Held May 26th: View Recording (Video) Passcode: 3qtMTE=s
NOTICE IS HEREBY GIVEN THAT a public hearing will be held by the Rivergrove CITY COUNCIL at or shortly after 7:00 PM on FRIDAY, May 26, 2023, via Zoom (see invitation below) to consider the following:
Request: To Appeal the Approval of the Type III Conditional Use Permit and Development Permit to demolish an existing single-family home and construct a new dwelling on the property.
Owner: Monique Tyler
Location: 4810 SW Dogwood Drive
The public scope of review meeting on this matter will be conducted pursuant to the rules of procedure adopted by the City Council. Oral and written testimony in favor of or in opposition to the request may be received during a following hearing(s). Written comments may be submitted prior to the scope of review meeting or following hearing by mailing to the City Manager/Recorder, City of Rivergrove P.O. Box 1104, Lake Oswego, OR 97035 or at manager@cityofrivergrove.com no later than 3 P.M. May 26, 2023. The decision to approve or deny the application was based on compliance with the following ordinance criteria:
❑ Rivergrove Land Development Ordinance (RLDO) Article 4 Sec. 4.010-4.110 Review Procedures; Article 5 Sec. 5.010-5.100 Residential Zone, Sec. 5.020 Flood Hazard District, Article 6 Sec. 6.300-6.340
❑ Ordinance 70-2001 Rivergrove Flood Ordinance
Copies of the staff report can be obtained at cost and are available for review by contacting the City Manager/Recorder, at 503-639-6919. Any questions regarding this meeting should also be addressed to the City Manager/Recorder. A staff report will be available for inspection on or about May 21, 2023 (contact the City Manager/Recorder to see the report or obtain a copy provided at cost).
Issues regarding compliance with pertinent code standards provided the basis for an appeal to the City Council and was raised and submitted before the 10 day appeal period expired.. Issues were raised with sufficient specificity to enable the City Council and staff to respond to the issue. Failure to raise an issue in person or by letter, or failure to provide sufficient specificity to afford the decision-maker an opportunity to respond to the issue precludes appeal to City Council on that issue.
In addition, failure to raise constitutional or other issues relating to proposed conditions of approval, with sufficient specificity to allow the City Council to respond to the issue, precludes an action for damages in circuit court.
The Planning Commission reviewed the application under a Type III procedure and approved the application according to the applicable criteria specified above. All interested persons are invited to attend and be heard.
Appellants:
Billie Cottingham
4760 SW Dogwood Drive Lake Oswego, OR 97035
Michael Salch
5255 Childs Rd., Lake Oswego, OR 97035
Posted: May 15, 2023
Updated: May 18, 2023
Topic: City Council Scope of Review Meeting
Time: May 26,, 2023 07:00 PM Pacific Time (US and Canada)
Join Zoom Meeting
https://us02web.zoom.us/j/89391577173?pwd=bTdMRE1oV1JYaTdyaDN2Ui9OaEFDUT09
Meeting ID: 893 9157 7173
Passcode: 718111
Memorandum [Download PDF]
TO: Honorable Mayor and Rivergrove City Council
FROM: City Attorney, William K. Kabeiseman
DATE: May 19, 2023
RE: Staff Report on Scope of Review Determination
INTRODUCTION
An appeal has been filed seeking City Council review of a decision of the Planning Commission. The Council will hold a hearing and determine the merits of the appeal at its June 12, 2023 regular meeting. However, prior to that hearing, the Council must determine the “scope of review” for the hearing, i.e., whether the hearing will be “on the record,” meaning no new evidence will be introduced, or “de novo,” meaning parties can bring forward new evidence for the Council to consider. As discussed below, staff recommends that the Council hear this matter de novo and allow new evidence and testimony to be introduced at the hearing.
