71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1374
House Bill 2246
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Representative Lane
Shetterly for Oregon Law Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes exclusive means of judicial review for state and
local government action. Exempts statutes providing for
substantially different procedures until January 1, 2004. Makes
other exemptions.
Imposes requirements relating to ripeness and exhaustion of
remedies. Prescribes standing requirements.
Prescribes procedures for filing and serving notice of appeal.
Specifies content of notice of appeal.
Imposes time limitations on seeking judicial review of
government action. Specifies proper court for filing of notice of
appeal. Allows transfer in certain circumstances of notice filed
in wrong court.
Prescribes standards to be applied by courts in reviewing
government action. Specifies manner of conducting proceeding to
review government action. Lists types of relief that may be
granted in proceeding.
A BILL FOR AN ACT
Relating to judicial review; creating new provisions; amending
ORS 19.260, 25.396, 25.405, 25.768, 28.020, 30.510, 30.520,
30.530, 30.560, 34.110, 34.130, 58.355, 65.021, 65.657, 65.744,
92.234, 100.255, 131.735, 137.673, 144.335, 144.450, 161.385,
176.805, 179.640, 181.350, 181.664, 183.090, 183.310, 183.315,
183.410, 183.415, 183.480, 183.538, 196.115, 196.686, 196.825,
196.835, 196.850, 196.860, 197.328, 197.335, 197.650, 197.810,
197.825, 197.850, 198.785, 199.461, 199.476, 203.060, 222.896,
223.302, 223.304, 223.401, 223.462, 224.065, 224.100, 236.630,
238.450, 240.563, 250.131, 251.285, 262.025, 267.257, 274.412,
279.019, 279.045, 281.085, 293.316, 294.100, 305.740, 307.533,
307.680, 308.466, 308.471, 338.075, 338.105, 339.430, 341.065,
341.076, 341.185, 342.905, 343.175, 351.088, 390.659, 390.663,
416.145, 418.645, 418.997, 420.890, 421.630, 421.647, 421.653,
431.756, 432.121, 432.130, 432.140, 432.142, 432.180, 432.235,
432.307, 433.750, 435.070, 441.740, 442.760, 443.835, 446.255,
446.405, 448.255, 454.635, 455.770, 455.775, 458.060, 464.500,
465.215, 465.225, 466.140, 466.185, 466.370, 468.067, 468.110,
468.513, 468B.032, 469.320, 469.370, 469.403, 469.405, 469.421,
469.441, 469.490, 469.504, 471.331, 479.195, 480.355, 480.385,
480.660, 496.116, 496.176, 508.762, 508.765, 508.796, 508.825,
508.867, 508.910, 508.941, 517.983, 517.992, 522.475, 526.992,
527.662, 527.700, 536.075, 537.170, 537.445, 537.622, 540.560,
543A.130, 543A.410, 553.815, 564.110, 583.086, 583.096,
583.106, 583.116, 583.146, 604.056, 609.165, 621.073, 647.075,
652.332, 653.370, 656.298, 657.275, 657.282, 657.485, 657.487,
657.663, 657.683, 657.684, 657A.360, 658.820, 663.220, 671.613,
674.410, 691.555, 696.527, 701.100, 703.230, 707.705, 707.710,
709.535, 711.135, 711.160, 711.170, 711.180, 717.235, 722.459,
737.209, 756.450, 756.528, 756.565, 756.580, 757.110, 757.247,
757.495, 758.020, 758.035, 758.425, 758.445, 759.115, 759.390,
759.525, 759.545, 778.100, 809.440, 823.031 and 823.033 and
section 4, chapter 695, Oregon Laws 1999, and section 3,
chapter 972, Oregon Laws 1999; and repealing ORS 34.010,
34.020, 34.030, 34.040, 34.050, 34.060, 34.070, 34.080, 34.090,
34.100, 34.102, 53.130, 157.070, 183.400, 183.482, 183.484,
183.485, 183.486, 183.490, 183.497, 183.500, 540.740, 540.750,
663.205, 663.215, 663.225, 756.585, 756.590, 756.594, 756.598,
756.600 and 756.610.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Purpose and scope. Sections 1 to 24 of this
2001 Act may be cited as the Judicial Review Procedures Act. The
purpose of the Judicial Review Procedures Act is to provide the
people of the State of Oregon, the government units of the State
of Oregon and the courts of the State of Oregon with consistent
and comprehensive procedures governing judicial review of
government actions. The Judicial Review Procedures Act addresses
judicial procedures only. The Judicial Review Procedures Act does
not alter the range of government actions subject to legal
challenge or require any new procedures by government units. The
Judicial Review Procedures Act does not impose or imply any
requirement that government actions be based on facts, formal
findings or factual records not required by other law. + }
SECTION 2. { + Definitions. As used in sections 1 to 24 of
this 2001 Act:
(1) 'Administrative act' means:
(a) A final judicial or quasi-judicial decision of a government
unit;
(b) The failure of a government unit to perform an action when
that action is required by law; and
(c) Any other government action that is not an enactment.
(2) 'Enactment' means an official written statement of a
government unit that is of general effect, including but not
limited to a statute, rule, charter, ordinance or resolution. '
Enactment' does not include any official written statement of a
government unit that:
(a) Is not legally binding on persons other than the person or
group of persons named in the statement; or
(b) Does not directly apply to facts or circumstances other
than those specific facts or circumstances addressed in the
statement.
(3) 'Final government action' means a government action that
constitutes or reflects the actual performance or nonperformance
of an act by the government unit. 'Final government action' does
not include any decision or statement by a government unit that:
(a) Is issued before a government unit takes final action; or
(b) Does not preclude further consideration of the matter
addressed in the preliminary decision or statement.
(4) 'Government action' means an enactment or an administrative
act.
(5) 'Government unit' means any entity or individual with
authority to act for the state, a county, a city, a district or a
political subdivision thereof, including agencies, departments,
divisions, bureaus, boards, commissions, councils,
intergovernmental entities, municipal corporations and public
corporations.
(6) 'Judicial review proceeding' means a proceeding commenced
by the filing of a notice of appeal, in the circuit court or the
Court of Appeals, in the manner provided by section 4 of this
2001 Act.
(7) 'Law' means a constitution or an enactment. 'Law ' includes
the United States Constitution and all federal statutes and
regulations.
(8) 'Person' means an individual, partnership, corporation,
association, public or private organization or government
unit. + }
SECTION 3. { + Judicial review of government actions;
exclusivity; exceptions. (1) Except as otherwise provided in this
section, sections 1 to 24 of this 2001 Act establish the
exclusive means of judicial review of all government actions.
(2) Except as otherwise provided in sections 1 to 24 of this
2001 Act, judicial review proceedings are governed by the Oregon
Rules of Civil Procedure and the Oregon Rules of Appellate
Procedure.
(3) A federal statute or regulation that provides for, or
requires, a procedure or standard of review that differs
materially from a procedure or standard of review provided under
sections 1 to 24 of this 2001 Act shall govern judicial review of
a government action if:
(a) The federal statute or regulation by its terms applies to
the government action; or
(b) The eligibility of a government unit to receive federal
funds is dependent upon the availability of judicial review under
the procedures or standard of review provided by the federal
statute or regulation.
(4) If a statute or constitution provides for mandatory direct
review in the Supreme Court of a constitutional provision,
statute or other government action, the provisions of the law
establishing the jurisdiction of the court and the Oregon Rules
of Appellate Procedure govern the rules and procedures for such
proceedings.
(5) Sections 1 to 24 of this 2001 Act do not apply to judicial
review of the following government actions:
(a) Any government action taken in the course of a judicial
proceeding to the extent the action would be reviewable in or on
appeal from that proceeding.
(b) Any government action to the extent that the action gives
rise to a claim against the government unit based on contract, or
to the extent that the action gives rise to a claim against the
government unit by a person who has entered into a contract with
the government unit based on the manner in which the government
unit administers the contract.
(c) Any government action to the extent that the action gives
rise to a tort claim under ORS 30.260 to 30.300 or to the extent
that the action gives rise to a claim under 42 U.S.C. 1983.
(d) Any government action to the extent the action is subject
to review by the Workers' Compensation Board.
(e) Any government action to the extent the action is subject
to review by the Land Use Board of Appeals.
(f) Any government action to the extent the action is subject
to review by the Employment Relations Board, except that rules
and orders of the board shall be reviewed as provided by sections
1 to 24 of this 2001 Act.
(g) Any government action to the extent the action is subject
to review by the Employment Appeals Board, except as provided in
ORS 657.282, 657.487 and 657.684.
(h) Any government action to the extent the action is subject
to binding arbitration under ORS 243.650 to 243.782.
(i) Any government action to the extent the action is within
the sole and exclusive jurisdiction of the Oregon Tax Court.
(j) Any government action to the extent the action is subject
to judicial review under the provisions of ORS 33.720.
(k) Any government action to the extent the action is an order
of the State Board of Parole and Post-Prison Supervision that is
subject to review under ORS 144.335.
(L) Any government action to the extent the action is subject
to review under ORS 250.085, 250.195, 250.296, 251.235, 255.155
or 258.055.
(m) Any government action to the extent the action is subject
to review under ORS 30.210 to 30.250.
(n) Any government action to the extent the action is
reviewable by a writ of habeas corpus under ORS 34.310 to 34.730.
(o) Any government action to the extent the action is subject
to review under ORS chapter 279, other than an action subject to
review under ORS 279.019, or to the extent the action relates to
awarding or executing a contract for professional, technical or
expert services.
(p) Any government action to the extent the action is subject
to review under ORS 192.410 to 192.505.
(q) Any government action relating to suspension of driving
privileges to the extent the action is subject to review under
ORS 813.410.
(r) Any government action under the General Condemnation
Procedure Act to the extent the action is subject to review under
ORS chapter 35.
(s) Any government action relating to attorney discipline to
the extent the action is subject to review under ORS 9.536.
(t) Any government action relating to forfeiture to the extent
the action is subject to review under the provisions of ORS
chapter 475A.
(u) Any government action relating to firearms to the extent
the action is subject to review under the provisions of ORS
166.274.
(v) Any government action to the extent the action relates to
an individual personnel matter, including hiring, discharge,
discipline and promotion, unless another law provides for review
by a court.
(w) Any government action to the extent the action relates to
detention or custody of a person who is charged with or convicted
of a crime, or to the extent the action relates to the detention
or custody of a juvenile pursuant to ORS chapter 419C, including
but not limited to a decision made in connection with work
release or with the operation of correctional facilities,
restitution centers, home detention or similar corrections
programs.
(x) Any government action to the extent the action relates to
the conduct of litigation, including but not limited to a
decision to reject a claim, to settle a claim or to assert
affirmative defenses or counterclaims.
(y) Any government action to the extent the action relates to a
decision by a government unit not to adopt an enactment, unless
adoption of the enactment is required by law.
(z) Any government action to the extent the action gives rise
to a claim under ORS 659.010 to 659.110.
(aa) Any government action to the extent that the action is an
order of the Department of Corrections that is addressed to or
affects a person who has been committed pursuant to ORS 137.124
to the custody of the Department of Corrections, who is
incarcerated in a Department of Corrections facility, or who
seeks to visit an inmate incarcerated in a Department of
Corrections facility.
(bb) Any administrative act relating to the procedure for,
preparation of, or consideration of appropriations in the
government unit's budget, budget documents or decisions of the
budget officer, budget committee, tax supervision commission or
governing body in connection with the performance of duties under
ORS chapter 294.
(cc) Any government action to the extent the action is subject
to judicial review under ORS chapter 539.
(6) Sections 1 to 24 of this 2001 Act do not affect a person's
ability to challenge the validity of a government action in a
judicial proceeding that is initiated by a government unit, or in
a judicial proceeding between private parties, if the validity of
the government action is material to resolution of a claim
brought by the government unit or by a private party.
(7) Sections 1 to 24 of this 2001 Act do not affect a person's
ability to pursue a tort claim against a government unit based on
an allegedly invalid government action of the government unit as
long as the validity of the government action is determined in a
judicial review proceeding under sections 1 to 24 of this 2001
Act before any determination is made on the tort claim. + }
SECTION 4. { + Notice of appeal. (1) Any person who is
qualified to file a notice of appeal under section 7 of this 2001
Act may file a notice of appeal in the manner provided by this
section.
(2) Review of a government action under sections 1 to 24 of
this 2001 Act must be commenced by filing a notice of appeal with
the clerk of the appropriate court within the time provided by
section 5 of this 2001 Act. The notice must contain the
following:
(a) The name, mailing address and residence or business address
of the person filing the notice of appeal.
(b) The name of the government unit whose government action is
challenged and the address of the principal business office of
the government unit.
(c) Identification of the challenged government action and the
date the action was taken or should have been taken, together
with a copy of the enactment, or, for an administrative act, a
copy of the government unit's written action or a brief
description of any action not reflected in a writing.
(d) A brief statement reflecting the nature of the interest of
the person filing the notice of appeal.
(e) A brief statement of the nature of the alleged error or
errors.
(f) If the challenged government action is an administrative
act, and the action was taken after a judicial or quasi-judicial
proceeding in which there were parties to the proceeding other
than the person filing the notice of appeal and the government
unit, the names and addresses of other parties to the proceeding
identified by the government unit.
(3) A notice of appeal filed in either the circuit court or the
Court of Appeals must be filed and served in the manner provided
by ORS 19.260 for appeals to the Court of Appeals. A person shall
serve a copy of the notice of appeal upon the government unit and
all parties required to be identified in the notice of appeal
under subsection (2)(f) of this section.
(4) For purposes of subsection (2) of this section:
(a) If the government action is an enactment, the government
unit that is charged with administering or enforcing the
enactment must be named as the government unit whose action is
challenged under subsection (2)(b) of this section.
(b) If the government action is an administrative act, the
government unit that took the action must be named as the
government unit whose action is challenged under subsection
(2)(b) of this section.
(5) If the person challenges the validity of a statute, the
person shall also serve a copy of the notice of appeal on the
Attorney General in the same manner as provided by this section
for service on the government unit whose government action is
challenged.
(6) If a person challenges the validity of an ordinance or
charter provision, the person must request from the city or
county that adopted the ordinance or charter provision the name
and address of any city attorney or county counsel employed by
the city or county. If the city or county provides the name and
address of a city attorney or county counsel, the person filing
the notice of appeal must serve a copy of the notice of appeal on
the city attorney or county counsel in the same manner as
provided by this section for service on the government unit whose
government action is challenged.
(7) Except as provided in this subsection, failure of a person
to comply with the requirements of this section, including
failure to serve a notice of appeal as required by this section,
is not grounds for dismissal of the proceeding unless the failure
substantially prejudices the rights of another party. Failure to
file a notice of appeal within the time required by section 5 of
this 2001 Act is grounds for dismissal of the proceeding, and the
court shall dismiss the judicial review proceeding if the notice
of appeal is not timely filed.
(8) A notice of appeal may be amended at any time before the
filing of a petition for review in circuit court under section 15
of this 2001 Act, or before the filing of the petitioner's brief
if the notice of appeal is filed in the Court of Appeals or the
Supreme Court. + }
SECTION 5. { + Time limitations on filing notice of appeal.
(1) Except as provided in subsection (2) of this section, a
notice of appeal alleging that a government unit failed to follow
prescribed procedures in enacting an enactment must be filed
within one year after the date of enactment.
(2) A notice of appeal alleging that a government unit failed
to follow prescribed procedures in enacting an enactment that
appropriates money must be filed within 90 days after the date of
enactment.
(3) A notice of appeal seeking judicial review of an
administrative act must be filed within the following time
periods:
(a) If the administrative act is expressed in writing and the
government action is taken in compliance with all requirements
applicable to the action for notice and service, within 35 days
after the date on which the administrative act becomes effective.
(b) If the administrative act is not expressed in writing but
is taken at a properly noticed public meeting, within 35 days
after the date of the public meeting.
(c) If the administrative act is not expressed in writing and
is not taken at a properly noticed public meeting, within 35 days
after the date the person knew or should have known of the
administrative act.
(4) If a law establishes a time certain during which a
government unit must act and the government unit fails to act
within the time provided, a notice of appeal must be filed within
35 days after the government unit has been given notice by
certified or registered mail, return receipt requested, that the
person filing the notice of appeal intends to require the
government unit to comply with the law. The failure of the person
to give notice pursuant to this subsection is grounds for
dismissal of the review proceeding. In no event may a person file
a notice of appeal more than two years after the date established
by law for the government unit to act if the person seeks review
of a government unit's failure to act within the time provided by
law.
(5) If a government unit by law or otherwise provides for
rehearing or reconsideration of an administrative act:
(a) A request for rehearing or reconsideration timely filed
tolls the time for filing a notice of appeal under subsection (3)
of this section.
(b) The government unit has a period of 60 days to act on the
request for rehearing or reconsideration. If the government unit
does not act within the 60-day period, the request for rehearing
or reconsideration is deemed denied on the 60th day following the
date the request was filed with the government unit.
(c) A person must file a notice of appeal within 35 days after
the date on which notice is given of the final government action
on the request for rehearing or reconsideration or within 35 days
after the date the request is deemed denied under paragraph (b)
of this subsection.
(6) The time periods provided for in this section do not affect
a defense based on laches if that defense is otherwise available
to a government unit. + }
SECTION 6. { + Preliminary motion to dismiss. (1) A government
unit may file a preliminary motion to dismiss a judicial review
proceeding that has been filed in circuit court. The motion must
be filed within 21 days after a notice of appeal is served on the
government unit under section 4 of this 2001 Act. If a motion is
filed under this section, the government unit filing the motion
need not transmit a record within the time required by section 14
of this 2001 Act, and the person filing the notice of appeal need
not file a petition for review within the time provided by
section 15 of this 2001 Act. If the motion is denied:
(a) The government unit must transmit the record required by
section 14 of this 2001 Act within 28 days after the denial of
the motion or within such further time as the court may allow; or
(b) If there is no record on appeal, the person filing the
notice of appeal must file the petition for review within 28 days
after the denial of the motion or within such further time as the
court may allow.
(2) As soon as possible after a preliminary motion to dismiss
is filed under this section, the court shall schedule a hearing
on the motion. The court shall grant the motion filed under this
section if:
(a) The notice of appeal is subject to dismissal for any of the
grounds specified in ORCP 21; or
(b) The person filing the notice of appeal asserts a claim on
behalf of a public interest, the person has no significant
personal interest in the government action and the court
determines that the person is not able to competently represent
the public interest.
(3) Except as provided in this section, a preliminary motion to
dismiss in circuit court shall be treated as a motion to dismiss
under ORCP 21. When a preliminary motion to dismiss is granted by
the court under this section, the court may allow amendment of
the notice of appeal in the manner provided by ORCP 25. If a
motion is granted under this section and the court does not allow
further amendment or the person filing the notice of appeal
declines to amend the motion, judgment shall be entered in favor
of the government unit. Making a motion under this section does
not affect the ability of a government unit to make a motion to
dismiss under ORCP 21 after a petition for review is filed under
section 15 of this 2001 Act. + }
SECTION 7. { + Qualified petitioners. Any of the following
persons may file a notice of appeal under section 4 of this 2001
Act:
(1) A party to a judicial or quasi-judicial proceeding that led
to the challenged government action, if the party challenges the
validity of the action.
(2) A person who is named, or otherwise identifiable, as the
person to whom the challenged government action is specifically
directed.
(3) The state or a political subdivision of the state if the
challenged government action will affect the ability of the state
or the political subdivision of the state to carry out its
policies, responsibilities or programs.
(4) A person who by reason of the government action has
suffered, or will suffer, an injury to a present or foreseeable
financial interest, voting interest or other legally recognized
interest. The interest of the person must be more than a
speculative or abstract interest in the correct application or
the validity of the government action.
(5) A person entitled by law to seek review.
(6) An association or organization with 25 or more members if
the government action will injure an identifiable interest
represented by the association or organization, and the
association or organization has authorized the filing of the
notice of appeal.
(7) Any person if the notice of appeal is based on an assertion
that:
(a) A person has usurped a public office, intruded in a public
office or unlawfully holds or exercises a public office; or
(b) A public official has performed an act or has allowed an
act to be performed that forfeits the right of the public
official to hold office.
(8) An elected official if the government action relates to the
powers and duties of the office held by the elected official.
(9) An association or organization on behalf of one or more
persons represented by the association or organization upon a
showing that a person represented by the association or
organization is qualified to file a notice of appeal under
subsection (4) of this section and has consented to being
represented by the association or organization. + }
SECTION 8. { + Ripeness. (1) Except as provided in this
section, an administrative act of a government unit, other than
the failure of a government unit to perform an action when that
action is required by law, is subject to judicial review under
sections 1 to 24 of this 2001 Act only if the decision is a final
government action.
(2) A person may challenge an administrative act that is not
final under the provisions of subsection (1) of this section only
if the person can establish that the government unit lacks an
objectively reasonable basis to proceed and that the person or
the public will suffer substantial harm if interlocutory relief
is not granted. If a person establishes that the government unit
lacks an objectively reasonable basis to proceed and that the
person or the public will suffer substantial harm if
interlocutory relief is not granted, judicial review of the
government action shall be conducted pursuant to sections 1 to 24
of this 2001 Act and the court may grant such relief as the court
determines appropriate. + }
SECTION 9. { + Exhaustion of remedies. (1) A person may not
obtain judicial review under sections 1 to 24 of this 2001 Act
before pursuing all remedies available from the government unit,
except that a person need not ask a government unit to:
(a) Reconsider or rehear a decision made by the government
unit, unless a law specifically requires the person to ask for
rehearing or reconsideration as a requirement for judicial
review; or
(b) Amend an enactment, repeal an enactment or grant an
exemption from an enactment, unless a law specifically requires
the person to ask for amendment of, repeal of or exemption from
the enactment.
(2) The court may excuse a person from the exhaustion
requirements of subsection (1) of this section if:
(a) The remedy available from the government unit is
inadequate; or
(b) Pursuit of the remedy available from the government unit
would result in delay that would cause irreparable harm to the
person.
(3) If a notice of appeal of a government action is filed
before a person has pursued all remedies available from the
government unit as required by subsection (1) of this section,
the court in which the notice of appeal is filed shall dismiss
the proceeding. The dismissal shall be without prejudice to any
subsequent judicial review proceeding. + }
SECTION 10. { + Reviewable issues. (1) In reviewing
administrative acts, the court may review an issue only if it was
raised before the government unit whose government action is
being challenged, unless the person seeking to raise the issue
did not have a reasonable opportunity to raise the issue in
proceedings before the government unit. A person may meet the
requirements of this subsection by raising the issue before the
government unit at any time before the government action becomes
final.
(2) For purposes of subsection (1) of this section, lack of
notice of the proceeding does not excuse the failure of a person
filing the notice of appeal to have raised an issue before the
government unit unless the person was entitled to notice by law
and the lack of notice affected substantial rights of the person.
(3) If the court believes that the decision of the court may
require consideration of legal issues that have not been
addressed by the parties on appeal, the court shall give the
parties on appeal an opportunity to address those issues.
(4) A person may not commence a judicial review proceeding to
challenge the validity of an enactment if the person filing the
notice of appeal is also a party to a separate judicial or
quasi-judicial proceeding at the time the notice of appeal is
filed and the validity of the enactment could be challenged upon
judicial review of the decision in the judicial or quasi-judicial
proceeding. + }
SECTION 11. { + Authority of the courts. (1) The Court of
Appeals shall review the following government actions:
(a) An order in a contested case proceeding under ORS 183.310
to 183.550;
(b) A rule, as defined in ORS 183.310; and
(c) A declaratory ruling issued under ORS 183.410.
(2) The circuit court shall review a government action that is
not subject to review by the Court of Appeals under subsection
(1) of this section. The circuit court may review the validity of
a rule, as defined in ORS 183.310, if it is necessary for the
court's review of the challenged government action.
(3) Notwithstanding the provisions of subsection (2) of this
section, and subject to subsection (5) of this section, the Court
of Appeals may review a government action that would otherwise be
reviewed in the circuit court if:
(a) The notice of appeal is filed in the circuit court;
(b) The parties on appeal in the circuit court stipulate to
review by the Court of Appeals;
(c) The circuit court, in its discretion, accepts the
stipulation and transfers the case by written order to the Court
of Appeals; and
(d) The Court of Appeals, in its discretion, accepts the order
of transfer of original jurisdiction from the circuit court.
(4) If the requirements of subsection (3)(a), (b) and (c) of
this section are met, the Court of Appeals has 30 days from
receipt of the circuit court order of transfer to decide whether
to accept the transfer. The Court of Appeals shall issue a
written order allowing or denying the transfer. If the Court of
Appeals does not act on the transfer within 30 days of receipt of
the circuit court order of transfer, the transfer is considered
denied by operation of law.
(5) The circuit court may, in its discretion, transfer original
jurisdiction from the circuit court to the Court of Appeals, and
the Court of Appeals may, in its discretion, accept the transfer
if:
(a) The government action is required by law to be based
exclusively upon a record;
(b) The validity of the challenged government action can be
determined without any fact-finding or without any fact-finding
beyond that provided for in section 18 of this 2001 Act; or
(c) The government unit, in the exercise of its discretion, has
based the government action exclusively on a record, the
development of which included notice and opportunity for
interested or affected persons to appear and be heard and the
preparation of findings of fact and conclusions of law, and the
law does not require further development of a record to afford
judicial review of the action. + }
SECTION 12. { + Transfer. (1) If the court in which a notice
of appeal is filed under section 4 of this 2001 Act does not have
authority to review the government action and the case should
have been filed in another court or tribunal, the court shall
transfer the case to the court or tribunal authorized by law to
hear the case.
(2)(a) The Court of Appeals shall resolve all disputes relating
to which court or tribunal should review a government action. If
a court or tribunal to which a case is transferred disputes that
it is a court or tribunal authorized by law to hear the case, the
court or tribunal shall refer the question to the Court of
Appeals.
(b) The Court of Appeals shall determine the proper court or
tribunal under rules adopted by the Court of Appeals. The rules
shall provide opportunity for the parties on appeal to address
the issue, but shall provide the Court of Appeals with the means
to reach an expeditious and summary determination of the matter.
(c) The Court of Appeals shall direct the transfer of the case
to the appropriate court or tribunal or proceed to decide the
case if the Court of Appeals is the appropriate court.
(d) Except as provided in this subsection, a determination that
a court or tribunal is the appropriate court or tribunal to
decide a case is not subject to interlocutory review.
(3) If the notice of appeal is filed within the time allowed
for filing in the court or tribunal to which the case is
transferred, that court or tribunal shall not dismiss the case as
not being timely filed. If the notice of appeal is not filed
within the time allowed for filing in the court or tribunal to
which the case is transferred, the court or tribunal shall
dismiss the case unless:
(a) The court or tribunal finds that the notice of appeal was
filed in the transferring court or tribunal based on good faith
reliance on a reasonable interpretation of a law;
(b) Under the interpretation of law made by the person filing
the notice of appeal, the notice of appeal was timely filed; and
(c) Any delay caused by the failure to file the case within the
time allowed for filing in the court or tribunal to which the
case is transferred does not substantially prejudice an adverse
interest or public interest.
(4) If the court in which the notice of appeal is filed, or the
Court of Appeals acting under subsection (2) of this section,
determines that there is no court or tribunal authorized by law
to consider the case, the court shall dismiss the proceeding.
(5) Within 10 days after the order of transfer is entered, the
person filing the notice of appeal must pay to the court or
tribunal to which the case is transferred any filing fees charged
by that court or tribunal. The person filing the notice of appeal
is not entitled to a refund of any filing fees paid to the court
transferring the case.
(6) For purposes of this section, 'tribunal' means any
government unit authorized by law to review the decisions of a
government unit. + }
SECTION 13. { + Venue. (1) If a government action is the
action of the executive, judicial or legislative department of
state government, or of a board, division, department, commission
or other agency of the executive, judicial or legislative
department of state government, and the government action is
subject to review by a circuit court under section 11 of this
2001 Act, a notice of appeal must be filed in the Circuit Court
for Marion County or in the circuit court for the county in which
the person filing the notice of appeal resides or has a principal
business office.
(2) If a government action is the action of a government unit
other than the government units described in subsection (1) of
this section and the government action is subject to review by a
circuit court under section 11 of this 2001 Act, a notice of
appeal must be filed in the circuit court for the county where
the government action was taken. + }
SECTION 14. { + Record. (1) Within 28 days after service of
the notice of appeal, or within such further time as the court
may allow, the government unit shall:
(a) Transmit to the court the original record or a certified
copy of the record upon which the government unit based the
government action; or
(b) If there is no record, serve the person who filed the
notice of appeal with written notice that a record will not be
transmitted to the court.
(2) The government unit need not transmit to the court any
large maps or documents that are difficult to duplicate until the
date of trial or other hearing date established by the court.
(3) At the time of transmitting the record to the court under
subsection (1) of this section, the government unit shall serve a
copy of the record, exclusive of large maps and other documents
that are difficult to duplicate, on the person who filed the
notice of appeal. Subject to subsection (6) of this section, the
government unit also shall serve a copy of the record on any
other party requesting a copy.
(4) Upon motion of a party to the proceeding, the court may
allow the record to be corrected, shortened, summarized or
reorganized. A party other than the government unit must attempt
to resolve issues relating to the record with the government unit
before filing a motion under this subsection. The motion must
reflect the steps taken to first resolve the matter with the
government unit. The court shall allow the record to be
corrected, shortened, summarized or reorganized upon stipulation
of all parties to the proceeding.
(5) Except as provided in section 18 of this 2001 Act, the
record for review of an enactment includes only the following
items:
(a) The enactment under review.
(b) Copies of all documents necessary to demonstrate compliance
by the government unit with applicable procedures for
promulgating the enactment if the notice of appeal identifies
failure to comply with procedures as an issue on appeal.
(c) If the legal validity of the enactment depends on the
finding or existence of relevant facts, all information before
the government unit at the time the government unit adopted the
enactment that relates to the finding or existence of those
relevant facts.
(6) The government unit shall provide a copy of the record to
the person who filed the notice of appeal at no cost, unless the
person unreasonably refuses to limit the record, in which case
the court may require the person to pay the cost of copying for
the person's copy of the record. The government unit shall
provide a copy of the record upon the request of any other party
to the proceeding if the party reimburses the government unit for
the cost of copying. + }
SECTION 15. { + Petition for review. (1) A person who files a
notice of appeal in circuit court must file a petition for review
with the circuit court and serve a copy of the petition on all
parties on appeal:
(a) Not later than 21 days after the date on which the record
is received by the court under section 14 (1)(a) of this 2001
Act; or
(b) If there is no record, not later than 21 days after the
notice required by section 14 (1)(b) of this 2001 Act is served
on the person.
(2) Filing and service of the petition for review may be
accomplished by mailing the petition or a copy of the petition by
first class mail on or before the date established by this
subsection. The petition must contain all of the following:
(a) A statement of the facts that establish that the petitioner
is qualified to file a notice of appeal under section 7 of this
2001 Act, that the government action is a final government action
and that the petitioner has exhausted all administrative remedies
as required by section 9 of this 2001 Act.
(b) A description of the alleged errors, including citations to
all substantive or procedural requirements alleged to have been
violated.
(c) A statement as to whether additional evidence needs to be
taken under section 18 of this 2001 Act and, if additional
evidence is required, a statement of the factual issues in
dispute.
(d) A request for relief, specifying the type and extent of
relief requested.
(3) If the notice of appeal is filed in the Court of Appeals or
the Supreme Court, no petition for review shall be filed, and the
information required to be included in a petition for review
under subsection (2) of this section shall be set forth in the
petitioner's brief.
(4) If a notice of appeal is transferred to a circuit court
pursuant to section 12 of this 2001 Act, the petition for review
shall be due within the time provided by the circuit court, but
in no case shall the petition be due more than 28 days from the
date of transfer. + }
SECTION 16. { + Stays. (1) Any person who is qualified to file
a notice of appeal under section 7 of this 2001 Act may seek to
stay the government action. The filing of a notice of appeal does
not automatically stay the government action.
(2) Whether or not a notice of appeal has been filed, a person
must request a stay from the government unit whose government
action is challenged before seeking a stay from the court.
(3) A government unit is authorized to consider, refuse to
consider, grant or deny a request for a stay pending judicial
review even though a notice of appeal has been filed.
(4) Neither a request to the government unit for a stay pending
judicial review nor the granting of a stay by a government unit
pending judicial review tolls the period for filing a notice of
appeal.
(5) A government unit has discretion in acting on a request for
a stay and in deciding what conditions, if any, to impose on the
grant of a stay. The following factors are relevant to the
decision on whether to grant a stay:
(a) Whether, and to what degree, the request for a stay
presents a colorable claim of error in the challenged government
action.
(b) The nature of the harm to the person requesting the stay,
to the other parties and to the public that will result from the
grant or denial of a stay.
(6) If a government unit grants a request for a stay, the
government unit may impose such conditions on the grant of a stay
as the government unit considers appropriate, including a
requirement of an appropriate bond or other undertaking.
(7) A government unit may, in its discretion and at any time,
stay the government unit's own government action subject to such
conditions as the government unit considers appropriate.
(8) If a government unit acts or refuses to act on a request
for a stay, or issues a stay on its own motion, the government
unit must do so in writing.
(9) A court may consider a motion for a stay of government
action if:
(a) The person who seeks the stay first has sought a stay from
the government unit;
(b) The government unit does not grant the stay requested,
imposes unreasonable conditions on the granting of the stay or
does not act on the request within a reasonable time; and
(c) A notice of appeal has been filed that challenges either
the underlying government action or the government action on the
request for a stay, or both.
(10) The court has discretion in acting on a motion for a stay
and in deciding what conditions, if any, to impose on the grant
of a stay, including the requirement of an appropriate bond or
other undertaking. The court shall consider the action of the
government unit on the request for a stay, but shall make its own
findings and draw its own conclusions in making the discretionary
decision on the motion for a stay. The decision shall be guided
by factors set out in subsection (5) of this section.
(11) Notwithstanding subsection (2) of this section, a person
may file a motion for a stay in the court without first seeking a
stay from the government unit if the person can establish that
filing a request for a stay with the government unit would be
futile or the government unit is unable or unwilling to act on
the request. + }
SECTION 17. { + Nature of review. (1) In judicial review
proceedings, a government action is subject to review for the
errors described in this section and the court shall grant the
appropriate relief as provided in sections 1 to 24 of this 2001
Act.
(2)(a) To determine whether a government unit failed to follow
a procedure required by law, the court shall review all
procedural requirements applicable to the government unit when
the government unit took the challenged government action.
(b) If the government action is an enactment and the court
finds that the government unit did not substantially comply with
a procedure required by law, the court shall declare the
enactment invalid, remand the proceedings to the government unit
or provide such other relief as authorized in section 20 of this
2001 Act.
(c) If the government action is an administrative act and the
court finds that an error in procedure or a failure to follow
prescribed procedure results in prejudice to a substantial
procedural or substantive right of a party to the proceeding, the
court shall remand the matter for further government action or
provide such other relief as permitted under sections 1 to 24 of
this 2001 Act.
(3)(a) To determine whether a government action is invalid
under factual criteria set by the law under which the government
unit acts or by another law with which the government unit must
comply, the court shall first determine whether the validity of
the government action legally depends upon the existence of such
facts. If the validity of the government action does not legally
depend upon the existence of such facts, the court shall dismiss
the proceeding.
(b) If an administrative act depends on the existence of facts,
the court shall apply a remedy in accordance with section 20 of
this 2001 Act if the court finds that the required facts or
determinations are not supported by substantial evidence in the
record submitted by the government unit. Substantial evidence
exists when the record, viewed as a whole, would permit a
reasonable person to make that finding or determination.
(c) If an enactment depends on the existence of facts, but no
law requires that the facts be based on or supported by an
evidentiary record, and no law requires a different standard for
judicial review of facts, the court shall apply a remedy in
accordance with section 20 of this 2001 Act if the record
submitted by the government unit fails to show that the findings
or determinations of required facts were supported by information
of the type that a reasonable person would rely on in making a
decision of the nature and importance of the challenged
government action.
(4) To determine whether an administrative act applying a law
unlawfully departs from a government unit's prior established
practice, the court shall first determine whether the law either
implicitly or explicitly requires consistent application. The
court shall then determine whether the prior practice reflects
the government unit's interpretation of the law. If the prior
practice does not reflect the government unit's interpretation of
the law, the court shall dismiss the claim. If the prior practice
reflects the government unit's interpretation of the law, the
court shall determine whether the administrative act is
consistent with the interpretation. If the administrative act is
consistent with the interpretation, the court shall dismiss the
case. If the administrative act is determined to be inconsistent
with the interpretation, and the government unit does not provide
a reason for the inconsistency that explains the departure from
the interpretation, the court shall remand the government action
to the government unit or provide such other relief as is
permitted under sections 1 to 24 of this 2001 Act. Nothing in
this subsection prevents a government unit from changing any
prior established practice by an enactment that is within the
authority of the government unit.
(5) To determine whether a government unit exceeded the limits
of its legal authority, the court shall review all relevant
sources of authority. If the court concludes that the challenged
government action exceeded the legal authority of the government
unit, the court shall set aside the action or remand the action
to the government unit for disposition within the limits of the
government unit's legal authority as determined by the court.
(6)(a) To determine whether a government unit unlawfully failed
to act or unreasonably delayed taking action, the court first
shall determine whether the government unit has a legal duty to
act.
(b) If the government unit has no legal duty to act, the court
shall dismiss the claim.
(c) If the government unit has a legal duty to act, the court
shall review the relevant law, any time limitations that may be
imposed upon the government action and the factual circumstances
that may be relevant to the claim.
(d) If the court concludes that the government unit unlawfully
failed to act or unreasonably delayed taking action, the court
may order that the government unit must act within a specified
time after the date of the order, or it may order any other
relief provided for in section 20 of this 2001 Act.
(7) To determine whether a government unit erroneously
interpreted an enactment, the court shall interpret the
enactment. The court shall accept a government unit's
interpretation of technical terms of which the government unit
has special knowledge and terms in the government unit's own
enactment, unless the court independently determines that the
interpretation is inconsistent with the enactment. The court
shall accept a government unit's interpretation of terms the
government unit is empowered to interpret and apply, if the court
independently determines that the government unit's
interpretation is consistent with the enactment. If the court
concludes that the challenged government action is based upon an
erroneous interpretation of an enactment and a correct
interpretation compels a particular action, the court shall set
aside the challenged action or modify the challenged action in
accordance with the correct interpretation. If the correct
interpretation does not compel a particular action or leaves the
government unit with discretion that the government unit has not
exercised, the court shall remand the challenged government
action for disposition in accordance with the correct
interpretation.
(8) To determine whether a government action violates a state
or federal constitutional provision, the court shall review the
relevant constitutional provision. If the court concludes that
the challenged government action is unconstitutional, or is based
upon an unconstitutional law, the court shall set aside the
action or remand the proceedings to the government unit for
action within constitutional limits.
(9) To determine whether a government action violates any other
law, the court shall determine the requirements of the relevant
laws and the applicability of those laws to the challenged
government action. If the court concludes that the challenged
government action violates any applicable provision of law, the
court shall set aside or modify the government action, or remand
the matter to the government unit. The court may apply another
remedy provided by law, and to the extent possible shall sever
all parts of the government action that are illegal from those
parts of the government action that are legal. This subsection
does not apply to any claim of error subject to review under
subsections (1) to (8) of this section. + }
SECTION 18. { + Conduct of proceeding. (1) Unless otherwise
required by law, a judicial review proceeding shall be conducted
without a jury.
(2) In reviewing a government action, the court first shall
determine which legal issues are in dispute, which facts, if any,
are material to the disputed legal issues and which of the
material facts are disputed. Except as provided in this section
or by some other law, the court shall limit its review of
disputed facts to the record transmitted to the court pursuant to
section 14 of this 2001 Act.
(3) The court may receive and consider evidence other than the
evidence of the record transmitted under section 14 of this 2001
Act if the court determines, upon motion of a party to the
proceeding, that the additional evidence is necessary to resolve
disputed facts that relate to any of the following:
(a) A determination as to whether the government action is
subject to review under sections 1 to 24 of this 2001 Act.
(b) A determination of whether there has been compliance with
the requirements of sections 4, 5, 7, 8, 9 and 10 of this 2001
Act.
(c) A determination under section 11, 12 or 13 of this 2001 Act
of the proper court or tribunal to conduct the proceeding.
(d) A determination under section 16 (9), (10) and (11) of this
2001 Act on whether to issue a stay and whether conditions should
be imposed if a stay is issued.
(e) A review of a claim that a government unit failed to follow
a procedure required by law under section 17 (2) of this 2001
Act.
(f) The appropriate relief to be afforded to the prevailing
party under section 20 of this 2001 Act.
(4) The court may receive and consider evidence other than the
evidence in the record transmitted under section 14 of this 2001
Act if the court determines that, under a law other than the law
applied in the government action or authorizing the government
action, the legal validity of the government action depends upon
disputed facts. If the determination of facts under that other
law is within the authority of a second government unit, the
court may stay the proceeding under sections 1 to 24 of this 2001
Act to the extent necessary to allow the second government unit
to determine the legality of the government action under the
other law.
(5) The court may receive and consider evidence other than the
evidence in the record transmitted under section 14 of this 2001
Act if the court determines, upon motion of a party to the
proceeding, that the evidence is material and there were good and
substantial reasons for the failure to present the evidence in
the proceeding before the government unit.
(6) If the court determines that it is necessary to receive and
consider evidence under subsection (5) of this section, the court
shall authorize the government unit to conduct such supplemental
evidentiary proceedings as the court determines necessary and
appropriate to obtain the additional evidence.
(7) If the government unit elects in its discretion to conduct
a supplemental evidentiary proceeding under this section, the
government unit may affirm, vacate, reverse or modify its
government action based on the new record. The government unit
shall, within a time fixed by the court, file with the court the
new record together with a statement by the government unit
reflecting the action taken by the government unit based on the
new record.
(8) If the government unit files a new record and statement
under subsection (7) of this section, the court shall review the
government action pursuant to section 17 of this 2001 Act. If the
government unit has modified its government action, the court
shall review the modified government action.
(9) If the government unit declines to conduct a supplemental
evidentiary proceeding under this section, or does not conduct
that proceeding in the manner required by the court, the court
shall proceed to take the evidence, resolve all disputed facts
and review the government action pursuant to section 17 of this
2001 Act.
(10) The court shall retain jurisdiction of the proceeding if
the government unit elects to conduct proceedings authorized by
the court under subsection (6) of this section. The court shall
take no final action on the merits of the case during the time
that is allowed by the court to the government unit to conduct
proceedings or to reconsider its government action.
(11) If an administrative act was not based exclusively on a
record, and the court determines that additional evidence beyond
that submitted to the court as the record under section 14 of
this 2001 Act is necessary to determine the validity of the
government action, the court shall authorize the government unit
upon motion of any party to the proceeding to supplement the
record with additional information that was before the government
unit at the time of its action.
(12) The court shall consider evidence in addition to the
record transmitted to the court under section 14 of this 2001 Act
if a motion is made for leave to present additional evidence
before the date set for hearing, and the moving party establishes
that the additional evidence is material and that there were good
and sufficient reasons for the failure to present the additional
evidence to the government unit before the government unit took
the challenged government action. If the court allows a motion to
present additional evidence under this subsection, the government
unit may also present additional evidence in response to the
evidence produced by the moving party. The additional evidence
shall be taken by the government unit unless the government unit
requests that the court receive the evidence. The court shall
allow the government unit to reconsider the challenged government
action after the additional evidence is received. If the
government unit declines to reconsider the challenged government
action, or if the moving party remains dissatisfied with the
action after reconsideration, proceedings under this section
shall continue and the additional evidence shall be included in
the record reviewed by the court.
(13) If additional evidence is introduced in circuit court
proceedings under the provisions of this section, admissibility
of the evidence is governed by the Oregon Evidence Code. If
additional evidence is introduced in proceedings before the
government unit under this section, admissibility of the evidence
is governed by the standards for admissibility of evidence in
those proceedings. + }
SECTION 19. { + Reconsideration. (1) Upon notice to the court
and all parties on appeal, the government unit may withdraw the
challenged government action for reconsideration at any time
before the court's decision. After withdrawal and within such
time as the court may allow, the government unit shall affirm,
modify or reverse the challenged government action.
(2) The court shall retain jurisdiction of the proceeding
during the reconsideration provided for in subsection (1) of this
section. If the government unit modifies or affirms the
challenged government action on reconsideration, the person who
filed the notice of appeal may file an amended notice of appeal
within 14 days after the date on which notice is given of the
government unit's action on reconsideration. If the person who
filed the notice of appeal does not file an amended notice of
appeal within the 14-day period, the court shall dismiss the
proceeding.
(3) At any time during judicial review proceedings, the
government unit may vacate its government action. Upon vacation
of the government action, the court shall dismiss the
proceeding. + }
SECTION 20. { + Relief. (1) Unless the court finds the
existence of an error described in section 17 of this 2001 Act,
the court shall affirm the government action.
(2) Relief granted in judicial review proceedings may be
mandatory, prohibitory or declaratory in form. The court may
order relief in addition to that provided for in sections 1 to 24
of this 2001 Act if such relief is authorized by other law. The
court shall not grant relief other than that requested by the
parties on appeal or the government unit unless the court
notifies the parties on appeal and the government unit that
different relief may be granted and allows the parties on appeal
and the government unit to be heard with respect to the different
relief.
(3) If the court sets aside or remands the government action
for further proceedings, the court may order such interlocutory
relief as the court finds necessary to protect and preserve the
interests of the parties on appeal and the public until such
further proceedings occur.
(4) The court may award attorney fees only as specifically
provided by law. The court may award attorney fees under the
provisions of ORS 20.105 upon making the findings required by
that statute.
(5) The court may award costs to the prevailing party in a
judicial review proceeding. + }
SECTION 21. { + Ancillary procedural matters. Ancillary
procedural matters, including intervention, class actions,
consolidation, joinder, severance, transfer, protective orders
and other relief from disclosure and other matters pertaining to
privileged or confidential material, are governed, to the extent
not inconsistent with sections 1 to 24 of this 2001 Act, by other
applicable law. + }
SECTION 22. { + Disposition of action. Judicial review
proceedings may be disposed of by stipulation, settlement
agreement, consent order or judgment. If all of the parties on
appeal stipulate or agree to a dismissal, the court shall dismiss
the proceedings in that court. + }
SECTION 23. { + Appeals. A decision of a circuit court in a
judicial review proceeding may be appealed as provided in ORS
chapter 19 for an action at law. A decision of the Court of
Appeals may be reviewed by the Supreme Court pursuant to ORS
2.520. + }
SECTION 24. { + Writ of prohibition and common law procedures
not available. The writ of prohibition and other judicial
procedures for seeking judicial review of a government action may
not be used to seek review of any government action that is
subject to review under sections 1 to 24 of this 2001 Act. + }
SECTION 25. { + Review by Oregon Law Commission. Not later
than six years after the effective date of this 2001 Act, the
Oregon Law Commission shall review the implementation and
operation of sections 1 to 24 of this 2001 Act, and shall
recommend to the Legislative Assembly such further legislation as
the commission considers appropriate in light of the operation of
sections 1 to 24 of this 2001 Act during the period reviewed. + }
SECTION 26. { + If a statute other than those in ORS 30.510 to
30.640 or 34.105 to 34.240 or ORS chapter 28 provides for a
procedure or standard of review that is materially different from
the procedures or standards of review provided under sections 1
to 24 of this 2001 Act, the procedure or standard provided by the
other statute shall continue to govern in all cases subject to
the statute until January 1, 2004. On and after January 1, 2004,
the provisions in sections 1 to 24 of this 2001 Act govern all
judicial review of all government actions except as specifically
provided in section 3 of this 2001 Act. + }
SECTION 27. { + Nothing in section 17 of this 2001 Act affects
the requirement that the reviewing court conduct a review de novo
of agency modifications of findings of historical fact made by
hearing officers from the Hearing Officer Panel under section 12,
chapter 849, Oregon Laws 1999. + }
SECTION 28. ORS 19.260 is amended to read:
19.260. (1) Filing a notice of appeal in the Court of Appeals
or the Supreme Court may be accomplished by mail. The date of
filing such notice shall be the date of mailing, provided it is
mailed by registered or certified mail and the party filing the
notice has proof from the post office of such mailing date. Proof
of mailing shall be certified by the party filing the notice and
filed thereafter with the court to which the appeal is taken. If
the notice is received by the court on or before the date by
which such notice is required to be filed, the party filing the
notice is not required to file proof of mailing.
(2) Service of notice of appeal on a party, { + a government
unit as defined in section 2 of this 2001 Act, a + } transcript
coordinator or the trial court administrator, or service of a
petition for judicial review on a party or administrative agency
may be accomplished by first class, registered or certified mail.
The date of serving such notice shall be the date of mailing.
Proof of mailing shall be certified by the party filing the
notice and filed thereafter with the court to which the appeal is
taken.
(3) Except as otherwise provided by law, the provisions of
subsections (1) and (2) of this section are applicable to
petitions for judicial review, cross petitions for judicial
review and petitions under the original jurisdiction of the
Supreme Court or Court of Appeals.
SECTION 29. ORS 25.396 is amended to read:
25.396. (1) An obligor who is subject to an order to withhold
issued under ORS 25.378 (1) may request that withholding be
discontinued or not initiated if:
(a) All arrearages are paid in full;
(b) The obligor has complied with the terms of a previously
allowed exemption from withholding; and
(c)(A) The obligor and the obligee agree in writing to an
alternative arrangement; or
(B) A court or the administrator makes a written finding and
explanation that there is good cause not to require the
withholding.
(2)(a) The entity to whom an obligor makes a request under
subsection (1) of this section is:
(A) The district attorney or the Division of Child Support,
whichever is appropriate, when support services are being
provided by the entity under ORS 25.080; or
(B) In all other cases, the circuit court.
(b) When the obligor is making a request concerning withholding
for spousal support, the obligor shall make the request to the
district attorney or Division of Child Support only if the
district attorney or Division of Child Support is enforcing the
spousal support order under ORS 25.080 (4)(c) or (d). In all
other cases, the obligor shall make the request to the circuit
court.
(c) Appeal of a decision of the district attorney or the
Division of Child Support is { - to the circuit court for a
hearing under ORS 183.484 - } { + as provided for an order
other than contested case under sections 1 to 24 of this 2001
Act + }.
(3) If money is owed to the state under the support order which
is the subject of an agreement under subsection (1)(c)(A) of this
section, the state must also be a party to the written agreement.
The written agreement must be reviewed and entered in the record
by the court or administrator.
(4) For purposes of subsection (1) of this section, good cause
exists when there is proof of timely payment of previously
ordered support in cases involving the modification of support
orders and there are no arrears.
(5) Withholding may be terminated only if the conditions set
forth in this section are met.
SECTION 30. ORS 25.405 is amended to read:
25.405. (1) An obligor contesting an order to withhold issued
under ORS 25.378 must do so within 14 days from the date income
is first withheld pursuant to the order to withhold. The obligor
may not contest an order to withhold issued under ORS 25.378 (5).
(2) The only basis for contesting the order to withhold is a
mistake of fact. 'Mistake of fact' means an error in the amount
of current support or arrearages, or an error in the identity of
the obligor. Payment of all arrearages shall not be the sole
basis for not implementing withholding.
(3) If the order to withhold was issued by a court of this
state, the obligor must contest the order to withhold in the
court that issued the order.
(4) If the order to withhold was issued by a court or
administrative agency of another state and was received directly
by an employer in this state under ORS 110.394, the obligor may
contest the order to withhold by:
(a) Seeking relief from enforcement of the order in the
appropriate tribunal of the state that issued the order; or
(b) Registering the underlying withholding order in Oregon and
seeking relief from enforcement of the order in an Oregon circuit
court.
(5) If the order to withhold was issued pursuant to a request
for enforcement under ORS 25.080, the obligor may contest the
order to withhold to the district attorney or the Division of
Child Support. The district attorney or the Division of Child
Support need not provide an opportunity for a contested case
administrative hearing under ORS 183.310 to 183.550 or a hearing
in circuit court. Within 45 days after the date income is first
withheld pursuant to the order to withhold, the district attorney
or the Division of Child Support shall determine, based on an
evaluation of the facts, if the withholding shall continue and
notify the obligor of the determination and of the obligor's
right to appeal the determination.
(6) Any appeal of the decision of the district attorney or the
Division of Child Support made under subsection (5) of this
section is { - to the circuit court for a hearing under ORS
183.484 - } { + as provided for an order other than contested
case under sections 1 to 24 of this 2001 Act + }.
(7) The initiation of proceedings to contest an order to
withhold under subsection (4) of this section, a motion or
request to contest an order to withhold or an appeal of the
decision of the district attorney or the Division of Child
Support made under subsection (5) of this section does not act to
stay withholding unless otherwise ordered by a court.
SECTION 31. ORS 25.768 is amended to read:
25.768. The order of the hearings officer is final and is
subject to judicial review as provided in { - ORS 183.482 - }
{ + sections 1 to 24 of this 2001 Act + }. Any suspension under
ORS 25.750 to 25.783 is not stayed pending judicial review.
SECTION 32. ORS 28.020 is amended to read:
28.020. { + Except for government actions subject to review
under sections 1 to 24 of this 2001 Act, + } any person
interested under a deed, will, written contract or other writing
constituting a contract, or whose rights, status or other legal
relations are affected by a constitution, statute, municipal
charter, ordinance, contract or franchise may have determined any
question of construction or validity arising under any such
instrument, constitution, statute, municipal charter, ordinance,
contract or franchise and obtain a declaration of rights, status
or other legal relations thereunder.
SECTION 33. ORS 30.510 is amended to read:
30.510. { + (1) Except as provided in subsection (2) of this
section, + } an action at law may be maintained { + under the
provisions of ORS 30.510 to 30.640 + } in the name of the state,
upon the information of the district attorney, or upon the
relation of a private party against the person offending, in the
following cases:
{ - (1) - } { + (a) + } When any person usurps, intrudes
into, or unlawfully holds or exercises any public office, civil
or military, or any franchise within this state, or any office in
a corporation either public or private, created or formed by or
under the authority of this state { + . + } { - ; or, - }
{ - (2) - } { + (b) + } When any public officer, civil or
military, does or suffers an act which, by the provisions of law,
makes a forfeiture of the office of the public officer { + . + }
{ - ; or, - }
{ - (3) - } { + (c) + } When any association or number of
persons acts within this state, as a corporation, without being
duly incorporated.
{ + (2) An action at law may not be maintained under ORS
30.510 to 30.640 if the action being challenged is a government
action for which review is provided in sections 1 to 24 of this
2001 Act. + }
SECTION 34. ORS 30.520 is amended to read:
30.520. Several persons may be joined as defendants in an
action for the causes specified in ORS 30.510 (1) { + (a) + },
and in such action their respective rights to such office or
franchise may be determined.
SECTION 35. ORS 30.530 is amended to read:
30.530. Whenever an action is brought against a person for any
of the causes specified in ORS 30.510 (1) { + (a) + }, the
district attorney, in addition to the statement of the cause of
action, may separately set forth in the complaint the name of the
person rightfully entitled to the office or franchise, with a
statement of the facts constituting the right of the person
thereto. In such case, judgment may be given upon the right of
the defendant, and also upon the right of the person so alleged
to be entitled, or only upon the right of the defendant, as
justice may require.
SECTION 36. ORS 30.560 is amended to read:
30.560. When a defendant, whether a natural person or a
corporation, against whom an action has been commenced for any of
the causes specified in ORS 30.510 (1) { + (a) + }, is determined
to be guilty of usurping, or intruding into, or unlawfully
holding or exercising any office or franchise, judgment shall be
given that such defendant be excluded therefrom. The court may
also impose a fine upon the defendant not exceeding $2,000.
SECTION 37. ORS 34.110 is amended to read:
34.110. A writ of mandamus may be issued to any inferior court,
corporation, board, officer or person, to compel the performance
of an act which the law specially enjoins, as a duty resulting
from an office, trust or station; but though the writ may require
such court, corporation, board, officer or person to exercise
judgment, or proceed to the discharge of any functions, it shall
not control judicial discretion. The writ shall not be issued in
any case where there is a plain, speedy and adequate remedy in
the ordinary course of the law. { + The writ shall not be issued
for the purpose of challenging a government action that is
subject to review under sections 1 to 24 of this 2001 Act. + }
SECTION 38. ORS 34.130 is amended to read:
34.130. (1) The relator shall file a petition for a writ of
mandamus with the clerk of the court or court administrator.
(2) The relator shall serve a copy of the petition on the
defendant and, if the mandamus proceeding arises from a judicial
or administrative proceeding, on all parties to such proceeding.
Service of the petition on the defendant and adverse parties is
sufficient if it complies with ORCP 9 B. The court in its
discretion may act on a petition regardless of defects in the
service of the petition on any adverse party, and the petition
may be allowed with or without notice to the adverse party { - ,
as in a writ of review proceeding - } .
(3) Except as to a petition filed in the Supreme Court, the
writ shall be allowed by the court or judge thereof on the
petition. On the filing of the order of allowance, the clerk or
court administrator forthwith shall issue the writ in accordance
with the petition. The clerk or court administrator may require
the relator to provide a form of writ in accordance with the
petition.
(4)(a) Except as provided in paragraph (b) of this subsection,
at any time in the course of a mandamus action until the return
date of the alternative writ, any adverse party may intervene in
the mandamus proceeding as matter of right. At any time
subsequent to the return date of the alternative writ, the court
in its discretion may allow an adverse party to intervene. With
the consent of the defendant and, if the defendant is a judge of
the Supreme Court, Court of Appeals, Oregon Tax Court or circuit
court, subject to ORS 1.550 and 1.560, the attorney for an
adverse party may appear on behalf of the defendant.
(b) For a petition filed pursuant to ORS 215.429 or 227.179, a
motion to intervene must be filed with the court within 21 days
of the date the petition was filed under subsection (1) of this
section.
(5) The filing or allowance of a petition for a writ of
mandamus does not stay any judicial or administrative proceeding
from which the mandamus proceeding may arise, but the court in
its discretion may stay such proceeding.
