1996-07638-Ordinance No. 96-020 Recorded 2/29/19969C-0 6"ns
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF
An Ordinance Codifying Title 22, Deschutes
County Developmental Procedures Ordinance,
of the Deschutes County Code and Declaring
an Emergency.
REVIEWED
1 J
LEGAL COUNSEL
DESCHUTES COUNTY, OREGON
ORDINANCE NO. 96-020 0149-1054
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as follows:
Section 1. Codification. Title 22, "Deschutes County
Developmental Procedures Ordinance," is hereby codified as set forth in
Exhibit "A," attached hereto and by this reference incorporated herein.
Section 2. Severability. The provisions of this ordinance are
severable. If any section, sentence, clause or phrase of this
ordinance 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.
Section 3. 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 Deschutes
County Form and Style Manual for Board Documents. Such codification
shall include the authority to make such 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 4. 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expressly provide, and such ordinance repealed shall be treated as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.
PAGE 1 - ORDINANCE NO. 96-020 (2/28/96) ����
0149-1055
Section 5. 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 28th day of February, 1996.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF/.DESCHUTES—COUNTY, OREGON
NANCY
Cha
`` "&r
U
BARRY,�hI SLAUGHTE , Commissioner
RO mm
RT L. NIPPER, C issioner
PAGE 2 - ORDINANCE NO. 96-020 (2/28/96)
0149-1056
Title 22. DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE
Chapter 22.04.
INTRODUCTION AND DEFINITIONS
Chapter 22.08.
GENERAL PROVISIONS
Chapter 22.12.
LEGISLATIVE PROCEDURES
Chapter 22.16.
DEVELOPMENT ACTION PROCEDURES
Chapter 22.20.
REVIEW OF LAND USE ACTION APPLICATIONS
Chapter 22.22.
DESCHUTES RIVER CORRIDOR DESIGN REVIEW
PROCEDURES
Chapter 22.24.
LAND USE ACTION HEARINGS
Chapter 22.28.
LAND USE ACTION DECISIONS
Chapter 22.30.
RECONSIDERATION
Chapter 22.32.
APPEALS
Chapter 22.34.
PROCEEDINGS ON REMAND
Chapter 22.36.
LIMITATIONS ON APPROVALS
Chapter 22.40.
DECLARATORY RULING
Chapter 22.04. INTRODUCTION AND
DEFINITIONS
22.04.010.
Introduction and
application.
22.04.020.
Definitions.
22.04.025.
Definition -De novo review.
22.04.030.
Definition -Development
action.
22.04.035.
Definition -Land use action.
22.04.040.
Definition -Land use permit.
22.04.045.
Definition -Legislative
changes.
22.04.050.
Definition -Quasi-judicial.
22.04.055.
Definition -Planning
director.
22.04.010. Introduction and
application.
A. This title is enacted to provide a
uniform procedure for the grant or denial
and processing of applications, approvals
and determinations by Planning Division of
the Deschutes County Community
Development Department under the
applicable County comprehensive plan, land
use regulations, subdivision and partition
ordinance, and other ordinances which by
their terms incorporate by reference the
procedures in this title. This title shall be
known as the Deschutes County
Development Procedures Ordinance.
B. The provisions of this title do not
apply to the issuance, suspension, or
revocation of any on-site sewage disposal,
building, electrical or plumbing permits
except as they relate to Planning Division
consideration of permitted uses. (Ord.
90-007 § 1, 1990)
22.04.020. Definitions.
The following definitions apply to this
title:
22.04.025. Definition -De novo review.
"De novo review" means a hearing by the
review body as if the action had not
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0149-105'7
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. (Ord. 95-045 § 1, 1995)
22.04.030. Definition -Development
action.
"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. Involves 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. Involves the application of standards
other than those referred to in subsection A,
such as the sign ordinance.
For illustrative purposes, the term
"development action" includes review of any
condominium plat, permit extension, road
name change, sidewalk permit, sign permit,
setback determination, and lot coverage
determination. (Ord. 95-045 § 1, 1995; Ord.
90-007 § 1, 1990)
22.04.035. Definition -Land use action.
"Land use action" includes any
consideration for approval of a quasi-judicial
plan amendment or zone change, any
consideration for approval of a land use
permit, and any consideration of a request
for a declaratory ruling (including resolution
of any procedural questions raised in any of
these actions). (Ord. 95-045 § 1, 1995; Ord.
90-007 § 1, 1990)
22.04.040. Definition -Land use permit.
"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
nonfarm dwellings, forest management
plans, partition, master plan, river setback
exception, riverfront design review, site plan,
site plan change of use, modification of
approval, solar access, solar shade
exception, subdivision, and subdivision
variance and variance. (Ord. 95-045 § 1,
1995; Ord. 90-007 § 1, 1990)
22.04.045. Definition -Legislative
changes.
"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 directed at a
small number of property owners. (Ord.
95-045 § 1, 1995; Ord. 90-007 § 1, 1990)
22.04.050. Definition -Quasi-judicial.
"Quasi-judicial" zone change or plan
amendment generally refers to a plan
amendment or zone change 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.) (Ord.
95-045 § 1, 1995; Ord. 90-007 § 1, 1990)
22.04.055. Definition -Planning
director.
"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. (Ord. 95-045 § 1, 1995)
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0149-1058
Chapter 22.08. GENERAL PROVISIONS
22.08.005.
Preapplication conference.
22.08.010.
Application requirements.
22.08.020.
Acceptance of application.
22.08.030.
Incomplete applications.
22.08.035.
False statements on
application and supporting
documents.
22.08.037.
Withdrawal of application.
22.08.040.
Applicable standards.
22.08.050.
Notice to Division of State
Lands.
22.08.060.
Conflicting procedures.
22.08.070.
Time computation.
22.08.080.
Mailing list.
