1995-22944-Ordinance No. 95-045 Recorded 6/29/1995REVIEWED
9522944 -U,,i
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES_ MUNTY, URBUION
An Ordinance Amending Title 22, The * ''
Deschutes County Development Procedures
Ordinance, Updating Title 22 to Conform
To State Law and Other Amendments, and
Declaring an Emergency. * 0147-02,14
ORDINANCE NO. 95-045
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as `follows:
Amendments to Chapter 22.04
Introduction and Definitions
Section 1. Section, 22.04.020, "Definitions," is amended to read
as follows:
"22.04.020 Definitions.
The following definitions apply to this title:
1. "De novo review" means a hearing by the review body as
if the action had not previously been heard and as if no
decision had been rendered, except that all testimony,
evidence and other material from the record of the previous
consideration will be considered a part of the record on
review.
[1]2. "Development action" means the review of any permit,
authorization or determination that the Deschutes County
Community Development Department is requested to issue, give
or make that either:
A. I[i]nvolves the application of a County zoning ordinance
or the County subdivision and partition ordinance and is not
a land use action as defined below; or
B. I[i]nvolves the application of standards other than
those referred to in subsection [(a)] A, such as the sign
ordinance.
For illustrative purposes, the term "development action"
includes review of any condominium plat, permit extension,
[lot line adjustment,] road name change, sidewalk permit,
sign permit, [verification of legal lot,] setback
determination, and lot coverage determination.
[2]3. "Land use action" includes any consideration for
approval of a quasi-judicial plan amendment or zone change
[and] any consideration for approval of a land use permit,
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and any consideration of a request for a declaratory ruling
(including resolution of any procedural questions raised in
any of these actions).
[3]4. "Land use permit" includes any approval of a
proposed development of land under the standards in the
County zoning ordinances or subdivision or partition
ordinances involving the exercise of significant discretion
in applying those standards.
By way of illustration, "land use permit" includes
review of conditional use permits, landscape management
plans, farm or non-farm dwellings, forest management plans,
partition, master plan, river setback exception, riverfront
design review, site plan, site plan change of use,
modification of approval [condition,] solar access, solar
shade exception, subdivision and subdivision variance and
variance.
[4]5. "Legislative changes" generally involve broad public
policy decisions that apply to other than an individual
property owner. These include, without limitation,
amendments to the text of the comprehensive plans, zoning
ordinances, or the subdivision or partition ordinance and
changes in zoning maps not [directly affecting individual]
directed at a small number of property owners.
[5]6. "Quasi-judicial" zone change or plan amendment
generally refers to a plan amendment or zone change [directly
affecting individual] affecting a single or limited group of
property owners and that involves the application of existing
policy to a specific factual setting. (The distinction
between legislative and quasi-judicial changes must
ultimately be made on a case-by-case basis with reference to
caselaw on the subject.)
7. "Planning Director," as used in this chapter and in
titles 17, 18, 19 and 20 and PL -17 (or its codified version)
shall refer to the Community Development Director or his or
her designee."
Amendments to Chapter 22.08
General Provisions
Section 2. A new section, 22.08.005, "Pre -application
Conference," is added to Chapter 22.08 of the Deschutes County Code as
follows:
"22.08.005 Preapplication Conference
A pre -application conference is encouraged for complex
applications or for applicants who are unfamiliar with the
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land use process. The purpose of the conference shall be to
acquaint the applicant with the substantive and procedural
requirements of the applicable land use ordinances, to
provide for an exchange of information regarding applicable
requirements of the comprehensive plan, zoning ordinance or
land division ordinance and to identify issues likely to
arise in processing an application."
Section 3. Section 22.08.010, "Application Requirements," of the
Deschutes County Code is amended to read as follows:
"22.08.010 Application Requirements
1. Property Owner. For the purposes of this section,
the term "property owner" shall mean the owner of record or
the contract purchaser and does not include a person or
organization that holds a security interest.
2. Applications for development or land use actions
shall:
A. Be submitted by the property owner or a person who
[represents in writing that he or she has authority] has
written authorization from the property owner as defined
herein to make the application.
B. Be completed on a form prescribed by the Planning
Director;
C. Include supporting information required by the
zoning ordinance and that information necessary to
demonstrate compliance with applicable criteria; and
D. Be accompanied by the appropriate filing fee,
unless such fees are waived by the Board of County
Commissioners.
3. The following applications are not subject to the
ownership requirement set forth in subsection 2A of this
section:
A. Applications submitted by or on behalf of a public
entity or public utility having the power of eminent domain
with respect to the property subject to the application; or
B. Applications for development proposals sited on
lands owned by the state or the federal government[s]."
Section 4. Section 22.08.030, "Incomplete Applications," of the
Deschutes County Code is amended to read as follows:
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"22.08.030 Incomplete Applications
1. If an application is incomplete, the Planning
Director shall, within thirty (30) days of receipt of the
application, notify the applicant in writing of exactly what
information is missing. The applicant may amend his
application or submit a new application supplying the missing
information.
2. The applicant shall have thirty (30) days from the
date of notice from the Planning Director to supply the
missing information.
3. If the applicant submits the missing information
within the 30 -day period specified in subsection 2 of this
section, the application shall be deemed complete upon
receipt of the missing information.
4. If an applicant does not submit the missing
information within the 30 -day period specified in subsection
2 of this section, the application may be processed in
accordance with section 22.20.040 of this title."
Section 5. A new section, 22.08.037, "Withdrawal of Application,"
is added to Chapter 22.08 of the Deschutes County Code as follows:
"22.08.037 Withdrawal of Application
An applicant may withdraw an application in writing at
any time prior to the time a land use action decision becomes
final. If the land owner is not the applicant, no consent to
withdraw the application is needed from the land owner."
Amendments to Chapter 22.20
Review of Land Use Action Applications
Section 5A. A new section, 22.20.005, "Effect of Determinations
Made Outside Established Processes," is added to Chapter 22.20 of the
Deschutes County Code as follows:
"22.20.005 Effect of Determinations Made Outside
Established Processes
Any informal interpretation or determination, or any statement
describing the uses to which a property may be put, made outside the
declaratory ruling process (DCC Chapter 22.40) or outside the process
for approval or denial of a land use permit (DCC Chapters 22.20 - 28)
shall be deemed to be a supposition only. Such informal
interpretations, determinations, or statements shall not be deemed to
constitute final County action effecting a change in the status of a
person's property or conferring any rights, including any reliance
rights, on any person."
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Section 6. Section 22.20.010, "Action on Land Use Action
Applications," of the Deschutes County Code is amended to read as
follows :
"22.20.010 Action on land use action applications.
1. Except for comprehensive plan amendments and zone
changes and other instances where a hearing is required by
state law or by other ordinance provision, [T]the Planning
Director may decide upon a land use action application [for
other than a comprehensive plan amendment and zone change]
administratively either with prior notice, as prescribed
under Section 22.20.020 or without prior notice, as
prescribed under Section 22.20.030 or he may refer the
application to the Hearings Body for hearing. The Planning
Director shall take such action within 30 days of the date
the application is accepted as complete. This time limit may
be waived at the option of the applicant.
