A.

Purpose. The purpose of this chapter is to establish decision-making procedures that will enable the city, the applicant, and the public to reasonably review applications and participate in the local decision-making process in a timely and effective way. Table 15.202-1 provides a key for determining the review procedure and the decision-making body for particular applications.

B.

Applicability of review procedures. All land use and development permit applications, except building permits, shall be decided by using the procedures contained in this article as modified by any applicable application-specific procedures identified in articles 8 and 9. The procedure "type" assigned to each application governs the decision-making process for that application. There are four types of review procedures as described in subsections 1—4 below. Table 15.202-1 lists the city's land use and development applications and corresponding review procedure(s).

1.

Type I procedure (ministerial staff review with no notice). Type I decisions are made by the city planning official, or his or her designee, without public notice and without a public hearing. A Type I procedure is used in applying city standards and criteria that do not require the use of discretion (i.e., there are clear and objective standards). The city planning official may elect to process a Type I application under a Type II procedure.

2.

Type II procedure (administrative/staff review with notice). Type II decisions are made by the city planning official, with public notice and an opportunity for appeal to the planning commission. Alternatively, the city planning official may refer a Type II application to the planning commission for its review and decision in a public meeting.

3.

Type III procedure (quasi-judicial review - public hearing). Type III decisions are made by the planning commission after a public hearing, with an opportunity for appeal to the city council except for decisions on all quasi-judicial comprehensive plan amendments and zone changes which must be adopted by the city council before becoming effective. Quasi-judicial decisions involve discretion but implement established policy. They involve the application of existing law or policy to a specific factual situation.

4.

Type IV procedure (legislative review). The Type IV procedure applies to the adoption of law or policy applicable citywide or to a broad geographical area of the city. Legislative actions provide for the establishment and modification of land use plans, policies, regulations, and guidelines. Type IV reviews are considered by the planning commission, which makes a recommendation to city council. City council makes the final decision on a legislative proposal through the enactment of an ordinance.

^* The applicant may be required to obtain building permits and other permits and approvals from other agencies, such as a road authority or natural resource regulatory agency. The city's failure to notify the applicant of any requirement or procedure of another agency shall not invalidate a permit or other decision made by the city under this Development Code.

A.

Time limits.

1.

Determination of completeness.

a.

Upon receipt of an application, the city planning official shall review the application for completeness.

i.

Incomplete applications shall not be reviewed until all required information has been submitted by the applicant;

ii.

If incomplete, the applicant shall be notified and shall have 180 days from the date the application was first submitted to supply the missing information or notify the city planning official in writing to process the application without missing information.

b.

The application shall be deemed complete either:

i.

Upon receipt of the additional information; or

ii.

[When]the applicant provides written notice to the city planning official to process the application without the missing information.

c.

Applications may be forwarded to affected agencies and departments for review and comment. If a county road or state highway might be impacted, referrals should be sent to Deschutes County public works and/or ODOT. Developments on any land illustrated on the NWI/LWI maps shall be referred within five days of receipt to the Oregon Division of State Lands.

d.

An applicant shall not submit any evidence to supplement its application during the 30 days following submittal of its application, except to respond to a request for additional information made under subsection a. Any other evidence submitted by an applicant will not be considered in determining whether the application is complete and will be returned to the applicant.

2.

120-day rule. The city shall take final action on administrative and quasi-judicial land use applications, pursuant to this chapter, including resolution of all appeals, within 120 days from the date the city planning official deems the application complete for purposes of processing, unless the applicant requests an extension in writing. Any exceptions to this rule shall conform to the provisions of ORS 227.178. (Note: The 120-day rule does not apply to legislative land use decisions.)

3.

100-day rule. The city must take final action, including resolution of all local appeals on qualifying applications under ORS 227.180, within 100 days after the application is deemed complete. An application qualifies if it is submitted under ORS 227.175 and meets the following criteria:

a.

The application is for development of a multi-family residential building containing five or more residential units within the urban growth boundary;

b.

At least 50 percent of the residential units included in the development will be sold or rented as affordable housing. For the purposes of this section, "affordable housing" means housing that is affordable to households with incomes equal to or less than 60 percent of the median family income for the county in which the development is built or for the state, whichever is greater; and

c.

The development is subject to a covenant appurtenant that restricts the owner and each successive owner of the development or a residential unit within the development from selling or renting any residential unit described in [paragraph] b of this section [3] as housing that is not affordable housing for a period of 60 years from the date of the certificate of occupancy.

4.

The periods set forth in this section during which a final decision on an application must be made may be extended for a reasonable period of time at the written request of the applicant, but total of all extensions, except as provided in subsection ORS 227.178(11) for mediation, may not exceed 245 days.

B.

Time periods. In computing time periods prescribed or allowed by this chapter, the day of the act or event from which the designated period of time begins shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which case the period runs until the end of the next day that is not on a weekend or legal holiday.

C.

Consolidated review of applications. When an applicant applies for more than one type of application 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.

State Law reference— Applications for permits, etc., ORS 22.175; final action, ORS 117.178; application review, ORS 227.180.

A.

City planning official's duties. The city planning official, or his or her designee, shall perform all of the following duties with regard to administration of this Development Code:

1.

Prepare application forms based on the provisions of this Development Code and applicable state law;

2.

Prepare required notices and process applications for review and action;

3.

Assist the planning commission and city council in administering the hearings process;

4.

Answer questions from the public regarding the city's land use regulations;

5.

Prepare staff reports summarizing pending applications, including applicable decision criteria;

6.

Prepare findings consistent with city decisions on land use and development applications;

7.

Prepare notices of final decisions, file the notices in the city's records, and mail a copy of the notices to all parties entitled to notice under this Development Code; and

8.

Maintain and preserve the file and record for each application.

B.

