City Council - Regular Meeting

Hey, good evening. I'd like to welcome everyone to the city council um joint work session of Thursday, March 5th, call the meeting to order and ask for approval of the agenda. So, to approve the agenda, all in favor? Yes. Yes.

Okay. Is there anyone besides us that would like to make public comment? Anybody online? No. Okay. So, move right along. So this evening we're going to get a language training with Missy Ryan who I finally met in person tonight and um when she's giving her presentation if you have questions she would like you to ask them at that time not to wait so you don't forget what your questions are. Thank you. Who could remember till the end? Um and can I just ask mayor do you want to recognize people as they have questions? Sure. just throw something at me.

Okay, you ready?

Okay, thanks for having me here. It's so nice to meet so many of you in person. I know the planning commissioners that are here, you guys don't really need the training because this is your wheelhouse, but thanks for coming. Um, so a little bit about me, Missy Brian and I am with the law firm of Baitman Sidell. You are familiar with my partner, my former partner, Bill Bisman, and my current partner Carrie Richter. Bill is happily retired. I had a beer with him last week, and I can assure you that he is really enjoying retirement. Uh I've been uh practicing law for 27 years. Uh and for uh the last 20 years roughly I was a a board member or referee on the Lanny's board of appeals which is Luba which I know you're all familiar with and love

unfortunately.

Yes. Uh and prior to that I was in private practice for eight years and most of that time about six years I was with the Miller Nash law firm and then a couple of years I went to a smaller firm before the governor appointed me to Luba where where I stayed until I joined Bill and Kerry. Um, we represent a lot of small cities in Oregon, Oregon City, a couple more coastal cities, Nalum, Wheeler. Uh, we represent the city of King City, the city of Sherwood on some matters. Mostly we're special land use council. Uh, but we do do some general municipal work for the those cities as well. I really love representing smaller cities because you're underresourced, but you have the same issues as the larger re resourced cities, just less money to tackle them. Um, so very excited to be here. We do these land use trainings once a year. I know uh many of you have been through these trainings every year, but even when I'm preparing the materials, I always find something that surprises me that I have forgotten about or I didn't know. And in Oregon, land use is an everchanging world. Uh it's not it's a a different kind of law than perhaps real estate, which doesn't really change that often. Um I can't really cover all of land use tonight in an hour but actually maybe 50 minutes or so. Um but if there is interest we could in a particular topic I can always you know come back and I can do land use 2011 and then we could graduate to land use 301%. Uh so with that um you I we talked about you know uh please don't try to hold your questions. I could never do that for an hour presentation either. Uh so the purpose of this is to talk about your roles as representatives of the

city and the process of what you do for the city with respect to land use. I threw in a few public record slides at the end just in case we had time. Probably not going to get to that. So if I could have uh go to the next slide. Okay. So big picture if we step back. How is it that cities even have the power to zone and to regulate the use of land? Well, it comes from the big kahuna the US constitution. The 10th amendment uh gives the cities the police power which doesn't mean law enforcement power but means generally the power to regulate health, safety and welfare of its citizens. And so that is where the power to zone comes from. And this is a interesting fact that I stumbled on in Oregon cities were first authorized to create planning commissions in 1919 which is you know more than 100 years ago. So our land use planning frame framework is a building block system where the city doesn't apply directly apply for example the US constitution when you're making your land use decisions. Uh usually the city will implement state statute. State statute is generally consistent with the US constitution because the legislature is required to comply with the US constitution. So you're implementing your the the law through your comprehensive plan and your land use regulations. Mainly that's title 17 of uh the canopies municipal code. So, this is why when we're in a land use hearing, we don't have to pull out our pocket copies of the US Constitution because that's all taken care of. Uh, that's not to say though that the constitution isn't an overarching principle and it does apply directly in some circumstances. mainly that is with

respect to the fifth amendment uh the takings clause and also the 14th amendment uh due process clause because uh in certain land use proceedings we want to provide some procedural due process to the participants. Um also a few other sometimes uh first amendment principles come up that is generally free speech, sometimes it's freedom of religion. Uh those can all also come up in in land use proceedings. Um also the Fair Housing Act and the Americans with Disabilities Act are potentially applicable or can can be issues of concern. So, at the state level, I think you're all aware of this, but I'm just going to go through it quickly. Uh, there's a state agency in Salem called the Land Conservation and Development Commission, and they are charged with um being the uh over over protectors of the land use system in Oregon. They imperation and development. So, we have LCDC and then we have DLCD. and land use like many areas of law is full of acronyms. So um the what the main thing that the LCDC does or did is uh adopt the statewide planning goals and there are 19 statewide planning goals. Um once the statewide planning goals are adopted, the city went ahead and many many years ago adopted your comprehensive plan and the comprehensive plan is consistent with the statewide planning goals. Once the comprehensive plan is blessed by LCDC, the goals fall away from most everyday land use decisions that are made. And so that's why when you are reviewing a staff report, for example, for your very typical kind of land use decision, the goals don't come up and they're not

referenced in the staff report. And that's because the code is the code and the comprehensive plan already comply with the goals. In legislative decisions, however, which is when you're amending your comprehensive plan or your code, for example, the recent STR amendments that I think are under under discussion, those do need to show goal compliance because that's a a direct link uh between uh the goals and the uh the the comprehensive plan, the ladies code. It's slightly more complicated than that, but that's that's how I'm going to leave it. So um and so let's see uh can I ask a question?

