HomeMy WebLinkAbout90-00790-38517
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF
An Ordinance Providing for Uniform
Development Procedures, Repealing
Ordinance No. 82-011, Declaring an
Emergency, and Setting an
Effective Date.
y..,. ..._ M —7
p, 15914
DESCHUTES'COUNTY;` WLN
!v 9;: OF1LN1E0
ORDINANCE NO. 90-007
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY,
OREGON, ORDAINS as follows:
Section 1. ADOPTION OF UNIFORM DEVELOPMENT PROCEDURES. The
provisions of Title 22, Uniform Development Procedures, attached
hereto and incorporated herein as Exhibit "A," are hereby enacted
and made a part of the Deschutes County Code.
Section 2. REPEAL. Ordinance No. 82-011, as amended, is
hereby repealed.
Section 3. CONFLICTS WITH OTHER PROVISIONS. Except as set
forth herein, this Ordinance shall supersede any provision or
part thereof of any other ordinance that is in conflict herewith.
Section 4. CORRECTIONS. This Ordinance may be corrected by
order of the Board of County Commissioners to cure editorial and
clerical errors.
Section 5. 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 Ordi-
nance shall so expressly provide. Such ordinances repealed shall
be treated as still remaining in force for the purpose of sus-
taining any property action or prosecution for the enforcement of
such penalty, forfeiture, nuisance, obligation or liability.
Section 6. EMERGENCY AND EFFECTIVE DATE. This
being necessary for the immediate preservation of the
peace, health and safety, an emergency is declared to
this Ordinance takes effect on December 17, 1990.
1 - ORDINANCE NO. 90-007 (12/13/90)
Ordinance
public
exist, and
1®s - 1595
DATED this day of ACL MjL4� , 1990.
THE BOARD OF COUNTY COMMISSIONERS
OF DESC ES COUNTY, OREGON
7Z5S"RI TOW RANTE, Commissioner
pj�j �
AT S TO �Ty , Ch
�� l(5,Lre
Recording Secretdry DLI , issioner
2 - ORDINANCE NO. 90-007 (12/13/90)
105 - 1596
EXHIBIT "A"
DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE
Chapter 22.04 Introduction and Definitions
Chapter 22.08 General Provisions
Chapter 22.12 Legislative Procedures
Chapter 22.16 Development Action Procedures
Chapter 22.20 Review of Land Use Action Applica-
tions
Chapter 22.24 Land Use Action Hearings
Chapter 22.28 Land Use Action Decisions
Chapter 22.32 Appeals
Chapter 22.36 Limitations on Approvals
Appendix A Preliminary Statement in Land Use
Action Hearings before the Board of
County Commissioners
1 - EXHIBIT "A" (12/13/90)
I
105 • 1597
Chapter 22.04
INTRODUCTION AND DEFINITIONS
Section 22.04.010. INTRODUCTION AND APPLICATION.
1. 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 Develop-
ment Procedures Ordinance.
2. 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.
Section 22.04.020. DEFINITIONS. The following definitions
apply to this title.
1. "Development action" means the review of any permit, autho-
rization or determination that the Deschutes County Commun-
ity Development Department is requested to issue, give or
make that either:
A. involves the application of a County zoning ordinance
or the County subdivision and partition ordinance and
is not a, land use action as defined below; or
B. involves the application of standards other than those
referred to in subsection (a), such as the sign ordi-
nance.
For illustrative purposes, the term "development action"
includes review of any condominium plat, permit extension,
lot line adjustment, road name change, sidewalk permit, sign
permit, verification of legal lot, setback determination,
and lot coverage determination.
2. "Land use action" includes any consideration for approval of
a quasi-judicial plan amendment or zone change and any
consideration for approval of a land use permit.
3. "Land use permit" includes any approval of a proposed
development of land under the standards in the County zoning
ordinances or subdivision or partition ordinances involving
the exercise of significant discretion in applying those
standards.
2 - EXHIBIT "A" (12/13/90)
185 • 1598
By way of illustration, "land use permit" includes review of
conditional use permits, landscape management plans, farm or
non-farm dwellings, forest management plans, partition,
master plan, river setback exception, site plan, site plan
change of use, modification of condition, solar access,
solar shade exception, subdivision, and subdivision vari-
ance.
4. "Legislative changes" generally involve broad public policy
decisions that apply to other than an individual property
owner. These include, without limitation, amendments to the
text of the comprehensive plans, zoning ordinances, or the
subdivision or partition ordinance and changes in zoning
maps not directly affecting individual property owners.
5. "Quasi-judicial" zone change or plan amendment generally
refers to a plan amendment or zone change directly affecting
individual property owners and that involves the application
of existing policy to a specific factual setting. (The
distinction between legislative and quasi-judicial changes
must ultimately be made on a case-by-case basis with refer-
ence to caselaw on the subject.)
CHAPTER 22.08
GENERAL PROVISIONS
Section 22.08.010. APPLICATION REQUIREMENTS.
1. Property Owner. For the purposes of this section, the term
"property owner" shall mean the owner of record or the
contract purchaser and does not include a person who holds a
security interest.
2. Applications for development or land use actions shall:
A. Be submitted by the property owner or a person who
represents in writing that he or she has authority from
the property owner as defined herein to make the
application;
B. Be completed on a form prescribed by the Planning
Director;
C. Include supporting information required by the zoning
ordinance and that information necessary to demonstrate
compliance with applicable criteria; and
D. Be accompanied by the appropriate filing fee, unless
such fees are waived by the Board of County Commis-
sioners.
3 - EXHIBIT "A" (12/13/90)
105 1599
3. The following applications are not subject to the ownership
requirement set forth in subsection 2.A. of this section:
A. Applications submitted by or on behalf of a public
entity or public utility having the power of eminent
domain with respect to the property subject to the
application; or
B. Applications for development proposals sited on lands
owned by the state or federal governments.
Section 22.08.020. ACCEPTANCE OF APPLICATION.