Development review committee. The development review committee may assist the city planning official in the review of proposed development and preparation of staff reports.

1.

The following persons, parties and agencies shall constitute the membership of the city development review committee:

a.

Public works official.

b.

Engineering official.

c.

Police and/or county sheriff as applicable.

d.

Fire and rescue.

e.

Public utility representatives (water and sewer districts).

f.

School district representatives.

g.

Parks and recreation district director.

h.

Building official.

i.

Any other person, party or agency deemed by city staff to be affected by the land use proposal or to have specific knowledge or expertise in regard to the specific proposal.

A.

A pre-application conference is encouraged for complex applications or for applicants who are unfamiliar with the land use process and is required for all Type III applications. The purpose of the conference shall be to acquaint the applicant with the substantive and procedural requirements of the applicable land use codes, to provide for an exchange of information regarding applicable requirements of the comprehensive plan, zoning code or land division code and to identify issues likely to arise in processing an application. The applicable zoning code may require that a pre-application conference be held for particular types of applications.

B.

Required pre-application conferences must be held no more than one year prior to the submittal of a Type III land use application. Requests for pre-application conferences shall be made on a form provided by the city.

State Law reference— Planning and zoning hearings and review, ORS 227.160 et seq.

A.

Purpose and applicability. Unless waived by the city planning official, applicants for master plans, subdivisions with more than ten lots, major variances and property owner-initiated for zone changes are required to contact neighboring property owners and offer to hold a meeting with them prior to submitting an application. This is to ensure that affected property owners are given an opportunity to preview a proposal and offer input to the applicant before a plan is formally submitted to the city, thereby raising any concerns about the project and the project's compatibility with surrounding uses early in the design process when changes can be made relatively inexpensively.

B.

Notice. Notice of the meeting must be given in writing to all property owners whose property is located within 100 feet of the site, at their addresses of record at the Deschutes County Assessor's office, at least 14 days before the meeting and at least 21 days before submitting the application to the city. The notice must state the time, place, and purpose of the meeting, including a description of the proposed development.

C.

Meeting place, date, and time. The meeting must be held within the city limits at a location obtained or provided by the applicant with sufficient room for the expected attendance. The meeting place must be accessible to persons with disabilities. It must be scheduled at a date and time reasonably calculated to allow maximum participation by interested property owners.

D.

Conduct of meeting. At the meeting, the applicant, or the applicant's agent, must present sufficient information about the proposed development to inform the property owners in attendance of the nature of the proposal and impacts it may have on neighboring properties, including transportation impacts. Persons attending must be allowed to ask questions and make comments. The applicant, or the applicant's agent, shall complete a form prescribed by the city to certify the occurrence of the meeting.

E.

Filing requirements. The meeting certification form, even if no affected property owners attend, is required and must be submitted to the city with a land use application for the application to be deemed complete. Copies of the following information must accompany the meeting certification form: a copy of the notice mailed, all addresses for which notice was mailed (e.g., copy of mailing labels), and copies of all other written materials provided prior to or distributed at the meeting.

An applicant may withdraw an application in writing at any time prior to the decisioning becoming final. If the landowner is not the applicant, no consent to withdraw the application is needed from the landowner. Refunds for withdrawn applications shall be determined from the following schedule:

A.

Refund request after file is made prior to acceptance of an application as complete and/or prior to the mailing of transmittals or public notice - 75 percent.

B.

Refund after public notice or transmittals have been sent - 50 percent.

C.

No refund shall be allowed after the preparation of a decision or staff report.

Any informal interpretation or determination, or any statement describing how a property may be used for [development], made outside the procedures described in this article shall be deemed to be a supposition only. Such informal interpretations, determinations, or statements shall not be deemed to constitute final city action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person.

A.

An applicant may modify an application at any time during the approval process up until the issuance of an administrative decision, or the close of the record for an application reviewed under a hearings process, subject to the provisions of this section, and payment of the required fee.

B.

The city planning official or planning commission shall not consider any evidence submitted by or on behalf of an applicant that would constitute modification of an application unless the applicant submits an application for a modification, pays all required modification fees and agrees in writing to restart the 120-day review period as of the date the modification is submitted. The 120-day time clock for an application, as modified, may be restarted as many times as there are modifications. For the purposes of this section, "modification of application" means the applicant's submittal of new information after an application has been deemed complete and prior to the close of the record on a pending application that would modify a development proposal by changing one or more of the following previously described components: proposed uses, operating characteristics, intensity, scale, site layout (including, but not limited to, changes in setbacks, access points, building design, size or orientation, parking, traffic or pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria to the proposal or that would require the findings of fact to be changed. It does not mean an applicant's submission of new evidence that merely clarifies or supports the pending application.

C.

The city planning official or planning commission may require that the application be re-noticed and additional hearings be held.

D.

Up until the day a hearing is opened for receipt of oral testimony, the city planning official shall have sole authority to determine whether an applicant's submittal constitutes a modification. After such time, the planning commission shall make such determinations. The city planning official or planning commission determination on whether a submittal constitutes a modification shall be appealable only to LUBA and shall be appealable only after a final decision is entered by the city on an application.

A.

If a specific application is denied on its merits, reapplication for substantially the same proposal may be made at any time after the date of the final decision denying the initial application.

B.

Notwithstanding subsection A, a final decision bars any reapplication for a non-conforming use verification or for a determination on whether an approval has been initiated.

Upon its own motion or the motion of a party, the council may, subject to any applicable public notice and hearing requirements, enact an ordinance correcting clerical or typographical errors in comprehensive plan amendment or zone change ordinances and any maps appended thereto implementing decisions of the planning commission. Such changes shall be entered only if the council is able to make a finding that the decision of the planning commission, including appendices, is not accurately reflected in the implementing ordinances.

A.

Scope.

1.

