Chapter 18.172
ADMINISTRATION PROVISIONS

Sections:

18.172.005    Definitions.

18.172.010    Quasi-judicial hearing authority.

18.172.015    Authority to make land use decisions.

18.172.020    Application.

18.172.025    Consolidated review of applications.

18.172.030    Health department approval.

18.172.040    Form of petitions, applications and appeals.

18.172.050    Filing fees.

18.172.060    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.

18.172.120    Remand by the county court.

18.172.130    Remand by the Land Use Board of Appeals.

18.172.005 Definitions.

For the purpose of this chapter, unless the context requires otherwise, the following words and phrases mean:

(1) Acceptance. Received and considered by the director to contain sufficient information and materials to begin processing in accordance with the procedures of this chapter.

(2) Appearance. Submission of testimony or evidence in the proceeding, either oral or written. A person’s name appearing on a petition filed as a general statement of support or opposition to an application without additional substantive content, and that typically contains the names of a number of other persons, does not constitute an appearance.

(3) Appellant. A person who submits to the department a timely appeal of a decision issued by the county.

(4) Applicant. A person who applies to the department for a decision under this chapter. An applicant must be an owner of the property or someone authorized in writing by the property owner to make application.

(5) Approval Authority. A person or a group of persons, given authority by Crook County Code to review and make decisions upon certain applications in accordance with the procedures of this chapter. The approval authority may either be the director, the planning commission, hearings officer, or Crook County court as specified for application types by this chapter or otherwise specified in this chapter.

(6) Argument. The assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by a party to a decision. Argument does not include facts.

(7) De Novo. A hearing by the review body as if the action had not previously been heard and as if no decision had been rendered, except that all testimony, evidence and other material from the record of the previous consideration will be considered a part of the review on the record.

(8) Director. The Crook County community development director or the director’s designated representative.

(9) End of Business. The end of the business day is 4:00 p.m. Pacific Time.

(10) Evidence. The facts, documents, data, or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision.

(11) Hearing Authority. The county court, planning commission, or a hearings officer appointed by the court under CCC 18.172.010(2).

(12) Land Use Decision. A final decision or determination made by a Crook County approval authority that concerns the adoption, amendment, or application of the statewide planning goals, a comprehensive plan provision, a land use regulation, or a new land use regulation where the decision requires the interpretation or exercise of policy or legal judgment.

(13) Land Use Regulation. Any Crook County zoning ordinance, land division ordinance adopted under ORS 92.044 to 92.046, or similar general ordinance establishing standards for implementing the Crook County comprehensive plan.

(14) Legislative. An action or decision involving the creation, adoption, or amendment of a law, rule, or a map when a large amount of properties are involved, as opposed to the application of an existing law or rule to a particular use or property.

(15) Ministerial. An action or decision based on clear and objective standards and criteria where no discretion by the approval authority is required.

(16) Owner. A person on the title to real property as shown on the latest assessment records in the office of the Crook County tax assessor. Owner also includes a person whose name does not appear in the latest tax assessment records, but who presents to the county a recorded copy of a deed or contract of sale signed by the owner of record as shown in the Crook County tax assessor’s records.

(17) Party. With respect to actions under this chapter, the following persons or entities are defined as parties:

(a) The applicant;

(b) Any owner of the subject property that is the subject of the decision under consideration in accordance with this chapter; and

(c) A person who makes an appearance before the approval authority or hearing authority.

(18) Permit. A discretionary approval of a proposed development of land under ORS 215 or county legislation or regulation adopted in accordance with ORS 215.

(19) Planning Commission. The planning commission of Crook County, Oregon.

(20) Quasi-Judicial. A land use action or decision requires discretion or judgment in applying the standards or criteria of this code to an application for approval of a development or land use proposal. (Ord. 317 § 6, 2020)

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 hearings 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 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. 317 § 6, 2020; Ord. 18 § 9.010, 2003)

18.172.015 Authority to make land use decisions.

(1) Except for comprehensive plan amendments and zone changes and other instances where a public hearing is required by state law or by other ordinance provision, the director may make any land use decision by issuing an administrative determination either with prior notice or without prior notice, in accordance with ORS 215.416(11) and CCC 18.172.060(1). The director may refer any application for a land use decision to the planning commission for a hearing.

