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 1922
A-Engrossed
House Bill 3925
Ordered by the House May 3
Including House Amendments dated May 3
Sponsored by COMMITTEE ON JUDICIARY
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.
Authorizes owner of real property to file declaratory judgment
action to seek judicial determination as to whether owner has
vested right to use of real property by reason of
{ - reasonable reliance on land use regulations. Provides that
court shall declare vested right exists if owner establishes by
substantial evidence that owner has made substantial expenditure
towards implementing use, land use regulations in effect when
owner made expenditure allowed proposed use, expenditure was
reasonably related to implementing proposed use, and expenditure
was not made in anticipation of changes in land use
regulations. - } { + having made substantial good faith
expenditures toward completing use permitted at time owner made
expenditures. Requires dismissal without prejudice of pending
claims of vested right if property owner requests. Allows
property owner to commence new proceeding under Act. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to vested rights to uses of real property; creating new
provisions; amending ORS 197.015; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) An owner of real property who has made
substantial good faith expenditures toward completing a
particular use that was permitted at the time the owner made the
expenditures may file a declaratory judgment action under ORS
chapter 28 to seek a judicial determination as to whether the
owner has a vested right to the use. The circuit court for the
county in which the real property is located has exclusive
jurisdiction of an action under this section.
(2) A vested right to a use may be determined to have been lost
by reason of the passage of time if there is a substantial delay
in completing implementation of the use and it is established by
substantial evidence that:
(a) The owner has abandoned implementation of the use; or
(b) The owner has recovered the owner's investment in
implementing the use, and considerations of health, safety or
welfare have intervened during the period of delay.
(3) Nothing in this section is intended to limit or otherwise
affect:
(a) The rights of the governing body of a county under ORS
215.130 or of an owner of real property under ORS 215.130; or
(b) Any rights associated with an application under ORS 215.427
(3) or 227.178 (3). + }
SECTION 2. ORS 197.015 is amended to read:
197.015. As used in ORS chapters 195, 196 and 197, unless the
context requires otherwise:
(1) 'Acknowledgment' means a commission order that certifies
that a comprehensive plan and land use regulations, land use
regulation or plan or regulation amendment complies with the
goals or certifies that Metro land use planning goals and
objectives, Metro regional framework plan, amendments to Metro
planning goals and objectives or amendments to the Metro regional
framework plan comply with the statewide planning goals.
(2) 'Board' means the Land Use Board of Appeals.
(3) 'Commission' means the Land Conservation and Development
Commission.
(4) 'Committee' means the Joint Legislative Committee on Land
Use.
(5) 'Comprehensive plan' means a generalized, coordinated land
use map and policy statement of the governing body of a local
government that interrelates all functional and natural systems
and activities relating to the use of lands, including but not
limited to sewer and water systems, transportation systems,
educational facilities, recreational facilities, and natural
resources and air and water quality management programs. '
Comprehensive' means all-inclusive, both in terms of the
geographic area covered and functional and natural activities and
systems occurring in the area covered by the plan. 'General
nature' means a summary of policies and proposals in broad
categories and does not necessarily indicate specific locations
of any area, activity or use. A plan is 'coordinated' when the
needs of all levels of governments, semipublic and private
agencies and the citizens of Oregon have been considered and
accommodated as much as possible. 'Land' includes water, both
surface and subsurface, and the air.
(6) 'Department' means the Department of Land Conservation and
Development.
(7) 'Director' means the Director of the Department of Land
Conservation and Development.
(8) 'Goals' means the mandatory statewide planning standards
adopted by the commission pursuant to ORS chapters 195, 196 and
197.
(9) 'Guidelines' means suggested approaches designed to aid
cities and counties in preparation, adoption and implementation
of comprehensive plans in compliance with goals and to aid state
agencies and special districts in the preparation, adoption and
implementation of plans, programs and regulations in compliance
with goals. Guidelines shall be advisory and shall not limit
state agencies, cities, counties and special districts to a
single approach.
(10) 'Land use decision':
(a) Includes:
(A) A final decision or determination made by a local
government or special district that concerns the adoption,
amendment or application of:
(i) The goals;
(ii) A comprehensive plan provision;
(iii) A land use regulation; or
(iv) A new land use regulation;
(B) A final decision or determination of a state agency other
than the commission with respect to which the agency is required
to apply the goals; or
(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 { + ; or
(C) Any decision in a declaratory judgment action under section
1 of this 2001 Act + }.
(11) 'Land use regulation' means any local government zoning
ordinance, land division ordinance adopted under ORS 92.044 or
92.046 or similar general ordinance establishing standards for
implementing a comprehensive plan.
(12) 'Limited land use decision' is a final decision or
determination made by a local government pertaining to a site
within an urban growth boundary which concerns:
(a) The approval or denial of a subdivision or partition, as
described in ORS chapter 92.
(b) The approval or denial of an application based on
discretionary standards designed to regulate the physical
characteristics of a use permitted outright, including but not
limited to site review and design review.
(13) 'Local government' means any city, county or metropolitan
service district formed under ORS chapter 268 or an association
of local governments performing land use planning functions under
ORS 195.025.
(14) 'Metro' means a metropolitan service district organized
under ORS chapter 268.
(15) 'Metro planning goals and objectives' means the land use
goals and objectives that a metropolitan service district may
adopt under ORS 268.380 (1)(a). The goals and objectives do not
constitute a comprehensive plan.
(16) 'Metro regional framework plan' means the regional
framework plan required by the 1992 Metro Charter or its separate
components. Neither the regional framework plan nor its
individual components constitute a comprehensive plan.
(17) 'New land use regulation' means a land use regulation
other than an amendment to an acknowledged land use regulation
adopted by a local government that already has a comprehensive
plan and land regulations acknowledged under ORS 197.251.
(18) 'Person' means any individual, partnership, corporation,
association, governmental subdivision or agency or public or
private organization of any kind. The Land Conservation and
Development Commission or its designee is considered a person for
purposes of appeal under ORS chapters 195 and 197.
(19) 'Special district' means any unit of local government,
other than a city, county, metropolitan service district formed
under ORS chapter 268 or an association of local governments
performing land use planning functions under ORS 195.025
authorized and regulated by statute and includes but is not
limited to: Water control districts, domestic water associations
and water cooperatives, irrigation districts, port districts,
regional air quality control authorities, fire districts, school
districts, hospital districts, mass transit districts and
sanitary districts.
(20) 'Voluntary association of local governments' means a
regional planning agency in this state officially designated by
the Governor pursuant to the federal Office of Management and
Budget Circular A-95 as a regional clearinghouse.
(21) 'Wetlands' means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
that are sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions.
SECTION 3. { + (1) Except as provided by subsection (2) of
this section, section 1 of this 2001 Act and the amendments to
ORS 197.015 by section 2 of this 2001 Act apply only to claims of
a vested right described in section 1 of this 2001 Act that arise
on or after the effective date of this 2001 Act.
(2) If a claim of a vested right is pending before the Land Use
Board of Appeals on the effective date of this 2001 Act, or is on
appeal from a decision of the Land Use Board of Appeals on the
effective date of this 2001 Act, the Land Use Board of Appeals or
appellate court shall dismiss without prejudice the proceeding
upon the motion of the property owner, and the property owner may
thereafter commence a proceeding under section 1 of this 2001
Act. + }
SECTION 4. { + This 2001 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2001 Act takes effect on its
passage. + }
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