10.130 Due Process Element 5: Public Hearing.
The contents of this section shall govern the conduct of all quasi-judicial public hearings before an advisory body/approving authority. A copy of this section shall be available for public inspection at each quasi-judicial hearing and in the Planning Department. The conduct of public hearings on legislative matters shall be at the discretion of the presiding officer.
(1) Nature of Hearing. All parties with standing shall have an opportunity to be heard, to present and rebut evidence before an impartial tribunal, to have the proceedings recorded, and to have a decision rendered in accordance with the facts on record and the law.
(2) Authority of Presiding Officer. The presiding officer of the advisory body/approving authority shall have authority to:
(a) Regulate the course and decorum of the meeting.
(b) Dispose of procedural requests and similar matters.
(c) Impose reasonable limitations on the number of witnesses heard and set reasonable time limits for oral presentation, questions, and rebuttal testimony.
(d) Question any person appearing, and allow other members to question any such person.
(e) Waive, at their discretion, the application of any rule herein where the circumstances of the hearing indicate that it would be expedient and proper to do so, provided that such waiver does not act to prejudice or deny any party their substantial rights as provided herein or otherwise by law.
(f) Take such other action as authorized by the approving authority to appropriately conduct the hearing.
(3) Challenge or Reversal of Presiding Officer Ruling. A ruling of the presiding officer may be challenged by any member of that advisory body/approving authority present at the hearing. The challenge must be seconded. A ruling may be reversed by a majority of the members present and voting. A tie vote upholds the presiding officer's decision.
(4) Conduct of Participants. Proceedings shall at all times be orderly and respectful. The presiding officer may refuse to recognize or exclude from the hearing anyone who:
(a) Is disorderly, abusive, or disruptive;
(b) Takes part in or encourages audience demonstrations such as applause, cheering, display of signs, or other conduct disruptive to the hearing;
(c) Testifies without first receiving recognition from the presiding officer and stating his full name and residence; and,
(d) Presents irrelevant, immaterial, or repetitious evidence.
(5) Order of Procedure. The presiding officer shall conduct the hearing in an orderly fashion, within the guidelines set forth herein. The hearing shall proceed in the following manner:
(a) Commencement: At the commencement of a hearing under a Comprehensive Plan or land use regulation, a statement shall be made to those in attendance that lists the applicable substantive criteria; states that testimony and evidence must be directed toward the criteria described in this subsection or other criteria in the plan or land use regulation which the person believes to apply to the decision; and states that failure to raise an issue with sufficient specificity to afford the decision maker and the parties an opportunity to respond to the issue precludes appeal based on that issue.
(b) Abstentions, Conflict of Interest and Challenges. All members shall comply with ORS 244.120 and 244.130 regarding actual or potential conflicts of interest. Any member who is disqualified or wishes to abstain from participation in the hearing on a proposal shall identify the reasons for the record and shall not thereafter participate in the discussion as a member or vote on the proposal. Any challenges to the impartiality shall also be decided at this time.
(c) Planning Director's Report. The presiding officer shall request that the Planning Director or staff member report on the criteria and standards and the basic factual evidence applicable to the case and indicate the action required to be taken.
(d) Applicant's Case. The presiding officer shall allow the applicant or applicant's representative to present evidence in support of the application. The applicant shall be allowed to produce witnesses on their behalf. Other parties in favor of the proposal shall thereafter be allowed to present their evidence. Applicant may then reserve time for rebuttal. The Planning Director may appear as an applicant on a staff proposal.
(e) Opponent's Case. The presiding officer shall allow opponents to present evidence in opposition to the proposal. Opponents shall be allowed to produce witnesses on their behalf.
(f) Questioning of Witnesses. Cross examination shall be permitted as per Section 10.132.
(g) Applicant's Rebuttal if Reserved.
(h) Staff Summary and Recommendations. The Planning Director or staff person may present any additional evidence, comments and recommendations at the close of the hearing.
(i) Final Discussion. Upon conclusion of the evidence, members shall be allowed to openly discuss the proposal and further question any party appearing for or against the proposal as necessary.
(j) Unless there is a continuance, if a participant so requests before the conclusion of the initial evidentiary hearing, the record shall remain open for at least seven days after the hearing. Such an extension shall not be subject to the limitations of ORS 227.178, “120 Day Rule.”
(k) When the advisory body/approving authority re-opens a record to admit new evidence or testimony, any person may raise new issues which relate to the new evidence, testimony or criteria for decision-making which apply to the matter at issue.
(l) The failure of the property owner to receive notice as provided in Section 10.124 shall not invalidate such proceedings if the city can demonstrate by affidavit that such notice was mailed. The notice provisions contained in Section 10.124 shall not restrict the giving of notice by other means, including posting, newspaper publication, radio and television.
(6) Standing. A person has the right to appear as a party to a quasi-judicial proceeding if the person:
(a) received official written notice of the hearing or was entitled to receive such notice, or
(b) has interests which could be adversely affected by the decision.