75th OREGON LEGISLATIVE ASSEMBLY--2009 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 706
House Bill 2227
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Land Conservation and Development)
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 as
introduced.
Modifies provisions for siting destination resorts.
Directs Land Conservation and Development Commission to
evaluate destination resort policies and update key requirements.
Limits legal basis for claiming compensation for regulations
restricting use of property by declaring that destination resort
is not residential use of private real property.
A BILL FOR AN ACT
Relating to destination resorts; creating new provisions;
amending ORS 197.440, 197.445, 197.450, 197.455, 197.460,
197.462 and 197.825; and repealing ORS 197.435 and 197.465.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 197.440 is amended to read:
197.440. { + (1) + } The Legislative Assembly finds that:
{ - (1) - } { + (a) + } It is the policy of this state to
promote Oregon as a vacation destination and to encourage tourism
as a valuable segment of our state's economy { - ; - }
{ + . + }
{ - (2) - } { + (b) + } There is a { - growing - } need
to provide year-round destination resort accommodations to
attract visitors and encourage them to stay longer. The
establishment of destination resorts will provide jobs for
Oregonians and contribute to the state's economic development
{ - ; - } { + . + }
{ - (3) It is a difficult and costly process to site and
establish destination resorts in rural areas of this state;
and - }
{ - (4) - } { + (c) + } The siting of destination resort
facilities is an issue of statewide concern.
{ + (2) The Legislative Assembly further finds that:
(a) In 1984, the Land Conservation and Development Commission
adopted provisions of a goal relating to recreational needs that
allowed the siting of destination resorts outside urban growth
boundaries without taking an exception to goals relating to
agricultural lands, forestlands, public facilities and services
or urbanization.
(b) Because, in 1987, provisions of the goals relating to
destination resorts were enacted into law:
(A) The commission has been limited in its authority to:
(i) Revise and update the goal relating to recreational needs;
and
(ii) Update land use policy relating to destination resorts to
account for changing circumstances and differing conditions and
needs in different regions of this state.
(B) Several problems have arisen, including:
(i) Destination resorts have become concentrated in close
proximity to some Oregon cities and the number of destination
resorts continues to increase without adequate assessment of the
impacts that existing and planned resorts have on nearby urban
and rural areas, including areas under the jurisdiction of
multiple local governments, transportation and other public
facilities, natural resources in the region, including water
resources and fish and wildlife habitat, prevention and
suppression of wildfires and control or mitigation of other
natural hazards.
(ii) Extensive areas outside of, but in proximity to, urban
growth boundaries are currently mapped and zoned to allow
destination resort development, and additional resorts are in the
planning or approval process.
(iii) Increasingly, destination resorts have taken on the
character of residential subdivisions, rather than unique
developments designed to attract tourism and serve visitors, and
have diminished the effect of land use policies intended to
concentrate permanent development in urban growth boundaries and
contain urban sprawl and exurban development in Oregon.
(iv) Siting criteria designed to ensure that high quality
developed recreational amenities anchor destination resorts have
not been updated to account for present-day market and inflation
factors or revised to encourage recreational amenities that
minimize impacts on the availability of water and on farmland,
forestland and other natural resources.
(v) Amendments to statutory requirements for destination
resorts have diminished the effect of safeguards provided in the
original goal-based requirements for destination resorts,
including modifications to the ratio of permanent housing to
overnight lodging and changes that authorize amendments to maps
of eligible lands at times other than the periodic review of
comprehensive plans. + }
SECTION 2. { + (1) The Land Conservation and Development
Commission shall:
(a) Evaluate the state's destination resort policies and
implementation of those policies; and
(b) Update key requirements and address issues through special
studies and, as necessary, through the amendment of statewide
land use planning goals or the adoption of administrative rules.
(2) The issues to be addressed and the key requirements to be
updated include, but are not limited to:
(a) The adequacy of siting provisions to ensure that
destination resorts function, as originally intended, to attract
tourism and serve visitors rather than to establish residential
subdivisions or to establish suburban communities that compete
with urban areas.
