Chapter 793 Oregon Laws 2003

AN ACT

SB 920

Relating to periodic review; creating new provisions; amending ORS 197.274, 197.320, 197.625, 197.626, 197.639 and 197.830; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 197.274 is amended to read:

197.274. (1) The Metro regional framework plan [and Metro planning goals and objectives], its separate components and amendments to the regional framework plan or to its separate components are subject to review:

[(1) For compliance with the statewide planning goals in the same manner as a comprehensive plan for purposes of:]

(a) For compliance with land use planning statutes, statewide land use planning goals and administrative rules corresponding to the statutes and goals, in the same manner as a comprehensive plan for purposes of:

[(a)] (A) Acknowledgment of compliance with the goals under ORS 197.251; and

[(b)] (B) Post-acknowledgment procedures under ORS 197.610 to 197.650; and

[(2)] (b) As a land use decision under ORS 197.805 to 197.855 and 197.860.

(2) With the prior consent of the Land Conservation and Development Commission, Metro may submit to the Department of Land Conservation and Development an amendment to the Metro regional framework plan or to a component of the regional framework plan in the manner provided for periodic review under ORS 197.628 to 197.650, if the amendment implements a program to meet the requirements of a land use planning statute, a statewide land use planning goal or an administrative rule corresponding to a statute or goal.

SECTION 2. ORS 197.320 is amended to read:

197.320. The Land Conservation and Development Commission shall issue an order requiring a local government, state agency or special district to take action necessary to bring its comprehensive plan, land use regulation, limited land use decisions or other land use decisions into compliance with the goals, acknowledged comprehensive plan provisions or land use regulations if the commission has good cause to believe:

(1) A comprehensive plan or land use regulation adopted by a local government not on a compliance schedule is not in compliance with the goals by the date set in ORS 197.245 or 197.250 for such compliance;

(2) A plan, program, rule or regulation affecting land use adopted by a state agency or special district is not in compliance with the goals by the date set in ORS 197.245 or 197.250 for such compliance;

(3) A local government is not making satisfactory progress toward performance of its compliance schedule;

(4) A state agency is not making satisfactory progress in carrying out its coordination agreement or the requirements of ORS 197.180;

(5) A local government has no comprehensive plan or land use regulation and is not on a compliance schedule directed to developing the plan or regulation;

(6) A local government has engaged in a pattern or practice of decision making that violates an acknowledged comprehensive plan or land use regulation. In making its determination under this subsection, the commission shall determine whether there is evidence in the record to support the decisions made. The commission shall not judge the issue solely upon adequacy of the findings in support of the decisions;

(7) A local government has failed to comply with a commission order entered under ORS 197.644;

(8) A special district has engaged in a pattern or practice of decision-making that violates an acknowledged comprehensive plan or cooperative agreement adopted pursuant to ORS 197.020;

(9) A special district is not making satisfactory progress toward performance of its obligations under ORS chapters 195 and 197; [or]

(10) A local government is applying approval standards, special conditions on approval of specific development proposals or procedures for approval that do not comply with ORS 197.307 (6); or

(11) A local government is not making satisfactory progress toward meeting its obligations under ORS 195.065.

SECTION 3. ORS 197.625 is amended to read:

197.625. (1) If [no] a notice of intent to appeal is not filed within the 21-day period set out in ORS 197.830 (9), the amendment to the acknowledged comprehensive plan or land use regulation or the new land use regulation shall be considered acknowledged upon the expiration of the 21-day period. An amendment to an acknowledged comprehensive plan or land use regulation is not considered acknowledged unless the [adopted amendment has] notices required under ORS 197.610 and 197.615 have been submitted to the Director of the Department of Land Conservation and Development [as required by ORS 197.610 to 197.625] and:

(a) The 21-day appeal period has expired[,]; or

(b) If an appeal is timely filed, the board affirms the decision or the appellate courts affirm the decision.

(2) If the decision adopting an amendment to an acknowledged comprehensive plan or land use regulation or a new land use regulation is affirmed on appeal under ORS 197.830 to 197.855, the amendment or new regulation shall be considered acknowledged upon the date the appellate decision becomes final.

(3)(a) Prior to its acknowledgment, the adoption of a new comprehensive plan provision or land use regulation or an amendment to a comprehensive plan or land use regulation is effective at the time specified by local government charter or ordinance and is applicable to land use decisions, expedited land divisions and limited land use decisions if the amendment was adopted in [accordance] substantial compliance with ORS 197.610 and 197.615 unless a stay is granted under ORS 197.845.

