HomeMy WebLinkAbout3005 Tolling
ORDINANCE NO. '3 roS
AN ORDINANCE AMENDING AMC 18.108.070 AND AMC 18.112,
CONCERNING TIMETABLE TOLLING
Annotated to show deletions and additions to the code sections being modified.
Deletions are bold" ..... and additions are bold underlined.
WHEREAS, Article 9. Section 1, of the Ashland City Charter provides:
Violation of Charter, Ordinance and Laws The Council, at any regular or
adjourned meeting, shall haye the power within the limits of the City of Ashland to
enact laws, ordinances and pass resolutions not in conflict or inconsistent with
the laws of the United States, the State of Oregon, or the proYisions of this
Charter; and to proYide for punishment of any person or persons found guilty by
a competent tribunal of the yiolation of any such laws, ordinances, or any of the
proYisions of this Charter, by fine or imprisonment of such offender, until such
fine and costs are paid; a~d
WHEREAS, Article 2. Section 1 of the Ashland City Charter provides:
Powers of the City The City shall have all powers which the constitutions,
statutes, and common law of the United States and of this State expressly or
impliedly grant or allow municipalities, as fully as though this Charter specifically
enumerated each of those powers, as well as all powers not inconsistent with the
foregoing; and, in addition thereto, shall possess all powers hereinafter
specifically granted. All the authority thereof shall have perpetual succession.
WHEREAS, the above referenced grant of power has been interpreted as affording all
legislative powers home rule constitutional provisions reserved to Oregon Cities. City of
Beaverton v. International Ass'n of Firefiqhters, Local 1660. Beayerton Shop, 20 Or.
App. 293, 531 P 2d 730, 734 (1975); and
WHEREAS, the Ashland Municipal Code does not expressly toll or suspend
development timetables in the event the project is subject to a LUBA or Circuit Court
proceeding; and
WHEREAS, the City of Ashland, acting by and through the City Council, desires to
expressly provide for timetable tolling during pending appeals and proceedings; and
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1: Recitals. The above recitals are true and correct and are incorporated
herein by this reference.
SECTION 2: Amendment. AMC 18.108.070 [Effective Date of Decision and Appeals]
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is hereby amended to add a new subsection 0:
18.108.070 Effective Date of Decision and Appeals
A. Ministerial actions are effective on the date of the decision of the Staff Adyisor .
and are not subject to appeal.
B. Actions subject to appeal:
1. Expedited Land Divisions. Unless appealed within 14 days of mailing a
notice of decision, the Staff Advisor decision becomes final on the 15th day.
Appeals shall be considered as set forth in ALUO 18.108.030(C) and ORS
197.375.
2. Type I Planning Actions.
a. Effective Date of Decision. The final decision of the City for planning
actions resulting from the Type I Planning Procedure shall be the Staff
Advisor decision, effective on the 13th day after notice of the decision is
mailed unless reconsideration of the action is approved by the Staff
Adyisor or appealed to the Commission. as provided in section
18.108.070(B)(2)(c).
b. Reconsideration. The Staff Advisor may reconsider Type I planning
actions as set forth below.
i. Any party entitled to notice of the planning action, or any City Agency
may request reconsideration of the action after the decision has been
made by providing evidence to the Staff Adyisor that a factual error
occurred through no fault of the party asking for reconsideration,
which in the opinion of the staff advisor, might affect the decision.
Reconsideration requests are limited to factual errors and not the
failure of an issue to be raised by letter or evidence during the
opportunity to proYide public input on the application sufficient to
afford the Staff Advisor an opportunity to respond to the issue prior to
making a decision.
ii. Reconsideration requests shall be received within five (5) days of
mailing. The Staff Advisor shall decide within three (3) days whether
to reconsider the matter.
iii. If the Planning Staff Advisor is satisfied that an error occurred crucial
to the decision, the Staff Advisor shall withdraw the decision for
purposes of reconsideration. The Staff Advisor shall decide within ten
(10) days to affirm, modify, or reverse the original decision. The Staff
Advisor shall send notice of the reconsideration decision to affirm,
modify, or reverse to any party entitled to notice of the planning
action.
iv. If the Staff Advisor is not satisfied that an error occurred crucial to the
decision, the Staff Advisor shall deny the reconsideration request.
Notice of denial shall be sent to those parties that requested
reconsideration.
c. Appeal.
