HomeMy WebLinkAboutWhether to Hear Appeal - Tumalo Irrig Distr\'J1ES
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of Wednesday, January 14, 2009
Please see directions for completing this document on the next page.
DATE: January 5, 2009
FROM: Paul Blikstad Community Development Phone # 6554
TITLE OF AGENDA ITEM:
Consideration of whether to hear an appeal of the Hearings Officer's decision on applications for
conditional use permits/partition, and a road dedication for Tumalo Irrigation District. The appeal was
submitted by Central Oregon Landwatch.
PUBLIC HEARING ON THIS DATE? No. This is only a discussion, with the possibility of the
Board determining whether to hear the appeal.
BACKGROUND AND POLICY IMPLICATIONS:
Tumalo Irrigation District received approval of the conditional use permits/partition and road
dedication applications in 2006. The Board declined review of the Hearings Officer's original decision.
The Hearings Officer's decision was appealed to LUBA by Central Oregon Landwatch. LLTBA
remanded the County's decision. A second hearing (remand hearing) was conducted in October of
2008. The Hearings Officer re -approved the applications. Central Oregon Landwatch has again
appealed the Hearings Officer's decision to the Board of County Commissioners.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Staff has calculated the 90 -day time period for remand decisions under ORS 215.435 for these
applications, and believes that the time period ended on December 15, 2008. This would not allow t
Board the opportunity to schedule a hearing, take testimony and issue a written decision within the time
frame listed. Staff believes that it would also not allow an on -the -record review. Additionally, staff
does not believe that the issues raised by the appellant warrant review by the Board.
ATTENDANCE: Paul Blikstad, Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
N/A
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or, us/cdd/
MEMORANDUM
DATE: January 5, 2009
TO: Board of County Commissioners
FROM: Paul Blikstad, Senior Planner
RE: Appeal of Hearings Officer's decision on LUBA Remand for CU -06-20, CU -06-22,
MP -06-7, RD -06-3 (A-08-22)
Tumalo Irrigation District (TID) received approval of conditional use permits for a nonfarm
dwelling on two parcels proposed as part of a partition of a 44.6 -acre parcel in the Exclusive
Farm Use Zone. Additionally, TID received approval of an application for a road dedication
included with the conditional use permits/partition applications. The Hearings Officer's original
decision was rendered on August 23, 2006. This approval was appealed to LUBA, which
remanded the decision back to the County. An additional hearing was held in front of the
Hearings Officer. The Hearings officer re -approved the applications addressing the issues
brought up in the LUBA remand.
Central Oregon Landwatch (Paul Dewey) has appealed the second Hearings Officer's decision
This appeal was submitted within the required 12 -day appeal period following the date o'
mailing of the remand decision.
The LUBA Remand public hearing on the above applications was held on October 21, 2008,
Evidence and testimony were submitted at the hearing and the written record was left open for a
period of time. The Hearings Officer's decision was mailed out on December 16, 2008, re -
approving the applications.
The appellant has listed several issues on appeal that they believe the Hearings Officer's
decision fails to adequately address. These issues are listed on pages 2 of the notice of appeal
application. They have requested de novo review.
These applications are limited to the 90 -day remand timeframe established under ORS 215.436 .
The applicant requested that the County initiate the remand process by the letter receive J
September 16, 2008. The 90 -day period extended through December 15, 2008. The Hearings
Officer's decision was mailed a day later. Staff believes that the Board does not have time to
hear this appeal. The applicant has not waived the remand review period. Additionally, staff
does not believe that the issues raised by the appellants warrant review by the Board. Staff
recommends that the Board deny review of the appeal.
For your review, I have provided copies of the following: 1) Hearings Officer's remand decision
2) the appellant's notice of appeal, and 3), a copy of ORS 215.435.
