City Council - workshop

Good evening, Camby. Welcome to September 9th, 2026 work session. This evening we're going to be having a conversation on House Bill 4037 and Senate Bill 974, which were our procedural changes for proposed subdivisions and multifamily permit review and how that's going to impact Camby. So we've got I think Randy, you're gonna start us off, and then it's gonna go to Don Hardy, our planning director, and Josh Soper from Barry Elsner and Hammond.

Thank you, Mr. Mayor, Council. We're going to call them up right now. Lots of cities are looking at how they're going to implement this legislation, and Josh is working with several of those, and the League of Oregon Cities is weighing in as well. So excellent timing for tonight's presentation, and thanks. Thank you Randy.

Good evening Mayor and Council Members. Just wanted to say a few words and I'm going to turn it over to Josh. He is, when I asked him if he could help out with the presentation he said I've already done this once before and so that was very helpful and was very familiar with the issues. Very high level, House Bill 4037 and Senate Bill 974 are legislative. They were effective July 1. Their legislative intent is to expedite housing developments in the state of Oregon. It's made things layering a bit more complicated than less complicated, however, for local jurisdictions in the way that these are structured, and Josh will go into that a bit. Really, tonight, at the end of this presentation, we're looking for some direction from council, and that is both near term and then longer term as well. We see two paths going forward here. One is to address the immediate need to address some interim code. changes that we would like to propose. A longer term path would bring us back to more of a discretionary, optional path for developers as part of our code update, which would allow the Planning Commission to still be involved fully in hearing processes for larger developments, larger housing developments, that is. So with that, I'm going to turn it over to Josh and have him go through this. If you have questions during the presentation, we're happy to take those. They'll be interactive here.

Thanks, Don. So yes, this presentation, as you know, the legislature has been enacting changes to Oregon land use laws at a unprecedented pace the last several years, making significant changes every legislative session. But this is just focused on two bills. Senate Bill 974 from 2025 and House Bill 4037 from 2026, both of which went into effect July 1st of this year, and specifically just focused on Section 3 of 974 and Section 17 of 4037. So I'll start off by talking about 974, talk about 4037 a little bit, and then we'll move into talking about what that actually means for Canby and some recommendations from staff. Before I dive into the separate bills, just at a very high level, as Don indicated, both of these bills are exclusively concerned with the procedures that the city uses to make land use decisions, not with substantive development regulations. So a lot of the changes we've seen coming out of Salem have involved, you have to allow this type of use in this location, you have to allow duplexes, you have to allow middle housing land divisions, You have to allow deviations from setbacks. This isn't anything like that. It doesn't change what you have to allow. It just changes the procedures that you can use to make your decisions. Both of these bills were designed to dictate the procedures that local governments can use to process their applications for housing in a manner that limits public involvement. As Don said, the intent was to streamline and expedite housing, and the way that the legislature saw fit to do that was by limiting public involvement. Senate Bill 974 was enacted first, as I said, in 2025, but the legislature didn't even wait for it to go into effect before enacting House Bill 4037, which superseded a number of aspects of 974, making 974 of less impactful effect. So Senate Bill 974 in a nutshell applies to three different types of land use decisions. Zone changes to a higher density, planned unit developments, and variances. It only applies within the UGB and only to land that is zoned primarily for residential use, mixed residential use, or planned for residential use. If it is an application in one of those areas of one of those types, then it imposes three types of procedural requirements. The first is not really a big deal. It's a notice that has to be provided to owners within 100 feet. That's a floor or a minimum. The city is welcome to provide more than that. That's pretty typical in other land use statutes, that kind of 100-foot floor. The second is that the city has to allow a written comment period on the application. And then the most impactful here is the underlined bullet point. The city has to make its initial decision without holding a hearing, but can hold a hearing on appeal if it desires to do so.

Interesting.

There are a few questions that arise.

Sorry, did I say a hand? Mr. Mayor, I just had a question for clarification. When you say the last bullet there that's underlined, initial decision without a hearing, is the translation for that in Canby, Don Hardy, Community Development Director, can make the initial decision without going to our Canby Planning Commission?

Right, so we'll talk a little bit later about the decision maker piece, but yes, right, it would mean that the initial decision, whoever makes it, whether it's Don or the planning commission, city council, hearings officer, whoever, they cannot conduct a hearing where people can come in and have an opportunity for testimony before making that decision. And the practical effect is that I think in most communities it will be a staff decision. And that will be the recommendation we'll get to. Yes.

We were talking about mixed use. That's just mixed use residential only, right? Not mixed use like combination commercial residential. Right. Mixed residential use. Okay.

So there are, as often as the case, when the legislature acts, there are things that are unclear or not defined. There are a few that I want to highlight here. One is that it uses the word variance. I think that's a common word in land use. Most people are familiar with that who have any exposure to land use. But it's not defined in the statute, and some local ordinance use different terms for similar types of things, such as adjustment. HAPO, for what it's worth, the state agency, has weighed in and said that they believe that variance means any variation from a development standard, except it does not include the mandatory adjustments under Senate Bill 1537 that you may be familiar with. Legislature enacted that. That requires cities to allow deviations from certain development standards when requested by developers for housing developments. So it's not within the scope of a variance. Another question is, what is a zone change to allow for a denser residential use designation? What is a zone change to a higher density? And Hapo again has weighed in and said density can be evaluated or measured in a lot of different ways. The traditional one would be the minimum or maximum number of units allowed per acre. But also, there are other ways that density could be affected, such as minimum or maximum lot size, potentially floor area ratios, building envelope requirements. So if the zone change would allow for denser development by any of those measures, it is potentially within the scope of this bill. And then I think the biggest question, unanswered question here is, what is, as you recall from the previous slide, applies to applications on land that is zoned primarily for residential use or mixed residential use? How is primarily determined? If you have a zone that allows some residential use, some minimal amount of residential use, maybe one residential use type, three residential use types, allows mostly commercial. Is it the number of uses? Is it the development of the zone? How is primarily determined? There's just no guidance whatsoever on that question. House Bill 4037, a little context to help understand how this was drafted and what the impacts are. So under existing law for many years now, state law has required that local governments apply only clear and objective standards, conditions, and procedures to the development of housing. That applies to all housing applications and types, and that has not been changed. State law also, previous to this bill and remaining unchanged, allows an exception for local governments to provide an optional discretionary path that developers can choose to elect to proceed under for housing developments as long as the developer always has the option of going under the clear and objective path. Essentially, anytime a developer wants to build something residential, they have to have a way that they can do it under the code that is clear and objective, but if they want to and the city chooses to offer it, they can elect a path that is involving discretionary standards.

One that's not clear and objective. Correct, yes.

Slide's stuck here. Can I just get the next slide? Thank you. So, House Bill 4037 amends that existing framework to say, basically, when a developer is going under that clear and objective path, then certain procedural restrictions apply. Those procedural restrictions do not apply if the developer opts into the discretionary path. Those procedural restrictions are a limitation on who can be provided notice. So rather than the floor or the minimum under the previous bill and what we've seen in other statutes is instead a ceiling or a maximum and says that the city can only provide notice to property owners within 100 feet of the subject property. You can't choose to provide more. Or within 500 feet if it's a development of 20 units or more. Similar to Senate Bill 974, the city may not require a public hearing before making a decision on the application. And then an additional wrinkle, the city may not allow a local appeal by anyone other than the applicant. So opponents cannot appeal the decision. And only the applicant can appeal to LUBA.

Mr. Mayor? Yes, please. Mr. Soper, what if the city staff wanted to put out a newsletter and just, you know, we typically tell all our residents what's going on at the city and we say, hey, there's a new development of 15 homes coming in. Does that violate this? Very astute question.

