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 2176
House Bill 2715
Sponsored by Representative KRUSE (at the request of Oregon
Family Farm Association)
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.
Requires local governments to adopt regulations to zone certain
forestland and exclusive farm use land as secondary land.
Provides exceptions. Requires local governments to adopt zoning
ordinances for secondary land that are consistent with land use
planning goals relating to urbanization. Provides that single
family dwelling may be established on secondary land with
specified exceptions. Sets schedule for amendment of state and
local goals, rules and plans. Provides that single family
dwellings are allowed on land that meets statutory criteria prior
to amendment of state and local goals, rules and plans. Provides
that all existing state and local goals, rules and plans not
consistent with statute have no legal effect as of effective date
of statute. Provides that land zoned secondary land retains
certain special tax assessment provisions in specified instances.
Makes related changes.
A BILL FOR AN ACT
Relating to rural lands; creating new provisions; amending ORS
94.508, 197.015, 197.020, 197.065, 197.277, 197.445, 197.505,
197.610, 197.825, 215.243, 215.253, 215.284, 215.296, 215.304,
215.316, 215.402, 215.720, 215.740, 308A.071, 321.358, 321.725,
321.810, 455.446 and 527.620; and repealing ORS 215.317 and
215.327.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2001 Act are added to
and made a part of ORS chapter 197. + }
SECTION 2. { + (1) Local governments shall adopt land use
regulations to zone land as secondary land if the land is:
(a) Designated or zoned as forestland on the effective date of
this 2001 Act and is in lots or parcels of less than 40
contiguous acres.
(b) Designated or zoned as forestland on the effective date of
this 2001 Act and is in lots or parcels of 40 or more contiguous
acres that do not consist of soils that are of forest
productivity site Class I, II or III.
(c) Designated or zoned for exclusive farm use on the effective
date of this 2001 Act and is in lots or parcels of less than 20
acres.
(d) Designated or zoned for exclusive farm use on the effective
date of this 2001 Act and is in lots or parcels of 20 or more
contiguous acres that are not:
(A) Land on slopes of less than seven percent, where irrigation
or ample rainfall and suitable growing seasons are available,
described in:
(i) 7 C.F.R. 657.5(a) (1990) by the United States Natural
Resources Conservation Service as 'prime farmland'; or
(ii) 7 C.F.R. 657.5(b) (1990) by the United States Natural
Resources Conservation Service as 'unique farmland'; or
(B) Land on slopes of less than seven percent, where irrigation
or ample rainfall and suitable growing seasons are available,
predominantly composed of Class I and II soils as identified by
the Land Capability Classification System of the United States
Natural Resources Conservation Service.
(e) Land designated as marginal land pursuant to ORS 197.247
(1991 Edition).
(2) A local government shall not zone land as secondary land if
the land is designated or zoned for:
(a) Exclusive farm use on the effective date of this 2001 Act,
provided the landowner requests that the land not be zoned
secondary land and the local government determines that the
predominant use of the lot or parcel is commercial production of
agricultural crops or livestock; or
(b) Forestland on the effective date of this 2001 Act, provided
the landowner requests that the land not be zoned secondary land
and the local government determines that the predominant use of
the lot or parcel is the growing and harvesting of trees of a
marketable species. + }
SECTION 3. { + (1) A local government shall:
(a) Permit uses and land divisions on secondary land under the
provisions of this section; and
(b) Adopt zoning ordinances to regulate secondary land under
the provisions of this section. Zoning ordinances allowing uses
and land divisions on secondary lands shall be consistent with
land use planning goals relating to urbanization.
(2) Ordinances may include:
(a) Provisions relating to sanitation, safety and
transportation services.
(b) Provisions and conditions to reduce significant conflict
with farming practices and forest practices on contiguous lands
zoned for exclusive farm use or forest use.
(3) Notwithstanding ORS 215.298, operations conducted for
mining and processing of aggregate, other mining or drilling for
energy materials may be conducted on any land zoned as secondary
land.
(4)(a) Notwithstanding any other provision of this chapter, a
single family dwelling may be established on any lot or parcel
zoned as secondary land, provided:
(A) The lot or parcel on which the dwelling will be sited does
not include a dwelling; and
(B) The dwelling will be sited outside the Willamette River
Greenway and outside areas designated in a local government's
acknowledged comprehensive plan on the effective date of this
2001 Act as floodplains or geologic hazard areas.
(b) A dwelling established on secondary land under this section
shall meet the fire safety requirements of ORS 215.730 (1)(b) or
(2)(a). + }
SECTION 4. { + Section 5 of this 2001 Act is added to and made
a part of ORS chapter 308A. + }
SECTION 5. { + If land qualifying for and receiving special
assessment is zoned secondary land under section 2 of this 2001
Act, the land shall continue to be eligible to receive special
assessment until a change in use of that land is established as
set forth in:
(1) ORS 308A.050 to 308A.128 (relating to special assessment
based on the value of the land for farm use);
(2) ORS 321.358, 321.359 and 321.362 (relating to special
assessment as designated forestland in western Oregon);
(3) ORS 321.805 to 321.825 (relating to special assessment as
designated forestland in eastern Oregon); and
(4) ORS 321.705 to 321.765 (relating to special assessment as
western Oregon small tract optional forestland). + }
SECTION 6. ORS 197.015 is amended to read:
197.015. As used in ORS chapters 195, 196 and 197, unless the
context requires otherwise:
(1) 'Acknowledgment' means a commission order that certifies
that a comprehensive plan and land use regulations, land use
regulation or plan or regulation amendment complies with the
goals or certifies that Metro land use planning goals and
objectives, Metro regional framework plan, amendments to Metro
planning goals and objectives or amendments to the Metro regional
framework plan comply with the statewide planning goals.
(2) 'Board' means the Land Use Board of Appeals.
(3) 'Commission' means the Land Conservation and Development
Commission.
(4) 'Committee' means the Joint Legislative Committee on Land
Use.
(5) 'Comprehensive plan' means a generalized, coordinated land
use map and policy statement of the governing body of a local
government that interrelates all functional and natural systems
and activities relating to the use of lands, including but not
limited to sewer and water systems, transportation systems,
educational facilities, recreational facilities, and natural
resources and air and water quality management programs. '
Comprehensive' means all-inclusive, both in terms of the
geographic area covered and functional and natural activities and
systems occurring in the area covered by the plan. 'General
nature' means a summary of policies and proposals in broad
categories and does not necessarily indicate specific locations
of any area, activity or use. A plan is 'coordinated' when the
needs of all levels of governments, semipublic and private
agencies and the citizens of Oregon have been considered and
accommodated as much as possible. 'Land' includes water, both
surface and subsurface, and the air.
{ + (6) 'Cubic foot site class' means those classes described
in the United States Forest Service Manual, 'Field Instructions
for Integrated Forest Survey and Timber Management Inventories --
Oregon, Washington and California, 1974.' + }
{ - (6) - } { + (7) + } 'Department' means the Department
of Land Conservation and Development.
{ - (7) - } { + (8) + } 'Director' means the Director of
the Department of Land Conservation and Development.
{ + (9) 'Farming practice' has the meaning given that term in
ORS 30.930.
(10) 'Forest practice' has the meaning given that term in ORS
30.930. + }
{ - (8) - } { + (11) + } 'Goals' means the mandatory
statewide planning standards adopted by the commission pursuant
to ORS chapters 195, 196 and 197.
{ - (9) - } { + (12) + } 'Guidelines' means suggested
approaches designed to aid cities and counties in preparation,
adoption and implementation of comprehensive plans in compliance
with goals and to aid state agencies and special districts in the
preparation, adoption and implementation of plans, programs and
regulations in compliance with goals. Guidelines shall be
advisory and shall not limit state agencies, cities, counties and
special districts to a single approach.