Quality Services Performed with Pride
BEFORE THE DESCHUTES COUNTY HEARINGS OFFI
DECISION ON REMAND
FILE NUMBER:
APPLICANT/
OWNER:
REQUEST:
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CU -06-20, CU. 06-22, MP 06-7 and RD 06-
Tumalo Irrigation District (TID)
64697 Cook Avenue
Bend, Oregon 97701
..a
CU -06-20, CU -06-22: Conditional use permits for nonfarm
dwellings on two parcels of 27.26 and 17.4 acres in the
Exclusive Farm Use — Tumalo/Redmond/Bend subzone
(EFU-TRB).
MP -06-7: Partition to divide a 44.66 -acre parcel into two
parcels — 27.26 acres and 17.4 acres.
RD -06-3: Road dedication for a proposed public road on
property south of the proposed parcel for the partition.
STAFF REVIEWER: Paul Blikstad, Senior Planner
DATE OF ORIGINAL DECISION: August 26, 2006
DATE OF DECISION ON REMAND: December 10, 2008
I. APPLICABLE STANDARDS AND CRITERIA:
ORS 215.435 Proceedings on Remand
OAR 660-012-0035 Transportation Planning Rule --Transportation Systems Plans
OAR 660-012-0065 Transportation Planning Rule --Transportation Improvements on
Rural Lands
Title 22, the Deschutes County Land Use Procedures Ordinance.
-Chapter 22.34 Proceedings on Remand
II. BASIC FINDINGS:
The hearings officer adopts the following undisputed facts from the 2006 decision:
A. LOCATION: The subject property proposed for the conditional use permits and
partition is identified on Deschutes County Assessor's map no. 16-12-31 as tax lot 100.
The subject property proposed for the new road is identified on County Assessor's map
Nos. 16-11, tax lot 10400, and 16-11-36D, tax lot 100.
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12/10/2008) Page 1 of 8
B. LOT OF RECORD: The property identified as 16-11-31, 100 is a legal lot of
record pursuant to County File No. LR -03-3. No lot of record determination has been
made on the tax Tots identified as 16-11, 10400 and 16-11-36D, 100.
C. ZONING: The property identified as 16-12-31, 100 is zoned Exclusive Farm Use —
Tumalo/Redmond/Bend subzone (EFU-TRB), with Surface Mining Impact Area (SMIA)
and Landscape Management (LM) combining zones. The property identified as 16-11,
10400, and 16-11-36D, 100 (surface mining site no. 357) is zoned Surface Mining (SM).
D. PROPOSAL: The applicant is proposing to establish nonfarm dwellings on two
parcels to be created by a partition of 16-12-31, tax lot 100 into two parcels. The
proposed parcel sizes for the nonfarm dwellings are 27.26 and 17.4 acres. The subject
property is not in farm use and has no water rights. Access to the proposed parcels is
from a new public road proposed to be dedicated over tax lots 16-11, 10400/16-11-36D,
100.
E. SITE DESCRIPTION: The subject property includes approximately 44.66 acres
and has a varied topography, including some level areas and higher rock outcrops. The
property slopes down from the west to the east toward Highway 20. The property has a
vegetative cover of juniper trees and scrub brush, as well as some grasses. The
property is currently undeveloped. Highway 20 forms a portion of the eastern boundary
of tax lot 16-12-31, 100.
The proposed new road is located on an approximately 511.34 -acre parcel, which has
been mined for cinder and pumice. This property is identified on the County's mineral
and aggregate inventory as mining site no. 357, which is currently active. The site
includes a vegetative cover of juniper trees and scrub brush in undisturbed areas of the
property.
F. SURROUNDING LAND USES: The subject property is in an area that can be
characterized as having some farming in the form of pasture, grass hay and some
livestock grazing. There is also much dry land in the area. Zoning in the area is
Exclusive Farm Use, Multiple Use Agricultural (MUA-10), Surface Mining (SM), with
some Rural Residential (RR -10). The Tumalo Urban Unincorporated Community is
located to the east and southeast of the subject property, and includes residential, 5 -
acre residential, commercial and research and development districts.
III. PROCEEDINGS ON REMAND
Background: In 2006, this hearings officer approved applications to partition the 44.66
acre parcel owned by TID into two parcels, and place dwellings on each. Further, the
decision permitted TID to dedicate a new rural road that will provide access to the site,
based on assurances that the new road will close accesses to Highway 20, a state
highway.' The Deschutes County Board of County Commissioners adopted the hearings
officer's decision as the final decision of the county on September 13, 2006. See Order
No. 2006-139.
