Chapter 2.30 URBAN AREA PLANNING COMMISSION

There is hereby created an Urban Area Planning Commission for that portion of Josephine County located within the Grants Pass Urban Growth Boundary area, including the City of Grants Pass. [Ord. 81-9 § 1; Ord. 81-7 § 1.]

2.30.020 Terms and conditions.

Said Urban Area Planning Commission shall operate under the terms and conditions specified in the provisions attached to the ordinance codified in this section, marked Exhibit “A,” and by this reference incorporated herein. [Ord. 81-9 § 2; Ord. 81-7 § 2.]

2.30.030 Compensation.

Urban Area Planning Commission members shall receive no compensation, but shall be reimbursed for duly authorized expenses actually incurred. [Ord. 81-9 § 3; Ord. 81-7 § 3.]

2.30.040 Term of office – Removal – Vacancy.

Unless a member’s term of office is otherwise terminated pursuant to this section, a member of the Commission shall hold office for staggered terms; namely, two members to serve a four-year term and two members to serve a two-year term after appointment. A member may be removed by the Board of County Commissioners for misconduct, in the Board’s sole judgment and discretion, or for nonperformance of duty. Nonperformance of duty includes, but is not limited to, the failure of a Commission member to attend any three consecutive regular meetings of the Commission unless such absence has been upon leave by the Commission. Removal of the Commission member from office shall be by resolution of the Board of County Commissioners. Any vacancy of County appointees to the Commission occurring other than at the completion of a term of office shall be filled by the Board of County Commissioners for the unexpired term of the predecessor in office. [Order 5/8/81; Ord. 81-9 § 4; Ord. 81-7 § 4.]

2.30.050 Quorum – Meetings.

Five members of the Urban Area Planning Commission shall constitute a quorum; however, a simple majority of the Commission, voting on any issue, shall be sufficient to resolve such issue. The Commission shall meet at least once a month at such times and places as may be fixed by the Commission. Special meetings may be called at any time by the Chairman or any three members delivering a written demand for a special meeting upon the Chairman. In either case, the Chairman shall proceed to call a special meeting by giving each Planning Commission member and local media at least 24 hours’ written notice of such special meeting. [Ord. 81-9 § 5; Ord. 81-7 § 5.]

2.30.060 Expenditures.

The Urban Area Planning Commission shall have no authority to make any expenditures on behalf of Josephine County or to obligate the County for the payment of any sums of money, except such sums as said County shall have first authorized. [Ord. 81-9 § 6; Ord. 81-7 § 6.]

2.30.070 Scope of rules.

These rules shall govern the conduct of all land use hearings which originate within the Grants Pass Urban Growth Boundary area and are held before the Urban Area Planning Commission, Board of County Commissioners, City of Grants Pass Council, and any Hearings Officer appointed by the City of Grants Pass or Josephine County. These rules are specifically developed to be used in conjunction with the appropriate zoning ordinances, general plans and other pertinent ordinances. Other matters coming before the hearing bodies shall also be governed by these rules at the discretion of the presiding officer, as defined in JCC 2.45.080. [Res. 81-64 (Exh. A) § 1.]

2.30.080 Definitions.

As used in this chapter, unless the context requires otherwise, the following definitions shall be used in interpretation and construction of these rules:

“Applicant” means a property owner, contract purchaser or property lessee authorized to file and proceed with an application on a land use matter.

“Board” means the Josephine County Board of County Commissioners.

“CAC” means the Citizen Advisory Committee of Josephine County.

“Commission” means the Urban Area Planning Commission or any duly appointed hearings officer.

“Council” means the Council of the City of Grants Pass.

“CPAC” means the Citizen Planning Advisory Committee of the City.

“Hearing” means a contested quasi-judicial proceeding to hear a land use matter before a tribunal.

“Member” means an individual appointed to serve on the Council, Commission or Board, or any hearings officer as appropriate.

“Party” means a person who appears at a hearing either in person or in writing and speaks for or against any land use application.

“Presiding Officer” means the person designated by action of a tribunal to chair, preside over, and conduct a hearing.

