Planning Commission - Special Meeting

Wouldn't be surprised if he is, but I'm you know, if he's anything like me, he's got That would be fine,

actually. You know?

Are ready to go. Okay. Good. Alright. I'd like

to call the meeting to order. And, for the first item on the agenda, can we, call the roll?

Yes. Commissioners Henderson? Present. Guymont

is on the Present. There we go.

Meinig? Here. LaSalle is not here. Laws not here. Vice chair Dole is not here. And chair Espey? Here.

Okay. And so do we have any public comments for, that are not related to anything on the agenda this evening? Hearing none, we'll go to the public hearings. And I don't think we do have any public hearings. We just have a work session item this evening.

Work session for 6PM.

And yeah. So I think that's G L U, G L U A 2600001. W R G 260001. If I

may, sir, sorry to interrupt. That is for the 7PM hub, planning commission meeting. Right now for the work session, it's the annual ethics training.

Okay. Gotcha. Alright. And I guess without any further, then we'll have Missy take it away.

Yes, sir. Thank you. Okay. So this is a land use land use one zero one training. Happy to be here. I wanna introduce myself. I'm Missy Ryan, and I'm, the assistant city attorney. You all know my partner, Carrie Richter, who's the city attorney. I've been practicing law for now twenty seven years. And for the last about, almost twenty years, eighteen and a half years, prior to joining Carrie and Bill, I was a LUBA referee, LUBA board member, beginning in 2006 through the March.

Prior to that, I was in private practice doing a little bit of land use, more real estate, and primarily that was with the law firm of Miller Nash. And I'm excited to be here, and this is a really great opportunity, even if you know a little or a lot about land use to refresh your memory about some things. And I always enjoy putting the presentation together because I always learn something new or remember something that I have forgotten. So, obviously, I can't cover the entire land use planning program in an hour, so I'm gonna try to hit the basics and the high points. And I believe that there may be some interest, in, me coming back, possibly later in the summer and doing something more like a land use two zero one that has a specific focus on a a specific area with a little bit more of a deep dive.

Maybe even we could graduate to land use three zero one later in the year, if we all study really hard. So, let's see. I have about 20 or so slides, and I think the way this works best is for, you all to just ask me questions, if you would like to interrupt rather than saving your questions for the end because I know I have a really hard time remembering the question that I wanted to ask 19 slides ago also. So I guess, chair, if you'd like to, do you wanna set a we could have a a raised hands, feature for the commissioners that are on Zoom if they have questions or, you all however you all wanna handle that.

So I think that upon the dais, we can just chime in. There's only three of us here. And then, for those that are in Zoom land, I I would put up the little hand or something to so that they can so that we can be recognized that way. And I will do my best to, remember that you are on the screen and and, recognize any questions you might have.

Is that good?

That works fine. Sense? Okay. Alright.

Great. Then we're gonna go ahead. I'm gonna try the clicker. Yes. It worked. Okay. Great. So how do how do cities get to plan and zone? Well, we have a a multilayered system with each system falling away for the most part as, the prior system gets achieved. But the basic authority to zone comes from The US constitution or, as I call it, the big kahuna.

And that's the tenth amendment to the constitution, that reserves the powers not enumerated in in the bill of rights to the states. That includes the police power. And the police power is more than law enforcement. It really covers the authority to regulate health, safety, and the welfare of of the of the citizens, and that is reserved to the states. We also have constitutional implications in zoning from the Fifth Amendment's takings clause.

And then, we also see in zoning, First Amendment implications, and that involves free speech, the freedom to to speak in writing through signs or expression. We have the religious exercise, exercise of religion, and establishment of religion also is implicated when we when we plan and zone. Interestingly, in Oregon, cities were first authorized to create planning commissions back in 1919. And so the the state's land use program famous land use program really began in 1973, but in Oregon, states were doing zoning regulatory activities long before then. So as I mentioned, our, system is a building block, and this is why we don't when you're up here and you're, looking at a land use application that's before you, you don't pull out your pocket copy of the constitution.

