Chapter 955 Oregon Laws 2001

AN ACT

HB 3925

Relating to vested rights to uses of real property; creating new provisions; amending ORS 197.015; and declaring an emergency.

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

SECTION 1. (1) An owner of real property who has made substantial good faith expenditures toward completing a particular use that was permitted at the time the owner made the expenditures may file a declaratory judgment action under ORS chapter 28 to seek a judicial determination as to whether the owner has a vested right to the use. The circuit court for the county in which the real property is located has exclusive jurisdiction of an action under this section.

(2) An action may be commenced under this section only after final action is taken on an application for a permit under the provisions of ORS 215.427 or 227.178. The decision of the governing body of the county or city on the application is not binding on the court.

(3) A vested right to a use may be determined to have been lost by reason of the passage of time if there is a substantial delay in completing implementation of the use and it is established by substantial evidence that:

(a) The owner has abandoned implementation of the use; or

(b) The owner has recovered the owner's investment in implementing the use, and considerations of health, safety or welfare have intervened during the period of delay.

(4) Nothing in this section is intended to limit or otherwise affect:

(a) The rights of the governing body of a county under ORS 215.130 or of an owner of real property under ORS 215.130; or

(b) Any rights associated with an application under ORS 215.427 (3) or 227.178 (3).

SECTION 2. ORS 197.015 is amended to read:

197.015. As used in ORS chapters 195, 196 and 197, unless the context requires otherwise:

(1) “Acknowledgment” means a commission order that certifies that a comprehensive plan and land use regulations, land use regulation or plan or regulation amendment complies with the goals or certifies that Metro land use planning goals and objectives, Metro regional framework plan, amendments to Metro planning goals and objectives or amendments to the Metro regional framework plan comply with the statewide planning goals.

(2) “Board” means the Land Use Board of Appeals.

(3) “Commission” means the Land Conservation and Development Commission.

(4) “Committee” means the Joint Legislative Committee on Land Use.

(5) “Comprehensive plan” means a generalized, coordinated land use map and policy statement of the governing body of a local government that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems, transportation systems, educational facilities, recreational facilities, and natural resources and air and water quality management programs. “Comprehensive” means all-inclusive, both in terms of the geographic area covered and functional and natural activities and systems occurring in the area covered by the plan. “General nature” means a summary of policies and proposals in broad categories and does not necessarily indicate specific locations of any area, activity or use. A plan is “coordinated” when the needs of all levels of governments, semipublic and private agencies and the citizens of Oregon have been considered and accommodated as much as possible. “Land” includes water, both surface and subsurface, and the air.

(6) “Department” means the Department of Land Conservation and Development.

(7) “Director” means the Director of the Department of Land Conservation and Development.

(8) “Goals” means the mandatory statewide planning standards adopted by the commission pursuant to ORS chapters 195, 196 and 197.

(9) “Guidelines” means suggested approaches designed to aid cities and counties in preparation, adoption and implementation of comprehensive plans in compliance with goals and to aid state agencies and special districts in the preparation, adoption and implementation of plans, programs and regulations in compliance with goals. Guidelines shall be advisory and shall not limit state agencies, cities, counties and special districts to a single approach.

(10) “Land use decision”:

(a) Includes:

(A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:

(i) The goals;

(ii) A comprehensive plan provision;

(iii) A land use regulation; or

(iv) A new land use regulation;

(B) A final decision or determination of a state agency other than the commission with respect to which the agency is required to apply the goals; or

(b) Does not include a decision of a local government:

(A) Which is made under land use standards which do not require interpretation or the exercise of policy or legal judgment;

(B) Which approves or denies a building permit issued under clear and objective land use standards;

(D) 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

(E) Which is an expedited land division as described in ORS 197.360;

(d) Does not include authorization of an outdoor mass gathering as defined in ORS 433.735, or other gathering of fewer than 3,000 persons that is not anticipated to continue for more than 120 hours in any three-month period; and

(e) Does not include:

(A) A writ of mandamus issued by a circuit court in accordance with ORS 215.429 or 227.179; [or]

(B) Any local decision or action taken on an application subject to ORS 215.427 or 227.178 after a petition for a writ of mandamus has been filed under ORS 215.429 or 227.179; or

(C) Any decision in a declaratory judgment action under section 1 of this 2001 Act.

(11) “Land use regulation” means any local government zoning ordinance, land division ordinance adopted under ORS 92.044 or 92.046 or similar general ordinance establishing standards for implementing a comprehensive plan.

(12) “Limited land use decision” is a final decision or determination made by a local government pertaining to a site within an urban growth boundary which concerns:

(a) The approval or denial of a subdivision or partition, as described in ORS chapter 92.

