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 2766
A-Engrossed
House Bill 2909
Ordered by the House May 7
Including House Amendments dated May 7
Sponsored by Representative GARRARD
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.
Changes population thresholds for cities and counties that are
required to conduct periodic review. { - Directs Land
Conservation and Development Commission and local governments to
attempt to complete periodic review within two years after
approval of work program. - } { + Modifies subjects of periodic
review. Directs Land Conservation and Development Commission to
develop checklist for local governments to use for periodic
review. Requires metropolitan service district amending urban
growth boundary to include more than 100 acres to submit
amendment to commission for periodic review. Modifies schedule of
periodic reviews. + }
A BILL FOR AN ACT
Relating to periodic review; creating new provisions; and
amending ORS 195.110, 197.186, 197.299, 197.320, 197.625,
197.626, 197.628, 197.629, 197.631, 197.633 and 197.830.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 195.110 is amended to read:
195.110. (1)(a) A county or city containing a high growth
school district shall include as an element of its comprehensive
plan a school facility plan prepared by the high growth district
in cooperation with the city or county.
(b) A county or city containing a high growth area shall
initiate planning activities with a school district to accomplish
planning as required under ORS 195.020.
(c) The provisions of paragraph (a) of this subsection do not
apply to a city that contains less than 10 percent of the total
population of a high growth school district.
(2) As used in this section, 'high growth school district '
means any school district that has an enrollment of over 5,000
students and had an increase in student enrollment of six percent
or more during the three most recent school years, based on
certified enrollment numbers submitted to the Department of
Education during the first quarter of each new school year.
(3) The school facility plan shall identify school facility
needs based on population growth projections and land use
designations contained in the city or county comprehensive plan.
The plan shall be updated during periodic review { + conducted
under ORS 197.633, or during review conducted under section 12 of
this 2003 Act, + } and may be updated more frequently by mutual
agreement between the school district and the county or city.
(4)(a) In the school facility plan, a high growth school
district shall assess the capacity of school facilities on the
basis of objective criteria that are formally approved by the
school board. In an agreement under ORS 195.020, the school
district and the city or county shall agree, to the greatest
extent possible, on the criteria for the capacity of school
facilities. After a school district formally adopts criteria for
the capacity of school facilities, a county or city shall accept
those criteria as its own for purposes of evaluating applications
for a comprehensive plan amendment or for a residential land use
regulation amendment.
(b) A city or county shall provide notice to an affected school
district when considering a plan or land use regulation amendment
that significantly impacts school capacity. If the school
district requests, the city or county shall implement a
coordinated process with the school district to identify
potential school sites and facilities to address the projected
impacts.
(c) The provisions of paragraph (b) of this subsection apply to
an action that involves:
(A) High growth school districts;
(B) Light rail planning in an area that is not a high growth
school district; or
(C) The addition of 1,000 or more residential units in an area
that is not a high growth school district.
(5) The school facility plan shall provide for the integration
of existing city or county land dedication requirements with the
needs of the school district.
(6) Any school district not defined as high growth in
subsection (2) of this section may adopt a plan for school
facilities as set forth in this section, subject to cooperation
with the affected cities or counties.
(7) The school facility plan shall cover a period of at least
five years and shall include but need not be limited to the
following elements:
(a) Population projections by school age group;
(b) Identification by both the city or county and the school
district of desirable school sites;
(c) Physical improvements needed to bring existing schools up
to the school district's minimum standards;
(d) Financial plans to meet school facility needs;
(e) An analysis of:
(A) The alternatives to new school construction and major
renovation; and
(B) Measures to increase the efficient use of school sites
including, but not limited to, multiple-story buildings and
multipurpose use of sites;
(f) Five-year capital improvement plans;
(g) Site acquisition schedules and programs; and
(h) Based on the elements included in the school facility plan
under this subsection and applicable laws and rules, an analysis
of the land required for the five-year period covered by the plan
that is suitable, as a permitted or conditional use, for school
facilities inside the urban growth boundary.
(8) If a school district determines that there is an inadequate
supply of suitable land for school facilities for the five-year
period covered by the plan, the city or county, or both, and the
school district shall cooperate in identifying land for school
facilities including, but not limited to, adopting appropriate
zoning, aggregating existing lots or parcels in separate
ownership, adding one or more sites designated for school
facilities to an urban growth boundary or petitioning a
metropolitan service district to add one or more sites designated
for school facilities to an urban growth boundary pursuant to
applicable law and rules.
