29-291-Ordinance No. PL-9 Recorded 11/1/1978vot 9 r►sE 291
IN THE BOARD OF COUNTY COMMISSIONERS
OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES
In the Matter of an Ordinance )
Providing for Uniform Procedure )
Governing Land Use Applications, ) ORDINANCE PL-9
Public Hearing and Appeals thereon )
The County of Deschutes, Oregon, ordains as follows:
Section 1.000 Authority. This ordinance is enacted pursuant
to the provisions of ORS 215.412.
Section 1.100 Title. This ordinance shall be known as the
Deschutes County Uniform Hearings Procedure Ordinance.
Section 1.150. Purpose. The purpose of this ordinance is to
provide a uniform procedure applicable to land use actions.
Section 2.000 Definitions. As used in this ordinance, the
following words and phrases shall mean:
2.001 "Applicant". A person applying for a permit,
rezoning or non-legislative comprehensive plan change.
2.005 "Application for Land Use Permit". A written
application requesting a change in zoning, conditional and non-
conforming uses, variances, subdivisions and matters relating to
the comprehensive plan, and amendments to plan;
2.010 "Board". The Deschutes County Board of Commissioners
2.015 "Contested Case". Proceedings in which the legal
rights, duties or privileges of specific parties under the Deschutes
County Zoning Ordinance, Subdivision Ordinance, Land Partition
Ordinance or other similar ordinance regulating land use are required tol
Page 1 Ordinance PL-9
•
VOL ftn
9 4M 292
1 determined only after a hearing at which specific parties are
2 entitled to appear and be heard.
3 Section 2.020 Hearing, Initial.
4 1. An initial hearing is a quasi-judicial hearing authorized
5 and conducted by the Hearings Officer or Planning Commission to
6
7
8.
9
10
11
is 12
13
14
15
16
17
18
19
20
determine:
(a) If a change or permit shall be granted or denied.
2.025 "Hearings Officer." A planning and zoning Hearings
Officer appointed or designated by the Board of County Commissioners
pursuant to ORS 215.406 or, in the absence of such appointed Hearings
Officer, the Deschutes County Planning Commission.
2.030 "Land Use Action." Any action involving an applicatic
for a land use permit.
2.035 "Party." Any person who has standing to be heard
under Section 8.000.
2.040 "Permit." Authority for, or approval of a proposed
use of land for which approval is a matter of discretion and is
required by a land use ordinance. The term includes, but is not
limited to, permission given for those changes set forth in Section
2.005 and a special exception, special design zone and other similar
21 permits.
22 2.045 "Person." An individual, firm, partnership,
23 corporation, company, association, syndicate, or any legal entity,
24 and including any trustee, receiver, assignee or other similar
25 representative.
26 Section 2.050 "Planning Commission." The Deschutes Planning
Page 2 Ordinance PL-9
s
9 X293
r
1
Commission duly appointed by the Board.
2
- Section 3.000 Application of Ordinance. The following shall be
3
processed or conducted in accordance with the ordinance.
4
1. All permit applications.
5
2. All contested cases.
6
3. All reviews initiated by the Planning Commission or
7
Board of an initial hearing.
g
4. All appeals from Hearings Officer or Planning
9
Commission.
10
Section 4.000 Filing of Staff Report and Reply.
11
1. Within 20 days of the filing of an application for land
•
12
use permit, the Planning Department shall render a staff report
13
setting forth its findings and recommendation, if any.
14
2. A copy of the staff report shall be mailed or otherwise
15
delivered to the applicant, to the Hearings Officer and to such other
16
persons entitled to personal notice as may request the same and pay a
17
reasonable fee for the costs of the duplication, mailing and
18
administrative overhead.
19
3. Within 20 days after receipt of the staff report, the
20
applicant shall reply in writing to the findings and recommendations
21
set forth in said report, citing his exceptions, if any, thereto and
22
the reasons therefore. Failure to submit written exceptions to the
23
staff report shall constitute a bar to the presentation thereof at
24
the time of hearing.
