City Recorder's Guide to Land Use Planning

prepared by:

TENNESON ENGINEERING CORPORATION
Daniel R Meader, Planning Consultant
409 Lincoln Street
The Dalles, Oregon 97058

August, 1993

This project was funded through a grant from the Oregon Department of Land Conservation and Development. The contents of this report do not necessarily reflect the views or policies of the Department of Land Conservation and Development.

This Handbook was developed to assist small cities in processing land use applications. Oregon Department of Land Conservation and Development staff; most notably, Brent Lake, Field Representative for most of Eastern Oregon, provided significant assistance, experience, and expertise in its preparation. The Department's goal is to provide as much assistance as possible to help clarify oft-times confusing or rapidly changing rules and regulations.

The author also wishes to express appreciation and sincere thanks to the City Recorders of the Cities of Sisters, Mosier, Culver, Fossil, Halfway, and Garibaldi for acting as a sounding board for the early draft of this report. Their comments and concerns were greatly appreciated and utilized in fine tuning the final draft of this document.

Dan Meader
August, 1993

The following definitions are common planning acronyms. The purpose is to assist the Recorder in fielding day-to-day land use questions. There is also a Glossary in Chapter 11, the Exhibit section of this document. For a complete definitive work on land use planning terms and phrases, Mr. Mitch Rohse has written Land Use Planning in Oregon:

A No Nonsense Handbook In Plain English, which is available from the Oregon State University Press in Corvallis, Oregon. It is a very helpful tool in dealing with common land use questions.

The purpose of this appendix to the City Recorder's Guide is to provide some very basic information regarding the Land Use Planning process in the State of Oregon. It is geared for the Recorder who is very new to land use planning, or one who rarely processes a land use application, and offers a step-by-step review of the various land use actions which take place in the small cities of the state. For those who have been around the land use planning process for some time, this Guide may appear to be oversimplified; however, hopefully, there will be some tips that will help you in your day-to-day work. This Handbook is specifically designed for the one-person shop with little or no planning staff or expertise available to you. What follows is a number of topics on various land use actions from the simplest building permit signoff to Planning Commission hearings and Comprehensive Plan and Zoning Ordinance Amendments. These discussions are intended to provide general guidance to the City Recorder. Other resources available to the City Recorder include the appropriate DLCD Field Representative or the staff of the League of Oregon Cities (LOC).

Each incorporated city in the State of Oregon Is required to have a comprehensive land use plan, a zoning ordinance, and a subdivision ordinance. There also may be supplemental ordinances; for example, a mobile home park development ordinance, a sign ordinance, a flood plain ordinance, or a nuisance abatement ordinance, which may be administered by the city's planning commission as a part of the city's land use process. What follows, briefly, is a discussion of each of the three required documents. For more information or questions about land use planning in the state, the Recorder should consult the Statewide Planning Goals and the Oregon Revised Statutes, Chapters 197 and 227.

The controlling land use document in any city in the state is the Comprehensive Land Use Plan. The comprehensive land use plan consists of several parts, but for smaller communities, typically those less than 2,500 in population, the plan will be three separate elements; the first will consist of base inventories including natural resources, natural hazards, recreational facilities, housing stock, economics, land use, and usually some discussion on urbanization. The second element of the comprehensive plan will also contain policy statements which indicate, in a very general way, the goals and objectives of the city over a given planning period--normally 20 years from the date of adoption of the plan. The final element of the comprehensive plan is the Comprehensive Plan Land Use Map. This map depicts, in a fairly site specific nature, normally to the property lines, the desired land use in all parts of the city and urban growth area. The designations may be very general as residenti4, commercial, industrial, and open space, or may be very specific as low and medium density residential R-1 and R-2), various commercial (C-1, C-2, and C-3) designations and may indicate two or three industrial classifications as well.

Taking these three Comprehensive Plan elements in order of importance to the City Recorder, the most important is the Comprehensive Land Use Map. This is the controlling map, directing the future of land use in the city. The zoning map must be subordinate to the comprehensive plan map. That is to say, the zoning map cannot allow a more intensive land use than is shown for the same area on the comprehensive plan map. To take that a step further, if the comprehensive plan designates a certain area as residential, the zoning map can not designate the same area as commercial (a more intensive land use). Some cities may have only one map which serves as both a Comprehensive Land Use Map and a Zoning Map.

