Relating to coordination of land use decision-making between state agencies and local governments; creating new provisions; and amending ORS 197.015, 197.180, 197.254 and 197.650.


 
 
 
     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 618
 
                         House Bill 2230
 
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.
 
  Excludes from definition of 'land use decision' local
government decision that state agency permit is consistent with
statewide land use planning goals and compatible with
acknowledged comprehensive plan when local government decision is
based on prior local approval of permit for substantially same
action.
  Directs Land Conservation and Development Commission to update
and improve coordination of land use decision-making between
state agencies and local governments.
 
                        A BILL FOR AN ACT
Relating to coordination of land use decision-making between
  state agencies and local governments; creating new provisions;
  and amending ORS 197.015, 197.180, 197.254 and 197.650.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + The Legislative Assembly finds and declares
that:
  (1) Improving coordination and consistency between the duties
and actions of state agencies that affect land use and the duties
and actions of local governments under comprehensive plans and
land use regulations is required to ensure that the actions of
state agencies complement both state and local land use planning
objectives.
  (2) Improved coordination is necessary to streamline state and
local permitting procedures.
  (3) The Department of Land Conservation and Development has not
engaged in a formal and concerted effort to update state agency
land use coordination programs since 1989, and that state agency
rules, plans and programs affecting land use and local government
comprehensive plans and land use regulations have changed
substantially since that time.
  (4) Rules of the Land Conservation and Development Commission
regarding state agency land use coordination and state permit
compliance and compatibility should be:
  (a) Reviewed to eliminate unclear or conflicting provisions and
to ensure that local land use decisions authorizing a use
generally precede state agency decisions on permits for the use
or for aspects of the use; and
 
