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 3784
(To Resolve Conflicts)
B-Engrossed
Senate Bill 939
Ordered by the House August 22
Including Senate Amendments dated August 12 and House Amendments
dated August 22 to resolve conflicts
Sponsored by COMMITTEE ON RULES
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 process for imposing system development
charges. Allows { - governmental unit - } { + local
government + } to establish and impose system development charge
that is combination of reimbursement fee and improvement fee
under certain circumstances.
A BILL FOR AN ACT
Relating to process for imposing system development charges;
creating new provisions; and amending ORS 223.297, 223.299,
223.302, 223.304, 223.307, 223.309, 223.311 and 223.314.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 223.297 is amended to read:
223.297. The purpose of ORS 223.297 to 223.314 is to provide a
uniform framework for the imposition of system development
charges by governmental units { + , + } { - for specified
purposes - } { + to provide equitable funding for orderly
growth and development in Oregon's communities + } and to
establish that the charges may be used only for capital
improvements.
SECTION 2. ORS 223.299 is amended to read:
223.299. As used in ORS 223.297 to 223.314:
(1)(a) 'Capital improvement' means facilities or assets used
for the following:
(A) Water supply, treatment and distribution;
(B) Waste water collection, transmission, treatment and
disposal;
(C) Drainage and flood control;
(D) Transportation; or
(E) Parks and recreation.
(b) 'Capital improvement' does not include costs of the
operation or routine maintenance of capital improvements.
(2) 'Improvement fee' means a fee for costs associated with
capital improvements to be constructed.
(3) 'Reimbursement fee' means a fee for costs associated with
capital improvements already constructed { + , + } or under
construction { + when the fee is established, for which the
governmental unit determines that capacity exists + }.
(4)(a) 'System development charge' means a reimbursement fee,
an improvement fee or a combination thereof assessed or collected
at the time of increased usage of a capital improvement or
issuance of a development permit, building permit or connection
to the capital improvement. 'System development charge' includes
that portion of a sewer or water system connection charge that is
greater than the amount necessary to reimburse the governmental
unit for its average cost of inspecting and installing
connections with water and sewer facilities.
(b) 'System development charge' does not include any fees
assessed or collected as part of a local improvement district or
a charge in lieu of a local improvement district assessment, or
the cost of complying with requirements or conditions imposed
upon a land use decision, expedited land division or limited land
use decision.
SECTION 2a. { + If House Bill 2278 becomes law, section 2 of
this 2003 Act (amending ORS 223.299) is repealed and ORS 223.299,
as amended by section 18, chapter ___, Oregon Laws 2003 (Enrolled
House Bill 2278), is amended to read: + }
223.299. As used in ORS 223.297 to 223.314:
(1)(a) 'Capital improvement' means facilities or assets used
for the following:
(A) Water supply, treatment and distribution;
(B) Waste water collection, transmission, treatment and
disposal;
(C) Drainage and flood control;
(D) Transportation; or
(E) Parks and recreation.
(b) 'Capital improvement' does not include costs of the
operation or routine maintenance of capital improvements.
(2) 'Improvement fee' means a fee for costs associated with
capital improvements to be constructed.
(3) 'Reimbursement fee' means a fee for costs associated with
capital improvements already constructed { + , + } or under
construction { + when the fee is established, for which the
local government determines that capacity exists + }.
(4)(a) 'System development charge' means a reimbursement fee,
an improvement fee or a combination thereof assessed or collected
at the time of increased usage of a capital improvement or
issuance of a development permit, building permit or connection
to the capital improvement. 'System development charge' includes
that portion of a sewer or water system connection charge that is
greater than the amount necessary to reimburse the local
government for its average cost of inspecting and installing
connections with water and sewer facilities.
(b) 'System development charge' does not include any fees
assessed or collected as part of a local improvement district or
a charge in lieu of a local improvement district assessment, or
the cost of complying with requirements or conditions imposed
upon a land use decision, expedited land division or limited land
use decision.
SECTION 3. ORS 223.302 is amended to read:
223.302. (1) Governmental units are authorized to establish
system development charges, but the revenues produced therefrom
{ - shall - } { + must + } be expended only in accordance
with ORS 223.297 to 223.314. If a governmental unit expends
{ - any such - } revenues { + from system development
charges + } in violation of the limitations described in ORS
223.307, the governmental unit shall replace the misspent amount
with moneys derived from { - other - } sources { + other than
system development charges + }. Replacement moneys
{ - shall - } { + must + } be deposited in a fund designated
for the system development charge revenues not later than one
year following a determination that the funds were misspent.