(9) The capacity of a school facility shall not be the basis
for a development moratorium under ORS 197.505 to 197.540.
(10) This section and ORS 197.015 do not confer any power to a
school district to declare a building moratorium.
(11) Notwithstanding any other provision of state or local law,
school capacity shall not be the sole basis for the approval or
denial of any residential development application, unless the
application involves changes to the local government
comprehensive plan or land use regulations.
SECTION 2. ORS 197.186 is amended to read:
197.186. (1) At periodic review under ORS 197.633 { + or upon
review under section 12 of this 2003 Act, + } next following
approval of an application under ORS 308A.309, the local
government shall remove any lot or parcel subject to the
application from any inventory of buildable lands maintained by
the local government. The local government shall compensate for
the resulting reduction in available buildable lands either by
increasing the development capacity of the remaining supply of
buildable lands or by expanding the urban growth boundary.
(2) A landowner who wishes to reapply for current open space
use assessment under ORS 308A.306 following the end of the
assessment period shall reapply with the local government as
provided in ORS 308A.309.
SECTION 3. ORS 197.299 is amended to read:
197.299. (1) A metropolitan service district organized under
ORS chapter 268 shall { - complete the initial - } { +
conduct the + } inventory { - , determination - } and analysis
required under ORS 197.296 (3) { - not later than January 1,
1998, and conduct the inventory and analysis at least every five
years thereafter - } { + as part of periodic review under ORS
197.633 + }.
(2)(a) The metropolitan service district shall take such action
as necessary under ORS 197.296 (6)(a) to accommodate one-half of
a 20-year buildable land supply determined under ORS 197.296 (3)
within one year of completing the analysis.
(b) The metropolitan service district shall take all final
action under ORS 197.296 (6)(a) necessary to accommodate a
20-year buildable land supply determined under ORS 197.296 (3)
within two years of completing the analysis.
(c) The metropolitan service district shall take action under
ORS 197.296 (6)(b), within one year after the analysis required
under ORS 197.296 (3)(b) is completed, to provide sufficient
buildable land within the urban growth boundary to accommodate
the estimated housing needs for 20 years from the time the
actions are completed. The metropolitan service district shall
consider and adopt new measures that the governing body deems
appropriate under ORS 197.296 (6)(b).
(3) The Land Conservation and Development Commission may grant
an extension to the time limits of subsection (2) of this section
if the Director of the Department of Land Conservation and
Development determines that the metropolitan service district has
provided good cause for failing to meet the time limits.
SECTION 4. 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 5. 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 acknowledged unless the adopted
amendment has - } { + is deemed to be acknowledged if the
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 - } { + , + } the 21-day appeal period has expired
{ - , - } { + and + } 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
(C) After November 4, 1993.
(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 6. ORS 197.626 is amended to read:
197.626. A { + metropolitan service district that amends the
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 7. ORS 197.628 is amended to read:
197.628. (1) It is the policy of the State of Oregon to require
the periodic review of comprehensive plans and land use
regulations in order to respond to changes in local, regional and
state conditions to ensure that the plans and regulations remain
in compliance with the statewide planning goals adopted
{ - pursuant to ORS 197.230, and to ensure that the plans and
regulations make adequate provision for needed - } { + by the
Land Conservation and Development Commission under ORS 197.225
that address economic development, + } housing,
{ - employment, - } transportation { + , urbanization + } and
public facilities and services.
