Chapter 18.172 ADMINISTRATION PROVISIONS

Chapter 18.172
ADMINISTRATION PROVISIONS

Sections:

18.172.010 Quasi-judicial hearing authority.

18.172.020 Application.

18.172.030 Health department approval.

18.172.040 Form of petitions, applications and appeals.

18.172.050 Filing fees.

18.172.060 Planning director decisions.

18.172.070 Notice of public hearing.

18.172.080 Members of the planning commission.

18.172.081 Public hearing and order of proceedings.

18.172.090 Land use decisions.

18.172.100 Revocation or modification of permit.

18.172.110 Appeals.

18.172.010 Quasi-judicial hearing authority.

(1) The county court hereby designates that the hearing authority to conduct hearings in a quasi-judicial capacity in order to make land use decisions is the Crook County planning commission.

(2) Whenever the court determines it necessary, the court may appoint a hearing officer to have the same authority and powers as the planning commission.

(3) The county court may appoint agents to issue zoning permits and to otherwise assist the secretary or planning director in the processing of applications.

(4) “Quasi-judicial” zone changes or plan amendments generally refer to a plan amendment or zone change directly affecting individual property owners and involve the application of existing policy to a specific factual setting. (The distinction between legislative and quasi-judicial actions must ultimately be made on a case-by-case basis with reference to case law on the subject.) (Ord. 18 § 9.010, 2003)

18.172.020 Application.

(1) The applicant shall make application to the director upon forms provided by the director for a land use permit or other planning director decision that may be made under this section.

(2) An application is deemed to be complete when in the judgment of the director all application issues have been adequately addressed in the application and all applicable fees have been paid to the county.

(3) If an application is incomplete, the director shall, within 30 days of receipt of the application, notify the applicant in writing of exactly what information is missing. The applicant may amend the original application or submit a new application supplying the missing information.

(4) The applicant shall have 180 days from the date of notice from the director to supply the missing information.

(5) If the applicant submits the missing information within the 180-day period specified in subsection (4) of this section, the application shall be deemed complete upon receipt of the missing information.

(6) For lands located within the urban growth boundary and for applications for mineral aggregate extraction, the hearing authority shall act upon a completed application within 120 calendar days of the filing of a completed application. For all other permit applications, the hearing authority shall act upon a completed application within 150 calendar days of filing of a completed application. Such time limitations can be extended with the consent of the applicant. (Ord. 231 § 1 (Exh. A), 2010; Ord. 216 § 2, 2009; Ord. 18 § 9.020, 2003)

18.172.030 Health department approval.

No zoning permit shall be issued for any use or structure, which will have an individual sanitary subsurface disposal system, until written approval is obtained by the applicant for said system from the county sanitation department. (Ord. 18 § 9.030, 2003)

18.172.040 Form of petitions, applications and appeals.

Petitions, applications and appeals provided for in this title shall be made on forms prescribed by the county. Applications shall be accompanied by plans and specifications, drawn to scale, showing actual shape and dimensions of the lot to be built upon; the sizes and locations on the lot of all existing and proposed structures; the intended use of each structure, the number of families, if any, to be accommodated thereon; the relationship of the property to the surrounding area; and such other information as is needed to determine conformance with this title. (Ord. 18 § 9.040, 2003)

18.172.050 Filing fees.

All fees described in this section shall hereafter be set annually as determined by the county court.

(1) All fees for permits, variances, zone map amendments, comprehensive plan amendments, zone text amendments, appeals, and any other necessary review or permits pursuant to this title shall be set annually as determined by the county court.

(2) Filing of an application is not considered complete until all applicable fee(s) are paid to the director.

(3) Refunds.

(a) If the applicant withdraws a land use application prior to the mailing of the notice on the matter, the applicant may apply to the planning department for a refund of a fee paid for that action.

(b) If the applicant withdraws a land use application before the seventh working day prior to the commencement of the first hearing on the matter, the applicant may apply to the planning department for a partial refund of a fee paid for that action.