  (b) Updated regularly to maintain a high level of coordination
between state agencies and local governments in reviewing
authorizations for a use of property. + }
  SECTION 2. ORS 197.015 is amended to read:
  197.015. As used in ORS chapters 195, 196 and 197, unless the
context requires otherwise:
  (1) 'Acknowledgment' means a commission order that certifies
that a comprehensive plan and land use regulations, land use
regulation or plan or regulation amendment complies with the
goals or certifies that Metro land use planning goals and
objectives, Metro regional framework plan, amendments to Metro
planning goals and objectives or amendments to the Metro regional
framework plan comply with the   { - statewide planning - }
goals.
  (2) 'Board' means the Land Use Board of Appeals.
  (3) 'Carport' means a stationary structure consisting of a roof
with its supports and not more than one wall, or storage cabinet
substituting for a wall, and used for sheltering a motor vehicle.
  (4) 'Commission' means the Land Conservation and Development
Commission.
  (5) 'Comprehensive plan' means a generalized, coordinated land
use map and policy statement of the governing body of a local
government that interrelates all functional and natural systems
and activities relating to the use of lands, including but not
limited to sewer and water systems, transportation systems,
educational facilities, recreational facilities, and natural
resources and air and water quality management programs.  '
Comprehensive' means all-inclusive, both in terms of the
geographic area covered and functional and natural activities and
systems occurring in the area covered by the plan. 'General
nature' means a summary of policies and proposals in broad
categories and does not necessarily indicate specific locations
of any area, activity or use. A plan is 'coordinated' when the
needs of all levels of governments, semipublic and private
agencies and the citizens of Oregon have been considered and
accommodated as much as possible. 'Land' includes water, both
surface and subsurface, and the air.
  (6) 'Department' means the Department of Land Conservation and
Development.
  (7) 'Director' means the Director of the Department of Land
Conservation and Development.
  (8) 'Goals' means the mandatory statewide  { + land use + }
planning standards adopted by the commission pursuant to ORS
chapters 195, 196 and 197.
  (9) 'Guidelines' means suggested approaches designed to aid
cities and counties in preparation, adoption and implementation
of comprehensive plans in compliance with goals and to aid state
agencies and special districts in the preparation, adoption and
implementation of plans, programs and regulations in compliance
with goals. Guidelines shall be advisory and shall not limit
state agencies, cities, counties and special districts to a
single approach.
  (10) 'Land use decision':
  (a) Includes:
  (A) A final decision or determination made by a local
government or special district that concerns the adoption,
amendment or application of:
  (i) The goals;
  (ii) A comprehensive plan provision;
  (iii) A land use regulation; or
  (iv) A new land use regulation;
  (B) A final decision or determination of a state agency other
than the commission with respect to which the agency is required
to apply the goals; or
  (C) A decision of a county planning commission made under ORS
433.763;
  (b) Does not include a decision of a local government:
  (A) That is made under land use standards that do not require
interpretation or the exercise of policy or legal judgment;
  (B) That approves or denies a building permit issued under
clear and objective land use standards;
  (C) That is a limited land use decision;
  (D) That determines final engineering design, construction,
operation, maintenance, repair or preservation of a
transportation facility that is otherwise authorized by and
consistent with the comprehensive plan and land use regulations;
  (E) That is an expedited land division as described in ORS
197.360;
  (F) That approves, pursuant to ORS 480.450 (7), the siting,
installation, maintenance or removal of a liquid petroleum gas
container or receptacle regulated exclusively by the State Fire
Marshal under ORS 480.410 to 480.460;   { - or - }
  (G) That approves or denies approval of a final subdivision or
partition plat or that determines whether a final subdivision or
partition plat substantially conforms to the tentative
subdivision or partition plan; { +  or
  (H) That a proposed state agency action subject to ORS 197.180
(1) complies with the goals and is compatible with the
acknowledged comprehensive plan and land use regulations
implementing the plan, if the local government has already made a
land use decision authorizing:
  (i) A use or activity that encompasses the proposed state
agency action; or
  (ii) A use or activity that would be authorized, funded or
undertaken by the proposed state agency action; + }
  (c) Does not include a decision by a school district to close a
school;
  (d) Does not include authorization of an outdoor mass gathering
as defined in ORS 433.735, or other gathering of fewer than 3,000
persons that is not anticipated to continue for more than 120
hours in any three-month period; and
  (e) Does not include:
  (A) A writ of mandamus issued by a circuit court in accordance
with ORS 215.429 or 227.179;   { - or - }
  (B) Any local decision or action taken on an application
subject to ORS 215.427 or 227.178 after a petition for a writ of
mandamus has been filed under ORS 215.429 or 227.179 { + ; or
  (C) A state agency action subject to ORS 197.180 (1), if:
  (i) The local government with land use jurisdiction over a use
or activity that would be authorized, funded or undertaken by the
state agency as a result of the state agency action has already
made a land use decision approving the use or activity; or
  (ii) A use or activity that would be authorized, funded or
undertaken by the state agency as a result of the state agency
action is allowed without review under the acknowledged
comprehensive plan and land use regulations implementing the
plan + }.
  (11) 'Land use regulation' means any local government zoning
ordinance, land division ordinance adopted under ORS 92.044 or
92.046 or similar general ordinance establishing standards for
implementing a comprehensive plan.
  (12) 'Limited land use decision':
  (a) Means a final decision or determination made by a local
government pertaining to a site within an urban growth boundary
that concerns:
  (A) The approval or denial of a tentative subdivision or
partition plan, as described in ORS 92.040 (1).
  (B) The approval or denial of an application based on
discretionary standards designed to regulate the physical
characteristics of a use permitted outright, including but not
limited to site review and design review.
 
