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ADM-9.02 - Land Use Hearings Procedures

PROCEDURES FOR LAND USE HEARINGS
Administrative Rules Adopted by Auditor's Office Pursuant to Rulemaking Authority
ARB-ADM-9.02
 
I.  Generally
 
1.1.  Applicability of Rules; Modification.
a.  These procedures explain how the Hearings Officer will perform the duties assigned to that office by the city Council in PC 33.710.080  All land use proceedings, except appeals of Expedited Land Division decisions, will be held in conformance with Sections I through V of these rules.  Appeals of Expedited Land Divisions will be heard as set out in Section VI.
 
b.  The Hearings Officer may modify any of these rules when called for by a particular situation if consistent with providing fairness to all parties and provided such modifications are consistent with applicable State and City law.
1.2.  Definitions
a.  “Code” or “PCC” means the Code of the City of Portland, Oregon.
 
b.  “Party” means any person who submits oral or written testimony or evidence before the record of a land use proceeding is closed.
1.3.  Rules of Construction
a.  For the purpose of these rules, the feminine includes the masculine and the masculine includes the feminine.
 
b.  As used in these rules, “or” includes the disjunctive and conjunctive.
1.4.  General Duties and Powers of the Hearings Officer.
a.  The Hearings Officer acts on behalf of the Council in performing quasi-judicial reviews of land use applications.  All appeals of Type II land use decisions, and all land use applications subject to the Type III procedure, unless specifically exempted by the Code, are assigned to the Hearings Officer.
b.  The Hearings Officer may request, received and examine available information, conduct public hearings, prepare a record, and enter findings and conclusions on all assigned matters.  The Hearings Officer will conduct fair and impartial hearings, take all necessary action to avoid delay in the disposition of a proceeding consistent with providing fairness to all parties, and maintain order during the proceeding.
1.5.  Site Viewing.  The Hearings Officer may view a site before or after a hearing.
a.  If the site is viewed before the hearing, the Hearings Officer will announce at the hearing that she viewed the site, indicate whether she noted anything that is of particular relevance to the review, and give parties an opportunity to respond to any facts gained or conclusions reached from the viewing of the site.  Such opportunity to respond may include holding the record open or continuing the hearing.
b.  If the site is viewed after the hearing, the Hearings Officer will give all parties an opportunity to respond to any new evidence gained by the viewing of the site by reopening the record or scheduling an additional hearing, whichever the Hearings Officer deems appropriate. 
 
1.6.  Ex Parte Communication.   In making a decision or recommendation, the Hearings Officer will rely solely on oral testimony and evidence in the record, including facts officially noticed by the Hearings Officer.
a.  The Hearings Officer will not intentionally communicate, outside the public hearing, with any person concerning the merits of, or any facts at issue in, a decision.
b.  The Hearings Office may communicate with City staff or other participants regarding procedures and for clarification of evidence in record.
c.  If the Hearings Officer should be subjected to an ex parte communication, the Hearings Officer will place the substance of the communication on the record, make a public announcement of the content of the communication, and provide all parties an opportunity to respond to the substance of the communication.  Such opportunity may include holding the record open, continuing the hearing, or reopening the record, as appropriate.
1.7.  Conflict of Interest and Bias.  The Hearings Officer will disqualify herself if she, or any member of her family, has an actual conflict of interest as defined in ORS 244.020.
 
1.8.  Burden of Proof.   The applicant has the burden of proof and must show with substantial evidence that each and every element of the applicable approval criteria will be satisfied.
 
1.9.  Withdrawal of Application.   At any time before the Hearings Officer issues the decision or recommendation, an applicant or appellant may withdraw all or a portion of an application or appeal. A withdrawal may be submitted orally at the hearing or in writing at any other time.  The Hearings Officer’s report will indicate which portions of the application or appeal have been withdrawn.  The Hearings Officer’s Decision will include a denial of the withdrawn portion of an application or appeal.
 
1.10.  Recording the Hearing.   All hearings will be electronically recorded.  Copies of the tapes will be made available to the public upon request and payment of costs.  Costs are $5.00 for each tape, except there will be no costs for recognized neighborhood associations.
 
1.11.  Content of Record.   The record of the hearing will include, but need not be limited to, the following:
 
Application
Notice of Hearing
Documentation of person sent notice
BDS staff report and recommendation/administrative decision
All listed exhibits
Hearings Officer decision or recommendation, including findings of fact and conclusions of law, and all other written actions of the Hearings Officer
Electronic recording of proceedings or minutes
 
1.12.  Disposition of Record.   After mailing of the decision or recommendation, the complete record will be forwarded to the Bureau of Development Services for storage.  Tape recordings of all proceedings before the Hearings Officer will be maintained in the Hearings Office for six years.
 