BACKGROUND INFORMATION
In March of this year, Lite Rite Electric filed an application for the property located at 4810 Dogwood Drive in order to facilitate the development of a new single-family home on that property. The Rivergrove Planning Commission considered the application and found it incomplete at its meeting on April 6, 2023. The applicant provided additional information and the Planning Commission found the application complete and approved it at their meeting on April 18, 2023, issuing a decision approving tree-cutting permit and a variance with conditions on that application on April 21, 2023.
On May 1, 2023, the City received an appeal from Michael Salch and on May 2, 2023, the City received a second appeal from Billie Cottingham. The two appeals raise a number of issues, including:
The application of Ordinance No. 89-2018 (the tree-cutting ordinance), which was incorporated into the RLDO at section 5.100.
The lack of a survey for the property
The application of Ordinances No. 52 and 53
Concerns over the number of trees being cut
Concerns regarding the impact on adjoining properties
Noise from a generator on the new structure, and
Difficulty obtaining information from the City.
A copy of the Planning Commission’s decision and the two appeals are attached to this memorandum.
DISCUSSION
The appeals will be scheduled for a hearing before the Council in early June of this year; however, before scheduling the hearing on the merits, the Council must determine the “scope of review,” or whether the participants at the hearing will be able to introduce new evidence or testimony. That decision is controlled by the provisions of the Rivergrove Land Development Ordinance (“RLDO”) and, in particular, RLDO 8.160 – 8.200.[1] RLDO 8.160 allows the Council to “limit its review to a review of the record and oral argument on the record, or it may accept new evidence and testimony.” However, RLDO 8.190 and 200 provide that the default outcome is a review on the record (without new evidence), but that the Council may allow in new evidence “if such evidence or testimony could not reasonably have been presented at the earlier hearing.” So, the Council should consider whether there may be additional evidence that may not have been reasonably available to the parties.
One element to consider is that the application was filed and resolved in just over a month, meaning there was not much time for interested parties to develop information. Moreover, it appears that the City arborist had an opportunity to submit an initial report, but did not have an opportunity to review the arborist’s final report for this application
CONCLUSION
At the hearing on the evening Friday May 26, 2023, the Council should take testimony – limited solely to the question of whether to hear the appeal on the record or if new evidence should be allowed. The Council should then decide how it wants to hear the matter. The City Attorney will be available at that meeting for any questions the Council may have.
Section 8.160. Request for Review.
* * * * *
(b) A decision of the Commission maybe appealed to the City Council by an affected person by filing an appeal within 10 days of receipt of notice of the decision. Notice of appeal shall clearly indicate the decision that is being appealed.
c) The City Council may limit its review to a review of the record and oral argument on the record, or it may accept new evidence and testimony in which case a hearing shall be conducted pursuant to this Article.
Section 8.180. Scope of Review. The reviewing body shall issue an order stating the scope of review to be one of the following:
(a) Restricted to the record made on the decision appealed.
(b) Limited to such issues as the reviewing body determines necessary for a proper resolution of the matter.
(c) A de novo hearing.
Section 8.190. Review on the Record. Unless otherwise required by this ordinance, review of a decision on appeal shall be confined to the record of the proceeding, which record shall include:
(a) A factual report prepared by the hearing body.
(b) All exhibits, materials, pleadings, memoranda, stipulations and motions.
(c) The transcript of the hearing below, if one was required. The reviewing body shall allow oral argument on the record by the parties.
Section 8.200. De Novo Review.
(a) The reviewing body may hear the matter de novo; or it may admit additional testimony or evidence not previously admitted if such evidence or testimony could not reasonably have been presented at the earlier hearing. In deciding whether to admit such testimony or evidence the reviewing body shall consider all of the following:
(1) Prejudice to a party;
(2) Convenience or availability of the evidence at the time of the initial hearing;
(3) Surprise to other parties;
(4) The nature and relevancy of the testimony or evidence.
(b) "De novo hearing" shall mean a hearing by the review body as if the action had not been previously heard and as if no decision had been rendered, except that all testimony, evidence and other material from the prior hearing shall be included in the record of the review
[1] A copy of those sections of the RLDO are attached at the end of this memorandum.