Chapter 19.33
APPEAL OF DECISIONS
Sections:
19.33.030 Time limits, notice requirements and standing for appeals.
19.33.040 Statement of appeal.
19.33.070 Appeal of Planning Director decisions.
19.33.080 Appeal of Hearings Officer or Planning Commission Decision.
19.33.090 Action of the Board of County Commissioners.
19.33.100 Consolidation of appeals.
19.33.110 Remands from the Land Use Board of Appeals (LUBA).
19.33.120 Participation before Land Use Board of Appeals (LUBA).
19.33.010 Purpose.
The purpose of this chapter is to establish uniform procedures for the appeal of land use decisions made pursuant to this title. [2005 RLDC § 33.010.]
19.33.020 Appeal authority.
A. Final actions made under the following review procedures may be appealed to the Board of Commissioners:
1. Planning Director – Chapter 19.22 JCC.
2. Hearings Officer – Chapter 19.23 JCC.
3. Planning Commission – Chapter 19.24 JCC.
B. Recommendations to another Review or Hearing Body do not constitute a final action and cannot be appealed. [2005 RLDC § 33.020.]
19.33.030 Time limits, notice requirements and standing for appeals.
Final decisions described in JCC 19.33.020 may be appealed to the Board subject to the time limits and noticing and standing requirements as follows:
A. Final decisions by the Planning Director, Hearings Officer, or the Planning Commission may be appealed to the Board by a party filing a statement of appeal with the Planning Director within:
1. Ten days after written notice of the decision is given or mailed for final decisions hearings made by a Hearings Officer or the Planning Commission; or
2. Twelve days after written notice of a Planning Director decision made without a public hearing.
B. Notice is deemed given when:
1. It is mailed to the last known address of the party (the date of mailing shall be established by the postmark for the bulk mailing that included the individual notice); or
2. It is personally given to the person or organization.
C. A “party” shall mean a person or organization deemed by the decision maker to be a party as defined in JCC 19.11.180. Party status may be challenged on appeal by any party to the appeal, the Planning Director, or the Board. Any challenge shall be settled by the Board as its first order of business in the appeal hearing.
D. Notice for appeal hearings shall be given only to those individuals or organizations that were deemed to have party status in the record for the hearing under appeal, unless the appeal results in an initial evidentiary hearing, in which case notice of the appeal hearing shall comply fully with the requirements of JCC 19.32.030(B)(1). [2005 RLDC § 33.030.]
19.33.040 Statement of appeal.
A. A statement of appeal shall be on a form supplied by the Planning Director and shall contain the following information:
1. How the comprehensive plan, this title, applicable state law, or other evidence was incorrectly interpreted or applied in the decision;
2. What information in the record of decision was pertinent to the decision, but was not considered by the Review Body. This may include the comprehensive plan, this title, applicable state law, or other evidence;
3. Each ground or reason for appeal must be separately numbered and explained, and the appeal hearing will be strictly limited to the items specified in the statement of appeal.
B. The grounds for the appeal must have been raised at the Review or Hearing Body with sufficient specificity to allow the Review or Hearing Body an opportunity to respond to the issue.
C. The statement of appeal shall be accompanied by the following:
1. The required filing fee;
2. In cases involving an appeal on the record, the statement shall also be accompanied by a deposit, in an amount established by the Planning Director, to cover the estimated cost of producing a typewritten summary of the testimony in the hearing;
3. In the event the deposit is insufficient to cover the cost of the preparation of the typewritten summary, the Planning Director shall mail written notice to the appellant of the balance due:
a. Within 10 days from the mailing of the notice of completion of the summary, appellant shall tender to the Director the balance due for the cost of the summary;
b. Failure to tender the balance is a jurisdictional defect and the appeal shall be dismissed;
c. Any part of the deposit in excess of the actual cost of the summary shall be returned to the appellant.
D. In the event more than one party files an appeal, the Planning Director shall require equal deposits from each appellant. The final cost of the typewritten summary shall be shared equally by all appellants.
E. Failure to submit a statement of appeal in conformance with the requirements of this section shall be considered a jurisdictional defect, and the appeal shall be dismissed. [2005 RLDC § 33.040.]
19.33.050 Effect of appeal.
A. Failure to file an appeal within the specified time or in the manner prescribed in JCC 19.33.030 and 19.33.040 shall nullify the appeal and the decision shall be final.
B. The effect of an appeal to the Board shall be to stay or suspend the appealed action. [2005 RLDC § 33.050.]
19.33.060 Standing to appeal.
In order to have standing to appeal any decision rendered under the procedures of this title, one of the following requirements must be met:
A. Decisions Made without a Hearing. The person or organization seeking to appeal a decision made without a public hearing must demonstrate one of the following circumstances:
1. The person or organization was entitled to notice for the original hearing and submitted written comments or objections into the record; or
2. The person or organization is able to establish before the Board during the appeal hearing that the person or organization was adversely affected or aggrieved by the decision under appeal.