(2) Governmental units shall adopt administrative review
procedures by which any citizen or other interested person may
challenge an expenditure of system development charge revenues.
Such procedures shall provide that such a challenge must be filed
within two years of the expenditure of the system development
charge revenues. The decision of the governmental unit shall be
judicially reviewed only as provided in ORS 34.010 to 34.100.
(3)(a) A governmental unit must advise a person who makes a
written objection to the calculation of a system development
charge of the right to petition for review pursuant to ORS 34.010
to 34.100.
(b) If a governmental unit has adopted an administrative review
procedure for objections to the calculation of a system
development charge, the governmental unit { - must - }
{ + shall + } provide adequate notice regarding the procedure
for review to a person who makes a written objection to the
calculation of a system development charge.
SECTION 4. ORS 223.304 is amended to read:
223.304. (1)(a) Reimbursement fees { - shall - }
{ + must + } be established or modified by ordinance or
resolution setting forth a methodology that { - considers the
cost of the existing facility or facilities, - } { + is, when
applicable, based on:
(A) Ratemaking principles employed to finance publicly owned
capital improvements;
(B) + } Prior contributions by existing users { - , - } { + ;
(C) + } Gifts or grants from federal or state government or
private persons { - , - } { + ;
(D) + }The value of unused capacity available to future system
users { - , rate-making principles employed to finance publicly
owned capital improvements and other relevant factors identified
by the local government imposing the fee - } { + or the cost of
the existing facilities; and
(E) Other relevant factors identified by the governmental unit
imposing the fee + }.
(b) The methodology for establishing or modifying a
reimbursement fee { - shall - } { + must + }:
(A) Promote the objective of future system users contributing
no more than an equitable share to the cost of existing
facilities.
(B) Be available for public inspection.
{ - (2)(a) - } { + (2) + } Improvement fees { - shall - }
{ + must + }:
{ - (A) - } { + (a) + } Be established or modified by
ordinance or resolution setting forth a methodology that
{ - considers the cost of projected - } { + is available for
public inspection and demonstrates consideration of:
(A) The projected cost of the + } capital improvements { +
identified in the plan and list adopted pursuant to ORS 223.309
that are + } needed to increase the capacity of the systems to
which the fee is related { + ; and
(B) The need for increased capacity in the system to which the
fee is related that will be required to serve the demands placed
on the system by future users + }.
{ - (B) - } { + (b) + } Be calculated to obtain the cost of
capital improvements for the projected need for available system
capacity for future users.
{ - (b) The methodology for establishing or modifying
improvement fees shall be available for public inspection. - }
{ + (3) A governmental unit may establish and impose a system
development charge that is a combination of a reimbursement fee
and an improvement fee, if the methodology demonstrates that the
charge is not based on providing the same system capacity. + }
{ - (3) - } { + (4) + } The ordinance or resolution that
establishes or modifies an improvement fee shall also provide for
a credit against such fee for the construction of a qualified
public improvement. A 'qualified public improvement' means a
capital improvement that is required as a condition of
development approval, identified in the plan { + and list + }
adopted pursuant to ORS 223.309 and either:
(a) Not located on or contiguous to property that is the
subject of development approval; or
(b) Located in whole or in part on or contiguous to property
that is the subject of development approval and required to be
built larger or with greater capacity than is necessary for the
particular development project to which the improvement fee is
related.
{ - (4)(a) - } { + (5)(a) + }The credit provided for in
subsection { - (3) - } { + (4) + } of this section { - shall
be - } { + is + } only for the improvement fee charged for the
type of improvement being constructed, and credit for qualified
public improvements under subsection { - (3)(b) - }
{ + (4)(b) + } of this section may be granted only for the cost
of that portion of such improvement that exceeds the
{ - government units - } { + governmental unit's + } minimum
standard facility size or capacity needed to serve the particular
development project or property. The applicant shall have the
burden of demonstrating that a particular improvement qualifies
for credit under subsection
{ - (3)(b) - } { + (4)(b) + } of this section.