22.08.005. Preapplication conference.
A pre -application conference is
encouraged for complex applications or for
applicants who are unfamiliar with the 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. (Ord. 95-045 § 2, 1995)
22.08.010. Application requirements.
A. 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.
B. Applications for development or land
use actions shall:
1. Be submitted by the property owner
or a person who has written authorization
from the property owner as defined herein to
make the application;
2. Be completed on a form prescribed
by the Planning Director;
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0149-1059
3. Include supporting information
required by the zoning ordinance and that
information necessary to demonstrate
compliance with applicable criteria; and
4. Be accompanied by the appropriate
filing fee, unless such fees are waived by the
Board of County Commissioners.
C. The following applications are not
subject to the ownership requirement set
forth in subsection B.1. of this section:
1. 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
2. Applications for development
proposals sited on lands owned by the state
or the federal government. (Ord. 95-045 § 3,
1995; Ord. 90-077 § 1, 1990)
22.08.020. Acceptance of application.
A. Development action and land use
action applications shall not be accepted
until the Planning Director has determined
that (1) the requirements of Section
22.08.010 have been met and (2) the
application is complete or the application is
deemed to be complete under state law.
B. An application is complete when in
the judgment of the Planning Director all
applicable issues have been adequately
addressed in the application.
C. Acceptance of an application as
complete shall not preclude a determination
at a later date that additional criteria need to
be addressed or a later determination that
additional information is needed to
adequately address applicable criteria. (Ord.
90-007 § 1, 1990)
22.08.030. Incomplete applications.
A. 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.
B. The applicant shall have thirty (30)
days from the date of notice from the
Planning Director to supply the missing
information.
C. If the applicant submits the missing
information within the 30 -day period
specified in subsection B of this section, the
application shall be deemed complete upon
receipt of the missing information.
D. If an applicant does not submit the
missing information within the 30 -day period
specked in subsection B of this section, the
application may be processed in
accordance with section 22.20.040 of this
title. (Ord. 95-045 § 4,1995; Ord. 90-007 § 1,
1990)
22.08.035. False statements on
application and supporting
documents.
If the applicant or the applicant's
representative or apparent representative
makes a misstatement of fact on the
application regarding property ownership,
authority to submit the application, acreage,
or any other fact material to the acceptance
or approval of the application, and such
misstatement is relied upon by the Planning
Director or Hearings Body in making a
decision whether to accept or approve the
application, the Planning Director may upon
notice to the applicant and subject to an
applicant's right to a hearing declare the
application void. (Ord. 91-013 § 1, 1991)
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. (Ord. 95-045 §
5, 1995)
22.08.040. Applicable standards.
With respect to the acknowledged
portions of the County's Comprehensive
22-4
0149, 1060
Plan, the standards and criteria applicable to
an application shall be the standards and
criteria applicable at the time the application
was first submitted if the application and
requested information, if any, are received
within one hundred eighty (180) days of the
time the application was first submitted.
(Ord. 90-007 § 1, 1990)
22.08.050. Notice to Division of State
Lands.
In addition to any notice required by this
Title, the County shall provide the notices
required by ORS 215.418 concerning
state -identified wetlands within 5 days of the
acceptance of an application as complete.
This section shall not become operative until
the Division of State Lands has provided to
the County a copy of applicable portions of
the Statewide Wetlands Inventory. (Ord.
90-007 § 1, 1990)
22.08.060. Conflicting procedures.
Except as set forth in this section, where
other provisions of the Deschutes County
Code or Deschutes County ordinances
specify procedures with greater opportunity
for public notice and comment, those
procedures shall apply. Notice procedures
for abbreviated Surface Mining Impact Area
review under Section 4.110(11)(C) of the
Deschutes County Zoning Ordinance shall
be as set forth in that section. (Ord. 90-007
§ 1, 1990)
22.08.070. Time computation.
Except when otherwise provided, the
time within which an act is required to be
done shall be computed by excluding the
first day and including the last day, unless
the last day is a Saturday, Sunday, legal
holiday or any day on which the county is
not open for business pursuant to a county
ordinance, in which case it shall also be
excluded. (Ord. 90-007 § 1, 1990)
22.08.080. Mailing list.
Any person may, upon payment of a fee
set by the Planning Director, request to
receive the Planning Division's weekly media
update packet, which may include a list of
accepted applications, Planning Commission
agendas and Hearings Body notices. (Ord.
90-007 § 1, 1990)
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0149-1061
Chapter 22.12. LEGISLATIVE
PROCEDURES
22.12.010.
Hearing required.
22.12.020.
Notice.
22.12.030.
Initiation of legislative
changes.
22.12.040.
Hearings body.
22.12.050.
Final decision.
22.12.060.
Corrections.
22.12.010. Hearing required.
No legislative change shall be adopted
without review by the Planning Commission
and a public hearing before the Board of
County Commissioners. Public hearings
before the Planning Commission shall be set
at the discretion of the Planning Director,
unless otherwise required by state law. (Ord.
90-007 § 1, 1990)
22.12.020. Notice.
A. Published Notice.
1. Notice of a legislative change shall
be published in a newspaper of general
circulation in the county at least ten (10)
days prior to each public hearing.
2. The notice shall state the time and
place of the hearing and contain a statement
describing the general subject matter of the
ordinance under consideration.
B. Posted Notice. Notice shall be
posted at the discretion of the Planning
Director and where necessary to comply
with ORS 203.045.
C. Individual Notice. Individual notice to
property owners, as defined in Section
22.08.010(A) of this title, shall be provided at
the discretion of the Planning Director,
except as required by ORS 215.508.
D. Media Notice. Copies of the notice
of hearing shall be transmitted to other
newspapers published in Deschutes County.
(Ord. 90-007 § 1, 1990)
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0149-1002
22.12.030. Initiation of legislative
changes.