(2) The { - Land Conservation and Development - } commission
shall
{ - concentrate - } { + limit + } periodic review
{ + financial + } assistance to { + those + } local governments
{ - on achieving - } { + required to achieve + } compliance
with { - those - } { + the + } statewide land use planning
laws and goals that address { + economic development, + } needed
housing, { - employment, - } transportation { + ,
urbanization + } and public facilities and services. { +
Financial assistance shall be provided to those jurisdictions
subject to periodic review as well as to cities and counties
subject to the requirements of section 12 of this 2003 Act. + }
(3) The following conditions indicate the need for
{ + revisions to a local government + } { - periodic review
of - } comprehensive { - plans - } { + plan + } and land use
regulations:
(a) There has been a substantial change in circumstances
including but not limited to the conditions, findings or
assumptions upon which the comprehensive plan or land use
regulations were based, so that the comprehensive plan or land
use regulations do not comply with the statewide planning goals
{ + described in subsection (1) of this section + };
(b) Decisions implementing acknowledged comprehensive plan and
land use regulations are inconsistent with { - the - } goals
{ + described in subsection (1) of this section + };
(c) There are issues of regional or statewide significance,
intergovernmental coordination or state agency plans or programs
affecting land use which must be addressed in order to bring
comprehensive plans and land use regulations into compliance with
{ - the - } goals { + described in subsection (1) of this
section + }; or
(d) The local government { - , - } { + or + } commission
{ - or Department of Land Conservation and Development - }
determines that the existing comprehensive plan and land use
regulations are not achieving
{ - the - } statewide planning goals { + described in
subsection (1) of this section + }.
SECTION 8. ORS 197.629 is amended to read:
197.629. (1) The Land Conservation and Development Commission
shall establish and maintain a schedule for periodic review of
comprehensive plans and land use regulations. Except as necessary
to coordinate approved periodic review work programs and to
account for special circumstances that from time to time arise,
the schedule shall { - reflect the following timelines: - }
{ + be consistent with the provisions of this section.
(2) Except as provided in subsection (4)(b) of this section:
(a) A city with a population of 25,000 or more within its urban
growth boundary shall conduct periodic review seven years after
completion of the previous periodic review; and + }
{ - (a) - } { + (b) + } A city with a population of less
than { - 2,500 - } { + 25,000 + } within its urban growth
boundary { - shall not be - } { + is not + } required to
conduct periodic review unless the { - city lies close enough
to another city that has a population of 25,000 or more within
its urban growth boundary that the smaller city is significantly
affected by needed housing, employment, transportation or public
facility and services decisions made by the larger city; - }
{ + commission, after notice and public hearing, determines and
adopts written findings supported by evidence in the record that
the land uses within the city are having a significant impact on
a city with a population of more than 25,000 within its urban
growth boundary. + }
{ - (b) Except as provided in subsection (2) of this section,
a county with a population of less than 15,000 shall not be
required to conduct periodic review; - }
{ - (c) A county with a population of 15,000 or more but less
than 50,000, or a city with a population of 2,500 or more but
less than 25,000 inside its urban growth boundary, shall conduct
periodic review every 5 to 15 years after completion of the
previous periodic review; and - }
{ - (d) A county with a population of 50,000 or more, or a
metropolitan service district or a city with a population of
25,000 or more inside its urban growth boundary, shall conduct
periodic review every 5 to 10 years after completion of the
previous periodic review. - }
{ - (2) - } { + (3) + } A county with a portion of its
population within the urban growth boundary of a city subject to
periodic review under this section shall conduct periodic review
for that portion of the county according to the schedule and work
program set for the city. { + Except as provided in this
subsection, a county shall not be required to conduct periodic
review under this section.
(4)(a) A metropolitan service district shall conduct periodic
review at least every seven years.
(b) Notwithstanding subsections (2) and (3) of this section, a
city or county located within a metropolitan service district is
not required to conduct periodic review under this section. + }
{ - (3) Notwithstanding subsection (2) of this section, if
the schedule set for the county is specific as to that portion of
the county within the urban growth boundary of a city subject to
periodic review under this section, the county shall conduct
periodic review for that portion of the county according to the
schedule and work program set for the county. - }
{ - (4) The Land Conservation and Development Commission may
schedule periodic review for a local government earlier than
provided in subsection (1) of this section if necessary to ensure
that all local governments in a region whose land use decisions
would significantly affect other local governments in the region
are conducting periodic review concurrently. - }
{ - (5) A city or county that is exempt from periodic review
under subsection (1)(a) or (b) of this section may request
periodic review by the commission. - }
SECTION 9. { + (1) The amendments to ORS 197.629 by section 8
of this 2003 Act apply to a periodic review that begins on or
after the effective date of this 2003 Act.
(2) A metropolitan service district shall commence its first
periodic review under ORS 197.633 by January 1, 2009.
