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 1523
 
                           A-Engrossed
 
                         Senate Bill 94
                 Ordered by the Senate March 26
           Including Senate Amendments dated March 26
 
Sponsored by Senator FERRIOLI
 
 
                             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.
 
  Adds criteria for determining when application to city for
discretionary permits and zone changes is deemed complete for
purposes of time limit for action by city. { +  Limits total of
extensions to 245 days. + }
 
                        A BILL FOR AN ACT
Relating to applications for action by city; amending ORS 227.178
  and 227.179.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 227.178 is amended to read:
  227.178. (1) Except as provided in subsections (3) and
 { - (4) - }  { + (5) + } of this section, the governing body of
a city or its designee shall take final action on an application
for a permit, limited land use decision or zone change, including
resolution of all appeals under ORS 227.180, within 120 days
after the application is deemed complete.
  (2) If an application for a permit, limited land use decision
or zone change is incomplete, the governing body or its designee
shall notify the applicant  { + in writing + } of exactly what
information is missing within 30 days of receipt of the
application and allow the applicant to submit the missing
information. The application shall be deemed complete for the
purpose of subsection (1) of this section  { + upon receipt by
the governing body or its designee of: + }
    { - Upon receipt by the governing body or its designee of the
missing information. - }
    { - If the applicant refuses to submit the missing
information, the application shall be deemed complete for the
purpose of subsection (1) of this section on the 31st day after
the governing body first received the application - }
   { +  (a) All of the missing information;
  (b) Some of the missing information and written notice from the
applicant that no other information will be provided; or
  (c) Written notice from the applicant that none of the missing
information will be provided + }.
  (3) If the application was complete when first submitted or the
applicant submits the requested additional information within 180
days of the date the application was first submitted and the city
has a comprehensive plan and land use regulations acknowledged
under ORS 197.251, approval or denial of the application shall be
based upon the standards and criteria that were applicable at the
time the application was first submitted.
   { +  (4) On the 181st day after first being submitted, the
application is void if the applicant has been notified of the
missing information as required under subsection (2) of this
section and has not submitted:
  (a) All of the missing information;
  (b) Some of the missing information and written notice that no
other information will be provided; or
  (c) Written notice that none of the missing information will be
provided. + }
    { - (4) - }  { +  (5) + } The 120-day period set in
subsection (1) of this section may be extended for a
 { - reasonable - }   { + specified + } period of time at the
 { + written + } request of the applicant.  { + The total of all
extensions may not exceed 245 days. + }
    { - (5) - }  { +  (6) + } The 120-day period set in
subsection (1) of this section applies:
  (a) Only to decisions wholly within the authority and control
of the governing body of the city; and
  (b) Unless the parties have agreed to mediation as described in
ORS 197.319 (2)(b).
    { - (6) - }  { +  (7) + } Notwithstanding subsection
 { - (5) - }   { + (6) + } of this section, the 120-day period
set in subsection (1) of this section does not apply to an
amendment to an acknowledged comprehensive plan or land use
regulation or 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 (1).
    { - (7) - }  { +  (8) + } Except when an applicant requests
an extension under subsection   { - (4) - }   { + (5) + } of this
section, if the governing body of the city or its designee does
not take final action on an application for a permit, limited
land use decision or zone change within 120 days after the
application is deemed complete, the city shall refund to the
applicant, subject to the provisions of subsection   { - (8) - }
 { + (9) + } of this section, either the unexpended portion of
any application fees or deposits previously paid or 50 percent of
the total amount of such fees or deposits, whichever is greater.
The applicant is not liable for additional governmental fees
incurred subsequent to the payment of such fees or deposits.
However, the applicant is responsible for the costs of providing
sufficient additional information to address relevant issues
identified in the consideration of the application.
    { - (8)(a) - }   { + (9)(a) + } To obtain a refund under
subsection   { - (7) - }  { +  (8) + } of this section, the
applicant may either:
  (A) Submit a written request for payment, either by mail or in
person, to the city or its designee; or
  (B) Include the amount claimed in a mandamus petition filed
under ORS 227.179. The court shall award an amount owed under
this section in its final order on the petition.
  (b) Within seven calendar days of receiving a request for a
refund, the city or its designee shall determine the amount of
any refund owed. Payment, or notice that no payment is due, shall
be made to the applicant within 30 calendar days of receiving the
request. Any amount due and not paid within 30 calendar days of
receipt of the request shall be subject to interest charges at
the rate of one percent per month, or a portion thereof.
  (c) If payment due under paragraph (b) of this subsection is
not paid within 120 days after the city or its designee receives
the refund request, the applicant may file an action for recovery
of the unpaid refund. In an action brought by a person under this
paragraph, the court shall award to a prevailing applicant, in
addition to the relief provided in this section, reasonable
attorney fees and costs at trial and on appeal. If the city or
its designee prevails, the court shall award reasonable attorney
fees and costs at trial and on appeal if the court finds the
petition to be frivolous.
    { - (9) - }  { +  (10)  + }A city may not compel an applicant
to waive the 120-day period set in subsection (1) of this section
or to waive the provisions of subsection   { - (7) - }
 { + (8) + } of this section or ORS 227.179 as a condition for
taking any action on an application for a permit, limited land
use decision or zone change except when such applications are
filed concurrently and considered jointly with a plan amendment.
  SECTION 2. ORS 227.179 is amended to read:
  227.179. (1) Except when an applicant requests an extension
under ORS 227.178   { - (4) - }  { +  (5) + }, if the governing
body of a city or its designee does not take final action on an
application for a permit, limited land use decision or zone
change within 120 days after the application is deemed complete,
the applicant may file a petition for a writ of mandamus under
ORS 34.130 in the circuit court of the county where the
application was submitted to compel the governing body or its
designee to issue the approval.
  (2) The governing body shall retain jurisdiction to make a land
use decision on the application until a petition for a writ of
mandamus is filed. Upon filing a petition under ORS 34.130,
jurisdiction for all decisions regarding the application,
including settlement, shall be with the circuit court.
  (3) A person who files a petition for a writ of mandamus under
this section shall provide written notice of the filing to all
persons who would be entitled to notice under ORS 197.763 and to
any person who participated orally or in writing in any
evidentiary hearing on the application held prior to the filing
of the petition. The notice shall be mailed or hand delivered on
the same day the petition is filed.
  (4) If the governing body does not take final action on an
application within 120 days of the date the application is deemed
complete, the applicant may elect to proceed with the application
according to the applicable provisions of the local comprehensive
plan and land use regulations or to file a petition for a writ of
mandamus under this section. If the applicant elects to proceed
according to the local plan and regulations, the applicant may
not file a petition for a writ of mandamus within 14 days after
the governing body makes a preliminary decision, provided a final
written decision is issued within 14 days of the preliminary
decision.
  (5) The court shall issue a peremptory writ unless the
governing body or any intervenor shows that the approval would
violate a substantive provision of the local comprehensive plan
or land use regulations as those terms are defined in ORS
197.015.  The writ may specify conditions of approval that would
otherwise be allowed by the local comprehensive plan or land use
regulations.
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