72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
SA to SB 938
LC 3751/SB 938-4
SENATE AMENDMENTS TO
SENATE BILL 938
By COMMITTEE ON RULES
August 21
On page 1 of the printed bill, delete lines 5 through 30 and
delete pages 2 through 6 and insert:
' { + SECTION 1. + } ORS 215.275 is amended to read:
' 215.275. (1) A utility facility established under ORS 215.213
(1)(d) or 215.283 (1)(d) is necessary for public service if the
facility must be sited in an exclusive farm use zone in order to
provide the service.
' (2) To demonstrate that a utility facility is necessary, an
applicant for approval under ORS 215.213 (1)(d) or 215.283 (1)(d)
must show that reasonable alternatives have been considered and
that the facility must be sited in an exclusive farm use zone due
to one or more of the following factors:
' (a) Technical and engineering feasibility;
' (b) The proposed facility is locationally dependent. A
utility facility is locationally dependent if it must cross land
in one or more areas zoned for exclusive farm use in order to
achieve a reasonably direct route or to meet unique geographical
needs that cannot be satisfied on other lands;
' (c) Lack of available urban and nonresource lands;
' (d) Availability of existing rights of way;
' (e) Public health and safety; and
' (f) Other requirements of state or federal agencies.
' (3) Costs associated with any of the factors listed in
subsection (2) of this section may be considered, but cost alone
may not be the only consideration in determining that a utility
facility is necessary for public service. Land costs shall not be
included when considering alternative locations for substantially
similar utility facilities. The Land Conservation and Development
Commission shall determine by rule how land costs may be
considered when evaluating the siting of utility facilities that
are not substantially similar.
' (4) The owner of a utility facility approved under ORS
215.213 (1)(d) or 215.283 (1)(d) shall be responsible for
restoring, as nearly as possible, to its former condition any
agricultural land and associated improvements that are damaged or
otherwise disturbed by the siting, maintenance, repair or
reconstruction of the facility. Nothing in this section shall
prevent the owner of the utility facility from requiring a bond
or other security from a contractor or otherwise imposing on a
contractor the responsibility for restoration.
' (5) The governing body of the county or its designee shall
impose clear and objective conditions on an application for
utility facility siting under ORS 215.213 (1)(d) or 215.283
(1)(d) to mitigate and minimize the impacts of the proposed
facility, if any, on surrounding lands devoted to farm use in
order to prevent a significant change in accepted farm practices
or a significant increase in the cost of farm practices on the
surrounding farmlands.
' (6) The provisions of subsections (2) to (5) of this section
do not apply to interstate natural gas pipelines and associated
facilities authorized by and subject to regulation by the Federal
Energy Regulatory Commission.
' { + (7)(a) As used in this subsection:
' (A) 'Colocation' means the use of a utility facility used to
provide personal wireless services, as defined in 47 U.S.C. 332,
by more than one service provider.
' (B) 'Modification' means a change to or replacement of the
existing equipment or the colocation of new equipment with
existing equipment, but change or replacement does not allow for
increasing the height of a tower or support structure by more
than 15 feet.
' (b) The provisions of subsections (2) to (5) of this section
do not apply to the modification of a utility facility used to
provide personal wireless services, as defined in 47 U.S.C. 332,
and previously approved by the county as necessary for public
service under ORS 215.213 (1)(d) or 215.283 (1)(d).
' (c) If necessary for the colocation of new equipment, the
land area occupied by the utility facility may be increased by no
more than 500 square feet.
' (8) Nothing in subsection (7) of this section:
' (a) Affects the regulation of or standards for siting an
additional tower or support structure.
' (b) Affects the regulation of or standards for establishing
new road access or modifying road access to a utility facility.
' (c) Affects the regulation of a utility facility that
provides a service other than personal wireless services, as
defined in 47 U.S.C. 332. + }
' { + SECTION 2. + } ORS 215.130 is amended to read:
' 215.130. (1) Any legislative ordinance relating to land use
planning or zoning shall be a local law within the meaning of,
and subject to, ORS 250.155 to 250.235.
' (2) An ordinance designed to carry out a county comprehensive
plan and a county comprehensive plan shall apply to:
' (a) The area within the county also within the boundaries of
a city as a result of extending the boundaries of the city or
creating a new city unless, or until the city has by ordinance or
other provision provided otherwise; and
' (b) The area within the county also within the boundaries of
a city if the governing body of such city adopts an ordinance
declaring the area within its boundaries subject to the county's
land use planning and regulatory ordinances, officers and
procedures and the county governing body consents to the
conferral of jurisdiction.