(2) The planning commission shall annually establish a list of the types of land use applications the planning commission will review in a public hearing. The list shall be approved by the last meeting in January. The director shall to the extent practicable follow the decision of the planning commission. The director’s choice between making an administrative decision or submitting an application to the planning commission for a public hearing shall not be an appealable decision. (Ord. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010)

18.172.020 Application.

(1) The applicant shall make application to the director upon forms provided by the county.

(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. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; Ord. 231 § 1 (Exh. A), 2010; Ord. 216 § 2, 2009; Ord. 18 § 9.020, 2003)

18.172.025 Consolidated review of applications.

When an applicant applies for more than one type of land use or development permit for the same one or more contiguous parcels of land, the proceedings shall be consolidated for review and decision. When proceedings are consolidated, required notices may be consolidated, provided the notice shall identify each application to be decided. When more than one application is reviewed in a hearing, separate findings and decisions shall be made on each application. (Ord. 317 § 6, 2020; Ord. 303 § 1 (Exh. C), 2017)

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. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; 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. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; 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 county.

(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 or prior to the action of the director, 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 or after action of the director.

(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 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. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; Ord. 155 § 1, 2005; Ord. 18 § 9.050, 2003)

18.172.060 Director decisions.

(1) Administrative Decisions.

(a) Subject to ORS 215.416(11), the director shall have the authority to make an administrative determination on a land use application as set forth in specific zones in this title.

(b) After receiving a complete application for an administrative determination, the director shall make a determination and, if approved, issue a permit to the applicant in accordance with the requirements of ORS 215.427.

(c) 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 in accordance with the requirements of ORS 215.416(11).

(2) Extensions.

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

(b) The director shall grant up to four extensions to a land use approval regardless of whether the applicable criteria have changed (except where state law precludes), 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. 321 § 4, 2020; Ord. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; 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 in accordance with ORS 197.763(2).

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

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

(b) Any other person, agency, or organization that may be designated by the county court or its agencies;

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

(d) (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;

(e) Transportation agencies whose facilities are impacted by the proposed action or jurisdictions affected by the transportation impacts of future development resulting from the proposal.

(4) Notice of any quasi-judicial matter shall be mailed in accordance with the requirements of ORS 197.763(3)(f) 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, television, electronic mail or the county website.

(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

(c) The United States Post Office located in Prineville, Oregon. (Ord. 317 § 6, 2020; Ord. 303 § 1 (Exh. C), 2017; Ord. 236 § 5 (Exh. E), 2010; Ord. 18 § 9.070, 2003)

18.172.080 Members of the planning commission.

(1) Members of the Planning Commission.

(a) The planning 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 planning commission shall be appointed by the county court for the unexpired term.

(c) Members of the planning commission shall serve without compensation. However, the director may authorize mileage reimbursement at the standard county rate for planning commission members who must travel from outlying areas of the county to attend planning commission meetings.

(d) Members of the planning commission shall be residents of the various geographic areas of the county. The various geographic areas are depicted in the map of citizen planning areas in the Crook County comprehensive plan. The county court may deviate from these areas to the extent practicable needed to obtain a full seven-member planning commission from the applicant pool available. An objection to an applicant by the majority of the county court may be the basis for deviating from the geographic areas in the citizen planning areas.

(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 determination that the member has unexcused absences from 20 percent or more of the scheduled commission meetings or if they exhibit personal or business conduct which raises questions concerning their bias or objectivity in fulfilling the duties of a commissioner.

(i) During the temporary absence or disability of a member of the planning commission, the chair shall select a commissioner pro tem to serve during the absence or disability of the absent member. At the chair’s request, a commissioner pro tem shall be selected from a list of one or more commissioners pro tem and be appointed by the county court.

(2) Chairperson and Vice-Chairperson. The planning commission shall elect a chairperson and a vice-chairperson. The election shall be held annually at the first regularly scheduled meeting in January of each year, or at a later regularly scheduled meeting if necessary.

(3) The Crook County planning department shall keep an accurate record of all commission proceedings.

(4) Procedures.

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

(b) A member of the planning commission shall not participate in any 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.

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

(6) Advisory Committees.

(a) The planning 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 planning 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 planning 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 planning commission shall consult with each advisory committee established under subsections (6)(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.

