1996-47616-Ordinance No. 96-071 Recorded 12/30/1996sF"�iisis
a
IITMISEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTYt OREGON
�n
An Ordinance Amending Title 22, Development
Procedures Ordinance of the Deschutes * ��
County Code, to Address the Requirements
of the 120 -day Time Limit, Declaring an
Emergency and Setting an Effective Date. *�
ORDINANCE NO. 96-071
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as follows:
Section 1. Amendments to Title 22.
A. Chapter 22.04 is amended to add new definitions, as Sections
22.04.022, "Argument," 22.04.32, "Evidence," and 22.04.048
"Modification of application," as set forth in Exhibit A, and by this
reference incorporated herein, with new language set out in red -line
and language to be deleted in strike -out.
B. Chapter 22.08 is amended to add new Section 22.08.090,
"Submissions of documents," and to amend Section 22.08.010,
"Application requirements," as set forth in Exhibit B, attached hereto
and by this reference incorporated herein, with new language set out in
red -line and language to be deleted in strike -out.
C. Chapter 22.20 is amended to change Sections 22.20.010,
"Action on land use action applications," 22.20.20, "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," to delete Section 22.20.060,
"Application and supporting documents," and to add new Sections
22.20.052, "Supplementation of application within first 30 days of
submittal," and 22.20.055, "Modification of application," as set forth
in Exhibit C, attached hereto and by this reference incorporated
herein, with new language set out in red -line and language to be
deleted in strike -out.
D. Chapter 22.24 is amended to change Sections 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," 22.24.080, "Standing," 22.24.125, "Setting the
hearing," and 22.24.160, "Reopening the record," to delete 22.24.130,
"Continuances," and replace it with a new Section 22.24.140,
"Continuances or record extensions," and to delete Section 22.24.140,
"Close of the record," and replace it with a new Section 22.24.130,
"Close of the record," as set forth in Exhibit D, attached hereto and
by this reference incorporated herein, with new language set out in
red -line and language to be deleted in strike -out.
KEY
1 - ORDINANCE N0. 96-071 (12-30-96) ED
97
E. Chapter 22.28 is amended to change 22.28.050, "Review by
planning commission and board," and to add a new Section 22.28.015,
"Findings as to 120 -day time limit," as set forth in Exhibit E,
attached hereto and by this reference incorporated herein, with new
language set out in red -line and language to be deleted in strike -out.
F. Chapter 22.30 is amended to change 22.30.010,
"Reconsideration," as set forth in Exhibit F, attached hereto and by
this reference incorporated herein, with new language set out in
red -line and language to be deleted in strike -out.
G. Chapter 22.32 is amended to change Sections 22.32.015,
"Filing appeals," 22.32.022, "Determination of jurisdictional defects,"
22.32.025, "Consolidation of multiple appeals," 22.32.030, "Hearing on
appeal," and 22.32.035, "Declining review," and adding new Sections
22.32.024, "Transcript requirement" and 22.32.027, "Scope of review,"
as set forth in Exhibit G, attached hereto and by this reference
incorporated herein, with new language set out in red -line and language
to be deleted in strike -out.
H. Chapter 22.34 is amended to change Section 22.34.020,
"Hearings body," as set forth in Exhibit H, attached hereto and by this
reference incorporated herein, with new language set out in red -line
and language to be deleted in strike -out.
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
2 - ORDINANCE NO. 96-071 (12-30-96)
p.15p=p�j9
expressly provide, and such ordinance repealed shall be treated as
still remaining in force for the purpose of sustaining any proper
action or prosecution for the enforcement of such duty, condition,
penalty, forfeiture, or liability, and for the purpose of authorizing
the prosecution, conviction and punishment of the person or persons who
previously violated the repealed ordinance.
Section 5. Applicability. Except as otherwise stated herein, the
procedures set forth in this ordinance shall as of the effective date
apply to all procedural steps not then taken or finalized as to future
and existing applications not yet final. The changes in Section
22.08.010 shall apply only to applications submitted on or after the
effective date. The changes in Section 22.20.20(A) shall apply only to
applications submitted on or after the effective date. Section
22.20.52 shall not apply to applications already submitted as of this
date. Section 22.20.55 shall not apply to applications already
accepted or deemed accepted as complete as of the effective date.
Section 6. 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 shall take effect
immediately on passage.
DATED this 30th day of December, 1996.
OF COUNTY CO ISSIONERS
CHUT S UNT , OREGON
, Chair
ATT T: BARRY SLAUGHTER, Commissioner
7
Recording Secretary ROB T L. NIPPER, Commissioner
3 - ORDINANCE NO. 96-071 (12-30-96)
EXHIBIT A
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.
ii:.i:.i:.:....