{ - (10) - } { + (13) + } 'Land use decision':
(a) Includes:
(A) A final decision or determination made by a local
government or special district that concerns the adoption,
amendment or application of:
(i) The goals;
(ii) A comprehensive plan provision;
(iii) A land use regulation; or
(iv) A new land use regulation;
(B) A final decision or determination of a state agency other
than the commission with respect to which the agency is required
to apply the goals; or
(C) A decision of a county planning commission made under ORS
433.763;
(b) Does not include a decision of a local government:
(A) Which is made under land use standards which do not require
interpretation or the exercise of policy or legal judgment;
(B) Which approves or denies a building permit issued under
clear and objective land use standards;
(C) Which is a limited land use decision;
(D) Which determines final engineering design, construction,
operation, maintenance, repair or preservation of a
transportation facility which is otherwise authorized by and
consistent with the comprehensive plan and land use regulations;
or
(E) Which is an expedited land division as described in ORS
197.360;
(c) Does not include a decision by a school district to close a
school;
(d) Does not include authorization of an outdoor mass gathering
as defined in ORS 433.735, or other gathering of fewer than 3,000
persons that is not anticipated to continue for more than 120
hours in any three-month period; and
(e) Does not include:
(A) A writ of mandamus issued by a circuit court in accordance
with ORS 215.429 or 227.179; or
(B) Any local decision or action taken on an application
subject to ORS 215.427 or 227.178 after a petition for a writ of
mandamus has been filed under ORS 215.429 or 227.179.
{ - (11) - } { + (14) + } 'Land use regulation' means any
local government zoning ordinance, land division ordinance
adopted under ORS 92.044 or 92.046 or similar general ordinance
establishing standards for implementing a comprehensive plan.
{ - (12) - } { + (15) + } 'Limited land use decision' is a
final decision or determination made by a local government
pertaining to a site within an urban growth boundary which
concerns:
(a) The approval or denial of a subdivision or partition, as
described in ORS chapter 92.
(b) The approval or denial of an application based on
discretionary standards designed to regulate the physical
characteristics of a use permitted outright, including but not
limited to site review and design review.
{ - (13) - } { + (16) + } 'Local government' means any
city, county or metropolitan service district formed under ORS
chapter 268 or an association of local governments performing
land use planning functions under ORS 195.025.
{ + (17) 'Lot' and 'parcel' have the meanings given those
terms in ORS 92.010. + }
{ - (14) - } { + (18) + } 'Metro' means a metropolitan
service district organized under ORS chapter 268.
{ - (15) - } { + (19) + } 'Metro planning goals and
objectives' means the land use goals and objectives that a
metropolitan service district may adopt under ORS 268.380 (1)(a).
The goals and objectives do not constitute a comprehensive plan.
{ - (16) - } { + (20) + } 'Metro regional framework plan'
means the regional framework plan required by the 1992 Metro
Charter or its separate components. Neither the regional
framework plan nor its individual components constitute a
comprehensive plan.
{ - (17) - } { + (21) + } 'New land use regulation' means a
land use regulation other than an amendment to an acknowledged
land use regulation adopted by a local government that already
has a comprehensive plan and land regulations acknowledged under
ORS 197.251.
{ - (18) - } { + (22) + } 'Person' means any individual,
partnership, corporation, association, governmental subdivision
or agency or public or private organization of any kind. The Land
Conservation and Development Commission or its designee is
considered a person for purposes of appeal under ORS chapters 195
and 197.
{ - (19) - } { + (23) + } 'Special district' means any unit
of local government, other than a city, county, metropolitan
service district formed under ORS chapter 268 or an association
of local governments performing land use planning functions under
ORS 195.025 authorized and regulated by statute and includes but
is not limited to: Water control districts, domestic water
associations and water cooperatives, irrigation districts, port
districts, regional air quality control authorities, fire
districts, school districts, hospital districts, mass transit
districts and sanitary districts.
{ - (20) - } { + (24) + } 'Voluntary association of local
governments ' means a regional planning agency in this state
officially designated by the Governor pursuant to the federal
Office of Management and Budget Circular A-95 as a regional
clearinghouse.
{ - (21) - } { + (25) + } 'Wetlands' means those areas that
are inundated or saturated by surface or ground water at a
frequency and duration that are sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
SECTION 7. ORS 197.065 is amended to read:
197.065. (1) Prior to each legislative session, the Land
Conservation and Development Commission shall submit to the Joint
Legislative Committee on Land Use a written report analyzing
applications approved and denied for:
(a) New and replacement dwellings { - under: - } { + on
land zoned for exclusive farm use or forest use; + }
{ - (A) ORS 215.213 (1)(e) and (g), (2)(a) and (b), (3) and
(4), 215.283 (1)(e) and (f), 215.284 and 215.705; and - }
{ - (B) Any land zoned for forest use under any statewide
planning goal that relates to forestland; - }
(b) Divisions of land { - under - } :
(A) { + Under + } ORS 215.263 (2) and (4); and
(B) { - Any - } { + On + } land zoned { - for forest use
under any statewide planning goal that relates to - }
forestland; { + and + }
{ - (c) Dwellings and land divisions approved for marginal
lands under: - }
{ - (A) ORS 215.317 or 215.327; and - }
{ - (B) Any land zoned for forest use under any statewide
planning goal that relates to forestland; and - }
{ - (d) - } { + (c) + } Such other matters pertaining to
protection of
{ - agricultural or forest - } land { + in exclusive farm use
or forest zones + } as the commission deems appropriate.
(2) The governing body of each county shall provide the
Department of Land Conservation and Development with a report of
its actions involving those dwellings, land divisions and land
designations upon which the commission must report to the Joint
Legislative Committee on Land Use under subsection (1) of this
section. The department shall establish, after consultation with
county governing bodies, an annual reporting period and may
establish a schedule for receiving county reports at intervals
within the reporting period. The report shall be on a standard
form with a standardized explanation adopted by the commission
and shall be eligible for grants by the commission. The report
shall include the findings for each action except actions
involving:
(a) Dwellings authorized by ORS 215.213 (1)(e) or 215.283
(1)(e); or
(b) Land divisions authorized by ORS 215.263 (2) creating
parcels as large as or larger than a minimum lot size
acknowledged by the commission under ORS 197.251.
(3) The governing body of each county shall, upon request by
the department, provide the department with other information
necessary to carry out subsection (1) of this section.
SECTION 8. ORS 197.277 is amended to read:
197.277. (1) The goals and rules established { - in - }
{ + under + } ORS chapters 195, 196 and 197 do not apply to
programs, rules, procedures, decisions, determinations or
activities carried out under the Oregon Forest Practices Act
administered under ORS 527.610 to 527.770, 527.990 (1) and
527.992.
(2) { - No - } { + A + } goal or rule shall { + not + } be
adopted, construed or administered in a manner to require or
allow local governments to take any action prohibited by ORS
527.722.
(3) The Land Conservation and Development Commission shall
amend goals and rules as necessary to implement ORS 197.180,
197.277, 197.825, 215.050, 477.090, 477.440, 477.455, 477.460,
526.009, 526.016, 526.156, 527.620, 527.630, 527.660, 527.670,
527.683 to 527.687, 527.715, 527.990 and 527.992.
{ + (4) Notwithstanding ORS 527.630, nothing in this section
requires the continuous growing and harvesting of forest tree
species and the maintenance of forestland for such purposes as
the leading use on privately owned secondary land. + }
SECTION 9. ORS 197.445 is amended to read:
197.445. A destination resort is a self-contained development
that provides for visitor-oriented accommodations and developed
recreational facilities in a setting with high natural amenities.
To qualify as a destination resort under ORS 30.947, 197.435 to
197.467, 215.213, 215.283 and 215.284, a proposed development
shall meet the following standards:
(1) The resort shall be located on a site of 160 acres or more
except within two miles of the ocean shoreline where the site
shall be 40 acres or more.
(2) At least 50 percent of the site shall be dedicated to
permanent open space, excluding streets and parking areas.
(3) At least $7 million shall be spent on improvements for
on-site developed recreational facilities and visitor-oriented
accommodations exclusive of costs for land, sewer and water
facilities and roads. Not less than one-third of this amount
shall be spent on developed recreational facilities.
