1995-13795-Ordinance No. 95-018 Recorded 4/27/19950145-0012 REVIEWED
95-13795 � �La 0
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Chapter 22.36
of the Deschutes County Code, the
County Procedures Ordinance, the
Various Zoning Ordinances and the
Subdivision Ordinance Regarding
Expiration of Land Use Approvals and * "--:
Declaring an Emergency.
ORDINANCE NO. 95-018
WHEREAS, standards included in OAR 660-33-140, Permit Expiration
Dates, for land use permits granted in conjunction with development of
farm or forest lands do not correspond with the Limitations on
Approvals for land use permits in Chapter 22.36 of the Deschutes County
Procedures Ordinance; and
WHEREAS, the the standards for Limitations on Approvals of land
use approvals included in Chapter 22.36 of the County Code should
correspond with the State Rule; and
WHEREAS, it is appropriate that all land use approvals granted by
the County be subject to the same standards for expiration; and
WHEREAS, public hearings have been held on the proposed amendments
consistent with state and county law; and
WHEREAS, the Deschutes County Planning Commission recommended that
the proposed amendments be adopted by the Board of County
Commissioners; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY ORDAINS as
follows:
Amendments to Title 22 (Procedures Ordinance)
Section 1. Section 22.36.010 of Title 22 is repealed and replaced
with the following new provision, as follows:
"22.36.010 Expiration of Approval
A. Scope
1. Except as otherwise provided herein, this
section shall apply to and describe the
duration of all approvals of land use permits
provided for under the Deschutes County Land
Use Procedures Ordinance, the various zoning
ordinances administered by Deschutes County and
the subdivision/partition ordinance.
ORDINANCE NO. 95-018 1 "KE'Yf,1PU4/ (04/19/95)
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2. This section does not apply to:
a. Those determinations, such as
verifications of non -conforming uses, lot
of record determinations and expiration
determinations, that involve a
determination of the legal status of a
property, land use or land use permit
rather than whether a particular
application for a specific land use meets
the applicable standards of the zoning
ordinance. Such determinations, whether
favorable or not to the applicant or land
owner, shall be final, unless appealed,
and shall not be subject to any time
limits.
b. Temporary use permits of all kinds, which
shall be governed by applicable ordinance
provisions specifying the duration of such
permits; and
C. Quasi-judicial map changes.
B. Duration of Approvals
1. Except as otherwise provided under this section
or under applicable zoning ordinance
provisions, a land use permit is void two years
after the date the discretionary decision
becomes final if the use approved in the permit
is not initiated within that time period.
2. Except as otherwise provided under applicable
ordinance provisions, preliminary approval of
plats or master plans shall be void after two
years from the date of preliminary approval,
unless the final plat has been submitted to the
Planning Division for final approval within
that time period, an extension is sought under
this section or the preliminary plat or master
plan approval has been initiated as defined
herein.
3. In cases of a land use approval authorized
under applicable approval criteria to be
completed in phases, each phase must be
initiated within the time specified in the
approval, or initiated within two (2) years of
completion of the prior phase if no timetable
is specified.
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C. Extensions
1. The Planning Director may grant one extension of up
to one year for a land use approval or a phase of a
land use approval, regardless of whether the
applicable criteria have changed, if:
a. An applicant makes a written request
for an extension of the development
approval period;
b. The request, along with the
appropriate fee, is submitted to the
county prior to the expiration of
the approval period;
C. The applicant states reasons that
prevented the applicant from
beginning or continuing development
or meeting conditions of approval
within the approval period; and
d. The county determines that the
applicant was unable to begin or
continue development or meet
conditions of approval during the
approval period for reasons for
which the applicant was not
responsible, including, but not
limited to, delay by a state or
federal agency in issuing a required
permit.
2. Up to two additional one-year extensions may be
granted under the above criteria by the
Planning Director or his designees where
applicable criteria for the decision have not
changed.
D. Procedures
1. Any holder of a permit may apply for a
determination of whether a land use has been
initiated. In addition, the Planning Director
may cause such a review to be initiated without
receipt of an application from the permit
holder. Such determinations, if they involve
discretion, shall be treated under this chapter
as a land use action.
