sports, television, literature — as long as these do not discussion of public policy or administration, lest the social concern the work of the governing body. Similarly, if a gathering evolve into an illegal quorum of a governing body meets to discuss matters on public meeting. which it has no authority to make a decision, it is not a 39 “meeting” under the OPML either. Yet where the topics do relate to matters concerning the governing body, any discussion by a quorum of the body will trigger the OPML. As noted by the ODOJ, even meetings “for the 40 sole purpose of gathering information” fall under the OPML. Accordingly, the LOC recommends that members of governing bodies avoid discussing with each other any of the facts or context of local matters unless they are participating in a proper public meeting. 36 ORS 192.620. 37 ORS 192.610(5). 38 ORS 192.610(1) 39 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 144 (2019) (citing 38 Op Atty Gen 1471, 1474, 1977 WL 31327 (1977)). 40 Id. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 8 League of Oregon Cities Total Pge Number: 55 III.R EQUIREMENTS The last two sections answered the who and the what of the OPML, namely what entities and what meetings of those entities are subject to the law. Now comes the meeting requirements, including rules on notice, meeting location, and the recording of minutes and votes. The OPML also requires public attendance, and many laws further require public participation. This section addresses these requirements and the challenges that accompany it. A.Meeting Types and Notice As a reminder, each city in Oregon is subject to its own individual charter, municipal code and rules of procedures. Public notice is a common topic of local procedure. As such, the LOC recommends that cities conduct a thorough review of applicable charter provisions, municipal code sections, and their respective city’s rules and procedures to ensure that those provisions do not provide additional requirements to be followed when creating and posting a public notice. This section will address the minimum notice requirements under state law. i.When Notice is Required The OPML requires public notice to be given any time a governing body of a public body 41 holds a “meeting”as defined under the law.Therefore, allregular, special, and emergency meetings require notice, though the amount of notice depends on the meeting type. Generally, 42 notice is required for any interested persons and any media outlet that has requested notice. ii. Contents of the Notice ORS 192.640(1) requires a notice for meetings which are open to all members of the public to contain, at a minimum, the following information: Time of the meeting; Place of the meeting; and A list of the principal subjects anticipated to be considered at the meeting. While the first two items are self-explanatory, the list of principal subjects is less clear. While publishing the agenda along with the notice is generally sufficient for this requirement, the 41 ORS 192.640. 42 Id. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 9 League of Oregon Cities Total Pge Number: 56 ODOJ recommends that the list of principal subjects “be specific enough to permit members of 43 the public to recognize the matters in which they are interested.” This means that notices should avoid repeating generic descriptions, such as “consideration of a public contract,” and should instead state qualities specific to the subject, such as “consideration of contract with X 44 company to provide Y services.” Occasionally, a governing body may wish to discuss a subject that was not on the list, perhaps because the issue arose too late to be included in the notice. As a matter of state law at least, the absence of a subject from a notice does not preclude the governing body from discussing it; under the OPML, the list of anticipated subjects does “not limit the ability of a 45 governing body to consider additional subjects.” Beyond these requirements, a common practice is to include information in the notice for persons with disabilities. The OPML mandates that public bodies make all meeting locations 46 The ODOJ suggests that notices include the name and accessible to persons with disabilities. telephone number of a city employee who can help a person in need of a reasonable 47 accommodation. iii.Amount of Notice The number of days in advance a city must give notice of a public meeting depends on the type of meeting to be conducted. For regularly scheduled meetings, notice must be “reasonably calculated” to provide actual notice of the time and place of the meeting “to 48 interested persons including news media which have requested notice.” For special meetings, i.e. non-regular meetings, notice must be provided at least 24 hours 49 in advance to “the general public” and again to “news media which have requested notice.” The only exception to the 24-hour notice rule for special meetings is an emergency meeting. For an emergency meeting, the governing body must show that “an actual emergency” 50 Even exists and must describe the circumstances of the emergency in the meeting minutes. these meetings require notice; the OPML requires that emergency meetings be noticed in a 43 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 151 (2019). 44 Id. 45 ORS 192.640. 