The policy section of the comprehensive plan is important when reviewing proposed zone changes, proposed comprehensive plan amendments and, to a certain extent, some conditional uses. The policies are designed to provide long-range guidance to the city's elected and appointed officials over time.

The inventories, while significant, do not play a major role in day-to-day administration of the city's land use documents. The inventories are normally updated during the time of periodic review and may change certain policies within a plan. For example, if a policy was to provide additional tourist related housing as an economic development goal in 1978 and, by 1995, the city found it had an overabundance of tourist related housing which had been constructed in the intervening years, it would probably be prudent to consider revising that particular policy.

The subdivision ordinance deals with a different aspect of land use-the actual development or division of the land. The subdivision ordinance will provide the processes for subdividing or partitioning lands within the city. There has, at least east of the Cascades, been very little development m the small cities of Oregon. The subdivision ordinances which were adopted generally in the late 1970s have not been used in a number of years and may be difficult or unfamiliar for the Recorder to use. Processes have changed over time, but generally, in a small city it is wise to take even a minor partition to the city planning commission if there is one available, or the city council if not. In most small communities, the elected and appointed officials want to be informed of any land use decision, even the most mundane or commonplace.

The subdivision ordinance provides the infrastructure standards in terms of sewer, street improvements, water improvements, and a host of other design standards. The subdivision ordinance will lay Out the procedures for approving all three types of development actions including minor partitions, major partitions, and subdivisions (see additional information at the top of Page 9). The more lots being created, the more detailed the tentative or preliminary plat needs to be. Any development proposal should be reviewed by the city's engineer, public works director, and county surveyor for compatibility with the existing infrastructure including sewer, water, and streets in the city and for correct preparation of the plat map.

The simplest land use action is the Recorder's approval of a building permit for a home or accessory building. This requires the Recorder to first determine what the subject property is zoned. This is done by consulting the city's zoning map and identifying the correct piece of property on the map. Once the zoning determination is made, the zoning text is consulted for, first, the allowable land uses within the zone, both outright uses and conditional uses and, second, the requirements for placement of a structure within that zone. Typical requc6ts will be for a single-family dwelling or an accessory building to a single-family dwelling on the property. The applicant, the person submitting the application for the building permit, must accompany the building permit application with a proposed plot plan showing the tentative location of the proposed structure. The building permit application will also include structural plans which should be reviewed by the city's designated building official. The plot plan will show the property line configurations, the exterior dimensions of the building, and the distance in feet from the property lines to the proposed structure. If there are other structures or subsurface facilities or easements on the property, these should also be identified on the plot plan. Using the plot plan, then, the Recorder will determine whether the setbacks from the exterior property lines are adequate to meet the zoning ordinance standards. If off-street parking is required, the number of off-street parking spaces need to be shown on the plot plan. A key element not always shown on the plot plan is the proposed height of the structure₁ particularly for accessory structures. Many cities have height limitations for small accessory buildings. Almost all cities have height limitations for single-family dwellings. If this information is not required on the plot plan, it should be requested from the applicant.

Most importantly, the Recorder should keep a copy of the plot plan, with the building permit, on me. Subsequently, if there are questions concerning the completed structure, that plot plan will be the key in determining whether the applicant has followed through correctly with the proposed development.

Other land use actions that face even the smallest community are variances, conditional uses, zone changes, comprehensive plan map amendments, and major/minor partitions and subdivisions.

Taking these in order, a variance is simply a process to allow an applicant to vary from the physical standards required by the zoning ordinance-normally setbacks, height of building, or some other physical dimension requirement of the ordinance. The variance is requested when it can be shown that because of the configuration of the lot or its prior development history, the applicant cannot meet that particular ordinance standard with the proposed improvement or addition. (See Chapter 4 for additional information.)

