74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 1011
Sponsored by COMMITTEE ON JUDICIARY
CHAPTER ................
AN ACT
Relating to land reserves; creating new provisions; amending ORS
195.145, 197.626 and 221.034; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 4 of this 2007 Act:
(1) 'Rural reserve' means land reserved to provide long-term
protection for agriculture, forestry or important natural
landscape features that limit urban development or help define
appropriate natural boundaries of urbanization, including plant,
fish and wildlife habitat, steep slopes and floodplains.
(2) 'Urban reserve' means lands outside an urban growth
boundary that will provide for:
(a) Future expansion over a long-term period; and
(b) The cost-effective provision of public facilities and
services within the area when the lands are included within the
urban growth boundary. + }
SECTION 2. { + The Legislative Assembly finds that:
(1) Long-range planning for population and employment growth by
local governments can offer greater certainty for:
(a) The agricultural and forest industries, by offering
long-term protection of large blocks of land with the
characteristics necessary to maintain their viability; and
(b) Commerce, other industries, other private landowners and
providers of public services, by determining the more and less
likely locations of future expansion of urban growth boundaries
and urban development.
(2) State planning laws must support and facilitate long-range
planning to provide this greater certainty. + }
SECTION 3. { + (1) A county and a metropolitan service
district established under ORS chapter 268 may enter into an
intergovernmental agreement pursuant to ORS 190.003 to 190.130,
195.025 or 197.652 to 197.658 to designate rural reserves
pursuant to this section and urban reserves pursuant to ORS
195.145 (1)(b).
(2) Land designated as a rural reserve:
(a) Must be outside an urban growth boundary.
(b) May not be designated as an urban reserve during the urban
reserve planning period described in ORS 195.145 (4).
(c) May not be included within an urban growth boundary during
the period of time described in paragraph (b) of this subsection.
(3) When designating a rural reserve under this section to
provide long-term protection to the agricultural industry, a
county and a metropolitan service district shall base the
Enrolled Senate Bill 1011 (SB 1011-B) Page 1
designation on consideration of factors including, but not
limited to, whether land proposed for designation as a rural
reserve:
(a) Is situated in an area that is otherwise potentially
subject to urbanization during the period described in subsection
(2)(b) of this section, as indicated by proximity to the urban
growth boundary and to properties with fair market values that
significantly exceed agricultural values;
(b) Is capable of sustaining long-term agricultural operations;
(c) Has suitable soils and available water where needed to
sustain long-term agricultural operations; and
(d) Is suitable to sustain long-term agricultural operations,
taking into account:
(A) The existence of a large block of agricultural or other
resource land with a concentration or cluster of farms;
(B) The adjacent land use pattern, including its location in
relation to adjacent nonfarm uses and the existence of buffers
between agricultural operations and nonfarm uses;
(C) The agricultural land use pattern, including parcelization,
tenure and ownership patterns; and
(D) The sufficiency of agricultural infrastructure in the area.
(4) The Land Conservation and Development Commission shall,
after consultation with the State Department of Agriculture,
adopt by goal or by rule a process and criteria for designating
rural reserves pursuant to this section. + }
SECTION 4. { + (1) A county and a metropolitan service
district must consider simultaneously the designation and
establishment of:
(a) Rural reserves pursuant to section 3 of this 2007 Act; and
(b) Urban reserves pursuant to ORS 195.145 (1)(b).
(2) An agreement between a county and a metropolitan service
district to establish rural reserves pursuant to section 3 of
this 2007 Act and urban reserves pursuant to ORS 195.145 (1)(b)
must provide for a coordinated and concurrent process for
adoption by the county of comprehensive plan provisions and by
the district of regional framework plan provisions to implement
the agreement. A district may not designate urban reserves
pursuant to ORS 195.145 (1)(b) in a county until the county and
the district have entered into an agreement pursuant to ORS
195.145 (1)(b) that identifies the land to be designated by the
district in the district's regional framework plan as urban
reserves. A county may not designate rural reserves pursuant to
section 3 of this 2007 Act until the county and the district have
entered into an agreement pursuant to section 3 of this 2007 Act
that identifies the land to be designated as rural reserves by
the county in the county's comprehensive plan.