(7) Finances. The planning 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.

(8) Powers. The planning 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.

(9) Expenditures. The planning 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. 321 § 4, 2020; Ord. 317 § 6, 2020; Ord. 298 § 1 (Exh. A), 2016; Ord. 266 § 2, 2013; Ord. 236 § 5 (Exh. E), 2010; Ord. 212 § 2, 2009; Ord. 18 § 9.080, 2003)

18.172.081 Public hearing and order of proceedings.

(1) Staff Report. At least seven days prior to a public hearing, the director will provide a staff report to the hearing authority and parties to the application, and make it available to the public upon request. If the report is not provided by such time, the hearing will be held as scheduled, but any party may at the hearing or in writing prior to the hearing request a continuance of the hearing to a date certain that is at least seven days after the date the staff report is provided. The granting of a continuance under these circumstances will be at the discretion of the hearing authority.

(2) Personal Conduct.

(a) No person may be disorderly, abusive, or disruptive of the orderly conduct of the hearing.

(b) No person may testify without first receiving recognition from the hearing authority and stating their full name and address.

(c) No person may present irrelevant, immaterial, or unduly repetitious testimony or evidence.

(d) Audience demonstrations such as applause, cheering, and display of signs, or other conduct disruptive of the hearing are not permitted. Any such conduct may be cause for immediate suspension of the hearing or removal of the offender from the hearing.

(3) Limitations on Oral Presentations. The hearing authority may set reasonable time limits on oral testimony.

(4) Appearing. Any interested person may appear either orally before the close of a public hearing or in writing before the close of the written record, except that for an on-the-record hearing, persons who may appear are limited to those described at CCC 18.172.110(6). Any person who has appeared in the manner prescribed in CCC 18.172.110(6) will be considered a party to the proceeding.

(5) Disclosure of Ex Parte Contacts.

(a) Any member of a hearing authority for a quasi-judicial application must reasonably attempt to avoid ex parte contact. As used in this section, ex parte contact is communication directly or indirectly with any party or their representative outside of the hearing in connection with any issue involved in a pending hearing except upon notice and opportunity for all parties to participate. Should a hearing authority member engage in ex parte contact, that member must:

(i) Publicly announce for the record at the hearing the substance, circumstances, and parties to such communication;

(ii) Announce that other parties are entitled to rebut the substance of the ex parte communication during the hearing; and

(iii) State whether they are capable of rendering a fair and impartial decision.

(b) If the hearing authority or member thereof is unable to render a fair and impartial decision, or recommendation in the case of the planning commission, they must recuse themselves from the proceedings.

(c) Communication between the director and the hearing authority or a member thereof is not considered an ex parte contact.

(6) Disclosure of Personal Knowledge. If any member of a hearing authority uses personal knowledge acquired outside of the hearing process in rendering a decision, they must state the substance of the knowledge on the record.

(7) Site Visit. For the purposes of this section, a site visit by any member of a hearing authority will be deemed to be personal knowledge. If a site visit has been conducted, the hearing authority member must disclose their observations gained from the site visit.

(8) Challenge for Bias, Prejudgment, or Personal Interest. Prior to or at the commencement of a hearing, any party may challenge the qualification of any member of the hearing authority for bias, prejudgment, or personal interest. The challenge must be made on the record and be documented with specific reasons supported by facts. Should qualifications be challenged, that member must either recuse themselves from the proceedings or make a statement on the record that they can make a fair and impartial decision and will hear and rule on the matter.

(9) Potential Conflicts of Interest. No member of the hearing authority may participate in a hearing or a decision upon an application when the effect of the decision would be to the private pecuniary benefit or detriment of the member or the member’s relative or any business in which the member or a relative of the member is associated unless the pecuniary benefit arises out of:

(a) An interest or membership in a particular business, industry occupation or other class required by law as a prerequisite to the holding by the member of the office or position;

(b) The decision, or recommendation in the case of the planning commission, would affect to the same degree a class consisting of an industry, occupation or other group in which the member or the member’s relative or business with which the member or the member’s relative is associated, is a member or is engaged; or

(c) The decision, or recommendation in the case of the planning commission, would affect to the same degree a class consisting of an industry, occupation or other group in which the member or the member’s relative or business with which the member or the member’s relative is associated, is a member or is engaged.