(c) No refunds or partial refunds shall be granted by the director if the applicant withdraws a land use application on or after the seventh working day prior to the commencement of the first public hearing on the matter.

(d) The director shall within five working days of receiving an application for a refund or a partial refund make a determination whether to grant the refund or partial refund. If the planning director makes a determination to grant a refund or a partial refund, the director shall make the appropriate refund or partial refund of that fee to the applicant within 30 days.

(e) The applicant may file with the county court an appeal of a determination by the director to deny a refund or a partial refund of a land use application fee. The county court may grant a refund or a partial refund of a land use application fee upon good cause shown by the applicant.

(f) For purposes of this subsection, “partial refund” shall mean the filing fee less notice and reasonable staff costs.

(4) Fees charged for processing permits shall be no more than the actual or average cost of providing that service. (Ord. 155 § 1, 2005; Ord. 18 § 9.050, 2003)

18.172.060 Planning director decisions.

(1) Administrative Decisions.

(a) Subject to ORS 215.416(11), the planning director shall have the authority to make an administrative determination as set forth in specific zones in this title, which require the planning director to make such determinations.

(b) Within 10 working days after receiving a completed application for an administrative determination, the director shall make a determination, and if approved, issue a permit to the applicant.

(c) A copy of the administrative determination shall be made available to any person within 10 working days of the written request received by the director.

(d) The director shall cause a written notice of administrative determination and of the appeal procedure to be given to the applicant and to those persons who would have had a right to notice under this title if a hearing had been scheduled or who are adversely affected or aggrieved by the administrative determination. Such notice shall be given within five working days from the date of the determination.

(2) Extensions.

(a) A request for an extension to a land use approval shall be handled administratively by the planning director without public notice or hearing, and is not subject to appeal as a land use decision.

(b) The planning director shall grant up to four extensions to a land use approval regardless of whether the applicable criteria have changed, if:

(i) An applicant makes a written request for an extension of the development approval period; and

(ii) The request, along with the appropriate fee, is submitted to the county prior to the expiration of the approval period. (Ord. 216 § 2, 2009; Ord. 18 § 9.060, 2003)

18.172.070 Notice of public hearing.

(1) A hearing shall be held only after notice to the applicant and any other person required by law to be given notice.

(2) Notice of the hearing to approve any quasi-judicial land use matter shall be provided to the applicant and to the owners of record of property on the most recent tax assessment roll where such property is located within 500 feet of the property.

(3) Notice shall also be given to the following persons:

(a) Any person, agency, organization that has filed with the director a request to receive notices of hearings and has paid a reasonable fee to cover the costs of such notices;

(b) Any person, agency, organization that may be designated by this title;

(d) An owner of an airport, defined by the Department of Transportation as a “public use airport” in accordance with applicable state law;

(e) (On a zone change application.) A tenant of a mobile home or manufactured dwelling park as defined by state law in accordance with applicable state law.

(4) Notice shall be mailed at least:

(a) Twenty calendar days before the evidentiary hearing; or

(b) If two or more hearings are allowed, 10 calendar days before the first evidentiary hearing.

(5) The notice shall contain at least the following information:

(a) An explanation of the nature of the application and the proposed use or uses, which could be authorized;

(b) A listing of the applicable criteria from this title and the comprehensive plan that apply to the application at issue;

(c) A statement setting forth the street address or other easily understood geographical reference to the subject property;

(d) The date, time and location of the hearing;

(e) A statement that the failure of an issue to be raised in a hearing, in person or by letter, or failure to provide sufficient specificity to afford the decision-maker an opportunity to respond to the issue precludes appeal to the land use board of appeals based on that issue;

(f) The telephone number of the director and that the director is the person to contact for additional information;

(g) A statement that a copy of the application, all documents and evidence relied upon by the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;

(h) A statement that a copy of the staff report will be available for inspection at no cost at least seven calendar days prior to the hearing and will be provided at reasonable cost; and

(i) A general explanation of the requirements for submission of testimony and the procedures for conduct of hearings.

(6) The failure of a property owner, airport owner or tenant of a mobile home or manufactured dwelling park to receive notice shall not invalidate such proceedings if the director, commission or court can demonstrate by affidavit that such notice was given.

