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 90
Senate Bill 863
Sponsored by Senator GEORGE (at the request of Oregonians in
Action)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes Land Use Board of Magistrates as department of
Court of Appeals to replace Land Use Board of Appeals. Changes
title of board member to magistrate. Retains limited jurisdiction
of board.
Transfers power to appoint magistrates from Governor to Chief
Judge of Court of Appeals. Divests Governor of authority to
remove magistrates. Requires Chief Justice of Supreme Court to
establish magistrate salary. Requires magistrates to choose
presiding magistrate.
Directs Court of Appeals to review board decisions de novo.
Removes application of Oregon Evidence Code to board.
A BILL FOR AN ACT
Relating to Land Use Board of Appeals; creating new provisions;
and amending ORS 2.510, 19.005, 34.102, 40.015, 94.508,
133.005, 180.060, 183.310, 196.115, 196.684, 197.015, 197.020,
197.040, 197.195, 197.375, 197.505, 197.540, 197.620, 197.763,
197.796, 197.810, 197.815, 197.820, 197.825, 197.828, 197.829,
197.830, 197.831, 197.832, 197.835, 197.840, 197.850, 215.416,
215.435, 227.175, 227.181, 442.015, 442.760, 455.446, 466.385
and 527.765 and section 9, chapter 849, Oregon Laws 1999.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 197.810 is amended to read:
197.810. { - (1) There is hereby created a Land Use Board of
Appeals consisting of not more than three positions. Board
members shall be appointed by the Governor subject to
confirmation by the Senate in the manner provided in ORS 171.562
and 171.565. The board shall consist of a board chairperson
chosen by the board members and such other board members as the
Governor considers necessary. The members of the board shall
serve terms of four years. A member is eligible for
reappointment. The salaries of the members shall be fixed by the
Governor unless otherwise provided for by law. The salary of a
member of the board shall not be reduced during the period of
service of the member. - }
{ - (2) The Governor may at any time remove any member of the
board for inefficiency, incompetence, neglect of duty,
malfeasance in office or unfitness to render effective service.
Before such removal the Governor shall give the member a copy of
the charges against the member and shall fix the time when the
member can be heard in defense against the charges, which shall
not be less than 10 days thereafter. The hearing shall be open to
the public and shall be conducted in the same manner as a
contested case under ORS 183.310 to 183.550. The decision of the
Governor to remove a member of the board shall be subject to
judicial review in the same manner as provided for review of
contested cases under ORS 183.480 to 183.550. - }
{ - (3) Board members appointed under subsection (1) of this
section shall be members in good standing of the Oregon State
Bar. - }
{ + (1) The Land Use Board of Magistrates is established as a
department of the Court of Appeals. The board, in cases within
its jurisdiction pursuant ORS 197.825, is a court of record and
has and may exercise all ordinary and extraordinary legal,
equitable and provisional remedies available in the Court of
Appeals, as well as such additional remedies as may be assigned
to it.
(2) In an appropriate case, 'Court of Appeals' may include
either the court of justice described in ORS 2.540 or the Land
Use Board of Magistrates department, or both, and 'judge' may
include a judge of the court of justice described in ORS 2.540 or
a magistrate of the Land Use Board of Magistrates department, or
both. + }
SECTION 2. { + The Land Use Board of Magistrates shall consist
of three magistrates. The magistrates shall be appointed by the
Chief Judge of the Court of Appeals for terms of four years. A
magistrate is eligible for reappointment. In the event of a
vacancy on the board, the vacancy shall be filled by an
appointment made by the Chief Judge. The Chief Judge may request
that the Board of Governors of the Oregon State Bar submit to the
Chief Judge the names of five or more eligible persons deemed by
them to be particularly experienced in the field of land use, as
an aid to the Chief Judge in making the appointments. + }
SECTION 3. { + (1) The presiding magistrate and magistrates of
the Land Use Board of Magistrates shall receive such salary as is
fixed under the personnel plan established by the Chief Justice
of the Supreme Court pursuant to ORS 1.008. The salary of a
magistrate may not be reduced during the term of office of that
magistrate. A magistrate may not receive other allowances for
services except as authorized by this section.
(2) When a magistrate of the board holds court or performs any
other official function away from the state capital, hotel bills
and traveling expenses necessarily incurred by the magistrate in
the performance of that duty shall be paid by the state. Such
expenses are to be paid upon the certificate of the magistrate to
the truth of an itemized statement of the expenses. The
certificate of expenses is a sufficient voucher upon which the
claim shall be paid as provided in ORS 293.295 to 293.462. The
Oregon Department of Administrative Services shall draw a warrant
upon the State Treasurer for the amount thereof in favor of the
magistrate.
(3) The magistrates of the board shall be subject to the
provisions of ORS 1.310 and 238.505 relating to disability and
retirement to the same extent and in the same manner as a judge
of a circuit court. A magistrate shall be subject to the
provisions of law relating to retirement for disability and
retirement applicable to a state officer or employee. + }
SECTION 4. { + A magistrate of the Land Use Board of
Magistrates shall be a citizen of the United States and of this
state and shall be a member in good standing of the Oregon State
Bar. Before entering upon the duties of office, the magistrate
shall take and subscribe to an oath or affirmation for the
faithful discharge of the duties of the office, and the oath
shall be filed in the office of the Secretary of State.
SECTION 5. (1) The presiding magistrate of the Land Use Board
of Magistrates shall be a magistrate of the board selected by
vote of a majority of the magistrates of the board. The
magistrates shall endeavor to select a magistrate who is well
qualified to act as the administrative head of the board.
(2) The presiding magistrate shall assign causes, matters and
proceedings and apportion the business of the board. + }
SECTION 6. ORS 197.815 is amended to read:
197.815. (1) The principal office of the Land Use Board of
{ - Appeals - } { + Magistrates + } shall be in the state
capital, but the board may hold hearings in any county { - or
city - } { + seat designated under ORS 1.085 (2) + } in order
to provide reasonable opportunities to parties to appear before
the board with as little inconvenience and expense as is
practicable. Upon request of the board, the county { - or city
governing body - } { + court or board of county
commissioners + } shall provide the board with suitable rooms for
hearings held in that { - city or - } county { + seat + }.
(2) { + Notwithstanding ORS 1.080 and 1.085, + } for the
convenience of one or more of the parties, the board may hold
hearings by telephone.
SECTION 7. ORS 197.820 is amended to read:
197.820. (1) The Land Use Board of { - Appeals - }
{ + Magistrates + } shall conduct review proceedings upon
petitions filed in the manner prescribed in ORS 197.830.
(2) In conducting review proceedings the { - members - }
{ + magistrates + } of the board may sit together or separately
as the
{ - board chairperson - } { + presiding magistrate + } shall
decide.
(3) The { - board chairperson - } { + presiding
magistrate + } shall apportion the business of the board among
the { - members - } { + magistrates + } of the board. Each
{ - member - } { + magistrate + }shall have the power to
hear { + , exercise remedies + } and issue orders on petitions
filed with the board and on all issues arising under those
petitions.
(4) The board shall adopt rules { + , with consent of the Chief
Judge of the Court of Appeals, + } governing the conduct of
review proceedings brought before it under ORS 197.830 to
197.845.
SECTION 8. 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 { + and notwithstanding ORS
2.516 + }, the Land Use Board of { - Appeals - }
{ + Magistrates + } 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) - } { + (11)(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 9. ORS 197.830 is amended to read:
197.830. (1) Review of land use decisions or limited land use
decisions under ORS 197.830 to 197.845 shall be commenced by
filing a notice of intent to appeal with the Land Use Board of
{ - Appeals - } { + Magistrates + }.
(2) Except as provided in ORS 197.620 (1) and (2), a person may
petition the board for review of a land use decision or limited
land use decision if the person:
(a) Filed a notice of intent to appeal the decision as provided
in subsection (1) of this section; and
(b) Appeared before the local government, special district or
state agency orally or in writing.
(3) If a local government makes a land use decision without
providing a hearing, except as provided under ORS 215.416 (11) or
227.175 (10), or the local government makes a land use decision
that is different from the proposal described in the notice of
hearing to such a degree that the notice of the proposed action
did not reasonably describe the local government's final actions,
a person adversely affected by the decision may appeal the
decision to the board under this section:
(a) Within 21 days of actual notice where notice is required;
or
(b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
(4) If a local government makes a land use decision without a
hearing pursuant to ORS 215.416 (11) or 227.175 (10):
(a) A person who was not provided mailed notice of the decision
as required under ORS 215.416 (11)(c) or 227.175 (10)(c) may
appeal the decision to the board under this section within 21
days of receiving actual notice of the decision.
(b) A person who is not entitled to notice under ORS 215.416
(11)(c) or 227.175 (10)(c) but who is adversely affected or
aggrieved by the decision may appeal the decision to the board
under this section within 21 days after the expiration of the
period for filing a local appeal of the decision established by
the local government under ORS 215.416 (11)(a) or 227.175
(10)(a).
(c) A person who receives mailed notice of a decision made
without a hearing under ORS 215.416 (11) or 227.175 (10) may
appeal the decision to the board under this section within 21
days of receiving actual notice of the nature of the decision, if
the mailed notice of the decision did not reasonably describe the
nature of the decision.
(d) Except as provided in paragraph (c) of this subsection, a
person who receives mailed notice of a decision made without a
hearing under ORS 215.416 (11) or 227.175 (10) may not appeal the
decision to the board under this section.
(5) If a local government makes a 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 actions, a
person adversely affected by the decision may appeal the decision
to the board under this section:
(a) Within 21 days of actual notice where notice is required;
or
(b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
(6)(a) Except as provided in paragraph (b) of this subsection,
the appeal periods described in subsections (3), (4) and (5) of
this section shall not exceed three years after the date of the
decision.
(b) If notice of a hearing or an administrative decision made
pursuant to ORS 197.195 or 197.763 is required but has not been
provided, the provisions of paragraph (a) of this subsection do
not apply.
(7)(a) Within 21 days after a notice of intent to appeal has
been filed with the board under subsection (1) of this section,
any person may intervene in and be made a party to the review
proceeding upon a showing of compliance with subsection (2) of
this section.
(b) Notwithstanding the provisions of paragraph (a) of this
subsection, persons who may intervene in and be made a party to
the review proceedings, as set forth in subsection (1) of this
section, are:
(A) The applicant who initiated the action before the local
government, special district or state agency; or
(B) Persons who appeared before the local government, special
district or state agency, orally or in writing.
(c) Failure to comply with the deadline set forth in paragraph
(a) of this subsection shall result in denial of a motion to
intervene.
(8) If a state agency whose order, rule, ruling, policy or
other action is at issue is not a party to the proceeding, it may
file a brief with the board as if it were a party. The brief
shall be due on the same date the respondent's brief is due.
(9) A notice of intent to appeal a land use decision or limited
land use decision shall be filed not later than 21 days after the
date the decision sought to be reviewed becomes final. A notice
of intent to appeal plan and land use regulation amendments
processed pursuant to ORS 197.610 to 197.625 shall be filed not
later than 21 days after notice of the decision sought to be
reviewed is mailed or otherwise submitted to parties entitled to
notice under ORS 197.615. Failure to include a certificate of
mailing with the notice mailed under ORS 197.615 shall not render
the notice defective. Copies of the notice of intent to appeal
shall be served upon the local government, special district or
state agency and the applicant of record, if any, in the local
government, special district or state agency proceeding. The
notice shall be served and filed in the form and manner
prescribed by rule of the board and shall be accompanied by a
filing fee of $175 and a deposit for costs to be established by
the board. If a petition for review is not filed with the board
as required in subsections (10) and (11) of this section, the
filing fee and deposit shall be awarded to the local government,
special district or state agency as cost of preparation of the
record.
(10)(a) Within 21 days after service of the notice of intent to
appeal, the local government, special district or state agency
shall transmit to the board the original or a certified copy of
the entire record of the proceeding under review. By stipulation
of all parties to the review proceeding the record may be
shortened. The board may require or permit subsequent corrections
to the record; however, the board shall issue an order on a
motion objecting to the record within 60 days of receiving the
motion.
(b) Within 10 days after service of a notice of intent to
appeal, the board shall provide notice to the petitioner and the
respondent of their option to enter into mediation pursuant to
ORS 197.860. Any person moving to intervene shall be provided
such notice within seven days after a motion to intervene is
filed. The notice required by this paragraph shall be accompanied
by a statement that mediation information or assistance may be
obtained from the Department of Land Conservation and
Development, the coordinating agency for the Natural Resources
Section of the Public Policy Dispute Resolution Program.
(11) A petition for review of the land use decision or limited
land use decision and supporting brief shall be filed with the
board as required by the board under subsection (13) of this
section.
(12) The petition shall include a copy of the decision sought
to be reviewed and shall state:
(a) The facts that establish that the petitioner has standing.
(b) The date of the decision.
(c) The issues the petitioner seeks to have reviewed.