(b) The impact of existing and planned destination resorts on
nearby urban areas, including the impact of large amounts of
permanent, exurban housing on nearby communities, on facilities
and on service providers.
(c) The protection of important natural resources impacted by
destination resorts, including farm and forest resources, water
resources and natural areas and habitats, and the adequacy of
requirements for identifying and evaluating the important natural
resources before resort approval.
(d) The effects of a concentration of destination resorts in
particular regions of this state and whether the number of
destination resorts or the number of permanent dwelling units
allowed in resorts should be capped by region or county.
(e) Provisions to avoid or mitigate transportation and wildlife
impacts caused by destination resorts.
(f) Whether to cap the size of destination resorts generally or
the number of dwelling units allowed in destination resorts
concentrated in a region or county.
(g) Whether to limit the expansion of existing destination
resorts.
(h) Whether to allow conversion of existing rural residential
development to destination resort status.
(i) Equity among counties with regard to differing potential
for destination resort development and flexibility to adapt
siting requirements to differing conditions in the different
regions of this state.
(j) Mitigation and control of natural hazards, including
prevention and suppression of wildfires, that may be exacerbated
by destination resort siting.
(k) The availability of workforce housing and related
transportation needs in destination resorts and nearby
communities. + }
SECTION 3. ORS 197.445 is amended to read:
197.445. A destination resort is a self-contained development
that provides { - for - } visitor-oriented accommodations and
developed recreational facilities in a setting with high natural
amenities. To qualify as a destination resort under ORS 30.947,
197.435 to 197.467, 215.213, 215.283 and 215.284, a proposed
development must
{ - meet the following standards: - } { + satisfy the
requirements of a goal relating to recreational needs and rules
implementing the goal. + }
{ - (1) The resort must be located on a site of 160 acres or
more except within two miles of the ocean shoreline where the
site shall be 40 acres or more. - }
{ - (2) At least 50 percent of the site must be dedicated to
permanent open space, excluding streets and parking areas. - }
{ - (3) At least $7 million must be spent on improvements for
on-site developed recreational facilities and visitor-oriented
accommodations exclusive of costs for land, sewer and water
facilities and roads. Not less than one-third of this amount must
be spent on developed recreational facilities. - }
{ - (4) Visitor-oriented accommodations including meeting
rooms, restaurants with seating for 100 persons and 150 separate
rentable units for overnight lodging shall be provided. However,
the rentable overnight lodging units may be phased in as
follows: - }
{ - (a) On lands not described in paragraph (b) of this
subsection: - }
{ - (A) A total of 150 units of overnight lodging must be
provided. - }
{ - (B) At least 75 units of overnight lodging, not including
any individually owned homes, lots or units, must be constructed
or guaranteed through surety bonding or equivalent financial
assurance prior to the closure of sale of individual lots or
units. - }
{ - (C) The remaining overnight lodging units must be
provided as individually owned lots or units subject to deed
restrictions that limit their use to use as overnight lodging
units. The deed restrictions may be rescinded when the resort has
constructed 150 units of permanent overnight lodging as required
by this subsection. - }
{ - (D) The number of units approved for residential sale may
not be more than two units for each unit of permanent overnight
lodging provided under this paragraph. - }
{ - (E) The development approval must provide for the
construction of other required overnight lodging units within
five years of the initial lot sales. - }
{ - (b) On lands in eastern Oregon, as defined in ORS
321.805: - }
{ - (A) A total of 150 units of overnight lodging must be
provided. - }
{ - (B) At least 50 units of overnight lodging must be
constructed prior to the closure of sale of individual lots or
units. - }
{ - (C) At least 50 of the remaining 100 required overnight
lodging units must be constructed or guaranteed through surety
bonding or equivalent financial assurance within five years of
the initial lot sales. - }
{ - (D) The remaining required overnight lodging units must
be constructed or guaranteed through surety bonding or equivalent
