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 707
A-Engrossed
House Bill 2228
Ordered by the House May 7
Including House Amendments dated May 7
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.
{ + Authorizes establishment of one or two small-scale
recreation communities on forestlands. Conditions establishment
of communities on transfer of development opportunity from owner
of Metolius resort site to owner of proposed site of small-scale
recreation community. Specifies standards for establishment of
communities. + }
Establishes pilot program to conserve resource lands by
facilitating transfer of residential development rights from farm
or forest property to other property.
{ + Provides that if owner of Skyline Forest and South
Country Tract transfers forest to land trust and tract to land
trust or land management agency under certain circumstances,
owner may retain and use 3,000 acres of land for specified
uses. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to transfer of development rights from resource lands;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The Legislative Assembly finds that:
(1) Providing for rural unemployment reductions and living wage
job opportunities brings stability to economically distressed
rural communities.
(2) Sections 1 to 9 of this 2009 Act are intended to reduce
unemployment and create living wage jobs in economically
distressed counties.
(3) Working forests make vital contributions to Oregon by
providing jobs, timber, timber products, tax base and other
social and economic benefits, by helping to maintain soil, air
and water resources, by reducing levels of carbon dioxide in the
atmosphere and by providing habitat for wildlife and aquatic
life.
(4) Population growth, escalating land values, increasing risks
due to wildfire and invasive species, and changes in land
ownership and management objectives, with a resulting increase in
conflict caused by dispersed residential development, require
that new methods be developed to facilitate continued management
of private lands zoned for forest use for timber harvest.
(5) It is the public policy of the State of Oregon to:
(a) Explore alternative methods to encourage the continued
management of private forestlands for timber production.
(b) Protect water quality, wildlife habitat and other important
natural resources by limiting location of dispersed residential
development on forestlands.
(c) Provide for an orderly and efficient transition from rural
to urban land uses by establishing locations at which residential
development rights or development opportunities transferred from
forestlands may be used.
(d) Provide for a limited number of demonstration projects for
small-scale recreation communities that:
(A) Create incentives for economic development in areas that
are in need of long-term job creation;
(B) Enhance the state's leadership in sustainability and
natural resource stewardship;
(C) Encourage appropriate public access to and stewardship of
recreational resources on public lands consistent with the
carrying capacity of the lands and resources; and
(D) Provide for additional sources of long-term funding for
stewardship of natural resources. + }
SECTION 1a. { + Sections 1 to 9 of this 2009 Act may be cited
as the Rural Unemployment Reductions and Living-Wage Job
Opportunities Bring Stability Act or the RURAL JOBS Act. + }
SECTION 2. { + As used in sections 2 to 5 of this 2009 Act:
(1) 'Management plan' means the management plan for the
Metolius River Basin that was recommended to the Legislative
Assembly on April 2, 2009, by the Land Conservation and
Development Commission.
(2) 'Metolius resort site' means land mapped as eligible for
destination resort siting under ORS 197.455 by Jefferson County
or Deschutes County that has not been developed as a resort and
that is not owned by a resort.
(3) 'Overnight lodgings' has the meaning given that term in ORS
197.435.
(4) 'Tract' has the meaning given that term in ORS 215.010. + }
SECTION 3. { + (1) Notwithstanding ORS 215.700 to 215.780, one
or two small-scale recreation communities may be established on
forestlands as specified in sections 2 to 5 of this 2009 Act.
(2) If, within 90 days after the effective date of this 2009
Act, the owner of a Metolius resort site notifies the Department
of Land Conservation and Development that it has elected to seek
approval of a small-scale recreation community, the owner may,
within one year after the effective date of this 2009 Act, apply
to a county for approval of a small-scale recreation community.
(3) A small-scale recreation community authorized under
sections 2 to 5 of this 2009 Act may be established only in
conjunction with a transfer of development opportunity from a
Metolius resort site. A transfer of development opportunity must
be carried out through an agreement between the owner of a
Metolius resort site and the owner of the site proposed for
development of a small-scale recreation community. In the
agreement, the owner of the Metolius resort site must:
(a) Agree to limit the use of the Metolius resort site,
consistent with the management plan in consideration for the
opportunity to participate in the development of the small-scale
recreation community; and
(b) Agree to grant a conservation easement pursuant to ORS
271.715 to 271.795 that:
(A) Limits the use of the Metolius resort site to be consistent
with the management plan;
(B) Allows public access to that portion of the site that is
not developed; and
(C) Contains other provisions, as required by the Department of
Land Conservation and Development, that are necessary to ensure
that the conservation easement is enforceable.