1 The parties agree that the new road will also provide access to other parcels owned by TID and the
county, and will "pave the way," so to speak, for further partitioning of those parcels.
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12110/2008) Page 2 of 8
Central Oregon Landwatch appealed the decision to the Land Use Board of Appeals
("LUBA" or "Board.") Central Oregon Landwatch's petition for review included five
assignments of error. In an opinion issued on March 13, 2008, the Board concluded that
the hearings officer erred by: (1) failing to adopt findings that demonstrate that OAR 660-
012-0065(3)(g)(rural roads that reduce local access to state highways do not require an
exception to Goal 3) is satisfied, (2) failing to adopt a condition of approval that requires
the closure of access to Highway 20, and (3) failing to adopt a condition that predicates
approval of the partition with an agreement by the Oregon Department of Transportation
(ODOT) to provide secondary emergency access to the new parcels. The Board ruled
against Central Oregon Landwatch on three assignments of error.
On September 15, 2008, the applicant requested that the county initiate proceedings on
remand in accordance with state law and local code. A hearing was scheduled for
October 21, 2008. At the hearing, the applicant presented a revised burden of proof,
and argued that the applications could be approved with the imposition of conditions that
addressed LUBA's concerns. Paul Dewey, representing Central Oregon Landwatch,
requested that the record remain open to allow a response to the evidence and
arguments presented by the TID.
The hearings officer closed the public hearing, allowed written responses to the
applicant's presentation to be filed on or before November 4, 2008, and then allowed the
applicant to file rebuttal comments and arguments by November 18, 2008. The record
closed to all parties on November 18, 2008.
IV. RESOLUTION OF REMAND ISSUES
A. Compliance with OAR 660-012-0065(3)(q).2 As noted above, LUBA agreed with Central
Oregon Landwatch that the 2006 decision failed to articulate why the replacement of a 1951
2 OAR 660-012-0065 provides, in relevant part:
"(1) [OAR 660-012-0065] identifies transportation facilities, services and improvements which may
be permitted on rural lands consistent with Goals 3, 4, 11, and 14 without a goal exception.
"(2) For the purposes of this rule, the following definitions apply:
"(a) 'Access Roads' means low volume public roads that principally provide access to property
or as specified in an acknowledged comprehensive plan;
It
"(g) 'New Road' means a public road or road segment that is not a realignment of an existing
road or road segment.
"(3) The following transportation improvements are consistent with Goals 3, 4, 11, and 14 subject to
the requirements of this rule [i.e., the following improvements do not require an exception to
Goals 3, 4, 11 or 14 in order to be approved]:
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12/1012008) Page 3 of 8
deeded access with a secondary emergency access to Highway 20 will reduce local access to a
state highway. In LUBA's view, the surrender of a deeded, but unused, access does not
automatically result in a "reduction" in local access within the meaning of OAR 660-012-
0065(3)(g). Further, LUBA held that at a minimum, an approval that relies on a reduction in local
access must include conditions that insure the access is forfeited or removed prior to the
development of the approved use. Central Oregon Landwatch v. Deschutes County, Or
LUBA _ (LUBA No. 2006-178, March 13, 2008), slip op 9-11.