financial assurances within 10 years of the initial lot
sales. - }
{ - (E) The number of units approved for residential sale may
not be more than 2-1/2 units for each unit of permanent overnight
lodging provided under this paragraph. - }
{ - (F) If the developer of a resort guarantees the overnight
lodging units required under subparagraphs (C) and (D) of this
paragraph through surety bonding or other equivalent financial
assurance, the overnight lodging units must be constructed within
four years of the date of execution of the surety bond or other
equivalent financial assurance. - }
{ - (5) Commercial uses allowed are limited to types and
levels of use necessary to meet the needs of visitors to the
development. Industrial uses of any kind are not permitted. - }
{ - (6) In lieu of the standards in subsections (1), (3) and
(4) of this section, the standards set forth in subsection (7) of
this section apply to a destination resort: - }
{ - (a) On land that is not defined as agricultural or forest
land under any statewide planning goal; - }
{ - (b) On land where there has been an exception to any
statewide planning goal on agricultural lands, forestlands,
public facilities and services and urbanization; or - }
{ - (c) On such secondary lands as the Land Conservation and
Development Commission deems appropriate. - }
{ - (7) The following standards apply to the provisions of
subsection (6) of this section: - }
{ - (a) The resort must be located on a site of 20 acres or
more. - }
{ - (b) At least $2 million must be spent on improvements for
on-site developed recreational facilities and visitor-oriented
accommodations exclusive of costs for land, sewer and water
facilities and roads. Not less than one-third of this amount must
be spent on developed recreational facilities. - }
{ - (c) At least 25 units, but not more than 75 units, of
overnight lodging must be provided. - }
{ - (d) Restaurant and meeting room with at least one seat
for each unit of overnight lodging must be provided. - }
{ - (e) Residential uses must be limited to those necessary
for the staff and management of the resort. - }
{ - (f) The governing body of the county or its designee has
reviewed the resort proposed under this subsection and has
determined that the primary purpose of the resort is to provide
lodging and other services oriented to a recreational resource
which can only reasonably be enjoyed in a rural area. Such
recreational resources include, but are not limited to, a hot
spring, a ski slope or a fishing stream. - }
{ - (g) The resort must be constructed and located so that it
is not designed to attract highway traffic. Resorts may not use
any manner of outdoor advertising signing except: - }
{ - (A) Tourist oriented directional signs as provided in ORS
377.715 to 377.830; and - }
{ - (B) On-site identification and directional signs. - }
{ - (8) Spending required under subsections (3) and (7) of
this section is stated in 1993 dollars. The spending required
shall be adjusted to the year in which calculations are made in
accordance with the United States Consumer Price Index. - }
{ - (9) When making a land use decision authorizing
construction of a destination resort in eastern Oregon, as
defined in ORS 321.805, the governing body of the county or its
designee shall require the resort developer to provide an annual
accounting to document compliance with the overnight lodging
standards of this section. The annual accounting requirement
commences one year after the initial lot or unit sales. The
annual accounting must contain: - }
{ - (a) Documentation showing that the resort contains a
minimum of 150 permanent units of overnight lodging or, during
the phase-in period, documentation showing the resort is not yet
required to have constructed 150 units of overnight lodging. - }
{ - (b) Documentation showing that the resort meets the
lodging ratio described in subsection (4) of this section. - }
{ - (c) For a resort counting individually owned units as
qualified overnight lodging units, the number of weeks that each
overnight lodging unit is available for rental to the general
public as described in ORS 197.435. - }
SECTION 4. ORS 197.450 is amended to read:
197.450. In accordance with the provisions of ORS 30.947,
197.435 to 197.467, 215.213, 215.283 and 215.284 { + and a goal
relating to recreational needs and rules implementing the
goal + }, a comprehensive plan may provide for the siting of a
destination resort on rural lands without taking an exception to
{ - statewide planning - } goals relating to agricultural
lands, forestlands, public facilities and services or
urbanization.