2. The Planning Director's choice between or among
administrative or hearing procedures to apply to a particular
application or determination shall not be an appealable
decision.
3. Zone change and plan amendment applications shall
be referred to a hearing before the Hearings Body."
Section 7. Section 22.20.020, "Administrative Land Use Decisions
with Prior Notice," of the Deschutes County Code is amended to read as
follows:
"22.20.020 Administrative Land Use Decisions
with Prior Notice
1. Notice of the application shall be sent within ten
(10) days of acceptance of the application to persons
entitled to notice under Section 22.24.030. Such notice
shall include all the information specified under Section
22.24.040 except for [those] the items specified in
subsection[s] [G. and] J.
2. Any person may comment in writing on the application
within ten ( 10 ) days from the date notice was mailed or a
longer period as specified in the notice.
3. The Planning Director's decision to approve, deny or
send to a hearing shall be made within thirty ( 30 ) days after
an application is accepted as complete. This time limit may
be waived by the written consent of the Applicant.
4. Notice of the Planning Director's decision and the
appeal period shall be sent to all parties and to all members
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of the Planning Commission.
5. The applicant and all persons commenting as provided
in this section constitute parties to the administrative
decision. Any party can appeal the decision in accordance
with chapter 22.32, "Appeals," of this title. [On appeal, a
de novo hearing shall be held.]
Section 8. Section 22.20.040, "Final Action in Land Use Actions,"
of the Deschutes County Code is amended to read as follows:
"22.20.040 Final Action in Land Use Actions
1. Except as otherwise provided, the [Board of] County
[Commissioners] shall take final action including
consideration of appeals to the Board, in land use actions
within one hundred twenty (120 ) days after the application is
deemed complete.
2. If the applicant refuses or fails to submit missing
information within the 30 days specified in section 22.08.030
of this title, the application shall be deemed complete, for
purposes of processing the application, on the 31st day after
the application was first submitted and final action of the
Board of County Commissioners, if required, shall be taken
within one hundred fifty-one (151) days after the application
was first received.
3. The periods set forth in this section during which
a final decision on an application must be made may be
extended for a reasonable period of time at the written
request of the applicant.
[4. Quasi-judicial comprehensive plan amendments are
exempt from the time limits established by this section.]
4. Applications for the following determinations or
approvals are exempt from the 120 -day time limit established
by this section:
A. Quasi-judicial comprehensive plan amendments;
B. Revocation proceedings;
C. Verification of nonconforming uses;
D. Lot of record determinations;
E. Initiation of approval determinations; and
F. Consideration of remanded applications."
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Section 9. Section 22.20.050, "Temporary Approval," of the
Deschutes County Code is amended to read as follows:
"22.20.050 Temporary approval.
1. The purpose of temporary land use approval is to
allow an applicant in certain hardship or emergency
situations to proceed without notice to those ordinarily
entitled to notice with a land use action proposed in an
application made to the Planning Division before the Division
completes its review of the proposed use. In all cases, an
applicant receiving temporary approval must obtain final
approval on the submitted application pursuant to the
procedures specified in this title.
2. Subject to subsection (5) of this section, the
Board of County Commissioners or the Planning Director may
authorize a temporary land use approval, provided:
A. An application for the land use approval has been
accepted as complete.
B. A fee for review of the temporary approval has been
paid.
C. The applicant has demonstrated good and sufficient
cause for such a temporary approval.
D. It appears that the application will be given final
approval in substantially the form submitted by the
applicant.
E. The applicant accepts each and every risk of loss
and damage that may result if the application is denied, and
further agrees in writing to hold County, its officers,
agents and employees harmless from such loss and damage.
F. Applicant agrees in writing to restore the site to
its original condition if the application for the land use
approval is denied.
3. For the purposes of this section, "good cause"
shall include only hardship or emergency situations arising
due to factors that, through the exercise of ordinary
diligence, the applicant could not have [been] foreseen.
"Good cause" does not include an applicant's request for a
temporary permit for reasons of convenience only.
4. A temporary use approval shall not be granted for
variances, zone changes or plan amendments.
5. The scope of the temporary approval shall be limited to
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allow the applicant to proceed only with that portion of the
proposed use justifying the applicant's claim of hardship or
emergency.
6. A temporary use approval shall expire as follows:
A. Six months from the date of approval, if no decision has
been reached on the underlying application.
B. On the date the appeal period runs on the decision on
the underlying application.
C. On the date the all appeals of the decision on the
underlying application are decided and final.
7. A decision to approve a temporary use application is not
appealable.
Section 10. Section 22.20.060, "Application and Supporting
Documents," of the Deschutes County Code is amended to read as follows:
"22.20.060 Application and supporting documents.
Except as provided for in sections 22.24.130,
"Continuances," 22.24.147, "Reopening the Record," and
Chapter 22.30, "Reconsideration," of this title, all
documents or evidence relied upon by an applicant for a land
use approval shall be submitted to the Planning Division as
part of the application and be made available to the public
at the time notice is provided under Section 22.24.030 of
this title."
Amendments To Chapter 22.24
Land Use Action Hearings
Section 11. Section 22.24.010, "Filing of Staff Report for
Hearing," of the Deschutes County Code is amended to read as follows:
"22.24.010 Filing of Staff Report for Hearing
1. At the time an application that in the judgment of
the Planning Director requires a hearing is complete, a
hearing date shall be set.
2. A staff report shall be completed (fifteen (15)J
seven (7) days prior to hearing. If the report is not
completed by such time, the hearing shall be held as
scheduled, but any party is entitled, upon request made at
the hearing, to a continuance of the hearing to a date that
is at least seven days after the date the initial staff
report is complete.
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3. A copy of the staff report shall be mailed to the
applicant, shall be made available to such other persons who
request a copy and shall be filed with the Hearings Body.
4. Oral or written modifications and additions to the
staff report shall be allowed prior to or at the hearing."
Section 11A. Section 22.24.020, "Hearings Body," of the Deschutes
County Code is amended to read as follows:
"22.24.020 Hearings Body
1. The following shall serve as the Hearings Body in this
order:
A. Hearings Officer.
B. Planning Commission, where the Planning
Commission initiates a review of an
administrative action or Hearings Officer's
decision pursuant to Section 22.28.050 of
this title.
C. Board of County Commissioners.
2. Where the Hearings Officer [must] declines to hear a
matter on the grounds of a conflict of interest, the Planning
Commission shall substitute for the Hearings Officer. In the
Redmond Urban Area, the initial Hearings Body for a quasi-
judicial plan amendment or zone change may at the discretion
of the Planning Director be either the Planning Commission or
the Hearings Officer."
Section 12. Section 22.24.030, "Notice of Hearing or
Administrative Action," of the Deschutes County Code is amended to read
as follows:
"22.24.030 Notice of Hearing or Administrative Action.