(4) Visitor-oriented accommodations including meeting rooms,
restaurants with seating for 100 persons and 150 separate
rentable units for overnight lodging shall be provided. However,
the rentable units may be phased in as follows:
(a) A total of 150 units of overnight lodging shall be provided
as follows:
(A) At least 75 units of overnight lodging, not including any
individually owned homes, lots or units, shall be constructed or
guaranteed through surety bonding or equivalent financial
assurance prior to the closure of sale of individual lots or
units.
(B) The remainder shall be provided as individually owned lots
or units subject to deed restrictions that limit their use to use
as overnight lodging units. The deed restrictions may be
rescinded when the resort has constructed 150 units of permanent
overnight lodging as required by this subsection.
(b) The number of units approved for residential sale shall not
be more than two units for each unit of permanent overnight
lodging provided under paragraph (a)(A) of this subsection.
(c) The development approval shall provide for the construction
of other required overnight lodging units within five years of
the initial lot sales.
(5) Commercial uses allowed are limited to types and levels of
use necessary to meet the needs of visitors to the development.
Industrial uses of any kind are not permitted.
(6) In lieu of the standards in subsections (1), (3) and (4) of
this section, the standards set forth in subsection (7) of this
section apply to a destination resort:
(a) On land that is not defined as agricultural or forest land
under any statewide planning goal;
(b) On land where there has been an exception to any statewide
planning goal on agricultural lands, forestlands, public
facilities and services and urbanization; or
(c) On { - such - } secondary lands { - as the Land
Conservation and Development Commission deems appropriate - } .
(7) The following standards apply to the provisions of
subsection (6) of this section:
(a) The resort shall be located on a site of 20 acres or more.
(b) At least $2 million shall be spent on improvements for
on-site developed recreational facilities and visitor-oriented
accommodations exclusive of costs for land, sewer and water
facilities and roads. Not less than one-third of this amount
shall be spent on developed recreational facilities.
(c) At least 25 units, but not more than 75 units, of overnight
lodging shall be provided.
(d) Restaurant and meeting room with at least one seat for each
unit of overnight lodging shall be provided.
(e) Residential uses shall be limited to those necessary for
the staff and management of the resort.
(f) The county governing body or its { - designate - }
{ + designee + } has reviewed the resort proposed under this
subsection and has determined that the primary purpose of the
resort is to provide lodging and other services oriented to a
recreational resource which can only reasonably be enjoyed in a
rural area. Such recreational resources include, but are not
limited to, a hot spring, a ski slope or a fishing stream.
(g) The resort shall be constructed and located so that it is
not designed to attract highway traffic. Resorts shall not use
any manner of outdoor advertising signing except:
(A) Tourist oriented directional signs as provided in ORS
377.715 to 377.830; and
(B) On-site identification and directional signs.
(8) Spending required under subsections (3) and (7) of this
section is stated in 1993 dollars. The spending required shall be
adjusted to the year in which calculations are made in accordance
with the United States Consumer Price Index.
SECTION 10. ORS 197.610 is amended to read:
197.610. (1) A proposal to amend a local government
acknowledged comprehensive plan or land use regulation or to
adopt a new land use regulation shall be forwarded to the
Director of the Department of Land Conservation and Development
at least 45 days before the first evidentiary hearing on
adoption. The proposal forwarded shall contain the text and any
supplemental information that the local government believes is
necessary to inform the director as to the effect of the
proposal. The notice shall include the date set for the first
evidentiary hearing. The director shall notify persons who have
requested notice that the proposal is pending.
(2) When a local government determines that the goals do not
apply to a particular proposed amendment or new regulation,
notice under subsection (1) of this section is not required. In
addition, a local government may submit an amendment or new
regulation with less than 45 days' notice if the local government
determines that there are emergency circumstances requiring
expedited review. In both cases:
(a) The amendment or new regulation shall be submitted after
adoption as provided in ORS 197.615 (1) and (2); and
(b) Notwithstanding the requirements of ORS 197.830 (2), the
director or any other person may appeal the decision to the board
under ORS 197.830 to 197.845.
(3) When the Department of Land Conservation and Development
participates in a local government proceeding, at least 15 days
before the final hearing on the proposed amendment to the
comprehensive plan or land use regulation or the new land use
regulation, the department shall notify the local government of:
(a) Any concerns the department has concerning the proposal;
and
(b) Advisory recommendations on actions the department
considers necessary to address the concerns, including, but not
limited to, suggested corrections to achieve compliance with the
goals.
(4) The director shall report to the Land Conservation and
Development Commission on whether the director:
(a) Believes the local government's proposal violates the
goals; and
(b) Is participating in the local government proceeding.
{ + (5) Notwithstanding subsections (1) to (4) of this
section, amendment of acknowledged comprehensive plans and land
use regulations to zone and regulate uses and land divisions on
secondary land shall not be reviewed by the commission, as
prescribed in ORS 197.628 to 197.650, except to determine if the
local government, based on substantial evidence in the record,
has improperly identified land in exclusive farm use zones or
forest zones as secondary land. + }
SECTION 11. ORS 215.243 is amended to read:
215.243. The Legislative Assembly finds and declares that:
(1) Open land used for agricultural use is an efficient means
of conserving natural resources that constitute an important
physical, social, aesthetic and economic asset to all of the
people of this state, whether living in rural, urban or
metropolitan areas of the state.
(2) The preservation of a maximum amount of the limited supply
of agricultural land is necessary to the conservation of the
state's economic resources and the preservation of such land in
large blocks is necessary in maintaining the agricultural economy
of the state and for the assurance of adequate, healthful and
nutritious food for the people of this state and nation.
(3) Expansion of urban development into rural areas is a matter
of public concern because of the unnecessary increases in costs
of community services, conflicts between farm and urban
activities and the loss of open space and natural beauty around
urban centers occurring as the result of such expansion.
(4) Exclusive farm use zoning as provided by law, substantially
limits alternatives to the use of rural land and, with the
importance of rural lands to the public, justifies incentives and
privileges offered to encourage owners of rural lands to hold
such lands in exclusive farm use zones.
{ + (5) Retaining less productive and unproductive
agricultural lands in farm use zones for agricultural and open
space purposes is not necessary for maintaining the agricultural
economy of this state and is contrary to the rights of the
landowners and the overall economic interests of the state. Less
productive and unproductive agricultural lands that are zoned as
secondary lands should be devoted to the highest and best uses
subject to reasonable regulations to protect agricultural
activity on more productive land and to prevent unnecessary
increases in the cost of community services. + }
SECTION 12. ORS 215.253 is amended to read:
215.253. (1) { - No - } { + A + } state agency, city,
county or political subdivision of this state may { + not + }
exercise any of its powers to enact local laws or ordinances or
impose restrictions or regulations affecting any farm use land
situated within an exclusive farm use zone established under ORS
215.203 { - or within an area designated as marginal land under
ORS 197.247 (1991 Edition) - } in a manner that would restrict
or regulate farm structures or that would restrict or regulate
farming practices if conditions from such practices do not extend
into an adopted urban growth boundary in such manner as to
interfere with the lands within the urban growth boundary.
'Farming practice' as used in this subsection shall have the
meaning set out in ORS 30.930.
(2) Nothing in this section is intended to limit or restrict
the lawful exercise by any state agency, city, county or
political subdivision of its power to protect the health, safety
and welfare of the citizens of this state.