46 ORS 192.630(5). 47 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 151 (2019). 48 ORS 192.640(1). 49 ORS 192.640(3). 50 Id. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 10 League of Oregon Cities Total Pge Number: 57 51 manner that is “appropriate to the circumstances.”Furthermore, an emergency meeting may 52 only be used to discuss matters pertaining to the emergency. In Oregon Association of Classified Employees v. Salem-Keizer School District, the Oregon Court of Appeals found that a school district had violated the OPML by using an emergency meeting held for budget reasons to 53 discuss a “contract approval,” a non-emergency matter. The LOC recommends that cities use emergency meetings only in clear emergencies and only as a way to respond to the emergency. iv. Noticing Executive Sessions If the type of meeting to be held is an executive session, the governing body holding the 54 executive session is required to give notice in the manner described above. In addition, the 55 notice must be sent to each member of the governing body. No member of the governing body can be excluded from receiving notice of the executive session, even if it is known that the member is unable to attend the meeting.In addition, when providing notice of an executive session, the notice is required to state the specific provision of the OPML that authorizes the 56 executive session. Finally, unless the executive session is necessary to respond to an 57 emergency, the notice of the session must be provided with a minimum of 24 hours’ notice. 58 The LOC Guide to Executive Sessions explores these issues and offers sample notices. B.Proper Meeting Space The OPML requirements for a public meeting space fall roughly into four categories. 59 First, the meeting space must have appropriate capacity. Second, the meetingspace must be 6061 within the right geography. Third, the meeting space must satisfy criteria for accessibility. 62 Fourth, the space must be a place of equality. 51 Id. 52 See Or. Ass’n of Classified Employees v. Salem-Keizer Sch. Dist. 24J, 95 Or App 28, 32 (1989). 53 Id. 54 ORS 192.640(2). 55 Id. 56 Id. 57 ORS 192.640(3). 58 LOC,GES(2017), https://www.orcities.org/application/files/ EAGUE OF REGON ITIES UIDE TO XECUTIVE ESSIONS 7415/6772/9151/GuidetoExecutiveSessions-03-27-19.pdf (last accessed June 29, 2020). 59 ORS 192.630(1). 60 ORS 192.630(4) 61 ORS 192.630(5). 62 ORS 192.630(3). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 11 League of Oregon Cities Total Pge Number: 58 i. Capacity The OPML provides that any and all public meetings must “be open to the public” and 63 that anyone interested in attending “shall be permitted to attend.” Based on this language, it should be inferred that governing bodies need to anticipate roughly how many citizens will be interested in a meeting and plan accordingly. A meeting space that is woefully inadequate for the expected turnout likely is a violation of the OPML. ii. Geography The OPML lays out certain criteria for the location of a governing body’s meeting. The provisions are presented in an “either/or” list, and so not all of the criteria need to be satisfied. The OPML requires that a meeting space either be (1) “within the geographic boundaries” of the public body, (2) at the public body’s “administrative headquarters,” or (3) the nearest practical 64 location. Generally speaking, the LOC recommends public meetings be held within the city unless exigent circumstances arise. In the event of “an actual emergency necessitating immediate action,” these criteria do not apply and the governing body may hold an emergency meeting at a 65 different location than the ones described here. iii. Accessibility 66 In two main ways, the OPML requires accessibility for persons with disabilities.First, meetings subject to the OPML must be held in places accessible to individuals with mobility and 67 other impairments. Second, the public body must make a “good-faith effort” to provide an 68 interpreter at the request of deaf or hard-of-hearing persons. Cities can find guidance on the first requirement, and the potential penalties for failure to comply, under laws and regulations of the Americans with Disabilities Act (ADA). As for the 69 The law defines a “good faith” requirement, this can be enforced only through the OPML. “good-faith effort” as “including … contacting the department or other state or local agency that maintains a list of qualified interpreters and arranging for the referral of one or more qualified 70 interpreters to provide interpreter services.” 63 ORS 192.630(1). 64 ORS 192.630(4). A fourth option for most public bodies is to hold a public meeting within “Indian country.” Id. 65 Id. 66 See ORS 192.630(5)(a). 67 Id. 68 Id. 69 See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 154-55 (2019). 70 ORS 192.630(5)(e). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 12 League of Oregon Cities Total Pge Number: 59 iv. Equality Public bodies are prohibited from holding meetings where discrimination is practiced on 71 the basis of race, color, creed, sex, sexual orientation, national origin, age, or disability. Generally, a public body may not hold a meeting at a location that is used by a restricted- 72 membership organization, but may if the location is not primarily used by such an organization. C.Recording and Retaining Minutes The OPML requires that the governing body of a public body provide for sound, video, 73 or digital recording, or written minutes, of its public meetings.Whatever the format, the record of the meeting must include the following categories of information: (a) All members of the governing body present; (b) All motions, proposals, resolutions, orders, ordinances and measures proposed and their disposition; (c) The results of all votes and, except for public bodies consisting of more than 25 members unless requested by a member of that body, the vote of each member by 74 name; (d) The substance of any discussion on any matter; and (e) Subject to ORS 192.311 to 192.478 relating to public records, a reference to any 75 document discussed at the meeting. When recording minutes, the objective is not to include every word said at the meeting, but rather to provide “a true reflection of the matters discussed at the meeting and the views of 76 the participants.” Upon conclusion of the meeting, the minutes must also be available to the 77 public “within a reasonable time.” The ODOJ notes that, with some exceptions, the minutes should also be “available to persons with disabilities in a form usable by them, such as large 78 print, Braille, or audiotape.” 71 ORS 192.630(3). 72 Id. 73 ORS 192.650(1). 74 Note that the recording of minutes requires the “vote of each member by name” to either be recorded or made available on request. This means that members of a governing body cannot vote anonymously. The Court of Appeals has held, however, that the “absence of a recorded vote alone is not reversible error.” See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 158-59 (2019) (citing Gilmore v. Bd. of Psychologist Examiners, 81 Or App 321, 324 (1986)). 75 ORS 192.650(1). 76 Id. 77 Id. 78 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 161 (2019). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 13 League of Oregon Cities Total Pge Number: 60 Finally, the OPML requires that minutes or another record of a public meeting must be 79 preserved for a reasonable time. However, the Secretary of State’s Retention Schedule for 80 cities requires minutes of non-executive session meetings to be retained permanently. 81 Executive session minutes must be retained for 10 years. The LOC recommends that cities consult with their attorney before setting a retention schedule for meeting minutes. D.Public Attendance and Participation The OPML is a public attendance law, not a public participation law. Generally, meetings 82 of a governing body of a public body are open to the public unless otherwise provided by law. Yet while the law guarantees the right of public attendance, the law does not guarantee the right of public participation. In fact, the OPML only expressly mentions public participation in two specific contexts: the opportunity for “public comment” on the employment of a public officer and the opportunity for “public comment” on the standards to be used to hire a chief executive 83 officer. Importantly, public participation laws do exist elsewhere under state and local laws. In many cases, public participation might be required by another statute, a state regulation, or by a local charter or ordinance. For example, a city ordinance may require the city council to hear public comment when the council considers whether to condemn private property for public use. Similarly, state law requires cities to provide an opportunity for public testimony during the 84 annual budgeting process. State regulations, meanwhile, require that “\[c\]itizens and other interested persons \[have\] the opportunity to present comments orally at one or more hearings” 85 during the periodic review of a local comprehensive plan. For this reason, the LOC cautions cities to consult their attorney before choosing to withhold opportunities for public comment. Note that there is no rule against public participation if cities wish to allow it at meetings. i. Maintaining Order For cities, the charter ordinarily designates a specific person with authority to keep order in council meetings, often the mayor or the council president. For other governing bodies serving the city, the one with this authority likely is the leader of the body, such as the head, chair, or president of a particular committee, group, or commission. Generally speaking, a city may adopt 79 Id. at 162 (citing Harris v. Nordquist, 96 Or App 19 (1989)). 80 OAR 166-200-0235. 81 Id. 82 ORS 192.630(1). 83 ORS 192.660(7)(d)(C); ORS 192.660(7)(d)(D). 84 ORS 294.453 85 OAR 660-025-0080(2). