Prineville City Zoning Code

Section 153.250 is enacted to provide a uniform procedure for the grant or denial and processing of applications, approvals and determinations by the Planning Department of the City of Prineville, under the applicable Comprehensive Plan, land use regulations and other ordinances which by their terms incorporate by reference the procedures in this chapter.

The provisions of § 153.250 do not apply to the issuance, suspension, or revocation of any on-site sewage disposal, building, electrical or plumbing permits except as they relate to the Planning Department consideration of permitted uses.

Outright. Uses marked by an "O" in the city's use tables. Outright uses may be processed in four different ways at the discretion of the Planning Director as follows:

Type I conditional use. Uses marked by a "T1" in the city's use tables. This decision is made and processed as a land use action as defined in § 153.250.020. The City Planning Official shall provide individual written notice of the application in accordance with the administrative notice requirements of § 153.254.030. If no objection is received within the response period the Planning Official may make the final decision on the subject proposal without a public hearing. If one or more objections are received within the response period based on applicable criteria that cannot be resolved by the parties, the subject application shall be referred to the Planning Commission or Hearings Officer for a public hearing. Notice and hearing shall be provided in accordance with § 153.255. The applicant shall be required to pay any additional hearing fees prior to scheduling the public hearing.

Type II conditional use. Uses marked by a "T2" in the city's use tables. This decision is made and processed as a land use action as defined in § 153.250.020, with a public hearing. An application for a Type II conditional use shall be subject to review by the Planning Commission or Hearings Officer in accordance with the public hearing requirements of § 153.255.

Applications for development actions or land use actions shall:

Failure to include any of the required information may lead to a determination that the application is incomplete and may be rejected.

Acceptance of the application indicates only that the application is ready for processing and review. It does not represent an acceptance of a complete application.

Applications for uses or developments not specifically listed in the allowed uses of a zone or permitted by another chapter or authorized under § 153.015 will not be accepted.

Within ten days of the submittal of a land use application, notice shall be sent to the following persons, parties and agencies which shall constitute the membership of the City Development Review Committee:

Development review conference. Within 30 days of submittal of a land use application, the Community Development Department shall schedule a meeting with the City Development Review Committee to discuss issues relevant to the proposal. At the request of the applicant, or as initiated by staff, the Development Review Committee may conduct a follow-up meeting with the applicant and applicant's representatives to discuss any issues identified in the development review conference.

Committee review factors. In review of a proposed development, the Committee shall, at a minimum, consider the following factors:

Development action and land use action applications shall not be accepted until the Planning Director has determined that (1) the requirements of § 153.251.010 have been met and (2) the application is complete or the application is deemed to be complete under state law.

An application is complete when in the judgment of the Planning Director all applicable issues have been adequately addressed in the application.

Acceptance of an application as complete shall not preclude a determination at a later date that additional criteria need to be addressed or a later determination that additional information is needed to adequately address applicable criteria.

If an application is incomplete, the Planning Director or designee shall, within 30 days of receipt of the application, notify the applicant in writing of exactly what information is missing.

The applicant shall have 30 days from the date of notice to supply the missing information, continue to pursue a decision without the information or withdraw the application.

If the applicant fails to respond within 30 days, at the discretion of the Planning Director, the city may return the application or continue through to final decision. If the application is returned a refund may be granted in accordance with § 153.251.040.

If the applicant or the applicant's representative or apparent representative makes a misstatement of fact on the application regarding property ownership, authority to submit the application, acreage, or any other fact material to the acceptance of the application, and such misstatement is relied upon by the Planning Director or designee or Hearings Body in making a decision whether to accept the application, the Planning Director or designee may upon notice to the applicant and subject to an applicant's right to a hearing declare the application void.

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%.

Refund after public notice or transmittals have been sent: 50%.

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

Posted notice. Notice shall be posted at the discretion of the Planning Director.

Individual notice. Individual notice to property owners, as defined in § 153.251.010(A), shall be provided at the discretion of the Planning Director, except as required by § 153.233 for zone amendments. ORS 227.186.

The following shall serve as hearings or review body for legislative changes in this order:

At the discretion of the City Council, any legislative change initiated by the City Council may be reviewed by the Planning Commission prior to action being taken.

A development action application may be handled administratively by the Planning Director without public notice or hearing.

The Planning Director has the discretion to determine that for the purposes of the Land Usage Ordinance whether a development action application should be treated as if it were a land use action application.

Development action applications acted upon without notice or hearing shall be approved, approved with conditions or denied by the Planning Director or his designee within 30 days of the application's acceptance by the Planning Director.

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

The decision may be appealed under § 153.258.

The Planning Director or designee may decide upon a land use action application administratively either with prior notice, as prescribed under § 153.254.030, or without prior notice, as prescribed under § 153.254.040, or may refer the application to the Planning Commission or Hearings Officer for a hearing. The Planning Director or designee shall take such action within 30 days of the date the application is deemed complete. (See § 153.251.030 for incomplete applications.) This time limit may be waived at the option of the applicant.

The Planning Director's choice between or among administrative or hearing procedures to apply to a particular application or determination shall not be an appealable decision.