1. Individual Mailed Notice.
A. Except as otherwise provided for herein, notice of
a land use application[, other than for a utility facility
line,] shall be mailed at least [ten (10)] twenty (20) days
prior to the hearing for those matters set for hearing, or
within ten (10) days after receipt of a complete application
for those matters to be processed administratively with
notice. Written notice shall be sent by mail to the
following persons:
1. The applicant.
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2. Owners of record of property as shown on the most
recent property tax assessment roll of property located:
a. Within one hundred (100) feet of the
property that is the subject of the notice where
any part of the subject property is within an
urban growth boundary;
b. Within two hundred fifty ( 250 ) feet of
the property that is the subject of the notice
where the subject property is outside an urban
growth boundary and not within a farm or forest
zone; or
C. Within five hundred (500) feet of the
property that is the subject of the notice where
the subject property is within a farm or forest
zone.
3. For a solar access or solar shade exception
application, only those owners of record identified in the
application as being burdened by the approval of such an
application.
4. The owner of a public use airport if the airport is
located within 10,000 feet of the subject property.
5. The tenants of a mobile home park when the
application is for the rezoning of any part or all of a
mobile home park.
6. The planning commission.
7. Any neighborhood or community organization formally
recognized by the Board under criteria established by the
Board whose boundaries include the site.
B. Notwithstanding subsection 1.A.2.a. of this
section, all owners of property within 250 feet of property
that is the subject of a plan amendment application or zone
change application shall receive notice.
C. The failure of a property owner to receive mailed
notice shall not invalidate any land use approval if the
Planning Division can show by affidavit that such notice was
given.
2. Posted Notice.
a. Notice of a land use action application for which
prior notice procedures are chosen shall be posted on the
subject property for at least [10] 20 continuous days prior
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to any hearing or date set for receipt of comments. Such
notice shall, where practicable, be visible from any adjacent
public way.
b. Posted [N]notice of an application for a utility
facility line approval shall be by posting the proposed route
at intervals of not less than one-half mile. The notice
shall be posted as close as practicable to, and be visible
from, any public way in the vicinity of the proposed route.
C. Notice of a solar access application shall be
posted as near as practicable to each lot identified in the
application.
d. At least ten [(10)] 20 days prior to any initial
hearing, the applicant shall provide an affidavit attesting
to the fact that notice has been posted as required by this
section. Failure to provide the affidavit as required may
result in continuation of the hearing, in which case, the
applicant [may] shall be deemed to have [waived] suspended
the running of the 120 -day time limit for the period of the
continuance.
3. Published Notice. In addition to notice by mail
and posting, notice of a hearing shall be published in a
newspaper of general circulation in the County at least ten
[(10)] 20 days prior to the hearing.
4. Media Notice. Copies of the notice of hearing
shall be transmitted to other newspapers published in
Deschutes County."
Section 13. Section 22.24.040, "Notice of Hearing or
Administrative Action," of the Deschutes County Code is amended to read
as follows:
"22.24.040 Contents of Notice.
1. All mailed notices of a land use action hearing or
a land use action application subject to administrative
decision shall:
A. Describe the nature of the applicant's request and
the nature of the proposed uses that could be authorized.
B. List the criteria from the zoning ordinance and the
plan applicable to the application at issue.
C. Set forth the street address or easily understood
geographical reference to the subject property.
D. State the date, time and location of [the] any
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hearing or date by which written comments must be received.
E. State that any person may comment in writing and
include a general explanation of the requirements for
submission of testimony and the procedures for conduct of
testimony.
F. If a hearing is to be held, state that any
interested person may appear.
G. State that failure to raise an issue in person at
a hearing or in writing precludes appeal by that person to
the Land Use Board of Appeals (LUBA) , and that failure to
provide sufficient specificity to afford the decision -maker
an opportunity to respond to the issue precludes appeal to
LUBA based on that issue.
H. State the name of a county representative to
contact and the telephone number where additional information
may be obtained.
I. State that a copy of the application, all documents
and evidence relied upon the by the applicant and applicable
criteria are available for inspection at no cost and will be
provided at reasonable cost.
J. State that a copy of the staff report will be
available for inspection at no cost at least [fifteen (15)]
seven (7) days prior to the hearing and will be provided at
reasonable cost.
K. All mailed notices shall contain the following
statement: NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR
SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS
NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER.
2. All mailed and published notices for hearings shall
contain a statement that recipients may request a copy of the
staff report.
3. All mailed and published notices concerning
applications necessitating an exception to one of the
statewide land use planning goals shall state that a goal
exception is proposed and shall summarize the issues in an
understandable manner."
Section 14. Section 22.24.050, "Burden of Proof," of the
Deschutes County Code is amended to read as follows:
"22.24.050 Burden of proof.
Throughout all local land use proceedings, the burden of
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proof rests on the applicant. (The burden of proof is upon
the one seeking change.]"
Section 15. Section 22.24.080, "Standing," of the Deschutes
County Code is amended to read as follows:
"22.24.080 Standing.
1. Any interested person may appear and be heard in a
land use action hearing (including appeals).
2. Any person appearing on the record at (the] a
hearing (including appeals) or presenting written evidence in
conjunction with an administrative action or hearing shall
have standing and shall be a party.
3. Additionally, any owner of property to be burdened
by a solar access permit shall be considered a party at every
stage of the solar access permit decision process."
Section 16. A new section, 22.24.105, "Disclosure of Personal
Knowledge," is added to Chapter 22.24 of the Deschutes County Code as
follows:
"22.24.105 Disclosure of Personal Knowledge
1. If the Hearings Body or any member thereof uses
personal knowledge acquired outside of the hearing process in
rendering a decision, the Hearings Body or member thereof
shall state the substance of that knowledge on the record and
allow all parties the opportunity to rebut such statement on
the record.
2. For the purposes of this section, a site visit by
the Hearings Body shall be deemed to fall within this rule.
After the site visit has concluded, the Hearings Body must
disclose its observations and conclusions gained from the
site visit in order to allow for rebuttal by the parties."
Section 17. A new section, 22.24.125, "Setting the Hearing," is
added to Chapter 22.24 of the Deschutes County Code as follows:
"22.24.125 Setting the Hearing
1. A hearing date may be changed by the County staff,
the Hearings Body or an applicant up until the time notice of
the hearing is mailed. Once the notice of hearing is mailed,
the hearing date is set and any changes in the hearing date
shall be processed as a continuance in accordance with
section 22.24.130 of this title.
2. If an applicant requests that a hearing date be
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changed, such request shall be granted only if the applicant
agrees that the extended time period for the hearing shall
not count against the 120 -day time limit set forth in Section
22.20.040."
Section 18. Section 22.24.130, "Continuances," of the Deschutes
County Code is amended to read as follows:
"22.24.130 Continuances.
1. Except as set forth in this section, continuances
[shall] may be granted at the discretion of the Hearings
Body. Such continuances shall be granted on the record at
the scheduled hearing for the land use decision.