SECTION 13. ORS 215.284 is amended to read:
215.284. (1) In the Willamette Valley, a single-family
residential dwelling not provided in conjunction with farm use
may be established, subject to approval of the governing body or
its
{ - designate - } { + designee + }, in any area zoned for
exclusive farm use upon a finding that:
(a) The dwelling or activities associated with the dwelling
will not force a significant change in or significantly increase
the cost of accepted farming or forest practices on nearby lands
{ - devoted to farm or forest use - } { + in exclusive farm
use or forest zones + };
(b) The dwelling will be sited on a lot or parcel that is
predominantly composed of Class IV through Class VIII soils that
would not, when irrigated, be classified as prime, unique, Class
I or Class II soils;
(c) The dwelling will be sited on a lot or parcel created
before January 1, { - 1993 - } { + 2001 + }; { + and + }
{ - (d) The dwelling will not materially alter the stability
of the overall land use pattern of the area; and - }
{ - (e) - } { + (d) + } The dwelling complies with such
other conditions as the governing body or its { - designate - }
{ + designee + } considers necessary.
(2) In counties not described in subsection (1) of this
section, a single-family residential dwelling not provided in
conjunction with farm use may be established, subject to approval
of the governing body or its { - designate - } { +
designee + }, in any area zoned for exclusive farm use upon a
finding that:
(a) The dwelling or activities associated with the dwelling
will not force a significant change in or significantly increase
the cost of accepted farming or forest practices on nearby lands
{ - devoted to farm or forest use - } { + in exclusive farm
use or forest zones + };
(b) The dwelling is situated upon a lot or parcel or portion of
a lot or parcel that is generally unsuitable land for the
production of farm crops and livestock or merchantable tree
species, considering the terrain, adverse soil or land
conditions, drainage and flooding, vegetation, location and size
of the tract. A lot or parcel or portion of a lot or parcel
shall not be considered unsuitable solely because of size or
location if it can reasonably be put to farm or forest use in
conjunction with other land;
(c) The dwelling will be sited on a lot or parcel created
before January 1, { - 1993 - } { + 2001 + }; { + and + }
{ - (d) The dwelling will not materially alter the stability
of the overall land use pattern of the area; and - }
{ - (e) - } { + (d) + } The dwelling complies with such
other conditions as the governing body or its { - designate - }
{ + designee + } considers necessary.
(3) In counties not described in subsection (4) of this
section, a single-family residential dwelling not provided in
conjunction with farm use may be established, subject to approval
of the governing body or its { - designate - } { +
designee + }, in any area zoned for exclusive farm use upon a
finding that:
(a) The dwelling or activities associated with the dwelling
will not force a significant change in or significantly increase
the cost of accepted farming or forest practices on nearby lands
{ - devoted to farm or forest use - } { + in exclusive farm
use or forest zones + };
(b) The dwelling is situated upon a lot or parcel or portion of
a lot or parcel that is generally unsuitable land for the
production of farm crops and livestock or merchantable tree
species, considering the terrain, adverse soil or land
conditions, drainage and flooding, vegetation, location and size
of the tract. A lot or parcel or portion of a lot or parcel
shall not be considered unsuitable solely because of size or
location if it can reasonably be put to farm or forest use in
conjunction with other land;
(c) The dwelling will be sited on a lot or parcel created after
January 1, 1993, as allowed under ORS 215.263 (4); { + and + }
{ - (d) The dwelling will not materially alter the stability
of the overall land use pattern of the area; and - }
{ - (e) - } { + (d) + } The dwelling complies with such
other conditions as the governing body or its { - designate - }
{ + designee + } considers necessary.
(4)(a) In the Willamette Valley, a lot or parcel allowed under
paragraph (b) of this subsection for a single-family residential
dwelling not provided in conjunction with farm use may be
established, subject to approval of the governing body or its
{ - designate - } { + designee + }, in any area zoned for
exclusive farm use upon a finding that the originating lot or
parcel is equal to or larger than the applicable minimum lot or
parcel size and:
(A) Is not stocked to the requirements under ORS 527.610 to
527.770;
(B) Is composed of at least 95 percent Class VI through Class
VIII soils; and
(C) Is composed of at least 95 percent soils not capable or
producing 50 cubic feet per acre per year of wood fiber.
(b) Any parcel to be created for a dwelling from the
originating lot or parcel described in paragraph (a) of this
subsection will not be smaller than 20 acres.
(c) The dwelling or activities associated with the dwelling
allowed under this subsection will not force a significant change
in or significantly increase the cost of accepted farming or
forest practices on nearby lands { - devoted to farm or forest
use - } { + in exclusive farm use or forest zones + }.
{ - (d) The dwelling allowed under this subsection will not
materially alter the stability of the overall land use pattern of
the area. - }
{ - (e) - } { + (d) + } The dwelling allowed under this
subsection complies with such other conditions as the governing
body or its
{ - designate - } { + designee + } considers necessary.
(5) { - No - } Final approval of a nonfarm use under this
section shall { + not + } be given unless any additional taxes
imposed upon the change in use have been paid.
(6) If a single-family dwelling is established on a lot or
parcel as set forth in ORS 215.705 to 215.750, no additional
dwelling may later be sited under subsections (1), (2), (3) or
(4) of this section.
SECTION 14. ORS 215.296 is amended to read:
215.296. (1) A use allowed under ORS 215.213 (2) or 215.283 (2)
may be approved only where the local governing body or its
designee finds that the use will not:
(a) Force a significant change in accepted farm or forest
practices on surrounding lands { - devoted to farm or forest
use - } { + in exclusive farm use or forest zones + }; or
(b) Significantly increase the cost of accepted farm or forest
practices on surrounding lands { - devoted to farm or forest
use - } { + in exclusive farm use or forest zones + }.
(2) An applicant for a use allowed under ORS 215.213 (2) or
215.283 (2) may demonstrate that the standards for approval set
forth in subsection (1) of this section will be satisfied through
the imposition of conditions. Any conditions so imposed shall be
clear and objective.
(3) A person engaged in farm or forest practices on lands
{ - devoted to farm or forest use - } { + in exclusive farm
use or forest zones + } may file a complaint with the local
governing body alleging:
(a) That a condition imposed pursuant to subsection (2) of this
section has been violated;
(b) That the violation has:
(A) Forced a significant change in accepted farm or forest
practices on surrounding lands { - devoted to farm or forest
use - } { + in exclusive farm use or forest zones + }; or
(B) Significantly increased the cost of accepted farm or forest
practices on surrounding lands { - devoted to farm or forest
use - } { + in exclusive farm use or forest zones + }; and
(c) That the complainant is adversely affected by the
violation.
(4) Upon receipt of a complaint, the local governing body or
its designee shall:
(a) Forward the complaint to the operator of the use;
(b) Review the complaint in the manner set forth in ORS 215.402
to 215.438; and
(c) Determine whether the allegations made pursuant to
subsection (3) of this section are true.
(5) Upon a determination that the allegations of the complaint
are true, the local governing body or its designee at a minimum
shall notify the violator that a violation has occurred, direct
the violator to correct the conditions that led to the violation
within a specified time period and warn the violator against the
commission of further violations.
(6) If the conditions that led to a violation are not corrected
within the time period specified pursuant to subsection (5) of
this section, or if there is a determination pursuant to
subsection (4) of this section following the receipt of a second
complaint that a further violation has occurred, the local
governing body or its designee at a minimum shall assess a fine
against the violator.
(7) If the conditions that led to a violation are not corrected
within 30 days after the imposition of a fine pursuant to
subsection (6) of this section, or if there is a determination
pursuant to subsection (4) of this section following the receipt
of a third or subsequent complaint that a further violation has
occurred, the local governing body or its designee shall at a
minimum order the suspension of the use until the violator
corrects the conditions that led to the violation.
(8) If a use allowed under ORS 215.213 (2) or 215.283 (2) is
initiated without prior approval pursuant to subsection (1) of
this section, the local governing body or its designee at a
minimum shall notify the user that prior approval is required,
direct the user to apply for approval within 21 days and warn the
user against the commission of further violations. If the user
does not apply for approval within 21 days, the local governing
body or its designee shall order the suspension of the use until
the user applies for and receives approval. If there is a
determination pursuant to subsection (4) of this section
following the receipt of a complaint that a further violation
occurred after approval was granted, the violation shall be
deemed a second violation and the local governing body or its
designee at a minimum shall assess a fine against the violator.