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 14 League of Oregon Cities Total Pge Number: 61 meeting rules and a violation of these rules can be grounds for expulsion. For more information on maintaining order in council meetings, consult the LOC’s Model Rules of Procedure for 86 Council Meetings. Reasonable restrictions also may be placed on public participation. However, care must be taken to protect the freedom of speech under the First Amendment and Article 1, Section, of the Oregon Constitution. For example, the First Amendment protects the interest of citizens who 87 are “directing speech about public issues to those who govern their city.” Speech is a protected right that can be enjoyed not only through actual speech but also through expressive conduct, 88 such as making a gesture, wearing certain clothing, or performing a symbolic act.While the 89 right to speech is “enormous,” it is subject to content-neutral limitations. Further, no city is required to “grant access to all who wish to exercise their right to free speech on every type of government property, at any time, without regard to the disruption caused by the speaker’s 90 activities.” a. The Time, Place, and Manner of Speech Under federal law, a city’s council meeting or similar meeting is considered a limited 91 public forum. At a minimum, any expression of speech at a limited public forum in Oregon can 92 be limited through time, place and manner restrictions. Time, place and manner restrictions are simply that — rules regulating the time in which a person may speak, the place in which a person can speak, and the manner in which the speech can be made. An important caveat is that 93 all of these restrictions must be viewpoint neutral.The restrictions also must serve a 94 “legitimate interest” and provide “ample alternatives for the intended message.” 86 LOC,MRPCM(2017), https://www.orcities EAGUE OF REGON ITIES ODEL ULES OF ROCEDURE FOR OUNCIL EETINGS .org/application/files/1115/7228/7626/ModelRulesofProcedure3-15-19.pdf (last accessed July 9, 2020). 87 See White v City of Norwalk, 900 F2d 1421, 1425 (9th Cir 1990). 88 See Virginia v. Black, 538 U.S. 343, 358 (2003). 89 See White, 900 F. 2d at 1425 (1990). 90 See Walsh v Enge, 154 F. Supp. 3d 1113, 1119 (D. Or. 2015) (quoting Cornelius v. NAACP, 473 U.S. 788, 799 (1985)). 91 See White, 900 F. 2d at 1425 (1990). 92 See State v. Babson, 355 Or 383, 408 (2014). Under federal law, expressions of speech in a limited public forum can also be subject to “content-based” rules, provided those rules are both “viewpoint neutral” and “reasonable.” Enge, 154 F. Supp. 3d at 1128. Thus, under federal law, a city council could limit the content of a public comment to the subject-matter at hand as long as it did not apply this rule unevenly. White, 900 F. 2d at 1425 (1990). In Oregon, however, the free speech clause Oregon Constitution appears to prohibit any “content-based” regulation of speech. See Outdoor Media Dimensions, Inc. v. Dept. of Transp., 340 Or 275, 288 (2006). Cities should err on the side of caution by permitting speech on any “subject” at meetings and limiting only its time, place, and manner. 93 See White, 900 F. 2d at 1425 (1990). 94 See Babson, 355 Or at 408 (2014). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 15 League of Oregon Cities Total Pge Number: 62 Because these restrictions are constitutional, local governing bodies generally can establish a specific format for speech at a council meeting or other public meeting. For example, a city’s budget committee may choose to limit public comment to the start of a hearing and limit the amount of time a person may speak. Limiting public comment to the start of a public hearing is not legally contentious. The challenge of time, place, and manner restrictions is ensuring that the restrictions are enforced consistently and equally to all speakers and that the restrictions cannot be construed as 95 discriminating against a given viewpoint. That said, cities generally will avoid triggering the 96 First Amendment if their restrictions serve “purposes unrelated to the content of expression.” This is true even if an otherwise valid restriction, under particular circumstances, “incidentally 97 burdens some speakers, messages or viewpoints.” b. Disruptive Conduct A good example of an “incidental” restriction on speech is rules on disruptive conduct. As noted above, cities and other governments are not required to tolerate “actual disruptions” when carrying out government business. So, even if the disruptive activity is a voice or some 98 form of expressive conduct, i.e., speech, it can be regulated. The rule against actual disruptions means that governing bodies may override one’s freedom of speech in certain circumstances, such as when an audience member is shouting loudly at others or when an individual refuses to sit down long after their allotted speaking time has ended. The general rule of thumb is that the disruption has to be preventing the governing body from completing its work. Conversely, cities must allow any actions that are not “actual” disruptions to the 99 In Norse v. City of Santa Cruz, for example, the governing body’s ability to conduct business. Ninth Circuit Court of Appeals found that an audience member giving the Nazi salute did not actually interfere with or interrupt the public meeting and that the city therefore had not been 100 justified in removing the individual from the meeting. In reaching its decision, the Norse Court found that “\[a\]ctual disruption means actual disruption. It does not mean constructive 95 See Norse v City of Santa Cruz, 629 F3d 966, 976 (9th Cir 2010) (noting that viewpoint neutrality is a key element under the First Amendment), 96 Alpha Delta Chi-Delta Chapter v Reed, 648 F3d 790, 800 (9th Cir 2011) (quoting, in part, Ward v Rock Against Racism, 491 US 781, 791, 109 S Ct 2746, 105 L Ed2d 661 (1989)). 97 Id. 98 Norse, 629 F.3d at 976. 99 Id. 100 Id. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 16 League of Oregon Cities Total Pge Number: 63 disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary 101 disruption.” c. Barring Disruptive Individuals It is not uncommon for a person desiring to make their point to cause several disruptions at the same meeting or over a series of meetings. The constant disruption of public meetings by the same person, despite repeated warnings and removals, often leads public officials to consider suspending the person from future public meetings. Unfortunately, any efforts to suspend or ban individuals from future hearings are highly suspect and likely unconstitutional. On two separate occasions, federal courts have held that prohibiting a disruptive person from attending future meetings, and from entering the entirety of a government facility, is not permitted under the First Amendment. In Reza v. Pearce, the Ninth Circuit Court of Appeals ruled that “imposing a complete ban” on a person’s entry into a government building “clearly 102 Similarly, exceeds the bounds of reasonableness … as a response to a single act of disruption." in Walsh v. Enge, a federal district court found that the city of Portland could not “prospectively exclude individuals from future public meetings merely because they have been disruptive in the 103 past.” Note, however, that a district court decision is not binding precedent. While neither of these cases conclusively answers the question of whether a frequently disruptive individual can be barred from future hearings, they cast serious doubt that a court would uphold such an action. For a description of these cases and a more detailed overview of the options available to cities for handling disruptive members of the public at public meetings, see the LOC’s Legal 104 Guide to Handling Disruptive People in Public Meetings (2017). IV.ES XECUTIVE ESSIONS An executive session is a public meeting that is closed to members of the general public. Executive sessions may only be held for certain reasons and the other meeting requirements 105 discussed above still apply, such as notice, location, and minute-keeping requirements. 101 Id. 102 Reza v Pearce, 806 F.3d 497, 505 (9th Cir 2015). 103 See Walsh v Enge, 154 F. Supp. 3d 1113, 1119 (D. Or. 2015). 104 LOC,LGHDPPM(2017), https: EAGUE OF REGON ITIES EGAL UIDE TO ANDLING ISRUPTIVE EOPLE IN UBLIC EETINGS //www.orcities.org/application/files/2715/6116/0383/LOCWhitePaperonDisruptiveCitizens-FINAL5-5-17.pdf(last accessed June 29, 2020). 105 See ORS 192.660; see also ORS 192.610(2) (defining an executive session as a “meeting.”). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 17 League of Oregon Cities Total Pge Number: 64 For a thorough assessment of how executive sessions apply to cities, including sample 106 notices and a model media policy, consult the LOC Guide to Executive Sessions. Executive Sessions for Municipalities A. The Oregon Legislative Assembly has identified 14 circumstances in which an executive 107 session is authorized. Of these, 10 circumstances are likely to be used by municipalities: 1. Employment of a public officer, employee, staff member or individual agent. Members of governing bodies may generally deliberate whether to employ individuals that meet this description. That said, this exception does not apply to any public officer, employee, staff member, or chief executive officer unless (1) the position has been advertised (2) and there already exists an adopted regular hiring procedure. In addition, with respect to public officers, the public must have had an opportunity to comment on the officer’s employment. With regard to chief executive officers, there must be adopted hiring criteria and policy directives. This type of executive session cannot be used for either of the following purposes: To fill a vacancy in any elected office, public committee or commission, or advisory 108 or group; 109 To discuss an officer’s salary. 2. Dismissal, disciplining, or hearing complaints or charges relating to a public officer, employee, staff member or individual agent who does not request an open hearing. A governing body may hold an executive session on disciplinary matters; however, the 110 subject of the deliberations must be provided with an opportunity to request an open hearing. Clearly, this means that the governing body must notify the individual well in advance and determine whether they wish to have an open hearing. Generally, cities should be aware that public employees have a property interest in their employment. When in doubt, cities that are members of CIS are encouraged to consult the CIS 106 LOC,GES(2017), https://www.orcities.org/application/files/ EAGUE OF REGON ITIES UIDE TO XECUTIVE ESSIONS 7415/6772/9151/GuidetoExecutiveSessions-03-27-19.pdf (last accessed June 29, 2020). 107 ORS 192.660. 108 See ORS 192.660; see also ORS 192.660(7)(a)-(d). 109 See generally 42 Op Atty Gen 362, 1982 WL 183044 (1982). 110 ORS 192.660(2)(b). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 18 League of Oregon Cities Total Pge Number: 65 Pre-Loss Legal Department before taking disciplinary action. Failing to do so can negatively impact a city’s deductible if a lawsuit or wrongful termination complaint is subsequently filed. 