And that's because the city's framework local framework has been run through the federal constitution, hopefully, in the state and the state laws and then the regional system and then, whittled down to what we have as our local laws. Generally, the the local implementation here in Oregon City is the comprehensive plan, the Oregon City Municipal Code, in particular, 17, also title 16, and then the city's zoning map. And just a little background for the state's overlay of zoning that there is a a state agency. You probably are all familiar with it, but I'll go ahead and talk about it. The Land Conservation Development Commission.

It's an agency that's based in Salem, and it is in charge of, creating the rules that, implement the state's land use planning program. Its active arm is the Department of Land Conservation and Development. Oftentimes, so you'll hear the acronyms LCDC and DLCD related, not the same, also very confusing. So what happens when when the state is involved is the state looks at the city's regulations, its comprehensive plan, and its its zoning code, and it assesses them for to see whether they comply with the statewide planning goals, which I'm gonna talk about next. Next.

The statewide planning goals are 19 goals that LCDC was charged by the legislature with adopting, creating, and implementing. And those goals sort of establish the the state's values in many ways for how it wants to to plan and and zone and protect its resources and sometimes not protect its resources. Once LCDC has blessed the city's regulations, the goals mainly fall away as things that a body like the planning commission or the city commission has to consider when it's considering a land use application and for a quasi judicial land use applications. Sometimes the goals do apply mainly, when there is a an application to amend the comprehensive plan map or the zoning map or for legislative decisions, the goals apply directly. Talk a little bit more about the goals here.

There we have senate bill 100, which started started it all in 1973. Nice picture of governor McCall, who was the governor when, this historic, groundbreaking piece of legislation passed. This is the bill that requires comprehensive plans and land use regulations to be reviewed and blessed by LCDC. That very long process occurred mainly in the nineteen eighties through the early nineteen nineties, and now all of the cities and the counties and the state have acknowledged comprehensive plans and land use regulations. Senate bill 100 was primarily concerned at that time with protecting farm and forest land and, relatedly, preventing sprawl through the creation of urban growth boundaries around cities.

Senate Bill 100 has evolved, let's say, in in the time since it's been, passed. Okay. So nice to not have to say next slide. Okay. So here we have, decision making. We've got two different types of decision making that the planning commission, comes across your desk, let's say. First, the first kind is legislative long range planning. These are the decisions that are gonna be amending the text of your zoning code or maybe your comprehensive plan. These are political decisions, let's say. They they involve a a variety of balancing of competing interests and values.

This follows a legislative process. So there are no statutory bias or ex parte limitations in these types of legislative proceedings. Ex parte context, just briefly for anyone who doesn't know, and I you all do. Those are communications that are outside of the record that come to commissioners not in the in the public forum or within the public record. And, you know, we have to control those in a the quasi judicial context because decisions have to be made on the record in a quasi judicial context.

That's not true for legislative decisions. Those are the kind of decisions where you would like to have your community members approach you and share your thoughts about, what whatever is, you know, coming before the the commission, whether it's a a change to the natural resource section of the code or the comp plan or a geologic hazards or or some other important part of it. The other type of decision and the the ones that you see by far the most often yes, please.

Yeah. Just really quick question, the ex parte. So if somebody comes up to you and wants to talk to you about a specific issue and you say, I can't talk about this. I'm a planning commissioner. It needs to happen in a public forum. Is that considered ex parte because somebody potentially involved

addressed you? Yes. Thank you. Commissioner? Okay. So, that is the right answer to let that community member know. We wanna always encourage them to even if you can let them know when the next meeting is gonna be in that conversation. I would as a just to be safe, I would I would disclose on the record that that occurred. Probably most often, those communications get far enough along that you kind of have a sense of where they wanna talk to you because they're opposed or they wanna talk to you because they support. Maybe they said you know?

And so you'd wanna put that on the record because the statute requires it and because then it's in the record and people have an opportunity to respond to it. Those are ex parte contexts are are required to be disclosed in the context of quasi judicial decisions, which is the next one on the slide here that we're gonna talk about. This is when you're reviewing a discrete development proposal, involving a particular property against a defined set of applicable criteria. And the bias and ex parte limitations, the impartiality requirement and the ex parte disclosure laws do apply. So I just wanna speak a little bit about the concept of quasi judicial.