(b) When the construction of a qualified public improvement
gives rise to a credit amount greater than the improvement fee
that would otherwise be levied against the project receiving
development approval, the excess credit may be applied against
improvement fees that accrue in subsequent phases of the original
development project. This subsection { - shall - }
{ + does + } not prohibit a
{ - unit of government - } { + governmental unit + } from
providing a greater credit, or from establishing a system
providing for the transferability of credits, or from providing a
credit for a capital improvement not identified in the plan
{ + and list + } adopted pursuant to ORS 223.309, or from
providing a share of the cost of such improvement by other means,
if a { - unit of government - } { + governmental unit + } so
chooses.
(c) Credits { - shall - } { + must + } be used in the time
specified in the ordinance but not later than 10 years from the
date the credit is given.
{ - (5) - } { + (6) + } Any { - unit of local
government - } { + governmental unit + } that proposes to
establish or modify a system development charge shall maintain a
list of persons who have made a written request for notification
prior to adoption or amendment of a methodology for any system
development charge.
{ - (6) - } { + (7)(a) + } Written notice { - shall - }
{ + must + } be mailed to persons on the list at least 90 days
prior to the first hearing to establish or modify a system
development charge, and the methodology supporting the system
development charge { - shall - } { + must + } be available at
least 60 days prior to the first hearing. The failure of a person
on the list to receive a notice that was mailed does not
invalidate the action of the { - local government - } { +
governmental unit + }. The { + governmental + } unit { - of
local government - } may periodically delete names from the
list, but at least 30 days prior to removing a name from the list
{ - must - } { + shall + } notify the person whose name is to
be deleted that a new written request for notification is
required if the person wishes to remain on the notification list.
{ +
(b) + } Legal action intended to contest the methodology used
for calculating a system development charge may not be filed
after 60 days following adoption or modification of the system
development charge ordinance or resolution by the { - local
government - } { + governmental unit + }. A person shall
request judicial review of the methodology used for calculating a
system development charge only as provided in ORS 34.010 to
34.100.
{ - (7) A change in the amount of a reimbursement fee or an
improvement fee is not a modification of the system development
charge if the change in amount is based on the periodic
application of an adopted specific cost index or on a
modification to any of the factors related to rate that are
incorporated in the established methodology. - }
{ + (8) A change in the amount of a reimbursement fee or an
improvement fee is not a modification of the system development
charge methodology if the change in amount is based on:
(a) A change in the cost of materials, labor or real property
applied to projects or project capacity as set forth on the list
adopted pursuant to ORS 223.309; or
(b) The periodic application of one or more specific cost
indexes or other periodic data sources. A specific cost index or
periodic data source must be:
(A) A relevant measurement of the average change in prices or
costs over an identified time period for materials, labor, real
property or a combination of the three;
(B) Published by a recognized organization or agency that
produces the index or data source for reasons that are
independent of the system development charge methodology; and
(C) Incorporated as part of the established methodology or
identified and adopted in a separate ordinance, resolution or
order. + }
SECTION 4a. { + If House Bill 2278 becomes law, section 4 of
this 2003 Act (amending ORS 223.304) is repealed and ORS 223.304,
as amended by section 21, chapter ___, Oregon Laws 2003 (Enrolled
House Bill 2278), is amended to read: + }
223.304. (1)(a) Reimbursement fees { - shall - }
{ + must + } be established or modified by ordinance or
resolution setting forth a methodology that { - considers the
cost of the existing facility or facilities, - } { + is, when
applicable, based on:
(A) Ratemaking principles employed to finance publicly owned
capital improvements;
(B) + } Prior contributions by existing users { - , - } { + ;
(C) + } Gifts or grants from federal or state government or
private persons { - , - } { + ;
(D) + }The value of unused capacity available to future system
users { - , rate-making principles employed to finance publicly
owned capital improvements and other relevant factors identified
by the local government imposing the fee - } { + or the cost of
the existing facilities; and
(E) Other relevant factors identified by the local government
imposing the fee + }.
(b) The methodology for establishing or modifying a
reimbursement fee { - shall - } { + must + }:
(A) Promote the objective of future system users contributing
no more than an equitable share to the cost of existing
facilities.
(B) Be available for public inspection.
{ - (2)(a) - } { + (2) + } Improvement fees { - shall - }
{ + must + }:
{ - (A) - } { + (a) + } Be established or modified by
ordinance or resolution setting forth a methodology that
{ - considers the cost of projected - } { + is available for
public inspection and demonstrates consideration of:
(A) The projected cost of the + } capital improvements { +
identified in the plan and list adopted pursuant to ORS 223.309
that are + } needed to increase the capacity of the systems to
which the fee is related { + ; and
(B) The need for increased capacity in the system to which the
fee is related that will be required to serve the demands placed
on the system by future users + }.
