Chapter 672 Oregon Laws 2001

AN ACT

HB 2370

Relating to statutory series references to land use statutes; creating new provisions; and amending ORS 197.050, 197.540, 197.626, 197.656, 215.233, 215.273, 215.304, 215.306, 215.311, 215.402, 222.230, 222.240, 268.380 and 466.385.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 197.629, 197.631, 197.637 and 197.638 are added to and made a part of ORS 197.628 to 197.650.

SECTION 2. ORS 197.628 to 197.650 are added to and made a part of ORS 197.610 to 197.638.

SECTION 3. ORS 197.736 and 197.763 are added to and made a part of ORS chapter 197.

SECTION 4. ORS 197.828 and 197.829 are added to and made a part of ORS 197.805 to 197.855.

SECTION 5. ORS 197.050 is amended to read:

197.050. Except as provided in ORS 196.150 and 196.155, if an interstate land conservation and development planning agency is created by an interstate agreement or compact entered into by this state, the Land Conservation and Development Commission shall perform the functions of this state with respect to the agreement or compact. If the functions of the interstate planning agency duplicate any of the functions of the commission under ORS 195.020 to 195.040, [197.005 to 197.467, 197.610 to 197.638] ORS chapter 197 and ORS 469.350, the commission may:

(1) Negotiate with the interstate agency in defining the areas of responsibility of the commission and the interstate planning agency; and

(2) Cooperate with the interstate planning agency in the performance of its functions.

SECTION 6. ORS 222.230 is amended to read:

222.230. (1) Before circulating a petition to create a city from adjoining or nonadjoining cities or unincorporated territory, the petitioners shall file with the county clerk of the county in which the proposed city lies or, should it lie in more than one county, to the county clerk of the county in which the largest part of its territory lies, a petition for consolidation in a form prescribed by rule of the Secretary of State. If the economic feasibility statement required by ORS 222.225 is submitted with the petition, the county clerk shall immediately date and time stamp the prospective petition and shall authorize the circulation of the petition. The county clerk shall retain the prospective petition and economic feasibility statement and shall immediately send a copy of the prospective petition to each city included in the proposed consolidation.

(2) The petition shall be addressed to the governing bodies of the cities to be included in the proposed city. The petition shall state the name of the city, which may be, but need not be, the name of any of the cities to be included in the city. If it is proposed to include one or more unincorporated areas, the petition shall describe the boundaries of each of them, in addition to designating the incorporated cities to be included in the proposed city. The petition may be filed in the office of the clerk or recorder of any of the cities to be included in the proposed city. However, a petition shall not be accepted for filing unless all the signatures on the petition were obtained within the one-year period immediately following the date on which the petition was filed under subsection (1) of this section.

(3) The petition shall state the proposed permanent rate limit for operating taxes for the city that is to be created. The proposed permanent rate limit shall be the rate that would produce the same tax revenue as the existing city or cities would have cumulatively produced within the city or cities’ territorial boundaries were the consolidation not to take effect, and not taking into account any applicable statutory rate limit on operating taxes.

(4) When a petition to create a city pursuant to ORS 222.210 to 222.310 contains the required number of signatures and has been so filed, the governing bodies of the cities to be included in the proposed city shall meet in joint convention at the usual place of meeting of the governing body of that one of the cities having the largest population as shown by the last federal census, as soon after the filing of the petition as is convenient, but not more than 20 days after the filing of the petition. At that meeting the governing bodies shall examine the petition and determine:

(a) Whether it is in proper form and contains the required number of qualified signers; and

(b) Whether the incorporation of the consolidated city proposed in the petition complies with goals adopted under ORS [195.020 to 195.040 and 197.005 to 197.467] chapters 195, 196 and 197.

SECTION 7. ORS 222.240 is amended to read:

222.240. If the governing bodies find that the petition is in proper form, contains the required signatures and proposes an incorporation that complies with goals adopted under ORS [195.020 to 195.040 and 197.005 to 197.467] chapters 195, 196 and 197, the governing body of each of the cities to be included in the proposed city shall approve the petition and appoint two residents of each of the cities as the members of a charter commission to prepare a charter for the proposed city to be submitted to the electors for approval or rejection at the same election at which is submitted the question of the creation of the proposed city. The charter commission may employ at the expense of the cities such legal and other assistance as it considers advisable to assist it in the preparation of the charter or the performance of its duties, and the expense shall be equally borne by the cities. If the petitions provide that one or more unincorporated areas shall be included in the proposed city, the governing body of the county within which the largest portion of all such areas lies shall appoint to the charter commission two electors residing in those areas. After the commission is selected, it shall prepare a charter for the proposed city within 60 days after the commission has been appointed.