I just wanna acknowledge that this in many ways, when you're considering an application in a quasi judicial context, you are acting as judges. And but it's very different because you're you're a judge usually doesn't know the criminal defendant defendant, you know, personally and probably doesn't know the prosecutor and his or is friends with him. In a small community, when you're acting in the quasi judicial context, you know, that's not the case. You live in the neighborhood, and so that's the sort of quasi part. And then the other part that's quasi is that you are, you know, extremely valuable volunteers, but you're not familiar with the law and you're not judges or lawyers sometimes.

You are. And so the expectation isn't that you act at at the same as a judge, but sort of similar to a judge. Okay. So Quickly before you get off that one. Yes.

At the bottom, it says goals typically do not apply. Mhmm.

When is an example where they would apply in a quasi judicial situation? So some quasi judicial decisions involve, comp comprehensive plan map and and zone map amendments when someone a particular person seeks to rezone their particular piece of property. And that is even though it's an amendment to the comp plan and the zoning map, it is a quasi judicial because it's relates to a particular piece of property. A goal the that decision does have to establish compliance with the statewide planning goals because it is amending those the the authority documents of the city. Yeah.

And this this planning staff's very good at knowing knowing when those apply and knowing when they don't. But the public, obviously, it's complicated, and the public often will come or testify or provide comments regarding the statewide planning goals for decisions where the statewide planning goals just simply don't apply. Okay. I'm gonna tell myself next slide. So we've got quasi judicial review categories.

Here in Oregon City, we've got four types. The first one is type one. And type one decisions are the decisions that you're not gonna see. You don't see them because, you know, someone submits an application, it goes to one of the fine planners, maybe Jude here. And Jude reviews it to make sure that, you know, the setbacks are satisfied, the height limits are satisfied, and all of the other requirements are satisfied.

And then the the the community development director or designee signs that decision, and then that's it. And these type one decisions are not appealable locally at all. The second type is type two. These are community development director decisions. These are, most, they they are limited land use decisions with a per particular city, twist on it.

Notice of this application and invitation to comment is sent to property owners within 300 feet. And then, again, the community development director makes the decision. Those are actually appealed directly to the, city commission, and that's an on the record appeal. Type three are the most, common type that the Planning Commission sees, and these are your your bread and butter conditional use permits, variances. Dude can probably come up with some other examples.

Notice of the hearing is required to owners of record within 300 feet and active neighborhood associations. With this, this is an initial planning commission decision, and so there's not a staff decision. There's typically almost always a staff recommendation. Those are appealed to the city commission. And then finally, we have the type four quasi judicial decision.

This is the decision, that commissioner Henderson was just asking about. And these involve plan amendments and zone changes for a particular piece of property. These are heard by the Planning Commission and, the code provides that if they're approved, it becomes a recommendation, then the final action is by the city commission. If those are denied and they're not appealed to the city commission, then the planning commission decision is actually the final action. K.

Okay. Thank you for the reminder. So here we've got some quasi judicial review procedures. And these are to ensure predictability for everyone who's involved and also a level playing field. There's some state laws that set the floor for what the city has to do when it's reviewing these types of quasi judicial decisions.

By state law, we have to give notice twenty days notice in advance of a hearing, and we have to issue the staff report no less than seven days before the hearing. That's in state law, also embedded in the code. At the opening part of the hearing, I'm sure you're gonna all be familiar with this little script that the chair has to read. It's so exciting. Just it everybody gets very excited hearing that.

It's it's the law, so the chair has to read it. And there's some key components in that. The first one is that there's an instruction that the submittal of evidence has to be put into the record. And so if someone brings a PowerPoint and they show it on the screen, they must submit that to the planner who's, staffing the meeting, whether that's Jude or whoever, in order for it to become a part of the record. So, someone brings a big poster board, gotta leave it with the city because the city is the custodian of the record.

Suppose if somebody, like, points to their shirt to make a point, they might have to leave their shirt. I don't know. We've never had to wrestle with that issue. We don't wanna be taking the shirt off people's back, though. The second one is raise or wave it.