SECTION 39. ORS 58.355 is amended to read:
58.355. (1) The regulatory board may suspend, revoke or refuse
to issue or renew any certificate of registration for any of the
following reasons:
(a) The revocation or suspension of the license of any officer,
director, shareholder or employee not promptly suspended or
discharged by the corporation;
(b) The death of the last remaining shareholder; or
(c) Upon finding that the holder of or applicant for a
certificate has failed to comply with the provisions of this
chapter or the regulations prescribed by the regulatory board
pursuant to this chapter.
(2) Before any certificate of registration is denied, suspended
or revoked by the regulatory board, notice and hearing shall be
provided in accordance with ORS 183.415.
(3) Except as provided in ORS 58.365, any corporation may
appeal from the final order of the regulatory board as provided
in
{ - ORS 183.480 - } { + sections 1 to 24 of this 2001
Act + }.
SECTION 40. ORS 65.021 is amended to read:
65.021. If the Secretary of State refuses to file a document
delivered to the Office of Secretary of State for filing, the
domestic or foreign corporation, in addition to any other legal
remedy which may be available, shall have the right to appeal
from such final order pursuant to the provisions of { - ORS
183.484 - } { + sections 1 to 24 of this 2001 Act governing
orders other than contested case + }.
SECTION 41. ORS 65.657 is amended to read:
65.657. (1) If the Secretary of State denies a corporation's
application for reinstatement following administrative
dissolution, the Secretary of State shall give written notice to
the corporation that explains the reason or reasons for denial.
(2) Such denial of reinstatement shall be reviewable { + as an
order other than contested case + } pursuant to { - ORS
183.484 - } { + sections 1 to 24 of this 2001 Act + } and shall
not constitute a contested case order.
SECTION 42. ORS 92.234 is amended to read:
92.234. (1) Following a hearing conducted as required under ORS
92.225 (4), the agency or body conducting the hearing may:
(a) Require the revision of a subdivision and a replat of the
subdivision as it considers necessary, if it finds that the
subdivision may be revised to comply with the comprehensive plan,
zoning ordinances and regulations and other modern subdivision
control standards not in existence when the subdivision was
initially approved; or
(b) Initiate proceedings, as provided in subsection (3) of this
section, for vacation of the subdivision, if it finds that the
subdivision cannot be revised in accordance with the
comprehensive plan, zoning ordinances and regulations and other
modern subdivision control standards not in existence when the
subdivision was initially approved.
(2) If an agency or body requires the revision and replat of a
subdivision under subsection (1)(a) of this section, it shall
approve the subdivision only upon the completion of the revisions
as required by it and the replat of the subdivision as provided
in ORS 92.180 to 92.190.
(3) If the agency or body determines that it is necessary to
vacate a subdivision, the agency or body shall adopt an ordinance
vacating the subdivision and providing for the vacation of lands
within the subdivision that have been dedicated for public use.
Title to lands within a vacated subdivision shall vest as
provided in ORS 271.140 and 368.366. Any owner of lands described
in the plat of the vacated subdivision who is aggrieved by the
action of the agency or body in vacating the subdivision may
appeal such action in the manner provided in { - ORS 34.010 to
34.100 - } { + sections 1 to 24 of this 2001 Act + }. The
ordinance adopted by the agency or body for the vacation of the
subdivision and the lands therein dedicated to public use shall
be filed with the county recording officer as provided in ORS
271.150.
(4) Nothing in ORS 92.205 to 92.245 shall prevent the owner of
any lands within an undeveloped subdivision from seeking vacation
of such subdivision under city or county vacation procedures and,
if such vacation proceedings are commenced after the date of the
notice of review of the subdivision by the agency or body, the
review proceeding shall be suspended during such vacation
proceedings. If the subdivision is vacated at the initiation of
an owner, the review proceedings under ORS 92.205 to 92.245 shall
be discontinued; but, if the subdivision is not vacated at the
request of an owner, the review proceedings under ORS 92.205 to
92.245 shall be resumed at the termination of the proceedings
brought by an owner of lands in the subdivision.
SECTION 43. ORS 100.255 is amended to read:
100.255. (1) If after review the Real Estate Agency determines
that a report or amendment submitted for filing under ORS 100.250
(1) satisfies the requirements of ORS 100.260, and all fees have
been paid, the Real Estate Agency shall file the document and
designate the filing 'current. '
(2) The Real Estate Agency files a document by indicating
thereon that it has been filed by the Real Estate Agency and the
date of filing. The time of filing shall be considered to be
12:01 a.m. on that date. After filing a document, the Real Estate
Agency shall return a copy to the association.
(3) If the Real Estate Agency refuses to file a document, the
Real Estate Agency shall return it to the association within 10
business days after the document was received by the Real Estate
Agency, together with a brief written explanation of the reason
or reasons for the refusal.
(4) The Real Estate Agency's duty to file documents under this
section and ORS 100.250 is ministerial. The Real Estate Agency is
not required to verify or inquire into the legality or truth of
any matter included in any document delivered to the Real Estate
Agency for filing. The Real Estate Agency's filing or refusing to
file a document does not:
(a) Affect the validity or invalidity of the document in whole
or in part; or
(b) Relate to the correctness or incorrectness of information
contained in the document.
(5) The Real Estate Agency's refusal to file a document does
not create a presumption that the document is invalid or that
information contained in the document is incorrect.
(6) If the Real Estate Agency refuses to file a document
delivered to the Real Estate Agency for filing, the association,
in addition to any other legal remedy which may be available,
shall have the right to appeal from such final order { + as an
order other than contested case + } pursuant to the provisions of
{ - ORS 183.484 - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 44. ORS 131.735 is amended to read:
131.735. Any person ordered removed or excluded from any public
property under ORS 131.715 and 131.725 shall have immediate
access to the circuit court { + or Court of Appeals, as provided
in sections 1 to 24 of this 2001 Act. Proceedings under sections
1 to 24 of this 2001 Act + } { - for the county in which the
property is located for review of the order of exclusion or
removal. Such access shall be in the form of a writ of review
and - } shall be given priority over all other cases on the
docket of the { - circuit - } court.
SECTION 45. ORS 137.673 is amended to read:
137.673. Rules adopted by the Oregon Criminal Justice
Commission shall not be declared invalid solely because of
irregularities in procedural rulemaking, including but not
limited to the provisions of ORS 183.335 (10)(a) { - or 183.400
(4)(c) - } { + and section 17 (2) of this 2001 Act + }.
SECTION 46. ORS 144.335 is amended to read:
144.335. (1) When a person over whom the State Board of Parole
and Post-Prison Supervision exercises its jurisdiction is
adversely affected or aggrieved by a final order of the board
related to the granting, revoking or discharging of parole, the
revoking of post-prison supervision or the imposition of
conditions of parole or of post-prison supervision and after
exhaustion of administrative review as provided by board rule,
such person is entitled to judicial review of the final order.
(2) Notwithstanding subsection (1) of this section, the board's
order is final and is not subject to judicial review when the
board sustains a minimum term imposed under ORS 144.110 and the
prisoner does not contest the crime severity rating or the
history risk score established by the board under its rules.
(3) Notwithstanding subsection (1) of this section, the board's
order is final and is not subject to judicial review when the
board makes any decision relating to a release date or a parole
consideration hearing date, including:
(a) Setting an initial release date under ORS 144.120, except
that the setting of an initial release date under ORS 144.120
remains subject to judicial review if the prisoner contests the
crime severity rating, the history risk score or aggravation
factors found by the board under the rules of the board.
(b) Setting a date for a parole consideration hearing under ORS
144.228.
(c) Setting a release date, or declining to set a release date,
after a parole consideration hearing under ORS 144.228.
(d) Denying, granting or granting in part a prisoner's request
under ORS 144.122 for advancement of the initial release date.
(e) Referring a prisoner for psychological evaluation under ORS
144.223.
(f) Postponing a prisoner's release date because of serious
misconduct during confinement under ORS 144.125 (2).
(g) Postponing a prisoner's release date because of a board
finding under ORS 144.125 (3).
(h) Postponing a prisoner's release date because of a
prisoner's refusal to submit to a psychological evaluation.
(i) Denying a prisoner's request under ORS 144.228 (1) for an
early parole consideration hearing.
(4) The final order and the proceedings underlying the order
are subject to review by the Court of Appeals upon petition to
that court filed within 60 days of the final order for which
review is sought. The board shall submit to the court the record
of the proceeding, or, if the inmate agrees, a shortened record.
A copy of the record transmitted shall be delivered to the inmate
by the board.
(5) The order of the board need not be in any special form, and
the order is sufficient for purposes of judicial review if it
appears that the board acted within the scope of the board's
authority. The court may affirm, reverse or remand the order on
the same basis as provided in { - ORS 183.482 (8) - } { +
section 17 of this 2001 Act + }. The filing of the petition shall
not stay the board's order, but the board may do so, or the court
may order a stay upon application on such terms as it deems
proper.
(6) In the case of disputed allegations of irregularities in
procedure before the board not shown in the record which, if
proved, would warrant reversal or remand, the Court of Appeals
may refer the allegations to a master appointed by the court to
take evidence and make findings of fact upon them.
SECTION 47. ORS 144.450 is amended to read:
144.450. (1) The Director of the Department of Corrections
shall approve or reject each recommendation under ORS 144.440 or
421.170 for enrollment in the work release program. Rejection by
the director of a recommendation does not preclude submission
under ORS 421.170 of subsequent recommendations regarding
enrollment of the same person.
(2) An inmate may be assigned by the Department of Corrections
to participate in an inmate work program, or in education,
alcohol and drug treatment or mental health or other specific
treatment program to develop independent living skills, without
the inmate's consent.
(3) The director shall promulgate rules for carrying out ORS
144.410 to 144.525 and 421.170.
(4) In approving a recommendation and enrolling a person in the
work release program, or in assigning an inmate to participate in
an inmate work program or in education, alcohol and drug
treatment or mental health or other specific treatment program to
develop independent living skills, the director may prescribe any
specific conditions that the director finds appropriate to assure
compliance by the person with the general procedures and
objectives of the work release program.
(5) { - ORS 183.410 to 183.500 do not apply to actions taken
under this section - } { + The decision of the director under
this section is final and is not subject to administrative or
judicial review + }.
SECTION 48. ORS 161.385 is amended to read:
161.385. (1) There is hereby created a Psychiatric Security
Review Board consisting of five members appointed by the Governor
and subject to confirmation by the Senate under section 4,
Article III of the Oregon Constitution.
(2) The membership of the board shall not include any district
attorney, deputy district attorney or public defender, but, the
membership shall be composed of:
(a) A psychiatrist experienced in the criminal justice system
and not otherwise employed on a full-time basis by the Mental
Health and Developmental Disability Services Division or a
community mental health and developmental disabilities program;
(b) A licensed psychologist experienced in the criminal justice
system and not otherwise employed on a full-time basis by the
Mental Health and Developmental Disability Services Division or a
community mental health and developmental disabilities program;
(c) A member with substantial experience in the processes of
parole and probation;
(d) A member of the general public; and
(e) A lawyer with substantial experience in criminal trial
practice.
(3) The term of office of each member is four years. The
Governor at any time may remove any member for inefficiency,
neglect of duty or malfeasance in office. Before the expiration
of the term of a member, the Governor shall appoint a successor
whose term begins on July 1 next following. A member is eligible
for reappointment. If there is a vacancy for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board not otherwise employed full time by
the state, shall be paid on a per diem basis an amount equal to
$212, adjusted according to the executive pay plan for the
biennium, for each day during which the member is engaged in the
performance of official duties, including necessary travel time.
In addition, subject to ORS 292.220 to 292.250 regulating travel
and other expenses of state officers and employees, the member
shall be reimbursed for actual and necessary travel and other
expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of the State Personnel
Relations Law, the board may hire employees to aid it in
performing its duties.
(6)(a) The board shall select one of its members as chairperson
to serve for a one-year term with such duties and powers as the
board determines.
(b) A majority of the voting members of the board constitutes a
quorum for the transaction of business.
(7) The board shall meet at least twice every month, unless the
chairperson determines that there is not sufficient business
before the board to warrant a meeting at the scheduled time. The
board shall also meet at other times and places specified by the
call of the chairperson or of a majority of the members of the
board.
(8)(a) When a person over whom the board exercises its
jurisdiction is adversely affected or aggrieved by a final order
of the board, the person is entitled to judicial review of the
final order. The person shall be entitled on judicial review to
suitable counsel possessing skills and experience commensurate
with the nature and complexity of the case. If the person is
indigent, suitable counsel shall be appointed by the reviewing
court in the manner provided in ORS 138.500 (1). If the person is
indigent, the reviewing court shall determine and allow, as
provided in ORS 138.500, the cost of briefs, any other expenses
of the person necessary to the review and compensation for
counsel appointed for the person. The costs, expenses and
compensation so allowed shall be paid as provided in ORS 138.500.
(b) The order and the proceedings underlying the order are
subject to { + judicial + } review { + as provided in sections
1 to 24 of this 2001 Act. + } { - by the Court of Appeals upon
petition to that court filed within 60 days of the order for
which review is sought. The board shall submit to the court the
record of the proceeding or, if the person agrees, a shortened
record. The record may include a certified true copy of a tape
recording of the proceedings at a hearing in accordance with ORS
161.346. A copy of the record transmitted shall be delivered to
the person by the board. - }
{ - (c) The court may affirm, reverse or remand the order on
the same basis as provided in ORS 183.482 (8). - }
{ - (d) The filing of the petition shall not stay the board's
order, but the board or the Court of Appeals may order a stay
upon application on such terms as are deemed proper. - }
SECTION 49. ORS 176.805 is amended to read:
176.805. (1) Any proclamation, executive order or directive
issued pursuant to ORS 176.750 to 176.815 shall be deemed to be a
rule subject to ORS 183.310 to 183.550 { + . + } { - , except
that jurisdiction for judicial determination of the validity
thereof pursuant to ORS 183.400 is conferred upon the Court of
Appeals. - } { + Judicial review of the validity of the
proclamation, executive order or directive may be sought in the
manner provided by sections 1 to 24 of this 2001 Act. + }
(2) Any such proceeding in the Court of Appeals shall be given
precedence on the docket over all other cases, except prior cases
arising under ORS 176.750 to 176.815 and 176.990. The court may
appoint a master to take evidence and make proposed findings of
fact and conclusions of law in such case.
SECTION 50. ORS 179.640 is amended to read:
179.640. (1) The Mental Health and Developmental Disability
Services Division shall establish rules for determining ability
to pay. The rules shall require, in addition to other relevant
factors, consideration of the personal estate, the person's need
for funds for personal support after release, and the
availability of third-party benefits such as, but not limited to,
Medicare or private insurance. The division may also consider the
probable length of stay at the state institution.
(2) In determining a person's ability to pay, the division may
not consider as part of the personal estate of the person or the
decedent's estate:
(a) Any assets received by or owing to the person and the
personal estate of the person, or the decedent's estate, as
compensation from the state for injury or death of the person
that occurred when the person was in a state institution listed
in ORS 179.321 (1) and for which the state admits liability or is
found liable through adjudication; and
(b) Any real or personal property that the person or an
authorized representative of the person can demonstrate was
purchased solely with assets referred to in paragraph (a) of this
subsection or partially with such assets, to the extent such
assets were used in the purchase.
(3) A person and the authorized representative of the person,
if any, shall provide all financial information requested by the
division that is necessary to determine the person's ability to
pay. To determine ability to pay, the division may use any
information available to the division, including information
provided by the Department of Revenue from personal income tax
returns pursuant to ORS 314.840, and elderly rental assistance
claims. Upon request, the Department of Revenue shall release
copies of tax returns to the division. Where the person or the
person's authorized representative fails to provide evidence to
demonstrate an inability to pay full cost of care, the division
may determine the person has the ability to pay the full cost of
care.
(4) The division shall provide actual notice to the person and
any authorized representative, if known to the division, of its
determination by issuing an ability-to-pay order. The order shall
state the person's full liability and the person's determined
ability to pay. Actual notice means receipt by the person and the
authorized representative of notice. The notice shall include a
copy of the ability-to-pay order, a description of the person's
appeal rights and the date upon which appeal rights terminate and
state the address where a request for hearing may be mailed or
delivered. At any time, the division may reissue an
ability-to-pay order to notify an authorized representative as
provided by ORS 179.653 (4).
(5) At any time during the person's stay at the state
institution or within 36 months from the date the person is
released, if the division receives new financial information that
shows a change in the person's financial circumstances, the
division shall consider the changed circumstances and issue a new
ability-to-pay order.
(6) Orders issued after the person is released shall not
require the person to make payments toward the cost of care for
more than 36 consecutive months following release. However, the
division may collect beyond the 36-month period any payments that
became due but were not paid within the 36 months following
release. Any remaining balance of full cost of care shall be
collected as provided in ORS 179.740.
(7) If a person or authorized representative disagrees with any
ability-to-pay order issued pursuant to this section, the person
or authorized representative may request a contested case
hearing. To the extent practical, the hearing will be held at a
location convenient to the person or the authorized
representative. The request must be postmarked within 60 days
from the date of the mailing of the ability-to-pay order. If the
person or the authorized representative makes a timely request
for a contested case hearing, the hearing { - and any appeal of
the final hearing order - } shall be governed by ORS 183.413 to
{ - 183.497 - } { + 183.470. Judicial review of the final
order shall be as provided in sections 1 to 24 of this 2001
Act + }. If the person or the authorized representative fails to
make a timely request for a contested case hearing, the
ability-to-pay order shall be final and not subject to judicial
review, except as subsequently modified by the division as
provided in subsection (5) of this section.
(8) On appeal, regardless of other information presented,
payment of the full cost of care may be ordered if the person or
the authorized representative refuses to produce financial
information that the Hearings Officer determines is relevant and
must be produced.
SECTION 51. ORS 181.350 is amended to read:
181.350. The decisions of the trial board shall be subject to
review { - by the Court of Appeals. The procedure for review
shall be as provided in ORS 183.482 - } { + in the manner
provided for contested case orders in sections 1 to 24 of this
2001 Act + }.
SECTION 52. ORS 181.664 is amended to read:
181.664. (1) An instructor or a public safety officer, except a
youth correction officer, aggrieved by the findings and order of
the Department of Public Safety Standards and Training may { - ,
as provided in ORS 183.480, file an appeal with the Court of
Appeals from the final order of the department - } { + seek
judicial review of the order in the manner provided by sections 1
to 24 of this 2001 Act + }.
(2) Any public safety officer or instructor who has had
certification revoked pursuant to ORS 181.661, 181.662 and
subsection (1) of this section may reapply for certification but
not sooner than four years after the date on which the order of
the department revoking certification became final.
SECTION 53. ORS 183.090 is amended to read:
183.090. (1) Except as otherwise provided by law, an agency may
only impose a civil penalty as provided in this section.
(2) A civil penalty imposed under this section shall become due
and payable 10 days after the order imposing the civil penalty
becomes final by operation of law or on appeal. A person against
whom a civil penalty is to be imposed shall be served with a
notice in the form provided in ORS 183.415. Service of the notice
shall be accomplished in the manner provided by ORS 183.415.
(3) The person to whom the notice is addressed shall have 20
days from the date of service of the notice provided for in
subsection (2) of this section in which to make written
application for a hearing. The agency may by rule provide for a
longer period of time in which application for a hearing may be
made. If no application for a hearing is made within the time
allowed, the agency may make a final order imposing the penalty.
A final order entered under this subsection need not be delivered
or mailed to the person against whom the civil penalty is
imposed.
(4) Any person who makes application as provided for in
subsection (3) of this section shall be entitled to a hearing.
The hearing shall be conducted as a contested case hearing
pursuant to the applicable provisions of ORS 183.413 to 183.470.
(5) Judicial review of an order made after a hearing under
subsection (4) of this section shall be as provided in { - ORS
183.480 to 183.497 - } { + sections 1 to 24 of this 2001
Act + } for judicial review of contested { - cases - } { +
case orders + }.
(6) When an order assessing a civil penalty under this section
becomes final by operation of law or on appeal, and the amount of
penalty is not paid within 10 days after the order becomes final,
the order may be recorded with the county clerk in any county of
this state. The clerk shall thereupon record the name of the
person incurring the penalty and the amount of the penalty in the
County Clerk Lien Record.
(7) This section does not apply to penalties:
(a) Imposed under the tax laws of this state;
(b) Imposed under the provisions of ORS 646.760 or 652.332;
(c) Imposed under the provisions of ORS chapter 654, 656 or
659; or
(d) Imposed by the Public Utility Commission.
(8) This section creates no new authority in any agency to
impose civil penalties.
(9) This section does not affect:
(a) Any right under any other law that an agency may have to
bring an action in a court of this state to recover a civil
penalty; or
(b) The ability of an agency to collect a properly imposed
civil penalty under the provisions of ORS 305.830.
(10) The notice provided for in subsection (2) of this section
may be made part of any other notice served by the agency under
ORS 183.415.
(11) Informal disposition of proceedings under this section,
whether by stipulation, agreed settlement, consent order or
default, may be made at any time.
(12) In addition to any other remedy provided by law, recording
an order in the County Clerk Lien Record pursuant to the
provisions of this section has the effect provided for in ORS
205.125 and 205.126, and the order may be enforced as provided in
ORS 205.125 and 205.126.
(13) As used in this section:
(a) 'Agency' has that meaning given in ORS 183.310.
(b) 'Civil penalty' includes only those monetary penalties that
are specifically denominated as civil penalties by statute.
SECTION 54. ORS 183.310 is amended to read:
183.310. As used in ORS 183.310 to 183.550:
(1) 'Agency' means any state board, commission, department, or
division thereof, or officer authorized by law to make rules or
to issue orders, except those in the legislative and judicial
branches.
(2)(a) 'Contested case' means a proceeding before an agency:
(A) In which the individual legal rights, duties or privileges
of specific parties are required by statute or Constitution to be
determined only after an agency hearing at which such specific
parties are entitled to appear and be heard;
(B) Where the agency has discretion to suspend or revoke a
right or privilege of a person;
(C) For the suspension, revocation or refusal to renew or issue
a license where the licensee or applicant for a license demands
such hearing; or
(D) Where the agency by rule or order provides for hearings
substantially of the character required by ORS 183.415, 183.425,
183.450, 183.460 and 183.470.
(b) 'Contested case' does not include proceedings in which an
agency decision rests solely on the result of a test.
(3) 'Economic effect' means the economic impact on affected
businesses by and the costs of compliance, if any, with a rule
for businesses, including but not limited to the costs of
equipment, supplies, labor and administration.
(4) 'License' includes the whole or part of any agency permit,
certificate, approval, registration or similar form of permission
required by law to pursue any commercial activity, trade,
occupation or profession.
(5)(a) 'Order' means any agency action expressed orally or in
writing directed to a named person or named persons, other than
employees, officers or members of an agency. 'Order' includes any
agency determination or decision issued in connection with a
contested case proceeding. 'Order' includes:
(A) Agency action under ORS chapter 657 making determination
for purposes of unemployment compensation of employees of the
state; and
(B) Agency action under ORS chapter 240 which grants, denies,
modifies, suspends or revokes any right or privilege of an
employee of the state.
(b) 'Final order' means final agency action expressed in
writing. 'Final order' does not include any tentative or
preliminary agency declaration or statement that:
(A) Precedes final agency action; or
(B) Does not preclude further agency consideration of the
subject matter of the statement or declaration.
(6) 'Party' means:
(a) Each person or agency entitled as of right to a hearing
before the agency;
(b) Each person or agency named by the agency to be a party; or
(c) Any person requesting to participate before the agency as a
party or in a limited party status which the agency determines
either has an interest in the outcome of the agency's proceeding
or represents a public interest in such result. The agency's
determination is subject to judicial review in the manner
provided
{ - by ORS 183.482 after the agency has issued its final order
in the proceedings - } { + for review of contested case orders
in sections 1 to 24 of this 2001 Act + }.
(7) 'Person' means any individual, partnership, corporation,
association, governmental subdivision or public or private
organization of any character other than an agency.
(8) 'Rule' means any agency directive, standard, regulation or
statement of general applicability that implements, interprets or
prescribes law or policy, or describes the procedure or practice
requirements of any agency. The term includes the amendment or
repeal of a prior rule, but does not include:
(a) Unless a hearing is required by statute, internal
management directives, regulations or statements which do not
substantially affect the interests of the public:
(A) Between agencies, or their officers or their employees; or
(B) Within an agency, between its officers or between
employees.
(b) Action by agencies directed to other agencies or other
units of government which do not substantially affect the
interests of the public.
(c) Declaratory rulings issued pursuant to ORS 183.410 or
305.105.
(d) Intra-agency memoranda.
(e) Executive orders of the Governor.
(f) Rules of conduct for persons committed to the physical and
legal custody of the Department of Corrections, the violation of
which will not result in:
(A) Placement in segregation or isolation status in excess of
seven days.
(B) Institutional transfer or other transfer to secure
confinement status for disciplinary reasons.
(C) Disciplinary procedures adopted pursuant to ORS 421.180.
(9) 'Small business' means a corporation, partnership, sole
proprietorship or other legal entity formed for the purpose of
making a profit, which is independently owned and operated from
all other businesses and which has 50 or fewer employees.
SECTION 55. ORS 183.315 is amended to read:
183.315. (1) The provisions of ORS 183.410, 183.415, 183.425,
183.440, 183.450, 183.452, 183.458, 183.460 { - , - }
{ + and + } 183.470 { - and 183.480 - } do not apply to local
government boundary commissions created pursuant to ORS 199.425
or 199.430, the Department of Revenue, State Accident Insurance
Fund Corporation, Department of Consumer and Business Services
with respect to its functions under ORS chapters 654 and 656,
Psychiatric Security Review Board or State Board of Parole and
Post-Prison Supervision.
(2) ORS 183.310 to 183.550 do not apply with respect to actions
of the Governor authorized under ORS chapter 240.
(3) The provisions of ORS 183.410, 183.415, 183.425, 183.440,
183.450, 183.452, 183.458 and 183.460 do not apply to the
Employment Appeals Board or the Employment Department.
(4) The Employment Department shall be exempt from the
provisions of ORS 183.310 to 183.550 to the extent that a formal
finding of the United States Secretary of Labor is made that such
provision conflicts with the terms of the federal law, acceptance
of which by the state is a condition precedent to continued
certification by the United States Secretary of Labor of the
state's law.
(5) The provisions of ORS 183.415 to 183.430, 183.440 to
183.460 { - , - } { + and + } 183.470 { - to 183.485 and
183.490 to 183.500 - } do not apply to orders issued to persons
who:
(a) Have been committed pursuant to ORS 137.124 to the custody
of the Department of Corrections or are otherwise confined in a
Department of Corrections facility; or
(b) Seek to visit an inmate confined in a Department of
Corrections facility.
(6) ORS 183.410, 183.415, 183.425, 183.440, 183.450, 183.460,
183.470 and 183.480 do not apply to the Public Utility
Commission.
(7) The provisions of ORS 183.310 to 183.550 do not apply to
the suspension, cancellation or termination of an apprenticeship
or training agreement under ORS 660.060.
SECTION 56. ORS 183.410 is amended to read:
183.410. On petition of any interested person, any agency may
in its discretion issue a declaratory ruling with respect to the
applicability to any person, property, or state of facts of any
rule or statute enforceable by it. A declaratory ruling is
binding between the agency and the petitioner on the state of
facts alleged, unless it is altered or set aside by a court.
However, the agency may, where the ruling is adverse to the
petitioner, review the ruling and alter it if requested by the
petitioner. Binding rulings provided by this section are subject
to review { + in the manner provided by sections 1 to 24 of this
2001 Act + } { - in the Court of Appeals in the manner provided
in ORS 183.480 - } for the review of { - orders in contested
cases - } { + contested case orders + }. The Attorney General
shall prescribe by rule the form for such petitions and the
procedure for their submission, consideration and disposition.
The petitioner shall have the right to submit briefs and present
oral argument at any declaratory ruling proceeding held pursuant
to this section.
SECTION 57. ORS 183.415 is amended to read:
183.415. (1) In a contested case, all parties shall be afforded
an opportunity for hearing after reasonable notice, served
personally or by registered or certified mail.
(2) The notice shall include:
(a) A statement of the party's right to hearing, or a statement
of the time and place of the hearing;
(b) A statement of the authority and jurisdiction under which
the hearing is to be held;
(c) A reference to the particular sections of the statutes and
rules involved; and
(d) A short and plain statement of the matters asserted or
charged.
(3) Parties may elect to be represented by counsel and to
respond and present evidence and argument on all issues involved.
(4) Agencies may adopt rules of procedure governing
participation in contested cases by persons appearing as limited
parties.
(5)(a) Unless precluded by law, informal disposition may be
made of any contested case by stipulation, agreed settlement,
consent order or default. Informal settlement may be made in
license revocation proceedings by written agreement of the
parties and the agency consenting to a suspension, fine or other
form of intermediate sanction.
(b) Any informal disposition of a contested case, other than an
informal disposition by default, must be in writing and signed by
the party or parties to the contested case. The agency shall
incorporate that disposition into a final order. An order under
this paragraph is not subject to ORS 183.470. The agency shall
deliver or mail a copy of the order to each party, or, if
applicable, to the party's attorney of record. An order that
incorporates the informal disposition is a final order in a
contested case, but is not subject to judicial review. A party
may petition the agency to set aside a final order that
incorporates the informal disposition on the ground that the
informal disposition was obtained by fraud or duress.
(6) An order adverse to a party may be issued upon default only
upon prima facie case made on the record of the agency. When an
order is effective only if a request for hearing is not made by
the party, the record may be made at the time of issuance of the
order, and if the order is based only on material included in the
application or other submissions of the party, the agency may so
certify and so notify the party, and such material shall
constitute the evidentiary record of the proceeding if hearing is
not requested.
(7) At the commencement of the hearing, the officer presiding
shall explain the issues involved in the hearing and the matters
that the parties must either prove or disprove.
(8) Testimony shall be taken upon oath or affirmation of the
witness from whom received. The officer presiding at the hearing
shall administer oaths or affirmations to witnesses.
(9) The officer presiding at the hearing shall place on the
record a statement of the substance of any written or oral ex
parte communications on a fact in issue made to the officer
during the pendency of the proceeding and notify the parties of
the communication and of their right to rebut such
communications. If an ex parte communication is made to a hearing
officer assigned from the Hearing Officer Panel established by
section 3, chapter 849, Oregon Laws 1999, the hearing officer
must comply with section 20, chapter 849, Oregon Laws 1999.
(10) The officer presiding at the hearing shall ensure that the
record developed at the hearing shows a full and fair inquiry
into the facts necessary for consideration of all issues properly
before the presiding officer in the case.
(11) The record in a contested case shall include:
(a) All pleadings, motions and intermediate rulings.
(b) Evidence received or considered.
(c) Stipulations.
(d) A statement of matters officially noticed.
(e) Questions and offers of proof, objections and rulings
thereon.
(f) A statement of any ex parte communications on a fact in
issue made to the officer presiding at the hearing.
(g) Proposed findings and exceptions.
(h) Any proposed, intermediate or final order prepared by the
agency or a hearing officer.
(12) A verbatim oral, written or mechanical record shall be
made of all motions, rulings and testimony. The record need not
be transcribed unless requested for purposes of rehearing or
court review. The agency may charge the party requesting
transcription the cost of a copy of transcription, unless the
party files an appropriate affidavit of indigency. However, upon
petition, a court having jurisdiction to review { - under ORS
183.480 - } { + an order + } may reduce or eliminate the charge
upon finding that it is equitable to do so, or that matters of
general interest would be determined by review of the order of
the agency.
SECTION 58. ORS 183.415, as amended by section 28, chapter 849,
Oregon Laws 1999, is amended to read:
183.415. (1) In a contested case, all parties shall be afforded
an opportunity for hearing after reasonable notice, served
personally or by registered or certified mail.
(2) The notice shall include:
(a) A statement of the party's right to hearing, or a statement
of the time and place of the hearing;
(b) A statement of the authority and jurisdiction under which
the hearing is to be held;
(c) A reference to the particular sections of the statutes and
rules involved; and
(d) A short and plain statement of the matters asserted or
charged.
(3) Parties may elect to be represented by counsel and to
respond and present evidence and argument on all issues involved.
(4) Agencies may adopt rules of procedure governing
participation in contested cases by persons appearing as limited
parties.
(5)(a) Unless precluded by law, informal disposition may be
made of any contested case by stipulation, agreed settlement,
consent order or default. Informal settlement may be made in
license revocation proceedings by written agreement of the
parties and the agency consenting to a suspension, fine or other
form of intermediate sanction.
(b) Any informal disposition of a contested case, other than an
informal disposition by default, must be in writing and signed by
the party or parties to the contested case. The agency shall
incorporate that disposition into a final order. An order under
this paragraph is not subject to ORS 183.470. The agency shall
deliver or mail a copy of the order to each party, or, if
applicable, to the party's attorney of record. An order that
incorporates the informal disposition is a final order in a
contested case, but is not subject to judicial review. A party
may petition the agency to set aside a final order that
incorporates the informal disposition on the ground that the
informal disposition was obtained by fraud or duress.
(6) An order adverse to a party may be issued upon default only
upon prima facie case made on the record of the agency. When an
order is effective only if a request for hearing is not made by
the party, the record may be made at the time of issuance of the
order, and if the order is based only on material included in the
application or other submissions of the party, the agency may so
certify and so notify the party, and such material shall
constitute the evidentiary record of the proceeding if hearing is
not requested.
(7) At the commencement of the hearing, the officer presiding
shall explain the issues involved in the hearing and the matters
that the parties must either prove or disprove.
(8) Testimony shall be taken upon oath or affirmation of the
witness from whom received. The officer presiding at the hearing
shall administer oaths or affirmations to witnesses.
(9) The officer presiding at the hearing shall place on the
record a statement of the substance of any written or oral ex
parte communications on a fact in issue made to the officer
during the pendency of the proceeding and notify the parties of
the communication and of their right to rebut such
communications.
(10) The officer presiding at the hearing shall ensure that the
record developed at the hearing shows a full and fair inquiry
into the facts necessary for consideration of all issues properly
before the presiding officer in the case.
(11) The record in a contested case shall include:
(a) All pleadings, motions and intermediate rulings.
(b) Evidence received or considered.
(c) Stipulations.
(d) A statement of matters officially noticed.
(e) Questions and offers of proof, objections and rulings
thereon.
(f) A statement of any ex parte communications on a fact in
issue made to the officer presiding at the hearing.
(g) Proposed findings and exceptions.
(h) Any proposed, intermediate or final order prepared by the
agency or a hearing officer.
(12) A verbatim oral, written or mechanical record shall be
made of all motions, rulings and testimony. The record need not
be transcribed unless requested for purposes of rehearing or
court review. The agency may charge the party requesting
transcription the cost of a copy of transcription, unless the
party files an appropriate affidavit of indigency. However, upon
petition, a court having jurisdiction to review { - under ORS
183.480 - } { + an order + } may reduce or eliminate the charge
upon finding that it is equitable to do so, or that matters of
general interest would be determined by review of the order of
the agency.
SECTION 59. ORS 183.480 is amended to read:
183.480. { - (1) Except as provided in ORS 183.415 (5)(b),
any person adversely affected or aggrieved by an order or any
party to an agency proceeding is entitled to judicial review of a
final order, whether such order is affirmative or negative in
form. A petition for rehearing or reconsideration need not be
filed as a condition of judicial review unless specifically
otherwise provided by statute or agency rule. - }
{ - (2) - } Judicial review of { - final orders of
agencies - } { + agency actions + } shall be solely as provided
by { - ORS 183.482, 183.484, 183.490 and 183.500 - } { +
sections 1 to 24 of this 2001 Act + }.
{ - (3) No action or suit shall be maintained as to the
validity of any agency order except a final order as provided in
this section and ORS 183.482, 183.484, 183.490 and 183.500 or
except upon showing that the agency is proceeding without
probable cause, or that the party will suffer substantial and
irreparable harm if interlocutory relief is not granted. - }
{ - (4) Judicial review of orders issued pursuant to ORS
813.410 shall be as provided by ORS 813.410. - }
SECTION 60. ORS 183.538 is amended to read:
183.538. (1) Notwithstanding ORS 183.335 (11) { - , 183.400
(4) - } { + or section 17 (2) of this 2001 Act + } or any other
provision of law, the failure to prepare a housing cost impact
statement shall not affect the validity or effective date of any
rule or ordinance or any amendment to a rule or ordinance.
(2) If a rule or ordinance or any amendment to a rule or
ordinance is challenged based on the failure to prepare a housing
cost impact statement, the court or other reviewing authority
shall remand the proposed rule or ordinance or any amendment to a
rule or ordinance to the adopting or repealing entity if it
determines that a housing cost impact statement is required.
(3) The court or other reviewing authority shall determine only
whether a housing cost impact statement was prepared and shall
not make any determination as to the sufficiency of the housing
cost impact statement.
SECTION 61. ORS 196.115 is amended to read:
196.115. (1) For purposes of judicial review, decisions of the
Columbia River Gorge Commission shall be subject to review solely
as provided in this section, except as otherwise provided by the
Columbia River Gorge National Scenic Area Act, P.L. 99-663.
(2)(a) A final action or order by the commission in a review or
appeal of any action of the commission pursuant to section 10(c)
or 15(b)(4) of the Columbia River Gorge National Scenic Area Act,
or a final action or order by the commission in a review or
appeal of any action of a county pursuant to section 15(a)(2) or
15(b)(4) of the Columbia River Gorge National Scenic Area Act,
shall be reviewed by the Court of Appeals on a { - petition for
judicial review - } { + notice of appeal + } filed and served
as provided in subsections (3) and (4) of this section and
{ - ORS 183.482 - } { + as provided for orders in contested
case proceedings in sections 1 to 24 of this 2001 Act + }.
(b) On a { - petition for judicial review - } { + notice of
appeal + } under paragraph (a) of this subsection the Court of
Appeals also shall review the action of the county that is the
subject of the commission's order, if requested in the
{ - petition - } { + notice + }.
(c) The Court of Appeals shall issue a final order on review
under this subsection within the time limits provided by ORS
197.855.
(d) In lieu of judicial review under paragraphs (a) and (b) of
this subsection, a county action may be appealed to the Land Use
Board of Appeals under ORS 197.805 to 197.855. A notice of intent
to appeal the county's action shall be filed not later than 21
days after the commission's order on the county action becomes
final.
(e) Notwithstanding ORS 197.835, the scope of review in an
appeal pursuant to paragraph (d) of this subsection shall not
include any issue relating to interpretation or implementation of
the Columbia River Gorge National Scenic Area Act, P.L. 99-663,
and any issue related to such interpretation or implementation
shall be waived by the filing of an appeal under paragraph (d) of
this subsection.
(f) After county land use ordinances are approved pursuant to
sections 7(b) and 8(h) to (k) of the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, the Land Use Board of
Appeals shall not review land use decisions within the general
management area or special management area for compliance with
the statewide planning goals. The limitation of this paragraph
shall not apply if the Land Conservation and Development
Commission decertifies the management plan pursuant to ORS
196.107.
(3)(a) If a { - petition for judicial review - } { + notice
of appeal + } of a commission order is filed pursuant to
subsection (2)(a) of this section, the procedures to be followed
by the parties, the commission and the court, and the court's
review, shall be in
{ - accordance with ORS 183.480, 183.482 (1) to (7), 183.485,
183.486, 183.490 and 183.497 - } { + the manner provided for
the review of contested case orders in sections 1 to 24 of this
2001 Act + }, except as this section or the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, otherwise provides.
{ - (b) Notwithstanding any provision of ORS 183.482: - }
{ - (A) The commission shall transmit the original record or
the certified copy of the entire record within 21 days after
service of a petition for judicial review is served on the
commission; and - }
{ - (B) The parties shall file briefs with the court within
the times allowed by rules of the court. - }
{ - (c) The court may affirm, reverse or remand the order. If
the court finds that the agency has erroneously interpreted a
provision of law and that a correct interpretation compels a
particular action, the court shall: - }
{ - (A) Set aside or modify the order; or - }
{ - (B) Remand the case to the agency for further action
under a correct interpretation of the provision of law. - }
{ - (d) The court shall remand the order to the agency if the
court finds the agency's exercise of discretion to be: - }
{ - (A) Outside the range of discretion delegated to the
agency by law; - }
{ - (B) Inconsistent with an agency rule, an officially
stated agency position or a prior agency practice, unless the
inconsistency is explained by the agency; or - }
{ - (C) Otherwise in violation of a constitutional or
statutory provision. - }
{ - (e) The court shall set aside or remand the order if the
court finds that the order is not supported by substantial
evidence in the whole record. - }
{ - (f) - } { + (b) + } Notwithstanding any other provision
of this section { + or sections 1 to 24 of this 2001 Act + },
in any case where review of a county action as well as a
commission order is sought pursuant to subsection (2)(a) and (b)
of this section, the court shall accept any findings of fact by
the commission which the court finds to be supported by
substantial evidence in the whole record, and such findings by
the commission shall prevail over any findings by the county
concerning the same or substantially the same facts.
(4)(a) Except as otherwise provided by this section or the
Columbia River Gorge National Scenic Area Act, P.L. 99-663, if
review of a county action is sought pursuant to subsection (2)(b)
of this section, the procedures to be followed by the parties,
the county and the court, and the court's review, shall be in
accordance with those provisions governing review of county land
use decisions by the Land Use Board of Appeals set forth in ORS
197.830 (2) to (8), (10), (15) and (16) and 197.835 (2) to (10),
(12) and (13). As used in this section, 'board' as used in the
enumerated provisions shall mean 'court' and the term 'notice of
intent to appeal' in ORS 197.830 (10) shall refer to the
{ - petition - } { + notice + } described in subsection (2)
of this section.
(b) In addition to the other requirements of service under this
section, the { - petitioner - } { + appellant + } shall serve
the
{ - petition - } { + notice + } upon the persons and bodies
described in ORS 197.830 (9), as a prerequisite to judicial
review of the county action.
(c) { - In accordance with subsection (3)(b)(B) of this
section, - } A party to a review of both a commission order and
a county action shall file only one brief with the court, which
shall address both the commission order and the county action.
(d) Review of a decision under ORS 197.830 to 197.845 shall be
confined to the record. Subject to subsection { - (3)(f) - }
{ + (3)(b) + } of this section, the court shall be bound by any
finding of fact of the county for which there is substantial
evidence in the whole record. The court may appoint a master
{ - and follow the procedures of ORS 183.482 (7) - } in
connection with matters that the board may take evidence for
under ORS 197.835 (2).
(5) Approval of county land use ordinances by the commission
pursuant to section 7 of the Columbia River Gorge National Scenic
Area Act, P.L. 99-663, may be reviewed by the Court of Appeals
{ - as provided in ORS 183.482 - } { + in the manner provided
for review of contested case orders in sections 1 to 24 of this
2001 Act + }.
(6) Notwithstanding { - ORS 183.484 - } { + section 13 of
this 2001 Act + }, any proceeding filed in circuit court by or
against the commission shall be filed with the circuit court for
the county in which the commission has a principal business
office or in which the land involved in the proceeding is
located.
SECTION 62. ORS 196.686 is amended to read:
196.686. (1) For the purposes of this section, an acknowledged
estuary management plan includes the comprehensive plan and land
use regulations adopted by cities and counties to satisfy the
requirement of statewide planning goals related to estuarine
resources including shoreland portions of estuarine sites
designated for development as those plans and regulations existed
on January 1, 1989.
(2) Any city or county may submit an acknowledged estuary
management plan for review and approval by the Division of State
Lands pursuant to the provisions of this section. The plan shall
be submitted with a written request for review.
(3) To allow timely and effective review of acknowledged
estuary management plans, the division may limit acceptance for
review to two plans but not more than one plan for a deep draft
development estuary at any one time.
(4) With the consent of the city or county submitting an
estuary management plan for review and approval, the division may
extend any or all of the deadlines set forth in this section.
(5) Acknowledged estuary management plans shall be presumed to
comply with requirements for approval of wetland conservation
plans specified in ORS 196.681.
(6) Within 10 days of acceptance of a request for review, the
division shall provide notice to affected state agencies, local
governments, federal agencies and the public of receipt of the
acknowledged estuary management plan and of the request for
review and approval of the acknowledged estuary management plan
as a wetland conservation plan.
(7) Within 30 days of acceptance of a request for review and
upon provision of at least two weeks' notice, the division shall
hold a public informational hearing on the proposed approval of
the acknowledged estuary management plan as a wetland
conservation plan.
(8) Within 60 days of acceptance of the request for review, the
division shall conduct a preliminary review of the acknowledged
estuary management plan. The division shall consult with the
affected local government prior to finalizing the preliminary
review.
(9) Except as provided in subsection (10) of this section, the
Director of the Division of State Lands shall approve the
acknowledged estuary management plan by order within 60 days of
completion of the preliminary review.
(10) A contested case hearing shall be held within 30 days of
the completion of the preliminary review or receipt of a request
for hearing if:
(a) The director determines there is probable cause to believe
that the estuary management plan does not meet the standards for
approving wetland conservation plans or unreasonably interferes
with the use of the estuary for navigation, fisheries or public
recreation; or
(b) A hearing is requested and the request:
(A) Is made in writing within 60 days of the date of mailing of
notice of completion of review;
(B) Clearly states the reasons for requesting the hearing; and
(C) Provides sufficient information for the director to
determine that there is probable cause to believe that the
estuary management plan does not meet the standards for approving
wetland conservation plans or unreasonably interferes with the
use of the estuary for navigation, fisheries or public
recreation.
(11) The director shall approve the acknowledged estuary
management plan as a wetland conservation plan by order unless
the director finds by a preponderance of the evidence that the
estuary management plan does not meet the standards for approving
wetland conservation plans or unreasonably interferes with the
use of the estuary for navigation, fisheries or public recreation
or that substantial fills proposed in an estuary management plan
for nonwater dependent use are not for a public use and would not
satisfy a public need that outweighs harm to navigation,
fisheries or public recreation.
(12) The director shall prepare a proposed order for review by
the parties within 30 days of any contested case hearing held
pursuant to subsection (10) of this section.
(13) A final order from the director that recommends, pursuant
to subsection (8) of this section, denial of an estuary
management plan as a wetland conservation plan shall identify
deficient elements and provisions of the acknowledged estuary
management plan and what measures may be taken to correct those
deficiencies.
(14) Individual permit applications shall be required for
removal or fill, or both, in areas subject to an approved estuary
management plan. Individual permit applications shall be reviewed
in accordance with ORS 196.815, 196.825 (5) and (6), 196.830 and
196.835. In lieu of the substantive standards for permit issuance
in ORS 196.815 (1) and 196.825 (1), (2) and (3), the division
shall issue a permit if the removal or fill, or both, is
determined by the director to be consistent with the estuary
management plan or can be conditioned to be consistent with the
plan. The division shall condition any such permit as necessary
to insure that the project:
(a) Is designed or configured to minimize alterations to waters
of the state;
(b) Is the minimum size necessary to reasonably provide for the
proposed use;
(c) Is consistent with the resource capabilities of the area
and the purposes of the management unit, unless this has been
previously determined in the approved estuary management plan;
(d) Is designed to minimize impacts from implementing the
project; and
(e) Has estuarine resource replacement measures for creation,
restoration or enhancement that replaces impacted resources.
(15) Judicial review of an order granting or denying approval
of an estuary management plan as provided in this section shall
be as provided { - in ORS 183.470 - } { + for contested cases
in sections 1 to 24 of this 2001 Act + }.
(16) Following approval by the director of an estuary
management plan, the requirements of ORS 196.684 shall apply to
the approved estuary management plan.
SECTION 63. ORS 196.825 is amended to read:
196.825. (1) The Director of the Division of State Lands shall
issue a permit to remove material from the beds or banks of any
waters of this state applied for under ORS 196.815 if the
director determines that the removal described in the application
will not be inconsistent with the protection, conservation and
best use of the water resources of this state as specified in ORS
196.805.
(2) The director shall issue a permit applied for under ORS
196.815 for filling waters of this state if the director
determines that the proposed fill would not unreasonably
interfere with the paramount policy of this state to preserve the
use of its waters for navigation, fishing and public recreation.
(3) In determining whether or not a permit shall be issued, the
director shall consider all of the following:
(a) The public need for the proposed fill and the social,
economic or other public benefits likely to result from the
proposed fill. When the applicant for a fill permit is a public
body, the director may accept and rely upon the public body's
findings as to local public need and local public benefit.
(b) The economic cost to the public if the proposed fill is not
accomplished.
(c) The availability of alternatives to the project for which
the fill is proposed.
(d) The availability of alternative sites for the proposed
fill.
(e) Whether the proposed fill conforms to sound policies of
conservation and would not interfere with public health and
safety.
(f) Whether the proposed fill is in conformance with existing
public uses of the waters and with uses designated for adjacent
land in an acknowledged comprehensive plan and zoning ordinances.
(g) Whether the proposed fill is compatible with the
acknowledged comprehensive plan and land use regulations for the
area where the proposed fill is to take place.
(h) Whether the proposed fill is for streambank protection.
(4) The director may issue a permit for a substantial fill in
an estuary for a nonwater dependent use only if the fill is for a
public use and would satisfy a public need that outweighs harm to
navigation, fishery and recreation and if the proposed fill meets
all other criteria contained in ORS 196.600 to 196.905.
(5) If the director issues a permit, the director may impose
such conditions as the director considers necessary to carry out
the purposes of ORS 196.805, 196.830 and subsections (1) and (2)
of this section. In formulating such conditions the director may
consult with the State Geologist, the State Fish and Wildlife
Director, the State Forester, the Director of the Department of
Environmental Quality, the administrative officer of the Soil and
Water Conservation Commission, the Director of Agriculture, the
State Parks and Recreation Director, the State Marine Director,
the Director of Transportation, the Director of the Economic and
Community Development Department, the Water Resources Director
and affected local governmental units. Each permit is valid only
for the time specified therein. Obtaining a lease from the
Division of State Lands shall not be one of the conditions to be
considered in granting a permit under ORS 196.815. The director
shall impose, as conditions to any permit, general authorization
or wetland conservation plan, measures to provide mitigation for
the reasonably expected adverse impacts from project development.
Compensatory wetland mitigation shall be limited to replacement
of the functional attributes of the lost wetland.
(6) Any applicant whose application for a permit has been
denied, or who objects to any of the conditions imposed under
subsections (1), (2) and (5) of this section by the director,
may, within 10 days of the denial of the permit or the imposition
of any condition, request a hearing from the director. Thereupon
the director shall set the matter down for hearing, which shall
be conducted as a contested case in accordance with ORS 183.415
to 183.430, 183.440 to 183.460 and 183.470. After such hearing,
the director shall enter an order containing findings of fact and
conclusions of law. The order shall rescind, affirm or modify the
director's initial order. Appeals from the director's final order
may be taken { - to the Court of Appeals in the manner provided
by ORS 183.482 - } { + in the manner provided for contested
case orders in sections 1 to 24 of this 2001 Act + }.
(7) Except for a permit issued under the process set forth in
ORS 517.952 to 517.989, if a decision on issuance of a permit by
the director is delayed for a period exceeding 90 days from the
date of application, a temporary permit shall be issued pending
such final decision.
(8) Permits issued under this section shall be in lieu of any
permit that might be required for the same operation under ORS
164.775, 164.785, 468.010, 468.030 to 468.045, 468.055, 468.060,
468.075, 468.110, 468.120, 468B.005 to 468B.030 and 468B.048 to
468B.085, so long as:
(a) The operation is that for which the permit is issued; and
(b) The standards for granting such permits are substantially
the same as those established pursuant to ORS 164.775, 164.785,
468.010, 468.035, 468.040, 468.055, 468.110, 468.120, 468B.005 to
468B.030 and 468B.048 to 468B.085 to the extent they affect water
quality.
(9)(a) Any agency or other unit of government requested by the
director to comment on an application for a permit under this
section must submit its comments to the director within 45 days
after receiving the request for comment. If an agency or other
unit of government fails to comment on the application within 45
days, the director shall assume the agency or other unit of
government has no objection and shall approve or deny the
application.
(b) Notwithstanding paragraph (a) of this subsection, the
Department of Environmental Quality shall comment to the director
within 75 days after receiving notice required under subsection
(5) of this section unless the director has granted an extension
of time. In no case shall the director grant an extension of time
in excess of one year.
(c) The Department of Environmental Quality shall not
subsequently make comments under the Federal Water Pollution
Control Act that differ from those comments made under paragraph
(b) of this subsection without good cause and without providing
the director of the division with notice before providing those
comments.
SECTION 64. ORS 196.835 is amended to read:
196.835. Any person aggrieved or adversely affected by the
grant of a permit by the Director of the Division of State Lands
may file a written request for hearing with the director within
60 days after the date the permit was granted. If the director
finds that the person making the written request has a legally
protected interest which is adversely affected by the grant of
the permit, the director shall set the matter down for hearing
within 30 days after receipt of the request. The hearing shall be
conducted as a contested case in accordance with ORS 183.415 to
183.430, 183.440 to 183.460 and 183.470. The permittee shall be a
party to the proceeding. Within 45 days of the hearing the
director shall enter an order containing findings of fact and
conclusions of law. The order shall rescind, affirm or modify the
director's original order. Appeals from the director's final
order may be taken { - to the Court of Appeals in the manner
provided by ORS 183.482 - } { + in the manner provided for
contested case orders in sections 1 to 24 of this 2001 Act + }. A
permit to fill granted by the director may be suspended by the
director during the pendency of the proceedings before the
director and any appeal. The director shall not suspend the
permit unless the person aggrieved or adversely affected by grant
of permit makes a showing before the director by clear and
convincing evidence that commencement or continuation of the fill
would cause irremediable damage and would be inconsistent with
ORS 196.600 to 196.905.
SECTION 65. ORS 196.850 is amended to read:
196.850. (1) Notwithstanding ORS 196.810, the Division of State
Lands may, by rule, grant general authorization for removal of
material from the bed or banks or the filling of any waters of
the state without a permit from the division if the division
finds that those activities subject to the general authorization
are substantially similar in nature and would cause only minimal
individual and cumulative environmental impacts, and would not
result in long-term harm to water resources of the state. The
division shall condition any such general authorization upon
actions necessary to minimize environmental impacts.
(2) The division shall provide notice of any proposed general
authorization to affected federal and state agencies, local
governments and the public. The notice shall include:
(a) A clear description of the proposal; and
(b) Draft findings and any proposed conditions pursuant to
subsection (1) of this section.
(3) Any person proposing to conduct an action under a general
authorization shall notify the division in writing prior to
conducting such action.
(4) The division shall amend or rescind any general
authorization upon a determination that the activities conducted
under the authorization have resulted in or would result in more
than minimal environmental impacts or long-term harm to the water
resources of this state.
(5) The division shall review each general authorization
adopted pursuant to this section every five years. The review
shall include public notice and opportunity for public hearing.
After such review, the division may either modify, reissue or
rescind the general authorization.
(6) In addition to the grounds for review set forth in
{ - ORS 183.400 (4) - } { + section 17 of this 2001 Act + },
on judicial review of the validity of a rule adopted under this
section, the rule shall be reviewable for substantial evidence in
the rulemaking record. The record shall include copies of all
documents before the agency relevant to whether the requirement
of subsection (1) of this section has been met.
SECTION 66. ORS 196.860 is amended to read:
196.860. (1) If the Director of the Division of State Lands
determines that material is being removed from or filling is
occurring in any of the waters of this state without a permit
issued under ORS 196.825, or in a manner contrary to the
conditions set out in the permit, or in a manner contrary to the
conditions set out in an order approving a wetlands conservation
plan, the director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 196.600 to 196.905, as soon as possible.
(b) For the purpose of investigating conditions relating to
such removal or filling, through the employees or the duly
authorized representatives of the Division of State Lands, enter
at reasonable times upon any private or public property.
(c) Conduct public hearings in accordance with ORS 183.310 to
183.550.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the
correction of conditions or violations of ORS 196.600 to 196.905.
(e) Give notice of any proposed order relating to a violation
by personal service or by mailing the notice by registered or
certified mail to the person or governmental body affected. Any
person aggrieved by a proposed order of the director may request
a hearing within 20 days of the date of personal service or
mailing of the notice. Hearings shall be conducted under the
provisions of ORS 183.310 to 183.550 applicable to contested
cases, and judicial review of final orders shall be conducted in
{ - the Court of Appeals according to ORS 183.482 - } { + the
manner provided for contested case orders in sections 1 to 24 of
this 2001 Act + }. If no hearing is requested or if the party
fails to appear, a final order shall be issued upon a prima facie
case on the record of the agency.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 196.600 to 196.905 or of any
rule or final order of the director under ORS 196.600 to 196.905
may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon; and in any such proceedings the
director may seek and the court may award a sum of money
sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or
recreation resulting from such violation. Proceedings thus
brought by the director shall set forth if applicable the dates
of notice and hearing and the specific rule or order of the
director, together with the facts of noncompliance, the facts
giving rise to the public nuisance, and a statement of the
damages to any public right of navigation, fishery or recreation,
if any, resulting from such violation.
(2) In addition to the administrative action the director may
take under subsection (1) of this section, the director may enter
an order requiring any person to cease and desist from any
violation if the director determines that such violation presents
an imminent and substantial risk of injury, loss or damage to
water resources.
(a) An order under this subsection:
(A) May be entered without prior notice or hearing.
(B) Shall be served upon the person by personal service or by
registered or certified mail.
(C) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the
order within 10 days after receipt of the order.
(D) Shall not be stayed during the pendency of a hearing
conducted under paragraph (b) of this subsection.
(b) If a person subject to an order under this subsection files
a timely demand for hearing, the director shall hold a contested
case hearing according to the applicable provisions of ORS
183.310 to 183.550. If the person fails to request a hearing, the
order shall be entered as a final order upon prima facie case
made on the record of the agency.
(c) Neither the director nor any duly authorized representative
of the division shall be liable for any damages a person may
sustain as a result of a cease and desist order issued under this
subsection.
(d) The state and local police shall cooperate in the
enforcement of any order issued under this subsection and shall
require no further authority or warrant in executing or enforcing
such order. If any person fails to comply with an order issued
under this subsection, the circuit court of the county in which
the violation occurred or is threatened shall compel compliance
with the director's order in the same manner as with an order of
that court.