One of the things, lack of clarity that I'm going to talk about is the, what is a notice? So I'll say just a little bit of... Insight from the conversations I had with the advocates of the bill during the legislative session, I think that their intent was mailed individualized notices, but that is not what legislative council wrote and what the legislature enacted. It just says notice. So different local governments will be interpreting this differently depending on their risk appetite. I think it's clear at least that that individualized mailed notice falls within the scope of what is limited. Different cities will potentially choose to consider signs that are posted on the property to be noticed or not to be noticed, newsletters to be noticed or not to be noticed, information that is made available on the planning department's webpage, for example, is that noticed, is that not noticed? That's not 100% clear, but I think there are good arguments in particular for that, something that someone has to seek out that that's not noticed. It gets a little greater the more that it's affirmatively sent out. So the...

So saying that the minimum is... So if we opted to say, great, you're going to mail every... you know, house or apartment within, what is it, 100 feet, that would be our standard. And we could set that as just a sign on the property? Or can we do a cornucopia of things and make that a requirement?

So what is 100% clear is that what you can do is mail an individualized notice to every owner of property within 100 feet. Anything that you do beyond that is unclear. And it'll come down to kind of your risk appetite versus your desire to make people aware of applications that are pending.

But there's nothing stating that we can't do a mailer, a sign, a notice on our planning commission or city website. We can do all of those.

You could choose to do all of those. Some would argue that all that you can do is the mailed notice to people within 100 feet.

Okay, so that's the argument. Go ahead.

If I go back to the slide, the language says in the bill, this is more or less a quote from the bill, to shall provide notice only to property owners within 100 feet. So the question is, Does something else you're talking about, a sign on the property, is that providing notice or is that posting a sign? That would be the argument. So if you chose to require in your development code that a sign be posted on the property, the city would argue that's not notice. A developer would potentially argue that is a posted notice.

So is there a notice... Sorry, just a second. So, I mean, is there a... Since we're wordsmithing, is there a difference between a notice and an announcement?

Those are exactly the types of questions I expect will be litigated in the years to come. I would say that is... Language matters, and so I think when, if the city chooses to do anything beyond mailing notice to property owners within 100 feet, I would caution that you not describe those as notices. and instead describe them as something different and articulate why that's different. We deal with, you know, you're right, words matter.

You may do, and there's you shall do. When you're dealing with the state legislature, when there is a shall, you know, yes, almighty... you know, Marble Mansion down in Salem, we will follow the, shall do, but, so, depends on our level of risk and what our law firm tells us that they're comfortable with, I suppose, as well.

Yeah, and I want to avoid, if possible, because, like I said, different jurisdictions have different risk tolerances and can be made to choose one approach or another, but would rather not in a public setting tell you where. I feel that there may have a different line where you're willing to draw that. And so just to say that... The text of the bill is may provide notice only to property owners within 100 feet. And so the question is...

What is, what can the city do that does not notice the potentially work to be done following that announcement, Randy? What can we announce? Announce, yes. Yes, Daniel, thank you, sorry.

So along those lines, I'm curious when it comes to new legislation, what's the remedy? So we just mail something and we'll call the notice and everybody's face and do it terribly within 200 feet of the development. What's the remedy that the developer has?

That's a great question. So that would be a procedural error because you're not following, if they are correct, that violates the notice provision. Let's just say it's a procedural error. Say you're mailing individualized notice, so it's a clear violation, right? That would be a procedural error which would require the developer to show that that error prejudiced a substantial right of the developer in order to be able to get a WUBA remand on that issue. So I guess to back up a little bit, there are a lot of procedural rules that have to be followed in land use. either under your local code or under state law. I think there's a recognition in the law that the people who are trying to follow those procedures are doing their best, but it's a complicated web of procedures and mistakes will be made. And so the rule that Luba and the courts apply is that just the fact that you made a procedural mistake is not alone enough for someone to prevail on an appeal to Luba. That person has to show that that procedural mistake prejudiced one of their substantial rights. For example, if the code required notice within 100 feet and you only sent notice to people within 50 feet and somebody didn't get notice, and so they didn't get to participate in the hearing process. That's a clear example of somebody whose substantial rights were prejudiced. That error prevented them from participating. The developer, I think, in some cases is going to have a hard time making an argument that too much notice prejudiced their substantial rights.

So a hypothetical situation. I'm a developer. I want to develop Wake Park or whatever. Just hypothetical. And then I go and I apply for it. They notice everybody within 200 feet. Clear violation. And I lose. And I go to LUBA and then if I win anyway, I don't care, and nothing happens if the city, say, did 200 instead of 100. But if I lose as a developer, then I might have a reason to get them to get a second shot at it. Correct.

If a developer's application is not approved, you're going to potentially appeal, saying that you violated my substantial rights.

So the remedy for not following this rule, if... I know it's all hypothetical, just got passed, but you think the remedy for violating the rule would be somebody getting a second shot at the worst, I guess the worst possible consequence for the city is somebody has to go through it twice. That is one path.

The consequence for the city would be dealing with the LUBA appeal costs and the resources involved in that, and then potentially getting remanded by LUBA and saying you have to do this process over without providing extra notice. The other... path for a risk for the city is an enforcement proceeding and a complaint to HAPO, the state agency that enforces housing laws. I think that's probably the more likely path in that a developer would say, we're violating this statute. There's a file complaint with HAPO. HAPO does an investigation, tells the city you have to bring your procedures into compliance with state law. If you don't, there's an enforcement order and potentially a process where changes to the local code can be imposed.

Okay. So that would be the other... So I'm trying to think what the hazard of litigation on this particular item is. If we wanted to be more aggressive or less aggressive, what are the risks? The risk if we wanted to be sort of more aggressive... is that one, we could risk having the cost of an appeal, and two, we could have the risk of HAVO coming in and telling us that we have to do something different than what we're doing. Right, exactly. Sorry, that was my... That's a great question.

So I guess I covered that second bullet point about what constitutes notice. Go back to the first bullet point. The question, which I think we've already discussed a little bit here, is when does this apply, and it's to all housing applications unless the developer opts into an alternative discretionary path. The other question is, under both of these bills, they both apply to, in Senate Bill 974, the term is residential development. In House Bill 4837, the term is development of housing. What constitutes residential development or development of housing? That's been a long-standing, not completely answered question in the law. HAPA has weighed in and said that essentially, if there's any housing whatsoever as part of the application, that they believe that constitutes development of housing. So for example, if you had a mixed-use development that is 60,000 square feet of commercial space in one studio apartment, that would be development of housing. It would be subject to these rules.

Okay, so that's what I was trying to talk about earlier. So it is, so like the Daly Building would be considered, would fall, a development like that would fall under this.