B. Decisions Made after a Hearing. The person or organization participated, either orally or in writing, in the hearing under appeal and was granted party status under JCC 19.31.100(B) of this title by the presiding officer at the public hearing. [2005 RLDC § 33.060.]
19.33.070 Appeal of Planning Director decisions.
Appeals from decisions made by the Planning Director without a hearing shall be heard by the Board as a de novo hearing (a fully, open evidentiary hearing). Within 14 days from the filing of the statement of appeal, the Planning Director shall prepare a report of the action under appeal, and mail notice to the parties indicating the report is available for inspection and/or copying. The report shall consist of all materials, documents, and exhibits considered by the Planning Director in taking the action, including the final action under appeal, if one exists. The Planning Director is authorized to charge a reasonable fee for the preparation and copying of the report. [2005 RLDC § 33.070.]
19.33.080 Appeal of Hearings Officer or Planning Commission Decision.
A. Appeals from decisions made by a Hearings Officer or the Planning Commission shall be to the Board, and shall be confined to the record made at the hearing under appeal. The record shall include:
1. All materials, pleadings, memoranda, stipulations, motions, exhibits, and documents submitted by any party to the action as evidence in the hearing;
2. All materials submitted by the Planning Staff in the hearing;
3. The tape recording, if one exists, of the hearing;
4. A typewritten summary of the testimony given at the hearing. The typewritten summary shall be prepared by the Planning Director or a designate;
5. The findings of fact entered by the Hearing Body.
B. Within 21 days of filing of the statement of appeal, the Planning Director shall cause the record to be compiled, including the written summary of testimony, and mail notice to the parties indicating the record is available for inspection and/or copying. The Planning Director is authorized to charge a reasonable fee for paper or tape copying.
C. Any party wishing to challenge the composition or completeness of the record, or the accuracy of the typewritten summary of the testimony, shall file written objections within 14 days from the date of the mailing of the notice of completion of record. In addition;
1. Objections to the accuracy of the summary of testimony shall be accompanied by a verbatim transcript for the portion(s) of the hearing which supports each challenged point;
2. Controversy concerning any of these matters shall be settled by the Board as its second order of business at the appeal hearing, after questions about party status, if any exist, are settled.
D. The parties to an appeal from any action by the Hearings Officer or Planning Commission shall be allowed to present oral or written arguments concerning any ground or reason for appeal specified in the statement of appeal, but no new matters or evidence shall be submitted unless permitted pursuant to subsection (E) of this section.
E. A party to an appeal from any action by the Hearings Officer or Planning Commission may request permission to submit evidence not contained in the record for an appeal when all of the following criteria are met:
1. The evidence was not reasonably available to the party at the time of the original hearing, and the facts supporting this conclusion are documented by affidavit(s);
2. The evidence is substantially relevant to issues raised in the appeal. Evidence is substantially relevant when, in the opinion of the Board, it has special value to prove relevant criteria, so that consideration of the new evidence is likely to alter deliberations;
3. The evidence to be introduced was made available to all parties to the appeal at least 20 days prior to the hearing, and there is no significant prejudice or unfairness to another party. In addition:
a. If it becomes available within 20 days of the hearing, a continuance may be requested by the proponent in order to meet the 20-day rule;
b. The Board may grant a continuance so the new evidence will meet the 20-day rule provided the continuance serves the public interest; and
c. If the applicant is the party asking the privilege of introducing evidence, the request shall be accompanied by request for a reasonable extension of the 150-day time limit specified in ORS 215.429. [2005 RLDC § 33.080.]
19.33.090 Action of the Board of County Commissioners.
A. In addition to appeals created by other provisions in this chapter, the Board may order its own review of a final decisions made by the Planning Director or a Hearing Body. Review under these circumstances shall be governed by the provisions of this chapter including the creation of the record. A summary of testimony as required by JCC 19.33.040(C) shall be prepared at the County’s expense.
B. The Board may affirm, reverse, or amend the decision under appeal, and may impose additional or different conditions as may be necessary to carry out its decision. The Board may also return the proceeding to the Planning Director or Hearing Body for additional consideration or action. The return shall contain specific instructions regarding the nature and scope of the matter to be considered.
C. The Board shall make written findings and conclusions as part of its written decision. This document will constitute the final action of the Board for appeal and other purposes.
D. The Board may cause supplemental or replacement findings and conclusions, based on the record for the decision, to be prepared and signed after the original findings and conclusions have been executed. When supplemental or replacement findings and conclusions are prepared and signed, this document shall constitute the final action of the Board for appeal and other purposes in lieu of the original findings and conclusions.
E. The Board may open the record for clarification on a part of the record.
F. The Board by its own motion only may choose to hear any appeal de novo. The decision to do so must be within 10 days of receiving a statement of appeal.