(3) As used in this section, 'violation' means removing
material from or placing fill in, any of the waters of this state
without a permit or in a manner contrary to the conditions set
out in a permit issued under ORS 196.825.
SECTION 67. ORS 197.328 is amended to read:
197.328. If a proceeding is initiated under ORS 197.324, the
following procedures apply:
(1) The Land Conservation and Development Commission shall hold
a hearing to consider the petition or shall appoint a hearings
officer to consider the petition under the provisions of ORS
{ - 183.310 to 183.550 - } { + 183.413 to 183.470 + }
applicable to contested cases, except as otherwise provided in
this section.
(2) The commission or hearings officer shall schedule a hearing
within 45 days of receipt of the petition.
(3) If the commission appoints a hearings officer, the hearings
officer shall prepare a proposed order, including recommended
findings and conclusions of law. The proposed order shall be
served on the Department of Land Conservation and Development and
all parties to the hearing within 30 days of the date the record
closed.
(4) If the commission appoints a hearings officer, the
commission review of the proposed order shall be limited to the
record of proceedings before the hearings officer. In its review
of a proposed order, the commission shall not receive new
evidence but shall hear arguments as to the proposed order and
any exceptions. Any exception to the proposed order shall be
filed with the commission no later than 15 days following
issuance of the proposed order.
(5) The commission shall adopt a final order relative to a
petition no later than 120 days from the date the petition was
filed.
SECTION 68. ORS 197.335 is amended to read:
197.335. (1) An order issued under ORS 197.328 and the copy of
the order mailed to the local government, state agency or special
district shall set forth:
(a) The nature of the noncompliance, including, but not limited
to, the contents of the comprehensive plan or land use
regulation, if any, of a local government that do not comply with
the goals or the contents of a plan, program or regulation
affecting land use adopted by a state agency or special district
that do not comply with the goals. In the case of a pattern or
practice of decision-making which violates the goals,
comprehensive plan or land use regulations, the order shall
specify the decision-making which constitutes the pattern or
practice, including specific provisions the Land Conservation and
Development Commission believes are being misapplied;
(b) The specific lands, if any, within a local government for
which the existing plan or land use regulation, if any, does not
comply with the goals; and
(c) The corrective action decided upon by the commission,
including the specific requirements, with which the local
government, state agency or special district must comply. In the
case of a pattern or practice of decision-making that violates an
acknowledged comprehensive plan or land use regulation, the
commission may require revisions to the comprehensive plan, land
use regulations or local procedures which the commission believes
are necessary to correct the pattern or practice. Notwithstanding
the provisions of this section, except as provided in subsection
(3)(c) of this section, an enforcement order does not affect:
(A) Land use applications filed with a local government prior
to the date of adoption of the enforcement order unless
specifically identified by the order;
(B) Land use approvals issued by a local government prior to
the date of adoption of the enforcement order; or
(C) The time limit for exercising land use approvals issued by
a local government prior to the date of adoption of the
enforcement order.
(2) Judicial review of a final order of the commission shall be
{ - governed by the provisions of ORS 183.310 to 183.550
applicable to contested cases - } { + conducted in the manner
provided for contested case orders in sections 1 to 24 of this
2001 Act + } except as otherwise stated in this section. The
commission's final order shall include a clear statement of
findings { - which - } { + that + } set forth the basis for
the order. { - Where a petition to review the order has been
filed in the Court of Appeals, the commission shall transmit to
the court the entire administrative record of the proceeding
under review. Notwithstanding ORS 183.482 (3) relating to a stay
of enforcement of an agency order, an appellate court, before it
may stay an order of the commission, shall give due consideration
to the public interest in the continued enforcement of the
commission's order and may consider testimony or affidavits
thereon. Upon review, an appellate court may affirm, reverse,
modify or remand the order. The court shall reverse, modify or
remand the order only if it finds: - }
{ - (a) The order to be unlawful in substance or procedure,
but error in procedure shall not be cause for reversal,
modification or remand unless the court shall find that
substantial rights of any party were prejudiced thereby; - }
{ - (b) The order to be unconstitutional; - }
{ - (c) The order is invalid because it exceeds the statutory
authority of the agency; or - }
{ - (d) The order is not supported by substantial evidence in
the whole record. - }
(3)(a) If the commission finds that in the interim period
during which a local government, state agency or special district
would be bringing itself into compliance with the commission's
order under ORS 197.320 or subsection (2) of this section it
would be contrary to the public interest in the conservation or
sound development of land to allow the continuation of some or
all categories of land use decisions or limited land use
decisions, it shall, as part of its order, limit, prohibit or
require the approval by the local government of applications for
subdivisions, partitions, building permits, limited land use
decisions or land use decisions until the plan, land use
regulation or subsequent land use decisions and limited land use
decisions are brought into compliance. The commission may issue
an order that requires review of local decisions by a hearings
officer or the Department of Land Conservation and Development
before the local decision becomes final.
(b) Any requirement under this subsection may be imposed only
if the commission finds that the activity, if continued,
aggravates the goal, comprehensive plan or land use regulation
violation and that the requirement is necessary to correct the
violation.
(c) The limitations on enforcement orders under subsection
(1)(c)(B) of this section shall not be interpreted to affect the
commission's authority to limit, prohibit or require application
of specified criteria to subsequent land use decisions involving
land use approvals issued by a local government prior to the date
of adoption of the enforcement order.
(4) As part of its order under ORS 197.320 or subsection (2) of
this section, the commission may withhold grant funds from the
local government to which the order is directed. As part of an
order issued under this section, the commission may notify the
officer responsible for disbursing state-shared revenues to
withhold that portion of state-shared revenues to which the local
government is entitled under ORS 221.770, 323.455, 366.525 and
366.800 and ORS chapter 471 which represents the amount of state
planning grant moneys previously provided the local government by
the commission. The officer responsible for disbursing
state-shared revenues shall withhold state-shared revenues as
outlined in this section and shall release funds to the local
government or department when notified to so do by the commission
or its designee. The commission may retain a portion of the
withheld revenues to cover costs of providing services incurred
under the order, including use of a hearings officer or staff
resources to monitor land use decisions and limited land use
decisions or conduct hearings. The remainder of the funds
withheld under this provision shall be released to the local
government upon completion of requirements of the commission
order.
(5)(a) As part of its order under this section, the commission
may notify the officer responsible for disbursing funds from any
grant or loan made by a state agency to withhold such funds from
a special district to which the order is directed. The officer
responsible for disbursing funds shall withhold funds as outlined
in this section and shall release funds to the special district
or department when notified to do so by the commission.
(b) The commission may retain a portion of the funds withheld
to cover costs of providing services incurred under the order,
including use of a hearings officer or staff resources to monitor
land use decisions and limited land use decisions or conduct
hearings. The remainder of the funds withheld under this
provision shall be released to the special district upon
completion of the requirements of the commission order.
(6) The commission may institute actions or proceedings for
legal or equitable remedies in the Circuit Court for Marion
County or in the circuit court for the county to which the
commission's order is directed or within which all or a portion
of the applicable city is located to enforce compliance with the
provisions of any order issued under this section or to restrain
violations thereof. Such actions or proceedings may be instituted
without the necessity of prior agency notice, hearing and order
on an alleged violation.
SECTION 69. ORS 197.650 is amended to read:
197.650. (1) A Land Conservation and Development Commission
order may be appealed to the Court of Appeals in the manner
provided { - in ORS 183.482 by the following persons - } { +
for contested case orders in sections 1 to 24 of this 2001 Act.
Notwithstanding section 7 of this 2001 Act, the following persons
may file a notice of appeal or a petition to intervene in the
proceedings + }:
(a) Persons who submitted comments or objections pursuant to
ORS 197.251 (2) or proceedings under ORS 197.633, 197.636 or
197.644 and are appealing a commission order issued under ORS
197.251 or 197.633, 197.636 or 197.644;
(b) Persons who submitted comments or objections pursuant to
procedures adopted by the commission for certification of state
agency coordination programs and are appealing a certification
issued under ORS 197.180 (6);
(c) Persons who petitioned the commission for an order under
ORS 197.324 and whose petition was dismissed; or
(d) Persons who submitted oral or written testimony in a
proceeding before the commission pursuant to ORS 215.780.
(2) Notwithstanding { - ORS 183.482 (2) - } { + section 4
of this 2001 Act + } relating to contents of the
{ - petition - } { + notice of appeal + }, the
{ - petition - } { + notice + } shall state the nature of the
order { - petitioner - } { + the appellant + } desires
reviewed and whether the { - petitioner - } { + appellant + }
submitted comments or objections as provided in ORS 197.251 (2)
or pursuant to ORS 197.633, 197.636 or 197.644.
(3) Notwithstanding { - ORS 183.482 (2) - } { + section 4
of this 2001 Act + } relating to service of the
{ - petition - } { + notice of appeal + }, copies of the
{ - petition - } { + notice + } shall be served by registered
or certified mail upon the Department of Land Conservation and
Development, the local government and all persons who filed
comments or objections.
SECTION 70. ORS 197.810 is amended to read:
197.810. (1) There is hereby created a Land Use Board of
Appeals consisting of not more than three positions. Board
members shall be appointed by the Governor subject to
confirmation by the Senate in the manner provided in ORS 171.562
and 171.565. The board shall consist of a board chairperson
chosen by the board members and such other board members as the
Governor considers necessary. The members of the board shall
serve terms of four years. A member is eligible for
reappointment. The salaries of the members shall be fixed by the
Governor unless otherwise provided for by law. The salary of a
member of the board shall not be reduced during the period of
service of the member.
(2) The Governor may at any time remove any member of the board
for inefficiency, incompetence, neglect of duty, malfeasance in
office or unfitness to render effective service. Before such
removal the Governor shall give the member a copy of the charges
against the member and shall fix the time when the member can be
heard in defense against the charges, which shall not be less
than 10 days thereafter. The hearing shall be open to the public
and shall be conducted in the same manner as a contested case
under ORS 183.310 to 183.550. The decision of the Governor to
remove a member of the board shall be subject to judicial review
in the same manner as provided for review of contested
{ - cases under ORS 183.480 to 183.550 - } { + case orders in
sections 1 to 24 of this 2001 Act + }.
(3) Board members appointed under subsection (1) of this
section shall be members in good standing of the Oregon State
Bar.
SECTION 71. ORS 197.825 is amended to read:
197.825. (1) Except as provided in ORS 197.320 and subsections
(2) and (3) of this section, the Land Use Board of Appeals shall
have exclusive jurisdiction to review any land use decision or
limited land use decision of a local government, special district
or a state agency in the manner provided in ORS 197.830 to
197.845.
(2) The jurisdiction of the board:
(a) Is limited to those cases in which the petitioner has
exhausted all remedies available by right before petitioning the
board for review;
(b) Is subject to the provisions of ORS 197.850 relating to
judicial review by the Court of Appeals;
(c) Does not include those matters over which the Department of
Land Conservation and Development or the Land Conservation and
Development Commission has review authority under ORS 197.251,
197.430, 197.445, 197.450, 197.455 and 197.628 to 197.650;
(d) Does not include those land use decisions of a state agency
over which the Court of Appeals has jurisdiction for initial
judicial review under { - ORS 183.400, 183.482 - }
{ + section 11 of this 2001 Act + } or other statutory
provisions;
(e) Does not include any rules, programs, decisions,
determinations or activities carried out under ORS 527.610 to
527.770, 527.990 (1) and 527.992;
(f) Is subject to ORS 196.115 for any county land use decision
that may be reviewed by the Columbia River Gorge Commission
pursuant to sections 10(c) or 15(a)(2) of the Columbia River
Gorge National Scenic Area Act, P.L. 99-663; and
(g) Does not include review of expedited land divisions under
ORS 197.360.
(3) Notwithstanding subsection (1) of this section, the circuit
courts of this state retain jurisdiction:
(a) To grant declaratory, injunctive or mandatory relief in
proceedings arising from decisions described in ORS 197.015
(10)(b) or proceedings brought to enforce the provisions of an
adopted comprehensive plan or land use regulations; and
(b) To enforce orders of the board in appropriate proceedings
brought by the board or a party to the board proceeding resulting
in the order.
SECTION 72. ORS 197.850 is amended to read:
197.850. (1) Any party to a proceeding before the Land Use
Board of Appeals under ORS 197.830 to 197.845 may seek judicial
review of a final order issued in those proceedings.
(2) Notwithstanding the provisions of { - ORS 183.480 to
183.550 - } { + sections 1 to 24 of this 2001 Act + }, judicial
review of orders issued under ORS 197.830 to 197.845 shall be
solely as provided in this section.
(3)(a) Jurisdiction for judicial review of proceedings under
ORS 197.830 to 197.845 is conferred upon the Court of Appeals.
Proceedings for judicial review shall be instituted by filing a
petition in the Court of Appeals. The petition shall be filed
within 21 days following the date the board delivered or mailed
the order upon which the petition is based.
(b) Filing of the petition, as set forth in paragraph (a) of
this subsection, and service of a petition on all persons
identified in the petition as adverse parties of record in the
board proceeding is jurisdictional and may not be waived or
extended.
(4) The petition shall state the nature of the order the
petitioner desires reviewed. Copies of the petition shall be
served by registered or certified mail upon the board, and all
other parties of record in the board proceeding.
(5) Within seven days after service of the petition, the board
shall transmit to the court the original or a certified copy of
the entire record of the proceeding under review, but, by
stipulation of all parties to the review proceeding, the record
may be shortened. Any party unreasonably refusing to stipulate to
limit the record may be taxed by the court for the additional
costs. The court may require or permit subsequent corrections or
additions to the record when deemed desirable. Except as
specifically provided in this subsection, the cost of the record
shall not be taxed to the petitioner or any intervening party.
However, the court may tax such costs and the cost of
transcription of record to a party filing a frivolous petition
for judicial review.
(6) Petitions and briefs shall be filed within time periods and
in a manner established by the Court of Appeals by rule.
(7)(a) The court shall hear oral argument within 49 days of the
date of transmittal of the record.
(b) The court may hear oral argument more than 49 days from the
date of transmittal of the record provided the court determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. The court shall not hold oral argument more than 49 days
from the date of transmittal of the record because of general
congestion of the court calendar or lack of diligent preparation
or attention to the case by any member of the court or any party.
(c) The court shall set forth in writing a determination to
hear oral argument more than 49 days from the date the record is
transmitted, together with the reasons for its determination, and
shall provide a copy to the parties. The court shall schedule
oral argument as soon as practicable thereafter.
(d) In making a determination under paragraph (b) of this
subsection, the court shall consider:
(A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the court to prepare for oral argument;
and
(B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
(8) Judicial review of an order issued under ORS 197.830 to
197.845 shall be confined to the record. The court shall not
substitute its judgment for that of the board as to any issue of
fact.
(9) The court may affirm, reverse or remand the order. The
court shall reverse or remand the order only if it finds:
(a) The order to be unlawful in substance or procedure, but
error in procedure shall not be cause for reversal or remand
unless the court shall find that substantial rights of the
petitioner were prejudiced thereby;
(b) The order to be unconstitutional; or
(c) The order is not supported by substantial evidence in the
whole record as to facts found by the board under ORS 197.835
(2).
(10) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
(11) If the order of the board is remanded by the Court of
Appeals or the Supreme Court, the board shall respond to the
court's appellate judgment within 30 days.
(12) A party shall file with the board an undertaking with one
or more sureties insuring that the party will pay all costs,
disbursements and attorney fees awarded against the party by the
Court of Appeals if:
(a) The party appealed a decision of the board to the Court of
Appeals; and
(b) In making the decision being appealed to the Court of
Appeals, the board awarded attorney fees and expenses against
that party under ORS 197.830 (15)(b).
(13) Upon entry of its final order, the court shall award
attorney fees and expenses to a party who prevails on a claim
that an approval condition imposed by a local government on an
application for a permit pursuant to ORS 215.416 or 227.175 is
unconstitutional under section 18, Article I, Oregon
Constitution, or the Fifth Amendment to the United States
Constitution.
(14) The undertaking required in subsection (12) of this
section shall be filed with the board and served on the opposing
parties within 10 days after the date the petition was filed with
the Court of Appeals.
SECTION 73. ORS 198.785 is amended to read:
198.785. (1) { + Notwithstanding sections 1 to 24 of this 2001
Act, + } if the county clerk refuses to accept and file a
petition for formation or for change of organization, or if the
county board refuses to call a special election as provided by
ORS 198.705 to 198.955, any citizen of the affected district or
territory may apply within 10 days after such refusal to the
circuit court of the principal county for a writ of mandamus to
compel the county board or county clerk to do so. If it is
decided by the circuit court that the petition for formation or
change of organization is legally sufficient and the requisite
number of signatures is attached, the circuit court shall direct
the county board to call the election. The suit shall be advanced
on the docket and decided by the circuit court as quickly as
possible. Either party may appeal as provided for appeals in
other proceedings.
(2) An action to determine the validity of a formation or
change of organization proceeding may also be brought pursuant to
ORS 33.710 and 33.720 or { - 34.010 to 34.100 - } { +
sections 1 to 24 of this 2001 Act + }.
(3) For the purpose of an action to determine or contest the
validity of a formation or change of organization, the formation
or change shall be considered complete and final upon the date
the order of formation or the order, resolution or statement
announcing a change of organization is filed with the county
clerk as provided by ORS 198.780.
SECTION 74. ORS 199.461 is amended to read:
199.461. (1) When the boundary commission receives a petition
in a boundary change proceeding or an application for any
proceeding allowed under ORS 199.464, it shall:
(a) Cause a study to be made of the proposal.
(b) Conduct one or more public hearings on the proposal.
(2) After the study and hearings, the boundary commission may
alter the boundaries set out in a petition for formation or a
minor boundary change of a city or district or in a petition for
consolidation of cities so as either to include or exclude
territory. If the commission determines that any land has been
improperly omitted from the proposal and that the owner of the
land has not appeared at the hearing, in person or by a
representative designated in writing, the commission shall
continue the hearing on the petition and shall order notice given
to the nonappearing owner requiring appearance of the owner
before the commission to show cause, if any, why the land should
not be included in the proposal. For minor boundary change
modifications, notice to nonappearing owners may be given by
personal service or by letter sent by first-class mail, at least
10 days prior to the date to which the hearing has been
continued. For major boundary change modifications, notice to
nonappearing owners may be given by personal service, by letter
sent by first-class mail or by a legal advertisement in a
newspaper of general circulation in the area at least 15 days
prior to the date to which the hearing has been continued. The
required notice may be waived by the nonappearing owner.
(3) After the study and hearings the boundary commission may
alter the application for extraterritorial sewer or water line
extensions to include or exclude line and connections thereto,
and may alter the application for formation of a privately owned
sewer or water system or allocation of territory to a community
water supply system to include or exclude territory. If the
commission determines that any land has been improperly omitted
from a proposal to form a private water or sewer system or
allocate territory to a community water system, or that any line
or connections have been improperly omitted from a proposal to
extend extraterritorially a water or sewer line, and that the
owner of the property to be included or to which the line is
being extended has not appeared at the hearing, in person or by a
representative designated in writing, the commission shall
continue the hearing on the proposal and shall order notice given
to the nonappearing owner requiring appearance of the owner
before the commission to show cause, if any, why the land or line
or connection should not be included in the proposal. Notice to
nonappearing owners may be given by personal service or by letter
sent by first-class mail, at least 10 days prior to the date to
which the hearing has been continued. The required notice may be
waived by the nonappearing owner.
(4) On the basis of the study and on the basis of the facts
presented at the hearing, the boundary commission shall approve
the proposed boundary change or application under ORS 199.464 as
presented or as modified by the commission or disapprove the
proposed change, by an order stating the reasons for the decision
of the commission. { + The commission's order may be reviewed
pursuant to sections 1 to 24 of this 2001 Act. Notwithstanding
section 11 of this 2001 Act, + } jurisdiction for judicial review
of such an order is conferred upon the Court of Appeals.
{ + Notwithstanding section 7 of this 2001 Act, and + } except
as provided in ORS 183.315 (1), any person interested in a
boundary change may { - petition for judicial review - }
{ + file a notice of appeal + } of the order under { - ORS
183.482 - } { + sections 1 to 24 of this 2001 Act + }.
(5) Immediately after the effective date of a final order
entered under subsection (4) of this section and a proclamation
declaring a minor boundary change approved if any is entered
under ORS 199.505 (3), the commission shall file a copy of the
order and proclamation, if any, with the Secretary of State, the
Department of Revenue, the assessor and the county clerk of each
county in which the affected territory, city or district is
located, and the clerk of the affected city or district. If the
commission disapproves a minor boundary change, it shall send a
copy of the final order to the person who actually filed the
petition and to the affected city or district.
(6) Immediately after the effective date of a final order on an
application under ORS 199.464, the commission shall file a copy
of the order with the applicant, the Health Division, the
Department of Environmental Quality and the county planning
department.
SECTION 75. ORS 199.476 is amended to read:
199.476. (1) When a major boundary change is initiated by a
legally sufficient petition as provided by the principal Act, if
the territory subject to the petition is within the jurisdiction
of a boundary commission, the filing agency notwithstanding the
principal Act, shall file, within 10 days after the petition is
filed, a certified copy of the petition with the boundary
commission having jurisdiction of the change. If the petition
proposes formation, consolidation or merger of a city or district
it shall be accompanied by the economic feasibility analysis and
an estimate of the tax rate derived from the feasibility analysis
that will be required to provide the services or functions of the
proposed city or district. The analysis and estimate of the tax
rate shall be prepared in cooperation with the county assessor
and the Department of Revenue. The analysis shall include among
other items a description of the services or functions to be
performed or provided by the new unit and an analysis of their
relationship to other existing or needed government services. The
analysis shall also include a first year line item operating
budget and a projected third year line item operating budget.
(2) The proceeding under the principal Act shall be suspended
from the date the petition is filed with the filing agency until
the date the commission files a certified copy of its final order
with the filing agency. Suspension of the proceeding under this
section shall not continue for more than 120 days after the date
the commission receives the petition.
(3) If a final order is not adopted within the 120 days, the
petition shall be considered approved by the commission.
(4) Notwithstanding subsection (3) of this section, if a final
order of a commission is appealed for review by the Court of
Appeals and a copy of the { - petition for judicial review is
filed with the filing agency within 60 days after the date on
which the final order is issued - } { + notice of appeal is
served on the filing agency within the time allowed by section 5
of this 2001 Act + }, the suspension period shall be extended and
continue until the
{ - petition for judicial review - } { + appeal + } is
determined and the results thereof certified to the filing
agency.
(5) A determination by the board of directors of a county
service district that there is a public need for the continued
existence of the district shall be reviewed as provided in this
section.
SECTION 76. ORS 203.060 is amended to read:
203.060. Ordinances adopted under ORS 203.030 to 203.075 shall
be subject to judicial review { - and invalidation on account
of unreasonableness, procedural error in adoption, or conflict
with paramount state law or constitutional provision - } { +
pursuant to sections 1 to 24 of this 2001 Act + }.
SECTION 77. ORS 222.896 is amended to read:
222.896. { - Judicial review of - } Final orders under ORS
222.840 to 222.915 { - shall - } { + may + } be { + reviewed
as contested case orders + }as provided in { - ORS 183.480 to
183.500 for judicial review of contested cases - } { + sections
1 to 24 of this 2001 Act + }.
SECTION 78. 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.
{ + Notwithstanding section 5 of this 2001 Act, + } 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
reviewed only as provided in { - ORS 34.010 to 34.100 - } { +
sections 1 to 24 of this 2001 Act + }, and not otherwise.
SECTION 79. ORS 223.304 is amended to read:
223.304. (1) Reimbursement fees shall be established by
ordinance or resolution setting forth a methodology that
considers the cost of the existing facility or facilities, prior
contributions by existing users, the value of unused capacity,
rate-making principles employed to finance publicly owned capital
improvements and other relevant factors identified by the local
government imposing the fee. The methodology shall 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 be available for
public inspection.
(2) Improvement fees shall be established 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. The methodology for
establishing such fees shall be available for public inspection.
(3) The ordinance or resolution that establishes 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 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.
Written notice shall be mailed to persons on the list at least 45
days prior to the first hearing to adopt or amend a system
development charge, and the methodology supporting the adoption
or amendment shall be available at least 30 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 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 be filed after 60 days following adoption or modification
of the system development charge ordinance or resolution by the
local government. A person { - shall - } { + may + } contest
the methodology used for calculating a system development charge
only { - as provided in ORS 34.010 to 34.100, and not
otherwise - } { + in the manner provided by sections 1 to 24 of
this 2001 Act + }.
SECTION 80. ORS 223.401 is amended to read:
223.401. Notwithstanding any of the provisions of ORS 223.387
to 223.399, owners of any property against which an assessment
for local improvements has been imposed may seek a review thereof
under the provisions of { - ORS 34.010 to 34.100 - } { +
sections 1 to 24 of this 2001 Act + }.
SECTION 81. ORS 223.462 is amended to read:
223.462. Notwithstanding any of the provisions of ORS 223.405
to 223.485, owners of any property against which a reassessment
for local improvements has been imposed may seek a review thereof
under the provisions of { - ORS 34.010 to 34.100 - } { +
sections 1 to 24 of this 2001 Act + }.
SECTION 82. ORS 224.065 is amended to read:
224.065. Notwithstanding any of the provisions of ORS 224.010
to 224.170, owners of any property against which an assessment
for a local improvement under this chapter has been imposed may
seek a review thereof under the provisions of { - ORS 34.010 to
34.100 - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 83. ORS 224.100 is amended to read:
224.100. The clerk or officer referred to in ORS 224.090 shall
record the transcript referred to in that section in the mortgage
records of the county and properly index it. The
{ - issuance of a writ of review - } { + filing of a notice
of appeal under sections 1 to 24 of this 2001 Act + } shall not
prevent the recording and indexing of such transcript, but upon
final determination of the review a further transcript shall be
recorded showing the amount of the assessment. The second
transcript shall be indexed and recorded and the same shall, for
the amount specified therein, have the same force and effect as
the first transcript would have had.
SECTION 84. ORS 236.630 is amended to read:
236.630. A public employer who receives a transferred public
employee under ORS 236.610 (1) shall place that employee in a
position comparable to the position the employee enjoyed under
prior employment, subject to the following:
(1) The receiving employer, in determining a comparable
position, shall consider the employee's educational and physical
qualifications, experience, and the salary, duties and
responsibilities of prior employment.
(2) If the receiving employer finds that no comparable position
exists under subsection (1) of this section, the employee shall
be offered a lesser position, if such position is available,
according to the qualifications of the employee, by the receiving
employer. The finding and action of such employer under this
subsection, and subsection (3) of this section shall be subject
to a hearing upon the employee's request and subject to review
under
{ - ORS 34.010 to 34.100 - } { + sections 1 to 24 of this
2001 Act + }.
(3) If the receiving employer finds that no position exists,
the employee shall be listed as a regular laid-off employee and
shall have priority to appointment over other persons eligible
for any position for which the employee is qualified, subject to
any applicable collective bargaining agreement.
SECTION 85. ORS 238.450 is amended to read:
238.450. (1) Upon receiving an application for a retirement
allowance or benefit from a member of the { + Public Employees
Retirement + } System and obtaining information necessary for
computation of the retirement allowance or benefit to which the
member is entitled upon retirement, the system shall provide to
the member a written computation of the retirement allowance or
benefit to which the member is entitled upon retirement and
summary of the information used in making that computation.
(2) A member of the system may contest the accuracy of the
information used by the system in making the computation of the
retirement allowance or benefit to which the member is entitled
upon retirement only by filing a written notice of contest with
the system not later than whichever of the following days occurs
last:
(a) The 240th day after the date on which the computation and
information summary is provided to the member pursuant to
subsection (1) of this section.
(b) The 240th day after the date on which the retirement
allowance or benefit to which the member is entitled first
becomes payable.
(3) The filing of a notice of contest under subsection (2) of
this section extends the time allowed for election of an optional
form of retirement allowance or benefit until the 30th day after
the conclusion of the contest proceeding and any judicial review
thereof if the proceeding or review results in a change in the
computation of the retirement allowance or benefit.
(4) Upon receiving a notice of contest under subsection (2) of
this section, the system shall determine the accuracy of the
contested information and make a written decision either
affirming the accuracy of the information and computation based
thereon or changing the computation using corrected information.
The system shall provide to the member a copy of the decision and
a written explanation of any applicable statutes and rules. The
member is entitled to judicial review of the decision as
{ - provided in ORS 183.484 - } { + an order other than
contested case under sections 1 to 24 of this 2001 Act + } and
rules of the { + Public Employees Retirement + } Board
consistent with applicable statutes.
(5) This section does not affect any authority of the system,
on its own initiative, to correct an incorrect computation of any
retirement allowance or benefit.
SECTION 86. ORS 240.563 is amended to read:
240.563. Judicial review of orders under ORS 240.560 shall be
as provided in { - ORS 183.310 to 183.550 - } { + sections 1
to 24 of this 2001 Act + }.
SECTION 87. ORS 250.131 is amended to read:
250.131. (1) { + Notwithstanding sections 1 to 24 of this 2001
Act, + } any person alleging that an estimate required under ORS
250.125 was prepared, filed or certified in violation of the
procedures specified in ORS 250.125 or 250.127 may petition the
Supreme Court seeking that the required procedures be followed
and stating the reasons the estimate filed with the court does
not satisfy the required procedures. No petition shall be allowed
concerning the amount of the estimate or regarding whether an
estimate should be prepared.
(2) If the petition is filed not later than the 85th day before
the election at which the measure is to be voted upon, the court
shall review the procedures under which the estimate was
prepared, filed and certified, hear arguments and determine
whether the procedures required under ORS 250.125 and 250.127
were satisfied. The review by the Supreme Court shall be
conducted expeditiously to insure the orderly and timely conduct
of the election at which the measure is to be submitted to the
electors.
(3) If the court determines that the procedures described in
ORS 250.125 and 250.127 were not satisfied, the court shall order
the preparation of a second estimate, to be prepared, filed and
certified as provided in ORS 250.125 and 250.127 except that:
(a) The officials named in ORS 250.125 shall prepare and file
with the Secretary of State an estimate not later than two days
following the decision of the court;
(b) A hearing shall be held within two days after the estimate
is filed; and
(c) An estimate shall be certified not later than seven days
after the decision of the court. The procedures under which the
second estimate is filed and certified may not be appealed.
SECTION 88. ORS 251.285 is amended to read:
251.285. (1) If any county measure or any measure of a
metropolitan service district organized under ORS chapter 268,
and the ballot title, explanatory statement and arguments
relating to the measure, are to be included by the Secretary of
State in the state voters' pamphlet as provided in ORS 251.067,
the requirements of this section shall be satisfied.
(2) The county or district measure, ballot title, explanatory
statement and arguments shall not be printed in the voters'
pamphlet unless:
(a) The ballot title is a concise and impartial statement of
the purpose of the measure;
(b) The explanatory statement is an impartial, simple and
understandable statement explaining the measure and its effect;
(c) The county or metropolitan service district adopts and
complies with an ordinance that provides a review procedure for a
ballot title or explanatory statement which is contested because
it does not comply with the requirements of paragraph (a) or (b)
of this subsection;
(d) The county or metropolitan service district adopts and
complies with an ordinance that provides for acceptance of
typewritten arguments relating to the measure to be printed on
29.8 square inches of the voters' pamphlet; and
(e) The county or metropolitan service district does not
require of a person filing an argument a payment of more than
$300, or a petition containing more than a number of signatures
equal to 1,000 electors eligible to vote on the measure or 10
percent of the total of such electors, whichever is less.
(3) { + Notwithstanding sections 1 to 24 of this 2001 Act, + }
any judicial review of a determination made under the review
procedures adopted under subsection (2)(c) of this section shall
be first and finally in the circuit court of the judicial
district in which the county is located or, for a district
measure, in the circuit court of the judicial district in which
the administrative office of the metropolitan service district is
located.
(4) If the county or metropolitan service district has adopted
and complied with ordinances prescribed in subsection (2) of this
section, the decision to include the county or district measure,
ballot title, explanatory statement and arguments in the voters'
pamphlet shall be made by:
(a) The county governing body with regard to any county measure
or the council of the metropolitan service district with regard
to any district measure;
(b) The chief petitioners of the initiative or referendum with
regard to a county or district measure initiated or referred by
the people. The chief petitioners shall indicate their decision
in a statement signed by all of the chief petitioners and filed
with the county clerk or, for a district measure, with the
executive officer of the metropolitan service district; or
(c) A political committee, as defined in ORS 260.005, that
opposes the county or district measure. The committee shall
indicate its decision in a statement signed by every committee
director, as defined in ORS 260.005, and filed with the county
clerk or, for a district measure, with the executive officer of
the metropolitan service district.
(5) The county or metropolitan service district shall file the
measure, ballot title, explanatory statement and arguments with
the Secretary of State not later than the 70th day before the
general election or the 68th day before a special election held
on the date of any biennial primary election. The county or
district shall pay to the Secretary of State the cost of
including the county or district material in the pamphlet as
determined by the secretary. The Secretary of State shall not
have this material printed in the pamphlet unless:
(a) The time for filing a { - petition for judicial review
of - } { + notice of appeal for + } a determination made under
subsection (2)(c) of this section has passed; and
(b) The measure, title, statement and arguments properly filed
with the county or metropolitan service district, are delivered
to the secretary.
SECTION 89. ORS 262.025 is amended to read:
262.025. A joint operating agency shall be formed and come into
existence by order of the administrator of the Office of Energy
in accordance with the following procedures:
(1) The legislative body of each city and people's utility
district desiring to form and be a member of a joint operating
agency shall adopt an ordinance declaring their intention and
authorizing formation and membership. The ordinance shall be
effective only if submitted to the electors of the city or
people's utility district voting on the ordinance at any general
election or at a special election called for that purpose. The
ordinance shall include:
(a) A statement of the purpose or purposes for which the joint
operating agency is to be formed.
(b) A finding by the legislative body that the formation of a
joint operating agency is necessary or desirable in order to plan
for and provide an adequate supply of electric energy to meet the
needs of the customers of publicly owned utilities in Oregon.
(c) A statement of the projected energy loads and resources
relied upon by the legislative body to support such finding.
(d) A general description of the means by which the joint
operating agency proposes to accomplish its purposes, including a
description of any specific utility properties then identified as
a proposed activity of the joint operating agency.
(e) A statement of the financial contribution, if any, to be
made by the city or district to the joint operating agency at the
time of organization as a condition of membership.
(2) Upon such approval of such an ordinance or ordinances, each
such city and district shall file with the administrator an
application to form and be a member of a joint operating agency.
The application shall:
(a) State the proposed name of the operating agency, the
proposed address of its principal business office, and the
purpose or purposes for which it is to be formed;
(b) Contain a certified copy of the ordinance of each applicant
city and district as approved by the electors; and
(c) State generally how the joint operating agency proposes to
accomplish its purposes.
(3) The administrator shall cause notice of an application to
be published forthwith in the bulletin referred to in ORS
183.360. Such notice shall:
(a) Summarize fairly the contents of the application;
(b) Fix a date not less than 20 nor more than 30 days after the
date of publication prior to which interested parties may submit
in writing any data, views, or arguments with respect to the
application; and
(c) Fix a date not less than 30 nor more than 60 days after the
date of publication for the entry of an order approving or
disapproving an application.
(4) In considering the application, the administrator shall
give full and fair consideration to all data, views, and
arguments submitted on behalf of the applicants or any other
interested person.
(5) On or before the date fixed in subsection (3)(c) of this
section, the administrator shall enter an order establishing the
joint operating agency in accordance with the application if the
administrator finds (a) that the statements set forth in the
application are substantially correct; (b) that formation of the
proposed joint operating agency is necessary or desirable to plan
for or provide an adequate supply of electric energy to meet the
needs of the customers of publicly owned utilities in Oregon; and
(c) that adequate provision has been or can be made for financing
the activities of the joint operating agency. The joint operating
agency shall be established as of the date of such order.
(6) If the administrator finds that the application is not in
the required form or that additional data is required to support
the application, the administrator shall enter an order so
finding. Such an order shall not preclude the applicants from
filing a revised application based upon the same approved
ordinances.
(7) If the administrator does not enter an order as authorized
under subsection (5) or (6) of this section within 60 days after
the date of publication, the application shall be considered
approved, and the joint operating agency shall be established as
of such 60th day.
(8) A joint operating agency, organized as provided by this
section shall have all of the powers and responsibilities
contained in ORS 262.005 to 262.105.
(9) { + Judicial review of any finding or order of the
administrator shall be as provided in sections 1 to 24 of this
2001 Act. Notwithstanding section 7 of this 2001 Act, + } any
party who has joined in filing an application in accordance with
this section, or who has filed timely objections to such
application, and who feels aggrieved by any finding or order of
the administrator shall have the right of judicial review
pursuant to
{ - ORS 183.480 - } { + sections 1 to 24 of this 2001
Act + }.
SECTION 90. ORS 267.257 is amended to read:
267.257. (1) After receiving certification by a county clerk
under ORS 267.255 of a petition for withdrawal filed under ORS
267.253, the district board shall conduct a study of the affected
area described in the petition. The district board may also
conduct an overall study of several affected areas. The study
shall consider:
(a) The extent to which residents of the affected area
currently use the mass transit services and facilities of the
district;
(b) The amount of district revenues raised within the affected
area during the last three completed fiscal years of the
district, separately identifying the amount of revenues derived
from taxes imposed by the district and the amount of revenues
derived from other sources;
(c) The history of the mass transit services provided to the
affected area;
(d) Whether or when direct service will be provided to the
affected area;
(e) The number of previous petitions filed under ORS 267.253
with respect to the affected area or portions thereof; and
(f) The effect of withdrawal of the affected area on the
district, including the extent to which taxes imposed by the
district in the remaining portions of the district will be
increased under ORS 267.260 as a result of the withdrawal of the
affected area.
(2) After completion of the study conducted under subsection
(1) of this section and the public hearing required under ORS
267.255, but not later than the December 31 next following the
date on which the petition was filed with the district board, the
district board shall adopt an ordinance withdrawing the affected
area from the district or shall adopt a resolution denying the
petition for withdrawal.
(3) Notwithstanding ORS 267.207 (3)(b), the district board
shall approve withdrawal if:
(a) The district board finds that the use of the mass transit
system of the district by residents of the affected area is less
than or equal to 30 percent of the system-wide average weekday
boarding rides per vehicle hour;
(b) The district board determines that direct service to the
affected area is not planned for at least five years;
(c) The residents and businesses within the affected area have
demonstrated that district fees and taxes have adversely affected
employment, population or commercial activity within the affected
area; and
(d) The district board has not received a petition signed by
not less than 15 percent of the electors within the affected area
seeking continuation of the district's jurisdiction over the
affected area.
(4) Notwithstanding ORS 267.207 (3)(b), the district board may
withdraw the affected area from the district when the conditions
of subsection (3) of this section are not satisfied if the board
considers such withdrawal to be in the best interests of the
district and the affected area.
(5) Any decision of the district board relating to withdrawal
of an affected area under ORS 267.250 to 267.263 may be reviewed
{ - by a circuit court under ORS 34.010 to 34.100 - } { +
pursuant to sections 1 to 24 of this 2001 Act + }.
SECTION 91. ORS 274.412 is amended to read:
274.412. Any person who is aggrieved by a declaration of the
State Land Board made pursuant to ORS 274.406 may seek judicial
review of the declaration in the manner provided in { - ORS
183.310 to 183.550 - } { + sections 1 to 24 of this 2001
Act + } for judicial review of final orders in other than
contested cases. For purposes of
{ - ORS 183.484 (2) - } { + section 5 (3) of this 2001
Act + }, the date three days after the date of mailing of notice
under ORS 274.408 (2) shall be considered the date { + that + }
the order { - is served on the owner - } { + becomes
effective + }.
SECTION 92. ORS 279.019 is amended to read:
279.019. (1) Exemptions granted by the Director of the Oregon
Department of Administrative Services pursuant to ORS 279.015 (2)
or 279.017 (2) constitute rulemaking and not contested cases
under ORS 183.310 to 183.550. However, an exemption granted with
regard to a specific contract shall be granted by order of the
director, which order shall set forth findings supporting the
decision of the director to grant or deny the request for
exemption. Such order { + is an order other than contested case
and + }shall be reviewable { - pursuant to ORS 183.484 and
shall not constitute a contested case order. - } { + as
provided in sections 1 to 24 of this 2001 Act. Notwithstanding
sections 11 and 13 of this 2001 Act, + } jurisdiction for review
of the order shall be with the Circuit Court of Marion County.
The court may award costs and attorney fees to the prevailing
party.
(2) { + Notwithstanding section 7 of this 2001 Act, + } any
person except the public contracting agency or anyone
representing it may
{ - bring a petition for a declaratory judgment - } { + file
a notice of appeal + } to test the validity of any rule adopted
by the director under ORS 279.015 and 279.017 { + or any
exemption granted by the local contract review board under ORS
279.015 or 279.017 + } in the manner provided in { - ORS
183.400 - } { + sections 1 to 24 of this 2001 Act + }.
{ - (3) Any person except the public contracting agency or
anyone representing it may bring an action for writ of review
pursuant to ORS chapter 34 to test the validity of any exemption
granted pursuant to ORS 279.015, 279.017 and 279.055 by a
board. - }
SECTION 93. ORS 279.045 is amended to read:
279.045. (1) The procedure for appeal from a disqualification
or denial, revocation or revision of a prequalification by a
public contracting agency shall be in accordance with this
section and is not subject to ORS 183.310 to 183.550 except where
specifically provided by this section.
(2) Promptly upon receipt of notice of appeal from a public
contracting agency as provided for by ORS 279.043, the Director
of the Oregon Department of Administrative Services or the local
contract review board shall notify the person appealing and the
public contracting agency of the time and place of the hearing.
The director or board shall conduct the hearing and decide the
appeal within 30 days after receiving the notification from the
public contracting agency. The director or board shall set forth
in writing the reasons for the decision.
(3) In the hearing the director or board shall consider de novo
the notice of disqualification or denial, revocation or revision
of a prequalification, the reasons listed in ORS 279.037 (2) on
which the public contracting agency based the disqualification or
the standards of responsibility listed in ORS 279.029 (6)(a)(B)
on which the public contracting agency based the denial,
revocation or revision of the prequalification and any evidence
provided by the parties. In all other respects, hearings before
the director shall be conducted in the same manner as a contested
case under ORS 183.415 (3) to (6) and (9), 183.425, 183.440,
183.450 and 183.452.
(4) The director may allocate the director's cost for the
hearing between the person appealing and the public contracting
agency whose disqualification or prequalification decision is
being appealed. The allocation shall be based upon facts found by
the director and stated in the final order which, in the
director's opinion, warrant such allocation of the costs. If the
final order does not allocate the director's costs for the
hearing, such costs shall be paid as follows:
(a) If the decision to disqualify or deny, revoke or revise a
prequalification of a person as a bidder is upheld, the
director's costs shall be paid by the person appealing the
disqualification or prequalification decision.
(b) If the decision to disqualify or deny, revoke or revise a
prequalification of a person as a bidder is reversed by the
director, the director's costs shall be paid by the public
contracting agency whose disqualification or prequalification
decision is the subject of the appeal.
(5) The decision of the director or board may be reviewed only
upon a petition in the circuit court of the county in which the
director or board has its principal office filed within 15 days
after the date of the decision. The circuit court shall reverse
or modify the decision only if it finds:
(a) The decision was procured by corruption, fraud or undue
means.
(b) There was evident partiality or corruption on the part of
the director or board or any of its members.
(c) There was an evident material miscalculation of figures or
an evident material mistake in the description of any person,
thing or property referred to in the decision.
(6) The procedure provided in this section is the exclusive
means of judicial review of the decision of the director or
board. The judicial review provisions of { - ORS 183.480 - }
{ + sections 1 to 24 of this 2001 Act + } and writs of
{ - review and - } mandamus as provided in ORS chapter 34, and
other legal, declaratory and injunctive remedies are not
available.
(7) The circuit court may, in its discretion, stay the letting
of the contract which is the subject of the petition in the same
manner as a suit in equity. In the event the court determines
that there has been an improper disqualification or denial,
revocation or revision of a prequalification and the contract has
been let, the court may proceed to take evidence to determine the
damages, if any, suffered by the petitioner and award such
damages as the court may find as a judgment against the director
or board. The court may award costs and attorney fees to the
prevailing party.
SECTION 94. ORS 279.045, as amended by section 61, chapter 849,
Oregon Laws 1999, is amended to read:
279.045. (1) The procedure for appeal from a disqualification
or denial, revocation or revision of a prequalification by a
public contracting agency shall be in accordance with this
section and is not subject to ORS 183.310 to 183.550 except where
specifically provided by this section.
(2) Promptly upon receipt of notice of appeal from a public
contracting agency as provided for by ORS 279.043, the Director
of the Oregon Department of Administrative Services or the local
contract review board shall notify the person appealing and the
public contracting agency of the time and place of the hearing.
The director or board shall conduct the hearing and decide the
appeal within 30 days after receiving the notification from the
public contracting agency. The director or board shall set forth
in writing the reasons for the decision.
(3) In the hearing the director or board shall consider de novo
the notice of disqualification or denial, revocation or revision
of a prequalification, the reasons listed in ORS 279.037 (2) on
which the public contracting agency based the disqualification or
the standards of responsibility listed in ORS 279.029 (6)(a)(B)
on which the public contracting agency based the denial,
revocation or revision of the prequalification and any evidence
provided by the parties. In all other respects, hearings before
the director shall be conducted in the same manner as a contested
case under ORS 183.415 (3) to (6) and (9), 183.425, 183.440,
183.450 and 183.452. Hearings before a board shall be conducted
under rules of procedure adopted by the board.
(4) The director may allocate the director's cost for the
hearing between the person appealing and the public contracting
agency whose disqualification or prequalification decision is
being appealed. The allocation shall be based upon facts found by
the director and stated in the final order which, in the
director's opinion, warrant such allocation of the costs. If the
final order does not allocate the director's costs for the
hearing, such costs shall be paid as follows:
(a) If the decision to disqualify or deny, revoke or revise a
prequalification of a person as a bidder is upheld, the
director's costs shall be paid by the person appealing the
disqualification or prequalification decision.
(b) If the decision to disqualify or deny, revoke or revise a
prequalification of a person as a bidder is reversed by the
director, the director's costs shall be paid by the public
contracting agency whose disqualification or prequalification
decision is the subject of the appeal.
(5) The decision of the director or board may be reviewed only
upon a petition in the circuit court of the county in which the
director or board has its principal office filed within 15 days
after the date of the decision. The circuit court shall reverse
or modify the decision only if it finds:
(a) The decision was procured by corruption, fraud or undue
means.
(b) There was evident partiality or corruption on the part of
the director or board or any of its members.
(c) There was an evident material miscalculation of figures or
an evident material mistake in the description of any person,
thing or property referred to in the decision.
(6) The procedure provided in this section is the exclusive
means of judicial review of the decision of the director or
board. The judicial review provisions of { - ORS 183.480 - }
{ + sections 1 to 24 of this 2001 Act + } and writs of
{ - review and - } mandamus as provided in ORS chapter 34, and
other legal, declaratory and injunctive remedies are not
available.
(7) The circuit court may, in its discretion, stay the letting
of the contract which is the subject of the petition in the same
manner as a suit in equity. In the event the court determines
that there has been an improper disqualification or denial,
revocation or revision of a prequalification and the contract has
been let, the court may proceed to take evidence to determine the
damages, if any, suffered by the petitioner and award such
damages as the court may find as a judgment against the director
or board. The court may award costs and attorney fees to the
prevailing party.
SECTION 95. ORS 281.085 is amended to read:
281.085. Any person who applies for relocation benefits or
assistance under ORS 281.060 shall receive the public entity's
written decision on the application which shall include the
statement of the amount awarded, if any, the statutory basis for
the award, and the statement of any finding of fact that the
public entity made in arriving at its decision. A person
aggrieved by said written decision shall be entitled to a hearing
substantially of the character required by ORS 183.415, 183.425,
183.450, 183.460 and 183.470, unless federal, state or local law
provides otherwise. Notice required by ORS 183.415 must be served
within 180 days of the receipt of the written decision by the
aggrieved party. The decision of the public entity shall be
reviewable pursuant to { - ORS 183.480 - } { + sections 1 to
24 of this 2001 Act + }.
SECTION 96. ORS 293.316 is amended to read:
293.316. Any person aggrieved by the disallowance of a claim
for payment of any moneys in the State Treasury, if the claim is
subject to disapproval by the Oregon Department of Administrative
Services under ORS 293.300, or by the state agency that incurred
the obligation or made the expenditure on which the claim is
based, if the claim is not subject to disapproval by the
department under ORS 293.300, may appeal the disallowance by the
department or agency { - under ORS 183.482 - } { + in the
manner provided by sections 1 to 24 of this 2001 Act + }.
SECTION 97. ORS 294.100 is amended to read:
294.100. (1) It is unlawful for any public official to expend
any money in excess of the amounts { + provided for by law + },
or for any other or different purpose than provided by law. { +
Notwithstanding section 7 of this 2001 Act, any taxpayer of the
district where the offense is committed shall have standing under
sections 1 to 24 of this 2001 Act for the purpose of filing a
notice of appeal to have an expenditure declared unlawful under
this subsection. + }
(2) Any public official who expends any public money in excess
of the amounts { + provided for by law + }, or for any other or
different purpose or purposes than authorized by law, shall be
civilly liable for the return of the money by suit of the
district attorney of the district where the offense is committed
{ - , or at the suit of any taxpayer of such district - } .
(3) On the demand in writing of 10 taxpayers of any municipal
corporation with a population exceeding 100,000 inhabitants,
filed with the tax supervising and conservation commission in the
county in which the municipal corporation is situated, which
demand sets forth that a public official or public officials have
unlawfully expended money in excess of the amounts { + provided
for by law, + } or for any other or different purpose or purposes
than provided by law, the tax supervising and conservation
commission shall make an investigation of the facts as to such
expenditures. If the tax supervising and conservation commission
finds that moneys have been unlawfully expended, the commission
shall proceed at law in the courts against the public officials
who have unlawfully expended the moneys for the return of the
moneys unlawfully expended to the treasury of the municipal
corporation. A right of action hereby is granted to the tax
supervising and conservation commission for such purpose.
SECTION 98. ORS 305.740 is amended to read:
305.740. (1) Prior to the end of 1990 and prior to the end of
each even-numbered calendar year thereafter, and subject to
subsection (2) of this section, the Oregon Charitable Checkoff
Commission shall examine the list of entities included on the
Oregon personal income tax return for the tax year beginning in
the calendar year immediately preceding and shall determine if
each entity listed is qualified under ORS 305.710 and 305.720 to
be listed on the Oregon individual income tax return to receive
contributions by means of checkoff for the ensuing biennial
years.
(2)(a) The Department of Revenue shall determine for each tax
year if each entity listed for checkoff on the Oregon tax return
for the preceding tax year meets the criteria under ORS 305.720
(5) and shall notify the commission, if and when appropriate. In
determining the amount received in contributions from checkoffs
for an entity for a particular tax year:
(A) For purposes of meeting the $50,000 minimum contribution,
the amount received in contributions from checkoffs in the amount
shown in the department's financial statement for the fiscal year
shall be counted.
(B) The amount of receipts shall not be reduced by the amount
of administrative expense referred to in ORS 305.747.
(b) The determination of the department made under paragraph
(a) of this subsection is final and may not be appealed.
Notwithstanding subsection (1) of this section, an entity that
has not met the criteria of ORS 305.720 (5) shall not be listed
on the Oregon tax return for checkoff.
(3)(a) If the commission, for any reason other than that
contributions by means of checkoff did not reach the amount
required under ORS 305.720 (5), determines that an entity
included on the list certified under ORS 305.715 (2) for the
prior biennial years is not qualified to be included, or that an
entity making application is not qualified to be included, or is
not included because of determinations under ORS 305.710, on the
list for the ensuing biennial years, the commission shall so
order.
(b) The commission shall serve upon the entity, either by
personal service or by certified mail, return receipt requested,
the order issued under paragraph (a) of this subsection. The
order shall comply with the applicable notice requirements of ORS
183.415.
(c) The entity or person or persons to whom the order is
directed shall have 20 days from the date of personal service or
mailing of the notice in which to make written application to the
commission for a contested case hearing to be held in accordance
with ORS { - 183.415 to 183.500 - } { + 183.413 to
183.470 + } before the commission or the designee of the
commission. In any hearing before the designee of the commission,
the designee is authorized to issue the final order in the
matter.
(d) Upon failure to request a contested case hearing within the
time specified, the order shall become final.
(e) Appeal may be taken from a final order as specified under
{ - ORS 183.480 to 183.497 - } { + sections 1 to 24 of this
2001 Act + }.
(f) A final order issued by the commission, the designee of the
commission, the Court of Appeals or the Oregon Supreme Court
determining that an entity be included on the list certified
under ORS 305.715 (2) may require only that the entity be
included on the list next certified after the effective date of
the final order.
SECTION 99. ORS 307.533 is amended to read:
307.533. (1) Review of a denial of an application under ORS
307.527, or of the termination of an exemption under ORS 307.529,
shall be as provided by { - ORS 34.010 to 34.100 - } { +
sections 1 to 24 of this 2001 Act + }.
(2) If no review of the termination of an exemption as provided
in subsection (1) of this section is effected, or upon final
adjudication, the county officials having possession of the
assessment and tax rolls shall correct the rolls in the manner
provided for omitted property under ORS 311.216 to 311.232 to
provide for the assessment and taxation of any property for which
exemption was terminated by the governing body or by a court, in
accordance with the finding of the governing body or the court as
to the assessment year in which the exemption is first to be
terminated. The county assessor shall make such valuation of the
property as shall be necessary to permit such correction of the
rolls. The owner may appeal any such valuation in the same manner
as provided for appeals under ORS 311.216 to 311.232.
(3) Where there has been a failure to comply with ORS 307.529,
the property shall become taxable beginning January 1 of the
first assessment year following the date on which the
noncompliance first occurred. Any additional taxes becoming due
shall be payable without interest if paid in the period prior to
the 16th day of the month next following the month of correction.
If not paid within such period, the additional taxes shall be
delinquent on the date they would normally have become delinquent
if timely extended on the roll or rolls in the year or years for
which the correction was made.
SECTION 100. ORS 307.680 is amended to read:
307.680. (1) Review of a denial of an application under ORS
307.660, or of the termination of an exemption under ORS 307.670,
shall be as provided by { - ORS 34.010 to 34.100 - } { +
sections 1 to 24 of this 2001 Act + }.
(2) If no review of the termination of an exemption as provided
in subsection (1) of this section is affected, or upon final
adjudication, the county officials having possession of the
assessment and tax rolls shall correct the rolls in the manner
provided for omitted property under ORS 311.216 to 311.232, to
provide for the assessment and taxation of any property for which
exemption was terminated by the city or county, or by a court, in
accordance with the finding of the city, county or the court as
to the tax year in which the exemption is first to be terminated.
The county assessor shall make such valuation of the property as
shall be necessary to permit such correction of the rolls. The
owner may appeal any such valuation in the same manner as
provided for appeals under ORS 311.216 to 311.232. Where there
has been a failure to comply with ORS 307.670, the property shall
become taxable beginning January 1 of the assessment year
following the assessment year in which the noncompliance first
occurred. Any additional taxes becoming due shall be payable
without interest if paid in the period prior to the 16th of the
month next following the month of correction. If not paid within
such period, the additional taxes shall be delinquent on the date
they would normally have become delinquent if timely extended on
the roll or rolls in the year or years for which the correction
was made.
SECTION 101. ORS 308.466 is amended to read:
308.466. (1) The governing body or its duly authorized agent
shall approve or deny an application filed under ORS 308.462
within 90 days after receipt of the application. An application
not acted upon within 90 days shall be deemed approved.
(2) Subject to ORS 308.471, the governing body shall complete a
certificate of qualification on a form approved by the Department
of Revenue and file the certificate with the county assessor. The
certificate shall contain a statement by a duly authorized agent
of the governing body that the property is in substantial
compliance as defined in ORS 308.450, and that the owner of the
property has complied with the provisions of ORS 308.471. In
addition, the governing body shall file with the county assessor
copies of applications filed and deemed approved under subsection
(1) of this section, together with copies of those statements
filed under ORS 308.462 and 308.471.
(3) If the application is denied, the governing body or its
authorized agent shall state in writing the reasons for denial
and send the notice to the applicant at the last-known address of
the applicant within 10 days after the denial.
(4) Upon denial by a duly authorized agent, an applicant may
appeal the denial to the governing body within 30 days after
receipt of the denial. Upon denial of the appeal by the governing
body, { - or denial of the application, - } the applicant may
appeal { - to the circuit court, and from the decision of the
circuit court to the Court of Appeals, as provided by law - }
{ + the denial in the manner provided by sections 1 to 24 of
this 2001 Act + }.
SECTION 102. ORS 308.471 is amended to read:
308.471. (1) Upon completion of the rehabilitation improvements
for which an application for limited assessment filed under ORS
308.462 has been approved, the owner shall, if appropriate, file
with the governing body the following:
(a) A statement of rents charged for each rental unit for the
12-month period preceding the commencement of rehabilitation
improvements, if an agreement has been filed under ORS 308.462
(2);
(b) A statement of the amount of rehabilitation expenditures
made with respect to each unit and the composite expenditures
made in the rehabilitation of the entire property; and
(c) A statement that the rehabilitation improvements or to the
owner's property qualify such property for limited assessment
under ORS 308.450 to 308.481.
(2) Within 30 days after receipt of the statements required by
subsection (1) of this section, the governing body shall
determine whether or not the owner's property is qualified for
limited assessment under ORS 308.450 to 308.481.
(3) If the rehabilitation was completed within two years of the
date the application for limited assessment was filed under ORS
308.462 and the governing body determines that the owner's
property is qualified for limited assessment under ORS 308.450 to
308.481, the governing body shall file the certificate of
qualification required by ORS 308.466 with the county assessor
within 10 days after the expiration of the 30-day period provided
by subsection (2) of this section.
