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1998-45616-Ordinance No. 98-042 Recorded 8/31/19981 69 -. 0 400 98-45616 REVIEWED law �✓ LEGAL COUt",!S'.L BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 22 and Creating Title 22A to Implement the Intergovernmental * =_ Co Agreement between the City of Bend and the County - 3 Regarding Planning Authority within the Bend Urban * = = Area and Declaring an Emergency. -- c r _'; --y- ORDINANCE NO. 98-042 ORDINANCE ri_-a: 90 WHEREAS, the Bend Urban Area General Plan covers all areas within the BenEUrban Area, including areas for which the City of Bend and Deschutes County have adopted similar, bu not tWe same, land use regulations and land use procedures; and WHEREAS, the City of Bend and Deschutes County have through an intergovernmental agreement transferred planning authority within the Bend Urban Area to the City of Bend; and WHEREAS, in interest of efficiency and ease of administration, the intergovernmental agreement between City and County require that the County's land use ordinances and procedures within the Bend Urban Area order be amended to consistent with the City's land use ordinances insofar as is practicable; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. Deschutes County Code Section 22.04.010, Introduction and Application, is amended to read as set forth in Exhibit "A," attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in stfikethfetigh. Section 2. ADOPTION. Deschutes County Code Title 22A is hereby adopted to read as set forth in Exhibit "B," attached hereto and by this reference incorporated herein, except as modified under Section 3 herein. Notwithstanding any description or reference contained therein that Title 22A is applicable only to lands within the City of Bend, the provisions contained therein shall, consistent with Deschutes County Code Subsection 22.04.010(C), apply to all lands outside the city and within the Bend Urban Growth Boundary, as that term is described in that certain intergovernmental agreement between the City of Bend and the County dated February 18, 1998. The document set forth in Exhibit "B" and adopted as Title 22A herein shall be codified as part of the County Code, retaining the section numbering as set forth in Exhibit `B." Section 3. AMENDMENTS TO EXHIBIT B. Exhibit `B," attached hereto is amended in the following particulars: A. References to the geographic area of the City of Bend in the City of Bend Zoning Ordinance adopted herein, shall when referring'to the geographic area to which the zoning ordinance is applicable be construed to mean that portion of the Bend Urban Area lying between the Urban Growth Boundary and the city limits of the City of Bend. PAGE 1 OF 3 - ORDINANCE NO. 98-042 (8/26/98) iCEY►� Ct;LD MICROFILMED � "` I '0 l �'s OCT 1� ZJ98 169 - 0401 B. References to staff and/or institutional bodies as between the City and County shall be read to be consistent with the division of responsibilities set forth in that certain intergovernmental agreement entered into between the City of Bend and the County dated February 18, 1998. C. Section 14, Hearings Body, of NS -1556, as adopted by the Board of County Commissioners herein, is hereby amended to read as set forth in Exhibit "C," attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in stf _' ethr-o gh D. Section 8, Type II Activity Administrative Review Proceeding, of NS -1556, as adopted by the Board of County Commissioners herein, is hereby amended to read as set forth in Exhibit "D," attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in Freugh E. Section 3, Land Use Activity Categories, of NS -1556, as adopted by the Board of County Commissioners herein, is hereby amended to read as set forth in Exhibit `B," attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in str-iketkreugh Section 4. APPLICABILTY TO PENDING APPLICATIONS. The standards adopted by this ordinance shall not be applicable to any applications accepted prior to the effective date of this ordinance. Section 5. REPEAL OF ORDINANCES AFFECTING EXISTING LIABILITIES. The repeal, express or implied, of any ordinance, ordinance provision, code section or any map or line on a map by this ordinance shall not release or extinguish any duty, condition, penalty, forfeiture, or liability incurred under such ordinance, unless a provision of this ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such duty, condition, penalty, forfeiture, or liability, for the purpose of authorizing the prosecution, conviction and punishment of the person or persons who violated the repealed ordinance. 