(13)(a) The board shall adopt rules establishing deadlines for
filing petitions and briefs and for oral argument.
(b) At any time subsequent to the filing of a notice of intent
and prior to the date set for filing the record, the local
government or state agency may withdraw its decision for purposes
of reconsideration. If a local government or state agency
withdraws an order for purposes of reconsideration, it shall,
within such time as the board may allow, affirm, modify or
reverse its decision. If the petitioner is dissatisfied with the
local government or agency action after withdrawal for purposes
of reconsideration, the petitioner may refile the notice of
intent and the review shall proceed upon the revised order. An
amended notice of intent shall not be required if the local
government or state agency, on reconsideration, affirms the order
or modifies the order with only minor changes.
(14) The board shall issue a final order within 77 days after
the date of transmittal of the record. If the order is not issued
within 77 days the applicant may apply in Marion County or the
circuit court of the county where the application was filed for a
writ of mandamus to compel the board to issue a final order.
(15)(a) { + Notwithstanding ORS chapter 20, + } upon entry of
its final order the board may, in its discretion, award costs to
the prevailing party including the cost of preparation of the
record if the prevailing party is the local government, special
district or state agency whose decision is under review. The
deposit required by subsection (9) of this section shall be
applied to any costs charged against the petitioner.
(b) The board shall also award reasonable attorney fees and
expenses to the prevailing party against any other party who the
board finds presented a position without probable cause to
believe the position was well-founded in law or on factually
supported information.
(16) Orders issued under this section may be enforced in
appropriate judicial proceedings.
(17)(a) { + Notwithstanding ORS 2.150, + } the board shall
provide for the publication of its orders that are of general
public interest in the form it deems best adapted for public
convenience. The publications shall constitute the official
reports of the board.
(b) Any moneys collected or received from sales by the board
shall be paid into the Board Publications Account established by
ORS 197.832.
(18) { + Notwithstanding ORS 2.165, + } except for any sums
collected for publication of board opinions, all fees collected
by the board under this section that are not awarded as costs
shall be paid over to the State Treasurer to be credited to the
General Fund.
SECTION 10. ORS 197.832 is amended to read:
197.832. The Board Publications Account is established in the
General Fund. All moneys in the account are appropriated
continuously to the Land Use Board of { - Appeals - }
{ + Magistrates + } to be used for paying expenses incurred by
the board under ORS 197.830 (17). Disbursements of moneys from
the account shall be approved by a { - member - }
{ + magistrate + } of the board.
SECTION 11. ORS 197.840 is amended to read:
197.840. (1) The following periods of delay shall be excluded
from the 77-day period within which the { - board - }
{ + Land Use Board of Magistrates + } must make a final decision
on a petition under ORS 197.830 (14):
(a) Any period of delay up to 120 days resulting from the
board's deferring all or part of its consideration of a petition
for review of a land use decision or limited land use decision
that allegedly violates the goals if the decision has been:
(A) Submitted for acknowledgment under ORS 197.251; or
(B) Submitted to the Department of Land Conservation and
Development as part of a periodic review work program task
pursuant to ORS 197.628 to 197.650 and not yet acknowledged.
(b) Any period of delay resulting from a motion, including but
not limited to, a motion disputing the constitutionality of the
decision, standing, ex parte contacts or other procedural
irregularities not shown in the record.
(c) Any reasonable period of delay resulting from a request for
a stay under ORS 197.845.
(d) Any reasonable period of delay resulting from a continuance
granted by a { - member - } { + magistrate + } of the board
on the
{ - member's - } { + magistrate's + } own motion or at the
request of one of the parties, if the { - member - }
{ + magistrate + } granted the continuance on the basis of
findings that the ends of justice served by granting the
continuance outweigh the best interest of the public and the
parties in having a decision within 77 days.
(2) No period of delay resulting from a continuance granted by
the board under subsection (1)(d) of this section shall be
excludable under this section unless the board sets forth in the
record, either orally or in writing, its reasons for finding that
the ends of justice served by granting the continuance outweigh
the best interests of the public and the other parties in a
decision within the 77 days. The factors the board shall consider
in determining whether to grant a continuance under subsection
(1)(d) of this section in any case are as follows:
(a) Whether the failure to grant a continuance in the
proceeding would be likely to make a continuation of the
proceeding impossible or result in a miscarriage of justice; or
(b) Whether the case is so unusual or so complex, due to the
number of parties or the existence of novel questions of fact or
law, that it is unreasonable to expect adequate consideration of
the issues within the 77-day time limit.
(3) No continuance under subsection (1)(d) of this section
shall be granted because of general congestion of the board
calendar or lack of diligent preparation or attention to the case
by any { - member - } { + magistrate + } of the board or any
party.
(4) The board may defer all or part of its consideration of a
land use decision or limited land use decision described in
subsection (1)(a) of this section until the Land Conservation and
Development Commission has disposed of the acknowledgment
proceeding described in subsection (1)(a) of this section. If the
board deferred all or part of its consideration of a decision
under this subsection, the board may grant a stay of the
comprehensive plan provision, land use regulation, limited land
use decision or land use decision under ORS 197.845.
SECTION 12. ORS 197.850 is amended to read:
197.850. (1) Any party to a proceeding before the Land Use
Board of { - Appeals - } { + Magistrates + } under ORS
197.830 to 197.845 may seek judicial review of a final order
issued in those proceedings.
(2) Notwithstanding { - the provisions of - } ORS
{ - 183.480 to 183.550 - } { + 2.520 + }, judicial review of
orders issued under ORS 197.830 to 197.845 shall be solely as
provided in this section.
(3)(a) Jurisdiction for judicial review of proceedings under
ORS 197.830 to 197.845 is conferred upon the Court of Appeals.
Proceedings for judicial review shall be instituted by filing a
petition in the Court of Appeals. The petition shall be filed
within 21 days following the date the board delivered or mailed
the order upon which the petition is based.
(b) Filing of the petition, as set forth in paragraph (a) of
this subsection, and service of a petition on all persons
identified in the petition as adverse parties of record in the
board proceeding is jurisdictional and may not be waived or
extended.
(4) The petition shall state the nature of the order the
petitioner desires reviewed. Copies of the petition shall be
served by registered or certified mail upon the board, and all
other parties of record in the board proceeding.
(5) Within seven days after service of the petition, the board
shall transmit to the court the original or a certified copy of
the entire record of the proceeding under review { - , but, by
stipulation of all parties to the review proceeding, the record
may be shortened. Any party unreasonably refusing to stipulate to
limit the record may be taxed by the court for the additional
costs. The court may require or permit subsequent corrections or
additions to the record when deemed desirable - } . Except as
specifically provided in this subsection, the cost of the record
shall not be taxed to the petitioner or any intervening party.
However, the court may tax such costs and the cost of
transcription of record to a party filing a frivolous petition
for judicial review.
(6) Petitions and briefs shall be filed within time periods and
in a manner established by the Court of Appeals by rule.
(7)(a) The court shall hear oral argument within 49 days of the
date of transmittal of the record.
(b) The court may hear oral argument more than 49 days from the
date of transmittal of the record provided the court determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. The court shall not hold oral argument more than 49 days
from the date of transmittal of the record because of general
congestion of the court calendar or lack of diligent preparation
or attention to the case by any member of the court or any party.
(c) The court shall set forth in writing a determination to
hear oral argument more than 49 days from the date the record is
transmitted, together with the reasons for its determination, and
shall provide a copy to the parties. The court shall schedule
oral argument as soon as practicable thereafter.
(d) In making a determination under paragraph (b) of this
subsection, the court shall consider:
(A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the court to prepare for oral argument;
and
(B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
(8) Judicial review of an order issued under ORS 197.830 to
197.845 shall be { + de novo. + } { - confined to the record.
The court shall not substitute its judgment for that of the board
as to any issue of fact. - }
(9) The court may affirm, reverse or remand the order. The
court shall reverse or remand the order only if it finds:
(a) The order to be unlawful in substance or procedure, but
error in procedure shall not be cause for reversal or remand
unless the court shall find that substantial rights of the
petitioner were prejudiced thereby; { + or + }
(b) The order to be unconstitutional { + . + } { - ; or - }
{ - (c) The order is not supported by substantial evidence in
the whole record as to facts found by the board under ORS 197.835
(2). - }
(10) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
(11) If the order of the board is remanded by the Court of
Appeals or the Supreme Court, the board shall respond to the
court's appellate judgment within 30 days.
(12) A party shall file with the board an undertaking with one
or more sureties insuring that the party will pay all costs,
disbursements and attorney fees awarded against the party by the
Court of Appeals if:
(a) The party appealed a decision of the board to the Court of
Appeals; and
(b) In making the decision being appealed to the Court of
Appeals, the board awarded attorney fees and expenses against
that party under ORS 197.830 (15)(b).
(13) Upon entry of its final order, the court shall award
attorney fees and expenses to a party who prevails on a claim
that an approval condition imposed by a local government on an
application for a permit pursuant to ORS 215.416 or 227.175 is
unconstitutional under section 18, Article I, Oregon
Constitution, or the Fifth Amendment to the United States
Constitution.
(14) The undertaking required in subsection (12) of this
section shall be filed with the board and served on the opposing
parties within 10 days after the date the petition was filed with
the Court of Appeals.
SECTION 13. Section 9, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec 9. + } (1) Except as provided in this section, all
agencies must use hearing officers assigned from the Hearing
Officer Panel established under section 3 { + , chapter 849,
Oregon Laws 1999, + } { - of this 1999 Act - } to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use hearing officers
assigned from the panel:
(a) The Department of Education, the State Board of Education
and the Superintendent of Public Instruction.
(b) Employment Appeals Board.
(c) Employment Relations Board.
(d) Public Utility Commission.
(e) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
(f) Land Conservation and Development Commission.
{ - (g) Land Use Board of Appeals. - }
{ - (h) - } { + (g) + } Department of Revenue.
{ - (i) - } { + (h) + } Local government boundary
commissions created pursuant to ORS 199.425 or 199.430.
{ - (j) - } { + (i) + } State Accident Insurance Fund
Corporation.
{ - (k) - } { + (j) + } Psychiatric Security Review Board.
{ - (L) - } { + (k) + } State Board of Parole and
Post-Prison Supervision.
{ - (m) - } { + (L) + } Department of Corrections.
{ - (n) - } { + (m) + } Energy Facility Siting Council.
{ - (o) - } { + (n) + } Vocational Rehabilitation Division.
{ - (p) - } { + (o) + } Secretary of State.
{ - (q) - } { + (p) + } State Treasurer.
{ - (r) - } { + (q) + } Attorney General.
{ - (s) - } { + (r) + } Fair Dismissal Appeals Board.
{ - (t) - } { + (s) + } Department of State Police.
{ - (u) - } { + (t) + } Oregon Youth Authority.
{ - (v) - } { + (u) + } Boards of stewards appointed by the
Oregon Racing Commission.
{ - (w) - } { + (v) + } The Department of Higher Education
and the institutions of higher education listed in ORS 352.002.
{ - (x) - } { + (w) + } The Governor.
{ - (y) - } { + (x) + } State Land Board.
(3) The Workers' Compensation Board is exempt from using
hearing officers assigned from the panel for any hearing
conducted by the board under ORS chapters 147, 654 and 656. The
Director of the Department of Consumer and Business Services must
use hearing officers assigned from the panel for all contested
case hearings regarding matters other than those concerning a
claim under ORS chapter 656, as provided in ORS 656.704 (2).
Except as specifically provided in this subsection, the
Department of Consumer and Business Services must use hearing
officers assigned from the panel only for contested cases arising
out of the department's powers and duties under:
(a) ORS chapter 59;
(b) ORS 200.005 to 200.075;
(c) ORS chapter 455;
(d) ORS chapter 674;
(e) ORS chapters 706 to 716;
(f) ORS chapter 717;
(g) ORS chapters 722, 723, 725 and 726; and
(h) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 744,
746, 748 and 750.
(4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use a hearing
officer assigned from the panel, an officer or employee of the
agency may not conduct the hearing on behalf of the agency.
(5) Notwithstanding any other provision of sections 2 to
21 { + , chapter 849, Oregon Laws 1999 + } { - of this 1999
Act - } , no agency shall be required to use a hearing officer
assigned from the panel if:
(a) Federal law requires that a different hearing officer be
used; or
(b) Use of a hearing officer from the panel could result in a
loss of federal funds.
(6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use hearing officers
assigned from the panel only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
SECTION 14. ORS 2.510 is amended to read:
2.510. { + (1) + } As part of the judicial branch of state
government, there is created a court of justice to be known as
the Court of Appeals.
{ + (2) As used in ORS 2.510 to 2.590, unless the context
requires otherwise, 'Court of Appeals' means the court of justice
described in ORS 2.540, but does not mean the Land Use Board of
Magistrates department of the Court of Appeals created in ORS
197.810. + }
SECTION 15. ORS 19.005 is amended to read:
19.005. As used in this chapter:
(1) 'Exhibits' means exhibits offered and received or rejected
in the trial court.