(4) If the governing body determines that rehabilitation was
not completed within two years of the application date or that
the owner's property is otherwise not qualified for limited
assessment under ORS 308.450 to 308.481, the governing body or
its agent shall state in writing reasons why the property is not
qualified and send such writing to the owner within 10 days after
the determination.
(5) An owner may appeal an adverse determination by the
governing body to the governing body within 30 days after receipt
of the writing required by subsection (4) of this section. If the
governing body rejects the appeal, the owner may appeal { - to
the circuit court, and from the decision of the circuit court to
the Court of Appeals, as provided by law - } { + as provided in
sections 1 to 24 of this 2001 Act + }.
SECTION 103. ORS 338.075 is amended to read:
338.075. (1) If a school district board does not approve a
proposal to start a public charter school pursuant to ORS
338.055, the applicant may request that the State Board of
Education review the decision of the school district board.
(2) Upon receipt of a request for review, the State Board of
Education:
(a) Shall attempt to mediate a resolution between the applicant
and the school district board.
(b) May recommend to the applicant and school district board
revisions to the application.
(c) If the school district board does not accept the revisions
to the application and the applicant agrees to the sponsorship,
may become the sponsor of the public charter school.
(3) Upon receipt of a request for review, in addition to
actions described in subsection (2) of this section and at any
time during the review process, the State Board of Education may
reject a proposal to start a public charter school based on the
criteria listed in ORS 338.055 (2).
(4) An applicant may seek judicial review of an order of the
State Board of Education { - pursuant to ORS 183.484 - } { +
in the manner provided for an order other than contested case
under sections 1 to 24 of this 2001 Act + }. If the court finds
that the decision of the State Board of Education is not
supported by substantial evidence in the record, the court shall
enter a judgement directing the State Board of Education to
sponsor the public charter school.
SECTION 104. ORS 338.105 is amended to read:
338.105. (1) During the term of a charter, the sponsor may
terminate the charter on any of the following grounds:
(a) Failure to meet the terms of an approved charter or this
chapter.
(b) Failure to meet the requirements for student performance
stated in the charter.
(c) Failure to correct a violation of a federal or state law
that is described in ORS 338.115.
(d) Failure to maintain insurance as described in the charter.
(e) Failure to maintain financial stability.
(2) If a charter is terminated under subsection (1) of this
section, the sponsor shall notify the public charter school
governing body at least 60 days prior to the proposed effective
date of the termination. The notice shall state the grounds for
the termination. The public charter school governing body may
request a hearing by the sponsor.
(3) A public charter school governing body may appeal any
decision of a sponsor that is:
(a) A school district board to the State Board of Education.
The State Board of Education shall adopt by rule procedures to
ensure a timely appeals process to prevent disruption of
students' education.
(b) The State Board of Education { - to the circuit court
pursuant to ORS 183.484 - } { + in the manner provided for an
order other than contested case under sections 1 to 24 of this
2001 Act + }.
(4)(a) Notwithstanding subsection (2) of this section, a
sponsor may terminate a charter immediately and close a public
charter school if the public charter school is endangering the
health or safety of the students enrolled in the public charter
school.
(b) The public charter school governing body may request a
hearing from the sponsor on the termination of the charter under
this subsection. The sponsor shall hold a hearing within 10 days
after receiving the request.
(c) The public charter school governing body may appeal a
decision of a sponsor under this subsection to the State Board of
Education. The State Board of Education shall hold a hearing
within 10 days after receiving the appeal request.
(d) Throughout the appeals process, the public charter school
shall remain closed at the discretion of the sponsor unless the
State Board of Education orders the sponsor to open the public
charter school and not terminate the charter.
(5) Termination of a charter shall not abridge the public
charter school's legal authority to operate as a private or
nonchartered public school.
(6) If a charter is terminated or a public charter school is
dissolved, the assets of the public charter school that were
purchased with public funds shall be given to the State Board of
Education. The State Board of Education may disburse the assets
of the public charter school to school districts or other public
charter schools.
(7) A public charter school governing body may only terminate a
charter, dissolve or close a public charter school at the end of
a semester. If a charter is terminated by the public charter
school governing body or a public charter school is closed or
dissolved, the public charter school governing body shall notify
the sponsor at least 180 days prior to the proposed effective
date of the termination, closure or dissolution.
SECTION 105. ORS 339.430 is amended to read:
339.430. (1) Voluntary organizations that desire to administer
interscholastic activities shall apply to the State Board of
Education for approval. The state board shall review the rules
and bylaws of the voluntary organization to determine that they
do not conflict with state law or rules of the state board. If
an organization meets the standards established under ORS 326.051
and its rules and bylaws do not conflict with state law or rules
of the state board, the state board shall approve the
organization. An approved voluntary organization is qualified to
administer interscholastic activities.
(2) The state board may suspend or revoke its approval if an
approved organization is found to have violated state law or
rules of the state board. If an organization is not approved or
its approval is suspended or revoked, it may appeal the denial,
suspension or revocation as a contested case under ORS 183.310 to
183.550.
(3) A voluntary organization's decisions concerning
interscholastic activities may be appealed to the state board,
which may hear the matter or by rule may delegate authority to a
hearings officer to hear the matter and enter a final order
pursuant to ORS 183.464 (1). Such decisions may be appealed
{ - under ORS 183.484 - } { + as an order other than contested
case in the manner provided by sections 1 to 24 of this 2001
Act + }.
SECTION 106. ORS 341.065 is amended to read:
341.065. If, in the opinion of the State Board of Education,
the study and the testimony presented at the hearing or hearings
held under ORS 341.055 indicate that the formation of a community
college district as petitioned is not warranted under the
policies set forth by ORS 341.009, the state board shall order
dismissal of the petition. An appeal from this order may be taken
within 60 days in the manner provided in { - ORS 183.480 - }
{ + sections 1 to 24 of this 2001 Act + }.
SECTION 107. ORS 341.076 is amended to read:
341.076. (1) If, upon final hearing of the study, the State
Board of Education approves formation of a community college
district, with boundaries either as originally presented or as
altered pursuant to the hearing, the state board shall make its
recommendation to the Legislative Assembly, or if it is not in
session, to the Emergency Board, describing the exterior
boundaries and the zone boundaries for the election of members of
the board of education of the community college district, if any.
If no appeal from this recommendation is filed { - within 60
days after the date of the recommendation - } { + as provided
in sections 1 to 24 of this 2001 Act + }, the recommendation
becomes final.
(2) If an appeal is filed, the recommendation becomes final on
the date the recommendation is affirmed by the court. However, if
the recommendation is not affirmed, the state board shall not
submit its recommendation to the Legislative Assembly or to the
Emergency Board but may reconsider the conclusions of its study
and if it revises those conclusions, it may set a date for a new
hearing.
(3) Appeals shall be governed by { - ORS 183.480 - } { +
sections 1 to 24 of this 2001 Act + }.
(4) Upon receipt of the final recommendation, the Legislative
Assembly during session thereof or the Emergency Board if the
Legislative Assembly is not in session shall approve or
disapprove the recommendation. If the recommendation is approved,
an election under ORS 341.085 may be held. If the recommendation
is disapproved, the state board may revise its recommendation and
resubmit a final recommendation to the Legislative Assembly or
the Emergency Board but not sooner than 60 days after the action
of disapproval was taken.
SECTION 108. ORS 341.185 is amended to read:
341.185. Any elector of a district aggrieved by the adjustment
of or failure to adjust boundaries of a zone pursuant to ORS
341.175 on the basis that population is not as nearly equal as is
feasible is entitled to appear before the board { + of education
of the community college district + } at a public hearing to
present the case. If the board refuses to make the requested
adjustment in the boundaries, { - the aggrieved elector may
appeal from the decision of the board to the circuit court. The
appeal shall be by writ of review - } { + the decision of the
board may be appealed in the manner provided by sections 1 to 24
of this 2001 Act + }.
SECTION 109. ORS 342.905 is amended to read:
342.905. (1) If the district school board dismisses the teacher
or does not extend the contract of the contract teacher, the
teacher or the teacher's representative may appeal that decision
to the Fair Dismissal Appeals Board established under ORS 342.930
by depositing by certified mail addressed to the Superintendent
of Public Instruction and a copy to the superintendent of the
school district:
(a) In the case of dismissal, within 10 days, as provided in
ORS 174.120, after receipt of notice of the district school
board's decision, notice of appeal with a brief statement giving
the reasons for the appeal.
(b) In the case of a contract non-extension, within 15 days, as
provided in ORS 174.120, after receipt of the written notice of
non-extension of a contract, notice of appeal with a brief
statement giving the reasons for the appeal.
(2) The Attorney General shall assign an assistant, at no cost
to either involved party, to advise the Fair Dismissal Appeals
Board, to be present at the oral argument held by the board, and
to perform those tasks at the request of the board that would
normally require legal training.
(3) Within five days after receipt of the notice of an appeal
of contract non-extension, the district shall serve upon the Fair
Dismissal Appeals Board and the teacher a written statement of
reason for the contract non-extension, which shall include:
(a) A plain and concise statement of the facts relied on to
support the statutory grounds for non-extension of the contract;
(b) The statutory grounds upon which the district believes such
contract non-extension is justified; and
(c) A list of witnesses and documents upon which the district
will rely at hearing.
(4)(a) The Employment Relations Board shall maintain a list of
no fewer than 10 persons who are experienced in public education
and employment relations. The Employment Relations Board shall
give priority consideration for such list to persons jointly
recommended by the Oregon School Boards Association and Oregon
Education Association provided that, if there are insufficient
joint recommendations from those organizations, the Employment
Relations Board may select other persons who the board determines
hold the requisite experience and neutrality to resolve disputes.
(b) Upon the filing of an appeal of a contract dismissal or
non-extension, a hearings officer shall forthwith be mutually
selected by the parties from a list maintained by the Employment
Relations Board.
(c) Alternatively, the teacher and the district superintendent
may agree on an individual who is not on the list to serve as the
hearings officer.
(d) The parties shall mutually share the reasonable costs and
charges of the hearings officer.
(5)(a) At least 10 days prior to the hearing, the teacher shall
provide a list of witnesses and exhibits to the hearings officer
and the school district.
(b) The hearings officer shall hold a contested case hearing
under ORS 183.310 to 183.550 within 30 days of the receipt by the
teacher of notice of dismissal, or within 35 days of the receipt
by the teacher of the statement of reasons in the case of
contract non-extension. The hearings officer shall be empowered
to take all steps reasonably necessary to conduct a hearing,
develop and maintain a record of testimony, documents and other
exhibits, and to make findings of fact that in the hearings
officer's judgment are pertinent to the dispute. The hearings
officer, at the request of the district or teacher, may subpoena
and swear in witnesses and require them to give testimony and to
produce documents and other records relevant to the issues before
the Fair Dismissal Appeals Board. The hearing shall be private
unless the teacher requests a public hearing. At the hearing, the
district and the contract teacher shall have the right to be
present and be heard, to be represented by counsel, to present
evidence and cross-examine adverse witnesses and to offer
evidence that in the hearings officer's judgment is relevant to
the dispute. The hearings officer may take all reasonable steps
to require the parties to conclude the hearing in an expeditious
manner.
(c) The hearings officer shall file proposed findings of fact
in the dispute no later than 30 days after the close of the
hearing and serve the same on the parties and Fair Dismissal
Appeals Board by personal service or certified mail, return
receipt requested.
(d) Within 10 days of receipt of the hearings officer's
proposed findings of fact, either party may file objections to
the proposed findings of fact. However, no new testimony,
documents or exhibits will be accepted by the board. If no such
objections to the findings of fact are filed, the proposed
findings of fact shall be accepted by the Fair Dismissal Appeals
Board, which shall proceed to consider the controversy unless the
parties inform the Fair Dismissal Appeals Board that the dispute
has been resolved.
(6) As soon as possible after the time the notice of appeal is
received by the Superintendent of Public Instruction, the
superintendent shall appoint a panel of three members from the
Fair Dismissal Appeals Board. Insofar as practicable the panel
shall be selected from those members of the board serving in
positions where the average daily membership as determined in ORS
342.930 most nearly coincides with that of the involved district.
One member shall be from the category representing board members;
one member shall be from the category of persons not affiliated
with common or union high school districts; and one member shall
be from the category representing teachers or administrators. If
the appeal is from a contract teacher in a teaching position, the
board shall include the teacher member. If the contract teacher
is in an administrative position, the administrative member shall
sit in place of the teacher member. No panel shall contain a
member who is resident of the district that is bringing the
dismissal or non-extension.
(7) Upon receipt of the hearings officer's proposed findings of
fact and any objection filed by the parties, the Fair Dismissal
Appeals Board panel shall provide the parties with a reasonable
opportunity for oral and written argument. The oral argument
shall be limited to one-half hour for each party. No later than
140 days after filing of the appeal, consistent with due process,
the Fair Dismissal Appeals Board panel shall render its written
decision and serve the same on the parties by personal service or
certified mail, return receipt requested.
(8) When the Fair Dismissal Appeals Board panel has completed
its review, it shall prepare a written report and send it to the
contract teacher, the district superintendent, the district
school board and the Superintendent of Public Instruction. The
Fair Dismissal Appeals Board panel shall determine whether the
facts relied upon to support the statutory grounds cited for
dismissal or non-extension and included in the hearings officer's
findings of fact are true and substantiated. The panel's review
of the evidence shall be de novo. If the panel finds these facts
true and substantiated, it shall then consider whether such
facts, in light of all the circumstances and additional facts
found by the hearings officer that are relevant to the statutory
standards in ORS 342.865 (1), are adequate to justify the
statutory grounds cited. In making such determination, the panel
shall consider all reasonable written rules, policies and
standards of performance adopted by the school district board
unless it finds that such rules, policies and standards have been
so inconsistently applied as to amount to arbitrariness. The
panel shall not reverse the dismissal or non-extension if it
finds the facts relied upon are true and substantiated unless it
determines, in light of all the evidence and for reasons stated
with specificity in its findings and order, that the dismissal or
non-extension was unreasonable, arbitrary or clearly an excessive
remedy. The panel shall prepare the report within 30 days from
the date of the oral arguments.
(9)(a) Subject to subsection (8) of this section, if the Fair
Dismissal Appeals Board panel finds that the facts relied on to
support the recommendation of the district superintendent are
untrue or unsubstantiated, or if true and substantiated, are not
adequate to justify the statutory grounds cited as reason for the
dismissal or non-extension, and so notifies the contract teacher,
the district superintendent, the district school board and the
Superintendent of Public Instruction, the teacher shall be
reinstated and the teacher shall receive such back pay as ordered
by the Fair Dismissal Appeals Board panel for the period between
the effective date of the dismissal or non-extension and the date
of the order reinstating the teacher, or the date when the
district actually reinstates the teacher, whichever is later.
However, nothing in this section requires a school district to
pay the teacher until the reinstatement occurs if the district
has other legal grounds for not reinstating the teacher.
(b) So long as the right of the district board under subsection
(11) of this section and under { - ORS 183.480 and 183.500 - }
{ + sections 1 to 24 of this 2001 Act + } to judicial review of
the action of the Fair Dismissal Appeals Board remains unexpired,
the district school board may withhold the reinstated teacher
from performance of teaching duties, unless otherwise ordered by
the court having jurisdiction of the appeal.
(c) Subject to ORS 342.850 (9), if the Fair Dismissal Appeals
Board panel determines that the procedures described in ORS
342.850 (2)(b)(A) to (D) have not been substantially complied
with, the teacher may be reinstated with back pay as provided in
paragraph (a) of this subsection.
(10) If the Fair Dismissal Appeals Board panel finds the facts
relied on to support the recommendation of the district
superintendent true and substantiated, and that those facts
justify the statutory grounds cited as reason for the dismissal
or non-extension and so notifies the contract teacher, the
district superintendent, the district school board and the
Superintendent of Public Instruction in writing, the dismissal or
non-extension becomes final on the date of the notice.
(11) An appeal from action of the Fair Dismissal Appeals Board
shall be taken in the manner provided in { - ORS 183.480 - }
{ + sections 1 to 24 of this 2001 Act + }.
(12)(a) If both the district board and the teacher or teacher's
representative agree, arbitration may be used as an alternative
to a hearing before the Fair Dismissal Appeals Board to determine
if the teacher's dismissal or non-extension of a contract is in
compliance with the standards of ORS 342.805 to 342.910. If the
teacher or teacher's representative desires to use the
arbitration procedure, the request for arbitration shall be
included in the request for appeal that is filed with the
Superintendent of Public Instruction under this section. Within
10 days of the time the superintendent of the district is
notified of the teacher's intent to appeal the dismissal or
non-extension of a contract, the superintendent of the district
shall notify the teacher or teacher's representative and the
Superintendent of Public Instruction as to whether the district
has agreed to use the arbitration procedure. If the district
determines not to use the arbitration procedure, the hearing
procedure shall be continued under this section in the same
manner as if no request for arbitration had been made. If the
arbitration procedure is used, the teacher has no further rights
to a hearing before the Fair Dismissal Appeals Board.
(b) The procedures for selection of the arbitrator are those in
the applicable collective bargaining agreement. If there is no
provision or agreement or if the agreement does not contain a
procedure for selection, the parties shall request a list of five
arbitrators from the Employment Relations Board and shall choose
an arbitrator by alternative striking of names until one name is
left. The remaining person shall act as the arbitrator. The
Employment Relations Board shall compile a roster of qualified
arbitrators from which the lists are to be taken.
(c) In determining whether the district board's dismissal or
non-extension of the teacher should be sustained, the arbitrator
shall use the same reasons, rules and levels of evidence as are
required for the Fair Dismissal Appeals Board under ORS 342.805
to 342.910.
SECTION 110. ORS 343.175 is amended to read:
343.175. (1) A decision under ORS 343.165 is final unless the
parent or the school district files a { - civil action under
subsection (2) of this section - } { + notice of appeal under
sections 1 to 24 of this 2001 Act + }.
{ - (2) Either party aggrieved by the finding and decision of
the hearing officer may commence a civil action in any court of
competent jurisdiction. - }
{ - (3) In any action brought under this section, the court
shall receive the records from the administrative proceeding,
shall hear additional evidence at the request of a party and,
basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate. - }
{ - (4) Any civil action brought under this section shall be
commenced within 120 days of the date of the hearing officer's
final order. - }
{ - (5) - } { + (2) + } In any action or proceeding brought
under ORS 343.165 or in an appeal from any action or proceeding
brought under ORS 343.165, the court, in its discretion, may
award reasonable attorney fees as part of costs to the parents of
a child with a disability who is the prevailing party.
{ - (6) - } { + (3) + } Attorney fees awarded under this
section shall be based on rates prevailing in the community in
which the action or proceeding arose for the kind and quality of
services furnished. No bonus or multiplier may be used in
calculating these fees.
{ - (7) - } { + (4) + } Attorney fees may not be awarded
and related costs may not be reimbursed under this section for
services performed after a written offer of settlement to a
parent if:
(a) The offer is made within the time prescribed by Rule 68 of
the Federal Rules of Civil Procedure, or in case of an
administrative hearing, more than 10 days before the hearing
begins;
(b) The offer is not accepted within 10 days; and
(c) The relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.
{ - (8) - } { + (5) + } Notwithstanding subsection
{ - (7) - } { + (4) + } of this section, attorney fees and
related costs may be awarded to a parent who is the prevailing
party and who was substantially justified in rejecting the
settlement offer.
{ - (9) - } { + (6) + } Attorney fees may not be awarded
relating to any meeting of the individualized education program
team unless the meeting is convened as a result of an
administrative proceeding under ORS 343.165, or as a result of
judicial action.
{ - (10) - } { + (7) + } Attorney fees may not be awarded
for a mediation that is conducted before a request for a hearing
under ORS 343.165.
{ - (11) - } { + (8) + } The court shall reduce the amount
of attorney fees awarded under this section if:
(a) The parent unreasonably protracted the final resolution of
the controversy;
(b) The amount of the attorney fees unreasonably exceeds the
hourly rate prevailing in the community for similar services by
attorneys of reasonably comparable skill, reputation, and
experience;
(c) The time spent and legal services furnished were excessive
considering the nature of the action or proceeding; or
(d) In requesting a hearing under ORS 343.165 (1)(a), the
attorney representing the parent did not provide written notice
to the Superintendent of Public Instruction that included:
(A) The child's name, address and school;
(B) A description of the problem and facts relating to the
problem; and
(C) A proposed resolution of the problem.
{ - (12) - } { + (9) + } The court shall not reduce fees
under subsection
{ - (11) - } { + (8) + } of this section if:
(a) The school district unreasonably protracted the final
resolution of the controversy; or
(b) The school district violated the procedural safeguards as
set forth in ORS 343.146 to 343.183.
SECTION 111. ORS 351.088 is amended to read:
351.088. Notwithstanding ORS 183.310 to 183.550, the State
Board of Higher Education or any state institution of higher
education under the jurisdiction of the board may, by rule,
establish adjudicative procedures that are consistent with
federal and state constitutional requirements and other
provisions of law. The adjudicative procedures shall be
consistent with ORS 183.413 to { - 183.497 - } { +
183.470 + } and 183.502 whenever the type of hearing or procedure
required is substantially of the character that would necessitate
the procedures required by ORS { - 183.415, 183.425, 183.450,
183.460 or 183.470 - } { + 183.413 to 183.470 + }.
SECTION 112. ORS 390.659 is amended to read:
390.659. (1) Any applicant whose application for a permit under
ORS 390.650 has been denied or who objects to any condition
imposed on the permit or any person aggrieved or adversely
affected by the granting of a permit may, within 30 days after
the denial of the permit or the imposition of the condition,
request a hearing from the State Parks and Recreation Director.
(2) Upon receipt of a request for hearing from the applicant or
if the director finds that the person other than the applicant
making the request has a legally protected interest that is
adversely affected by the grant of the permit, the director shall
set the matter down for hearing within 30 days after receipt of
the request. The hearing shall be conducted as a contested case
in accordance with ORS 183.415 to 183.430, 183.440 to 183.460 and
183.470. The applicant shall be a party to any contested case
hearing requested by a person other than the applicant.
(3) Within 45 days after the hearing the director shall enter
an order containing findings of fact and conclusions of law. The
order shall rescind, affirm or modify the director's original
order. Appeals from the director's final order may be taken
{ - to the Court of Appeals - } in the manner provided by
{ - ORS 183.482 - } { + sections 1 to 24 of this 2001 Act for
contested case orders + }.
(4) A permit granted by the director may be suspended by the
director during the pendency of the proceedings before the
director and any appeal. The director shall not suspend the
permit unless the person aggrieved or adversely affected by grant
of permit makes a showing before the director by clear and
convincing evidence that commencement or continuation of the
improvement would cause irremediable damage and would be
inconsistent with ORS 390.610, 390.620 to 390.676, 390.690 and
390.705 to 390.770.
SECTION 113. ORS 390.663 is amended to read:
390.663. (1) If the State Parks and Recreation Director
determines that any improvement is being made on property within
the ocean shore without a permit issued under ORS 390.650, or in
a manner contrary to the conditions set out in the permit, the
director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 390.620 to 390.676, as soon as possible.
(b) For the purpose of investigating conditions relating to
such improvements, through the employees or the duly authorized
representatives of the State Parks and Recreation Department,
enter at reasonable times upon any private or public property.
(c) Conduct public hearings in accordance with ORS 183.310 to
183.550.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the
correction of conditions or violations of ORS 390.620 to 390.676.
(e) Give notice of any proposed order relating to a violation
by personal service or by mailing the notice by registered or
certified mail to the person or governmental body affected. Any
person aggrieved by a proposed order of the director may request
a hearing within 20 days of the date of personal service or
mailing of the notice. Hearings shall be conducted under the
provisions of ORS 183.310 to 183.550 applicable to contested
cases, and judicial review of final orders shall be conducted in
the { - Court of Appeals according to ORS 183.482 - } { +
manner provided by sections 1 to 24 of this 2001 Act + }. If no
hearing is requested or if the party fails to appear, a final
order shall be issued upon a prima facie case on the record of
the department.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 390.620 to 390.676 or of any
rule or final order of the director under ORS 390.620 to 390.676
may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon. In any such proceedings, the
director may seek and the court may award a sum of money
sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or
recreation resulting from such violation. Proceedings brought by
the director shall set forth, if applicable, the dates of notice
and hearing and the specific rule or order of the director,
together with the facts of noncompliance, the facts giving rise
to the public nuisance and a statement of the damages to any
public right of navigation, fishery or recreation, if any,
resulting from such violation.
(2) In addition to the administrative action the director may
take under subsection (1) of this section, the director may enter
an order requiring any person to cease and desist from any
violation if the director determines that such violation presents
an imminent and substantial risk of injury, loss or damage to the
ocean shore.
(3) An order under subsection (2) of this section:
(a) May be entered without prior notice or hearing.
(b) Shall be served upon the person by personal service or by
registered or certified mail.
(c) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the
order within 10 days after receipt of the order.
(d) Shall not be stayed during the pendency of a hearing
conducted under subsection (4) of this section.
(4) If a person subject to an order under subsection (2) of
this section files a timely demand for hearing, the director
shall hold a contested case hearing according to the applicable
provisions of ORS 183.310 to 183.550. If the person fails to
request a hearing, the order shall be entered as a final order
upon prima facie case made on the record of the department.
(5) Neither the director nor any duly authorized representative
of the department shall be liable for any damages a person may
sustain as a result of a cease and desist order issued under
subsection (2) of this section.
(6) The state and local police shall cooperate in the
enforcement of any order issued under subsection (2) of this
section and shall require no further authority or warrant in
executing or enforcing such order. If any person fails to comply
with an order issued under subsection (2) of this section, the
circuit court of the county in which the violation occurred or is
threatened shall compel compliance with the director's order in
the same manner as with an order of that court.
(7) As used in this section, 'violation' means making an
improvement on property within the ocean shore without a permit
or in a manner contrary to the conditions set out in a permit
issued under ORS 390.650.
SECTION 114. ORS 416.145 is amended to read:
416.145. (1) Judicial review of the decision of the Adult and
Family Services Division shall be as provided in { - ORS
183.310 to 183.550. Within 30 days after receipt of a petition
for judicial review, the division shall make available without
cost to the petitioner the record at any hearing under ORS
416.010 to 416.260 - } { + sections 1 to 24 of this 2001
Act + }.
(2) If the decision of the Adult and Family Services Division
is sustained on appeal, the Court of Appeals shall enter an order
stating the amount found due. The Adult and Family Services
Division may sue on such order without issuance of the warrant
required by ORS 416.170.
SECTION 115. ORS 418.645 is amended to read:
418.645. { - Any person affected by - } Any decision or
order of the State Office for Services to Children and Families
made pursuant to ORS 418.625 to 418.645 may { - appeal
therefrom to the Court of Appeals as provided in ORS 183.480 for
the review of orders in contested cases - } { + be appealed in
the manner provided for contested case orders in sections 1 to 24
of this 2001 Act + }.
SECTION 116. ORS 421.647 is amended to read:
421.647. (1) Notwithstanding ORS { - 183.400, 183.482,
183.484 or - } 197.825 or { + sections 1 to 24 of this 2001 Act
or + } any other law, review of any decision or action relating
to the issuance or denial of a permit, license or certificate
under ORS 421.645 (1) to (7) is as described in this section.
(2) A person or governmental entity adversely affected by a
decision or action may institute a proceeding for review by
filing a petition in Marion County Circuit Court that meets the
following requirements:
(a) The petition must be filed within 21 days of issuance of
the specific decision or action on which the petition is based.
(b) The petition must include the following:
(A) A statement of the nature of the decision or action the
petitioner desires to be reviewed.
(B) A statement of the constitutional, statutory or other legal
provision providing a basis for the challenge.
(C) A statement of whether the validity of the decision or
action depends on factual findings and whether it is necessary to
create a record in order to review the challenge.
(D) A statement and supporting affidavit showing how the
petitioner is adversely affected by the decision or action.
(c) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
(3) The court may affirm, reverse or remand the decision or
action. The court shall reverse or remand the decision or action
if the court finds that the entity making the decision or taking
the action:
(a) Exceeded its statutory or constitutional authority; or
(b) Made a decision or took an action, the validity of which
depends on the existence of one or more facts, when the requisite
fact or facts do not exist.
(4) As to any decision or action, the validity of which depends
on the existence of a particular fact:
(a) The court shall first decide whether any claims of error
require fact-finding because the challenged decision or action
depends on the existence of one or more facts. If the court
determines that the claim of error requires fact-finding, the
court shall decide whether additional evidence is required in
order to determine whether the necessary fact exists. To be
considered by the court, the evidence, if required, need not have
been before the decision maker at the time of making the decision
or taking the action.
(b) In determining the existence of a necessary fact, the fact
shall be deemed to exist if the court finds, based on the record
presented to or made before it, that there is evidence, taken in
isolation, from which a reasonable person could conclude that the
fact exists.
(5) If the court determines that the claim of error may be
resolved without taking additional evidence, the court shall
certify the matter to the Supreme Court and the Supreme Court
shall accept the certification. The Supreme Court shall conduct
its review as provided in subsections (3) and (4) of this
section.
(6) Any party to the proceedings before the court may appeal
from the judgment of that court to the Supreme Court by filing a
petition meeting the criteria set forth in subsection (2) of this
section. The petition must be filed within 21 days after the
entry of the judgment. The Supreme Court shall conduct its review
as provided in subsections (3) and (4) of this section.
SECTION 117. ORS 421.653 is amended to read:
421.653. (1) Except as provided in ORS 421.647 and
notwithstanding { - ORS 183.400, 183.482, 183.484 or
197.825 - } { + sections 1 to 24 of this 2001 Act + } or any
other law, exclusive jurisdiction for review of the
constitutionality of ORS 421.635 to 421.651 and any decision
relating to the siting of a women's correctional facility and
intake center complex under ORS 421.637, 421.641, 421.643,
421.645 (8), 421.649 and 421.651 and section 8 (2), chapter 982,
Oregon Laws 1999, is conferred upon the Supreme Court.
(2) A person or local government adversely affected by ORS
421.635 to 421.651 may institute a proceeding for review by
filing with the Supreme Court a petition that meets the following
requirements:
(a) The petition for review of the constitutionality of ORS
421.635 to 421.657 and section 8 (2), chapter 982, Oregon Laws
1999, must be filed within 21 days after August 20, 1999. The
petition must include the following:
(A) A statement of the constitutional provision providing a
basis for the challenge.
(B) A statement and supporting affidavit showing how the
petitioner is adversely affected.
(b) A petition for review of a decision made under ORS 421.637,
421.641, 421.643, 421.645 (8), 421.649 and 421.651 and section 8
(2), chapter 982, Oregon Laws 1999, shall be filed within 21 days
of issuance of the specific decision on which the petition is
based.
(3) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
(4) A petition filed under subsection (2)(b) of this section
shall state the nature of the decision the petitioner desires
reviewed and in what manner the decision below rejected the
position raised by the petitioner.
(5) Within 30 days after service of the petition under
subsection (2)(a) of this section, the department shall transmit
to the Supreme Court, or a special master it designates, the
original or a certified copy of the entire record and any
findings that may have been made. The court shall not substitute
its judgment for that of the Governor or the Director of the
Department of Corrections as to any issue of fact or issue within
executive branch discretion.
(6) If the petition is filed under subsection (2)(b) of this
section, the record shall include only:
(a) The director's final report prepared under ORS 421.641.
(b) The conditions, if any, on the proposed site.
(c) The transcript of the hearing before the department.
However, on motion of the director, the Supreme Court may limit
the transcript to those matters in which the petitioner is
interested as provided in subsection (2)(b) of this section.
(d) Evidence submitted by the petitioner to the director, but
on motion of any party to the judicial review, the Supreme Court
may supplement the record with additional materials from the
hearing before the director.
(7) Upon review, the Supreme Court may reverse or remand a
decision made under ORS 421.637, 421.641, 421.643, 421.645 (8),
421.649 and 421.651 and section 8 (2), chapter 982, Oregon Laws
1999, if the Supreme Court finds the director, Department of
Corrections or the Governor:
(a) Exceeded the statutory or constitutional authority of the
decision maker; or
(b) Made a decision not supported by substantial evidence. For
purposes of this subsection, 'substantial evidence' means
evidence that, taken in isolation, a reasonable mind could accept
as adequate to support a conclusion. The substantiality of the
evidence shall not be evaluated by considering the whole record.
(8) Proceedings for review under this section shall be given
priority over all other matters before the Supreme Court.
SECTION 118. ORS 443.835 is amended to read:
443.835. (1) A person may not operate a developmental
disability child foster home without having a certificate issued
by the Mental Health and Developmental Disability Services
Division.
(2) A person may apply for a certificate to operate a
developmental disability child foster home by submitting an
application to the division on a form furnished by the division.
(3) Upon receipt of an application under subsection (2) of this
section, the division shall cause an investigation to be made of
the applicant and the applicant's home. The division shall
determine whether to issue a certificate to the applicant and, if
a certificate is to be issued, whether to issue a conditional
certificate or a regular certificate. The certificate shall be in
the form prescribed by the division by rule.
(4) After notice and an opportunity for hearing as provided in
ORS { - 183.310 to 183.482 - } { + 183.413 to 183.470 + },
the division may deny, refuse to renew or revoke a certificate to
operate a developmental disability child foster home. A person
whose application for a certificate has been denied, not renewed
or revoked may appeal the decision to the Court of Appeals in the
manner provided in { - ORS 183.480 - } { + sections 1 to 24
of this 2001 Act + } for the review of orders in contested cases.
(5) The division may adopt rules to carry out the intent and
purposes of this section and ORS 443.830.
SECTION 119. ORS 657A.360 is amended to read:
657A.360. (1) Upon deciding to deny, revoke, suspend or not to
renew a certification or registration, the Child Care Division of
the Employment Department shall give notice and opportunity for
hearing as provided in ORS { - 183.310 to 183.550 - } { +
183.413 to 183.470 + }.
(2) The Child Care Division shall make the final decision and
notice thereof shall be sent by certified mail to the address of
the child care facility as shown on the records of the division.
The decision of the division is reviewable by the Court of
Appeals in the manner provided { - in ORS 183.480 for the
review of orders in contested cases - } { + for contested case
orders in sections 1 to 24 of this 2001 Act + }.
SECTION 120. ORS 658.820 is amended to read:
658.820. (1) The Commissioner of the Bureau of Labor and
Industries may adopt rules necessary for the administration of
ORS 658.705 to 658.850.
(2) All rules adopted under ORS 658.715 to 658.850 shall be
issued in compliance with ORS 183.310 to 183.410.
(3) All proceedings relating to the issuance, revocation,
suspension, renewal or refusal to renew an indorsement to act as
a farmworker camp operator shall be conducted under ORS 183.310
to
{ - 183.497 - } { + 183.550 + }.
SECTION 121. ORS 418.997 is amended to read:
418.997. Judicial review of civil penalties imposed under ORS
418.992, shall be as provided under { - ORS 183.480, except
that the court may, in its discretion, reduce the amount of the
penalty - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 122. ORS 431.756 is amended to read:
431.756. Judicial review of orders under ORS 431.705 to 431.760
shall be { - as provided in ORS 183.480, 183.485, 183.490 and
183.500 - } { + in the manner provided for contested case
orders in sections 1 to 24 of this 2001 Act + }.
SECTION 123. ORS 420.890 is amended to read:
420.890. (1) A person may not operate a youth offender foster
home without a certificate of approval issued by the Oregon Youth
Authority.
(2) A person may apply for a certificate of approval to operate
a youth offender foster home by submitting an application to the
youth authority on a form furnished by the youth authority.
(3)(a) Upon receipt of an application under subsection (2) of
this section, the youth authority shall cause an investigation to
be made of the applicant and the applicant's home. The youth
authority, in accordance with rules adopted under ORS 420.892,
shall determine whether to issue a certificate of approval to the
applicant and, if a certificate of approval is to be issued,
whether to issue a provisional certificate or a regular
certificate. The certificate must be in the form prescribed by
the youth authority and must state the period of time for which
it is issued, the name of the foster parent, the address of the
premises to which the certificate applies and the maximum number
of youth offenders to be maintained in the youth offender foster
home at any one time. The certificate applies only to the
premises designated in the certificate and a change of residence
automatically terminates the certificate.
(b) After notice and opportunity for hearing as provided in ORS
{ - 183.310 to 183.482 - } { + 183.413 to 183.470 + }, the
youth authority may deny an application for a certificate of
approval under paragraph (a) of this subsection. A person whose
application for a certificate of approval has been denied may
appeal the decision
{ - to the Court of Appeals - } in the manner provided in
{ - ORS 183.480 - } { + sections 1 to 24 of this 2001 Act + }
for the review of orders in contested cases.
(4)(a) After notice and opportunity for hearing as provided in
ORS { - 183.310 to 183.482 - } { + 183.413 to 183.470 + },
the youth authority may revoke, deny an application to renew or
attach conditions to a certificate of approval issued under
subsection (3)(a) of this section for a violation of any
provision of this section or ORS 420.892 or of the rules adopted
under ORS 420.892.
(b) A person whose certificate of approval is revoked, not
renewed or is made subject to conditions by a decision of the
youth authority under paragraph (a) of this subsection may appeal
the decision { - to the Court of Appeals - } in the manner
provided in
{ - ORS 183.480 - } { + sections 1 to 24 of this 2001 Act + }
for the review of orders in contested cases.
SECTION 124. ORS 421.630 is amended to read:
421.630. (1) Notwithstanding ORS { - 183.400, 183.482,
183.484 and - } 197.825 { + or sections 1 to 24 of this 2001
Act + } or any other law, exclusive jurisdiction for review of
any decision relating to the establishment of, addition to,
remodeling of or siting of a corrections facility including the
establishment of criteria under ORS 421.614, the nomination of
sites under ORS 421.616 or any actions under ORS 421.623 or
421.626 is conferred upon the Supreme Court.
(2) Proceedings for review shall be instituted when any person
or local government adversely affected files a petition with the
Supreme Court that meets the following requirements:
(a) The petition shall be filed within 21 days of issuance of
the specific decision on which the petition is based, except that
a petition based on a decision to adopt criteria pursuant to ORS
421.614 shall be filed within 21 days of the issuance of the
criteria. A decision made pursuant to ORS 421.623 or 421.626 with
respect to any site may be reviewed by the Supreme Court as
provided in ORS 421.611 to 421.630.
(b) The petition shall state the nature of the decision the
petitioner desires reviewed, in what manner the decision below
rejected the position raised by the petitioner below and shall
state, by supporting affidavit, the facts showing how the
petitioner is adversely affected. In the case of a decision by
the Corrections Facilities Siting Authority, the petitioner is
adversely affected only when the petitioner can establish by
clear and convincing evidence in the affidavit that:
(A) The petitioner participated before the authority;
(B) The petitioner will be within sight or sound of the
facility or is affected economically in excess of $5,000 in
value; and
(C) The petitioner proposed conditions as required by ORS
421.623 (2) that were rejected by the authority.
(c) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections,
the authority and the Attorney General.
(d) Within 30 days after service of the petition, the
department shall transmit to the Supreme Court, or a special
master it designates, the original or a certified copy of the
entire record and any findings that may have been made. The court
shall not substitute its judgment for that of the Governor, the
department or the authority as to any issue of fact or issue
within executive branch discretion.
(3) If the petition is for review of a decision made by the
siting authority, the record shall include only:
(a) The report of the authority.
(b) The conditions, if any, on the nomination.
(c) The transcript of the hearing before the authority.
However, on motion of the authority, the Supreme Court may limit
the transcript to those matters in which the petitioner is
interested as provided in subsection (2)(b) of this section.
(d) Evidence submitted by the petitioner to the authority, but
on motion of any party to the judicial review, the Supreme Court
may supplement the record with additional materials from the
hearing before the authority.
(e) The transcript of the decision-making meeting of the
authority.
(f) The authority findings and decision.
(4) Upon review, the Supreme Court may reverse or remand the
decision if the Supreme Court concludes that the department, the
authority or the Governor:
(a) Exceeded the statutory or constitutional authority of the
decision maker;
(b) Made a decision based on findings that are not supported by
substantial evidence in the record as described in { - ORS
183.482 (8)(c) - } { + section 17 (3)(b) of this 2001 Act + };
or
(c) Refused to adopt a proposed condition submitted under ORS
421.623 (2) and failed to provide the statement required by ORS
421.623 (3)(b).
(5) Proceedings for review under this section shall be given
priority over all other matters before the Supreme Court.
SECTION 125. ORS 432.121 is amended to read:
432.121. (1) To protect the integrity of vital records and
vital reports, to ensure their proper use and to ensure the
efficient and proper administration of the system of vital
statistics, it shall be unlawful for any person to permit
inspection of, or to disclose information from vital records or
vital reports in the custody of the State Registrar of the Center
for Health Statistics, county registrar or local registrar or to
copy or issue a copy of all or part of any such record or report
unless authorized by this chapter and by rules adopted pursuant
thereto or by order of a court of competent jurisdiction. Rules
adopted under this section shall provide for adequate standards
of security and confidentiality of vital records and vital
reports.
(2) The State Registrar of the Center for Health Statistics
shall authorize the inspection, disclosure and copying of the
information referred to in subsection (1) of this section as
follows:
(a) To the subject of the record; spouse, child, parent,
sibling or legal guardian of the subject of the record; an
authorized representative of the subject of the record, spouse,
child, parent, sibling or legal guardian of the subject of the
record; and, in the case of death, marriage or divorce records,
to other next of kin.
(b) When a person demonstrates that a death, marriage or
divorce record is needed for the determination or protection of a
personal or property right.
(c) When 100 years have elapsed after the date of birth or 50
years have elapsed after the date of death, marriage or divorce.
(d) When the person requesting the information demonstrates
that the person intends to use the information solely for
research purposes. In order to receive the information, the
person must submit a written request to the state registrar
requesting a research agreement. The state registrar shall issue
a research agreement if the person demonstrates that the
information will be used only for research and will be held
confidential. The research agreement shall prohibit the release
by the person of any information other than that authorized by
the agreement that might identify any person or institution.
(e) To the federal agency responsible for national vital
statistics, upon request. The copies or data may be used solely
for the conduct of official duties. Before furnishing the
records, reports or data, the state registrar shall enter into an
agreement with the federal agency indicating the statistical or
research purposes for which the records, reports or data may be
used. The agreement shall also set forth the support to be
provided by the federal agency for the collection, processing and
transmission of the records, reports or data. Upon written
request of the federal agency, the state registrar may approve,
in writing, additional statistical or research uses of the
records, reports or data supplied under the agreement.
(f) To federal, state and local governmental agencies, upon
request. The copies or data may be used solely for the conduct of
official duties of the requesting governmental agency.
(g) To offices of vital statistics outside this state when such
records or other reports relate to residents of those
jurisdictions or persons born in those jurisdictions. Before
furnishing the records, reports or data, the state registrar
shall enter into an agreement with the office of vital
statistics. The agreement shall specify the statistical and
administrative purposes for which the records, reports or data
may be used and the agreement shall further provide instructions
for the proper retention and disposition of the copies. Copies
received by the Center for Health Statistics from offices of
vital statistics in other states shall be handled in the same
manner as prescribed in this section.
(h) To an investigator licensed, or operative registered, under
ORS 703.430, upon request.
(3) The state registrar, upon request of a family member or
legal representative, shall issue a certified copy or other copy
of a death certificate containing the cause of death information
as provided in subsection (2) of this section or as follows:
(a) When a person has demonstrated through documented evidence
a need for the cause of death to establish a legal right or
claim.
(b) When the request for the copy is made by or on behalf of an
organization that provides benefits to the decedent's survivors
or beneficiaries.
(4) Nothing in this section prohibits the release of
information or data that would not identify any person or
institution named in a vital record or a vital report.
(5) Nothing in this section shall prohibit a health care
provider from disclosing information contained in the provider's
records as otherwise allowed by law.
(6) Nothing in this section shall be construed to permit
disclosure of information contained in the 'Information for
Medical and Health Use Only' section of the birth certificate,
fetal death report or the 'Information for Statistical Purposes
Only' section of the certificate of marriage or certificate of
divorce, unless specifically authorized by the state registrar
for statistical or research purposes. The data shall not be
subject to subpoena or court order and shall not be admissible
before any court, tribunal or judicial body.
(7) All forms and procedures used in the issuance of certified
copies of vital records and vital reports shall be uniform and
provided by or approved by the state registrar. All certified
copies issued shall have security features that safeguard the
document against alteration, counterfeiting, duplication or
simulation without ready detection.
(8) Each copy issued shall show the date of filing. Copies
issued from records marked 'Amended' shall be similarly marked
and shall show the effective date of the amendment. Copies issued
from records marked 'Delayed' shall be similarly marked and shall
include the date of filing and a description of the evidence used
to establish the delayed certificate.
(9) Any copy issued of a certificate of foreign birth shall
indicate this fact and show the actual place of birth and the
fact that the certificate is not proof of United States
citizenship for an adoptive child.
(10) Appeals from decisions of the state registrar to refuse to
disclose information or to permit inspection or copying of
records as prescribed by this section and rules adopted pursuant
thereto shall be made under { - ORS 183.480 to 183.484 - }
{ + sections 1 to 24 of this 2001 Act + }.
(11) The state registrar shall adopt rules to implement this
section in accordance with the applicable sections of ORS 183.310
to 183.550.
(12) Indexes of deaths, marriages or divorces that list names,
dates of events, county of events or certificate numbers may be
disclosed.
SECTION 126. ORS 432.130 is amended to read:
432.130. Any person who is refused an inspection of any record
provided for in this chapter may { - proceed in the manner set
forth in ORS 183.480 and 183.484 to seek access to the record - }
{ + seek review in the manner provided by sections 1 to 24 of
this 2001 Act + }.
SECTION 127. ORS 432.140 is amended to read:
432.140. (1) When a certificate of birth of a person born in
this state has not been filed within one year after the date of
birth, a delayed certificate of birth may be filed in accordance
with rules of the State Registrar of the Center for Health
Statistics. If a hospital fails to file a certificate of birth
within one year after the date of birth, a certificate of birth
may be filed as provided by rule of the state registrar. No
delayed certificate shall be registered until the evidentiary
requirements as specified by rule have been met.
(2) A certificate of birth registered one year or more after
the date of birth shall be registered on a delayed certificate of
birth form and show on its face the date of filing.
(3) A summary statement of the evidence submitted in support of
the delayed registration shall be indorsed on the certificate.
(4)(a) When an applicant does not submit the minimum
documentation required by rule of the state registrar for delayed
registration or when the state registrar has cause to question
the validity or adequacy of the applicant's sworn statement or
the documentary evidence, and if the deficiencies are not
corrected, the state registrar shall not register the delayed
certificate of birth and shall enter an order to that effect
stating the reasons for the action. The state registrar shall
advise the applicant of the right to appeal under { - ORS
183.480 to 183.484 - } { + sections 1 to 24 of this 2001
Act + }.
(b) The state registrar by rule may provide for the dismissal
of an application which is not actively prosecuted.
SECTION 128. ORS 432.142 is amended to read:
432.142. (1) If the State Registrar of the Center for Health
Statistics refuses to file a delayed certificate of birth under
the provisions of ORS 432.140, the applicant may file a signed
and sworn petition with a court of competent jurisdiction seeking
an order establishing a record of the date and place of birth and
the parentage of the person whose birth is to be registered.
(2) The petition shall be made on a form prescribed and
furnished or approved by the state registrar and shall allege:
(a) That the person for whom a delayed certificate of birth is
sought was born in this state;
(b) That no certificate of birth of the person can be found in
the records of the Center for Health Statistics;
(c) That diligent efforts by the petitioner have failed to
obtain the evidence required in accordance with ORS 432.140 and
rules adopted pursuant thereto;
(d) That the state registrar has refused to file a delayed
certificate of birth; and
(e) Such other allegations as may be required under { - ORS
183.480 and 183.484 - } { + sections 1 to 24 of this 2001
Act + }.
(3) The petition shall be accompanied by a statement made in
accordance with ORS 432.140 and all documentary evidence which
was submitted to the state registrar in support of the filing.
(4) The court shall fix a time and place for hearing the
petition and shall give the state registrar notice of the
hearing. The state registrar or an authorized representative may
appear and testify in the proceeding.
(5) If the court finds, from the evidence presented, that the
person for whom a delayed certificate of birth is sought was born
in this state, it shall make findings as to the place and date of
birth, parentage and such other findings as may be required and
shall issue an order, on a form prescribed and furnished or
approved by the state registrar, to establish a court-ordered
certificate of birth. This order shall include the birth data to
be registered, a description of the evidence presented and the
date of the court's action.
(6) The clerk of the court shall forward each order to the
state registrar not later than the 10th day of the calendar month
following the month in which it was entered. The order shall be
registered by the state registrar and shall constitute the
certificate of birth.
SECTION 129. ORS 432.180 is amended to read:
432.180. (1) A certified copy of a vital record or vital report
or any part thereof shall be considered for all purposes the same
as the original and shall be prima facie evidence of the facts
stated therein. However, the evidentiary value of a record or
report filed more than one year after the event, a record or
report that has been amended or a certificate of foreign birth
shall be determined by the judicial or administrative body or
official before whom the record or report is offered as evidence.
(2) The contents, or part of the contents, and the due
execution of any certificate on file in the Center for Health
Statistics may be evidenced by a copy of the material in the
certificate, as certified by the State Registrar of the Center
for Health Statistics.
(3) When the state registrar receives information that a
certificate may have been registered through fraud or
misrepresentation, the state registrar shall withhold issuance of
any copy of that certificate. The state registrar shall advise
the applicant of the right to appeal under { - ORS 183.480 to
183.484 - } { + sections 1 to 24 of this 2001 Act + }. If fraud
or misrepresentation is found, the state registrar shall remove
the certificate from the file. The certificate and evidence shall
be retained but shall not be subject to inspection or copying
except upon order of a court of competent jurisdiction or by the
state registrar for purposes of administering the system of vital
statistics.
(4) No person may prepare or issue any certificate that
purports to be an original, certified copy or copy of a vital
record or vital report except as authorized in this chapter or
rules adopted pursuant thereto. No person may prepare or issue
any certified copies of birth or death abstracts.
SECTION 130. ORS 432.235 is amended to read:
432.235. (1) A certificate or report registered under this
chapter may be amended only in accordance with this chapter and
rules adopted by the State Registrar of the Center for Health
Statistics to protect the integrity and accuracy of vital records
and vital reports.
(2) A certificate or report that is amended under this section
shall indicate that it has been amended, except as otherwise
provided in ORS 432.230, this section or by rule of the state
registrar. A record shall be maintained that identifies the
evidence upon which the amendment was based, the date of the
amendment and the identity of the person making the amendment.
The state registrar shall prescribe by rule the conditions under
which additions or minor corrections may be made to certificates
or records within one year without the certificate or record
indicating that it has been amended.
(3) Upon receipt of a certified copy of an order of a court of
competent jurisdiction changing the name of a person born in this
state and upon request of such person or if the person is a minor
or incompetent, the parents, guardian or legal representative of
the person, the state registrar shall amend the certificate of
birth to show the new name.
(4) Upon receipt of a certified copy of an order of a court of
competent jurisdiction indicating that the sex of an individual
born in this state has been changed by surgical procedure and
whether such individual's name has been changed, the certificate
of birth of such individual shall be amended as prescribed by
rule of the state registrar.
(5) When an applicant does not submit the minimum documentation
required by rule of the state registrar for amending a vital
record or when the state registrar has cause to question the
validity or adequacy of the applicant's sworn statements or the
documentary evidence, and if the deficiencies are not corrected,
the state registrar shall not amend the vital record and shall
advise the applicant of the reason for this action and shall
further advise the applicant of the right of appeal under
{ - ORS 183.480 and 183.484 - } { + sections 1 to 24 of this
2001 Act + }.
(6) When a certificate or report is amended under this section
by the state registrar, the state registrar shall report the
amendment to any other custodian of the vital record and the
record of the other custodian shall be amended accordingly.
(7) When an amendment is made to a certificate of marriage by
the local official issuing the marriage license, copies of the
amendment shall be forwarded to the state registrar.
(8)(a) When a party or legal representative proposes to set
aside or change any information recorded in a dissolution of
marriage decree filed pursuant to ORS 432.408, the party or legal
representative seeking the amendment or set aside order shall
prepare a summary of the changes in the form prescribed or
furnished by the state registrar and shall present the form to
the clerk of the court along with the proposed amended decree or
set aside order. In all cases the completed form shall be a
prerequisite to the entry of the amended decree or set aside
order.
(b) The clerk of the court shall complete and forward to the
Center for Health Statistics the records of each such amended
decree or set aside order in the same manner prescribed by ORS
432.408.
SECTION 131. ORS 432.307 is amended to read:
432.307. (1) A certificate of death for each death that occurs
in this state shall be submitted to the county registrar of the
county in which the death occurred or to the Center for Health
Statistics, or as otherwise directed by the State Registrar of
the Center for Health Statistics, within five days after death or
the finding of a dead body and prior to final disposition, and
shall be registered if it has been completed and filed in
accordance with this section.
(a) If the place of death is unknown, but the dead body is
found in this state, the certificate of death shall be completed
and filed in accordance with this section. The place where the
body is found shall be shown as the place of death. If the date
of death is unknown, it shall be determined by approximation. If
the date cannot be determined by approximation, the date the dead
body is found shall be entered and identified as the date of
death.
(b) When death occurs in a moving conveyance:
(A) In the United States and the body is first removed from the
conveyance in this state, the death shall be registered in this
state and the place where it is first removed shall be considered
the place of death.
(B) While in international waters or air space or in a foreign
country or its air space and the body is first removed from the
conveyance in this state, the death shall be registered in this
state but the certificate shall show the actual place of death
insofar as can be determined.
(c) In all other cases, the place where death is pronounced
shall be considered the place where death occurred.
(2) The funeral service practitioner or person acting as a
funeral service practitioner who first assumes custody of the
dead body shall submit the certificate of death. The funeral
service practitioner or person acting as a funeral service
practitioner shall obtain the personal data from the next of kin
or the best qualified person or source available and shall obtain
the medical certification from the person responsible therefor.
The funeral service practitioner or person acting as a funeral
service practitioner shall provide the certificate of death
containing information as specified by rule to identify the
decedent to the certifier within 48 hours after death.
(3) The physician in charge of the care of the patient for the
illness or condition that resulted in death shall complete, sign
and return the medical certification of death to the funeral
service practitioner or person acting as a funeral service
practitioner within 48 hours after receipt of the certificate of
death by the physician, except when inquiry is required by ORS
chapter 146. In the absence or inability of the physician or with
the approval of the physician, the medical certification of death
may be completed by an associate physician, the chief medical
officer of the institution in which death occurred or the
physician who performed an autopsy upon the decedent, provided
that the individual has access to the medical history of the case
and death is due to natural causes. The person completing the
medical certification of death shall attest to its accuracy
either by signature or by an approved electronic process.
(4) When inquiry is required by ORS chapter 146, the medical
examiner shall determine the cause of death and shall complete
and sign the medical certification of death within 48 hours after
taking charge of the case.
(5) If the cause of death cannot be determined within the time
prescribed, the medical certification of death shall be completed
as provided by rule of the state registrar. The attending
physician or medical examiner shall give the funeral service
practitioner or person acting as a funeral service practitioner
notice of the reason for the delay and final disposition of the
body shall not be made until authorized by the attending
physician or medical examiner.
(6) Upon receipt of autopsy results or other information that
would change the information in the 'Cause of Death' section of
the certificate of death from that originally reported, the
certifier shall immediately file a supplemental report of cause
of death with the Center for Health Statistics to amend the
certificate.
(7) When a death is presumed to have occurred within this state
but the body cannot be located, a certificate of death may be
registered by the state registrar only upon receipt from the
State Medical Examiner. Such a death certificate shall be marked
' Presumptive' and shall show on its face the date of
registration.
(8) When a death occurring in this state has not been
registered within the time period prescribed by this section, a
certificate of death may be filed in accordance with rules of the
state registrar. The certificate shall be registered subject to
evidentiary requirements as the state registrar by rule shall
prescribe to substantiate the alleged facts of death.
(9) A certificate of death registered one year or more after
the date of death or the date the dead body was found shall be
marked 'Delayed' and shall show on its face the date of the
delayed registration.
(10) When an applicant does not submit the minimum
documentation required by rule of the state registrar for delayed
registration or when the state registrar has cause to question
the validity or adequacy of the applicant's sworn statement or
the documentary evidence and if the deficiencies are not
corrected, the state registrar shall not register the delayed
certificate of death and shall advise the applicant of the right
of appeal under
{ - ORS 183.480 to 183.484 - } { + sections 1 to 24 of this
2001 Act + }.
(11) A certificate of death required to be filed under this
section shall contain the Social Security number of the decedent
whenever the Social Security number is reasonably available from
other records concerning the decedent or can be obtained from the
person in charge of the final disposition of the decedent.
SECTION 132. ORS 435.070 is amended to read:
435.070. { - (1) A licensee may, within 30 days from the date
of the service of notice of revocation, appeal to the circuit
court of the county in which the licensee is doing business under
the license for a - } { + Judicial + } review of the action of
the State Board of Pharmacy in revoking the license and of the
action of the sheriff in making a seizure thereunder { + shall
be as provided in sections 1 to 24 of this 2001 Act + }.
{ - (2) The appeal shall be taken by filing in the circuit
court a copy of the notice of revocation and a denial or
statement in writing and sworn to by the licensee putting in
issue such facts in connection therewith as the licensee may
desire to dispute or put in controversy. A copy of this sworn
statement shall be served upon the State Board of Pharmacy by the
licensee at the time of filing the same. - }
{ - (3) The court may then proceed to hear and dispose of the
matter in a summary manner upon such testimony and evidence as
the licensee and the State Board of Pharmacy, the Attorney
General or the district attorney of the county in question shall
offer. - }
{ - (4) If the court finds that the action of the State Board
of Pharmacy in revoking such license or in making such seizure
was without sufficient grounds, it shall order the license to be
reinstated and the property seized to be restored. If the court
finds that the licensee has been guilty of a violation of ORS
435.010 to 435.130 and that the revocation of license was
justifiable, the property seized shall be ordered by the court to
be destroyed and the sheriff shall carry out such order. - }
SECTION 133. ORS 441.740 is amended to read:
441.740. Judicial review of civil penalties imposed under ORS
441.710 { - , - } shall be as provided under { - ORS 183.480,
except that - } { + sections 1 to 24 of this 2001 Act. + } The
court may, in its discretion, reduce the amount of the penalty.