Yes please. So just to be clear with what you've said just now we as a planning commission for instance I'm speaking from my perspective um if we are presented with an argument related to statewide planning goals that seems to be at odds with our code. Are we constrained by the code? Could we not consider statewide planning goals? So this depends on and I'm I have a many slides about this later but it depends on if this is in the legislative context or the qua judicial context.

If the argument is presented in the legislative context and for example I can think of one it might be with the housing code amendments that are making their way through. uh a person might make an argument that the code amendments are not compliant with goal 10 which is housing right and so yes goal 10 does apply directly or let's say the city has to show that the housing code amendments do comply with goal 10 but if someone comes in for a design review decision uh uh an argument that this isn't isn't consistent with goal one is a common one sometimes goal line comes up. Uh though goal the goals don't apply to those types of quiz judicial decisions.

Okay. And it's you know uh it's a little bit hard to keep track of because sometimes you're reading a staff report and you think well why isn't there any discussion of the goals you have to remember which kind of decision this is.

So other words if someone has a concern that our code is not compliant they need to challenge that somewhere besides the quai judicial process. If someone has a concern that the code isn't compliant with the goals, it's too late to challenge that because it it is assumed to be compliant with the goals until the non-compliant provisions are amended. And this is the this is to provide finality and certainty to all of the participants in the land use process so that they don't they know that the rug can't be pulled out from under them that they can rely on this code provision as compliant. Otherwise, things would never move along.

So, so everything that's in our existing code is all assumed to be compliant regardless of our particular feelings of not thinking it meets whatever goals it is acknowledged is the legal term. It is acknowledged to comply with the goals.

Correct. And that is what LCDC acknowledgement that's the protection that it gives to cities. Just to go a little bit deeper, acknowled initial acknowledgement happened in a very long process with LCDC directly reviewing all the city's comprehensive plans. The way that comprehensive plan amendments are acknowledged today is through what's called a post acknowledgement plan amendment which you'll hear the term papa all over the place. And it's a little bit different because if there's no appeal, they're deemed acknowledged. So there's not a LCDC or DCD review of it. Someone has to affirmatively challenge them at the time that the code is amended.

Okay. This might be a Landis 2011 topic. Thank you. All right. This was very helpful. Yes.

Um so I think we can go to the next slide. Thank you, Jen. So here's slide three. Um there's a picture of uh Governor McCall and this is uh just a little background about Senate Bill 100 which was first enacted in 1973. Uh this is what requires comprehensive plans and land regulations to be reviewed by uh LCDC and DLCD. The main things about uh Senate Bill 100 that were very unique were that it for the first time it required cities to have urban growth boundaries around their cities to show where the line of development would stop and where resources would be preserved. Every most people are pretty familiar with Senate Bill 100 because it's pretty cool and um it was very cutting edge. The impetus for it was you know honestly to both prevent sprawl but you know the flip side of that is to preserve farmland and forest land and other other resources. Um interestingly uh Senate Bill um 100 actually first started as Senate Bill 10 in 1969 and that did not pass. So it took about four years of negotiating before Governor McCall was able to bring it back. Uh this slide is, you know, mainly just a picture of him and to uh talk about DLCD. Um Jen, next slide. Oh, Robert, sorry, Robert, next slide. Sorry about that. So So just a brief breakdown of the goals because again, um the city is going to be looking at some legislative proceedings coming up here. I mean, you're sort of always looking at legislative proceedings, but you have quite a few in the hopper here. So the the first set of goals are what I would call the process goals. Goal one is

citizen involvement and that is generally embedded in your comprehensive plans citizen involvement uh committee. It's the CIC uh it's the the way that uh land use decisions are reviewed. Goal two is land use planning. That is the papa statute that I was talking about. Um and then we have a category called the resource goals. Those are goals three, four, five is an important resource goal and it's important to the city. Here we have uh scenic areas, open spaces. Interestingly, uh goal five also includes protection for aggregate resources and natural resources. And I at when I was at Louvi, I saw a lot of tension between the gulfi protection for aggregate resources and the gulfi protection for other more traditional natural resources. It's something that uh it sometimes gets missed in our system. The development goals are goal nine uh 10 uh housing which is a very important one that everyone in the state has been talking about and the governor's focuses on and goal 11 public facilities 12 transportation and then 14 is urbanization. Goal 14 is triggered when the city wants to try to amend and or enlarge its urban growth boundary. Uh and it's a very complicated process. That'll be land use 401. I guess then we have the important goals for uh the city which are the coastal goals which I'm sure you're pretty familiar with. We've got goal 16 which you know uh the Canada beach municipal code has and the comprehensive plan the code have implemented goal 16 through the code 17 also 18 beaches and dunes and 19 I'm not too sure if there are pro code provisions that implement ocean resources