•
25
4. A copy of the applicants reply shall be mailed or
26
delivered to the staff and Hearings Officer, and to such other persons
Page
3 Ordinance PL-9
29 FI VE294'
0
1 entitled to personal notice as may request the same and pay a reasonable
2 fee for the costs of the duplication, mailing and administrative
3 overhead.
4 5. Ten days after receipt of the applicant's reply or
5 response, the initial public hearing date shall be determined and
6 thereafter published.
7 Section 5.000 Notice of Hearing. At least ten days prior to said
g hearing, written notice shall be sent by mail to the following
9 persons: (1) The applicant;
10 (2) All property owners of record, as shown on the official
11 maps of the Deschutes County Tax Assessor, within 250 feet
• 12 of the property which is the subject of the application.
13 Whenever a larger notification area is provided for by
14. ordinance, statute or regulation, it shall be controlling.
15 (3) The failure of a property owner to receive mailed
16 notice shall not invalidate any land use action if a good
17 faith effort was made to give notice required by this
18 section. The date of mailing shall be considered the date
19 of notice.
20 Section 5.010 Contents of Notice. All notices prepared pursuant
21 to this ordinance shall contain:
22 (1)
23 (2)
24 official map,
25 (3)
26 (4)
Page 4 Ordinance
The date, time and place of the hearing;
A legal description and a facsimile of the tax assessor's
noting the subject property;
The nature of the proposed action;
A statement that all parties may appear and be heard.
PL-9
, VOL 29 PAGE 295
.J
1 Section 5.020 Published Notice. In addition to notice by mail,
2 notice of a hearing shall be published in a newspaper of general
3 circulation in the county at least ten days prior to the hearing.
4 Section 6.000 Burden of Proof.
5 1. The burden of proof is upon the one seeking change. The
6 degree of that burden increases proportionately with the degree of
7 impact of the change which is sought.
8 2. The applicant shall in all cases establish:
9 (a) Conformance with the Comprehensive Plan; and
10 (b) Conformance with all applicable statutes; and
11 (c) Conformance with all applicable ordinance provisions
12 setting forth the various criteria to be employed for rezoning,
13 conditional uses and variances; and
14 (d) Conformance with statewide planning goals wherever
15 they are determined to be applicable.
16 3. In addition to the requirements of subsection (2) of this
17 section, the applicant shall in the case of a requested rezoning
18 establish:
19 (a) That there is a public need for a change of the kind
20 in question; and
21 (b) That need will be best served by changing the
22 classification of the particular piece of property in question as
23 compared with other available property.
24 4. In the case of a rezoning, proof of a change of
• 25 circumstance or a mistake in the original zoning are additional
26 relevant factors to consider.
Page 5 Ordinance PL-9
•
VOL 29 FACE 296
1 Section 7.000 Nature of Evidence.
2 1. All evidence which is reliable; probative and substantial
3 shall be received. Such evidence shall be the type commonly relied
4 upon by reasonable prudent persons in the conduct of their serious
5 affairs.
6 2. The Hearings Officer may take notice of judicially
7
cognizable
facts
and may further take notice of general, technical or
g
scientific
facts
within his specialized knowledge. Parties at a
9 hearing shall be notified of any facts so noticed and afforded an
10 opportunity to contest the facts so noticed.
11 3. All evidence offered and received shall be made a part of
. 12 the record of the case and, except for the facts which are noticed,
13 no other factual information or evidence shall be considered in the
14 determination of the issue. Documentary evidence may be received in
15 the form of copies or excerpts, or by incorporation by reference.
16 4. Every party shall have the right of cross-examination
17 of witnesses who testify and shall have the right to submit rebuttal
18 evidence. Other participants permitted to testify or present evidence
19 shall have such rights as are determined by the Hearings Officer.
20 Section 7.010 Limitation on Oral Presentations.
21 1. The Hearings Officer may set reasonable time limits for
22 oral presentations. Parties shall submit prior to the hearing such
23 relevant and material evidence in writing as is necessary to support
24 their positions, and shall limit oral presentation to explanation of
25 the written presentation.