{ + (2) 'Court of Appeals' means the court of justice
described in ORS 2.540, but does not mean the Land Use Board of
Magistrates department. + }
{ - (2) - } { + (3) + } 'Judgment' means judgment, decree
or appealable order, as provided in ORS 19.205.
{ - (3) - } { + (4) + } 'Notice of appeal' includes a
notice of cross-appeal.
{ - (4) - } { + (5) + } 'Record' or 'record of the case'
means the trial court file and any transcript, narrative
statement and exhibits.
{ - (5) - } { + (6) + } 'Supersedeas undertaking' means an
undertaking on appeal that secures performance of a judgment
being appealed and operates to stay enforcement of the judgment
pending appeal.
{ - (6) - } { + (7) + } 'Transcript' means the transcript
of the court reporter's report as provided in ORS 8.340, 8.350
and 8.360 and any transcript of an audio record prepared under
ORS 19.370.
{ - (7) - } { + (8) + } 'Trial court file' means all the
original papers filed in the trial court whether before or after
judgment, including but not limited to the summons and proof of
service thereof, pleadings, motions, affidavits, depositions,
stipulations, orders, jury instructions, the judgment, the notice
of appeal and the undertaking on appeal.
{ - (8) - } { + (9) + } 'Undertaking for costs' means an
undertaking on appeal that secures payment of costs and
disbursements that may be awarded against an appellant on appeal,
and any amounts that may be awarded to the respondent under the
provisions of ORS 19.445.
{ - (9) - } { + (10) + } 'Undertaking on appeal' means a
promise secured by sureties or by money, bond or any other
security described in ORS 22.020. 'Undertaking on appeal'
includes undertakings for costs and supersedeas undertakings.
SECTION 16. ORS 40.015 is amended to read:
40.015. (1) The Oregon Evidence Code applies to all courts in
this state except for:
(a) A tax court small claims procedure or a hearing or
mediation before a magistrate of the Oregon Tax Court as provided
by ORS 305.501;
(b) The small claims department of a circuit court as provided
by ORS 46.415; { - and - }
(c) The small claims department of a justice court as provided
by ORS 55.080 { + ; and
(d) The Land Use Board of Magistrates department of the Court
of Appeals + }.
(2) The Oregon Evidence Code applies generally to civil
actions, suits and proceedings, criminal actions and proceedings
and to contempt proceedings except those in which the court may
act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all
stages of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in
the following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by
the court under ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS
133.743 to 133.857.
(d) Sentencing proceedings, except proceedings under ORS
138.012 and 163.150 or as required by ORS 137.090.
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or
preliminary hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 (3).
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under
the influence of intoxicants diversion agreement should be
allowed or terminated.
SECTION 17. ORS 133.005 is amended to read:
133.005. As used in ORS 131.655 and 133.005 to 133.381 and
133.410 to 133.450, unless the context requires otherwise:
(1) 'Arrest' means to place a person under actual or
constructive restraint or to take a person into custody for the
purpose of charging that person with an offense. A 'stop' as
authorized under ORS 131.605 to 131.625 is not an arrest.
{ + (2) 'Court of Appeals' means the court of justice
described in ORS 2.540, but does not mean the Land Use Board of
Magistrates department. + }
{ - (2) - } { + (3) + } 'Federal officer' means a special
agent or law enforcement officer employed by a federal agency and
who is empowered to effect an arrest with or without a warrant
for violations of the United States Code and who is authorized to
carry firearms in the performance of duty.
{ - (3) - } { + (4) + } 'Peace officer' means a member of
the Oregon State Police or a sheriff, constable, marshal,
municipal police officer, investigator of a district attorney's
office if the investigator is or has been certified as a peace
officer in this or any other state, or an investigator of the
Criminal Justice Division of the Department of Justice of the
State of Oregon.
SECTION 18. ORS 180.060 is amended to read:
180.060. (1) The Attorney General shall:
(a) Appear for the state in the trial of all civil and criminal
causes in the Supreme Court or the Court of Appeals in which the
state may be directly or indirectly interested.
(b) Appear for the state, when required by the Governor or the
legislature, in any court or tribunal in any cause in which the
state is a party or in which the state is directly interested.
(c) Appear, commence, prosecute or defend for the state all
causes or proceedings in the Supreme Court or the Court of
Appeals in which the state is a party or interested.
(d) Appear, commence, prosecute or defend any action, suit,
matter, cause or proceeding in any court when requested by any
state officer, board or commission when, in the discretion of the
Attorney General, the same may be necessary or advisable to
protect the interests of the state.
(2) The Attorney General shall give opinion in writing, when
requested, upon any question of law in which the State of Oregon
or any public subdivision thereof may have an interest, submitted
to the Attorney General by the Governor, any officer, department,
agency, board or commission of the state or any member of the
legislature.
(3)(a) Except as provided in paragraph (b) of this subsection,
the Attorney General shall not render opinions or give legal
advice to others than such state officers listed in subsection
(2) of this section.
(b) The Attorney General may, at the request of a state officer
listed in subsection (2) of this section, render an opinion to an
officer, agency or instrumentality of the federal government if
the Attorney General determines that providing the opinion is
necessary to meet a condition for assumption by the state of
administrative or enforcement responsibilities under federal law.
(4) The Attorney General shall consult with, advise and direct
the district attorneys in all criminal causes and matters
relating to state affairs in their respective counties. The
Attorney General may require their aid and assistance in all
matters pertaining to the duties of the Attorney General in their
respective counties and may, in any case brought to the Supreme
Court or the Court of Appeals from their respective counties,
demand and receive assistance of the district attorney from whose
county such case or matter is brought.
(5) The Attorney General shall, when requested, perform all
legal services for the state or any department or officer of the
state.
(6) The Attorney General shall have all the power and authority
usually appertaining to such office and shall perform the duties
otherwise required of the Attorney General by law.
(7) The Attorney General shall assign to each agency,
department, board or commission an assistant who shall be its
counsel responsible for insuring the performance of the legal
services requested by such agency, department, board or
commission. The counsel shall be a person trained in the law
concerning such agency, department, board or commission and shall
be approved by the chief administrator thereof, provided,
however, such approval shall not be unreasonably withheld. Such
approval may be withdrawn at any time by the chief administrator
and thereupon the Attorney General shall assign replacement
counsel to the agency, department, board or commission.
(8) The Attorney General shall not appear on behalf of any
officer, department, agency, board or commission without its
consent in any action, suit, matter, cause or proceeding in any
court or before any other federal or state regulatory body.
(9) The responsibility of establishing policies for each
agency, department, board or commission shall rest upon the chief
administrator thereof.
{ + (10) For the purposes of this section, 'Court of Appeals
' means the court of justice described in ORS 2.540, but does not
mean the Land Use Board of Magistrates department. + }
SECTION 19. ORS 183.310 is amended to read:
183.310. As used in ORS 183.310 to 183.550:
(1) 'Agency' means any state board, commission, department, or
division thereof, or officer authorized by law to make rules or
to issue orders, except those in the legislative and judicial
branches.
(2)(a) 'Contested case' means a proceeding before an agency:
(A) In which the individual legal rights, duties or privileges
of specific parties are required by statute or Constitution to be
determined only after an agency hearing at which such specific
parties are entitled to appear and be heard;
(B) Where the agency has discretion to suspend or revoke a
right or privilege of a person;
(C) For the suspension, revocation or refusal to renew or issue
a license where the licensee or applicant for a license demands
such hearing; or
(D) Where the agency by rule or order provides for hearings
substantially of the character required by ORS 183.415, 183.425,
183.450, 183.460 and 183.470.
(b) 'Contested case' does not include proceedings in which an
agency decision rests solely on the result of a test.
{ + (3) 'Court of Appeals' means the court of justice
described in ORS 2.540, but does not mean the Land Use Board of
Magistrates department. + }
{ - (3) - } { + (4) + } 'Economic effect' means the
economic impact on affected businesses by and the costs of
compliance, if any, with a rule for businesses, including but not
limited to the costs of equipment, supplies, labor and
administration.
{ - (4) - } { + (5) + } 'License' includes the whole or
part of any agency permit, certificate, approval, registration or
similar form of permission required by law to pursue any
commercial activity, trade, occupation or profession.
{ - (5)(a) - } { + (6)(a) + } 'Order' means any agency
action expressed orally or in writing directed to a named person
or named persons, other than employees, officers or members of an
agency. 'Order ' includes any agency determination or decision
issued in connection with a contested case proceeding. 'Order'
includes:
(A) Agency action under ORS chapter 657 making determination
for purposes of unemployment compensation of employees of the
state; and
(B) Agency action under ORS chapter 240 which grants, denies,
modifies, suspends or revokes any right or privilege of an
employee of the state.
(b) 'Final order' means final agency action expressed in
writing. 'Final order' does not include any tentative or
preliminary agency declaration or statement that:
(A) Precedes final agency action; or
(B) Does not preclude further agency consideration of the
subject matter of the statement or declaration.
{ - (6) - } { + (7) + } 'Party' means:
(a) Each person or agency entitled as of right to a hearing
before the agency;
(b) Each person or agency named by the agency to be a party; or
(c) Any person requesting to participate before the agency as a
party or in a limited party status which the agency determines
either has an interest in the outcome of the agency's proceeding
or represents a public interest in such result. The agency's
determination is subject to judicial review in the manner
provided by ORS 183.482 after the agency has issued its final
order in the proceedings.
{ - (7) - } { + (8) + } 'Person' means any individual,
partnership, corporation, association, governmental subdivision
or public or private organization of any character other than an
agency.
{ - (8) - } { + (9) + } 'Rule' means any agency directive,
standard, regulation or statement of general applicability that
implements, interprets or prescribes law or policy, or describes
the procedure or practice requirements of any agency. The term
includes the amendment or repeal of a prior rule, but does not
include:
(a) Unless a hearing is required by statute, internal
management directives, regulations or statements which do not
substantially affect the interests of the public:
(A) Between agencies, or their officers or their employees; or
(B) Within an agency, between its officers or between
employees.
(b) Action by agencies directed to other agencies or other
units of government which do not substantially affect the
interests of the public.
(c) Declaratory rulings issued pursuant to ORS 183.410 or
305.105.
(d) Intra-agency memoranda.
(e) Executive orders of the Governor.
(f) Rules of conduct for persons committed to the physical and
legal custody of the Department of Corrections, the violation of
which will not result in:
(A) Placement in segregation or isolation status in excess of
seven days.
(B) Institutional transfer or other transfer to secure
confinement status for disciplinary reasons.
(C) Disciplinary procedures adopted pursuant to ORS 421.180.
{ - (9) - } { + (10) + } 'Small business' means a
corporation, partnership, sole proprietorship or other legal
entity formed for the purpose of making a profit, which is
independently owned and operated from all other businesses and
which has 50 or fewer employees.
SECTION 20. 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 - } { +
Magistrates + }.
(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) 'Court of Appeals' means the court of justice
described in ORS 2.540, but does not mean the Land Use Board of
Magistrates department. + }
{ - (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.
{ - (8) - } { + (9) + } 'Goals' means the mandatory
statewide planning standards adopted by the commission pursuant
to ORS chapters 195, 196 and 197.
{ - (9) - } { + (10) + } '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) - } { + (11) + } '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) - } { + (12) + } '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) - } { + (13) + } '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) - } { + (14) + } '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) - } { + (15) + } 'Metro' means a metropolitan
service district organized under ORS chapter 268.
{ - (15) - } { + (16) + } '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) - } { + (17) + } '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) - } { + (18) + } '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) - } { + (19) + } '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) - } { + (20) + } '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) - } { + (21) + } '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) - } { + (22) + } '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 21. ORS 34.102 is amended to read:
34.102. (1) As used in this section, 'municipal corporation'
means a county, city, district or other municipal corporation or
public corporation organized for a public purpose, including a
cooperative body formed between municipal corporations.
(2) Except for a proceeding resulting in a land use decision or
limited land use decision as defined in ORS 197.015, for which
review is provided in ORS 197.830 to 197.845, or an expedited
land division as described in ORS 197.360, for which review is
provided in ORS 197.375 (8), the decisions of the governing body
of a municipal corporation acting in a judicial or quasi-judicial
capacity and made in the transaction of municipal corporation
business shall be reviewed only as provided in ORS 34.010 to
34.100, and not otherwise.
(3) A petition for writ of review filed in the circuit court
and requesting review of a land use decision or limited land use
decision as defined in ORS 197.015 of a municipal corporation
shall be transferred to the Land Use Board of { - Appeals - }
{ + Magistrates + } and treated as a notice of intent to appeal
if the petition was filed within the time allowed for filing a
notice of intent to appeal pursuant to ORS 197.830. If the
petition was not filed within the time allowed by ORS 197.830,
the court shall dismiss the petition.