more probably need to get back on that next slide please thanks so this this slide is about uh the two kinds of decision making. So, we've got our long range planning, let's call it long range planning, big policy planning. Those are your uh uh legislative decisions essentially. And then we've got qua judicial and they are treated differently from a due process perspective and a generally a public public participation perspective. So legislative is um mostly they're city initiated proposals. It's generally always the city who's filing the application for a legislative amendment to the code. Uh the housing code amendments are a good example. The STR amendments are also a good example. So uh they typically apply to a large area. They don't affect just one property or they might apply to a large area of the city, but they're not typically going to affect, you know, 10 properties. Um they those are political questions. Okay. So um generally what happens with those is the planning commission uh has the first look at these from the planning perspective takes in a lot of public testimony often over several hearings to make sure everyone you know has a chance to say their thing and then they make a recommendation to the city council. Then the city council takes it up. City Council may also take testimony, hear what the public has to say. All of that gets included in the record. And so at the conclusion of that process, the end result of that is a papa, a a post acknowledgement plan amendment. And that is the amendment of the code that is deemed to comply with the statewide planning goals if it's not appealed to LUVA. Uh

so because this is a legislative decision, some things that you're really familiar with don't apply. Expart partake contact prohibitions don't apply to legislative proceedings. The concept of bias also doesn't apply to legislative proceedings because this is this is it. This is why you're here. This is why you got elected and appointed is to understand the community's values and and translate those into words. So um can I ask a question? Yes.

Uh what about the idea of precedent uh decisions made by the land uh the the planning board based on the language of which can be general language you know object specifically objective but as applied. So a neighbor asks for well what have you done in other cases of this uh uh interpreting this this word? Is there a any interest by the public or others in having uh any public record of decisions made in similar cases?

So um I think let me break that down. There's no uh state law or code requirement for a a board or the commission or the council even to give precedent to prior decisions. But when the council interprets a provision of the code, that is typically the last word because of the way your charter works and because the charter places the council at the top of the pyramid. Uh uh so I is that kind of where you were going with that? Um I I just uh worry sometimes that uh we need to be consistent in the way we're interpreting things and it with changing u membership in committees where do people go for uh other and I know it's case specific but it would be would give some uh credibility to the process if we were as consistent as possible. So, it's possible improvements that we could do if we had the manpower.

Yes, I agree. Consistency is always always good. Yeah.

Um well, let's put a pin on that one. Uh so, uh let's see. I want to the other let's let's move to the the hotter uh qua judicial decision-making which is much more what I think all of you are familiar with. So qua judicial that's where you have an applicant and they apply and they want to develop or do something with their private property. They file an application and because it has to do with their property rights, we provide additional due process uh uh to the review and we have that additional due process. We have to have an unbiased decision maker and we have to have a decision that's based on evidence in the record so that everyone knows what what is on the playing field. Um so in the quasi judicial context you're sitting very much like judges and that is where the term quasi judicial comes from and th this is a very hefty responsibility. So I've you know definitely want to acknowledge that. Um, so you are sitting like judges, but you're not actually judges. And that's the quai part because in a in a criminal context, for example, you know, most often the judge probably doesn't know the criminal defendant or the prosecutor well, or they might not live right in the neighborhood. I mean pro maybe here they do, but here the law does acknowledge that you know you live in a small community and you know all of your neighbors and you know the piece of property and I always chuckle because every time the exparte disclosure part of the hearing comes everyone says which is inevitable. Um but so you know to say that I think to say that if

you're completely unbiased that's very difficult and the law doesn't require you to be completely unbiased but it does acknowledge that bias exists and it it wants you to set aside your preconceived notions and just look at the evidence and only make decisions on the evidence that's in the record. Um so I think uh Robert next slide please. Thanks. So, uh, we've got just a brief overview of the three really I left off legislative decision-making, but the three qua judicial review categories here in Canon Beach are type one decisions and these are these are the breadandbut decisions that likely none of you really ever see. These are no notice of the application. The notice of the decision only goes to the applicant and only the applicant can appeal. I do want to flag that applications for the development of housing fall under this category because they are only subject to clear and objective standards. Your most common type here as probably second most common is type two decisions. These are uh what state law calls limited land use decisions. Here we call them type two. These are decisions where uh the uses or the development for which review criteria are reasonably objective requiring limited discretion. So they're not clear and objective completely but they are uh u mostly clear and objective let's say. So for that for those uh no one gets notice of the application uh but this the PL it's going to be a Jeff decision uh sends notice of the decision to the applicant and the owners of property within 100 ft. Those get appealed to the planning commission and then on to the city council. A denovo hearing is required at the planning commission stage. And this this

is the one that I see causing a lot of problems because if a decision is made administratively and someone who does not live within the required notification area uh doesn't like the decision, how do they ever know that that decision is getting made so that they can appeal it? Most of them are listed on the city website, right? They're all of them. Is that right? Yeah. all all like the trigger removals, all of the right things are all postite.