26 2. Groups who have standing under Section 8.000 shall
Page 6 Ordinance PL-9
'00 097
VOL PA
1 be encouraged to select spokesmen to present their position.
2 3. The Hearings officer may exclude or limit cumulative,
3 repetitious or immaterial matter.
4 Section 7.020 Oath or affirmation. The Hearings officer may
5 place any person submitting testimony under oath or affirmation.
6 Section 8.000 Standing. The following persons are affected
7 parties and shall be entitled to appear of record either by them-
8 selves or through counsel at a hearing:
9 1. All persons entitled to personal notice by mail;
10 2. A neighborhood group that represents at least 50% of
11 the property owners within the notification area;
12 3. Any person who demonstrates to the Hearings officer that
13 his legal rights are affected by the outcome of the hearing.
14 4. Any person within reasonably close proximity to the
15 property that is the subject of a hearing who demonstrates to the
16 Hearings Body that he could sustain substantial economic or aesthetic
17 injury as a result of a proposed land use action.
18 Section 8.020 Determination of' Standing. Whenever possible the matter
19 of the Standing of any person shall be determined prior to a hearing
y 20 before the Hearings Body. Where a question of standing arises during
zW¢°21 a hearing the Hearings Officer, Planning Commission or Board of Com
yQOa
JOUZ
-j`=wz22 missioners may determine the issue of standing at that time or may con-
NU~O1
U
~ ¢ N O W
J p j m r
oNW W 23 tinue the hearing until the issue of standing is resolved. A hear-
2
N
24 ing so continued shall be rescheduled at the direction of the Hearings
25 Officer or Planning Commission or Board of Commissioners.
26
Page 7 Ordinance PL--9
1 Section 9.000 Record.
2 1. A verbatim record of the hearing shall be made by
3 written or mechanical means.
4 2. All physical and documentary evidence presented shall be
5 marked to show the identity of the person offering the evidence and
6 whether presented on behalf of the proponent or opponent. Evidence
7 may be received subject to a later ruling as to its admissibility.
8 3. All exhibits received shall be retained by the Hearings
9 Officer until after any applicable appeal period has expired, at which
10 time the exhibit shall be released upon demand to the person identified
11 thereon.
12 Section 10.000 Challenge for Bias, Prejudgment or Personal Interest.
13 1. Prior to Commencement of a Hearing, any party may chall-
14 enge the qualifications of the Hearings officer, members of the Plan-
15 ning Commission or Board of Commissioners for bias, pre-judgment, or
16 personal interest _ . The challenge
17 shall be documented with specific reasons for said challenge.
18 2. No Hearings Officer or member of a hearing body or County
19 Commissioners shall participate in a hearing, except under the rule of
y 20 necessity, if:
2
ZWA°21 (a) He has a direct or substantial financial interest in
YQO1
J~QZR
~`Z&i22 the subject of the hearing;
COUM
7~y0W
°s=z~23
(b) He is related to the applicant or opponent in the
24 manner provided for in ORS 215.035;
25 (c) He is in business with the applicant;
26 (d) He has violatdd the prohibition on prehearing contacts
Page 8 Ordinance PL-9
VOL 9 f + .
las provided in Section 10.020;
2 (e) For any reason he determines affects his impartiality.
3 3.Upon challenge to the Hearings officer, hearings body
4 member or County Commissioner, or should the member or officer have
5knowledge of personal involvement in the manner described in subsection
6(2) of this section, he shall withdraw from the hearing or make a
7statement of his capacity to hear, which statement shall be a part of
8the record.
9 4. In the event that the Hearings Officer shall withdraw
10 from the hearing or disqualify himself, the Planning Commission may,
llupon notice given in the manner provided for in Section 5.000, 5.010
12and 5.020, hold the initial hearing pursuant to Section 2.020 et seq.
13 of this Ordinance.