(b) Any approval of a land use decision, expedited land division or limited land use decision subject to an unacknowledged amendment to a comprehensive plan or land use regulation shall include findings of compliance with those land use goals applicable to the amendment.

(c) The issuance of a permit under an effective but unacknowledged comprehensive plan or land use regulation shall not be relied upon to justify retention of improvements so permitted if the comprehensive plan provision or land use regulation does not gain acknowledgment.

(d) The provisions of this subsection apply to applications for land use decisions, expedited land divisions and limited land use decisions submitted after February 17, 1993, and to comprehensive plan and land use regulation amendments adopted:

(A) After June 1, 1991, pursuant to periodic review requirements under ORS 197.628, 197.633 and 197.636;

(B) After June 1, 1991, to meet the requirements of ORS 197.646; and

(4) The director shall issue certification of the acknowledgment upon receipt of an affidavit from the board stating either:

(a) That no appeal was filed within the 21 days allowed under ORS 197.830 (9); or

(b) The date the appellate decision affirming the adoption of the amendment or new regulation became final.

(5) The board shall issue an affidavit for the purposes of subsection (4) of this section within five days of receiving a valid request from the local government.

(6) After issuance of the notice provided in ORS 197.633, nothing in this section shall prevent the Land Conservation and Development Commission from entering an order pursuant to ORS 197.633, 197.636 or 197.644 to require a local government to respond to the standards of ORS 197.628.

SECTION 4. ORS 197.626 is amended to read:

197.626. A metropolitan service district that amends its urban growth boundary to include more than 100 acres, or a city with a population of 2,500 or more within its urban growth boundary that amends the urban growth boundary to include more than 50 acres or that designates urban reserve areas under ORS 195.145, shall submit the amendment or designation to the Land Conservation and Development Commission in the manner provided for periodic review under ORS 197.628 to 197.650.

SECTION 5. ORS 197.639 is amended to read:

197.639. (1) In addition to coordination between state agencies and local government established in certified state agency coordination programs, the Department of Land Conservation and Development may establish one or more state assistance teams made up of representatives of various agencies and local governments or an alternative process for coordinating agency participation in the periodic review of comprehensive plans.

(2) The department may develop model ordinance provisions to assist local governments in the periodic review plan update process.

(3) A local government may arrange with the department for the provision of periodic review planning services and those services may be paid with grant program funds.

(4) The Land Conservation and Development Commission shall establish an advisory committee composed, at a minimum, of representatives from the League of Oregon Cities, the Association of Oregon Counties, metropolitan service districts, the Special Districts Association of Oregon, land use planning public interest groups and developer interest groups. The advisory committee shall advise the commission and the department on the allocation of grants and technical assistance funding from General Fund sources and other issues assigned by the commission.

SECTION 6. 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.

(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.

(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, or, on appeal of a decision under ORS 197.610 to 197.625, prior to the filing of the respondent’s brief, 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) 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) 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) 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 7. Notwithstanding ORS 197.628 to 197.650:

(1) Prior to July 1, 2005, neither the Land Conservation and Development Commission nor the Department of Land Conservation and Development may establish or require a new work program or a work task that adds new requirements to an existing work program unless a local government submits a written request that the commission establish or require the new work program or the work task and the commission agrees.

(2) Between July 1, 2005, and June 30, 2007, neither the commission nor the department may establish or require a new work program or a work task that adds new requirements to an existing work program unless:

(a) A local government submits a written request that the commission establish or require the new work program or the work task and the commission agrees; or

(b) The commission requires the new work program or the work task and pays the costs to perform the new work program or the work task.

SECTION 8. (1) For a work program or a work task submitted for review prior to July 1, 2003, the Director of the Department of Land Conservation and Development shall take action under ORS 197.633 (3)(a) not later than December 31, 2003. If the director does not take action under ORS 197.633 (3)(a) by December 31, 2003:

(a) The work program or work task is deemed approved and the Department of Land Conservation and Development shall provide a letter to the local government certifying that the work program or work task is approved unless an interested party has filed a timely objection to the work program or work task consistent with administrative rules for conducting periodic review; or

(b) The director shall refer the work program or work task to the Land Conservation and Development Commission in the manner provided in ORS 197.633 (3) if an interested party has filed a timely valid objection to the work program or work task consistent with administrative rules for conducting periodic review.