SECTION 5. ORS 197.455 is amended to read:
197.455. { - (1) - } A destination resort must be sited on
lands mapped as eligible for destination resort siting by the
affected county. The county may not { - allow destination
resorts approved pursuant to ORS 197.435 to 197.467 to be sited
in any of the following areas - } { + map lands as eligible for
destination resort siting if the lands are + }:
{ - (a) Within 24 air miles of an urban growth boundary with
an existing population of 100,000 or more unless residential uses
are limited to those necessary for the staff and management of
the resort. - }
{ - (b)(A) On a site with 50 or more contiguous acres of
unique or prime farmland identified and mapped by the United
States Natural Resources Conservation Service, or its predecessor
agency. - }
{ - (B) On a site within three miles of a high value crop
area unless the resort complies with the requirements of ORS
197.445 (6) in which case the resort may not be closer to a high
value crop area than one-half mile for each 25 units of overnight
lodging or fraction thereof. - }
{ - (c) On predominantly Cubic Foot Site Class 1 or 2
forestlands as determined by the State Forestry Department, which
are not subject to an approved goal exception. - }
{ - (d) In the Columbia River Gorge National Scenic Area as
defined by the Columbia River Gorge National Scenic Act, P.L.
99-663. - }
{ - (e) In an especially sensitive big game habitat area as
determined by the State Department of Fish and Wildlife in July
1984 or as designated in an acknowledged comprehensive plan. - }
{ - (2) In carrying out subsection (1) of this section, a
county shall adopt, as part of its comprehensive plan, a map
consisting of eligible lands within the county. The map must be
based on reasonably available information and may be amended
pursuant to ORS 197.610 to 197.625, but not more frequently than
once every 30 months. The county shall develop a process for
collecting and processing concurrently all map amendments made
within a 30-month planning period. A map adopted pursuant to this
section shall be the sole basis for determining whether tracts of
land are eligible for destination resort siting pursuant to ORS
197.435 to 197.467. - }
{ + (1) Within 24 air miles of an urban growth boundary with
a population of 100,000 or more on the date an application for
destination resort approval is deemed complete under ORS 215.427;
(2) On a site that is on high value farmland or within three
miles of high value farmland as determined by the Land
Conservation and Development Commission;
(3) On forestlands that are not subject to an approved goal
exception and that are determined by the State Forestry
Department to be predominantly Cubic Foot Site Class 1 or 2
forestlands;
(4) In the Columbia River Gorge National Scenic Area as defined
by the Columbia River Gorge National Scenic Act, P.L. 99-663; or
(5) In an area of especially sensitive big game habitat as
determined by the State Department of Fish and Wildlife in July
1984, or as designated by the county in the acknowledged
comprehensive plan. + }
SECTION 6. ORS 197.460 is amended to read:
197.460. A county shall { - insure - } { + ensure + } that
a destination resort is compatible with the site and adjacent
land uses { - through the following measures - } { + . The
county + }:
(1) { + Shall require that + } important natural features,
including habitat of threatened or endangered species, streams,
rivers and significant wetlands { + , + } { - shall be
retained. - } { + are protected.
(2) Shall require that + } riparian vegetation within 100 feet
of streams, rivers and significant wetlands { - shall be
retained. Alteration of important natural features, including
placement of structures which maintain the overall values of the
feature may be allowed. - } { + is protected, except as
necessary to implement restoration activities. + }
{ - (2) Improvements and activities shall be located and
designed to avoid or minimize adverse effects of the resort on
uses on surrounding lands, particularly effects on intensive
farming operations in the area. At a minimum, measures to
accomplish this shall include: - }
{ + (3) Shall require that destination resorts are located,
designed and operated to avoid or mitigate direct and indirect
adverse effects of the resort on other lands, including lands in
the jurisdiction of other local governments, particularly effects
on intensive farming operations in the area. At a minimum,
measures to accomplish this include: + }
(a) Establishment and maintenance of buffers between the resort
and adjacent land uses, including natural vegetation and where
appropriate, fences, berms, landscaped areas and other similar
types of buffers.