2. Approval of an extension granted under this
rule is an administrative decision, is not a
ORDINANCE NO. 95-018 3 (04/19/95)
land use decision
this title and is
land use decision.
E. Effect of Appeals
described in ORS 197.015 or
not subject to appeal as a
The time period set forth in subsection B of this section
shall be tolled upon filing of an appeal to LUBA until all
appeals are resolved."
Section 2. Section 22.36.020 of Title 22 is repealed and replaced
with the following new provision, as follows:
"22.36.020 Initiation of Use
A. For the purposes of this Chapter, development action
undertaken under a land use approval described in Section
22.36.010, has been "initiated" if it is determined that:
1. The proposed use has lawfully occurred;
2. Substantial construction toward completion of the
land use approval has taken place; or
3. Where construction is not required by the approval,
the conditions of a permit or approval have been
substantially exercised and any failure to fully
comply with the conditions is not the fault of the
applicant.
B. For the purposes of this section, "substantial
construction" has occurred when the holder of a land use
approval has physically altered the land or structure or
changed the use thereof and such alteration or change is
directed toward the completion and is sufficient in terms of
time, labor or meny spent to demonstrate a good faith effort
to complete the development."
Section 2A. A new provision is added to Chapter 22.36 of Title 22
of the Deschutes County Code as Section 22.36.025, as follows:
"22.36.025 Transition Rules - Applicability
A. The two-year duration period set forth in section
22.36.010(B) shall be applied only to land use approvals
issued after the effective date of Ordinance 95-018.
B. Notwithstanding any condition to the contrary in an
individual approval, a determination may be made for any land
use approval described in Section 22.36.010(B) whether or not
issued prior to the effective date of Ordinance 95-018, under
Section 22.36.010(D)(1) as to whether a use was "initiated"
ORDINANCE NO. 95-018 4 (04/19/95)
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within the duration of the land use approval. If it is
determined that the use was "initiated" during the life of the
permit, the permit will be considered to be a valid
subsisting permit and any land use described in the permit
will be deemed to be authorized under the County's ordinances,
subject to any applicable revocation provisions.
C. For any land use approvals whose initial term had not
expired as of the effective date of this ordinance, extensions
may be granted under Section 22.36.010(C) or, except for
permits in the farm zones, as a matter of discretion by the
Planning Director as set forth under former DCC Section
22.36.020 otherwise repealed by Ordinance 95-018."
Amendments to Title 18 (County Zoning_ Ordinance)
Section 3. Section 18.128.040(T), "Conditional Uses - Specific Use
Standards - Shopping Complex," of Title 18 is amended to read as
follows:
"T. Shopping Complex.
1. Such uses may be authorized as a conditional use
only after a determination is made by the Planning Director or
Hearings Body.
a. That the public interest will be served by approval
of the proposal based on analysis of environmental, social and
economic and energy impacts likely to result from the
development. Analysis may include, but not be limited to,
consideration of impacts on public facilities such as roads,
water supplies, sewer systems and police and fire protection.
b. That the entire complex shall be completed within
[one year] two years or a master plan shall be submitted that
explains the phased development of the project. The master
plan shall specify a timetable of completion for all phases of
the project. The master plan shall be fully implemented
within five years or [extended] an extension shall be sought
subject to the terms of Deschutes County Code Title 22, the
Uniform Development Procedures Ordinance.
C. That there is adequate area for the buildings,
landscaping, parking, septic systems and access to serve the
proposed development.
d. That the use is consistent with the character of the
area and is not detrimental to the land use pattern of the
area.
e. That the proposed shopping complex is to be
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developed and managed as a total entity, with a plan for
maintenance of all elements of the site plan.
f. The proposed shopping complex is appropriate for
serving the needs of rural residents in the area.
g. The proposed shopping complex will not attract
residents outside the rural area to be serviced."