1. Development action and land use action applications shall
not be accepted until the Planning Director has determined
that (1) the requirements of Section 22.08.010 have been met
and (2) the application is complete or the application is
deemed to be complete under state law.
2. An application is complete when in the judgment of the
Planning Director all applicable issues have been adequately
addressed in the application.
3. Acceptance of an application as complete shall not preclude
a determination at a later date that additional criteria
need to be addressed or a later determination that addi-
tional information is needed to adequately address appli-
cable criteria.
Section 22.08.030. INCOMPLETE APPLICATIONS.
1. If an application is incomplete, the Planning Director
shall, within thirty (30) days of receipt of the applica-
tion, notify the applicant in writing of exactly what infor-
mation is missing. The applicant may amend his application
or submit a new application supplying the missing informa-
tion.
2. The applicant shall have thirty (30) days from the date of
notice from the Planning Director to supply the missing
information.
3. If the applicant submits the missing information within the
30 -day period specified in subsection 2 of this section, the
application shall be deemed complete upon receipt of the
missing information.
Section 22.08.040. APPLICABLE STANDARDS. With respect to
the acknowledged portions of the County's Comprehensive Plan, the
standards and criteria applicable to an application shall be the
standards and criteria applicable at the time the application was
first submitted if the application and requested information, if
4 - EXHIBIT "A" (12/13/90)
105 A 1600
any, are received within one hundred eighty (180) days of the
time the application was first submitted.
Section 22.08.050. NOTICE TO
addition to any notice required by
provide the notices required by 0
identified wetlands within 5 days
cation as complete. This section
until the Division of State Lands
copy of applicable portions of the
DIVISION OF STATE LANDS. In
this Title, the County shall
OR
215.418 concerning state -
of the acceptance of an appli-
shall not become operative
has provided to the County a
Statewide Wetlands Inventory.
Section 22.08.060. CONFLICTING PROCEDURES. Except as set
forth in this section, where other provisions of the Deschutes
County Code or Deschutes County ordinances specify procedures
with greater opportunity for public notice and comment, those
procedures shall apply. Notice procedures for abbreviated
Surface Mining Impact Area review under Section 4.110(11)(C) of
the Deschutes County Zoning Ordinance shall be as set forth in
that section.
Section 22.08.070. TIME COMPUTATION. Except when otherwise
provided, the time within which an act is reqired to be done
shall be computed by excluding the first day and including the
last day, unless the last day is a Saturday, Sunday, legal
holiday or any day on which the county is not open for business
pursuant to a county ordinance, in which case it shall also be
excluded.
Section 22.08.080. MAILING LIST. Any person may, upon
payment of a fee set by the Planning Director, request to receive
the Planning Division's weekly media update packet, which may
include a list of accepted applications, Planning Commission
agendas and Hearings Body notices.
CHAPTER 22.12
LEGISLATIVE PROCEDURES
Section 22.12.010 HEARING REQUIRED. No legislative change
shall be adopted without review by the Planning Commission and a
public hearing before the Board of County Commissioners. Public
hearings before the Planning Commission shall be set at the
discretion of the Planning Director, unless otherwise required by
state law.
Section 22.12.020 NOTICE.
1. Published Notice.
A. Notice of a legislative change shall be published in a
newspaper of general circulation in the county at least
ten (10) days prior to each public hearing.
5 - EXHIBIT "A" (12/13/90)
t
195 - 1661
B. The notice shall state the time and place of the hear-
ing and contain a statement describing the general
subject matter of the ordinance under consideration.
2. Posted Notice. Notice shall be posted at the discretion of
the Planning Director and where necessary to comply with ORS
203.045.
3. Individual Notice. Individual notice to property owners, as
defined in Section 22.08.010(1) of this title, shall be
provided at the discretion of the Planning Director, except
as required by ORS 215.508.
4. Media Notice. Copies of the notice of hearing shall be
transmitted to other newspapers published in Deschutes
County.
Section 22.12.030 INITIATION OF LEGISLATIVE CHANGES. A
legislative change may be initiated by application of individuals
upon payment of required fees as well as by the Board of Commis-
sioners or the Planning Commission.
Section 22.12.040 HEARINGS BODY.
1. The following shall serve as hearings or review body for
legislative changes in this order:
A. The Planning Commission.
B. The Board of County Commissioners.
2. Any legislative change initiated by the Board of County
Commissioners shall be reviewed by the Planning Commission
prior to action being taken by the Board of Commissioners.
Section 22.12.050 FINAL DECISION. All legislative changes
shall be adopted by ordinance.
CHAPTER 22.16
DEVELOPMENT ACTION PROCEDURES
Section 22.16.010. REVIEW OF DEVELOPMENT ACTION APPLICA-
TIONS.
1. A development action application may be handled administra-
tively by the Planning Director without public notice or
hearing.
2. The Planning Director has the discretion to determine that
for the purposes of this title a development action applica-
tion should be treated as if it were a land use action
application.
6 - EXHIBIT "A" (12/13/90)
105 - 1602
Section 22.16.020. DECISION.
1. Development action applications acted upon without notice or
hearing shall be approved or denied by the Planning Director
or his designee within 30 days of the application's accep-
tance by the Planning Director.
2. Notice of a decision shall be provided to the applicant or
the applicant's representative.
3. The decision may be appealed under section 22.16.030 of this
chapter.
4. A development action decision becomes final when no further
appeal under this title is possible.
Section 22.16.030. REVIEW OF DEVELOPMENT ACTION. If the
authority under which a development action is undertaken provides
a means of review or appeal of a decision independent from this
title, the review or appeal shall be in accordance with the
procedures independently provided and not in accordance with this
title. If the authority under which a development action is
reviewed does not provide a means of review or appeal of a
decision, then review or appeal shall be in accordance with
chapter 22.32 of this title.
CHAPTER 22.20
REVIEW OF LAND USE ACTION APPLICATIONS
Section 22.20.010. ACTION ON LAND USE ACTION APPLICATIONS.
1. The Planning Director may decide upon a land use action
application for other than a comprehensive plan amendment
and zone change administratively either with prior notifica-
tion, as prescribed under Section 22.20.020 or without prior
notification, as prescribed under Section 22.20.030 or he
may refer the application to the Hearings Body for hearing.