Except as otherwise provided herein, this section shall apply to and describe the duration of all approvals of land use permits provided for under this Development Code.

2.

This section does not apply to:

a.

Those determinations made by declaratory ruling or expiration determinations, that involve a determination of the legal status of a property, land use or land use permit rather than whether a particular application for a specific land use meets the applicable standards of [article 3]. Such determinations, whether favorable or not to the applicant or landowner, shall be final, unless appealed, and shall not be subject to any time limits.

b.

Quasi-judicial map changes.

B.

Duration of approvals.

1.

Except as otherwise provided under this section or under other applicable provisions of this Development Code, a land use approval is void two years after the date the discretionary decision becomes final if the use approved in the permit is not initiated within that time period.

2.

Except as otherwise provided under applicable ordinance provisions, preliminary approval of plats shall be void after two years from the date of preliminary approval, unless the final plat has been submitted to the city planning official for final approval within that time period, or an extension is sought under subsection C, or the preliminary plat approval has been initiated as defined herein.

3.

The city planning official or planning commission may approve a request to complete developments of five or more acres provided the total time for all phases shall not exceed five years from the date the application becomes final. An extension of any phase of a phased development shall automatically extend all subsequent phases.

C.

Extensions.

1.

The city planning official may grant one extension of up to one year for a land use approval or a phase of a land use approval, regardless of whether the applicable criteria have changed, if:

a.

An applicant makes a written request for an extension of the development approval period;

b.

The request, along with the appropriate fee, is submitted to the city prior to the expiration of the approval period;

c.

The applicant states reasons that prevented the applicant from beginning or continuing development or meeting conditions of approval within the approval period; and

d.

The city determines that the applicant was unable to begin or continue development or meet conditions of approval during the approval period for reasons for which the applicant was not responsible, including, but not limited to, delay by a state or federal agency in issuing a required permit.

2.

Up to two additional one-year extensions may be granted by the city planning official if the criteria under subsection C.1 are still satisfied provided the applicable criteria for the decision have not changed.

D.

Procedures.

1.

A determination of whether a land use has been initiated shall be processed as a declaratory ruling.

2.

Approval of an extension granted under subsection C is an administrative decision, is not a land use decision described in ORS 197.015 and is not subject to appeal as a land use decision and shall be processed under the Development Code as a development action, except to the extent it is necessary to determine whether the use has been initiated.

E.

Effect of appeals. The time period set forth in subsection B shall be tolled upon filing of an appeal to LUBA until all appeals are resolved.

A.

For the purposes of this section, development undertaken pursuant to a land use approval has been "initiated" if it is determined that:

1.

The proposed use has lawfully occurred;

2.

Substantial construction toward completion of the land use approval has taken place; or

3.

Where construction is not required by the approval, the conditions of a permit or approval have been substantially satisfied and any failure to fully comply with the conditions is not the fault of the applicant.

B.

For the purposes of this section, "substantial construction" has occurred when the holder of a land use approval has physically altered the land or structure or changed the use thereof and such alteration or change is directed toward the completion and is sufficient in terms of time, labor or money spent to demonstrate a good faith effort to complete the development.

A.

A modification shall not be filed as a substitute for an appeal or to apply for a substantially new proposal or one that would have significant additional impacts on surrounding properties. For the purposes of this section, a substantially new proposal would require the application of new criteria and a significant impact would result in the imposition of new or different conditions of approval.

B.

An application to modify an approval shall be directed to one or more discrete aspects of the approval, the modification of which would not amount to approval of a substantially new proposal or one that would have significant additional impacts on surrounding properties. Any proposed modification, as defined in this section, shall be reviewed only under the criteria applicable to that particular aspect of the proposal. Proposals that would modify an approval in a scope greater than allowable as a modification shall be treated as an application for a new proposal.

A.

A land use approval shall be deemed to run with the land and be transferable to applicant's successors in interest.

B.

The city planning official may require that an applicant record an instrument in the Deschutes County Records to provide notice of the land use decision and/or any conditions of approval.

C.

The terms of a land use decision may be enforced against the applicant and any successor in interest.

A.

Type 1 procedure (staff review). The city planning official, or his or her designee, without public notice and without a public hearing, makes ministerial decisions through the Type I procedure because a Type 1 decision is neither a land use decision nor a limited land use decision under ORS 197.015. Ministerial decisions are those where city standards and criteria do not require the exercise of discretion (i.e., there are clear and objective standards). The city planning official's review of a zoning checklist is intended to determine whether minimum code requirements are met and whether any other land use permit or approval is required prior to issuance of a building permit. Alternatively, the planning official may elect to process a Type I application under a Type II procedure.

B.

Application requirements. Approvals requiring Type I review shall be made on forms provided by the city; or, in the case of a zoning checklist, the city planning official may determine that the building permit application provides sufficient information. Applications shall:

a.

Include the information requested on the application form;

b.

Address the criteria in sufficient detail for review and action; and

c.

Be filed with the required fee.

C.

Criteria and decision. Type I applications shall be approved or denied by the city planning official upon consideration of the applicable clear and objective criteria.

D.

Effective date. A Type I decision is final on the date it is signed by the city planning official unless appealed by the applicant in accordance with subsection F.

E.

Notice. Notice of a decision shall be provided to the applicant or the applicant's representative and the property owner.

F.

Appeals. The applicant for a Type I review may appeal [the] planning official's decision on the application to the planning commission. The appeal shall be filed, pursuant to the provisions of chapter 15.212, within 12 days from the date of the decision. A Type I decision is not a land use decision as defined by ORS 197.015, and therefore is not subject to appeal to the state land use board of appeals.

(Ord. No. 2024-02, § 10(exh. I), 12-11-2024)

State Law reference— Definitions, ORS 197.015.