  (b) Does not mean a final decision made by a local government
pertaining to a site within an urban growth boundary that
concerns approval or denial of a final subdivision or partition
plat or that determines whether a final subdivision or partition
plat substantially conforms to the tentative subdivision or
partition plan.
  (13) 'Local government' means any city, county or metropolitan
service district formed under ORS chapter 268 or an association
of local governments performing land use planning functions under
ORS 195.025.
  (14) 'Metro' means a metropolitan service district organized
under ORS chapter 268.
  (15) 'Metro planning goals and objectives' means the land use
goals and objectives that a metropolitan service district may
adopt under ORS 268.380 (1)(a). The goals and objectives do not
constitute a comprehensive plan.
  (16) 'Metro regional framework plan' means the regional
framework plan required by the 1992 Metro Charter or its separate
components. Neither the regional framework plan nor its
individual components constitute a comprehensive plan.
  (17) 'New land use regulation' means a land use regulation
other than an amendment to an acknowledged land use regulation
adopted by a local government that already has a comprehensive
plan and land regulations acknowledged under ORS 197.251.
  (18) 'Person' means any individual, partnership, corporation,
association, governmental subdivision or agency or public or
private organization of any kind. The Land Conservation and
Development Commission or its designee is considered a person for
purposes of appeal under ORS chapters 195 and 197.
  (19) 'Special district' means any unit of local government,
other than a city, county, metropolitan service district formed
under ORS chapter 268 or an association of local governments
performing land use planning functions under ORS 195.025,
authorized and regulated by statute and includes but is not
limited to water control districts, domestic water associations
and water cooperatives, irrigation districts, port districts,
regional air quality control authorities, fire districts, school
districts, hospital districts, mass transit districts and
sanitary districts.
  (20) 'Urban unincorporated community' means an area designated
in a county's acknowledged comprehensive plan as an urban
unincorporated community after December 5, 1994.
  (21) 'Voluntary association of local governments' means a
regional planning agency in this state officially designated by
the Governor pursuant to the federal Office of Management and
Budget Circular A-95 as a regional clearinghouse.
  (22) 'Wetlands' means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
that are sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions.
  SECTION 3. ORS 197.180 is amended to read:
  197.180. (1) Except as provided in ORS 197.277 or subsection
(2) of this section or unless expressly exempted by another
statute from any of the requirements of this section, state
agencies shall carry out their planning duties, powers and
responsibilities and take actions that are authorized by law with
respect to programs affecting land use:
  (a) In compliance with   { - goals adopted or amended pursuant
to ORS chapters 195, 196 and 197 - }  { +  the goals, rules
implementing the goals and rules implementing this section + };
and
  (b) In a manner compatible with { +  acknowledged comprehensive
plans and land use regulations. + }  { - : - }
    { - (A) Comprehensive plans and land use regulations
initially acknowledged under ORS 197.251; - }
    { - (B) Amendments to acknowledged comprehensive plans or
land use regulations or new land use regulations acknowledged
under ORS 197.625; and - }
    { - (C) Amendments to acknowledged comprehensive plans or
land use regulations or new land use regulations acknowledged
through periodic review. - }
  (2) State agencies need not comply with subsection (1)(b) of
this section if   { - the comprehensive plan or land use
regulations are inconsistent with - }  a state agency
 { + rule, + } plan or program relating to land use
 { - that - }  was not in effect   { - at the time the local
plan - }   { + when the comprehensive plan provision or land use
regulation with which the action would be incompatible  + }was
acknowledged  { - , - }  and the agency has demonstrated { +
that + }:
  (a)   { - That - }  The  { + state agency rule, + } plan or
program is mandated by state statute or federal law;
  (b)   { - That - }  The  { + state agency rule, + } plan or
program is consistent with the goals;
  (c)   { - That - }  The  { + state agency rule, + } plan or
program has objectives that cannot be achieved in a manner
 { - consistent - }  { + compatible + } with the
 { + acknowledged + } comprehensive plan and land use
regulations; and
  (d)   { - That - }  The agency has complied with its certified
state agency coordination program.
   { +  (3) Unless federal law or a provision of state law other
than this section requires otherwise, the commission, by rule,
may require a local government to make a land use decision before
a state agency takes action that is subject to subsection (1) of
this section if:
  (a) The land use decision will determine whether to authorize a