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 takes effect on its passage. DATED this 26"' day of August, 1998. A ST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 98-042 (8/26/98) 169 _ 0402 EXHIBIT "A" 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. C. Notwithstanding any reference to the contrary, this title shall not apply to applications for land use or development approval for lands lig outside the city limits of the City of Bend and within the Bend Urban Growth Boundary, as that term is defined in that certain intergovernmental agreement entered into between the City of Bend and the Coun , dated February 18, 1998. The City of Bend Land Use Permit & Review Procedures Ordinance, No. NS -1556, as adopted by the Board of County Commissioners as Title 22A of this code, and as supplemented by additional, supplemental provisions identified in County Ordinance 98- 042, and such other supplementing and/or amending ordinances as might from time to time be adopted, shall apply to those lands instead. (Ord. 98-042 § 1, 1998; Ord. 90-007 § 1, 1990) PAGE 1 OF 1 - EXHIBIT "A" TO ORDINANCE 98-042 (8/26/98) [0:4. CITY OF BEND ORDINANCE NO. NS -1556 LAND USE PERMIT & REVIEW PROCEDURES Amended February 19, 1997 169 m 0403 169 -0404 INDEX CITY OF BEND ORDINANCE NO. NS -1556 LAND USE PERMIT & REVIEW PROCEDURES Section 1. Purpose Section 2. Definitions Section 3. Land Use Activity Categories Section 3A. Deschutes River Corridor Design Review Procedures Section 4. Pre -Application Conference and Application Forms Section 5. Filing Application Section 6. Development Review Procedures Section 7. Type I Activity Administrative Review Procedure Section 8. Type II Activity Administrative Review Procedure Section 9. Hearing Procedures for Type II Activities and Type III Quasi-judicial Activities Section 10. Hearing Procedures for Type III Legislative Activities Section 11. Notice Content Section 12. Public Notice Section 13. Compliance and Waiver of Notice Section 14. Hearings Body Section 15. Challenge for Bias, Prejudgment or Personal Interest Section 16. Objections to Jurisdiction, Procedure, Notice, or Qualifications Section 17. Participation by Interested Officer or Employees Section 18. Burden and Nature of Proof Section 19. Record of Proceedings Section 20. Appeals Section 21. Appeals to the Hearings Officer Section 22. City Council Review of Appeals Section 23. [Record on Appeal] Repealed by Ord. No. NS -1673 Section 24. [Declining Review] Repealed by Ord. No. NS -1673 Section 25. [City Commission Decision] Repealed by Ord. No. NS -1673 Section 26. Duration of Permit Section 27. Reapplication Limited Section 28. Temporary Permit Section 29. Liabilities Section 30. Repeal February 19, 1997 169 0405 10-16.1 BEND CODE 10-16.2 ORDINANCE NO. NS -1556 AN ORDINANCE PROVIDING FOR UNIFORM LAND USE PERMIT AND REVIEW PROCEDURES, REPEALING PROCEDURES ORDINANCE NO. NS -1474, AND SECTIONS 34 AND 35 OF ZONING ORDINANCE NO. NS -1178. Section 1. Purpose This ordinance is enacted to provide uniform procedures for land use and other administrative actions and hearings. This ordinance shall be known as the City of Bend Uniform Land Use Procedure Ordinance. Section 2. Definitions As used in this ordinance, unless the context requires otherwise: (1) "City" means the City of Bend. (2 "De Novo Hearing" 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. (3) "Development Permit" means any permit required by the City's land use, zoning and subdivision ordinances. (4) "Director" means the City of Bend Planning Director or designee. (5) "Hearings Body" means the hearings body specified in the applicable land use ordinance, resolution, law or plan. In the event that a hearings body is not specified by the applicable law, the hearings body shall be the City's Hearings Officer. (6) "Legislative Action" means code, ordinance, or plan text amendments or plan map and zoning amendments that involve broad public policy decisions that apply to more than a few properties. (7) "Property Owner" shall mean the holder of the title to real property or the contract purchaser of real property, as shown on the last available County Assessor's tax assessment roll, or a person authorized in writing to act as agent for the property owner. (8) "Quasi-judicial Action" means a land use decision, zone change, plan amendment, or a development permit hearing affecting only one or a few properties. 10-16.3 BEND CODE 169 0406 10-16.3 Section 3. Land Use Activity Categories Land use activities are grouped into the following three categories to determine which procedures shall be used to review the request: (1) Type I Activities: Code interpretations, lot line adjustments, final planned unit development plans, final land partition, final subdivision plats, manufactured home placement permit, and all other development permits not included in a Type II or III review. (2) Type II Activities: Land partitions, tentative subdivision plans, planned unit development plans, site plan reviews for commercial and industrial projects, variances, conditional use permits, fill and removal permits, "similar use" requests, solar access permits, and site plan reviews for duplex and triplex dwellings larger than 3,600 square feet and multi- family dwellings with four units or more. (3) Type III Activities: Zoning map changes and comprehensive plan map amendments, zoning or subdivision ordinance text amendments, comprehensive plan text amendments, new functional plans and land use regulations. [Section 3 (2) amended by ORD No. NS -1651 passed February 7, 19961 169 - 0407 10-16.3A BEND CODE 10-16.3A Section 3A. Deschutes River Corridor Design Review Procedures For all property subject to the Deschutes River Design Review process, the following procedures shall apply: (1) There shall be two types of review for Design Review depending on the level and type of activity proposed. (a) Type I review shall