A legislative change may be initiated by
application of individuals upon payment of
required fees as well as by the Board of
Commissioners or the Planning
Commission. (Ord. 90-007 § 1, 1990)
22.12.040. Hearings body.
A. The following shall serve as hearings
or review body for legislative changes in this
order:
1. The Planning Commission.
2. The Board of County Commissioners.
B. Any legislative change initiated by the
Board of County Commissioners shall be
reviewed by the Planning Commission prior
to action being taken by the Board of
Commissioners. (Ord. 90-007 § 1, 1990)
22.12.050. Final decision.
All legislative changes shall be adopted
by ordinance. (Ord. 90-007 § 1, 1990)
22.12.060. Corrections.
The County's comprehensive plans and
zoning ordinances, subdivision ordinance,
and development procedures ordinance may
be corrected by order of the Board of
County Commissioners to cure editorial and
clerical errors. (Ord. 92-021 § 1, 1992)
0149-1063
Chapter 22.16. DEVELOPMENT under which a development action is
ACTION PROCEDURES reviewed does not provide a means of
review or appeal of a decision, then review
or appeal shall be in accordance with
22.16.010. Review of development chapter 22.32 of this title. (Ord. 90-007 § 1,
action applications. 1990)
22.16.020. Decision.
22.16.030. Review of development
action.
22.16.010. Review of development
action applications.
A. A development action application
may be handled administratively by the
Planning Director without public notice or
hearing.
B. The Planning Director has the
discretion to determine that for the purposes
of this title a development action application
should be treated as if it were a land use
action application. (Ord. 90-007 § 1, 1990)
22.16.020. Decision.
A. Development action applications
acted upon without notice or hearing shall
be approved or denied by the Planning
Director or his designee within 30 days of
the application's acceptance by the Planning
Director.
B. Notice of a decision shall be
provided to the applicant or the applicant's
representative.
C. The decision may be appealed under
section 22.16.030 of this chapter.
D. A development action decision
becomes final when no further appeal under
this title is possible. (Ord. 90-007 § 1, 1990)
22.16.030. Review of development
action.
If the authority under which a
development action is undertaken provides
a means of review or appeal of a decision
independent from this title, the review or
appeal shall be in accordance with the
procedures independently provided and not
in accordance with this title. If the authority
22-7
Chapter 22.20. REVIEW OF LAND USE
ACTION
APPLICATIONS
22.20.005.
Effect of determinations
made outside of
established processes.
22.20.010.
Action on land use action
applications.
22.20.020.
Administrative land use
decisions with prior notice.
22.20.030.
Administrative decision
without prior notice.
22.20.040.
Final action in land use
actions.
22.20.050.
Temporary approval.
22.20.060.
Application and supporting
documents.
22.20.070.
Availability of
administrative decisions.
22.20.005. Effect of determinations
made outside of
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, orstatements
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. (Ord. 95-045 § 5A, 1995)
22.20.010. Action on land use action
applications.
A. Except for comprehensive plan
amendments and zone changes and other
instances where a hearing is required by
state law or by other ordinance provision,
the Planning Director may decide upon a
land use action application administratively
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0149-1064
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.
B. 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.
C. Zone change and plan amendment
applications shall be referred to a hearing
before the Hearings Body. (Ord. 95-045 § 6,
1995; Ord. 91-013 § 2, 1991; Ord. 90-007 §
1, 1990)
22.20.020. Administrative land use
decisions with prior notice.
A. 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 the items
specified in subsection 10.
B. 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.
C. 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.
D. Notice of the Planning Director's
decision and the appeal period shall be sent
to all parties and to all members of the
planning commission.
E. 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. (Ord. 95-045 § 7, 1995; Ord.
91-013 § 3, 1991; Ord. 90-007 § 1990)
22.20.030. Administrative decision
without prior notice.
The procedures for administrative
decisions without prior notice shall be the
same as those set forth in Section 22.20.020
of this chapter, except that (1) no prior
notice shall be given and (2) the notice of
decision shall contain the applicable
information required by Section 22.24.040 of
this title. (Ord. 90-007 § 1, 1990)
22.20.040. Final action in land use
actions.
A. Except as otherwise provided, the
County 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.
B. 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.
C. 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.
D. Applications for the following
determinations or approvals are exempt from
the 120 -day time limit established by this
section:
1. Quasi-judicial comprehensive plan
amendments;
2. Revocation proceedings;
3. Verification of nonconforming uses;
4. Lot of record determinations;
5. Initiation of approval determinations;
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0149-1065
and
6. Consideration of remanded
applications. (Ord. 95-045 § 8, 1995;
Ord. 90-007 § 1, 1990)
22.20.050. Temporary approval.
A. 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.
B. Subject to subsection (E) of this
section, the Board of County Commissioners
or the Planning Director may authorize a
temporary land use approval, provided:
1. An application for the land use
approval has been accepted as complete.
2. A fee for review of the temporary
approval has been paid.
3. The applicant has demonstrated
good and sufficient cause for such a
temporary approval.
4. It appears that the application will be
given final approval in substantially the form
submitted by the applicant.
5. 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.
6. Applicant agrees in writing to restore
the site to its original condition if the
application for the land use approval is
denied.
C. 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
foreseen. "Good cause" does not include an
applicant's request for a temporary permit
for reasons of convenience only.
D. A temporary use approval shall not
be granted for variances, zone changes or
plan amendments.
E. The scope of the temporary approval
shall be limited to allow the applicant to
proceed only with that portion of the
proposed use justifying the applicant's claim
of hardship or emergency.
F. A temporary use approval shall
expire as follows:
1. Six months from the date of approval,
if no decision has been reached on the
underlying application.
2. On the date the appeal period runs
on the decision on the underlying
application.
3. On the date the all appeals of the
decision on the underlying application are
decided and final.
F. A decision to approve a temporary
use application is not appealable.
(Ord. 95-045 § 9, 1995; Ord. 91-013 § 4-6,
1991; 90-007 § 1, 1990)
22.20.060. Application and supporting
documents.
Except as provided for in sections
22.24.130, "Continuances," 22.24.160,
"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. (Ord. 954)45
§ 10, 1995; Ord. 90-007 § 1, 1990)
22.20.070. Availability of
administrative decisions.
All administrative decisions for the
preceding month shall be made available for
public review at a location to be designated
by the Planning Director. In addition, the
Planning Director shall maintain for public
inspection a registry of administrative
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0149-1066
decisions for the previous 12 -month period.
