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 953
 
                         Minority Report
 
                           B-Engrossed
 
                         Senate Bill 538
                 Ordered by the House August 27
Including Senate Amendments dated May 6 and House Minority Report
                   Amendments dated August 27
 
Sponsored by nonconcurring members of the House Committee on
  Rules and Public Affairs: Representatives BARNHART, MONNES
  ANDERSON
 
 
                             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.
 
    { - Modifies exemption of certain outdoor gatherings from
regulations relating to land use decisions. - }
   { +  Modifies standards for placement of aggregate resource on
inventory for mining. Establishes task force to study conflicts
between aggregate mining sites and other land uses.
  Modifies definition of farm use.
  Modifies standard for adopting exception to statewide land use
planning goal.
  Declares emergency, effective on passage. + }
 
                        A BILL FOR AN ACT
Relating to land use planning; creating new provisions; amending
  ORS 197.732, 215.203 and 215.298; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) The Legislative Assembly finds that:
  (a) Aggregate resources are of statewide importance and are
vital to the growth, livability and transportation infrastructure
of Oregon.
  (b) Agriculture and agricultural lands are of statewide
importance and are vital to the growth, livability and health of
Oregon.
  (c) Aggregate resources and agricultural lands are limited in
quality and quantity throughout the state.
  (2) The Legislative Assembly declares that:
  (a) It is the policy of the State of Oregon to protect and make
available aggregate resources and agricultural lands for the
benefit of the people of Oregon.
  (b) It is necessary and appropriate to make aggregate resources
available on land zoned for farm or forest use under conditions
that balance the needs of aggregate and agricultural production
and that protect the health and safety of residents and property
in the vicinity of surface mine sites.
 
