72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 1809
A-Engrossed
House Bill 2785
Ordered by the House April 22
Including House Amendments dated April 22
Sponsored by COMMITTEE ON BUSINESS, LABOR AND CONSUMER AFFAIRS
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.
Clarifies that { + modification of + } approved utility
facility is not subject to subsequently enacted approval
criteria. { - Authorizes construction of utility facility under
ordinances existing when facility siting approved for 10 years
from time of approval. - }
{ + Exempts modification of utility facility used to provide
personal wireless services from certain land use regulations. + }
A BILL FOR AN ACT
Relating to utility facilities in exclusive farm use zones;
amending ORS 215.130, 215.275 and 227.215.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 215.275 is amended to read:
215.275. (1) A utility facility established under ORS 215.213
(1)(d) or 215.283 (1)(d) is necessary for public service if the
facility must be sited in an exclusive farm use zone in order to
provide the service.
(2) To demonstrate that a utility facility is necessary, an
applicant for approval under ORS 215.213 (1)(d) or 215.283 (1)(d)
must show that reasonable alternatives have been considered and
that the facility must be sited in an exclusive farm use zone due
to one or more of the following factors:
(a) Technical and engineering feasibility;
(b) The proposed facility is locationally dependent. A utility
facility is locationally dependent if it must cross land in one
or more areas zoned for exclusive farm use in order to achieve a
reasonably direct route or to meet unique geographical needs that
cannot be satisfied on other lands;
(c) Lack of available urban and nonresource lands;
(d) Availability of existing rights of way;
(e) Public health and safety; and
(f) Other requirements of state or federal agencies.
(3) Costs associated with any of the factors listed in
subsection (2) of this section may be considered, but cost alone
may not be the only consideration in determining that a utility
facility is necessary for public service. Land costs shall not be
included when considering alternative locations for substantially
similar utility facilities. The Land Conservation and Development
Commission shall determine by rule how land costs may be
considered when evaluating the siting of utility facilities that
are not substantially similar.
(4) The owner of a utility facility approved under ORS 215.213
(1)(d) or 215.283 (1)(d) shall be responsible for restoring, as
nearly as possible, to its former condition any agricultural land
and associated improvements that are damaged or otherwise
disturbed by the siting, maintenance, repair or reconstruction of
the facility. Nothing in this section shall prevent the owner of
the utility facility from requiring a bond or other security from
a contractor or otherwise imposing on a contractor the
responsibility for restoration.
(5) The governing body of the county or its designee shall
impose clear and objective conditions on an application for
utility facility siting under ORS 215.213 (1)(d) or 215.283
(1)(d) to mitigate and minimize the impacts of the proposed
facility, if any, on surrounding lands devoted to farm use in
order to prevent a significant change in accepted farm practices
or a significant increase in the cost of farm practices on the
surrounding farmlands.
(6) The provisions of subsections (2) to (5) of this section do
not apply to interstate natural gas pipelines and associated
facilities authorized by and subject to regulation by the Federal
Energy Regulatory Commission.
{ + (7)(a) The provisions of subsections (2) to (5) of this
section do not apply to a modification of a utility facility,
including a tower, used to provide personal wireless services, as
defined in 47 U.S.C. 332, and previously approved as necessary
for public service under ORS 215.213 (1) or 215.283 (1).
(b) As used in this subsection, 'modification' includes a
change in the existing carrier equipment and a new co-location of
facilities or equipment. + }
SECTION 2. ORS 215.130 is amended to read:
215.130. (1) Any legislative ordinance relating to land use
planning or zoning shall be a local law within the meaning of,
and subject to, ORS 250.155 to 250.235.
(2) An ordinance designed to carry out a county comprehensive
plan and a county comprehensive plan shall apply to:
(a) The area within the county also within the boundaries of a
city as a result of extending the boundaries of the city or
creating a new city unless, or until the city has by ordinance or
other provision provided otherwise; and
(b) The area within the county also within the boundaries of a
city if the governing body of such city adopts an ordinance
declaring the area within its boundaries subject to the county's
land use planning and regulatory ordinances, officers and
procedures and the county governing body consents to the
conferral of jurisdiction.
(3) An area within the jurisdiction of city land use planning
and regulatory provisions that is withdrawn from the city or an
area within a city that disincorporates shall remain subject to
such plans and regulations which shall be administered by the
county until the county provides otherwise.
(4) County ordinances designed to implement a county
comprehensive plan shall apply to publicly owned property.
(5) The lawful use of any building, structure or land at the
time of the enactment or amendment of any zoning ordinance or
regulation may be continued. Alteration of any such use may be
permitted subject to subsection (9) of this section. Alteration
of any such use shall be permitted when necessary to comply with
any lawful requirement for alteration in the use. Except as
provided in ORS 215.215, a county shall not place conditions upon
the continuation or alteration of a use described under this
subsection when necessary to comply with state or local health or
safety requirements, or to maintain in good repair the existing
structures associated with the use. A change of ownership or
occupancy shall be permitted.