“Tribunal” means the Council, Commission, or Board, or any hearings officer, as appropriate.

“Ward Advisory Group” means an advisory group of people residing within a particular ward in the City. [Res. 81-64 (Exh. A) § 2.]

2.30.090 Requests for hearing.

A. Hearings shall be initiated as provided in the applicable ordinance or regulation of the City or County.

B. The applicant, or his authorized representative, may meet and confer with the City or County Planning Staff for the purpose of a pre-application conference at which time views may be exchanged as to the requisites for formal application, feasibility of approval, and any and all other matters relative to the application. Any representation or conclusion rendered at such conference by City or County staff shall not be construed as an expression of final authority or a final policy determination with respect to the application, and the applicant shall not be entitled to rely thereon in lieu of formal hearing as provided herein.

C. All proposals and applications subject to these Land Use Hearing Rules shall be submitted to the appropriate citizen involvement groups pertaining to the jurisdiction involved. The appropriate citizen involvement group shall be given a reasonable period of time in which to evaluate the proposals and conduct such hearings as they deem appropriate. Any action by the citizen involvement group need not include findings but may include the recommendation of approval, or approval with modifications or amendments, or disapproval, or such advisory group may take no action thereupon. Any citizen advisory group recommendation shall be made to the hearing body who will next consider the application. [Res. 81-64 (Exh. A) § 3.]

2.30.100 Nature of hearings.

A. Land use hearings conducted pursuant to these rules are quasi-judicial administrative determinations and shall be conducted accordingly. All applicants are entitled to notice of hearing, to an opportunity to be heard, to present and rebut evidence before an impartial tribunal, to have the proceedings recorded, and to have a decision rendered in accordance with the facts on record and the law.

B. Hearings held pursuant to these rules are “proceedings” as contemplated by ORS 9.320, and therefore applicants shall appear in person or through their attorney. In no event shall the applicant be represented by anyone other than himself or his attorney, unless prior approval is granted by the presiding officer. [Res. 81-64 (Exh. A) § 4.]

2.30.110 Presiding officer.

The presiding officer shall have the authority to:

A. Regulate the course and decorum of meetings;

B. Dispose of procedural requests or similar matters;

C. Rule on offers of proof and relevancy of evidence;

D. Impose reasonable limitations on the number of witnesses heard and set reasonable time limits for oral presentations, cross-examination and rebuttal testimony;

E. Question any person appearing and allow other members to question any person;

F. Waive, in his discretion, the application of any rule herein where the circumstances of the hearing indicate it would be expedient and proper to do so, provided such waiver does not act to prejudice or deny any party his substantial rights, as provided herein or otherwise by law; or

G. Take such other actions as authorized by the Council or Commission to appropriately conduct the hearing, when the hearing is held before such body. [Res. 81-64 (Exh. A) § 5.]

2.30.120 Conduct of participants.

Proceedings shall at all times be orderly, and no person shall be heard until he states his name, residential or business address, as applicable, and interest in the proceedings. The presiding officer may terminate the hearing when necessary or refuse to recognize or continue to recognize anyone who:

A. Is disorderly, abusive, or disruptive;

B. Takes part in or encourages audience demonstrations, such as applause, cheering, display of signs, or other conduct disruptive of the hearing;

C. Testifies without first receiving recognition from the presiding officer and making a statement regarding name, address and interest in the proceedings, as set forth hereinabove; or

D. Presents irrelevant, immaterial or repetitious evidence.

The presiding officer shall at all times maintain order at any public hearing. Upon any person engaging in conduct which is disruptive of the hearing, the presiding officer shall first warn such party to stop such disruptive conduct upon penalty of removal. If such disruptive person continues to cause disruption the presiding officer may then order such person removed from the hearing without further warning. [Res. 81-64 (Exh. A) § 6.]

2.30.130 Burden of proof.

The burden of proof shall be on the applicant. The degree of proof required shall vary depending upon the nature of the proposal and its impact on the community. The more drastic the change or the greater the impact of the proposal on an area, or the greater the departure from the present land use patterns, the greater is the burden upon the applicant. [Res. 81-64 (Exh. A) § 7.]