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i. Within twelve (12) days of the date of the mailing of the Staff Advisor'
s final decision, including any approved reconsideration request, the
decision may be appealed to the Planning Commission by any party
entitled to receive notice of the planning action. The appeal shall be
submitted to the Planning Commission Secretary on a form approved
by the City Administrator, be accompanied by a fee established
pursuant to City Council action, and be received by the city no later
than 4:30 p.m. on the 12th day after the notice of decision is mailed.
II. If an appellant prevails at the hearing or upon subsequent appeal, the
fee for the initial hearing shall be refunded. The fee required in this
section shall not apply to appeals made by neighborhood or
community organizations recognized by the city and whose
boundaries include the site.
iii. The appeal shall be considered at the next regular Planning
Commission or Hearings Board meeting. The appeal shall be a de
novo hearing and shall be considered the initial evidentiary hearing
required under ALUO 18.108.050 and ORS 197.763 as the basis for
an appeal to the Land Use Board of Appeals. The Planning
Commission or Hearings Board decision on appeal shall be effective
13 days after the findings adopted by the Commission or Board are
signed by the Chair of the Commission or Board and mailed to the
parties.
iY. The appeal requirements of this section must be fully met or the
appeal will be considered by the city as a jurisdictional defect and will
not be heard or considered.
d. Final Decision of City. The decision of the Commission shall be the
final decision of the City on appeals heard by the Commission on Type I
Planning actions, effective the day the findings adopted by the
Commission are signed by the Chair and mailed to the parties.
3. Type II Planning Actions.
a. Effective Date of Decision. The decision of the Commission is the final
decision of the City resulting from the Type II Planning Procedure,
effective 13 days after the findings adopted by the Commission are
signed by the Chair of the Commission and mailed to the parties, unless
reconsideration of the action is authorized as provided in Section (b)
below or appealed to the Council as proYided in section 18.108.11 OA
b. Reconsideration.
i. The Staff Advisor on his/her own motion, or any party entitled to
notice of the planning action may request reconsideration of the action
after the Planning Commission final decision has been made by
providing evidence to the Staff AdYisor addressing one or more of the
following: (1) new evidence material to the decision exists which was
unavailable, through no fault of the requesting party, when the record
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of the proceeding was open; (2) a factual error occurred through no
fault of the requesting party which is relevant to an approval criterion
and material to the decision; (3) a procedural error occurred, through
no fault of the requesting party, that prejudiced the requesting party's
substantial rights and remanding the matter will correct the error.
Reconsideration requests are limited to errors identified above and
not the failure of an issue to be raised by letter or evidence during the
opportunity to provide public input on the application sufficient to
afford the Staff Adyisor an opportunity to respond to the issue prior to
making a decision.
ii. Reconsideration requests shall be received within seven (7) days of
mailing. The Staff Advisor shall promptly decide whether to
reconsider the matter.
iii. If the Staff Advisor is satisfied that an error occurred as identified
above and is crucial to the decision, the Staff Advisor shall schedule
reconsideration with notice to participants of the matter before the
Planning Commission. Reconsideration shall be scheduled before the
Planning Commission at the next regularly scheduled meeting.
Reconsideration shall be limited to the portion of the decision affected
by the alleged errors identified in paragraph 3.b.i above.
iy. The Planning Commission shall decide to affirm, modify, or reverse
the original decision. The Planning Commission Secretary shall send
. notice of the reconsideration decision to any party entitled to notice of
the planning action.
c. Final Decision of City. Unless the decision is remanded to the Planning
Commission, the decision of the City Council shall be the final decision of
the City on appeals heard by the Council, on Type II Planning actions,
effectiye the day the findings adopted by the Council are signed by the
Mayor and mailed to the parties.
4. Type III Planning Actions. For planning actions described in section
18.108.060.A.1 thru 4, the decision of the Council shall be the final decision
of the City, effective the day the findings adopted by the Council are signed
by the Mayor and mailed to the parties.
5. Council Call UP. The City Council may call up any planning action for a
decision upon motion and majority vote, provided such vote takes place in
the required appeal_period. Unless the planning action is appealed and a
public hearing is required, the City Council review of the Planning Action is
limited to the record and public testimony is not allowed. The City Council
may affirm, modify or reverse the decision of the Planning Commission, or
may remand the decision to the Planning Commission for additional
consideration if sufficient time is permitted for making a final decision of the
city. The City Council shall make findings and conclusions and cause copies
of a final order to be sent to all parties of the planning action.
C. No building or zoning permit shall be issued for any action under this Title until
the decision is final, as defined in this section.