(4) A notice of intent to appeal filed with the Land Use Board
of { - Appeals - } { + Magistrates + } pursuant to ORS
197.830 and requesting review of a decision of a municipal
corporation made in the transaction of municipal corporation
business that is not reviewable as a land use decision or limited
land use decision as defined in ORS 197.015 shall be transferred
to the circuit court and treated as a petition for writ of
review. If the notice was not filed with the board within the
time allowed for filing a petition for writ of review pursuant to
ORS 34.010 to 34.100, the court shall dismiss the petition.
(5) In any case in which the Land Use Board of
{ - Appeals - } { + Magistrates + } or circuit court to which
a petition or notice is transferred under subsection (3) or (4)
of this section disputes whether it has authority to review the
decision with which the petition or notice is concerned, the
board or court before which the matter is pending shall refer the
question of whether the board or court has authority to review to
the Court of Appeals, which shall decide the question in a
summary manner.
SECTION 22. ORS 196.684 is amended to read:
196.684. (1) Local governments shall provide notice to the
Division of State Lands of any proposed amendments to the land
use plan and ordinances affecting lands subject to a wetland
conservation plan approved under this section.
(2) Amendments to plan policies, maps and implementing
ordinances by the local government within an approved wetland
conservation plan shall be reviewed by the division against the
requirements of this section. These provisions do not exempt
local governments from the provisions of ORS 197.610 to 197.625.
(3) The Director of the Division of State Lands shall provide
notice and the opportunity for public comment and hearing as
defined by rule on the matter of including the amendment in the
wetland conservation plan.
(4) If the director finds that the proposed local government
amendment to acknowledged comprehensive plan and land use
regulations meets the requirements of ORS 196.681, the director
shall approve the plan by order, and notify the local government
within 10 days of the completion of the public review provided in
subsection (3) of this section.
(5) If the amendments to acknowledged comprehensive plan and
land use regulations adopted by the local government are
determined not to comply with the requirements of ORS 196.668 to
196.692, 196.800, 196.810, 196.825, 196.830, 196.850 to 196.860,
196.885, 196.905, 197.015, 197.279, 215.213, 215.283, 215.284,
215.418 and 227.350, the director shall revoke the approval order
or amend the order to insure compliance with the requirements of
ORS 196.668 to 196.692, 196.800, 196.810, 196.825, 196.830,
196.850 to 196.860, 196.885, 196.905, 197.015, 197.279, 215.213,
215.283, 215.284, 215.418 and 227.350.
(6) The division shall review each approved wetland
conservation plan every five years. After such review the
director shall either modify, reissue or rescind the order
approving the plan.
(7) In conducting the five-year review of an approved wetland
conservation plan, the director shall provide notice and the
opportunity for public comment and hearing on whether:
(a) There has been a substantial change in circumstances that
would affect the wetland resources subject to the plan and would
adversely affect the compliance of the plan with the standards in
ORS 196.681;
(b) Changes have been made in applicable state law, statewide
land use planning goals, federal law or agency rules that require
the plan to be changed; and
(c) In the director's evaluation, the plan as implemented over
the preceding five years meets the goals established in the plan.
(8) Wetland conservation plans approved by the Director of the
Division of State Lands pursuant to ORS 196.668 to 196.692 shall
be deemed to comply with the requirements of any statewide
planning goals relating to wetlands, other than estuarine
wetlands, for those areas, uses and activities which are
regulated by the plan.
(9) An order by the director regarding approval, amendment or
review of a wetland conservation plan shall be reviewable by the
Land Use Board of { - Appeals - } { + Magistrates + } as a
land use decision of a state agency. For the purpose of such
review, the director's order shall not become final until the
local government adopts its wetland conservation plan or plan
amendment. The Land Use Board of
{ - Appeals - } { + Magistrates + } shall consolidate for
review appeals of the director's order and the local government
adoption. The Land Use Board of { - Appeals - }
{ + Magistrates + } shall review such order for compliance with
the requirements of ORS 196.668 to 196.692, 196.800, 196.810,
196.825, 196.830, 196.850 to 196.860, 196.885, 196.905, 197.015,
197.279, 215.213, 215.283, 215.284, 215.418 and 227.350.
(10) Nothing in this section shall be construed to require a
contested case proceeding regarding approval, amendment or review
of a wetland conservation plan.
(11) Nothing in this section shall be construed to affect the
evaluation of a permit application in areas that do not have a
wetland conservation plan.
(12) Upon a finding by the director, after a public hearing,
that an affected local government is not enforcing the
comprehensive plan provisions or land use regulations set forth
in the conditions of the order, as specified in ORS 196.681 (5),
and that such lack of enforcement has resulted or would result in
adverse impacts to wetlands, the director shall modify, suspend
or revoke approval of the wetland conservation plan.
SECTION 23. ORS 197.540 is amended to read:
197.540. (1) In the manner provided in ORS 197.830 to 197.845,
the Land Use Board of { - Appeals - } { + Magistrates + }
shall review upon petition by a county, city or special district
governing body or state agency or a person or group of persons
whose interests are substantially affected, any moratorium on
construction or land development or a corrective program alleged
to have been adopted in violation of the provisions of ORS
197.505 to 197.530.
(2) If the board determines that a moratorium or corrective
program was not adopted in compliance with the provisions of ORS
197.505 to 197.530, the board shall issue an order invalidating
the moratorium.
(3) All review proceedings conducted by the Land Use Board of
{ - Appeals - } { + Magistrates + } under subsection (1) of
this section shall be based on the administrative record, if any,
that is the subject of the review proceeding. The board shall not
substitute its judgment for a finding solely of fact for which
there is substantial evidence in the whole record.
(4) Notwithstanding any provision of ORS chapters 195, 196 and
197 to the contrary, the sole standard of review of a moratorium
on construction or land development or a corrective program is
under the provisions of this section, and such a moratorium shall
not be reviewed for compliance with the statewide planning goals
adopted under ORS chapters 195, 196 and 197.
(5) The review of a moratorium on construction or land
development under subsection (1) of this section shall be the
sole authority for review of such a moratorium, and there shall
be no authority for review in the circuit courts of this state.
SECTION 24. ORS 197.620 is amended to read:
197.620. (1) Notwithstanding the requirements of ORS 197.830
(2), persons who participated either orally or in writing in the
local government proceedings leading to the adoption of an
amendment to an acknowledged comprehensive plan or land use
regulation or a new land use regulation may appeal the decision
to the Land Use Board of { - Appeals - } { + Magistrates + }
under ORS 197.830 to 197.845. A decision to not adopt a
legislative amendment or a new land use regulation is not
appealable except where the amendment is necessary to address the
requirements of a new or amended goal, rule or statute.
(2) Notwithstanding the requirements of ORS 197.830 (2), the
Director of the Department of Land Conservation and Development
or any other person may file an appeal of the local government's
decision under ORS 197.830 to 197.845, if an amendment to an
acknowledged comprehensive plan or land use regulation or a new
land use regulation differs from the proposal submitted under ORS
197.610 to such a degree that the notice under ORS 197.610 did
not reasonably describe the nature of the local government final
action.
SECTION 25. ORS 197.835 is amended to read:
197.835. (1) The Land Use Board of { - Appeals - }
{ + Magistrates + } 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.
SECTION 26. ORS 197.828 is amended to read:
197.828. (1) The Land Use Board of { - Appeals - }
{ + Magistrates + } shall either reverse, remand or affirm a
limited land use decision on review.
(2) The board shall reverse or remand a limited land use
decision if:
(a) The decision is not supported by substantial evidence in
the record. The existence of evidence in the record supporting a
different decision shall not be grounds for reversal or remand if
there is evidence in the record to support the final decision;
(b) The decision does not comply with applicable provisions of
the land use regulations;
(c) The decision is:
(A) Outside the scope of authority of the decision maker; or
(B) Unconstitutional; or
(d) The local government committed a procedural error which
prejudiced the substantial rights of the petitioner.
SECTION 27. ORS 197.829 is amended to read:
197.829. (1) The Land Use Board of { - Appeals - }
{ + Magistrates + } shall affirm a local government's
interpretation of its comprehensive plan and land use
regulations, unless the board determines that the local
government's interpretation:
(a) Is inconsistent with the express language of the
comprehensive plan or land use regulation;
(b) Is inconsistent with the purpose for the comprehensive plan
or land use regulation;
(c) Is inconsistent with the underlying policy that provides
the basis for the comprehensive plan or land use regulation; or
(d) Is contrary to a state statute, land use goal or rule that
the comprehensive plan provision or land use regulation
implements.
(2) If a local government fails to interpret a provision of its
comprehensive plan or land use regulations, or if such
interpretation is inadequate for review, the board may make its
own determination of whether the local government decision is
correct.
SECTION 28. ORS 197.831 is amended to read:
197.831. In a proceeding before the Land Use Board of
{ - Appeals - } { + Magistrates + } or on judicial review
from an order of the board that involves an ordinance required to
contain clear and objective approval standards for a permit under
ORS 197.307 and 227.175, the local government imposing the
provisions of the ordinance shall demonstrate that the approval
standards are capable of being imposed only in a clear and
objective manner.
SECTION 29. ORS 215.416 is amended to read:
215.416. (1) When required or authorized by the ordinances,
rules and regulations of a county, an owner of land may apply in
writing to such persons as the governing body designates, for a
permit, in the manner prescribed by the governing body. The
governing body shall establish fees charged for processing
permits at an amount no more than the actual or average cost of
providing that service.
(2) The governing body shall establish a consolidated procedure
by which an applicant may apply at one time for all permits or
zone changes needed for a development project. The consolidated
procedure shall be subject to the time limitations set out in ORS
215.427. The consolidated procedure shall be available for use at
the option of the applicant no later than the time of the first
periodic review of the comprehensive plan and land use
regulations.
(3) Except as provided in subsection (11) of this section, the
hearings officer shall hold at least one public hearing on the
application.
(4) The application shall not be approved if the proposed use
of land is found to be in conflict with the comprehensive plan of
the county and other applicable land use regulation or ordinance
provisions. The approval may include such conditions as are
authorized by statute or county legislation.
(5) Hearings under this section shall be held only after notice
to the applicant and also notice to other persons as otherwise
provided by law and shall otherwise be conducted in conformance
with the provisions of ORS 197.763.
(6) Notice of a public hearing on an application submitted
under this section shall be provided to the owner of an airport
defined by the Oregon Department of Aviation as a 'public use
airport' if:
(a) The name and address of the airport owner has been provided
by the Oregon Department of Aviation to the county planning
authority; and
(b) The property subject to the land use hearing is:
(A) Within 5,000 feet of the side or end of a runway of an
airport determined by the Oregon Department of Aviation to be a '
visual airport'; or
(B) Within 10,000 feet of the side or end of the runway of an
airport determined by the Oregon Department of Aviation to be an
' instrument airport. '
(7) Notwithstanding the provisions of subsection (6) of this
section, notice of a land use hearing need not be provided as set
forth in subsection (6) of this section if the zoning permit
would only allow a structure less than 35 feet in height and the
property is located outside the runway 'approach surface' as
defined by the Oregon Department of Aviation.
(8)(a) Approval or denial of a permit application shall be
based on standards and criteria which shall be set forth in the
zoning ordinance or other appropriate ordinance or regulation of
the county and which shall relate approval or denial of a permit
application to the zoning ordinance and comprehensive plan for
the area in which the proposed use of land would occur and to the
zoning ordinance and comprehensive plan for the county as a
whole.
(b) When an ordinance establishing approval standards is
required under ORS 197.307 to provide only clear and objective
standards, the standards must be clear and objective on the face
of the ordinance.
(9) Approval or denial of a permit or expedited land division
shall be based upon and accompanied by a brief statement that
explains the criteria and standards considered relevant to the
decision, states the facts relied upon in rendering the decision
and explains the justification for the decision based on the
criteria, standards and facts set forth.
(10) Written notice of the approval or denial shall be given to
all parties to the proceeding.
(11)(a)(A) The hearings officer or such other person as the
governing body designates may approve or deny an application for
a permit without a hearing if the hearings officer or other
designated person gives notice of the decision and provides an
opportunity for any person who is adversely affected or
aggrieved, or who is entitled to notice under paragraph (c) of
this subsection, to file an appeal.
(B) Written notice of the decision shall be mailed to those
persons described in paragraph (c) of this subsection.
(C) Notice under this subsection shall comply with ORS 197.763
(3)(a), (c), (g) and (h) and shall describe the nature of the
decision. In addition, the notice shall state that any person who
is adversely affected or aggrieved or who is entitled to written
notice under paragraph (c) of this subsection may appeal the
decision by filing a written appeal in the manner and within the
time period provided in the county's land use regulations. A
county may not establish an appeal period that is less than 12
days from the date the written notice of decision required by
this subsection was mailed. The notice shall state that the
decision will not become final until the period for filing a
local appeal has expired. The notice also shall state that a
person who is mailed written notice of the decision cannot appeal
the decision directly to the Land Use Board of { - Appeals - }
{ + Magistrates + } under ORS 197.830.