(7) For the purpose of personal notification, the records of the county assessor’s office shall be used.

(8) These notice requirements by mail shall not restrict the giving of notice by other means, including posting, newspaper publication, radio and television.

(9) Notice may be posted in a conspicuous manner in any of the following three locations:

(a) Crook County Courthouse;

(b) City of Prineville City Hall; and

18.172.080 Members of the planning commission.

(1) Planning Commission Established.

(a) With the adoption of the ordinance codified in this title the existing Crook County planning commission is abolished. Members currently serving will continue to serve until final written decisions are signed for all items which they have heard and taken action on.

(b) There is hereby created a new county planning commission (hereinafter referred to as the commission for the county of Crook, state of Oregon).

(2) Members of the Planning Commission.

(a) The commission shall consist of seven members appointed by the county court for four-year terms, or until their respective successors are appointed and qualified.

(b) Any vacancy on the commission shall be appointed by the county court for the unexpired term.

(d) Members of the commission shall be residents of the various geographic areas of the county.

(e) No more than two members shall be engaged principally in buying, selling or developing real estate for profit as individuals or be members of any partnership, or officers or employees of any corporation that is engaged principally in buying, selling or developing real estate for profit.

(f) No more than two voting members shall be engaged in the same kind of business, trade or profession.

(g) A member may have his or her term of appointment terminated by the county court if a change in occupation results in more than two members being engaged in the same kind of business, trade or profession.

(h) A member’s term of appointment may be terminated by the county court, after a hearing, if he or she is absent from 20 percent or more of the scheduled commission meetings or if he or she exhibits personal or business conduct which raises questions concerning his or her bias or objectivity in fulfilling the duties of a commissioner.

(3) Chairperson and Vice-Chairperson. The commission shall elect a chairperson and a vice-chairperson. The election shall be held annually at the commission’s first regularly scheduled meeting in January of each year, or at a later regularly scheduled meeting if necessary. Commencing with the January 2012 election of the chairperson, a commission member may not be elected chairperson if that member has served two consecutive one-year terms as chairperson immediately prior to the election.

(4) Secretary. The county planning department shall keep an accurate record of all commission proceedings.

(5) Procedures.

(a) The commission shall meet at least once a month, at such time and places as may be fixed by the commission or the planning department.

(b) A member of the commission shall not participate in any commission proceeding or action in which any of the following has a direct or substantial financial interest: the member or his or her spouse, sibling, child, parent, parent-in-law, partner, or any business in which he or she has a financial interest, or by which he or she is employed or has been employed within the previous two years, or any business with which he or she is negotiating for or has an arrangement or understanding concerning prospective partnership or employment. Any actual or potential interest shall be disclosed at the meeting of the commission where the action is being taken.

(c) A quorum of the planning commission shall be four planning commission members. A majority of the quorum voting in favor of a motion shall be sufficient to adopt that motion.

(6) Recommendation to County Court. All recommendations and suggestions made to the county court by the commission shall be in writing.

(7) Advisory Committees.

(a) The commission will serve as the county’s citizen involvement committee for land use issues. For the purpose of obtaining citizen participation in, and to assist in coordinating, land use planning for all lands situated within the county, the commission may establish advisory committees on land use planning for each geographic area considered to be a reasonable land use planning unit. Each such committee shall be composed of residents of the area concerned.

(b) The commission may also establish advisory committees on specific planning issues such as economics, housing, transportation, solid waste, natural resource management, open space, and recreation.

(c) The commission shall consult with each advisory committee established under subsections (7)(a) and (b) of this section in the preparation, adoption, revision, and implementation of a comprehensive plan and other plans for the county. The commission shall furnish each such committee with technical and other assistance.

(8) Finances. The commission may employ consultants to advise on county problems, and pay for their services, and for such other expenses as the commission may lawfully incur, including the necessary disbursements incurred by its members in the performances of their duties as members of the commission, out of funds at the disposal of the commission as authorized by the county court.