(10) Qualification of a Member Absent at a Prior Hearing. If a member of the hearing authority was absent from a prior public hearing on the same matter which is under consideration, that member will be qualified to vote on the matter if the member has reviewed the record of the matter in its entirety and announces prior to participation that this has been done. If the member does not review the record in its entirety, that member must not vote and must abstain from the proceedings.

(11) Hearing Authority’s Jurisdiction. In the conduct of a public hearing, the hearing authority will have the jurisdiction to:

(a) Regulate the course, sequence and decorum of the hearing.

(b) Decide procedural requirements or similar matters consistent with this chapter.

(c) Rule on offers of proof and relevancy of evidence and testimony and exclude repetitious, immaterial, or cumulative evidence.

(d) Impose reasonable limitations on the number of witnesses heard and set reasonable time limits for oral presentation and rebuttal testimony.

(e) Take such other action appropriate for conduct of the hearing.

(f) Grant, deny, or, in appropriate cases, attach such conditions to the matter being heard to the extent allowed by applicable law and that may be necessary to comply with the applicable approval criteria or, in appropriate cases, formulate a recommendation for the court.

(g) Continue the hearing to a date certain as provided at subsection (16) of this section.

(h) Allow the applicant to withdraw and cancel the application. Subsequent to the cancellation of the application, if the applicant wishes to proceed with the same or different proposal requiring a land use application, a new application may be submitted and the new application must be processed in compliance with all the provisions of this chapter.

(12) Hearing Procedures. At the commencement of a hearing, the hearing authority must state to those in attendance all of the following information and instructions:

(a) Date of the hearing;

(b) Department file number;

(c) Nature, purpose, and type of the hearing;

(d) When applicable, the parties that may participate in the hearing and/or issues to which the hearing is limited;

(e) Identification of the address and assessor’s map and tax lot number of, or other easily understood geographical reference to, the subject property, if applicable;

(f) Order of the proceedings, including reasonable time limits on oral presentations by parties;

(g) For a quasi-judicial application, a statement disclosing any pre-hearing ex parte contacts;

(h) A statement disclosing any personal knowledge, bias, prejudgment, or personal interest on the part of the hearing authority;

(i) Call for any challenges to the hearing authority’s qualifications to hear the matter. Any such challenges must be stated at the commencement of the hearing, and the hearing authority must decide whether they can proceed with the hearing as provided in subsection (9) of this section;

(j) List of the applicable approval standards and criteria for the application;

(k) Statement that testimony, arguments, and evidence must be directed toward applicable approval standards and criteria, or other standards and criteria in the Crook County land use regulations or comprehensive plan that the person testifying believes to apply to the decision;

(l) Statement that failure to raise an issue accompanied by statements or evidence with sufficient detail to give the hearing authority and the parties an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue;

(m) Statement that the failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow the hearing authority to respond to the issue precludes an action for damages in circuit court;

(n) Statement that prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, arguments, or testimony regarding the application. The hearing authority must grant the request by either continuing the public hearing or leaving the record open for additional written evidence, arguments, or testimony in accordance with subsection (16) of this section; and

(o) Statement that the decision of the approval authority may be appealed in accordance with CCC 18.72.110.

(13) Order of Proceeding. In the conduct of a public hearing other than an on-the-record hearing, the following order of procedure will generally be followed. However, the hearing authority may modify the order of proceeding.

(a) The director will present the staff report;

(b) Allow agency comments;

(c) The applicant will be heard first;

(d) Allow persons in favor of the proposal to be heard;

(e) Allow persons neutral to the proposal to be heard;

(f) Allow persons opposed to the proposal to be heard;

(g) Allow applicant opportunity to respond or address any presented material;

(h) Allow the director to present any further comments or information in response to the testimony and evidence;

(i) Allow applicant to waive or maintain their seven-day final argument;

(j) Conclude or continue the public hearing;

(k) Present motion for deliberations or set time and date certain.

(14) Questions. The hearing authority at any point during the hearing may ask questions of the director or parties.

Questions by parties, interested persons, or the director may be allowed by the hearing authority at their discretion.