I'm not familiar with that building in particular, but... Yes, yeah. That is Happily's position. I'll say all those throughout where I'm relaying what Happily's position is, that's just a state agency that has some authority's interpretation. They're not a court, and so it's possible that a court would reach a different conclusion. So to summarize these two bills, essentially, for applications that are subject to the clear and objective requirement, there's a ceiling on notice that can be provided. No hearing can be provided prior to the initial decision. Only the applicant may appeal. For applications that are not subject to the clear and objective requirement, only three application types are implicated. That's planned unit developments, variances, and rezones to higher density. For those, no hearing can be conducted prior to the initial decision. For applications that are not subject to the clear and objective requirement other than those three, then any procedural, you don't have any of these procedural restrictions coming into play. As we touched on a little bit earlier with the city manager's question, these bills do not require a particular decision maker. just a particular decision-making process. So the general principle in the law is that you have to comply with state law because it prevails over your local code, but you have to also comply with your local code to the extent it doesn't directly conflict with state law. So if you have, for example, a situation where the Planning Commission is the decision-maker, the code says the Planning Commission is the decision-maker and they shall conduct a hearing. Well, there's a direct conflict on the conduct a hearing part, but there is no conflict on the planning commission as the decision maker part. So unless the city council amends the code, planning commission would still be making decisions, just could not conduct a hearing. And we'll talk a little bit more about the challenges with that, just to set the stage for that a little bit. And I also want to clarify that these bills do not require approval. of any particular applications or change your substantive development regulations we talked about earlier. This makes my head want to explode. So, decision-making without a hearing. So that's pretty straightforward if it's a staff that's the decision-maker. Staff does that all the time already. They have an opportunity where people can weigh in in writing, consider all their written comments, make a decision in writing, same outside decision, very straightforward. If the initial decision maker is a body such as the planning commission or the city council, which under public meetings law has to meet and make decisions in public meetings, then it gets a little more complicated on a practical level because that would mean that you would still do this process where written comments are submitted in advance and then they're provided to the planning commission. for the Planning Commission to consider, but then the Planning Commission has to deliberate and vote in a public meeting on what decision they're going to make on that application based on that written testimony, but cannot take any testimony from anybody who comes to that meeting. Can't ask questions, etc. So you have potentially the applicant, you have opponents or interested members of the public who come to see the Planning Commission meeting where a decision is going to be made on X application. and they do not have an opportunity to actually speak to the decision makers in that public meeting.

So it is fascinating that this would be created and you allude So, I'm presuming that one of the things that we will have to discuss is can written, at what point does written testimony get brought in or sent in? And then, so there's that piece, but can I also, since I can't speak at said non-hearing deliberation, can I walk in the night of and drop off written testimony to be considered by now the non-hearing body?

And I'll answer the first part of that question and turn the rest of it over to Josh on how late could that be brought in. Just observationally, this is setting up a very awkward, at best, hearing process. I've had some conversations with Westland. They're dealing with the same thing on one of their projects, which is a mixed-use commercial residential project. And that's gotten pretty interesting because it's kind of getting litigated as well. So... The challenge really is most members of this community are not providing written testimony. Most of our hearings, and you all see that as well, there's very few people that write stuff. It's just the nature of the public arena. The idea behind a public forum is that people can actually articulate during the meeting their thoughts, and that's kind of the structure of it. The challenge of this, really the state is kind of trying to force this to be a type two administrative decision and, you know, depending on the application type, if it's not a PUD or a rezone or a variance, those would be essentially made at staff level and would not be appealable. There are other states that have done this or other jurisdictions that have made these things type two processes. Just from an operational perspective, and we'll get into this a bit more, The structure sets up, I think, a really bad communication style to the public and offers them a theorized concept of coming to a meeting without being able to speak. Two, I think the Planning Commission is going to be super irritated. three, they may end up making decisions that are not based on any of these laws that have been passed, putting at risk the city and to the point where staff is very worried about this, to the point of Do we need to have an attorney at every hearing that we have if we structure that in that way without changing course? Because we could be put into a jeopardy lawsuit situation by making a decision completely in violation of what has been set out by state law. So this is the arena we're in now. So I'm going to stop there.

No, and that's fine. Again, we are a very vocal community when it comes to these things, and we have seen this deterioration of home rule and public input on land use issues as it pertains. I can't talk about any other community other than Canby in that for the longest time, We've held our growth and how we've grown as a community very tight to the chest in how we go about it and our involvement and whatnot. And so I know Council President Hemsley is listening, but, you know, I think... Shane and I have talked about this before, probably one of the single things that we argued with one of our state senators about was their vote to support taking some of those, the voter annexation away from the citizens to be able to say, no, we don't want you to come in. No, we're not ready for that to be added in. And so here we are, we've got this piece that, yeah, how does our community do that? How's our staff gonna handle bringing this to a conclusion, and then I sit there and going back to what you earlier said, was if the only person that can appeal is the applicant, so if there is something that is misunderstood or a mistake made and it ends up being in favor of the applicant, then it still will move forward because the applicant will not appeal, you know, because something got missed either by the deliberating planning commission outside of a hearing and what city staff may have missed. So then they win and those people that are going to be affected by this for whatever, however big or small, can't appeal this. So this is a lot, this seems like a lot being put on the planning departments of cities to make sure that I's are dotted, T's are crossed. There's a lot.

There's maybe backing up a step. I think it kind of comes down to the... Really, a lot of the legislative process before this was even set on the clear and objective path and housing in particular, not on commercial and industrial, those are still completely discretionary. But the table was already set by previous adoptions of clear and objective path items, which means that essentially that the legislature's thinking, well, if it's clear and objective, why is there any discretion needed in the process at all? And that's kind of the dynamic, and so going away from kind of the city rule kind of on things to more of the state's perspective of saying, well, if you're having to follow clear and objective standards anyway, which is in our code, does it make any difference that staff is doing that versus the planning commission? That's ultimately what's happening here. And so I think that they convinced the legislature the home builders have convinced the legislature that's cutting the chase, that that is the path that essentially why is there a difference of having staff review it versus the planning commission when there's not discretion and there's not supposed to be discretion on housing. And that's the rub right there, I think. The Planning Commission often, you know, at times does follow a clear and objective path. They have their own perspective. There is definitely a leaning in the Planning Commission to go outside of that, though. And that's the part where there's risk. Because, you know, and I think that what the issue is that this whole thing about if you're gonna follow the code anyway, and it would be basically following our code, what difference does it make if staff's making that decision versus the Planning Commission? Now, the right on appeal has also been substantially eroded for everything that is not a PUD variance or rezone. That's completely eroded because you can't appeal those based on the statutes that they've adopted as well.

Councilor Waterman and then Kansas City. So from what I'm seeing here, they're saying that basically the money commission could possibly still do a deliberation and make a decision, but they can't have a public hearing, right? That's correct, yes. So the public hearing is, we're opening a public hearing. Are there any comments? We're closing it. But there's nothing stating that we can't have general public comment, just like we do our three minutes in the beginning of a meeting.

Yeah, so there's another area where we've had some conversation about how this could easily go sideways if a planning commission is the decision maker. Because people may attempt to use the public comment period to weigh in on an application for which a hearing is not being conducted. But if we can't have a hearing, then why can't they just have a public comment? That is information that is outside the record and cannot influence the decision. And so the Planning Commission is going to have to disregard everything that is said during that public comment period, not let it factor into their decision. I would suspect that even if they see that that's what they're doing, that the applicant is going to allege that it did, in fact, influence their decision. So then we can't even have public comments. We really shouldn't have any public comment. If you're going to have planning commission make these decisions without a hearing, you really should have no public comment. Either have public comment only later in the meeting, after that decision has been made, or limit the subject matter of public comment to not include any applications that are on the agenda?

There's a lot of, like, trying to, like, okay, here's the box, and it's like, okay, so how do we color outside the lines? Because that's how I'm looking at this, going, okay, this is garbage. Absolutely is going to impact how we're doing things. And so... So when we talk about like, so do we, okay, great. We're just going to read every letter that was sent in, you know, and great. So Don Hardy, great. We're going to read your information. Thank you for your, and I'm understanding, you know, can I engage that person in questioning and ask them to clarify pieces of their written testimony? I think the answer to that is pretty clearly no. That would be part of a hearing.

Except for if Don were, if I were to write a letter to Don, and he thought my letter was unclear, he could ask me for clarification, right?

