(A)
The Director will set a hearing date at the time an application is
deemed complete as provided in SDC 5.1.560, if the application requires
a hearing in the judgment of the Director.
(B)
A staff report must be completed 7 days prior to the first hearing.
If the report is not completed by such time, the hearing must be held
as scheduled, but at the hearing or in writing prior to the hearing,
any party may request a continuance of the hearing to a date that
is at least 7 days after the date the initial staff report is complete.
The Hearings Authority has discretion whether to grant a continuance
under these circumstances.
(C)
A copy of the staff report must be mailed to the applicant, made
available at a reasonable cost to such other persons who request a
copy, and filed with the Hearings Authority.
(6443)
Throughout all local land use proceedings the burden of proof
rests on the applicant.
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All relevant evidence must be received according to SDC 5.1.215.
(6443)
The Hearings Authority may set reasonable time limits on oral
testimony.
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(A)
Any interested person may appear and be heard in a Type 3 hearing,
except that in appeals heard on the record, a person must have participated
in a previous proceeding on the subject application.
(B)
Any person appearing on the record at a hearing (including appeals)
or presenting written evidence in conjunction with an administrative
action or hearing has standing and is a party. A person whose participation
consists only of signing a petition will not be considered a party.
(6443)
(A)
An electronic recording of the hearing must be made.
(B)
All exhibits presented must be marked to show the identity of the
person offering the exhibit.
(C)
Exhibits must be numbered in the order presented and must be dated.
(D)
When exhibits are introduced, the exhibit number or letter must be
read into the record.
(E)
When a digital storage device is submitted into the record, a transcript
of the contents must also be submitted.
(6443)
Prior to making a decision, the Hearings Authority or any member
thereof must not communicate directly or indirectly with any party
or their 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 Authority member must:
(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.
(C)
Communication between City staff and members of the Planning Commission
or City Council is not considered to be an ex parte contact.
(6443)
(A)
If the Hearings Authority or any member thereof uses personal knowledge
acquired outside of the hearing process in rendering a decision, the
Hearings Authority or member thereof must state the substance of that
knowledge on the record and allow all parties the opportunity to rebut
such statement on the record.
(B)
For the purposes of this section, a site visit by the Hearings Authority
or member thereof is deemed to fall within this rule. After the site
visit has concluded, the Hearing Authority or member thereof must
disclose its observations and conclusions gained from the site visit
on the record and allow all parties the opportunity to rebut such
observations or conclusions.
(6443)
Prior to or at the commencement of a hearing, any party may
challenge the qualification of the Hearings Authority, or a member
thereof, for bias or conflict of interest. The challenge must be made
on the record and be documented with specific reasons supported by
facts. Should qualifications be challenged, the Hearings Authority
or the member must disqualify themselves, withdraw, or make a statement
on the record of their capacity to hear the matter.
(6443)
A hearing must be conducted as follows:
(A)
The Hearings Authority must explain the purpose of the hearing and
announce the order of proceedings, including reasonable time limits
on presentations by parties.
(B)
A statement by the Hearings Authority must declare any ex parte contacts,
bias, or conflicts of interest.
(C)
Any facts received, noticed, or recognized outside of the hearing
must be stated for the record.
(D)
Challenges to the Hearing Authority’s or its member’s
qualifications to hear the matter must be stated and challenges entertained.
(E)
At the commencement of a hearing in a quasi-judicial Type 3 decision,
the Hearings Authority or their designee must make a statement to
those in attendance that:
(1)
Lists the applicable substantive criteria;
(2)
States that testimony, arguments, and evidence must be directed toward
that criteria or other criteria in the Comprehensive Plan or land
use regulations which the person believes to apply to the decision;
(3)
States that failure to raise an issue accompanied by statements or
evidence sufficient to afford the Hearings Authority and the parties
an opportunity to respond to the issue precludes appeal to the Land
Use Board of Appeals based on that issue.
(F)
At the commencement of the initial public hearing, the Hearings Authority
or its designee must make a statement to the applicant that the applicant’s
failure to raise constitutional or other issues relating to proposed
conditions of approval with sufficient specificity to allow the Hearings
Authority to respond to the issue precludes an action for damages
in circuit court. An applicant is not required to raise constitutional
or other issues relating to proposed conditions of approval unless
the conditions of approval are stated with sufficient specificity
to enable the applicant to respond to the conditions prior to the
close of the final local hearing.
(G)
An issue which may be the basis for an appeal to the Oregon Land
Use Board of Appeals must be raised not later than the close of the
record at or following the final hearing on the proposal before the
local government. Such issues must be raised and accompanied by statements
or evidence sufficient to afford the Hearings Authority and the parties
an adequate opportunity to respond to each issue.