3. Persons designated by the governing body to carry on labor negotiations. This provision allows city officials to hold an executive session to conduct deliberations 111 with the person they have designated to act on the city’s behalf during labor negotiations. Note that this is one of the few meetings where news organizations and the media can be excluded 112 from an executive session. 4. Persons designated by the governing body to negotiate real property transactions. This provision allows city officials to hold an executive session to conduct deliberations with the person they have designated to act on the city’s behalf regarding real property 113 transactions. A real property transaction likely may include the purchase of real property, the 114 sale of real property, and/or negotiations of lease agreements. The deliberations conducted during an executive session held under this provision must concern a specific piece of property 115 or properties — the session may not be used to discuss a city’s long-term property needs. 5. Information or records that are exempt by law from public inspection. In order to hold an executive session under this provision, the information and records to 116 be reviewed must otherwise be exempt from public inspection under state or federal law. The most common source for public records exemptions is Oregon’s Public Records Law and the attorney-client privilege under ORS 40.225. 6. Preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations. A governing body may use this provision to meet in executive session when it has good 117 reason to believe it is in competition with other governments on a “trade or commerce” issue. 7. Rights and duties of a public body as to currentlitigation or litigation likely to be filed. 111 ORS 192.660(2)(c). 112 ORS 192.660(4). 113 ORS 192.660(2)(e). 114 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 165 (2019). 115 Id. (citing Letter of Advice to Rep. Carl Hosticka, 1990 WL 519211 (OP-6376) (May 18, 1990)). 116 ORS 192.660(2)(f). 117 ORS 192.660(2)(g). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 19 League of Oregon Cities Total Pge Number: 66 A governing body may use executive sessions as a way to consult with legal counsel 118 about current or pending litigation. In the event the litigation is against a news organization, 119 the governing body must exclude any journalist who isaffiliated with the news organization. 8. Employment-related performance of the chief executive officer of any public body, a public officer, employee, or staff member who does not request an open hearing. A governing body may hold an executive session to evaluate an employee’s performance; however, the subject of the deliberations must be provided with an opportunity to request an 120 open hearing. Clearly, this means that the governing body must notify the individual well in advance and determine whether they wish to have an open hearing. Generally, cities should be aware that public employees have a property interest in their employment. When in doubt, cities that are members of CIS are encouraged to consult the CIS Pre-Loss Legal Department before taking disciplinary action. Failing to do so can negatively impact a city’s deductible if a lawsuit or wrongful termination complaint is subsequently filed. 9. Negotiations under ORS Chapter 293 with private persons or businesses regarding proposed acquisition, exchange or liquidation of public investments. 121 This provision allows cities to conduct negotiations about certain public investments. 122 The final decision on these investments must occur in an open public meeting (see below). 10. Information on the review or approval of certain security programs. In order to hold an executive session under this provision, the security program must be related to one of the areas identified under ORS 192.660(2)(n). These include telecommunication 123 systems and the “generation, storage or conveyance of” certain resources or waste. B.Final Decision Prohibition Under the OPML, executive sessions must not be used “for the purpose of taking any 124 final action or making any final action.” While final decisions cannot be made, city councils and other public bodies may still reach a consensus during an executive session. This provision simply guarantees that the public is made aware of the deliberations. Thus, a formal vote in a 118 ORS 192.660(2)(h). 119 ORS 192.660(5). 120 ORS 192.660(2)(i). 121 ORS 192.660(2)(j). 122 ORS 192.660(6). 123 ORS 192.660(2)(n). 124 ORS 192.660(6). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 20 League of Oregon Cities Total Pge Number: 67 public session satisfies the requirement, even if the vote merely confirms the consensus reached 125 in executive session. C.Media Representation at an Executive Session Representatives of the news media must be allowed to attend all but two types of 126 executive sessions. The news media may be excluded from an executive session held to conduct deliberations with a person designated by the governing body to carry on labor 127 negotiations or an executive session held by a school board to discuss certain student records. Also, remember that a city council or other public body must exclude any member of the press if the news organization the reporter represents is a party to the litigation being discussed during 128 the executive session. Even though news organizations are permitted to