(D) An appeal from a hearings officer's decision made without
hearing under this subsection shall be to the planning commission
or governing body of the county. An appeal from such other person
as the governing body designates shall be to a hearings officer,
the planning commission or the governing body. In either case,
the appeal shall be to a de novo hearing.
(b) If a local government provides only a notice of the
opportunity to request a hearing, the local government may charge
a fee for the initial hearing. The maximum fee for an initial
hearing shall be the cost to the local government of preparing
for and conducting the appeal, or $250, whichever is less. If an
appellant prevails at the hearing or upon subsequent appeal, the
fee for the initial hearing shall be refunded. The fee allowed in
this paragraph shall not apply to appeals made by neighborhood or
community organizations recognized by the governing body and
whose boundaries include the site.
(c)(A) Notice of a decision under paragraph (a) of this
subsection shall be provided to the applicant and to the owners
of record of property on the most recent property tax assessment
roll where such property is located:
(i) Within 100 feet of the property that is the subject of the
notice when the subject property is wholly or in part within an
urban growth boundary;
(ii) Within 250 feet of the property that is the subject of the
notice when the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(iii) Within 750 feet of the property that is the subject of
the notice when the subject property is within a farm or forest
zone.
(B) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(C) At the discretion of the applicant, the local government
also shall provide notice to the Department of Land Conservation
and Development.
(12) A decision described in ORS 215.402 (4)(b) shall:
(a) Be entered in a registry available to the public setting
forth:
(A) The street address or other easily understood geographic
reference to the subject property;
(B) The date of the decision; and
(C) A description of the decision made.
(b) Be subject to the jurisdiction of the Land Use Board of
{ - Appeals - } { + Magistrates + } in the same manner as a
limited land use decision.
(c) Be subject to the appeal period described in ORS 197.830
(5)(b).
(13) At the option of the applicant, the local government shall
provide notice of the decision described in ORS 215.402 (4)(b) in
the manner required by ORS 197.763 (2), in which case an appeal
to the board shall be filed within 21 days of the decision. The
notice shall include an explanation of appeal rights.
(14) Notwithstanding the requirements of this section, a
limited land use decision shall be subject to the requirements
set forth in ORS 197.195 and 197.828.
SECTION 30. ORS 215.435 is amended to read:
215.435. (1) Pursuant to a final order of the Land Use Board of
{ - Appeals - } { + Magistrates + } under ORS 197.830
remanding a decision to a county, the governing body of the
county or its designee shall take final action on an application
for a permit, limited land use decision or zone change within 90
days of the effective date of the final order issued by the
board. For purposes of this subsection, the effective date of the
final order is the last day for filing a petition for judicial
review of a final order of the board under ORS 197.850 (3). If
judicial review of a final order of the board is sought under ORS
197.830, the 90-day period established under this subsection
shall not begin until final resolution of the judicial review.
(2)(a) In addition to the requirements of subsection (1) of
this section, the 90-day period established under subsection (1)
of this section shall not begin until the applicant requests in
writing that the county proceed with the application on remand.
(b) The 90-day period may be extended for a reasonable period
of time at the request of the applicant.
(3) The 90-day period established under subsection (1) of this
section applies only to decisions wholly within the authority and
control of the governing body of the county.
(4) Subsection (1) of this section does not apply to a remand
proceeding concerning an amendment to an acknowledged
comprehensive plan or land use regulation or the adoption of a
new land use regulation that was forwarded to the Director of the
Department of Land Conservation and Development under ORS
197.610.
SECTION 31. ORS 227.175 is amended to read:
227.175. (1) When required or authorized by a city, an owner of
land may apply in writing to the hearings officer, or such other
person as the city council designates, for a permit or zone
change, upon such forms and in such a manner as the city council
prescribes. The governing body shall establish fees charged for
processing permits at an amount no more than the actual or
average cost of providing that service.
(2) The governing body of the city shall establish a
consolidated procedure by which an applicant may apply at one
time for all permits or zone changes needed for a development
project. The consolidated procedure shall be subject to the time
limitations set out in ORS 227.178. The consolidated procedure
shall be available for use at the option of the applicant no
later than the time of the first periodic review of the
comprehensive plan and land use regulations.
(3) Except as provided in subsection (10) of this section, the
hearings officer shall hold at least one public hearing on the
application.
(4) The application shall not be approved unless the proposed
development of land would be in compliance with the comprehensive
plan for the city and other applicable land use regulation or
ordinance provisions. The approval may include such conditions as
are authorized by ORS 227.215 or any city legislation.
(5) Hearings under this section may be held only after notice
to the applicant and other interested persons and shall otherwise
be conducted in conformance with the provisions of ORS 197.763.
(6) Notice of a public hearing on a zone use application shall
be provided to the owner of an airport, defined by the Oregon
Department of Aviation as a 'public use airport' if:
(a) The name and address of the airport owner has been provided
by the Oregon Department of Aviation to the city planning
authority; and
(b) The property subject to the zone use hearing is:
(A) Within 5,000 feet of the side or end of a runway of an
airport determined by the Oregon Department of Aviation to be a '
visual airport'; or
(B) Within 10,000 feet of the side or end of the runway of an
airport determined by the Oregon Department of Aviation to be an
' instrument airport. '
(7) Notwithstanding the provisions of subsection (6) of this
section, notice of a zone use hearing need only be provided as
set forth in subsection (6) of this section if the permit or zone
change would only allow a structure less than 35 feet in height
and the property is located outside of the runway 'approach
surface' as defined by the Oregon Department of Aviation.
(8) If an application would change the zone of property that
includes all or part of a mobile home or manufactured dwelling
park as defined in ORS 446.003, the governing body shall give
written notice by first class mail to each existing mailing
address for tenants of the mobile home or manufactured dwelling
park at least 20 days but not more than 40 days before the date
of the first hearing on the application. The governing body may
require an applicant for such a zone change to pay the costs of
such notice.
(9) The failure of a tenant or an airport owner to receive a
notice which was mailed shall not invalidate any zone change.
(10)(a)(A) The hearings officer or such other person as the
governing body designates may approve or deny an application for
a permit without a hearing if the hearings officer or other
designated person gives notice of the decision and provides an
opportunity for any person who is adversely affected or
aggrieved, or who is entitled to notice under paragraph (c) of
this subsection, to file an appeal.
(B) Written notice of the decision shall be mailed to those
persons described in paragraph (c) of this subsection.
(C) Notice under this subsection shall comply with ORS 197.763
(3)(a), (c), (g) and (h) and shall describe the nature of the
decision. In addition, the notice shall state that any person who
is adversely affected or aggrieved or who is entitled to written
notice under paragraph (c) of this subsection may appeal the
decision by filing a written appeal in the manner and within the
time period provided in the city's land use regulations. A city
may not establish an appeal period that is less than 12 days from
the date the written notice of decision required by this
subsection was mailed. The notice shall state that the decision
will not become final until the period for filing a local appeal
has expired. The notice also shall state that a person who is
mailed written notice of the decision cannot appeal the decision
directly to the Land Use Board of { - Appeals - }
{ + Magistrates + } under ORS 197.830.
(D) An appeal from a hearings officer's decision made without
hearing under this subsection shall be to the planning commission
or governing body of the city. An appeal from such other person
as the governing body designates shall be to a hearings officer,
the planning commission or the governing body. In either case,
the appeal shall be to a de novo hearing.
(b) If a local government provides only a notice of the
opportunity to request a hearing, the local government may charge
a fee for the initial hearing. The maximum fee for an initial
hearing shall be the cost to the local government of preparing
for and conducting the appeal, or $250, whichever is less. If an
appellant prevails at the hearing or upon subsequent appeal, the
fee for the initial hearing shall be refunded. The fee allowed in
this paragraph shall not apply to appeals made by neighborhood or
community organizations recognized by the governing body and
whose boundaries include the site.
(c)(A) Notice of a decision under paragraph (a) of this
subsection shall be provided to the applicant and to the owners
of record of property on the most recent property tax assessment
roll where such property is located:
(i) Within 100 feet of the property that is the subject of the
notice when the subject property is wholly or in part within an
urban growth boundary;
(ii) Within 250 feet of the property that is the subject of the
notice when the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(iii) Within 750 feet of the property that is the subject of
the notice when the subject property is within a farm or forest
zone.
(B) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(C) At the discretion of the applicant, the local government
also shall provide notice to the Department of Land Conservation
and Development.
(11) A decision described in ORS 227.160 (2)(b) shall:
(a) Be entered in a registry available to the public setting
forth:
(A) The street address or other easily understood geographic
reference to the subject property;
(B) The date of the decision; and
(C) A description of the decision made.
(b) Be subject to the jurisdiction of the Land Use Board of
{ - Appeals - } { + Magistrates + } in the same manner as a
limited land use decision.
(c) Be subject to the appeal period described in ORS 197.830
(5)(b).
(12) At the option of the applicant, the local government shall
provide notice of the decision described in ORS 227.160 (2)(b) in
the manner required by ORS 197.763 (2), in which case an appeal
to the board shall be filed within 21 days of the decision. The
notice shall include an explanation of appeal rights.
(13) Notwithstanding other requirements of this section,
limited land use decisions shall be subject to the requirements
set forth in ORS 197.195 and 197.828.
SECTION 32. ORS 227.181 is amended to read:
227.181. (1) Pursuant to a final order of the Land Use Board of
{ - Appeals - } { + Magistrates + } under ORS 197.830
remanding a decision to a city, the governing body of the city or
its designee shall take final action on an application for a
permit, limited land use decision or zone change within 90 days
of the effective date of the final order issued by the board. For
purposes of this subsection, the effective date of the final
order is the last day for filing a petition for judicial review
of a final order of the board under ORS 197.850 (3). If judicial
review of a final order of the board is sought under ORS 197.830,
the 90-day period established under this subsection shall not
begin until final resolution of the judicial review.
(2)(a) In addition to the requirements of subsection (1) of
this section, the 90-day period established under subsection (1)
of this section shall not begin until the applicant requests in
writing that the city proceed with the application on remand.
(b) The 90-day period may be extended for a reasonable period
of time at the request of the applicant.
(3) The 90-day period established under subsection (1) of this
section applies only to decisions wholly within the authority and
control of the governing body of the city.
(4) Subsection (1) of this section does not apply to a remand
proceeding concerning an amendment to an acknowledged
comprehensive plan or land use regulation or the adoption of a
new land use regulation that was forwarded to the Director of the
Department of Land Conservation and Development under ORS
197.610.
SECTION 33. ORS 466.385 is amended to read:
466.385. (1) By the first periodic review after development of
model language under subsection (2) of this section, the
governing body of a city or county shall amend its comprehensive
plan and land use regulations as provided in ORS 197.610 and
197.628 to 197.650 to establish and implement policies regarding
potentially hazardous environmental conditions on sites listed
under ORS 466.365. The land use regulations shall provide that:
(a) The city or county shall not approve any proposed use of a
disposal site for which the city or county has received notice
under ORS 466.370 until the Department of Environmental Quality
has been notified and provided the city or county with comments
on the proposed use; and
(b) Within 120 days of receipt of an environmental hazard
notice from the Department of Environmental Quality, the city or
county shall amend its zoning maps to identify the disposal site.
(2) The Department of Environmental Quality and the Department
of Land Conservation and Development shall:
(a) Develop model language for comprehensive plans and land use
regulations for use by cities and counties in complying with this
section; and
(b) Provide technical assistance to cities and counties in
complying with ORS 466.360 to 466.385.
(3) The Department of Environmental Quality may appeal to the
Land Use Board of { - Appeals - } { + Magistrates + } any
final land use decision or limited land use decision made by a
city or county regarding any proposed use of a disposal site that
has been identified under its comprehensive plan and land use
regulations pursuant to this section.
SECTION 34. 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) - } { + (11)(b) + }, the approval or amendment of
a development agreement is a land use decision under ORS chapter
197.
SECTION 35. ORS 196.115 is amended to read:
196.115. (1) For purposes of judicial review, decisions of the
Columbia River Gorge Commission shall be subject to review solely
as provided in this section, except as otherwise provided by the
Columbia River Gorge National Scenic Area Act, P.L. 99-663.
(2)(a) A final action or order by the commission in a review or
appeal of any action of the commission pursuant to section 10(c)
or 15(b)(4) of the Columbia River Gorge National Scenic Area Act,
or a final action or order by the commission in a review or
appeal of any action of a county pursuant to section 15(a)(2) or
15(b)(4) of the Columbia River Gorge National Scenic Area Act,
shall be reviewed by the Court of Appeals on a petition for
judicial review filed and served as provided in subsections (3)
and (4) of this section and ORS 183.482.
(b) On a petition for judicial review under paragraph (a) of
this subsection the Court of Appeals also shall review the action
of the county that is the subject of the commission's order, if
requested in the petition.
(c) The Court of Appeals shall issue a final order on review
under this subsection within the time limits provided by ORS
197.855.