Amendment applications per § 153.232 or other instances where a hearing is required by state law or by other ordinance provisions shall be referred to a hearing before the Planning Commission or Hearings Officer.

Notice of a complete application shall be sent within ten days of submittal of the application to persons entitled to notice under § 153.255.030. Such notice shall include all the information specified under § 153.255.040(A) except for the information specified in § 153.255.040(A)(7) and (10).

Any person may comment in writing on the application within 14 days from the date notice was mailed or a longer period as specified in the notice.

The Planning Director's or designee's decision to approve, deny or send to a hearing shall be made within 30 days after an application is accepted as complete. This time limit may be waived by the written consent of the applicant.

Notice of the Planning Director's or designee's decision and the appeal period shall be sent to all parties and to all members of the Planning Commission. The Planning Commission shall have the authority to call up any decision of the Planning Director or designee within the appeal period in accordance with § 153.258.010.

The applicant and all persons commenting in writing as provided in this section constitute parties to the administrative decision. Any party can appeal the decision in accordance with § 153.258 (Appeals).

Except as otherwise provided, the city shall take final action, including consideration of appeals to the City Council, in land use actions within 120 days after the application is deemed complete. ORS 227.178

The periods set forth in § 153.254.050 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.

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.

The Planning Director or Planning Commission shall not consider any evidence submitted by or on behalf of an applicant that would constitute modification of an application (as that term is defined in § 153.250) unless the applicant submits an application for a modification, pays all required modification fees and agrees in writing to restart the 120-day time clock 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.

The Planning Director or Planning Commission may require that the application be re-noticed and additional hearings be held.

Up until the day a hearing is opened for receipt of oral testimony, the Planning Director 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 Planning Director 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.

At the time an application, that in the judgment of the Planning Director or designee requires a hearing and is deemed complete, a hearing date shall be set.

A staff report shall be completed seven days prior to a hearing. If the report is not completed by such time, the hearing shall be held as scheduled, but any party may at the hearing or in writing prior to the hearing request a continuance of the hearing to a date that is at least seven days after the date the initial staff report is complete.

A copy of the staff report shall be made available to the applicant, and to such other persons who request a copy and shall be filed with the Planning Commission or Hearings Officer based on local procedure.

Oral or written modifications and additions to the staff report shall be allowed prior to or at the hearing.

The following shall serve as the Hearings Body:

The Hearings Body's order shall be as set forth in subsection (A) of this section, except that the Council may call up any application for review without the necessity of an application going before the Planning Commission or Hearings Officer.

Individual mailed notice.

Published notice. In addition to notice by mail, notice of an initial hearing shall be published at least ten days prior to the hearing in a newspaper of general circulation in the city and/or other media readily available to the public.

All mailed notices of a land use action hearing shall:

All mailed and published notices for hearings shall contain a statement that recipients may request a copy of the staff report.

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.

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

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.

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.

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

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

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

Challenges to the Hearings Body's qualifications to hear the matter shall be stated and challenges entertained.

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 City Council or the Land Use Board of Appeals on that issue.

Order of presentation:

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

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 § 153.255.130.

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 § 153.254.050.

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.

If the hearing is continued or the record is held open under § 153.255.130, further evidence or testimony shall be taken only in accordance with the provisions of § 153.255.130.

Otherwise, further testimony or evidence will be allowed only if the record is reopened under § 153.255.140.

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 clock.

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.

A continuance or record extension granted under this section 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 clock is suspended shall include the time period made available to the applicant and any time period given to parties to respond to the applicant's submittal.

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.

Approval, approval with conditions or denial of a land use action shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based upon the criteria standards and facts set forth.

Any portion of an application not addressed in a Hearings Body's decision shall be deemed to have been denied.

A decision on a land use action is not final until the Planning Director or Hearings Body issues a written decision, the decision has been mailed and the appeal period to the next higher Hearings Body within the city has run.

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 for purposes of issuing building permits.

Except as set forth herein, the Planning Commission when acting as the Hearings Body shall have authority to make decisions on all quasi-judicial zone changes and plan amendments. Prior to becoming effective, all quasi-judicial plan amendments and zone changes shall be adopted by the City Council.

In considering all quasi-judicial zone changes and those quasi-judicial plan amendments 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.

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.

Notwithstanding subsection (A) of this section, a final decision bars any reapplication for a nonconforming use verification or for a determination on whether an approval has been initiated.

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.

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 Director or Planning Commission.

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.

An applicant may request that the Planning Commission 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 clock will not run during the period of the reconsideration.

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

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

Upon receipt of a request for reconsideration, the Planning Director shall forward the request for reconsideration to the Planning Commission 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 Planning Commission shall determine whether the request for reconsideration has merit.

The Planning Commission 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 Planning Commission determines that no modification is warranted, a determination shall issue a decision to that effect.

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

Filing a request for reconsideration stays the deadline for any party to file an appeal of the Planning Commission decision. The appeal period for all parties to the proceeding shall commence upon mailing of a modification 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 modification. If the decision is not modified, the appeal will be processed in accordance with the procedures set forth in § 153.258. 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.