{ - (B) - } { + (b) + } Be calculated to obtain the cost of
capital improvements for the projected need for available system
capacity for future users.
{ - (b) The methodology for establishing or modifying
improvement fees shall be available for public inspection. - }
{ + (3) A local government may establish and impose a system
development charge that is a combination of a reimbursement fee
and an improvement fee, if the methodology demonstrates that the
charge is not based on providing the same system capacity. + }
{ - (3) - } { + (4) + } The ordinance or resolution that
establishes or modifies an improvement fee shall also provide for
a credit against such fee for the construction of a qualified
public improvement. A 'qualified public improvement' means a
capital improvement that is required as a condition of
development approval, identified in the plan { + and list + }
adopted pursuant to ORS 223.309 and either:
(a) Not located on or contiguous to property that is the
subject of development approval; or
(b) Located in whole or in part on or contiguous to property
that is the subject of development approval and required to be
built larger or with greater capacity than is necessary for the
particular development project to which the improvement fee is
related.
{ - (4)(a) - } { + (5)(a) + }The credit provided for in
subsection { - (3) - } { + (4) + } of this section { - shall
be - } { + is + } only for the improvement fee charged for the
type of improvement being constructed, and credit for qualified
public improvements under subsection { - (3)(b) - }
{ + (4)(b) + } of this section may be granted only for the cost
of that portion of such improvement that exceeds the local
government's minimum standard facility size or capacity needed to
serve the particular development project or property. The
applicant shall have the burden of demonstrating that a
particular improvement qualifies for credit under subsection
{ - (3)(b) - } { + (4)(b) + } of this section.
(b) When the construction of a qualified public improvement
gives rise to a credit amount greater than the improvement fee
that would otherwise be levied against the project receiving
development approval, the excess credit may be applied against
improvement fees that accrue in subsequent phases of the original
development project. This subsection { - shall - }
{ + does + } not prohibit a local government from providing a
greater credit, or from establishing a system providing for the
transferability of credits, or from providing a credit for a
capital improvement not identified in the plan { + and list + }
adopted pursuant to ORS 223.309, or from providing a share of the
cost of such improvement by other means, if a local government so
chooses.
(c) Credits { - shall - } { + must + } be used in the time
specified in the ordinance but not later than 10 years from the
date the credit is given.
{ - (5) - } { + (6) + } Any local government that proposes
to establish or modify a system development charge shall maintain
a list of persons who have made a written request for
notification prior to adoption or amendment of a methodology for
any system development charge.
{ - (6) - } { + (7)(a) + } Written notice { - shall - }
{ + must + } be mailed to persons on the list at least 90 days
prior to the first hearing to establish or modify a system
development charge, and the methodology supporting the system
development charge { - shall - } { + must + } be available at
least 60 days prior to the first hearing. The failure of a person
on the list to receive a notice that was mailed does not
invalidate the action of the local government. The local
government may periodically delete names from the list, but at
least 30 days prior to removing a name from the list
{ - must - } { + shall + } notify the person whose name is to
be deleted that a new written request for notification is
required if the person wishes to remain on the notification list.
{ +
(b) + } Legal action intended to contest the methodology used
for calculating a system development charge may not be filed
after 60 days following adoption or modification of the system
development charge ordinance or resolution by the local
government. A person shall request judicial review of the
methodology used for calculating a system development charge only
as provided in ORS 34.010 to 34.100.
{ - (7) A change in the amount of a reimbursement fee or an
improvement fee is not a modification of the system development
charge if the change in amount is based on the periodic
application of an adopted specific cost index or on a
modification to any of the factors related to rate that are
incorporated in the established methodology. - }
{ + (8) A change in the amount of a reimbursement fee or an
improvement fee is not a modification of the system development
charge methodology if the change in amount is based on:
(a) A change in the cost of materials, labor or real property
applied to projects or project capacity as set forth on the list
adopted pursuant to ORS 223.309; or
(b) The periodic application of one or more specific cost
indexes or other periodic data sources. A specific cost index or
periodic data source must be:
(A) A relevant measurement of the average change in prices or
costs over an identified time period for materials, labor, real
property or a combination of the three;
(B) Published by a recognized organization or agency that
produces the index or data source for reasons that are
independent of the system development charge methodology; and
(C) Incorporated as part of the established methodology or
identified and adopted in a separate ordinance, resolution or
order. + }
SECTION 5. ORS 223.304, as amended by section 4 of this 2003
Act, is amended to read:
223.304. (1)(a) Reimbursement fees must be established or
modified by ordinance or resolution setting forth a methodology
that is, when applicable, based on:
(A) Ratemaking principles employed to finance publicly owned
capital improvements;
(B) Prior contributions by existing users;
(C) Gifts or grants from federal or state government or private
persons;
(D) The value of unused capacity available to future system
users or the cost of the existing facilities; and
(E) Other relevant factors identified by the governmental unit
imposing the fee.