2. Any party shall be entitled, upon request at the
scheduled hearing, to a continuance of the hearing if
[additional] documents or evidence in addition to those
supplied with the application are provided in support of the
application. Such a continuance shall not be [subject to]
counted against the 120 -day time limit set forth in Section
22.20.020 of this title.
3. Any party shall be entitled, upon request at the
scheduled hearing, to a continuance of the hearing if the
staff report made available to the public at least [15] seven
(7) days in advance of the hearing date is changed by
identification of additional applicable criteria.
4. The applicant may request a continuance of a land
use hearing at any time. If such request is made prior to
the date set for the hearing and after published or mailed
notice of the hearing date has been provided to other parties
by the County, the Hearings Body shall take evidence at the
scheduled hearing date from a any party wishing to testify at
that time.
5[4]. The Hearings Body shall, where possible, set
forth a time certain for resumption of the hearing."
Section 19. Section 22.24.140, "Close of the Record," of the
Deschutes County Code is amended to read as follows:
"22.24.140 Close of the record.
1. At the conclusion of the public hearing, the
Hearings Body shall either make a decision and state findings
that may be incorporated into a written decision, close the
record and take the matter under advisement, or leave the
record open for written testimony.
2. Unless a continuance has been granted, [A]any
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participant at a hearing before the Hearings Officer or the
Planning Commission (if it serves as the initial Hearings
Body) is entitled upon request to have the record remain open
for submission of written testimony. Such an extension shall
be for at least seven (7) days and shall not count against
the 120 -day period."
Section 20. Section 22.24.150, "Objections to Jurisdiction,
Procedure, Notice or Qualifications," of the Deschutes County Code is
amended to read as follows:
"22.24.150 Objections to [jurisdiction,]
procedure, notice or qualifications.
Any objections not raised prior to the close of oral
testimony are waived. Parties alleging procedural error
shall have the burden of proof at LUBA as to whether the
error occurred and whether the error has prejudiced the
party's substantial rights."
Section 21. A new section, 22.24.160, "Reopening the Record," is
added to Chapter 22.24 of the Deschutes County Code as follows:
"22.24.160 Reopening the Record
1. When Reopening of Record Required
A. The Hearings Body shall reopen the record in the
following instances:
(1) When the Hearings Body determines that
criteria not referenced in the staff report nor
mentioned in the hearing itself are applicable to
the decision and such criteria are material to the
basis for approval or denial. Additional evidence
and testimony submitted under this subsection
shall be limited to addressing the newly
identified applicable criteria and any issues
raised by such criteria.
(2) Upon request of a party when new
evidence or argument not previously submitted and
not in the nature of rebuttal is received in
written testimony allowed pursuant to Section
22.24.140.
B. A request to reopen the record under subsection
1.A.(2) must be made no later than five (5) working days
after the record closes. Such requests for the record to be
reopened shall be decided by the Hearings Body considering
only the request of the moving party and the evidence in
question and shall be decided upon without other
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participation of the parties. The Hearings Body shall notify
the Planning Director of its decision and shall allow for
additional evidence in the nature of rebuttal only. The
Planning Director shall cause appropriate notice to be given.
C. The Hearings Body and the parties are encouraged to
work out a mutually agreeable schedule of evidence submission
during the hearing process that places restrictions on new
evidence or argument coming in and that allows parties to
rebut new evidence submissions. New evidence that is not in
the nature of rebuttal submitted by any party in violation of
any such schedule shall be disregarded by the Hearing Body
and shall not be considered to be a part of the record.
2. Reopening Record as a Matter of Discretion
Except as required under subsection 1, the Hearings Body may
at its discretion elect to reopen the record. In such an event,
the Hearings Body shall state the reason for reopening the record,
describe the testimony that it seeks and cause notice to be
provided to all parties. The Hearings Body may place limits on
the testimony that may be submitted in response to reopening the
record, but shall in all cases allow any party to raise new issues
that relate to the matter that prompted the record to be reopened.
3. Manner of Testimony
The manner of testimony (whether oral or written) and
time limits for testimony to be offered upon reopening of the
record shall be at the discretion at the Hearings Body."
Chapter 22.28
Land Use Action Decisions
Section 22. Section 22.28.010, "Decision," of the Deschutes
County Code is amended to read as follows:
"22.28.010 Decision
1. Approval or denial of a land use action shall be
based upon and accompanied by a brief statement that explains
the criteria and standards considered relevant to the
decision, states the facts relied upon in rendering the
decision and explains the justification for the decision
based upon the criteria, standards[,] and facts set forth.
2. Any portion of an application not addressed in a
Hearings Body's decision shall be deemed to be denied.
3. A decision on a land use action is not final until
the Planning Director or Hearings Body issues a written
decision, the decision or notice of the decision has been
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0147-0,,;-00
mailed and the appeal period to the next higher Hearings Body
within the County has run.
4. Unless a temporary use permit has been issued, no
building permit shall issue until a decision is final.
Appeal of a final decision to LUBA does not affect the
finality of a decision for purposes of issuing building
permits."
Section 23. Section 22.28.030, "Decision on Plan Amendments and
Zone Changes," of the Deschutes County Code is amended to read as
follows:
"22.28.030 Decision on plan amendments
and zone changes.
1. Except as set forth herein, the Hearings Officer or
the Planning Commission when acting as the Hearings Body
shall have authority to make decisions on all quasi-judicial
zone changes and plan amendments. Prior to becoming
effective, all quasi-judicial plan amendments and zone
changes shall be adopted by the Board of County
Commissioners.
2. In considering all quasi-judicial zone changes and
those quasi-judicial plan amendments on which the Hearings
Officer has authority to make a decision, the Board of County
Commissioners shall, in the absence of an appeal or review
initiated by the Board, adopt the Hearings Officer's
decision. No argument or further testimony will be taken by
the Board.
3. Plan amendments and zone changes requiring an
exception to the goals or concerning lands designated for
forest or agricultural use shall be heard de novo before the
Board of County Commissioners without the necessity of filing
an appeal, regardless of the determination of the Hearings
(Body below] Officer or Planning Commission. Such hearing
before the Board shall otherwise be subject to the same
procedures as an appeal to the Board under this title.
4. Notwithstanding subsection (3) of this section,
when a plan amendment subject to a subsection (3) hearing
before the Board of County Commissioners has been
consolidated for hearing before the Hearings Officer with a
zone change or other permit application not requiring a
hearing before the Board under subsection 3, any party
wishing to obtain review of the Hearings Officer's decision
on any of those other applications shall file an appeal. The
plan amendment shall be heard by the Board consolidated with
the appeal of those other applications."
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0147-02W31
Section 24. Section 22.28.040, "Reapplication Limited," of the
Deschutes County Code is amended to read as follows:
"22.28.040 Reapplication limited.
1. If a specific application is denied on the merits,
no reapplication for substantially the same proposal may be
made for six (6) months following the date of the final
decision.