SECTION 134. ORS 446.255 is amended to read:
446.255. (1) After written notice and hearing as provided in
subsection (2) of this section, the Director of the Department of
Consumer and Business Services may revoke the certification of a
local inspector certified under ORS 446.250, or the authority of
a local government to enforce provisions of ORS 446.003, 446.111,
446.160, 446.176, 446.225 to 446.285 and 446.990, when it appears
by competent evidence that the inspector or local government has
consistently failed to act in the public interest in the
enforcement of the provisions of ORS 446.003, 446.111, 446.160,
446.176, 446.225 to 446.285 and 446.990.
(2) Any proceedings under subsection (1) of this section shall
be conducted pursuant to the provisions of ORS 183.415 to
183.430, 183.440 to 183.460 { - , - } { + and + } 183.470
{ - to 183.485 and 183.490 to 183.550 - } , dealing with
contested cases. { + Judicial review may be sought in the manner
provided for contested case orders in sections 1 to 24 of this
2001 Act. + }
SECTION 135. ORS 442.760 is amended to read:
442.760. Notwithstanding the provisions of ORS 183.310 (6) and
{ - 183.480 - } { + section 7 of this 2001 Act + }, only a
party to a cooperative program agreement or the Director of Human
Services shall be entitled to a contested case hearing or
judicial review of an order issued pursuant to ORS 442.700 to
442.760 and 646.740.
SECTION 136. ORS 446.405 is amended to read:
446.405. (1) If a manufactured dwelling or cabana is not
installed in accordance with the rules adopted under ORS 446.003,
446.395 to 446.420 and 455.230, the owner of the manufactured
dwelling or cabana, at the time of installation, may, within one
year of the completion date of such installation, file a written
complaint with the Director of the Department of Consumer and
Business Services. The director shall provide a copy of the
complaint to the installer and shall also notify the dealer, if
any, that arranged for such installation and may then investigate
the complaint. If it is determined by the director that the
installation fails to comply with licensure requirements as
provided by ORS 446.003, 446.395 to 446.420 and 455.230 or the
installation rules adopted by the director, the director shall
provide notice of such failure to the installer and shall order
the installer to bring the installation into compliance within 30
days of date of notice.
(2) The director shall establish, by rule, fees and a procedure
for inspection of manufactured dwellings and cabanas to carry out
the provisions of this section.
(3) If the installer fails to bring the installation into
compliance as ordered, the director may suspend or revoke the
installer's license.
(4) If the installer fails to bring the installation into
compliance, the director shall order the dealer, if any, that
arranged for such installation to bring the installation into
compliance with the provisions of ORS 446.003, 446.395 to 446.420
and 455.230 and the rules adopted pursuant thereto. The dealer is
responsible to bring only those installation activities into
compliance which the dealer arranged. The dealer shall have 30
days from the date of the order to bring the installation into
compliance. If the dealer fails to bring the installation into
compliance within 30 days of the date of the order, the dealer
shall be subject to civil penalties as provided by ORS 446.415.
(5) Hearings, penalties and appeals resulting from violation of
this section shall be carried out in conformance with ORS
{ - 183.325 to 183.497 - } { + 183.310 to 183.550 + } and
this section.
SECTION 137. ORS 448.255 is amended to read:
448.255. (1) Whenever the Assistant Director for Health has
reasonable grounds to believe that a water system or part thereof
is being operated or maintained in violation of any rule adopted
pursuant to ORS 448.115 to 448.285, 454.235 and 454.255, the
assistant director shall give written notice to the water
supplier responsible for the system.
(2) The notice required under subsection (1) of this section
shall include the following:
(a) Citation of the rule allegedly violated;
(b) The manner and extent of the alleged violation; and
(c) A statement of the party's right to request a hearing.
(3) The notice shall be served personally or by registered or
certified mail and shall be accompanied by an order of the
assistant director requiring remedial action which, if taken
within the time specified in the order, will effect compliance
with the rule allegedly violated. The order shall become final
unless request for hearing is made by the party receiving the
notice within 10 days from the date of personal service or the
date of mailing of the notice.
(4) The form of petition for hearing and the procedures
employed in the hearing shall be consistent with the requirements
of ORS { - 183.310 to 183.550 - } { + 183.413 to 183.470 + }
and shall be in accordance with rules adopted by the division.
(5) Hearings under this section shall be conducted by a hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999.
(6) The order shall be affirmed or reversed by the assistant
director after hearing. A copy of the assistant director's
decision setting forth findings of fact and conclusions shall be
sent by registered or certified mail to the petitioner or served
personally upon the petitioner. An appeal from such decision may
be made as provided { - in ORS 183.480 relating to a contested
case - } { + for contested case orders in sections 1 to 24 of
this 2001 Act + }.
SECTION 138. ORS 448.255, as amended by section 85, chapter
849, Oregon Laws 1999, is amended to read:
448.255. (1) Whenever the Assistant Director for Health has
reasonable grounds to believe that a water system or part thereof
is being operated or maintained in violation of any rule adopted
pursuant to ORS 448.115 to 448.285, 454.235 and 454.255, the
assistant director shall give written notice to the water
supplier responsible for the system.
(2) The notice required under subsection (1) of this section
shall include the following:
(a) Citation of the rule allegedly violated;
(b) The manner and extent of the alleged violation; and
(c) A statement of the party's right to request a hearing.
(3) The notice shall be served personally or by registered or
certified mail and shall be accompanied by an order of the
assistant director requiring remedial action which, if taken
within the time specified in the order, will effect compliance
with the rule allegedly violated. The order shall become final
unless request for hearing is made by the party receiving the
notice within 10 days from the date of personal service or the
date of mailing of the notice.
(4) The form of petition for hearing and the procedures
employed in the hearing shall be consistent with the requirements
of ORS { - 183.310 to 183.550 - } { + 183.413 to 183.470 + }
and shall be in accordance with rules adopted by the division.
(5) The assistant director may designate a hearing officer to
act on behalf of the assistant director in holding and conducting
hearings.
(6) The order shall be affirmed or reversed by the assistant
director after hearing. A copy of the assistant director's
decision setting forth findings of fact and conclusions shall be
sent by registered or certified mail to the petitioner or served
personally upon the petitioner. An appeal from such decision may
be made as provided { - in ORS 183.480 relating to a contested
case - } { + for contested case orders in sections 1 to 24 of
this 2001 Act + }.
SECTION 139. ORS 454.635 is amended to read:
454.635. (1) Whenever the Department of Environmental Quality
has reasonable grounds for believing that any subsurface sewage
disposal system, alternative sewage disposal system or
nonwater-carried sewage disposal facility or part thereof is
being operated or maintained in violation of any rule adopted
pursuant to ORS 454.625, it shall give written notice to the
person or persons in control of such system or facility.
(2) The notice required under subsection (1) of this section
shall include the following:
(a) Citation of the rule allegedly violated;
(b) The manner and extent of the alleged violation; and
(c) A statement of the party's right to request a hearing.
(3) The notice shall be served personally or by registered or
certified mail and shall be accompanied by an order of the
department requiring remedial action which, if taken within the
time specified in the order, will effect compliance with the rule
allegedly violated. The order shall become final unless a request
for hearing is made by the party receiving the notice within 10
days from the date of personal service or the date of mailing of
the notice.
(4) The form of petition for hearing and the procedures
employed in the hearing shall be consistent with the requirements
of ORS 183.310 to 183.550 and shall be in accordance with rules
adopted by the Environmental Quality Commission.
(5) The order shall be affirmed or reversed by the commission
after hearing. A copy of the commission's decision setting forth
findings of fact and conclusions shall be sent by registered or
certified mail to the petitioner or served personally upon the
petitioner. An appeal from such decision may be made as provided
{ - in ORS 183.480 relating to a contested case - } { + for a
contested case order under sections 1 to 24 of this 2001 Act + }.
SECTION 140. ORS 455.770 is amended to read:
455.770. (1) In addition to any other authority and power
granted to the Director of the Department of Consumer and
Business Services under this chapter and ORS chapters 446, 447,
460, 479 and 480, with respect to municipalities, building
officials and inspectors, if the director has reason to believe
that there is a failure to enforce or a violation of any
provision of this chapter or ORS chapter 446, 447, 460 or 479 or
any rule adopted thereunder, the director may:
(a) Examine building code activities of the municipality;
(b) Take sworn testimony; and
(c) With the authorization of the Office of the Attorney
General, subpoena persons and records to obtain testimony on
official actions that were taken or omitted or to obtain
documents otherwise subject to public inspection under ORS
192.410 to 192.505.
(2) The investigative authority authorized in subsection (1) of
this section covers the violation or omission by a municipality
related to enforcement of codes or administrative rules,
certification of inspectors or financial transactions dealing
with permit fees and surcharges under any of the following
circumstances when:
(a) The duties are clearly established by law, rule or
agreement;
(b) The duty involves procedures for which the means and
methods are clearly established by law, rule or agreement; or
(c) The duty is described by clear performance standards.
(3) Prior to starting an investigation under subsection (1) of
this section, the director shall notify the municipality in
writing setting forth the allegation and the rules or statutes
pertaining to the allegation and give the municipality 30 days to
respond to the allegation. If the municipality does not satisfy
the director's concerns, the director may then commence an
investigation.
(4) If the Department of Consumer and Business Services directs
corrective action the following shall be done:
(a) The corrective action shall be in writing and served on the
building official and the chief executive officers of all
municipalities affected;
(b) The corrective action shall identify the facts and law
relied upon for the required action; and
(c) A reasonable time shall be provided to the municipality for
compliance.
(5) The director may revoke any authority of the municipality
to administer any part of this chapter or ORS chapter 446, 447,
460 or 479 or any rule adopted thereunder if the director
determines after a hearing conducted under ORS { - 183.413 to
183.497 - } { + 183.413 to 183.470 + } that:
(a) All of the requirements of ORS 455.770, 455.775 and 455.895
were met; and
(b) The municipality did not comply with the corrective action
required.
(6) Nothing in ORS 455.775 or 455.895 shall be construed to
grant any authority over a municipality or inspector employed by
a municipality.
SECTION 141. ORS 455.775 is amended to read:
455.775. In addition to any other authority and power granted
to the Director of the Department of Consumer and Business
Services under this chapter and ORS chapters 446, 447, 460, 479,
480 and 693:
(1) Except where inconsistent with other provisions of law, the
director may enforce the provisions of this chapter and ORS
chapters 446, 447, 460, 479, 480 and 693 against any person
regardless of whether a permit, certificate, license or other
indicia of authority has been issued. The director may:
(a) Make an investigation;
(b) Take sworn testimony;
(c) With the authorization of the Office of the Attorney
General, subpoena persons and records;
(d) Order corrective action; and
(e) If an immediate hazard to health and safety is imminent,
issue an order to stop all or any part of the work under the
applicable specialty code.
(2) If the director has reason to believe that any person has
been engaged, or is engaging, or is about to engage in any
violation of this chapter and ORS chapters 446, 447, 460, 479,
480 and 693 and any rule adopted thereunder, the director may
issue an order, subject to ORS { - 183.413 to 183.497 - } { +
183.310 to 183.550 + }, directed to the person to cease and
desist from the violation or threatened violation.
(3) If the director has reason to believe that any person has
been engaged, or is engaging, or is about to engage in any
violation of this chapter and ORS chapters 446, 447, 460, 479,
480 and 693 and any rule adopted thereunder, the director may
bring suit in the name and on behalf of the State of Oregon in
the circuit court of any county of this state to enjoin the acts
or practices and to enforce compliance with this chapter and ORS
chapters 446, 447, 460, 479, 480 and 693 and any rule adopted
thereunder. Upon a proper showing, a permanent or temporary
injunction, restraining order or writ of mandamus shall be
granted.
(4) The provisions of subsection (1)(c) of this section apply
only to testimony and documents related to enforcement of the
building codes.
(5) A provision allowing a board to assess a penalty in this
chapter or ORS chapter 446, 447, 460, 479, 480 or 693 shall take
precedence over any provision allowing for a penalty in ORS
455.770, 455.775 and 455.895.
SECTION 142. ORS 458.060 is amended to read:
458.060. (1) Review of a denial of an application under ORS
458.040 shall be as provided by { - ORS 34.010 to 34.100 - }
{ + sections 1 to 24 of this 2001 Act + }.
(2) Upon termination of an exemption, the county officials
having possession of the assessment and tax rolls shall correct
the rolls in the manner provided for omitted property under ORS
311.216 to 311.232 to provide for the assessment and taxation of
any property for which exemption was terminated by the city or by
a court, in accordance with the finding of the city or the court
as to the year in which the exemption is first to be terminated.
The county assessor shall make such valuation of the property as
shall be necessary to permit such correction of the rolls. The
owner may appeal any such valuation in the same manner as
provided for appeals under ORS 311.216 to 311.232.
(3) Where there has been a failure to comply with ORS 458.045,
the property shall become taxable beginning January 1 of the
assessment year in which the noncompliance first occurred. Any
additional taxes becoming due shall be payable without interest
if paid in the period prior to the 16th day of the month next
following the month of correction. If not paid within such
period, the additional taxes shall be delinquent on the date they
would normally have become delinquent if timely extended on the
roll or rolls in the year or years for which the correction was
made.
SECTION 143. ORS 464.500 is amended to read:
464.500. (1) In order to determine compliance with state law
and rules of the department relating to the operation of bingo,
lotto, raffles or Monte Carlo events, the Department of Justice
or its designee may:
(a) Investigate whether a person has violated state law or
rules of the department relating to the operation of bingo, lotto
or raffle games or Monte Carlo events.
(b) Inspect the records of any person who lends money to, or in
any other manner finances, any licensee or applicant for any
license or who receives any income or profits from the use of the
license.
(2) The department or its designee may conduct investigations
into the operation of any bingo, lotto or raffle game or Monte
Carlo event in this state. For that purpose, the department or
its designee may subpoena witnesses, compel attendance, take
depositions and testimony and require the production of material
relevant to the investigation.
(3) The department or its designee may hold contested case
hearings which shall be subject to ORS 183.413 to 183.470,
subject to review as provided { - under ORS 183.480 to
183.490 - } { + for contested case orders in sections 1 to 24
of this 2001 Act + }.
(4) Upon failure to obey a subpoena or to answer questions
asked by the department's designee and upon reasonable notice to
all persons affected, the department may apply to the circuit
court for an order compelling compliance.
(5) Hearings regarding suspension, revocation or denial of
bingo, lotto, raffle or Monte Carlo event licenses or permits
shall be conducted by a hearing officer assigned from the Hearing
Officer Panel established under section 3, chapter 849, Oregon
Laws 1999. The hearing officer may administer oaths and conduct
the hearings as provided in ORS 183.413 to 183.470. Salaries and
expenses of the hearing officer shall be as the department shall
determine and shall be paid by the department.
SECTION 144. ORS 464.500, as amended by section 91, chapter
849, Oregon Laws 1999, is amended to read:
464.500. (1) In order to determine compliance with state law
and rules of the department relating to the operation of bingo,
lotto, raffles or Monte Carlo events, the Department of Justice
or its designee may:
(a) Investigate whether a person has violated state law or
rules of the department relating to the operation of bingo, lotto
or raffle games or Monte Carlo events.
(b) Inspect the records of any person who lends money to, or in
any other manner finances, any licensee or applicant for any
license or who receives any income or profits from the use of the
license.
(2) The department or its designee may conduct investigations
into the operation of any bingo, lotto or raffle game or Monte
Carlo event in this state. For that purpose, the department or
its designee may subpoena witnesses, compel attendance, take
depositions and testimony and require the production of material
relevant to the investigation.
(3) The department or its designee may hold contested case
hearings which shall be subject to ORS 183.413 to 183.470,
subject to review as provided { - under ORS 183.480 to
183.490 - } { + for contested case orders in sections 1 to 24
of this 2001 Act + }.
(4) Upon failure to obey a subpoena or to answer questions
asked by the department's designee and upon reasonable notice to
all persons affected, the department may apply to the circuit
court for an order compelling compliance.
(5) The department may appoint a hearing officer to conduct
hearings regarding suspension, revocation or denial of bingo,
lotto, raffle or Monte Carlo event licenses or permits. The
hearing officer may administer oaths and conduct the hearings as
provided in ORS 183.413 to 183.470. Salaries and expenses of the
hearing officer shall be as the department shall determine and
shall be paid by the department.
SECTION 145. ORS 465.215 is amended to read:
465.215. (1) For the purposes of providing public information,
the Director of the Department of Environmental Quality shall
develop and maintain a list of all facilities with a confirmed
release as defined by the Environmental Quality Commission under
ORS 465.405.
(2) The director shall make the list available for the public
at the offices of the Department of Environmental Quality.
(3) The list shall include but need not be limited to the
following items, if known:
(a) A general description of the facility;
(b) Address or location;
(c) Time period during which a release occurred;
(d) Name of the current owner and operator and names of any
past owners and operators during the time period of a release of
a hazardous substance;
(e) Type and quantity of a hazardous substance released at the
facility;
(f) Manner of release of the hazardous substance;
(g) Levels of a hazardous substance, if any, in ground water,
surface water, air and soils at the facility;
(h) Status of removal or remedial actions at the facility; and
(i) Other items the director determines necessary.
(4) At least 60 days before a facility is added to the list the
director shall notify by certified mail or personal service the
owner and operator, if known, of all or any part of the facility
that is to be included in the list. The notice shall inform the
owner and operator that the owner and operator may comment on the
decision of the director to add the facility to the list within
45 days of receiving the notice. The decision of the director to
add a facility to the list is not appealable to the Environmental
Quality Commission or subject to judicial review
{ - under ORS 183.310 to 183.550 - } .
SECTION 146. ORS 465.225 is amended to read:
465.225. (1) For the purpose of providing public information,
the Director of the Department of Environmental Quality shall
develop and maintain an inventory of all facilities for which:
(a) A confirmed release is documented by the department; and
(b) The director determines that additional investigation,
removal, remedial action, long-term environmental controls or
institutional controls are needed to assure protection of present
and future public health, safety, welfare or the environment.
(2) The determination that additional investigation, removal,
remedial action, long-term environmental controls or
institutional controls are needed under subsection (1) of this
section shall be based upon a preliminary assessment approved or
conducted by the department.
(3) Before the department conducts a preliminary assessment,
the director shall notify the owner and operator, if known, that
the department is proceeding with a preliminary assessment and
that the owner or operator may submit information to the
department that would assist the department in conducting a
complete and accurate preliminary assessment.
(4) At least 60 days before the director adds a facility to the
inventory, the director shall notify by certified mail or
personal service the owner and operator, if known, of all or any
part of the facility that is to be included in the inventory. The
decision of the director to add a facility to the inventory is
not appealable to the Environmental Quality Commission or subject
to judicial review { - under ORS 183.310 to 183.550 - } .
(5) The notice provided under subsection (4) of this section
shall include the preliminary assessment and shall inform the
owner or operator that the owner or operator may comment on the
information contained in the preliminary assessment within 45
days after receiving the notice. For good cause shown, the
department may grant an extension of time to comment. The
extension shall not exceed 45 additional days.
(6) The director shall consider relevant and appropriate
information submitted by the owner or operator in making the
final decision about whether to add a facility to the inventory.
(7) The director shall review the information submitted and add
the facility to inventory if the director determines that a
confirmed release has occurred and that additional investigation,
removal, remedial action, long-term environmental controls or
institutional controls are needed to assure protection of present
and future public health, safety, welfare or the environment.
SECTION 147. ORS 466.140 is amended to read:
466.140. (1) The Department of Environmental Quality shall
examine and review all hazardous waste disposal site permit
applications submitted to it and make such investigations as it
considers necessary, and make a recommendation to the
Environmental Quality Commission as to whether to issue the
permit.
(2) After reviewing the department's recommendations under
subsection (1) of this section, the commission shall decide
whether or not to issue the permit. It shall cause notice of its
decision to be given to the applicant by certified mail at the
address designated in the application. The decision of the
commission is subject to judicial review under { - ORS
183.480 - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 148. ORS 466.185 is amended to read:
466.185. (1) The Department of Environmental Quality shall
investigate any complaint made to it by any person that the
operation of any generator, air or water transporter or hazardous
waste disposal, storage or treatment site is unsafe or that the
operation is in violation of the provisions of ORS 466.005 to
466.385 and 466.992 or the rules adopted under ORS 466.005 to
466.385 and 466.992.
(2) If, after making an investigation under subsection (1) of
this section, the department is satisfied that sufficient grounds
exist to justify a hearing upon the complaint, it shall give 10
days' written notice of the time and place of the hearing and the
matters to be considered at the hearing. A copy of the complaint
shall be furnished by the department to the respondent. Both the
complainant and the respondent are entitled to be heard, produce
evidence and offer exhibits and to require the attendance of
witnesses at the hearing.
(3) A hearing officer assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999, shall
hear the matter. Within 30 days after the date of the hearing and
after considering all evidence and testimony submitted, the
Environmental Quality Commission shall make a specific order as
it considers necessary. Any order issued by the commission under
this subsection shall be subject to judicial review in the manner
provided by { - ORS 183.480 - } { + sections 1 to 24 of this
2001 Act + } for judicial review of orders in contested cases.
{ - The costs of reporting and of transcribing the hearing for
the purpose of judicial review shall be paid by the party seeking
judicial review. - }
SECTION 149. ORS 466.185, as amended by section 94, chapter
849, Oregon Laws 1999, is amended to read:
466.185. (1) The Department of Environmental Quality shall
investigate any complaint made to it by any person that the
operation of any generator, air or water transporter or hazardous
waste disposal, storage or treatment site is unsafe or that the
operation is in violation of the provisions of ORS 466.005 to
466.385 and 466.992 or the rules adopted under ORS 466.005 to
466.385 and 466.992.
(2) If, after making an investigation under subsection (1) of
this section, the department is satisfied that sufficient grounds
exist to justify a hearing upon the complaint, it shall give 10
days' written notice of the time and place of the hearing and the
matters to be considered at the hearing. A copy of the complaint
shall be furnished by the department to the respondent. Both the
complainant and the respondent are entitled to be heard, produce
evidence and offer exhibits and to require the attendance of
witnesses at the hearing.
(3) The Environmental Quality Commission or a hearing officer
appointed by the commission shall hear the matter. Within 30 days
after the date of the hearing and after considering all evidence
and testimony submitted, the commission shall make a specific
order as it considers necessary. Any order issued by the
commission under this subsection shall be subject to judicial
review in the manner provided by { - ORS 183.480 - }
{ + sections 1 to 24 of this 2001 Act + } for judicial review of
orders in contested cases.
{ - The costs of reporting and of transcribing the hearing for
the purpose of judicial review shall be paid by the party seeking
judicial review. - }
SECTION 150. ORS 466.370 is amended to read:
466.370. (1) The Department of Environmental Quality shall
notify by certified mail any person who owns a lot or parcel upon
which a disposal site listed under ORS 466.365 exists. The notice
shall:
(a) Describe the disposal site and potentially hazardous
environmental conditions;
(b) Describe the use restrictions that will be imposed;
(c) Explain that an environmental hazard notice will be sent to
the appropriate city or county under ORS 466.375; and
(d) Advise the person of the procedure for requesting a hearing
under subsection (2) of this section.
(2) If any person receiving notice under subsection (1) of this
section objects to the use restrictions, the person may request a
hearing before the Environmental Quality Commission. The request
shall be in writing and must be submitted to the department
within 20 days after the person receives the notice under
subsection (1) of this section. The hearing shall be conducted
according to the provisions for a contested case hearing in ORS
183.413 to { - 183.497 - } { + 183.470. Judicial review shall
be as provided in sections 1 to 24 of this 2001 Act + }.
(3) If no hearing is requested within 20 days after receipt of
the notice, the department shall file the environmental hazard
notice with the appropriate city or county.
SECTION 151. ORS 468.067 is amended to read:
468.067. (1) Notwithstanding { - ORS 183.480 and 183.484 - }
{ + section 7 of this 2001 Act + }, an association or
organization has standing to seek judicial review of any final
order, as defined in ORS 183.310, of the Department of
Environmental Quality or of the Environmental Quality Commission
that relates to a proceeding described in subsection (2) of this
section if:
(a) One or more members of the association or organization is
adversely affected or aggrieved by the order;
(b) The interests that the association or organization seeks to
protect are germane to the purpose of the association or
organization; and
(c) The nature of the claim and the relief requested do not
require that the members of the association or organization who
are adversely affected or aggrieved by the order participate in
the judicial review proceedings.
(2) Subsection (1) of this section applies to a permit
proceeding pursuant to Title V of the Clean Air Act, 42 U.S.C.
7661 to 7661f, as implemented under ORS chapter 468A.
SECTION 152. ORS 468.110 is amended to read:
468.110. { - Any person adversely affected or aggrieved by
any - } { + An + } order of the Environmental Quality
Commission may { - appeal from such order in accordance with
the provisions of ORS 183.310 to 183.550. However,
notwithstanding ORS 183.480 (3), relating to a stay of
enforcement of an agency order and the giving of bond or other
undertaking related thereto, any reviewing court before it may
stay an order of the commission shall give due consideration to
the public interest in the continued enforcement of the
commission's order, and may take testimony thereon - } { + be
appealed under sections 1 to 24 of this 2001 Act + }.
SECTION 153. ORS 468.513 is amended to read:
468.513. The decision of an agency to refuse to issue a Green
Permit is not subject to judicial review. The decision of an
agency to issue a Green Permit may be appealed { - in
accordance with the provisions of ORS 183.484 pertaining to
review of an order in other than a contested case - } { + as an
order other than contested case under sections 1 to 24 of this
2001 Act + }.
SECTION 154. ORS 468B.032 is amended to read:
468B.032. (1) In addition to enforcement proceedings pursuant
to ORS 468.090 for a violation of a provision, rule, permit or
order under this chapter, the Department of Environmental Quality
shall implement the procedures established under this section
upon the request of the person to whom the notice of the civil
penalty or other formal enforcement action is addressed if the
person files the request within 20 days from the date of service
of the notice. The written request shall serve in lieu of any
other prescribed response.
(2) The department shall provide public notice of, and
reasonable opportunity to comment in writing on, the civil
penalty or other formal enforcement action.
(3) After the comment period closes, the department may
determine either to modify the civil penalty or other formal
enforcement action based on any comment received under subsection
(2) of this section or to reissue the original civil penalty or
other formal enforcement action. The department shall serve the
person to whom the notice of civil penalty or other formal
enforcement action was addressed with a copy of any comments
filed and a new notice that includes the determination of the
department. The person shall then have 20 days from the date of
service of the new notice in which to make written application
for a hearing.
(4) The department shall give notice to any person who
commented under subsection (2) of this section of the new notice
that includes the determination of the department under
subsection (3) of this section. The department also shall give
notice to any person who commented under subsection (2) of this
section if a hearing is requested under subsection (3) of this
section.
(5) If a person does not apply for a hearing under subsection
(3) of this section, a person who commented under subsection (2)
of this section may request that the department hold a hearing if
the person who commented makes the request in writing within 30
days of the mailing of the notice given under subsection (4) of
this section. However, the department shall hold a hearing only
if the request includes material evidence that the department did
not consider when the department issued the civil penalty or
other formal enforcement action. If the department denies the
request for a hearing, the department shall provide a copy of the
denial and the reasons for the denial to the requester and shall
provide public notice of the denial that includes the reasons for
the denial.
(6) In a hearing under subsection (3) or (5) of this section,
the person subject to the civil penalty or other formal
enforcement action and any person who commented under subsection
(2) of this section shall have a reasonable opportunity to be
heard and to present evidence. The department shall conduct the
hearing in accordance with ORS 183.090.
(7) If a person does not request a hearing pursuant to
subsection (3) or (5) of this section, the department shall issue
the civil penalty or other formal enforcement action.
(8) For purposes of judicial review under { - ORS 183.480 to
183.500 - } { + sections 1 to 24 of this 2001 Act + }, a person
who comments under subsection (2) of this section and includes a
request in writing to be a party to the civil penalty or other
formal enforcement action shall have standing to be a party to an
agency proceeding subject to judicial review of a final order.
For the procedures established by this section only, the civil
penalty or other formal enforcement action shall be deemed to be
commenced for purposes of the state's implementation of section
309(g)(6) of the Federal Water Pollution Control Act, as amended,
when the department first notifies a person in writing that a
violation has been documented and that the violation is being
referred for formal enforcement action or will result in a civil
penalty or other formal enforcement action.
(9) The Environmental Quality Commission shall ensure that
state enforcement procedures for implementing section 309(g)(6)
of the Federal Water Pollution Control Act, as amended, are
comparable to and not greater than the federal enforcement
procedures for enforcing that federal Act.
(10) Any person who submits a request under subsection (1) of
this section shall submit with the request a basic process fee in
the amount of $2,000 and a refundable hearings fee in the amount
of $3,650 to pay the expenses of the department incurred under
this section. If a hearing is not conducted under this section,
the department shall return the refundable hearing fee to the
person who submitted the request under subsection (1) of this
section. All fees received under this subsection shall be
deposited into the State Treasury to the credit of an account of
the department. Such moneys are continuously appropriated to the
department for payment of the costs of the department in carrying
out the provisions of this section.
SECTION 155. ORS 469.320 is amended to read:
469.320. (1) Except as provided in subsections (2) and (5) of
this section, no facility shall be constructed or expanded unless
a site certificate has been issued for the site thereof in the
manner provided in ORS 469.300 to 469.563, 469.590 to 469.619,
469.930 and 469.992. No facility shall be constructed or operated
except in conformity with the requirements of ORS 469.300 to
469.563, 469.590 to 469.619, 469.930 and 469.992.
(2) No site certificate shall be required for:
(a) An energy facility for which no site certificate has been
issued that, on August 2, 1993, had operable electric generating
equipment for a modification that uses the same fuel type and
increases electric generating capacity, if:
(A) The site is not enlarged; and
(B) The ability of the energy facility to use fuel for
electricity production under peak steady state operating
conditions is not more than 200 million Btu per hour greater than
it was on August 2, 1993, or the energy facility expansion is
called for in the short-term plan of action of an energy resource
plan that has been acknowledged by the Public Utility Commission
of Oregon.
(b) Construction or expansion of any interstate natural gas
pipeline or associated underground natural gas storage facility
authorized by and subject to the continuing regulation of the
Federal Energy Regulatory Commission or successor agency.
(c) An energy facility, except coal and nuclear power plants,
if the energy facility:
(A) Sequentially produces electrical energy and useful thermal
energy from the same fuel source; and
(B) Under normal operating conditions, has a useful thermal
energy output of no less than 33 percent of the total energy
output or the fuel chargeable to power heat rate value is not
greater than 6,000 Btu per kilowatt hour.
(d) Temporary storage, at the site of a nuclear-fueled thermal
power plant for which a site certificate has been issued by the
State of Oregon, of radioactive waste from the plant.
(e) An energy facility as defined in ORS 469.300 (9)(a)(G), if
the plant also produces a secondary fuel used on site for the
production of heat or electricity, if the output of the primary
fuel is less than six billion Btu of heat a day.
(f) An energy facility as defined in ORS 469.300 (9)(a)(G), if
the facility:
(A) Uses biomass exclusively from grain, whey or potatoes as
the source of material for conversion to a liquid fuel;
(B) Has received local land use approval under the applicable
acknowledged comprehensive plan and land use regulations of the
affected local government and the facility complies with any
statewide planning goals or rules of the Land Conservation and
Development Commission that are directly applicable to the
facility;
(C) Requires no new electric transmission lines or gas or
petroleum product pipelines that would require a site certificate
under subsection (1) of this section; and
(D) Produces synthetic fuel, at least 90 percent of which is
used in an industrial or refueling facility located within one
mile of the facility or is transported from the facility by rail
or barge.
(3) The Energy Facility Siting Council may review, and if
necessary, revise the fuel chargeable to power heat rate value
set forth in subsection (2)(c)(B) of this section. In making its
determination, the council shall ensure that the fuel chargeable
to power heat rate value for facilities set forth in subsection
(2)(c)(B) of this section remains significantly lower than the
fuel chargeable to power heat rate value for the best available,
commercially viable thermal power plant technology at the time of
the revision.
(4) Any person who proposes to construct or enlarge an energy
facility and who claims an exemption under subsection (2)(a), (c)
or (f) of this section from the requirement to obtain a site
certificate shall request the Energy Facility Siting Council to
determine whether the proposed facility qualifies for the claimed
exemption. The council shall make its determination within 60
days after the request for exemption is filed. An appeal from the
council's determination on a request for exemption shall be made
under ORS 469.403, except that the scope of review by the Supreme
Court shall be the same as a review { - by - } { + in + } a
circuit court under
{ - ORS 183.484 - } { + sections 1 to 24 of this 2001
Act + }. The record on review by the Supreme Court shall be the
record established in the council proceeding on the exemption.
(5) Notwithstanding subsection (1) of this section, a separate
site certificate shall not be required for:
(a) Transmission lines, storage facilities, pipelines or
similar related or supporting facilities, if such related or
supporting facilities are addressed in and are subject to a site
certificate for another energy facility;
(b) Expansion within the site or within the energy generation
area of a facility for which a site certificate has been issued,
if the existing site certificate has been amended to authorize
expansion; or
(c) Expansion, either within the site or outside the site, of
an existing council certified surface facility related to an
underground gas storage reservoir, if the existing site
certificate is amended to authorize expansion.
(6) If the substantial loss of the steam host causes a facility
exempt under subsection (2)(c) of this section to substantially
fail to meet the exemption requirements under subsection (2)(c)
of this section, the electric generating facility shall cease to
operate one year after the substantial loss of the steam host
unless an application for a site certificate has been filed in
accordance with the provisions of ORS 469.300 to 469.563.
(7) As used in this section:
(a) 'Total energy output' means the sum of useful thermal
energy output and useful electrical energy output.
(b) 'Useful thermal energy' means the verifiable thermal energy
used in any viable industrial or commercial process, heating or
cooling application.
SECTION 156. ORS 469.370 is amended to read:
469.370. (1) Based on its review of the application and the
comments and recommendations on the application from state
agencies and local governments, the Office of Energy shall
prepare and issue a draft proposed order on the application.
(2) Following issuance of the draft proposed order, the Energy
Facility Siting Council shall hold one or more public hearings on
the application for a site certificate in the affected area and
elsewhere, as the council considers necessary. Notice of the
hearing shall be mailed at least 20 days before the hearing. The
notice shall, at a minimum:
(a) Comply with the requirements of ORS 197.763 (2), with
respect to the persons notified;
(b) Include a description of the facility and the facility's
general location;
(c) Include the name of an agency representative to contact and
the telephone number where additional information may be
obtained;
(d) State that copies of the application and draft proposed
order are available for inspection at no cost and will be
provided at a reasonable cost; and
(e) State that failure to raise an issue in person or in
writing prior to the close of the record of the public hearing
with sufficient specificity to afford the decision maker an
opportunity to respond to the issue precludes consideration of
the issue in a contested case.
(3) Any issue that may be the basis for a contested case shall
be raised not later than the close of the record at or following
the final public hearing prior to issuance of the Office of
Energy's proposed order. Such issues shall be raised with
sufficient specificity to afford the council, the Office of
Energy and the applicant an adequate opportunity to respond to
each issue. A statement of this requirement shall be made at the
commencement of any public hearing on the application.
(4) After reviewing the application, the draft proposed order
and any testimony given at the public hearing and after
consulting with other agencies, the Office of Energy shall issue
a proposed order recommending approval or rejection of the
application. The Office of Energy shall issue public notice of
the proposed order, that shall include notice of a contested case
hearing specifying a deadline for requests to participate as a
party or limited party and a date for the prehearing conference.
(5) Following receipt of the proposed order from the Office of
Energy, the council shall conduct a contested case hearing on the
application for a site certificate in accordance with the
applicable provisions of ORS 183.310 to 183.550 and any
procedures adopted by the council. The applicant shall be a party
to the contested case. The council may permit any other person to
become a party to the contested case in support of or in
opposition to the application only if the person appeared in
person or in writing at the public hearing on the site
certificate application. Issues that may be the basis for a
contested case shall be limited to those raised on the record of
the public hearing under subsection (3) of this section, unless:
(a) The Office of Energy failed to follow the requirements of
subsection (2) or (3) of this section; or
(b) The action recommended in the proposed order, including any
recommended conditions of the approval, differs materially from
that described in the draft proposed order, in which case only
new issues related to such differences may be raised.
(6) If no person requests party status to challenge the Office
of Energy's proposed order, the proposed order shall be forwarded
to the council and the contested case hearing shall be concluded.
(7) At the conclusion of the contested case, the council shall
issue a final order, either approving or rejecting the
application based upon the standards adopted under ORS 469.501
and any additional statutes, rules or local ordinances determined
to be applicable to the facility by the project order, as
amended. The council shall make its decision by the affirmative
vote of at least four members approving or rejecting any
application for a site certificate. The council may amend or
reject the proposed order, so long as the council provides public
notice of its hearing to adopt a final order, and provides an
opportunity for the applicant and any party to the contested case
to comment on material changes to the proposed order, including
material changes to conditions of approval resulting from the
council's review. The council's order shall be considered a final
order for purposes of appeal. { + Judicial review of the final
order shall be as provided in sections 1 to 24 of this 2001
Act. + }
(8) Rejection or approval of an application, together with any
conditions that may be attached to the certificate, shall be
subject to judicial review as provided in ORS 469.403.
(9) The council shall either approve or reject an application
for a site certificate:
(a) Within 24 months after filing an application for a nuclear
installation, or for a thermal power plant, other than that
described in paragraph (b) of this subsection, with a name plate
rating of more than 200,000 kilowatts;
(b) Within nine months after filing of an application for a
site certificate for a combustion turbine power plant, a
geothermal-fueled power plant or an underground storage facility
for natural gas;
(c) Within six months after filing an application for a site
certificate for an energy facility, if the application is:
(A) To expand an existing industrial facility to include an
energy facility;
(B) To expand an existing energy facility to achieve a nominal
electric generating capacity of between 25 and 50 megawatts; or
(C) To add injection or withdrawal capacity to an existing
underground gas storage facility; or
(d) Within 12 months after filing an application for a site
certificate for any other energy facility.
(10) At the request of the applicant, the council shall allow
expedited processing of an application for a site certificate for
an energy facility with a generating capacity of less than 100
megawatts. No notice of intent shall be required. Following
approval of a request for expedited review, the Office of Energy
shall issue a project order, which may be amended at any time.
The council shall either approve or reject an application for a
site certificate within six months after filing the site
certificate application if there are no intervenors in the
contested case conducted under subsection (5) of this section. If
there are intervenors in the contested case, the council shall
either approve or reject an application within nine months after
filing the site certificate application. For purposes of this
subsection, the generating capacity of a thermal power plant is
the nameplate rating of the electrical generator proposed to be
installed in the plant. For a geothermal, wind or solar facility,
the generating capacity is the electrical generating capacity
available for delivery at the point the facility is connected to
the transmission system, as demonstrated through a power sales
contract or other objective means.
(11) Failure of the council to comply with the deadlines set
forth in subsection (9) or (10) of this section shall not result
in the automatic issuance or denial of a site certificate.
(12) The council shall specify in the site certificate a date
by which construction of the facility must begin.
(13) For a facility that is subject to and has been or will be
reviewed by a federal agency under the National Environmental
Policy Act, 42 U.S.C. Section 4321, et seq., the council shall
conduct its site certificate review, to the maximum extent
feasible, in a manner that is consistent with and does not
duplicate the federal agency review. Such coordination shall
include, but need not be limited to:
(a) Elimination of duplicative application, study and reporting
requirements;
(b) Council use of information generated and documents prepared
for the federal agency review;
(c) Development with the federal agency and reliance on a joint
record to address applicable council standards;
(d) Whenever feasible, joint hearings and issuance of a site
certificate decision in a time frame consistent with the federal
agency review; and
(e) To the extent consistent with applicable state standards,
establishment of conditions in any site certificate that are
consistent with the conditions established by the federal agency.
SECTION 157. ORS 469.403 is amended to read:
469.403. (1) Any party to a contested case proceeding may apply
for rehearing within 30 days from the date the approval or
rejection is served. The date of service shall be the date on
which the Energy Facility Siting Council delivered or mailed its
approval or rejection in accordance with ORS 183.470. The
application for rehearing shall set forth specifically the ground
upon which the application is based. No objection to the
council's approval or rejection of an application for a site
certificate or a site certificate amendment shall be considered
on rehearing without good cause shown unless the basis for the
objection is urged with reasonable specificity before the council
in the site certificate or amended site certificate process. Upon
such application, the council shall have the power to grant or
deny rehearing or to abrogate or modify its order without further
hearing. Unless the council acts upon the application for
rehearing within 30 days after the application is filed, the
application shall be considered denied. The filing of an
application for rehearing shall not, unless specifically ordered
by the council, operate as a stay of the site certificate or
amended site certificate for the facility.
(2) Any party to a contested case proceeding on a site
certificate or amended site certificate application may appeal
the council's approval or rejection of the site certificate or
amended site certificate application. Issues on appeal shall be
limited to those raised by the parties to the contested case
proceeding before the council.
(3) Jurisdiction for judicial review of the council's approval
or rejection of an application for a site certificate or amended
site certificate is conferred upon the Supreme Court.
Proceedings for review shall be instituted by filing a
{ - petition - } { + notice of appeal + } in the Supreme
Court. The { - petition - } { + notice + } shall be filed
within 60 days after the date of service of the council's final
order or within 30 days after the date the { - petition - }
{ + application + } for rehearing is denied or deemed denied.
Date of service shall be the date on which the council delivered
or mailed its order in accordance with ORS 183.470.
(4) The filing of the { - petition for judicial review - }
{ + notice of appeal + } shall stay the order, except that the
Supreme Court may lift the stay upon a showing that:
(a) The delay in construction will result in substantial
economic injury to the applicant; and
(b) Construction will not result in irreparable harm to
resources protected by applicable council standards or applicable
agency or local government standards.
(5) No bond or other undertaking shall be required for
operation of the stay under subsection (4) of this section.
(6) Except as otherwise provided in ORS 469.320 and this
section, the review by the Supreme Court shall be the same as the
review by the Court of Appeals described in { - ORS 183.482 - }
{ + sections 1 to 24 of this 2001 Act + }. The Supreme Court
shall give priority on its docket to { - such a petition for
review - } { + the appeal + }.
SECTION 158. ORS 469.421 is amended to read:
469.421. (1) Subject to the provisions of ORS 469.441, any
person submitting a notice of intent, a request for exemption
under ORS 469.320, a request for an expedited review under ORS
469.370, a request for the Office of Energy to approve a pipeline
under ORS 469.405 (3), an application for a site certificate or a
request to amend a site certificate shall pay all expenses
incurred by the Energy Facility Siting Council, the Office of
Energy and the Oregon Department of Administrative Services
related to the review and decision of the council. These expenses
may include legal expenses, expenses incurred in processing and
evaluating the application, issuing a final order or site
certificate, commissioning an independent study by a contractor,
state agency or local government under ORS 469.360, and changes
to the rules of the council that are specifically required and
related to the particular site certificate.
(2) Every person submitting a notice of intent to file for a
site certificate, a request for exemption or a request for
expedited review shall submit the fee required under the fee
schedule established under ORS 469.441 to the Office of Energy
when the notice or request is submitted to the council. To the
extent possible, the full cost of the evaluation shall be paid
from the fee paid under this subsection. However, if costs of the
evaluation exceed the fee, the person submitting the notice or
request shall pay any excess costs shown in an itemized statement
prepared by the council. In no event shall the council incur
evaluation expenses in excess of 110 percent of the fee initially
paid unless the council provides prior notification to the
applicant and a detailed projected budget the council believes
necessary to complete the project. If costs are less than the fee
paid, the excess shall be refunded to the person submitting the
notice or request.
(3) Before submitting a site certificate application, the
applicant shall request from the Office of Energy an estimate of
the costs expected to be incurred in processing the application.
The Office of Energy shall inform the applicant of that amount
and require the applicant to make periodic payments of such costs
pursuant to a cost reimbursement agreement. The cost
reimbursement agreement shall provide for payment of 25 percent
of the estimated costs when the applicant submits the
application. If costs of the evaluation exceed the estimate, the
applicant shall pay any excess costs shown in an itemized
statement prepared by the council. In no event shall the council
incur evaluation expenses in excess of 110 percent of the fee
initially estimated unless the council provided prior
notification to the applicant and a detailed projected budget the
council believes is necessary to complete the project. If costs
are less than the fee paid, the council shall refund the excess
to the applicant.
(4) Any person who is delinquent in the payment of fees under
subsections (1) to (3) of this section shall be subject to the
provisions of subsection (11) of this section.
(5) Subject to the provisions of ORS 469.441, each holder of a
certificate shall pay an annual fee, due every July 1 following
issuance of a site certificate. For each fiscal year, upon
approval of the Office of Energy's budget authorization by a
regular session of the Legislative Assembly or as revised by the
Emergency Board, the administrator of the Office of Energy
promptly shall enter an order establishing an annual fee based on
the amount of revenues that the administrator estimates is needed
to fund the cost of assuring that the facility is being operated
consistently with the terms and conditions of the site
certificate, any order issued by the Office of Energy under ORS
469.405 (3) and any applicable health or safety standards. In
determining this cost, the administrator shall include both the
actual direct cost to be incurred by the council, the Office of
Energy and the Oregon Department of Administrative Services to
assure that the facility is being operated consistently with the
terms and conditions of the site certificate, any order issued by
the Office of Energy under ORS 469.405 (3) and any applicable
health or safety standards, and the general costs to be incurred
by the council, the Office of Energy and the Oregon Department of
Administrative Services to assure that all certificated
facilities are being operated consistently with the terms and
conditions of the site certificates, any orders issued by the
Office of Energy under ORS 469.405 (3) and any applicable health
or safety standards that cannot be allocated to an individual,
licensed facility. Not more than 20 percent of the annual fee
charged each facility shall be for the recovery of these general
costs. The fees for direct costs shall reflect the size and
complexity of the facility and its certificate conditions.
(6) Each holder of a site certificate executed after July 1 of
any fiscal year shall pay a fee for the remaining portion of the
year. The amount of the fee shall be set at the cost of
regulating the facility during the remaining portion of the year
determined in the same manner as the annual fee.
(7) When the actual costs of regulation incurred by the
council, the Office of Energy and the Oregon Department of
Administrative Services for the year, including that portion of
the general regulation costs that have been allocated to a
particular facility, are less than the annual fees for that
facility, the unexpended balance shall be refunded to the site
certificate holder. When the actual regulation costs incurred by
the council, the Office of Energy and the Oregon Department of
Administrative Services for the year, including that portion of
the general regulation costs that have been allocated to a
particular facility, are projected to exceed the annual fee for
that facility, the administrator may issue an order revising the
annual fee.
(8) In addition to any other fees required by law, each energy
resource supplier shall pay to the Office of Energy annually its
share of an assessment to fund the activities of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the Office of Energy, determined by the
administrator in the following manner:
(a) Upon approval of the budget authorization of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the Office of Energy by a regular session of the
Legislative Assembly, the administrator shall promptly enter an
order establishing the amount of revenues required to be derived
from an assessment pursuant to this subsection in order to fund
the activities of the Energy Facility Siting Council, the Oregon
Department of Administrative Services and the Office of Energy,
including those enumerated in ORS 469.030 and others authorized
by law, for the first fiscal year of the forthcoming biennium. On
or before June 1 of each even-numbered year, the administrator
shall enter an order establishing the amount of revenues required
to be derived from an assessment pursuant to this subsection in
order to fund the activities of the Energy Facility Siting
Council, the Oregon Department of Administrative Services and the
Office of Energy, including those enumerated in ORS 469.030 and
others authorized by law, for the second fiscal year of the
biennium which order shall take into account any revisions to the
biennial budget of the Energy Facility Siting Council, the Office
of Energy and the Oregon Department of Administrative Services
made by the Emergency Board or by a special session of the
Legislative Assembly subsequent to the most recently concluded
regular session of the Legislative Assembly.
(b) Each order issued by the administrator pursuant to
paragraph (a) of this subsection shall allocate the aggregate
assessment set forth therein to energy resource suppliers in
accordance with paragraph (c) of this subsection.
(c) The amount assessed to an energy resource supplier shall be
based on the ratio which that supplier's annual gross operating
revenue derived within this state in the preceding calendar year
bears to the total gross operating revenue derived within this
state during that year by all energy resource suppliers. The
assessment against an energy resource supplier shall not exceed
five-tenths of one percent of the supplier's gross operating
revenue derived within this state in the preceding calendar year.
The administrator shall exempt from payment of an assessment any
individual energy resource supplier whose calculated share of the
annual assessment is less than $250.
(d) The administrator shall send each energy resource supplier
subject to assessment pursuant to this subsection a copy of each
order issued, by registered or certified mail. The amount
assessed to the energy resource supplier pursuant to the order
shall be considered to the extent otherwise permitted by law a
government-imposed cost and recoverable by the energy resource
supplier as a cost included within the price of the service or
product supplied.
(e) The amounts assessed to individual energy resource
suppliers pursuant to paragraph (c) of this subsection shall be
paid to the Office of Energy as follows:
(A) Amounts assessed for the first fiscal year of a biennium
shall be paid not later than 90 days following the close of the
regular session of the Legislative Assembly; and
(B) Amounts assessed for the second fiscal year of a biennium
shall be paid not later than July 1 of each even-numbered year.
(f) An energy resource supplier shall provide the
administrator, on or before May 1 of each year, a verified
statement showing its gross operating revenues derived within the
state for the preceding calendar year. The statement shall be in
the form prescribed by the administrator and is subject to audit
by the administrator. The statement shall include an entry
showing the total operating revenue derived by petroleum
suppliers from fuels sold that are subject to the requirements of
section 3, Article IX of the Oregon Constitution, ORS 319.020
with reference to aircraft fuel and motor vehicle fuel, and ORS
319.530. The administrator may grant an extension of not more
than 15 days for the requirements of this subsection if:
(A) The energy supplier makes a showing of hardship caused by
the deadline;
(B) The energy supplier provides reasonable assurance that the
energy supplier can comply with the revised deadline; and
(C) The extension of time does not prevent the Energy Facility
Siting Council, the Oregon Department of Administrative Services
or the Office of Energy from fulfilling their statutory
responsibilities.
(g) As used in this section:
(A) 'Energy resource supplier' means an electric utility,
natural gas utility or petroleum supplier supplying electricity,
natural gas or petroleum products in Oregon.
(B) 'Gross operating revenue' means gross receipts from sales
or service made or provided within this state during the regular
course of the energy supplier's business, but does not include
either revenue derived from interutility sales within the state
or revenue received by a petroleum supplier from the sale of
fuels that are subject to the requirements of section 3, Article
IX of the Oregon Constitution, ORS 319.020 or 319.530.
(C) 'Petroleum supplier' has the meaning given that term in ORS
469.020.
(h) In determining the amount of revenues which must be derived
from any class of energy resource suppliers by assessment
pursuant to this subsection, the administrator shall take into
account all other known or readily ascertainable sources of
revenue to the Energy Facility Siting Council, the Oregon
Department of Administrative Services and the Office of Energy,
including, but not limited to, fees imposed under this section
and federal funds, and may take into account any funds previously
assessed pursuant to ORS 469.420 (1979 Replacement Part) or
section 7, chapter 792, Oregon Laws 1981.
(i) Orders issued by the administrator pursuant to this section
shall be { + orders other than contested case + } subject to
judicial review under { - ORS 183.484 - } { + sections 1 to
24 of this 2001 Act + }. The taking of judicial review shall not
operate to stay the obligation of an energy resource supplier to
pay amounts assessed to it on or before the statutory deadline.
(9)(a) In addition to any other fees required by law, each
operator of a nuclear fueled thermal power plant or nuclear
installation within this state shall pay to the Office of Energy
annually on July 1, an assessment in an amount determined by the
administrator to be necessary to fund the activities of the state
and the counties associated with emergency preparedness for a
nuclear fueled thermal power plant or nuclear installation. The
assessment shall not exceed $461,250 per year. Moneys collected
as assessments under this subsection are continuously
appropriated to the Office of Energy for this purpose.
(b) The Office of Energy shall maintain and shall cause other
state agencies and counties to maintain time and billing records
for the expenditure of any fees collected from an operator of a
nuclear fueled thermal power plant under paragraph (a) of this
subsection.
(10) Reactors operated by a college, university or graduate
center for research purposes and electric utilities not connected
to the Northwest Power Grid are exempt from the fee requirements
of subsections (5), (8) and (9) of this section.
(11)(a) All fees assessed by the administrator against holders
of site certificates for facilities that have an installed
capacity of 500 megawatts or greater may be paid in several
installments, the schedule for which shall be negotiated between
the administrator and the site certificate holder.
(b) Energy resource suppliers or applicants or holders of a
site certificate who fail to pay a fee provided under subsections
(1) to (9) of this section or the fees required under ORS 469.360
after it is due and payable shall pay, in addition to that fee, a
penalty of two percent of the fee a month for the period that the
fee is past due. Any payment made according to the terms of a
schedule negotiated under paragraph (a) of this subsection shall
not be considered past due. The administrator may bring an action
to collect an unpaid fee or penalty in the name of the State of
Oregon in a court of competent jurisdiction. The court may award
reasonable attorney fees to the administrator if the
administrator prevails in an action under this subsection. The
court may award reasonable attorney fees to a defendant who
prevails in an action under this subsection if the court
determines that the administrator had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court.
SECTION 159. ORS 469.441 is amended to read:
469.441. (1) All expenses incurred by the Energy Facility
Siting Council and the Office of Energy under ORS 469.360 (1) and
469.421 that are charged to or allocated to the fee paid by an
applicant or the holder of a site certificate shall be necessary,
just and reasonable. Upon request, the Office of Energy or the
council shall provide a detailed justification for all charges to
the applicant or site certificate holder. Not later than January
1 of each odd-numbered year, the council by order shall establish
a schedule of fees which those persons submitting a notice of
intent, a request for an exemption, a request for a pipeline
described in ORS 469.405 (3) or a request for an expedited review
must submit under ORS 469.421 at the time of submitting the
notice of intent, request for exemption, request for pipeline or
request for expedited review. The fee schedule shall be designed
to recover the council's actual costs of evaluating the notice of
intent, request for exemption, request for pipeline or request
for expedited review subject to any applicable expenditure
limitation in the council's budget. Fees shall be based upon
actual, historical costs incurred by the council and Office of
Energy to the extent historical costs are available. The fees
established by the schedule shall reflect the size and complexity
of the project for which a notice of intent, request for
exemption, request for pipeline or request for expedited review
is submitted, whether the notice of intent, request for
exemption, request for pipeline or request for expedited review
is for a new or existing facility and other appropriate variables
having an effect on the expense of evaluation.
(2) If a dispute arises regarding the necessity or
reasonableness of expenses charged to or allocated to the fee
paid by an applicant or site certificate holder, the applicant or
holder may seek judicial review for the amount of expenses
charged or allocated in { - circuit court as - } { + the
manner + } provided in { - ORS 183.480, 183.484, 183.490 and
183.500 - } { + sections 1 to 24 of this 2001 Act for an order
other than contested case + }. If the applicant or holder
establishes that any of the charges or allocations are
unnecessary or unreasonable, the council or the Office of Energy
shall refund the amount found to be unnecessary or unreasonable.
The applicant or holder shall not waive the right to judicial
review by paying the portion of the fee or expense in dispute.
SECTION 160. ORS 469.490 is amended to read:
469.490. All rules adopted by the Energy Facility Siting
Council pursuant to ORS 469.300 to 469.563, 469.590 to 469.619,
469.930 and 469.992 shall be adopted in the manner required by
ORS 183.310 to 183.550. { + Notwithstanding sections 1 to 24 of
this 2001 Act, + } the validity of any rule adopted by the
council may be determined only upon { - a petition - } { + an
appeal + } by any person to the Supreme Court. The
{ - petition - } { + notice of appeal + } must be filed within
60 days after the date the rule becomes effective under ORS
183.355. The review by the Supreme Court of the validity of any
rule adopted by the council shall otherwise be according to
{ - ORS 183.400 - } { + sections 1 to 24 of this 2001 Act + }.
The Supreme Court shall give priority on its docket to { - such
a petition for review - } { + the appeal + }.
SECTION 161. ORS 471.331, as amended by section 50, chapter
351, Oregon Laws 1999, is amended to read:
471.331. (1) Whenever the Oregon Liquor Control Commission
proposes to refuse to renew or to suspend or cancel any license
issued under this chapter because of adverse neighborhood impact
of the licensee's operation, notwithstanding ORS 183.435, the
commission shall grant the affected licensee 20 days from
notification of the proposed commission action to request a
hearing.
(2) { - Notwithstanding ORS 183.482 (3), - } The Oregon
Liquor Control Commission shall not stay any order refusing a
license or suspending or canceling any license if the order was
entered on grounds stated in ORS 471.313 (5) or 471.315 (1)(c).
SECTION 162. ORS 479.195 is amended to read:
479.195. (1) After January 1, 1968, all dance halls, clubs,
amusement halls, auditoriums and every place of public assembly
not having fixed seats and having a capacity of more than 100
persons shall post and keep posted a notice of the maximum number
of persons allowed at any one time as established by regulations
of the State Fire Marshal or by the approved authority when such
public assemblies are located within the jurisdiction of a
governmental subdivision granted the exemption provided by ORS
476.030 (3). All such capacity notices shall be on a form
approved or provided by the State Fire Marshal and shall be
securely fixed and posted in a conspicuous place so as to be
readily visible to the occupants of such place of assembly.
(2) If the State Fire Marshal, or deputies, assistants as
defined in ORS 476.060, or the approved authority, as provided by
ORS 476.030 (3), upon examination or inspection finds a building
or other structure described in subsection (1) of this section,
to be occupied by a number of persons in excess of the maximum
number of persons allowed at any one time as set forth in the
capacity notice, the State Fire Marshal, or deputies, assistants
as defined in ORS 476.060, or the approved authority, as provided
in ORS 476.030 (3), may close the building or other structure for
use or occupancy until compliance has been made.