(b) The methodology for establishing or modifying a
reimbursement fee must:
(A) Promote the objective of future system users contributing
no more than an equitable share to the cost of existing
facilities.
(B) Be available for public inspection.
(2) Improvement fees must:
(a) Be established or modified by ordinance or resolution
setting forth a methodology that is available for public
inspection and demonstrates consideration of:
(A) The projected cost of the capital improvements identified
in the plan and list adopted pursuant to ORS 223.309 that are
needed to increase the capacity of the systems to which the fee
is related; and
(B) The need for increased capacity in the system to which the
fee is related that will be required to serve the demands placed
on the system by future users.
(b) Be calculated to obtain the cost of capital improvements
for the projected need for available system capacity for future
users.
(3) A governmental unit may establish and impose a system
development charge that is a combination of a reimbursement fee
and an improvement fee, if the methodology demonstrates that the
charge is not based on providing the same system capacity.
(4) The ordinance or resolution that establishes or modifies an
improvement fee shall also provide for a credit against such fee
for the construction of a qualified public improvement. A '
qualified public improvement' means a capital improvement that is
required as a condition of development approval, identified in
the plan and list adopted pursuant to ORS 223.309 and either:
(a) Not located on or contiguous to property that is the
subject of development approval; or
(b) Located in whole or in part on or contiguous to property
that is the subject of development approval and required to be
built larger or with greater capacity than is necessary for the
particular development project to which the improvement fee is
related.
(5)(a) The credit provided for in subsection (4) of this
section is only for the improvement fee charged for the type of
improvement being constructed, and credit for qualified public
improvements under subsection (4)(b) of this section may be
granted only for the cost of that portion of such improvement
that exceeds the governmental unit's minimum standard facility
size or capacity needed to serve the particular development
project or property. The applicant shall have the burden of
demonstrating that a particular improvement qualifies for credit
under subsection (4)(b) of this section.
{ + (b) A governmental unit may deny the credit provided for
in subsection (4) of this section if the governmental unit
demonstrates:
(A) That the application does not meet the requirements of
subsection (4) of this section; or
(B) By reference to the list adopted pursuant to ORS 223.309,
that the improvement for which credit is sought was not included
in the plan and list adopted pursuant to ORS 223.309. + }
{ - (b) - } { + (c) + } When the construction of a
qualified public improvement gives rise to a credit amount
greater than the improvement fee that would otherwise be levied
against the project receiving development approval, the excess
credit may be applied against improvement fees that accrue in
subsequent phases of the original development project. This
subsection does not prohibit a governmental unit from providing a
greater credit, or from establishing a system providing for the
transferability of credits, or from providing a credit for a
capital improvement not identified in the plan and list adopted
pursuant to ORS 223.309, or from providing a share of the cost of
such improvement by other means, if a governmental unit so
chooses.
{ - (c) - } { + (d) + } Credits must be used in the time
specified in the ordinance but not later than 10 years from the
date the credit is given.
(6) Any governmental unit that proposes to establish or modify
a system development charge shall maintain a list of persons who
have made a written request for notification prior to adoption or
amendment of a methodology for any system development charge.
(7)(a) Written notice must be mailed to persons on the list at
least 90 days prior to the first hearing to establish or modify a
system development charge, and the methodology supporting the
system development charge must be available at least 60 days
prior to the first hearing. The failure of a person on the list
to receive a notice that was mailed does not invalidate the
action of the governmental unit. The governmental unit may
periodically delete names from the list, but at least 30 days
prior to removing a name from the list shall notify the person
whose name is to be deleted that a new written request for
notification is required if the person wishes to remain on the
notification list.