The Planning Director shall take such action within 30 days
of the date the application is accepted as complete. This
time limit may be waived at the option of the applicant.
2. Zone change and plan amendment applications shall be refer-
red to a hearing before the Hearings Body.
Section 22.20.020. ADMINISTRATIVE LAND USE DECISIONS WITH
PRIOR NOTICE.
1. Notice of the application shall be sent within ten (10) days
of acceptance of the application to persons entitled notice
under Section 22.24.030. Such notice shall include all the
information specified under section 22.24.040 except for the
items specified in subsections G. and J.
7 - EXHIBIT "A" (12/13/90)
105 - 1603
2. Any person may comment in writing on the application within
ten (10) days from the date notice was mailed.
3. The Planning Director's decision shall be made within thirty
(30) days after an application is accepted as complete.
This time limit may be waived by the written consent of the
Applicant.
4. Notice of the Planning Director's decision and the appeal
period shall be sent to all parties and to all members of
the planning commission.
5. The applicant and all persons commenting as provided in this
section constitute parties to the administrative decision.
Any party can appeal the decision in accordance with chapter
22.32, "Appeals," of this title. On appeal, a de novo hear-
ing shall be held.
Section 22.20.030. ADMINISTRATIVE DECISION WITHOUT PRIOR
NOTICE. The procedures for administrative decisions without
prior notice shall be the same as those set forth in Section
22.20.020 of this chapter, except that (1) no prior notice shall
be given and (2) the notice of decision shall contain the appli-
cable information required by Section 22.24.040 of this title.
Section 22.20.040. FINAL ACTION IN LAND USE ACTIONS.
1. Except as otherwise provided, the Board of County Commis-
sioners shall take final action in land use actions within
one hundred twenty (120) days after the application is
deemed complete.
2. If the applicant refuses or fails to submit missing informa-
tion within the 30 days specified in section 22.08.030 of
this title, the application shall be deemed complete on the
31st day after the application was first submitted and final
action of the Board of County Commissioners, if required,
shall be taken within one hundred fifty-one (151) days after
the application was first received.
3. The periods set forth in this section during which a final
decision on an application must be made may be extended for
a reasonable period of time at the written request of the
applicant.
4. Quasi-judicial comprehensive plan amendments are exempt from
the time limits established by this section.
Section 22.20.050. TEMPORARY APPROVAL.
1. The purpose of temporary land use approval is to allow an
applicant in certain hardship or emergency situations to
8 - EXHIBIT "A" (12/13/90)
105 - 1604
proceed with a land use action proposed in an application
made to the Planning Division before the Division completes
its review of the proposed use. In all cases, an applicant
receiving temporary approval must obtain final approval on
the submitted application pursuant to the procedures speci-
fied in this title.
2. Subject to subsection (5) of this section, the Board of
County Commissioners or the Planning Director may authorize
a temporary land use approval, provided:
A. An application for the land use approval has been
accepted as complete.
B. A fee for review of the temporary approval has been
paid.
C. The applicant has demonstrated good and sufficient
cause for such a temporary approval.
D. It appears that the application will be given final
approval in substantially the form submitted by the
applicant.
E. The applicant accepts each and every risk of loss and
damage that may result if the application is denied,
and further agrees in writing to hold County, its
officers, agents and employees harmless from such loss
and damage.
F. Applicant agrees in writing to restore the site to its
original condition if the application for the land use
approval is denied.
3. For the purposes of this section, "good cause" shall include
only hardship or emergency situations arising due to factors
that, through the exercise of ordinary diligence, the
applicant could not have been foreseen. Good cause does not
include an applicant's request for a temporary permit for
reasons of convenience only.
4. A temporary use approval shall not be granted for variances,
zone changes or plan amendments.
5. The scope of the temporary approval shall be limited to
allow the applicant to proceed only with that portion of the
proposed use justifying the applicant's claim of hardship or
emergency.
6. A temporary use approval shall expire as follows:
9 - EXHIBIT "A" (12/13/90)
10� 160
A. Six months from the date of approval, if no decision
has been reached on the underlying application;
B. On the date the appeal period runs on the decision on
the underlying application; or
C. On the date all appeals of the decision on the under-
lying application.
Section 22.20.060. APPLICATION AND SUPPORTING DOCUMENTS.
Except as provided for in section 22.24.130, "Continuances," of
this title, all documents or evidence relied upon by an applicant
for a land use approval shall be submitted to the Planning
Division as part of the application and be made available to the
public at the time notice is provided under Section 22.24.030 of
this title.
Section 22.20.070. AVAILABILITY OF ADMINISTRATIVE DECI-
SIONS. All administrative decisions for the preceeding month
shall be made available for public review at a location to be
designated by the Planning Director. In addition, the Planning
Director shall maintain for public inspection a registry of
administrative decisions for the previous 12 -month period.
CHAPTER 22.24
LAND USE ACTION HEARINGS
Section 22.24.010. FILING OF STAFF REPORT FOR HEARING.
1. At the time an application that in the judgment of the
Planning Director requires a hearing is complete, a hearing
date shall be set.
2. A staff report shall be completed fifteen (15) days prior to
hearing.
3. A copy of the staff report shall be mailed to the applicant,
made available to such other persons who request a copy and
shall be filed with the Hearings Body.
4. Oral or written modifications and additions to the staff
report shall be allowed prior to or at the hearing.
Section 22.24.020. HEARINGS BODY.
1. The following shall serve as the Hearings Body in this
order:
A. Hearings Officer.
B. Planning Commission, where the Planning Commission
initiates a review of an administrative action or
10 - EXHIBIT "A" (12/13/90)
10 1606
Hearings Officer's decision pursuant to Section
22.28.050 of this title.
C. Board of County Commissioners.
2. Where the Hearings Officer must decline to hear a matter on
the grounds of a conflict of interest, the Planning
Commission shall substitute for the Hearings Officer.