...................
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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:
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0156-01798
98
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22.04.025. Definition -De novo review.
"De novo review" means a hearing by the
review body as if the action had not previously
been heard and as if no decision had been
rendered, except that all testimony, evidence
and other material from the record of the
previous consideration will be considered a
part of the record on review. (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
- EXHIBIT A TO ORDINANCE NO. 96-071 (12-30-96)
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)
0156_07 9
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)
2 - EXHIBIT A TO ORDINANCE NO. 96-071 (12-30-96)
EXHIBIT B
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.
s►>tsdi
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
0136.0800
the Planning Director;
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.
1daa ;fit?€:€a
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. 96-071 § 1B,
1996; 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.
1 - EXHIBIT B TO ORDINANCE NO. 96-071 (12-30-96)
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
specified 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)
013-6-0801
22.08.040. Applicable standards.
With respect to the acknowledged portions
of the County's Comprehensive 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)
2 - EXHIBIT B TO ORDINANCE NO. 96-071 (12-30-96)
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)
3 - EXHIBIT B TO ORDINANCE NO. 96-071 (12-30-96)
0156-0802
EXHIBIT C
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
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, or statements
shall not be deemed to constitute final County
action effecting a change in the status of a
person's property or conferring any rights,
including any reliance rights, on any person.
(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 required uired b state
q Y
law or by other ordinance provision, the
0156-0803
Planning Director may decide upon a land use
action application administratively either with
prior notice, as prescribed under Section
22.20.020 or without prior notice, as
prescribed under Section 22.20.030 or he may
refer the application to the Hearings Body for
hearing. The Planning Director shall take
such action within 30 days of the date the
application is accepted as
complete. This time limit maybe 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 ftwof
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 ids
f specified in subsections 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 ';°:': # C -0-J"
i E
s::::::::::::::::::::::::::::.::::::::::::.:::::::::::::::::::::::::::::::::::
.:..:;:
ii1 and to all members of the
..............:...............
.............................
1 - EXHIBIT C TO ORDINANCE NO. 96-071 (12-30-96)
planning commission.
......................
persons .........co.mmenting 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. 96-071 §1C, 1996; 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(4) no prior notice
shall be given
shalleeRt-Ai - the ap^plirable. of ,..,,a*:,,,,
(Ord. 96-071 §1C, 1996; 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
0156-0804
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;
and
6. Consideration of remanded
applications. (Ord. 96-071 § 1C, 1996; 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
2 - EXHIBIT C TO ORDINANCE NO. 96-071 (12-30-96)
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 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. 96-071 §
1C, 1996; Ord. 95-045 § 9, 1995; Ord. 91-013
§ 4-6, 1991; 90-007 § 1, 1990)
0156-0805
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011.
3 - EXHIBIT C TO ORDINANCE NO. 96-071 (12-30-96)
0156-0806
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
decisions for the previous 12 -month period.
(Ord. 90-007 § 1, 1990)
4 - EXHIBIT C TO ORDINANCE NO. 96-071 (12-30-96)
1:f
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
22.24.120.
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
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 ir, entitled;
open Foquest made at the
m;
rs'a continuance of the hearing to a date
that is at least seven days after the date the
initial staff report is complete. W
xx
.0 S++N4k�MKi W V
......... .........
C. A copy of the staff report shall be
mailed to the applicant, shall be made
available to such other persons who request a
copy and shall be filed with the Hearings
Body.
D. Oral or written modifications and
additions to the staff report shall be allowed
prior to or at the hearing. (Ord. 96-071 § 1D,
1996; Ord. 95-045 § 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€ij dt`?':I`I#>st€t`iiII::.,
Agog:; r : >:tt t.
.:
"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.
96-071 § 1D, 1996; Ord. 95-045 § 11A, 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 ani
eempletg application for those matters to be
processed administratively with notice.
1 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
knowledge.
22.24.110.
Challenge for bias, prejudgment
of personal interest.
22.24.120.
Hearings procedure.
22.24.125.
Setting the hearing.
22.24.140
Qnrw nt the reeeFdo
'.4..r..�..Slil•;
:::::::.......:....::..:..:..:.. >..:.::::...::.:::...::::.
.....:.. ...........
C3C���SIili
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 ir, entitled;
open Foquest made at the
m;
rs'a continuance of the hearing to a date
that is at least seven days after the date the
initial staff report is complete. W
xx
.0 S++N4k�MKi W V
......... .........
C. A copy of the staff report shall be
mailed to the applicant, shall be made
available to such other persons who request a
copy and shall be filed with the Hearings
Body.