(b) Legal action intended to contest the methodology used for
calculating a system development charge may not be filed after 60
days following adoption or modification of the system development
charge ordinance or resolution by the governmental unit. A person
shall request judicial review of the methodology used for
calculating a system development charge only as provided in ORS
34.010 to 34.100.
(8) A change in the amount of a reimbursement fee or an
improvement fee is not a modification of the system development
charge methodology if the change in amount is based on:
(a) A change in the cost of materials, labor or real property
applied to projects or project capacity as set forth on the list
adopted pursuant to ORS 223.309; or
(b) The periodic application of one or more specific cost
indexes or other periodic data sources. A specific cost index or
periodic data source must be:
(A) A relevant measurement of the average change in prices or
costs over an identified time period for materials, labor, real
property or a combination of the three;
(B) Published by a recognized organization or agency that
produces the index or data source for reasons that are
independent of the system development charge methodology; and
(C) Incorporated as part of the established methodology or
identified and adopted in a separate ordinance, resolution or
order.
SECTION 5a. { + If House Bill 2278 becomes law, section 5 of
this 2003 Act (amending ORS 223.304) is repealed and ORS 223.304,
as amended by section 21, chapter ___, Oregon Laws 2003 (Enrolled
House Bill 2278), and section 4a of this 2003 Act, is amended to
read: + }
223.304. (1)(a) Reimbursement fees must be established or
modified by ordinance or resolution setting forth a methodology
that is, when applicable, based on:
(A) Ratemaking principles employed to finance publicly owned
capital improvements;
(B) Prior contributions by existing users;
(C) Gifts or grants from federal or state government or private
persons;
(D) The value of unused capacity available to future system
users or the cost of the existing facilities; and
(E) Other relevant factors identified by the local government
imposing the fee.
(b) The methodology for establishing or modifying a
reimbursement fee must:
(A) Promote the objective of future system users contributing
no more than an equitable share to the cost of existing
facilities.
(B) Be available for public inspection.
(2) Improvement fees must:
(a) Be established or modified by ordinance or resolution
setting forth a methodology that is available for public
inspection and demonstrates consideration of:
(A) The projected cost of the capital improvements identified
in the plan and list adopted pursuant to ORS 223.309 that are
needed to increase the capacity of the systems to which the fee
is related; and
(B) The need for increased capacity in the system to which the
fee is related that will be required to serve the demands placed
on the system by future users.
(b) Be calculated to obtain the cost of capital improvements
for the projected need for available system capacity for future
users.
(3) A local government may establish and impose a system
development charge that is a combination of a reimbursement fee
and an improvement fee, if the methodology demonstrates that the
charge is not based on providing the same system capacity.
(4) The ordinance or resolution that establishes or modifies an
improvement fee shall also provide for a credit against such fee
for the construction of a qualified public improvement. A '
qualified public improvement' means a capital improvement that is
required as a condition of development approval, identified in
the plan and list adopted pursuant to ORS 223.309 and either:
(a) Not located on or contiguous to property that is the
subject of development approval; or
(b) Located in whole or in part on or contiguous to property
that is the subject of development approval and required to be
built larger or with greater capacity than is necessary for the
particular development project to which the improvement fee is
related.
(5)(a) The credit provided for in subsection (4) of this
section is only for the improvement fee charged for the type of
improvement being constructed, and credit for qualified public
improvements under subsection (4)(b) of this section may be
granted only for the cost of that portion of such improvement
that exceeds the local government's minimum standard facility
size or capacity needed to serve the particular development
project or property. The applicant shall have the burden of
demonstrating that a particular improvement qualifies for credit
under subsection (4)(b) of this section.
{ + (b) A local government may deny the credit provided for
in subsection (4) of this section if the local government
demonstrates:
(A) That the application does not meet the requirements of
subsection (4) of this section; or
(B) By reference to the list adopted pursuant to ORS 223.309,
that the improvement for which credit is sought was not included
in the plan and list adopted pursuant to ORS 223.309. + }
{ - (b) - } { + (c) + } When the construction of a
qualified public improvement gives rise to a credit amount
greater than the improvement fee that would otherwise be levied
against the project receiving development approval, the excess
credit may be applied against improvement fees that accrue in
subsequent phases of the original development project. This
subsection does not prohibit a local government from providing a
greater credit, or from establishing a system providing for the
transferability of credits, or from providing a credit for a
capital improvement not identified in the plan and list adopted
pursuant to ORS 223.309, or from providing a share of the cost of
such improvement by other means, if a local government so
chooses.