' (3) An area within the jurisdiction of city land use planning
and regulatory provisions that is withdrawn from the city or an
area within a city that disincorporates shall remain subject to
such plans and regulations which shall be administered by the
county until the county provides otherwise.
' (4) County ordinances designed to implement a county
comprehensive plan shall apply to publicly owned property.
' (5) The lawful use of any building, structure or land at the
time of the enactment or amendment of any zoning ordinance or
regulation may be continued. Alteration of any such use may be
permitted subject to subsection (9) of this section. Alteration
of any such use shall be permitted when necessary to comply with
any lawful requirement for alteration in the use. Except as
provided in ORS 215.215, a county shall not place conditions upon
the continuation or alteration of a use described under this
subsection when necessary to comply with state or local health or
safety requirements, or to maintain in good repair the existing
structures associated with the use. A change of ownership or
occupancy shall be permitted.
' (6) Restoration or replacement of any use described in
subsection (5) of this section may be permitted when the
restoration is made necessary by fire, other casualty or natural
disaster. Restoration or replacement shall be commenced within
one year from the occurrence of the fire, casualty or natural
disaster. If restoration or replacement is necessary under this
subsection, restoration or replacement shall be done in
compliance with ORS 195.260 (1)(c).
' (7)(a) Any use described in subsection (5) of this section
may not be resumed after a period of interruption or abandonment
unless the resumed use conforms with the requirements of zoning
ordinances or regulations applicable at the time of the proposed
resumption.
' (b) Notwithstanding any local ordinance, a surface mining use
continued under subsection (5) of this section shall not be
deemed to be interrupted or abandoned for any period after July
1, 1972, provided:
' (A) The owner or operator was issued and continuously renewed
a state or local surface mining permit, or received and
maintained a state or local exemption from surface mining
regulation; and
' (B) The surface mining use was not inactive for a period of
12 consecutive years or more.
' (c) For purposes of this subsection, 'inactive' means no
aggregate materials were excavated, crushed, removed, stockpiled
or sold by the owner or operator of the surface mine.
' (8) Any proposal for the verification or alteration of a use
under subsection (5) of this section, except an alteration
necessary to comply with a lawful requirement, for the
restoration or replacement of a use under subsection (6) of this
section or for the resumption of a use under subsection (7) of
this section shall be subject to the provisions of ORS 215.416.
An initial decision by the county or its designate on a proposal
for the alteration of a use described in subsection (5) of this
section shall be made as an administrative decision without
public hearing in the manner provided in ORS 215.416 (11).
' (9) As used in this section, 'alteration' of a nonconforming
use includes:
' (a) A change in the use of no greater adverse impact to the
neighborhood; and
' (b) A change in the structure or physical improvements of no
greater adverse impact to the neighborhood.
' (10) A local government may adopt standards and procedures to
implement the provisions of this section. The standards and
procedures may include but are not limited to the following:
' (a) For purposes of verifying a use under subsection (5) of
this section, a county may adopt procedures that allow an
applicant for verification to prove the existence, continuity,
nature and extent of the use only for the 10-year period
immediately preceding the date of application. Evidence proving
the existence, continuity, nature and extent of the use for the
10-year period preceding application creates a rebuttable
presumption that the use, as proven, lawfully existed at the time
the applicable zoning ordinance or regulation was adopted and has
continued uninterrupted until the date of application;
' (b) Establishing criteria to determine when a use has been
interrupted or abandoned under subsection (7) of this section; or
' (c) Conditioning approval of the alteration of a use in a
manner calculated to ensure mitigation of adverse impacts as
described in subsection (9) of this section.
' (11) For purposes of verifying a use under subsection (5) of
this section, a county may not require an applicant for
verification to prove the existence, continuity, nature and
extent of the use for a period exceeding 20 years immediately
preceding the date of application.
' { + (12) The lawful use of a utility facility that is
located in the unincorporated area of a county and that is used
to provide personal wireless services, as defined in 47 U.S.C.
332, may be:
' (a) Modified consistent with the siting standards in effect
on the date the utility facility was approved; or
' (b) Altered consistent with subsection (9) of this section.