attend virtually every executive session, governing bodies may prohibit news organizations from disclosing certain specified 129 information. Unless a governing body specifies what information is prohibited from disclosure, news organizations are free to report on the entire executive session. It also is worth noting that there is no penalty or punishment under the OPML against a news organization that shares information from an executive session without the city’s permission. The term “representatives of the media” is not defined by the OPML or in case law. However, the Oregon attorney general recently issued an advisory opinion wherein it concluded that under Oregon law “news-gathering representatives of institutional media” are permitted to attend executive sessions and the term is “broad and flexible enough to encompass changing 130 The conclusion reached by the attorney general seems technologies for delivering the news.” to imply that bloggers and other social media news entities are authorized to attend executive sessions. In reaching this conclusion, the attorney general relied heavily on what it believes are the stated reasons the Legislative Assembly allowed the media to attend executive sessions when 131 the law was originally adopted. Due to the ambiguity around who is or isn’t a “representative of the media,” the LOC recommends that cities generally permit any person providing the public with news, including internet bloggers, to attend executive sessions. Some cities may seek to establish a stricter media 125 See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 173-75 (2019). 126 ORS 192.660(5). 127 Id. 128 ORS 192.660(5). 129 ORS 192.660(4). 130 See generally Op Atty Gen 8291 (2016). 131 Id. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 21 League of Oregon Cities Total Pge Number: 68 attendance policy and, if so, those cities need to undertake a meaningful and in-depth discussion with their city attorney before drafting such a policy. Denying “representatives of the media” access to meetings can lead to costly litigation. V.E NFORCEMENT A.General Enforcement Any person affected by a decision of a governing body of a public body may file a lawsuit to require compliance with, or prevent violations of, the OPML by members of the 132 Lawsuits may be filed by “any person who might be affected by a decision governing body. 133 that might be made.” A plaintiff may also file suit to determine whether the OPML applies to meetings or 134 decisions of the governing body. Under ORS 192.680(5), any suit brought under the OPML 135 must be commenced within 60 days following the date the decision becomes public record. 136 A successful plaintiff may be awarded reasonable attorney fees at trial or on appeal. 137 Whether to award these or not is in the court’s discretion. If a court finds that a violation of the OPML was the result of willful misconduct by a member or members of the governing body, 138 each is liable for the amount of attorney fees paid to the successful applicant. If a governing body violates the OPML in a decision, the decision is not necessarily void. In the case of an unintentional or non-willful violation of the OPML, the court has discretion to 139 void a decision, but such an action is not mandatory. The law permits a governing body that 140 violates the OPML to reinstate the decision while in compliance with the law. If a governing body reinstates an earlier decision while in compliance with the law, the decision will not be 141 voided and the decision is effective from the date of its initial adoption. Importantly, reinstatement of an earlier decision while in compliance with the law will not prevent a court from voiding the earlier decision “if the court finds that the violation was the result of intentional disregard of the law or willful misconduct by a quorum of the members of 132 ORS 192.680(2). 133 See Harris v. Nordquist, 96 Or App 19, 23 (1989). 134 ORS 192.680(2). 135 ORS 192.680(5). 136 ORS 192.680(3). 137 Id. 138 ORS 192.680(4). 139 ORS 192.680(1). 140 Id. 141 Id. Oregon Municipal Handbook – Chapter 9: Public Meetings Law 22 League of Oregon Cities Total Pge Number: 69 142 the governing body.” In that case, the court will void the decision “unless other equitable 143 relief is available.” B.Civil Penalties for Violations of ORS 192.660 Apart from the enforcement provisions described above, the Oregon Government Ethics Commission may review complaints that a public official has violated the executive session 144 provisions of the OPML as provided in ORS 244.260. The commission has the authority to interview witnesses, review minutes and other records, and obtain other information pertaining to executive sessions of the governing body for purposes of determining whether a violation 145 occurred. If the commission finds a violation of the executive sessions provisions, the 146 commission may impose a civil penalty not to exceed $1,000. If, however, the violation occurred as a result of the governing body acting on the advice of its legal counsel, the civil 147 penalty may not be imposed. 142 ORS 192.680(3). 143 Id. 144 ORS 192.685(1). 145 ORS 192.685(2). 146 ORS 244.350(2)(a). 147 ORS 244.350(2)(b). Oregon Municipal Handbook – Chapter 9: Public Meetings Law 23 League of Oregon Cities Total Pge Number: 70