(d) In lieu of judicial review under paragraphs (a) and (b) of
this subsection, a county action may be appealed to the Land Use
Board of { - Appeals - } { + Magistrates + } under ORS
197.805 to 197.855. A notice of intent to appeal the county's
action shall be filed not later than 21 days after the
commission's order on the county action becomes final.
(e) Notwithstanding ORS 197.835, the scope of review in an
appeal pursuant to paragraph (d) of this subsection shall not
include any issue relating to interpretation or implementation of
the Columbia River Gorge National Scenic Area Act, P.L. 99-663,
and any issue related to such interpretation or implementation
shall be waived by the filing of an appeal under paragraph (d) of
this subsection.
(f) After county land use ordinances are approved pursuant to
sections 7(b) and 8(h) to (k) of the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, the Land Use Board of
{ - Appeals - } { + Magistrates + } shall not review land use
decisions within the general management area or special
management area for compliance with the statewide planning goals.
The limitation of this paragraph shall not apply if the Land
Conservation and Development Commission decertifies the
management plan pursuant to ORS 196.107.
(3)(a) If a petition for judicial review of a commission order
is filed pursuant to subsection (2)(a) of this section, the
procedures to be followed by the parties, the commission and the
court, and the court's review, shall be in accordance with ORS
183.480, 183.482 (1) to (7), 183.485, 183.486, 183.490 and
183.497, except as this section or the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, otherwise provides.
(b) Notwithstanding any provision of ORS 183.482:
(A) The commission shall transmit the original record or the
certified copy of the entire record within 21 days after service
of a petition for judicial review is served on the commission;
and
(B) The parties shall file briefs with the court within the
times allowed by rules of the court.
(c) The court may affirm, reverse or remand the order. If the
court finds that the agency has erroneously interpreted a
provision of law and that a correct interpretation compels a
particular action, the court shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
(d) The court shall remand the order to the agency if the court
finds the agency's exercise of discretion to be:
(A) Outside the range of discretion delegated to the agency by
law;
(B) Inconsistent with an agency rule, an officially stated
agency position or a prior agency practice, unless the
inconsistency is explained by the agency; or
(C) Otherwise in violation of a constitutional or statutory
provision.
(e) The court shall set aside or remand the order if the court
finds that the order is not supported by substantial evidence in
the whole record.
(f) Notwithstanding any other provision of this section, in any
case where review of a county action as well as a commission
order is sought pursuant to subsection (2)(a) and (b) of this
section, the court shall accept any findings of fact by the
commission which the court finds to be supported by substantial
evidence in the whole record, and such findings by the commission
shall prevail over any findings by the county concerning the same
or substantially the same facts.
(4)(a) Except as otherwise provided by this section or the
Columbia River Gorge National Scenic Area Act, P.L. 99-663, if
review of a county action is sought pursuant to subsection (2)(b)
of this section, the procedures to be followed by the parties,
the county and the court, and the court's review, shall be in
accordance with those provisions governing review of county land
use decisions by the Land Use Board of { - Appeals - }
{ + Magistrates + } set forth in ORS 197.830 (2) to (8), (10),
(15) and (16) and 197.835 (2) to (10), (12) and (13). As used in
this section, 'board' as used in the enumerated provisions shall
mean 'court' and the term 'notice of intent to appeal' in ORS
197.830 (10) shall refer to the petition described in subsection
(2) of this section.
(b) In addition to the other requirements of service under this
section, the petitioner shall serve the petition upon the persons
and bodies described in ORS 197.830 (9), as a prerequisite to
judicial review of the county action.
(c) In accordance with subsection (3)(b)(B) of this section, a
party to a review of both a commission order and a county action
shall file only one brief with the court, which shall address
both the commission order and the county action.
(d) Review of a decision under ORS 197.830 to 197.845 shall be
confined to the record. Subject to subsection (3)(f) of this
section, the court shall be bound by any finding of fact of the
county for which there is substantial evidence in the whole
record. The court may appoint a master and follow the procedures
of ORS 183.482 (7) in connection with matters that the board may
take evidence for under ORS 197.835 (2).
(5) Approval of county land use ordinances by the commission
pursuant to section 7 of the Columbia River Gorge National Scenic
Area Act, P.L. 99-663, may be reviewed by the Court of Appeals as
provided in ORS 183.482.
(6) Notwithstanding ORS 183.484, any proceeding filed in
circuit court by or against the commission shall be filed with
the circuit court for the county in which the commission has a
principal business office or in which the land involved in the
proceeding is located.
SECTION 36. 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 37. ORS 197.040 is amended to read:
197.040. (1) The Land Conservation and Development Commission
shall:
(a) Direct the performance by the Director of the Department of
Land Conservation and Development and the director's staff of
their functions under ORS chapters 195, 196 and 197.
(b) In accordance with the provisions of ORS 183.310 to
183.550, adopt rules that it considers necessary to carry out ORS
chapters 195, 196 and 197. Except as provided in subsection (3)
of this section, in designing its administrative requirements,
the commission shall:
(A) Allow for the diverse administrative and planning
capabilities of local governments;
(B) Assess what economic and property interests will be, or are
likely to be, affected by the proposed rule;
(C) Assess the likely degree of economic impact on identified
property and economic interests; and
(D) Assess whether alternative actions are available that would
achieve the underlying lawful governmental objective and would
have a lesser economic impact.
(c)(A) Adopt by rule in accordance with ORS 183.310 to 183.550
or by goal under ORS chapters 195, 196 and 197 any statewide land
use policies that it considers necessary to carry out ORS
chapters 195, 196 and 197.
(B) Adopt by rule in accordance with ORS 183.310 to 183.550 any
procedures necessary to carry out ORS 215.402 (4)(b) and 227.160
(2)(b).
(C) Review decisions of the Land Use Board of { - Appeals - }
{ + Magistrates + } and land use decisions of the Court of
Appeals and the Supreme Court within 120 days of the date the
decisions are issued to determine if goal or rule amendments are
necessary.
(d) Cooperate with the appropriate agencies of the United
States, this state and its political subdivisions, any other
state, any interstate agency, any person or groups of persons
with respect to land conservation and development.
(e) Appoint advisory committees to aid it in carrying out ORS
chapters 195, 196 and 197 and provide technical and other
assistance, as it considers necessary, to each such committee.
(2) Pursuant to ORS chapters 195, 196 and 197, the commission
shall:
(a) Adopt, amend and revise goals consistent with regional,
county and city concerns;
(b) Prepare, collect, provide or cause to be prepared,
collected or provided land use inventories;
(c) Prepare statewide planning guidelines;
(d) Review comprehensive plans for compliance with goals;
(e) Coordinate planning efforts of state agencies to assure
compliance with goals and compatibility with city and county
comprehensive plans;
(f) Insure widespread citizen involvement and input in all
phases of the process;
(g) Review and recommend to the Legislative Assembly the
designation of areas of critical state concern;
(h) Report periodically to the Legislative Assembly and to the
committee; and
(i) Perform other duties required by law.
(3) The requirements of subsection (1)(b) of this section shall
not be interpreted as requiring an assessment for each lot or
parcel that could be affected by the proposed rule.
SECTION 38. ORS 197.195 is amended to read:
197.195. (1) A 'limited land use decision' shall be consistent
with applicable provisions of city or county comprehensive plans
and land use regulations. Such a decision may include conditions
authorized by law. Within two years of September 29, 1991, cities
and counties shall incorporate all comprehensive plan standards
applicable to limited land use decisions into their land use
regulations. A decision to incorporate all, some, or none of the
applicable comprehensive plan standards into land use regulations
shall be undertaken as a post-acknowledgment amendment under ORS
197.610 to 197.625. If a city or county does not incorporate its
comprehensive plan provisions into its land use regulations, the
comprehensive plan provisions may not be used as a basis for a
decision by the city or county or on appeal from that decision.
(2) A limited land use decision is not subject to the
requirements of ORS 197.763.
(3) A limited land use decision is subject to the requirements
of paragraphs (a) to (c) of this subsection.
(a) In making a limited land use decision, the local government
shall follow the applicable procedures contained within its
acknowledged comprehensive plan and land use regulations and
other applicable legal requirements.
(b) For limited land use decisions, the local government shall
provide written notice to owners of property within 100 feet of
the entire contiguous site for which the application is made.
The list shall be compiled from the most recent property tax
assessment roll. For purposes of review, this requirement shall
be deemed met when the local government can provide an affidavit
or other certification that such notice was given. Notice shall
also be provided to any neighborhood or community organization
recognized by the governing body and whose boundaries include the
site.
(c) The notice and procedures used by local government shall:
(A) Provide a 14-day period for submission of written comments
prior to the decision;
(B) State that issues which may provide the basis for an appeal
to the Land Use Board of { - Appeals - } { + Magistrates + }
shall be raised in writing prior to the expiration of the comment
period. Issues shall be raised with sufficient specificity to
enable the decision maker to respond to the issue;
(C) List, by commonly used citation, the applicable criteria
for the decision;
(D) Set forth the street address or other easily understood
geographical reference to the subject property;
(E) State the place, date and time that comments are due;
(F) State that copies of all evidence relied upon by the
applicant are available for review, and that copies can be
obtained at cost;
(G) Include the name and phone number of a local government
contact person;
(H) Provide notice of the decision to the applicant and any
person who submits comments under subparagraph (A) of this
paragraph. The notice of decision must include an explanation of
appeal rights; and
(I) Briefly summarize the local decision making process for the
limited land use decision being made.
(4) Approval or denial of a limited land use decision shall be
based upon and accompanied by a brief statement that explains the
criteria and standards considered relevant to the decision,
states the facts relied upon in rendering the decision and
explains the justification for the decision based on the
criteria, standards and facts set forth.
(5) A local government may provide for a hearing before the
local government on appeal of a limited land use decision under
this section. The hearing may be limited to the record developed
pursuant to the initial hearing under subsection (3) of this
section or may allow for the introduction of additional testimony
or evidence. A hearing on appeal that allows the introduction of
additional testimony or evidence shall comply with the
requirements of ORS 197.763. Written notice of the decision
rendered on appeal shall be given to all parties who appeared,
either orally or in writing, before the hearing. The notice of
decision shall include an explanation of the rights of each party
to appeal the decision.
SECTION 39. ORS 197.375 is amended to read:
197.375. (1) An appeal of a decision made under ORS 197.360 and
197.365 shall be made as follows:
(a) An appeal must be filed with the local government within 14
days of mailing of the notice of the decision under ORS 197.365
(4), and shall be accompanied by a $300 deposit for costs.
(b) A decision may be appealed by:
(A) The applicant; or
(B) Any person or organization who files written comments in
the time period established under ORS 197.365.
(c) An appeal shall be based solely on allegations:
(A) Of violation of the substantive provisions of the
applicable land use regulations;
(B) Of unconstitutionality of the decision;
(C) That the application is not eligible for review under ORS
197.360 to 197.380 and should be reviewed as a land use decision
or limited land use decision; or
(D) That the parties' substantive rights have been
substantially prejudiced by an error in procedure by the local
government.
(2) The local government shall appoint a referee to decide the
appeal of a decision made under ORS 197.360 and 197.365. The
referee shall not be an employee or official of the local
government. However, a local government that has designated a
hearings officer under ORS 215.406 or 227.165 may designate the
hearings officer as the referee for appeals of a decision made
under ORS 197.360 and 197.365.
(3) Within seven days of being appointed to decide the appeal,
the referee shall notify the applicant, the local government, the
appellant if other than the applicant, any person or organization
entitled to notice under ORS 197.365 (2) that provided written
comments to the local government and all providers of public
facilities and services entitled to notice under ORS 197.365 (2)
and advise them of the manner in which they may participate in
the appeal. A person or organization that provided written
comments to the local government but did not file an appeal under
subsection (1) of this section may participate only with respect
to the issues raised in the written comments submitted by that
person or organization. The referee may use any procedure for
decision-making consistent with the interests of the parties to
ensure a fair opportunity to present information and argument.
The referee shall provide the local government an opportunity to
explain its decision, but is not limited to reviewing the local
government decision and may consider information not presented to
the local government.
(4)(a) The referee shall apply the substantive requirements of
the local government's land use regulations and ORS 197.360. If
the referee determines that the application does not qualify as
an expedited land division as described in ORS 197.360, the
referee shall remand the application for consideration as a land
use decision or limited land use decision. In all other cases,
the referee shall seek to identify means by which the application
can satisfy the applicable requirements.
(b) The referee may not reduce the density of the land division
application. The referee shall make a written decision approving
or denying the application or approving it with conditions
designed to ensure that the application satisfies the land use
regulations, within 42 days of the filing of an appeal. The
referee may not remand the application to the local government
for any reason other than as set forth in this subsection.
(5) Unless the governing body of the local government finds
exigent circumstances, a referee who fails to issue a written
decision within 42 days of the filing of an appeal shall receive
no compensation for service as referee in the appeal.