A conditional use permit follows a similar procedure as a variance. A conditional use permit allows certain special uses likely to have more impact on surrounding properties than an outright use allowed in a specific zone by the zoning text. A conditional use permit allows the city planning commission or council to attach conditions to assist in mitigating the impacts of the proposed use on the surrounding neighborhood. Typical conditional use permits are multi-family dwellings, public structures, and semi-public structures including churches. (See Chapter 5 for additional information.)

A zone change, more properly a zoning map amendment, is a process by which the applicant is seeking to amend the zoning map to change the zoning designation on a specific piece of property or properties. The process is more detailed and requires several steps which are discussed later in this guide. The comprehensive plan map amendment often accompanies a zoning map amendment and requires a number of factors also be observed. (See Chapter 6 for additional information.)

Partitions and subdivisions deal with the actual development of the property, rather than how it will be used. That Is to say, these procedures allow parcels to be divided, partitioned or subdivided into smaller lots or parcels. The Recorder will use the city’s subdivision ordinance in processing these applications. The Subdivision Ordinance will outline the process to be followed and, in most cases, prescribes what the specific infrastructure standards will be, i.e. street width, water and sewer system requirements and, in some cases, curb, gutter and sidewalk standards. (See Chapter 8 for additional information.)

Recent changes in state statutes have, essentially, eliminated the differences in major and minor partitions--all must now be surveyed and have a partition plat prepared and submitted to the city for approval.

Most cities are built near a stream or body of water and, as such, are required by the Federal Emergency Management Agency (FEMA) to have an adopted flood plain ordinance. It may be a part of the zoning ordinance or a totally separate ordinance. Before issuing a building permit or any other land use action, the Recorder needs to check the location of the property against the flood plain maps provided by FEMA to determine whether or not the property is in the designated flood plain zone. Administering flood plain ordinances is difficult because the flood plain maps are normally not site specific enough to determine the precise location and elevation on the ground. The Department of Land Conservation and Development has a full-time Flood Plain Specialist who can be consulted if you have questions.

A variance is a planning-ese term which generally depicts a planning process to allow some deviation from a physical requirement of the zoning ordinance. The usage of the phrase is "You need to get a variance in order to place your single-family dwelling within three feet of the easterly property line." There are several nuances to variance applicability. In Oregon, at least, the state prohibits the issuance or approval of a use variance. That is to say, allowing some land use other than what is listed as an allowable outright, or conditional use in a given zone.

Example:

If the allowable and conditional uses included only single-family dwellings, multiple-family dwellings, churches, and parks and open space, the city would not use a variance procedure to allow a commercial activity such as a mom-and-pop grocery store in the zone. Physical requirements that are the most prevalent types of variances in small communities are a variance in setback, height requirements, off-street parking, street width, and access.

Normally the process requires the applicant to fill out a variance application provided by the city and accompany it with a plot plan showing the proposed development with the exterior boundaries of the structures, distance from the property lines, access, and so forth. The applicant then describes the type of variance being sought, i.e., variance in setback or off-street parking requirements, etc. The variance is normally heard in a public hearing before the planning commission, if available, or the city council, if not. There are certain procedural steps which must be taken. (See Chapters 9 and 10 on notice procedure and quasi-judicial hearings for further information.)

A key element of a variance is that normally there are four and possibly five criteria that the variance must meet in order to be approved. The four criteria usually read something like this:

• Extraordinary circumstances exist on the property that do not ordinarily exist on property in the same zone or vicinity.
• The granting of the variance Is not a grant of special privilege or right and a typical variance that is available to other owners in the same zone or vicinity.
• The variance would not be materially detrimental to the purposes of the ordinance.
• The variance is the minimum which will alleviate the hardship.

The four criteria seem somewhat simplistic, but in many years of experience, a variance which should be approved will meet this criteria. A variance which does not meet this criteria should not be approved.