II.  Pre-Hearing
 
2.1.  Scheduling of Hearings.   Upon notice from the Bureau of Development Services that an application is ready to be placed on the hearing calendar, the Hearings Officer will schedule it for a hearing date and time.  Hearings will be scheduled within the time limits in PCC.33.730.020 and .030.  Hearings are held on Mondays and Wednesdays in Room 3000 of the 1900 SW Fourth Ave Building, unless otherwise indicated in the notice.
 
2.2.  Notice of Hearings.
a.  The Bureau of Development Services will provide notice of the hearing as required by PCC 33.730.020 and .030.  Failure of a property owner or resident to receive notice is not grounds for automatically continuing or holding the records open if notice was sent as required by Code.
b.  In the discretion of the Hearings Officer, failure of the Bureau of Development Services to send notice as required by the Code, failure to receive notice, or the failure of the notice to reasonably describe the actual proposal, may constitute grounds for continuing the hearing or holding the record open.  In so determining, the Hearings Officer will consider the particular circumstances of the case, the possible prejudice to the persons failing to receive proper notice or to any other persons, and the reason for the failure to comply.
2.3.  Staff Report
a.  The Bureau of Development Services makes available a copy of its staff report and recommendation in a Type III proceeding at least 10 days before the date of the hearing, and the administrative decision and appeal in a Type II proceeding at least 7 days before the date of the hearing.
b.  In the discretion of the Hearings Officer, failure of the Bureau of Development Services to make available the report or administrative decision and appeal within the time required by the Code may constitute grounds for continuing the hearing or holding the record open.  In so determining, the Hearings Officer will consider the particular circumstances of the case, the possible prejudice to the persons failing to receive a copy of the material or to any other party, and the reason for the failure to comply.
III.  Hearing
 
3.1.  Nature of Hearing.   The format for the hearing will be informal, but organized so that the testimony and evidence can be presented quickly and efficiently.
 
3.2.  Order of Testimony.  The hearing will proceed generally, but not necessarily exactly, as follows:
  • Introductory statement by Hearings Officer, per PCC 33,730,100.B
  • Powerpoint presentation and summary of the staff report by Bureau of Development Services
  • Applicant’s presentation
  • Testimony of supporters of application
  • Testimony of opponents of application
  • Final statement and rebuttal by Applicant
The Hearings Officer may question any of the participants at any time throughout the hearing.  Decisions on procedural issues will be made as they arise.  Requests for continuing the hearing or holding the record open will be addressed as set out in paragraphs 3.7, 3.8 and 3.9 of these Procedures.
 
3.3.  Admissibility of Evidence.   Technical rules of evidence do not apply to land use hearings.  Any relevant, material and reliable evidence will be admitted if it possesses any probative value commonly accepted by reasonable and prudent persons in the conduct of their serious affairs.  However, all evidence must be submitted in a form that is usable by the Hearings Officer, as follows:
a.  Audio tapes must be standard cassettes
 
b.  Video tapes must be standard VHS format
 
c.  Computer disks must operate with the computer hardware and software in the Hearings Office.
3.4.  Cross Examination.  There is no right of cross examination by one party of another.  The Hearings Officer may ask questions of any participant at any time throughout the hearing.  Any participant may ask the Hearings Officer to question any other party to encourage full disclosure of the facts.
 
3.5.  Limitations on Testimony.  The Hearings Officer may impose reasonable limitations on the nature and length of the testimony in order to expedite the proceeding or avoid the continuation of a hearing.  Notice will be given as early as practical when time limitations are to be imposed.  If a party is unable to present his arguments or testimony within the time allotted, the record may be held open after the close of the hearing for submission of written testimony.
 
3.6.  Changes to Application or Applicable Criteria.   A substantial change to an application made after the staff report has been issued will be considered by the Hearings Officer only if the applicant submits a signed waiver of the 120 days requited by ORS 227.178(1).  If an applicant changes a proposal so that the hearings notice does not accurately describe the proposal or applicable criteria, new notice will also be necessary.
 
3.7.  Holding the Record Open and Continuing the Hearing.   At the request of a party before the close of the hearing, or upon the motion of the Hearings Officer, the Hearings Officer will hold the record open or continue the hearing to a later date for the submission of additional evidence or testimony.  The time and date the record will be closed will be specified at the hearing.  If the time, date and place of the continued hearing is specified before the initial hearing is closed, no further written notice will be mailed.
 
3.8.  Responding to New Evidence.   The record may be held open for an additional period of time to allow parties to respond to any new evidence that is submitted while the record is held open or the hearing is continued under paragraph 3.7.
 
3.9.  Applicant’s Final Argument.   If the record is held open or the hearing continued under paragraph 3.7 or 3.8, the applicant will be given an opportunity to submit final legal argument after the hearing and record have been closed for all other parties.
 
3.10.  Time Period for Continuances and Holding Record Open.   The requesting party has a right to seven days for any of the time periods allowed under paragraphs 3.7, 3.8 and 3.9, but the Hearings Officer will consider less or more time upon request.  All decisions involving holding the record open or continuing the hearing will take into account the 120 day requirement of ORS 227.178(1).
 
