Chapter 662 Oregon Laws 2001
AN ACT
HB 2980
Relating to impact of new
development on system development charges; amending ORS 223.208, 223.302,
223.304, 223.309, 223.311 and 223.314.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 223.208 is amended to read:
223.208. (1) Subject to subsection (2) of this section, the
rights and duties accorded governmental units and the owners of property for
financing and assessments under ORS 223.205 to 223.775 shall apply to the
following:
(a) A systems development charge designed to finance the purchase or development of a public park or
recreational facility or the construction, extension or enlargement of a
street, community water supply, storm sewer or sewerage or disposal system as
defined in ORS 199.464 imposed by a governmental unit as a condition to
issuance of any occupancy permit or imposed by a governmental unit at such
other time as, by ordinance, it may determine.
(b) That portion of a connection charge imposed by a
governmental unit which is greater than the amount necessary to reimburse the
unit for its costs of inspection and installing connections with system mains.
(2) Notwithstanding ORS 223.230, the financing of systems
development or connection charges under this section may, at the option of the
governing body, be a second lien on real property, which lien shall be inferior
only to the mortgage or other security interest held by the lender of the
owner’s purchase money. Bonds issued under this subsection shall be issued separately
from bonds otherwise issued under ORS 223.205 to 223.775 and shall comply with
all applicable federal regulations.
SECTION 2.
ORS 223.302 is amended to read:
223.302. (1) Governmental units are authorized to establish
system development charges, but the revenues produced therefrom shall be
expended only in accordance with ORS 223.297 to 223.314. If a governmental unit
expends any such revenues in violation of the limitations described in ORS
223.307, the governmental unit shall replace the misspent amount with moneys
derived from other sources. Replacement moneys shall be deposited in a fund
designated for the system development charge revenues not later than one year
following a determination that the funds were misspent.
(2) Governmental units shall adopt administrative review
procedures by which any citizen or other interested person may challenge an
expenditure of system development charge revenues. Such procedures shall
provide that such a challenge must be filed within two years of the expenditure
of the system development charge revenues. The decision of the governmental
unit shall be judicially reviewed
only as provided in ORS 34.010 to 34.100[,
and not otherwise].
(3)(a) A
governmental unit must advise a person who makes a written objection to the
calculation of a system development charge of the right to petition for review
pursuant to ORS 34.010 to 34.100.
(b) If a governmental
unit has adopted an administrative review procedure for objections to the
calculation of a system development charge, the governmental unit must provide
adequate notice regarding the procedure for review to a person who makes a written
objection to the calculation of a system development charge.
SECTION 3.
ORS 223.304 is amended to read:
223.304. (1)(a)
Reimbursement fees shall be established or
modified by ordinance or resolution setting forth a methodology that
considers the cost of the existing facility or facilities, prior contributions
by existing users, gifts or grants from
federal or state government or private persons, the value of unused
capacity available to future system
users, rate-making principles employed to finance publicly owned capital
improvements and other relevant factors identified by the local government
imposing the fee.
(b) The
methodology for establishing or
modifying a reimbursement fee shall:
(A) Promote the objective of
future system users contributing no more than an equitable share to the cost of
existing facilities. [The methodology for
establishing such fees shall]
(B) Be available
for public inspection.
(2)(a)
Improvement fees shall:
(A) Be established or modified by ordinance or resolution
setting forth a methodology that considers the cost of projected capital
improvements needed to increase the capacity of the systems to which the fee is
related.
(B) Be calculated to
obtain the cost of capital improvements for the projected need for available
system capacity for future users.
(b) The
methodology for establishing [such] or modifying improvement fees shall be
available for public inspection.
(3) The ordinance or resolution that establishes or modifies an improvement fee shall
also provide for a credit against such fee for the construction of a qualified
public improvement. A “qualified public improvement” means a capital improvement
that is required as a condition of development approval, identified in the plan
adopted pursuant to ORS 223.309 and either:
(a) Not located on or contiguous to property that is the
subject of development approval; or
(b) Located in whole or in part on or contiguous to
property that is the subject of development approval and required to be built
larger or with greater capacity than is necessary for the particular
development project to which the improvement fee is related.