Section 22.24.030. NOTICE OF HEARING OR ADMINISTRATIVE
ACTION.
1. Individual Mailed Notice.
A. Except as otherwise provided for herein, notice of a
land use action application, other than for a utility
facility line, shall be mailed at least ten (10) days
prior to the hearing for those matters set for hearing,
or within ten (10) days after receipt of a complete
application for administrative action. Written notice
shall be sent by mail to the following persons:
1. The applicant.
2. Owners of record of property as shown on the most
recent property tax assessment roll of property
located:
a. Within one hundred (100) feet of the property
that is the subject of the notice where any
part of the subject property is within an
urban growth boundary;
b. Within two hundred fifty (250) feet of the
property that is the subject of the notice
where the subject property is outside an
urban growth boundary and not within a farm
or forest zone; or
C. Within five hundred (500) feet of the
property that is the subject of the notice
where the subject property is within a farm
or forest zone.
3. For a solar access or solar shade exception
application, only those owners of record iden-
tified in the application as being burdened by the
approval of such an application.
4. The owner of a public use airport if the airport
is located within 10,000 feet of the subject
property.
11 - EXHIBIT "A" (12/13/90)
105 - 16-07
5. The tenants of a mobile home park when the appli-
cation is for the rezoning of any part or all of a
mobile home park.
6. The planning commission.
B. Notwithstanding subsection 1.A.2.a. of this section,
all owners of property within 250 feet of property that
is the subject of a plan amendment application or zone
change application shall receive notice.
C. The failure of a property owner to receive mailed
notice shall not invalidate any land use approval.
2. Posted Notice.
a. Notice of a land use action application shall be posted
on the subject property by the applicant for at least
10 continuous days prior to any hearing or date set for
receipt of comments. Such notice shall, where practi-
cable, be visible from any adjacent public way.
b. Notice of an application for a utility facility line
approval shall be by posting the proposed route at
intervals of not less than one-half mile. The notice
shall be posted as close as practicable to, and be
visible from, any public way in the vicinity of the
proposed route.
C. Notice of a solar access application shall be posted as
near as practicable to each lot identified in the
application.
d. At least ten (10) days prior to any initial hearing,
the applicant shall provide an affidavit attesting to
the fact that notice has been posted as required by
this section. Failure to provide the affadavit as
required may result in continuation of the hearing, in
which case, the applicant may be deemed to have waived
the 120 -day time limit for the period of the continu-
ance.
3. Published Notice. In addition to notice by mail and
posting, notice of a hearing shall be published in a news-
paper of general circulation in the County at least ten (10)
days prior to the hearing.
4. Media Notice. Copies of the notice of hearing shall be
transmitted to other newspapers published in Deschutes
County.
12 - EXHIBIT "A" (12/13/90)
A
105 - 1608
Section 22.24.040. CONTENTS OF NOTICE.
1. All mailed notices of a land use action hearing or a land
use action application subject to administrative decision
shall:
A. Describe the nature of the applicant's request and the
nature of the proposed uses that could be authorized.
B. List the criteria from the zoning ordinance and the
plan applicable to the application at issue.
C. Set forth the street address or easily understood
geographical reference to the subject property.
D. State the date, time and location of the hearing or
date by which written comments must be received.
E. State that any person may comment in writing and
include a general explanation of the requirements for
submission of testimony and the procedures for conduct
of testimony.
F. If a hearing is to be held, state that any interested
person may appear.
G. State that failure to raise an issue in person at a
hearing or in writing precludes appeal by that person
to the Land Use Board of Appeals (LUBA), and that
failure to provide sufficient specificity to afford the
decision -maker an opportunity to respond to the issue
precludes appeal to LUBA based on that issue.
H. State the name of a county representative to contact
and the telephone number where additional information
may be obtained.
I. State that a copy of the application, all documents and
evidence relied upon the by the applicant and appli-
cable criteria are available for inspection at no cost
and will be provided at reasonable cost.
J. State that a copy of the staff report will be available
for inspection at no cost at least fifteen (15) days
prior to the hearing and will be provided at reasonable
cost.
K. All mailed notices shall contain the following state-
ment: NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR
SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE
THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE
PURCHASER.
13 - EXHIBIT "A" (12/13/90)
105 . 1609
2. All mailed and published notices for hearings shall contain
a statement that recipients may request a copy of the staff
report.
3. All mailed and published notices concerning applications
necessitating an exception to one of the statewide land use
planning goals shall state that a goal exception is proposed
and shall summarize the issues in an understandable manner.
Section 22.24.050. BURDEN OF PROOF. The burden of proof is
upon the one seeking change.
Section 22.24.060. NATURE OF EVIDENCE. All relevant evi-
dence shall be received.
Section 22.24.070. LIMITATION ON ORAL PRESENTATIONS. The
Hearings Body may set reasonable time limits on oral testimony.
Section 22.24.080. STANDING.
1. Any interested person may appear and be heard in a land use
action hearing.
2. Any person appearing on the record at the hearing or presen-
ting written evidence in conjunction with an administrative
action or hearing shall have standing and shall be a party.
3. Additionally, any owner of property to be burdened by a
solar access permit shall be considered a party at every
stage of the solar access permit decision process.
Section 22.24.090. RECORD.
1. A magnetic tape record of the hearing shall be made.
2. All exhibits presented shall be marked to show the identity
of the person offering the exhibit.
3. Exhibits shall be numbered in the order presented in two
categories, proponents and opponents, and shall be dated.
4. When exhibits are introduced, the proponent or opponent
exhibit number or letter shall be read into the record.
Section 22.24.100. DISCLOSURE OF EX PARTE CONTACTS. Prior
to making a decision, the Hearings Body or any member thereof
shall not communicate directly or indirectly with any party or
his representative in connection with any issue involved in a
pending hearing except upon notice and opportunity for all
parties to participate. Should such communication - whether
written or oral - occur, the Hearings Body member shall:
14 - EXHIBIT "A" (12/13/90)
105 • 1610
1. Publicly announce for the record the substance of such
communication; and
2. Announce the parties' right to rebut the substance of the ex
parte communication during the hearing.