Section 4. Section 18.128.060, "Conditional Uses - Time Limits on
a Permit for a Conditional Use," of Title 18 is repealed and replaced
with the following provisions:
"18.128.060 Time Limits on a Permit for a Conditional Use
Duration of permits issued under this chapter shall be as
set forth in chapter 22.36 of the Deschutes County Code."
Section 5. Section 18.140.080, "Revocation," of Title 18 is
amended to read as follows:
1118.140.080 Revocation.
The Planning Director or Hearings Body may revoke or modify
any permit granted under the provisions of this title on one
or more of the following grounds:
A. A permit may be revoked on the basis of fraud,
concealment, misrepresentation or inaccurate information
supplied on the application or offered by the applicant or his
representative at a public hearing.
[B. A permit may be revoked on the basis that the use
for which such permit was granted is not being exercised
within the time limit set for the by the Planning Director or
Hearings Body or this title.]
B[C]. A permit may be revoked on the basis that the use
for which such permit was granted has ceased to exist or has
been suspended for one year or more.
C[D]. A permit may be revoked or modified on the basis
that the use for which the permit was granted was so exercised
as to be detrimental to the public health, safety or welfare,
or in such a manner as to constitute a nuisance.
D[E]. Any permit granted pursuant to this title shall
become null and void if not exercised within the time period
specified in such permit or, if no time period is specified in
the permit, within [one year] two years from the date of
approval of said permit. The Planning Director or Hearings
Body shall hold a public hearing on any proposed revocation
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after giving written notice to the permittee and other
affected persons as set forth in Deschutes County Code Title
22, the Uniform Development Procedures Ordinance. The
Planning Director or Hearings Body shall render his decision
within 45 days after the conclusion of the hearing. Appeals
from the action of the Planning Director or Hearings Body
shall be filed in the manner provided in Deschutes County Code
Title 22, the Uniform Development Procedures Ordinance."
Amendments to Title 19 (Bend Urban Area Zoning Ordinance)
Section 6. Section 19.100.060, "Conditional Use Permits - Action
on Application," of Title 19 is amended to read as follows:
"19.100.060 Action on Application
The Planning Director or Hearings Body may approve, approve
with conditions or disapprove the application for a
conditional use permit subject to the land use procedures
ordinance. In permitting a conditional use, the Planning
Director or Hearings Body may impose, in addition to the
regulations and standards expressly specified in this
Ordinance, other conditions found necessary to protect the
best interests of the surrounding property or neighborhood or
the urban area as a whole. Any future enlargement or
alteration of the use shall be reviewed by the County and new
conditions may be imposed.
A. In order to grant any conditional use, the Planning
Director or Hearings Body must find that the establishment,
maintenance or operation of the use applied for will not,
under the circumstances of the particular case, be detrimental
to the health, safety or general welfare of persons residing
or working in the neighborhood of such proposed uses, or be
detrimental or injurious to the property and improvements in
the neighborhood or the the general welfare of the urban area.
[B. A conditional use permit shall become void one year after
approval, or after such greater or lesser time as may be
specified as a condition of approval, unless within that time
the required building construction, alteration, or enlargement
has been commenced and diligently pursued or, if no such
construction, alteration, or enlargement is required, unless
the permitted activity is being regularly conducted in the
premises. Upon request, the Planning Director or Hearings
Body may extend the permit for a period of one year.]
B. Duration of permits issued under this chapter shall be
as set forth in chapter 22.36 of the Deschutes County Code."
ORDINANCE NO. 95-018 7 (04/19/95)
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Section 7. Section 19.104.090, "Planned Unit Development Approval
-Hearings Body Action," of Title 19 is amended to read as follows:
"19.104.090 Hearings Body Action
In taking action, the Planning Director or Hearings Body may
approve, approve with conditions or deny an application as
submitted. Any planned unit development as authorized shall
be subject to all conditions imposed and shall be excepted
from other provisions of this Ordinance only to the extent
specified in said authorization. Any approval of a planned
unit development granted hereunder shall lapse and become void
within [12 months] two years after the final granting of
approval or within such other period of time as may be
stipulated by the Hearings Body or Planning Director as a
condition of such approval, construction of the buildings or
structure involved in the development has begun and been
diligently pursued. The Planning Director or Hearings Body
may further impoe other conditions limiting the time within
which the development of partions thereof must be completed.