be performed by the Planning Director for the following activities: (A) Minor alterations of 10% 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 discretion, can refer a Type I application to the Bend Urban Area Planning Commission for approval. (b) 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 any application under Section 22A. Deschutes River Corridor Design Review Combining Zone. (E) Fill and removal activities associated with new development or for creation of fire breaks in association with the Fire Department. (2) Type I Procedures: The applicant shall request approval for a Type I procedure in writing to the Planning Department. The request shall include site plan, and description of work and materials that will be used. The Planning Department shall review the request and respond to the applicant in writing of the decision and any conditions placed on the decision. The Planning Department shall respond to the request within two weeks upon receipt of a request deemed complete by the Planning Department. (3) Deschutes River Design Review. The Bend Urban Area Planning Commission shall review all Type II applications and any appeal of Type I activities. (a) Notice for Type II applications shall be as set forth in Section 12, Public Notice. The Bend Urban Area Planning Commission may hold a public hearing for any 10-16.3A BEND CODE 10-16.3A Type II applications. The hearings procedure shall be as set forth in Section 9, Hearings Procedures. i (b) Appeals of the decision of the Bend Urban Area Planning Commission shall be to the City Council and the process shall be as set forth in Section 20, Appeals. i [Section 3A added by ORD. No. NS -1585 passed March 3, 1993.] [Section 3A(1) and (3) amended) by ORD. No. NS -1594 passed June 2, 19931 10-16.4 169 n 0409 BEND CODE 10-16.6 Section 4. Pre -Application Conference and Application Forms (1) The Director and the applicant, or the applicant's authorized representative, should arrange a pre -application conference, unless the applicant and Director agree that the conference is not needed. (2) Applications shall be submitted on forms prescribed by the City. Where a proposal involves more than one application for the same property, the applicant may submit concurrent applications which shall be processed simultaneously. Section 5. Filing Application All applications must be complete when submitted. Incomplete applications will not be considered to have been filed until such time as the application is complete. Section 6. Development Review Procedures There are four types of procedures for processing all development permit applications and requests. These procedures are described in Sections 7 through 10. Where there is a question as to the appropriate type of procedure the Director shall determine the procedure to be used based upon the most similar development permit procedure specified by this ordinance or other established policy. 169 0410 10-16.7 BEND CODE 10-16.8 Section 7. Type I Activity Administrative Review Procedure (1) Under the Administrative Review procedure for Type I activities, an application shall be processed by the Director without need for public hearing or notification of other property owners. The Director may refer a Type I review directly to the hearings body for decision. (2) Conditions and/or restrictions may be applied to the approval of any development permit granted under a Type I procedure in accordance with the City's zoning and subdivision ordinances. (3) The City shall provide notice of any Type I activity that is a quasi-judicial land use decision to those affected by the decision. The applicant may be required to bear the expense of providing said notice. [see ORS 197.830 (3) & (4)] Section 8. Type II Activity Administrative Review Procedure (1) An application for a Type II activity may be processed by the Director without a public hearing following the procedures in this section. The Director may refer any Type II application to the hearings body for a public hearing as set forth in Section 9. (2) Notice of an administrative review shall be provided as set forth in Sections 10 and 11. (3) The Director shall review the application and written comments, if any, and make a finding for each point in dispute. The Director shall make a decision within 45 days of receipt of the completed application and may approve, conditionally approve, or deny the application. (4) The Director's decision shall be in writing with notice to the applicant and all persons who filed written comments or requested notice in writing. Unless appealed, the written decision shall become effective ten days after it is mailed. (5) The applicant or any person commenting in writing on the Development Permit shall constitute parties to the Type II administrative decision. Any party may appeal the Director's decision in accordance with Section 19 of this Ordinance. 