(9) Powers. The commission shall have all of the powers which are now or hereafter granted to it by the ordinances of this county or by the general laws of the state of Oregon. The commission shall make recommendations regarding subdivisions of land and land use to the county court, to public officials, and to individuals, and may make recommendations regarding location of thoroughfares, public buildings, parks, and other public facilities, and regarding any other matter related to the planning and development of the county. The commission may make studies, hold hearings, and prepare reports and recommendations on its own initiative or at the request of the county court.

(10) Expenditures. The commission shall have no authority to make expenditures on behalf of the county, or to obligate the county for the payment of any sums of money, except as herein provided, and then only after the county court shall have first authorized such expenditures by appropriate resolution, which resolution shall provide administrative method by which such funds shall be drawn and expended. (Ord. 212 § 2, 2009; Ord. 18 § 9.080, 2003)

18.172.081 Public hearing and order of proceedings.

(1) Call to Order. The chairperson shall state the case and call the public hearing to order.

(2) Time Allowances. The chairperson may establish the time allowed for the presentation of information.

(3) Objections. Any objections on jurisdictional grounds shall be noted in the record.

(4) Abstentions and Disqualifications. Any abstentions or disqualifications shall be determined and announced on the record.

(5) Conflicts of Interests. Members shall announce on the record all potential and actual conflicts of interest.

(6) Staff Reports. County staff may also present additional information whenever allowed by the chairperson during the proceedings.

(7) Site Visits. The hearing authority may view the area in dispute for purposes of evaluating the proposal, but shall state the place, time, manner and circumstances of such viewing in the record.

(8) Hearing Statement. At the commencement of the hearing, the chairperson shall cause a statement to be made to those in attendance. That statement shall include the following information:

(a) A list of the applicable substantive criteria;

(b) A statement that testimony and evidence must be directed toward the applicable substantive criteria or other criteria in the plan or land use regulation which the person believes to apply to the decision; and

(c) A statement that a failure to raise an issue with sufficient specificity to afford the decision-maker and the parties an opportunity to respond to the issue precludes an appeal to the commission, court or land use board of appeals based on that issue.

(9) Presentation of Evidence. Presentation of information or inquiries shall be given in the following order by those who:

(a) Are the applicant or those representing the applicant.

(b) Support the proposal.

(d) Do not necessarily support or oppose the proposal.

(10) Recognition of Speaker. Unless otherwise approved by the chairperson, in order to present oral or written testimony on the record during a public hearing, the presenter of evidence must stand, if possible, be fully recognized by the chairperson, and state the speaker’s full name and address before presenting any evidence.

(11) Rebuttal Testimony. Rebuttal testimony may be presented by persons who have testified supporting or opposing the proposal. The scope of the material presented during rebuttal shall be limited to matters, which were brought up during the course of the hearing. Rebuttal shall be first presented by the applicant or the applicant’s representative and then by those opposed to the proposal. The chairperson shall limit rebuttal to avoid repetition and redundancy.

(12) Written Argument. The chairperson shall call for any written argument from those that support or oppose the proposal.

(13) Acceptable Evidence. The commission shall consider only testimony, evidence and information that is relevant to the issue before the commission. Irrelevant, immaterial, or repetitious testimony, evidence or information shall be excluded by the chairperson.

(14) Recess of Hearing. Subject to ORS 215.428, the commission may recess the hearing on an application or proposal to obtain additional information or to serve further notice on person(s) determined to be necessary by commission. Upon recessing, the time and date when the hearing shall be resumed shall be announced. Additional mailed,

printed or posted notice shall be required if the matter is postponed more than six weeks.

(15) Holding the Record Open. Unless there is a continuance, if a participant so requests before the conclusion of the initial evidentiary hearing, the record shall remain open for at least seven calendar days after the hearing. Such an extension shall not be subject to the limitations of ORS 215.428.

(16) Closing the Public Hearing.

(a) Subject to a request to hold the record open before the conclusion of the initial evidentiary hearing, at the close of presentation of information, rebuttal and written argument, the chairperson shall declare that the hearing is closed unless there is a motion to continue the public hearing.