2.30.140 Nature of proof.

The decision of the tribunal shall be based upon reliable, probative, and substantial evidence supported by the record. The applicant, or his witnesses, shall present evidence on the applicable criteria (see the appropriate exhibit attached to the resolution codified in this section). Upon all evidence being presented, the tribunal shall consider such evidence in relation to the appropriate criteria, and shall render a decision as to whether or not the evidence received is sufficient to establish that the proposal is consistent or inconsistent with these Land Use Hearing Rules, and specifically with the appropriate exhibit attached to the resolution codified in this section. [Res. 81-64 (Exh. A) § 8.]

2.30.150 Disclosure rule – Abstention.

A. Ex Parte or Pre-Hearing Contact.

1. Members of the tribunal shall avoid significant pre-hearing contacts so that the tribunal’s deliberations, recommendations and decisions can be based on evidence presented at the time of the public hearing.

2. At the commencement of the hearing, members of the tribunal shall reveal all significant pre-hearing and ex parte contacts they have had about the matter. If the contacts have not impaired the members’ impartiality, the members shall so state that fact and participate or abstain, in accordance with these rules and in accordance with the members’ own judgment. If the contacts have impaired the members’ impartiality, the members shall disclose the same for the record and shall abstain from further discussion or voting on the proposal.

B. Financial and Other Potential Conflicts of Interest.

1. Any member of the tribunal with a potential conflict of interest, as hereinbelow defined, shall announce publicly the nature of the potential conflict prior to taking any official action thereupon. A “potential conflict of interest” means any transaction where a person acting in a capacity as a public official takes any action or makes any decision or recommendation, the effect of which would be to the private pecuniary benefit or detriment of the person or member of the person’s household, unless the pecuniary benefit or detriment arises out of the following:

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 person of the office or position.

b. Any action in the person’s official capacity which would affect to the same degree all inhabitants of the County, City, or a smaller class consisting of industry, occupation or other group including one of which or in which the person, or member of the person’s household or business with which he is associated, is a member or is engaged.

2. Any other appointed official or employee of the County or City with a potential conflict of interest shall notify, in writing, the appointing authority of the nature of the conflict and requests such appointing authority to dispose of the matter, which shall be either to designate within a reasonable time and alternate to dispose of the matter or to direct the said appointed official or employee to dispose of the matter in a manner specified by the appointing authority.

3. Because of the importance of preserving public confidence in decisions made by the tribunal, a member of the tribunal may elect to abstain from a hearing when, in fact, the member is not disqualified but simply desires to avoid the mere appearance of partiality. Abstention in such an instance shall be solely a matter of the member’s own judgment. A member who feels his abstention may be necessary or desirable under this section shall seek the advice of the tribunal and then state the member’s decision and the reasons therefor.

C. Special Rules for Urban Area Planning Commission Only.

1. Pursuant to ORS 227.035, an Urban Area Planning Commission member must abstain from any hearing when any of the following has a direct or substantial financial interest in the proposal: The Urban Area Planning Commission member, or his spouse, brother, sister, child, parent, father-in-law, mother-in-law, any business in which the member is then serving or has served within the previous two years, or any business with which he is negotiating for or has an arrangement or understanding concerning prospective partnership or employment. Any actual or potential interests shall be disclosed at the meeting of the tribunal where the action is being taken.

D. Forced Abstention.

1. Disqualification for any of the reasons set forth hereinabove, as applicable, may be ordered by a majority of the tribunal. The member who is subject to the motion for disqualification may not vote on said motion.

E. Effect on Quorum.

1. Notwithstanding any other rule, an abstaining or disqualified member shall constitute part of a quorum and may represent the member’s own interest at a hearing, provided the member joins the audience, makes full disclosure of the member’s status and position when addressing the tribunal, and abstains from discussion and voting on the matter as a member of the tribunal. Note: Planning Commission members may not so participate due to ORS 227.035, but shall be counted for a quorum.