A lot of um citizens have complained that they don't, you know, they can't spend hours trolling the um city website to see every single administrative decision that's made. So then things happen and then they're upset because they didn't know about it and and it's something they could have appealed. They might miss the appeal window. Um, so how does that how does that get?

So the city the 100 ft notice area is the floor and cities can for most decisions except for housing can expand the notice area. So one thing the city could think about doing in a code amendment uh you know upcoming code amendment package is expand the notice area. I mean obviously that has budgetary concerns because the more you expand the notice area the more expensive notices. Um, and as long as you're picking up those people within that 100 feet, you're complying with state law. Uh, yes, I hear you. So 100 ft is the state correct requirement and our code just matches with the state. Yes, the cany's code matches that, but we could make it bigger if you chose

except for for housing. That's always you're going to hear me say that a lot today. Except for housing.

Except for housing. In other words, you can't go beyond 100 for housing. the housing stat uh law all of the housing laws that have come out of legislation in the last four to five years really uh the the don't want the city to provide notice to anyone of housing developments and that's that is uh it's not a floor it's a ceiling uh I I'll do housing a whole separate housing legislation I was kind of we're kind I'm kind of waiting for session to end and it's like basically over and then we'll gather it Yeah. Um so and then the ma the next type is type three decisions. So these are uh design review applications are type three conditional use applications and these are the discretionary criteria that you're familiar with. Uh that probably what I need to you know talk about the least because these are the things that you see the most. Um those are notice of the application, notice of the hearing to owners of record. Your code says 250 ft. Again, that's a floor. That's a city chosen notice area. Um, and those are heard in the first instance by DRB or the planning commission. Those have to be denovo hearings with any opportunity for anyone to come and testify and and provide evidence. If appealed, those go to the city council. Uh, let's see. Okay, next slide, please. Thanks. Uh, type four decisions. These are, uh, this slide I've talked a lot about already, but these are the amendments to the Canon Beach municipal code text or the comprehensive plan. Uh the code says that the council may request the planning comm planning commission hearing to consider the proposal and make a recommendation. But I think in practice the planning commission always uh is the starting

point for these recommendations because of your uh focus on land use. Um the council makes the final decision by ordinance. these types of legislative decisions. I mentioned before uh DLCD is uh involved in these types of decisions uh and requires a certain uh time period of notice prior to the first hearing before the planning commission along with the text of the ordinance. DLCD has its own notice list that it gathers and sends out u notices that it receives from local government. So, for example, 10,00 Friends might be on the DLCd notice list and they might say, "I want to receive notice of anything that the city of Canon Beach is doing with its code." And so, they're on the DLCd notice list. They're not on the city's notice list, but that's how they're going to hear about it. Um, and uh for papa's slightly different appeal timelines. Generally, they're the same, but um slightly different appeal timelines and appeal rights for those to be appealed to Luba. Uh one thing I want to me mention that came up with the housing code amendments is ballot measure 56. Uh this was a statute that was passed by the voters uh probably all of you in 1998. And uh this uh requires specific notice to specific property owners when a proposed change to the code might might affect their the value of their property. That's a gem very general summary of the wording of the statute. Um it it requires very specific language and it requires a very specific time frame. And I know at one of the hearings that I um was attended, there was a lot of confusion about why did we get this vague notice that told us to

show up at this hearing. Um and it's a hard it's hard thing for people to understand that this is this this is literally what the city has to say. So just in case that comes up again. Uh okay, next slide. Thanks. So uh this is the review roles and responsibilities. Uh the the couple important things about this slide are just to reiterate in a type three review the applicant bears the burden of proof and so they have to produce evidence to demonstrate that the criteria are satisfied. And what that means is that the applicant has to provide the traffic study. It's not the opponent's job to come up with a traffic study that shows that the criteria aren't met. Um, and it's also not the obligation of the planning commission or the DRB to design a project for an applicant so that it meets the criteria. Um, if the applicant doesn't do that, then it has to be the application has to be either denied or conditioned in some way to get it across the finish line. Um, another important aspect of this slide that I wanted to point out is the planning staff's role. And the planning staff role is an important one. It they're here to assist all of you as decision makers and to provide the technical advice and they know the laws and they are agnostic about proposals. They don't have a dog in the fight and uh so that's their role. We also have the role of the public uh which in the slide is other nearby property owners but can generally be the public um you know groups like Oregon coast alliance or um uh thousand friends things like that. So they are also have an important role they can be there to identify concerns with a