That's this is another really important principle, and, this wasn't always in the law as it evolved, you know, beginning in 1973. It was added, I believe, in 1987. That requires any participant in a land use proceeding to raise their issues with enough specificities that you all can address them so that the theory is that the issues get winnowed down and addressed by the local government where they're most appropriately decided. So you can't, essentially sandbag. A person can't sandbag and lie in wait and then raise their issue for the first time if they go to Luba on a on a decision.

This is a really good law. Let's see. So then we also have to raise a little subset of raise it away, but it's that you have to raise constitutional issues. This is also a matter of fairness. It's not fair to think that you perhaps are an applicant and you your the city is acting in a way that is a taking of your property and not say anything and give the the city a chance to respond to that on the record and then go to Luba and make that complaint.

That won't be successful. One of the other things in the script is that you any party has the right to a continuance at after the initial hearing, which the initial hearing is always at the planning commission. And at that point, the planning commission has the choice to either grant a continuance to the next hearing or leave the record open. Typically, the open record period is seven days for what I call the ali ali oxen free record and then seven days for responses only to that ali ali oxen free record. And then there's always a final seven days for the applicant to submit final written argument.

Continuances are challenging, in the framework of the hundred and twenty day rule, which I'm gonna get to next because so this planning commission meets has scheduled meetings twice a month, and so it's a little bit less challenging. But for a planning commission that only meets once a month, it's difficult to meet the hundred and twenty days and including all appeals, potential appeals, by continuing the hearing to a later date, and that's why most jurisdictions opt for the seven seven seven open record period. Okay. Moving on. It's just going so, here's some decision making deadlines that we can talk about, and the main one is the hundred and twenty day rule.

I know you're all familiar with that, but this is in state statute. And it means that the city has to make a decision, including resolving all local appeals within a hundred and twenty days of the when the application is deemed complete. So I file an application for a conditional use permit. And Jude has thirty days to review that under the statute. And he, when he's reviewing the application, he's checking to see if all of the things that are required in the application are included.

So he's checking the boxes. What he's not doing is reviewing the application to see if it meets all the criteria. Once that application is deemed complete, that hundred and twenty day starts. And that that means a staff report gets issued, the hearing is held, it may be continued, potential appeal to the city commission, city commission appeals are held, and then adoption of the final decision, and it goes really fast. So let's talk about what happens if the city fails to meet the hundred and twenty days.

So the applicant can extend the hundred and twenty days at its own discretion for up to two hundred and forty five additional days, but that's entirely the applicant's choice. And the statute says the city cannot force them into an extension. The failure to make a decision in a hundred and twenty days means that the applicant can, file for a writ of mandamus in circuit court. And what happens is the burden then shifts, and the city is under the obligation to prove why the application should not be approved so that in circuit court, the applicant gets the presumption of approval. The main, one of the main concerns besides the burden shifting is that a successful applicant in a writ of pandemia's proceeding is entitled to recover their attorney fees, and the city pays those.

And refund at least 50% of the application fees and deposits, which pales in comparison to what the attorney fee amount would be, but it is more money. So, okay. So when you're, doing your difficult job of considering the application, your decision making has to be based on the standards and criteria that are in the Oregon City Municipal Code or in the comprehensive plan if those apply. Generally, comprehensive plan provisions don't apply, but they can be helpful context. So here's an example.

School district wants to develop a new school, and everybody loves the school district and everybody loves the new school. And so the criterion isn't, is a new school a good idea ever. Right? And so the criterion has to do with, you know, the design standards. Are the are the streets adequate, sufficient to handle all the traffic from school?

Are the sewer lines sufficient to handle the the sewer and the are the water lines sufficient to serve the school? It's not really ever about whether this is a good idea or a bad idea because we all love schools. So at that point, your only job is to determine whether, you know, is the are these roads adequate? Is the infrastructure adequate? It's not to determine, is this a good idea or a bad idea?

