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 3555
 
                         House Bill 3908
 
Sponsored by Representatives HASS, LEE; Representatives BARNHART,
  KAFOURY, KING, KRUSE, MONNES ANDERSON, NOLAN, Senators DECKERT,
  SHIELDS
 
 
                             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 elected or appointed local government official to
disclose conflict of interest in local land use proceeding.
Describes conflict of interest. Provides grounds for remand of
local government land use decision by Land Use Board of Appeals.
 
                        A BILL FOR AN ACT
Relating to disclosure of conflict of interest by official in
  certain land use proceedings; creating new provisions; and
  amending ORS 197.835.
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.  { + In order to ensure public confidence in the
impartiality of elected or appointed local government officials,
the Legislative Assembly hereby creates ethics standards as
described in section 3 of this 2001 Act for local government
officials making land use decisions. + }
  SECTION 3.  { + (1) An elected or appointed local government
official, before taking final action on an application for a land
use decision, limited land use decision, expedited land division
or permit, shall disclose any of the following, as applicable:
  (a) A past or present business relationship between the elected
or appointed official and one or more of the parties to the
proceeding or a representative of one of the parties;
  (b) A family relationship between the elected or appointed
official and one or more of the parties to the proceeding or a
representative of one of the parties; or
  (c) Campaign contributions to the elected official that:
  (A) Are from one or more of the parties to the proceeding or a
representative of one of the parties;
  (B) Total $500 or more during the preceding four years; and
  (C) Are known or should have been known to the elected
official.
  (2)(a) If the elected or appointed official making disclosure
under subsection (1) of this section is a member of a planning
commission or governing body of a city or county, the official
shall determine if the circumstances disclosed under subsection
(1) of this section will create an actual or apparent conflict of
interest or the appearance of bias or other impropriety. If an
actual or apparent conflict of interest or impropriety is
created, the elected or appointed official may not participate in
any decision of the commission or governing body taking final
action on the application.
  (b) If the elected or appointed official making disclosure
under subsection (1) of this section is a hearings officer
appointed under ORS 215.406 or 227.165, or a referee appointed
under ORS 197.375, a different hearings officer or referee shall
be appointed by the local government having jurisdiction over the
application.
  (3) An elected or appointed official may participate in a
decision under this section despite an actual or apparent
conflict of interest or the appearance of bias or other
impropriety if the participation of the official is required to
maintain a quorum necessary to render a final decision, provided
full disclosure is made on the record and is incorporated into
the written findings of the decision.
  (4) A failure to disclose as required under subsection (1) of
this section or to record disclosure under subsection (3) of this
section shall be grounds for remand on appeal to the Land Use
Board of Appeals under ORS 197.835.
  (5) Personal or political philosophy does not constitute a
conflict of interest or the appearance of bias or other
impropriety if the elected or appointed official can render an
objective decision based on the law and facts of the application.
  (6) As used in this section:
  (a) 'Family relationship' means the relationship between the
elected or appointed official and the official's spouse, son,
daughter, mother, father, brother, brother-in-law, sister,
sister-in-law, son-in-law, daughter-in-law, mother-in-law,
father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild,
grandparent or grandchild;
  (b) 'Permit' has the meaning given that term in ORS 215.402 or
227.160; and
  (c) 'Representative' means a person who is paid to represent a
party, including but not limited to an attorney, planning
consultant or expert witness. + }
  SECTION 4. ORS 197.835 is amended to read:
  197.835. (1) The Land Use Board of Appeals shall review the
land use decision or limited land use decision and prepare a
final order affirming, reversing or remanding the land use
decision or limited land use decision. The board shall adopt
rules defining the circumstances in which it will reverse rather
than remand a land use decision or limited land use decision that
is not affirmed.
  (2)(a) Review of a decision under ORS 197.830 to 197.845 shall
be confined to the record.
  (b) In the case of disputed allegations of standing,
unconstitutionality of the decision, ex parte contacts, actions
described in subsection (10)(a)(B) of this section or other
procedural irregularities not shown in the record that, if
proved, would warrant reversal or remand, the board may take
evidence and make findings of fact on those allegations. The
board shall be bound by any finding of fact of the local
government, special district or state agency for which there is
substantial evidence in the whole record.
  (3) Issues shall be limited to those raised by any participant
before the local hearings body as provided by ORS 197.195 or
197.763, whichever is applicable.
  (4) A petitioner may raise new issues to the board if:
  (a) The local government failed to list the applicable criteria
for a decision under ORS 197.195 (3)(c) or 197.763 (3)(b), in
which case a petitioner may raise new issues based upon
applicable criteria that were omitted from the notice. However,
the board may refuse to allow new issues to be raised if it finds
 