SECTION 8. ORS 268.380 is amended to read:

268.380. (1) A district may:

(a) Adopt land-use planning goals and objectives for the district consistent with goals adopted under ORS [195.020 to 195.040 and 197.005 to 197.467] chapters 195, 196 and 197;

(b) Review the comprehensive plans in effect on January 1, 1979, or subsequently adopted by the cities and counties within the district and recommend that cities and counties, as the district considers necessary, make changes in any plan to ensure that the plan conforms to the district’s metropolitan area goals and objectives and the statewide goals;

(d) Coordinate its activities and the related activities of the cities and counties within the district with the land-use planning development activities of the federal government, other local governmental bodies situated within this state or within any other state and any agency of this state or another state.

(2) When a district is required by a district charter to adopt a regional framework plan, the regional framework plan shall include and be consistent with land use planning goals and objectives adopted by the district.

SECTION 9. ORS 197.540 is amended to read:

197.540. (1) In the manner provided in ORS 197.830 to 197.845, the Land Use Board of Appeals shall review upon petition by a county, city or special district governing body or state agency or a person or group of persons whose interests are substantially affected, any moratorium on construction or land development or a corrective program alleged to have been adopted in violation of the provisions of ORS 197.505 to [197.530] 197.540.

(2) If the board determines that a moratorium or corrective program was not adopted in compliance with the provisions of ORS 197.505 to [197.530] 197.540, the board shall issue an order invalidating the moratorium.

(3) All review proceedings conducted by the Land Use Board of Appeals under subsection (1) of this section shall be based on the administrative record, if any, that is the subject of the review proceeding. The board shall not substitute its judgment for a finding solely of fact for which there is substantial evidence in the whole record.

(4) Notwithstanding any provision of ORS chapters 195, 196 and 197 to the contrary, the sole standard of review of a moratorium on construction or land development or a corrective program is under the provisions of this section, and such a moratorium shall not be reviewed for compliance with the statewide planning goals adopted under ORS chapters 195, 196 and 197.

(5) The review of a moratorium on construction or land development under subsection (1) of this section shall be the sole authority for review of such a moratorium, and there shall be no authority for review in the circuit courts of this state.

SECTION 10. ORS 197.626 is amended to read:

197.626. A city with a population of 2,500 or more within its urban growth boundary that amends the urban growth boundary to include more than 50 acres or that designates urban reserve areas under ORS 195.145 shall submit the amendment or designation to the Land Conservation and Development Commission in the manner provided for periodic review under ORS 197.628 to [197.644] 197.650.

SECTION 11. ORS 197.656 is amended to read:

197.656. (1) Upon invitation by the local governments in a region, the Land Conservation and Development Commission and other state agencies may participate with the local governments in a collaborative regional problem-solving process.

(2) Following the procedures set forth in this subsection, the commission may acknowledge amendments to comprehensive plans and land use regulations, or new land use regulations, that do not fully comply with the rules of the commission that implement the statewide planning goals, without taking an exception, upon a determination that:

(a) The amendments or new provisions are based upon agreements reached by all local participants, the commission and other participating state agencies, in the collaborative regional problem-solving process;

(b) The regional problem-solving process has included agreement among the participants on:

(A) Regional goals for resolution of each regional problem that is the subject of the process;

(B) Optional techniques to achieve the goals for each regional problem that is the subject of the process;

(C) Measurable indicators of performance toward achievement of the goals for each regional problem that is the subject of the process;

(D) A system of incentives and disincentives to encourage successful implementation of the techniques chosen by the participants to achieve the goals;

(E) A system for monitoring progress toward achievement of the goals; and

(F) A process for correction of the techniques if monitoring indicates that the techniques are not achieving the goals; and

(c) The agreement reached by regional problem-solving process participants and the implementing plan amendments and land use regulations conform, on the whole, with the purposes of the statewide planning goals.

(3) A local government that amends an acknowledged comprehensive plan or land use regulation or adopts a new land use regulation in order to implement an agreement reached in a regional problem-solving process shall submit the amendment or new regulation to the commission in the manner set forth in ORS 197.628 to [197.644] 197.650 for periodic review or set forth in ORS 197.251 for acknowledgment.