(Ord. 90-007 § 1, 1990)
Chapter 22.22. DESCHUTES RIVER
CORRIDOR DESIGN
REVIEW PROCEDURES
22.22.010. Deschutes river corridor
design review procedures.
22.22.010. Deschutes river corridor
design review procedures.
For all property subject to the Deschutes
River Design Review process under Title 19
of the Deschutes County Code, the following
procedures shall apply:
A. There shall be two types of review for
Design Review depending on the level and
type of activity proposed.
1. Type I review shall be performed by
the Planning Director for the following
activities:
a. Minor alterations of 10 percent or
less to an existing building facade facing
river.
b. Changes in window or door
placement visible from the river.
c. Changes in parking locations.
d. Fill or removal activity within 10 feet
of the ordinary high water mark of the
Deschutes River.
The Planning Director, at his/her
discretion, may refer a Type I application to
the Bend Urban Area Planning Commission
for approval. The Planning Commission's
consideration shall be subject to Type II
procedures.
2. Notwithstanding Section
22.24.020(A), Type II review shall be
performed by the Bend Urban Area Planning
Commission for the following activities:
a. Appeal of a Type I decision.
b. New construction and new
development.
c. Master Plan approval for large scale
projects.
d. Variances to application under
Section 19.76.090 of Title 19.
e. Fill and removal activities associated
with new development or for creation of fire
22-11
0149-106'
breaks in association with appropriate fire
prevention authorities.
B. Type I Procedures: The applicant
shall request approval for a Type I
procedure in writing to the Planning Division.
The request shalt include a site plan and a
description of work and materials that will be
used. The Planning Director shall review the
request and respond to the applicant in
writing of the decision and any conditions
placed on the decision.
C. Type II Procedures: Type II review
shall be conducted by the Bend Urban Area
Planning Commission as follows:
1. Notice for Type II applications shall
be as set forth in Section 22.24.030, Notice
of Hearing or Administrative Action, and
Section 22.24.040, Contents of Notice. The
Commission may hold a public hearing for
any Type 11 applications. The hearings
procedure shall be as set forth in Chapter
22.24, Land Use Action Hearings.
2. Appeals of the decision of the Bend
Urban Area Planning Commission shall be
to the Board of County Commissioners and
the process shall, be as set forth in Chapter
22.32, Appeals.
D. Where the procedures in this section
conflict with other provisions of this title with
respect to Deschutes River Corridor Design
Review, the provisions of this title shall
prevail. (Ord. 94-028 § 1, 1994)
Chapter 22.24. LAND USE ACTION
HEARINGS
22.24.010.
Filing of staff report for
hearing.
22.24.020.
Hearings body.
22.24.030.
Notice of hearing or
administrative action.
22.24.040.
Contents of notice.
22.24.050.
Burden of proof.
22.24.060.
Nature of evidence.
22.24.070.
Limitation on oral
presentations.
22.24.080.
Standing.
22.24.090.
Record.
22.24.100.
Disclosure of ex parte
contacts.
22.24.105.
Disclosure of personal
knowledge.
22.24.110.
Challenge for bias,
prejudgment of personal
interest.
22.24.120.
Hearings procedure.
22.24.125.
Setting the Hearing
22.24.130.
Continuances.
22.24.140.
Close of the record.
22.24.150.
Objections to jurisdiction,
procedure, notice or
qualifications.
22.24.160.
Reopening the record.
22.24.010. Filing of staff report for
hearing.
A. At the time an application that in the
judgment of the Planning Director requires a
hearing is complete, a hearing date shall be
set.
B. A staff report shall be completed
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.
C. A copy of the staff report shall be
mailed to the applicant, shall be made
0149-1068
available to such other persons who request
a copy and shall be filed with the Hearings
Body.
D. Oral or written modifications and
additions to the staff report shall be allowed
prior to or at the hearing. (Ord. 954)45 § 11,
1995; Ord. 90-007 § 1, 1990)
22.24.020. Hearings body.
A. The following shall serve as the
Hearings Body in this order:
1. Hearings Officer.
2. 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.
3. Board of County Commissioners.
B. Where the Hearings Officer 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. (Ord.
95-045 § 11 A, 1995; Ord. 90-007 § 1, 1990)
22.24.030. Notice of hearing or
administrative action.
A. Individual Mailed Notice.
1. Except as otherwise provided for
herein, notice of a land use application shall
be mailed at least 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:
a. The applicant.
b. Owners of record of property as
shown on the most recent property tax
assessment roll of property located:
1. Within one hundred (100) feet of the
property that is the subject of the notice
where any part of the subject property is
22-12
within an urban growth boundary;
2. 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
3. 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.
c. 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.
d. The owner of a public use airport if
the airport is located within 10,000 feet of
the subject property.
e. The tenants of a mobile home park
when the application is for the rezoning of
any part or all of a mobile home park.
f. The planning commission.
g. Any neighborhood or community
organization formally recognized by the
board under criteria established by the
board whose boundaries include the site.
2. Notwithstanding subsection A.1.a.1.
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.
3. 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.
B. Posted Notice.
1. 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 continuous days
prior to any hearing or date set for receipt of
comments. Such notice shall, where
practicable, be visible from any adjacent
public way.
2. Posted notice of an application for a
utility facility line approval shall be by
posting the proposed route at intervals of
0149-1009
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.
3. Notice of a solar access application
shall be posted as near as practicable to
each lot identified in the application.
4. 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 shall be deemed to have
suspended the running the 120 -day time
limit for the period of the continuance.
C. 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
twenty (20) days prior to the hearing.
D. Media Notice. Copies of the notice
of hearing shall be transmitted to other
newspapers published in Deschutes County.
(Ord. 95-071 § 1, 1995; Ord. 95-045 § 12,
1995; Ord. 91-013 § 7-8,1991; Ord. 90-007
§ 1, 1990)
22.24.040. Contents of notice.
A. All mailed notices of a land use
action hearing or a land use action
application subject to administrative decision
shall:
1. Describe the nature of the applicant's
request and the nature of the proposed uses
that could be authorized.
2. List the criteria from the zoning
ordinance and the plan applicable to the
application at issue.