Communication between County staff and the Hearings Body shall
not be considered to be an ex parte contact.
Section 22.24.110. CHALLENGE FOR BIAS, PREJUDGMENT OR
PERSONAL INTEREST. Prior to or at the commencement of a hearing,
any party may challenge the qualification of the Hearings Body,
or a member thereof, for bias, prejudgment or personal interest.
The challenge shall be made on the record and be documented with
specific reasons supported by facts. Should qualifications be
challenged, the Hearings Body or the member shall disqualify
itself, withdraw or make a statement on the record of its capa-
city to hear. A Planning Commission member with a conflict iden-
tified under ORS 215.035 must disqualify him or herself after
disclosure.
Section 22.24.120. HEARINGS PROCEDURE. A hearing shall be
conducted as follows:
1. The Hearings Body shall explain the purpose of the hearing
and announce the order of proceedings, including reasonable
time limits on presentations by parties.
2. A statement by the Hearings Body regarding pre -hearing
contacts, bias, prejudice or personal interest shall be
made.
3. Any facts received, noticed or recognized outside of the
hearing shall be stated for the record.
4. Challenges to the Hearings Body's qualifications to hear the
matter shall be stated and challenges entertained.
5. The Hearings Body shall list applicable substantive cri-
teria, explain that testimony and evidence must be directed
toward that criteria or other criteria in the comprehensive
plan or land use regulations that the person believes to
apply to the decision, and that failure to address an issue
with sufficient specificity to afford the decision -maker and
the parties an opportunity to respond precludes appeal to
LUBA based on that issue.
6. Order of presentation:
A. Open the hearing.
B. Staff report.
C. Proponents' presentation.
15 - EXHIBIT "A" (12/13/90)
105 - 1611
D. Opponents' presentation.
E. Proponents' rebuttal.
F. Opponents' rebuttal may be allowed at the Hearings
Body's discretion.
G. Staff comment.
H. Questions from or to the chair may be entertained at
any time at the Hearings Body's discretion.
I. Close the hearing.
7. The record shall be available for public review at the
hearing.
8. A form of preliminary statement incorporating the provisions
of this section is set forth as Appendix A to this title for
use by the Board of County Commissioners
Section 22.24.130. CONTINUANCES.
1. Except as set forth in this section, continuances shall be
granted at the discretion of the Hearings Body.
2. Any party shall be entitled, upon request, to a continuance
of the hearing if additional documents or evidence to those
supplied with the application are provided in support of the
application. Such a continuance shall not be subject to the
120 -day time limit set forth in Section 22.20.020 of this
title.
3. Any party shall be entitled, upon request, to receive a
continuance of the hearing if the staff report is changed
either by identification of applicable criteria not iden-
tified in the staff report initially made available to the
public.
4. The Hearings Body shall, where possible, set forth a time
certain for resumption of the hearing.
Section 22.24.140. CLOSE OF THE RECORD.
1. At the conclusion of the public hearing, the Hearings Body
shall either make a decision and state findings that may be
incorporated into a written decision, close the record and
take the matter under advisement, or leave the record open
for written testimony.
2. Any participant at a hearing before the Hearings Officer is
entitled upon request to have the record remain open for
submission of written testimony. Such an extension shall be
for at least seven (7) days and shall not count against the
120 -day period.
16 - EXHIBIT "A" (12/13/90)
105 - 1612
Section 22.24.150. OBJECTIONS TO JURISDICTION, PROCEDURE,
NOTICE OR QUALIFICATIONS. Any objections not raised prior to the
close of oral testimony are waived.
CHAPTER 22.28
LAND USE ACTION DECISIONS
Section 22.28.010. DECISION.
1. Approval or denial of a land use action shall be based upon
and accompanied by a brief statement that explains the
criteria and standards considered relevant to the decision,
states the facts relied upon in rendering the decision and
explains the justification for the decision based upon the
criteria, standards, and facts set forth.
2. Any portion of an application not addressed in a Hearings
Body's decision shall be deemed to have been denied.
Section 22.28.020. NOTICE OF DECISION. A Hearings Body's
decision shall be in writing and mailed to all parties; however,
one person may be designated by the Hearings Body to be the
recipient of the decision for a group, organization, group of
petitioners or similar collection of individual participants.
Section 22.28.030. DECISION ON PLAN AMENDMENTS AND ZONE
CHANGES.
1. Except as set forth herein, the Hearings Officer shall have
authority to make decisions on all quasi-judicial zone
changes and plan amendments. Prior to becoming effective,
all quasi-judicial plan amendments and zone changes shall be
adopted by the Board of County Commissioners.
2. In considering all quasi-judicial zone changes and those
quasi-judicial plan amendments on which the Hearings Officer
has authority to make a decision, the Board of County
Commissioners shall, in the absence of an appeal or review
initiated by the Board, adopt the Hearings Officer's deci-
sion. No argument or further testimony will be taken by the
Board.
3. Plan amendments requiring an exception to the goals or
concerning lands designated for forest or agricultural use
shall be heard de novo before the Board of County Commis-
sioners without the necessity of filing an appeal, regard-
less of the determination of the Hearings Body below. Such
hearing before the Board shall otherwise be subject to the
same procedures as an appeal to the Board under this title.
4. Notwithstanding subsection (3) of this section, when a plan
amendment subject to a subsection (3) hearing before the
17 - EXHIBIT "A" (12/13/90)
105 - 1613
Board of County Commissioners has been consolidated for
hearing before the Hearings Officer with a zone change or
other application not requiring a hearing before the Board
any party wishing to obtain review of the Hearings Officer's
decision on any of those other applications shall file an
appeal. The plan amendment shall be heard by the Board
consolidated with the appeal of those other applications.
Section 22.28.040. REAPPLICATION LIMITED. If a specific
application is denied, no reapplication for substantially the
same proposal may be made for six (6) months following the date
of the final decision.
Section 22.28.050. REVIEW BY PLANNING COMMISSION AND BOARD.