use or activity that would be authorized, funded or undertaken by
the proposed state agency action; and
  (b) The state agency will rely on the determination of the
local government that the proposed state agency action complies
with the goals and is compatibility with the acknowledged
comprehensive plan and land use regulations. + }
    { - (3) - }   { + (4) + } Upon request by the Land
Conservation and Development Commission, each state agency shall
submit to the Department of Land Conservation and Development the
following information:
  (a) Agency rules and summaries of  { + state agency plans
and + } programs affecting land use;
  (b) A program for coordination pursuant to ORS 197.040 (2)(e);
  (c) A program for coordination pursuant to ORS 197.090 (1)(b);
and
  (d) A program for cooperation with and technical assistance to
local governments.
    { - (4) - }   { + (5) + } Within 90 days of receipt, the
Director of the Department of Land Conservation and Development
shall review the information submitted pursuant to subsection
 { - (3) - }   { + (4) + } of this section and shall notify each
 { + state + } agency if the director believes the  { + state
agency + } rules   { - and - }  { + , plans or + } programs
submitted are insufficient to   { - assure - }   { + ensure + }
compliance with goals and compatibility with   { - city and
county - }   { + acknowledged + } comprehensive plans and land
use regulations.
    { - (5) - }   { + (6) + } Within 90 days of receipt of
notification specified in subsection   { - (4) - }   { + (5) + }
of this section, the  { + state + } agency may revise the
 { + state agency + } rules { + , plans + } or programs and
resubmit them to the director.
    { - (6) - }   { + (7) + } The director shall make findings
under subsections
  { - (4) and - }  (5)  { + and (6) + } of this section as to
whether the  { + state agency + } rules   { - and - }  { + ,
plans or + } programs are sufficient to   { - assure - }
 { + ensure + } compliance with the goals and compatibility with
acknowledged city and county comprehensive plans and land use
regulations  { - , - }  and shall forward the rules and
 { + summaries of state agency plans or + } programs to the
commission for its action. The commission shall either certify
the  { + state agency + } rules   { - and - }  { + , plans or + }
programs as   { - being in compliance - }   { + compliant + }
with the goals and compatible with the  { + acknowledged + }
comprehensive plans and land use regulations of affected local
governments or shall determine the same to be insufficient
 { - by December 31, 1990 - } .
    { - (7) - }   { + (8) + } The department shall
report { + , + } to the appropriate committee of the House and
the Senate and to the subcommittee of the Joint Ways and Means
Committee that considers the  { + state + } agency budget, any
agency that has failed to meet the requirements of subsection
 { - (6) - }   { + (7) + } of this section.
    { - (8) - }   { + (9) + } Any  { + state + } agency that has
failed to meet the requirements of subsection   { - (6) - }
 { + (7) + } of this section shall report the reasons therefor to
the appropriate committee of the House and the Senate and to the
subcommittee of the Joint Ways and Means Committee that considers
the agency budget.
    { - (9) - }   { + (10) + } Until   { - state agency - }
rules and  { + state agency plans and + } programs are certified
as   { - being in compliance - }   { + compliant + } with the
goals and compatible with   { - applicable city and county - }
 { + the acknowledged + } comprehensive plans and land use
regulations { +  of affected local governments + }, the
 { + state + } agency shall make findings when adopting or
amending its rules and  { + state agency plans and + } programs
as to the applicability and application of the goals or
acknowledged comprehensive plans, as appropriate.
    { - (10) - }   { + (11) + } The commission shall adopt rules
establishing procedures to   { - assure - }   { + ensure + } that
state agency permits affecting land use are issued in compliance
with the goals and compatible with acknowledged comprehensive
plans and land use regulations, as required by subsection (1) of
this section. The rules   { - shall - }   { + must + } prescribe
the circumstances in which state agencies may rely upon a
determination of compliance   { - or compatibility made by the
affected city or county. The rules shall allow a state agency to
rely upon a determination of compliance by a city or county
without an acknowledged comprehensive plan and land use
regulations only if the city or county determination is supported
by written findings demonstrating compliance with the goals. - }
 { +  with the goals or compatibility with the acknowledged
comprehensive plan. + }
    { - (11) - }   { + (12) + } A state agency required to have a
land use coordination program shall participate in a local
government land use hearing, except a hearing under ORS 197.610
to 197.625, only in a manner that is consistent with the
coordination program, unless the agency  { - : - }
    { - (a) Is exempt from coordination program requirements;
or - }
    { - (b) - }  participated in the local government's periodic
