72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
Senate Bill 920
Sponsored by COMMITTEE ON RULES
CHAPTER ................
AN ACT
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;
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(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
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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 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.
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{ + (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
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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
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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, 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.
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(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
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(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.
Enrolled Senate Bill 920 (SB 920-A) Page 8
(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. + }
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Enrolled Senate Bill 920 (SB 920-A) Page 9
Passed by Senate August 8, 2003
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House August 22, 2003
...........................................................
Speaker of House
Enrolled Senate Bill 920 (SB 920-A) Page 10
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled Senate Bill 920 (SB 920-A) Page 11