(9)(a) The standards set forth in subsection (1) of this
section shall not apply to farm or forest uses conducted { + on
lands zoned secondary land or + } within:
(A) Lots or parcels with a single-family residential dwelling
approved under ORS 215.213 (3), 215.284 (1), (2), (3) or (4) or
215.705;
(B) An exception area approved under ORS 197.732; or
(C) An acknowledged urban growth boundary.
(b) A person residing in a single-family residential dwelling
which was approved under ORS 215.213 (3), 215.284 (1), (2), (3)
or (4) or 215.705, which is within an exception area approved
under ORS 197.732 or which is within an acknowledged urban growth
boundary may not file a complaint under subsection (3) of this
section.
(10) Nothing in this section shall prevent a local governing
body approving a use allowed under ORS 215.213 (2) or 215.283 (2)
from establishing standards in addition to those set forth in
subsection (1) of this section or from imposing conditions to
insure conformance with such additional standards.
SECTION 15. ORS 215.720 is amended to read:
215.720. (1) A dwelling authorized under ORS 215.705 may be
allowed on land zoned { - for forest use under a goal
protecting - } forestland only if:
(a) The tract on which the dwelling will be sited is in western
Oregon, as defined in ORS 321.257, and is composed of soils not
capable of producing 5,000 cubic feet per year of commercial tree
species and is located within 1,500 feet of a public road as
defined under ORS 368.001. The road shall be maintained and
either paved or surfaced with rock and shall not be:
(A) A United States Bureau of Land Management road; or
(B) A United States Forest Service road unless the road is
paved to a minimum width of 18 feet, there is at least one
defined lane in each direction and a maintenance agreement exists
between the United States Forest Service and landowners adjacent
to the road, a local government or a state agency.
(b) The tract on which the dwelling will be sited is in eastern
Oregon, as defined in ORS 321.405, and is composed of soils not
capable of producing 4,000 cubic feet per year of commercial tree
species and is located within 1,500 feet of a public road as
defined under ORS 368.001. The road shall be maintained and
either paved or surfaced with rock and shall not be:
(A) A United States Bureau of Land Management road; or
(B) A United States Forest Service road unless the road is
paved to a minimum width of 18 feet, there is at least one
defined lane in each direction and a maintenance agreement exists
between the United States Forest Service and landowners adjacent
to the road, a local government or a state agency.
(2) For purposes of this section, 'commercial tree species '
means trees recognized under rules adopted under ORS 527.715 for
commercial production.
(3) No dwelling other than those described in this section and
ORS 215.740, 215.750 and 215.755 may be sited on land zoned
{ - for forest use under a land use planning goal
protecting - } forestland.
SECTION 16. ORS 215.740 is amended to read:
215.740. (1) If a dwelling is not allowed under ORS 215.720
(1), a dwelling may be allowed on land zoned { - for forest use
under a goal protecting - } forestland if it complies with other
provisions of law and is sited on a tract:
(a) In eastern Oregon of at least 240 contiguous acres except
as provided in subsection (3) of this section; or
(b) In western Oregon of at least 160 contiguous acres except
as provided in subsection (3) of this section.
(2) For purposes of subsection (1) of this section, a tract
shall not be considered to consist of less than 240 acres or 160
acres because it is crossed by a public road or a waterway.
(3)(a) An owner of tracts that are not contiguous but are in
the same county or adjacent counties and zoned for forest use may
add together the acreage of two or more tracts to total 320 acres
or more in eastern Oregon or 200 acres or more in western Oregon
to qualify for a dwelling under subsection (1) of this section.
(b) If an owner totals 320 or 200 acres, as appropriate, under
paragraph (a) of this subsection, the owner shall submit proof of
nonrevocable deed restrictions recorded in the deed records for
the tracts in the 320 or 200 acres, as appropriate. The deed
restrictions shall preclude all future rights to construct a
dwelling on the tracts or to use the tracts to total acreage for
future siting of dwellings for present and any future owners
unless the tract is no longer subject to protection under goals
for agricultural lands or forestlands.
(c) The Land Conservation and Development Commission shall
adopt rules that prescribe the language of the deed restriction,
the procedures for recording, the procedures under which counties
shall keep records of lots or parcels used to create the total,
the mechanisms for providing notice to subsequent purchasers of
the limitations under paragraph (b) of this subsection and other
rules to implement this section.
SECTION 17. ORS 308A.071 is amended to read:
308A.071. (1) For purposes of ORS 308A.050 to 308A.128,
farmland or a farm parcel that is not within an area zoned for
exclusive farm use { + , or on secondary land formerly zoned for
exclusive farm use when the use of the land has not been
converted to a nonfarm use, + } is not used exclusively for farm
use unless all of the prerequisites of subsections (2) to (5) of
this section are met.
(2)(a) Except as provided in subsection (6) of this section, in
three out of the five full calendar years immediately preceding
the assessment date, the farmland or farm parcel was operated as
a part of a farm unit that has produced a gross income from farm
uses in the following amount for a calendar year:
(A) If the farm unit consists of six acres or less, the gross
income from farm use shall be at least $650.
(B) If the farm unit consists of more than six acres but less
than 30 acres, the gross income from farm use shall be at least
equal to the product of $100 times the number of acres and any
fraction of an acre of land included.
(C) If the farm unit consists of 30 acres or more, the gross
income from farm use shall be at least $3,000.
(b) For purposes of determining the number of acres to be
considered under paragraph (a) of this subsection, the land
described in ORS 308A.056 (3) and the land, not exceeding one
acre, used as a homestead shall not be included.
(c) If a farm parcel is operated as part of a farm unit and the
farmland of the farm unit is not all under the same ownership,
the gross income requirements applicable to the farm parcel shall
be as provided under paragraph (a) of this subsection. In
addition, the gross income from farm use of a farm parcel
described under this paragraph must be at least:
(A) One-half of the gross income requirements described under
paragraph (a) of this subsection that would be required if the
farm parcel were the only farmland of the farm unit; or
(B) A cash or net share crop rental of one-quarter of the gross
income requirements described under paragraph (a) of this
subsection that would be required if the farm parcel were the
only farmland of the farm unit. For purposes of this
subparagraph, ' net share crop rental' means the value of any
crop received by the owner of the farm parcel less any costs
borne by the owner of the farm parcel.
(3) Excise or income tax returns are filed with the Department
of Revenue for purposes of ORS chapter 316, 317 or 318 by the
farmland owner or the operator of the farm unit that include a
Schedule F and, if applicable, by the owner of a farm parcel that
include a schedule or schedules showing rental income received by
the owner of the farm parcel, during the years to which the
income requirements of this section apply.
(4) Upon request, a copy of the returns or the schedules of the
returns showing the gross income received from farm use is
furnished by the taxpayer to the county assessor.
(5) The burden of proving the gross income of the farm unit for
the years described in subsection (2) of this section is upon the
person claiming special assessment for the land.
(6) The failure of a farm unit to produce the amount of gross
income required by subsection (2) of this section shall not
prevent the farm unit from meeting the qualifications of this
section if:
(a) The failure is because:
(A) The effect of flooding substantially precludes normal and
reasonable farming during the year; or
(B) Severe drought conditions are declared under ORS 536.700 to
536.780; and
(b) The farm unit produces the required amount of gross income
in three out of the last five nonflood or nondrought years.
(7) As used in this section:
(a) 'Farm parcel' means the contiguous land under the same
ownership, whether assessed as one or more than one tax lot.
(b) 'Owner' or 'ownership' means any person described under ORS
308A.077 (2)(b)(A), (B), (D) or (E) and spouse or other person
who is also an owner as tenant in common or other joint ownership
interest.
(c) 'Gross income' includes the value of any crop or livestock
that is used by the owner personally or in the farming operation
of the owner, but does not include:
(A) The value of any crop or livestock so used unless records
accurately reflecting both value and use of the crop or livestock
are kept by the owner in a manner consistent with generally
accepted accounting principles; and
(B) The purchase cost of livestock.