(4) A small-scale recreation community authorized under
sections 2 to 5 of this 2009 Act must be sited on land that is:
(a) Planned and zoned for forest use; and
(b) Within a county that has a seasonally adjusted average
annual unemployment rate over the preceding 10 calendar years
that is more than 110 percent of the unemployment rate for the
entire state over the same period, as reported by the Employment
Department.
(5) A small-scale recreation community authorized under
sections 2 to 5 of this 2009 Act may not be sited on land that
is:
(a) Within an area identified as 'Area 1' or 'Area 2' in the
management plan.
(b) Within an area described in ORS 197.455 in which
destination resorts may not be sited.
(c) Within an area protected by or inventoried as a significant
resource in an acknowledged comprehensive plan provision
implementing statewide land use planning goals relating to:
(A) Open space, scenic and historic areas and natural
resources;
(B) Estuarine resources;
(C) Coastal shorelands; or
(D) Beaches and dunes.
(d) Within an area identified as subject to a natural hazard by
an acknowledged comprehensive plan provision implementing a
statewide land use planning goal relating to protection from
natural hazards. + }
SECTION 4. { + (1) A small-scale recreation community
authorized under sections 2 to 5 of this 2009 Act must meet the
following development standards:
(a) The community must be located on a tract that contains 200
or fewer acres of land.
(b) The community must consist of 240 or fewer units and at
least two-thirds must be overnight lodging units.
(c) The community may contain one restaurant containing 5,000
or fewer square feet, and accessory uses necessary to the
operation of the community, including accessory recreational
facilities.
(d) The owner of the property must spend at least $1.5 million
on off-site resource enhancement or restoration projects on
nearby public lands that will be used by individuals from the
community.
(e) The community may not include a golf course or related
facilities.
(f) The community must be developed and operated in a
sustainable manner by meeting the following criteria:
(A) When fully developed, the community must use reclaimed
water as the primary source of water for any irrigation of
grounds.
(B) Facilities for snowmobiling or other motorized recreational
activities are not permitted.
(C) At least 50 percent of the tract on which the community is
located must be dedicated to permanent open space that is
contiguous and demonstrates the biological viability of the site
as habitat or that provides ecosystem services to the area.
(D) Significant natural resource functions and values on the
site must be preserved.
(E) Impervious surfaces, including rooftops and paved roads,
trails and parking areas may not exceed 35 percent of the total
site area.
(F) Potable water usage must achieve a 20 percent reduction
below standard code-built developments. Reclaimed water usage for
nonpotable water needs may account for the entire reduction
required.
(G) Stormwater must be managed on-site. Off-site runoff must be
limited to predevelopment runoff rates.
(H) A restaurant, lodge or other nonresidential building must
be designed and constructed to meet regionally or nationally
recognized design standards for sustainable design that are
acceptable to the county having land use jurisdiction over the
proposed development site.
(I) Residential buildings must be designed and constructed to
meet regionally or nationally recognized design standards for
sustainable design that are acceptable to the county having land
use jurisdiction over the proposed development site. The
developer must achieve certification for all buildings, with at
least 50 percent of the buildings achieving a top-tier rating
under the rating system selected.
(J) Additional housing capable of housing at least 50 percent
of the peak season employees must be provided on-site.
(2) In addition to the development standards described in
subsection (1) of this section, a small-scale recreation
community must:
(a) Develop an environmental operations manual that describes
core practices for operating the small-scale recreation
community, including:
(A) Waste reduction, recycling and diversion practices.
(B) Cleaning and site maintenance practices.
(C) Staff education practices.
(D) Commitment of the community to environmental stewardship.
(b) Establish a conservation stewardship organization, as a
separate nonprofit entity funded through income generated by the
development, that is charged with:
(A) Development of a baseline study that establishes the
current level and condition of the local environment. As part of
the baseline study, the organization must develop a long-term
stewardship plan that targets net creation and rehabilitation of
resources, on-site and off-site.
(B) Ongoing review, election and management of habitat
restoration projects that implement the goal of the long-term
stewardship plan.
(C) Education and outreach on environmental stewardship.