2. If all members of the tribunal abstain or are disqualified and consequently cannot reach a decision while so abstaining or disqualified, all members present, after stating the reason for abstaining or disqualifications, shall by so doing be re-qualified and proceed to resolve the issues raised by the hearing. Note: Planning Commissioners may not so participate if disqualified under ORS 227.035; see subsection (E)(1) of this section.

F. A tribunal member absent during the presentation of any evidence during a hearing may not participate in the deliberations or final decision regarding the matter of the hearing unless such member first reviews the evidence presented in his absence, and states the same, on the record, prior to voting on the matter. [Res. 81-64 (Exh. A) § 9.]

2.30.160 Challenge for bias, prejudice or personal interest.

Any person may challenge the qualification of any member of the tribunal to participate in such hearing and decision. Such challenge may be in writing or made orally, and shall state the facts upon which the challenging party relies as to the member of the tribunal’s disqualification or other facts from which the challenging party alleges the member should not participate in and render a decision in the matter. The presiding officer may require such challenge to be made under oath, administered by the presiding officer. Such matter of challenge shall be resolved at the time of the hearing, as provided in JCC 2.30.190. [Res. 81-64 (Exh. A) § 10.]

2.30.170 Notice requirements.

Notice shall be given pursuant to the City or County zoning ordinance or other applicable ordinances or controlling rules, regulations or resolutions of the City or County which pertain to the subject hearing. [Res. 81-64 (Exh. A) § 11.]

2.30.180 Rules of evidence.

A. All evidence offered and not properly objected to may be received unless otherwise excluded by the presiding officer. The presiding officer shall admit all evidence that seems to the presiding officer relevant and useful and evidence received at the hearing shall be of the quality that responsible persons are accustomed to rely upon in serious affairs.

B. All evidence received by the presiding officer shall be made a part of the record of the matter, and except for matters stipulated to and for matters judicially noticeable, no other factual information or evidence shall be considered in the determination of the case. In the discretion of the presiding officer, documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.

C. Subject to the procedures of JCC 2.30.190, every party shall have the right to cross-examine other parties and their witnesses who testify and shall have the right to submit rebuttal evidence. The procedural rights of all parties shall be determined by the presiding officer.

D. Judicial notice may be taken of judicially cognizable facts and general technical or scientific facts within the experience, technical competence, or specialized knowledge of the tribunal.

E. No decision shall be rendered except upon consideration of the whole record and as supported by and in accordance with reliable probative and substantial evidence.

F. The presiding officer may place any person submitting testimony under oath or affirmation prior to accepting such testimony.

G. The tribunal, in its discretion, may be represented by the City Attorney or County Counsel as the case may be. [Res. 81-64 (Exh. A) § 12.]

2.30.190 Order of procedure.

The presiding officer shall conduct the hearing in an orderly fashion, within the guidelines set forth herein. However, technical rules of parliamentary law shall be avoided in order that the hearing procedure is as clear and simple as possible.

A. Commencement. The presiding officer shall announce the nature and purpose of the hearing, summarize the rules for the conduct of the hearing, identify the name of each applicant, and describe the general nature of each proposal.

B. Objections to Jurisdiction. The presiding officer shall inquire of the audience whether there are any objections to the jurisdiction of the hearing body to hear the matter. Objections if any shall be noted in the record, and the matter shall proceed or shall terminate at the discretion of the presiding officer.

C. Abstentions. The presiding officer shall inquire of the hearing body whether any member thereof wishes to abstain from participation in the hearing on that proposal. Any member so abstaining shall identify the reasons for the record and shall not thereafter participate in discussion of or vote on the proposal. Any hearing body member whose participation has been challenged by allegation of bias, prejudice, conflict of interest, or pre-judgment or who has been subject to significant ex parte or pre-hearing contacts with proponents or opponents may make a statement relating thereto or in explanation thereof, for the record, and shall announce his decision whether to participate in the hearing. This statement shall not be subject to cross-examination except upon consent of that member, but shall be subject to rebuttal by the alleging party.