In response to this conclusion, TID submitted evidence that two access points onto Highway 20
will be surrendered to satisfy OAR 660-012-0065(3)(g). The first access is the 1951 access
(identified in the remand record as Highway Station 34+00), which the applicant asserts has
been used by both the applicant and the Laidlaw Water District, albeit infrequently.3 The second
access to be closed is an access that was used by the Laidlaw Water District.4
Central Oregon Landwatch argues that OAR 660-012-0065(3)(g) is not satisfied by merely
surrendering access points onto a state highway. In its view, the standard is satisfied only upon
a showing that the function of the new road is to divert trips from the state highway to the new
road. Here, the evidence shows that the new road is intended to serve new residential
development that would otherwise not be permitted, a function that Central Oregon Landwatch
asserts is not contemplated or allowed under OAR 660-012-0065(3)(g). In addition, Central
Oregon Landwatch argues that there must be some evidence that the water district will actually
have access to and use the new road to reduce the water district's use of Highway 20, and that
all use of the 1951 access point will cease if both the applicant and the water district forfeit their
access rights.5 Also, Central Oregon Landwatch argues that there must be some showing that
there will be a reduction in vehicular trips as a result of the forfeiture. Central Oregon
Landwatch asserts that the evidence shows that the applicant is giving up an access that is
used only a few times a year to create a new access that will add up to 100 vehicle trips per day
to the nearby road system, based on vehicle trips by up to 10 new dwellings that could be
permitted if the new access is allowed. Finally, Central Oregon Landwatch argues that merely
"(g) New access roads and collectors within a built or committed exception area, or in other
areas where the function of the road is to reduce local access to or local traffic on a state
highway. These roads shall be limited to two travel lanes. Private access and intersections
shall be limited to rural needs or to provide adequate emergency access."
3 The remand record includes aerial and ground level photographs depicting the access, and affidavits
from the applicant and the Laidlaw Water District averring that the access has been used by the districts.
See Applicant's Remand Burden of Proof, Exhibits 2, 6, 9 and 10.
4 This is a distillation of a rather more complicated arrangement between the applicant, the water district
and ODOT. In August 2008, ODOT approved the water district's use of the applicant's 1951 access onto
Highway 20. The applicant has proposed that the emergency access approach onto Highway 20 be
substituted for the water district and the 1951 accesses. The water district and ODOT have tentatively
agreed to this proposal, and in furtherance of it, the applicant has granted an access easement over tax
lot 400 to the water district to replace the Highway 20 accesses.
5 Central Oregon Landwatch also asserts that there must be some evidence that the 1951 access is
permitted by ODOT and legally recognized as an authorized approach to Highway 20. It argues that an
unpermitted (i.e., illegal) approach does not count as a "reduction in access." The hearings officer does
not agree that a lack of evidence that an approach is subject to an ODOT permit necessarily means that
the approach is illegal. The evidence shows that the applicant granted right-of-way for Highway 20 in
1951, but reserved for itself a right of access to the highway. The applicant supplied photos (both ground
and aerial) showing the access, and ODOT has acknowledged that the applicant has deeded access to
Highway 20. This is substantial evidence to support a finding that the applicant's access is legal.
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12/10/2008) Page 4 of 8
substituting one access onto Highway 20 for another, as is proposed by the applicant, does not
satisfy a standard that allows the establishment of a new road only if it diverts trips from the
highway altogether.
The applicant responds that OAR 660-012-0065(3)(g) permits a new road without a goal
exception if it either reduces local trips on a state highway or it reduces the number of accesses
onto the highway. See footnote 2, above. The applicant argues that its proposal both reduces
the number of accesses onto Highway 20 (from two to one) and reduces the number of vehicles
that use the highway as a local access road. In response to Central Oregon Landwatch's other
arguments, the applicant asserts that only the applicant and the water district have rights to use
the 1951 access and that the water district has been given an access easement from the new
road to its property, thereby eliminating the need for either the 1951 access or the water
district's own access. Finally, the applicant points to correspondence from ODOT staff that
agrees with the applicant's assertion that the proposed closure of two access points, and the
creation of a new emergency access onto Highway 20 in the future will satisfy ODOT's goal of
reducing local accesses onto state highways. Applicant's Remand Burden of Proof, Exhibit 8.
FINDING: LUBA faulted the initial decision for failing to demonstrate that the forfeiture of the
1951 access reduced "local access to or local traffic on a state highway" within the meaning of
OAR 660-012-0065(3)(g). The Board noted that there was no evidence that the access had
been constructed or allowed to be used, concluding the loss of a paper access did not satisfy
the standard. The evidence submitted by the applicant on remand shows (1) the access has
been used by the applicant; (2) the Laidlaw Water District has recently been given permission to
use the 1951 access as a service road; (3) ODOT has recognized the applicant's use of the
access since it was reserved in the 1951 deed. The evidence shows that the applicant and the
water district have or plan to use the 1951 access on a regular basis if the new local road is not
approved. Therefore, the applicant's proposal to surrender the 1951 access is more than just a
pro forma exercise.