  (c) When considering an application for aggregate mining, the
state government or a local government should strive to maximize
the utilization of the aggregate resource while minimizing the
disturbance of agricultural land and protecting the
environment. + }
  SECTION 2. ORS 215.298 is amended to read:
  215.298. (1) For purposes of ORS 215.213 (2) and 215.283 (2), a
land use permit is required for mining more than 1,000 cubic
yards of material or excavation preparatory to mining of a
surface area of more than one acre. A county may set standards
for a lower volume or smaller surface area than that set forth in
this subsection.
  (2) A permit for mining of aggregate shall be issued only for a
site included on an inventory   { - in an acknowledged
comprehensive plan - } .
  (3) For purposes of ORS 215.213 (2) and 215.283 (2) and this
section, 'mining' includes all or any part of the process of
mining by the removal of overburden and the extraction of natural
mineral deposits thereby exposed by any method including open-pit
mining operations, auger mining operations, processing, surface
impacts of underground mining, production of surface mining
refuse and the construction of adjacent or off-site borrow pits
except those constructed for use as access roads. 'Mining' does
not include excavations of sand, gravel, clay, rock or other
similar materials conducted by a landowner or tenant on the
landowner or tenant's property for the primary purpose of
reconstruction or maintenance of access roads and excavation or
grading operations conducted in the process of farming or
cemetery operations, on-site road construction or other on-site
construction or nonsurface impacts of underground mines.
   { +  (4) For purposes of this section:
  (a) 'Inventory' means either of the following lists of
aggregate resource sites:
  (A) A list of aggregate resource sites included in a
comprehensive plan that identifies sites:
  (i) Determined to be significant under a statewide land use
planning goal protecting natural resources and conserving scenic
and historic areas and open spaces; or
  (ii) Containing more than 100,000 tons of aggregate deposits
and that are not determined to be significant as described in
sub-subparagraph (i) of this subparagraph.
  (B) A list of aggregate resource sites maintained by a local
government that identifies sites that contain less than 100,000
tons of aggregate deposits and that are not determined to be
significant as described in subparagraph (A)(i) of this
paragraph.
  (b) 'Mining area' means the portion of an aggregate resource
site within which mining is permitted or proposed, excluding
undisturbed buffer areas.
  (5) A proposed aggregate resource site may be added to a list
described in subsection (4)(a)(A)(ii) or (B) of this section only
if less than 35 percent of the soils in the proposed mining area
are in soil Class I or II, or both.
  (6) Notwithstanding the limitation on the size of an aggregate
deposit to be included as a resource in a list of aggregate
resource sites under subsection (4)(a)(B) of this section, a
local government may add an aggregate resource site for which a
permit was issued under this section prior to the effective date
of this 2003 Act. + }
  SECTION 3.  { + (1) There is created the Task Force on
Aggregate Resources consisting of 10 members appointed as
follows:
  (a) The President of the Senate shall appoint two members from
among members of the Senate.
  (b) The Speaker of the House of Representatives shall appoint
two members from among members of the House of Representatives.
  (c) The Governor shall appoint six members who represent:
  (A) The Association of Oregon Counties.
  (B) The League of Oregon Cities.
  (C) The Oregon Farm Bureau.
  (D) Land use planning organizations.
  (E) The aggregate resource industry.
  (F) The Land Conservation and Development Commission.
  (2) The purpose of the task force is to study and make
recommendations on:
  (a) The regulation of conflicts between aggregate resource
mining, farm uses, forest uses and other uses of land zoned for
farm or forest use;
  (b) The status of aggregate resource mining as a conditionally
permitted use of land zoned for farm or forest use; and
  (c) The various sources for aggregate extraction.
  (3) The task force shall:
  (a) Review:
  (A) The current regulatory status of aggregate resource mining
on land zoned for farm or forest use;
  (B) The various sources for aggregate extraction; and
  (C) The conflicts between aggregate resource mining, farm uses,
forest uses and other uses of land zoned for farm or forest use.
  (b) Establish a workgroup to assist the task force in
accomplishing its purpose, with members to include, but not be
limited to, representatives of:
  (A) The agricultural industry;
  (B) The aggregate resource industry;
  (C) Land use planning organizations;
  (D) The office of the Governor; and
  (E) State and local agencies.
  (c) Develop recommendations for legislation and report to the
Seventy-third Legislative Assembly.
  (4) The task force is subject to the provisions of ORS 171.605
to 171.635 and has the authority contained in ORS 171.505 and
171.510.
  (5) The task force shall use the services of permanent
legislative staff to the greatest extent practicable.
  (6) All agencies of state government, as defined in ORS
174.111, are directed to assist the task force in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish information and advice the members of
the task force consider necessary to perform their duties.
  (7) A majority of the members of the task force constitutes a
quorum for the transaction of business.
  (8) Official action by the task force requires the approval of
a majority of the members of the task force.
  (9) The task force shall elect one of its members to serve as
chairperson.
  (10) The task force shall submit a report, including
recommendations for legislation, to an interim committee related
to aggregate resources, in the manner provided by ORS 192.245, no
later than October 1, 2004. + }
  SECTION 4.  { + Section 3 of this 2003 Act is repealed on
December 31, 2004. + }
  SECTION 5. ORS 215.203 is amended to read:
  215.203. (1) Zoning ordinances may be adopted to zone
designated areas of land within the county as exclusive farm use
zones. Land within such zones shall be used exclusively for farm
use except as otherwise provided in ORS 215.213, 215.283 or
215.284. Farm use zones shall be established only when such
zoning is consistent with the comprehensive plan.
  (2)  { - (a) - }  As used in this section  { - , - }  { + :
  (a) + } 'Farm use'  { +  :
  (A) + } Means the current employment of land for the primary
purpose of obtaining a profit in money by raising, harvesting and
selling crops or the feeding, breeding, management and sale of,
or the produce of, livestock, poultry, fur-bearing animals or
honeybees or for dairying and the sale of dairy products or any