14 Section 10.020 Prohibition on Pre hearing Contacts. The Hear_
15ings Officer, the Planning Commission and the Board of Commissioners
16shall not communicate directly or indirectly with any party as a6fined
17in Section 2.035 of this Ordinance or his representative in connection
18with any issue involved in a hearing except upon notice and opportunity
19for all parties to participate.
y 20 Section 11.000 Hearing Procedure A hearing shall be conducted G m,
°21in the following order:
Je w
-j o
0<=wi22 1. Explanation of the purpose of the hearing and a brief
fhU ~0pg
NU~4
~ ¢ N ~ W
°c;m~23statement of what the applicant must prove to have the request granted.
24 2. Call for challenges and abstentions.
25 3. Statement., of capacity to hear.
26 4. The staff report shall be presented. If a recommendation
Page 9 Ordinance PL-9
lis made, the report shall contain findings adequate to independently
2 support the recommendation d:f the report were the entire record.
3 5. Questions to the staff shall be permitted from any party.
4 6. Applicant's case shall be presented as follows:
5 (a) The applicant shall first be heard on his own behalf,
6 or by his agent or attorney.
7 (b) Upon failure of the applicant or his representative
8 to appear at the hearing, or upon his express waiver to present testi-
9mony, the written application, together with written and documentary
10 evidence submitted as part of the record, shall be considered as pre-
11 senting the applicant's case.
12 (c) Parties in favor of the applicant's request shall
13 next be heard.
14 7. Cross-examination of the applicant by the opponents shall
15be permitted. The Hearings Officer may regulate the method of cross-
16 examination, but shall allow reasonable time to both the opponents and
17to the applicant to answer all questions.
18 8. Opponent's case may be presented. Opponents shall be
19heard in the following order:
y 20 (a) Neighborhood organizations,
0
ZW~°21 (b) Persons entitled to written notice by mail,
Y¢OI~y
JOO=e~S
~`Z¢=op 22 (c) Persons not entitled to notice.
tAU8OS
OfyJ
SMP' 23 9. Cross-examination of opponents shall be in the same
24 manner as allowed the applicant.
25 10. Public agencies affected by the request shall be allowed
26 an opportunity to present evidence.
Page 10 Ordinance PLT9
1 11. Close of hearing and deliberation. The Hearing Officer
2 shall either make his decision and state the findings of fact or ;~on-
3 tinue deliberation to a subsequent date, the time and date of which
4 shall be announced. No additional testimony or evidence shall be
5 taken after closing of the hearing.
6 Section 11.020 (a). Objections to Jurisdiction, Procedure,
7 Notice, Qualifications. Any objections to lack of jurisdiction, fail-
8 ure to follow procedural requirements, failure to give proper notice
9 or objections to the qualifications of the Hearings officer or member
10 of the Planning or County Commissioners shall be made in writing not
11 later than ten (10) days prior to the date of the hearing unless such
12 objections arise during the course of the hearing itself. All such
13 objections shall be in writing if possible and shall state in detail
14 the grounds of the objection.
15 Section 11.020 (b). When an objection is raised to matters
16 contained in Sub-section (a) of Section 11.020, the objection may be
17 heard in accordance with the procedures of Section 8.020 of this Ordi-
18 nance.
19 Section 11.040 Voting., All motions, orders and actions of
H 20 the Planning Commission shall require passage by a majority of the mem-
zW¢° 21 bers of the Planning Commission present and voting. In no case, how-
XROOa
JOOZ
~Zwz
`p 22 ever, shall any measure, action, order or motion carry or be adopted
' U 8 O i
5MU.
JD Dr
W W 23 by a vote of less than four members of the Planning Commission voting
2
24 in favor thereof. Five members of the Commission shall constitute a
25 quorum.
26
Page 11 Ordinance PL-9
. Wt kAJ2
1 Section 12.000 Re--application Limited. if a specific application
2 is denied, no re-application for substantially the same proposal may be
3made for six (6) months following the date of the final decision.
4 Section 13.000 Review by Planning Commission and/or Board.
5 1. A review of the Hearings Officers' actions and decisions
6may be initiated individually or jointly by the Planning Commission or
7the Board.
8 2. The review shall be ordered within 15 days of the date. of
9the final written decision of the Hearings officer.