Brief Tip:

A conditional use permit is probably best described as a process rather than a permit. It is a process by which, through a public hearing procedure, the planning commission or city council can review a proposed land use that is listed in the zoning ordinance as a conditional use for a given zone. Through the public hearing process, the decision-making body planning commission and/or city council) can assess neighborhood and adjoining property owner comments as well as other parties of record (those who participate at a public hearing) and can either approve, deny, or approve with conditions the proposed conditional use permit. The purpose of the conditions is to help mitigate or offset the impact of die proposed use on the adjoining properties or in the general neighborhood or area of the proposed conditional use. The typical zoning ordinance will list the types of conditions, in a general way, which can be placed on a proposed conditional use permit. The most common conditions are: limiting the hours of operation, requiring detailed landscaping to screen the proposed usage, or requiring lighting to be directed away from adjoining properties. The city's zoning ordinance usually contains around a dozen different conditions that can be enacted on a given conditional use permit. The procedure to process a conditional use permit is essentially the same as that for a variance; an application and a plot plan are required. A public hearing is required. Therefore, public notice is required to be sent to adjoining property owners and in the local newspaper. The criteria by which the conditional use is evaluated is very different than that by which a variance is evaluated. The criteria differs from city to city, but is normally contained in the same section of the zoning ordinance as the conditional use procedure. Typically, it will provide:

• The proposal will be consistent with the Comprehensive Plan and the objectives of the zoning ordinance and other applicable policies of the city.
  
• Taking into account location, size, design, and operation characteristics, the proposal will have a minimal adverse impact on the (a) livability₁ (1,) value, and (c) appropriate development of abutting properties and the surrounding area compared to the impact of development that is permitted outright.
  
• The location and design of the site and structures for the proposal will be as attractive as the nature of the use and its setting warrants.
  
• The proposal will preserve assets of particular interest to the community.
  
• The applicant has a bona fide intent and capability to develop and use the land as proposed and has some appropriate purpose for submitting the proposal.

Always require a plot plan for any structure involved in the CUP, and attach it to the findings of fact. For commercial enterprises such as a home occupation or public or semi-public uses, it is normal procedure to ask for a "statement of operations". Most ordinances do not require it, but an "operational statement" is very helpful in setting the parameters of the use. A Statement of Operation is simply a written statement provided by the applicant detailing how the proposed use will be conducted.

This section probably would be more appropriately entitled Zoning Map Changes. Typically, a request for a zone change will involve a map change 99 percent of the time. A property owner request for a zoning text change will generally turn into a legislative process for which the rules are somewhat simpler. A zoning text amendment will usually have a broad impact on the whole city. (See Chapter 9 for further information).

A zoning map amendment is normally a two-hearing process, with the first before the planning commission, if available, and the second before the city council. It requires that post-acknowledgement rules be applied. That means the Department of Land Conservation and Development must be notified at least 45 days in advance of the final public hearing on the proposed zone change. This gives DLCD and other state agencies the opportunity to evaluate the proposal and participate in the process if they choose to do so. If no comments have been received by the final hearing, as described by your notice to DLCD, the city can take it that the state agencies, including DLCD, do not choose to participate in this particular zone change procedure.

Essentially, a property owner or applicant brings in a completed application (sample in the Exhibits) together with a map showing the property he or she wishes to redesignate. The key here is that a legal description of the property being requested for redesignation must be provided. Once the application is complete, a hearing is scheduled before the planning commission and a date picked for the city council hearing and, as noted above, DLCD provided with the post acknowledgment notice blank form in Exhibits). The hearing process is essentially the same as a variance or conditional permit. This will be discussed in greater detail in Chapter 9. There are many nuances to zoning map amendments. For example, a rezoning of an existing mobile home park requires the public notice of hearing be sent the residents of the park. (See ORS 227.175(8). what follows are a few dos, don'ts, and maybes.

DO notify DLCD at least 45 days in advance of the final hearing at which the public can testify, just to be safe.

A brief tip on how to pick the final hearing date before the City Council:

Figure it will take two or three days from mailing for DLCD to receive the notice. Add 45 days to the date DLCD will have the notice. Set the final hearing for the first regular city council meeting after the 45 day period has expired.

DO always look at the comprehensive plan map before setting up the zone change hearing to assure that the proposed zoning map amendment will still conform to the adopted comprehensive plan map. (See discussion under Comprehensive Plan Map Amendments.)

DON'T generally rezone lands to create islands of a special designation in the midst of a sea of other land use zones, commonly called spot zoning.

Example: Don't drop a one lot residential rezone in the middle of the downtown commercial district to accommodate a "good old boy".