other agricultural or horticultural use or animal husbandry or
any combination thereof { + , including the current employment of
land for:
  (i) The preparation, cleaning, treatment, sorting, packaging,
storage and disposal by marketing or otherwise of the products or
by-products raised either on the farm operation or on both the
farm operation and other farm operations for human or animal use.
  (ii) The primary purpose of obtaining a profit in money by
stabling or training equines, including but not limited to
providing riding lessons, training clinics and schooling shows.
  (iii) The propagation, cultivation, maintenance and harvesting
of aquatic species and bird and animal species to the extent
allowed by the rules adopted by the State Fish and Wildlife
Commission.
  (iv) The on-site construction and maintenance of equipment and
facilities used for the activities described in this paragraph.
  (B) Does not include the use of land subject to the provisions
of ORS chapter 321, except land used exclusively for growing
cultured Christmas trees as defined in subsection (3) of this
section or land described in ORS 321.267 (1)(e) or 321.415
(5) + }.   { -  ' Farm use' includes the preparation, storage and
disposal by marketing or otherwise of the products or by-products
raised on such land for human or animal use. 'Farm use' also
includes the current employment of land for the primary purpose
of obtaining a profit in money by stabling or training equines
including but not limited to providing riding lessons, training
clinics and schooling shows. 'Farm use' also includes the
propagation, cultivation, maintenance and harvesting of aquatic
species and bird and animal species to the extent allowed by the
rules adopted by the State Fish and Wildlife Commission. 'Farm
use' includes the on-site construction and maintenance of
equipment and facilities used for the activities described in
this subsection.  ' Farm use' does not include the use of land
subject to the provisions of ORS chapter 321, except land used
exclusively for growing cultured Christmas trees as defined in
subsection (3) of this section or land described in ORS 321.267
(1)(e) or 321.415 (5). - }
  (b) 'Current employment' of land for farm use includes:
  (A) Farmland, the operation or use of which is subject to any
farm-related government program;
  (B) Land lying fallow for one year as a normal and regular
requirement of good agricultural husbandry;
  (C) Land planted in orchards or other perennials, other than
land specified in subparagraph (D) of this paragraph, prior to
maturity;
  (D) Land not in an exclusive farm use zone which has not been
eligible for assessment at special farm use value in the year
prior to planting the current crop and has been planted in
orchards, cultured Christmas trees or vineyards for at least
three years;
  (E) Wasteland, in an exclusive farm use zone, dry or covered
with water, neither economically tillable nor grazeable, lying in
or adjacent to and in common ownership with a farm use land and
which is not currently being used for any economic farm use;
  (F) Except for land under a single family dwelling, land under
buildings supporting accepted farm practices, including the
processing facilities allowed by ORS 215.213 (1)(x) and 215.283
(1)(u);
  (G) Water impoundments lying in or adjacent to and in common
ownership with farm use land;
  (H) Any land constituting a woodlot, not to exceed 20 acres,
contiguous to and owned by the owner of land specially valued for
farm use even if the land constituting the woodlot is not
utilized in conjunction with farm use;
  (I) Land lying idle for no more than one year where the absence
of farming activity is due to the illness of the farmer or member
of the farmer's immediate family. For purposes of this paragraph,
illness includes injury or infirmity whether or not such illness
results in death;
  (J) Any land described under ORS 321.267 (1)(e) or 321.415 (5);
and
  (K) Land used for the primary purpose of obtaining a profit in
money by breeding, raising, kenneling or training of greyhounds
for racing.
  (c)   { - As used in this subsection, - }  'Accepted farming
practice' means a mode of operation that is common to farms of a
similar nature, necessary for the operation of such farms to
obtain a profit in money, and customarily utilized in conjunction
with farm use.
  (3) 'Cultured Christmas trees' means trees:
  (a) Grown on lands used exclusively for that purpose, capable
of preparation by intensive cultivation methods such as plowing
or turning over the soil;
  (b) Of a marketable species;
  (c) Managed to produce trees meeting U.S. No. 2 or better
standards for Christmas trees as specified by the Agriculture
Marketing Services of the United States Department of
Agriculture; and
  (d) Evidencing periodic maintenance practices of shearing for
Douglas fir and pine species, weed and brush control and one or
more of the following practices: Basal pruning, fertilizing,
insect and disease control, stump culture, soil cultivation,
irrigation.
  SECTION 6. ORS 197.732 is amended to read:
  197.732. (1) A local government may adopt an exception to a
goal if:
  (a) The land subject to the exception is physically developed
to the extent that it is no longer available for uses allowed by
the applicable goal;
  (b) The land subject to the exception is irrevocably committed
as described by Land Conservation and Development Commission rule
to uses not allowed by the applicable goal because existing
adjacent uses and other relevant factors make uses allowed by the
applicable goal impracticable; or
  (c) The following standards are met:
  (A) Reasons justify why the state policy embodied in the
applicable goals should not apply;
  (B) Areas which do not require a new exception cannot
reasonably accommodate the use;
  (C) The long term environmental, economic, social and energy
consequences resulting from the use at the proposed site with
measures designed to reduce adverse impacts are not significantly
more adverse than would typically result from the same proposal
being located in areas requiring a goal exception other than the
proposed site; and
  (D) The proposed uses are compatible with other adjacent uses
or will be so rendered through measures designed to reduce
adverse impacts.
  (2) 'Compatible,' as used in subsection (1)(c)  { - (D) - }  of
this section, is not intended as an absolute term meaning no
interference or adverse impacts of any type with adjacent uses.
  (3) The commission shall adopt rules establishing:
   { +  (a) That an exception may be adopted to allow a use
authorized by a statewide planning goal that cannot comply with
the approval standards for that type of use; + }
    { - (a) - }   { + (b) + } Under what circumstances particular
reasons may or may not be used to justify an exception under
subsection (1)(c)(A) of this section; and
 