1. Review of an administrative action or a Hearings Body's
decision may be initiated by not less than two members of
either the Planning Commission or the Board of County
Commissioners.
2. The review shall be initiated in writing within ten (10)
days of the date of the mailing of the final written
decision of the Planning Director or lower Hearings Body.
3. Review shall be conducted in the same manner provided for in
appeals, except that an appeal fee and transcript shall not
be required.
Section 22.28.060. PROPOSED ORDER. The Hearings Body may
require that any prevailing party draft a set of proposed find-
ings and conclusions.
Section 22.28.070. COMPLIANCE WITH ORS 215.418.
1. Final approval of any activity referred to in ORS 215.418(1)
regarding state -identified wetlands must include the notice
statements required by ORS 215.418(3).
2. Individual notice to the applicant and the owner of record
consistent with ORS 215.418(5) shall be provided, unless
notice in the written decision notice satisfies that
requirement.
3. Failure of the County to provide notice as required in this
section shall not invalidate County approval.
4. This section shall not become operative until the Division
of State Lands makes available to the County a copy of the
applicable portion of the Statewide Wetland Inventory.
18 - EXHIBIT "A" (12/13/90)
CHAPTER 22.32
APPEALS
Section 22.32.010. WHO MAY APPEAL.
1. The following persons may file an appeal:
A. A party;
B. In the case of an appeal of an administrative decision
without prior notice, a person entitled to notice; and
C. A person entitled to notice and to whom no notice was
mailed. A person who, after such notices were mailed,
purchases property to be burdened by a solar access
permit shall be considered a person to whom notice was
to have been mailed.
2. A person to whom notice is mailed is deemed notified even if
notice is not received.
Section 22.32.020. NOTICE OF APPEAL. Every notice of
appeal shall include:
1. A statement raising any issue relied upon for appeal with
sufficient specificity to afford the Hearings Body an ade-
quate opportunity to respond to and resolve each issue.
2. A request that the Planning Division supply appellant with a
copy of the magnetic tape record of any hearing before the
Hearings Officer, unless such tape has already been
requested.
3. If a hearing was held, a transcription of the magnetic tape
record.
3. Failure to submit the transcription of the magnetic tape
record shall render a notice of appeal insufficient, except
that such transcript may be submitted within ten (10) days
after the date notice of appeal is filed or within 10 days
after the tape is mailed or given to the appellant, which-
ever is later.
Section 22.32.030. HEARING ON APPEAL.
1. All persons filing a notice of appeal shall be a party to an
appeal.
2. All parties shall be mailed notice of the hearing on appeal
at least ten (10) days prior to the hearing.
19 - EXHIBIT "A" (12/13/90)
. 1Q5 '' 1615
3. The review on appeal shall be de novo and shall be heard as
provided in chapter 22.24, "Land Use Action Hearings," of
this title, except as otherwise stated in this chapter.
4. The order of Hearings Body shall be as provided in Section
22.24.020 of this title.
5. The record of the proceeding from which appeal is taken
shall be a part of the record on appeal.
Section 22.32.040. LAND USE ACTION HEARINGS ON APPEAL FROM
THE HEARINGS OFFICER. Redundant testimony shall not be allowed.
Section 22.32.050. DEVELOPMENT ACTION APPEALS. Notice of
the hearing date set for appeal shall be sent only to the appli-
cant. Only the applicant, his or her representatives, and his or
her witnesses shall be entitled to participate. Continuances
shall be at the discretion of the Hearings Body, and the record
shall close at the end of the hearing.
Section 22.32.040. REHEARING. Rehearings shall not be
allowed.
Section 22.32.050. REMANDS. Applications shall not be
remanded to a lower level Hearings Body after appeal.
CHAPTER 22.36
LIMITATIONS ON APPROVALS
Section 22.36.010. DURATION OF APPROVAL. All land use
approvals shall be valid for a period of one year, unless a
longer duration is granted as part of the approval. The one year
period shall run from the date a land use approval is no longer
appealable.
Section 22.36.020. APPROVAL EXTENSION. Any land use appro-
val may be extended, prior to expiration, by the Planning Direc-
tor for periods of six (6) months up to an aggregate of one (1)
year. Such extensions shall be administrative, in writing, and
not subject to appeal.
20 - EXHIBIT "A" (12/13/90)
105 . 1616
December 17, 1990
MEMORANDUM
TO: BOARD OF COUNTY COMMISSIONERS
FROM: BRUCE W. WHITE, Assistant Legal Counsel
SUBJECT: DEVELOPMENT PROCEDURES ORDINANCE
COPY TO: RICHARD ISHAM, Legal Counsel
KAREN GREEN, CDD Director
GEORGE READ, Planning Director
FILE NO.: 1-672
This memo summarizes changes to the County Development Procedures
Ordinance. Because changes have been made since the ordinance
was last presented to the Board, this memo supersedes my memo of
October 24, 1990. I have attached a copy of the proposed ordi-
nance and for comparison a copy of Ordinance 82-011.
Background on Changes
The draft Development Procedures Ordinance 90-007 would replace
current County Procedures Ordinance 82-011. The changes in this
draft were prompted by legislative changes, policy input from the
Planning Commission, a desire to clarify certain aspects of our
procedures ordinance and/or to make it more closely conformed to
state -imposed requirements, and comments from the public.
The major change in this regard concerns the notice and hearings
procedures found in Chapter 22.24 of the draft. HB 2288 required
more extensive notice and more detailed notice in land use permit
proceedings. An additional piece of 1989 legislation that is
reflected in this draft is Chapter 837, Section 29 of 1989 Oregon
Laws, codified at ORS 215.418, which requires notice to the
Division of State Lands of applications received on and approvals
granted on property included on the statewide wetlands inventory.