169 0411 10-16.9 BEND CODE 10-16.9 Section 9. Hearing Procedures for Type II Activities and Type III Quasi-judicial Activities (1) Under this procedure, an application for a Type II activity or Type III quasi-judicial activity is scheduled for public hearing before the applicable hearings body. (2) Notice of a public hearing shall be provided as set forth in Sections 10 and 11. (3) A staff member of the City Planning Department shall prepare a report on the application or proposed activity. The report shall be completed at least seven days prior to the hearing and be made available to the public and the applicant at City Hall. Such reports may be revised, when appropriate. (4) At the commencement of a hearing for a Type II or Type III quasi-judicial action, a statement shall be made to those in attendance that: (a) Explains the purpose of the hearing and the order of proceedings, including reasonable time limits on the presentations by parties; and (b) Includes a statement regarding pre -hearing contacts, bias, prejudice, or personal interest; and (c) Identifies facts received, noticed, or recognized outside of the hearing, if any; and (d) Provides an opportunity for challenges to be made to the hearings body's qualifications to hear the matter; and (e) Describes the applicable substantive _criteria and includes a statement that testimony and evidence must be directed toward the criteria described or other criteria in the plan or land use regulations which the person believes apply to the decision; and (f) Includes a statement that failure to raise an issue with sufficient specificity to afford the decision maker and the parties an opportunity to respond to the issue precludes appeal based on that issue; and (g) Advise the parties that they may request a continuance of the hearing if all documents or evidence relied upon by the applicant were not submitted to the City and made available to the public at the time notice of the hearing was published; and (h) For an initial evidentiary hearing, advise the parties that, unless there is a continuance of the hearing, that they may request that the record remain open for at least seven days after the hearing; and 169 0412 10-16.9 BEND CODE 10-16.9 (5) A hearing for a Type II or Type III quasi-judicial action shall be conducted in the following order: (a) Staff report (b) Proponents' presentation (c) Opponents' presentation (d) Proponents' rebuttal (e) Opponents' rebuttal may be allowed at the discretion of the hearings body (f) Staff comment (g) Questions from for to the chair may be taken at any time, in the hearings body's discretion. (6) The final decision shalli; be in writing and mailed to all parties; provided, 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 individuals constituting parties. (7) Unless appealed, the written decision on a Type II Development Permit shall become effective ten days after! it is mailed. The applicant, or any party commenting on the application, may appeal the decision to the City Council in accordance with Section 19 of this ordinance. I i (8) For a Type III quasi-judicial zone change or plan amendment action on which the hearings body has made a favorable recommendation, the City Council shall review the proposal. At the Council meeting, the Planning Director shall review the report and findings of the hearings body and provide other pertinent information. (9) The City Council shall adopt a finding for each of the criteria applicable to the request and in doing so may sustain or reverse a finding of the hearings body. The City Council may delete, add, reject, or ; modify any of the provisions pertaining to the proposal or recommendation of the hearings body, or attach certain development or use conditions in accordance with the relevant provisions of City ordinances. I i 169 0413 10-16.10 BEND CODE 10-16.10 Section 10. Hearing Procedures for Type III Legislative Activities (1) A hearing for a Type III Legislative activity shall be conducted in the following order: (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) The Planning Director shall present a report or information related to the item. (c) The Planning Director shall present a summary of any written comments, documents, or other material submitted to the Planning Department by persons interested in the item. (d) Interested persons may present testimony to the hearings body. The hearings body may ask questions of persons during testimony. (2) The hearings body may continue an item to take additional testimony or to allow staff to develop additional background information and material. (3) After the close of a public hearing the hearings body shall discuss the legislative activity item and, by majority vote, may recommend an item for consideration by the City Council, take no action, or table the item for future discussion. If, after tabling an item, the hearings body schedules additional hearings on that item those persons participating in the earlier hearings shall receive written notice of the new hearings. (4) An item recommended for approval by the hearings body shall be reviewed by the City Council. The City Council shall hold at least one public hearing before approving or denying a Type III legislative action. (5) The City Council may delete, add, reject, or modify any of the provisions or recommendations of the hearings body, or attach certain conditions in accordance with the relevant City ordinances. 