D. Oral or written modifications and
additions to the staff report shall be allowed
prior to or at the hearing. (Ord. 96-071 § 1D,
1996; Ord. 95-045 § 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€ij dt`?':I`I#>st€t`iiII::.,
Agog:; r : >:tt t.
.:
"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.
96-071 § 1D, 1996; Ord. 95-045 § 11A, 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 ani
eempletg application for those matters to be
processed administratively with notice.
1 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
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
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.La.Lof
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
0156-4808
least 10 continuous days prior to any lig
e+ 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 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.
C. Published Notice. In addition to
notice by mail and posting, notice of a ` t t ..;I
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. 96-071 § 1D, 1996; 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 ,. use, aetio ppli,.ati@R
subjest to administrative doeision 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.
2 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
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 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
provides sufficient
speei€iGky 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 rid—pen
skt by ?' f 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
II1tJ►�-0809
planning goals shall state that a goal exception
is proposed and shall summarize the issues in
an understandable manner. (Ord. 96-071 §
1D, 1996; Ord. 95-045 § 13,1995; Ord. 90-007
§ 1, 1990)
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)
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. 96-071
§ 1D, 1996; Ord. 95-045 § 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
3 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
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)
22.24.100. 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)
0156-0810
22.24.110. Challenge for bias, prejudgment
or 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
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
address 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.
4 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
5. Proponents' rebuttal.
6. Opponents' rebuttal maybe 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 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.
hearing date may be changed by the County
staff,t'the Hearings Body up
until the time notice of the hearing is mailed.
Once the notice of hearing is mailed
hearing J—ate is get any changes in the
hearing date shall be processed as a
continuance in accordance with section
22.24.439. 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. 96-071 § 1D, 1996;
Ord. 95-045 § 17, 1995)
5 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
MOVE Fl. "TrMIM
..MIEFT
Y.
5 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
1995; Ord. 91-013 § 9, 1991; Ord. 90-007 § 1,
1990)
6 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
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)
,;&h� tud Anl<, The Planning pirwnter shall
efir.0'ar-aged- to 4A.xA__Ak_ eat a mutually agreeable
ties —any -susl�
hit to be a Part Af the reV(4;d.
B. g Dnnerii as n Matte
Dissratie4r
A Vn- e Hearings Body may at its
discretion olest to reopen the record,
...........:...:.; :......:....:.
event,an the uoi.i++.� 1Qo.i., tel,;ll state the
fif>>t3 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.
7 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
• �� •
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)
,;&h� tud Anl<, The Planning pirwnter shall
efir.0'ar-aged- to 4A.xA__Ak_ eat a mutually agreeable
ties —any -susl�
hit to be a Part Af the reV(4;d.
B. g Dnnerii as n Matte
Dissratie4r
A Vn- e Hearings Body may at its
discretion olest to reopen the record,
...........:...:.; :......:....:.
event,an the uoi.i++.� 1Qo.i., tel,;ll state the
fif>>t3 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.
7 - EXHIBIT D TO ORDINANCE NO. 96-071 (12-30-96)
EXHIBIT E
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. 95-045 § 22, 1995; Ord. 90-007
§ 1, 1990)
22.28.020. Notice of decision.
A Hearings Body's decision shall be in
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
1 - EXHIBIT E TO ORDINANCE NO. 96-071 (12-30-96)
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 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. Ts
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.
6r r a/ -��g6P-
V g u `
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. 96-071 § 1E, 1996; Ord. 95-045
§ 25, 1995; Ord. 90-007 § 1, 1990)
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
2 - EXHIBIT E TO ORDINANCE NO. 96-071 (12-30-96)
01 a'Q16
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)
3 - EXHIBIT E TO ORDINANCE NO. 96-071 (12-30-96)
IW14aI1.)10t
Chapter 22.30. RECONSIDERATION
2230.010. Reconsideration.
2230.020. Procedure.
2230.030. Limitation on reconsideration.
2230.010. Reconsideration.
A. An applicant may request that the
Hearing Officer's decision be reconsidered as
set forth herein. By requesting
to have Suspended the Funnifig ef the 120 d
d-ev-i-s-ion time, period- fer. the, time pefied of t
A request for
reconsideration shall be accompanied by a fee
established by the county 14'&
::C''y.;;'.k4...:. �..:....:::.i':. :.
' .... t........�31
caT.
l.
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. 96-071 § 1F, 1996;
Ord. 95-045 §§ 27 and 28, 1995)
2230.020. 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.
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)
2230.030. Limitation on reconsideration.
No decision shall be reconsidered more
than once. (Ord. 95-045 H 27 and 30, 1995)
1 - EXHIBIT F TO ORDINANCE NO. 96-071 (12-30-96)
EXHIBIT G
Chapter 2232. APPEALS
2232.010. Who may appeal.
2232.015. Filing appeals.
2232.020. Notice of appeal.
2232.022. Determination of jurisdictional
defects.