And that is really difficult because the other thing that it's not about is, you know, is is it a popularity contest? Are there more people here who are in support? Are there more people here who are opposed? And this is why we have applicable approval criteria that essentially tells you you you have to ignore the more emotional concerns and focus on the standards and criteria. And this is a really difficult job, and I wanna acknowledge that.

Let's see. We've also got the fixed goalpost rule. This is another state law. And this freezes the standards that are in place when the application is deemed complete. This is also really important, particularly when this if the city is undergoing some considering some code changes that might, change the allowed uses in a particular zone, oftentimes, there'll be maybe a flurry of applications right before those code changes take effect, because people wanna develop under their, you know, the old code.

And the and as soon as if their application is complete, those standards are frozen in place, and the application is reviewed under the old code with some minor exceptions. Okay. So let's see. Just a little talk about, where you have discretion. So discretion means, you know, policy judgment with respect to criteria that require judgment.

And the main, common embodiment of this is a compatibility criterion. That's where you have the discretion to determine is something compatible with the surroundings. So first, you have to figure out what it what is meant by the surroundings. Is it just the neighboring properties, or is it the neighborhood, or is it a larger area of the city? You're gonna have to do some interpreting of ambiguous code language in that context, and planning staff is always, available to guide the planning commission in interpreting ambiguous code code standards.

Okay. Next slide. So, this slide is just a breakdown of the roles responsibilities of different aspects of quasi judicial decision making. So, the important thing about this slide is that the applicant is the one who bears the burden of proof in a land use proceeding. And what that means is that they have the burden to produce evidence to prove that the standard is satisfied.

And what that really means is that it's the applicant that has to, for example, produce a traffic study. It's not the opponent's job to go commission a traffic study to show that a criterion isn't met. It's the applicant's job to produce that evidence. It's also not the obligation of the Planning Commission to design a project for an applicant. Again, that's the applicant's burden.

The second column is the, just a little talk about the planning staff's role, a little bit legal staff. The so the planning staff, and Oregon City has an excellent planning staff, to to advise and assist you and to work as a team providing you with technical advice. Planning staff, they know the laws. They know the local laws. They know the state laws.

They know the comprehensive plan, and they can educate and assist you and also the public. And your planning staff does a lot of educating of the public. Just their planning staff are always agnostic about proposals and applications. They have no dog in any fight, and they really are there to help apply, take the application materials and apply the criteria to those materials. Just a note, and I'll repeat this again later, but communications with planning staff are not subject to they're not expert contacts.

They're carved out in the statute. And so you can always talk to planning staff, and it's not an expert contact. Then the role the public also plays a role, and in the planning process. And that role is to identify concerns with a proposal within the flare of course, the framework of the applicable criteria or to support it and to make sure that all of the applicable criteria are met. But, again, and this is a difficult part of the job, it's not supposed to turn into a popularity contest, based on the number of opponents or supporters of a project, and that's why we have applicable criteria.

And then your your role, the hardest role, this is why you get the big bucks, is to look at the evidence in the record and determine whether the criteria are met. This involves often interpreting the code or maybe the comprehensive plan. It involves reading hundreds and hundreds of pages of documents, and I know that that is really, really burdensome and difficult, and I thank you for it. Your main your main job is to seek clarification or ask questions while the record is open before you begin deliberating. Because once the record closes and deliberations begin, no commissioner can ask questions of the applicant or any other party.

So so question regarding, discussions with staff or legal about specific matters in a land use application. Is is the preference that we ask those beforehand in writing so that they're documented and part of the record? Is the recommendation that we give you a heads up and then ask it so that everybody is educated during the meeting, or is the preference both?

Kelly, I'm gonna ask you to this this is not defined by the law. It is defined by each local government's preference, and every local government does it just a little bit differently.

I think Seth's asking the question to make sure I'm paying attention to it. So for us, for best practices purposes, as Missy was saying, communication with staff and communication with the attorney is not subject to that ex parte process. We don't need to create a record of our communication. I think, the practice that we always recommend is, if you have a question of us, ask that question to whatever form you are most comfortable in, whether it's a phone call, a meeting, an email, however you prefer. We'll have that communication with you, but then I always recommend you to ask those same questions in the planning commission meeting and the hearing itself.