(b) The approval or denial of an application based on discretionary standards designed to regulate the physical characteristics of a use permitted outright, including but not limited to site review and design review.

(13) “Local government” means any city, county or metropolitan service district formed under ORS chapter 268 or an association of local governments performing land use planning functions under ORS 195.025.

(14) “Metro” means a metropolitan service district organized under ORS chapter 268.

(15) “Metro planning goals and objectives” means the land use goals and objectives that a metropolitan service district may adopt under ORS 268.380 (1)(a). The goals and objectives do not constitute a comprehensive plan.

(16) “Metro regional framework plan” means the regional framework plan required by the 1992 Metro Charter or its separate components. Neither the regional framework plan nor its individual components constitute a comprehensive plan.

(17) “New land use regulation” means a land use regulation other than an amendment to an acknowledged land use regulation adopted by a local government that already has a comprehensive plan and land regulations acknowledged under ORS 197.251.

(18) “Person” means any individual, partnership, corporation, association, governmental subdivision or agency or public or private organization of any kind. The Land Conservation and Development Commission or its designee is considered a person for purposes of appeal under ORS chapters 195 and 197.

(19) “Special district” means any unit of local government, other than a city, county, metropolitan service district formed under ORS chapter 268 or an association of local governments performing land use planning functions under ORS 195.025 authorized and regulated by statute and includes but is not limited to: Water control districts, domestic water associations and water cooperatives, irrigation districts, port districts, regional air quality control authorities, fire districts, school districts, hospital districts, mass transit districts and sanitary districts.

(20) “Voluntary association of local governments” means a regional planning agency in this state officially designated by the Governor pursuant to the federal Office of Management and Budget Circular A-95 as a regional clearinghouse.

(21) “Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration that are sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

SECTION 3. ORS 197.015, as amended by section 2 of this 2001 Act, is amended to read:

197.015. As used in ORS chapters 195, 196 and 197, unless the context requires otherwise:

(2) “Board” means the Land Use Board of Appeals.

(3) “Commission” means the Land Conservation and Development Commission.

(4) “Committee” means the Joint Legislative Committee on Land Use.

(6) “Department” means the Department of Land Conservation and Development.

(7) “Director” means the Director of the Department of Land Conservation and Development.

(8) “Goals” means the mandatory statewide planning standards adopted by the commission pursuant to ORS chapters 195, 196 and 197.

(10) “Land use decision”:

(a) Includes:

(A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:

(i) The goals;

(ii) A comprehensive plan provision;

(iii) A land use regulation; or

(iv) A new land use regulation;

(B) A final decision or determination of a state agency other than the commission with respect to which the agency is required to apply the goals; or

(b) Does not include a decision of a local government:

(A) Which is made under land use standards which do not require interpretation or the exercise of policy or legal judgment;

(B) Which approves or denies a building permit issued under clear and objective land use standards;

(E) Which is an expedited land division as described in ORS 197.360;

(e) Does not include:

(A) A writ of mandamus issued by a circuit court in accordance with ORS 215.429 or 227.179; or

(B) Any local decision or action taken on an application subject to ORS 215.427 or 227.178 after a petition for a writ of mandamus has been filed under ORS 215.429 or 227.179[; or]

[(C) Any decision in a declaratory judgment action under section 1 of this 2001 Act].

(12) “Limited land use decision” is a final decision or determination made by a local government pertaining to a site within an urban growth boundary which concerns:

(a) The approval or denial of a subdivision or partition, as described in ORS chapter 92.

(14) “Metro” means a metropolitan service district organized under ORS chapter 268.

SECTION 4. The amendments to ORS 197.015 by section 3 of this 2001 Act become operative on December 31, 2003.

SECTION 5. (1) Section 1 of this 2001 Act and the amendments to ORS 197.015 by section 2 of this 2001 Act apply only to claims of a vested right described in section 1 of this 2001 Act for which final action is taken on an application for a permit under the provisions of ORS 215.427 or 227.178 on or after the effective date of this 2001 Act.

(2) The repeal of section 1 of this 2001 Act by section 6 of this 2001 Act, and the amendments to ORS 197.015 by section 3 of this 2001 Act, do not affect any action filed under section 1 of this 2001 Act before December 31, 2003. Any action filed under section 1 of this 2001 Act before December 31, 2003, shall continue to be governed by section 1 of this 2001 Act, as though section 1 of this 2001 Act had not been repealed.

SECTION 6. Section 1 of this 2001 Act is repealed on December 31, 2003.

SECTION 7. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor August 10, 2001

Filed in the office of Secretary of State August 13, 2001

Effective date August 10, 2001

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