10-16.11 Section 11. Notice Content 1 XIM 169 a 0414 10-16.11 (1) Written notice of an administrative review of a Type II activity or of a hearing on a Type II or III quasi-judicial action shall be reasonably calculated to give actual notice and shall contain the following information: (a) For a hearing, the date, time, and place of the hearing. (b) A description reasonably calculated to inform a person of the location of the property for which a development permit or other action is pending, including but not limited to use of a map and a postal address, or a subdivision lot and block designation, or a metes and bounds description, or the tax map designation of the County Assessor. (c) An explanation of the nature of the land use application and the proposed use or uses which could be authorized as a result of the hearing or review. (d) A listing of the plan and ordinance criteria applicable to the request. (e) Where information may be examined and when and how written comments addressing findings required for a decision by the hearings body or Director may be submitted; and (f) The name and telephone number of the City official to contact for additional information; and (g) A statement that a copy of the application, all documents and evidence relied upon by the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost; and (h) A statement that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and will be provided at reasonable cost; and (i) A general explanation of the requirements for submission of testimony and the procedure for the conduct of hearings, when applicable, including the fact that if additional evidence or documents are submitted to the City by the applicant after the time notice is provided, that any party is entitled to a continuance of the hearing and the fact that, unless there is a continuance, a hearing participant may request that the record remain open for at least seven days after the close of the hearing; and (j) A statement that failure to raise an issue in person or in writing at a hearing, or in writing for an administrative decision, precludes appeal on that issue and that 169 0415 10-16.11 BEND CODE 10-16.11 i failure to provide sufficient specificity to afford the decision maker an opportunity to respond to the issue precludes appeal based on that issue; and (k) If any of the members of the hearings body have had ex parte contacts relating to the matter being ,'reviewed, a statement that all parties may rebut the substance of the ex parte communication. 1 (2) The notice for a Type III legislative action shall contain the following information: i (a) The date, time, and place of the hearing. i (b) The nature of the issue presented for hearing. (c) A description reasonably calculated to inform a person of a geographic area which is affected by the legislative action. (d) Where information may be examined and when and how written comments may be submitted. i I 169 0416 10-16.12 BEND CODE 10-16.12 Section 12. Public Notice (1) Notice to affected parties of an administrative review of a Type II development application or activity shall be mailed within ten (10) days after receipt of a complete application. The notice shall provide at least fourteen (14) days time to comment on the application. (2) Notice of a public hearing on a Type II or Type III development permit application shall be mailed to the applicant and other interested persons at least twenty (20) days prior to the hearing. (3) Notice of a first public hearing for a Type III Legislative Action shall be published in the Bend Bulletin newspaper at least ten (10) days prior to the first hearing. Notice of a subsequent hearing before the City Council shall be published in the same manner. (a) Any additional notice to property owners shall be at the discretion of the Planning Director. (4) Written notice required under subsections (1) and (2) of this Section shall be sent by mail to the following persons: (a) The applicant and the applicant's agent. (b) The owner(s) of property if different than the applicant. (c) All property owners within at least 100 feet of the property which is the su bject of a Type II development permit application. Intervening public and private ways and water courses shall not be considered in measuring the required distance. (d) All property owners located within at least 250 feet of property which is the subject of an application for a Type III quasi-judicial action. Intervening public and private ways and water courses shall not be considered in measuring the required distance. (e) All owners of record shown on the application for a solar access permit. (f) The owner of a public use airport if the property subject to the application is within 10,000 feet of the airport. (g) The tenants of a mobile home or manufactured home park when the application is for a rezoning of any or all of a mobile home or manufactured home park. Such notice shall not be mailed earlier than 40 days before the date of the first hearing on the application. 169 041? 