(3) A city located outside a metropolitan service district
shall commence its first periodic review under ORS 197.633:
(a) By January 1, 2012, for a city that was in periodic review
on January 1, 2003;
(b) By January 1, 2009, for a city that last completed periodic
review after January 1, 1999, and prior to January 1, 2003; and
(c) By January 1, 2006, for a city that last completed periodic
review on or before January 1, 1999. + }
SECTION 10. ORS 197.631 is amended to read:
197.631. (1) In order to use state and local periodic review
resources most efficiently and effectively and to concentrate
periodic review on { - adequate provision of needed housing,
employment, transportation and public facilities and services - }
{ + the goals identified in ORS 197.628 (1) + }, the Land
Conservation and Development Commission shall adopt { - , amend
or repeal the statewide land use planning goals, guidelines and
corresponding rules as necessary to facilitate periodic review
and to provide for compliance by - } { + a standardized
checklist that + } local governments
{ - with those goals not - } { + will use for periodic review
conducted under ORS 197.633. The checklist shall be based on the
goals + } described in ORS 197.628 { + (1). + } { - (2)
through the post-acknowledgment procedures of ORS 197.610 to
197.625 - } { + The checklist shall identify the specific
issues that a local government must evaluate and address during
periodic review + }.
(2) In the biennial report required under ORS 197.060, the
commission shall report to the Legislative Assembly and the Joint
Legislative Committee on Land Use on its activities implementing
subsection (1) of this section.
SECTION 11. ORS 197.633 is amended to read:
197.633. (1) The periodic review process is divided into two
phases. Phase one is the evaluation of the existing comprehensive
plan { - , - } { + and + } land use regulations { - and
citizen involvement program - } and, if necessary, the
development of a work program to make needed changes to the
comprehensive plan or land use regulations. Phase two is the
completion of work tasks outlined in the work program.
{ - (2) The Land Conservation and Development Commission
shall adopt rules for conducting periodic review. The rules shall
provide a process for: - }
{ - (a) Initiating periodic review; - }
{ - (b) Citizen participation; - }
{ - (c) The participation of state agencies; - }
{ - (d) The preparation, review and approval of an evaluation
of a comprehensive plan and land use regulations; - }
{ - (e) Review of a work program; and - }
{ - (f) Review of completed work tasks. - }
{ - (3)(a) A decision by the Director of the Department of
Land Conservation and Development to approve a work program or a
work task, that no work program is necessary or that no further
work is necessary, may be appealed to the commission or referred
to the commission by the director. Except as provided in
paragraph (b) of this subsection, the commission shall take
action on the appeal or referral within 90 days of the appeal or
referral. Action by the commission in response to an appeal from
a decision of the director is a final order subject to judicial
review in the manner provided in ORS 197.650. - }
{ - (b) The commission may extend the time in paragraph (a)
of this subsection for taking action on the appeal or referral if
the commission finds that: - }
{ - (A) The appeal or referral is appropriate for mediation;
or - }
{ - (B) The appeal or referral raises new or complex issues
of fact or law that make it unreasonable for the commission to
give adequate consideration to the issues within the 90-day
limit. - }
{ - (4) The commission and a local government shall attempt
to complete periodic review within three years after approval of
a work program. In order to promote the timely completion of
periodic review, the commission shall establish a system of
incentives to encourage local government compliance with
timelines in periodic review work programs. - }
{ + (2) Development of the work program shall be conducted
according to the following:
(a) The Department of Land Conservation and Development shall
provide notice to a local government when it is time to commence
periodic review as required by the Land Conservation and
Development Commission under ORS 197.629. The department shall
include with the notice the checklist of issues adopted by the
Land Conservation and Development Commission under ORS 197.631
that the local government must evaluate as part of periodic
review. At the same time that the department sends the notice to
the local government, the department shall send a copy of the
notice to any interested party that had requested such notice
from the department.
(b) Except as provided in paragraph (c) of this subsection,
within 120 days of receiving the notice, a local government shall
prepare and submit to the commission its response to the
checklist. For each item on the checklist, the local government
shall:
(A) Indicate a date within three years by which the local
government will complete the task;
(B) Describe prior actions that the local government has taken
that complete that task; or
(C) Describe why no action is necessary.
(c) A local government may hold a public hearing prior to
submitting its response to the commission. If a local government
decides to hold a hearing, the local government shall submit its
response to the commission within 150 days. The local government
shall provide notice of the hearing to the department and the
public at least 10 days prior to the hearing. A person, including
the department, must appear in person or in writing in order to
object to the response that is submitted to the commission. Any
appeal to the commission of the local government response shall
be limited to the objections that the appellant specifically
raised before the local government.