proposal that are within the framework of the applicable criteria. Maybe they can come and they can support a proposal and explain why they think that the criteria are met. But land use proceedings are not a popularity contest based on the number of the opponents or the number of supporters and that leads to your difficult job. Right? So finally, the role of the decision maker is that you're going to look at evidence in the record and you're going to determine whether the applicable criteria are met. You sometimes often have to interpret ambiguous provisions of the code. I know it's a lot of pages when you get that 500page packet that comes to you and the planning commission has had discussions about why do they have to be so long. Part of that is that our beautiful land use system does have some flaws in that it is a high paper intensive high evidence burden uh for applicants. So um it's not it's not the fault of the applicant. It's definitely not the fault of planning staff and also it's it's not at all fun to read that 500 pages. So, um let's see back to the planning the decision maker role. So,

yes. Oh, I think that's good. Goodness. Who does that look like? Tim Tim, did you have a question?

Yeah, thank you. Um in the burden of proof question and um we the design review board had a matter come before us I think in December and then again in January if I'm getting that right where where we um asked for the applicant to make certain um changes to to their um to their application. when it came back to us, the applicant was not there. There was no changes in the packet and I'm I'm guessing that we were on we denied it, but I'm guess it seemed like the right thing to do at the time, but I I'm guessing that they did not meet the burden of proof and um and that was the correct response. Can you can you comment on that briefly? Uh I want to ask if this is over and it's not on appeal. Okay.

I don't it's within the timeline. That's why yes Valerie would would know. I I I wouldn't I to my knowledge but I don't think it's been appealed. It may there may be some aspects that are reappealed. So it may still travel continues. Yes. I mean I mean I can generally agree with you that the applicant does have the burden of proof and uh they have to provide enough evidence to demonstrate that the criteria are met.

Yeah. And and being there and listening to I think you made right. I mean you made appropriate call. I don't know if it's right or wrong, but she made an appropriate when you know has a point in deficit or your body did.

Sorry, I can't provide a better answer to that. Um uh I think we can go to the next uh slide. I do want to one one final thing I want to say here in the role of decision maker is that it's really important that you raise your concerns and ask your questions while the record is open. And I know it's I know personally it's very difficult to think in advance about the questions that you want to ask of an applicant or the participants. But once the record closes and deliberations begin, it's not fair to anyone who's involved in the process to raise new issues that you haven't given anyone a chance to address. And it can also lead to remandable error at LUBA if a person takes it. So that's something that I'm going to emphasize a few slides later and then a few slides after that too. So what it amounts to is that we need to support our decisions with some findings.

And if we base our decision during our discussion on a a factor that we haven't even discussed with the applicant, that's not fair yet. So we need to think in advance and get the facts so that we can support our findings of fact. I'm going to talk about findings specifically in another slide and that that's a great point. So um uh let's see Robert if we could go to let's see review procedures. Yes. So we've got um is that slide 10? Yes.

Okay. Um so what we're trying to do is we're trying to ensure predictability uh by having approval criteria that are embedded in the code and everyone knows what the playing field is and to have a level playing field that's not topsyturvy. Um so some state laws set the floor for what the city has to do when it's reviewing play judicial applications. We have completeness review and the 120day rule. So this is in statute and it means that the city has to make a decision, find a decision on an application within 120 days and that 120 days starts the day an application is deemed complete or found complete. So what happens is um I file an application for a conditional use permit. Robert takes a look at it and he checks to see that it checks the boxes that everything that's supposed to be in an application is included. What he's not doing is saying this meets the criteria. What he's saying is the application is complete. And once he says that, he sends a letter to the applicant to me and then we're off and running. And then the 120day timeline does start. And so um that is for the full land use all the land use process. So you can see where um if the planning commission takes, you know, two or three hearings to reach a planning commission decision on a conditional use permit, that really burns up a lot of time and it gets the city council's back up against the wall on the appeal end so that all of a sudden special meetings have to be called. In addition, the city has a an a

unique uh Spielberg review on appeal um provision where the city council can decide whether it wants to have an on there review or a denovo review. And that is a you it's it's unique. It's not, you know, good or bad, but what it does is it eats up some additional time in the city council review process as we're heading barreling towards that 120day time limit. Um, and so that's something that the council, you know, might want to take a look at sort of tightening down the council review procedure, but I I I think it's a actually a good procedure uh to have rather than making everything an on the record review because it gives the council a chance to correct potential procedural errors that might have accidentally happened. Um, that's a topic for another a long topic that we can cover another time. So

is is the is the on the record review the standard typical like other cities have the non weird way that every that automatically in a lot of cities it operates mo I would say more cities than not but you know I just got done without the additional like choice of

yes without the additional choice of having a denovo review right a lot of cities and counties do a hybrid like the city does and you know there's no easy solution to this Um, counties have I would say have more den overview, but they get 150 days. I don't know why because they're special, but um, and that it seems unfair. Um, so a couple other things is we have to give 20 days in advance notice of the hearing and we have to provide a staff report at least seven days before the hearing. Um, another state law requirement is the hearing script. So, at at at the opening of the hearing, you are all familiar with the little script that the chair has to read and