(3) A county and a metropolitan service district may not enter
into an intergovernmental agreement to designate urban reserves
in the county pursuant to ORS 195.145 (1)(b) unless the county
and the district also agree to designate rural reserves in the
county.
(4) Designation and protection of rural reserves pursuant to
section 3 of this 2007 Act or urban reserves pursuant to ORS
195.145 (1)(b):
(a) Is not a basis for a claim for compensation under ORS
197.352 unless the designation and protection of rural reserves
or urban reserves imposes a new restriction on the use of private
real property.
(b) Does not impair the rights and immunities provided under
ORS 30.930 to 30.947. + }
Enrolled Senate Bill 1011 (SB 1011-B) Page 2
SECTION 5. { + (1) Sections 1 to 4 of this 2007 Act are added
to and made a part of ORS chapter 195.
(2) ORS 195.145 is added to and made a part of sections 1 to 4
of this 2007 Act. + }
SECTION 6. ORS 195.145 is amended to read:
195.145. (1) To ensure that the supply of land available for
urbanization is maintained { - , - } { + :
(a) + } Local governments may cooperatively designate lands
outside urban growth boundaries as { - urban reserve areas,
subject to ORS 197.610 to 197.625. - } { + urban reserves
subject to ORS 197.610 to 197.625.
(b) Alternatively, a metropolitan service district established
under ORS chapter 268 and a county may enter into a written
agreement pursuant to ORS 190.003 to 190.130, 195.025 or 197.652
to 197.658 to designate urban reserves. A process and criteria
developed pursuant to this paragraph are an alternative to a
process or criteria adopted pursuant to paragraph (a) of this
subsection. + }
(2)(a) The Land Conservation and Development Commission may
require a local government to designate an urban reserve
{ - area - } { + pursuant to subsection (1)(a) of this
section + } during its periodic review in accordance with the
conditions for periodic review under ORS 197.628.
(b) Notwithstanding paragraph (a) of this subsection, the
commission may require a local government to designate an urban
reserve { - area - } { + pursuant to subsection (1)(a) of
this section + } outside of its periodic review if:
(A) The local government is located inside a Primary
Metropolitan Statistical Area or a Metropolitan Statistical Area
as designated by the Federal Census Bureau upon November 4, 1993;
and
(B) The local government has been required to designate an
urban reserve { - area - } by rule prior to November 4, 1993.
(3) In carrying out subsections (1) and (2) of this section:
(a) Within an urban reserve { - area - } , neither the
commission nor any local government shall prohibit the siting on
a legal parcel of a single family dwelling that would otherwise
have been allowed under law existing prior to designation as an
urban reserve { - area - } .
(b) The commission shall provide to local governments a list of
options, rather than prescribing a single planning technique, to
ensure the efficient transition from rural to urban use in urban
reserve { - areas - } .
{ - (4) For purposes of this section, 'urban reserve area '
means lands outside an urban growth boundary that will provide
for: - }
{ - (a) Future expansion over a long-term period; and - }
{ - (b) The cost-effective provision of public facilities and
service within the area when the lands are included within the
urban growth boundary - } .
{ + (4) Urban reserves designated by a metropolitan service
district and a county pursuant to subsection (1)(b) of this
section must be planned to accommodate population and employment
growth for at least 20 years, and not more than 30 years, after
the 20-year period for which the district has demonstrated a
buildable land supply in the most recent inventory, determination
and analysis performed under ORS 197.296.
(5) A district and a county shall base the designation of urban
reserves under subsection (1)(b) of this section upon
consideration of factors including, but not limited to, whether
Enrolled Senate Bill 1011 (SB 1011-B) Page 3
land proposed for designation as urban reserves, alone or in
conjunction with land inside the urban growth boundary:
(a) Can be developed at urban densities in a way that makes
efficient use of existing and future public infrastructure
investments;
(b) Includes sufficient development capacity to support a
healthy urban economy;
(c) Can be served by public schools and other urban-level
public facilities and services efficiently and cost-effectively
by appropriate and financially capable service providers;
(d) Can be designed to be walkable and served by a
well-connected system of streets by appropriate service
providers;
(e) Can be designed to preserve and enhance natural ecological
systems; and
(f) Includes sufficient land suitable for a range of housing
types.