(d) Within 30 days following the local government's submission
of its response to the commission, a person, including the
department, may file written objections with the commission. If
the local government held a public hearing under paragraph (c) of
this subsection, only a person, including the department, who
presented objections to the local government may file an
objection with the commission, and any objections filed with the
commission shall be limited to those objections presented to the
local government. If an appeal is not filed within 30 days, then
the local government's submission is final and not subject to
challenge.
(e) If an objection is filed within 30 days, the local
government shall respond in writing to the objection within 21
days of the date the objection is filed with the commission. The
commission may hold oral argument on the objection. The
commission shall issue a decision on the objection within 60 days
of the date the local government files the written response. If
the commission fails to issue a decision within 60 days, the
objection is deemed denied.
(f) Any party to an appeal before the commission, except for
the department, may appeal a final decision issued by the
commission under paragraph (e) of this subsection, including a
denial based on a failure to issue a decision, to the Court of
Appeals.
(3)(a) A local government shall attempt to complete periodic
review within three years after the local government's work
program is final.
(b) A local government shall comply with the notice and
procedure requirements of ORS 197.610 and 197.615 with respect to
each comprehensive plan amendment or land use regulation
amendment adopted by the local government pursuant to the
periodic review work program.
(4)(a) Notwithstanding ORS 197.825, any person, including the
department, who believes that a local government's decision to
adopt a comprehensive plan amendment or land use regulation
amendment pursuant to periodic review is unlawful may appeal the
decision to the commission. The commission has exclusive
jurisdiction to review a decision to amend the comprehensive plan
or to adopt, amend or repeal a land use regulation pursuant to
periodic review.
(b) The person or the department may appeal the decision only
if the person or the department participated in the decision
before the local government. The person or the department may not
raise before the commission any issue that the person or the
department failed to raise before the local government.
(c) A notice of intent to appeal the decision to the commission
must be filed within 21 days of the notice required under ORS
197.615 (1). The notice of intent to appeal shall specifically
identify any error in the decision alleged by the person filing
the notice.
(d) The commission shall establish a deadline to file a
detailed objection with the commission that describes the nature
of the petitioner's objection. The local government may withdraw
its decision for reconsideration at any time prior to the filing
of the petitioner's objection. If the local government withdraws
the decision for reconsideration, it shall affirm, modify or
rescind the decision. If the petitioner remains dissatisfied with
the decision after reconsideration, the petitioner may refile the
notice of intent to appeal and shall specify which of its
original assignments of error the petitioner wants the commission
to review. The review by the commission shall proceed upon the
decision on reconsideration. The review shall be limited to
challenges that the local government action violates a
substantive provision of one or more of the goals described in
ORS 197.628 (1).
(e) The commission shall adopt rules governing an appeal filed
under this section. The rules shall require that:
(A) The petitioner's objection be filed not more than 21 days
after the notice of intent to appeal is filed with the
commission;
(B) The issues raised in the objection must be limited to those
contained in the notice of intent to appeal; and
(C) The local government's response to the petitioner's
objection must be filed with the commission not more than 21 days
after the petitioner's objection is filed.
(f) The commission shall issue a decision on the appeal within
60 days of the filing of the local government's response. The
commission shall affirm the local government decision unless the
commission concludes that the action violates a substantive
provision of one or more of the statewide planning goals
described in ORS 197.628 (1). If the commission fails to issue a
decision within the 60-day period, then the local government's
action shall be deemed affirmed.
(g) Following a final decision by the commission, including a
decision to affirm resulting from the expiration of the 60-day
period, a person may appeal the commission decision to the Court
of Appeals in the manner provided under ORS 197.650. + }
SECTION 12. { + (1)(a) At least once every 10 years, every
city with a population of more than 2,500, every county and every
metropolitan service district shall review its comprehensive plan
to ensure that the plan has been amended to address any new or
amended statutes, goals or administrative rules that were adopted
since the last review under this section.
(b) For a local government subject to ORS 197.633, the review
required by this section does not include review for compliance
with statewide planning goals described in ORS 197.628 (1).