D. Planning Staff Report. The presiding officer shall request the Planning Staff report and shall thereafter indicate the action to be taken by the hearing body.

E. Proponent’s Case – Cross-Examination. The presiding officer shall allow the proponent to present his evidence in support of his application. Each proponent shall be limited to 10 minutes in which to present such evidence. Proponent shall be allowed to produce witnesses on his behalf. Each such witness shall be limited to five minutes in which to present his testimony. Members of the audience in favor of the proposal shall thereafter be allowed to present their views, subject to similar reasonable time limitations. The presiding officer shall allow opponents to submit questions directly to the proponent, or his witnesses, provided same relate directly to the matters previously raised by their testimony. Proponent shall be allowed to cross-examine the Planning Staff regarding the Planning Staff report, and conclusions therein, provided such cross-examination is in an orderly fashion.

F. Opponents’ Case – Cross-Examination. The presiding officer shall allow opponents to present evidence in opposition to the proposal. Each such opponent shall be limited to five minutes in which to present his opposition. Opponents shall be allowed to cross-examine proponent or any of his witnesses. Opponents shall be allowed to produce witnesses on their behalf. Proponents shall be allowed to cross-examine or otherwise rebut any new matters presented by the opponents or their witnesses. Opponents shall be allowed to cross-examine the Planning Staff report and the conclusion therein, provided such cross-examination is in an orderly fashion.

G. Final Discussion – Summation. The presiding officer, in his discretion, may allow the proponent and opponent to summarize their arguments, upon conclusion of which no further evidence on that proposal shall be permitted. Members shall thereafter be allowed to openly discuss the proposal and further question any party appearing for or against the proposal as necessary.

H. The order of procedure specified in this section shall be utilized for all land use hearings before the Josephine County Board of Commissioners, City of Grants Pass Council, Urban Area Planning Commission, and any Hearings Officer appointed by such City or County, for those cases originating within the Grants Pass Urban Growth Boundary area. [Res. 81-64 (Exh. A) § 13.]

2.30.200 Final decision.

A. At the conclusion of the hearing, the hearing body may approve the application as submitted, deny the application, approve the application with such conditions as it deems appropriate, table the proposal, or continue the application of further study or deliberation to a date and time certain.

B. The final decision of the hearing body shall include its findings of fact and law in support thereof, and the same shall become part of the final record of the proceedings. For purposes of the record, each member shall be polled separately, at which time each member shall state his or her decision, and the particular findings in support thereof. [Res. 81-64 (Exh. A) § 14.]

2.30.210 Record of proceedings.

A. Proceedings shall be electronically or stenographically recorded. It shall not be necessary to transcribe proceedings unless required for appeal or review, or unless otherwise ordered by the tribunal.

B. All exhibits received in evidence shall be marked or otherwise made readily identifiable for purposes of appeal or review. All exhibits received into evidence shall be retained by the tribunal until the period for review or appeal has expired, at which time the same shall be released, upon demand, to the person identified thereon as the owner thereof. If a review proceeding or appeal is filed, exhibits shall be released as aforesaid when the matter is finally resolved.

C. Except as otherwise provided by state law, all records of the tribunal shall be available for inspection and copying by any person. (Expense of copying shall be borne by the person obtaining the same.) [Res. 81-64 (Exh. A) § 15.]

2.30.220 Review.

A. The Board of County Commissioners or City Council may order review on its own motion of any final action of the Urban Area Planning Commission pursuant to Section 17.000 of the Joint Urban Area Services Management Agreement. In such event, that review shall be governed by the provisions of such Joint Agreement and these rules.

B. Any aggrieved citizen may petition for review of any final decision of the Urban Area Planning Commission according to the following procedure:

1. Within 10 days from the date of the hearing at which the oral decision on the matter is made, a notice of intent to appeal shall be filed with the appropriate jurisdiction. The form and content of such notice shall be as prescribed by the Director.

2. Within 15 days from the date of the signing of the findings of facts and final order by the Commission, the appealing party shall file a formal petition for review of the Commission decision. Such petition for review shall contain:

a. A reference to the application sought to be reviewed.

b. A statement of the interest of the petitioner to determine party status.

c. The specific grounds relied upon in the petition for review.

d. The date of the decision of the initial action.