it's so interesting. It's riveting and everybody just immediately is like on the edge of their seats waiting to see what's going to happen. But it's required by state law and the city doesn't have a choice. And um the key components of that are their in their instructions to the participants that any evidence that they want to be included in the record has to be submitted to the city. They got to hand it to Robert or Jeff or it's not going to be in the record. So that means if they have a poster board and they want it in the record, they have to hand it over and the city takes charge of that. You know, I guess it could mean like if somebody points to their shirt as a demonstration of evidence, they're going to need to leave their shirt. I don't know. Um,

we'll take the shirt off their

uh the And then, uh, Robert, if you could go to the next slide, which is the fixed goalpost rule. So, there's a state law that freezes the standards and criteria that are in effect as of the date the application is filed. And um uh that's right. I forgot I put that in the slide. So this means sometimes this means if the city is contemplating big changes to its code or or some changes to its code and one thing I can think of is the the STR amendments that are under uh discussion right now. Sometimes that leads to a flurry of activity and a flurry of applications to that where the property owners want to get them in before the code changes and they do as long as that application is complete and Robert can check all the boxes the goalpost is fixed. One example that I was thinking of on my way here was that the uh which we're not going to really get into, but the application in the Roberts case, which I think was submitted many years ago, that's a fixed goalpost even though it's been up to Luba and then to the court of appeals and it's still sitting at the Supreme Court. Uh so that's a co, you know, the fixed goalpost rule is quite powerful for applicants. Um testimony has to be directed to the criteria Um, this is one I think it's really it's hard for people to understand. Um, so, so as an example, I might want to develop a new school. And so one thing I'm going to do is I'm going to bring all of the students and all the parents that would benefit from the new school and they're going to talk about how great this new school would be. But the there's really never a criterion that says is this a great idea, right? The criteria are about what are the traffic impacts and is the sewer pipe big enough for the new school and is

there water to the new school, not whether is the school a good idea. But when you're hearing testimony and all of testimony is this is a good idea, this is a bad idea, it is easy to forget that that's not really what land use cares about. What land use cares about is the impacts, right? the the impacts on in the street and mostly in the street. So then your job is really only to apply the standards and it's very difficult to ignore the smiling faces of school children but that's what the job requires. It's not about whether it's a good proposal or a bad proposal. Um so little bit of um let's see you on Barbara can you go to the next slide? Okay so um one of the other uh required announcements in the hearing script the fascinating hearing script is the announcement about raise it or wave it. And that means that in order to preserve an argument on appeal you have to raise it. you have to give the city count the city planning commission DRV or the city council fair notice of the of the issue that you're raising. And that's because the law and the way our land use program is structured wants to give the local government the first and probably only chance hopefully at addressing this issue. It doesn't want this issue to be first decided by an appeal body that doesn't have a an investment in the community. Um so you know raise it or wave it is a good thing. Um this a slow narrowing of the issues so that uh by the time the issues do get presented to luba if that's the case everyone knows what the issues are. There are a few exceptions, right? Like

everything in the law has exceptions, but generally that's what raise it orbit means. Um, also you have to raise in in in uh also with raise it or you have to raise constitutional issues before the local government. You cannot go to Luba and sandbag a local government and raise a takings issue, which is also a good thing. Those are important ones to consider. Um, also at the beginning of uh at the end of the first hearing, any party has the right to request a continuance. Uh, the city can handle that in one of two ways. it can actually continue the hearing or it can leave the record open and that's a typical uh time frame where the record is open for seven days and it's I call it the alien free period and then the next seven days is responding only to what came in during the alien free period and then the applicant always gets a final seven days for its written argument. Continuences work better for cities that have very very frequent hearings on the calendar. So, for example, if you're if you have a planning commission and you meet twice a month and maybe you meet every two Thursdays a month, it's a lot easier to continue the hearing to a regularly scheduled hearing. In that circumstance, it's much harder if you are a once a month planning commission because you're eating up 28 days of that 120 days and then you still might have to leave the record open depending on what happens. And so that's why typically your attorney will will recommend an a written open record period rather than a continuence of the hearing.

Uh okay. Um thank you Robert. I'm on slide 13. Right. Okay. Let's talk again about the 120day rule. Uh so it's a really big deal. The applicant controls the the uh the completeness and they can force a city to begin processing application an application even if the city views that it's not complete by forcing completeness and then the 120 days starts. What happens if the city doesn't meet the 120 days? uh this applicant can go to circuit court on day 121 and they can uh seek a rid of mandamus and the burden clips in that circumstance and what happens is it's incumbent on the city then to prove that the application does not meet the criteria. Um, and the main danger of getting hauled into a mandamus proceeding is that if the city loses, they are obligated to pay the applicant's attorney fees and they're and significant and refund at least 50% of the application fee, which is like peanuts compared to the attorney fees, but still. Uh, are there any questions about the 120day rule? Okay, there are the applicant can extend the 120 days for a pretty significant length of time up to 245 days and that is often a really good solution to because I do you know gets the applicant in the city kind of working in the same direction to get to a yes. Um and that's more often than not an applicant will extend if it looks like they can get to a yes. Uh this is slide 14. Thank you. So um uh everyone and everyone involved in the land process has the right to an

impartial tribunal. Never gonna get through on this slide. I'm so sorry. Um we can do 2011.