As the planning director. Yes, I think for your first example, Don was a member. Yeah, for my example, Don is Don. Yes, and if... If a member of the public submitted testimony and Don is the decision maker, send it to Don. And Don said, I don't quite understand what this testimony is about. We're still within the written comment period. I'm going to reach out and ask them to clarify and submit additional written comments.

Okay, so say we just change it so the city council was the decision maker and then, I don't know, Melody came, let's not confuse the issue, came and asked us, sent a written correspondence and then it was unclear and said, what are we talking about? Are we talking about, you know, southeast third or northeast third, you know? And we can't go as a, if we were the decision maker, we can't go and ask her to clarify that or, you know. So what is the difference between, I mean, I'm not saying anything bad against Dawn, but The chances of somebody being arbitrary in one person I think are greater than the chances of a group of people being arbitrary. You know what I'm saying? Just because one person is one person.

I guess difficult to think through all that on the spot. I would say that the... I would not say definitively no. There would be no way for the city council or planning commission to get some clarification on a... written submittal, but you have to be, you have more obstacles than staff would, like public meetings, ex-party contacts, that sort of thing. So there may be a way to get there, That wouldn't be a straightforward with the staff.

The City Council and Planning Commission aren't full-time employees, so if you have a certain amount of time to respond, et cetera, you can't be relying on... Yeah, sometimes... Well, obviously, I'm thinking just like you guys are, I'm ready to get around the rules.

I mean, I'll take it. I'll say it right away. All right, so they can go to us later. It's on YouTube, so watch the YouTube video. But the idea is... they're saying we don't want it to be a public process, but we want it to be a behind closed doors process. Is that, in essence, what they're saying?

I think it's really, it's following the same code, but I think there's both perception and probably reality that when you come to a planning commission meeting, just like when you come to a city council meeting, there's an exercise generally of discretion. there just is in that nature of that forum. That's kind of why those positions exist. And so to the point of would there be a material difference in someone complying with the code through the Planning Commission or through staff, the answer would be no. But could the Planning Comm- would the Planning Commission ask for discretionary things in a public meeting, whatever you want to call this, the likelihood is very high in my opinion. If you listen to any planning commission hearings recently, it's very likely. And so that puts us in this jeopardy position where you could end up with a decision that completely goes against the grain of what the state law basically has been adopted as. So I think really what they're saying is that if it's an administrative review you're following just the clear and objective path items and you're not going to start putting discretion on it as the staff that if that helps explain this that's the foundational logic behind the scene in my view i understand the logic but i'm saying the practicality and and i i'm maybe asking to clarify this not because i want to change it but i want to make it at least what i'm seeing is that they want a decision that used to be made in the public body to be made

behind a closed door. And I guess if that's what they want, that's what they want. And the question is, do we as a city want to risk litigation by bucking that trend and keeping the decisions made in a public setting versus a behind closed door settings. Because obviously every single city planner or city planning commission in the state will always be objective and reasonable because why wouldn't they be? But the reality is the perception, I think it would feed into the perception that people are arbitrary, even if they're not, you know, when things are put into private, you know, behind closed doors decisions. And so I think as a council, the idea is We can maybe keep it in a public setting, run the risk of lawsuit, and whatever that risk is and whatever the remedies you're talking about are. Or we can put it behind closed doors and pretend like, and just say it's out of the public's

As long as it's not even the public. We're moving just straight up, just moving discretion. The discretion part is what's taking time. And so if we don't have to have any discretion in making changes, then that fast tracks it. And so it's not just the public part. It's also the planning commission part of removing discretion, period. If it meets this, you can't even have discretion. If it meets the code, that's it. There's always discretion. Right.

Even particularly from the public, but every human, because you're a human, there's discretion involved. You know, just like the police officer decides which persons to pull over. There's discretion that he has, there's discretion that every government person has. As you all know, I make my living on the fact that I object to the discretion of people who are supposed to be following clear and objective standards. I do it in the tax code area, but basically the government people that are making decisions based on clear and objective standards are often wrong, and that's why I make my living off of it. So the idea that there's going to be no more discretion isn't true. It means that the person with the discretion is doing the discretion behind closed doors and not open to the public. And that's the way I see it. Because there's always... There's no discretion. This is a computer doing it. Even the computer, if you're programming the computer, you can put the thumb on the scale. So anyway, that was kind of maybe, maybe just sort of, maybe that frustration.

I think that's an important point, and I think that's part of the perception issue with the powers that be that are making these changes is that there's this idea that because there's already a clear and objective requirement that these decisions are something that a computer program should be able to make. That the decision-maker should have zero influence on the outcome. It should be every person who looks at it would reach the same conclusion. That's their perspective.

Having been a computer programmer before, I know I have been asked to make computer programs lie. So the computer has, the only difference between a computer lying and a human lying is the computer has no conscience.

And I'll reiterate what I said in response to that during the legislative session, which is I think the aspiration of clear and objective is that any reasonable person looking at a particular set of facts and applying it to the particular standards will reach the same conclusion. That's the aspiration. We don't always get there with our humans writing the code, but that's the goal. But there's still sometimes a legitimate dispute about what those facts are. And so without a determination of what the facts are, applying the criteria to those facts can yield different results. And that's, I think, the piece that's being missed in all this. I will say, though, to, I guess, give some credit to this perspective. I have heard many planning commissions and city councils say over the years, if this is based on clear and objective criteria, what are we doing here? Why are you even in front of us? Why are we doing this hearing? Why are we listening to three hours of public testimony about things that we can't even take into consideration is we're doing a disservice to everybody because the public thinks that they can have more influence over the outcome than they can. We're just up here putting an uncomfortable position where we have to make an unpopular decision because it's dictated by the criteria. So there is some aspect of truth to that, but I think kind of sweeping everything into the same simplified, you know, no hearing process, I think maybe it was a little bit of a overreach.

Well, yeah, I think we, and I hear that point, absolutely. You know, we've had, at City Council, we've had, like, okay, what, like, it's all wrapped up, like there isn't anything that we're here to deliberate. I'm sorry, Jane and Joe, you don't like it, but it meets all of our criteria and the criteria laid out at the, you know, the alphabet agencies of land development in Oregon, our hands are tied. I mean, that's been, I mean, in my 12 years here in this chair, we've seen that get restrictively more So for us, as to what we can and can't do, and I mean, I've got a, you know, former mayor Melody Thompson is here as well, and I'm sure, I mean, we saw that even when you were mayor. So that, you know, so 20 years of just this tightening of what we can and cannot exclude in our own seized development. Randy, I think you have some comments from Council President Hemsley. Did those get messaged to you?

Council President Hemsley, you are echoing and it sounds like because you're logged in twice.

I'll put it in the chat. I'll put it in the chat.

I can try to remove one of the two, but there's a risk that I'll mess up.

So remove one of them. No, even if you remove one of them, it'll still echo. I think she texted it to Randy.

I think, Mr. Mayor, I'll translate that Council President Hensley is advocating for a bigger presence at the legislature. Agreed. Yes, yes.

In that regard, I will say some cities have taken some creative approaches involving, for example, when a notice for one of these decisions goes out, making clear to members of the public that you have a written testimony opportunity but there will be no hearing. Pursuant to this recent legislative enactment, you can contact your state senator and state representative at the following phone numbers if you have any concerns.

Either you or Dawn, I'm wondering if you could talk a little bit about more of the two paths idea, because we're going into a co-update that's going to start next year. And so we're already talking internally about having a discretionary path and the clearing objective path. And I'm wondering if it tempers a little bit of the fears of this conversation, if some of the projects that are asking for so many things beyond the norm, if that's gonna kick it into that discretionary path anyway, then those items would have a hearing. I wonder if you could talk to that. Yes, thank you.