3. The petition for review shall be accompanied by a required fee, to be established by the governing bodies, plus a deposit to cover the estimated cost of the transcript as specified by the Director. Within 10 days of the notice of completion of the required transcript, the party seeking review shall transmit the balance due of any required transcript fee. Any excess deposit shall be returned to the depositing party. Failure to comply with this section shall be a jurisdictional defect.

4. Unless provided otherwise herein, the hearing for review of the initial action by the Commission shall be confined only to the record of that proceeding, which record shall include:

a. All materials, pleadings, memoranda, stipulations, and motions submitted by any party to the proceedings and received or considered by the Commission as evidence.

b. All materials submitted by the Planning Staff concerning the initial application.

c. The complete transcript of the hearing below.

d. The findings of the Commission and the petition for review.

The parties shall be permitted to present their oral or written arguments as to all matters within that record, but no new matters or evidence shall be allowed unless otherwise permitted within.

5. The Board or Council, in its discretion, whether upon motion of a party or not, may elect to hear the entire application de novo and allow testimony and other evidence in addition to that received upon the initial action. In such cases, unless otherwise provided, the matter will be heard in a manner similar to the initial hearing, and shall be governed as nearly as possible by the rules pertaining thereto.

6. The Board or Council may admit additional testimony and other evidence without holding a de novo hearing if it is satisfied that the testimony or other evidence could not have been presented at the initial hearing. In deciding such admission, the Board or Council shall consider:

a. Prejudice to parties.

b. Convenience of locating the evidence at the time of initial hearing.

c. Surprise to opposing parties.

d. When notice was given to the other party as to the attempt to admit.

e. The competency, relevancy and materiality of the proposed testimony or other evidence.

7. The Board or Council may affirm, reverse, or amend the decision of the initial hearing, and may impose reasonable conditions necessary to carry out its decision. The Board or Council may also remand the matter to the Commission for additional hearing or information.

a. In all cases the Board or Council shall base its decision upon substantial, reliable and probative evidence as supported by the record before it and any additional testimony or other evidence received by it as provided herein.

b. The Board or Council shall make findings of its decision upon the close of its hearing or upon continuance of the matter to a time and date certain.

8. The decision of the Board or Council shall not become final until five days after the findings are approved and signed. [Res. 81-64 (Exh. A) § 16.]

2.30.230 Rehearing.

A. Once a matter has been heard by either the Board of County Commissioners or City Council upon a petition for review as provided herein, the matter may be reheard before it either on its own motion or upon a petition for rehearing by an aggrieved party. A petition for rehearing by an aggrieved party shall comply with the following:

1. The petition for rehearing shall be submitted within five days from the date of the public hearing at which the oral decision on the matter was rendered. Said five-day period shall include weekends and holidays.

B. No fee shall be required for the petition for rehearing.

C. The petition for rehearing shall be in substantially the same form as the petition for review.

D. The petition for rehearing, if granted, shall be heard within 10 days from the date of the decision to allow rehearing, and shall be heard as a new review except that all evidence therefor received shall be included in the record.

E. In the event that such rehearing is granted, the decision of the Board or Council shall not become final until its decision is rendered pursuant to such rehearing.

F. No application shall be reheard more than once, whether requested by the same or a different party.

G. The petition for rehearing as provided herein shall be a jurisdictional condition precedent for judicial review. [Res. 81-64 (Exh. A) § 17.]

2.30.240 Exhibits.

There shall be attached to the resolution codified in this section certain exhibits, which exhibits are hereby incorporated in the resolution codified in this section, which pertain to the elements of proof required of an applicant in regard to his proposal. The exhibits approved as of the date of adoption of these rules shall be the following: Exhibit “A” through Exhibit “K,” and any additional exhibits or amendments to any exhibit may be adopted by the Board or Council in its discretion and the same shall be dated and incorporated herein. [Res. 81-64 (Exh. A) § 18.]