With respect to the surrender of the Laidlaw Water District access at Station 44+65, ODOT
considers the water district's relinquishment of its right of access at Station 44+65 and the
relinquishment of the 1951 access to "reduce local access to and local traffic onto a [State]
highway." Applicant's Remand Burden of Proof, Exhibit 8, 1.
That view is supported by the text of OAR 660-012-0065(3)(g). Contrary to Central Oregon
Landwatch's argument, the proposed road must not function as a frontage road that diverts all
traffic away from the state highway. Rather, the road must direct local traffic to local roads,
which in tum lead to connectors, collectors, and then state highways. Here, the evidence shows
that the dedication of a new local road will absorb local trips from individual properties, and will
divert them away from Highway 20. Further, the applicant's and the water district's
relinquishment of two existing access points on Highway 20 for one emergency access will, in
the hearings officer's view, reduce local access to a state highway. Therefore, the proposal falls
within the OAR 660-012-0065(3)(g) exception.
To assure that the accesses are surrendered as proposed, a condition of approval is warranted
to require a demonstration that ODOT has permitted the new secondary emergency access in
exchange for the relinquishment of the two accesses.
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12/10/2008) Page 5 of 8
B. DCC 17.36.260 Fire Hazards.6 In the initial proceedings, the applicant provided evidence
that the new secondary emergency access to Highway 20 will assure that two access points are
available. However, the initial decision did not include a condition of approval requiring that the
secondary access be available prior to final partition plat approval. LUBA concluded that such a
condition is required to assure compliance with the criterion and remanded the decision for the
hearings officer to adopt the appropriate condition. In the alternative, the Board concluded that
the hearings officer could address the applicant's argument on appeal that such a condition is
not necessary for a two -parcel partition, because alternative access (e.g., a turnaround) could
be constructed to serve the proposed dwellings. Central Oregon Landwatch v. Deschutes
County, _ Or LUBA , slip op 15.
In its burden of proof on remand, the applicant requested that the hearings officer reconsider
DCC 17.36.260, and either find that a secondary access is not "possible" at this time, or find that
a condition of approval could be imposed to assure the availability of secondary emergency
access at the time the final partition plat is approved.
Central Oregon Landwatch argues that there is nothing in DCC 17.34.260 that permits the
hearings officer to waive the secondary access requirement if it is "possible." Further, Central
Oregon Landwatch argues that the secondary access is predicated on the partition of parcels to
the north of the site, which have not yet been approved. Therefore, it asserts, this application
must address the extension of the secondary access road through abutting properties to
Highway 20.
FINDING: Central Oregon Landwatch is incorrect. If the extension of the local access road to
Highway 20 is not approved, secondary access is "not possible," and therefore the applicant
does not have to meet the standard. If there is evidence that secondary emergency access is
possible, then it is appropriate to impose a condition to require that access be provided prior to
final partition plat approval. Bouman v. Jackson County, 23 Or LUBA 628, 646-47 (1992). A
condition of approval is imposed to ensure that secondary access is provided as proposed.
V. DECISION
CU 06-20, CU 06-22, MP 06-7 and RD 06-3 are again approved, subject to the following
conditions:
1. Approval is based upon the submitted plan. Any substantial change to the approved
plan will require a new application.
2. The dwellings shall be limited to 30 feet in overall height, unless a height exception is
approved under section 18.120.040 of Title 18.
3. Septic site evaluations for the new parcels shall be obtained, prior to final approval of the
plat.