The planning official performs administrative staff reviews through the Type II procedure. Type II decisions are made by the planning official with public notice and an opportunity for appeal to the planning commission. Alternatively, the planning official may refer a Type II application to the planning commission for its review and decision in a public meeting.

A.

Application requirements.

1.

Application forms. Applications for projects requiring administrative review shall be made on forms provided by the planning official.

2.

Submittal information. The planning official shall advise the applicant on application submittal requirements. At a minimum, the application shall include all of the following information:

a.

The information requested on the application form;

b.

Plans and exhibits required for the specific approval(s) being sought;

c.

A written statement or letter explaining how the application satisfies each and all of the relevant criteria and standards in sufficient detail;

d.

Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable; and

e.

The required fee.

B.

Notice of pending administrative decision (notice of application).

1.

The purpose of the notice of pending administrative decision is to give nearby property owners and other interested people and agencies the opportunity to submit written comments on the application before the planning official issues the decision. Within ten days of receipt of a complete application for a Type II land use action, the planning official shall mail notice of a pending Type II decision to the individuals and agencies [listed in paragraph 3 of this subsection B].

2.

The comment period shall be at least 14 days duration from the date notice was mailed or a longer [period] as specified in the notice. The deadline for submitting written comments must be at least 14 days prior to the scheduled decision date or, as applicable, the scheduled planning commission meeting date where an application is referred to the commission for review.

3.

All of the following individuals and agencies shall be notified. However, the failure of a property owner to receive mailed notice shall not invalidate any land use approval if the planning official can show by affidavit that such notice was given.

a.

The applicant;

b.

Owners of record of property as shown on the most recent property tax assessment roll of property located within 100 feet of the property that is the subject of the notice where any part of the subject property is within an urban growth boundary;

c.

The owner of a public use airport if the airport is located within 10,000 feet of the subject property;

e. [d.]

The planning commission;

f. [e.]

Any neighborhood or community organization formally recognized by the city council, whose boundaries include the site;

g. [f.]

Any person who submits a written request to receive a notice; and

h. [g.]

Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the city and any other affected agencies. At a minimum, the city planning official shall notify the road authority if different than the City of La Pine. The failure of another agency to respond with written comments on a pending application shall not invalidate an action or permit approval made by the city under this Development Code.

3. [4.]

The notice of pending administrative decision, at a minimum, shall contain all of the following information:

a.

The deadline for submitting written comments, which must be at least 14 days prior to the scheduled decision date or, as applicable, the scheduled planning commission meeting date where an application is referred to the commission for review;

b.

A summary of the proposal and the relevant approval criteria in sufficient detail to help the public identify and locate applicable Development Code requirements;

c.

The address and city contact person for submitting written comments; and the date, time, and location the city planning official or planning commission, as applicable, is scheduled to make a decision on the application;

d.

The street address or other easily understandable reference to the location of the proposed use or development;

e.

Disclosure statement indicating that if any person fails to address the relevant approval criteria with enough detail, he or she may not be able to appeal to the land use board of appeals or circuit court on that issue, and that only comments on the relevant approval criteria are considered relevant evidence;

f.

Statement that all evidence relied upon by the city planning official or planning commission, as applicable, to make its decision is in the record and is available for public review. Copies of this evidence can be obtained at a reasonable cost from the city; and

g.

Statement that after the comment period closes, the city will issue its decision and the decision shall be mailed to the applicant and to anyone else who submitted written comments or who is otherwise legally entitled to notice.

C.

Decision.

1.

At the conclusion of the comment period, the city planning official shall review the comments received and prepare a decision notice approving, approving with conditions, or denying the application based on the applicable Development Code criteria. Alternatively, the city planning official may transmit all written comments received, if any, along with a copy of the application to the planning commission for review and decision at its next regularly scheduled meeting.

2.

Where the city planning official refers an application subject to administrative review to the planning commission, the planning commission shall approve, approve with conditions, or deny the application through the Type II procedure based on the applicable Development Code criteria. The planning commission may continue its review to the next meeting to allow the applicant time to respond to questions, provided that the commission makes a final decision within the time period prescribed under state law (ORS 227.178) and as described in section 15.202.020 of this Development Code. Alternatively, the applicant may voluntarily waive his or her right to a final decision within the required timeframe and the commission may decide to accept oral and written testimony in a public hearing review of the application, pursuant to section 15.204.030; in which case, a new public notice must be mailed to those who received the original notice indicating the change to a quasi-judicial (public hearing) review procedure.

D.

Notice of decision.

1.

Within seven days of a Type II decision, the city planning official shall prepare a notice of decision and mail it to the applicant, property owner (if different), the building official, those who provided written comments on the proposal, and those who requested a copy of the decision. If the decision is not a limited land use decision as defined in ORS 197.015(12), notice shall also be sent to all persons entitled to notice under subsection B.

2.

The city planning official shall cause an affidavit of mailing the notice to be prepared and made a part of the file. The affidavit shall show the date the notice was mailed and shall demonstrate that the notice was mailed to the parties above and was mailed within the time required by law.

3.

The administrative notice of decision shall contain all of the following information:

a.

A description of the applicant's proposal and the city's decision on the proposal, which may be a summary, provided it references the specifics of the proposal and conditions of approval in the record;

b.

The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area (a copy of assessor's map may be used);

c.

A statement of where the city's decision can be obtained;

d.

The date the decision shall become final, unless appealed; and

e.

A statement that all persons entitled to notice may appeal the decision to city council pursuant to subsection F.

E.

Effective date of decision. Unless the conditions of approval specify otherwise, an administrative decision becomes effective 12 days after the city mails the decision notice, unless the decision is appealed pursuant to subsection F or the decision is called up for review by the city council pursuant to subsection G. No building permit shall be issued until a decision is final. Appeal of a final decision to LUBA does not affect the finality of a decision at the local level for purposes of issuing building permits.