That's a great question. So that's the third major bullet up here, which is Because House Bill 4037 is limited to the clear and objective path, not to the alternative optional discretionary path, I think many cities are going to be looking at their code and saying, what can we do to encourage more applications to take that optional discretionary path? Make sure there's an optional discretionary path available for more application types, and then incentivize developers to use them in one way or another. And then when these rules apply, you can hold hearings and some broader notices, et cetera.

So if we make the clear and objective path, the clear and very narrow and objective path, then that could solve some of these problems?

Yes, I think that or just improved flexibility also. So I guess it's a carrot or stick type situation, or maybe a combination thereof, for how you encourage developers to use that discretionary path. Whether it's because they can't do what they want to do under the clear and objective path, or whether it's because they can do things that are better for them under the discretionary path. The last thing I want to just touch on briefly is that second bullet point, which is because of the limitation of local appeals, just to highlight that that means that your initial decision, the city's initial decision is more likely to be its final decision in those instances because the opponents, I think as the mayor touched on this earlier, even if the decision is wrong, if it's an approval that the developer is happy with, then there's no local appeal path. It's not consistently cooperating here.

I have a question. Yes, sir. Can you give me an example of what the difference would be between a clearing objective and a discretionary option? What would that look like for a developer? What type of thing would a developer want?

The good end of it. Clear and objective would be everything that's there, just essentially a series of items on our development code. Are they meeting all the setbacks? They're measurable. You know, you have a 7-foot side yard setback, a 20-foot front yard setback, a 15-foot rear yard setback. Those are clear and objective. They're measurable. Everybody agrees math doesn't lie in those circumstances. They're not discretionary. If the Planning Commission came in and said, during a development review how we're like, let's say it's a multi-family development and we have a quantifiable amount of open area that's for common open space, it's in our code, it is measurable, and they come back and said, we don't believe that's enough and we're gonna ask for more. They could not do that. That's beyond, that's discretionary. Those would be the kind of things that would be in play there. On an optional path that we, as Ryan Greatpoint said, we'd like to get more back into, you know, some of the coordination with an applicant. Let's say that they, you know, in exchange for that open space area that we're doing, they're going to build a path to some connectional point and their cost. Those are the kinds of more of a planning and development kind of concept where we're doing more holistic planning around a development. That would be where I think the discretionary path would fall into versus the clear and objective. You can only follow what's in the code. It all has to be measurable. So if they did that... In that scenario, if they did that, then it would go to a public hearing? It would go to a public hearing. We'd offer that as a type three process and it's more of these kind of negotiated, you know, like items and that's not something we've traditionally done so much here. I know Randy has had experience doing that in other communities where You know, oftentimes we're in discussions here at the city and it's like, why aren't we asking for X, Y, and Z? Well, it's because clear and objective standards don't allow us to do that. But in that negotiated process, it's a win-win. It very well could be a win-win for the city to negotiate out development standards with a developer in a public hearing format versus the clear and objective path, which is gonna just get you what the code says.

So if the developer's meeting everything in the clear and objective path, they can just choose to continue down that road, or we would approach them and say, hey, if you decide to come this way, we can try to... And we would go through that and start that at the pre-application process.

That would be where that conversation would start. I mean, they have the... For better or for worse, they have the complete right to do the clear and objective path. The state law is very clear on what their rights are. We're offering them an alternative to that, which I think is more home rule oriented and can be characteristic nature oriented, which does allow some more discretion on that end of things. But it does require a developer that's willing to do those kinds of negotiations.

I mean, I still don't see it. It would have to be a pretty substantial incentive to me for them to leave. why would they want to do that? So basically we have to bribe them to do a public hearing.

Right, and it can be significant. You could have, for example, path A, clear directed path, 20-foot setbacks all across the board, 10 units per acre, maximum density, et cetera, et cetera. And then you can say path B, optional discretionary path, if you opt into this, it drops to five-foot setbacks. And you can have 20 units per acre In exchange, you have to meet a criteria where the developer is providing significant community benefit. And then the Planning Commission has the discretion to say, well, are they gonna provide something like a path or a park or something that's gonna be a compensating benefit that's enough to justify giving them all this additional density and flexibility in how they're designing their development? And if that lets them get more houses on their property and thus more return on their investment, then it may be worth it for them. And then you can also, in addition to the public benefit that you get, you can also have a more public-involved process.

And those conversations usually start pretty early in the process. So like Dawn said, the pre-app meeting, pre-application conference is a big starting point for the project. And we're already having discussions normally about, hey, it looks like your project's going to need a variance just so you know when you get to the hearing that's also going to have a variance application along with your site and design review. Well, now that conversation will be a little bit more robust in that staff are telling that applicant, hey, it looks like you might need a discretionary path if this is the project that you truly want. You can do the current objective path, but you're going to have to meet all these to the T, but there's this other path available to you if you choose to take it.

So site circumstances, to Ryan's point, the uniquenesses of site circumstances, and there very well could be someone that wanted to do, like, Hey, we're planning to do a park anyway, but there's a negotiated process on the outcome. And then there's the visuals of this and what does it look like. You start to create more discretion and you end up having things that look possibly more like a planned village than something that somebody just decided to build.

So I think what we're saying is that if, like I say, if we had a clear objective and put in parentheses narrow path, then that would encourage people to, so I guess the trick into keeping the local control is to make the clear and objective path sort of, And I'll just be, I'll exaggerate on purpose, but be the worst possible scenario for the developer from his bottom line and then force him to go the discretionary path if he wants something better. Now, I'm not saying I want to make the worst possible, but I'm just giving as an example of what would give us maximum Does that logic, that same kind of thing?

Yes, and the reason we brought that up earlier that I hedged a little bit was that there are limitations to how unappealing you can make the... Yeah, I'm sure there are. Discouraging housing through a reasonable cost and delay is one of the statutes that you would potentially violate there. But as long as it's a viable path... then you can make a much more appealing alternative path.

So let me get through another hypothetical, because I love hypotheticals. So if somebody comes in, and not Don, but somebody else that was of more human mind than Don, decided to allow something that was clearly not... clear an objective, but he called it that to let the process go through because maybe he was getting paid on the side from the developer or something to that effect. Is there an appeal for that, something that was called clear an objective but factually wasn't? I'm just saying, is it the public still have recourse?

Right. That's a little bit to unpack there. So if the city has a... development review path, that it is supposed to be its clear and objective path, and it has criteria in there that are not, in fact, clear and objective.

I will say, Dave, that I didn't follow the clear and objective paths, but it was approved of anyway by the decision maker. Is there a loss to appeal rights just because the decision maker, whether it was us or the commission or a person sitting in Don's chair that's not Don, made a clearly erroneous decision on whether it was clear.

Somebody chose the discretionary path with the the rogue development director said, this is, community development director said, oh, this is, you chose the clear and rejected path, so I'm gonna do this decision. Yes, so the limitations on appeals under House Bill 4037 only apply to decision-making processes that are, in fact, subject to the clear and objective path. So you could question whether it was clear and objective. Right. I think the opponent could appeal and say that that was not, in fact, the clear and objective.

Or if the plan was approved, that was clear and objective, but the builder built it with the setbacks only five feet, even though it was approved at first, normally, you know...

Right, that would be a code enforcement issue. Right, okay. Okay, next slide. Next slide. Oh, one more.