{ - (c) - } { + (d) + } Credits must be used in the time
specified in the ordinance but not later than 10 years from the
date the credit is given.
(6) Any local government that proposes to establish or modify a
system development charge shall maintain a list of persons who
have made a written request for notification prior to adoption or
amendment of a methodology for any system development charge.
(7)(a) Written notice must be mailed to persons on the list at
least 90 days prior to the first hearing to establish or modify a
system development charge, and the methodology supporting the
system development charge must be available at least 60 days
prior to the first hearing. The failure of a person on the list
to receive a notice that was mailed does not invalidate the
action of the local government. The local government may
periodically delete names from the list, but at least 30 days
prior to removing a name from the list shall notify the person
whose name is to be deleted that a new written request for
notification is required if the person wishes to remain on the
notification list.
(b) Legal action intended to contest the methodology used for
calculating a system development charge may not be filed after 60
days following adoption or modification of the system development
charge ordinance or resolution by the local government. A person
shall request judicial review of the methodology used for
calculating a system development charge only as provided in ORS
34.010 to 34.100. { - - }
(8) A change in the amount of a reimbursement fee or an
improvement fee is not a modification of the system development
charge methodology if the change in amount is based on:
(a) A change in the cost of materials, labor or real property
applied to projects or project capacity as set forth on the list
adopted pursuant to ORS 223.309; or
(b) The periodic application of one or more specific cost
indexes or other periodic data sources. A specific cost index or
periodic data source must be:
(A) A relevant measurement of the average change in prices or
costs over an identified time period for materials, labor, real
property or a combination of the three;
(B) Published by a recognized organization or agency that
produces the index or data source for reasons that are
independent of the system development charge methodology; and
(C) Incorporated as part of the established methodology or
identified and adopted in a separate ordinance, resolution or
order.
SECTION 6. ORS 223.307 is amended to read:
223.307. (1) Reimbursement fees { - shall - } { + may + }
be spent only on capital improvements associated with the systems
for which the fees are assessed including expenditures relating
to repayment of indebtedness.
(2) Improvement fees { - shall - } { + may + } be spent
only on capacity increasing capital improvements, including
expenditures relating to repayment of debt for such improvements.
An increase in system capacity may be established if a capital
improvement increases the level of performance or service
provided by existing facilities or provides new facilities. The
portion of { - such - } { + the + } improvements funded by
improvement fees must be related to { - current or projected
development - } { + the need for increased capacity to provide
service for future users + }.
(3) System development charges { - shall - } { + may + }
not be expended for costs associated with the construction of
administrative office facilities that are more than an incidental
part of other capital improvements { + or for the expenses of
the operation or maintenance of the facilities constructed with
system development charge revenues + }.
(4) Any capital improvement being funded wholly or in part with
system development charge revenues { - shall - } { + must + }
be included in the plan { + and list + } adopted by a
governmental unit pursuant to ORS 223.309.
(5) Notwithstanding subsections (1) and (2) of this section,
system development charge revenues may be expended on the
{ - direct - } costs of complying with the provisions of ORS
223.297 to 223.314, including the costs of developing system
development charge methodologies and providing an annual
accounting of system development charge expenditures.
SECTION 7. ORS 223.309 is amended to read:
223.309. (1) Prior to the establishment of a system development
charge by ordinance or resolution, a governmental unit shall
prepare a capital improvement plan, public facilities plan,
master plan or comparable plan that includes a list of the
capital improvements that { - may be funded - } { + the
governmental unit intends to fund, in whole or in part, + } with
{ + revenues from an + }improvement fee
{ - revenues - } and the estimated cost { + , + }
{ - and - } timing { + and percentage of costs eligible to be
funded with revenues from the improvement fee + } for each
improvement.
(2) A governmental unit that has prepared a plan and the list
described in subsection (1) of this section may modify
{ - such - } { + the + } plan and list at any time. { + If a
system development charge will be increased by a proposed
modification of the list to include a capacity increasing capital
improvement, as described in ORS 223.307 (2):
(a) The governmental unit shall provide, at least 30 days prior
to the adoption of the modification, notice of the proposed
modification to the persons who have requested written notice
under ORS 223.304 (6).