(6) Notwithstanding any other provision of law, the referee
shall order the local government to refund the deposit for costs
to an appellant who materially improves his or her position from
the decision of the local government. The referee shall assess
the cost of the appeal in excess of the deposit for costs, up to
a maximum of $500, including the deposit paid under subsection
(1) of this section, against an appellant who does not materially
improve his or her position from the decision of the local
government. The local government shall pay the portion of the
costs of the appeal not assessed against the appellant. The costs
of the appeal include the compensation paid the referee and costs
incurred by the local government, but not the costs of other
parties.
(7) The Land Use Board of { - Appeals - }
{ + Magistrates + } does not have jurisdiction to consider any
decisions, aspects of decisions or actions made under ORS 197.360
to 197.380.
(8) Any party to a proceeding before a referee under this
section may seek judicial review of the referee's decision in the
manner provided for review of final orders of the Land Use Board
of { - Appeals - } { + Magistrates + } under ORS 197.850 and
197.855. The Court of Appeals shall review decisions of the
referee in the same manner as provided for review of final orders
of the Land Use Board of { - Appeals - } { + Magistrates + }
in those statutes. However, notwithstanding ORS 197.850 (9) or
any other provision of law, the court shall reverse or remand the
decision only if it finds:
(a) That the decision does not concern an expedited land
division as described in ORS 197.360 and the appellant raised
this issue in proceedings before the referee;
(b) A basis to reverse or remand the decision described in ORS
36.355 (1); or
(c) That the decision is unconstitutional.
SECTION 40. 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) which - } { + (20) that + } provide
services for which public facilities plans are required.
SECTION 41. ORS 197.763 is amended to read:
197.763. The following procedures shall govern the conduct of
quasi-judicial land use hearings conducted before a local
governing body, planning commission, hearings body or hearings
officer on application for a land use decision and shall be
incorporated into the comprehensive plan and land use
regulations:
(1) An issue which may be the basis for an appeal to the Land
Use Board of { - Appeals - } { + Magistrates + } shall be
raised not later than the close of the record at or following the
final evidentiary hearing on the proposal before the local
government. Such issues shall be raised and accompanied by
statements or evidence sufficient to afford the governing body,
planning commission, hearings body or hearings officer, and the
parties an adequate opportunity to respond to each issue.
(2)(a) Notice of the hearings governed by this section shall be
provided to the applicant and to owners of record of property on
the most recent property tax assessment roll where such property
is located:
(A) Within 100 feet of the property which is the subject of the
notice where the subject property is wholly or in part within an
urban growth boundary;
(B) Within 250 feet of the property which is the subject of the
notice where the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(C) Within 500 feet of the property which is the subject of the
notice where the subject property is within a farm or forest
zone.
(b) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(c) At the discretion of the applicant, the local government
also shall provide notice to the Department of Land Conservation
and Development.
(3) The notice provided by the jurisdiction shall:
(a) Explain the nature of the application and the proposed use
or uses which could be authorized;
(b) List the applicable criteria from the ordinance and the
plan that apply to the application at issue;
(c) Set forth the street address or other easily understood
geographical reference to the subject property;
(d) State the date, time and location of the hearing;
(e) State that failure of an issue to be raised in a hearing,
in person or by letter, or failure to provide statements or
evidence sufficient to afford the decision maker an opportunity
to respond to the issue precludes appeal to the board based on
that issue;
(f) Be mailed at least:
(A) Twenty days before the evidentiary hearing; or
(B) If two or more evidentiary hearings are allowed, 10 days
before the first evidentiary hearing;
(g) Include the name of a local government representative to
contact and the telephone number where additional information may
be obtained;
(h) State that a copy of the application, all documents and
evidence submitted by or on behalf of the applicant and
applicable criteria are available for inspection at no cost and
will be provided at reasonable cost;
(i) State that a copy of the staff report will be available for
inspection at no cost at least seven days prior to the hearing
and will be provided at reasonable cost; and
(j) Include a general explanation of the requirements for
submission of testimony and the procedure for conduct of
hearings.
(4)(a) All documents or evidence relied upon by the applicant
shall be submitted to the local government and be made available
to the public.
(b) Any staff report used at the hearing shall be available at
least seven days prior to the hearing. If additional documents or
evidence are provided by any party, the local government may
allow a continuance or leave the record open to allow the parties
a reasonable opportunity to respond. Any continuance or extension
of the record requested by an applicant shall result in a
corresponding extension of the time limitations of ORS 215.427 or
227.178 and ORS 215.429 or 227.179.
(5) At the commencement of a hearing under a comprehensive plan
or land use regulation, a statement shall be made to those in
attendance that:
(a) Lists the applicable substantive criteria;
(b) States that testimony, arguments and evidence must be
directed toward the criteria described in paragraph (a) of this
subsection or other criteria in the plan or land use regulation
which the person believes to apply to the decision; and
(c) States that failure to raise an issue accompanied by
statements or evidence sufficient to afford the decision maker
and the parties an opportunity to respond to the issue precludes
appeal to the board based on that issue.
(6)(a) Prior to the conclusion of the initial evidentiary
hearing, any participant may request an opportunity to present
additional evidence, arguments or testimony regarding the
application. The local hearings authority shall grant such
request by continuing the public hearing pursuant to paragraph
(b) of this subsection or leaving the record open for additional
written evidence, arguments or testimony pursuant to paragraph
(c) of this subsection.
(b) If the hearings authority grants a continuance, the hearing
shall be continued to a date, time and place certain at least
seven days from the date of the initial evidentiary hearing. An
opportunity shall be provided at the continued hearing for
persons to present and rebut new evidence, arguments or
testimony. If new written evidence is submitted at the continued
hearing, any person may request, prior to the conclusion of the
continued hearing, that the record be left open for at least
seven days to submit additional written evidence, arguments or
testimony for the purpose of responding to the new written
evidence.
(c) If the hearings authority leaves the record open for
additional written evidence, arguments or testimony, the record
shall be left open for at least seven days. Any participant may
file a written request with the local government for an
opportunity to respond to new evidence submitted during the
period the record was left open. If such a request is filed, the
hearings authority shall reopen the record pursuant to subsection
(7) of this section.
(d) A continuance or extension granted pursuant to this section
shall be subject to the limitations of ORS 215.427 or 227.178 and
ORS 215.429 or 227.179, unless the continuance or extension is
requested or agreed to by the applicant.
(e) Unless waived by the applicant, the local government shall
allow the applicant at least seven days after the record is
closed to all other parties to submit final written arguments in
support of the application. The applicant's final submittal shall
be considered part of the record, but shall not include any new
evidence. This seven-day period shall not be subject to the
limitations of ORS 215.427 or 227.178 and ORS 215.429 or 227.179.
(7) When a local governing body, planning commission, hearings
body or hearings officer reopens a record to admit new evidence,
arguments or testimony, any person may raise new issues which
relate to the new evidence, arguments, testimony or criteria for
decision-making which apply to the matter at issue.
(8) The failure of the property owner to receive notice as
provided in this section shall not invalidate such proceedings if
the local government can demonstrate by affidavit that such
notice was given. The notice provisions of this section shall not
restrict the giving of notice by other means, including posting,
newspaper publication, radio and television.
(9) For purposes of this section:
(a) 'Argument' means assertions and analysis regarding the
satisfaction or violation of legal standards or policy believed
relevant by the proponent to a decision. 'Argument' does not
include facts.
(b) 'Evidence' means facts, documents, data or other
information offered to demonstrate compliance or noncompliance
with the standards believed by the proponent to be relevant to
the decision.
SECTION 42. ORS 197.796 is amended to read:
197.796. (1) An applicant for a land use decision, limited land
use decision or expedited land division or for a permit under ORS
215.427 or 227.178 may accept a condition of approval imposed
under ORS 215.416 or 227.175 and file a challenge to the
condition under this section. Acceptance by an applicant for a
land use decision, limited land use decision, expedited land
division or permit under ORS 215.427 or 227.178 of a condition of
approval imposed under ORS 215.416 or 227.175 does not constitute
a waiver of the right to challenge the condition of approval.
Acceptance of a condition may include but is not limited to
paying a fee, performing an act or providing satisfactory
evidence of arrangements to pay the fee or to ensure compliance
with the condition.
(2) Any action for damages under this section shall be filed in
the circuit court of the county in which the application was
submitted within 180 days of the date of the decision.
(3)(a) A challenge filed pursuant to this section may not be
dismissed on the basis that the applicant did not request a
variance to the condition of approval or any other available form
of reconsideration of the challenged condition. However, an
applicant shall comply with ORS 197.763 (1) prior to appealing to
the Land Use Board of { - Appeals - } { + Magistrates + } or
bringing an action for damages in circuit court and must exhaust
all local appeals provided in the local comprehensive plan and
land use regulations before proceeding under this section.
(b) In addition to the requirements of ORS 197.763 (5), at the
commencement of the initial public hearing, a statement shall be
made to the applicant that the failure of the applicant to raise
constitutional or other issues relating to proposed conditions of
approval with sufficient specificity to allow the local
government or its designee to respond to the issue precludes an
action for damages in circuit court.
(c) An applicant is not required to raise an issue under this
subsection unless the condition of approval is stated with
sufficient specificity to enable the applicant to respond to the
condition prior to the close of the final local hearing.
(4) In any challenge to a condition of approval that is subject
to the Takings Clause of the Fifth Amendment to the United States
Constitution, the local government shall have the burden of
demonstrating compliance with the constitutional requirements for
imposing the condition.
(5) In a proceeding in circuit court under this section, the
court shall award costs and reasonable attorney fees to a
prevailing party. Notwithstanding ORS 197.830 (15), in a
proceeding before the Land Use Board of { - Appeals - }
{ + Magistrates + } under this section, the board shall award
costs and reasonable attorney fees to a prevailing party.
(6) This section applies to appeals by the applicant of a
condition of approval and claims filed in state court seeking
damages for the unlawful imposition of conditions of approval in
a land use decision, limited land use decision, expedited land
division or permit under ORS 215.427 or 227.178.
SECTION 43. ORS 442.015 is amended to read:
442.015. As used in ORS chapter 441 and this chapter, unless
the context requires otherwise:
(1) 'Adjusted admission' means the sum of all inpatient
admissions divided by the ratio of inpatient revenues to total
patient revenues.
(2) 'Affected persons' has the same meaning as given to '
party' in ORS 183.310 { - (6) - } .
(3) 'Acquire' or 'acquisition' refers to obtaining equipment,
supplies, components or facilities by any means, including
purchase, capital or operating lease, rental or donation, with
intention of using such equipment, supplies, components or
facilities to provide health services in Oregon. When equipment
or other materials are obtained outside of this state,
acquisition is considered to occur when the equipment or other
materials begin to be used in Oregon for the provision of health
services or when such services are offered for use in Oregon.
(4) 'Audited actual experience' means data contained within
financial statements examined by an independent, certified public
accountant in accordance with generally accepted auditing
standards.
(5) 'Budget' means the projections by the hospital for a
specified future time period of expenditures and revenues with
supporting statistical indicators.
(6) 'Case mix' means a calculated index for each hospital,
based on financial accounting and case mix data collection as set
forth in ORS 442.425, reflecting the relative costliness of that
hospital's mix of cases compared to a state or national mix of
cases.
(7) 'Council' means the Oregon Health Council.
(8) 'Department' means the Department of Human Services of the
State of Oregon.
(9) 'Develop' means to undertake those activities which on
their completion will result in the offer of a new institutional
health service or the incurring of a financial obligation, as
defined under applicable state law, in relation to the offering
of such a health service.
(10) 'Director' means the Director of Human Services.
(11) 'Expenditure' or 'capital expenditure' means the actual
expenditure, an obligation to an expenditure, lease or similar
arrangement in lieu of an expenditure, and the reasonable value
of a donation or grant in lieu of an expenditure but not
including any interest thereon.
(12) 'Governmental unit' means the state, or any county,
municipality or other political subdivision, or any related
department, division, board or other agency.
(13) 'Gross revenue' means the sum of daily hospital service
charges, ambulatory service charges, ancillary service charges
and other operating revenue. 'Gross revenue' does not include
contributions, donations, legacies or bequests made to a hospital
without restriction by the donors.
(14) 'Health care facility' means:
(a) A 'hospital' with an organized medical staff, with
permanent facilities that include inpatient beds, and with
medical services, including physician services and continuous
nursing services under the supervision of registered nurses, to
provide diagnosis and medical or surgical treatment primarily for
but not limited to acutely ill patients and accident victims, or
to provide treatment for the mentally ill or to provide treatment
in special inpatient care facilities. A 'special inpatient care
facility' is a facility with permanent inpatient beds and other
facilities designed and utilized for special health care
purposes, to include but not limited to: Rehabilitation center,
college infirmary, chiropractic facility, facility for the
treatment of alcoholism or drug abuse, or inpatient care facility
meeting the requirements of ORS 441.065, and any other
establishment falling within a classification established by the
division, after determination of the need for such classification
and the level and kind of health care appropriate for such
classification.