' (13) Nothing in subsection (12) of this section affects the
regulation of a utility facility that is not located in the
unincorporated area of a county or that provides a service other
than personal wireless services, as defined in 47 U.S.C. 332. + }
' { + SECTION 3. + } ORS 215.275, as amended by section 1 of
this 2003 Act, is amended to read:
' 215.275. (1) A utility facility established under ORS 215.213
(1)(d) or 215.283 (1)(d) is necessary for public service if the
facility must be sited in an exclusive farm use zone in order to
provide the service.
' (2) To demonstrate that a utility facility is necessary, an
applicant for approval under ORS 215.213 (1)(d) or 215.283 (1)(d)
must show that reasonable alternatives have been considered and
that the facility must be sited in an exclusive farm use zone due
to one or more of the following factors:
' (a) Technical and engineering feasibility;
' (b) The proposed facility is locationally dependent. A
utility facility is locationally dependent if it must cross land
in one or more areas zoned for exclusive farm use in order to
achieve a reasonably direct route or to meet unique geographical
needs that cannot be satisfied on other lands;
' (c) Lack of available urban and nonresource lands;
' (d) Availability of existing rights of way;
' (e) Public health and safety; and
' (f) Other requirements of state or federal agencies.
' (3) Costs associated with any of the factors listed in
subsection (2) of this section may be considered, but cost alone
may not be the only consideration in determining that a utility
facility is necessary for public service. Land costs shall not be
included when considering alternative locations for substantially
similar utility facilities. The Land Conservation and Development
Commission shall determine by rule how land costs may be
considered when evaluating the siting of utility facilities that
are not substantially similar.
' (4) The owner of a utility facility approved under ORS
215.213 (1)(d) or 215.283 (1)(d) shall be responsible for
restoring, as nearly as possible, to its former condition any
agricultural land and associated improvements that are damaged or
otherwise disturbed by the siting, maintenance, repair or
reconstruction of the facility. Nothing in this section shall
prevent the owner of the utility facility from requiring a bond
or other security from a contractor or otherwise imposing on a
contractor the responsibility for restoration.
' (5) The governing body of the county or its designee shall
impose clear and objective conditions on an application for
utility facility siting under ORS 215.213 (1)(d) or 215.283
(1)(d) to mitigate and minimize the impacts of the proposed
facility, if any, on surrounding lands devoted to farm use in
order to prevent a significant change in accepted farm practices
or a significant increase in the cost of farm practices on the
surrounding farmlands.
' (6) The provisions of subsections (2) to (5) of this section
do not apply to interstate natural gas pipelines and associated
facilities authorized by and subject to regulation by the Federal
Energy Regulatory Commission.
' { - (7)(a) As used in this subsection: - }
' { - (A) 'Colocation' means the use of a utility facility
used to provide personal wireless services, as defined in 47
U.S.C. 332, by more than one service provider. - }
' { - (B) 'Modification' means a change to or replacement of
the existing equipment or the colocation of new equipment with
existing equipment, but change or replacement does not allow for
increasing the height of a tower or support structure by more
than 15 feet. - }
' { - (b) The provisions of subsections (2) to (5) of this
section do not apply to the modification of a utility facility
used to provide personal wireless services, as defined in 47
U.S.C. 332, and previously approved by the county as necessary
for public service under ORS 215.213 (1)(d) or 215.283
(1)(d). - }
' { - (c) If necessary for the colocation of new equipment,
the land area occupied by the utility facility may be increased
by no more than 500 square feet. - }
' { - (8) Nothing in subsection (7) of this section: - }
' { - (a) Affects the regulation of or standards for siting an
additional tower or support structure. - }
' { - (b) Affects the regulation of or standards for
establishing new road access or modifying road access to a
utility facility. - }
' { - (c) Affects the regulation of a utility facility that
provides a service other than personal wireless services, as
defined in 47 U.S.C. 332. - }
' { + SECTION 4. + } ORS 215.130, as amended by section 2 of
this 2003 Act, is amended to read:
' 215.130. (1) Any legislative ordinance relating to land use
planning or zoning shall be a local law within the meaning of,
and subject to, ORS 250.155 to 250.235.
' (2) An ordinance designed to carry out a county comprehensive
plan and a county comprehensive plan shall apply to:
' (a) The area within the county also within the boundaries of
a city as a result of extending the boundaries of the city or
creating a new city unless, or until the city has by ordinance or
other provision provided otherwise; and
' (b) The area within the county also within the boundaries of
a city if the governing body of such city adopts an ordinance
declaring the area within its boundaries subject to the county's
land use planning and regulatory ordinances, officers and
procedures and the county governing body consents to the
conferral of jurisdiction.