(c) Organize and manage volunteers working to conserve local
resources.
(d) Monitor performance of energy and water usage and site
development standards versus actual practice.
(e) Audit and publish annually a report of the community's
performance result for the preceding year. + }
SECTION 5. { + (1) An application for a small-scale recreation
community under sections 2 to 5 of this 2009 Act may be filed
only by the owner of a Metolius resort site and the owner of the
site on which development of the small-scale recreation community
is proposed and must be filed jointly by the owners. The owners
shall file a copy of the application with the Department of Land
Conservation and Development at the same time that the owners
file the application with the county having land use jurisdiction
over the proposed development site.
(2) A county shall review an application for a small-scale
recreation community under sections 2 to 5 of this 2009 Act as a
conditional use in a forest zone and as a land division under ORS
chapter 92.
(3) In addition to the standards set forth in sections 2 to 5
of this 2009 Act, the small-scale recreation community must meet
the land division standards and other development standards of
the county, including standards for streets, utilities and
services, unless the standards conflict with sections 2 to 5 of
this 2009 Act. If the development standards of the county are
dependent on the zoning of the site, the county shall apply the
development standards for an urban residential zone with the
highest population density.
(4) If more than two applications for a small-scale recreation
community are filed under sections 2 to 5 of this 2009 Act and a
county has not yet approved an application, the department shall
determine which of the applications may proceed, taking into
consideration:
(a) The time at which each application was filed;
(b) The unemployment rate in the counties, if more than one
county is involved; and
(c) The findings set forth in section 1 of this 2009 Act.
(5) When two applications for small-scale recreation
communities have been approved, additional applications may not
be considered.
(6) A county may charge a fee to cover the costs of processing
an application. + }
SECTION 6. { + (1) There is established the Oregon Transfer of
Development Rights Pilot Program in the Department of Land
Conservation and Development. Working with the State Forestry
Department, the State Department of Agriculture and local
governments and with other state agencies, as appropriate, the
Department of Land Conservation and Development shall implement
the pilot program.
(2) The Land Conservation and Development Commission shall
adopt rules to implement the pilot program. The commission, by
rule, may:
(a) Establish a maximum ratio of transferable development
rights to severed development interests in a sending area for
each pilot project. The maximum ratio:
(A) Must be calculated to protect lands planned and zoned for
forest use and to create incentives for owners of land in the
sending area to participate in the pilot project; and
(B) May not exceed one transferable development right to one
severed development interest if the receiving area is outside of
an urban growth boundary.
(b) Require participating owners of land in a sending area to
grant conservation easements pursuant to ORS 271.715 to 271.795,
or otherwise obligate themselves, to ensure that additional
residential development of their property does not occur.
(c) Require participating owners of land in a sending area to
allow reasonable public access to the property.
(3) The commission, by rule, shall establish a process for
selecting pilot projects from among potential projects nominated
by local governments. The process must require local governments
to nominate potential projects by submitting a concept plan for
each proposed pilot project, including proposed amendments, if
any, to the comprehensive plan and land use regulations
implementing the plan that are necessary to implement the pilot
project.
(4) When selecting a pilot project, the commission must find
that the pilot project is:
(a) Reasonably likely to provide a net benefit to the forest
economy or the agricultural economy of this state;
(b) Designed to avoid or minimize adverse effects on
transportation, natural resources, public facilities and
services, nearby urban areas and nearby farm and forest uses; and
(c) Designed so that new development authorized in a receiving
area does not conflict with a resource or area inventoried under
a statewide land use planning goal relating to natural resources,
scenic and historic areas and open spaces, or with an area
identified as a conservation opportunity area in the '
Conservation Strategy' prepared in September of 2006 by the State
Department of Fish and Wildlife.
(5) The commission may select up to five pilot projects for the
transfer of development rights under sections 6 to 8 of this 2009
Act. However, the number of pilot projects authorized by this
section is reduced on a one-for-one basis for each owner of a
Metolius resort site that elects to pursue approval of a
small-scale recreation community under sections 2 to 5 of this
2009 Act.
(6) A sending area for a pilot project under sections 6 to 8 of
this 2009 Act:
(a) Must be planned and zoned for forest use;
(b) May not exceed 10,000 acres; and
(c) Must be likely to experience significant additional
development in the form of forest dwellings within 20 years after
the effective date of this 2009 Act.