(3) { - The owner of any building or other structure closed
under subsection (2) of this section shall have immediate access
to the circuit court for the county in which the building or
other structure is located for review of the order of exclusion
or removal. Such access may be in the form of any appropriate
judicial proceeding - } { + Judicial review of the order of
exclusion or removal shall be as provided in sections 1 to 24 of
this 2001 Act + } and shall be given priority over all other
cases on the docket of the circuit court.
(4) The closure provided for in subsection (2) of this section
shall not exclude any other remedies available to the State Fire
Marshal, deputies, or approved authority, as provided by ORS
476.030 (3).
SECTION 163. ORS 480.355 is amended to read:
480.355. (1) Notwithstanding ORS 480.345, upon application from
the owner or operator of a nonretail facility, the State Fire
Marshal may issue a conditional use license under which the
nonretail facility may permit persons who are not qualified as
nonretail customers under ORS 480.345 (2) to (4) to dispense
Class 1 flammable liquids at a nonretail facility.
(2) In issuing a conditional use license, the State Fire
Marshal may waive the nonretail customer requirements of ORS
480.345 (2) to (4), but may not waive safety training
requirements contained in ORS 480.345.
(3) The State Fire Marshal may issue a conditional use license
under this section if the State Fire Marshal determines that:
(a) There is no facility where Class 1 flammable liquids are
dispensed by attendants at retail within seven miles of the
nonretail facility, and other undue hardship conditions exist, as
may be determined by the State Fire Marshal by rule;
(b) The nonretail facility exists on property used as a
private, nonprofit golf club not open to the general public and
the private, nonprofit golf club members who are not qualified as
nonretail customers use the nonretail facility only for the
fueling of vehicles that are used exclusively on the property of
the private, nonprofit golf club and are not designed for highway
use; or
(c) The nonretail facility exists at an airport registered,
licensed or recognized as an airport by the Department of
Transportation, and persons who are not qualified as nonretail
customers use the nonretail facility only for the fueling of
aircraft.
(4) The State Fire Marshal shall consider comments of local
residents or local government bodies to determine if undue
hardship exists.
(5) The provisions of ORS 480.345 and 480.350 apply to a
license application made under this section, except those
provisions whose applicability is waived by the State Fire
Marshal under this section.
(6) The applicant for a conditional use license shall bear the
burden of proof that the requirements of this section and of any
rules of the State Fire Marshal adopted pursuant to this section
are satisfied.
(7) The State Fire Marshal shall investigate any application
made under this section and hold at least one public hearing to
determine if the conditional use license should be issued. The
State Fire Marshal may waive the requirement for a hearing if the
application for a conditional use license is made by a private,
nonprofit golf club or by an airport described in subsection
(3)(c) of this section.
(8) Any person who makes application as provided for in this
section, and whose application is denied, shall be entitled to a
hearing upon request. The hearing shall be conducted as a
contested case hearing pursuant to the applicable provisions of
ORS 183.413 to 183.470.
(9) Judicial review of an order made after a hearing under
subsection (7) of this section shall be as provided { - in ORS
183.480 to 183.497 for judicial review of contested cases - }
{ + for contested case orders under sections 1 to 24 of this
2001 Act + }.
SECTION 164. ORS 480.385 is amended to read:
480.385. (1) The State Fire Marshal may impose a civil penalty
not to exceed $500 for each violation of any provision of ORS
480.315 to 480.385 or of any applicable rule adopted by the State
Fire Marshal.
(2) A civil penalty imposed under this section shall become due
and payable 10 days after the order imposing the civil penalty
becomes final by operation of law or on appeal. A person against
whom a civil penalty is to be imposed shall be served with a
notice in the form provided in ORS 183.415. Service of the notice
shall be accomplished in the manner provided by ORS 183.415.
(3) The person to whom the notice is addressed shall have 20
days from the date of service of the notice provided for in
subsection (2) of this section in which to make written
application for a hearing. If no application for a hearing is
made, the State Fire Marshal may make a final order imposing the
penalty.
(4) Any person who makes application as provided for in
subsection (3) of this section shall be entitled to a hearing.
The hearing shall be conducted as a contested case hearing
pursuant to the applicable provisions of ORS 183.413 to 183.470.
(5) Judicial review of an order made after a hearing under
subsection (4) of this section shall be as provided in { - ORS
183.480 to 183.497 - } { + sections 1 to 24 of this 2001
Act + } for judicial review of contested cases.
(6) When an order assessing a civil penalty under this section
becomes final by operation of law or on appeal, and the amount of
penalty is not paid within 10 days after the order becomes final,
the order may be recorded with the county clerk in any county of
this state. The clerk shall thereupon record the name of the
person incurring the penalty and the amount of the penalty in the
County Clerk Lien Record.
(7) All amounts recovered under this section shall be deposited
with the State Treasurer and shall be placed in the State Fire
Marshal Fund.
SECTION 165. ORS 480.660 is amended to read:
480.660. (1) If an inspector determines that any condition
exists that is a violation of the safety standards prescribed
pursuant to ORS 480.510 to 480.665, the inspector shall post a
notice in plain view on or near the affected boiler or pressure
vessel that specifies the defective condition, and shall provide
a copy of the notice to the owner or user of the affected boiler
or pressure vessel, or to a representative of the owner or user.
(2) If no immediate hazard to health and safety is evident, the
notice shall state that correction of the defective condition is
required within 30 days of the date of the inspection. If the
correction is not completed within the 30-day period, the owner
or user of the boiler or pressure vessel may apply to the chief
boiler inspector for extension of the time for making the
correction. If the chief boiler inspector determines that
corrective action was commenced within the time period specified
in the notice, an extension may be granted for such time as is
required to complete corrective action.
(3) If an immediate hazard to health and safety is evident, the
notice shall prohibit further use of the boiler or pressure
vessel. The inspector immediately shall report that action to the
chief boiler inspector.
(4) If any person is aggrieved by a determination made upon
inspection under this section, the person first shall appeal that
determination to the chief boiler inspector and then to the Board
of Boiler Rules. Subsequent appeal shall be as provided in
{ - ORS 183.480 to 183.550 - } { + sections 1 to 24 of this
2001 Act + }.
SECTION 166. ORS 496.176 is amended to read:
496.176. (1) The lists of threatened species or endangered
species established pursuant to ORS 496.172 (2) shall include:
(a) Those species of wildlife listed as of May 15, 1987, as a
threatened species or an endangered species pursuant to the
federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C.
1531), as amended; and
(b) Those species determined as of May 15, 1987, by the State
Fish and Wildlife Commission to be threatened species or
endangered species.
(2) The commission, by rule, may add or remove any wildlife
species from either list, or change the status of any species on
the lists, upon a determination that the species is or is not a
threatened species or an endangered species.
(3) A determination that a species is a threatened species or
an endangered species shall be based on documented and verifiable
scientific information about the species' biological status. To
list a species as a threatened species or an endangered species
under ORS 496.004 and 496.171 to 496.182, the commission shall
determine that the natural reproductive potential of the species
is in danger of failure due to limited population numbers,
disease, predation or other natural or human actions affecting
its continued existence and, to the extent possible, assess the
relative impact of human actions. In addition, the commission
shall determine that one or more of the following factors exists:
(a) That most populations are undergoing imminent or active
deterioration of their range or primary habitat;
(b) That overutilization for commercial, recreational,
scientific or educational purposes is occurring or is likely to
occur; or
(c) That existing state or federal programs or regulations are
inadequate to protect the species or its habitat.
(4) Determinations required by subsection (3) of this section
shall be made by the commission on the basis of verifiable
scientific and other data after consultation with federal
agencies, other interested state agencies, the Natural Heritage
Advisory Council, other states having a common interest in the
species and interested persons and organizations.
(5) Any person may petition the commission to, by rule, add,
remove or change the status of a species on the list:
(a) A petition shall clearly indicate the action sought and
shall include documented scientific information about the
species' biological status to justify the requested action.
(b) Within 90 days of receipt of a petition, the commission
shall respond in writing to the petitioner indicating whether the
petition presents substantial scientific information to warrant
the action requested.
(c) If the petition is found to present such information, the
commission shall commence rulemaking.
(d) A final determination by the commission concerning the
action requested in a petition shall be provided within one year
from the date of receipt of the petition, with the option for an
additional 12-month extension of time to complete the listing if
the commission determines that limited information or other
appropriate considerations require the extension.
(e) If the petition is denied, the petitioner may seek judicial
review as provided { + for an order other than contested
case + } in { - ORS 183.484 - } { + sections 1 to 24 of this
2001 Act + }.
(6) The commission may determine not to list a species as a
threatened species or an endangered species in any of the
following cases:
(a) If the species has been listed pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended.
(b) If the species is currently on the list as a sensitive
species, or is a candidate species or has been petitioned for
listing pursuant to the federal Endangered Species Act of 1973
(P.L. 93-205, 16 U.S.C. 1531), as amended.
(c) If the species has been determined, pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended, to not qualify as a threatened species or an endangered
species.
(7) Notwithstanding subsections (1) to (5) of this section, the
commission shall take emergency action to add a species to the
list of threatened species or endangered species if it determines
there is a significant threat to the continued existence of the
species within the state:
(a) The commission shall publish notice of such addition in the
Secretary of State's bulletin and shall mail notice to affected
or interested persons whose names are included on the
commission's mailing list for such purposes.
(b) Such emergency addition shall take effect immediately upon
publication in the Secretary of State's bulletin and shall remain
valid for a period no longer than one year, unless during the
period the commission completes rulemaking procedures as provided
in subsection (5) of this section.
(8) The commission shall periodically review the status of all
threatened species and endangered species listed under ORS
496.171 to 496.192. Each species shall be reviewed at least once
every five years to determine whether verifiable scientific
information exists to justify its reclassification or removal
from the list, according to the criteria listed under subsections
(3) and (4) of this section. If a determination is made to
reclassify a species or remove it from the list, the commission,
within 90 days, shall commence rulemaking to change the status of
the species.
(9) Notwithstanding the provisions of this section, the
commission may decide not to list a species that otherwise
qualifies as a threatened or endangered species within this state
if the commission determines that the species is secure outside
this state or the species is not of cultural, scientific or
commercial significance to the people of this state.
SECTION 167. ORS 508.762 is amended to read:
508.762. (1) A person whose application for renewal or transfer
of a permit established pursuant to ORS 508.760 is denied may
make written request to the Commercial Fishery Permit Board for
review of the denial. The review provided in this subsection is
in lieu of any such review by the State Department of Fish and
Wildlife or the State Fish and Wildlife Commission. The request
shall be in such form and shall contain such information as the
board considers appropriate. The request shall be accompanied by
a nonrefundable fee of $75. Such fee shall apply toward the
permit fee of an applicant seeking review who is successful in
obtaining a permit.
(2) The board shall review a denial of an application for
renewal or request to transfer a permit according to the
applicable provisions of ORS 183.310 to 183.550. Orders issued by
the board are not subject to review by the commission, but may be
appealed as provided in { - ORS 183.480 to 183.500 - } { +
sections 1 to 24 of this 2001 Act + }.
(3) According to the applicable provisions of ORS 183.310 to
183.550, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal of permits.
SECTION 168. ORS 508.765 is amended to read:
508.765. (1) Notwithstanding any other provision of the
commercial fishing laws, in order to provide a roe-herring
commercial fishery with optimum profits to those engaged in the
fishery and to prevent a concentration of fishing effort that
would deplete the resource, the State Fish and Wildlife
Commission, by rule, shall establish a system for limiting
participation in the roe-herring commercial fishing. Any such
system may include, but is not limited to, provisions on the
following matters:
(a) Establishment of criteria for initial entry into fishery
participation and for annual qualification for participation
thereafter.
(b) Establishment of terms and conditions for transferring
participation rights.
(2) The annual fee to participate in the roe-herring fishery is
$75.
(3)(a) A denial by the commission of an application for renewal
of any permit or transfer of any permit established under this
section shall be subject to review by the Commercial Fishery
Permit Board upon written request of the applicant. The review
provided under this subsection shall be in lieu of any such
review by the commission or the State Department of Fish and
Wildlife.
(b) Request for review under this subsection shall be on such
forms and contain such information as the board shall determine.
Requests for review shall be accompanied by a $75 fee, which fee
shall apply toward any applicable permit fees resulting from an
order of the board in favor of the requesting applicant.
(4) Orders issued by the board are not subject to review by the
commission but may be appealed as provided in { - ORS 183.310
to 183.550 - } { + sections 1 to 24 of this 2001 Act + }.
(5) According to the provisions of ORS 183.310 to 183.550, the
board shall adopt such rules as it determines necessary to carry
out its duties, functions and powers.
SECTION 169. ORS 508.796 is amended to read:
508.796. (1) An individual whose application for renewal of the
permit required by ORS 508.775 is denied by the State Department
of Fish and Wildlife may make written request to the Commercial
Fishery Permit Board for review of the denial. The review
provided in this subsection is in lieu of any such review by the
department or the State Fish and Wildlife Commission. The request
shall be in such form and shall contain such information as the
board considers appropriate. The request shall be accompanied by
a nonrefundable fee of $75. Such fees shall apply toward the
permit fee of successful applicants.
(2) In accordance with any applicable provision of ORS 183.310
to 183.550, the board shall review denials of applications for
renewal of permits. Orders issued by the board are not subject to
review by the commission, but may be appealed as provided in
{ - ORS 183.480 to 183.500 - } { + sections 1 to 24 of this
2001 Act + }. The board may waive requirements for renewal of
permits if the board finds:
(a) That the individual for personal or economic reasons chose
to actively commercially fish in some other fishery during the
Columbia River gillnet salmon seasons; or
(b) That the individual failed to meet the requirements as the
result of illness, accident or other circumstances beyond the
individual's control.
(3) In accordance with any applicable provision of ORS 183.310
to 183.550, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal of permits.
(5) Notwithstanding any other provision of law, without the
prior approval of the Commercial Fishery Permit Board, a Columbia
River gillnet salmon vessel permit acquired as a result of a
waiver pursuant to subsection (2) of this section may not be
transferred to another vessel until the vessel for which the
permit was issued has been used in the Columbia River gillnet
salmon fishery for two or more calendar years.
SECTION 170. ORS 508.825 is amended to read:
508.825. (1) An individual whose application for renewal or
transfer of the permit required by ORS 508.801 is denied by the
State Department of Fish and Wildlife may make written request to
the Commercial Fishery Permit Board for review of the denial. The
review provided in this subsection is in lieu of any such review
by the department or the State Fish and Wildlife Commission. The
request shall be in such form and shall contain such information
as the board considers appropriate. The request shall be
accompanied by a nonrefundable fee of $75. Such fee shall apply
toward the permit fee of successful applicants.
(2) In accordance with any applicable provision of ORS 183.310
to 183.550, the board shall review denials of applications for
renewal or transfer of permits. Orders issued by the board are
not subject to review by the commission, but may be appealed as
provided in { - ORS 183.480 to 183.550 - } { + sections 1 to
24 of this 2001 Act + }. The board may waive requirements for
renewal or transfer of permits if the board finds that the
individual fails to meet the requirements as the result of
illness, accident or other circumstances beyond the individual's
control.
(3) In accordance with any applicable provision of ORS 183.310
to 183.550, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal or transfer of permits.
SECTION 171. ORS 508.867 is amended to read:
508.867. (1) Notwithstanding ORS 508.755 (6)(b) and (c), an
individual whose application for renewal of the permit required
by ORS 508.840 is denied by the State Department of Fish and
Wildlife may make written request to the Commercial Fishery
Permit Board for review of the denial. The review provided in
this subsection is in lieu of any such review by the department
or the State Fish and Wildlife Commission. The request shall be
in such form and shall contain such information as the board
considers appropriate. The request shall be accompanied by a
nonrefundable fee of $75. Such fee shall apply toward the permit
fee of successful applicants.
(2) In accordance with any applicable provision of ORS 183.310
to 183.550, the board shall review denials of applications for
renewal of permits. Orders issued by the board are not subject to
review by the commission, but may be appealed as provided in
{ - ORS 183.480 to 183.550 - } { + sections 1 to 24 of this
2001 Act + }. The board may waive requirements for renewal of
permits if the board finds that the individual for personal or
economic reasons chooses to actively fish the permit vessel in
some other ocean fishery or if the board finds that the
individual fails to meet the requirements as the result of
illness, accident or other circumstances beyond the individual's
control.
(3) In accordance with any applicable provision of ORS 183.310
to 183.550, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department the authority to
waive eligibility requirements for renewal of permits.
SECTION 172. ORS 508.910 is amended to read:
508.910. (1) An individual whose application for renewal of the
permit required by ORS 508.880 is denied by the State Department
of Fish and Wildlife may make written request to the Commercial
Fishery Permit Board for review of the denial. The review
provided in this subsection is in lieu of any such review by the
department or the State Fish and Wildlife Commission. The request
shall be in such form and shall contain such information as the
board considers appropriate. The request shall be accompanied by
a nonrefundable fee of $75. Such fee shall apply toward the
permit fee of successful applicants.
(2) In accordance with any applicable provision of ORS 183.310
to 183.550, the board shall review denials of applications for
renewal of permits. Orders issued by the board are not subject to
review by the commission, but may be appealed as provided in
{ - ORS 183.480 to 183.550 - } { + sections 1 to 24 of this
2001 Act + }. The board may waive requirements for renewal of
permits if the board finds that the individual fails to meet the
requirements as the result of illness, accident or other
circumstances beyond the individual's control.
(3) In accordance with any applicable provision of ORS 183.310
to 183.550, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal of permits.
SECTION 173. ORS 508.941 is amended to read:
508.941. (1) The system established under ORS 508.921 shall
include any other provisions for participation that the State
Fish and Wildlife Commission considers appropriate.
(2) Any determination by the commission regarding the
eligibility of a vessel to participate in the ocean Dungeness
crab commercial fishery or to transfer participation rights is
subject to review by the Commercial Fishery Permit Board, in
accordance with ORS 183.310 to 183.550. The board may waive the
eligibility requirements contained in ORS 508.931 if the board
finds that the individual fails to meet the requirements as the
result of illness, fire, sinking, accident or other circumstances
beyond the individual's control. In making a determination of
eligibility under this section, the board shall consider the
applicant's history of participation in the Oregon ocean
Dungeness crab fishery. If a vessel for which application is made
is owned by a person who has served in the Armed Forces of the
United States and the person establishes that a service-related
disability prevented the person from lawfully landing crab in two
seasons during the prescribed time period, there is a rebuttable
presumption in favor of issuing an illness waiver for one of the
two seasons of lawfully landing crab in Oregon required under ORS
508.931 so as to require the landing of crab in only one season
during the prescribed time period. The rebuttable presumption
created by this subsection may be overcome only by clear and
convincing evidence that the service-related disability of the
person did not prevent the person from lawfully landing crab in
two seasons during the prescribed time period. Orders issued by
the board are not subject to review by the commission, but may be
appealed as provided in
{ - ORS 183.480 to 183.550 - } { + sections 1 to 24 of this
2001 Act + }.
(3) A commercial fishing vessel that holds a valid Washington
or California permit to fish for ocean Dungeness crab shall be
eligible to participate in the Oregon ocean Dungeness crab
fishery provided there is reciprocal statutory authority in
Washington or California that provides for equal access for
vessels holding Oregon ocean Dungeness crab permits to Washington
or California coastal waters and Washington waters of the
Columbia River. If such reciprocal statutory authority exists, a
vessel licensed by Washington or California is eligible to
participate in accordance with rules that establish reciprocal
border agreements that recognize traditional fishing patterns.
(4) The annual fee to participate in the ocean Dungeness crab
fishery is $75, except that the fee for 1995 is waived.
SECTION 174. ORS 517.983 is amended to read:
517.983. (1) The applicant or any person who appeared before a
permitting agency at the consolidated public hearing under ORS
517.981, either orally or in writing, regarding a permit granted
or denied by the permitting agency may file with the State
Geologist a written request for a consolidated contested case
hearing. The request shall be filed within 30 days after the date
the permit was granted or denied.
(2) Upon receipt of a request under subsection (1) of this
section, the State Department of Geology and Mineral Industries
shall schedule a consolidated contested case hearing which shall
be held not less than 60 days or more than 75 days after the
notice of permit issuance under ORS 517.982. The hearing shall be
conducted in accordance with the provisions applicable to
contested case proceedings under ORS 183.310 to 183.550. Any
permit granted by a permitting agency shall be suspended until
completion of the administrative hearings process.
(3) Hearings under this section shall be conducted by a hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999.
(4) The hearing officer shall prepare a proposed order for each
contested permit. A party may file written exceptions to the
proposed order with the permitting agency. If the permitting
agency determines that additional information may be included in
the record, the agency shall remand the order to the appropriate
hearing officer for further consideration. After receiving
exceptions and hearing argument on the exceptions, the governing
body or person within the permitting agency responsible for
making a final decision on a permit may adopt the proposed order
or issue a new order.
(5) { + Notwithstanding sections 1 to 24 of this 2001 Act, + }
jurisdiction for judicial review of a permitting agency's
issuance or denial of a permit is conferred upon the Supreme
Court. Proceedings for review shall be instituted by filing a
petition in the Supreme Court. The petition shall be filed within
60 days following the date the permit is issued or denied. If the
permit with prescribed conditions is approved, the filing of the
petition for review shall stay the permit during the pendency of
judicial review for a period of up to six months from the date
the petition for review is filed. The Supreme Court may extend
the stay beyond the six-month period upon written request and a
showing by the petitioner that the activities under the permit
could result in irreparable harm to the site. Except as otherwise
provided in this subsection, the review by the Supreme Court
shall be as provided in { - ORS 183.482 - } { + sections 1 to
24 of this 2001 Act + }. The Supreme Court shall give priority on
its docket to such a petition for review.
(6) When only the applicant files a petition for judicial
review, the six-month stay imposed under subsection (5) of this
section may be removed by the permitting agency upon written
request within 60 days after the filing of the petition and a
showing by the applicant to support a finding by the permitting
agency that proceeding with any or all activities under the
permit will not result in irreparable harm to the site. In making
such findings the permitting agency may require an additional
bond or alternative security to be filed with the State
Department of Geology and Mineral Industries as provided in ORS
517.987. The bond shall be in an amount the permitting agency
determines necessary to assure complete restoration of the site
if the petitioner elects not to complete the project following
judicial review. Agency denial of the request to remove the stay
is subject to review by the Supreme Court under such rules as the
Supreme Court may establish.
SECTION 175. ORS 517.983, as amended by section 104c, chapter
849, Oregon Laws 1999, is amended to read:
517.983. (1) The applicant or any person who appeared before a
permitting agency at the consolidated public hearing under ORS
517.981, either orally or in writing, regarding a permit granted
or denied by the permitting agency may file with the State
Geologist a written request for a consolidated contested case
hearing. The request shall be filed within 30 days after the date
the permit was granted or denied.
(2) Upon receipt of a request under subsection (1) of this
section, the State Department of Geology and Mineral Industries
shall schedule a consolidated contested case hearing which shall
be held not less than 60 days or more than 75 days after the
notice of permit issuance under ORS 517.982. The hearing shall be
conducted in accordance with the provisions applicable to
contested case proceedings under ORS 183.310 to 183.550. Any
permit granted by a permitting agency shall be suspended until
completion of the administrative hearings process.
(3) Each permitting agency for which a permit decision is
appealed may appoint a hearing officer to participate in the
formal hearing or, with the consent of all other permitting
agencies, the State Department of Geology and Mineral Industries
may appoint a single hearing officer.
(4) The hearing officer shall prepare a proposed order for each
contested permit. A party may file written exceptions to the
proposed order with the permitting agency. If the permitting
agency determines that additional information may be included in
the record, the agency shall remand the order to the appropriate
hearing officer for further consideration. After receiving
exceptions and hearing argument on the exceptions, the governing
body or person within the permitting agency responsible for
making a final decision on a permit may adopt the proposed order
or issue a new order.
(5) { + Notwithstanding sections 1 to 24 of this 2001 Act, + }
jurisdiction for judicial review of a permitting agency's
issuance or denial of a permit is conferred upon the Supreme
Court. Proceedings for review shall be instituted by filing a
petition in the Supreme Court. The petition shall be filed within
60 days following the date the permit is issued or denied. If the
permit with prescribed conditions is approved, the filing of the
petition for review shall stay the permit during the pendency of
judicial review for a period of up to six months from the date
the petition for review is filed. The Supreme Court may extend
the stay beyond the six-month period upon written request and a
showing by the petitioner that the activities under the permit
could result in irreparable harm to the site. Except as otherwise
provided in this subsection, the review by the Supreme Court
shall be as provided in { - ORS 183.482 - } { + sections 1 to
24 of this 2001 Act + }. The Supreme Court shall give priority on
its docket to such a petition for review.
(6) When only the applicant files a petition for judicial
review, the six-month stay imposed under subsection (5) of this
section may be removed by the permitting agency upon written
request within 60 days after the filing of the petition and a
showing by the applicant to support a finding by the permitting
agency that proceeding with any or all activities under the
permit will not result in irreparable harm to the site. In making
such findings the permitting agency may require an additional
bond or alternative security to be filed with the State
Department of Geology and Mineral Industries as provided in ORS
517.987. The bond shall be in an amount the permitting agency
determines necessary to assure complete restoration of the site
if the petitioner elects not to complete the project following
judicial review. Agency denial of the request to remove the stay
is subject to review by the Supreme Court under such rules as the
Supreme Court may establish.
SECTION 176. ORS 517.992 is amended to read:
517.992. (1) In addition to any other sanction authorized by
law, the governing board of the State Department of Geology and
Mineral Industries may impose a civil penalty of not less than
$200 per day and not more than $50,000 per day for any violation
of ORS 517.702 to 517.989 related to a chemical process mine, of
any rules adopted under those provisions related to a chemical
process mine, of any orders issued under those provisions related
to a chemical process mine or of any conditions of a permit
issued under those provisions related to a chemical process mine.
A penalty may be imposed under this section without regard to
whether the violation occurs on property covered by a permit
issued under ORS 517.702 to 517.989.
(2)(a) In addition to any other sanction authorized by law, and
subject to the limitations of paragraph (b) of this subsection,
the governing board of the State Department of Geology and
Mineral Industries may impose a civil penalty of not more than
$10,000 per day for any violation of ORS 517.702 to 517.951 not
related to a chemical process mine, of any rules adopted under
those provisions not related to a chemical process mine, of any
orders issued under those provisions not related to a chemical
process mine or of any conditions of a permit issued under those
provisions not related to a chemical process mine.
(b) A penalty may be imposed under this subsection only if the
operator has failed to comply with a final order issued under ORS
517.860 or 517.880 or if the operation is being conducted:
(A) Without a permit;
(B) Outside the permit boundary; or
(C) Outside a permit condition regarding boundaries, setbacks,
buffers or the placement of surface mining refuse.
(3) A civil penalty imposed under this section shall become due
and payable 10 days after the order imposing the civil penalty
becomes final by operation of law or on appeal. A person against
whom a civil penalty is to be imposed shall be served with a
notice in the form provided in ORS 183.415. Service of the notice
shall be accomplished in the manner provided by ORS 183.415.
(4) The person to whom the notice provided for in subsection
(3) of this section is addressed shall have 20 days from the date
of service of the notice in which to make written application for
a hearing. If no application for a hearing is made, the agency
may make a final order imposing the penalty.
(5) Any person who makes application as provided for in
subsection (4) of this section shall be entitled to a hearing.
The hearing shall be conducted as a contested case hearing
pursuant to the applicable provisions of ORS 183.413 to 183.470.
(6) Judicial review of an order made after a hearing under
subsection (5) of this section shall be as provided in { - ORS
183.480 to 183.497 - } { + sections 1 to 24 of this 2001
Act + } for judicial review of contested cases.
(7) When an order assessing a civil penalty under this section
becomes final by operation of law or on appeal, and the amount of
penalty is not paid within 10 days after the order becomes final,
the order may be recorded with the county clerk in any county of
this state. The clerk shall thereupon record the name of the
person incurring the penalty and the amount of the penalty in the
County Clerk Lien Record.
(8) Failure to pay a civil penalty that has become final under
this section shall be grounds for revocation of any permit issued
under ORS 517.702 to 517.989 to the person against whom the
penalty has been assessed.
(9) Any civil penalty received by the State Treasurer under
this section shall be deposited in the General Fund to the credit
of the Geology and Mineral Industries Account and is continuously
appropriated to the State Department of Geology and Mineral
Industries to the extent necessary for the administration and
enforcement of the laws, rules and orders under which the penalty
was assessed.
(10) A reclamation fund shall be established into which funds
not used to administer subsection (9) of this section shall be
deposited. This money shall be used by the State Department of
Geology and Mineral Industries for the purpose of the reclamation
of abandoned mine and drill sites.
(11) When a single incident violates statutes, rules, board
orders or permit conditions administered by more than one agency,
the department shall coordinate with the other agencies having
civil penalty authority before imposing a civil penalty.
(12) In implementing this section, the department shall adopt
rules that provide civil penalties that are commensurate with the
severity of violations and allow for a written warning at least
48 hours prior to imposing a penalty when there is no immediate
threat to human health, safety or the environment. The written
warning may be personally served on the person incurring the
penalty or may be sent by registered or certified mail. The
warning shall include:
(a) A reference to the particular sections of the statute,
rule, order or permit involved; and
(b) A short and plain statement of the matters asserted or
charged.
(13) A civil penalty may be imposed against the board of
directors and high managerial agents of a corporation if those
persons engage in, authorize, solicit, request, command or
knowingly tolerate the conduct for which the penalty is to be
imposed. As used in this subsection, 'agent' and 'high managerial
agent' have those meanings given in ORS 161.170.
SECTION 177. ORS 522.475 is amended to read:
522.475. (1) Any disagreement with respect to the unit
operation between persons or between persons and state or local
governing bodies, special districts or agencies owning any
interest in the geothermal resources in a unit area, or between
persons or state and local governing bodies, special districts or
agencies owning an interest in geothermal resources in a unit
area and a unit operator, including a dispute over replacement of
a unit operator, may be submitted to the governing board of the
State Department of Geology and Mineral Industries for its review
and decision.
(2) The board decision under this section may be appealed
{ - to the Court of Appeals. The appeal must be filed within 60
days of the date of the board's decision - } { + as provided in
sections 1 to 24 of this 2001 Act + }.
SECTION 178. ORS 526.992 is amended to read:
526.992. (1) A person who, with willful disregard for the
prohibitions contained in ORS 526.801 to 526.831 against
exporting public timber, exported or caused to be exported
unprocessed timber originating from public lands in violation of
this chapter is guilty of a Class C felony and may be assessed a
civil penalty not to exceed $500,000 for each violation or three
times the gross value of the unprocessed timber involved in the
violation, whichever amount is greater.
(2) If the agency concerned finds, on the record and after an
opportunity for a hearing, that a person has violated any
provision of ORS 526.801 to 526.831 or any rule issued pursuant
thereto relating to lands which the agency administers
(notwithstanding that such violation may not have caused the
export of unprocessed public timber in violation of this
chapter), such agency may:
(a) Assess against such person a civil penalty not more than
$75,000 for each violation if it is determined that the violation
was casual or involuntary.
(b) Assess against such person a civil penalty not more than
$500,000 or three times the gross value of the unprocessed timber
involved in the violation, whichever amount is greater, if it is
determined that the person committed such violation willfully.
Any person who willfully commits such a violation is guilty of a
Class C felony.
(3) Any civil penalty imposed under this section shall become
due and payable when the person incurring the penalty receives a
notice in writing of the imposition of the penalty. The notice
may be personally served on the person incurring the penalty or
may be sent by registered or certified mail.
(4) The person incurring the penalty shall have 20 days from
the date of receiving the notice to make written application for
a hearing.
(5) Any person who makes application as provided for in
subsection (4) of this section shall be entitled to a hearing.
The hearing shall be conducted as a contested case hearing
pursuant to the applicable provisions of ORS 183.413 to 183.470.
(6) Judicial review of an order made after a hearing under this
section shall be as provided in { - ORS 183.480 to 183.497 - }
{ + sections 1 to 24 of this 2001 Act + } for judicial review
of contested cases.
(7) When an order assessing a civil penalty under this section
becomes final by operation of law or on appeal, and the amount of
penalty is not paid within 10 days after the order becomes final,
the order may be recorded with the county clerk in any county of
this state. The clerk shall thereupon record the name of the
person incurring the penalty and the amount of the penalty in the
County Clerk Lien Record.
(8) All moneys recovered pursuant to this section shall be paid
into the State Forestry Department Account and may be used only
to pay the expenses of administration, investigation and
enforcement of ORS 526.801 to 526.831 by the State Forester or
any law enforcement agency.
SECTION 179. ORS 527.662 is amended to read:
527.662. (1) In order to implement more efficiently the
provisions of the Oregon Forest Practices Act, the State Board of
Forestry may enter into stewardship agreements with landowners,
in lieu of the traditional mechanisms of operation planning and
review, inspections and enforcement.
(2) The objectives of stewardship agreements are to provide
responsible and knowledgeable forest landowners with an
opportunity to plan and implement forest management strategies
with reduced oversight and regulation from the State Forestry
Department and to provide an incentive for forest landowners to
provide for enhancement and restoration of fish and wildlife
habitat, water quality and other forest resources.
(3) As used in this section and in ORS 527.670 (3), '
stewardship agreement' means an agreement voluntarily entered
into and signed by a forest landowner, or representative of the
landowner, and the State Board of Forestry or the State Forester,
that sets forth the terms under which the landowner will
self-regulate to meet the purposes of the Oregon Forest Practices
Act.
(4) The board shall adopt procedures and criteria for
stewardship agreements. Generally, those procedures shall require
that:
(a) Each participating landowner prepare a stewardship plan
that includes:
(A) A description of the lands covered by the agreement.
(B) A detailed inventory of streams, high-risk sites, historic
or legacy road problem areas, known resource sites needing
protection pursuant to ORS 527.710 (3)(a) and other concerns
described by the board.
(C) Prescriptions for the protection of resources described in
the inventory that will result in meeting the objectives of the
Oregon Forest Practices Act as described in ORS 527.630 and the
administrative rules adopted pursuant to the Oregon Forest
Practices Act.
(D) Plans for the restoration and enhancement of forest
resources. Such plans may include but need not be limited to:
(i) Vacating or relocating roads that, because of their
location, present a higher risk to water quality than if they had
been located and designed to current rule standards pursuant to
ORS 527.710;
(ii) Restoration or enhancement of upstream and downstream fish
passage, including replacement of crossing structures not
designed to current rule standards pursuant to ORS 527.710;
(iii) Enhancement of fish habitat through the placement of
woody debris or other structures in or adjacent to stream
channels;
(iv) Retention of conifers adjacent to streams, to supplement
current rule requirements pursuant to ORS 527.710, consistent
with forest health considerations;
(v) Restoration of habitat for threatened and endangered
species or other wildlife habitat in short supply;
(vi) Enhanced protection of salmonid production areas;
(vii) Restoration of overwintering salmonid habitat; or
(viii) Participation in a monitoring program sponsored by the
State Forestry Department or State Department of Fish and
Wildlife.
(b) Each landowner subject to a stewardship agreement
demonstrate a clear capability to carry out the provisions of the
stewardship plan and have a past record of good compliance with
the Oregon Forest Practices Act.
(c) The agreement contain a statement to the effect that if
changes occur in the Oregon Forest Practices Act or rules adopted
pursuant thereto, or in information pertinent to the inventory
required in paragraph (a)(B) of this subsection, the landowner
will make necessary changes in its forest practices to ensure
ongoing compliance with the Oregon Forest Practices Act.
(d) The State Forester conduct periodic audits on lands under
the stewardship agreement at intervals of no more than three
years to determine whether the plan is being implemented and
whether the agreement should be continued, revised or
discontinued.
(e) If the agreement applies to lands that contain high-risk
sites, the landowner shall describe the geotechnical expertise
that will be applied and the method that will be used to make
decisions regarding road construction and harvesting.
(5) Stewardship agreements may provide a benefit to landowners
by removing procedural requirements such as individual operation
plans or waiting periods but shall not waive the requirement for
notification of operations pursuant to ORS 527.670 (6) or the
waiting period for aerial application of chemicals pursuant to
ORS 527.670 (9).
(6) The board may delegate any or all authority for the
preparation and approval of stewardship agreements to the State
Forester.
(7) At least 28 days prior to the approval or amendment of a
stewardship agreement, the State Forester shall give notice of
the State Forester's intended action:
(a) To any person who has requested of the State Forester in
writing that the person be sent copies of notices of intent to
enter into a stewardship agreement; and
(b) To any person who has requested of the State Forester in
writing that the person be sent copies of notices of intent to
operate and written plans for the specific area affected by the
proposed stewardship agreement and who has paid any applicable
fee as provided in ORS 527.670 (8).
(8) Persons may submit written comments pertaining to the
stewardship agreement to the State Forester within the time
specified in subsection (9) of this section.
(9) The notice required in subsection (7) of this section shall
provide a location description of the property subject to the
proposed stewardship agreement, specify the deadline for comment,
which shall not be less than 21 days from the date notice is
sent, and shall indicate how copies of the stewardship agreement
and other pertinent documents may be obtained, or if voluminous
or costly to reproduce, the conditions of their availability to
the public.
(10) Upon approval and signature of a stewardship agreement or
amendment thereto, the State Forester shall notify persons who
submitted timely comments of the approval.
(11) Any person adversely affected or aggrieved by operations
to be conducted under an approved or amended stewardship
agreement may file a written request to the board for a hearing
if the person submitted written comments pertaining to the
stewardship agreement within the time limits established in
subsections (8) and (9) of this section.
(12) A request for hearing filed under subsection (11) of this
section shall be filed within 21 days of the date the State
Forester sent the notice of approval or amendment pursuant to
subsection (10) of this section. The person requesting a hearing
shall also serve a complete copy of the request, within the
21-day period, on the landowner that is party to the stewardship
agreement. The request shall include:
(a) A copy of the comments pertaining to the stewardship
agreement that were filed by the person requesting the hearing;
(b) A statement that shows the person is adversely affected or
aggrieved by operations to be conducted under the stewardship
agreement and the person has an interest that is addressed by the
Oregon Forest Practices Act or rules adopted thereunder; and
(c) A statement that describes why the person believes the
stewardship agreement is not in conformity with this section and
rules of the board pursuant thereto.
(13) If the board finds that the person making the request
meets the requirements of subsection (12) of this section, the
board shall set the matter for hearing within 45 calendar days
after receipt of the request for hearing. The landowner that is
party to the stewardship agreement shall be an allowable party to
the hearing. The person requesting the hearing may raise, in the
hearing, only those issues that the person raised in written
comments filed under subsection (8) of this section relating to
conformity of the stewardship agreement to this section and the
rules of the board. A final order shall be issued rescinding,
affirming or modifying the approval or amendment of the
stewardship agreement within 45 days of the conclusion of the
hearing unless all parties agree to an extension of the time
limit.
(14) The board may award reasonable attorney fees and expenses
to each of the prevailing parties against any other party that
the board finds presented a position without probable cause to
believe the position was well-founded, or made a request
primarily for a purpose other than to secure appropriate action
by the board.
(15) The board may delegate to the hearing officer the
authority to issue final orders on matters under this section.
Hearings provided under this section shall be conducted as
contested case hearings under ORS 183.413 to 183.470. The board
may establish such rules as it considers appropriate to carry out
the provisions of this section. Appeals from final hearing orders
under this section shall be { + as + } provided { - in ORS
183.482 - } { + for contested case orders under sections 1 to
24 of this 2001 Act + }.
SECTION 180. ORS 527.700 is amended to read:
527.700. (1) Any operator, timber owner or landowner affected
by any finding or order of the State Forester issued under ORS
527.610 to 527.770 and 527.992 may request a hearing within 30
days after issuance of the order. The hearing shall be commenced
within 14 days after receipt of the request for hearing and a
final order shall be issued within 28 days of the request for the
hearing unless all parties agree to an extension of the time
limit.
(2) The State Board of Forestry may delegate to the hearing
officer the authority to issue final orders on matters under this
section. Hearings provided under this section shall be conducted
as contested case hearings under ORS 183.413 to 183.470. The
board may establish such rules as it deems appropriate to carry
out the provisions of this section. Appeals from final hearing
orders under this section shall be { - provided in ORS
183.482 - } { + as provided for contested case orders under
sections 1 to 24 of this 2001 Act + }.
(3) Any person adversely affected or aggrieved by an operation
described in subsection (4) of this section may file a written
request to the board for a hearing if the person submitted
written comments pertaining to the operation within the time
limits established under ORS 527.670 (9).
(4) A request for hearing may be filed under subsection (3) of
this section only if a written plan was required pursuant to ORS
527.670 (3).
(5) A request for hearing filed under subsection (3) of this
section shall be filed within 14 calendar days of the date the
written plan was approved. Copies of the complete request shall
be served, within the 14-day period, on the operator, timber
owner and landowner. The request shall include:
(a) A copy of the written plan on which the person is
requesting a hearing;
(b) A copy of the comments pertaining to the operation that
were filed by the person requesting the hearing;
(c) A statement that shows the person is adversely affected or
aggrieved by the operation and has an interest which is addressed
by the Oregon Forest Practices Act or rules adopted thereunder;
and
(d) A statement of facts that establishes that the operation is
of the type described in ORS 527.670 (3).
(6) If the board finds that the person making the request meets
the requirement of subsection (5)(c) of this section, the board
shall set the matter for hearing within 14 calendar days after
receipt of the request for hearing. The operator, timber owner
and landowner shall be allowable parties to the hearing. The
person requesting the hearing may raise, in the hearing, only
those issues that the person raised in written comments filed
under ORS 527.670 (9) relating to conformity with the rules of
the board. A final order shall be issued rescinding, affirming or
modifying the written plan within 28 days after the request for
hearing was filed, unless all parties agree to an extension of
the time limit.
(7) The board may award reasonable attorney fees and expenses
to each of the prevailing parties against any other party who the
board finds presented a position without probable cause to
believe the position was well-founded, or made a request
primarily for a purpose other than to secure appropriate action
by the board.
(8)(a) Upon the written request of a person requesting a
hearing under subsection (3) of this section, a stay of the
operation subject to the hearing may be granted upon a showing
that:
(A) Commencement or continuation of the operation will
constitute a violation of the rules of the board;
(B) The person requesting the stay will suffer irreparable
injury if the stay is not granted; and
(C) The requirements of subsections (3), (4) and (5) of this
section are met.
(b) If the board grants the stay, it shall require the person
requesting the stay to give an undertaking which may be in the
amount of the damages potentially resulting from the stay, but in
any event shall not be less than $15,000. The board may impose
other reasonable requirements pertaining to the grant of the
stay. The board shall limit the effect of the stay to the
specific geographic area or elements of the operation for which
the person requesting the stay has demonstrated a violation of
the rules and irreparable injury under paragraph (a) of this
subsection.
(c) If the board affirms the written plan pertaining to the
operation for which the stay was granted, the board shall award
reasonable attorney fees and actual damages in favor of each of
the prevailing parties, to the extent incurred by each, against
the person requesting the stay.
(9) If the board disapproves or changes the written plan as
submitted and approved by the State Forester pertaining to any
operation, the board shall award reasonable attorney fees and
costs against the state in favor of each of the prevailing
parties.
(10) As used in this section, 'person' means any individual,
partnership, corporation, association, governmental subdivision
or public or private organization of any character.
SECTION 181. ORS 536.075 is amended to read:
536.075. (1) { + Notwithstanding sections 1 to 24 of this 2001
Act, + } any party affected by a final order other than contested
case issued by the Water Resources Commission or Water Resources
Department may appeal the order to the Circuit Court of Marion
County or to the circuit court of the county in which all or part
of the property affected by the order is situated. The review
shall be conducted according to the provisions of { - ORS
183.484, 183.486, 183.497 and 183.500 - } { + sections 1 to 24
of this 2001 Act + }. A final order other than contested case
issued by the Water Resources Commission or the Water Resources
Department must state on the first page of the order that the
order is a final order other than contested case, that the order
is subject to judicial review under { - ORS 183.484 - } { +
sections 1 to 24 of this 2001 Act + } and that any { - petition
for judicial review - } { + notice of appeal + } of the order
must be filed within the time specified by { - ORS 183.484
(2) - } { + section 5 of this 2001 Act + }. Any order other
than contested case issued by the Water Resources Commission or
by the Water Resources Department that does not comply with the
requirements of this section is not a final order.
(2) Any party affected by a final order in a contested case
issued by the Water Resources Commission or the Water Resources
Department may appeal the order { - to the Court of Appeals - }
{ + as a contested case order under sections 1 to 24 of this
2001 Act + }.
{ - (3) An appeal under subsection (2) of this section shall
be conducted as provided in ORS 183.482 except as specifically
provided in subsections (4), (5) and (6) of this section. - }
{ - (4) The petition shall state the facts showing how the
petitioner is adversely affected by the order and the ground or
grounds upon which the petitioner contends the order should be
reversed or remanded. - }
{ - (5) The filing of a petition in either the circuit court
or the Court of Appeals shall stay enforcement of the order of
the commission or the department unless the commission or the
department determines that substantial public harm will result if
the order is stayed. If the commission or the department denies
the stay, the denial shall be in writing and shall specifically
state the substantial public harm that will result from allowing
the stay. - }
{ - (6) The review by the Court of Appeals under subsection
(2) of this section shall be on the entire record forwarded by
the commission or department. The court may remand the case for
further evidence taking, correction or other necessary action.
The court may affirm, reverse, modify or supplement the order
appealed from, and make such disposition of the case as the court
determines to be appropriate. - }
{ - (7) - } { + (3) + } The provisions of this section
shall not apply to any proceeding under ORS 537.670 to 537.695 or
ORS chapter 539. { + Proceedings under ORS 537.670 to 537.695
and ORS chapter 539 are not subject to judicial review under
sections 1 to 24 of this 2001 Act. + }
{ - (8) - } { + (4) + } For the purposes of this section,
'final order ' and 'contested case' have the meanings given those
terms in ORS 183.310.
SECTION 182. ORS 537.170 is amended to read:
537.170. (1) Within 45 days after the Water Resources Director
schedules a contested case hearing under ORS 537.153 (8), the
Water Resources Department shall hold the contested case hearing.
The issues to be considered in the contested case hearing shall
be limited to issues identified by the hearings officer.
(2) Notwithstanding the provisions of ORS 183.310 to 183.550
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 537.153 (5) and who requests to intervene in the contested
case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS 183.310 to
183.550 except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under { - ORS 183.480 (3) - }
{ + section 8 (2) of this 2001 Act + } shall not be allowed.
(4) If applicable, an application to appropriate water for the
generation of electricity submitted under ORS 537.140 shall be
included in the consolidated review and hearings process under
ORS 543.255.
(5) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
(6) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest, the director determines that the proposed use does not
comply with the standards set forth in ORS 543.017 or rules
adopted by the Water Resources Commission under ORS 543.017 or
would otherwise impair or be detrimental to the public interest,
the director shall issue a final order rejecting the application
or modifying the proposed final order to conform to the public
interest. If, after the contested case hearing or, if a hearing
is not held, after the close of the period allowed to file a
protest, the director determines that the proposed use would not
impair or be detrimental to the public interest, the director
shall issue a final order approving the application or otherwise
modifying the proposed final order. A final order may set forth
any of the provisions or restrictions to be included in the
permit concerning the use, control and management of the water to
be appropriated for the project, including, but not limited to, a
specification of reservoir operation and minimum releases to
protect the public interest.
(7) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 537.153 (6) within 14 days after the director issues
the final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in
{ - ORS 183.310 to 183.550 - } { + sections 1 to 24 of this
2001 Act + } for appeal of order other than contested cases.
(8) If the presumption of public interest under ORS 537.153 (2)
is overcome, then before issuing a final order, the director or
the commission, if applicable, shall make the final determination
of whether the proposed use or the proposed use as modified in
the proposed final order would impair or be detrimental to the
public interest by considering:
(a) Conserving the highest use of the water for all purposes,
including irrigation, domestic use, municipal water supply, power
development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial
purposes, navigation, scenic attraction or any other beneficial
use to which the water may be applied for which it may have a
special value to the public.
(b) The maximum economic development of the waters involved.
(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.
(d) The amount of waters available for appropriation for
beneficial use.
(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.
(f) All vested and inchoate rights to the waters of this state
or to the use of the waters of this state, and the means
necessary to protect such rights.
(g) The state water resources policy formulated under ORS
536.295 to 536.350 and 537.505 to 537.534.
(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or
protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 183. ORS 537.622 is amended to read:
537.622. (1) Within 45 days after the Water Resources Director
schedules a contested case hearing under ORS 537.621 (9), the
Water Resources Department shall hold the contested case hearing.
The issues to be considered in the contested case hearing shall
be limited to issues identified by the hearings officer.
(2) Notwithstanding the provisions of ORS 183.310 to 183.550
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 537.621 (6) and who requests to intervene in the contested
case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS 183.310 to
183.550 except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under { - ORS 183.480 (3) - }
{ + section 8 (2) of this 2001 Act + } shall not be allowed.
(4) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
SECTION 184. ORS 540.560 is amended to read:
540.560. (1) If the Water Resources Commission considers that a
certificate of water right does not identify the lands to which
the right is appurtenant with sufficient specificity for
management, delivery or transfer of that right, the commission
may issue an order clarifying and refining the description of the
land to which the water right is appurtenant.
(2) An order issued under this section may not reduce the rate,
duty or number of acres stated in the certificate of water right.
The sole purpose of an addendum to a water right certificate is
to better define the location of acreage to which the water right
is appurtenant, where the certificate states only that the use is
limited to a number of acres within a larger tract.
(3) Any order issued under this section shall be served on the
legal owner of the land to which the water right is appurtenant
and on the occupant of the land, by certified mail, return
receipt requested. If the owner or occupant files a written
request for a hearing within 30 days after service of the order,
the commission shall conduct a hearing of the matter under ORS
183.413 to { - 183.484 - } { + 183.470. Judicial review of
the commission's order shall be in the manner provided for
contested case orders in sections 1 to 24 of this 2001 Act + }.
(4) A final order under this section shall become an addendum
to and shall be filed with the certificate of water right that
the order clarifies. For all purposes, the final order shall
constitute the description of the land to which the water right
is appurtenant.
SECTION 185. ORS 543A.130 is amended to read:
543A.130. (1) If a contested case hearing is conducted under
ORS 543A.120, the issues to be considered in the contested case
hearing shall be limited to issues identified by the hearings
officer.
(2) Notwithstanding the provisions of ORS 183.310 to 183.550
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 543A.120 and who requests to intervene in the contested case
hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS 183.310 to
183.550 except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under { - ORS 183.480 (3) - }
{ + section 8 (2) of this 2001 Act + } shall not be allowed.
(4) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
(5) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest, the Water Resources Director determines that the
proposed reauthorization does not comply with the standards set
forth in ORS 543A.025 or rules adopted by the Water Resources
Commission under ORS 543A.025, the director shall issue a final
order rejecting the application or modifying the proposed final
order to conform to the public interest. If, after the contested
case hearing or, if a hearing is not held, after the close of the
period allowed to file a protest, the director determines that
the proposed reauthorization complies with ORS 543A.025, the
director shall issue a final order approving the application for
reauthorization or otherwise modifying the proposed final order.
A final order may set forth any of the provisions or restrictions
to be included in the certificate concerning the use, control and
management of the water to be appropriated for the project,
including but not limited to a specification of reservoir
operation and minimum releases to protect the public interest.
(6) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 543A.120 within 14 days after the director issues the
final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in
{ - ORS 183.310 to 183.550 - } { + sections 1 to 24 of this
2001 Act + } for appeal of orders other than contested cases.
(7) Before issuing a final order, the director or the
commission, if applicable, shall make the final determination of
whether the proposed reauthorization or the proposed
reauthorization as modified in the proposed final order complies
with the standards set forth in ORS 543A.025.
(8) In a proceeding to reauthorize a water right for a
federally licensed project, the final order may be different from
the proposed final order based on:
(a) New information developed during the federal relicensing
process pertaining to environmental impacts or assessments that
reveals impacts not known at the time the proposed final order
was issued;
(b) Significant changes in the final application to the Federal
Energy Regulatory Commission;
(c) Conditions and restrictions in the Federal Energy
Regulatory Commission license that are inconsistent with the
water right as proposed in the proposed final order; or
(d) Protests received after the proposed final order is issued.
(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or
protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 186. ORS 543A.410 is amended to read:
543A.410. (1) All expenses incurred by the Hydroelectric
Application Review Team and its participating agencies that are
charged to or allocated to the fee paid by an applicant shall be
necessary, just and reasonable. Upon request, the team shall
provide the applicant with a detailed justification for all
charges. Not later than January 1 of each year, the Water
Resources Director by order shall establish a schedule of fees
that those persons submitting a notice of intent must submit
under ORS 543A.030 or 543A.075. The fee schedule shall be
designed to recover the actual costs of evaluating the notice of
intent. Fees shall be based on actual, historical costs incurred
by the team and its participating agencies to the extent
historical costs are available. The fees established by the
schedule shall reflect the size and complexity of the project for
which a notice of intent is submitted.
(2) If a dispute arises regarding the necessity or
reasonableness of expenses charged to or allocated to the fee
paid by an applicant, and if the dispute is not resolved by the
directors of the affected agencies, the applicant may seek
judicial review in circuit court { - of the amount of expenses
charged or allocated as provided in ORS 183.480, 183.484, 183.490
and 183.500 - } { + under the provisions of sections 1 to 24 of
this 2001 Act + }. If the applicant establishes that any of the
charges or allocations are unnecessary or unreasonable, the
amount found to be unnecessary or unreasonable shall be refunded
to the applicant. The applicant shall not waive the right to
judicial review by paying the portion of the fee or expense in
dispute.
SECTION 187. ORS 553.815 is amended to read:
553.815. Owners of any property against which an assessment or
tax has been levied may seek a review thereof under { - ORS
34.010 to 34.100 - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 188. ORS 564.110 is amended to read:
564.110. (1) The lists of threatened species or endangered
species established pursuant to ORS 564.105 (2) initially shall
include those species listed as of May 15, 1987, as a threatened
species or an endangered species pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et
seq.), as amended.
(2) The Director of Agriculture, by rule, may add or remove any
plant species from either list, or change the status of any
species on the lists, upon a determination that the species is or
is not a threatened species or an endangered species.
(3) A determination that a species is a threatened species or
an endangered species shall be based on documented and verifiable
scientific information about the species' biological status. To
list a species as a threatened species or an endangered species
under ORS 564.100 to 564.130, the director shall determine that
the natural reproductive potential of the species is in danger of
failure due to limited population numbers, disease, predation or
other natural or man-made factors affecting its continued
existence. In addition, the director shall determine that one or
more of the following factors exists:
(a) That most populations are undergoing imminent or active
deterioration of their range or primary habitat;
(b) That overutilization for commercial, recreational,
scientific or educational purposes is occurring or is likely to
occur; or
(c) That existing state or federal programs or regulations are
inadequate to protect the species or its habitat.
(4) Determinations required by subsection (3) of this section
shall be made on the basis of the best scientific and other data
available to the State Department of Agriculture, after
consultation with federal agencies, other interested state
agencies, the Natural Heritage Advisory Council, other states
having a common interest in the species and interested persons
and organizations.
(5) Any person may petition the department to, by rule, add,
remove or change the status of a species on the list:
(a) A petition shall clearly indicate the action sought and
shall include documented scientific information about the
species' biological status to justify the requested action.
(b) Within 90 days of receipt of a petition, the department
shall respond in writing to the petitioner indicating whether the
petition presents substantial scientific information to warrant
the action requested.
(c) If the petition is found to present such information, the
department shall commence rulemaking.
(d) If the petition is denied, the petitioner may seek judicial
review { - as provided in ORS 183.484 - } { + as provided for
orders other than contested case under sections 1 to 24 of this
2001 Act + }.
(6) Notwithstanding subsections (1) to (5) of this section, the
department shall take emergency action to add a species to the
list of threatened species or endangered species if it determines
there is a significant threat to the continued existence of the
species:
(a) The department shall publish notice of such addition in the
Secretary of State's bulletin and shall mail notice to affected
or interested persons whose names are included on the
department's mailing list for such purposes.
(b) Such emergency addition shall take effect immediately upon
publication in the Secretary of State's bulletin and shall remain
valid for a period no longer than one year, unless during the
one-year period the department completes rulemaking procedures as
provided in subsections (1) to (4) of this section.
(7) The director shall periodically review the status of all
threatened and endangered plant species listed under ORS 496.004,
496.171 to 496.192, 498.026, 564.040 and 564.100 to 564.135:
(a) Each species shall be reviewed at least once every five
years to determine whether substantial, documented scientific
information exists to justify its reclassification or removal
from the list, according to the criteria listed under subsection
(3) of this section.
(b) If a determination is made to reclassify a species or
remove it from the list, the department, within 90 days, shall
commence rulemaking to change the status of the species.
SECTION 189. ORS 583.096 is amended to read:
583.096. { - (1) - } A judicial review of the audit findings
of the State Department of Agriculture { - , as provided by this
section, - } shall be permitted only after any party claiming to
be aggrieved by such findings has exhausted remedies under ORS
583.086. { + Judicial review of audit findings shall be as
provided by sections 1 to 24 of this 2001 Act. + }
{ - (2) Within 30 days after the date the department mails a
copy of its reaudit findings as provided by ORS 583.086 (3)(b),
any party aggrieved thereby may secure judicial review thereof by
commencing an action in the Circuit Court for Marion County or in
the circuit court for the county in which the aggrieved party
resides or has a principal business office. If an appeal is filed
in the wrong county, the court shall enter an order transferring
it to the proper county. - }
{ - (3) In such action, the complaint shall name the
department as defendant. A copy of such complaint shall be served
by the sheriff or by certified mail on the department. It shall
state the nature of the aggrieved party's interest, the facts
showing how such person or persons are aggrieved by the decision
or findings of the department, and the ground or grounds upon
which such person or persons contend that the decision or
findings should be reversed and set aside. - }
{ - (4) Within 30 days after service of the complaint, or
within such further time as the court may allow, the department
shall file its answer with the court and transmit to such court
the original or certified copies of all findings, decisions,
documents, records and other papers related to such audit and
reaudit. - }
{ - (5) If, before the date set for hearing, application is
made to the court for leave to present additional evidence as to
the matters in controversy in the case, and it is shown to the
satisfaction of the court that the additional evidence is
material and that there were good and substantial reasons for
failure to present it in the proceeding before the department,
the court may order that the additional evidence be taken before
the department upon such conditions as the court deems proper.