The decision of the Planning Director or Hearings Body shall
be final unless appealed in accordance with the procedures set
forth in the land use procedures ordinance."
Amendments to Title 20 (Redmond Urban Area Zoning Ordinance)
Section 8. Section 20.96.010, "Final Development Plan and Program
(P.U.D. District) - Time Limit for Filing," of Title 20 is amended to
read as follows:
"20.96.010 Time Limit for Filing
Upon acceptance in principle by the Hearings Body or
acceptance in principle with modifications required by the
Hearings Body of planned unit development, the owner -applicant
shall file with the Hearings Body within [one year] two years
of the preliminary approval of the Hearings Body, a final
develdopment plan and program. The Hearings Body may grant an
extension for filing an additional [180 days] one year upon
request by the owner -applicant. In addition, the developer
may submit such additional data as may be required by the
subdivision code of the county seeking contemporaneous
approval of the subdivision plat with approval of the final
plan and program."
Section 9. Section 20.116.080, "Conditional Use - Time Limit," of
Title 20 is repealed and replaced to read as follows:
"20.116.080 Time Limit on a Permit for a Conditional Use
Duration of permits issued under this chapter shall be as
set forth in chapter 22.36 of the Deschutes County Code."
ORDINANCE NO. 95-018 8 (04/19/95)
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Section 10. Section 20.124.060, "Time Limits on Approval of a
Variance," of Title 20 is repealed and replaced to read as follows:
"20.124.060 Time Limits on Approval of a Variance
Duration of variances issued under this chapter shall be as
set forth in chapter 22.36 of the Deschutes County Code."
Amendments to PL -17 (Sisters Urban Area Zoning Ordinance)
Section 11. Paragraph 6(B) of Section 20, "Conditional Use
Permits," of PL -17 is repealed and replaced to read as follows:
"B. Duration of permits issued under this chapter shall be as
set forth in chapter 22.36 of the Deschutes County Code."
Section 12. Paragraph 7 of Section 21, "Variances," of PL -17 is
repealed and replaced to read as follows:
7. Time Limit on Approval of a Variance. Duration of
variances issued under this chapter shall be as set forth
in chapter 22.36 of the Deschutes County Code."
Section 13. Paragraph 1 of Section 22, "Revocation of Permits or
Variances," of PL -17 is repealed:
"[1. Revocation of Permits Automatic if Not Used. Any
conditional use permit or variance granted in accordance
with the terms of this Ordinance shall be deemed revoked
if not used within one year from the date of approval or
such time as specified by the Planning Commission. Said
permit shall not be deemed used until the applicant has
actually obtained a building permit and commenced
construction thereunder, or has actually commenced the
permitted use on the premises.]"
Section 14. Paragraph 9 of Section 30, "Planned Unit Development
Approval," of PL -17 is amended to read as follows:
11
9. Hearings Body Action. In taking action, the hearings
body may approve, approve with conditions or deny an
application as submitted. Any planned unit development as
authorized shall be subject to all conditions imposed and
shall be excepted from other provisions of this Ordinance only
to the extent specified in said authorization. Any approval
of a planned unit development granted hereunder shall lapse
and become void within [12 months] two years after the final
granting of approval or within such other period of time as
may be stipulated by the Hearings Body or Planning Director as
a condition of such approval, construction of the buildings or
structure involved in the development has begun and been
ORDINANCE NO. 95-018 9 (04/19/95)
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diligently pursued. The Hearings Body may further impose
other conditions limiting the time within which the
development of partions thereof must be completed. The
decision of the Planning Director or Hearings Body shall be
final unless appealed to a higher hearings body according to
the procedures set forth in [Section 35] title 22."
Amendments to Title 17 (Subdivision/Partition Ordinance)
Section 15. Section 17.24.020, "Final Plat - Submission -
Extension," of Title 17 is amended to read as follows:
"17.24.020 Submission - Extension.