Two new sections, Section 22.08.040 and 22.28.070, reflect this
legislation.
i
105 a 1617
Board of County Commissioners
Page 2
December 10, 1990
Other provisions have been added to reflect other provisions of
state law that were not previously included in the procedures
ordinance. For example, the notice provisions concerning appli-
cations for which an exception is required set out at Section
22.04.050(3) is required under state law. Likewise, subsection 1
of Section 22.28.010 regarding land use action decisions is also
a restatement of state law requirements. Section 22.28.030 con-
cerning plan amendments sets forth a procedure for Board consid-
eration of plan amendments that brings the County into compliance
with ORS 215.431.
Other changes concern the definition and distinction between
development actions and land use actions. Development action
procedures are in all cases decided administratively with notice
only to the applicant. Land use action determinations require
public notice and an opportunity for a public hearing. Under
recent Court of Appeals and LUBA decisions, county decision-
making under comprehensive plans and zoning ordinances that
involves discretion in interpreting County standards requires
notice of the land use action and an opportunity to request a
hearing. The changes in definition of what is included in a land
use action (and therefore requires notice and opportunity for a
hearing) has been expanded to more closely comply with state law.
Other changes have been made to clarify and set down on paper the
County's existing procedures. For example, development action
procedures are outlined in Chapter 22.16 where previously there
was little description of what those processes entailed. Another
example is Chapter 22.12 concerning legislative procedures. The
provisions of Chapter 22.08 with respect to application require-
ments are likewise clarification of existing practices.
Certain changes were included at the request of the Planning
Commission. Chief among these were additions to Section
22.20.050, "Temporary Approval," to require a stricter standard
for granting of temporary approvals and the requirements under
Section 22.24.030(2) of an affidavit of posting of notice for a
land use action. It should be noted that one recommendation of
the Planning Commission has not been adopted. The Planning
Commission had requested that a bond be required of all
applicants for temporary uses sufficient to cover the costs of
restoring the premises should final approval of the proposed use
ultimately be denied.
Certain changes reflect comments made by members of the public.
For example, the provision set forth at Section 22.08.080,
"Mailing list," allowing members of the public to get on the
105 1618
Board of County Commissioners
Page 3
December 10, 1990
Planning Division's media mailing list to receive a weekly update
on applications accepted by Planning. Another example is Section
22.08.070, "Computation of Time," which details how time periods
specified in the ordinance are calculated.
Finally, the form of the procedures ordinance has been changed
into a codified form and has been separated into chapters by
subject area.
Summary of Proposed Provisions
Chapter 22.04, "Introduction and Definitions". The major change
in this Chapter is to Section 22.04.020, "Definitions", which was
previously covered by Section 2 of Ordinance 82-011. The effect
of the change in the definition of "development action" and "land
use action" is to require more of the Planning Department's
approvals and determinations to be made under notice and public
comment requirements of state law. This will principally involve
public notice of Landscape Management applications.
Other new definitions set forth the distinction between quasi-
judicial procedures and legislative procedures.
Chapter 22.08, "General Provisions". The first two provisions of
this chapter are new provisions that are primarily housekeeping
in nature and reflect or clarify existing procedures in practice.
Sections 22.08.030, "Incomplete Applications," and Section
22.08.040, "Applicable Standards," have been picked up with minor
changes from Section 4 of Ordinance 82-011. With the changes,
they will apply to development action decisions as well as land
use action decisions. Section 22.08.050, "Notice to Division of
State Lands," is a new provision implementing the wetlands
notification legislation of 1989. Section 22.08.060, "Conflic-
ting Procedures," is a new section dealing with conflicts between
this procedures ordinance and other ordinances setting forth
procedures, such as the road naming ordinance. Section
22.08.070, "Time Computation," is a new section setting forth the
manner in which the time periods specified in the ordinance are
computed. It is taken from a similar provision found in the
County Code. Section 22.08.080, "Mailing List," notifies the
public that for a fee members of the public can receive the
weekly update on Planning Division activities received by the
media.
Chapter 22.12, "Legislative Procedures". The provisions in this
chapter are entirely new. Previously, the procedures ordinance
has not set forth procedures for legislative changes to the text
1Q5 • 1619
Board of County Commissioners
Page 4
December 10, 1990
of the comprehensive plan and zoning regulations. These provi-
sions are largely reflective of state law found in ORS Chapter
215. This chapter requires that all proposed legislative changes
be reviewed by the Planning Commission as well as the Board.
Chapter 22.16, "Development Action Procedures". With the excep-
tion of Section 22.16.030, "Review of Development Actions," the
provisions in this chapter are new. The previous procedures
ordinance did not detail the decision-making process concerning
development action applications for which no public notice or
hearing was required. Section 22.16.030, was included in Ordi-
nance 82-011, as amended, as Section 31.
Chapter 22.20, "Review of Land Use Action Applications". The
provisions of this chapter concern review of land use action
applications generally. Section 22.20.010, describes the manner
in which decisions may be made on land use action applications.
Section 22.20.020 and 22.20.030 describe the procedures for
making administrative decisions without a public hearing.
Section 22.20.040 sets forth the state law requirement for final
action on land use actions within 120 days. Section 22.20.050
sets forth the criteria for the grant of temporary approvals
prior to a final determination on a land use action application.
Section 22.20.060 sets forth the requirements for submission of
application and supporting documents.
Section 22.20.010, "Actions on Land Use Action Applications," is
adopted from Section 3.1 of Ordinance 82-011, as amended. It
provides for administrative decisions without prior notice where
Ordinance 82-011 did not. Section 22.20.030, "Administrative
Decision Without Prior Notice," implements that new option by
setting forth the procedures for making administrative decisions
without prior notice. Section 22.20.020, "Administrative Land
Use Decisions with Prior Notice," appeared in Ordinance 82-011,
as amended, as Section 3.
Section 22.20.040, "Final Action in Land Use Actions," contains
provisions from Section 4 of Ordinance 82-011.
As mentioned earlier, changes to Section 22.20.050, "Temporary
Approval," tighten the requirements for the granting of temporary
approvals. The principal changes are a tightened definition of
what constitutes "good cause" for granting a temporary approval
and a limitation on the scope of a temporary approval. Other
changes include clarification as to the purpose of and duration
of temporary approvals.