(4)(a) The credit provided for in subsection (3) of this
section shall be only for the improvement fee charged for the type of
improvement being constructed, and credit for qualified public improvements
under subsection (3)(b) of this section may be granted only for the cost of
that portion of such improvement that exceeds the government units minimum
standard facility size or capacity needed to serve the particular development
project or property. The applicant shall have the burden of demonstrating that
a particular improvement qualifies for credit under subsection (3)(b) of this
section.
(b) When the construction of a qualified public improvement
gives rise to a credit amount greater than the improvement fee that would
otherwise be levied against the project receiving development approval, the
excess credit may be applied against improvement fees that accrue in subsequent
phases of the original development project. This subsection shall not prohibit
a unit of government from providing a greater credit, or from establishing a
system providing for the transferability of credits, or from providing a credit
for a capital improvement not identified in the plan adopted pursuant to ORS
223.309, or from providing a share of the cost of such improvement by other
means, if a unit of government so chooses.
(c) Credits shall be used in the time specified in the
ordinance but not later than 10 years from the date the credit is given.
(5) Any unit of local government that proposes to [adopt] establish or modify a system development charge shall maintain a
list of persons who have made a written request for notification prior to
adoption or amendment of a methodology for any system development charge.
(6) Written
notice shall be mailed to persons on the list at least [45] 90 days prior to the
first hearing to [adopt or amend] establish or modify a system development
charge, and the methodology supporting the [adoption
or amendment] system development
charge shall be available at least [30] 60 days prior to the first hearing [to adopt or amend]. The failure of a
person on the list to receive a notice that was mailed [shall] does not
invalidate the action of the local government. The unit of local government may
periodically delete names from the list, but at least 30 days prior to removing
a name from the list must notify the person whose name is to be deleted that a
new written request for notification is required if the person wishes to remain
on the notification list. [No] Legal
action intended to contest the methodology used for calculating a system
development charge [shall] may not be filed after 60 days
following adoption or modification of the system development charge ordinance
or resolution by the local government. A person shall [contest] request judicial
review of the methodology used for calculating a system development charge
only as provided in ORS 34.010 to 34.100[,
and not otherwise].
(7) A change in the
amount of a reimbursement fee or an improvement fee is not a modification of
the system development charge if the change in amount is based on the periodic
application of an adopted specific cost index or on a modification to any of
the factors related to rate that are incorporated in the established
methodology.
SECTION 4.
ORS 223.309 is amended to read:
223.309. (1) [Any
governmental unit which has adopted] Prior
to the establishment of a system development charge by ordinance or
resolution, a governmental unit shall
prepare a capital improvement plan, public facilities plan, master plan or
comparable plan [which lists] that includes a list of the capital
improvements that may be funded with improvement fee revenues and the estimated
cost and timing for each improvement.
(2) A governmental unit that has prepared a plan and the list described in subsection
(1) of this section may modify such plan and
list at any time.
SECTION 5.
ORS 223.311 is amended to read:
223.311. (1)
System development charge revenues shall be deposited in accounts designated
for such moneys. The governmental unit shall provide an annual accounting, to be completed by January 1 of each
year, for system development charges showing the total amount of system
development charge revenues collected for each system and the projects that
were funded in the previous fiscal year.
(2) The governmental
unit shall include in the annual accounting a list of the amount spent on each
project funded, in whole or in part, with system development charge revenues.
SECTION 6.
ORS 223.314 is amended to read:
223.314. The [adoption] establishment, modification or implementation
of a system development charge, or a plan as provided for in ORS 223.309, or
any modification [thereto] of a plan, is not a land use decision
pursuant to ORS chapters 195 and 197.
Approved by the Governor
June 28, 2001
Filed in the office of
Secretary of State June 28, 2001
Effective date January 1,
2002
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