F.

Appeal of Type II (administrative) decision.

1.

Who may appeal. The following people have legal standing to appeal a Type II administrative decision:

a.

The applicant or owner of the subject property;

b.

Any person who was entitled to written notice of the Type II decision; and

c.

Any other person who participated in the proceeding by submitting written comments on the application to the city by the specified deadline.

2.

Appeal filing procedure. Appeals shall be filed in accordance with chapter 15.212.

G.

Review by council.

1.

Review of an administrative action or a planning commission decision may be initiated by the city council. The council shall consider calling up for review any administrative decision that a majority of the planning commission recommends be reviewed.

2.

Review by the council shall be initiated by council order within 12 days of the date of the mailing of the final written decision of the planning official or planning commission.

3.

Review shall be conducted in the same manner provided for in appeals, except that an appeal fee and transcript shall not be required. Any council order calling up for review a decision shall specify whether the council will review the decision called up on the record or de novo, and whether it intends to limit the issues on review to certain specified issues.

Type III decisions are made by the planning commission after a public hearing, with an opportunity for appeal to the city council. Except that prior to becoming effective, all quasi-judicial comprehensive plan amendments and zone changes shall be adopted by the city council. In considering all quasi-judicial comprehensive plan amendments and zone changes on which the planning commission has authority to make a decision, the city council shall, in the absence of an appeal or review initiated by the council, adopt the planning commission decision. No argument or further testimony will be taken by the council.

A.

Application requirements.

1.

Application forms. Applications requiring quasi-judicial review shall be made on forms provided by the city planning official.

2.

Submittal information. The city planning official shall advise the applicant on application submittal requirements. At a minimum, the application shall include all of the following information:

a.

The information requested on the application form;

b.

Plans and exhibits required for the specific approval(s) being sought;

c.

A written statement or letter explaining how the application satisfies each and all of the relevant criteria and standards in sufficient detail;

d.

Information demonstrating compliance with prior decision(s) and conditions of approval for the subject site, as applicable;

e.

The required fee; and

f.

Evidence of neighborhood contact, as applicable, pursuant to section 15.202.050.

B.

Mailed and posted notice of a public hearing.

1.

The city shall mail public notice of a public hearing on a quasi-judicial application at least 20 days before the hearing date to the individuals and organizations listed below. The city planning official shall prepare an affidavit of notice, which shall be made a part of the file. The affidavit shall state the date that the notice was mailed. However, the failure of a property owner to receive mailed notice shall not invalidate any land use approval if the planning official can show by affidavit that such notice was given. Notice shall be mailed to:

a.

The applicant;

b.

Owners of record of property as shown on the most recent property tax assessment roll of property located within 100 feet of the property that is the subject of the notice where any part of the subject property is within an urban growth boundary;

c.

The owner of a public use airport if the airport is located within 10,000 feet of the subject property;

d.

The tenants of a mobile home park when the application is for the rezoning of any part or all of a mobile home park;

e.

The planning commission;

f.

Any neighborhood or community organization formally recognized by the city council, whose boundaries include the site;

g.

Any person who submits a written request to receive a notice; and

h.

Any governmental agency that is entitled to notice under an intergovernmental agreement entered into with the city and any other affected agencies. At a minimum, the city planning official shall notify the road authority if different than the City of La Pine. The failure of another agency to respond with written comments on a pending application shall not invalidate an action or permit approval made by the city under this Development Code.

2.

In addition to notice by mail and posting, notice of an initial hearing shall be published in a newspaper of general circulation in the county at least ten days prior to the hearing.

3.

At least 14 days before the first hearing, the city shall post notice of the hearing on the project site in clear view from a public right-of-way.

4.

Notice of a quasi-judicial hearing to be mailed and published per subsection 1 above shall contain all of the following information:

a.

A summary of the proposal and the relevant approval criteria, in sufficient detail to help the public identify and locate applicable Development Code requirements;

b.

The date, time, and location of the scheduled hearing;

c.

The street address or other clear reference to the location of the proposed use or development;

d.

A disclosure statement that if any person fails to address the relevant approval criteria with enough detail, he or she may not be able to appeal to the city council, land use board of appeals, or circuit court, as applicable, on that issue, and that only comments on the relevant approval criteria are considered relevant evidence;

e.

A statement that a copy of the application, all documents and evidence submitted by or for the applicant, and the applicable criteria and standards shall be available for review at the office of the city planning official, and that copies shall be provided at a reasonable cost;

f.

A statement that a copy of the city's staff report and recommendation to the hearings body shall be available for review at no cost at least seven days before the hearing, and that a copy shall be provided on request at a reasonable cost;

g.

A general explanation of the requirements to submit testimony, and the procedure for conducting public hearings; and

h.

A statement that after the public hearing closes, the city will issue its decision, and the decision shall be mailed to the applicant and to anyone else who submitted written comments or who is otherwise legally entitled to notice.

C.

Setting the hearing.

A.

After an application is deemed accepted a hearing date shall be set. A hearing date may be changed by the city staff, or the hearings body up until the time notice of the hearing is mailed. Once the notice of hearing is mailed any changes in the hearing date shall be processed as a continuance in accordance with subsection G.

B.

If an applicant requests that a hearing date be changed, such request shall be granted only if the applicant agrees that the extended time period for the hearing shall not count against the 120-day time limit set forth in section 15.202.020.

D.

Ex parte contact, personal knowledge and bias.

1.