1Q 1620
Board of County Commissioners
Page 5
December 10, 1990
A Planning Commission recommendation to require a bond of all
temporary use applicants is not reflected in this draft. Staff
believes that the heightened threshold for obtaining temporary
approval and the limitation on the scope of temporary approval
lessen the need for posting a bond.
Section 22.20.060, "Application and Supporting Documents," is
included as is required by HB 2288, codified at ORS 197.763.
Section 22.20.070, "Availability of Administrative Decisions," is
a new provision requiring that recent administrative decisions be
set out for public review.
Chapter 22.24, "Land Use Action Procedures". Changes in this
chapter are principally in response to HB 2288. Section
22.24.030, found in Ordinance 82-011, as amended, as Section 7,
incorporates specific requirements of HB 2288 with respect to who
is entitled to notice to land use actions. Section 22.24.040
incorporates changes as to notice content as required by HB 2288.
Section 22.24.120, set forth in Ordinance 82-011, as amended, as
Section 16, incorporates changes required by HB 2288 concerning
hearing procedure, principally concerning what information the
hearings body must state for the record concerning the criteria
to be applied and certain other procedural information relevant
to the hearing and appeal process. Sections 22.24.130 and
22.24.140 concerning continuances and closing of the record
likewise reflect requirements of HB 2288. In addition, subsec-
tion (3) regarding continuances allows for continuances where
there are major changes in the staff report after it is first
made available to the public.
Subsection 3 of Section 22.24.040, "Contents of Notice," restates
the requirements of ORS 197.732(5) concerning land use action
applications requiring an exception to one or more of the state-
wide planning goals. Additions to Section 22.24.100, "Disclosure
of Ex Parte Contacts," found at Section 14 of Ordinance 82-011,
as amended, restate provisions of state law found at ORS
215.422(3) and (4). The additions to Section 22.24.110,
"Challenge for Bias, Prejudgment or Personal Interest," found in
Ordinance 82-011, as amended, at Section 15, concerning Planning
Commission conflicts of interest reflect the provisions of ORS
215.035.
Subsection 2 of Section 22.24.020, "Hearings Body Order," has
been added to allow the Planning Commission to substitute for the
hearings officer in the event of a conflict of interest. This
Board of County Commissioners
Page 6
December 10, 1990
situation arose recently, and this amendment codifies existing
practice.
The remaining sections of this chapter are substantially
unchanged from Ordinance 82-011, as amended. Those sections are
Sections 22.24.050, "Burden of Proof" (Section 9 of Ordinance 82-
011), Section 22.24.060, "Nature of Evidence" (Section 10 of
Ordinance 82-011), Section 22.24.070, "Limitation on Oral Presen-
tation" (Section 11 of Ordinance 82-011), Section 22.24.080,
"Standing" (Section 12 of Ordinance 82-011), Section 22.24.090,
"Record" (Section 13 of Ordinance 82-011), and Section 22.24.150,
"Objections to Jurisdiction, Procedure, Notice or Qualifications"
(Section 17).
Chapter 22.28, "Land Use Action Decisions". The provisions of
this chapter concern matters relating to decisions on land use
actions.
Section 22.28.010, "Decision," is new. Subsection (1) restates
provisions of state law concerning what form a decision should be
rendered in. The purpose of subsection (2) is to put applicants
on notice that any aspect of an application not dealt with by the
Hearings Officer is deemed denied.
Section 22.28.030, "Decision on Plan Amendments and Zone
Changes," is new. It deals with the requirement of ORS 215.431
that quasi-judicial plan amendments involving resource lands and
exceptions to the statewide planning goals must be adopted in all
cases by the Board of Commissioner after a hearing, regardless of
whether or not the decision of a lower level hearings body has
been appealed. It provides for an exception in the event the
plan amendment was heard below consolidated with a request for a
zone change or site plan or conditional use permit and a party
wishes to have one of those other applications reviewed.
Section 22.28.060, "Proposed Order", is new. This will allow the
hearings officer to require that the applicant draft a set of
proposed findings and conclusions.
Section 22.28.070, "Compliance with ORS 215.418," is new. It
reflects the requirements of ORS 215.418 concerning decisions on
lands identified as state wetlands.
Sections 22.28.020, "Notice of Decision," (Section 18 of Ordi-
nance 82-011), 22.28.040, "Reapplication Limited" (Section 19 of
Ordinance 82-011), and 22.28.050, "Review by Planning Commission
1622
Board of County Commissioners
Page 7
December 10, 1990
and Board" (Section 21 of Ordinance 82-011), are the same as in
Ordinance 82-011.
Chapter 22.32, "Appeals". Section 22.32.010, "Who May Appeal,"
is adapted from Section 22.2 and 22.3 of Ordinance 82-011, as
amended. The change recognizes that all persons receiving notice
of a decision in an administrative decision made without prior
notice can appeal such a decision.
Section 22.32.030, "Hearing on Appeal," found in Ordinance
82-011, as amended, as Section 24, has been amended. The
amendment, found in subsection 2, clarifies that all persons
entitled to notice of land use hearings are entitled to notice of
appeals. This reflects that our appeals process is conducted as
if the applicant were starting over.
Sections 22.32.040 and 22.32.050 set forth the particular proce-
dures on appeal in the context of appeals from the hearings
officer and appeals of development action decisions, respec-
tively. These are new sections.
Section 22.32.050, "Decision on Appeal," is a new section. It
clarifies that remands are not granted under the County's proce-
dures ordinance and that an appellant must seek a determination
on all issues relevant to its approval.
Sections 22.32.020, "Notice of Appeal" (found in Ordinance 82-011
at Section 23), and 22.32.040, "Rehearing" (found in Ordinance
82-011 at Section 25), remain unchanged from Ordinance 82-011.
Chapter 22.36, "Limitations on Approvals" Sections 22.36.010,
"Duration of Approval" (Section 26 of Ordinance 82-011), and
22.36.020, "Extension of Approval" (Section 27 of Ordinance
82-011), remain essentially unchanged from Ordinance 82-011.
BWW/prt
Attachment