(b) Setbacks of structures and other improvements from adjacent
land uses.
{ + (c) Avoidance or mitigation of adverse effects on state
highways, county roads and city streets. + }
SECTION 7. { + A destination resort authorized under ORS
197.435 to 197.467 is not a residential use of private real
property for purposes of ORS 195.305. + }
SECTION 8. { + ORS 197.435 and 197.465 are repealed. + }
SECTION 9. ORS 197.462 is amended to read:
197.462. A portion of a tract that is excluded from the site of
a destination resort { - pursuant to ORS 197.435 (7) - } shall
not be used or operated in conjunction with the resort. Subject
to this limitation, the use of the excluded property shall be
governed by otherwise applicable law.
SECTION 10. ORS 197.825 is amended to read:
197.825. (1) Except as provided in ORS 197.320 and subsections
(2) and (3) of this section, the Land Use Board of Appeals shall
have exclusive jurisdiction to review any land use decision or
limited land use decision of a local government, special district
or a state agency in the manner provided in ORS 197.830 to
197.845.
(2) The jurisdiction of the board:
(a) Is limited to those cases in which the petitioner has
exhausted all remedies available by right before petitioning the
board for review;
(b) Is subject to the provisions of ORS 197.850 relating to
judicial review by the Court of Appeals;
(c) Does not include a local government decision that is:
(A) Submitted to the Department of Land Conservation and
Development for acknowledgment under ORS 197.251, 197.626 or
197.628 to 197.650 or a matter arising out of a local government
decision submitted to the department for acknowledgment, unless
the Director of the Department of Land Conservation and
Development, in the director's sole discretion, transfers the
matter to the board; or
(B) Subject to the review authority of the department under ORS
197.430 { - , 197.445, 197.450 or 197.455 - } { + or 197.435
to 197.467 + } or a matter related to a local government decision
subject to the review authority of the department under ORS
197.430 { - , 197.445, 197.450 or 197.455 - } { + or 197.435
to 197.467 + };
(d) Does not include those land use decisions of a state agency
over which the Court of Appeals has jurisdiction for initial
judicial review under ORS 183.400, 183.482 or other statutory
provisions;
(e) Does not include any rules, programs, decisions,
determinations or activities carried out under ORS 527.610 to
527.770, 527.990 (1) and 527.992;
(f) Is subject to ORS 196.115 for any county land use decision
that may be reviewed by the Columbia River Gorge Commission
pursuant to sections 10(c) or 15(a)(2) of the Columbia River
Gorge National Scenic Area Act, P.L. 99-663; and
(g) Does not include review of expedited land divisions under
ORS 197.360.
(3) Notwithstanding subsection (1) of this section, the circuit
courts of this state retain jurisdiction:
(a) To grant declaratory, injunctive or mandatory relief in
proceedings arising from decisions described in ORS 197.015
(10)(b) or proceedings brought to enforce the provisions of an
adopted comprehensive plan or land use regulations; and
(b) To enforce orders of the board in appropriate proceedings
brought by the board or a party to the board proceeding resulting
in the order.
SECTION 11. { + (1) The amendments to ORS 197.440, 197.445,
197.450, 197.455, 197.460, 197.462 and 197.825 by sections 1, 3
to 6, 9 and 10 of this 2009 Act, section 2 of this 2009 Act and
the repeal of ORS 197.435 and 197.465 by section 8 of this 2009
Act apply to an application for approval of the siting of a
destination resort first submitted under ORS 215.427 (3) on or
after the effective date of this 2009 Act.
(2) Section 7 of this 2009 Act applies to a destination resort
approved before, on or after the effective date of this 2009
Act. + }
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