Loading...
1997-06319-Ordinance No. 97-008 Recorded 2/20/199797-0631901a6-1770 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES An Ordinance Amending Section 22.32.030 of the Deschutes County Code, and Declaring an Emergency. ORDINANCE NO. 97-008 THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES ORDAINS as follows: i 1 COUNTY'; a EGON�M r, ti COUNTY,,OREGON, Section 1. Amendment. Section 22.32.030, Hearing on Appeal, of the Deschutes County Code is hereby amended to read as set forth in Exhibit A attached hereto and by this reference incorporated herein, with language to be deleted in strike -out type. 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. Emergency. This ordinance being necessary for the immediate preservation of the peace, health and safety, an emergency is declared to exist, and this ordinance takes effect on its passage. DATED this 19th day of February, 1997. RD OF COUNTY DESCHUfBS CO kS KISSIONERS , OREGON Cha A ES ;INKDA L. NIPPER, issioner Recording Secret ry L.SWEARINGE , Commissioner KA) ri9i PAGE 1 - ORDINANCE NO. 97-008 (2-19-97) �J 0156-17'71 EXHIBIT A To Ordinance 97-008 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 de novo hearing or deadline for submission of written arguments. B. Except as otherwise provided in this chapter, the appeal shall be heard as provided in Chapter 22.24, "Land Use Action Hearing." The applicant shall proceed first in all de novo appeals. C. The order of Hearings Body shall be as provided in Section 22.24.020 of this title. D. The record of the proceeding from which appeal is taken shall be a part of the record on appeal. E. 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; 5. Written comments submitted by the Planning Commission or individual Planning Commissioners, based upon the record developed below; and 6. A staff report and staff comment based on the record. No oral evidence, argument or comment other than staff comment based on the record shall be taken. argument 1 any 1 writing at least *RTD A, erking 4"S it;adi�e —of the 4ifg set -mer - The board shall not consider any new factual information. (Ord. 97-008 § 1, 1997; Ord. 96-071 § 1G, 1996; Ord. 95-045 § 36, 1995; Ord. 90-007 § 1, 1990) 1 - EXHIBIT A TO ORDINANCE 97-008 (2-19-97) Chapter 22.32. APPEALS 22.32.010. Who may appeal. 2232.015. Filing appeals. 2232.020. Notice of appeal. 2232.022. Determination of jurisdictional defects. 2232.024. Transcript requirement. 2232.025. Consolidation of multiple appeals. 2232.027. Scope of review. 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) Chapter 22.32 0156-1772 22.32.015. Filing appeals. A. To file an appeal, an appellant must file a completed notice of appeal on a form prescribed by the Planning Division and an appeal fee. 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. 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 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, (2/1997) 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 ofjurisdictional defects in an appeal shall be made by the Hearings Body to which an appeal has bOen made. (Ord. 96-071 § 1G, 1996; Ord. 95-045 § 33, 1995) 22.32.024. Transcript requirement. A. Except as otherwise provided in this section, appellants shall provide a complete transcript of any hearing appealed from, from recorded magnetic tapes provided by the Planning Division. B. Appellants shall submit to the Planning Division the transcript no later than the close of the day 5 days prior to the date set for a de novo appeal hearing or, in on -the - record appeals, the date set for receipt of written arguments. Unless excused under this section, an appellant's failure to provide a transcript shall cause the Board to decline to consider the appellant's appeal further and shall, upon notice mailed to the parties, cause the lower Hearings Body's decision to become final. C. An appellant shall be excused from providing a complete transcript if appellant was prevented from complying by: (1) the inability of the Planning Division to supply appellant with a magnetic tape or tapes of the prior proceeding; or (2) defects on the magnetic tape or tapes of the prior proceeding that make it not reasonably possible for applicant to supply a transcript. Appellants shall comply to the maximum extent reasonably and practicably possible. (Ord. 96-071 § 1G, 1996) Chapter 22.32 0156-1773 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 costs are less than 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) 22.32.027. Scope of review. A. Before Hearings Officer or Planning Commission. The review on appeal before the Hearings Officer or Planning Commission shall be de novo. B. Before the Board. 1. Review before the board, if accepted, shall be on the record except as otherwise provided for in this section. 2. The board may grant an appellant's request for a de novo review at its discretion after consideration of the following factors: a. Whether hearing the application de novo could cause the 120 -day time limit to be exceeded; and b. If the magnetic tape of the hearing below, or a portion thereof, is unavailable due to a malfunctioning of the recording device during that hearing, whether review on the record would be hampered by the absence of a transcript of all or a portion of the hearing below; or C. Whether 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 2 (2/1997) d. Whether 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. For the purposes of this subsection, if an applicant is an appellant, factor 2.a. shall not weigh against the appellant's request if the applicant has submitted with its notice of appeal written consent on a form approved by the County to restart the 120 -day time clock as of the date of the acceptance of applicant's appeal. 3. Notwithstanding section 22.32.027(B)(2), the board may decide on its own to hear a timely filed appeal de novo. 4. 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 on an applicant's notice of appeal. (Ord. 96-071 § 1G, 1996) 2232.030. 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 de novo hearing or deadline for submission of written arguments. B. Except as otherwise provided in this chapter, the appeal shall be heard as provided in Chapter 22.24, "Land Use Action Hearing." The applicant shall proceed first in all de novo appeals. C. The order of Hearings Body shall be as provided in Section 22.24.020 of this title. D. The record of the proceeding from which appeal is taken shall be a part of the record on appeal. E. 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; 0156-1774 4. Written arguments, based upon the record developed below, submitted by any party to the decision; 5. Written comments submitted by the Planning Commission or individual Planning Commissioners, based upon the record developed below; and 6. A staff report and staff comment based on the record. No oral evidence, argument or comment other than staff comment based on the record shall be taken. The board shall not consider any new factual information. (Ord. 97-008 § 1, 1997; 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 only: 1. The record developed before the lower Hearings Body; 2. The notice of appeal; and Chapter 22.32 3 (2/1997) 3. Recommendations of staff. (Ord. 96-071 § 1G, 1996; 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) 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) 0156 -IL 7'75 Chapter 22.32 4 (2/1997)