6 DCC 17.36.260 provides, in relevant part: "Whenever possible, a minimum of two access points to the
* * * partition shall be provided to * * * assure( ] access for emergency vehicles and ease resident
evacuation.°
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12/10/2008) Page 6 of 8
4. The applicant shall have a licensed land surveyor prepare a partition plat which
conforms to Oregon Revised Statutes Chapter 92 and Title 17 of the Deschutes County
Code. The final plat shall show the exact parcel sizes for the parcels.
5. The final plat shall contain a statement of water rights, and be signed by an authorized
representative of the Irrigation District.
6. All ad valorem taxes, fees and other charges that have become a lien upon the entire
parcel shall be paid. The final plat shall be signed by the County Assessor and County
Tax Collector.
7. All easements of record shall be shown on the final plat.
8. Access permits for any new access onto a public road shall be obtained prior to final plat
approval.
9. The applicant shall pay a parks fee of $350.00 for each new parcel prior to final plat
approval.
10. The applicant/property owner shall sign and record the waiver listed under 18.16.050 for
adjacent farm and forest uses, prior to final plat approval.
11. The applicant shall sign and record with the County Clerk's Office waivers of
remonstrance for surface mining site nos. 357, 366, 370 and 488 for the subject property
prior to or at the same time as the final plat.
12. If the subject property is subject to farm tax deferral, the applicant shall disqualify the
subject nonfarm parcels from farm tax deferral and all other penalties or fees imposed by
the County Assessor as a result of disqualification shall be paid. Evidence that all taxes
due. have been paid shall be submitted to the Planning Division prior to final plat
approval.
13. The applicant shall dedicate that portion of the right of way for the new road on the final
plat, and shall construct the entire road from Tumalo Reservoir Road to the north
property line of the subject property to the County's rural local road standards. The road
construction/design plans, as well as the actual road construction, shall require review
and approval from the County Road Department, and shall be completed prior to final
plat approval.
14. Prior to final plat approval, the applicant must relinquish its reservation of access at
Highway Station 34+00 and physically remove the existing access at Highway Station
34+00 as a condition of Road Dedication, RD 06-03. Further, the applicant must provide
evidence that the Laidlaw Water District has relinquished its right to access Highway 20
for both Highway Stations 44+65 and 34+00.
15. The applicant must obtain ODOT approval for an emergency only access to Highway 20
across from Gerking Market Road prior to final partition plat approval. This emergency
only access shall provide a secondary access to the parcels in accordance with DCC
17.34.260.
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12/10/2008) Page 7 of 8
VI. DURATION OF APPROVAL
All conditions of tentative approval and submission of an application for final plat review of the
partition must occur within two (2) years from the date this decision becomes final, or an
extension of time pursuant to DCC 22.36.010 is obtained, or this approval shall lapse.
The applicant shall also apply for a building permit for the proposed nonfarm dwelling within four
(4) years of the date this decision becomes final, or obtain approval of an extension under Title
22 of the County Code.
Dated this 10119 day of December 2008
Mailed this (&) day of December 2008
Anne Corcoran Briggs
Hearings Officer
THIS DECISION IS FINAL WITHIN 12 DAYS OF MAILING UNLESS APPEALED AS
PROVIDED IN DCC TITLE 22.
CU 06-20, CU 06-22, MP 06-7, RD 06-3 (TID)
Hearings Officer Decision (12/10/2008) Page 8 of 8
DESCHUTES COUNTY
PLANNING DIVISION
117 NW Lafayette Avenue, Bend OR 97701
Phone: (541)388-6575 FAX: (541)385-1764 http://newberry.deschutes.or
APPEAL APPLICATION FORM
DATE SUBMITTED: t2/30IO$ FEE: ig 9S 6
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APPELLANT: C PJTRAL oQEGoN LANDwArt-c“ PHONE: (SLIt) 3t1—tS43
MAILING ADDRESS: 15 3 5 NW Vrck o icy CITY: 13%n.c ST: C)k ZIP: 47701
LAND USE APPLICATION BEING APPEALED:
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PROPERTY DESCRIPTION: T 1(. R i S 3 t TAX LOT: foo
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APPELLANT'S SIGNATURE )...51`�- Z.. DATE: i-z13o/oS
A1kor..sy ror `dj AplocUa.uf
IT IS THE RESPONSIBILITY OF THE APPLICANT (APPELLANT) TO COMPLETE A NOTICE OF APPEAL
AS SET FORTH IN CHAPTER 22.32 OF THE COUNTY CODE, "APPEALS."