10-16.12 BEND CODE 10-16.12 (5) Notice of an administrative review or of a public hearing on a development permit shall also be posted on the property by the applicant. The posted notice shall be visible from any adjacent public way, where practicable. I 169 0418 10-16.13 BEND CODE 10-16.16 Section 13. Compliance and Waiver of Notice (1) If the City has mailed notice as required by this ordinance, failure of the addressee to actually receive notice shall not invalidate the land use proceeding. (2) Posted notice is deemed given when the sign is first posted. (3) The requirement for notice shall be deemed satisfied as to any person who, in any manner, obtains actual knowledge of the time, place, and subject matter of the hearing prior thereto. (4) Appearance and testimony or comment on the merits of the proposed action by any person at a hearing, or submission by any person of written comment directed to the merits of the proposed action at or prior to the hearing and after the proceeding was initiated, or submission of written comments on an administrative review shall be deemed a waiver of such person of any defect in notice. Section 14. Hearings Body The following shall serve as Hearings Body in this order: (1) Hearings Officer or Urban Area Planning Commission (2) City Council Section 15. Challenge for Bias. Prejudgment or Personal Interest (1) 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 documented with specific reasons supported by facts. (2) 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 the matter being considered. Section 16. Objections to Jurisdiction, Procedure. Notice, or Qualifications Any objections to jurisdiction, procedure, notice, or qualifications not raised prior to or during the hearing are waived. 169 - 0419 10-16.17 BEND CODE 10-16.19 Section 17. Participation by Interested Officer or Employes (1) A hearings officer or member of a hearings body may participate in any hearing, when the member or officer has had ex parte contact, if the member of officer places on the record the substance of any written or oral ex parte communication concerning the decision or action being reviewed and has a public announcement of the content of the communication and of the parties' right to rebut the substance of the communication made at the first hearing following the communication where action will be considered or taken on the subject to which the communication related. (2) No officer or employee of the City who has a financial or other private interest in a proposal shall participate in discussion with, or give an official opinion or staff report to, the hearings body on the proposal without first declaring for the record the nature and extent of such interest. Said officer or employee shall disqualify themselves from participating in said matter if participation will result in a financial gain to the officer, employee or their family or business which the public officer or employee or their family are associated, other than official salary, honoraria or reimbursement of expenses. Section 18. Burden and Nature of Proof. Except for a legislative action, the burden of proof is upon the applicant. The proposal must be supported by proof that it conforms to the applicable criteria for the particular type of decision under consideration. Section 19. Record of Proceedings. (1) The hearings body shall, where practicable, retain as part of the hearing record each item of physical or documentary evidence presented and shall have the items marked to show the identity of the person offering the same and whether presented on behalf of a proponent or opponent. Exhibits received into evidence shall be retained in the hearing file until after all appeal periods have expired, at which time the exhibits may be released to the person identified thereon or otherwise disposed of. (2) The staff report and decision shall be included in the record. (3) A person shall have access to the record of the proceedings during normal city working hours. A person shall be entitled to obtain copies of the record at the person's own expense. 10-16.20 Section 20. Appeals. BEND CODE 169 - 0420 10-16.20 (1) Appeals of land use decisions can only be perfected by filing a Notice of Appeal with the City's Development Services Director. The Notice of Appeal must be filed within ten days of the mailing date of the decision being appealed. (2) The Notice of Appeal shall contain: (a) A description of the decision which is being appealed, including the date of the decision, the persons and the property affected by the decision. (b) A statement describing the interest the person who is appealing has in the decision. Only persons who have proper standing as provided by law, and who have participated in the decision being appealed may appeal the decision. The statement of interest must demonstrate the person's standing and participation. (c) A description of the issues sought to be raised by the appeal; and a statement that the issues were raised during the proceeding that produced the decision being appealed. This description must include the specific criteria relied upon as the basis for the appeal, and an explanation of why the decision has not complied with the standards or requirements of the criteria. The issues raised by the appeal must be stated with sufficient specificity to afford the reviewing authority an opportunity to resolve each issue raised. (d) The following information which shall provide the basis for a determination by the City Council on whether to grant discretionary review of the decision being appealed: (A) How the appeal presents issues that have significant public policy or community wide implications for the City, as opposed to more limited issues which primarily involve the directly affected property or persons involved in the land use decision being appealed. (B) Why it is necessary or desirable for the City Council to review these issues; and why the issues cannot be adequately and fairly reviewed by the Land Use Board of Appeals. (e) If the appeal asks for City Council discretionary review of the decision being appealed, and the person appealing wants to present additional evidence (beyond that already in the record made as part of the decision being appealed), then the Notice of Appeal shall also contain: (A) A statement summarizing the new evidence and the criteria to which it will relate. 