IV.  The Decision or Recommendation
 
4.1.  Contents of Decision or Recommendation.   The decision or recommendation of the Hearings Officer will contain the elements required by PCC 33.730.090.
 
4.2.  Notice of Decision or Recommendation.   The decision or recommendation will be mailed no later that 17 days following the day the record is closed.  The day after the record closed is the first of the 17 days.
 
4.3.  Final Action.   The final action of the Hearings Officer is the recommendation or decision.
 
V.  Post-Decision or Recommendation
 
5.1.  Withdrawal of Decision or Recommendation.   At the request of a party or upon the motion of the Hearings Officer before the appeal period has run, the Hearings Officer may withdraw a decision or recommendation that has been mailed in order to correct a factual error.  The factual error must be based on the existing record and must be material to the decision or recommendation.
 
If it is necessary to reopen the record or the hearing in order to correct the factual error, all parties will be notified.  The notice will indicate the reason for reopening, and the time and date for the closing of the record or the time, date and place of the additional hearing.
 
Withdrawals will be granted sparingly, and are not to be considered an available administrative remedy.  A request for withdrawal does not toll the running of the time for appeals to the City Council or the Land Use Board of Appeals.  An amended decision or recommendation is the final action of the Hearings Officer, and the appeal period runs from the date the final action is mailed.
 
5.2.  Clarification of Decision or Recommendation.   A party may request clarification of a decision from the Hearings Officer.  A clarification will not materially alter the outcome of the decision or provide legal interpretation of the decision Requests for clarification should be in writing.  A request for clarification does not toll the running of the time for appeals to Council or the Land Use Board of Appeals.  The Hearings Officer may issue clarifications after termination of jurisdiction, as clarifications only provide explanation of a decision and do not materially alter the decision or have any legal effect.  Notice of any clarifications will be sent to all parties.
 
5.3.  Appeal of Decision or Recommendation.   Rules governing the appeal of Type III decisions to the City Council, and the process for Council consideration of recommendations, are set out in PCC Chapter 33.730.  Rules governing appeals to the Land Use Board of Appeals are set out in ORS 197.830
 
VI.  Expedited Land Divisions
 
6.1.  Review Body.   Appeals of expedited land division decisions rendered by the Bureau of Development Services will be heard by the Hearings Officer.
 
6.2.  Standing to Appeal.   A decision on an expedited land division may be appealed by the applicant or any person or organization that filed written comments on the application prior to the expiration of the 14-day comment period before the decision was rendered.  A person or organization that provided written comments to the local government but did not file an appeal may participate in the appeal only with respect to the issues raised in the written comments submitted by that person or organization.
 
6.2.  Grounds for Appeal.   The sole grounds for appeal are:
  • Violation of substantive provisions of applicable land use regulations.
  • Unconstitutionality of the decision.
  • Failure to qualify as an expedited land division.
  • Procedural errors which substantially prejudiced a party’s substantial rights.
6.3.  Notice of Appeal.  Within seven days after the appeal is filed, a notice explaining how a person may participate in the appeal will be sent to the following:
  • The applicant
  • The local government
  • The appellant, if other than the applicant.
  • Any person or organization entitled to notice of the application and who also provided written comments before the expiration of the 14 day comment period.
  • All providers of public facilities and services entitled to notice of the application.
6.4.  General Procedures.  The Hearings Officer will use procedures that are consistent with the parties’ interest in a fair opportunity to present information and argument.  The review body making the initial decision will be given an opportunity to explain its decision.
 
6.5.  Scope of Review.
a.  In conducting an appeal, the Hearings Officer may consider information that was not considered by the initial review body.  The Hearings Officer is not required to consider information that was not considered by the initial review body.  The notice of the appeal will indicate what information the Hearings Officer will consider.
 
b.  If the Hearings Officer determines the application does not qualify for review as an expedited land division, the application will be remanded for review following the appropriate procedures.
 
c.  The Hearings Officer will apply applicable substantive requirements from the applicable land use regulations The Hearings Officer will seek to identify means by which the application can satisfy applicable substantive requirements, but the Hearings Officer may not reduce the proposed density.
6.6.  Final Decision.  Within 42 days after the appeal is filed, the Hearings Officer will issue a final decision approving or denying the application or approving the application with conditions.
 
6.7.   Award of Costs.   If an appellant materially improves his position, the Hearings Officer will order that the $300 deposit for costs be refunded.  If an appellant does not materially improve his position, the deposit for costs will be forfeited and the Hearings Officer may assess any costs of the appeal incurred by the city in excess of the $300 against the appellant, up to a maximum $500.
 
6.8.  Appeal of Hearings Officer’s Decision.   The decision of the Hearings Officer can be appealed to the Court of Appeals, as provided by ORS 197.375(8).
 
For questions regarding the hearing schedule or procedures, call the Hearings Office at 503-823-7719.
 
HISTORY
 
Filed for inclusion in PPD September 22, 2004.