Yes. Okay, so this is staff observations and recommendations. If you have any questions about this, I'll turn it over to Don. But... Because for applications that are subject to truly clean objective standards, there's arguably no need for a planning commission hearing, as the planning commission cannot apply discretion, and given the challenges with the public meetings where testimony is not allowed, the staff recommendation is to retool the code to make those residential application types a type two staff process. and then to add an optional type three discretionary path that would go to the planning commission hearing with incentives to encourage developers to use that process. It's essentially what we've just been talking about.

Okay, so a type three, if we add an optional type three discretionary path, then there becomes the opportunity for a public hearing. But it sounds like for that to happen, we've got to dangle some sort of carrot out there for them to want to go down this path and tweak it. Is that from your head nodding? So, okay. I have a couple other questions before we get into these. So are we going to see a tremendous amount or just workload on the planning department?

And this is, we're trying to be proactive here. Unfortunately, we have not had this hearing process where people can't speak. And we're trying to preemptively address that. And we may end up having that circumstance, no matter what. It takes a bit of time to retool the code and bring it back before the Planning Commission and City Council. We will be meeting with the Planning Commission. Josh will do the same presentation on September 28th. I'm sorry, October 28th. Yes, September 28th. He's going to come back and we're going to go through that again. I think we're trying to, first of all, make you all aware that there could be some very awkward public meetings that may happen if people apply in the next few months. But we are suggesting to avoid that awkward structure and and also the risk associated with the Planning Commission making a decision, which I think is likely a scenario that may not be consistent with state law, that we are recommending a Type 2 administrative process as the clear and objective path. And at the same time, as Ryan mentioned, we are retooling our code that's a bit of a longer path to develop the code, but as a type three discretionary process, we would obviously come back to the Planning Commission and City Council with what those incentive items would be, what would be discussed, and what that process would be. Yes, sir.

Quick clarification question for the planners. So currently we have, can you go through the list? Mr. Mayor, we have type 1, type 2, and type...

So type 1 is administrative, basically staff only, no appeal. Type 2 is notice, which is consistent with what the state law requires, what the House and Senate bill... and type three is a public hearing, planning commission hearing process. Okay, and how is this different than that? So this would be taking the clear and objective path as a type two administrative process with notice, and that would be the approval. So staff would make that decision based on state law. That would be our recommendation to have that and to create at the same time, which may take a bit longer, this discretionary type three path as part of our code update.

So you're taking some things that are currently type 3 and making them into type 2 decisions, right? That's the difference.

Yes, absolutely. Sorry, absolutely, yes. That would be larger subdivisions, apartment projects, those kinds of things would be type 2. And they technically are. Even though the state law doesn't say they're type 2, that is what they essentially are saying. You cannot make them type 3 any longer. The current objective or their discretion. That's correct.

So for a future meeting as we come, because this is obviously not the last that we're going to be talking about this, just to speak for me, having an example and being able to deconstruct it, right, like here's a project that occurred, it met these standards, this is why it got approved at said level, under these new rules, I think, I hope I'm explaining, I don't think I'm explaining it very well, but I just, there's a change that's occurring, and I would love to revisit this or have a conversation laid out of like, yeah, the value building and met these things and it was this type of decision, but now under these new parameters, you know, we have a different path that it would have to go through and the things that we did, like we did a public hearing and we did these kinds of things, this wouldn't occur now because they meet the pieces that don't require a public hearing. I'm glad you guys understood that. That's a great idea. I'm trying to conceptualize that, again, what developments have fallen in a type two what developments have fallen in a type 1 and as we look at these like as they now how does that change and then how would that change if it went through type 3?

So... I have the idea of having some recent historical examples because then it kind of puts out a real, not my silly scenarios, but a real one in front of us.

The... Like the Dahlia. Maybe going forward, Don gets to do that upstairs, and there's no public hearing. I mean, who knows?

That would be a very weird one, and that's what Russ Lynn's dealing with. So the residential part of that would be clear and objective. The commercial part would be discretionary. It's a mixed building. This is where this law that they created is just a challenge because, I mean, you're in the same building, but the commercial part is... is discretionary. The residential part is clear and objective. And Westland is tearing their hair out through this process because they're having to deal with that on a real project with folks on both sides of this pushing back and forth. For us, we're trying to just get ahead of it a bit.

So that's really... Those apartments on territorial that went up recently are, you know, those kind of things.

So with this, county citizens have much less input on developments going forward.

That is correct. I mean, our code basically, most larger developments go through the Planning Commission, just flat out. You know, that's been the standard. I think Oregon is a bit different in that sense, and the Home Rule, and I thought we might be... unique in that way, but after talking to West Linn, their code is pretty much what ours is. And so they're having to do the same thing and being advised again by attorneys saying, yeah, you gotta follow your path or it's silent, which means you got this really awkward hearing in a public meeting where people are gonna be so irritated that they can't speak. I mean, that's, it's just, it's bad. I mean, that's about the worst thing you could do is invite somebody to a meeting and they can't speak. Right. Yeah. Will there be a need for the Planning Commission? Absolutely. I mean, we're doing a lot of long-range work, and we're doing the code update, and they're going to be very involved with that process. They will be, you know, as we develop the code and go back through that, they're clearly going to have a significant role in that process, so... And they're still going to be commercial and industrial. We're adding a whole bunch of land, and there will be growth boundary expansionary, and all those commercial and industrial projects are discretionary.

And if the city is successful in incentivizing housing developers to use that discretionary path, then those will still be going to the Planning Commission as well. So I think there is still a role.

Well, and I guess to that point, I'm going back to that, who's the designated decision body? Because, I mean, really, right? I mean, the council could work on... the same stuff you just mentioned, right, Don? I mean, it doesn't have to be a planning commission to work on those things.

I think that, you know, given that their nature and their structure and that the fact that they're familiar with development review and, you know, not to say that the council doesn't have some of the same skills, but that's kind of their focus right there, yeah.

And I'm not trying to... I'm not trying to do away with the planning commission by any means. So I hope that they're watching and hearing this, that that's not what I'm doing. Part of it is I'm poking at this piece because there's more of a planning commission than... I mean, they're the, we'll say the product experts on it, and they do a lot of upfront work before something gets appealed to us, you know, to go through it, you know, and so it's just... It seems like, again, it's handcuffing the general public, and it's also handcuffing the Planning Commission and the Planning Department is, I guess, my end point here with that particular kind of a question. So I guess my last question, and this is part of your ask of, you know, what do we follow, what do we want to give direction on, is what... What updates do we need to start working on sooner than later? And is this, for us as a City Council and Planning Commission, our own way to like constrict some of the development code to force it to more of a public input opportunity? I guess it's more of the questions, I mean, for you all, like, is that, like, to be able to do that to the code, to be able to construct it on our own to force more of a type three public input option.

On the discretionary side of things, that would be our desire, but on, you know, the clear and objective work, the structures, it is, we went through that tonight, it worked very limited in being able, I mean, this is kind of the nature of the whole process is that, like, the legislature is picking and choosing pieces and essentially it ends up translating into an administrative process.

So clear objective is basically here's the checklist, you check it all off, And you, Ryan, and the team sit down and go, they've checked all the boxes. I guess it's a green light.

And there's still going to be a robust staff report that goes along with any of those decisions, just like they do for the type two decisions that we do now. So it's not just a rubber stamp coming from staff. There's findings that outline how they meet all the training objective standards.

Yeah, that's good to know. I mean, I gathered that, but thanks for reiterating.

So if a demo was coming up next door to me, and I was within 100 feet, and I decided to write my opinion on it, from what you're saying, if the guy's done clear objective standards, it's just a waste of trees, right?