(H)
Order of Presentation.
(1)
Explanation of procedural requirements.
(2)
Open the hearing.
(3)
Statement of ex parte contacts, bias, or conflicts of interest.
(4)
Challenge for bias or conflicts of interest.
(5)
Staff report.
(6)
Applicant testimony.
(7)
Testimony by those in favor of the application.
(8)
Testimony by those neutral.
(9)
Testimony by those opposed to the application.
(10)
Applicant rebuttal.
(11)
Staff comment.
(12)
Questions from or to the chair may be entertained at any time at
the Hearings Authority’s discretion prior to close of hearing.
(13)
Close the hearing.
(14)
Close of the record.
(15)
Deliberation.
(16)
Decision.
(I)
In appeal proceedings, the applicant is the party who initiated the
application which is under appeal. Those person(s) opposed to the
application must testify under the “Testimony by those opposed
to the application” portion of the appeal proceeding. Those
persons in favor of the application must testify under the “Testimony
by those in favor of the application” portion of the appeal
proceeding.
(J)
The record must be available for public review at the hearing.
(6443)
(A)
After an application is deemed accepted a hearing date must be set.
A hearing date may be changed by the City staff, or the Hearings Authority
up until the time notice of the hearing is mailed. After the notice
of hearing is mailed, changes in the hearing date must be processed
as a continuance in accordance with SDC 5.1.570, unless a new notice
of hearing is provided at the City’s expense.
(B)
If an applicant requests that a hearing date be changed before notice
of hearing is mailed, such request can be granted only if the applicant
agrees that the extended time period for the hearing will not count
against the 120-day time limit set forth in ORS 227.178.
(6443)
(A)
Except as set forth herein, the record must be closed to further
testimony or submission of further argument or evidence at the end
of the presentations before the Hearings Authority.
(B)
If the hearing is continued or the record is held open under SDC
5.1.570, further evidence or testimony must be taken only according
to the provisions of that subsection.
(C)
Otherwise, further testimony or evidence will be allowed only if
the record is reopened under SDC 5.1.570, Reopening the Record.
(D)
An applicant must be allowed, unless waived, to submit final written
arguments in support of its application after the written record has
closed to other parties, within such time limits as the Hearings Authority
sets. The Hearings Authority must allow applicant at least 7 days
to submit their argument, which time is not counted against the 120-day
time limit.
(6443)
(A)
Grounds.
(1)
Prior to or at the initial hearing, an applicant must receive a continuance
upon any request if accompanied by a corresponding extension of the
120-day time limit. If a continuance request is made after the published
or mailed notice has been provided by the City, but at least 7 days
prior to the hearing, the hearing place must be posted with notification
of cancellation and a revised notice with the new hearing date, place
and time must be mailed to all persons who received the original notification.
The applicant is responsible for any costs for providing notice of
the continuance. If a continuance request is made less than 7 days
prior to the hearing, the Hearings Official must take evidence at
the scheduled hearing date from any party wishing to testify at that
time after notifying those present of the continuance.
(2)
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: upon the party’s request made prior to
the close of the hearing for time to present additional evidence or
testimony.
(3)
Any party is entitled to a continuance of the initial evidentiary
hearing where additional documents or evidence containing new facts
or analysis are submitted by any party less than 7 days before the
hearing, or upon a showing that denying a continuance would prejudice
the party’s substantial procedural rights.
(B)
Except for continuance requests made under subsections (A)(1)-(3) above, the choice between granting a continuance or leaving the record open is at the discretion of the Hearings Authority. After a choice has been made between leaving the record open or granting a continuance, the hearing is governed thereafter by the provisions that relate to the path chosen.
(C)
Hearing Continuances.
(1)
If the Hearings Authority grants a continuance, the hearing must
be continued to a date, time, and place certain at least 7 days from
the date of the initial hearing.
(2)
An opportunity must be provided at the continued hearing for persons
to rebut new evidence and testimony received at the continued hearing.
(D)
Leaving Record Open. If the Hearings Authority leaves the record
open for additional written evidence or testimony after the conclusion
of the hearing, the Hearings Authority must allow for response to
written evidence or testimony submitted during the period the record
is held open.
(E)
A continuance or record extension granted under this subsection is
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 during which the 120-day time limit is suspended includes
the time period made available to the applicant and any time period
given to parties to respond to the applicant’s submittal.
(6443)
(A)
The Hearings Authority may reopen the record at its discretion, either
upon request or on its own initiative. The Hearings Authority must
not reopen the record at the request of an applicant unless the applicant
has agreed in writing to an extension or a waiver 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 is to be at the discretion of the Hearings
Authority.
(2)
The Hearings Authority must 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 must 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.
(6443)