(7) The commission may establish additional requirements for
sending areas.
(8)(a) Except as provided otherwise in paragraph (b) of this
subsection, a local government participating in a pilot project
shall select a receiving area for the pilot project based on the
following priorities:
(A) First priority is lands within an urban growth boundary;
(B) Second priority is lands that are adjacent to an urban
growth boundary and that are subject to an exception from a
statewide land use planning goal relating to forestlands;
(C) Third priority is lands that are within a rural
unincorporated community in an acknowledged comprehensive plan;
(D) Fourth priority is lands that are adjacent to an urban
growth boundary and that are not subject to an exception from a
statewide land use planning goal relating to forestlands;
(E) Fifth priority is lands that are planned and zoned as
marginal lands or as nonresource lands; and
(F) Sixth priority is forestlands not described in
subparagraphs (A) to (E) of this paragraph.
(b) The commission may authorize a local government to select
lower priority lands over higher priority lands for a receiving
area in a pilot project only if the local government has
established, to the satisfaction of the commission, that
selecting higher priority lands as the receiving area is not
likely to result in the severance and transfer of a significant
proportion of the development interests in the sending area
within five years after the receiving area is established.
(c) If lands described in paragraph (a)(B) of this subsection
are selected for use as a receiving area in a pilot project, the
minimum residential density of development must be at least 10
dwelling units per net acre.
(d) If lands described in paragraph (a)(D), (E) or (F) of this
subsection are used as a receiving area in a pilot project, the
receiving area may not exceed 100 acres.
(e) A receiving area may not be located within 10 miles of the
Portland metropolitan area urban growth boundary.
(9) The commission may establish additional requirements for
receiving areas.
(10) A pilot project must include affordable housing. The
commission, by rule, may provide a bonus in the form of a higher
ratio if a substantial portion of the new development in the
receiving area of the pilot project is affordable housing. + }
SECTION 7. { + (1) Notwithstanding contrary provisions of
statewide land use planning goals relating to forestlands, public
facilities and services and urbanization, and notwithstanding ORS
215.700 to 215.780, a local government may change its
comprehensive plan and land use regulations implementing the plan
to allow residential development in a receiving area consistent
with sections 6 to 8 of this 2009 Act if the Land Conservation
and Development Commission has approved a concept plan for the
pilot project.
(2) The local governments having land use jurisdiction over
lands included in the sending area and the receiving area for the
pilot project shall adopt amendments to their respective
comprehensive plans and land use regulations implementing the
plans that are consistent with subsection (3) of this section.
(3) When the commission has approved a proposed concept plan,
the local governments having land use jurisdiction over the
affected sending area and affected receiving area shall adopt
overlay zone provisions and corresponding amendments to the
comprehensive plan and land use regulations implementing the plan
that identify the additional residential development allowed
through participation in the pilot project. The Department of
Land Conservation and Development shall review the overlay zones
and corresponding comprehensive plan amendments in the manner of
periodic review under ORS 197.628 to 197.650.
(4) Notwithstanding ORS 197.296 and 197.298 and statewide land
use planning goals relating to urbanization, a local government
may amend its urban growth boundary to include adjacent lands in
a receiving area, consistent with an approved concept plan, if
the net residential density of development authorized in the
receiving area is at least 10 dwelling units per acre.
(5) Local governments or other entities may establish a
development rights bank or other system to facilitate the
transfer of development rights.
(6) A county shall review an application for a pilot project
under sections 6 to 8 of this 2009 Act as a comprehensive plan
amendment. A county may apply other procedures, including master
plan approval, site plan review or conditional use review as the
county finds appropriate to subsequent phases of review of the
pilot project. + }
SECTION 8. { + (1) The Department of Land Conservation and
Development, the State Forestry Department, a local government
participating in the Oregon Transfer of Development Rights Pilot
Program or a third-party holder identified by the Department of
Land Conservation and Development may hold, monitor or enforce a
conservation easement pursuant to ORS 271.715 to 271.795 or other
property interest to ensure that lands in sending areas do not
retain residential development rights transferred under sections
6 to 8 of this 2009 Act.
(2) An entity that is eligible to be a holder of a conservation
easement may acquire, from a willing seller in the manner
provided by ORS 271.715 to 271.795, the right to carry out a use
of land authorized under rules of the Land Conservation and
Development Commission implementing the pilot program. + }
SECTION 9. { + (1) As used in this section:
(a) 'Community forestlands' has the meaning given that term in
ORS 530.600.