review pursuant to ORS 197.633 and raised the issue that is the
basis for participation in the land use hearing.
    { - (12) - }   { + (13) + }   { - In carrying out programs
affecting land use, a state agency is - }   { + State agency
rules, plans or programs affecting land use are + } not
compatible with an acknowledged comprehensive plan if
 { - it - }   { + the state agency + } takes or approves an
action that is not allowed under the  { + acknowledged
comprehensive + } plan. However, a state agency may apply
statutes and rules   { - which the agency is required by law to
apply in order - }  to deny, condition or further restrict an
action of the state agency or of any applicant before the state
agency   { - provided it - }   { + if the state agency + }
applies those statutes and rules to the uses planned for in the
acknowledged comprehensive plan.
   { +  (14) In cooperation with local governments and state
agencies whose rules, plans or programs affect land use, the
department periodically shall:
  (a) Identify aspects of coordination related to uses that
require the issuance of multiple permits from state agencies and
local governments.
  (b) Update and improve rules regulating the effectiveness and
efficiency of state agency coordination programs. + }
    { - (13) - }   { + (15) + } This section does not apply to
rules,  { + plans, + } programs, decisions, determinations or
activities carried out under ORS 527.610 to 527.770, 527.990 (1)
and 527.992.
  SECTION 4. ORS 197.254 is amended to read:
  197.254. (1) A state agency shall be barred after the date set
for submission of programs by the Land Conservation and
Development Commission as provided in ORS 197.180   { - (3) - }
 { +  (4) + }, from contesting a request for acknowledgment
submitted by a local government under ORS 197.251 or from filing
an appeal under ORS 197.620 (1) or (2), if the commission finds
that:
  (a) The state agency has not complied with ORS 197.180; or
  (b) The state agency has not coordinated its plans, programs or
rules affecting land use with the comprehensive plan or land use
regulations of the city or county pursuant to a coordination
program approved by the commission under ORS 197.180.
  (2) A state agency shall be barred from seeking a commission
order under ORS 197.644 requiring amendment of a local government
comprehensive plan or land use regulation in order to comply with
the agency's plan or program unless the agency has first
requested the amendment from the local government and has had its
request denied.
  (3) A special district shall be barred from contesting a
request for initial compliance acknowledgment submitted by a
local government under ORS 197.251 or from filing an appeal under
ORS 197.620 (1) or (2), if the county or Metropolitan Service
District assigned coordinative functions under ORS 195.025 (1)
finds that:
  (a) The special district has not entered into a cooperative
agreement under ORS 195.020; or
  (b) The special district has not coordinated its plans,
programs or regulations affecting land use with the comprehensive
plan or land use regulations of the local government pursuant to
its cooperative agreement made under ORS 195.020.
  (4) A special district shall be barred from seeking a
commission order under ORS 197.644 requiring amendment of a local
government comprehensive plan or land use regulation in order to
comply with the special district's plan or program unless the
special district has first requested the amendment from the local
government and has had its request denied.
  SECTION 5. ORS 197.650 is amended to read:
  197.650. (1) A Land Conservation and Development Commission
order may be appealed to the Court of Appeals in the manner
provided in ORS 183.482 by the following persons:
  (a) Persons who submitted comments or objections pursuant to
ORS 197.251 (2) or proceedings under ORS 197.633, 197.636 or
197.644 and are appealing a commission order issued under ORS
197.251 or 197.633, 197.636 or 197.644;
 
  (b) Persons who submitted comments or objections pursuant to
procedures adopted by the commission for certification of state
agency coordination programs and are appealing a certification
issued under ORS 197.180   { - (6) - }  { +  (7) + };
  (c) Persons who petitioned the commission for an order under
ORS 197.324 and whose petition was dismissed; or
  (d) Persons who submitted oral or written testimony in a
proceeding before the commission pursuant to ORS 215.780.
  (2) Notwithstanding ORS 183.482 (2) relating to contents of the
petition, the petition shall state the nature of the order
petitioner desires reviewed and whether the petitioner submitted
comments or objections as provided in ORS 197.251 (2) or pursuant
to ORS 197.633, 197.636 or 197.644.
  (3) Notwithstanding ORS 183.482 (2) relating to service of the
petition, copies of the petition shall be served by registered or
certified mail upon the Department of Land Conservation and
Development, the local government and all persons who filed
comments or objections.
  SECTION 6.  { + The amendments to ORS 197.015 by section 2 of
this 2009 Act apply to local government decisions made on or
after the effective date of this 2009 Act. + }
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