 
    { - (b) - }   { + (c) + } Which uses allowed by the
applicable goal must be found impracticable under subsection (1)
of this section.
  (4) A local government approving or denying a proposed
exception shall set forth findings of fact and a statement of
reasons which demonstrate that the standards of subsection (1) of
this section have or have not been met.
  (5) Each notice of a public hearing on a proposed exception
shall specifically note that a goal exception is proposed and
shall summarize the issues in an understandable manner.
  (6) Upon review of a decision approving or denying an
exception:
  (a) The board or the commission shall be bound by any finding
of fact for which there is substantial evidence in the record of
the local government proceedings resulting in approval or denial
of the exception;
  (b) The board upon petition, or the commission, shall determine
whether the local government's findings and reasons demonstrate
that the standards of subsection (1) of this section have or have
not been met; and
  (c) The board or commission shall adopt a clear statement of
reasons which sets forth the basis for the determination that the
standards of subsection (1) of this section have or have not been
met.
  (7) The commission shall by rule establish the standards
required to justify an exception to the definition of 'needed
housing' authorized by ORS 197.303 (3).
  (8) As used in this section, 'exception' means a comprehensive
plan provision, including an amendment to an acknowledged
comprehensive plan, that:
  (a) Is applicable to specific properties or situations and does
not establish a planning or zoning policy of general
applicability;
  (b) Does not comply with some or all goal requirements
applicable to the subject properties or situations; and
  (c) Complies with standards under subsection (1) of this
section.
  (9) An exception acknowledged under ORS 197.251, 197.625 or
197.630 (1) (1981 Replacement Part) on or before August 9, 1983,
shall continue to be valid and   { - shall not be - }   { + is
not + } subject to this section.
  SECTION 7.  { + The amendments to ORS 197.732 by section 6 of
this 2003 Act apply to a proposal initiated on or after the
effective date of this 2003 Act to adopt an exception to a land
use planning goal. + }
  SECTION 8.  { + 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. + }
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