The department may modify its findings and decision by reason of
the additional evidence and shall, within a time to be fixed by
the court, file with the reviewing court, to become a part of the
record, the additional evidence, together with any modifications
or new findings or decision, or its certificate that it elects to
stand on its original findings or decision, as the case may
be. - }
{ - (6) The hearing and review shall be conducted by the
court as an action tried without a jury and shall be given
precedence on the docket over all other cases except those given
equal status by statute. - }
{ - (7) The court may adopt, modify or set aside the decision
and the findings of the department. In the actual reversal or
modification, the court shall make special findings of fact based
upon evidence in the record and conclusions of law indicating
clearly all respects in which the decision and the findings of
the department are erroneous. - }
{ - (8)(a) If the court affirms findings of the department
which require a handler or person to make payment for milk or if
the court modifies such findings, the court shall also at the
same time order that such amounts be paid. - }
{ - (b) If the court affirms the findings of the department
that violations of law or regulations exist, or if the court
modifies such findings, the court shall also order that the
handler or person shall be enjoined from further violating such
law or regulations. Future similar violation of such law or
regulations is subject to contempt action as provided by
paragraph (a) of this subsection. - }
{ - (9) An appeal may be taken from the order or judgment of
the circuit court to the Court of Appeals as in other cases,
regardless of the amounts involved. The court may in its
discretion assess costs to the prevailing party. - }
SECTION 190. ORS 604.056 is amended to read:
604.056. (1) The State Department of Agriculture may detain,
seize or embargo hides or livestock in carrying out and enforcing
the provisions of ORS 561.144, 577.511, 577.520, 577.535,
599.205, 599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to
603.095, 603.992, 604.005 to 604.071, 604.640, 604.650 and
604.992 relating to the ownership or right to possession of
livestock. Recognizing that the provisions of ORS 561.605 to
561.620 relating to the departmental procedures for detaining,
seizing or embargoing commodities are not readily applicable to
livestock, the following shall apply whenever the department
detains, seizes or embargoes hides or livestock under the
provisions of ORS 561.144, 577.511, 577.520, 577.535, 599.205,
599.269, 599.273, 599.610, 603.015, 603.034, 603.075 to 603.095,
603.992, 604.005 to 604.071, 604.640, 604.650 and 604.992:
(a) The department shall issue its written notice of detention,
seizure or embargo to the person in possession of the hides or
livestock, directing them to be held subject to further order of
the department and any detention, seizure or embargo shall be
subject to the contested case provisions of ORS 183.310 to
183.550. The issuance of a notice of detention, seizure or
embargo to a livestock carrier shall relieve such carrier from
liability for any loss or damage resulting from the detention,
seizure or embargo.
(b) If the department cannot determine from its investigation
who is the owner or person entitled to possession of hides or
livestock, it may handle and dispose of the hides and livestock
in the same manner as provided for the handling and disposition
of estray livestock under ORS chapter 607. In the event the
livestock is determined by an assistant state veterinarian or
deputy state veterinarian to be diseased, disabled or dying so as
to be unsalable, the department may order its immediate
condemnation in lieu of handling and disposition under ORS
chapter 607, and any salvage value recovered by the department
from the sale of carcasses or hides shall be disposed of in the
same manner as impounded sales proceeds of an unknown owner under
subsection (2) of this section.
(c) During an investigation to determine the owner or person
entitled to possession of hides or livestock, the department may
authorize the hides or livestock to be moved and retained in
another location, but the hides or livestock shall not be moved
therefrom without a written order issued by the department and
then shall only be moved or handled in accordance with the terms
of such order.
(d) If the hides or livestock are brand inspected at a
livestock auction market, slaughtering establishment or other
sales facility where they are destined for sale, the department
may permit the sale of the hides or livestock and impound the
proceeds of the sale in lieu of detaining, seizing or embargoing
the hides or livestock. After the department impounds the sales
proceeds, it shall issue its written notice of impoundment to the
seller of the hides or livestock, which shall direct that the
sales proceeds remaining after the seller has deducted sales
charges be retained by the seller subject to further order of the
department for up to 15 days, at which time the sales proceeds
shall be remitted by the seller to the department. The sales
proceeds received by the department from the seller are not
public funds of the state but rather are held by the department
in trust for the person determined to be the owner or entitled to
possession of the hides or livestock sold.
(2) If the department impounds sales proceeds under subsection
(1)(d) of this section, the department shall give written notice
of the impoundment to all known claimants to the sales proceeds,
hides or livestock at the last-known addresses thereof, and set
forth that the sales proceeds shall be subject to proof of claim
for a period of 60 days from the date of the notice of
impoundment, during which the claimants may submit their proofs
of claim to the department. Within 30 days after expiration of
the time within which proofs of claim may be submitted, the
department shall review the data submitted, investigate the
claims and render its written notice of determination to the
persons having submitted proofs of claim. The determination of
the department shall be a final order { + other than contested
case + } and subject to judicial review { - under ORS
183.484 - } { + in the manner provided by sections 1 to 24 of
this 2001 Act + }, and if there is more than one claimant, no
payment of sales proceeds shall be made until the expiration of
the time within which such judicial review may be had. Any
impounded sales proceeds not capable of being paid to persons
under this section within one year of impoundment thereof shall
no longer be deemed to be trust funds and shall thereafter become
part of the state's public funds continuously appropriated to the
department for carrying out the provisions of ORS 561.144,
577.511, 577.520, 577.535, 599.205, 599.269, 599.273, 599.610,
603.015, 603.034, 603.075 to 603.095, 603.992, 604.005 to
604.071, 604.640, 604.650 and 604.992.
SECTION 191. ORS 609.165 is amended to read:
609.165. (1) A determination issued under ORS 609.156 or
609.158 is subject to judicial review { - by the circuit court
for the county making the determination as provided under ORS
34.010 to 34.100 - } { + under the provisions of sections 1 to
24 of this 2001 Act + }. Notwithstanding { - ORS 34.070 - }
{ + section 16 of this 2001 Act + }, filing a { - petition
for review - } { + notice of appeal + } shall automatically
stay execution of the determination made by the county.
(2) { - Notwithstanding ORS 34.030, a petition for review
must be filed no later than the 21st day following the date on
which the county delivered or mailed its determination in
accordance with ORS 609.158 (4). - } The filing of a request for
reexamination under ORS 609.158 (5) does not act to toll the time
for filing a
{ - petition for judicial review - } { + notice of appeal
under sections 1 to 24 of this 2001 Act + }. However, if a county
governing body reexamines the determination, the time for filing
a { - petition for judicial review - } { + notice of
appeal + } shall { - be extended through the 21st day
following - } { + commence to run on + } the date that the
result of the reexamination is delivered or mailed.
(3) If the court reverses the decision of the county, the court
shall make special findings of fact based upon the evidence in
the record and conclusions of law indicating clearly all aspects
in which the county's procedure or determination was in error.
SECTION 192. ORS 621.073 is amended to read:
621.073. (1) In addition to the powers conferred on the State
Department of Agriculture under ORS 621.018, 621.060, 621.072,
621.076, 621.083 and 621.226, the department may suspend the
privilege of any person to use a grade designation on containers
of fluid milk produced or distributed by the person. The power of
suspension may be exercised by the department for any violation
of ORS 621.062, 621.070, 621.072, 621.076, 621.084, 621.088,
621.117, 621.122 (7), 621.226 or 621.259, standards adopted under
ORS 621.060, 621.083 or 621.224 or any department rules.
(2) A suspension shall not exceed 10 days except that, before
lifting the suspension, the department shall ensure that the
violation causing the suspension has been corrected.
(3) A suspension shall not be imposed for a violation unless
the violator has previously committed the same violation and the
department has, within the six months immediately preceding the
violation for which the suspension is imposed, provided written
notification to the violator that another violation of the same
character would be grounds for suspension. The notice of
suspension shall be in writing and shall state length of the
suspension and the reason for the suspension.
(4) The provisions of ORS 183.413 to 183.470 do not apply to
suspensions imposed under authority of this section { + . + }
{ - , although - } Appeal shall be in the manner provided by
{ - ORS 183.484, 183.486, 183.490 and 183.497 - } { + sections
1 to 24 of this 2001 Act + }. This subsection shall not deprive a
person of the right to present any defense to a criminal
prosecution instituted for violation of ORS 621.062, 621.070,
621.072, 621.076, 621.084, 621.088, 621.117, 621.122 (7), 621.226
or 621.259, nor shall it deprive a person of the right to a
declaratory judgment.
SECTION 193. ORS 647.075 is amended to read:
647.075. (1) The Secretary of State shall cancel a registration
of a mark when:
(a) The Secretary of State receives a voluntary request from
the registrant or the assignee of record to cancel the
registration.
(b) The registration has not been renewed in accordance with
the provisions of ORS 647.055.
(c) A court of competent jurisdiction either orders
cancellation of the registration or finds that:
(A) The registered mark has been abandoned.
(B) The registrant is not the owner of the mark.
(C) The registration was granted improperly.
(D) The registration was obtained fraudulently.
(2) The Secretary of State may cancel a registration of a mark
when, after providing the registrant with an opportunity for a
hearing, the Secretary of State makes a written finding that:
(a) The registered mark has been abandoned.
(b) The registrant is not the owner of the mark.
(c) The registration was obtained fraudulently.
(d) The Secretary of State filed the registration in error.
(3) The Secretary of State's cancellation of a registration
under this section is a final order { - within the meaning of
ORS 183.480 to 183.497 - } { + for purposes of review under
sections 1 to 24 of this 2001 Act + }.
SECTION 194. ORS 652.332 is amended to read:
652.332. (1) In any case when the Commissioner of the Bureau of
Labor and Industries has received a wage claim complaint which
the commissioner could seek to collect through court action, the
commissioner may instead elect to seek collection of such claim
through administrative proceedings in the manner provided in this
section, subject to the employer's right to request a trial in a
court of law. The commissioner may join in a single
administrative proceeding any number of wage claims against the
same employer. Upon making such election, the commissioner shall
serve upon the employer and the wage claimant an order of
determination directing the employer to pay to the commissioner
the amount of the wage claim and any penalty amounts under ORS
279.356 (1), 652.150 and 653.055 (1) determined to be owed the
wage claimant. Service shall be made in the same manner as
service of summons or by certified mail, return receipt
requested. The order of determination shall include:
(a) A reference to the particular sections of the statutes or
rules involved;
(b) A short and concise statement of the basis for the amounts
determined to be owed to each wage claimant;
(c) A statement of the party's right to request a contested
case hearing and to be represented by counsel at such a hearing,
and of the employer's right to a trial in a court of law,
provided that any request for a contested case hearing or trial
in a court of law must be received by the commissioner in writing
within 20 days after receipt by the party of the order of
determination;
(d) A statement that the employer must, within 20 days after
receipt of the order of determination, either pay in full the
wage claim and any penalties assessed, or present to the
commissioner a written request for a contested case hearing or a
trial in a court of law as provided in this section;
(e) A statement that failure to make a written request to the
commissioner for a contested case hearing or a trial of the claim
in a court of law within the time specified shall constitute a
waiver of the right thereto and a waiver of the right to a trial
by jury; and
(f) A statement that unless the written requests provided for
in subsection (1)(c) of this section are received by the
commissioner within the time specified for making such requests,
the order of determination shall become final.
(2) Upon failure of the employer to pay the amount specified in
the order of determination or to request a trial in a court of
law within the time specified, and upon failure of any party to
request a contested case hearing within the time specified, the
order of determination shall become final.
(3) If a party makes a timely request for a contested case
hearing, a hearing shall be held in accordance with the
applicable provisions of ORS { - 183.415 to 183.500 - }
{ + 183.413 to 183.470 + } by the commissioner or the
commissioner's designee. The commissioner shall adopt rules for
such hearing. In any hearing before the commissioner's designee,
the designee is authorized to issue the final order in the case.
If the employer makes a timely request for a trial in a court of
law, the commissioner may proceed against the employer as
provided in ORS 652.330 (1)(b).
(4) Final administrative orders issued in a wage claim
proceeding are subject to { + judicial + } review { - by the
Court of Appeals as provided in ORS 183.480 and 183.482 - } { +
in the manner provided for contested case orders by sections 1 to
24 of this 2001 Act + }.
(5) When an order issued under this section becomes final, it
may be recorded in the County Clerk Lien Record in any county of
this state. In addition to any other remedy provided by law,
recording an order in the County Clerk Lien Record pursuant to
the provisions of this section has the effect provided for in ORS
205.125 and 205.126, and the order may be enforced as provided in
ORS 205.125 and 205.126.
(6) Where the wage claim arose out of work performed by the
claimant for the employer on any public works project to which
ORS 279.350 or 279.352 applies, and a state agency holds
sufficient funds as retainage on such project to pay such claim
or any portion thereof, the state agency may, at the request of
the commissioner, pay to the commissioner from the retainage all
or part of the amount due on the claim under the final order.
SECTION 195. ORS 653.370 is amended to read:
653.370. (1) In addition to any other penalty provided by law,
the Commissioner of the Bureau of Labor and Industries may impose
upon any person who violates ORS 653.305 to 653.370 or any rule
adopted by the Wage and Hour Commission thereunder, a civil
penalty not to exceed $1,000 for each violation.
{ - (2) Notwithstanding ORS 183.482, any petition for review
of an order imposing a civil penalty under this section must be
filed within 30 days following the date the order upon which the
petition is based is served. - }
{ - (3) - } { + (2) + } { - Except as otherwise provided
in this section, - } Civil penalties under this section shall be
imposed as provided in ORS 183.090.
{ - (4) - } { + (3) + } All sums collected as penalties
pursuant to this section shall be first applied toward
reimbursement of the costs incurred in determining the
violations, conducting hearings under this section and assessing
and collecting such penalties. The remainder, if any, of the sums
collected as penalties pursuant to this section shall be paid
over by the commissioner to the Division of State Lands for the
benefit of the Common School Fund of this state. The division
shall issue a receipt for the money to the commissioner.
{ - (5)(a) - } { + (4)(a) + } Notwithstanding subsection
(1) of this section, the commissioner may not impose a civil
penalty pursuant to this section upon any person who provides
evidence satisfactory to the commissioner that:
(A) The person has paid a civil penalty to the United States
Department of Labor for violation of the child labor provisions
of the Federal Fair Labor Standards Act (29 U.S.C. 201 et seq.);
and
(B) The civil penalty involved the same factual circumstances
at issue before the commissioner.
(b) Notwithstanding subsection (1) of this section, the
commissioner shall refund any civil penalty previously imposed on
and collected from any person pursuant to this section if the
person provides evidence satisfactory to the commissioner that:
(A) The person has paid a civil penalty to the United States
Department of Labor for violation of the child labor provisions
of the Federal Fair Labor Standards Act (29 U.S.C. 201 et seq.);
and
(B) The civil penalty involved the same factual circumstances
underlying the commissioner's imposition of a civil penalty.
SECTION 196. ORS 656.298 is amended to read:
656.298. (1) Any party affected by an order of the Workers'
Compensation Board may, within the time limit specified in ORS
656.295, request judicial review of the order by the Court of
Appeals.
(2) The name and style of the proceedings shall be 'In the
Matter of the Compensation of (name of the worker). '
(3) The judicial review shall be commenced by serving a copy of
a petition for judicial review on the board and on the parties
who appeared in the review proceedings, and by filing with the
clerk of the Court of Appeals the original petition for judicial
review with proof of service indorsed thereon. The petition for
judicial review shall state:
(a) The name of the person appealing and of all other parties.
(b) The date the order appealed from was filed.
(c) A statement that the order is being appealed to the Court
of Appeals.
(d) A brief statement of the relief requested and the reasons
the relief should be granted.
(4) Within 10 days after service of a petition for judicial
review on a party under subsection (3) of this section, such
party may also request judicial review in the same manner.
(5) The following requirements of subsection (3) of this
section are jurisdictional and may not be waived or extended:
(a) Service of the petition for judicial review on all parties
identified in the petition for judicial review as adverse parties
or, if the petition for judicial review does not identify adverse
parties, on all parties who have appeared in the proceeding
before the board.
(b) Filing of the original petition for judicial review with
the Court of Appeals within the time limits imposed by ORS
656.295 (8) and by subsection (4) of this section.
(6) Within 30 days after service of a petition for judicial
review on the board, the board shall forward to the clerk of the
Court of Appeals:
(a) The original copy of the transcribed record prepared under
ORS 656.295.
(b) All exhibits.
(c) Copies of all decisions and orders entered during the
hearing and review proceedings.
(7) The review by the Court of Appeals shall be on the entire
record forwarded by the board { + and shall be confined to the
record + }.
{ - Review shall be as provided in ORS 183.482 (7) and (8). - }
{ + (8) The Court of Appeals shall not substitute its
judgment for that of the board as to any issue of fact or board
discretion. In the case of disputed allegations of
irregularities in procedure before the board not shown in the
record that, if proved, would warrant reversal or remand, the
court may refer the allegations to a Master appointed by the
court to take evidence and make findings of fact upon those
allegations. The court shall remand the order for further board
action if it finds that the fairness of the proceedings or the
correctness of the action may have been impaired by a material
error in procedure or a failure to follow prescribed procedure.
(9)(a) The Court of Appeals may affirm, reverse or remand the
board's order. If the court finds that the board has erroneously
interpreted a provision of law and that a correct interpretation
compels a particular action, it shall:
(A) Set aside or modify the order; or
(B) Remand the case to the board for further action under a
correct interpretation of the provision of law.
(b) The court shall remand the order to the board if it finds
the board's exercise of discretion to be:
(A) Outside the range of discretion delegated to the board by
law;
(B) Inconsistent with a board rule, an officially stated board
position or a prior board practice, if the inconsistency is not
explained by the board; or
(C) Otherwise in violation of a constitutional or statutory
provision.
(c) The court shall set aside or remand the board's order if it
finds that the order is not supported by substantial evidence in
the record. Substantial evidence exists to support a finding of
fact when the record, viewed as a whole, would permit a
reasonable person to make that finding. + }
{ - (8) - } { + (10) + } Review under this section shall be
given precedence on the docket over all other cases, except those
given equal status by statute.
SECTION 197. ORS 657.275 is amended to read:
657.275. (1) If the Director of the Employment Department or
any interested party files with the Employment Appeals Board a
timely application for review, the board shall promptly affirm,
modify or set aside the decision of the hearing officer. The
board shall promptly notify the claimant and any other interested
party of its decision. If the board finds that additional
evidence is required to reach a decision, it may remand the
matter to the hearing officer to conduct a hearing to obtain
additional evidence in the matter. The board shall promptly
notify the claimant and any other interested party of such
action. The hearing officer may either make a new decision based
on the additional and original evidence or forward the additional
evidence to the board for a decision. If the hearing officer
issues a new decision, it shall be subject to review in
accordance with the provisions of ORS 657.270 (4).
(2) The board shall perform de novo review on the record. The
board may address issues raised by evidence in the record,
including but not limited to the nature of a separation,
notwithstanding the scope of the issues raised by the parties,
the arguments set forth in a party's application for review or
the parties' written or oral arguments. The board may enter its
own findings and conclusions or may adopt the findings and
conclusions of the hearing officer, or any part thereof. When
there is evidence in the record both to make more probable and
less probable the existence of any basic fact or inference, the
board need not explain its decision to believe or rely on such
evidence unless the hearing officer has made an explicit
credibility determination regarding the source of such facts or
evidence. The board is not required to give any weight to implied
credibility findings. The decision of the board shall become the
final order unless a { - petition for judicial review - }
{ + notice of appeal + } is filed in accordance with ORS
657.282.
SECTION 198. ORS 657.282 is amended to read:
657.282. Judicial review of decisions under ORS 657.275 shall
be as provided for review of orders in contested cases in
{ - ORS 183.310 to 183.550 - } { + sections 1 to 24 of this
2001 Act + }, except that the { - petition - } { + notice of
appeal + } shall be filed within 30 days after the order is
served. The Director of the Employment Department may file
{ - petition for judicial review in accordance with this
section - } { + a notice of appeal + } from decisions of the
Employment Appeals Board.
SECTION 199. ORS 657.485 is amended to read:
657.485. (1) An employer, when notified that the employer has
been determined an employer subject to this chapter, shall also
be notified of the tax rate for the employer as determined
pursuant to this chapter. Such tax rate shall become conclusive
and binding upon the employer unless within 20 days after the
mailing of the notice to the last-known address of the employer
as shown on the records of the Director of the Employment
Department, or in the absence of mailing, within 20 days after
the delivery of such notice, the employer files a request for
hearing with the director, setting forth the reason therefor.
(2) An employer whose rate has been determined in accordance
with the provisions of ORS 657.462, shall be notified of the tax
rate for the employer not later than November 15 of the year
preceding the calendar year for which the rate is applicable. An
employer whose account is open according to the Employment
Department records as of November 15 but whose tax rate was not
determined under ORS 657.462 shall be notified of the tax rate
for the following calendar year by November 15 or as soon as
possible thereafter. Such tax rate shall become conclusive and
binding upon the employer unless, within 20 days after the
mailing of the notice to the last-known address of the employer
as shown by the records of the director or, in the absence of
mailing, within 20 days after the delivery of such notice, the
employer files a written application for review and
redetermination with the director, setting forth the reasons
therefor.
(3) If a valid application is filed within the time provided in
subsection (2) of this section, an authorized representative of
the director shall review the determination and notify the
employer in writing thereof. If the review results in a change in
either the employer's tax rate or information included on the
original tax rate notice, an amended notice shall be provided the
employer.
(4) The decision of the authorized representative reflecting
the result of the review provided for in subsection (3) of this
section shall become final and conclusive and binding upon the
employer unless the employer, within 20 days after delivery of
the notice, or if mailed, within 20 days after the same was
mailed to the last-known address of the employer, files a request
for hearing with the director. The request shall be in writing
and shall state that the decision of the authorized
representative is incorrect and the reasons therefor.
(5) When a valid request for hearing has been filed, as
provided in subsections (1) and (4) of this section, a hearing
shall be conducted by a hearing officer assigned from the Hearing
Officer Panel established under section 3, chapter 849, Oregon
Laws 1999, unless a hearing has previously been afforded the
employer on the same grounds as set forth in the request. The
hearing officer shall give notice of the time and place of
hearing to the director or authorized representative of the
director and shall also give notice to the employer by mail
directed to the last-known address of record with the director.
Hearings under this subsection shall be conducted in accordance
with this chapter. The filing of a request for hearing with
respect to a disputed tax rate shall not affect the right of the
director or authorized representative of the director to perfect
any liens provided by this chapter.
(6) After hearing, the hearing officer shall enter findings of
fact and decision either affirming or modifying the tax rate
notice. The employer and the director shall be promptly notified
of the decision of the hearing officer. All testimony at any
hearing held before a hearing officer under this section shall be
recorded but need not be transcribed unless a { - petition for
judicial review - } { + notice of appeal + } from the decision
of the hearing officer is filed in the manner and within the time
prescribed in ORS 657.487.
(7) A decision of the hearing officer shall become final on the
date of notification or the mailing thereof to the director and
to the employer at the last-known address of record with the
director, and shall become conclusive and binding upon the
employer and the director unless a { - petition for judicial
review - } { + notice of appeal + } is filed in the manner and
within the time prescribed in ORS 657.487.
(8) No employer shall have any standing, in any proceeding
involving tax rate or tax liability, to contest the chargeability
to the account of the employer of any benefits paid in accordance
with a determination, redetermination or decision pursuant to ORS
657.265, 657.266 to 657.269 and 657.270 to 657.290, except upon
the ground that the services on the basis of which such benefits
were found to be chargeable did not constitute services performed
in employment for the employer or for a predecessor employer and
only in the event that the employer or the predecessor was not a
party to such determination, redetermination or decision or to
any other proceeding under this chapter in which the character of
such service was determined. At any hearing under this section
the tax rate determined by the director or authorized
representative of the director shall be prima facie correct and
the burden shall be upon the protesting employer to prove it is
incorrect.
SECTION 200. ORS 657.485, as amended by section 133, chapter
849, Oregon Laws 1999, is amended to read:
657.485. (1) An employer, when notified that the employer has
been determined an employer subject to this chapter, shall also
be notified of the tax rate for the employer as determined
pursuant to this chapter. Such tax rate shall become conclusive
and binding upon the employer unless within 20 days after the
mailing of the notice to the last-known address of the employer
as shown on the records of the Director of the Employment
Department, or in the absence of mailing, within 20 days after
the delivery of such notice, the employer files a request for
hearing with the director, setting forth the reason therefor.
(2) An employer whose rate has been determined in accordance
with the provisions of ORS 657.462, shall be notified of the tax
rate for the employer not later than November 15 of the year
preceding the calendar year for which the rate is applicable. An
employer whose account is open according to the Employment
Department records as of November 15 but whose tax rate was not
determined under ORS 657.462 shall be notified of the tax rate
for the following calendar year by November 15 or as soon as
possible thereafter. Such tax rate shall become conclusive and
binding upon the employer unless, within 20 days after the
mailing of the notice to the last-known address of the employer
as shown by the records of the director or, in the absence of
mailing, within 20 days after the delivery of such notice, the
employer files a written application for review and
redetermination with the director, setting forth the reasons
therefor.
(3) If a valid application is filed within the time provided in
subsection (2) of this section, an authorized representative of
the director shall review the determination and notify the
employer in writing thereof. If the review results in a change in
either the employer's tax rate or information included on the
original tax rate notice, an amended notice shall be provided the
employer.
(4) The decision of the authorized representative reflecting
the result of the review provided for in subsection (3) of this
section shall become final and conclusive and binding upon the
employer unless the employer, within 20 days after delivery of
the notice, or if mailed, within 20 days after the same was
mailed to the last-known address of the employer, files a request
for hearing with the director. The request shall be in writing
and shall state that the decision of the authorized
representative is incorrect and the reasons therefor.
(5) When a valid request for hearing has been filed, as
provided in subsections (1) and (4) of this section, a hearing
shall be conducted by a hearing officer designated by the
director unless a hearing has previously been afforded the
employer on the same grounds as set forth in the request. The
hearing officer shall give notice of the time and place of
hearing to the director or authorized representative of the
director and shall also give notice to the employer by mail
directed to the last-known address of record with the director.
Hearings under this subsection shall be conducted in accordance
with this chapter and the rules of the director. The filing of a
request for hearing with respect to a disputed tax rate shall not
affect the right of the director or authorized representative of
the director to perfect any liens provided by this chapter.
(6) After hearing, the hearing officer shall enter findings of
fact and decision either affirming or modifying the tax rate
notice. The employer and the director shall be promptly notified
of the decision of the hearing officer. All testimony at any
hearing held before a hearing officer under this section shall be
recorded but need not be transcribed unless a { - petition for
judicial review - } { + notice of appeal + } from the decision
of the hearing officer is filed in the manner and within the time
prescribed in ORS 657.487.
(7) A decision of the hearing officer shall become final on the
date of notification or the mailing thereof to the director and
to the employer at the last-known address of record with the
director, and shall become conclusive and binding upon the
employer and the director unless a { - petition for judicial
review - } { + notice of appeal + } is filed in the manner and
within the time prescribed in ORS 657.487.
(8) No employer shall have any standing, in any proceeding
involving tax rate or tax liability, to contest the chargeability
to the account of the employer of any benefits paid in accordance
with a determination, redetermination or decision pursuant to ORS
657.265, 657.266 to 657.269 and 657.270 to 657.290, except upon
the ground that the services on the basis of which such benefits
were found to be chargeable did not constitute services performed
in employment for the employer or for a predecessor employer and
only in the event that the employer or the predecessor was not a
party to such determination, redetermination or decision or to
any other proceeding under this chapter in which the character of
such service was determined. At any hearing under this section
the tax rate determined by the director or authorized
representative of the director shall be prima facie correct and
the burden shall be upon the protesting employer to prove it is
incorrect.
SECTION 201. ORS 657.663 is amended to read:
657.663. (1) If an employer fails to file a required quarterly
tax report or quarterly detail of employees' wages and hours of
work by the 10th day of the second month following the end of the
calendar quarter, the Director of the Employment Department, for
the first such failure, shall send to the employer at the
employer's last-known address a written notice warning the
employer that a subsequent failure to file a required report
could result in the imposition of a late filing penalty. If an
employer, without good cause, fails to file a required report
within the three-year period immediately following a written
warning, the employer may be assessed a late filing penalty in
addition to other amounts due. The penalty shall be 0.0002 of the
taxable wage base in effect for the year against which the
penalty is being assessed for each employee listed each quarter
on the late filed reports. However, the minimum penalty for any
calendar quarter shall not be less than 0.0025 nor the maximum
penalty more than 0.05 of the taxable wage base in effect for the
year.
(2) The penalty per employee shall be rounded to the nearest
dollar. The minimum penalty shall be rounded to the nearest
five-dollar interval and the maximum penalty shall be rounded to
the nearest $100 interval.
(3) Notwithstanding the provisions of subsection (1) of this
section, an employer who has no payroll during a calendar quarter
shall not be assessed a penalty for the first quarter in which
that employer's report is filed late. Thereafter, the director
may assess a $5 penalty when such employer's reports continue to
be filed late.
(4) The penalty assessed under this section shall be final
unless, within 20 days from the date of mailing of the assessment
to the last-known address of the employer, the employer requests
the penalty be deleted. The request must be in writing and state
the reason why the report was filed late. If the director
determines the employer had good cause for filing the report
late, the penalty shall be deleted. If it is determined there was
not good cause for filing the report late, the request for
deletion shall be denied.
(5) A decision denying the request shall become final, unless
within 20 days from the date of mailing the decision to the
last-known address of the employer, the employer files a request
for hearing. The request for a hearing must be in writing and
state the reasons therefor. Judicial review shall be as provided
for review of orders in contested cases in { - ORS 183.310 to
183.550 - } { + sections 1 to 24 of this 2001 Act + }, except
that the
{ - petition - } { + notice of appeal + } shall be filed
within 20 days after the issuance of the order of the director or
a designated representative.
SECTION 202. ORS 657.663, as amended by section 144, chapter
849, Oregon Laws 1999, is amended to read:
657.663. (1) If an employer fails to file a required quarterly
tax report or quarterly detail of employees' wages and hours of
work by the 10th day of the second month following the end of the
calendar quarter, the Director of the Employment Department, for
the first such failure, shall send to the employer at the
employer's last-known address a written notice warning the
employer that a subsequent failure to file a required report
could result in the imposition of a late filing penalty. If an
employer, without good cause, fails to file a required report
within the three-year period immediately following a written
warning, the employer may be assessed a late filing penalty in
addition to other amounts due. The penalty shall be 0.0002 of the
taxable wage base in effect for the year against which the
penalty is being assessed for each employee listed each quarter
on the late filed reports. However, the minimum penalty for any
calendar quarter shall not be less than 0.0025 nor the maximum
penalty more than 0.05 of the taxable wage base in effect for the
year.
(2) The penalty per employee shall be rounded to the nearest
dollar. The minimum penalty shall be rounded to the nearest
five-dollar interval and the maximum penalty shall be rounded to
the nearest $100 interval.
(3) Notwithstanding the provisions of subsection (1) of this
section, an employer who has no payroll during a calendar quarter
shall not be assessed a penalty for the first quarter in which
that employer's report is filed late. Thereafter, the director
may assess a $5 penalty when such employer's reports continue to
be filed late.
(4) The penalty assessed under this section shall be final
unless, within 20 days from the date of mailing of the assessment
to the last-known address of the employer, the employer requests
the penalty be deleted. The request must be in writing and state
the reason why the report was filed late. If the director
determines the employer had good cause for filing the report
late, the penalty shall be deleted. If it is determined there was
not good cause for filing the report late, the request for
deletion shall be denied.
(5) A decision denying the request shall become final, unless
within 20 days from the date of mailing the decision to the
last-known address of the employer, the employer files a request
for hearing. The request for a hearing must be in writing and
state the reasons therefor. Hearings shall be conducted in
accordance with rules adopted by the director. Judicial review
shall be as provided for review of orders in contested cases in
{ - ORS 183.310 to 183.550 - } { + sections 1 to 24 of this
2001 Act + }, except that the { - petition - } { + notice of
appeal + } shall be filed within 20 days after the issuance of
the order of the director or a designated representative.
SECTION 203. ORS 657.683 is amended to read:
657.683. (1) An application for hearing under ORS 657.679 and
657.681 shall be in writing and shall state that such
determination or assessment of the Director of the Employment
Department or authorized representative is unjust or incorrect
and that the employing unit requests a hearing thereon. The
application shall set forth the objections of the employing unit
to the determination or assessment and the amount of
contributions, if any, which the applicant admits to be due to
the Employment Department. An application for a hearing to review
an assessment made under ORS 657.681 (4) which was accompanied by
a demand for a bond or deposit shall not be valid unless such
bond or deposit is filed with the application in a form
acceptable to the director or authorized representative.
(2) If a valid application for hearing is filed within the time
provided by ORS 657.679 and 657.681, a hearing officer shall
review the determination or assessment and if requested by the
employing unit shall grant a hearing unless a hearing has
previously been afforded the employing unit on the same grounds
as set forth in the application. The hearing officer shall give
notice of the time and place of the hearing to the director or
authorized representative and shall also give notice to the
employing unit by mail directed to the last-known address of the
employing unit of record with the director.
(3) Hearings under ORS 657.679 and 657.681 shall be conducted
in accordance with this chapter. The filing of an application for
hearing with respect to a disputed assessment shall not affect
the right of the director or authorized representative to perfect
any liens provided by this chapter.
(4) All testimony at any hearing held under ORS 657.679 and
657.681 shall be recorded but need not be transcribed unless a
{ - petition for judicial review - } { + notice of appeal + }
from the decision of the hearing officer is filed in the manner
and within the time prescribed. At any hearing held as provided
in ORS 657.679 and 657.681 the determination or assessment of the
director or authorized representative shall be prima facie
correct and the burden shall be upon the protesting employing
unit to prove that it is incorrect. Thereafter the hearing
officer shall enter the findings of fact and decision, either
affirming, modifying, or setting aside the determination or
assessment of the director or authorized representative and in
the case of an assessment, the hearing officer may increase or
decrease the amount of the assessment. The employing unit and the
director shall be promptly notified of the decision of the
hearing officer.
(5) A decision of the hearing officer shall become final on the
date of notification or the mailing thereof to the director and
to the employing unit at the last-known address of record with
the director unless within the time specified in { - ORS
183.480 (2) - } { + section 5 of this 2001 Act for the filing
of a notice of appeal + } the hearing officer on the hearing
officer's own motion reviews the same and issues an amended
decision in which case the amended decision becomes the final
decision.
SECTION 204. ORS 657.683, as amended by section 151, chapter
849, Oregon Laws 1999, is amended to read:
657.683. (1) An application for hearing under ORS 657.679 and
657.681 shall be in writing and shall state that such
determination or assessment of the Director of the Employment
Department or authorized representative is unjust or incorrect
and that the employing unit requests a hearing thereon. The
application shall set forth the objections of the employing unit
to the determination or assessment and the amount of
contributions, if any, which the applicant admits to be due to
the Employment Department. An application for a hearing to review
an assessment made under ORS 657.681 (4) which was accompanied by
a demand for a bond or deposit shall not be valid unless such
bond or deposit is filed with the application in a form
acceptable to the director or authorized representative.
(2) If a valid application for hearing is filed within the time
provided by ORS 657.679 and 657.681, a hearing officer designated
by the director shall review the determination or assessment and
if requested by the employing unit shall grant a hearing unless a
hearing has previously been afforded the employing unit on the
same grounds as set forth in the application. The hearing officer
shall give notice of the time and place of the hearing to the
director or authorized representative and shall also give notice
to the employing unit by mail directed to the last-known address
of the employing unit of record with the director.
(3) Hearings under ORS 657.679 and 657.681 shall be conducted
in accordance with this chapter and the rules and regulations of
the director. The filing of an application for hearing with
respect to a disputed assessment shall not affect the right of
the director or authorized representative to perfect any liens
provided by this chapter.
(4) All testimony at any hearing held under ORS 657.679 and
657.681 shall be recorded but need not be transcribed unless a
{ - petition for judicial review - } { + notice of appeal + }
from the decision of the hearing officer is filed in the manner
and within the time prescribed. At any hearing held as provided
in ORS 657.679 and 657.681 the determination or assessment of the
director or authorized representative shall be prima facie
correct and the burden shall be upon the protesting employing
unit to prove that it is incorrect. Thereafter the hearing
officer shall enter the findings of fact and decision, either
affirming, modifying, or setting aside the determination or
assessment of the director or authorized representative and in
the case of an assessment, the hearing officer may increase or
decrease the amount of the assessment. The employing unit and the
director shall be promptly notified of the decision of the
hearing officer.
(5) A decision of the hearing officer shall become final on the
date of notification or the mailing thereof to the director and
to the employing unit at the last-known address of record with
the director unless within the time specified in { - ORS
183.480 (2) - } { + section 5 of this 2001 Act for the filing of
a notice of appeal + } the hearing officer on the hearing
officer's own motion reviews the same and issues an amended
decision in which case the amended decision becomes the final
decision.
SECTION 205. ORS 657.684 is amended to read:
657.684. Judicial review of decisions under ORS 657.683 shall
be as provided for review of orders in contested cases in
{ - ORS 183.310 to 183.550 - } { + sections 1 to 24 of this
2001 Act + }, except that the { - petition - } { + notice of
appeal + } shall be filed within 20 days after the order is
final. The Director of the Employment Department may file
{ - petition for judicial review in accordance with this
section - } { + a notice of appeal + } from { + a + } decision
of the hearing officer. When judicial review is upon an
assessment or assessments made pursuant to ORS 657.681 and the
court determines the assessment or assessments are valid,
judgment shall be given in favor of the director for the amount
due as determined by the court.
SECTION 206. ORS 663.220 is amended to read:
663.220. { + A final order of the Employment Relations Board
is subject to judicial review as provided in sections 1 to 24 of
this 2001 Act. + } { - (1) Any person aggrieved by a final
order of the Employment Relations Board granting or denying in
whole or in part the relief sought may obtain a review of the
order in the Court of Appeals by filing in the court a written
petition praying that the order of the board be modified or set
aside. A copy of the petition shall be transmitted forthwith by
the clerk of the court to the board and thereupon the aggrieved
party shall file in the court the record in the proceeding,
certified by the board. - }
{ - (2) On the filing of the petition, the court shall
proceed in the same manner as in the case of an application by
the board under ORS 663.210, and it has the same jurisdiction to
grant to the board temporary relief or restraining order as it
considers just and proper, and in like manner to make and enter a
decree enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the board. The
findings of the board with respect to questions of fact, if
supported by substantial evidence on the record considered as a
whole, are in like manner conclusive. - }
SECTION 207. ORS 671.613 is amended to read:
671.613. (1) The failure of a landscaping business to comply
with the provisions of this section, ORS 656.021, 657.665,
670.600, 671.520, 671.525, 671.530 and 671.575 or to be in
conformance with the provisions of ORS chapter 316, 571, 656 or
657 is a basis for suspension of the landscaping business
license, revocation of the landscaping business license, refusal
to issue or reissue a landscaping business license, assessment of
a civil penalty as set forth in ORS 671.720 or a combination of
these sanctions.
(2) Any action against a landscaping business under this
section shall be conducted in conformance with the provisions of
ORS { - 183.413 to 183.497 - } { + 183.310 to 183.550
relating to contested case proceedings + }.
SECTION 208. ORS 674.410 is amended to read:
674.410. A person shall not testify or otherwise present
evidence regarding an appraisal or appraisal report in a
proceeding under ORS 183.413 to { - 183.497 - } { +
183.470 + }, a circuit court action or otherwise before a
lawfully established board or commission unless the person has
prepared a written report on the appraisal or appraisal report
prior to presenting testimony or evidence.
SECTION 209. ORS 691.555 is amended to read:
691.555. (1) When the Board of Examiners of Licensed Dietitians
proposes to refuse to issue or renew a license, or proposes to
revoke or suspend a license, opportunity for hearing shall be
accorded as provided in ORS 183.310 to 183.550.
(2) Judicial review of orders under subsection (1) of this
section shall be in accordance with { - ORS 183.310 to
183.550 - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 210. ORS 696.527 is amended to read:
696.527. (1) Any escrow agent may satisfy the requirements of
ORS 696.525 by depositing with the State Treasurer, in an amount
equal to the surety bond required, a deposit consisting only of
the following:
(a) Cash;
(b) Ample secured obligations of the United States, a state or
a political subdivision thereof;
(c) Certificates of deposit or other investments described in
ORS 733.650 (4), to the extent that such investments are insured
by the Federal Deposit Insurance Corporation; or
(d) Any combination of paragraphs (a), (b) or (c) of this
subsection.
(2) The deposit shall be accepted and held by the State
Treasurer for the faithful performance of escrow activity by the
escrow agent. No claimant or judgment creditor or the escrow
agent shall have the right to attach or levy upon any of the
assets or securities held on deposit.
(3) The Real Estate Commissioner, by order, shall have
discretion to authorize the State Treasurer to use such deposit,
as follows:
(a) To satisfy any final judgment entered against the escrow
agent for actual damages suffered by any person by reason of the
violation of any of the provisions of ORS 696.505 to 696.590, now
or hereafter enacted, or by reason of any fraud, dishonesty,
misrepresentation or concealment of material fact growing out of
any escrow transaction;
(b) For use in the liquidation of the escrow agent under the
provisions of ORS 696.555;
(c) To release any or all of such deposit to the escrow agent
when, in the opinion of the commissioner, such deposit is no
longer necessary to protect the public; or
(d) Pursuant to { - ORS 183.413 to 183.497 - } { + the
provisions of ORS 183.310 to 183.550 relating to contested case
proceedings, + } the commissioner may determine that a violation
of ORS 696.505 to 696.590 has been committed and direct the
payment of a claim from the bond required under ORS 696.525 or
substitute therefor required under this section provided the
following conditions have been met:
(A) The amount of actual damages claimed, excluding attorney
fees, by the consumer is $1,500 or less.
(B) The consumer has first contacted the escrow agent involved
and, in writing, has made demand for payment of actual damages.
(C) The escrow agent has had 30 calendar days from the date of
the consumer's written demand to deal with the demand.
(D) The claim is only for actual damages sustained by the
consumer.
(4) The commissioner shall waive the requirement of the surety
bond or deposit for any escrow agent who demonstrates to the
commissioner's satisfaction that the capital and surplus or net
worth, of such escrow agent as of the end of the previous
business accounting year of the agent is equal to, or greater
than, the average month-end balance of custodial funds held by
such agent during the previous business accounting year.
(5) All other claims against the bond or deposit of an escrow
agent must be paid by the commissioner only upon the receipt of a
final court judgment against the escrow agent and only in the
amount of actual damages as ordered by the court.
SECTION 211. ORS 701.100 is amended to read:
701.100. (1) The failure of a contractor to comply with the
provisions of this section and ORS 656.021, 657.665, 670.600,
701.035, 701.065 to 701.075, 701.135, 701.240 and 701.250 or to
be in conformance with the provisions of ORS chapter 316, 656 or
657 is a basis for suspension of the contractor's license,
revocation of the contractor's license, refusal to issue or
reissue a contractor's license, assessment of a civil penalty as
set forth in ORS 701.992 or a combination of these sanctions.
(2) Any action against a contractor under this section shall be
conducted in conformance with the provisions of ORS 183.413 to
{ - 183.497 - } { + 183.470. Judicial review shall be
pursuant to sections 1 to 24 of this 2001 Act + }.
(3) When imposing a sanction for a violation of ORS 701.055
(1), if the Construction Contractors Board does not have evidence
that a contractor has worked without a license, and no consumer
has suffered damages from the work of the contractor, the civil
penalty imposed by the Construction Contractors Board shall not
exceed $1,000.
SECTION 212. ORS 703.230 is amended to read:
703.230. (1) The Department of Public Safety Standards and
Training shall conduct all proceedings under ORS 703.010 and
703.030 to 703.320 in accordance with ORS 183.310 to 183.550.
Judicial review of an action of the department shall be
{ + as + } provided in { - ORS 183.480, 183.485, 183.490 and
183.500 - } { + sections 1 to 24 of this 2001 Act + }.
(2) The Board on Public Safety Standards and Training, or the
department with the board's approval, shall adopt, in accordance
with ORS 183.310 to 183.550, rules for the administration and
enforcement of ORS 703.010 and 703.030 to 703.320.
SECTION 213. ORS 707.705 is amended to read:
707.705. (1) Before a person first takes office as director,
president or chief executive officer of a banking institution,
the name of the person shall be submitted to the Director of the
Department of Consumer and Business Services, with any
information about the person that the director may require.
(2) The director shall investigate each person whose name is
submitted under this section to determine the character, honesty,
financial responsibility and competence of the person. In the
course of investigating any person under this section, the
director may require the person to provide additional information
for the director's further inquiry. For the purpose of such
further inquiry, the director may require the person to submit to
fingerprinting. Fingerprints acquired under this subsection may
be submitted to appropriate law enforcement agencies, including
the Federal Bureau of Investigation, for the purpose of
discovering any unlawful activities of the person.
(3) The director may disapprove the election or appointment of
the person for any reason stated in ORS 707.145. The director
shall issue the disapproval in writing to the board of directors
that submitted the person's name. A copy of the disapproval shall
be served personally or by certified mail upon the disapproved
person. The disapproval may be issued without a prior
administrative hearing.
(4) A person whom the director disapproves under this section
may appeal the disapproval as a contested case pursuant to ORS
{ - 183.415 to 183.500 - } { + 183.413 to 183.470. Judicial
review of the final order shall be as provided in sections 1 to
24 of this 2001 Act + }.
SECTION 214. ORS 707.710 is amended to read:
707.710. (1) For any reason specified in subsection (2) of this
section, the Director of the Department of Consumer and Business
Services by order may direct the board of directors of a banking
institution to remove a director or officer of the banking
institution.
(2) The director may issue an order of removal under subsection
(1) of this section:
(a) For any reason stated in ORS 707.145; or
(b) If the person who is the subject of the order has refused
otherwise to comply with any written requirements or instructions
of the director.
(3) An order of removal under this section shall be in writing
and may be issued without a prior administrative hearing. A copy
of the order shall be served personally or by certified mail upon
the person to be removed.
(4) Upon receipt of an order of removal the director or officer
shall be suspended from office.
(5) The person suspended from office may appeal the order of
the director as a contested case under ORS { - 183.415 to
183.500 - } { + 183.413 to 183.470. Judicial review of the
final order shall be as provided in sections 1 to 24 of this 2001
Act + }.
(6) Upon expiration of the period in which to file { - an - }
{ + a notice of + } appeal under { - ORS 183.415 to
183.500 - } { + section 5 of this 2001 Act + } or when the
order of the director is affirmed on appeal, the board of
directors by resolution shall remove the person from office and
declare the office vacant.
(7) Any officer or director of a banking institution who is
suspended or removed under this section shall not act in any
official capacity, conduct any of the business of the banking
institution or have access to the books, records or assets of the
banking institution as an officer, director or stockholder,
without receiving permission from the director.
SECTION 215. ORS 709.535 is amended to read:
709.535. (1) Subject to the provisions of this section, and
subject to the approval of the Director of the Department of
Consumer and Business Services, an Oregon trust company may sell
all or any portion of its assets or transfer all or any portion
of its liabilities to another trust company outside the ordinary
course of business. Any such sale or transfer shall be documented
by an acquisition transaction agreement between or among the
parties, which agreement shall be approved by the board of
directors of each party to the transaction.
(2) If an Oregon trust company proposes to transfer all or
substantially all of its assets, liabilities or both outside the
ordinary course of business, it shall send notice of the
acquisition transaction to each of its stockholders within 30
days after its board approves the acquisition transaction, which
notice shall set forth the substantive provisions of ORS 711.175,
711.180 and 711.185. To be effective, each Oregon trust company
that is a party to the acquisition transaction shall have the
acquisition transaction approved by a two-thirds vote of the
outstanding stock of each class of voting shares at a meeting
called to consider the acquisition transaction.
(3) The director shall approve an acquisition transaction that
is subject to this section if the director finds that the
acquisition transaction:
(a) Conforms with the provisions of the Bank Act;
(b) Will not be detrimental to the safety and soundness of an
Oregon trust company that is a party to the acquisition
transaction;
(c) Is not contrary to the public interest; and
(d) If the acquiring trust company is not an Oregon trust
company, the director is satisfied that the acquisition
transaction is permitted by the supervisory authority, if any,
having jurisdiction over the acquiring trust company.
(4) If the director disapproves an acquisition transaction that
is subject to this section, the director shall state any
objections in writing and give the parties to the acquisition
transaction an opportunity to take action to obviate the
objections.
(5) Any party to an acquisition transaction agreement may
appeal the decision of the director as provided in { - ORS
183.415 to 183.500 - } { + sections 1 to 24 of this 2001
Act + }.
SECTION 216. ORS 711.135 is amended to read:
711.135. (1) Within 90 days after receiving the materials and
fee specified in ORS 711.130, unless the time is extended by the
Director of the Department of Consumer and Business Services in
concurrence with the applicants, the director shall approve or
disapprove the plan of merger or plan of share exchange. The
director shall approve the plan of merger or plan of share
exchange if the director finds that:
(a) The transaction conforms with the provision of the Bank
Act;
(b) The transaction will not be detrimental to the safety and
soundness of the resulting Oregon stock bank or Oregon stock bank
to be acquired through a share exchange;
(c) The transaction is not contrary to the public interest; and
(d) The director is satisfied that the transaction is permitted
by the state or federal supervisory authority having jurisdiction
over the resulting insured stock institution or acquiring
company.
(2) If the director disapproves a plan of merger or plan of
share exchange, the director shall state any objections in
writing and give the boards of the parties to the transaction an
opportunity to amend the plan of merger or plan of share exchange
to obviate the objections. The amended plan of merger or plan of
share exchange shall be submitted to the director for approval as
if it were the original plan of merger or plan of share exchange.
(3) Any of the parties to the transaction may appeal the
decision of the director as provided in { - ORS 183.415 to
183.500 - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 217. ORS 711.160 is amended to read:
711.160. (1) Within 90 days after receiving the materials and
fee specified in ORS 711.155, unless the time is extended by the
Director of the Department of Consumer and Business Services in
concurrence with the applicants, the director shall approve or
disapprove the plan of merger. The director shall approve the
plan of merger if the director finds that:
(a) The resulting insured nonstock institution meets the
requirements of the Bank Act;
(b) The merger will not be detrimental to the safety and
soundness of the resulting insured nonstock institution;
(c) The merger is not contrary to the public interest; and
(d) The director is satisfied that the merger is permitted by
the state or federal supervisory authority having jurisdiction
over the resulting insured nonstock institution.
(2) If the director disapproves a plan of merger, the director
shall state any objections in writing and give the boards of the
parties to the merger an opportunity to amend the plan of merger
to obviate the objections. The amended plan of merger shall be
submitted to the director for approval as if it were the original
plan of merger.
(3) Any of the parties to the merger may appeal the decision of
the director as provided in { - ORS 183.415 to 183.500 - }
{ + sections 1 to 24 of this 2001 Act + }.
SECTION 218. ORS 711.170 is amended to read:
711.170. (1) Subject to the provisions set forth in this
section and ORS 713.270, an Oregon bank may sell all or any
portion of its assets or transfer all or any portion of its
liabilities, other than deposit liabilities, to any person and
may transfer all or any portion of its deposit liabilities to any
insured institution.
(2) An Oregon bank may sell all or substantially all of its
assets outside the ordinary course of business, transfer all or
substantially all the deposit liabilities of any of its branches
or principal place of business, or both, only with the prior
written approval of the Director of the Department of Consumer
and Business Services.
(3) An acquisition transaction agreement shall be approved by a
majority of the entire board of directors of each Oregon bank
that:
(a) Is selling assets or transferring deposit liabilities, or
both, requiring approval of the director under subsection (2) of
this section; or
(b) Is acquiring all or substantially all of the assets outside
the ordinary course of business, all or substantially all of the
deposit liabilities, or both, of another insured institution.
(4) After approval of the acquisition transaction agreement by
the board of directors of each Oregon bank that is subject to
subsection (3) of this section, the following shall be submitted
to the director, if required under subsection (2) of this
section, for approval:
(a) A copy of the acquisition transaction agreement, which
shall contain the terms of conditions of the acquisition
transaction;
(b) A nonrefundable application fee of $3,000;
(c) Certified copies of the authorizing resolutions of the
board of directors of each such Oregon bank showing approval of
the acquisition transaction agreement in accordance with
subsection (3) of this section; and
(d) Such other information as the director may require.
(5) If an Oregon stock bank proposes to transfer all or
substantially all of its assets outside the ordinary course of
business, all or substantially all of its deposit liabilities, or
both, such Oregon stock bank shall send to each of its
stockholders, within 30 days after approval by its board of
directors, notice of the acquisition transaction and a copy of
ORS 711.175, 711.180 and 711.185. To be effective, each Oregon
stock bank that proposes to transfer all or substantially all of
its assets outside the ordinary course of business, all or
substantially all of its deposit liabilities, or both, shall have
such acquisition transaction approved by a vote of two-thirds of
the outstanding stock of each class of voting shares at a meeting
called to consider the acquisition transaction.
(6) Within 90 days after approval of the board of directors of
each Oregon nonstock bank that proposes to transfer all or
substantially all of its assets outside the ordinary course of
business, all or substantially all of its deposit liabilities, or
both, each such Oregon nonstock bank shall send notice of the
acquisition transaction to the household of each depositor of
each such Oregon nonstock bank. Such notice shall include at
least the name of the acquiring person or insured institution,
the address of the head office of such person or insured
institution, and a statement that all or substantially all of the
assets, deposit liabilities, or both, will be acquired. Such
notice may be included in any account statement sent to such
depositors.
(7) The director shall approve an acquisition transaction that
is subject to subsection (2) of this section if the director
finds that the acquisition transaction:
(a) Conforms with the provisions of the Bank Act;
(b) Will not be detrimental to the safety and soundness of an
Oregon bank that is a party to such an acquisition transaction;
(c) Is not contrary to the public interest; and
(d) If the acquiring person or insured institution is not an
Oregon bank, the director is satisfied that the acquisition
transaction is permitted by the supervisory authority, if any,
having jurisdiction over the acquiring person or insured
institution.
(8) If the director disapproves an acquisition transaction that
is subject to subsection (2) of this section, the director shall
state any objections in writing and give the parties to the
acquisition transaction an opportunity to take actions to obviate
the objections.
(9) Any party to an acquisition transaction agreement may
appeal the decision of the director as provided in { - ORS
183.415 to 183.500 - } { + sections 1 to 24 of this 2001
Act + }.
SECTION 219. ORS 711.180 is amended to read:
711.180. (1) Any stockholder of an Oregon stock bank who
dissented to a transaction listed under ORS 711.175 (1) and who
desires to receive the value in cash of those shares, shall make
written demand upon the Oregon stock bank or its successor and
accompany the demand with the surrender of the share
certificates, properly indorsed within 30 days after the
stockholders' meeting at which a vote to approve such transaction
involving an Oregon stock bank was taken. Any stockholder failing
to make written demand within the 30-day period shall be bound by
the terms of the proposed plan of merger, plan of share exchange
or acquisition transaction agreement.
(2) Within 30 days after a transaction listed under ORS 711.175
(1) is effected, the Oregon stock bank or its successor shall
give written notice thereof to each dissenting stockholder who
has made demand under this section at the address of the
stockholder on the stock record books of the Oregon stock bank,
and shall make a written offer to each such stockholder to pay
for the shares at a specified price in cash determined by the
Oregon stock bank or its successor to be the fair value of the
shares as of the effective date of the transaction. The notice
and offer shall be accompanied by a statement of condition of the
Oregon stock bank, the shares of which the dissenting stockholder
held, as of the latest available date and not more than four
months prior to the consummation of the transaction, and a
statement of income of the Oregon stock bank for the period
ending on the date of the statement of condition.
(3) Any stockholder who accepts the offer of the Oregon stock
bank or its successor within 30 days following the date on which
notice of the offer was mailed or delivered to dissenting
stockholders shall be paid the price per share offered, in cash,
within 30 days following the date on which the stockholder
communicates acceptance in writing to the Oregon stock bank or
its successor. Upon payment, the dissenting stockholder shall
cease to have any interest in the shares previously held by the
stockholder.
(4) If, within 30 days after notice of the offer, one or more
dissenting stockholders do not accept the offer of the Oregon
stock bank or its successor or if no offer is made, then the
value of the shares of the dissenting stockholders who have not
accepted the offer shall be ascertained, as of the effective date
of the transaction, by an independent, qualified appraiser chosen
by the Director of the Department of Consumer and Business
Services. The valuation determined by the appraiser shall govern
and the appraiser's valuation of such shares shall not be
appealable except for one or more of the reasons set forth in ORS
36.355 (1). Any such appeal must be made { - within 30 days
after the date of the appraiser's valuation and is subject to ORS
183.415 to 183.500 - } { + in the manner provided by sections 1
to 24 of this 2001 Act + }. The Oregon stock bank or its
successor shall pay the dissenting shareholders the appraised
value of the shares within 30 days after the date the appraiser
sends the Oregon stock bank or its successor written notice of
the appraiser's valuation.