169 0421 10-16.20 BEND CODE 10-16.21 (B) An explanation why the proposed new evidence was not submitted as part of the record made in the decision being appealed. Evidence that is substantially similar to evidence already in the record of the decision being appealed will not be allowed. Evidence that could have been submitted in the record of the decision being appealed will not be allowed unless there is a compelling reason that justifies its presentation as part of the appeal. (3) The land use appeal filing fee must be paid to the City as a condition to the filing of the Notice of Appeal. (4) In addition to appeals of City land use decisions, the City Council may call up a land use decision for its review at any time within ten days of the mailing date of the decision. i I [Section 20 (2) amended by ORD. No. NS -1650, passed January 17, 19961 [Section 20 amended by ORD. No. NS -1673, passed February 19, 1997] Section 21. Appeals to the Hearings Officer. The review of all appeals to the Hearings Officer shall be de novo; and the record shall include the land use application or request which is the subject of the appeal, any staff report, all written comments, exhibits or any other materials or information considered by the decision maker in the proceedings that produced the decision being appealed. [Section 21 amended by ORD. No. NS -1673, passed February 19, 1997] 169 • 0422 10-16.22 BEND CODE 10-16.22 Section 22. City Council Review of Appeals. (1) Review of land use decisions by the City Council on appeal shall be discretionary. A decision by the City Council to not grant discretionary review of the appeal shall be the final determination of the City, and the appeal of the decision shall be to the Land Use Board of Appeals as provided by law. The City Council's decision whether to grant discretionary review shall be made without testimony or argument from persons interested in the appeal, except as specifically permitted by the City Council. (2) The scope of review for appeals that are granted discretionary review by the City Council shall be: (a) Restricted to the issues raised in the Notice of Appeal, or as prescribed by the City Council for decisions called up by the City Council for review. (b) Be conducted during an appeal hearing before the City Council on the record made as part of the decision being appealed, unless the City Council has permitted the presentation of new evidence as part of the appeal. (c) De novo review if the City Council so chooses. (3) The record for discretionary review by the City Council shall include: (a) The land use application or request which is the subject of the appeal, any staff report, and all written comments, exhibits, or any other materials or information considered by the decision maker in the proceedings that produced the decision being appealed. (b) A written transcript of all proceedings before the decision maker, or a stipulated written summary of the proceedings submitted by all of the parties to the appeal. (4) An appeal hearing before the City Council shall be conducted according to such procedures as the City Council shall prescribe, which shall include an opportunity for presentations by the parties to the appeal. (5) Decisions reviewed by the City Council can be affirmed, remanded, reversed, or modified in whole or in part by the City Council. [Section 22 amended by ORD. No. NS -1673, passed February 19, 1997] [Sections 23, 24 and 25 repealed by Ordinance No. NS -1673, passed February 19, 1997] 10-16.23 Section 26. Duration of Permit. BEND CODE 169 -0423 10-16.23 (1) All development permits shall be valid for a period of one year after the date of approval, unless a longer duration is granted as part of the approval. The date of the approval is the date the final written decision is mailed to the parties. (2) Any land use development permit may be extended, prior to expiration, by the Planning Director for periods of three months up to an aggregate period of one year. Such extension shall be administrative, without notice, and in writing. 169 •0424 10-16.27 BEND CODE 10-16.28 Section 27. Reapplication Limited. If a specific application is denied, no reapplication for substantially the same proposal may be made for one year, following the date of the final decision. However, an application may be refiled within one year of a denial of the application if the substantive law concerning the application is amended. Section 28. Temporary Permit. Temporary Permits shall not be issued for variances, zone changes or plan amendments. The Planning Director or City Council may authorize a Temporary Land Use Permit for a period not to exceed six months, provided: (1) An application for the development permit has been submitted. (2) The applicant has demonstrated good and sufficient cause for such a temporary permit. 