(b) If the hearing is closed, no further evidence shall be received except in response to specific questions directed to staff or to one of the parties to clarify earlier evidence. The opportunity for brief rebuttal shall also be afforded to adverse parties.

(17) Reopening the Record.

(a) Once a hearing has been closed, the record shall be reopened to submit new evidence or testimony only upon a majority vote of the hearing authority and only after a reasonable showing by the party requesting the record to be reopened that:

(i) There is evidence, which was not reasonably available at the time of the hearing;

(ii) The evidence was not available to the person seeking to reopen the hearing; and

(iii) The evidence is factual, substantial, and material.

(b) When the hearing authority reopens a record to admit new evidence or testimony, any person may raise new issues, which relate to the new evidence, testimony or criteria for decision-making, which apply to the matter at issue. (Ord. 18 § 9.081, 2003)

18.172.090 Land use decisions.

(1) Written approval or denial of an application for a use allowed by this title shall be based upon and accompanied by a brief statement that:

(a) Explains the criteria and standards considered relevant to the decision;

(b) States the facts relied upon in rendering the decision; and

(2) Following the signing of the land use decision made by the commission, the director shall cause to be issued a written notice of final decision which describes the decision of the hearing authority, the date of the final decision and the applicable appeal period.

(3) The date the land use decision becomes final shall be the date the decision is reduced to writing and signed by the commission or, if the commission so orders, its designee.

(4) The written notice of final decision shall be issued to:

(a) All parties to the proceeding;

(b) All persons who testified at the public hearing and those who submitted written testimony; and

(5) Subject to CCC 18.172.110, a permit shall not be effective or issued by the county until 10 calendar days after the final decision. (Ord. 18 § 9.090, 2003)

18.172.100 Revocation or modification of permit.

(1) The hearing authority may revoke or modify any permit granted under the provisions of this title on any one or more of the following grounds:

(a) For fraud, concealment, or misrepresentation or on the basis of wrong information supplied on the application, or given at a public hearing which materially relates to the reasons on which the permit was granted.

(b) The use for which such permit was granted is not being exercised within the time limit set forth by the commission or this title.

(d) The permit granted is being or recently has been exercised contrary to the terms or conditions of such approval.

(2) Any permit granted pursuant to this title shall become null and void if not exercised within the time period specified in such permit, or if no time period is specified in the permit, within one year from the date of approval of said permit.

(3) The commission shall hold a public hearing on any proposed revocation or modification after giving written notice to the permittee and other affected persons as set forth in this title. The hearing on the decision, which is subject to revocation or modification, is subject only to the standards, criteria and conditions that were applicable when the original permit was issued. The commission shall render its decision within 45 calendar days after the conclusion of the hearing. (Ord. 18 § 9.100, 2003)

18.172.110 Appeals.

(1) Every land use decision relating to the provision of this title made by the planning commission, hearing officer or other official of Crook County is subject to review when appealed within 12 calendar days of the date the decision was final in accordance with state statutes and the following provisions.

(2) The filing of an appeal in accordance with the provisions of this section initiates the appeal process and stays the order of the decision appealed. The process shall include appropriate public notice, a public hearing, and the preparation of findings by that authority which either affirms, amends, or reverses the decision appealed.

(3) All hearings of appeal from an administrative determination shall be de novo.

(4) All hearings of appeal from a planning commission final decision shall be based on the record made before the planning commission.

(5) A final decision not to adopt a legislative matter is not appealable.

(6) Appeals may be filed only by parties adversely affected by a land use decision as defined in the ORS. For purposes of this section, an adversely affected party shall include any of the following:

(a) The applicant or the authorized agent of the applicant; or

(b) Any person or county official testifying at the public hearing or who provided written comments may appeal a planning commission decision.

(7) The appellate body may review a lower determination or decision upon its own motion by issuing a written order to that effect on the lower body within 10 working days of the date the determination or decision becomes final. The appellate body must cause notice to be given to the parties involved within three working days of the appellate body’s order to review.