I think that there's limited opportunity to have an influence outside of the code, and I agree with what you just said. I mean, you know, they still have to follow everything, but like, if you're looking for the Planning Commission to, you know... I mean, just as long as they write a letter to you, saying, you're doing it, we do it all to you, and that's...

Basically, I don't think there should be a development next to me for whatever reason, unless I can point out, unless I know the clear objective standards, I can point out where they deviate from it. It's just not something that goes in the trash can, right?

And that's the other part of, like, the translation. I'm just calling it is what it is, which is really an administrative process.

That's basically those people that come in in public hearing and sit down and give their verbal opinion. They're going to be more frustrated coming to a hearing where they can't testify

than they would be as an administrative process where we just call it what it is. That's my honest opinion.

Okay, so the idea is even the written notice and written letters and stuff don't really, if it's clear and objective, don't really affect the process anyway. It's just some way from the event.

And that's the law even before this. You have to tie it back to the criteria. So if you say, I just don't want any development in my backyard, that's not an approval criterion. But if you say... you need to reject this development application because they're not meeting the setback requirements.

I had an empty lot next to me until they built a house on it.

Anyway. So just another quick example, and then I know we've got to move on. I'm sorry, Mayor. We're still in the half hour. Okay, thank you. hypothetically speaking, there's a development in Cambie and the development currently doesn't have a park in it. And that's clear and objective. It meets through Don's eyes. But I know that council and our parks board and the residents like more parks. And so I want to go have a discretionary path conversation with the developer And the developer agrees to that, that could pivot that down to a Planning Commission meeting under these new rules? Absolutely.

That's exactly right. And so then that begins that conversation about, so the developer is going to be asking, so what are my trade-offs, what are your trade-offs, and how does this become a win-win? And you do that at Planning Commission, I guess. Which would be an open public forum for that, and I think that's really what the legislature's kind of saying, well, if it's completely discretionary or largely discretionary, that should remain as a public forum versus those that are current objectives should not be a public forum.

Sorry, Council President Hensley just commented. For her, it's a matter of also making sure that we keep the Planning Commission relevant. And it sounds like that still will be the case in a number of ways. Yes, Councilor Orman.

So, I appreciate your recommendation. I guess, is that literally the only recommendation? Were there any other possible options or thoughts? Or like what else was bantered around besides what? I mean, really, we've got three paths.

I mean, I mean, essentially, I mean, well, obviously the discretionary path is there and I think we should absolutely pursue that. But the other two paths are, we have these hearings or meetings, public meetings, whatever you want to call them, I think those are going to go horribly, or we change it to be in line with what the legislative adoption of these laws are, which is essentially a type two process. So this is really our only option. I mean, it is. I mean, as much as that has been said through this process, the legislature, the state legislature, did not leave us any other avenues. that I didn't see. I don't see any other avenues, really.

Can we go back to the slide where, in terms of, I guess, what you maybe need from us? I mean, really, that's... There isn't much, we don't have much that we can work with.

There's not a whole lot, unless they were to come back and say, wait a second, we're going to actually make this better. I mean, Steve's legislature and better. He goofed up and we're going to come back. I'm just, you know, I mean, that would be what it would take, you know.

I'll state the obvious. I don't think that's very likely. I think the more likely thing, if anything, is that the legislature says, oh, we didn't explicitly say this has to be a staff decision, so we're going to change the law and explicitly say it has to be a staff decision because they don't. That was, I think, probably the intent. The other area that we talked about earlier where there will be an opportunity for council and planning commission input on what the code changes look like is this, I'm trying to find it here, What is notice? Do you have some input there and some discretion on your risk tolerance and priorities?

My opinion on that should be we should make a reasonable push into being aggressive on notice. Maybe not deliver it to everybody's house beyond this, but at least in a... either a newsletter on the website that tells what plan developments are coming in or things like that where um and i like because the thing is like it seems like from what you're saying although there is a risk to the city it doesn't seem like it's but open when you describe a giant risk, you know, as far as they're not going to suck millions of dollars out of us if we do something.

Yeah, I think the degree of risk is directly proportional to how far you want to push that, but I think even at the extreme end, the risk is not, like you said, it's not like a million dollar fine type risk.

Not to put Josh on the spot, but if this were to be moved to a type 2 process, I think the risk is low. I'm not sure what your opinion is on that, if we advertise more than what they said the limit is. I think the bigger deal is bringing this into an administrative process versus having a public meeting slash hearing, which I think has many elements that could go wrong, especially with the fact that people can't testify. The Planning Commission will be... really difficult for them to make a decision on this because that's the way everything's operated historically for them to have that input. And I just think that the opportunity for things to go poorly are exacerbated there. So I think, Josh, I know what your opinion is on that, but if it was a type two process and we used more notice than they required in the state of, I don't say huge deal, but.

If I could just, sorry, just thoughts come to my mind, I'm sorry. But obviously the citizens are always upset when things happen, they feel like they have no control over it. Especially when they, and my question is you weren't, before we weren't geared to thinking you were bad or nothing, but sometimes there's a perception out there that things go on under the table or that sort of thing. Would it be a problem if the whenever somebody approved if the reasoning was made public and say they did all this and then something to the effect that if you do not like these clear objective standards you can bring it up with the city council which means that there's a set thing to tell them that you although there may be limited things you can do about it, there is something that you may be able to do instead of saying to them, there's absolutely nothing you can do. That creates the most frustration. But if you can say, although this decision right here, there's nothing we can do about it because they did A, B, and C, and D. If you don't like those... clear and objective standards and want to change those standards, then that's something that they could discuss with city council because it wouldn't be part of that particular decision, but it could influence the way the code's developed in the future. So that's kind of my big concern is that we don't just say, shut up and don't object. We say, hey, there is something you can do. It's not what was done before. but here's the route, and here's how you can become involved, and here's how you can maybe make a subcommittee or something like that where we can get recommendations or something like that. I think that would solve some of the problems we're anticipating with people getting frustrated because no one likes to be told, you know, you can give your written objection, but we're going to throw it in the garbage can. But if for some reason it is made public, It was approved because it met all the conditions. And when people say, you don't like those conditions that they were accepted, maybe there is something you can do.

Yeah. Sorry, go ahead. I'll say, I think that's great. The other thing, as I was alluding to earlier, that some cities are doing is saying if you don't like the fact that we're not able to conduct a hearing on this, then you should call your state senator and your state representative because they're the people who imposed that rule on the city, not the city. It wasn't the city's idea. And they're the people who can change it. Could we hire a lobbyist? The city is not legal.

Oh, that's... that's been talked about for a couple of years now about trying, does the city contract with a lobbyist? Because I thought- Would that be legal to do?

Yeah, yeah. I mean, she said in Wilsonville, they have an employee who literally, their government liaison, that's their job.

Their job is to go and lobby for Wilsonville's pieces. And I'll come to you in just a second there, Ryan. I was sitting here thinking kind of the same thing. In my head now, it's like, okay, well, we're kind of stuck. Yeah, we're stuck in what we, you just laid out what is no longer going to be able to happen. And so I think what we need to figure out as a council and with the planning department is what are the ways to be able to encourage public comment so that voices can be heard. Like you said, I'm not my... we're up here and we know maybe that all of us together might be able to, like, put together five fingers on our hand about knowledge on the planning code, but, you know, you're thinking now the general public is going to, like, draft a letter, you know, and you almost are going to have to be a planning expert to be able to draft written testimony to dissuade, again, the planning commissioner, whoever the designated listening body is. So now everyone's got to learn how to be an armchair. planning department in their own right to articulate what's going on and why they may be for it or against it. So I think for us it is, and I don't know if I have any direction done on a lot of things tonight. I think I'd be interested to hear what the planning commission, what their filter is, and then maybe come back and go, okay, you know, council, here's here's kind of what happened at the Planning Commission and here's kind of what some of their suggestions of things that we should look at I think would be beneficial. I think as Daniel was saying, you know, how do we continue to encourage public input on how our community grows and develops and it is going to be through the code process. So those will be really important conversations here in the coming year, year and a half. How long is this going to take us? Three years?