2. Notwithstanding subsection 1 of this section, a
final decision bars any reapplication for a nonconforming use
verification or for a determination on whether an approval
has been initiated. A lot of record determination shall be
subject to reapplication under subsection 1 only if the
applicant presents new factual evidence not submitted with
the prior application."
Section 25. Section 22.28.050, "Review by Planning Commission and
Board," of the Deschutes County Code is amended to read as follows:
"22.28.050 Review by Planning Commission and Board.
1. Review of an administrative action or a Hearings
Body's decision may be initiated by not less than two members
of either the Planning Commission or the Board of County
Commissioners.
2. The review shall be initiated in writing within ten
(10 ) days of the date of the mailing of the final written
decision of the Planning Director or lower Hearings Body.
3. Review shall be conducted in the same manner
provided for in appeals, except that an appeal fee and
transcript shall not be required. Any Board order calling up
for review a decision shall specify whether the Board will
review the decision called up on the record or de novo and
whether it intends to limit the issues on review to certain
specified issues."
Section 26. Section 22.28.060, "Proposed Order," of the Deschutes
County Code is amended to read as follows:
"22.28.060 Proposed Order
The Hearings Body may [require] request that any
prevailing party draft a set of proposed findings and
conclusions."
Chapter 22.30
Reconsideration
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0147-0232
Section 27. A new Chapter 22.30, "Reconsideration," as set forth
in Sections 27 through 30 is added to Title 22 of the Deschutes County
Code.
Section 28. A new section, 22.30.010, "Reconsideration," is added
to Chapter 22.30 of the Deschutes County Code as follows:
"22.30.010 Reconsideration
1. An applicant may request that the Hearing Officer's
decision be reconsidered as set forth herein. By requesting
reconsideration, the applicant shall be deemed to have
suspended the running of the 120 -day decision time period for
the time period of the reconsideration. A request for
reconsideration shall be accompanied by a fee established by
the county.
2. Grounds for reconsideration are limited to the
following instances where an alleged error substantially
affects the rights of the applicant:
A. Correction of an error in a condition
established by the Hearing Officer where the
condition is not supported by the record or
is not supported by law;
B. Correction of errors that are technical or
clerical in nature."
Section 29. A new section, 22.30.020, "Reconsideration
Procedure," is added to Chapter 22.30 of the Deschutes County Code as
follows:
"22.30.020 Procedure
1. A request for reconsideration shall be filed with
the Planning Director within ten (10) days of the date the
decision was mailed. The request shall identify the alleged
error in the Hearings Officer's decision and shall specify
how the applicant would be adversely affected if the alleged
error were to remain uncorrected.
2. Upon receipt of a request for reconsideration, the
Planning Director shall forward the request for
reconsideration to the Hearings Officer and notify the other
parties to the proceeding of the request and allow for a ten-
day comment period on the request. At the end of the comment
period, the Hearings Officer shall determine whether the
request for reconsideration has merit.
3. The Hearings Officer shall modify the decision upon
a determination that the request has merit and the alleged
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0147-0233 '
error substantially affects the applicant. Notice of the
modification shall be sent to all parties to the proceeding.
If the Hearings Officer determines that no modification is
warranted, a determination shall issue to that effect.
4. Filing a request for a reconsideration shall not be
a precondition for appealing a decision.
5. Filing a request for reconsideration stays the
deadline for any party to file an appeal of the Hearings
Officer's decision. The appeal period for all parties to the
proceeding shall commence upon mailing of a modification or
upon mailing a determination that a modification is not
warranted. If an opponent files an appeal and an applicant
has requested reconsideration, the opponent's appeal shall be
stayed pending disposition of the request for modification.
If the decision is not modified, the appeal will be processed
in accordance with the procedures set forth in Chapter 22.32.
If the decision is modified, the appellant must within 10
days of the mailing of the modified decision file in writing
a statement requesting that its appeal be activated."
Section 30. A new section, 22.30.030, "Limitation on
Reconsideration," is added to Chapter 22.30 of the Deschutes County
Code as follows:
"22.30.030 Limitation on Reconsideration
No decision shall be reconsidered more than once."
Chapter 22.32
Appeals
Section 31. Section, 22.32.010, "Who May Appeal," is amended to
read as follows:
"22.32.010 Who May Appeal
1. The following [persons] may file an appeal:
A. A party;
B. In the case of an appeal of an administrative
decision without prior notice, a person
entitled to notice or any other person who
has filed comments on the application with
the Planning Division;
C. A person who was entitled to notice and to
whom no notice was mailed. A person who,
after such notices were mailed, purchases
property to be burdened by a solar access
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0147-0234 .
permit shall be considered to be a person to
whom notice was to have been mailed[.]; and
D. A city, concerning an application within the
urban area for that city, whether or not the
city achieved party status during the
proceeding.
2. A person to whom notice is mailed is deemed notified
even if notice is not received."
Section 32. Section, 22.32.015, "Filing Appeals," is amended to
read as follows:
"22.32.015 Filing appeals.
1. To file an appeal, an appellant must file a
completed notice of appeal on a form prescribed by the
Planning Division, an appeal fee, and a transcript of any
hearing appealed from.
2. Unless a request for reconsideration has been
filed, [T]the notice of appeal and appeal fee must be
received at the offices of the Deschutes County Community
Development Department no later than 5:00 PM on the tenth day
following mailing of the decision. If a decision has been
modified on reconsideration, an appeal must be filed no later
than 5:00 PM on the tenth day following mailing of the
decision as modified. Notices of Appeals may not be received
by facsimile machine.
3. The transcript of the hearing may be submitted to
the Community Development Department within [10] 15 days
after the date notice of appeal is filed [or within ten (10)
days after the hearing tape is mailed or given to the
appellant, whichever is later].
4. If the Board of County Commissioners is the
Hearings Body and the Board declines review, a portion of the
appeal fee may be refunded. The amount of any refund will
depend upon the actual costs incurred by the County in
reviewing the appeal."
Section 33. A new section, 22.32.022, "Determination of
Jurisdictional Defects," is added to Chapter 22.32 of the Deschutes
County Code as follows:
"22.32.022 Determination of Jurisdictional Defects
1. Any failure to conform to the requirements of
Sections 22.32.015 and 22.32.020 shall constitute a
jurisdictional defect. Failure to provide a complete
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014 7m-,035
transcript shall be excused only if the original tape of the
Hearing is defective.
2. Determination of jurisdictional defects in an appeal
shall be made by the Hearings Body to which an appeal has
been made."
Section 34. A new section, 22.32.025, "Consolidation of Multiple
Appeals," is added to Chapter 22.32 of the Deschutes County Code as
follows:
"22.32.025 Consolidation of Multiple Appeals
A. If more than one party files a notice of appeal on a
land use action decision, the appeals shall be consolidated
and noticed and heard as one proceeding.