3. Set forth the street address or easily
understood geographical reference to the
subject property.
4. State the date, time and location of
any hearing or date by which written
comments must be received.
5. State that any person may comment
in writing and include a general explanation
of the requirements for submission of
22-13
testimony and the procedures for conduct of
testimony.
6. If a hearing is to be held, state that
any interested person may appear.
7. 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.
8. State the name of a county
representative to contact and the telephone
number where additional information may be
obtained.
9. 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.
10. State that a copy of the staff
report will be available for inspection at no
cost at least seven (7) days prior to the
hearing and will be provided at reasonable
cost.
11. 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.
B. All mailed and published notices for
hearings shall contain a statement that
recipients may request a copy of the staff
report.
C. 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.
(Ord. 95-045 § 13, 1995; Ord. 90-007 § 1,
1990)
0149-10"70
22.24.050. Burden of proof.
Throughout all local land use
proceedings, the burden of proof rests on
the applicant. (Ord. 95-045 § 14, 1995; Ord.
90-007 § 1, 1990)
22.24.060. Nature of evidence.
All relevant evidence shall be received.
(Ord. 90-007 § 1, 1990)
22.24.070. Limitation on oral
presentations.
The Hearings Body may set reasonable
time limits on oral testimony. (Ord. 90-007 §
1, 1990)
22.24.080. Standing.
A. Any interested person may appear
and be heard in a land use action hearing
(including appeals).
B. Any person appearing on the record
at a hearing (including appeals) or
presenting written evidence in conjunction
with an administrative action or hearing shall
have standing and shall be a party.
C. 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. (Ord.
954)45 § 15, 1995; Ord. 90-007 § 1, 1990)
22.24.090. Record.
A. A magnetic tape record of the
hearing shall be made.
B. All exhibits presented shall be
marked to show the identity of the person
offering the exhibit.
C. Exhibits shall be numbered in the
order presented in two categories,
proponents and opponents, and shall be
dated.
D. When exhibits are introduced, the
proponent or opponent exhibit number or
letter shall be read into the record. (Ord.
90-007 § 1, 1990)
22-14
22.24.100. Disclosure of ex parte
contacts.
Prior to making a decision, the Hearings
Body or any member thereof shall not
communicate directly or indirectly with any
party or his representative in connection with
any issue involved in a pending hearing
except upon notice and opportunity for all
parties to participate. Should such
communication - whether written or oral -
occur, the Hearings Body member shall:
A. Publicly announce for the record the
substance of such communication; and
B. Announce the parties' right to rebut
the substance of the ex parte
communication during the hearing.
Communication between County staff
and the Hearings Body shall not be
considered to be an ex parte contact. (Ord.
90-007 § 1, 1990)
22.24.105. Disclosure of personal
knowledge.
A. 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.
B. 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. (Ord. 95-045 § 16,
1995)
22.24.110. Challenge for bias,
prejudgment of personal
interest.
Prior to or at the commencement of a
hearing, any party may challenge the
qualification of the Hearings Body, or a
member thereof, for bias, prejudgment or
personal interest. The challenge shall be
0149-10'1
made on the record and be documented
with specific reasons supported by facts.
Should qualifications be challenged, the
Hearings Body or the member shall
disqualify itself, withdraw or make a
statement on the record of its capacity to
hear. A Planning Commission member with
a conflict identified under ORS 215.035 must
disqualify him or herself after disclosure.
(Ord. 90-007 § 1, 1990)
22.24.120. Hearings procedure.
A hearing shall be conducted as follows:
A. The Hearings Body shall explain the
purpose of the hearing and announce the
order of proceedings, including reasonable
time limits on presentations by parties.
B. A statement by the Hearings Body
regarding pre -hearing contacts, bias,
prejudice or personal interest shall be made.
C. Any facts received, noticed or
recognized outside of the hearing shall be
stated for the record.
D. Challenges to the Hearings Body's
qualifications to hear the matter shall be
stated and challenges entertained.
E. The Hearings Body shall list
applicable substantive criteria, explain that
testimony and evidence must be directed
toward that criteria or other criteria in the
comprehensive plan or land use regulations
that the person believes to apply to the
decision, and that failure to ad dress an
issue with sufficient specificity to afford the
decision -maker and the parties an
opportunity to respond precludes appeal to
LUBA based on that issue.
F. Order of presentation:
1. Open the hearing.
2. Staff report.
3. Proponents' presentation.
4. Opponents' presentation.
5. Proponents' rebuttal.
6. Opponents' rebuttal may be allowed
at the Hearings Body's discretion.
7. Staff comment.
8. Questions from or to the chair may
be entertained at any time at the Hearings
22-15
Body's discretion.
9. Close the hearing.
G. The record shall be available for
public review at the hearing.
H. A form of preliminary statement
incorporating the provisions of this section is
set forth as Appendix A to this title for use
by the Board of County Commissioners.
(Ord. 90-007 § 1, 1990)
22.24.125. Setting the Hearing
A. 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.
B. If an applicant requests that a
hearing date be 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. (Ord. 95-045
§ 17, 1995)
22.24.130. Continuances.
A. Except as set forth in this section,
continuances 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.
B. Any party shall be entitled, upon
request at the scheduled hearing, to a
continuance of the hearing if documents or
evidence in addition to those supplied with
the application are provided in support of
the application. Such a continuance shall
not be counted against the 120 -day time
limit set forth in Section 22.20.040 of this
title.
C. 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 seven
0149-10;2
(7) days in advance of the hearing date is
changed by identification of additional
applicable criteria.
D. 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
any party wishing to testify at that time.
E. The Hearings Body shall, where
possible, set forth a time certain for
resumption of the hearing. (Ord. 95-045 §
18, 1995; Ord. 91-013 § 9, 1991; Ord.
90-007 § 1, 1990)
22.24.140. Close of the record.
A. 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.
B. Unless a continuance has been
granted, any 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. (Ord.
95-045 § 19, 1995; Ord. 90-007 § 1, 1990)
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.