Questions must be directed to the hearing authority; questions posed directly to the director or any party are not allowed.

The hearing authority may allow questions to be answered by the director or a party if a question pertains to them. They will be given a reasonable amount of time to respond solely to the question.

(15) Presenting and Receiving Evidence. No oral testimony will be accepted after the close of the hearing. Written testimony may be received after the close of the hearing only in accordance with subsections (17) through (19) of this section.

(16) Continuances and Leaving the Record Open.

(a) Grounds.

(i) Prior to the date set for an initial hearing, an applicant shall receive a continuance upon any request. If a continuance request is made after the published or mailed notice has been provided by the county, the hearing authority shall take evidence at that scheduled hearing date from any party wishing to testify at that time after notifying those present of the continuance.

(ii) Any party is entitled to a continuance of the initial evidentiary hearing or to have the record left open in such a proceeding in the following instances:

(A) Where additional documents or evidence are submitted by any party; or

(B) Upon a party’s request made prior to the close of the hearing for time to present additional evidence or testimony.

For the purposes of subsection (16)(ii)(A) of this section, “additional documents or evidence” shall mean documents or evidence containing new facts or analysis that are submitted after notice of the hearing.

(iii) The grant of a continuance or record extension in any other circumstance shall be at the discretion of the hearings body.

(b) Except for continuance requests made under subsection (16)(a)(i) of this section, the choice between granting a continuance or leaving the record open shall be at the discretion of the hearings body. After a choice has been made between leaving the record open and granting a continuance, the hearing shall be governed thereafter by the provisions that relate to the path chosen.

(c) Continuances.

(i) If the hearings body grants a continuance of the initial hearing, the hearing shall be continued to a date, time, and place certain at least seven days from the date of the initial hearing.

(ii) An opportunity shall be provided at the continued hearing for persons to rebut new evidence and testimony received at the continued hearing.

(iii) If new written evidence is submitted at the continued initial hearing, any person may request prior to the conclusion of the continued hearing that the record be left open for at least seven days to allow submittal of additional written evidence or testimony. Such additional written evidence or testimony shall be limited to evidence or testimony that rebuts the new written evidence or testimony.

(iv) If the hearing is other than initial hearing, any continuances are at the discretion of the hearings body.

(d) Leaving the Record Open.

(i) If at the conclusion of the initial hearing the hearings body leaves the record open for additional written evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony.

(e) A continuance or leaving the record open that is granted under this section shall be subject to the 150-day time limit unless the continuance or extension is requested or otherwise agreed to by the applicant. When the record is left open or a continuance is granted after a request by an applicant, the time period during which the 150-day clock is suspended shall include the time period made available to the applicant and any time period given to parties to respond to the applicant’s submittal.

(17) Rescheduling. In the event that a noticed public hearing must be rescheduled due to an emergency situation, the rescheduling of the meeting will constitute sufficient notice of a public hearing provided the following minimum procedures are observed:

(a) Notice is posted on the door of the building in which the hearing is scheduled advising of the cancellation and the date, time, and place for the rescheduled meeting or that new notice will be sent indicating that new date, time, and place.

(b) Reasonable attempts are made prior to the scheduled hearing to announce the cancellation and rescheduling by direct communication to applicants and known interested parties and through available news media to the general public.

(18) Reopening the Record. When the hearing authority reopens the record to admit new evidence, arguments, or testimony, the hearing authority must allow people who previously participated in the hearing to request the hearing record be reopened, as necessary, to present evidence concerning the newly presented facts. Upon announcement by the hearing authority of their intention to take notice of such facts in its deliberations, any person may raise new issues which relate to the new evidence, arguments, testimony, or standards and criteria which apply to the matter at issue.

(19) Conclusion of Hearing.

(a) After the close of the hearing record, the hearing authority may either make a decision and state findings which may incorporate findings proposed by any party or the director, or take the matter under advisement for a decision to be made at a later date.

(b) The hearing authority may request proposed findings and conclusions from any party at the hearing. The hearing authority, before adopting findings and conclusions, may circulate them in draft form to parties for written comment.

(c) The decision and findings must be completed in writing and signed by the hearing authority within 10 days of the closing of the record for the last hearing. A longer period of time may be taken to complete the findings and decision if the applicant provides written consent to an extension to any applicable timelines in which the county must process the application for an amount of time that is equal to the amount of additional time it takes to prepare the findings.