10 3. A review hearing shall be conducted in the same manner pro-
11vided for in appeals.
12 Section 14.000 Appeal.
13 1. The decision of the Hearings Officer or Planning Commission
14shall be final unless a notice of appeal is received by the Planning
15Director within fifteen days following the mailing of the final written
16determination by the Hearings Officer or Planning Commission to the
17applicant and to such other persons entitled to personal notice or who
18may request the same in writing and pay a reasonable fee for the costs
19of duplication, mailing and administrative overhead.
y 20 2. Any affected or aggrieved party may file a notice of
g
=W¢°12lappeal, or an appeal may be initiated upon motion of the Planning Com--
Yecorn~y
Wzo.
JU>UZAS
0` 11p 22mission.
fA U8OS
U
MCW
O0~w
=m'23 3. The appeal of an initial hearing shall be first addressed
24to the Planning Commission and an appeal from a decision of the Plan--
25ning Commission shall be addressed to the Board.
26
Page 12 Ordinance PL-9
Vol tan
1 Section 14.01 0 Notice of Appeal .
2 1. Every notice of appeal shall contain:
3 (a) a statement of the interest of the petitioners in
4 order to determine if he was an affected or aggrieved party.
5 (b) a reference to the application sought to be reviewed
6 including the date of the final decision of the Hearings Officer.
7 (b) the specific grounds relied upon for the appeal.
8 (d) a statement showing how the Hearings Officer, Plan-
9 ningcCommission or Board erred in the application of the prescribed
10 criteria and requirements, and erred in the determination of the basic
11 facts to support the decision.
12 Section 14.020 Notice of Hearing on "Appeal.
13 1. Notice of the hearing and a record of proceedings or re-
14 view shall be the same as required for an initial hearing.
15 2. If the hearing is to beheld de novo pursuant to Section
16 14 . 020 (4) , (a) and (b), notice of such fact shall also be given.
17 3. Except as provided by subsection (4) of this section;
18 the review of the initial hearing shall be confined to the record of
19 the proceeding below, which shall include:
20 (a) All materials submitted by any party to the pro--
pN
S
ZW~°§ 21 ceeding which were duly received or considered by the hearings officer
Y¢Oa°
JOUZR
<=W= 22 and Planning Commission as evidence,;
~Q~0.
f y O W
23 (b) All materials submitted by the Planning Department.
24 (c) The tape recording and the minutes of the hearing;
25 or a transcript of the hearing if requested by the Board;
26 (d) The findings made and actions taken by the Hearings
Pagel3 Ordinance PL--9
a M. w304,
I Officer or Planning Commission and the notice of appeal
2 (e) Argument by the parties or their legal representa--
3 tives at the time of review by the Hearings officer or Planning Com-
o mission.
5 4. (a) A party may request a de novo hearing by filing a
6 written motion with the Planning Commission or Board of Commissioners,
7 within fifteen; days following the mailing of the f_na.l written deter.--
g mination by the Hearings officer or Planning Commission as set forth
9 in Section 14.000 (1). The motion shall set forth the reasons for the
10 requested de novo hearing.
11 (b) The Planning Commission or Board of. Commissioners may
12 grant or deny the motion for a de novo hearing. Not later than 14 days
13 prior to the time the matter is set for a hearing, the Planning Com-
14 mission or Board or its' representative shall. notify the applicant and/or
15 parties filing the appeal or their representatives whether_ the motion
16 has been granted or d:enied.. In the event that such notice is not forth-
17 coming within such 14 days prior to the date of the hearing, the motion
18 shall be deemed to have been denied.
19 Upon granting the motion, the Planning Commission or Board may
w 20 determine to conduct the hearing on appeal either fully de novo or
N
zW~°°s 21 de novo on the record. If the motion is denied, the hearing shall be
Y¢0-.'
U N
'-'lw22 conducted in conformance with Section 14.020 (3).
5¢ooa
0 _W -
°o;m~ 23 (c) A de novo hearing on review shall be conducted. in
24 conformance with Section 11.000.