(6) The commission shall adopt by goal or by rule a process and
criteria for designating urban reserves pursuant to subsection
(1)(b) of this section. + }
SECTION 7. 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 { + that
amends the district's regional framework plan or land use
regulations implementing the plan to establish urban reserves
designated under ORS 197.145 (1)(b), + } 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,
{ + or a county that amends the county's comprehensive plan or
land use regulations implementing the plan to establish rural
reserves designated under section 3 of this 2007 Act, + } 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 8. ORS 221.034 is amended to read:
221.034. (1) As used in this section:
(a) 'Neighboring city' means a city that has any part of its
territory situated within three miles of the area proposed to be
incorporated.
(b) 'Rural unincorporated community' means a settlement with a
boundary identified in an acknowledged comprehensive plan of a
county and that:
(A) Is made up primarily of lands subject to an exception to
statewide planning goals related to agricultural lands or
forestlands;
(B) Either was identified in the acknowledged comprehensive
plan of a county as a 'rural community,' 'service center, ' '
rural center,' 'resort community' or similar term before October
28, 1994, or is listed in the Department of Land Conservation and
Development's 'Survey of Oregon Unincorporated Communities'
(January 30, 1997);
(C) Lies outside the urban growth boundary of a city or a
metropolitan service district; and
(D) Is not incorporated as a city.
(c) 'Urban reserve { - area - } ' has the meaning given that
term in { - ORS 195.145 - } { + section 1 of this 2007
Act + }.
(d) 'Urban services' has the meaning given that term in ORS
195.065.
Enrolled Senate Bill 1011 (SB 1011-B) Page 4
(2) When any of the area proposed to be incorporated as a city
lies within an urbanized area, but outside the urban growth
boundary of a city or a metropolitan service district:
(a) The area proposed to be incorporated must also be located
entirely within a designated rural unincorporated community and
contiguous lands subject to an exception to statewide planning
goals related to agricultural lands or forestlands.
(b) The petition required by ORS 221.031 must be accompanied by
an affidavit, signed by a chief petitioner, stating that:
(A) Ten percent of the electors registered within the area
proposed for incorporation favor the incorporation; and
(B) The chief petitioners have engaged the neighboring cities
in discussions concerning the effects of the proposed
incorporation, including discussions specifically relating to how
those cities and the proposed city will allow for expansion of
urban growth boundaries and, where applicable, for creation or
expansion of urban { - reserve areas - } { + reserves + }.
(c) The economic feasibility statement required by ORS 221.035
must:
(A) Indicate that the proposed city must plan for and provide
urban services in a cost-effective manner at the minimum level
adequate to meet current needs and projected growth;
(B) Contain a proposed permanent rate limit for operating taxes
to provide revenues for urban services; and
(C) Indicate that the proposed city must plan for residential
development at or above the same urban density planned for an
existing city, within the county, that has a similar geographic
area within the existing city's urban growth boundary or, for a
proposed city within three miles of Metro's boundary, a minimum
urban residential density in accordance with a statewide planning
goal and rules pertaining to needed housing for cities within
Metro's urban growth boundary.
(d) If the proposed city will be required to complete a public
facility plan and a transportation systems plan, the proposed
city must demonstrate the ability to provide urban services to
meet current needs and projected growth. The proposed city may
meet this requirement, in whole or in part, by establishing an
agreement in principle with a city or a district, as defined in
ORS 195.060, to provide the urban services.
(3) If the governing body of a neighboring city determines that
the proposed incorporation adversely affects that city, the
governing body may ask the county court with which the petition
for incorporation was filed to reject the petition and terminate
the incorporation proceedings. The objections by the city to the
incorporation shall be heard and considered by the county court
at a public hearing held under ORS 221.040.
(4) If, at the hearing held under ORS 221.040, the county court
finds that any of the requirements of subsection (2) of this
section are not met or that the proposed incorporation will
adversely affect a neighboring city, the county court shall
provide by order for the termination of the incorporation
proceedings. The order shall contain the findings of the county
court relating to the proposed incorporation and the reasons for
terminating the incorporation proceedings.
(5) In the manner provided in ORS 197.830 to 197.845, the Land
Use Board of Appeals shall review, upon the petition of a party
to the incorporation proceedings, the order of the county court
under subsection (4) of this section.