No, I mean, we're going through the code audit this year, and then I'm hoping another year we'll have the code update completed.

I just know that it's a man to me. I mean, that to me, I mean, on some of our conversation here tonight is what's kind of sticking.

Ryan, and then go ahead, and then Paul. I was going to say, one of the things we're already doing is for any type two decision we do, we're uploading the notice, the notice of decision, the staff report and all the related materials onto the website. So if you ever go to our department website and there's a menu on the left at the bottom, there's a tab for development projects and you can see all those type two decisions that staff have made. And so I think we'll ramp up up even more. It doesn't limit even not being able to comment on a project, but at least discloses this is the decision that was made, this is why it was made, this is the relationship to the code. And then we're planning to take that to a next step, which is our department has a project that we're working on to have an interactive map for the community so basically they can get on the website and say like what is this what's been approved or like i see something being built what is this and they can go and link them to the project page which has all those materials and the renderings and the staff reports so despite the impacts of all the things that we're talking about, I think we're always looking for ways to increase the level of disclosure, even if in this case it'll be sort of after the decisions are made.

And I guess that's part of it. That's exactly, I think, some of the pieces I think of communicating with the general public of what's coming up, et cetera, and being able to... interact with the development angles that are going on in the community.

Councilwoman. So the staff recommendation kind of back to the point Mary made about planning commission and so forth. So has this discussion already been had with them?

Has it? It was just more of a sequence in the openings that we started with council. And I think I really like where the mayor is going with this because that's where we would like to go as well. We have some things to bring back to you all. We'd like to bring that back after the Planning Commission, and then come back and have a second round with you to say, here's what the Planning Commission identified in that process, and then come back with ways to encourage public comment, and then the examples the mayor mentioned about looking at a development discretionary versus a current objective. Can we show some examples of what that really looks like? I think that might also... make it a little less like the Planning Commission's creating all these new requirements and conditions because, you know, I think largely in those bodies there may be like one condition or two conditions sometimes that are added to these, you know, there's not like 20 that are being added. I just want to be fair on this as well. But these hearings go on for some time. They're usually an hour and a half minimum hearings, and we do go through a robust analysis of all the materials that are there. I did want to hit on one thing that Ryan mentioned as well, in addition to the ones that are posted online. And I would say that if anything, those are fairly robust, those type two. These are not lightweight decisions. They're, you know, 30, 40 pages minimum usually. I mean, these are not lesser reviews because they're administrative reviews. And if you're interested, they are posted online on the ones that are type two. So they are not a lightweight review process and staff takes those very seriously. But I do appreciate the fact that the community wants, they've had this opportunity in the past. This is a change. We're just trying to address the change in a way that messaging that to you first, your constituents, so they understand what we're doing here and where this is possibly going. And then what are the ways that we can continue in that structure to inform the community as to what's going on. And then to come up with this optional path, which I love, that discussion because we haven't traditionally really done that as much here in those discussions. And that's not a free-for-all. It would be essentially some parameters around it with ultimately the Planning Commission authority over those projects. So they would have, those would be very discretionary in their nature. But those could be things that would very much promote the kind of development CAMBI's looking for. Yes, and then I've got a couple questions.

I just want to say thank you for the presentation. I've been very much educated, and I apologize if I've been going off on the tangents. One of the things I'm worried about, I see happening, and unfortunately in our society it seems to happen more often, is that you end up with people with a tyranny of those who know the process versus those who don't. Those who don't know the process are stuck in a place where they can't, don't feel able to influence anything, but those who understand things really well end up being able to put wrenches in the gears or whatever just because of their knowledge. I've experienced that all the time in my career because I know about the culture of the IRS, the culture of our revenue, not just the law, but the culture. I can do things that people can't do, but I don't think it's right. I mean, I make money off of it, but we should find ways of educating people enough where they can know that they have options other than just screaming out during some meeting, you know.

So a couple, I guess, final ones that I've got. So are we able to set the written testimony period?

That came up earlier. We have a circle back with Josh about someone coming in at the very end on that written testimony. I guess to the extent that it's most helpful for us would be when we can write our staff report. We have all our materials prepared. You know, we could absolutely read something into the record the night of the meeting, but it makes more sense when we can include that into a staff report. So I don't know if there's any thoughts on that, Josh, on when someone could submit.

You know, like, great, you know, we have all these restrictions and expectations of... you know, application comes in, you have X amount of days to get this done, X amount of days to get this step done, you know, great, we posted X amount of days before the hearing, before the public hearing, and since there isn't a public hearing, it's not all being done written, and so do we go, great, from the time that this is moving, reaches step D, you have, 60 days to get written time in, or I guess that's what I'm trying to understand, too, for the general public. When does that clock start, and when does it end, and then do we get to set that shot clock?

So generally speaking, yes, you get to set the time period for the written testimony to be submitted. The only thing you'll want to keep in mind is that you have that 120 days to make your final local decision, including any local appeals. So you want to build up a process that allows you to meet that 120 days if there are appeals. So within that parameter, though, you have some flexibility to set how long that written comment period is.

My last question for you, Mr. Soper, and thank you for being here tonight, is you said there's a number of cities that are already starting to kind of read through this and are running into issues. What have we not asked tonight that we should have? Hmm.

I think you've done a pretty thorough job. I think one thing that you had touched on, I believe it was your comment, Mayor, that came up in a couple other cities. You talked about an example development to illustrate. One thing that I saw some other cities do that I think was helpful for their decision makers was essentially a chart that shows, here's a list of the decision, the application types that we have. Here's who the current decision maker is, and the current decision making process, and then here's what it would be. So you can see this application type, currently a type three, planning commission would now be type two. So you can kind of visualize that. I think that was helpful for some. Other than that, I think you all did a great job asking a lot of great questions.

I think, to share with the Planning Commission and Council. Yeah, here we are now and here's where it's going to go. Okay. Any other questions that you may have thought of, Mr. Ely? I'm covered, Mr. Mayor. Okay. Joe? Tracy, I know, or Council President Hensley, I know you're listening. Do you have anything...

Now I'm going to just absorb everything and really, really think that we need to be more proactive with the legislature going forward because these things keep coming at us and we need to be more proactive.

Agreed. All right. Thank you, sir. Ryan, Don, great job. I know it's added complexity in a time of emptyness and transition and trying to pull irons out of the fire and not add to it.

Well, I thank you, and you guys, you all had some great comments and questions and really appreciate the information. We have prepped the Planning Commission that this was all coming, so it's not unexpected that they're going to be having that discussion. Look forward to coming back to you with more information on this. but just felt it was important enough, so you're not hearing it secondhand, like, what do you mean we don't have any ability to testify any longer? You know, I mean, those are kind of huge deals, and this is... The other pieces of legislation up to this point were not quite that sweeping, and this one felt like this is kind of a big deal, you know, compared to... It was building to that point, but it was like... this is throwing a lot more into the bucket than was ever thrown into the bucket before. So thank you.

More to come on this topic. Okay. Well, I am going to adjourn our work session for the evening and say thank you, Kami, for watching, and thank you, Mr. Shepard, for being here, and Don and Ryan and staff for doing such a great job. So, Kami, good night. Thanks. Thank you.