The public is entitled to an impartial hearing body as free from potential conflicts of interest and pre-hearing ex parte (outside the hearing) contacts as reasonably possible. Where questions related to ex parte contact are concerned, members of the hearing body shall follow the guidance for disclosure of ex parte contacts contained in ORS 227.180. Where a real conflict of interest arises, that member or members of the hearing body shall not participate in the hearing, except where state law provides otherwise. Where the appearance of a conflict of interest is likely, that member or members of the hearing body shall individually disclose their relationship to the parties in the public hearing and state whether they are capable of rendering a fair and impartial decision. If they are unable to render a fair and impartial decision, they shall be excused from the proceedings.

Prior to making a decision, the hearings body or any member thereof shall not communicate directly or indirectly with any party or his representative in connection with any issue involved in a pending hearing except upon notice and opportunity for all parties to participate. Should such communication whether written or oral occur, the hearings body member shall:

a.

Publicly announce for the record the substance of such communication; and

b.

Announce the parties' right to rebut the substance of the ex parte communication during the hearing. Communication between city staff and the hearings body shall not be considered to be an ex parte contact.

2.

If the hearings body or any member thereof uses personal knowledge acquired outside of the hearing process in rendering a decision, the hearings body or member thereof shall state the substance of that knowledge on the record and allow all parties the opportunity to rebut such statement on the record. For the purposes of this section, a site visit by the hearings body shall be deemed to fall within this rule. After the site visit has concluded, the hearings body must disclose its observations and conclusions gained from the site visit in order to allow for rebuttal by the parties.

3.

Prior to or at the commencement of a hearing, any party may challenge the qualification of the hearings body, or a member thereof, for bias, prejudgment or personal interest. The challenge shall be made on the record and be documented with specific reasons supported by facts. Should qualifications be challenged, the hearings body or the member shall disqualify itself, withdraw or make a statement on the record of its capacity to hear.

E.

Conduct of a quasi-judicial public hearing. A hearing shall be conducted as follows:

1.

The hearings body shall explain the purpose of the hearing and announce the order of proceedings, including reasonable time limits on presentations by parties.

2.

A statement by the hearings body regarding pre-hearing contacts, bias, prejudice or personal interest shall be made.

3.

Any facts received, noticed or recognized outside of the hearing shall be stated for the record.

4.

Challenges to the hearings body's qualifications to hear the matter shall be stated and challenges entertained.

5.

The hearings body shall list applicable substantive criteria, explain that testimony and evidence must be directed toward that criteria or other criteria in the comprehensive plan or land use regulations that the person believes to apply to the decision, and that failure to address an issue with sufficient specificity to afford the decision maker and the parties an opportunity to respond precludes appeal to LUBA based on that issue.

6.

Order of presentation:

1.

Open the hearing.

2.

Staff report.

3.

Proponents' presentation.

4.

Opponents' presentation.

5.

Proponents' rebuttal.

6.

Opponents' rebuttal may be allowed at the hearings body's discretion.

7.

Staff comment.

8.

Questions from or to the chair may be entertained at any time at the hearings body's discretion.

9.

Close the hearing.

7. [10.]

The record shall be available for public review at the hearing.

8. [11.]

At the conclusion of the initial evidentiary hearing, the hearing body shall deliberate and make a decision based on the facts and arguments in the record.

9. [12.]

Throughout all local land use proceedings, the burden of proof rests on the applicant.

10. [13.]

Any interested person may appear and be heard in a land use action hearing, except that in appeals heard on the record, a person must have participated in a previous hearing on the subject application. Any person appearing on the record at a hearing (including appeals) or presenting written evidence in conjunction with an administrative action or hearing shall have standing and shall be a party. A person whose participation consists only of signing a petition shall not be considered a party.

F.

Close of the record.

1.

Except as set forth herein, the record shall be closed to further testimony or submission of further argument or evidence at the end of the presentations before the hearings body.

2.

If the hearing is continued or the record is held open under subsection G, further evidence or testimony shall be taken only in accordance with the provisions of subsection G.

3.

Otherwise, further testimony or evidence will be allowed only if the record is reopened under subsection H.

4.

An applicant shall be allowed, unless waived, to submit final written arguments in support of its application after the record has closed within such time limits as the hearings body shall set. The hearings body shall allow applicant at least seven days to submit its argument, which time shall be counted against the 120-day time limit for decision.

G.

Continuances or record extensions.

1.

Grounds.

a.

Prior to the date set for an initial hearing, an applicant shall receive a continuance upon any request if accompanied by a corresponding suspension of the 120-day limit for decision. If a continuance request is made after the published or mailed notice has been provided by the city, the hearings body shall take evidence at the scheduled hearing date from any party wishing to testify at that time after notifying those present of the continuance.

b.

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:

i.

Where additional documents or evidence are submitted by any party; or

ii.

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 i, "additional documents or evidence" shall mean documents or evidence containing new facts or analysis that are submitted after notice of the hearing.

c.

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

2.

Continuances.

a.

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

b.

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

c.

If new written evidence is submitted at the continued 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.

3.

Leaving record open. If at the conclusion of the 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.

D. [a.]

A continuance or record extension granted under subsection [G.2] shall be subject to the 120-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 120-day time limit 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.

H.

Reopening the record.

A.

The hearings body may at its discretion reopen the record, either upon request or on its own initiative. The hearings body shall not reopen the record at the request of an applicant unless the applicant has agreed in writing to a suspension of the 120-day time limit.

B.

Procedures.

1.

Except as otherwise provided for in this section, the manner of testimony (whether oral or written) and time limits for testimony to be offered upon reopening of the record shall be at the discretion at the hearings body.

2.

The hearings body shall give written notice to the parties that the record is being reopened, stating the reason for reopening the record and how parties can respond. The parties shall be allowed to raise new issues that relate to the new evidence, testimony or criteria for decision-making that apply to the matter at issue.

I.

Notice of quasi-judicial decision. A hearings body's decision shall be in writing and mailed to all parties; however, one person may be designated by the hearings body to be the recipient of the decision for a group, organization, group of petitioners or similar collection of individual participants. The notice of quasi-judicial decision shall contain all of the following information:

a.