(Ord. 95-045 § 20, 1995; Ord. 90-007 § 1,
1990)
22-16
22.24.160. Reopening the record.
A. When Reopening of Record Required
1. The Hearings Body shall reopen the
record in the following instances:
a. 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.
b. 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.
2. A request to reopen the record under
subsection A.1.(b) 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
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.
3. 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.
B. Reopening Record as a Matter of
Discretion
Except as required under subsection A,
0149-1073
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.
C. 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.
(Ord. 95-045 § 21, 1995)
22-17
Chapter 22.28. LAND USE ACTION
DECISIONS
22.28.010.
Decision.
22.28.020.
Notice of decision.
22.28.030.
Decision on plan
amendments and zone
changes.
22.28.040.
Reapplication limited.
22.28.050.
Review by planning
commission and board.
22.28.060.
Proposed order.
22.28.070.
Compliance with ORS
215.418.
22.28.080.
Correction of clerical
errors.
22.28.010. Decision.
A. 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.
B. Any portion of an application not
addressed in a Hearings Body's decision
shall be deemed to have been denied.
C. 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
mailed and the appeal period to the next
higher Hearings Body within the County has
run.
D. 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. (Ord. 954)45 § 22, 1995;
Ord. 90-007 § 1, 1990)
22.28.020. Notice of decision.
A Hearings Body's decision shall be in
0149-10'74
writing and mailed to all parties; however,
one person may be designated by the
Hearings Body to be the recipient of the
decision for a group, organization, group of
petitioners or similar collection of individual
participants. (Ord. 90-007 § 1, 1990)
22.28.030. Decision on plan
amendments and zone
changes.
A. 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.
B. 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.
C. 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 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.
D. Notwithstanding subsection C of this
section, when a plan amendment subject to
a subsection C 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 C, any party
22.18
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. (Ord. 95-045 § 23, 1995; Ord.
90-007 § 1, 1990)
22.28.040. Reapplication limited.
A. 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.
B. Notwithstanding subsection A 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 A only if the
applicant presents new factual evidence not
submitted with the prior application. (Ord.
95-045 § 24, 1995; Ord. 90-007 § 1, 1990)
22.28.050. Review by planning
commission and board.
A. 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.
B. 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.
C. 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. (Ord.
95-045 § 25, 1995; Ord. 90-007 § 1, 1990)
0149-10"75
22.28.060. Proposed order.
The Hearings Body may request that any
prevailing party draft a set of proposed
findings and conclusions. (Ord. 95-045 § 26,
1995; Ord. 90-007 § 1, 1990)
22.28.070. Compliance with ORS
215.418.
A. Final approval of any activity referred
to in ORS 215.418(1) regarding
state -identified wetlands must include the
notice statements required by ORS
215.418(3).
B. Individual notice to the applicant and
the owner of record consistent with ORS
215.418(5) shall be provided, unless notice
in the written decision notice satisfies that
requirement. C. Failure of the County to
provide notice as required in this section
shall not invalidate County approval.
D. This section shall not become
operative until the Division of State Lands
makes available to the County a copy of the
applicable portion of the Statewide Wetland
Inventory. (Ord. 90-007 § 1, 1990)
22.28.080. Correction of clerical
errors.
A. Upon its own motion or the motion of
a party, the Board of County Commissioners
may, subject to any applicable public notice
and hearing requirements, enact an
ordinance correcting clerical or
typographical errors in plan amendment or
zone change ordinances and any maps
appended thereto implementing decisions of
the Hearings Body. Such changes shall be
entered only if the board is able to make a
finding that the decision of the Hearings
Body, including appendices, is not
accurately reflected in the implementing
ordinances.
B. Any corrections under this section
shall be made only within 6 months of the
enactment of the ordinance to be corrected.
(Ord. 91-049 § 1, 1991)
22-19
Chapter 22.30. RECONSIDERATION
22.30.010. Reconsideration.
22.30.020. Procedure.
22.30.030. Limitation on
reconsideration.
22.30.010. Reconsideration.
A. 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.
B. Grounds for reconsideration are
limited to the following instances where an
alleged error substantially affects the rights
of the applicant:
1. 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;
2. Correction of errors that are technical
or clerical in nature. (Ord. 95-045 §§ 27 and
28, 1995)
22.30.020. Procedure.
A. 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.
B. 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.
0149,10;6
C. The Hearings Officer shall modify the
decision upon a determination that the
request has merit and the alleged 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.
D. Filing a request for a reconsideration
shall not be a precondition for appealing a
decision.
E. 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. (Ord. 95-045 §§ 27 and 29,
1995)
22.30.030. Limitation on
reconsideration.
No decision shall be reconsidered more
than once. (Ord. 95-045 §§ 27 and 30, 1995)
22-20
Chapter 22.32. APPEALS
22.32.010.
Who may appeal.
22.32.015.
Filing appeals.
22.32.020.
Notice of appeal.
22.32.022.
Determination of
jurisdictional defects.
22.32.025.
Consolidation of multiple
appeals.
22.32.030.
Hearing on appeal.
22.32.035.
Declining review.
22.32.040.
Land use action hearings
on appeal from the
hearings officer.
22.32.050.
Development action
appeals.
22.32.060.
Rehearing.
22.32.070.
Remands.
22.32.080.
Withdrawal of an appeal.
22.32.010. Who may appeal.
A. The following may file an appeal:
1. A party;
2. In the case of an appeal of an
administrative decision without prior notice,
a person entitled to notice, a person
adversely affected or aggrieved by the
administrative decision, or any other person
who has filed comments on the application
with the Planning Division; and
3. A person 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
permit shall be considered a person to
whom notice was to have been mailed; and
4. A city, concerning an application
within the urban area for that city, whether or
not the city achieved patty status during the
proceeding.
B. A person to whom notice is mailed is
deemed notified even if notice is not
received. (Ord. 95-071 § 2, 1995; Ord.
95-045 § 31, 1995; Ord. 90-007 § 1, 1990)
22.32.015. Filing appeals.
A. To file an appeal, an appellant must
22-21
0149-1077
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.
B. Unless a request for reconsideration
has been filed, 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.