(b) A 'long term care facility' with permanent facilities that
include inpatient beds, providing medical services, including
nursing services but excluding surgical procedures except as may
be permitted by the rules of the director, to provide treatment
for two or more unrelated patients. 'Long term care facility '
includes the terms 'skilled nursing facility' and 'intermediate
care facility,' but such definition shall not be construed to
include facilities licensed and operated pursuant to ORS 443.400
to 443.455. Such definitions shall include:
(A) A 'skilled nursing facility' whether an institution or a
distinct part of an institution, which is primarily engaged in
providing to inpatients skilled nursing care and related services
for patients who require medical or nursing care, or
rehabilitation services for the rehabilitation of injured,
disabled or sick persons.
(B) An 'intermediate care facility' which provides, on a
regular basis, health-related care and services to individuals
who do not require the degree of care and treatment which a
hospital or skilled nursing facility is designed to provide, but
who because of their mental or physical condition require care
and services above the level of room and board which can be made
available to them only through institutional facilities.
(c) An 'ambulatory surgical center' means a health care
facility which performs outpatient surgery not routinely or
customarily performed in a physician's or dentist's office, and
is able to meet health facility licensure requirements.
(d) An establishment furnishing primarily domiciliary care is
not a 'health care facility. '
(e) A 'health care facility' does not mean an establishment
furnishing residential care or treatment not meeting federal
intermediate care standards, not following a primarily medical
model of treatment, prohibited from admitting persons requiring
24-hour nursing care and licensed or approved under the rules of
the Mental Health and Developmental Disability Services Division,
Senior and Disabled Services Division, State Office for Services
to Children and Families, Department of Corrections or Vocational
Rehabilitation Division.
(f) A 'freestanding birthing center' means a health care
facility licensed for the primary purpose of performing low risk
deliveries.
(15) 'Health maintenance organization' or 'HMO' means a public
organization or a private organization organized under the laws
of any state which:
(a) Is a qualified HMO under section 1310 (d) of the U.S.
Public Health Services Act; or
(b)(A) Provides or otherwise makes available to enrolled
participants health care services, including at least the
following basic health care services: Usual physician services,
hospitalization, laboratory, X-ray, emergency and preventive
services, and out-of-area coverage;
(B) Is compensated, except for copayments, for the provision of
the basic health care services listed in subparagraph (A) of this
paragraph to enrolled participants on a predetermined periodic
rate basis; and
(C) Provides physicians' services primarily directly through
physicians who are either employees or partners of such
organization, or through arrangements with individual physicians
or one or more groups of physicians organized on a group practice
or individual practice basis.
(16) 'Health services' means clinically related diagnostic,
treatment or rehabilitative services, and includes alcohol, drug
or controlled substance abuse and mental health services that may
be provided either directly or indirectly on an inpatient or
ambulatory patient basis.
(17) 'Institutional health services' means health services
provided in or through health care facilities and includes the
entities in or through which such services are provided.
(18) 'Medically indigent' means a person who has insufficient
resources or assets to pay for needed medical care without
utilizing resources required to meet basic needs for shelter,
food and clothing.
(19) 'Net revenue' means gross revenue minus deductions from
revenue.
(20) 'New hospital' means a facility that did not offer
hospital services on a regular basis within its service area
within the prior 12-month period and is initiating or proposing
to initiate such services. 'New hospital' also includes any
replacement of an existing hospital that involves a substantial
increase or change in the services offered.
(21) 'New skilled nursing or intermediate care service or
facility' means a service or facility that did not offer long
term care services on a regular basis by or through the facility
within the prior 12-month period and is initiating or proposing
to initiate such services. A 'new skilled nursing or intermediate
care service or facility' also includes the rebuilding of a long
term care facility, the relocation of buildings which are a part
of a long term care facility, the relocation of long term care
beds from one facility to another or an increase in the number of
beds of more than 10 or 10 percent of the bed capacity, whichever
is the lesser, within a two-year period.
(22) 'Major medical equipment' means medical equipment which is
used to provide medical and other health services and which costs
more than $1 million. 'Major medical equipment' does not include
medical equipment acquired by or on behalf of a clinical
laboratory to provide clinical laboratory services, if the
clinical laboratory is independent of a physician's office and a
hospital and has been determined under Title XVIII of the Social
Security Act to meet the requirements of paragraphs (10) and (11)
of section 1861(s) of that Act.
(23) 'Offer' means that the health care facility holds itself
out as capable of providing, or as having the means for the
provision of, specified health services.
(24) 'Operating expenses' means the sum of daily hospital
service expenses, ambulatory service expenses, ancillary expenses
and other operating expenses, excluding income taxes.
(25) 'Person' means an individual, a trust or estate, a
partnership, a corporation (including associations, joint stock
companies and insurance companies), a state, or a political
subdivision or instrumentality, including a municipal
corporation, of a state.
(26) 'State agency' means the office of the Director of Human
Services.
(27) 'Total deductions from gross revenue' or 'deductions from
revenue' means reductions from gross revenue resulting from
inability to collect payment of charges. Such reductions include
bad debts; contractual adjustments; uncompensated care;
administrative, courtesy and policy discounts and adjustments and
other such revenue deductions. The deduction shall be net of the
offset of restricted donations and grants for indigent care.
SECTION 44. ORS 442.760 is amended to read:
442.760. Notwithstanding the provisions of ORS 183.310
{ - (6) - } { + (7) + } and 183.480, only a party to a
cooperative program agreement or the Director of Human Services
shall be entitled to a contested case hearing or judicial review
of an order issued pursuant to ORS 442.700 to 442.760 and
646.740.
SECTION 45. 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 under ORS 197.015 { - (10) - } { + (11) + }.
SECTION 46. ORS 527.765 is amended to read:
527.765. (1) The State Board of Forestry shall establish best
management practices and other rules applying to forest practices
as necessary to insure that to the maximum extent practicable
nonpoint source discharges of pollutants resulting from forest
operations on forestlands do not impair the achievement and
maintenance of water quality standards established by the
Environmental Quality Commission for the waters of the state.
Such best management practices shall consist of forest practices
rules adopted to prevent or reduce pollution of waters of the
state. Factors to be considered by the board in establishing
best management practices shall include, where applicable, but
not be limited to:
(a) Beneficial uses of waters potentially impacted;
(b) The effects of past forest practices on beneficial uses of
water;
(c) Appropriate practices employed by other forest managers;
(d) Technical, economic and institutional feasibility; and
(e) Natural variations in geomorphology and hydrology.
(2) The board shall consult with the Environmental Quality
Commission in adoption and review of best management practices
and other rules to address nonpoint source discharges of
pollutants resulting from forest operations on forestlands.
(3)(a) Notwithstanding ORS 183.310 { - (7) - } { + (8) + },
upon written petition for rulemaking under ORS 183.390 of any
interested person or agency, the board shall review the best
management practices adopted pursuant to this section. In
addition to all other requirements of law, the petition must
allege with reasonable specificity that nonpoint source
discharges of pollutants resulting from forest operations being
conducted in accordance with the best management practices are a
significant contributor to violations of such standards.
(b) Notwithstanding the time limitations of ORS 183.390, the
board shall complete its review of a petition and either dismiss
the petition in accordance with paragraph (c) of this subsection
or commence rulemaking in accordance with paragraph (f) of this
subsection within 90 days of the date the petition for review was
filed.
(c) Except as provided in paragraph (d) of this subsection, if
the board determines that forest operations being conducted in
accordance with the best management practices are neither
significantly responsible for particular water quality standards
not being met nor are a significant contributor to violations of
such standards, the board shall issue an order dismissing the
petition.
(d) If the petition for review of best management practices is
made by the Environmental Quality Commission, the board shall not
terminate the review without the concurrence of the commission,
unless the board commences rulemaking in accordance with
paragraph (f) of this subsection.
(e) If a petition for review is dismissed, upon conclusion of
the review, the board shall issue an order that includes findings
regarding specific allegations in the petition and shall state
the board's reasons for any conclusions to the contrary.
(f) If, pursuant to review, the board determines that best
management practices should be reviewed, the board shall commence
rulemaking proceedings for that purpose. Rules specifying the
revised best management practices must be adopted not later than
two years from the filing date of the petition for review unless
the board, with concurrence of the Environmental Quality
Commission, finds that special circumstances require additional
time.
(g) Notwithstanding the time limitation established in
paragraph (f) of this subsection, at the request of the
Environmental Quality Commission, the board shall take action as
quickly as practicable to prevent significant damage to
beneficial uses identified by the commission while the board is
revising its best management practices and rules as provided for
in this section.
(h) The board shall include in its triennial review of
administrative rules in accordance with ORS 183.545 an analysis
of the effectiveness of the best management practices and other
rules applying to forest practices adopted to maintain water
quality standards established by the Environmental Quality
Commission.
SECTION 47. { + Sections 2 to 5 of this 2001 Act are added to
and made a part of ORS 197.805 to 197.855. + }
SECTION 48. { + Except as provided in section 49 of this 2001
Act, this 2001 Act becomes operative on February 1, 2002, and
applies to all causes of action arising on or after February 1,
2002. + }
SECTION 49. { + The magistrates of the Land Use Board of
Magistrates department of the Court of Appeals may be appointed
before the operative date of this 2001 Act, and may take any
action before the operative date of this 2001 Act that is
necessary to enable the magistrates to exercise, on and after the
operative date of this 2001 Act, all the duties, functions and
powers conferred on the magistrates by this 2001 Act.
+ } { + SECTION 50. + } { + The Land Use Board of Appeals
is abolished. On the operative date of this section, the tenure
of office of members of the Land Use Board of Appeals shall
cease. + }
SECTION 51. { + (1) On the operative date of this 2001 Act,
the Land Use Board of Appeals shall transfer to the Land Use
Board of Magistrates the permanent employees, but not including
board members, in the regular service of the Land Use Board of
Appeals whose job duties relate to providing administrative
services required for conducting the review of land use decisions
or limited land use decisions. The transfer of employees shall be
made in a manner that is consistent with the provisions of the
budget passed by the Legislative Assembly in the 2001-2003
biennium.
(2) The Land Use Board of Magistrates shall employ all persons
transferred under this section in the performance, to the
greatest extent practicable, of the duties and functions of the
Land Use Board of Magistrates.
(3) The salaries and benefits of persons transferred under this
section may not be reduced because of the transfer, and persons
who are represented by a labor organization, as defined in ORS
243.650, shall continue to be represented by that labor
organization. Transferred persons are considered permanent
employees and may be disciplined or terminated only under the
same classification and procedures applicable to those employees
before transfer. + }
SECTION 52. { + There are transferred to the Land Use Board of
Magistrates on the operative date of this 2001 Act all the
supplies, materials, equipment, records, books and papers of the
Land Use Board of Appeals. + }
SECTION 53. { + For the purposes of harmonizing and clarifying
statute sections published in Oregon Revised Statutes that are
not amended in this 2001 Act, the Legislative Counsel may
substitute for words designating the Land Use Board of Appeals,
wherever they occur in Oregon Revised Statutes, other words
designating the Land Use Board of Magistrates. + }
SECTION 54. { + On the operative date of this 2001 Act, the
board chairperson of the Land Use Board of Appeals shall assign
the Land Use Board of Magistrates to continue the conduct of and
conclude proceedings pending on the operative date of this 2001
Act. The Land Use Board of Magistrates shall be substituted for
the Land Use Board of Appeals in any current or pending action or
proceeding. + }
SECTION 55. { + Notwithstanding the transfer of duties,
functions and powers by this 2001 Act, the lawfully adopted rules
of the Land Use Board of Appeals in effect on the operative date
of this 2001 Act continue in effect until lawfully superseded or
repealed by rules of the Land Use Board of Magistrates.
References in rules of the Land Use Board of Appeals to the Land
Use Board of Appeals or an officer or employee of the Land Use
Board of Appeals are considered to be references to the Land Use
Board of Magistrates or an officer or employee of the Land Use
Board of Magistrates. + }
SECTION 56. { + Nothing in this 2001 Act relieves a person of
an obligation with respect to a fine, charge, interest, penalty,
forfeiture or other liability, duty or obligation accruing under
or with respect to the duties, functions and powers transferred
by this 2001 Act. The Land Use Board of Magistrates may undertake
collection or enforcement of any fine, charge, interest, penalty,
forfeiture or other liability, duty or obligation. + }
SECTION 57. { + The rights and obligations of the Land
Conservation and Development Commission legally incurred + }
{ + on behalf of the Land Use Board of Appeals under contracts,
leases and business transactions, executed, entered into or begun
before the operative date of this 2001 Act, are transferred to
the Land Use Board of Magistrates. For the purpose of succession
to these rights and obligations, the Land Use Board of
Magistrates is considered to be a continuation of the Land Use
Board of Appeals and not a new authority, and the Land Use Board
of Magistrates shall exercise its rights and fulfill its
obligations as if they had not been transferred. + }
----------