(2) For a work program or a work task submitted for review on or after July 1, 2003, but prior to January 1, 2004, the director shall take action under ORS 197.633 (3)(a) not later than 120 days after the local government submits the work program or work task for review. If the director does not take action under ORS 197.633 (3)(a) within 120 days after the local government submits the work program or work task for review:

(a) The work program or work task is deemed approved and the department shall provide a letter to the local government certifying that the work program or work task is approved unless an interested party has filed a timely objection to the work program or work task consistent with administrative rules for conducting periodic review; or

(b) The director shall refer the work program or work task to the commission in the manner provided in ORS 197.633 (3) if an interested party has filed a timely objection to the work program or work task consistent with administrative rules for conducting periodic review.

SECTION 9. (1) Notwithstanding ORS 197.628 to 197.650, if a work task that is included in a work program established prior to the effective date of this 2003 Act is not submitted prior to the effective date of this 2003 Act, a local government is not required to submit the work task for review unless:

(a) The local government is a city with a population of more than 10,000, a county or a metropolitan service district and the work task is related to economic development, housing, public facilities and services, transportation or urbanization;

(b) The work task is related to a statewide land use planning goal protecting coastal management and is required by federal law or a contract with a federal agency;

(c) The Land Conservation and Development Commission determines, on or before July 1, 2004, that a significant statewide or regional need requires that the work task be performed and the Department of Land Conservation and Development pays the costs to perform the work task;

(d) An interested party petitions the commission, on or before January 1, 2004, to require the completion of a work program or a work task that was scheduled for completion on or before January 1, 2004, and the commission, after providing notice and the opportunity for the affected local government to respond, agrees to the requirement; or

(e) The work program or work task is established or required under section 7 of this 2003 Act.

(2) Except as provided in subsections (3) and (4) of this section, if a local government chooses to perform a work task that is not required by subsection (1) of this section, the local government shall perform the work task as an amendment to an acknowledged comprehensive plan or land use regulation or adoption of a new land use regulation consistent with ORS 197.615, 197.620 and 197.625.

(3) Prior to July 1, 2004, a local government may choose to perform and submit an existing work task for review as part of the periodic review process.

(4) A local government may request, based on the complexity of a work task, that the commission authorize the local government to complete an existing nonmandatory work task as part of the periodic review process on or after July 1, 2004. The commission shall act on the request within 90 days after receiving the request.

(5) If a local government chooses to discontinue work on an existing nonmandatory work task, the local government may submit a letter stating its decision to the department. If a local government submits the letter described in this subsection, the department shall remove the work task from the work program unless the commission has taken action under subsection (1)(c) of this section.

(6) The Director of the Department of Land Conservation and Development shall take action under ORS 197.633 (3)(a) on a work task described in subsection (1), (3) or (4) of this section not later than 120 days after the local government submits the work task for review unless:

(a) The local government waives the 120-day deadline; or

(b) The commission grants the director an extension.

(7) If the director does not take action under ORS 197.633 (3)(a) within the time period required by subsection (6) of this section:

(a) The work task is deemed approved and the department shall provide a letter to the local government certifying that the work task is approved unless an interested party has filed a timely objection to the work task consistent with administrative rules for conducting periodic review; or

(b) The director shall refer the work task to the commission in the manner provided in ORS 197.633 (3) if an interested party has filed a timely objection to the work task consistent with administrative rules for conducting periodic review.

SECTION 10. (1) The Land Conservation and Development Commission shall submit a report to the Seventy-third and the Seventy-fourth Legislative Assemblies detailing the number of work programs and work tasks that:

(a) Are outstanding;

(b) Have been submitted to the Department of Land Conservation and Development for review; and

(c) Have been approved by the department or the commission.

(2) The commission shall establish an interim committee composed of at least nine but not more than 13 members and charged with evaluating the periodic review program under ORS 197.628 to 197.650 to determine:

(a) How effectively the program accomplishes the legislatively declared policy for the program;

(b) How cost-effective the program is; and

(c) How efficiently the program balances program requirements with available state and local resources.

(3) The members of the committee established under subsection (2) of this section must include representatives of the following interest groups:

(a) The League of Oregon Cities;

(b) The Association of Oregon Counties;

(c) The Special Districts Association of Oregon;

(d) Metropolitan service districts;

(e) The office of the Governor;

(f) The commission;

(g) Land use planning public interest groups; and

(h) Developer interest groups.

(4) The committee established under subsection (2) of this section shall prepare a report for the Seventy-third Legislative Assembly containing:

(a) An evaluation of the periodic review program; and

(b) Recommendations for improving the program to better accomplish the goals of the program in a more cost-effective and efficient manner.

SECTION 11. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

Approved by the Governor September 22, 2003

Filed in the office of Secretary of State September 22, 2003

Effective date September 22, 2003

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