Yes, 2011. I like it. I like it. Um that means that you know you're all familiar with exparte disclosures. Uh so I think we can go to the next slide, Robert. I wanted to talk a little bit about um uh actually Robert, I'm gonna skip a couple here too because this is just sort of background that you can read on read at your leisure. So we've got a few cases of bias that I wanted to talk about. Uh you could stop. Thanks. Um so uh friends of Jacksonville, that's a a one of the only bias cases that actually has gone up to the court of appeals and been affirmed. So in the in the world, you know, it's considered real strong precedent. What happened there was a city councelor who was a member of a church that wanted to expand uh and build an an annex uh signed a petition when he was on the city council supporting the church's application. And then prior to the deliberations, he also entered into the record a long lengthy document explaining why he believed that the application met the approval criteria. And some people friends of Jacksonville was not happy with their the lack of impartiality and appealed that to Luba. Luba agreed that he that this counselor had prejudged the matter to such an extent that he should have recused himself from participating. Um, bias is this a the standard for bias is that actual bias. And so it's not a sort of biases in the air feeling. It's a real serious like statement on the record in writing that shows that a decision maker cannot um properly view the evidence and apply it to the criteria. your code, you know, has a a separate internal process for a bias challenge

where the planning commission or the city council actually takes a vote on whether the person is biased, which I have not seen in other codes, but it's pretty cool. Um, so let's go to slide 23. These are my quick recommend uh let's see, 24 maybe slide I'm so sorry. Slide 20. Robert, thank you. These are my quick recommendations for effective participation. First thing is anything that you can do to read the packet in advance is so helpful. I mean, this is why you get paid the big bucks, right? Is to read that 500 pages.

So, if you have questions, you can ask staff in advance. And um just try to be as prepared as you can. Also, I just want to note, as you all know, it takes a lot of courage to get up and speak at a in in public at a proceeding. And I think it's important to treat all the participants with respect and professionalism, acknowledging that they they also share the community's values, but they just might have a different take on it. Um, slide 22. And then I'm I'm gonna be quiet. Keep talking. Just wanted to flag again the real the importance of getting your questions asked while the record is open. That goes handinhand with really trying to read the packet and think of your questions in advance because it's not the time for asking questions of the applicant or the participants is not during deliberations. It's also not the time to um you know think about for the first time and articulate whether some standard that no one's ever talked about applies that is just going to get the city into procedural trouble. Um, and I think I'm going to stop here so that you all can stay

just just point out. Yes. Not the adequate findings. Yes.

That is really great. Oh, yeah. Yeah, that's right. So, this is something that most uh commissioners and counselors don't really know, but the the requirement for adequate findings, what Luba reviews is only the written findings. And so a lot because you mean think about it most people are lay people not everybody but most people are lay lay people and try hard as we might to articulate the legal reasons uh for why the criteria are are not met. Luba doesn't require that verbal articulation out loud at this at the hearing. It reviews the written findings that are typically prepared later or before by staff and sometimes with the involvement of the city's attorneys. So, um that's why a lot of times maybe the the discussion during deliberations that you recall isn't quite as precise as what comes out in the in the written findings. And it's because the staff takes those discussions and they place them into the land use world and the land use language and produces written findings that you know memorialize the the discussion so that Luba can understand what the discussion is. Hopefully it doesn't go to Luba but that that's

but you still as drafters of those findings need to have be able to point back to the deliberations. Correct. like you can't pull cloth. This is what they really meant. We need as a body to cover each criterion and have there is no state law requirement memorializing what you just said. Really? So if that's true then then whoever is drafting the findings can just decide what they think would be the appropriate. I mean, if you can't

Well, so the findings come back though to the decision-m body for approval. And so, you know, there have been times where the decision-m body then they kind of they look at the findings and they say, "Well, no, I don't think that's right." Then there's sort of another vote. It's not the same as the as a tenative oral decision, but there's always a a second chance for the governing body to they have to approve the findings, right? and that they'd have to have the the record of everything that was said with, you know, in order to point to something in the record. I mean,

that really bothers me because it it seems like, you know, usually I would think that findings would be based on things you could point to in the record. And if you don't have that requirement, then that seems to give a lot of um uh uh flexibility I guess is a nice way of saying it to the person who's writing the findings. And if it comes back in front of for approval, at that point in time, it's very hard to know what's in, you know, exactly what in the record you could point to. Well, I I don't remember us making findings specifically about the number of feet from ABC,

you know, whether and so there you have these findings that are adequate for LUBA because they're usually prepared by an attorney who knows what they're doing. So they're, you know, really good findings, but they may not really, they may be putting words into the mouths of the decision maker that really may not reflect because the decision maker didn't have the knowledge even the decision at the committee.