(4) The commission shall have exclusive jurisdiction for review of amendments or new regulations described in subsection (3) of this section. A participant or stakeholder in the collaborative regional problem-solving process shall not raise an issue before the commission on review that was not raised at the local level.

(5) If the commission denies an amendment or new regulation submitted pursuant to subsection (3) of this section, the commission shall issue a written statement describing the reasons for the denial and suggesting alternative methods for accomplishing the goals on a timely basis.

(6) If, in order to resolve regional land use problems, the participants in a collaborative regional problem-solving process decide to devote agricultural land or forestland, as defined in the statewide planning goals, to uses not authorized by those goals, the participants shall choose land that is not part of the region’s commercial agricultural or forestland base, or take an exception to those goals pursuant to ORS 197.732. To identify land that is not part of the region’s commercial agricultural or forestland base, the participants shall consider the recommendation of a committee of persons appointed by the affected county, with expertise in appropriate fields, including but not limited to farmers, ranchers, foresters and soils scientists and representatives of the State Department of Agriculture, the State Department of Forestry and the Department of Land Conservation and Development.

(7) The Governor shall require all appropriate state agencies to participate in the collaborative regional problem-solving process.

SECTION 12. ORS 466.385 is amended to read:

466.385. (1) By the first periodic review after development of model language under subsection (2) of this section, the governing body of a city or county shall amend its comprehensive plan and land use regulations as provided in ORS 197.610 [and 197.628] to 197.650 to establish and implement policies regarding potentially hazardous environmental conditions on sites listed under ORS 466.365. The land use regulations shall provide that:

(a) The city or county shall not approve any proposed use of a disposal site for which the city or county has received notice under ORS 466.370 until the Department of Environmental Quality has been notified and provided the city or county with comments on the proposed use; and

(b) Within 120 days of receipt of an environmental hazard notice from the Department of Environmental Quality, the city or county shall amend its zoning maps to identify the disposal site.

(2) The Department of Environmental Quality and the Department of Land Conservation and Development shall:

(a) Develop model language for comprehensive plans and land use regulations for use by cities and counties in complying with this section; and

(b) Provide technical assistance to cities and counties in complying with ORS 466.360 to 466.385.

(3) The Department of Environmental Quality may appeal to the Land Use Board of Appeals any final land use decision or limited land use decision made by a city or county regarding any proposed use of a disposal site that has been identified under its comprehensive plan and land use regulations pursuant to this section.

SECTION 13. ORS 215.452, 215.455 and 215.800 to 215.808 are added to and made a part of ORS chapter 215.

SECTION 14. ORS 215.418 is added to and made a part of ORS 215.402 to 215.438.

SECTION 15. ORS 215.402 is amended to read:

215.402. As used in ORS 215.402 to 215.438 and 215.700 to 215.780 unless the context requires otherwise:

(1) “Contested case” means a proceeding in which the legal rights, duties or privileges of specific parties under general rules or policies provided under ORS 215.010 to [215.213, 215.215 to 215.263, 215.283 to 215.293] 215.311, 215.317, 215.327, 215.402 to 215.438 and 215.700 to 215.780, or any ordinance, rule or regulation adopted pursuant thereto, are required to be determined only after a hearing at which specific parties are entitled to appear and be heard.

(2) “Hearing” means a quasi-judicial hearing, authorized or required by the ordinances and regulations of a county adopted pursuant to ORS 215.010 to [215.213, 215.215 to 215.263, 215.283 to 215.293] 215.311, 215.317, 215.327, 215.402 to 215.438 and 215.700 to 215.780:

(a) To determine in accordance with such ordinances and regulations if a permit shall be granted or denied; or

(b) To determine a contested case.

(3) “Hearings officer” means a planning and zoning hearings officer appointed or designated by the governing body of a county under ORS 215.406.

(4) “Permit” means discretionary approval of a proposed development of land under ORS 215.010 to [215.293] 215.311, 215.317, 215.327 and 215.402 to 215.438 and 215.700 to 215.780 or county legislation or regulation adopted pursuant thereto. “Permit” does not include:

(a) A limited land use decision as defined in ORS 197.015;

(b) A decision which determines the appropriate zoning classification for a particular use by applying criteria or performance standards defining the uses permitted within the zone, and the determination applies only to land within an urban growth boundary;

(c) A decision which determines final engineering design, construction, operation, maintenance, repair or preservation of a transportation facility which is otherwise authorized by and consistent with the comprehensive plan and land use regulations; or

(d) An action under ORS 197.360 (1).