(b) 'Land trust' means a land trust that has been approved as
an accredited land trust by the Land Trust Alliance, a nonprofit
corporation.
(2) The owner of the Skyline Forest and the South County Tract
may carry out the use described in subsection (3) of this section
if:
(a) The owner transfers:
(A) The Skyline Forest to a land trust for the purpose of
creating community forestlands; and
(B) The South County Tract either to a land trust for the
purpose of creating community forestland or to a federal or state
land management agency.
(b) The consideration for the transfer does not exceed the fair
market timber value of the property; and
(c) The community forestlands are managed so that wildlife and
recreational values are safeguarded and the overall forest
health, including sustainable timber production and wildfire
prevention, is maintained over the long term.
(3) The owner of the Skyline Forest and South County Tract may
retain an area of up to 3,000 acres of land and, within the
retained area, the owner may develop up to 197 combined
residential and overnight lodging units on a single node of 640
or fewer contiguous acres, not including land for roads needed to
access the property. Other uses within the single node are
limited to a restaurant, a small community store, an equestrian
facility and other small-scale uses oriented towards providing
on-site recreational opportunities and basic services necessary
to support the development.
(4) The development may not contain a golf course.
(5) The development is limited to an annual water use of 150
acre-feet, not including water for firefighting needs on-site or
off-site.
(6) The development, including all access roads, must be sited
in consultation with the State Department of Fish & Wildlife to
ensure that impacts to local wildlife, particularly to local deer
and elk populations, are minimized.
(7) The development must be sited in consultation with the
State Forestry Department and the United States Forest Service to
ensure that the risks posed to the development by wildfire are
minimized.
(8) The landowner may use the remaining acreage retained under
subsection (3) of this section as open space for the primary
purpose of minimizing the risk of wildfire to the development,
but also to maintain its habitat value for deer and elk. The
owner shall cause a conservation easement pursuant to ORS 271.715
to 271.795 to be recorded on the entirety of the open space land
prohibiting any development or partitions but allowing for the
creation of primitive recreational trails designed to provide
public access between the development and the community
forestlands. The conservation easement must be held by a land
trust and the terms agreed to by the State Department of Fish and
Wildlife and the State Forestry Department.
(9) The landowner shall provide adequate firefighting
facilities and services to address the needs of the development.
(10) Deschutes County shall demonstrate, in the county's review
under this section, compliance with this section and with
applicable site plan and land division requirements of the
county. The approval of a site plan and all related land use
applications are land use decisions. The county shall condition
final land use approval on the recording of a conservation
easement on the lands identified in subsection (8) of this
section and the transfer of fee title of the remainder of the
Skyline Forest and the South County Tract, other than lands
retained pursuant to this section, either to a land trust for the
purpose of establishing community forestlands or to a federal or
state land management agency as provided in subsection (2) of
this section. After the transfer of fee title of the Skyline
Forest and the South County Tract, other than lands retained
pursuant to this section, development rights on the portion of
Skyline Forest and the South County Tract transferred to a land
trust are extinguished.
(11) As a condition of transferring fee title of Skyline Forest
and the South County Tract pursuant to this section, the owner
may require that the land trust or the federal or state and
management agency meet reasonable management standards to ensure
that a buffer area of the community forestlands that is closest
to retained lands be managed in a manner consistent with
establishing forest health and managing wildfire risk. The buffer
area may not extend farther than 500 feet from the boundary that
divides the retained lands from the community forestlands.
(12) If the owner of the Skyline Forest and the South County
Tract has not completed the transfer of lands described in
subsection (3) of this section within five years after the
effective date of this 2009 Act, the owner may not develop the
residential and overnight lodging units or the other uses on the
single node that are described in subsection (3) of this
section. + }
SECTION 10. { + On or before February 1, 2013, the Department
of Land Conservation and Development shall make a report to the
Seventy-seventh Legislative Assembly, in the manner described in
ORS 192.245:
(1) Evaluating the Oregon Transfer of Development Rights Pilot
Program established in sections 6 to 8 of this 2009 Act; and
(2) Recommending whether the pilot program should be continued,
modified, expanded or terminated. + }
SECTION 11. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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