In general, rezoning boundaries should be tied in some manner to lands which are the same zone as the proposed rezone designation. In general, it is easier to down-zone, that is, rezone to a less intensive land use, than it is to up-zone or allow a more intensive land use.

As a general rule a comprehensive plan amendment usually receives more scrutiny at the state level than a simple zoning map amendment. A specific application for a comprehensive plan map amendment or zoning map amendment normally should not be processed without all the property owners involved in the rezoning area signing the application. That is to say those whose actual property is being rezoned should be in favor of the proposed action. It is not necessary to have adjoining property owners in total support with the proposed map change or changes. The same do and don't set of rules applies to comprehensive plan map amendments as were addressed in zoning map amendments. Generally, don't re-plan or redesignate a portion of a piece of private property without taking the whole. Small cities are especially susceptible to "spot planning", such as creating a commercial island in the middle of residentially planned property. While not always possible to avoid, it is not a desirable situation. Care should be taken to mitigate the impact of sharply different planning designations being placed immediately adjacent to one another. For example, designating heavy industrial land uses next to premium single-family residential is generally not good planning.

In the past, major partitions and subdivisions required a public hearing before the planning commission and/or the city council. However, recent changes to the Oregon Revised Statutes now allow administrative approval of major partitions and subdivisions without a public hearing. This is being done with increasing regularity in the target jurisdictions of the state. However, this booklet is intended for use by small cities and the conventional wisdom of small cities is that the planning commission and/or the city council should be aware of any development proposal being considered in the city. A public hearing process on a major partition or subdivision is not out of line, although not absolutely required.

In processing land use actions in the State of Oregon, there are two types of public hearing procedures: legislative and quasi-judicial. The two hearing processes are somewhat similar and may be conducted almost exactly alike, but the two types differ significantly in the actual procedural and public notice requirements.

If there is a question as to which type of hearing to conduct, it is always best to choose the quasi-judicial process. It is best to err on the conservative side.

A legislative hearing is a public hearing in which the planning commission and/or city council are acting as legislators making new law. Legislative hearings typically occur when adopting a complete comprehensive plan or a major revision to it, or a new zoning ordinance or a major revision to it. In this case, the procedural steps do not have to be as precise as in a quasi-judicial hearing. There can be and will be pre-hearing contact between citizens and the decision-makers. Generally, the decision-makers are seeking all the input they can get on the issues, in order to make a reasonable decision on the proposed amendments. Legislative hearings deal with issues that have broad impact over the entire city and do not deal with specific properties. It is appropriate during the process of the hearing for the presiding officer to explain the nature of the hearing and to ask for people in favor of the proposed amendment to speak, and then ask for people opposed to the proposed amendment to speak, in order to clarify the hearing process for the audience. It is appropriate for decision-makers to prepare a series of legislative findings indicating the rationale for adopting or denying the proposed amendments. The procedural steps of a legislative hearing are generally much easier to deal with than a quasi-judicial hearing.

A quasi-judicial hearing is a type of land use proceeding in which the decision-makers, either the planning commission and/or city council, are acting In the capacity of judges. The quasi-judicial hearing deals with an issue that is very limited in scope: normally, one specific piece of property or a Limited number of pieces of property. Typical variance, conditional use permit, and zone change hearings are all quasi-judicial hearings. In the State of Oregon, the quasi-judicial hearing has assumed a major importance in the land use arena. There are certain procedural steps that must be taken, including the notice of the hearing, announcements at the beginning of the hearing, process during the hearing, and process after the decision is made. Public notice is covered in the next chapter, but some of the state requirements overlap. It is suggested the City Recorder be familiar with several of the Oregon Revised Statutes; in this instance, particularly, ORS 197.763, Conduct of Local Quasi-judicial Land Use Hearings, Notice Requirements, Hearing Requirements (copy in the Exhibits). While most cities have adopted a hearings procedure already, the recent requirements of ORS 197.763 mandate a certain procedure at the beginning of a quasi-judicial public hearing. At the outset of the hearing, the chairperson must announce the nature of the hearing, indicate the review criteria, and poll the decision-making body (either the planning commission or the city council) for ex parte contact, pre-hearing bias, or other factors which would preclude an individual decision-maker from sitting on the case. These are situations in which the individual decision-maker is asked to determine whether or not he or she will be able to render an unbiased decision because of pre-hearing contact (ex parte contact), prehearing bias, or a conflict of interest. In most cases, in small cities, pre-hearing contact is very difficult to avoid. It simply should be reported at the outset of the hearing and the decision-maker remain on the Board. A pre-hearing bias or conflict of interest, on the other hand, should cause the decision-maker to step down from that particular hearing issue. In addition, the chairperson must also advise the audience of the provisions of ORS 197.763, including the statement that failure to raise an issue with sufficient specificity to afford the decision-maker and the parties an opportunity to respond to the issue precludes an appeal to the board (the board in this case is the Land Use Board of Appeals) based on that issue. The hearing then is normally commenced with the staff report, the proponent's case, the opponent's case, and rebuttal if necessary. Public agencies wishing to comment may follow. The public hearing is then dosed and the matter goes to deliberations. During deliberations, the decision-making body has essentially three options:

1. Render a decision with findings;
2. Determine that there is not enough information to render a decision and continue the public hearing to a specified date and time; or
3. Schedule the deliberations to a specified date and time.

If the hearing or the deliberations are continued to a specified date and time, no additional advertising is necessary.

There are entire books written on preparing findings-of-fact of decisions. Essentially, what needs to be done in any quasi-judicial land use case is to make findings of fact which support the decision. Basic facts need to be enumerated (facts like who, what, where, and why), such as the information included in the public notice published in the newspaper. The review criteria needs to be spelled out and then facts showing how the proposal relates to the review criteria is all that is required. These do not have to be lengthy documents and do not have to be couched in legalese, but simply a common sense statement of the facts of the matter needs to be included in the file as part of the hearing body decision.

Tips in running public hearings on extremely controversial issues:

A final decision is one made by the planning commission or city council that stands unless an appeal is filed. The decision should be placed in written form and must now be signed by the appropriate city official (normally the planning commission chair or mayor) during a public meeting of the planning commission or city council.

A written notice of the decision should be mailed to the applicant and all parties to the public hearing, after the final decision has been made. In the case of a comprehensive plan text or map or a zoning map amendment where the 45 day notice was sent to DLCD, a notice of the decision must be given to DLCD within five (5) working days of the final decision.

The city zoning ordinance should have an appeal process in the administrative provisions section. An appeal of the planning commission decision will go to the city council. A council decision is appealed to LUBA. LUBA appeals must be filed within twenty-one (21) days of the final decision of city council.

This legislation carried the "raise it or waive it" rule and provided uniform standards for notice to property owners around the state. Notice to individual property owners, in addition to saying the who, what, when, and why information of a typical public notice to be published in the newspaper, must also contain information regarding the raise it or waive it" rule, the review criteria, information about the contact person, staff report, and other details. This, in general, will cause the notice to property owners to be approximately two pages long. The plus side is now, by state statute, the City Recorder must only notify those property owners within 100 feet of the subject property whereas before it was typically 250 to 300 feet. So, the number of property owners notified is reduced significantly. A word of caution here: in order to use this statute and the 100 foot rule, you must have incorporated it into your city's zoning ordinance. If you haven't, your zoning ordinance still applies and if it says 250 feet, then you notify 250 feet from subject property. The notice which must be published in the local newspaper does not have to carry all the information that the notice to property owners presently does. The notice in the newspaper simply is who, what, where, when, and why, and is considerably less expensive to publish than the full-blown notice to property owners.

The relatively new statute, ORS 197.763, also provides the public notice may be mailed and published ten (10) days prior to the public hearing, provided, there is an opportunity for a second public hearing at the local level This would apply to a situation where there is both a Planning Commission and a City Council. However, if there is only the opportunity for one evidentiary hearing, the notices must be published and mailed twenty (20) days in advance of the public hearing. If a staff report is prepared, it must be available to the public seven (7) days in advance of the hearing.

Brief tip:

Many cities are using a twenty (20) day notice period just to be safe and consistent with other requirements and to give staff ample time to complete the staff report.