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D. NotwithstandinCl any other provision of this Chapter. in the event a LUBA
appeal or a Circuit Court proceedinCl is filed concerninCl a final land use
decision of the City. the timetable of development is deemed tolled or
suspended from the date of the final decision of the City until final
resolution of all appeals or final action on remand. whichever is later, not to
exceed 24 months. After resolution of all such appeals or remands.
timetables shall be adiusted in writinCl by the Staff Advisor to reflect this
automatic tollinCl. reqardless of the approval authority.
SECTION 3: Amendment. Section 18.112.030 [Revocation- permit expiration] is
hereby amended to read as follows:
18.112.030 Revocation--permit expiration Any zoning permit, or planning action
granted in accordance with the terms of this Title shall be deemed revoked if not used
within one year from date of approval, unless another time period is specified in another
section of this Title. Said permit shall not be deemed used until the permittee has
actually obtained a building permit, and commenced construction thereunder, or has
actually commenced the permitted use of the premises. If an application for
extension is deemed complete for processinCl prior to the timetable expiration
date. the permit or action shall not expire by operation of this section unless the
application is abandoned or not approved or denied within 90 days. The Staff
Advisor may grant an extension of the approval under the following conditions:
1. One time extension no longer than eighteen (18) months is allowed.
2. The Staff Advisor shall find that a change of conditions for which the
applicant was not r-esponsible prevented the applicant from completed the
development within the original time limitation.
3. Land Use Ordinance requirements applicable to the development ha':e
not changed since the original appro':al. An extension may be granted,
however, if requirements have changed and the applicant agrees to comply
with any such changes.
SECTION 4: Amendment. A new Section 18.112.035 [Timetable Extension] is hereby
added to read as follows:
18.112.035 Timetable Extension
A. The Staff Advisor shall C1rant a timetable extension of any zoninq permit or
plannina action approval under demonstrated compliance with the
followinq conditions:
1. One time extension no 10nCler than eiqhteen (18) months is allowed.
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2. The Staff Advisor shall find that a chanqe of conditions for which the
applicant was not responsible prevented the applicant from completinq the
development within the oriqinal time limitation.
3. Land Use Ordinance requirements applicable to the development have
not chanqed since the oriqinal approval. An extension may be qranted.
however. if requirements have chanqed and there is no material effect upon
the oriqinal approval. and the applicant aqrees to comply with any new
requirements. as a condition the extension.
SECTION 5. Amendment. Section 18.112.090 is hereby amended to read as follows:
18.112.090 Penalties Any person, firm or corporation, whether as principal, agent
employee, or otherwise, violating or causing the violation of any of the provisions of this
Title has committed a Class A violation offense, an infraction, and upon conviction
thereof is punish-able as prescribed in Section 1.08.020 of the Ashland Municipal Code,
subject to the limitations of the Ashland City Charter. Such person, firm, or
corporation is guilty of a separate violation for each and every day during any portion of
which any violation of this Title is committed or continued by such person, firm or
corporation.
SECTION 6. Amendment. Section 18.112.100 is hereby amended to read as follows:
18.112.100 Complaints. Complaints concerning violations to this Title can be initiated
only as provided in AMC Chapter 1.08. by: (1) '..:ritten complaint filed by an
affected citizen; (2) any City departmental official responsible for the enforcement
of this code; or (3) the City Administrator or City Attorney.
. SECTION 7. Severability. The sections, subsections, paragraphs and clauses of this
ordinance are severable. The invalidity of one section, subsection, paragraph, or clause
shall not affect the validity of the remaining sections, subsections, paragraphs and
clauses.
SECTION 8. Savings. Notwithstanding this amendment/repeal, the City ordinances in
existence at the time any criminal or civil enforcement actions were commenced shall
remain valid and in full force and effect for purposes of all cases filed or commenced
during the time said ordinances(s) or portions thereof were operative. This section
simply clarifies the existing situation that nothing in this Ordinance affects the validity of
prosecutions commenced and continued under the laws in effect at the time the matters
were originally filed.
SECTION 9. Codification. Provisions of this Ordinance shall be incorporated in the
City Code and the word "ordinance" may be changed to "code", "article", "section", or
another word, and the sections of this Ordinance may be renumbered, or re-Iettered,
provided howeyer that any Whereas clauses and boilerplate proYisions (Le. Sections 1,
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7-9) need not be codified and the City Recorder is authorized to correct any cross-
references and any typographical errors, and to combine in the codification multiple
ordinances amending the same section.
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the __ Lk day of _~€;b('cLq. r'1 ' 2010
and duly PASSED and ADOPTED this ~ day of Y\'\ 6..r& h , 2010.
,
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this ~ day of (Y1c..rt.-1-, ,2010
Reviewed as to form:
Richard Appic II ,City Attorney
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