(8) Appellate Authority.

(a) The appellate body for appeals from administrative determinations of the director shall be the planning commission.

(b) The appellate body for appeals from final decisions of the planning commission shall be the county court, unless the county court orders the appeal be sent directly to the Oregon Land Use Board of Appeals as the final decision of the county.

(9) Filing Requirements.

(a) Appeals shall be complete and the appellate body shall have jurisdiction to hear the matter appealed if all the following occur:

(i) The appeal shall be in writing and shall contain:

(A) Name and address of the appellant(s);

(B) Reference to the application title and case number, if any;

(ii) A statement of the nature of the decision;

(A) A statement of the specific grounds for the appeal, setting forth the error(s) and the basis of the error(s) sought to be reviewed; and

(B) A statement as to the appellant’s standing to appeal as an affected party.

(iii) Proper filing fee in accordance with CCC 18.172.050.

(iv) Written notice of appeal must be filed within 12 calendar days of the decision with the appropriate person.

(A) To the planning commission from an administrative determination by the planning department;

(B) To the county court for appeals from final decisions by the planning commission.

(10) Notice and Hearing of the Appeal.

(a) Where practicable, the director shall place the appeal on the agenda for the next regularly scheduled appellate body’s hearing in order to determine whether or not the appeal has been properly filed.

(i) If the appellate body determines to dismiss the appeal, it must state in writing the reasons the application has not met the requirements for an appeal. Upon dismissal, the appealed decision is final.

(ii) If the appellate body determines that the facts stated in the notice of appeal meet the requirement for a hearing, it shall set a time for such hearing to be held not later than 60 calendar days after receipt of the notice of appeal. If the appellate body is the county court, the county court may order the appeal sent directly to the Land Use Board of Appeals as the final decision of the county without an appeal hearing.

(c) At least 10 calendar days prior to the hearing, the hearing authority shall give notice of time, place and the particular nature of the appeal. Notice shall be published in the newspaper and be sent by mail to the appellant(s), to the applicant (if different) and those persons who testified at the subject hearing where a hearing was held and affected parties in accordance with this section.

(11) Transcript. The appellant shall provide a copy of the transcript of the relevant portions of the proceedings appealed from to the county planning department seven calendar days before the hearing date set by the county court.

(12) Scope and Standard of Review of Appeal.

(a) On the Record Review. The appeal is not a new hearing, it is a review of the decision below. Subject to the exception in subsection (12)(a)(vi) of this section, the review of the final decision shall be confined to the record of the proceedings below, which shall include, if applicable:

(i) All materials, pleadings, memoranda, stipulations and motions submitted by any party to the proceeding and received by the planning commission as evidence.

(ii) All materials submitted by Crook County staff with respect to the application.

(iii) The transcript of the relevant portions of the planning commission hearing.

(iv) The written final decision of the planning commission and the petition of appeal.

(v) Argument (without introduction of new or additional evidence) by the appellants or their legal representative.

(vi) The appellate body may, at its option, admit additional testimony and other evidence from an interested party or party of record to supplement the record of prior proceedings. The record may be supplemented by order of the appellate body or upon written motion by a party. The written motion shall set forth with particularity the basis for such request and the nature of the evidence sought to be introduced. Prior to supplementing the record, the appellate body shall provide an opportunity for all parties to be heard on the matter. The appellate body may grant the motion upon a finding that the supplement is necessary to take into consideration the inconvenience of locating the evidence at the time of initial hearing, with such inconvenience not being the result of negligence or dilatory act by the moving party.

(b) Standard of Review on Appeal. The burden of proof in a hearing shall be as allocated by applicable law. The burden shall remain with the applicant to show that relevant criteria were met for an application throughout the local appeal process. For an appeal on the record, an appellant shall have the burden to articulate reasons why the initial decision is in error.

(13) Appellate Decisions. Following hearing the appeal, the appellate body may affirm, overrule or modify the decision and shall set forth findings showing compliance with applicable standards and criteria. (Ord. 231 § 1 (Exh. A), 2010; Ord. 18 § 9.110, 2003)