SECTION 16. ORS 215.265, 215.275, 215.293, 215.294, 215.304, 215.306 and 215.311 are added to and made a part of ORS 215.203 to 215.311.

SECTION 17. ORS 215.233 is amended to read:

215.233. Nothing in ORS 215.010, 215.030, 215.050, 215.060 and 215.110, 215.130, 215.170, 215.185, 215.190, 215.203, [to] 215.213, 215.223 and this section shall impair the validity of ordinances enacted prior to September 2, 1963. All development patterns made and adopted prior to that time shall be deemed to meet the requirements of ORS 215.010, 215.030, 215.050, 215.060 and 215.110, 215.130, 215.170, 215.185, 215.190, 215.203, [to] 215.213, 215.223 and this section concerning comprehensive plans.

SECTION 18. ORS 215.273 is amended to read:

215.273. Nothing in ORS 215.130, 215.203, 215.213, 215.243, 215.253, 215.263, [to] 215.273, 215.283, 215.284, 308A.050 to 308A.128 and 316.844 is intended to affect the authority of the Energy Facility Siting Council in determining suitable sites for the issuance of site certificates for thermal power plants, as authorized under ORS 469.300 to 469.563, 469.590 to 469.619 and 469.930.

SECTION 19. ORS 215.304 is amended to read:

215.304. (1) The Land Conservation and Development Commission shall not adopt or implement any rule to identify or designate small-scale farmland or secondary land.

(2) Amendments required to conform rules to the provisions of subsection (1) of this section and ORS [215.705] 215.700 to 215.780 shall be adopted by March 1, 1994.

(3) Any portion of a rule inconsistent with the provisions of ORS 197.247 (1991 Edition), 215.213, 215.214 (1991 Edition), 215.288 (1991 Edition), 215.317, 215.327 and 215.337 (1991 Edition) or [215.705] 215.700 to 215.780 on March 1, 1994:

(a) Shall not be implemented or enforced; and

(b) Has no legal effect.

SECTION 20. ORS 215.306 is amended to read:

215.306. (1) The limitations on uses made of land in exclusive farm use zones described in ORS 215.213, 215.283, 215.284 and [215.705] 215.700 to 215.780 and limitations imposed by or adopted pursuant to ORS 197.040 do not apply to activities described in this section.

(2) The provisions of this section do not affect the eligibility of a zone for special assessment as provided in ORS 308A.050 to 308A.128.

(3)(a) On-site filming and activities accessory to on-site filming may be conducted in any area zoned for exclusive farm use without prior approval of local government but subject to ORS 30.930 to 30.947.

(b) Notwithstanding paragraph (a) of this subsection, on-site filming and activities accessory to on-site filming that exceed 45 days on any site within a one-year period or involve erection of sets that would remain in place for longer than 45 days may be conducted only upon approval of the governing body or its designee in any area zoned for exclusive farm use subject to ORS 215.296. In addition to other activities described in subsection (4) of this section, these activities may include office administrative functions such as payroll and scheduling, and the use of campers, truck trailers or similar temporary facilities. Temporary facilities may be used as temporary housing for security personnel.

(4) For purposes of this section, “on-site filming and activities accessory to on-site filming”:

(a) Includes:

(A) Filming and site preparation, construction of sets, staging, makeup and support services customarily provided for on-site filming.

(B) Production of advertisements, documentaries, feature film, television services and other film productions that rely on the rural qualities of an exclusive farm use zone in more than an incidental way.

(b) Does not include:

(A) Facilities for marketing, editing and other such activities that are allowed only as a home occupation; or

(B) Construction of new structures that requires a building permit.

(5) A decision of local government issuing any permits necessary for activities under subsection (3)(a) of this section is not a land use decision.

SECTION 21. ORS 215.311 is amended to read:

215.311. (1) The limitations on uses of land in exclusive farm use zones described in ORS 215.283, 215.284 and [215.705] 215.700 to 215.780 and limitations imposed by or adopted pursuant to ORS 197.040 do not apply to log truck parking under this section.

(2) The provisions of this section do not affect the eligibility of a zone for special assessment as provided in ORS 308A.050 to 308A.128.

(3) Notwithstanding any other provision of law except for health and safety provisions, parking no more than seven log trucks shall be allowed in an exclusive farm use zone unless the local government determines that log truck parking on a lot or parcel will:

(a) Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; or

(b) Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use.

Approved by the Governor June 28, 2001

Filed in the office of Secretary of State June 29, 2001

Effective date January 1, 2002

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