Because if you had that question, then it's likely other commissioners have that question, and the public likely has that question or would benefit from hearing that communication. So, really, the the communication is whatever preference you have to get the answers you need, but then communicate it back with the public during the meeting.

So even if even if we have already researched that or you

you can keep If your mind down your

mind. Even

though we've already researched that, we're already comfortable with that, and then we get the confirmation from the presentation, do we still

need to? I think that is your judgment. If you feel that the information is already fully covered within either staff's presentation or the applicant's presentation and asking the question again would be repetitive, you've already received the answer and the public's already received the information. Right? It is the the questions that seem nuanced that maybe aren't gonna come out very well in a staff report or in a applicant presentation. Use your your prudential judgment to determine whether or not you think that it's appropriate to, reask the question just to bring it up to the light. Thank you.

So hypothetical, just to make sure that I got this process down, ideally, as the staff would like to see it. So there is a public testimony where somebody says, you as the planning commission should consider some ORS.

Mhmm.

Right? And so then after we go, Kelly, is it possible to get some additional clarification from the assistant city attorney on whether or not this ORS statute actually applies? And then during the meeting, we would say, staff, could you please clarify? Clarify? We heard this concern. Can you please clarify how this does or does not apply? Is that an appropriate method?

Absolutely. And if it is something that we have already heard either during the written public testimony process or from commissioners and we have enough time to put it within the staff report, we'll likely try to preaddress it. But if it is not done so within the record already, then absolutely, that's a great example.

Really good questions. Okay. I'm gonna move to the next slide, which is, we've talked a little bit about ex parte communications. We've talked about your classic grocery store ex parte contact and that it's important to try to put things like that on the record. The main main reason is that the statute requires those to be placed on the record at the very next meeting after which they occur and to give the pub give people the opportunity to rebut the substance of those.

And when that that statute isn't fulfilled, if something goes to Luba, that's gonna be essentially an automatic remand back to the city to place those on the record. So we always wanna just be over inclusive and on the side of caution on that. Impartiality also means to have an unbiased decision maker. Comes from the Fazano versus Washington County famous case. Actual bias is if the decision was the product of positive or negative bias rather than an independent review of the facts.

You know, everybody has bias, and it's you know, there are certain cases that people just can't review, and that's, you know, that's why there are seven of you. So, you know, it's a deep bench, and you can afford to lose one or maybe two people. There's nothing wrong with having bias and acknowledging it. You'll be happy to hear, though, that the threshold for actual bias is really quite high. And it's prejudgment that is proven by explicit statements, pledges, or commitments.

And so I have a couple slides that talk about sort of some of my favorite bias cases. Bias comes bias allegations come to Luba a couple maybe three or four times a year, and they're really only sustained about once every five years. So it's become kind of one of those you know it when you see it, but, when you see it, it's there. The so this one is Depot Bay. City councilor, prior to the city council reaching its decision, sent a letter to the mayor and all the other councilors advocating and concluding that the applicant didn't have the right to use the proposed structure for the proposed use and advocating for denial, Lula found that that counselor was biased.

They had to go back and remake the decision without the biased counselor. This one, this was in my second year on Luba, so I actually remember this one. In this case, the city councilor, I believe it was the mayor, signed a letter to the editor encouraging an the main opponent of a project to leave town and then requested and obtained police logs regarding the project opponent and entered those into the record. And not surprisingly, Luba found that this fellow was biased and shouldn't have participated in the decision. This is what I mean where you you know when you see it.

Friends of Jacksonville is probably the most well known case, and that's the k a case that was actually affirmed by the court of appeals, so it has some precedential value. Here, we have a city councilor who was a member of a church, and the church was the applicant applying for an expansion. Made a couple statements that set on the record that he didn't feel like he needed to be objective. He signed a petition supporting the application and then entered into the record a document again stating his position that the church's application met the applicable criteria. Again, Luba found this counselor was biased.

He had prejudged the matter to such an extent that he should have recused himself. There's one more in the materials that you'll be getting. You can read that and have some fun with that for yourself. That the the one this one actually involved a blog post, so this is a little bit of a danger of bias too is just really try not to go on Nextdoor or Facebook and comment on an application that's pending before the planning commission. I I know it sounds obvious, but, you know, people forget.

