10.140 Appeal of Land Use Decision.
(1) Standing for Appeal.
(a) Any person with standing may appeal a land use decision of an approving authority (Planning Commission, Site Plan and Architectural Commission, Landmarks and Historic Preservation Commission, and Planning Director) which approves conditionally, approves, or disapproves an appealable land use action per Subsection (E), by filing a written notice together with the requisite filing fee with the Planning Department within 14 days after notice of the decision is mailed.
(b) A person has standing if the person:
(i) appeared in the initial proceedings orally or in writing; and
(ii) was entitled to a right of notice and hearing prior to the decision to be reviewed, or is aggrieved by the decision, or has interests adversely affected by the decision.
(c) For a Type II land use decision, a person with standing is an applicant or owner of the subject property, or was entitled to written notice of the decision, or participated in the proceeding by submitting written comments.
(2) Notice of Appeal.
(a) A notice of appeal shall be signed by the appellant or their agent and shall contain:
(i) An identification of the decision sought to be reviewed, including the date of the decision.
(ii) A statement demonstrating that the appellant has standing to appeal as required by Subsection 10.140(1) above.
(iii) A statement of the specific grounds which the appellant relies on as the basis for the appeal. If the appellant contends that the findings of fact made by the approving authority are incorrect or incomplete, the notice shall specify the factual matters omitted or disputed. If the appellant contends that the decision is contrary to ordinance, statute or other law, such errors shall be specifically identified in the notice along with the specific grounds relied upon for review.
(b) Upon timely receipt of the notice of appeal and filing fee, the Planning Department shall schedule the appeal for a hearing before the appropriate appeal body at the next regular hearing that falls not less than fourteen days after the date of filing. The Planning Department shall notify the appellant and other parties with standing, of the time and place of the hearing by first class mail, enclosing a copy of the notice of appeal.
(3) Appeal Procedure. Only the appellant and other parties with standing may participate in the appeal hearing. Appellant shall make the initial presentation and shall be allowed rebuttal. Each participant in the appeal hearing shall present to the appeal body those portions of the record which the participant deems relevant to the appeal. If a party wishes the appeal body to review recorded testimony, the party shall present a written summary or transcript of such testimony to be read by the appeal body in lieu of actually listening to the recording.
For an appeal of a Type II land use decision, the appellant and other parties shall have an opportunity to present testimony, arguments, and evidence as they would have had in a hearing before the decision was issued. The presentation of testimony, arguments, and evidence shall not be limited to the issues raised in the notice of appeal.
(4) Scope of Appeal. An appeal hearing shall be either ‘de novo’, ‘limited to issues’, or ‘on the record’ as summarized below.
(a) De novo: Anyone may testify. Issues are not limited to those raised in the appeal. New evidence and argument may be presented.
An appeal of a Type II land use decision, shall be a ‘de novo’ hearing as required by ORS 227.175 (10)(a)(D). The de novo hearing shall be the initial evidentiary hearing required under ORS 197.763 as the basis for an appeal to the Land Use Board of Appeals.
(b) On the record: Issues are limited to those raised in the appeal. New evidence may not be presented. New arguments may be presented so long as they relate to issues raised in the initial proceedings.
(i) The appeal body shall not re-examine issues of fact and shall limit its review to determining whether there is substantial evidence to support the findings of the approving authority, or determining if errors in law were committed. The appellant is also precluded from raising an issue on appeal to the appeal body if they could have raised the issue with the approving authority but failed to do so.
(ii) The record shall consist of the application and all materials submitted with it; documentary evidence, exhibits and materials submitted at the initial hearing; recorded testimony; the decision of the approving authority, including the findings and conclusions; and the notice of appeal.
(5) Decision Regarding Appeals.
(a) Upon review of the appeal, the appeal body may by order affirm, reverse or modify in whole or in part a determination or requirement of the decision that is under review. When the appeal body modifies or renders a decision that reverses a decision of the approving authority, the appeal body, in its final order, shall set forth its finding and state its reasons for taking the action encompassed in the order. When the appeal body elects to remand the matter back to the approving authority for such further consideration as it deems necessary, it shall include a statement explaining the error to have materially affected the outcome of the original decision and the action necessary to rectify such.
(b) Action by the appeal body shall be decided by a majority vote of its members present at the meeting at which review was made and shall be taken either at that or any subsequent meeting. The appeal body shall render its decision within the time limits allowed by State law.
(6) Appeal of Type I Land Use Decision.
(a) With the exception of Riparian Corridor Reductions or Deviations, Final PUD Plan decisions and Minor Historic Review decisions, all other Type I land use decisions are final and not appealable under this chapter or any other provision of the Medford Municipal Code.
(b) Riparian Corridor Reduction or Deviation decisions made by the Planning Director or designee may be appealed to the City Council.
(c) Final PUD Plan decisions made by the Planning Director or designee may be appealed to the Planning Commission.
(d) Minor Historic Review decisions made by the Planning Director or designee may be appealed to the Landmarks and Historic Preservation Commission.
(7) Appeal of Type II Land Use Decisions. Type II land use decisions may be appealed as follows:
(a) Site Plan and Architectural Review – Type II land use decisions made by the Planning Director or designee may be appealed to the City Council as a de novo hearing. The City Council decision on appeal shall be the final local decision on the matter.
(b) All other Type II land use decisions made by the Planning Director or designee, may be appealed to the Planning Commission as a de novo hearing. The Planning Commission decision on appeal shall be the final local decision on the matter.
(c) Expedited Land Use Reviews, Including Middle Housing Land Division. Decisions made by the Planning Director or designee may be appealed to a referee, pursuant to ORS 197.375.
(8) Appeal of Type III Land Use Decision. Type III land use decisions made by the approving authority (Planning Commission, Site Plan and Architectural Commission, or Landmarks and Historic Preservation Commission) may be appealed to the City Council. The appeal shall be heard on the record.
(9) Appeal of Type IV Land Use Decision. Type IV land use decisions made by City Council may be appealed to the Land Use Board of Appeals (LUBA) pursuant to ORS 197.830.