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, could not have been foreseen. Good cause does not include requests only for reasons of convenience. (3) It appears that the application will be approved in substantially the form submitted by applicant. (4) The applicant accepts each and every risk of loss and damage that may result if the application is denied, and further agrees to hold City, its officers, agents, and employees harmless from said loss and damage. (5) The applicant agrees to. restore the site to its original condition if the application for the land use permit is denied. (6) The applicant posts a bond or other form of security satisfactory to the City Attorney in an amount to cover costs of restoration required by subsection (5) above. 169 0425 10-16.29 BEND CODE 10-16.30 Section 29. Liabilities. The repeal of any Ordinance, or part thereof, by this Ordinance shall not release or extinguish any penalty, forfeiture, nuisance, obligation or liability incurred under such ordinance, unless a provision of this ordinance shall so expressly provide, and such ordinances repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, nuisance, obligation or liability. Section 30. Repeal. The previous Procedures Ordinance No. NS -1474 is hereby repealed. Section 34 (Appeals) and Section 35 (Procedures) of the City Zoning Ordinance No. NS -1178 are hereby repealed. [Approved by the Bend City Commission the 5th day of February 1992.] 169 -0426 Exhibit C to Ordinance 98-042 Section 14. Hearings Body The following shall serve as Hearings Body in this order: (1) The Hearings Officer or Urban Area Planning Commission (2) City Council. (3) No proposed quasi-judicial plan map amendments or zone changes shall be effective unless adopted by the Board of County Commissioners. In the absence of anappeal to the Bend City Council, the Board of County Commissioners shall by ordinance adopt the Hearings Officer's decision and the accompanying map changes without argument or further testimon.Appeals of quasi-judicial plan map amendments and zone changes shall be heard by the Bend City Council. Any denial by the Bend City Council shall be the final local decision on the proposed plan amendment or zone change_ Approvals of such applications on appeal to the Bend City Council shall not become effective until adopted by the Board of County Commissioners in the same manner as an unappealed plan amendment or zone change. 169 4 0427 Exhibit D to Ordinance 98-042 Section 8. Type II Activity Administrative Review Procedure (1) An application for a Type II activity may be processed by the Director without a public hearing following the procedures in this section. Except as otherwise prescribed herein, the Director may refer any Type II application to the hearings body for a public hearing as set forth in Section 9. Pursuant to ORS 215.230(8), the initial decision on an alteration of a nonconforming use shall be made as an administrative decision. (2) Notice of any administrative review shall be provided as set forth in Sections 10 and 11. (3) The Director shall review the application and written comments, if any and make a findings for each point in dispute. The Director shall make a decision within 45 days of receipt of the completed application and may approve, conditionally approve, or deny the application. (4) The Director's decision shall be in writing with notice to the applicant and all persons who filed written comments or requested notice in writing. Unless appealed, the written decision shall become effective ten days after it is mailed. (5) The applicant or any person commenting in writing on the Development Permit shall constitute parties to the Type II administrative decision. Any party may appeal the Director's decision in accordance with Section 19 of this Ordinance. 169 4 8428 Exhibit E to Ordinance 98-042 Section 3. Land Use Activity Categories Land use activities are grouped into the following three categories to determine which procedures shall be used to review the request: (1) Type I Activities: Code interpretations, lot line adjustments, final planned unit development plans, final land partitions, final subdivision plats, manufactured home placement permit, and all other development permits not included in a Type II or III review. (2) Type II Activities: Land partitions, tentative subdivision plans, planned unit development plans, site plan reviews for commercial and industrial projects, variances, conditional use permits, fill and removal permits, "similar use" requests, solar access permits, nonconforming use verifications, restorations and alterations, and site plan reviews for duplex and triplex dwellings larger than 3,600 square feefand multi -family dwellings with four units or more. (3) Type III Activities: Zoning map changes and comprehensive plan map amendments, zoning or subdivision ordinance text amendments, comprehensive plan text amendments, new functional plans and land use regulations.