B. To the extent its anticipated costs are more than
covered by the duplicate appeal fees received when multiple
appeals are filed, the Planning Division may refund a portion
of the appeal fees to the appellants in an equitable manner.
C. In instances of multiple appeals where separate
appellants have asked for a differing scope of review, any
grant of de novo review shall control over a separate request
for a more limited review on appeal."
Section 35. A Section 22.32.030, "Notice of Appeal," of the
Deschutes County Code is renumbered 22.32.020 and amended to read as
follows:
"22.32.020 Notice of appeal.
Every notice of appeal shall include:
1. A statement raising any issue relied upon for appeal
with sufficient specificity to afford the Hearings Body an
adequate opportunity to respond to and resolve each issue in
dispute.
[2. A request that the Planning Division supply
appellant with a copy of the magnetic tape record of any
hearing before the Hearings Officer, unless such tape has
already been requested.]
2[3]. If the Board of County Commissioners is the
Hearings Body, a request for review by the Board stating the
reasons why the Board should review the lower Hearings Body's
decision.
3. If the Board of County Commissioners is the
Hearings Body and de novo review is desired, a request for de
PAGE 22 - ORDINANCE NO. 95-045 (6/28/95)
014"7°0230
novo review by the Board stating the reasons why the Board
should provide de novo review as provided in section
22.32.030 of this title."
Section 36. Section 22.32.030, "Hearing on Appeal," is amended to
read as follows:
"22.32.030 Hearing on Appeal
[1. All persons filing a notice of appeal shall be a
party to an appeal.]
[2]1. The appellant and [A]all other parties to the
decision below shall be mailed notice of the hearing on
appeal at least ten (10) days prior to [the] any hearing or
consideration on the record.
[3. The review shall be de novo and shall be heard as
provided in Chapter 22.24, "Land Use Action Hearings," of
this title, except as otherwise stated in this chapter.]
2. The review on appeal before the Hearings Officer or
Planning Commission shall be de novo. Review before the
Board, if accepted, shall be on the record unless the
appellant requests de novo review and the Board determines
pursuant to subsection 4 of this section that it should hear
the appeal de novo.
3. The Board may, at its discretion, determine that it
will limit the issues on appeal to those listed in an
appellant's notice of appeal or to one or more specific
issues from among those listed in an applicant's notice of
appeal.
4. Notwithstanding subsection 2 of this section, the
Board may hear an appeal de novo if the Board determines
that:
A. The magnetic tape of the hearing below, or a
portion thereof, is unavailable due to a
malfunctioning of the recording device during
that hearing; or
B. The substantial rights of the parties would
be significantly prejudiced without de novo
review and it does not appear that the
request is necessitated by failure of the
appellant to present evidence that was
available at the time of the previous review;
or
C. In its sole judgment a de novo hearing is
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0147-0237
necessary to fully and properly evaluate a
significant policy issue relevant to the
proposed land use action.
5. Except as otherwise provided in this chapter, the
appeal shall be heard as provided in Chapter 22.24, "Land Use
Action Hearing." Where additional oral testimony is allowed,
the applicant shall proceed first in all appeals.
[4]6. The order of Hearings Body shall be as provided
in Section 22.24.020 of this title.
[5]7. The record of the proceeding from which the
appeal is taken shall be a part of the record on appeal in
all cases.
8. The record for a review on the record shall consist
of the following:
A. A written transcript of any prior hearing;
B. All written and graphic materials that were
part of the record below;
C. The Hearings Body decision appealed from;
D. Written arguments, based upon the record
developed below, submitted by any party to
the decision; and
E. A staff report.
No oral testimony other than staff comment based on the
record shall be taken. The Board shall not consider any new
factual information submitted by a party."
Section 37. Section 22.32.035, "Declining Review," of the
Deschutes County Code is amended to read as follows:
"22.32.035 Declining review.
Except as set forth in 22.28.030, when there is an
appeal of a land use action and the Board of County
Commissioners is the Hearings Body:
1. The Board may on a case-by-case basis or by
standing order for a class of cases decide at a public
meeting that the decision of the lower Hearings Body of an
individual land use action or a class of land use action
decisions shall be the final decision of the County.
2. If the Board of County Commissioners decides that
PAGE 24 - ORDINANCE NO. 95-045 (6/28/95)
the lower Hearings Body decision shall be the final decision
of the County, then the Board shall not hear the appeal and
the party appealing may continue the appeal as provided by
law. In such a case, the County shall provide written notice
of its decision to all parties. The decision on the land use
application becomes final upon mailing of the Board's
decision to decline review.
3. The decision of the Board of County Commissioners
not to hear a land use action appeal is entirely
discretionary.
4. In determining whether to hear an appeal, the Board
of County Commissioners may consider:
A. The record developed before the lower Hearings
Body;
B. The notice of appeal; and
C. Recommendations of staff."
Section 38. A new section, 22.32.060, "Withdrawal of Appeals," is
added to Chapter 22.32 of the Deschutes County Code as follows:
"22.32.060 Withdrawal of an Appeal
An appeal may be withdrawn in writing by an appellant at
any time prior to the rendering of a final decision. Subject
to the existence of other appeals on the same application, in
such event the appeal proceedings shall terminate as of the
date the withdrawal is received. An appeal may be withdrawn
under this section regardless of whether other non -filing
parties have relied upon the appeal filed by the appellant."
Chapter 22.34
Proceedings on Remand
Section 39. A new chapter, 22.34, "Proceedings on Remand," is
added to Title 22 of the Deschutes County Code as set forth in Sections
40 through 43 of this ordinance.
Section 40. A new section, 22.34.010, "Purpose," is added to
Chapter 22.34 of the Deschutes County Code as follows:
"22.34.010 Purpose
This chapter shall govern the procedures to be followed
where a decision of the County has been remanded by LUBA or
the appellate courts or a decision has been withdrawn by the
County following an appeal to LUBA."
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7-a 39
Section 41. A new section, 22.34.020, "Hearings Body," is added
to Chapter 22.36 of the Deschutes County Code as follows:
"22.34.020 Hearings Body
The hearings body for a remanded or withdrawn decision
shall be the hearings body from which the appeal to LUBA was
taken. If the remand is to the Hearings Officer, the
Hearings Officer's decision may be appealed under this title
to the Board, subject to the limitations set forth herein."
Section 41A. A new section, 22.34.030, "Notice and Hearing
Requirements," is added to Chapter 22.36 of the Deschutes County Code
as follows:
"22.34.030 Notice and Hearing Requirements
1. The County shall conduct a hearing on any remanded
or withdrawn decision, the scope of which shall be determined
in accordance with the applicable provisions of this Chapter
and state law. Unless state law requires otherwise, only
those persons who were parties to the proceedings before the
County shall be entitled to notice and be entitled to
participate in any hearing on remand.
2. The hearing procedures shall comply with the minimum
requirements of state law and due process for hearings on
remand and need comply with the requirements of Chapter 22.24
only to the extent that such procedures are applicable to
remand proceedings under state law."