(b) The governmental unit shall hold a public hearing if the
governmental unit receives a written request for a hearing on the
proposed modification within seven days of the date the proposed
modification is scheduled for adoption.
(c) Notwithstanding ORS 294.160, a public hearing is not
required if the governmental unit does not receive a written
request for a hearing.
(d) The decision of a governmental unit to increase the system
development charge by modifying the list may be judicially
reviewed only as provided in ORS 34.010 to 34.100. + }
SECTION 7a. { + If House Bill 2278 becomes law, section 7 of
this 2003 Act (amending ORS 223.309) is repealed and ORS 223.309,
as amended by section 23, chapter ___, Oregon Laws 2003 (Enrolled
House Bill 2278), is amended to read: + }
223.309. (1) Prior to the establishment of a system development
charge by ordinance or resolution, a local government shall
prepare a capital improvement plan, public facilities plan,
master plan or comparable plan that includes a list of the
capital improvements that { - may be funded - } { + the local
government intends to fund, in whole or in part, + } with
{ + revenues from an + }improvement fee
{ - revenues - } and the estimated cost { + , + }
{ - and - } timing { + and percentage of costs eligible to be
funded with revenues from the improvement fee + } for each
improvement.
(2) A local government that has prepared a plan and the list
described in subsection (1) of this section may modify
{ - such - } { + the + } plan and list at any time. { + If a
system development charge will be increased by a proposed
modification of the list to include a capacity increasing capital
improvement, as described in ORS 223.307 (2):
(a) The local government shall provide, at least 30 days prior
to the adoption of the modification, notice of the proposed
modification to the persons who have requested written notice
under ORS 223.304 (6).
(b) The local government shall hold a public hearing if the
local government receives a written request for a hearing on the
proposed modification within seven days of the date the proposed
modification is scheduled for adoption.
(c) Notwithstanding ORS 294.160, a public hearing is not
required if the local government does not receive a written
request for a hearing.
(d) The decision of a local government to increase the system
development charge by modifying the list may be judicially
reviewed only as provided in ORS 34.010 to 34.100. + }
SECTION 8. ORS 223.311 is amended to read:
223.311. (1) System development charge revenues { - shall - }
{ + must + } be deposited in accounts designated for such
moneys. The governmental unit shall provide an annual accounting,
to be completed by January 1 of each year, for system development
charges showing the total amount of system development charge
revenues collected for each system and the projects that were
funded in the previous fiscal year.
(2) The governmental unit shall include in the annual
accounting { + :
(a) + } A list of the amount spent on each project funded, in
whole or in part, with system development charge revenues { + ;
and
(b) The amount of revenue collected by the governmental unit
from system development charges and attributed to the costs of
complying with the provisions of ORS 223.297 to 223.314, as
described in ORS 223.307 + }.
SECTION 8a. { + If House Bill 2278 becomes law, section 8 of
this 2003 Act (amending ORS 223.311) is repealed and ORS 223.311,
as amended by section 24, chapter ___, Oregon Laws 2003 (Enrolled
House Bill 2278), is amended to read: + }
223.311. (1) System development charge revenues { - shall - }
{ + must + } be deposited in accounts designated for such
moneys. The local government shall provide an annual accounting,
to be completed by January 1 of each year, for system development
charges showing the total amount of system development charge
revenues collected for each system and the projects that were
funded in the previous fiscal year.
(2) The local government shall include in the annual
accounting { + :
(a) + } A list of the amount spent on each project funded, in
whole or in part, with system development charge revenues { + ;
and
(b) The amount of revenue collected by the local government
from system development charges and attributed to the costs of
complying with the provisions of ORS 223.297 to 223.314, as
described in ORS 223.307 + }.
SECTION 9. ORS 223.314 is amended to read:
223.314. The establishment, modification or implementation of a
system development charge, or a plan { - as provided for in - }
{ + or list adopted pursuant to + } ORS 223.309, or any
modification of a plan { + or list + }, is not a land use
decision pursuant to ORS chapters 195 and 197.
SECTION 10. { + The amendments to ORS 223.304 and 223.309 by
sections 5 and 7 of this 2003 Act become operative on July 1,
2004. + }
SECTION 10a. If House Bill 2278 becomes law, section 10 of this
2003 Act is amended to read:
{ + Sec. 10. + } The amendments to ORS 223.304 and 223.309 by
sections { - 5 and 7 - } { + 5a and 7a + } of this 2003 Act
become operative on July 1, 2004.
----------