A description of the applicant's proposal and the city's decision on the proposal, which may be a summary, provided it references the specifics of the proposal and conditions of approval in the record;

b.

The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area (a copy of assessor's map may be used);

c.

A statement of where the city's decision can be obtained;

d.

The date the decision shall become final, unless appealed; and

e.

A statement that all persons entitled to notice may appeal the planning commission's decision to city council pursuant to subsection K or may appeal the city council's decision to the state land use board of appeals, as applicable.

J.

Effective date of decision. Unless the conditions of approval specify otherwise, a quasi-judicial decision becomes effective 12 days after the city mails the decision notice, unless the decision is appealed pursuant to subsection K or unless the decision is called up for review by the city council pursuant to section 15.204.020.G. No building permit shall be issued until a decision is final. Appeal of a final decision to LUBA does not affect the finality of a decision at the local level for purposes of issuing building permits, but any development that occurs during the pendency of appeals beyond the local level are at the sole risk of the applicant and the city may require execution of an instrument acknowledging such fact prior to issuance of any building permits.

K.

Appeal of planning commission decision. The planning commission's decision may be appealed to the city council as follows:

1.

Who may appeal. The following people have legal standing to appeal:

a.

The applicant or owner of the subject property; and

b.

Any other person who testified orally or in writing during the subject public hearing before the close of the record.

2.

Appeal filing procedure. Appeals shall be filed in accordance with chapter 15.212.

A.

Timing of requests. The city council may establish a schedule for when it will accept legislative code amendment or plan amendment requests, or the city council may initiate its own legislative proposals at any time. Legislative requests are not subject to the 120-day review period under ORS 227.178.

B.

Application requirements.

1.

Application forms. Legislative applications shall be made on forms provided by the city planning official.

2.

Submittal information. The application shall contain all of the following information:

a.

The information requested on the application form;

b.

A map and/or plan addressing the appropriate criteria and standards in sufficient detail for review and decision (as applicable);

c.

The required fee, except when City of La Pine initiates request;

d.

One copy of a letter or narrative statement that explains how the application satisfies each and all of the relevant approval criteria and standards; and

e.

Evidence of neighborhood contact, if applicable pursuant to section 15.202.050.

C.

Procedure. Hearings on Type IV applications are conducted similar to city council hearings on other legislative proposals, except the notification procedure for Type IV applications must conform to state land use laws (ORS 227.175), as follows:

1.

The city planning official shall notify in writing the Oregon Department of Land Conservation and Development (DLCD) of legislative amendments (zone change, rezoning with annexation, or comprehensive plan amendment) at least 35 days before the first public hearing at which public testimony or new evidence will be received. The notice shall include a DLCD certificate of mailing.

2.

At least 20 days, but not more than 40 days, before the date of the first hearing on an ordinance that proposes to amend the comprehensive plan or any element thereof, or to adopt an ordinance for any zone change, a notice shall be prepared in conformance with ORS 227.175 and mailed to:

a.

Each owner whose property would be directly affected by the proposal (e.g., rezoning or a change from one comprehensive plan land use designation to another); see ORS 227.186 for instructions;

b.

Any affected governmental agency;

c.

Any person who requests notice in writing; and

d.

For a zone change affecting a manufactured home or mobile home park, all mailing addresses within the park, in accordance with ORS 227.175.

3.

At least ten days before the scheduled city council public hearing date, public notice shall be published in a newspaper of general circulation in the city.

4.

For each mailing and publication of notice, the city planning official shall keep an affidavit of mailing/publication in the record.

D.

Final decision and effective date. A Type IV decision, if approved, shall take effect and shall become final as specified in the enacting ordinance or, if not approved, upon mailing of the notice of decision to the applicant. Notice of a Type IV decision shall be mailed to the applicant, all participants of record, and the department of land conservation and development within 20 business days after the city council decision is filed with the city planning official. The city shall also provide notice to all persons as required by other applicable laws.

1.

The record shall include all of the following information:

a.

All materials considered by the hearings body;

b.

All materials submitted by the city planning official to the hearings body regarding the application;

c.

The minutes of any public hearing;

d.

The final written decision; and

e.

Copies of all notices given as required by this chapter, and correspondence regarding the application that the city mailed or received.

2.

Meeting minutes shall be filed in hardcopy form with the city planning official. The minutes and other evidence presented as a part of the hearing shall be part of the record.

3.

All exhibits received and displayed shall be marked to provide identification and shall be part of the record.

A.

An applicant may request that any decision be reconsidered as set forth herein. A request for reconsideration shall be accompanied by a fee established by the city and by applicant's written consent that the 120-day time limit for a land use decision will not run during the period of the reconsideration.

B.

Grounds for reconsideration are limited to the following instances where an alleged error substantially affects the rights of the applicant:

1.

Correction of an error in a condition of approval where the condition is not supported by the record or is not supported by law;

2.

Correction of errors that are technical or clerical in nature.

A.

A request for reconsideration shall be filed with the city planning official within ten days of the date the decision was mailed. The request shall identify the alleged error in the decision and shall specify how the applicant would be adversely affected if the alleged error were to remain uncorrected.

B.

Upon receipt of a request for reconsideration, the city planning official shall forward the request for reconsideration to the decision maker and notify the other parties to the proceeding of the request and allow for a ten-day comment period on the request. At the end of the comment period, the hearings body shall determine whether the request for reconsideration has merit.

C.

The hearings body shall modify the decision upon a determination that the request has merit and the alleged error substantially affects the applicant. Notice of the modification shall be sent to all parties to the proceeding. If the hearings body determines that no modification is warranted, a determination shall issue a decision to that effect.

D.

Filing a request for reconsideration shall not be a precondition for appealing a decision.