' (3) An area within the jurisdiction of city land use planning
and regulatory provisions that is withdrawn from the city or an
area within a city that disincorporates shall remain subject to
such plans and regulations which shall be administered by the
county until the county provides otherwise.
' (4) County ordinances designed to implement a county
comprehensive plan shall apply to publicly owned property.
' (5) The lawful use of any building, structure or land at the
time of the enactment or amendment of any zoning ordinance or
regulation may be continued. Alteration of any such use may be
permitted subject to subsection (9) of this section. Alteration
of any such use shall be permitted when necessary to comply with
any lawful requirement for alteration in the use. Except as
provided in ORS 215.215, a county shall not place conditions upon
the continuation or alteration of a use described under this
subsection when necessary to comply with state or local health or
safety requirements, or to maintain in good repair the existing
structures associated with the use. A change of ownership or
occupancy shall be permitted.
' (6) Restoration or replacement of any use described in
subsection (5) of this section may be permitted when the
restoration is made necessary by fire, other casualty or natural
disaster. Restoration or replacement shall be commenced within
one year from the occurrence of the fire, casualty or natural
disaster. If restoration or replacement is necessary under this
subsection, restoration or replacement shall be done in
compliance with ORS 195.260 (1)(c).
' (7)(a) Any use described in subsection (5) of this section
may not be resumed after a period of interruption or abandonment
unless the resumed use conforms with the requirements of zoning
ordinances or regulations applicable at the time of the proposed
resumption.
' (b) Notwithstanding any local ordinance, a surface mining use
continued under subsection (5) of this section shall not be
deemed to be interrupted or abandoned for any period after July
1, 1972, provided:
' (A) The owner or operator was issued and continuously renewed
a state or local surface mining permit, or received and
maintained a state or local exemption from surface mining
regulation; and
' (B) The surface mining use was not inactive for a period of
12 consecutive years or more.
' (c) For purposes of this subsection, 'inactive' means no
aggregate materials were excavated, crushed, removed, stockpiled
or sold by the owner or operator of the surface mine.
' (8) Any proposal for the verification or alteration of a use
under subsection (5) of this section, except an alteration
necessary to comply with a lawful requirement, for the
restoration or replacement of a use under subsection (6) of this
section or for the resumption of a use under subsection (7) of
this section shall be subject to the provisions of ORS 215.416.
An initial decision by the county or its designate on a proposal
for the alteration of a use described in subsection (5) of this
section shall be made as an administrative decision without
public hearing in the manner provided in ORS 215.416 (11).
' (9) As used in this section, 'alteration' of a nonconforming
use includes:
' (a) A change in the use of no greater adverse impact to the
neighborhood; and
' (b) A change in the structure or physical improvements of no
greater adverse impact to the neighborhood.
' (10) A local government may adopt standards and procedures to
implement the provisions of this section. The standards and
procedures may include but are not limited to the following:
' (a) For purposes of verifying a use under subsection (5) of
this section, a county may adopt procedures that allow an
applicant for verification to prove the existence, continuity,
nature and extent of the use only for the 10-year period
immediately preceding the date of application. Evidence proving
the existence, continuity, nature and extent of the use for the
10-year period preceding application creates a rebuttable
presumption that the use, as proven, lawfully existed at the time
the applicable zoning ordinance or regulation was adopted and has
continued uninterrupted until the date of application;
' (b) Establishing criteria to determine when a use has been
interrupted or abandoned under subsection (7) of this section; or
' (c) Conditioning approval of the alteration of a use in a
manner calculated to ensure mitigation of adverse impacts as
described in subsection (9) of this section.
' (11) For purposes of verifying a use under subsection (5) of
this section, a county may not require an applicant for
verification to prove the existence, continuity, nature and
extent of the use for a period exceeding 20 years immediately
preceding the date of application.
' { - (12) The lawful use of a utility facility that is
located in the unincorporated area of a county and that is used
to provide personal wireless services, as defined in 47 U.S.C.
332, may be: - }
' { - (a) Modified consistent with the siting standards in
effect on the date the utility facility was approved; or - }
' { - (b) Altered consistent with subsection (9) of this
section. - }
' { - (13) Nothing in subsection (12) of this section affects
the regulation of a utility facility that is not located in the
unincorporated area of a county or that provides a service other
than personal wireless services, as defined in 47 U.S.C. 332. - }
' { + SECTION 5. + } { + The amendments to ORS 215.130 and
215.275 by sections 3 and 4 of this 2003 Act become operative on
July 1, 2013. + } ' .
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