{ + (8) As used in this section, 'nonfarm use' means any use
other than those uses described in ORS 215.203 (2). + }
SECTION 18. ORS 321.358, as amended by section 74, chapter
1078, Oregon Laws 1999, is amended to read:
321.358. (1) An owner of land desiring that it be designated as
forestland shall make application to the county assessor on or
before April 1 of the assessment year for which special
assessment as forestland is first desired, and the owner may also
do so within 30 days of receipt of notice of its assessment as
omitted property.
(2) Notwithstanding subsection (1) of this section, an owner of
land may apply to the county assessor by December 15 to have the
land designated as forestland for the assessment year if:
(a) For the prior assessment year the land had been forestland
under ORS 321.257 (4) by reason of the land being highest and
best use forestland; and
(b) For the current assessment year the land is being assessed
at a value reflecting a use other than highest and best use
forestland.
(3) The application shall be made upon forms prepared by the
Department of Revenue and supplied by the county assessor, and
shall include the following:
(a) A description of all land the applicant desires to be
designated as forestland.
(b) Date of acquisition.
(c) Whether the land is being held or used for the predominant
purpose of growing and harvesting trees of marketable species.
(d) Whether there is a forest management plan for it.
(e) If so, whether the plan is being implemented, and the
nature and extent of implementation.
(f) Whether the land is used for grazing.
(g) Whether the land has been platted under ORS chapter 92.
(h) Whether the land is timberland subject to ORS chapter 477,
and if it is not, the reasons therefor.
(i) Whether the land, or any of it, is subject to a lease or
option which permits it to be used for any purpose other than the
growing and harvesting of trees.
(j) A summary of past experience and activity of the applicant
in growing and harvesting trees.
(k) A summary of current and continuing activity of the
applicant in growing and harvesting trees.
(L) A statement that the applicant is aware of the potential
tax liability involved when the land ceases to be designated as
forestland.
(m) An affirmation that the statements contained in the
application are true.
(4) The county assessor shall approve an application for
forestland designation if the assessor finds that the land is
properly classifiable as forestland. The county assessor shall
not find land properly classifiable as forestland if:
(a) The application states the land is not being held or used
for the predominant purpose of growing and harvesting trees of
marketable species; or
(b) Subject to the provisions of ORS 321.257, the land does not
substantially meet minimum stocking or acreage requirements under
rules adopted by the department. Otherwise, the determination
whether the land is properly classifiable as forestland shall be
made with due regard to all relevant evidence and without any one
or more items of evidence necessarily being determinative.
(5) The application shall be deemed to have been approved
unless, within three months of the date such application was
delivered to the assessor or prior to August 15, whichever is
later, the assessor shall notify the applicant in writing of the
extent to which the application is denied.
{ + (6) The provisions of ORS 321.358, 321.359 and 321.362
for special assessment as designated forestland in western Oregon
continue to apply to land receiving special assessment after it
has been zoned as secondary land until that secondary land is
converted to a nonforest use. If a lot or parcel of secondary
land is receiving special assessment and a portion of the lot or
parcel is converted to a nonforest use, the special assessment
provisions of ORS 321.347 to 321.375 shall continue to apply to
the remainder of the lot or parcel of secondary land not
converted to a nonforest use. As used in this section, 'nonforest
use' means any land use that is not for the predominant purpose
of growing and harvesting trees of a marketable species. + }
SECTION 19. ORS 321.725 is amended to read:
321.725. (1) Subject to subsections (2) to (4) of this section,
owners of forestland in western Oregon may elect to have such
land classified under ORS 321.705 to 321.765 if:
(a) The forestland is not used for uses which are incompatible
with the cultivation of timber thereon, as determined in
accordance with generally accepted principles of good forestry;
(b) The size of timber on the forestland that predominates is
not in excess of eight inches in diameter (breast high, outside
the bark) or the average age of timber on the forestland is not
in excess of 40 years. If the State Forester determines that the
forestland proposed to be classified consists of areas of
substantially different size or age classes, the State Forester
may consider each area separately and determine a predominant
size or age of timber for each such area for purposes of this
subsection;
(c) The land is being held or used for the predominant purpose
of growing and harvesting trees of marketable species and such
trees are well distributed over the area to be classified; and
(d) The land meets the minimum forest management standards
established by rule by the State Forester, or if the owner has a
plan approved by the State Forester for meeting those standards.
(2) Only owners having a total ownership of forestland in
western Oregon in excess of 10 acres but not in excess of 5,000
acres shall be entitled to classify forestland under this
section. In computing an owner's acreage for purposes of this
subsection, total ownership shall be included even though
portions of the forestland of the owner may not be eligible for
classification under { - subsection (1) of - } this section.
As used in this subsection, 'total ownership' includes (a)
forestland owned by the applicant owner individually and (b) any
forestland owned by any corporate or other entity in which the
applicant owner holds a share of ownership of 10 percent or more.
(3) An owner electing to classify land under ORS 321.705 to
321.765 shall classify all of the lands that are eligible for
classification under ORS 321.705 to 321.765 that are located
within a single tax lot. Lands classified under ORS 321.705 to
321.765 on July 1, 1997, are not subject to the requirements of
this subsection.
(4) No owner may have forestland classified under ORS 321.705
to 321.765 if such owner, or any individual having a share in an
entity owning forestland, has a spouse, brother, sister, ancestor
or lineal descendant who is an owner having forestland classified
under ORS 321.705 to 321.765 or who owns a share in an entity
that has forestland classified under ORS 321.705 to 321.765.
However, the State Forester may grant exceptions to this
requirement where the applicant satisfactorily demonstrates that
the combination of ownerships with the indicated relatives arose
from bona fide business reasons other than a desire to circumvent
the 5,000-acre limitation imposed by this section.
{ + (5) The provisions of ORS 321.705 to 321.765 for special
assessment as western Oregon small tract optional forestland
continue to apply to land receiving special assessment after it
has been zoned as secondary land until that secondary land is
converted to a nonforest use. If a lot or parcel of secondary
land is receiving special assessment and a portion of the lot or
parcel is converted to a nonforest use, the special assessment
provisions of ORS 321.705 to 321.765 shall continue to apply to
the remainder of the lot or parcel of secondary land not
converted to a nonforest use. As used in this section, 'nonforest
use' means any land use that is not for the predominant purpose
of growing and harvesting trees of a marketable species. + }
SECTION 20. ORS 321.810 is amended to read:
321.810. (1) Notwithstanding ORS 308.205 and 308.235, for the
tax year beginning July 1, 1993, and the tax year beginning July
1, 1994, and for purposes of ORS 308.232, the value of forestland
shall be determined under this section. Land { - which - }
{ + that + } has been designated as forestland under ORS 321.805
to 321.825 shall be valued as forestland under this section and
shall be noted on the assessment and tax roll as being forestland
potentially subject to additional taxes under ORS 308A.700 to
308A.733. { + The provisions of ORS 321.805 to 321.825 for
special assessment as designated forestland in eastern Oregon
continue to apply to land receiving special assessment after it
has been zoned as secondary land until that secondary land is
converted to a nonforest use. If a lot or parcel of secondary
land is receiving special assessment and a portion of the lot or
parcel is converted to a nonforest use, the special assessment
provisions of ORS 321.805 to 321.825 shall continue to apply to
the remainder of the lot or parcel of secondary land not
converted to a nonforest use, provided that the remainder of the
lot or parcel consists of five or more acres. As used in this
subsection, 'nonforest use' means any land use that is not for
the predominant purpose of growing and harvesting trees of a
marketable species. + }
(2) Each tax year, the value of forestland shall be determined
by multiplying the value of the forestland for the previous tax
year by the forestland index calculated by the Department of
Revenue and certified to the appropriate county assessors under
subsection (3) of this section.
(3) The Department of Revenue shall calculate, and certify to
each county assessor on or before August 15 of each year the
forestland index to be used in the calculation of the value of
forestland as of the preceding July 1 assessment date. The county
assessor shall use the index so certified in the preparation of
the assessment and tax rolls.