(2) Review under this section shall commence with the
Department of Land Conservation and Development providing notice
to the local government that the review is required. Within 12
months of receiving the notice from the department, the local
government shall make an initial determination whether its
comprehensive plan needs to be amended due to the adoption of new
or amended statutes, goals or administrative rules.
(3) The local government shall submit its initial determination
under subsection (2) of this section to the department. Upon
receiving the initial determination, the department shall give
notice to interested persons within 10 days of receiving the
determination.
(4) The department or an interested person may, within 45 days
of the department's receipt of the initial determination, submit
to the local government written objections to the initial
determination. If no written objections are received by the local
government within the 45-day period, then the local government's
initial determination becomes final and may not be appealed.
(5) If written objections are received by the local government
within the 45-day period, the local government shall consider the
objections. The local government may revise the initial
determination to address the objection and issue the final
determination, or reject the objection and issue the final
determination. The local government shall send a copy of the
final determination to the department and to each person who
submitted written objections.
(6)(a) Any person, including the department, that submitted
written objections to the local government may appeal the final
determination to the Land Use Board of Appeals within 21 days of
the date that the local government sent the final determination.
The appeal shall be filed with the board as provided under ORS
197.830.
(b) The appeal shall be limited to the specific objections the
petitioner submitted to the local government and any changes made
to the initial determination before adopting a final
determination.
(7) A local government shall undertake the work required by its
final determination and any appeal of the final determination.
Such work shall be undertaken as post-acknowledgment plan
amendments pursuant to ORS 197.610 to 197.625. + }
SECTION 13. { + (1) Notwithstanding ORS 197.628, 197.629,
197.631 and 197.633 and section 12 of this 2003 Act, a periodic
review work task begun prior to the effective date of this 2003
Act shall be completed and reviewed as provided in this section
and not otherwise.
(2) Periodic review work tasks that are adopted but not
acknowledged prior to the effective date of this 2003 Act shall
be deemed acknowledged unless the Department of Land Conservation
and Development or an interested party files notice with the Land
Conservation and Development Commission within 21 days of the
effective date of this 2003 Act that it intends to appeal the
adopted decision. A notice of intent to appeal does not need to
be filed if the periodic review work task is already undergoing
review by the commission on the effective date of this 2003 Act.
(3) The commission has 120 days from the effective date of this
2003 Act to complete its review and issue a final written
decision with respect to a periodic review work task that was
adopted by a local government prior to the effective date of this
2003 Act. If the commission fails to adopt a written decision
within 120 days, the periodic review work task is deemed approved
and acknowledged.
(4) A person who participates in a proceeding on periodic
review before the commission may appeal a decision by the
commission, including approval resulting from a failure by the
commission to issue a decision within 120 days, to the Court of
Appeals in the manner provided under ORS 197.650.
(5) If a periodic review work task was begun but not completed
prior to the effective date of this 2003 Act, the following
provisions shall govern the completion of the work task:
(a) If the local government is subject to periodic review under
ORS 197.629 and the periodic review work task concerns one of the
statewide planning goals described in ORS 197.628 (1), the local
government shall complete the work task, and any appeal of the
local government's decision on the work task is subject to appeal
pursuant to ORS 197.633 (2).
(b) If the local government is subject to periodic review under
ORS 197.629 but the periodic review work task does not involve
one of statewide planning goals described in ORS 197.628 (1), the
local government may discontinue work on the task. If the local
government chooses to complete the work task, any appeal of a
decision by the local government on the work task shall be filed
with the Land Use Board of Appeals pursuant to section 12 of this
2003 Act.
(c) If the local government is not subject to periodic review
under ORS 197.629, the local government may discontinue work on
the work task. If the local government chooses to complete work
on the work task, any appeal of a decision by the local
government on the work task shall be filed with the Land Use
Board of Appeals pursuant to section 12 of this 2003 Act.
(d) If the commission or an appellate court remands a periodic
review work task that was completed prior to the effective date
of this 2003 Act, and the local government's action on remand is
not completed until after the effective date of this 2003 Act,
then completion and review of the remanded work task shall be
governed by paragraphs (a) to (c) of this subsection. + }
SECTION 14. 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.
(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, { + or the
filing of the respondent's brief on appeal of a decision under
ORS 197.610 to 197.625, + } 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 15. { + Section 12 of this 2003 Act is added to and
made a part of ORS 197.628 to 197.650. + }
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