25 5. The Planning Commission or the Board may affirm, reverse
26 or amend the action taken at the initial hearing, and may grant
Page 14 Ordinance PL-9
I approval subject to such conditions as are deemed necessary to carry
2 out the comprehensive plan or other applicable laws, ordinances or
3 regulations. The Board may also remand the matter back to the Hear-
4 ings Officer for further review or information.
5 6. In all cases the Planning Commission or Board shall make
6 findings of fact based on the evidence before it, or it may adopt the
7 findings of the hearings officer as its own. Following the close of.
8 the hearing the Planning Commission or Board shall either make its
9 decision and state the findings of fact or continue deliberation to a
10 subsequent date, the time and date of which shall be announced. No
11 additional testimony or evidence shall be taken after_ the close of the
12 hearing. Findings of fact shall be signed by the Chairman of P1.an-
13 ning commission or the Board and filed with the Planning Director.
14
7.
The
Planning Commission or Boards' decision
shall be-
15
come final on
the
fifteenth day following the mailing of
the final
16
17
18
19
W 20
0
YQO°- 21
~OU2~
yaZWZ 22
~~8.0
C NV O=
U
23
24
25
26
written determination as set forth in Section 14.000 (1), unless a
rehearing is made pursuant to Section 15.000, or an appeal of a Plan-
ning Commission's decision is requested pursuant to Section 14.000.
Section 15.000 Rehearing' b" the Board of Commissioners. The
Board may rehear a matter on its own motion, or upon petition of an
affected or aggrieved party, pursuant to this section.
1. A motion for rehearing shall be made, if at all, within
1O.-'days after the Board's decision.
2. At the meeting at which the Board determines to rehear
the matter it shall set the time and place for such rehearing which
shall not be later than 21 days from the date of the decision upon
Page 15 Ordinance PL-9
• r•
r
I
Va. 2 9 w 3w
1 first review.
2 3. A rehearing may be heard in any manner provided for in
3 the first review, except that all new evidence and testimony intro-
4 duced at the first review shall also be included in the record.
5 4. No action shall be reheard more than once.
6 Section 16.000 Changes and Amendments . This ordinance may
7 be amended, supplemented or changed by the Board. A proposal for
8 change or amendment may be initiated by the Board, the Planning Di-
9 rector, the Planning Commission, the Hearings officer or by the pe-
10 tition of any property owner. All proposals shall be submitted in
11 typdd draft form.
12 Section 17.000 Severability. it shall be considered the
13 legislative intent of this ordinance that if any part of this ordi-
14 nance is held unconstitutional or otherwise void, or is repealed or
15 impliedly repealed by federal or state law or county ordinance, it
16 shall remain in force except:
17 1. The remaining provisions which are so essential and in-
18 separably connectdd with and dependent upon the unconstitutional or
19 otherwise void or repealed part, that it is apparent that such re-
20 maining provisions would not have been enacted with the unconstitu-
0
WZ=°§21 tional or otherwise void parts or repealed part; and
Y¢Om,
JO OZ
~~=Q222
(082. 2. The remaining provisions which, standing alone, are in-
s~~ow
oNWW 23
°=mom complete and incapable of being executed in accordance with the
24 legislative intent.
25 Section 18.000 Publication and Effect of Rules.
26 1. To the extent that these rules conflict with rules of pro-
Pagel'6 Ordinance PL-9
VOL 2 o407
1 cedure established by another land use ordinance, these rules shall
2 apply.
3 2. Thesb rules shall be published and made available for the
4 cost of reproduction to all persons requesting them.
5 The foregoing ordinance being necessary for the immediate pre-
6 servation of the public peace, health and safety, an emergency is de-
l clared to exist, and this ordinance takes effect on the Ist day of
8 November, 1978.
9
10
11
12
13
14
15
16
DESCHUTES COUNTY BOARD OF COMMISSIONERS
CWIMISSION
17
18
19
N 20
0
WZ~° 21
JO01
yG~00
0Q8mc 22
J _ 7 m
°awzw~ 23
S
U
y
24
25
26
Page 11 Ordinance PL-9