SECTION 9. { + (1) Notwithstanding ORS 197.650, a Land
Conservation and Development Commission order concerning the
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designation of urban reserves under ORS 195.145 (1)(b) or rural
reserves under section 3 of this 2007 Act may be appealed to the
Court of Appeals by the persons described in ORS 197.650.
(2) Judicial review of orders described in subsection (1) of
this section is as provided in this section.
(3) Jurisdiction for judicial review is conferred upon the
Court of Appeals. A proceeding for judicial review may be
instituted by filing a petition in the Court of Appeals. The
petition must be filed within 21 days after the date the
commission delivered or mailed the order upon which the petition
is based.
(4) The filing of the petition, as set forth in subsection (3)
of this section, and service of a petition on the persons who
submitted oral or written testimony in the proceeding before the
commission are jurisdictional and may not be waived or extended.
(5) The petition must state the nature of the order the
petitioner seeks to have reviewed. Copies of the petition must be
served by registered or certified mail upon the commission and
the persons who submitted oral or written testimony in the
proceeding before the commission.
(6) Within 21 days after service of the petition, the
commission shall transmit to the Court of Appeals the original or
a certified copy of the entire record of the proceeding under
review. However, by stipulation of the parties to the review
proceeding, the record may be shortened. The Court of Appeals may
tax a party that unreasonably refuses to stipulate to limit the
record for the additional costs. The Court of Appeals may require
or permit subsequent corrections or additions to the record.
Except as specifically provided in this subsection, the Court of
Appeals may not tax the cost of the record to the petitioner or
an intervening party. However, the Court of Appeals may tax the
costs to a party that files a frivolous petition for judicial
review.
(7) Petitions and briefs must be filed within time periods and
in a manner established by the Court of Appeals by rule.
(8) The Court of Appeals shall:
(a) Hear oral argument within 49 days of the date of
transmittal of the record unless the Court of Appeals determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. However, the Court of Appeals may not hold oral argument
more than 49 days after the date of transmittal of the record
because of general congestion of the court calendar or lack of
diligent preparation or attention to the case by a member of the
court or a party.
(b) Set forth in writing and provide to the parties a
determination to hear oral argument more than 49 days from the
date the record is transmitted, together with the reasons for the
determination. The Court of Appeals shall schedule oral argument
as soon as is practicable.
(c) Consider, in making a determination under paragraph (b) of
this subsection:
(A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the Court of Appeals to prepare for oral
argument; and
(B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
(9) The court:
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(a) Shall limit judicial review of an order reviewed under this
section to the record.
(b) May not substitute its judgment for that of the Land
Conservation and Development Commission as to an issue of fact.
(10) The Court of Appeals may affirm, reverse or remand an
order reviewed under this section. The Court of Appeals shall
reverse or remand the order only if the court finds the order is:
(a) Unlawful in substance or procedure. However, error in
procedure is not cause for reversal or remand unless the Court of
Appeals determines that substantial rights of the petitioner were
prejudiced.
(b) Unconstitutional.
(c) Not supported by substantial evidence in the whole record
as to facts found by the commission.
(11) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
(12) If the order of the commission is remanded by the Court of
Appeals or the Supreme Court, the commission shall respond to the
court's appellate judgment within 30 days. + }
SECTION 10. { + Notwithstanding ORS 195.145 (4), if urban
reserves are designated by a metropolitan service district and a
county pursuant to ORS 195.145 (1)(b) on or before December 31,
2009, the urban reserves must be planned to accommodate
population and employment growth for at least 20 years, and not
more than 30 years, after the 20-year period for which the
district has demonstrated a buildable land supply in the next
inventory, determination and analysis required under ORS 197.299
on or after the effective date of this 2007 Act. + }
SECTION 11. { + The Land Conservation and Development
Commission shall adopt the goals or rules required by section 3
of this 2007 Act and by the amendments to ORS 195.145 by section
6 of this 2007 Act not later than January 31, 2008. + }
SECTION 12. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect on
its passage. + }
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Passed by Senate May 9, 2007
Repassed by Senate June 13, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 11, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 1011 (SB 1011-B) Page 7
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 1011 (SB 1011-B) Page 8