Okay. We're gonna move on to conflict of interest just very quickly because I know we're getting short on time. Decision makers cannot have any actual conflict of interest, and an actual conflict of interest is when you, the decision maker or a family member, will benefit or suffer as a result financially as a result of the application. Potential conflict all all conflicts of interest needs to be disclosed, but an actual conflict of interest means disclosure and nonparticipation. A potential conflict means, disclosure publicly prior to taking any action on the on the application.

Go over here. So I've got some recommendations for effective participation. The first one is, try to avoid ex parte contacts. We know these are inevitable living in the community and being a participant in in community activities. Avoid prejudgment.

Please keep an open mind. The other one is another one is be prepared. It's I know it's a lot of pages to read, but if anything that you can do in advance to read these pages will really help, to make the most of everyone's time and, make the the your participation meaningful. Treat all participants with professionalism and courtesy. Just a obvious note that it takes a lot of courage to stand up and speak in public, and everyone who has the courage to do that obviously deserves to be treated with respect as you all do.

Let's see. So we've got I think I focus on the issues and don't make assumptions. Keep an open mind. This is just the keep an open mind advice. You it's surprising what can happen when you just really listen to all of the testimony, and sometimes people's minds flip a 180 degrees from where they were coming in. Don't be afraid to disagree, but disagree respectfully.

Okay. Missy? Yes. So after after the hearing's closed, a lot of the times, you know, commissioners will wanna ask questions of city attorney or staff. Mhmm. Is that permissible? Do I mean, I'm not sure. I've always struggled with, you know, how strict Right. We should be on that.

Tara, that's a good question. So, you know, legal questions obviously of of the city attorney are are are gonna happen during deliberations. The really the danger in asking questions of staff is that accidentally in evidence gets introduced into the record. New evidence gets introduced into the record. And that's, at Luba where where I saw a fair number of procedural errors were Yeah.

Like, along the road of good intentions, where the staff member was trying to be helpful and perhaps introduce evidence that wasn't in the record. Right. That's why it's really it it, you know, it does go back to the asking your questions and which then goes even farther back to reading that 650 pages of materials, you know, that are before you. It's not fair. Yeah.

So I I don't know. It's a hard question to answer, but I feel always a little bit reticent about asking clarifying questions of staff. And I think it also puts staff in a little bit of an awkward position because then they have to try to think, is the answer to this in my head and the record? Or, you know, it it's a difficult position to put staff

in also. Typically, bring stuff up, you know, on the dais that, you know, people have question marks about, and then, you know, they wanna clarification from either staff or the city attorney. Know, mean, I can certainly admon admonish folks to make sure that they get all their questions asked before the record closes and whatnot, but, you know, it's all not always gonna be the case. And I Mhmm. I prefer it that way too because, you know, it just makes for a smoother hearing. But yeah. Okay.

I think it's a work in progress.

Yeah.

Okay. So now we're we're at the deliberation and the decision phase. And, again, this is why you get your big paychecks. So we've got the public hearing is closed, and you've taken in all the evidence. And you've heard from the applicant, and you've heard from the public, and you've heard from proponents and opponents as well as staff.

And the public record is closed. This means no more testimony and you move to deliberations. So what do you do when you deliberate? First thing that you wanna do is you want to talk about the meaning of any unclear codes code provisions. This is a excellent question to ask staff if you're struggling with something what some a code provision means.

Maybe it's a compatibility criterion. Maybe it's something else. That is not gonna introduce new evidence into the record because it's strictly a matter of what does our code mean and what does staff think that it means. Oregon City staff is almost always gonna have covered that in the staff report. The next thing you're gonna do is you're gonna talk about the facts in the record that are leading you towards the conclusion that you're leading you towards.