that the issue could have been raised before the local
government; or
  (b) The local government made a land use decision or limited
land use decision which is different from the proposal described
in the notice to such a degree that the notice of the proposed
action did not reasonably describe the local government's final
action.
  (5) The board shall reverse or remand a land use decision not
subject to an acknowledged comprehensive plan and land use
regulations if the decision does not comply with the goals. The
board shall reverse or remand a land use decision or limited land
use decision subject to an acknowledged comprehensive plan or
land use regulation if the decision does not comply with the
goals and the Land Conservation and Development Commission has
issued an order under ORS 197.320 or adopted a new or amended
goal under ORS 197.245 requiring the local government to apply
the goals to the type of decision being challenged.
  (6) The board shall reverse or remand an amendment to a
comprehensive plan if the amendment is not in compliance with the
goals.
  (7) The board shall reverse or remand an amendment to a land
use regulation or the adoption of a new land use regulation if:
  (a) The regulation is not in compliance with the comprehensive
plan; or
  (b) The comprehensive plan does not contain specific policies
or other provisions which provide the basis for the regulation,
and the regulation is not in compliance with the statewide
planning goals.
  (8) The board shall reverse or remand a decision involving the
application of a plan or land use regulation provision if the
decision is not in compliance with applicable provisions of the
comprehensive plan or land use regulations.
  (9) In addition to the review under subsections (1) to (8) of
this section, the board shall reverse or remand the land use
decision under review if the board finds:
  (a) The local government or special district:
  (A) Exceeded its jurisdiction;
  (B) Failed to follow the procedures applicable to the matter
before it in a manner that prejudiced the substantial rights of
the petitioner;
  (C) Made a decision not supported by substantial evidence in
the whole record;
  (D) Improperly construed the applicable law; or
  (E) Made an unconstitutional decision; or
  (b) The state agency made a decision that violated the goals.
  (10)(a) The board shall reverse a local government decision and
order the local government to grant approval of an application
for development denied by the local government if the board
finds:
  (A) Based on the evidence in the record, that the local
government decision is outside the range of discretion allowed
the local government under its comprehensive plan and
implementing ordinances; or
  (B) That the local government's action was for the purpose of
avoiding the requirements of ORS 215.427 or 227.178.
  (b) If the board does reverse the decision and orders the local
government to grant approval of the application, the board shall
award attorney fees to the applicant and against the local
government.
  (11)(a) Whenever the findings, order and record are sufficient
to allow review, and to the extent possible consistent with the
time requirements of ORS 197.830 (14), the board shall decide all
issues presented to it when reversing or remanding a land use
decision described in subsections (2) to (9) of this section or
limited land use decision described in ORS 197.828 and 197.195.
 
  (b) Whenever the findings are defective because of failure to
recite adequate facts or legal conclusions or failure to
adequately identify the standards or their relation to the facts,
but the parties identify relevant evidence in the record which
clearly supports the decision or a part of the decision, the
board shall affirm the decision or the part of the decision
supported by the record and remand the remainder to the local
government, with direction indicating appropriate remedial
action.
  (12) The board may reverse or remand a land use decision under
review due to ex parte contacts or bias resulting from ex parte
contacts with a member of the decision-making body, only if the
member of the decision-making body did not comply with ORS
215.422 (3) or 227.180 (3), whichever is applicable.
  (13) Subsection (12) of this section does not apply to reverse
or remand of a land use decision due to ex parte contact or bias
resulting from ex parte contact with a hearings officer.
  (14) The board shall reverse or remand a land use decision or
limited land use decision which violates a commission order
issued under ORS 197.328.
  (15) In cases in which a local government provides a
quasi-judicial land use hearing on a limited land use decision,
the requirements of subsections (12) and (13) of this section
apply.
  (16) The board may decide cases before it by means of
memorandum decisions and shall prepare full opinions only in such
cases as it deems proper.
   { +  (17) The board shall remand a land use decision, limited
land use decision or expedited land division made in violation of
the provisions of section 3 of this 2001 Act. + }
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