G. An appeal of a decision of the Board to the Land Use Board of Appeals (LUBA) shall follow the procedures outlined in ORS 197.805 to 197.860. [2005 RLDC § 33.090.]
19.33.100 Consolidation of appeals.
In the event the final action for a single land use or land division is subject to concurrent appeals, the Board is authorized to consolidate the appeals into a single proceeding. In this event, the presiding officer may modify the rules of procedure contained in this chapter, or implement new rules, which facilitate the merger of the appeal applications and the taking of evidence, testimony and argument. The decision of the Board shall be documented in a single set of findings of fact which shall act as the formal decision and final action on all of the appeals for the purpose of further appeals. [2005 RLDC § 33.100.]
19.33.110 Remands from the Land Use Board of Appeals (LUBA).
In all cases, a copy of the opinion on remand shall be filed with the Planning Director to be included in the permanent file. [2005 RLDC § 33.110.]
19.33.120 Participation before Land Use Board of Appeals (LUBA).
The County shall not file or participate in an appeal before LUBA unless the Board specifically authorizes the filing or participation through the County’s Legal Counsel. Otherwise, the filing for any appeal or review before LUBA, or any other judicial body, shall be the responsibility of the participant whose interests are, or may be, affected by an affirmation, modification, reversal, or remand upon appeal or review. [2005 RLDC § 33.120.]
19.33.130 Remand hearings.
Hearings to consider remanded land use decisions shall be governed by the applicable rules for applications, hearings and appeals as set forth in this title, except as follows:
A. A remand proceeding shall be initiated by an appeal application on forms prescribed by the Planning Director, together with the fee for remand hearings. The application must be filed within 45 days from the date of the final opinion and order remanding the County’s decision. Except as provided in subsection (B) of this section, only the applicant as defined in JCC 19.11.030 may file a remand application.
B. All remand proceedings shall be conducted exclusively by the Board unless the Board delegates jurisdiction to another Review Body by resolution. This grant of jurisdiction is intended to supersede any other grant of jurisdiction in this title. In addition, the Board reserves the right to initiate a remand proceeding pursuant to JCC 19.31.030.
C. The applicant in a remand proceeding shall specify in the application whether the remand hearing will be confined to the record of the earlier proceeding or whether the remand hearing will involve the introduction of new evidence. In the event the remand hearing is confined to the earlier record, the applicant shall submit amended findings with the remand application. The remand hearing shall be confined to the earlier record unless the Review Body opens the record for new evidence pursuant to JCC 19.33.080(E) or 19.33.090(F).
D. If the remand hearing is confined to the record of the earlier proceeding, participation in the remand hearing shall be strictly limited to those persons or organizations who were legal parties in the higher appeal. If the remand hearing will involve the introduction of new evidence, any person may raise new issues which relate to the new evidence, arguments, testimony or criteria for decision-making which apply to the matter at issue. The following procedures shall apply:
1. If the remand hearing is confined to the record of the earlier proceeding, written notice shall be given only to the persons or entities who were parties to the higher appeal. If the remand hearing will involve the introduction of new evidence, notice shall be given to all interested persons or entities.
2. In the case of a remand hearing confined to the record of the earlier proceeding, only parties to the higher appeal may present arguments. In the event new evidence is allowed, only parties to the higher appeal may present evidence, witnesses, testimony and arguments in the remand hearing; however, any person may raise new issues which relate to the new evidence, arguments, or testimony.
3. Josephine County shall always be considered a party in the remand proceeding even if it did not submit briefs or make arguments in the higher appeal(s).
E. The remand hearing shall not consider any issue or issues other than those specified for remand in the remanding decision, and no other evidence, testimony or arguments shall be allowed regarding other issues within the scope of the Board’s original action.
F. The following special time limits shall apply to remand applications:
1. The Review Body shall take final action on a remand application within 90 days of the effective date of the final remand order; and
2. The effective date of the final order is the last day for filing a petition for judicial review of a final order of LUBA, or if judicial review of LUBA’s order is sought by the Oregon Court of Appeals or the Supreme Court, the 90-day period shall not begin until final resolution of the judicial review; and
3. In any case, the 90-day period shall not begin until the applicant requests in writing that the County proceed with the application on remand; and
4. The 90-day period may be extended for a reasonable period of time at the request of the applicant; and
5. The 90-day period applies only to decisions wholly within the authority and control of the County; and
6. The 90-day period does not apply to a remand proceeding concerning an amendment to an acknowledged comprehensive plan or land use regulation or the adoption of a new land use regulation that was forwarded to the Director of Land Conservation and Development under ORS 197.610.
G. The prevailing party shall prepare the findings of fact for the decision on remand unless the Board designates someone else to prepare them. [Ord. 2022-010 § 1; 2005 RLDC § 33.130.]