Section 42. A new section, 22.34.020, "Scope of Proceeding,
added to Chapter 22.36 of the Deschutes County Code as follows:
"22.34.030 Scope of Proceeding
1. On remand, the Hearings Body shall review those
issues that LUBA or the Court of Appeals required to be
addressed. In addition, the Board shall have the discretion
to reopen the record in instances in which it deems it to be
appropriate.
2. At the Board's discretion, a remanded application
for a land use permit may be modified to address issues
involved in the remand or withdrawal to the extent that such
modifications would not substantially alter the proposal and
would not have a significantly greater impact on surrounding
neighbors. Any greater modification would require a new
application.
3. If additional testimony is required to comply with
the remand, parties may raise new, unresolved issues that
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is
0147-0240
relate to new evidence directed toward the issue on remand.
Other issues that were resolved by the LUBA appeal or that
were not appealed shall be deemed to be waived and may not be
reopened."
Section 43. A new section, 22.34.040, "Effect of Reversal," is
added to Chapter 22.34 of the Deschutes County Code as follows:
"22.34.040 Effect of Reversal
A land use decision reversed by LUBA or the Court of
Appeals that results in a final appellate judgment or order
of reversal cannot be further heard by the County in the
absence of an amended or a new application. Submission of a
revised application shall be governed by the time limit set
forth in Section 22.28.040."
Chapter 22.36
Limitations on Approvals
Section 43A. Section 22.36.010, "Expiration of Approval," of the
Deschutes County Code is amended to read 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.
2. This section does not apply to:
a. Those determinations made by declaratory
ruling, 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.
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0147-0241
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.
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;
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0147-0242
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.]
1. A determination of whether a land use has
been initiated shall be processed as a
declaratory ruling.
2. Approval of an extension granted under this
[rule] section is an administrative decision,
is not a land use decision described in ORS
197.015 or this title and is not subject to
appeal as a land use decision and shall be
processed under this title as a development
action, except to the extent it is necessary
to determine whether the use has been
initiated.
E. Effect of Appeals
The time period set forth in subsection B of this section
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0147-p0243
shall be tolled upon filing of an appeal to LUBA until all
appeals are resolved."
Section 44. A new section, 22.36.040, "Modification of Approval,
is added to Chapter 22.36 of the Deschutes County Code as follows:
"22.36.040 Modification of Approval
1. An applicant may apply to modify an approval at any
time after a period of six months has elapsed from the time
a land use action approval has become final.
2. Unless otherwise specified in a particular zoning
ordinance provision, the grounds for filing a modification
shall be that a change of circumstances since the issuance of
the approval makes it desirable to make changes to the
proposal, as approved. A modification shall not be filed as
a substitute for an appeal or to apply for a substantially
new proposal or one that would have significant additional
impacts on surrounding properties.
3. An application to modify an approval shall be
directed to one or more discrete aspects of the approval, the
modification of which would not amount to approval of a
substantially new proposal or one that would have significant
additional impacts on surrounding properties. Any proposed
modification, as defined in this section, shall be reviewed
only under the criteria applicable to that particular aspect
of the proposal. Proposals that would modify an approval in
a scope greater than allowable as a modification shall be
treated as an application for a new proposal.
4. An application for a modification shall be handled
as a land use action."
Section 45. A new section, 22.36.050, "Transfer of Permit," is
added to Chapter 22.36 of the Deschutes County Code as follows:
"22.36.050 Transfer of Permit
1. A land use action permit shall be deemed to run with
the land and be transferable to applicant's successors in
interest.
2. The Planning Division may require that an applicant
record a notice of land use permit and conditions of approval
agreement in the Deschutes County Records. Such an agreement
shall set forth a description of the property, describe the
permit that has been issued and set forth the conditions of
approval. The Planning Director is authorized to sign the
notice and agreement on behalf of the County.
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014'7-0244
3. The terms of the approval agreement may be enforced
against the applicant and any successor in interest."
Section 46. A new section, 22.36.060, "Revocation of Land Use
Approvals," is added to Chapter 22.36 of the Deschutes County Code as
follows:
"22.36.060 Revocation of Approvals
A. Approvals shall be subject to revocation according to
standards set forth in the applicable zoning ordinances.
B. Revocations shall be processed as a declaratory ruling
under this title. Section 22.20.010 notwithstanding, a
public hearing shall be held in all revocation proceedings."
Section 47. A new section, 22.40.010, "Availability of
Declaratory Ruling," is added to Chapter 22.40 of the Deschutes County
Code as follows:
"22.40.010. Availability of Declaratory Ruling
A. Subject to the other provisions of this section,
there shall be available for the County's comprehensive
plans, zoning ordinances, the subdivision and partition
ordinance and this title a process for:
(1) Interpreting a provision of a comprehensive
plan or ordinance (and other documents
incorporated by reference) in which there is
doubt or a dispute as to its meaning or
application;
(2) Interpreting a provision or limitation in a
land use permit issued by the County or
quasi-judicial plan amendment or zone change
(except those quasi-judicial land use actions
involving a property that has since been
annexed into a City) in which there is doubt
or a dispute as to its meaning or
application;
(3) Determining whether an approval has been
initiated or considering the revocation of a
previously issued land use permit, quasi-
judicial plan amendment or zone change;
(4) Determining the validity and scope of a non-
conforming use; and
(5) Determination of other similar status
situations under a comprehensive plan, zoning
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014'7-0245
ordinance or land division ordinance that do
not constitute the approval or denial of an
application for a permit.
Such a determination or interpretation shall be known as a
"declaratory ruling" and shall be processed in accordance
with this chapter. In all cases, as part of making a
determination or interpretation the Planning Director (where
appropriate) or Hearings Body (where appropriate) shall have
the authority to declare the rights and obligations of
persons affected by the ruling.
B. A declaratory ruling shall be available only in
instances involving a fact -specific controversy and to
resolve and determine the particular rights and obligations
of particular parties to the controversy. Declaratory
proceedings shall not be used to grant an advisory opinion.
Declaratory proceedings shall not be used as a substitute for
seeking an amendment of general applicability to a
legislative enactment.
C. Declaratory rulings shall not be used as a
substitute for an appeal of a decision in a land use action
or for a modification of an approval. In the case of a
ruling on a land use action a declaratory ruling shall not be
available until six months after a decision in the land use
action is final.
D. The Planning Director may refuse to accept and the
Hearings Officer may deny an application for a declaratory
ruling if:
(1) The Planning Director or Hearings Officer
determines that the question presented can be
decided in conjunction with approving or
denying a pending land use action application
or if in the Planning Director or Hearings
Officer's judgment the requested
determination should be made as part of a
decision on an application for a quasi-
judicial plan amendment or zone change or a
land use permit not yet filed; or
(2) The Planning Director or Hearings Officer
determines that there is an enforcement case
pending in district or circuit court in which
the same issue necessarily will be decided as
to the applicant and the applicant failed to
file the request for a declaratory ruling
within two weeks after being cited or served
with a complaint.