C. The transcript of the hearing may be
submitted to the Community Development
Department within 15 days after the date
notice of appeal is filed.
D. 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. (Ord. 95-045 § 32, 1995; Ord.
94-042 § 2, 1994; Ord. 91-013 §11, 1991;
Ord 90-007 §1 1990)
22.32.020. Notice of appeal.
Every notice of appeal shall include:
A. 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.
B. 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.
C. If the Board of County
Commissioners is the Hearings Body and
de novo review is desired, a request for de
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. (Ord. 95-045 § 35,
1995; Ord. 94-042 § 3, 1994; Ord. 91-013 §
11, 1991; Ord. 90-007 § 1, 1990)
22.32.022. Determination of
jurisdictional defects.
A. 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
transcript shall be excused only if the
original tape of the Hearing is defective.
B. Determination of jurisdictional defects
in an appeal shall be made by the Hearings
Body to which an appeal has been made.
(Ord. 95-045 § 33, 1995)
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.
(Ord. 95-045 § 34, 1995)
22.32.030. Hearing on appeal.
A. The appellant and all other parties to
the decision below shall be mailed notice of
the hearing on appeal at least ten (10) days
prior to any hearing or consideration on the
record.
B. 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
0149-1078
subsection D of this section that it should
hear the appeal de novo.
C. 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.
D. Notwithstanding subsection B of this
section, the board may hear an appeal de
novo if the board determines that:
1. 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
2. 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 3. In its sole judgment a de novo
hearing is necessary to fully and properly
evaluate a significant policy issue relevant to
the proposed land use action.
E. Except as otherwise provided in this
chapter, the appeal shall be heard as
provided in Chapter 22.24, 01_and Use Action
Hearing." Where additional oral testimony is
allowed, the applicant shall proceed first in
all appeals.
F. The order of Hearings Body shall be
as provided in Section 22.24.020 of this title.
G. The record of the proceeding from
which appeal is taken shall be a part of the
record on appeal.
H. The record for a review on the record
shall consist of the following:
1. A written transcript of any prior
hearing;
2. All written and graphic materials that
were part of the record below;
3. The Hearings Body decision
appealed from;
4. Written arguments, based upon the
record developed below, submitted by any
party to the decision; and
5. A staff report.
22-22
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. (Ord. 95-045 § 36, 1995; Ord. 90-007
§ 1, 1990)
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:
A. 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.
B. If the Board of County
Commissioners decides that 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.
C. The decision of the Board of County
Commissioners not to hear a land use
action appeal is entirely discretionary.
D. In determining whether to hear an
appeal, the Board of County Commissioners
may consider:
1. The record developed before the
lower Hearings Body;
2. The notice of appeal; and
3. Recommendations of staff. (Ord.
95-045 § 37,1995; Ord. 94-042 § 1, 1994)
22.32.040. Land use action hearings
on appeal from the
hearings officer.
Redundant testimony shall not be
allowed. (Ord. 90-007 § 1, 1990)
0149x-1079
22.32.050. Development action
appeals.
Notice of the hearing date set for appeal
shall be sent only to the applicant. Only the
applicant, his or her representatives, and his
or her witnesses shall be entitled to
participate. Continuances shall be at the
discretion of the Hearings Body, and the
record shall close at the end of the hearing.
(Ord. 90-007 § 1, 1990)
22.32.060. Rehearing.
Rehearings shall not be allowed. (Ord.
90-007 § 1, 1990)
22.32.070. Remands.
Applications shall not be remanded to a
lower level Hearings Body after appeal.
(Ord. 90-007 § 1, 1990)
22.32.080. 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 nonfiling parties have relied
upon the appeal filed by the appellant. (Ord.
95-045 § 38, 1995)
22-23
Chapter 22.34. PROCEEDINGS ON
REMAND
22.34.010.
Purpose.
22.34.020.
Hearings body.
22.34.030.
Notice and hearings
requirements.
22.34.040.
Scope of proceeding.
22.34.050.
Effect of reversal.
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. (Ord. 95-045 §§ 39 and 40,
1995)
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.
(Ord. 95-045 §§ 39 and 41, 1995)
22.34.030. Notice and hearings
requirements.
A. 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.
B. 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
0149-1080
proceedings under state law. (Ord. 95-045
§§ 39 and 41 A)
22.34.040. Scope of proceeding.
A. 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.
B. 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.
C. If additional testimony is required to
comply with the remand, parties may raise
new, unresolved issues that 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. (Ord. 95-045 §§ 39 and 42,
1995)
22.34.050. 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. (Ord.
95-045 §§ 39 and 43, 1995)
22-24
Chapter 22.36. LIMITATIONS ON
APPROVALS
22.36.010.
Expiration of approval.
22.36.020.
Initiation of use.
22.36.025.
Transition rules -
applicability.
22.36.030.
Extensions to avoid
environmental or health
hazards.
22.36.040.
Modification of approval.
22.36.050.
Transfer of permit.
22.36.060.
Revocation of Approvals.
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
nonconforming 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
0149-1081
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;
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
22-25
criteria by the Planning Director or his
designees where applicable criteria for the
decision have not changed.
D. Procedures
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 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 shall be tolled upon filing of
an appeal to LUBA until all appeals are
resolved.
(Ord. 95-045 § 43A, 1995; Ord. 95-018 § 1,
1995; Ord. 90-007 § 1, 1990)
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
money spent to demonstrate a good faith
0149-1082
effort to complete the development. (Ord.
95-018 § 2, 1995; Ord. 90-007 § 1, 1990)
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" 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 existing 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 and forest
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.
(Ord. 95-071 § 3, 1995; Ord. 95-018 § 2(A),
1995)
22.36.030. Extensions to avoid
environmental or health
hazards.