One thing I wanna note is that personal knowledge is not evidence in the record. And so, for example, if you're a geologist and you you know that there's a landslide study map out there and that this property is on it, you definitely wanna get that out, that question out, while the record is open. Because if you wait until the deliberations, you say, I'm a geologist, and I know that this property is on the landslide study map. No one's had the opportunity to respond to that, provide evidence to the contrary, provide evidence to support it. So just, I guess, be be cognizant of personal knowledge and when it can it can be raised.

Let's see. Then we've got let's talk a little bit about conflicting evidence. So we might have some conflicting evidence, and it would be great to state why you believe some evidence over the other evidence. This often is the case if there's a traffic study, where there may be competing traffic studies and you have to decide which one is more compelling. Keeping in mind, though, that so and going back to personal knowledge, you know, the so the traffic study is going to talk about, does the proposed use satisfy the the performance standards?

Like like, will the proposed use make the road perform below the level that the city has deemed acceptable? And it's not about how frustrated you get waiting in line for traffic. Right? So there's a objective, fairly objective criterion. It might be level of service c.

So what you wouldn't wanna do is say, well, I don't care that the traffic study says it's gonna meet level of service c. I get mad when I'm behind 75 cars at this intersection. So so tie your your judgment on the evidence to believe to the criteria. Then finally, there are gonna be written findings because every decision has to be supported by written findings. And sometimes those written findings are if the commission accepts the recommendation, the staff report, they can be the staff report.

Generally, it's thoughtful and also best practices if the commission decision is going to stray very much from the staff recommendation to come back and give the staff time to craft better written findings, come back come back in a week or two weeks and give the staff some time rather than having them, you know, write them out or type them out at midnight. Right. One sort of little discussed fact about finding the written findings is that if a decision goes to Luba, the Luba reviews only the written findings. So sometimes people come to Luba and they argue, well, the the planning commission never talked about this in its deliberations specifically. And what really matters are the written findings.

That's not a good reason to let planning staff go back and work their magic and craft findings that you will then reconvene and you will vote on whether to adopt. Not that's not to say that deliberations don't matter, but the law has acknowledged that, you know, planning commissioners are typically laypeople and they don't necessarily have the language, particularly in verbal deliberations at a late hour after hours of testimony. And so it's the written decision that matters.

So, right, I would think that we would rely pretty heavily on staff to come back with a set of findings that, we deliberated about. And, you know, we may have touched on something that may may need more detail.

Where this And I would say the most often becomes an issue is that findings of denial, are sometimes more difficult to articulate verbally in a hearing. And so giving staff that extra time to to translate those, the motion and the discussion that led to a denial into a written denial finding Right. Is a really good idea. Does it we're moving on to conditions of approval. I know I know it's 07:00, so just cut me off when you want.

So decisions can be supported by conditions, but there are constitutional sideboards on conditions, and those are mainly, taking Fifth Amendment takings limitations. The main constitutional sideboards are that there has to be a nexus between the condition and the proposal, and the impacts of the proposal have to be roughly proportional to the condition. So, if you wanna if you're seeking to build a commercial building, the city can't make you build a library next door because the city really needs a library. There's no nexus between your commercial building and the library unlikely. Where this often comes into play is commercial building, city really would like a 30 inch sewer pipe, but the commercial building itself is gonna only maybe demand a 10 inch sewer pipe.

There are a lot of workarounds around that, including that the developer builds the larger pipe and then gets reimbursed by the city, you know, for its portion, but that but they there has to be constitutional sideboards on it. And I think I'm I have a couple more slides that I included about public meetings and public records, but I think we'll conclude here if that's okay. And we'll hit those at in land use 201, and then when we graduate through to land use 301.

Alright.

So thank you so much. Wanted to just thank you and tell you how much Carrie and I really, and love, you know, representing the city and appreciate all of you.

Chair, if we can, close the work session and then have a ten minute break to allow for the switchover of tech, please, that would be wonderful.

Yeah. That would be great. So I, yeah, entertain a motion to for a ten minute break ten minute recess between the, work session item and our public hearing item. Okay. It was it was moved by, Victoria Minning and seconded by? Seconded. Okay. Very good. Okay. And that's seconded by taste, Seth Henderson. Alright. So let's go ahead and close this part of the hearing and, recess for ten minutes.