E.

Filing a request for reconsideration stays the deadline for any party to file an appeal. The appeal period for all parties to the proceeding shall commence upon mailing of a modification of the decision or upon mailing a determination that a modification is not warranted. If an opponent files an appeal and an applicant has requested reconsideration, the opponent's appeal shall be stayed pending disposition of the request for reconsideration. If the decision is not modified, the appeal will be processed in accordance with the procedures set forth in chapter 15.212. If the decision is modified, the appellant must, within 12 days of the mailing of the modified decision, file in writing a statement requesting that its appeal be activated.

No decision shall be reconsidered more than once.

The following may file an appeal:

A.

Appeals of Type I decisions shall be in accordance with 15.204.010.G. [15.204.010.F]

B.

Appeals of Type II decisions shall be in accordance with 15.204.020.F.

C.

Appeals of Type III decisions shall be in accordance with 15.204.030.K.

D.

There is no local appeal for city council decisions. City council decisions appealed to the land use board of appeals must follow applicable state laws.

A.

To file an appeal, an appellant must file a completed notice of appeal on a form prescribed by the city planning official and an appeal fee.

B.

Unless a request for reconsideration has been filed, the notice of appeal and appeal fee must be received at the offices of the city planning official no later than 5:00 p.m. on the 12th day following mailing of the decision. If a decision has been modified on reconsideration, an appeal must be filed no later than 5:00 p.m. on the 12th day following mailing of the decision as modified. Notices of appeals may not be received by facsimile machine.

C.

If the city council is the hearings body and the city declines review of the appeal, a portion of the appeal fee may be refunded. The amount of any refund will depend upon the actual costs incurred by the city in reviewing the appeal.

D.

The appeal fee shall be paid by cash or check or money order, except that local, state or federal governmental agencies may supply a purchase order at the time of filing.

The notice of appeal shall include:

A.

A statement raising any issue relied upon for appeal with sufficient specificity to afford the hearings body an adequate opportunity to respond to and resolve each issue in dispute.

B.

If the city council is the hearings body, a request for review by the council stating the reasons why the council should review the lower hearings body's decision.

C.

If the city council is the hearings body and de novo review is desired, a request for de novo review by the council stating the reasons why the council should provide de novo review as provided in section 15.212.050.

If more than one party files a notice of appeal, the appeals shall be consolidated and noticed and heard as one proceeding.

A.

Before planning commission. The review on appeal before the planning commission shall be de novo.

B.

Before the council.

1.

Review before the city council, if accepted, shall be on the record except as otherwise provided for in this section.

2.

The council may grant an appellant's request for a de novo review at its discretion after consideration of the following factors:

a.

Whether hearing the application de novo could cause the 120-day time limit to be exceeded; and

b.

If the audio recording of the hearing below, or a portion thereof, is unavailable due to a malfunctioning of the recording device during that hearing, whether review on the record would be hampered by the absence of a transcript of all or a portion of the hearing below; or

c.

Whether the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or

d.

Whether in its sole judgment a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action.

For the purposes of this section, if an applicant is an appellant, factor section 15.212.050.B.2.a shall not weigh against the appellant's request if the applicant has submitted with its notice of appeal written consent on a form approved by the city to restart the 120-day time limit as of the date of the acceptance of applicant's appeal.

3.

Notwithstanding section 15.212.050.B.2., the council may decide on its own to hear a timely filed appeal de novo.

4.

The council may, at its discretion, determine that it will limit the issues on appeal to those listed in an appellant's notice of appeal.

A.

The appellant and all other parties to the decision below shall be mailed notice of the hearing on appeal at least ten days prior to any de novo hearing or deadline for submission of written arguments.

B.

Except as otherwise provided in this chapter, the appeal shall be heard in accordance with the Type III procedures. The applicant shall proceed first in all de novo appeals.

C.

The order of hearings body shall be as follows: 1. planning commission. 2. city council, except that the council may call up an administrative decision for review without the necessity of an application going before the planning commission.

D.

The record of the proceeding from which appeal is taken shall be a part of the record on appeal.

E.

The record for a review on the record shall consist of the following:

1.

A written transcript of any prior hearing;

2.

All written and graphic materials that were part of the record below;

3.

The hearings body decision appealed from;

4.

Written arguments, based upon the record developed below, submitted by any party to the decision;

5.

Written comments submitted by the planning commission or individual planning commissioners, based upon the record developed below; and

6.

A staff report and staff comment based on the record. No oral evidence, argument or comment other than staff comment based on the record shall be taken. The hearings body shall not consider any new factual information.

Except for decisions on comprehensive plan amendments and zone changes when the city council is adopting the planning commission's decision, when there is an appeal and the city council is the hearings body:

A.

The council may on a case-by-case basis, at a public meeting, determine that the decision of the lower hearings body shall be the final decision of the city.

B.

If the city council decides that the lower hearings body decision shall be the final decision of the city, then the council shall not hear the appeal and the party appealing may continue the appeal as provided by law. In such a case, the city shall provide written notice of its decision to all parties. The decision on the land use application becomes final upon mailing of the council's decision to decline review.

C.

The decision of the city council not to hear a land use action appeal is entirely discretionary.

D.

In determining whether to hear an appeal, the city council may consider only:

1.

The record developed before the lower hearings body;

2.

The notice of appeal; and

3.

Recommendations of city staff.

Notice of the hearing date set for appeal shall be sent only to the applicant. Only the applicant, his or her representatives, and his or her witnesses shall be entitled to participate. Continuances shall be at the discretion of the hearings body, and the record shall close at the end of the hearing.

An appeal may be withdrawn in writing by an appellant at any time prior to the rendering of a final decision. Subject to the existence of other appeals on the same application, in such event the appeal proceedings shall terminate as of the date the withdrawal is received.