A. Filing Time Period Requirements. Except as provided for
in Section 17.24.030 of the chapter, the applicant shall
prepare and submit to the planning department a final plat
that is in conformance with the tentative plan as approved.
Within [one year] two years of the approval date for the
tentative plan for a subdivision or partition, the applicant
shall submit an original drawing, a filing fee NS ny
supplementary information required by this title and the
hearings body. If the applicant fails to proceed with a
submission before the expiration of the [one-year] two-year
period following the approval of the tentative plan, the plan
approval shall be void. The applicant may, however, submit a
new tentative plan together with the appropriate filing fee.
B. Extension
[1. If it appears the applicant will not be able to comply
with the filing time requirements of this title, he may submit
a written application to the planning director or his designee
requesting an extension of the filing time requirement. The
application shall be filed no earlier than sixty days and no
later than ten days prior to the date the one-year period
expires. It shall also be accompanied by the appropriate
fee.]
[2.] An extension may only be granted in conformance with the
applicable provisions of the Deschutes County Development
Procedures Ordinance."
Section 16. Section 17.24.030, "Final Plat - Submission for Phased
Development," of Title 17 is amended to read as follows:
"17.24.030 Submission for Phased Development
A. If a tentative plan is approved for phased development,
the final plat for the first phase shall be filed within [one
year] two years of the approval date for the tentative plan.
ORDINANCE NO. 95-018 10 (04/19/95)
B. The final plats for any subsequent phase shall be filed
within three years of the [approved] recording date [for] of
the [tentative plan] final plat for the first phase.
C. The applicant may request an extension for any final
plat under this section in the manner provided for in Section
17.24.020(B) of this chapter.
D. If the applicant fails to file a final plat, the
tentative plan for those phases shall become null and void."
Section 17. CODIFICATION. County Legal Counsel shall have the
authority to format the provisions contained herein in a manner that
will integrate them into the County Code consistent with the County
Legal Counsel form and style for ordinance codification. Such
codification shall include the authority to make format changes, to
make changes in numbering systems and to make such numbering changes
consistent with interrelated code sections. In addition, as part of
codification of these ordinances, County Legal Counsel may insert
appropriate legislative history reference. Any legislative history
references included herein are not adopted as part of the substance of
this ordinance, but are included for administrative convenience and as
a reference. They may be changed to correct errors and to conform to
proper style without action of the Board of County Commissioners.
Section 18. REPEAL OF ORDINANCES AS AFFECTING EXISTING
LIABILITIES. The repeal, express or implied, of any ordinance,
ordinance provision, code section, or any map or any line on a map
incorporated therein by reference, by this amending ordinance shall not
release or extinguish any duty, condition, penalty, forfeiture, or
liability previously incurred or that may hereafter be incurred under
such ordinance, unless a provision of this amending ordinance shall so
expressly provide, and such ordinance repealed shall be treated as
still remaining in force for the purpose of sustaining any proper
action or prosecution for the enforcement of such duty, condition,
penalty, forfeiture, or liability, and for the purpose of authorizing
the prosecution, conviction and punishment of the person or persons who
previously violated the repealed ordinance.
Section 19. SEVERABILITY. The provisions of this ordinance are
severable. If any sentence, clause, or phrase of this ordinance is
found to be invalid by a court of competent jurisdiction that decision
shall not affect the validity of the remaining portions of this
ordinance.
Section 20. CORRECTIONS. This ordinance may be corrected by order
of the Board of County Commissioners to cure editorial and clerical
errors and to insert appropriate legislative history references.
ORDINANCE NO. 95-018 11 (04/19/95)
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Section 21. EMERGENCY. This Ordinance being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this Ordinance takes effect on its
passage.
DATED this day of April, 1995.
BOARD OF COUNTY COMMISSIONERS OF
DESCHUTES CO TY, OREGON
BARRY H. SLAWGqTEft, Ctiairman
A:
nES"
Recording Secre ary
ERVAS
age,
L. NIPPER,
ssioner
ORDINANCE NO. 95-018 12 (04/19/95)