A. In addition to extensions granted
pursuant to Section 22.36.010(C) and
notwithstanding any other provision of the
Deschutes County Code, a one-time
extension may be granted to a tentative plat
approval and any associated land use
permits regarding the time for final plat
approval where conditions of the approval,
22-26
or extensions thereof, require or can be read
to require approvals from other agencies for
sewer or water systems and (1) the
applicant can show that without such
extension or extensions, a health or
environmental hazard or risk thereof would
continue to exist, be exacerbated or likely
would be created and (2) the applicant
submits a time frame and plan for meeting
the outstanding conditions with the
concurrence of a homeowner's association
having an ownership interest in project lands
and such concurrence is demonstrated in
the application.
B. Such an extension shall be
administrative, in writing, and not subject to
appeal and shall, subject to the termination
provisions of Subsection C of this section,
be granted for a time period not to exceed
one year.
C. In lieu of submittal of the time frame
and plan and concurrence of the
homeowner's association with the
application, that requirement of Subsection
A of this Section may be satisfied by
conditioning approval of the extension to
require establishment of the agreed4o time
frame and plan within the first 60 days of the
extension period, which time line and plan
shall thereupon be deemed to be a
condition of the extension approval.
D. An extension under this section shall
be conditioned upon adherence to the time
lines and plan proposed in the extension
application or as agreed to pursuant to
Subsection C of this section.
E. Failure to demonstrate compliance
with any extension condition shall, after
notice and hearing under this Title, result in
termination of the extension granted under
this section. (Ord 94-059 § 1, 1994)
22.36.040. Modification of approval.
A. 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.
B. Unless otherwise specified in a
0149-1083
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.
C. 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.
D. An application for a modification shall
be handled as a land use action. (Ord.
95-045 § 44, 1995)
22.36.050. Transfer of permit.
A. A land use action permit shall be
deemed to run with the land and be
transferable to applicant's successors in
interest.
B. 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.
C. The terms of the approval agreement
may be enforced against the applicant and
any successor in interest. (Ord. 95-045 § 45,
1995)
22-27
22.36.060. Revocation of Approvals. 0149-1084
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.
(Ord. 95-045 § 46, 1995)
22-28
Chapter 22.40. DECLARATORY
RULING
22.40.010.
Availability of declaratory
ruling.
22.40.020.
Persons who may apply.
22.40.030.
Procedures.
22.40.040.
Effect of declaratory ruling.
22.40.050.
Interpretation.
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 nonconforming use; and
5. Determination of other similar status
situations under a comprehensive plan,
zoning 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
0149-1085
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.
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. (Ord. 95-045 § 47,
22-29
1995)
22.40.020. Persons who may apply.
A. Section 22.08.010(6) 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. (Ord. 95-045 § 48,
1995)
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. (Ord. 95-045 §
49, 1995)
22.40.040. 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
0149-los6
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.
(Ord. 95-045 § 50, 1995)
22.40.050. 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.
(Ord. 95-045 § 51, 1995)
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APPENDIXA. PRELIMINARY STATEMENT IN
LAND YWAIMERFUM11lIF88RD
Introduction
This is a hearing on the appeal of the
Deschutes County Hearings Officer's
findings and recommendations on (insert
application type and number).
Applicant requested (set forth what the
applications are and what is being
requested.)
These applications were previously
considered by the Hearings Officer after a
public hearing held on (insert date).
Evidence and testimony were received at
that hearing. The Hearings Officer
(denied/approved) the applicant's requests.
Burden of Proof and Applicable Criteria
The applicant has the burden of proving that
he/she is entitled to the land use approval
sought. The standards applicable to the
application(s) before us are as follows: (list
applicable criteria)
Hearings Procedure
The procedures applicable to this hearing
provide that the Board of County
Commissioners will hear testimony, receive
evidence and consider the testimony,
evidence and information submitted into the
record on appeal as well as that evidence
constituting the record before the Hearings
Officer. The record as developed to this
point is available for public review at this
hearing.
Testimony and evidence at this hearing must
be directed toward the criteria set forth in
the notice of this hearing and listed in this
statement. Testimony may be directed to
any other criteria in the comprehensive land
use plan of the County or land use
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0149-195'7
regulations which any person believes apply
to this decision.
Failure on the part of any person to raise an
issue with sufficient specificity to afford the
Board of County Commissioners and parties
to this proceeding an opportunity to respond
to the issue precludes appeal to the Land
Use Board of Appeals on that issue.
Order of Presentation
The hearing will be conducted in the
following order. The staff will give a report
of the prior proceedings and the issues
raised by the applications on appeal. The
applicant will then have an opportunity to
make a presentation and offer testimony and
evidence. Opponents will then be given a
chance to make a presentation. After both
proponents and opponents have made a
presentation, the proponents will be allowed
to make a rebuttal presentation. At the
board's discretion, opponents may be
recognized for a rebuttal presentation. At
the conclusion of this hearing, the staff will
be afforded an opportunity to make any
closing comments. The board may limit the
time period for presentations.
Questions to and from the chair may be
entertained at any time at the board's
discretion. Cross-examination of witnesses
will not be allowed. However, if any person
wishes a question be asked of any person
during that person's presentation, please
direct such question to the chair after being
recognized. The Chair is free to decide
whether or not to ask such questions of the
witness.
Pre -hearing Contacts
I will now direct a question to the other
members of the Board of County
Commissioners. If any member of the
board, including myself, has had any
pre -hearing contacts, now is the time to
state the substances of those pre -hearing
contacts so that all persons present at this
hearing can be fully advised of the nature
and context of those contacts and with
whom contact was made. Are there any
contacts that need be disclosed?
At this time, do any members of the board
need to set forth the substance of any ex
parte observations or facts of which this
body should take notice concerning this
appy?
Any person in the audience has the right
during the hearings process to rebut the
substance of any communication or
observation that has been placed in the
record.
Challenges for Bias, Prejudgment, or
Personal Interest
Any party prior to the commencement of the
hearing may challenge the qualifications of
the Board of County Commissioners or any
member thereof of bias, prejudgment or
personal interest. This challenge must be
documented with specific reasons supported
by facts.
I will accept challenges now.
Should any board member be challenged,
the member may disqualify himself or
herself, withdraw from the hearing or make
a statement on the record of their capacity
to hear the appeal.
(Hearing no challenges, I shall proceed.)
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0149-1088