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal;
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board statinil
the reasons the Board should review the lower Hearings Body's;
3. 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 the Board should provide de novo review as
provided in Section 22.32.027 of Title 22.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to
complete all of the above may render an appeal invalid. Any additional comments should be included
on the Notice of Appeal.
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANTS SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED FROM, FROM RECORDED MAGNETIC TAPES PROVIDED
BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE
RECORD). 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 THE DE NOVO HEARING OR,
IN ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
NOTICE OF APPEAL
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Attach additional sheet(s) for additional comments.
0299
Chapter 215 — County Planning; Zoning; Housing Codes Page 47 of 63
forestlands. [1987 c.729 §20]
215.433 Supplemental application for remaining permitted uses following denial of initial
application. (l) A person whose application for a permit is denied by the governing body of a county ( r
its designee under ORS 215.427 may submit to the county a supplemental application for any or all
other uses allowed under the county's comprehensive plan and land use regulations in the zone that was
the subject of the denied application.
(2) The governing body of a county or its designee shall take final action on a supplemental
application submitted under this section, including resolution of all appeals, within 240 days after the
application is deemed complete. Except that 240 days shall substitute for 120 days or 150 days, as
appropriate, all other applicable provisions of ORS 215.427 shall apply to a supplemental application
submitted under this section.
(3) A supplemental application submitted under this section shall include a request for any rezonin g
or zoning variance that may be required to issue a permit under the county's comprehensive plan and
land use regulations.
(4) The governing body of the county or its designee shall adopt specific findings describing the
reasons for approving or denying:
(a) A use for which approval is sought under this section; and
(b) A rezoning or variance requested in the application. [1999 c.648 §2; 1999 c.648 §2a]
215.435 Deadline for final action by county on remand of land use decision; exception. (1)
Pursuant to a final order of the Land Use Board of Appeals under ORS 197.830 remanding a decision to
a county, the governing body of the county or its designee shall take final action on an application for a
permit, limited land use decision or zone change within 90 days of the effective date of the final order
issued by the board. For purposes of this subsection, the effective date of the final order is the last day
for filing a petition for judicial review of a final order of the board under ORS 197.850 (3). If judicial
review of a final order of the board is sought under ORS 197.830, the 90 -day period established under
this subsection shall not begin until final resolution of the judicial review.
(2)(a) In addition to the requirements of subsection (1) of this section, the 90 -day period established
under subsection (1) of this section shall not begin until the applicant requests in writing that the county
proceed with the application on remand.
(b) The 90 -day period may be extended for a reasonable period of time at the request of the
applicant.
(3) The 90 -day period established under subsection (I) of this section applies only to decisions
wholly within the authority and control of the governing body of the county.
(4) Subsection (1) of this section does not apply to a remand proceeding concerning an amendmeit
to an acknowledged comprehensive plan or land use regulation or the adoption of a new land use
regulation that was forwarded to the Director of the Department of Land Conservation and Development
under ORS 197.610. [1999 c.545 §2]
215.437 Mandamus proceeding when county fails to take final action within specified time on
remand of land use decision. (1) If the governing body of a county or its designee fails to take final
action on an application for a permit, limited land use decision or zone change within 90 days as
provided in ORS 215.435, the applicant may file a petition for a writ of mandamus as provided in ORS
34.105 to 34.240. The court shall set the matter for trial as soon as practicable but not more than 15 s..ays
from the date a responsive pleading pursuant to ORS 34.170 is filed, unless the court has been advise -d
by the parties that the matter has been settled.
(2) A writ of mandamus issued under this section shall order the governing body of the county o its
designee to make a final determination on the application. The court, in its discretion, may order sue 1
remedy as the court determines appropriate.
(3) In a mandamus proceeding under this section the court shall award court costs and attorney f ;es
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