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x%1' 147-0246
—0246
The Planning Director or Hearings Officer's determination to
not accept or deny an application under this section shall be
the County's final decision."
Section 48. A new section, 22.40.020, "Persons Who May Apply," is
added to Chapter 22.40 of the Deschutes County Code as follows:
"22.40.020 Persons Who May Apply
A. Section 22.08.010(2) notwithstanding, the following
persons may initiate a declaratory ruling under this Chapter:
(1) The owner of a property requesting a declaratory
ruling relating to the use of the owner's property;
(2) In cases where the request is to interpret a
previously issued quasi-judicial plan amendment, zone change
or land use permit, the holder of the permit; or
(3) In all cases arising under Section 22.40.010, the
Planning Director.
No other person shall be entitled to initiate a
declaratory ruling.
B. A request for a declaratory ruling shall be
initiated by filing an application with the Planning Division
and, except for applications initiated by the Planning
Director, shall be accompanied by such fees as have been set
by the Planning Division. Each application for a declaratory
ruling shall include the precise question on which a ruling
is sought. The application shall set forth whatever facts
are relevant and necessary for making the determination and
such other information as may be required by the Planning
Division."
Section 49. A new section, 22.40.030, "Procedures," is added to
Chapter 22.40 of the Deschutes County Code as follows:
"22.40.030 Procedures
Except as set forth in this chapter or in applicable
provisions of a zoning ordinance, the procedures for making
declaratory rulings shall be the same as set forth in this
title for land use actions. Where the Planning Division is
the applicant, the Planning Division shall bear the same
burden that applicants generally bear in pursuing a land use
action."
Section 50. A new section, 22.40.040, "Effect of Declaratory
Ruling," is added to Chapter 22.40 of the Deschutes County Code as
follows:
PAGE 33 - ORDINANCE NO. 95-045 (6/28/95)
0147-0,o41
"22.38.040 Effect of Declaratory Ruling
A. A declaratory ruling shall be conclusive on the subject
of the ruling and bind the parties thereto as to the
determination made.
B. Section 22.28.040 notwithstanding, and except as
specifically allowed therein, parties to a declaratory ruling
shall not be entitled to reapply for a declaratory ruling on
the same question.
C. Except when a declaratory ruling is made by the Board
of County Commissioners, the ruling shall not constitute a
policy of Deschutes County."
Section 51. A new section, 22.40.050, "Interpretation," is added
to Chapter 22.40 of the Deschutes County Code as follows:
"22.38.050 Interpretation
Interpretations made under this chapter shall not have the
effect of amending the interpreted language. Interpretation
shall be made only of language that is ambiguous either on
its face or in its application. Any interpretation of a
provision of the comprehensive plan or other land use
ordinance shall consider applicable provisions of the
comprehensive plan and the purpose and intent of the
ordinance as applied to the particular section in question. "
Section 52. Additions and Deletions. Additions to Title 22 are
set out in bold-faced type and deletions are bracketed.
Section 53. Applicability.
1. This ordinance applies as of this date in its entirety to all
future applications (other than appeals) covered by this ordinance, all
such applications not yet accepted by the Planning Division and to all
such accepted applications for which no notice of a hearing has been
mailed.
2. As to accepted applications for which a hearing notice has
been mailed, the existing timelines and rules for notice shall apply.
Otherwise the ordinance provisions contained herein shall apply to such
applications except that: Section 22.24.160 shall not apply where the
record in any hearing has been closed and the decision becomes final
without an appeal.
3. As to appeals, the provisions contained herein will apply to
all appeals for which a notice of appeal is timely filed after this
date. As to appeals where a notice of appeal has been timely filed by
PAGE 34 - ORDINANCE NO. 95-045 (6/28/95)
0147-0 48
the effective date, only those provisions regarding the conduct of the
hearing shall apply. The provisions granting the Board discretion to
choose the scope of the proceeding shall not apply.
4. As to remands, the provision contained herein shall apply to
all decisions remanded back to the County, either voluntarily or by
appellate review body order, after this date, including any decisions
currently pending on appeal.
5. The provisions set forth in Section 24 and Sections 47 through
51 of this ordinance shall not apply to any pending dispute to which
the County is now a party concerning whether a condition of approval
was satisfied by obtaining or failure to obtain permits from the
Building Safety Division within the life of the permit.
Section 54. Repeal of Ordinances as Affecting Existing
Liabilities. The repeal, express or implied, of any ordinance,
ordinance provision, or code section by this ordinance shall not
release or extinguish any duty, condition, penalty, forfeiture, or
liability incurred under such ordinance, unless a provision of this
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 violated the repealed ordinance.
Section 55. Codification. The Code Book Review Committee shall
have the authority to format the provisions contained herein in a
manner that will integrate them into the County Code consistent with
the Code Book Review Committee's 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, the Code Book
Review Committee may insert appropriate legislative history references.
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 56. Severability. The provisions of this ordinance are
severable. If any section, sentence, clause, or phrase of this
ordinance or any exhibit thereto is adjudged to be invalid by a court
of competent jurisdiction, that decision shall not affect the validity
of the remaining portions of this ordinance or any exhibit thereto.
PAGE 35 - ORDINANCE NO. 95-045 (6/28/95)
V147—VAO
the effective date, only those provisions regarding the conduct of the
hearing shall apply. The provisions granting the Board discretion to
choose the scope of the proceeding shall not apply.
4. As to remands, the provision contained herein shall apply to
all decisions remanded back to the County, either voluntarily or by
appellate review body order, after this date, including any decisions
currently pending on appeal.
5. Nothing in this ordinance shall affect any settlement of any
pending dispute to which the County is now a party concerning whether
a condition of approval was satisfied by obtaining or failure to obtain
permits from the Building Safety Division within the life of the land
use permit.
Section 54. Repeal of Ordinances as Affecting Existing
Liabilities. The repeal, express or implied, of any ordinance,
ordinance provision, or code section by this ordinance shall not
release or extinguish any duty, condition, penalty, forfeiture, or
liability incurred under such ordinance, unless a provision of this
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 violated the repealed ordinance.
Section 55. Codification. The Code Book Review Committee shall
have the authority to format the provisions contained herein in a
manner that will integrate them into the County Code consistent with
the Code Book Review Committee's 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, the Code Book
Review Committee may insert appropriate legislative history references.
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 56. Severability. The provisions of this ordinance are
severable. If any section, sentence, clause, or phrase of this
ordinance or any exhibit thereto is adjudged to be invalid by a court
of competent jurisdiction, that decision shall not affect the validity
of the remaining portions of this ordinance or any exhibit thereto.
PAGE 35 - ORDINANCE NO. 95-045 (6/28/95)
014'7---150
Section 56. 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 ,2P day of June, 1995.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
BARRY H. SLAWHTER, ghairman
v •v
L. NIPPER,
PAGE 36 - ORDINANCE NO. 95-045 (6/28/95)
c:omm.issµoner
issioner