(4) As used in this section, 'forestland index' means the
number 1.0 plus the decimal equivalent of 50 percent of the
percentage change, whether positive or negative, in the sum of
the yearly average immediate harvest value of timber determined
by the department for the previous five years compared to the sum
of the five yearly average immediate harvest values beginning one
year prior to the most recent five-year harvest dates. The
average immediate harvest value for each year shall be calculated
by the Department of Revenue by dividing the total of the
immediate harvest values on the returns by the total of the
volumes on the returns. The volumes and immediate harvest values
used to determine the index shall be based upon those volumes
reported in thousand board feet or in the unit of measure in
which the preponderance of volume has been reported. The returns
used shall be the privilege tax returns timely filed under ORS
321.435.
(5) At any time after the certification of the index pursuant
to subsection (3) of this section, but not later than September
15, five or more taxpayers owning in the aggregate not less than
five percent of the total forestland acreage subject to ad
valorem taxation in eastern Oregon may appeal the values directly
to the tax court by filing a joint petition with the tax court in
the manner provided for appeals from orders of the county boards
of property tax appeals. Notice of the appeal shall be made in
each county having values affected by the appeal, either by
personal service, by certified mail on each taxpayer affected, or
by publication made once a week for two consecutive weeks in a
newspaper of general circulation in the county. The notice shall
designate the values appealed, and include a statement of the
provisions of subsection (6) of this section. The petition shall
designate one of the group as the representative of all, and all
proceedings before the tax court and any appeal from its
determination shall be conducted procedurally as though the
designated representative were the only petitioner.
(6) If the tax court increases or reduces any of the values
under appeal, the judgment of the court shall apply to the
valuation of all forestland for that year. An appeal may be taken
to the Oregon Supreme Court from the judgment of the tax court.
Unless changed upon appeal to the Supreme Court, the tax court
determination shall be binding upon the department and upon each
assessor and taxpayer affected by such determination of value.
(7) All other appeals from the application of the forestland
index certified by the department under subsection (3) of this
section shall be taken in the time and manner otherwise provided
by law for such property tax appeals.
SECTION 21. ORS 527.620 is amended to read:
527.620. As used in ORS 527.610 to 527.770, 527.990 and
527.992:
(1) 'Board' means the State Board of Forestry.
(2) 'Cumulative effects' means the impact on the environment
which results from the incremental impact of the forest practice
when added to other past, present and reasonably foreseeable
future forest practices regardless of what governmental agency or
person undertakes such other actions.
(3) 'DBH' means the diameter at breast height which is measured
as the width of a standing tree at four and one-half feet above
the ground, on the uphill side.
(4) 'Edge of the roadway' means:
(a) For interstate highways, the fence.
(b) For all other state highways, the outermost edge of
pavement, or if unpaved, the edge of the shoulder.
(5) 'Forest practice' means any operation conducted on or
pertaining to forestland, including but not limited to:
(a) Reforestation of forestland;
(b) Road construction and maintenance;
(c) Harvesting of forest tree species;
(d) Application of chemicals; and
(e) Disposal of slash.
(6) 'Forest tree species' does not include:
(a) Christmas trees on land used solely for the production of
cultured Christmas trees as defined in ORS 215.203 (3).
(b) Hardwood timber, including but not limited to hybrid
cottonwood, which is:
(A) Grown or growing on land which has been prepared by
intensive cultivation methods and which is cleared of competing
vegetation for at least three years after tree planting;
(B) Of a species marketable as fiber for inclusion in the '
furnish' for manufacturing paper products;
(C) Harvested on a rotation cycle within 12 years after
planting; and
(D) Subject to intensive agricultural practices such as
fertilization, insect and disease control, cultivation and
irrigation.
(7) 'Forestland' means land that is used for the growing and
harvesting of forest tree species, regardless of how the land is
zoned or taxed or how any state or local statutes, ordinances,
rules or regulations are applied. { + ' Forestland' does not
include secondary land described in section 2 of this 2001
Act. + }
(8) 'Harvest type 1' means an operation that requires
reforestation but does not require wildlife leave trees. A
harvest type 1 is an operation that leaves a combined stocking
level of free to grow seedlings, saplings, poles and larger trees
that is less than the stocking level established by rule of the
board that represents adequate utilization of the productivity of
the site.
(9) 'Harvest type 2' means an operation that requires wildlife
leave trees but does not require reforestation. A harvest type 2
does not require reforestation because it has an adequate
combined stocking of free to grow seedlings, saplings, poles and
larger trees, but leaves:
(a) On Cubic Foot Site Class I, II or III, fewer than 50
11-inch DBH trees or less than an equivalent basal area in larger
trees, per acre;
(b) On Cubic Foot Site Class IV or V, fewer than 30 11-inch DBH
trees or less than an equivalent basal area in larger trees, per
acre; or
(c) On Cubic Foot Site Class VI, fewer than 15 11-inch DBH
trees or less than an equivalent basal area in larger trees, per
acre.
(10) 'Harvest type 3' means an operation that requires
reforestation and requires wildlife leave trees. This represents
a level of stocking below which the size of operations is limited
under ORS 527.740 and 527.750.
(11) 'Landowner' means any individual, combination of
individuals, partnership, corporation or association of whatever
nature that holds an ownership interest in forestland, including
the state and any political subdivision thereof.
(12) 'Operation' means any commercial activity relating to the
growing or harvesting of forest tree species.
(13) 'Operator' means any person, including a landowner or
timber owner, who conducts an operation.
(14) 'Single ownership' means ownership by an individual,
partnership, corporation, limited liability company, trust,
holding company or other business entity, including the state or
any political subdivision thereof. Single ownership includes
ownership held under different names or titles where the same
individual or individuals, or their heirs or assigns, are
shareholders (other than those of public corporations whose stock
is traded on the open market), partners, business trustees or
officers, or otherwise have an interest in or are associated with
each property.
(15) 'State Forester' means the State Forester or the duly
authorized representative of the State Forester.
(16) 'Suitable hardwood seedlings' means any hardwood seedling
that will eventually yield logs or fiber, or both, sufficient in
size and quality for the production of lumber, plywood, pulp or
other forest products.
(17) 'Timber owner' means any individual, combination of
individuals, partnership, corporation or association of whatever
nature, other than a landowner, that holds an ownership interest
in any forest tree species on forestland.
(18) 'Visually sensitive corridor' means forestland extending
outward 150 feet, measured on the slope, from the outermost edge
of the roadway of a scenic highway referred to in ORS 527.755,
along both sides for the full length of the highway.
(19) 'Wildlife leave trees' means trees or snags required to be
retained as described in ORS 527.676 (1).
(20) 'Written plan' means a plan submitted by an operator, for
written approval by the State Forester, which describes how the
operation will be conducted, including the means to protect
resource sites described in ORS 527.710 (3)(a) and information
required by ORS 527.745 and 527.750, if applicable.
SECTION 22. { + (1) The adoption or amendment of any goals,
guidelines or rules of any state agency required to implement the
provisions of section 2, 3 or 5 of this 2001 Act, the amendments
to statutes by sections 6 to 21 and 24 to 31 of this 2001 Act and
the repeal of ORS 215.317 and 215.327 by section 32 of this 2001
Act shall be completed by August 1, 2002. However, compliance
with the provisions of sections 2, 3 and 5 of this 2001 Act, the
amendments to statutes by sections 6 to 21 and 24 to 31 of this
2001 Act and the repeal of ORS 215.317 and 215.327 by section 32
of this 2001 Act is required during the period from the effective
date of this 2001 Act until the implementing goals, guidelines or
rules are adopted or amended.