(20) Record of the Hearing. The hearing authority will consider only facts and arguments in the hearing record; except that it may consider laws and legal rulings not in the hearing record (e.g., local, state, or federal regulations; previous department decisions; or case law).

(a) The hearing record will include all of the following information:

(i) All oral and written evidence submitted to the hearing authority;

(ii) All materials submitted by the director to the hearing authority regarding the application;

(iii) A recording of the hearing;

(iv) The final written decision; and

(v) Copies of all notices given as required by this chapter and correspondence regarding the application that the director mailed or received.

(b) All exhibits presented will be kept as part of the record and marked to show the identity of the person offering the exhibit. Exhibits will be numbered in the order presented and will be dated.

(21) Decision and Findings Mailing. Upon a written decision adopting findings being signed by the approval authority, the director will mail/email to the applicant and all parties a copy of the decision and findings, or, if the decision and findings exceed five pages, the director will mail/email notice of the decision. (Ord. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; 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

(c) Explains the justification for the decision based upon the criteria, standards and facts set forth.

(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

(c) All persons entitled to receive a notice of disposition by other provisions of this title.

(5) Subject to CCC 18.172.110, a permit shall not be effective or issued by the county until 12 calendar days after the final decision. (Ord. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; 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.

(c) The use for which such permit was granted has ceased to exist or has been suspended for one year or more.

(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. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; Ord. 18 § 9.100, 2003)

18.172.110 Appeals.

(1) Every land use decision relating to the provisions 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 mailed 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 the following parties:

(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 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 Body.

(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.

(c) Appeals from decisions of the county court shall be in conformance with the applicable ORS provisions.

(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) If the director determines that the facts stated in the notice of appeal meet the requirement for a hearing, a time and date shall be set for such hearing to be held not later than 60 calendar days after receipt of the notice of appeal.

(b) If the appeal is dismissed, the reasons will be provided in writing how the application has not met the requirements for an appeal. Upon dismissal, the appealed decision is final.

(c) 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.

(d) 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 applicant, 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. The appellate body may also remand the decision with instructions to the planning commission, hearing officer or director who made the original decision to consider additional facts, issues or criteria not previously addressed.

(14) A decision made on remand is a new decision and may be appealed as described in subsections (1) through (13) of this section. (Ord. 321 § 4, 2020; Ord. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010; Ord. 231 § 1 (Exh. A), 2010; Ord. 18 § 9.110, 2003)

18.172.120 Remand by the county court.

When a decision is remanded by the appellate body pursuant to CCC 18.172.110(13), the following procedures shall apply:

(1) Notice of the hearing shall be provided in accordance with CCC 18.172.110(10)(b).

(2) Participants at the remand hearing shall be limited to Crook County staff, the applicant and the appellant(s) from the prior appeal. The hearings body may elect, in its discretion, to expand those who may participate in the remand hearing upon its own motion.

(3) The remand hearing shall be limited solely to the issues identified in the remand order from the appellate body.

(4) The remand hearing shall be limited to new evidence and testimony regarding the issues in subsection (3) of this section. (Ord. 317 § 6, 2020)

18.172.130 Remand by the Land Use Board of Appeals.

When a final decision of the county court or other land use decision is remanded by the Land Use Board of Appeals:

(1) A remand hearing shall be held when:

(a) Requested by the applicant or appellant in writing, and upon payment of the applicable fee, if any, in accordance with ORS 215.435.

(b) The county court on its own motion initiates a remand hearing.

(2) Remand Procedures.

(a) Notice of a remand hearing shall be as provided by CCC 18.172.110(10)(b).

(b) The remand hearing shall be limited to staff, the applicant and appellants from the prior LUBA appeal. However, the county court may expand those who may participate in the remand hearing upon the county court’s own motion.

(c) The remand hearing shall be limited solely to issues remanded in the final decision of the Land Use Board of Appeals unless the county court expands the issues on remand upon the county court’s own motion.

(d) The remand hearing shall be limited to new evidence and testimony regarding the issues in subsection (2)(c) of this section. (Ord. 317 § 6, 2020; Ord. 236 § 5 (Exh. E), 2010)