So that's I think the question is there there's the balance between having a decision that is sustainable at Luba that does reflect the vote that occurred, right? Maybe if it was like 43 or something like that. And it's that's that's really a decision for the city to make because if the city wants to send inadequate findings up to Luba, that's going to cost the city a lot of money, right? But but if the city doesn't really doesn't, you know, the other thing that's going to happen in that circumstance is you're all going to be here deliberating at a level that is potentially not what anyone expected to be deliberating at, right? And I'm going to be sitting there being mean and I'm going to have to say like, can you please expand on your discussion of this criterion? and and you know, you're going to all be mad at me because it's going to be like 10:30 at night and

and well, it's so it's a balance. It's a balance. It

is a balance. And and I'll tell you from working in different jurisdictions, you know, some some places I've worked, we go criteria by criteria, broke down, and they reference, you know, we don't go move to the next one until we get done with that one. I mean, I've been to that level. And then uh you know I've been I would say this is more jazz free form you know uh but but there's a huge balance but I think the the the appropriate and then like here uh you know I will draft it and if it's kind of a dicey one and I know there's going to be challenges I will often give it to Missy or or Bill or Carrie or whoever but before we come back to you guys but Um uh but you know we try to find that as staff too that balance because you know like you said we we know certain things that need to be in there uh that you know may not have been really said in that record but it's been brought up in the discussion that others are you know part of that or or it comes from the staff board and and that's another thing a lot of jurisdictions will say we will adopt uh this uh 14b be uh as written and then you know so they'll go move through the staff report to that level in certain places I've worked and adopt that very word into the uh findings and that's what they said

and which is totally a legitimate choice right so would it be best practice for us to spend more time with each application looking at the criteria and having an organized conversation around do we as a body agreed with 1 A 2B that that is that's up to you guys because I think that would help the whole process be less ownorous after the fact. Yeah. Uh to deliberate in that manner so that we can you know bullet point by bullet point say this is

the reason we're making the decisions that we're making and it would make it easier for staff and everybody else on down the line and for the appeals for the council and so forth. Yeah. Well, I think it could also make it easier for uh newer planning commissioners to understand we're going to hit these criteria as we go through. Yeah,

and one of the things I appreciate about our staff is that when you remind us of what we haven't made a finding on, you don't make it a leading question. Well, didn't you mean to say this? So you have to keep it uh balanced and give everybody a chance to weigh in on what the criteria are. So that's very professional. Appreciate it. Yeah. When the succinctness starts at the committee or the uh commissioner level, then that carries through a lot easier, I think. Yeah.

Yes. I I think that's a good idea. I would like to see an expansion of of the, you know, examining the criteria and laying it out so that you don't end up getting a findings in fact you thought, gee, I didn't say that. I I wouldn't even know to say that, you know. I mean, it makes it easier for us. Yeah. Because we don't get into a moral conversation. We can stay focused on the criteria and we don't have to bring in is this a good idea or a bad idea. just read the criteria and how does this apply?

Often times in uh the report or the staff report, they will identify certain codes and standards and for our assessment. Our motions would be more precise as well as we just Yes. based on this information here, this information here and we want those be repeating ourselves that motion we can say okay we need a change um full point and for the council as well I mean I I don't want to see that expansion on the council's position because in times when they haven't recognized the bindings from what I remember the discussion

being what there's different understandings about an ordinance and how to interpret in a fire.

Um well, so generally the city has a large arrow in its quiver in that the city council's interpretations of the code get extreme difference from Luba. A a lot of difference and it's a it's very rare that they're overturned. The city the decision makers determinations about credibility of the evidence. So if you have two competing traffic studies, the decision maker's determination about the credibility of evidence also gets a ton of difference at Luba. And so often the findings will include, you know, we we want, you know, once the city has made a decision, I think the city really does want to defend that decision, right? And so we want to use all the arrows in the quiver. And so the findings will include an interpretation that is almost certain to be sustained and it'll include a a credibility determination based on the obvious outcome of of the vote, right? Even though maybe that wasn't exactly discussed. Those are all things that really solidify and make a stronger decision and a decision that's much more likely to be upheld on appeal and then which means cost the city a lot less money. So,

but that's not the goal. No. So, is that is that the whole goal of this to to be upheld and appeal and would not cost the city any money? I mean I mean I think that's for you all to it's really for the council to decide, you know. I I'm sorry, but we are now moving into Oh, yes. I mean, I want to thank Miss Thank you. Thank you so much. It's so It's really nice to see you all see you all. Yes. The meeting is

Yeah. Are you still