(2) A local government shall enact or amend its comprehensive
plan and land use regulations by August 1, 2003, to implement the
provisions of sections 2, 3 and 5 of this 2001 Act, the
amendments to statutes by sections 6 to 21 and 24 to 31 of this
2001 Act and the repeal of ORS 215.317 and 215.327 by section 32
of this 2001 Act. + }
SECTION 23. { + (1) Until a local government adopts
comprehensive plan and land use regulations under section 22 of
this 2001 Act, the provisions of sections 2, 3 and 5 of this 2001
Act, the amendments to statutes by sections 6 to 21 and 24 to 31
of this 2001 Act and the repeal of ORS 215.317 and 215.327 by
section 32 of this 2001 Act apply to allow dwellings authorized
under section 3 (4) of this 2001 Act on land that meets the
description of secondary land in section 2 of this 2001 Act.
(2) Any portion of a goal, rule, comprehensive plan, land use
regulation or ordinance not in conformance with the provisions of
sections 2, 3 and 5 of this 2001 Act, the amendments to statutes
by sections 6 to 21 and 24 to 31 of this 2001 Act and the repeal
of ORS 215.317 and 215.327 by section 32 of this 2001 Act on the
effective date of this 2001 Act:
(a) Shall not be implemented or enforced; and
(b) Has no legal effect. + }
SECTION 24. ORS 94.508 is amended to read:
94.508. (1) A development agreement shall not be approved by
the governing body of a city or county unless the governing body
finds that the agreement is consistent with local regulations
then in place for the city or county.
(2) The governing body of a city or county shall approve a
development agreement or amend a development agreement by
adoption of an ordinance declaring approval or setting forth the
amendments to the agreement. Notwithstanding ORS 197.015
{ - (10)(b) - } { + (13)(b) + }, the approval or amendment of
a development agreement is a land use decision under ORS chapter
197.
SECTION 25. ORS 197.020 is amended to read:
197.020. Age, gender or physical disability shall not be an
adverse consideration in making a land use decision as defined in
ORS 197.015 { - (10) - } .
SECTION 26. ORS 197.505 is amended to read:
197.505. As used in ORS 197.505 to 197.540:
(1) 'Public facilities' means those public facilities for which
a public facilities plan is required under ORS 197.712.
(2) 'Special district' refers to only those entities as defined
in ORS 197.015 { - (19) - } { + (23) + } which provide
services for which public facilities plans are required.
SECTION 27. 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 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) - } { + (13)(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 28. ORS 215.304 is amended to read:
215.304. (1) The Land Conservation and Development Commission
shall not adopt or implement any rule to identify or designate
small-scale farmland or secondary land.
(2) Amendments required to conform rules to the provisions of
subsection (1) of this section and ORS 215.705 to 215.780 shall
be adopted by March 1, 1994.
(3) Any portion of a rule inconsistent with the provisions of
ORS 197.247 (1991 Edition), 215.213, 215.214 (1991 Edition),
215.288 (1991 Edition), 215.317 { + (1999 Edition) + }, 215.327
{ + (1999 Edition) + } and 215.337 (1991 Edition) or 215.705 to
215.780 on March 1, 1994:
(a) Shall not be implemented or enforced; and
(b) Has no legal effect.
SECTION 29. ORS 215.316 is amended to read:
215.316. (1) Unless a county applies the provisions of ORS
215.705 to 215.730 to land zoned for exclusive farm use, a county
that adopted marginal lands provisions under ORS 197.247 (1991
Edition), 215.213, 215.214 (1991 Edition), 215.288 (1991
Edition), 215.317 { + (1999 Edition) + }, 215.327 { + (1999
Edition) + } and 215.337 (1991 Edition) may continue to apply
those provisions. After January 1, 1993, no county may adopt
marginal lands provisions.
(2) If a county that had adopted marginal lands provisions
before January 1, 1993, subsequently sites a dwelling under ORS
215.705 to 215.750 on land zoned for exclusive farm use, the
county shall not later apply marginal lands provisions, including
those set forth in ORS 215.213, to lots or parcels other than
those to which the county applied the marginal lands provisions
before the county sited a dwelling under ORS 215.705 to 215.750.
SECTION 30. ORS 215.402 is amended to read:
215.402. As used in ORS 215.402 to 215.438 and 215.700 to
215.780 unless the context requires otherwise:
(1) 'Contested case' means a proceeding in which the legal
rights, duties or privileges of specific parties under general
rules or policies provided under ORS 215.010 to 215.213, 215.215
to 215.263, 215.283 to 215.293, { - 215.317, 215.327, - }
215.402 to 215.438 and 215.700 to 215.780, or any ordinance, rule
or regulation adopted pursuant thereto, are required to be
determined only after a hearing at which specific parties are
entitled to appear and be heard.
(2) 'Hearing' means a quasi-judicial hearing, authorized or
required by the ordinances and regulations of a county adopted
pursuant to ORS 215.010 to 215.213, 215.215 to 215.263, 215.283
to 215.293, { - 215.317, 215.327, - } 215.402 to 215.438 and
215.700 to 215.780:
(a) To determine in accordance with such ordinances and
regulations if a permit shall be granted or denied; or
(b) To determine a contested case.
(3) 'Hearings officer' means a planning and zoning hearings
officer appointed or designated by the governing body of a county
under ORS 215.406.
(4) 'Permit' means discretionary approval of a proposed
development of land under ORS 215.010 to 215.293, 215.317 to
215.438 and 215.700 to 215.780 or county legislation or
regulation adopted pursuant thereto. 'Permit' does not include:
(a) A limited land use decision as defined in ORS 197.015;
(b) A decision which determines the appropriate zoning
classification for a particular use by applying criteria or
performance standards defining the uses permitted within the
zone, and the determination applies only to land within an urban
growth boundary;
(c) A decision which determines final engineering design,
construction, operation, maintenance, repair or preservation of a
transportation facility which is otherwise authorized by and
consistent with the comprehensive plan and land use regulations;
or
(d) An action under ORS 197.360 (1).
SECTION 31. ORS 455.446 is amended to read:
455.446. (1)(a) New essential facilities described in ORS
455.447 (1)(a)(A), (B) and (G) and new special occupancy
structures described in ORS 455.447 (1)(e)(B), (C) and (E) shall
not be constructed in the tsunami inundation zone established
under paragraph (c) of this subsection. The provisions of this
paragraph apply to buildings with a capacity greater than 50
individuals for every public, private or parochial school through
secondary level and child care centers.
(b) The State Department of Geology and Mineral Industries
shall establish the parameters of the area of expected tsunami
inundation based on scientific evidence that may include geologic
field data and tsunami modeling.
(c) The governing board of the State Department of Geology and
Mineral Industries, by rule, shall determine the tsunami
inundation zone based on the parameters established by the
department. The board shall adopt the zone as determined by the
department under paragraph (b) of this subsection except as
modified by the board under paragraph (d) of this subsection.
(d) The board may grant exceptions to restrictions in the
tsunami inundation zone established under paragraph (c) of this
subsection after public hearing and a determination by the board
that the applicant has demonstrated that the safety of building
occupants will be ensured to the maximum reasonable extent:
(A) By addressing the relative risks within the zone.
(B) By balancing competing interests and other considerations.
(C) By considering mitigative construction strategies.
(D) By considering mitigative terrain modification.
(e) The provisions of paragraph (a) of this subsection do not
apply:
(A) To fire or police stations where there is a need for
strategic location; and
(B) To public schools if there is a need for the school to be
within the boundaries of a school district and this cannot
otherwise be accomplished.
(f) All materials supporting an application for an exception to
the tsunami inundation zone are public records under ORS 192.005
to 192.170 and shall be retained in the library of the department
for periods of time determined by its governing board.
(g) The applicant for an exception to the tsunami inundation
zone established under paragraph (c) of this subsection shall pay
any costs for department review of the application and the costs,
if any, of the approval process.
(2) The definitions in ORS 455.447 apply to this section.
(3) The provisions of this section do not apply to
water-dependent and water-related facilities, including but not
limited to docks, wharves, piers and marinas.
(4) Decisions made under this section are not land use
decisions { + as defined + } under ORS 197.015 { - (10) - } .
SECTION 32. { + ORS 215.317 and 215.327 are repealed. + }
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