P::.:::::::
22.32.025. Consolidation of multiple
appeals.
2232.030. Hearing on appeal.
2232.035. Declining review.
2232.040. Land use action hearings on
appeal from the hearings officer.
2232.050. Development action appeals.
2232.060. Rehearing.
2232.070. Remands.
2232.080. Withdrawal of an appeal.
2232.010. 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 party 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)
2232.015. Filing appeals.
A. To file an appeal, an appellant must
file a completed notice of appeal on a form
prescribed by the Planning Division # an
appeal fee,
appealed &9M.
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.
G. The transer-ipt of the hearing may -W.,
1;uh—m-itted to the, Gemmunity Development
Depaftmeat ;A44 -h-40 45 days after. the date,
fiefiGe of appeal is filed.
B. 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. 96-071 § 1G, 1996; Ord. 95-045
§ 32, 1995; Ord. 94-042 § 2, 1994; Ord.
91-013 §11, 1991; Ord 90-007 §1 1990)
2232.020. 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
1 - EXHIBIT G TO ORDINANCE NO. 96-071 (12-30-96)
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.
B. Determination of jurisdictional defects
in an appeal shall be made by the Hearings
Body to which an appeal has been made.
(Ord. 96-071 § 1G, 1996; Ord. 95-045 § 33,
1995)
...........
aim
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 an6eipate costs are
more than se 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. 96-071
§ 1G, 1996; Ord. 95-045 § 34, 1995)
2 - EXHIBIT G TO ORDINANCE NO. 96-071 (12-30-96)
;.. .
hearing
eOF a POF60H th@FOOfi,
dWifig that i OF
2. Thu ouh-st ntia4 r;nhtn Of thn P rt;nn
a
i
1 ;to 6910 ;,.dgMNA a dO HOW hOaFiff .
signifir.ant—poliq issoe F-@ vat-to—ale
PEOPesed Wad ase -aeti-A-R,
M. Except as otherwise provided in
this chapter, the appeal shall be heard as
provided in Chapter 22.24, "Land Use Action
Hearing."
allow'�?,he applicant shall proceed first in
all appeals.
...,:,..,,..The order of Hearings Body shall
be as provided in Section 22.24.020 of this
title.
DQ. The record of the proceeding from
which appeal is taken shall be a part of the
record on appeal.
EH. 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
parry to the decision; and
report st€lu
test -H -A.9" other than staff comment based on
the record shallms 04
tbetaken.
"<
.'">h> ` .:.;;:;:.:.:;.................;.;;.:::;.:;;;;;:.::.
3 - EXHIBIT G TO ORDINANCE NO. 96-071 (12-30-96)
#xi The board shall not consider
.:.................................
...................................
any new factual information
pa+ty. (Ord. 96-071 § 1G, 1996; 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 ft:
1. The record developed before the lower
Hearings Body;
2. The notice of appeal; and
3. Recommendations of staff. (Ord.
96-071 § 1G, 1996; Ord. 95-045 § 37, 1995;
Ord. 94-042 § 1, 1994)
2232.040. Land use action hearings on
appeal from the hearings officer.
Redundant testimony shall not be allowed.
(Ord. 90-007 § 1, 1990)
015-6,0821
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)
2232.060. Rehearing.
Rehearings shall not be allowed. (Ord.
90-007 § 1, 1990)
2232.070. Remands.
Applications shall not be remanded to a
lower level Hearings Body after appeal. (Ord.
90-007 § 1, 1990)
2232.080. 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 non -filing parties
have relied upon the appeal filed by the
appellant. (Ord. 95-045 § 38, 1995)
4 - EXHIBIT G TO ORDINANCE NO. 96-071 (12-30-96)
EXHIBIT H
Chapter 22.34. PROCEEDINGS ON
REMAND
22.34.010.
Purpose.
22.34.020.
Hearings body.
2234.030.
Notice and hearings
requirements.
2234.040.
Scope of proceeding.
2234.050.
Effect of reversal.
2234.010. 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)
2234.020. Hearings body.
The hearings body for a remanded or
withdrawn decision shall be the hearings body
from which the appeal to LUBA was taken.
l>111€a. it the remana 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)
2234.030. 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
-io- 6-6 22
need comply with the requirements of Chapter
22.24 only to the extent that such procedures
are applicable to remand proceedings under
state law. (Ord. 95-045 §§ 39 and 41A)
2234.040. 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)
2234.050. 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 H 39 and 43, 1995)
1 - EXHIBIT H TO ORDINANCE NO. 96-071 (12-30-96)