(6) Restoration or replacement of any use described in
subsection (5) of this section may be permitted when the
restoration is made necessary by fire, other casualty or natural
disaster. Restoration or replacement shall be commenced within
one year from the occurrence of the fire, casualty or natural
disaster. If restoration or replacement is necessary under this
subsection, restoration or replacement shall be done in
compliance with ORS 195.260 (1)(c).
(7)(a) Any use described in subsection (5) of this section may
not be resumed after a period of interruption or abandonment
unless the resumed use conforms with the requirements of zoning
ordinances or regulations applicable at the time of the proposed
resumption.
(b) Notwithstanding any local ordinance, a surface mining use
continued under subsection (5) of this section shall not be
deemed to be interrupted or abandoned for any period after July
1, 1972, provided:
(A) The owner or operator was issued and continuously renewed a
state or local surface mining permit, or received and maintained
a state or local exemption from surface mining regulation; and
(B) The surface mining use was not inactive for a period of 12
consecutive years or more.
(c) For purposes of this subsection, 'inactive' means no
aggregate materials were excavated, crushed, removed, stockpiled
or sold by the owner or operator of the surface mine.
(8) Any proposal for the verification or alteration of a use
under subsection (5) of this section, except an alteration
necessary to comply with a lawful requirement, for the
restoration or replacement of a use under subsection (6) of this
section or for the resumption of a use under subsection (7) of
this section shall be subject to the provisions of ORS 215.416.
An initial decision by the county or its designate on a proposal
for the alteration of a use described in subsection (5) of this
section shall be made as an administrative decision without
public hearing in the manner provided in ORS 215.416 (11).
(9) As used in this section, 'alteration' of a nonconforming
use includes:
(a) A change in the use of no greater adverse impact to the
neighborhood; and
(b) A change in the structure or physical improvements of no
greater adverse impact to the neighborhood.
(10) A local government may adopt standards and procedures to
implement the provisions of this section. The standards and
procedures may include but are not limited to the following:
(a) For purposes of verifying a use under subsection (5) of
this section, a county may adopt procedures that allow an
applicant for verification to prove the existence, continuity,
nature and extent of the use only for the 10-year period
immediately preceding the date of application. Evidence proving
the existence, continuity, nature and extent of the use for the
10-year period preceding application creates a rebuttable
presumption that the use, as proven, lawfully existed at the time
the applicable zoning ordinance or regulation was adopted and has
continued uninterrupted until the date of application;
(b) Establishing criteria to determine when a use has been
interrupted or abandoned under subsection (7) of this section; or
(c) Conditioning approval of the alteration of a use in a
manner calculated to ensure mitigation of adverse impacts as
described in subsection (9) of this section.
(11) For purposes of verifying a use under subsection (5) of
this section, a county may not require an applicant for
verification to prove the existence, continuity, nature and
extent of the use for a period exceeding 20 years immediately
preceding the date of application.
{ + (12) When a county makes a land use decision under ORS
215.275 on or after January 1, 1990, relating to a utility
facility, including a tower, used to provide personal wireless
services, as defined in 47 U.S.C. 332, the county may apply only
ordinances implemented under an acknowledged comprehensive plan
and in effect when the initial application for construction of
the utility facility was filed to the construction and subsequent
modification of the utility facility, unless the applicant elects
otherwise. + }
SECTION 3. ORS 227.215 is amended to read:
227.215. (1) As used in this section, 'development' means a
building or mining operation, making a material change in the use
or appearance of a structure or land, dividing land into two or
more parcels, including partitions and subdivisions as provided
in ORS 92.010 to 92.285, and creating or terminating a right of
access.
(2) A city may plan and otherwise encourage and regulate the
development of land. A city may adopt an ordinance requiring that
whatever land development is undertaken in the city comply with
the requirements of the ordinance and be undertaken only in
compliance with the terms of a development permit.
(3) A development ordinance may provide for:
(a) Development for which a permit is granted as of right on
compliance with the terms of the ordinance;
(b) Development for which a permit is granted discretionarily
in accordance and consistent with the requirements of ORS
227.173;
(c) Development which need not be under a development permit
but shall comply with the ordinance; and
(d) Development which is exempt from the ordinance.
(4) The ordinance may divide the city into districts and apply
to all or part of the city.
{ + (5) When a city makes a land use decision under ORS
215.275 on or after January 1, 1990, relating to a utility
facility, including a tower, used to provide personal wireless
services, as defined in 47 U.S.C. 332, the city may apply only
development ordinances implemented under an acknowledged
comprehensive plan and in effect when the initial application for
construction of the utility facility was filed to the
construction or subsequent modification of the utility facility,
unless the applicant elects otherwise. + }
----------