The following may file an appeal:

A person to whom notice is mailed is deemed notified even if notice is not received.

To file an appeal, an appellant must file a completed notice of appeal on a form prescribed by the Planning Department and an appeal fee.

Unless a request for reconsideration has been filed, the notice of appeal and appeal fee must be received at the offices of the City of Prineville Planning Department no later than 5:00 p.m. on the twelfth 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 twelfth day following mailing of the decision as modified. Notices of appeals may not be received by facsimile machine.

If the City Council is the Hearings Body and the city declines review, 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.

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.

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.

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 § 153.258.060.

Except as otherwise provided in this section, appellants shall provide a complete transcript of any hearing appealed from, from recorded magnetic tapes provided by the Planning Department.

Appellants shall submit the transcript to the Planning Department no later than ten days after the date notice of appeal was filed or within ten days after the audio was given to the appellant, whichever is later. Unless excused under this section, an appellant's failure to provide a transcript shall cause the Council to decline to consider the appellant's appeal further and shall, upon notice mailed to the parties, cause the lower Hearings Body's decision to become final.

An appellant shall be excused from providing a complete transcript if appellant was prevented from complying by:

Before Planning Commission or Hearings Officer. Review on appeal shall be de novo.

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.

Except as otherwise provided in § 153.258, the appeal shall be heard as provided in § 153.255. The applicant shall proceed first in all de novo appeals.

The order of the Hearings Body shall be as provided in § 153.255.020.

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

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

The Council may on a case-by-case basis, at a public meeting, determine that the decision of the lower Hearings Body of an individual land use action or a class of land use action decisions shall be the final decision of the city.

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.

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

In determining whether to hear an appeal, the City Council may consider only:

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

For the purposes of this section, development action undertaken under a land use approval described in § 153.259.010 has been "initiated" if it is determined that:

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.

Modification.

Alteration of an approved plan.

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

The Planning Department may require that an applicant record a notice of land use permit and conditions of approval agreement in the Crook County Records. Such an agreement shall set forth a description of the property, describe the permit that has been issued and set forth the conditions of approval.

The terms of the approval agreement may be enforced against the applicant and any successor in interest.

Approvals shall be subject to revocation according to standards set forth in the applicable zoning ordinances.

Revocations shall be processed as a declaratory ruling under City of Prineville Land Development Ordinance. Section 153.259.010 notwithstanding, a public hearing shall be held in all revocation proceedings.

Subject to the other provisions of this section, there shall be available for the City's Comprehensive Plans, zoning ordinances and City of Prineville Land Development Ordinance process for:

A declaratory ruling shall be available only in instances involving a fact specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. Declaratory proceedings shall not be used as a substitute for seeking an amendment of general applicability to a legislative enactment.

Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval. In the case of a ruling on a land use action a declaratory ruling shall not be available until six months after a decision in the land use action is final.

The Planning Director may refuse to accept an application for a declaratory ruling if:

Section 153.251.010(B) notwithstanding, the following persons may initiate a declaratory ruling under § 153.260:

A request for a declaratory ruling shall be initiated by filing an application with the Planning Department and, except for applications initiated by the Planning Director, shall be accompanied by such fees as have been set by the Planning Department. Each application for a declaratory ruling shall include the precise question on which a ruling is sought. The application shall set forth whatever facts are relevant and necessary for making the determination and such other information as may be required by the Planning Department.

A declaratory ruling shall be conclusive on the subject of the ruling and bind the parties thereto as to the determination made.

Section 153.256.040 notwithstanding, and except as specifically allowed therein, parties to a declaratory ruling shall not be entitled to reapply for a declaratory ruling on the same question.

The City Manager or designee shall have the powers and the duties to enforce the provisions of this chapter and all amendments thereto.

In addition, the City Manager or designee may initiate action to enforce any provision of this chapter, including any violation of any restriction or condition established under the provisions of this chapter in the granting of any application authorized or required pursuant to the provisions of this chapter.

Failure to comply with any order or decision as above provided will subject the violator to any legal remedy provided under law, including but not limited to the following:

Unlawful construction or use declared a nuisance. The location, erection, construction, maintenance, repair, alteration or use of a building or other structure, or the subdivision, partitioning, other land development or use of land in violation of this chapter shall be deemed a nuisance.

Penalty. Except as otherwise provided for by law or by a court of competent jurisdiction, a person violating a provision of this chapter shall, upon conviction, be punished by fine of not more than $500. A violation of this chapter shall be considered a separate offense for each day the violation continues.

Alternative remedy. In case a building or structure is, or is proposed to be, located, constructed, maintained, repaired, altered or used, or land is, or is proposed to be, used in violation of this chapter, the building or land thereby in violation shall constitute a nuisance, and the city may, as an alternative to other remedies that are legally available for enforcing this chapter, institute injunction, mandamus, abatement or other appropriate proceedings to prevent, enjoin temporarily or permanently, abate or remove the unlawful location, construction, maintenance, repair, alteration or use.

Nuisances. Violations which constitute or include a nuisance violation shall also be subject to the abatement procedures set forth in §§ 93.70 through 93.99.