(5) The director shall assess the reasonable costs and expenses
of the appraisal proceeding equally to the Oregon stock bank or
its successor and to the dissenting shareholders, as a group, if
the amount offered by the Oregon stock bank or its successor is
between 85 percent and 115 percent of the appraised value of the
shares. The director shall assess the reasonable costs and
expenses of the appraisal proceeding and the reasonable costs and
expenses, including attorney fees and costs, of the Oregon stock
bank or its successor to the dissenting stockholders, as a group,
if the amount offered by the Oregon stock bank or its successor
is 115 percent or more of the appraised value of the shares. The
director shall assess the reasonable costs and expenses of the
appraisal proceeding and the reasonable costs and expenses,
including attorney fees and costs, of the dissenting
shareholders, as a group, to the Oregon stock bank or its
successor if the amount offered by the Oregon stock bank or its
successor is 85 percent or less of the appraised value of the
shares. The director's decision regarding assessment of fees and
costs may be appealed as provided in { - ORS 183.415 to
183.500 - } { + sections 1 to 24 of this 2001 Act + }.
(6) Amounts required to be paid by the Oregon stock bank or its
successors, or the dissenting shareholders under this section
shall be paid within 30 days after the director's assessment of
any fees or costs becomes final or, if the director's decision is
appealed, within 30 days after a final determination of such fees
and costs is made.
(7) The director may require, as a condition of approving a
transaction listed in ORS 711.175 (1), the replacement of all or
a portion of the stockholders' equity of an Oregon stock bank
expended in payment to dissenting stockholders under this
section.
(8) A stockholder may not receive the fair value of the
stockholder's shares under this section:
(a) If the plan of merger provides that all stockholders of the
resulting insured stock institution receive common stock of a
holding company pursuant to a merger with an interim Oregon stock
bank chartered under ORS 707.025, and the stockholder's Oregon
stock bank and the interim Oregon stock bank are the only parties
to the merger; or
(b) If the shares held by the dissenting stockholder
immediately before the effective date of a transaction listed in
ORS 711.175 (1) are listed on any national securities exchange or
are included on the list of over-the-counter margin stocks issued
by the Board of Governors of the Federal Reserve System.
SECTION 220. ORS 717.235 is amended to read:
717.235. (1) Upon the filing of a complete application, the
Director of the Department of Consumer and Business Services
shall review the application and may investigate the financial
condition and responsibility, financial and business experience,
character and general fitness of the applicant. The director may
conduct an on-site investigation of the applicant, the reasonable
cost of which shall be paid by the applicant. The director may
disapprove an application if the director finds that the
applicant:
(a) Is insolvent, either in the sense that the person's
liabilities exceed the person's assets or that the person cannot
meet obligations as they mature, or that the person is in such
financial condition that the person cannot continue in business
with safety to the person's customers;
(b) Has engaged in dishonest, fraudulent or illegal practices
or conduct in any business or profession;
(c) Has willfully or repeatedly violated or failed to comply
with any provisions of the Oregon Bank Act, Oregon Securities
Law, Savings Association Act, Oregon Credit Union Act, Oregon
Consumer Finance Act or Pawnbrokers Act or any rule or order of
the director adopted under those laws;
(d) Has been convicted of a crime, an essential element of
which is fraud;
(e) Is not qualified to engage in the business of money
transmission on the basis of such factors as training, experience
and knowledge of the business;
(f) Is permanently or temporarily enjoined by a court of
competent jurisdiction from engaging in or continuing any conduct
or practice involving any aspect of the banking business or of
the money transmission business;
(g) Is the subject of an order of the director subjecting the
person to a fine or other civil penalty or removing the person
from an office in any entity regulated by the director; or
(h) Is the subject of an order entered within the past five
years, subjecting the person to a fine or other civil penalty or
removing the person from an office in a state or federally
chartered, licensed or regulated financial services company.
(2) The director may also disapprove an application if the
director finds that any controlling person is subject to any
provision of subsection (1) of this section except subsection
(1)(a) or (e) of this section. If a controlling person is the
sole owner of the applicant, then the director may disapprove an
application if the director finds that the controlling person is
subject to any provision of subsection (1) of this section.
(3) If the director finds that the applicant's business will be
conducted honestly, fairly and in a manner commanding the
confidence and trust of the community, and that the applicant has
fulfilled the requirements imposed by ORS 717.200 to 717.320,
717.900 and 717.905 and has paid the required license fee, the
director shall issue a license to the applicant authorizing the
applicant to conduct money transmission business in this state
for a term of one year. If these requirements have not been met,
the director shall deny the application in writing and shall
describe the reasons for the denial.
(4) An order of the director denying an application under ORS
717.200 to 717.320, 717.900 and 717.905 shall state the grounds
upon which the order is based and shall not become effective for
at least 20 days after written notice of the order has been sent
by registered or certified mail to the applicant at the principal
place of business of the applicant.
(5) Appeals from an order of the director denying an
application may be taken to the courts of this state as provided
by { - ORS 183.310 to 183.550 - } { + sections 1 to 24 of
this 2001 Act + }.
SECTION 221. ORS 722.459 is amended to read:
722.459. (1) After a certificate of authority to commence
business has been issued to a savings association, before a
person first takes office as director, president or managing
officer, the name of the person shall be submitted to the
Director of the Department of Consumer and Business Services,
with any information about the person that the director may
require.
(2) The director shall investigate each person whose name is
submitted under this section to determine the character, honesty,
financial responsibility and competence of the person. In the
course of investigating any person under this section, the
director may require the person to provide additional information
for the director's further inquiry. For the purpose of such
further inquiry, the director may require the person to submit to
fingerprinting. Fingerprints acquired under this subsection may
be submitted to appropriate law enforcement agencies, including
the Federal Bureau of Investigation, for the purpose of
discovering any unlawful activities of the person.
(3) The director may disapprove the election or appointment of
the person if the director determines that the person's
character, honesty, financial responsibility, experience or
fitness does not command confidence or warrant the belief that
the person will honestly and efficiently conduct the business of
the savings association. The director shall issue the disapproval
in writing to the board of directors that submitted the person's
name. A copy of the disapproval shall be served personally or by
certified mail upon the disapproved person. The disapproval may
be issued without a prior administrative hearing. A disapproval
under this section must be made within 30 days after the name is
submitted to the director. Thereafter, disapproval may be made
only as provided in ORS 722.468.
(4) A person whom the director disapproves under this section
may appeal the disapproval as a contested case pursuant to ORS
{ - 183.415 to 183.500 - } { + 183.413 to 183.470. Judicial
review of the final order shall be as provided in sections 1 to
24 of this 2001 Act + }.
SECTION 222. ORS 737.209 is amended to read:
737.209. (1) The Director of the Department of Consumer and
Business Services may hold a hearing on a filing made pursuant to
ORS 737.207 if the director determines that such a hearing would
aid the director in determining whether to approve or disapprove
the filing. A hearing under this section may be held at a place
designated by the director and upon not less than 10 days'
written notice to the insurer or rating organization that made
the filing and to any other person the director decides should be
notified. A filing that is the subject of a hearing under this
section becomes effective, if approved, as provided in subsection
(4) of this section.
(2) A hearing held pursuant to subsection (1) of this section
must be conducted by a hearing officer assigned from the Hearing
Officer Panel established under section 3, chapter 849, Oregon
Laws 1999. The hearing officer shall report findings, conclusions
and recommendations to the director within 30 days of the close
of the hearing. The insurer or rating organization proposing the
rate filing shall have the burden of proving that the rate
proposal is justified and shall pay to the director the fair and
reasonable costs of the hearing, including actual necessary
expenses.
(3) Within 10 days of receiving a report from the hearing
officer, the director shall issue an order approving or
disapproving the filing.
(4) An order issued under subsection (3) of this section may be
reviewed as provided in { - ORS 183.480 to 183.550 - }
{ + sections 1 to 24 of this 2001 Act + } for review of
contested cases. A filing approved by the director under this
section shall be effective 10 days after the order issued under
subsection (3) of this section and shall remain effective during
any review of the order.
SECTION 223. ORS 737.209, as amended by section 176, chapter
849, Oregon Laws 1999, is amended to read:
737.209. (1) The Director of the Department of Consumer and
Business Services may hold a hearing on a filing made pursuant to
ORS 737.207 if the director determines that such a hearing would
aid the director in determining whether to approve or disapprove
the filing. A hearing under this section may be held at a place
designated by the director and upon not less than 10 days'
written notice to the insurer or rating organization that made
the filing and to any other person the director decides should be
notified. A filing that is the subject of a hearing under this
section becomes effective, if approved, as provided in subsection
(4) of this section.
(2) A hearing held pursuant to subsection (1) of this section
may be conducted by a hearing officer designated by the director.
The hearing officer shall report findings, conclusions and
recommendations to the director within 30 days of the close of
the hearing. The insurer or rating organization proposing the
rate filing shall have the burden of proving that the rate
proposal is justified and shall pay to the director the fair and
reasonable costs of the hearing, including actual necessary
expenses.
(3) Within 10 days of receiving a report from the hearing
officer, the director shall issue an order approving or
disapproving the filing.
(4) An order issued under subsection (3) of this section may be
reviewed as provided in { - ORS 183.480 to 183.550 - } { +
sections 1 to 24 of this 2001 Act + } for review of contested
cases. A filing approved by the director under this section shall
be effective 10 days after the order issued under subsection (3)
of this section and shall remain effective during any review of
the order.
SECTION 224. ORS 756.528 is amended to read:
756.528. At any time before the conclusion of the taking of
evidence in a proceeding, the Public Utility Commission may
segregate the issues involved and order separate hearings thereon
at such times and places as the commission may prescribe. The
commission may issue interim orders on any such issues, but any
such interim order is subject to judicial review in the manner
prescribed in { - ORS 756.580 to 756.610 - } { + sections 1
to 24 of this 2001 Act + } without awaiting determination of any
of the other issues involved in the proceeding. Failure to seek
judicial review of an interim order does not waive the right to
seek such review following final order.
SECTION 225. ORS 756.565 is amended to read:
756.565. All rates, tariffs, classifications, regulations,
practices and service fixed, approved or prescribed by the Public
Utility Commission and any order made or entered upon any matter
within the jurisdiction of the commission shall be in force and
shall be prima facie lawful and reasonable, until found otherwise
in a proceeding brought for that purpose under { - ORS 756.580
to 756.610 - } { + sections 1 to 24 of this 2001 Act + }.
SECTION 226. ORS 756.580 is amended to read:
756.580. { + Judicial review of any action of the Public
Utility Commission shall be as provided by sections 1 to 24 of
this 2001 Act. + } { - (1) A party to any proceeding before the
Public Utility Commission, when aggrieved by any findings of
fact, conclusions of law or order, including the dismissal of any
complaint or application by the commission, may prosecute a suit
against the commission to modify, vacate or set aside such
findings of fact, conclusions of law or order. - }
{ - (2) Such suit may be commenced by any party so aggrieved
in the Circuit Court for Marion County, in the circuit court for
the county in which any hearing has been held in the proceeding
in which the order was made, or in the circuit court for the
county in which is located the principal office of any defendant
in any such proceeding before the commission, and jurisdiction of
any such suit hereby is conferred upon the circuit court for any
of such counties to hear and determine such suit. - }
{ - (3) In such suit, a copy of the complaint shall be served
with the summons. The commission shall serve and file an answer
to such complaint within 10 days after the service thereof,
whereupon the suit shall be at issue and stand ready for trial
upon 10 days' notice by either party. All suits brought under
this section shall have precedence over any civil cause of a
different nature pending in the court, and the circuit court
always shall be open for the trial thereof. - }
{ - (4) Unless application is made for rehearing or
reconsideration of the order, any such suit must be commenced
within 60 days after the date of service of the order in the
proceeding before the commission. If application for rehearing or
reconsideration is made, such suit must be commenced within 60
days after the date of service of the order denying rehearing or
reconsideration or the date of service of the new order if
rehearing or reconsideration is granted. If an order granting or
denying an application for rehearing or reconsideration has not
been made by the 60th day after the filing of the application, an
order denying the application shall be considered served on the
61st day after such filing. - }
{ - (5) Application for rehearing or reconsideration need not
be made as a condition of judicial review. - }
SECTION 227. ORS 757.110 is amended to read:
757.110. (1) Any finding and order made and entered by the
Public Utility Commission under ORS 757.105 or 757.107, shall
have the effect of prohibiting any unapproved or rejected
expenditure from being recognized as an operating expense or
capital expenditure in any rate valuation proceeding or in any
proceeding or hearing unless and until the propriety thereof has
been established to the satisfaction of the commission. Any such
finding and order shall remain in full force and effect, unless
and until it is vacated and set aside { - in a suit brought and
prosecuted as provided in ORS 756.580 to 756.610 - } { + by a
court under the provisions of sections 1 to 24 of this 2001
Act, + } or modified or set aside by the commission.
(2) Nothing in ORS 757.105 or 757.107 prevents the commission
from at any time making and filing orders rejecting imprudent and
unwise expenditures or payments. Such orders when so made shall
be in full force and effect, and the public utility shall not
have the right to make such expenditures or payments found to be
imprudent or unwise until the order has been vacated or set aside
{ - in a suit brought and prosecuted as provided in ORS 756.580
to 756.610 - } { + by a court under the provisions of sections
1 to 24 of this 2001 Act, + } or modified or set aside by the
commission.
SECTION 228. ORS 757.247 is amended to read:
757.247. The Public Utility Commission may authorize a public
utility to file and place into effect tariff schedules
establishing rates or charges for energy conservation measures,
services or payments provided to individual property owners or
customers. Application of the schedule shall be subject to
agreement between the public utility and the property owner or
customer receiving service at the time the conservation measures,
services or payments are initially provided. The schedule may
include provisions for the payment of the rates or charges over a
period of time and for the application of the payment obligation
to successive property owners or customers at the premises where
the conservation measures or services were installed or performed
or with respect to which the conservation payments were made. The
public utility shall record a notice of the payment obligation in
the records maintained by the county clerk under ORS 205.130. The
commission may prescribe by rule under the applicable provisions
of ORS { - 183.325 to 183.400 - } { + 183.310 to 183.550 + }
other methods by which the public utility shall notify property
owners or customers of any such payment obligation.
SECTION 229. ORS 757.495 is amended to read:
757.495. (1) When any public utility doing business in this
state enters into any contract to make any payment, directly or
indirectly, to any person or corporation having an affiliated
interest, for service, advice, auditing, accounting, sponsoring,
engineering, managing, operating, financing, legal or other
services, or enter any charges therefor on its books, which shall
be recognized as an operating expense or capital expenditure in
any rate valuation or any other hearing or proceeding, the
contract shall be filed with the Public Utility Commission within
90 days of execution of the contract. The contract shall be
deemed to be executed on the date the parties sign a written
contract or on the date the parties begin to transact business
under the contract, whichever date is earlier.
(2) When any public utility doing business in this state shall
enter into any contract, oral or written, with any person or
corporation having an affiliated interest relating to the
construction, operation, maintenance, leasing or use of the
property of such public utility in Oregon, or the purchase of
property, materials or supplies, which shall be recognized as the
basis of an operating expense or capital expenditure in any rate
valuation or any other hearing or proceeding, the contract shall
be filed with the commission within 90 days of execution of the
contract. The contract shall be deemed to be executed on the date
the parties sign a written contract or on the date the parties
begin to transact business under the contract, whichever date is
earlier.
(3) When any such contract has been submitted to the
commission, the commission promptly shall examine and investigate
it. If, after such investigation, the commission determines that
it is fair and reasonable and not contrary to the public
interest, the commission shall enter findings and order to this
effect and serve a copy thereof upon the public utility,
whereupon any expenses and capital expenditures incurred by the
public utility under the contract may be recognized in any rate
valuation or other hearing or proceeding. If, after such
investigation, the commission determines that the contract is not
fair and reasonable in all its terms and is contrary to the
public interest, the commission shall enter findings and order
accordingly and serve a copy thereof upon the public utility,
and, except as provided in subsection (4) of this section, it
shall be unlawful to recognize the contract for the purposes
specified in this section.
(4) When any such contract has been filed with the commission
within 90 days of execution and the commission has not entered an
order disapproving the contract under subsection (3) of this
section, the commission shall not base its refusal to recognize
any expenses or capital expenditures incurred under the contract
in any rate valuation or other hearing or proceeding solely on
the basis that such contract has not been approved under
subsection (3) of this section.
(5) No public utility shall issue notes or loan its funds or
give credit on its books or otherwise to any person or
corporation having an affiliated interest, either directly or
indirectly, without the approval of the commission.
(6) The action of the commission with respect to all the
matters described in this section when submitted to the
commission, shall be by findings and order to be entered within
90 days after the matter has been submitted to the commission for
consideration, and the findings and order of the commission with
respect to any of such matters shall be and remain in full force
and effect, unless and until set aside { - by suit brought and
prosecuted, as provided in ORS 756.580 to 756.610, and - }
{ + in a judicial review proceeding under sections 1 to 24 of
this 2001 Act. Notwithstanding section 7 of this 2001 Act, + }
the public utility, or any other person or corporation affected
by any such findings and order, may { - bring and prosecute
such suit - } { + seek judicial review of the order + }.
SECTION 230. ORS 758.020 is amended to read:
758.020. (1) The county court, board of county commissioners or
the Department of Transportation, when designating the location
where poles or other aboveground facilities described in ORS
758.010 may be placed on a road or highway which fronts on the
ocean or on a river or other body of water and the water frontage
of the highway is being developed or maintained for its scenic or
recreational value, may require all lines to occupy the opposite
side of the right of way, if such joint occupancy can be
maintained without undue impairment of service or damage to
public life and property.
(2) If the owners of such lines are unable to agree on the
terms and conditions of joint occupancy, such department, court
or board shall request the Public Utility Commission to determine
the practicability of such joint occupancy and the effect thereof
upon adequate and safe service by the prospective joint
occupants, the location of the lines, and, if found to be
practicable, to fix and prescribe the terms and conditions
pursuant to which joint occupancy shall be accomplished. Before
making or entering an order, such commission shall hold a hearing
and make findings in accordance with ORS 756.500 to 756.610,
subject to review as provided in { - ORS 756.580 to 756.610 - }
{ + sections 1 to 24 of this 2001 Act + }. In fixing terms and
conditions pursuant to which joint occupancy shall be
accomplished, the Public Utility Commission shall require the
installation by each occupant of standards, devices and equipment
reasonably necessary to protect the equipment of the other
occupants from damage and the public from injury arising from
such joint occupancy.
(3) The right of any public utility or telecommunications
utility to construct, maintain and operate on a public highway
poles or fixtures is contingent on compliance with reasonable
requirements established by the Department of Transportation,
county courts, boards of county commissioners or the Public
Utility Commission under authority of this section and ORS
758.010. Such rights are likewise contingent and conditioned on
all facilities, equipment and installations being constructed and
maintained in strict conformance with modern and approved
standards.
SECTION 231. ORS 758.035 is amended to read:
758.035. (1) Every public utility, telecommunications utility,
person, association or corporation having conduits, subways,
street railway tracks, poles or other equipment on, over or under
any street or highway shall for a reasonable compensation permit
the use of the same by any public utility or telecommunications
utility whenever public convenience or necessity requires such
use and such use will not result in irreparable injury to the
owner or other users of such equipment nor in any substantial
detriment to the service to be rendered by such owners or other
users.
(2) In case of failure to agree upon such use or the conditions
or compensation for such use, any public utility,
telecommunications utility, person, association or corporation
interested may apply to the Public Utility Commission, and if
after investigation the commission ascertains that public
convenience or necessity requires such use and that it would not
result in irreparable injury to the owner or other users of such
equipment, the commission shall by order direct that such use be
permitted and prescribe reasonable conditions and compensation
for such joint use.
(3) The use so ordered shall be permitted and the prescribed
conditions and compensation shall be the lawful conditions and
compensation to be observed, followed and paid, subject to
{ - recourse to the courts upon the complaint of any interested
party as provided in ORS 756.580 to 756.610, and such statutes so
far as applicable shall apply to any suit arising on a complaint
so made - } { + judicial review under sections 1 to 24 of this
2001 Act + }. Any such order of the commission may be from time
to time revised by the commission upon application of any
interested party or upon the commission's own motion. All public
utilities and telecommunications utilities shall afford all
reasonable facilities and make all necessary regulations for the
interchange of business, or traffic carried or their product
between them, when ordered by the commission so to do.
SECTION 232. ORS 758.425 is amended to read:
758.425. (1) On the basis of the applicant's filing or, if
there is a hearing, on the record made at the hearing held
pursuant to ORS 758.420, the Public Utility Commission shall
enter an order either approving or disapproving the contract as
filed, together with any appropriate findings of the facts
supporting such order.
(2) Any party to such contract may { - commence a suit to
vacate and set aside - } { + seek judicial review of + } the
commission's order { - on the ground that such order is
unlawful, and so far as applicable and not inconsistent herewith,
the provisions of ORS 756.580 to 756.610 shall govern such
suit - } { + under sections 1 to 24 of this 2001 Act + }.
(3) If the commission approves a contract and { - no suit is
filed to vacate or set aside the commission's order as above
provided - } { + no judicial review of the order is sought + },
the contract shall be deemed to be valid and enforceable for all
purposes from the date on which the right to file { - such
suit - } { + a notice of appeal + } expires. { - If a suit to
vacate or set aside the commission's order is filed, the validity
of the contract shall be as determined by the final judgment
therein rendered. - }
SECTION 233. ORS 758.445 is amended to read:
758.445. Any party to the hearing may { - commence a suit to
vacate and set aside - } { + seek judicial review of + } the
Public Utility Commission's order as provided in { - ORS
756.580 to 756.610 - } { + sections 1 to 24 of this 2001
Act + }. If { - no suit is filed to vacate or set aside the
commission's order - } { + a notice of appeal is not filed + }
within the specified time, the order shall thereafter be valid
and enforceable for the purposes herein specified from the date
on which the right to file { - such suit - } { + a notice of
appeal + } expires. { - If a suit to vacate or set aside the
commission's order is filed, the validity of the order shall be
determined by the final judgment therein provided. - }
SECTION 234. ORS 759.115 is amended to read:
759.115. (1) Any finding and order made and entered by the
Public Utility Commission under ORS 759.100 and 759.110 shall
have the effect of prohibiting any unapproved or rejected
expenditure from being recognized as an operating expense or
capital expenditure in any rate valuation proceeding or in any
proceeding or hearing unless and until the propriety thereof has
been established to the satisfaction of the commission. Any such
finding and order shall remain in full force and effect, unless
and until it is vacated and set aside { - in a suit brought and
prosecuted as provided in ORS 756.580 to 756.610 - } { + by a
court in a proceeding under sections 1 to 24 of this 2001
Act, + } or modified or set aside by the commission.
(2) Nothing in ORS 759.100 and 759.110 prevents the commission
from at any time making and filing orders rejecting imprudent and
unwise expenditures or payments. Such orders when so made shall
be in full force and effect, and the telecommunications utility
shall not have the right to make such expenditures or payments
found to be imprudent or unwise until the order has been vacated
or set aside { - in a suit brought and prosecuted as provided
in ORS 756.580 to 756.610 - } { + by a court in a proceeding
under sections 1 to 24 of this 2001 Act, + } or modified or set
aside by the commission.
SECTION 235. ORS 759.390 is amended to read:
759.390. (1) When any telecommunications utility doing business
in this state enters into any contract to make any payment,
directly or indirectly, to any person or corporation having an
affiliated interest, for service, advice, auditing, accounting,
sponsoring, engineering, managing, operating, financing, legal or
other services, or enter any charges therefor on its books, which
shall be recognized as an operating expense or capital
expenditure in any rate valuation or any other hearing or
proceeding, the contract shall be filed with the Public Utility
Commission within 90 days of execution of the contract. The
contract shall be deemed to be executed on the date the parties
sign a written contract or on the date the parties begin to
transact business under the contract, whichever date is earlier.
(2) When any telecommunications utility doing business in this
state shall enter into any contract, oral or written, with any
person or corporation having an affiliated interest relating to
the construction, operation, maintenance, leasing or use of the
property of such telecommunications utility in Oregon, or the
purchase of property, materials or supplies, which shall be
recognized as the basis of an operating expense or capital
expenditure in any rate valuation or any other hearing or
proceeding, the contract shall be filed with the commission
within 90 days of execution of the contract. The contract shall
be deemed to be executed on the date the parties sign a written
contract or on the date the parties begin to transact business
under the contract, whichever date is earlier.
(3) When any such contract has been submitted to the
commission, the commission promptly shall examine and investigate
it. If, after such investigation, the commission determines that
it is fair and reasonable and not contrary to the public
interest, the commission shall enter findings and order to this
effect and serve a copy thereof upon the telecommunications
utility, whereupon any expenses and capital expenditures incurred
by the telecommunications utility under the contract may be
recognized in any rate valuation or other hearing or proceeding.
If, after such investigation, the commission determines that the
contract is not fair and reasonable in all its terms and is
contrary to the public interest, the commission shall enter
findings and order accordingly and serve a copy thereof upon the
telecommunications utility, and, except as provided in subsection
(4) of this section, it shall be unlawful to recognize the
contract for the purposes specified in this section.
(4) When any such contract has been filed with the commission
within 90 days of execution and the commission has not entered an
order disapproving the contract under subsection (3) of this
section, the commission shall not base its refusal to recognize
any expenses or capital expenditures incurred under the contract
in any rate valuation or other hearing or proceeding solely on
the basis that such contract has not been approved under
subsection (3) of this section.
(5) No telecommunications utility shall issue notes or loan its
funds or give credit on its books or otherwise to any person or
corporation having an affiliated interest, either directly or
indirectly, without the approval of the commission.
(6) The action of the commission with respect to all the
matters described in this section when submitted to the
commission, shall be by findings and order to be entered within
90 days after the matter has been submitted to the commission for
consideration, and the findings and order of the commission with
respect to any of such matters shall be and remain in full force
and effect, unless and until set aside { - by suit brought and
prosecuted, as provided in ORS 756.580 to 756.610, and - }
{ + in a judicial review proceeding under sections 1 to 24 of
this 2001 Act. Notwithstanding section 7 of this 2001 Act, + }
the telecommunications utility, or any other person or
corporation affected by any such findings and order, may
{ - bring and prosecute such suit - } { + seek judicial review
under sections 1 to 24 of this 2001 Act + }.
(7) This section applies only to transactions in which the
telecommunications utility's Oregon intrastate expenditure to the
affiliate is more than $100,000.
SECTION 236. ORS 759.525 is amended to read:
759.525. (1) On the basis of the applicant's filing or, if
there is a hearing, on the record made at the hearing held
pursuant to ORS 759.520, the Public Utility Commission shall
enter an order either approving or disapproving the contract as
filed, together with any appropriate findings of the facts
supporting such order.
(2) Any party to such contract may { - commence a suit to
vacate and set aside the commission's order on the ground that
such order is unlawful, and so far as applicable and not
inconsistent herewith, the provisions of ORS 756.580 to 756.610
shall govern such suit - } { + seek judicial review of the
commission's order under sections 1 to 24 of this 2001 Act + }.
(3) If the commission approves a contract and { - no suit is
filed to vacate or set aside the commission's order as above
provided - } { + a notice of appeal is not filed + }, the
contract shall be deemed to be valid and enforceable for all
purposes from the date on which the right to file { - such
suit - } { + the notice of appeal + } expires. { - If a suit
to vacate or set aside the commission's order is filed, the
validity of the contract shall be as determined by the final
judgment therein rendered. - }
SECTION 237. ORS 759.545 is amended to read:
759.545. Any party to the hearing may { - commence a suit to
vacate and set aside - } { + seek judicial review of + } the
Public Utility Commission's order as provided in { - ORS
756.580 to 756.610 - } { + sections 1 to 24 of this 2001
Act + }. If { - no suit is filed to vacate or set aside the
commission's order - } { + a notice of appeal is not filed + }
within the specified time, the order shall thereafter be valid
and enforceable for the purposes herein specified from the date
on which the right to file { - such suit - } { + the notice
of appeal + } expires. { - If a suit to vacate or set aside the
Public Utility Commission's order is filed, the validity of the
order shall be determined by the final judgment therein
provided. - }
SECTION 238. ORS 778.100 is amended to read:
778.100. (1) When the Port of Portland contemplates the filling
or reclamation of any low, swamp or submersible land within its
territory held in private ownership, it may provide by ordinance
for assessment by the board { + of commissioners of the Port of
Portland + } of the damages and benefits to be sustained by and
to accrue to the land by reason of the filling or reclamation. In
making the assessment the question of channel frontage as well as
filling shall be considered in assessing benefits. The ordinance
may provide for payment of damages to the owner of the land and
may provide for creation of a lien upon the land in favor of the
port for the amount of benefits and for payment of the amount of
the lien, either in cash or in installments, with interest
thereon over a term of years.
(2) The ordinance shall provide for a hearing before the board
to be held, upon due notice to all owners of and persons
interested in the lands to be affected by the assessment, before
the assessment is made.
(3) Any owner or person interested in any land affected, who is
aggrieved by an assessment made under this section may appeal to
the Circuit Court of Multnomah County for judicial review of the
assessment { + pursuant to sections 1 to 24 of this 2001
Act + }.
SECTION 239. ORS 809.440 is amended to read:
809.440. This section establishes hearing and administrative
review procedures to be followed when the Department of
Transportation is required to provide a hearing or an
administrative review of an action.
(1) When other procedures described under this section are not
applicable to a suspension or revocation under ORS 809.410, the
procedures described in this subsection shall be applicable. All
of the following apply to this subsection:
(a) The hearing shall be given before the department imposes
the suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation.
(b) Before the hearing, the department shall notify the person
in the manner described in ORS 809.430.
(c) The hearing shall be in the county where the person resides
unless the person and the department agree otherwise.
(d) Upon such hearing, the department, good cause appearing
therefor, may impose, continue, modify or extend the suspension
or revocation of the driving privileges.
(e) The hearing shall be conducted by a hearing officer
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999.
(2) The following apply when administrative review is provided
under any statute or rule of the department:
(a) An administrative review shall consist of an informal
administrative process to assure prompt and careful review by the
department of the documents upon which an action is based.
(b) It shall be a defense to the department's action if a
petitioner can establish that:
(A) A conviction on which the department's action is based was
for an offense that did not involve a motor vehicle and the
department's action is permitted only if the offense involves a
motor vehicle.
(B) An out-of-state conviction on which the department's action
is based was for an offense that is not comparable to an offense
under Oregon law.
(C) The records relied on by the department identify the wrong
person.
(c) A person requesting administrative review has the burden of
showing by a preponderance of the evidence that the person is not
subject to the action.
(d) Actions subject to administrative review shall be exempt
from the provisions of ORS 183.310 to 183.550 applicable to
contested cases, and from the provisions of subsection (4) of
this section applicable to post-imposition hearings. A
suspension, revocation or cancellation shall not be stayed during
the administrative review process or by the filing of a
{ - petition for judicial review - } { + notice of appeal + }.
A court having jurisdiction may order the suspension, revocation
or cancellation stayed pending judicial review.
(e) Judicial review of a department order affirming a
suspension or revocation after an administrative review shall be
{ - available as for review of orders other than contested
cases, - } { + in the manner provided by sections 1 to 24 of
this 2001 Act, + } and the department may not be subject to
default for failure to appear in such proceedings. { - The
department shall certify its record to the court within 20 days
after service upon the department of the petition for judicial
review. - }
(f) If the suspension or revocation is upheld on review by a
court, the suspension or revocation shall be imposed for the
length of time appropriate under the appropriate statute except
that the time shall be reduced by any time prior to the
determination by the court that the suspension or revocation was
in effect and was not stayed.
(g) The department shall adopt any rules governing
administrative review that are considered necessary or convenient
by the department.
(3) When permitted under this section or under any other
statute, a hearing may be expedited under procedures adopted by
the department by rule. The procedures may include a limited time
in which the person may request a hearing, requirements for
telephone hearings, expedited procedures for issuing orders and
expedited notice procedures.
(4) When permitted under ORS 809.410, a hearing may be a
post-imposition hearing under this subsection. A post-imposition
hearing is a hearing that occurs after the department imposes the
suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation. All of the
following apply to this subsection:
(a) The department must provide notice in the manner described
in ORS 809.430 before the suspension or revocation may take
effect.
(b) Except as provided in this subsection, the hearing shall be
conducted as a contested case in accordance with ORS 183.310 to
183.550.
(c) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the person resides or at
any place within 100 miles, as established by the department by
rule.
(5) The department has complied with a requirement for a
hearing or administrative review if the department has provided
an opportunity for hearing or review and the person with the
right to the hearing or review has not requested it. Any request
for hearing or review must be made in writing.
(6) For any hearing described under this section, and for
administrative review described under this section, no further
notice need be given by the department if the suspension or
revocation is based upon a conviction and the court gives notice,
in a form established by the department, of the rights to a
hearing or review and of the suspension or revocation.
SECTION 240. ORS 809.440, as amended by section 191, chapter
849, Oregon Laws 1999, is amended to read:
809.440. This section establishes hearing and administrative
review procedures to be followed when the Department of
Transportation is required to provide a hearing or an
administrative review of an action.
(1) When other procedures described under this section are not
applicable to a suspension or revocation under ORS 809.410, the
procedures described in this subsection shall be applicable. All
of the following apply to this subsection:
(a) The hearing shall be given before the department imposes
the suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation.
(b) Before the hearing, the department shall notify the person
in the manner described in ORS 809.430.
(c) The hearing shall be conducted by a hearing officer
designated by the department in the county where the person
resides unless the person and the department agree otherwise.
(d) Upon such hearing, the department, good cause appearing
therefor, may impose, continue, modify or extend the suspension
or revocation of the driving privileges.
(2) The following apply when administrative review is provided
under any statute or rule of the department:
(a) An administrative review shall consist of an informal
administrative process to assure prompt and careful review by the
department of the documents upon which an action is based.
(b) It shall be a defense to the department's action if a
petitioner can establish that:
(A) A conviction on which the department's action is based was
for an offense that did not involve a motor vehicle and the
department's action is permitted only if the offense involves a
motor vehicle.
(B) An out-of-state conviction on which the department's action
is based was for an offense that is not comparable to an offense
under Oregon law.
(C) The records relied on by the department identify the wrong
person.
(c) A person requesting administrative review has the burden of
showing by a preponderance of the evidence that the person is not
subject to the action.
(d) Actions subject to administrative review shall be exempt
from the provisions of ORS 183.310 to 183.550 applicable to
contested cases, and from the provisions of subsection (4) of
this section applicable to post-imposition hearings. A
suspension, revocation or cancellation shall not be stayed during
the administrative review process or by the filing of a
{ - petition for judicial review - } { + notice of appeal + }.
A court having jurisdiction may order the suspension, revocation
or cancellation stayed pending judicial review.
(e) Judicial review of a department order affirming a
suspension or revocation after an administrative review shall be
{ - available as for review of orders other than contested
cases - } { + in the manner provided by sections 1 to 24 of
this 2001 Act + }, and the department may not be subject to
default for failure to appear in such proceedings. { - The
department shall certify its record to the court within 20 days
after service upon the department of the petition for judicial
review. - }
(f) If the suspension or revocation is upheld on review by a
court, the suspension or revocation shall be imposed for the
length of time appropriate under the appropriate statute except
that the time shall be reduced by any time prior to the
determination by the court that the suspension or revocation was
in effect and was not stayed.
(g) The department shall adopt any rules governing
administrative review that are considered necessary or convenient
by the department.
(3) When permitted under this section or under any other
statute, a hearing may be expedited under procedures adopted by
the department by rule. The procedures may include a limited time
in which the person may request a hearing, requirements for
telephone hearings, expedited procedures for issuing orders and
expedited notice procedures.
(4) When permitted under ORS 809.410, a hearing may be a
post-imposition hearing under this subsection. A post-imposition
hearing is a hearing that occurs after the department imposes the
suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation. All of the
following apply to this subsection:
(a) The department must provide notice in the manner described
in ORS 809.430 before the suspension or revocation may take
effect.
(b) Except as provided in this subsection, the hearing shall be
conducted as a contested case in accordance with ORS 183.310 to
183.550.
(c) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the person resides or at
any place within 100 miles, as established by the department by
rule.
(5) The department has complied with a requirement for a
hearing or administrative review if the department has provided
an opportunity for hearing or review and the person with the
right to the hearing or review has not requested it. Any request
for hearing or review must be made in writing.
(6) For any hearing described under this section, and for
administrative review described under this section, no further
notice need be given by the department if the suspension or
revocation is based upon a conviction and the court gives notice,
in a form established by the department, of the rights to a
hearing or review and of the suspension or revocation.
SECTION 241. ORS 823.031 is amended to read:
823.031. (1) The Department of Transportation may investigate
any complaint filed against a person whose business or activities
are regulated by one or more of the statutes regarding motor
carriers or railroads, jurisdiction for the enforcement or
regulation of which is conferred upon the department.
(2) Any hearing held as a result of a complaint or
investigation under subsection (1) of this section shall be a
contested case hearing, in the manner provided in ORS 183.413 to
{ - 183.497 - } { + 183.470 + }.
SECTION 242. ORS 823.033 is amended to read:
823.033. (1) Whenever the Department of Transportation believes
that any rate subject to regulation by the department may be
unreasonable or unjustly discriminatory, or that any service
subject to regulation by the department is unsafe or inadequate,
or is not afforded, or that an investigation of any matter
relating to any motor carrier, railroad or other person should be
made, or relating to any person to determine if such person is
subject to the department's regulatory jurisdiction, the
department may on its own motion summarily investigate any such
matter, with or without notice.
(2) The department may, after making an investigation on the
department's motion, provide notice to the motor carrier,
railroad or other person of the department's proposed action or
may, without notice or hearing, make such findings and orders as
the department deems justified or required by the results of such
investigation.
(3) Any party aggrieved by a notice of proposed action or by an
order entered pursuant to subsection (2) of this section may
request the department to hold a hearing pursuant to ORS 183.413
to { - 183.497 - } { + 183.470 + }.
(4) An order issued under this section prior to a hearing shall
be stayed pending the outcome of the hearing unless the
department finds that the order is necessary to protect the
public health, safety or environment.
SECTION 243. Section 4, chapter 695, Oregon Laws 1999, is
amended to read:
{ + Sec. 4. + } Any party to a hearing under section 2 { + ,
chapter 695, Oregon Laws 1999, + } { - of this 1999 Act - }
may { - commence a suit to vacate and set aside - } { + seek
judicial review of + } the { + Public Utility + } Commission's
order as provided in { - ORS 756.580 to 756.610 - } { +
sections 1 to 24 of this 2001 Act + }. { - If a suit is not
filed within the specified time, the order thereafter shall be
valid and enforceable for the purposes specified in the order. If
a suit to vacate or set aside the commission's order is filed,
the validity of the order shall be determined by the final
judgment. - }
SECTION 244. Section 3, chapter 972, Oregon Laws 1999, is
amended to read:
{ + Sec. 3. + } (1) When the Department of Transportation
closes an approach road for which a permit was issued under ORS
374.310 or denies an application for an approach road permit
submitted pursuant to a grant or reservation of access contained
in a contract, condemnation judgment or recorded deed, and the
closure or denial is not the result of conditions contained in a
contract, condemnation judgment, recorded deed or permit, a
person holding an interest in the real property benefited by the
access or proposed access may file a claim for relief as a
contested case under ORS { - 183.415 to 183.500 - } { +
183.310 to 183.550 + }.
(2) Prior to issuing a final order in a contested case under
subsection (1) of this section, the Director of Transportation
may provide the opportunity for the parties to participate in
mediation consistent with the applicable provisions of ORS 36.180
to 36.210. In any alternative dispute resolution proceeding, the
director may authorize administrative remedies, including
monetary damages or other relief, as determined by the department
by rule, to address issues related to real property value,
utility or use.
(3) In any proceeding under this section, any party may cause
an appraisal of the subject property to be conducted. If the
difference in value between a property owner's claim and an offer
of monetary compensation by the department is less than $30,000,
the director shall provide a simplified procedure for resolving
the claim. The cost of conducting an appraisal may be shared by
the parties when a mutually acceptable appraiser can be
identified.
SECTION 245. ORS 65.744 is amended to read:
65.744. In addition to any other legal remedy which may be
available, a foreign corporation shall have the right to appeal
the Secretary of State's revocation of its authority to transact
business in this state pursuant to the provisions of ORS 183.310
to 183.550. Such revocation shall be reviewable { - pursuant to
ORS 183.484 and shall not constitute a contested case order - }
{ + as provided for orders other than contested case in
sections 1 to 24 of this 2001 Act + }.
SECTION 246. ORS 433.750 is amended to read:
433.750. (1) The governing body of a county in which an outdoor
mass gathering is to take place shall issue a permit upon
application when the organizer demonstrates compliance with or
the ability to comply with the health and safety rules governing
outdoor mass gatherings to be regulated according to the
anticipated crowd and adopted by the Health Division. The
application shall include all of the following:
(a) Name and address of the applicant.
(b) Legal description of the place of the proposed gathering.
(c) Date of the proposed gathering.
(d) Estimated attendance at the proposed gathering.
(e) Nature of the proposed gathering.
(f) Such other appropriate information as the county governing
body may require in order to insure compliance with rules of the
Health Division.
(2) Notice of the application shall be sent by the county
governing body to the county sheriff or county chief law
enforcement officer, the county health officer and the chief of
the fire district in which the gathering is to be held.
(3) Each officer receiving notice of the application under
subsection (2) of this section who wishes to comment on the
application shall submit such comment in writing to the county
governing body not later than the hearing date. The comment may
include recommendations related to the official functions of the
officer as to granting the permit and any recommended conditions
that should be imposed.
(4) The county governing body shall hold a public hearing on
the issue of compliance with this section. Notice of the time and
place of such hearing including a general explanation of the
matter to be considered shall be published at least 10 calendar
days before the hearing in a newspaper of general circulation in
the county or, if there is none, it shall be posted in at least
three public places in the county.
(5) Any decision of a county governing body on an application
for a permit to hold an outdoor mass gathering may be appealed
{ - to a circuit court for the county - } as provided in
{ - ORS 34.020 to 34.100 - } { + sections 1 to 24 of this 2001
Act + }.
(6) A county governing body may charge permit applicants a fee
reasonably calculated to reimburse the county for its reasonable
and necessary costs in receiving, processing and reviewing
applications for permits to hold outdoor mass gatherings.
However, a fee authorized by this subsection shall not exceed
$5,000 and shall not be charged when the governing body finds, by
a preponderance of the evidence presented to the governing body,
that the applicant is unable to reimburse the governing body.
SECTION 247. ORS 469.405 is amended to read:
469.405. (1) A site certificate may be amended with the
approval of the Energy Facility Siting Council. The council may
establish by rule the type of amendment that must be considered
in a contested case proceeding. Judicial review of an amendment
to a site certificate shall be as provided in ORS 469.403.
(2) Notwithstanding ORS { - 34.020 or - } 197.825 { - , - }
{ + or sections 1 to 24 of this 2001 Act + } or any other
provision of law, the land use approval by an affected local
government of a proposed amendment to a facility and the
recommendation of the special advisory group of applicable
substantive criteria shall be subject to judicial review only as
provided in ORS 469.403. If the applicant elects to show
compliance with the statewide planning goals by demonstrating
that the facility has received local land use approval, the
provisions of this section shall apply only to proposed projects
for which the land use approval by the local government occurs
after the date an application for amendment is submitted to the
Office of Energy.
(3) An amendment to a site certificate is not required for a
pipeline less than 16 inches in diameter and less than five miles
in length that is proposed to be constructed to test or maintain
an underground gas storage reservoir. If the proposed pipeline
will connect to a council certified surface facility related to
an underground gas storage reservoir or to a council certified
gas pipeline, whether the proposed pipeline is to be located
inside or outside the site of a council certified facility, the
certificate holder must obtain, prior to construction, the
approval of the Office of Energy for the construction, operation
and retirement of the proposed pipeline. The Office of Energy
shall approve such a proposed pipeline if the pipeline meets
applicable council substantive standards. Notwithstanding ORS
469.503 (3), the Office of Energy may not review the proposed
pipeline for compliance with other state standards.
Notwithstanding ORS 469.503 (4), or any council rule addressing
compliance with land use standards, the Office of Energy shall
not review such a proposed pipeline for compliance with land use
requirements. Notwithstanding ORS 469.401 (3), the approval by
the Office of Energy of such pipeline shall not bind any state or
local agency. The council may adopt appropriate procedural rules
for the Office of Energy review. The Office of Energy shall issue
an order approving or rejecting the proposed pipeline. Judicial
review of an Office of Energy order under this section shall be
as provided in ORS 469.403.
SECTION 248. ORS 469.504 is amended to read:
469.504. (1) A proposed facility shall be found in compliance
with the statewide planning goals under ORS 469.503 (4) if:
(a) The facility has received local land use approval under the
acknowledged comprehensive plan and land use regulations of the
affected local government; or
(b) The council determines that:
(A) The facility complies with applicable substantive criteria
from the affected local government's acknowledged comprehensive
plan and land use regulations that are required by the statewide
planning goals and in effect on the date the application is
submitted, and with any Land Conservation and Development
Commission administrative rules and goals and any land use
statutes directly applicable to the facility under ORS 197.646
(3);
(B) For an energy facility or a related or supporting facility
that must be evaluated against the applicable substantive
criteria pursuant to subsection (5) of this section, that the
proposed facility does not comply with one or more of the
applicable substantive criteria but does otherwise comply with
the applicable statewide planning goals, or that an exception to
any applicable statewide planning goal is justified under
subsection (2) of this section; or
(C) For a facility that the council elects to evaluate against
the statewide planning goals pursuant to subsection (5) of this
section, that the proposed facility complies with the applicable
statewide planning goals or that an exception to any applicable
statewide planning goal is justified under subsection (2) of this
section.
(2) The council may find goal compliance for a facility that
does not otherwise comply with one or more statewide planning
goals by taking an exception to the applicable goal.
Notwithstanding the requirements of ORS 197.732, the statewide
planning goal pertaining to the exception process or any rules of
the Land Conservation and Development Commission pertaining to an
exception process goal, the council may take an exception to a
goal if the council finds:
(a) The land subject to the exception is physically developed
to the extent that the land is no longer available for uses
allowed by the applicable goal;
(b) The land subject to the exception is irrevocably committed
as described by the rules of the Land Conservation and
Development Commission to uses not allowed by the applicable goal
because existing adjacent uses and other relevant factors make
uses allowed by the applicable goal impracticable; or
(c) The following standards are met:
(A) Reasons justify why the state policy embodied in the
applicable goal should not apply;
(B) The significant environmental, economic, social and energy
consequences anticipated as a result of the proposed facility
have been identified and adverse impacts will be mitigated in
accordance with rules of the council applicable to the siting of
the proposed facility; and
(C) The proposed facility is compatible with other adjacent
uses or will be made compatible through measures designed to
reduce adverse impacts.
(3) If compliance with applicable substantive local criteria
and applicable statutes and state administrative rules would
result in conflicting conditions in the site certificate or
amended site certificate, the council shall resolve the conflict
consistent with the public interest. A resolution may not result
in a waiver of any applicable state statute.
(4) An applicant for a site certificate shall elect whether to
demonstrate compliance with the statewide planning goals under
subsection (1)(a) or (b) of this section. The applicant shall
make the election on or before the date specified by the council
by rule.
(5) Upon request by the Office of Energy, the special advisory
group established under ORS 469.480 shall recommend to the
council, within the time stated in the request, the applicable
substantive criteria under subsection (1)(b)(A) of this section.
If the special advisory group does not recommend applicable
substantive criteria within the time established in the Office of
Energy's request, the council may either determine and apply the
applicable substantive criteria under subsection (1)(b) of this
section or determine compliance with the statewide planning goals
under subsection (1)(b)(B) or (C) of this section. If the special
advisory group recommends applicable substantive criteria for an
energy facility described in ORS 469.300 (9)(a) or a related or
supporting facility that does not pass through more than one
local government jurisdiction or more than three zones in any one
jurisdiction, the council shall apply the criteria recommended by
the special advisory group. If the special advisory group
recommends applicable substantive criteria for an energy facility
described in ORS 469.300 (9)(a)(C) to (E) or a related or
supporting facility that passes through more than one
jurisdiction or more than three zones in any one jurisdiction,
the council shall review the recommended criteria and determine
whether to evaluate the proposed facility against the applicable
substantive criteria recommended by the special advisory group,
against the statewide planning goals or against a combination of
the applicable substantive criteria and statewide planning goals.
In making its determination, the council shall consult with the
special advisory group and shall consider:
(a) The number of jurisdictions and zones in question;
(b) The degree to which the applicable substantive criteria
reflect local government consideration of energy facilities in
the planning process; and
(c) The level of consistency of the applicable substantive
criteria from the various zones and jurisdictions.
(6) The council is not subject to ORS 197.180 and a state
agency may not require an applicant for a site certificate to
comply with any rules or programs adopted under ORS 197.180.
(7) On or before its next periodic review, each affected local
government shall amend its comprehensive plan and land use
regulations as necessary to reflect the decision of the council
pertaining to a site certificate or amended site certificate.
(8) Notwithstanding ORS { - 34.020 or - } 197.825 { + or
sections 1 to 24 of this 2001 Act + } or any other provision of
law, the affected local government's land use approval of a
proposed facility under subsection (1)(a) of this section and the
special advisory group's recommendation of applicable substantive
criteria under subsection (5) of this section shall be subject to
judicial review only as provided in ORS 469.403. If the applicant
elects to comply with subsection (1)(a) of this section, the
provisions of this subsection shall apply only to proposed
projects for which the land use approval of the local government
occurs after the date a notice of intent or an application for
expedited processing is submitted to the Office of Energy.
(9) The Office of Energy, in cooperation with other state
agencies, shall provide, to the extent possible, technical
assistance and information about the siting process to local
governments that request such assistance or that anticipate
having a facility proposed in their jurisdiction.
SECTION 249. ORS 496.116 is amended to read:
496.116. (1) In exercising any authority to adopt
administrative rules delegated by the State Fish and Wildlife
Commission under ORS 496.112, the State Fish and Wildlife
Director shall comply with the requirements of ORS 496.138.
(2) Notwithstanding { - ORS 183.400 - } { + sections 1 to
24 of this 2001 Act + }, for any rule adopted by the director
pursuant to subsection (1) of this section, before a person may
petition the Court of Appeals to determine the validity of the
rule, the person shall first request that the State Fish and
Wildlife Commission determine the validity of the rule. The
determination of the commission may be reviewed in accordance
with { - ORS 183.400 - } { + sections 1 to 24 of this 2001
Act + }.
SECTION 250. ORS 537.445 is amended to read:
537.445. (1) If the Water Resources Commission proposes to
cancel a permit or appropriation under ORS 537.410 to 537.450,
opportunity for hearing shall be accorded as provided in ORS
183.310 to 183.550.
(2) If a { - petition for review - } { + notice of
appeal + } of an order canceling a permit or appropriation is
filed under { - ORS 536.075 - } { + sections 1 to 24 of this
2001 Act + }, the commission shall not cancel the permit or
appropriation under ORS 537.440 until the
{ - petitioner's - } { + appellant's + } right of review is
exhausted and the order is finally approved.
SECTION 251. ORS 583.086 is amended to read:
583.086. (1) After an audit has been completed as authorized by
ORS 583.007, 583.016 and 583.046 to 583.166, the State Department
of Agriculture shall first review such audit with the affected
handler. If, after audit and review of such audit with the
handler, the department finds that milk has not been properly
accounted for or paid for by the handler or person whose records
have been audited, or that such person has violated the
provisions of ORS 583.007, 583.016 and 583.046 to 583.166 or
regulations promulgated thereunder, the department shall file a
copy of the audit findings in its Salem office, forward by
certified mail a copy of the audit findings and such other
pertinent information concerning the audit as it deems necessary
to the handler or person whose records have been audited, and may
notify affected producers. The findings shall include an order
requiring that payment be made or that certain procedures or
practices which are in violation of law or regulation be stopped,
corrected or changed, as the case may be. The audit findings on
file shall be available for examination only by the affected
handler or producers of such milk, or the authorized agents of
either.
(2) Within 30 days following the date the department mails a
copy of its audit findings, as required by subsection (1) of this
section, the handler or the person whose milk records have been
audited, and the producers affected by such audit, either or
both, may file with the department all additional information,
facts, figures or other material which they believe may show or
prove the audit findings to be incorrect.
(3) If at the expiration of the period specified in subsection
(2) of this section:
(a) Handlers, persons or producers have not filed additional
information, facts, figures and other material with the
department, then the department shall forward a notice, by
certified mail, to the handler or person, that the audit findings
of the department are final. Within 16 days after the date the
notice is mailed, the handler or person shall pay the amounts or
make corrections of violations of law or regulations as set out
in such findings.
(b) Handlers, persons or producers have filed additional
information, facts, figures and other material with the
department, then the department shall again review and reaudit,
within 90 days, all necessary records of such handler or person
as otherwise required by ORS 583.007, 583.016 and 583.046 to
583.166. The department may affirm, modify or set aside its
prior findings. The department shall file in its Salem office a
copy of the reaudit findings and forward a copy of such findings
by certified mail to the affected handler or person, and in
addition, shall forward by regular mail, as it deems necessary, a
part or all of its findings to affected producers. Unless
appealed { - to the circuit court, - } as authorized by ORS
583.096, the reaudit findings of the department shall become
final.
SECTION 252. ORS 583.106 is amended to read:
583.106. (1) The State Department of Agriculture shall file an
injunction action in the circuit court for the county in which
the handler or person resides or has the principal business
office of the handler or person, based upon the findings of the
department against a handler or other person whose records have
been audited, if:
(a) The handler or such person has not made payment or
corrected violations of law or regulations promulgated thereunder
as required by the provisions of ORS 583.086 (3)(a) and if such
handler or producers have not filed additional information, facts
or figures with the department within the time prescribed as
authorized by ORS 583.086 (3)(b); or
(b) The handler or such person has not made payment or
correction of violations of law or regulations promulgated
thereunder as set out in the reaudit as provided by ORS 583.086
(3)(b) and has not filed an appeal { - to the circuit court - }
{ + under sections 1 to 24 of this 2001 Act + } within the time
prescribed by
{ - ORS 583.096 - } { + section 5 of this 2001 Act + }.
(2) In any judicial proceeding under this section, the findings
of the department as to the facts if supported by substantial
evidence, in the absence of fraud, are conclusive and the
jurisdiction of the court shall be confined to questions of law.
Such action shall be heard in a summary manner without a jury and
shall be given precedence on the docket over all other civil
cases except those given equal status by statute.
(3) If the findings of the department include a requirement
that the handler or person make payment to producers or persons
for milk, the court shall order such handler or person to make
payment. If the order is not carried out within the time
prescribed by the court, then upon motion or notification from
the department, the court shall proceed against such handler or
person for contempt of court. If the findings of the department
include violations of law or regulations, the court may, in the
same order, enjoin such handler or person from further violation
of law or regulations. The court may take such action as it deems
necessary and proper in regard to any complaint filed under this
section.
(4) The court may adopt, modify or set aside the decision and
the findings of the department. In the case of reversal or
modification, the court shall make special findings of the
conclusions of law indicating clearly all respects in which the
decision and the findings of the department are erroneous.
(5) An appeal may be taken from the order or decree of the
circuit court to the Court of Appeals as in other cases,
regardless of the amount of money involved.
SECTION 253. ORS 583.116 is amended to read:
583.116. If the court, as provided by ORS { - 583.096 or - }
583.106 { + or sections 1 to 24 of this 2001 Act + }, affirms or
modifies findings of the State Department of Agriculture that a
handler owes moneys to producers or other persons under ORS
583.007, 583.016 and 583.046 to 583.166, the order shall be a
judgment of record against the real and personal property of such
handler or person until paid. In addition to other remedies, the
department, for and in the name of persons entitled to such
funds, may file an attachment or take other action authorized by
law in order to require such judgment or moneys be paid. Moneys
recovered or received by the department shall be paid over to the
persons entitled thereto, without deduction of the department's
cost incurred.
SECTION 254. ORS 583.146 is amended to read:
583.146. In legal proceedings filed under ORS
{ - 583.096, - } 583.106 or 583.136 { + or sections 1 to 24 of
this 2001 Act + }, the court may award reasonable attorney fees
to the prevailing party. Any attorney fees awarded to the State
Department of Agriculture shall be deposited by and used by the
department as authorized under ORS 583.166. If the department
does not prevail in such legal proceedings, it shall pay the
costs, disbursements and reasonable attorney fees at trial and on
appeal, as adjudged by the court, of the prevailing party from
the moneys in the Department of Agriculture Account.
SECTION 255. ORS 657.487 is amended to read:
657.487. { + Notwithstanding section 5 of this 2001 Act, + }
judicial review of decisions or orders under ORS 657.485 shall be
as provided for review of orders in contested cases in { - ORS
183.310 to 183.550 - } { + sections 1 to 24 of this 2001
Act + }, except that the
{ - petition - } { + notice of appeal + } shall be filed
within 20 days after the order is final. The Director of the
Employment Department may file { - petition for judicial
review - } { + a notice of appeal + } in accordance with this
section from decisions of the hearing officer.
SECTION 256. ORS 756.450 is amended to read:
756.450. On petition of any interested person, the Public
Utility Commission may issue a declaratory ruling with respect to
the applicability to any person, property, or state of facts of
any rule or statute enforceable by the commission. A declaratory
ruling is binding between the commission and the petitioner on
the state of facts alleged, unless it is modified, vacated or set
aside by a court. However, the commission may review the ruling
and modify, vacate or set it aside if requested by the petitioner
or other party to the proceeding. Binding rulings provided by
this section are subject to review { - in the circuit court - }
in the manner provided in { - ORS 756.580 for the review of - }
{ + sections 1 to 24 of this 2001 Act for contested case + }
orders.
SECTION 257. { + ORS 34.010, 34.020, 34.030, 34.040, 34.050,
34.060, 34.070, 34.080, 34.090, 34.100, 34.102, 53.130, 157.070,
183.400, 183.482, 183.484, 183.485, 183.486, 183.490, 183.497,
183.500, 540.740, 540.750, 663.205, 663.215, 663.225, 756.585,
756.590, 756.594, 756.598, 756.600 and 756.610 are repealed. + }
SECTION 258. { + The section captions used in this 2001 Act
are provided only for the convenience of the reader and do not
become part of the statutory law of this state or express any
legislative intent in the enactment of this 2001 Act. + }
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