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 589
 
                         Senate Bill 234
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Senate Interim Committee on
  Judiciary for Oregon State Bar Real Estate Land Use Section)
 
 
                             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.
 
  Authorizes service by first class mail of petition for judicial
review of final order of Land Use Board of Appeals.  Authorizes,
by reference, service by first class mail of petition for
judicial review of local government's expedited land division
decision issued by referee.
  Conforms language to legislative form and style.
 
                        A BILL FOR AN ACT
Relating to procedure for judicial review of land use decisions;
  creating new provisions; and amending ORS 197.850.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 197.850 is amended to read:
  197.850. (1) Any party to a proceeding before the Land Use
Board of Appeals under ORS 197.830 to 197.845 may seek judicial
review of a final order issued in those proceedings.
  (2) Notwithstanding the provisions of ORS 183.480 to 183.540,
judicial review of orders issued under ORS 197.830 to 197.845
  { - shall be - }   { + is  + }solely as provided in this
section.
  (3)(a) Jurisdiction for judicial review of proceedings under
ORS 197.830 to 197.845 is conferred upon the Court of Appeals.
Proceedings for judicial review   { - shall be - }   { + are
 + }instituted by filing a petition in the Court of Appeals. The
petition   { - shall - }  { + must + } be filed within 21 days
following the date the board delivered or mailed the order upon
which the petition is based.
  (b) Filing of the petition, as set forth in paragraph (a) of
this subsection, and service of a petition on all persons
identified in the petition as adverse parties of record in the
board proceeding is jurisdictional and may not be waived or
extended.
  (4) The petition   { - shall - }   { + must + } state the
nature of the order the petitioner desires reviewed. Copies of
the petition   { - shall - }  { + must + } be served by
 { + first class, + } registered or certified mail   { - upon - }
 { + on + } the board  { - , - }  and all other parties of record
in the board proceeding.
  (5) Within seven days after service of the petition, the board
shall transmit to the court the original or a certified copy of
the entire record of the proceeding under review, but, by
stipulation of all parties to the review proceeding, the record
may be shortened.   { - Any - }   { + The court may tax a + }
party  { + that + } unreasonably   { - refusing - }
 { + refuses + } to stipulate to limit the record
  { - may be taxed by the court - }  for the additional costs.
The court may require or permit subsequent corrections or
additions to the record when deemed desirable. Except as
specifically provided in this subsection,  { + the court may not
tax + } the cost of the record
  { - shall not be taxed - }  to the petitioner or any
intervening party.  However, the court may tax such costs and the
cost of transcription of record to a party filing a frivolous
petition for judicial review.
  (6) Petitions and briefs   { - shall - }   { + must + } be
filed within time periods and in a manner established by the
Court of Appeals by rule.
  (7)(a) The court shall hear oral argument within 49 days of the
date of transmittal of the record.
  (b) The court may hear oral argument more than 49 days from the
date of transmittal of the record provided the court 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. The court shall not hold oral argument more than 49 days
from 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 any member of the court or any party.
  (c) The court shall set forth in writing a determination to
hear oral argument more than 49 days from the date the record is
transmitted, together with the reasons for its determination, and
shall provide a copy to the parties. The court shall schedule
oral argument as soon as practicable thereafter.
  (d) In making a determination under paragraph (b) of this
subsection, the court shall consider:
  (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 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.
  (8) Judicial review of an order issued under ORS 197.830 to
197.845 shall be confined to the record. The court shall not
substitute its judgment for that of the board as to any issue of
fact.
  (9) The court may affirm, reverse or remand the order. The
court shall reverse or remand the order only if it finds:
  (a) The order to be unlawful in substance or procedure, but
error in procedure   { - shall not be - }   { + is not  + }cause
for reversal or remand unless the court   { - shall find - }
 { + finds + } that substantial rights of the petitioner were
prejudiced thereby;
  (b) The order to be unconstitutional; or
  (c) The order is not supported by substantial evidence in the
whole record as to facts found by the board under ORS 197.835
(2).
  (10) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
  (11) If the order of the board is remanded by the Court of
Appeals or the Supreme Court, the board shall respond to the
court's appellate judgment within 30 days.
  (12) A party   { - shall - }   { + must + } file with the board
an undertaking with one or more sureties insuring that the party
will pay all costs, disbursements and attorney fees awarded
against the party by the Court of Appeals if:
  (a) The party appealed a decision of the board to the Court of
Appeals; and
  (b) In making the decision being appealed to the Court of
Appeals, the board awarded attorney fees and expenses against
that party under ORS 197.830 (15)(b).
  (13) Upon entry of its final order, the court shall award
attorney fees and expenses to a party who prevails on a claim
that an approval condition imposed by a local government on an
application for a permit pursuant to ORS 215.416 or 227.175 is
unconstitutional under section 18, Article I, Oregon
Constitution, or the Fifth Amendment to the United States
Constitution.
  (14) The undertaking required in subsection (12) of this
section   { - shall - }   { + must + } be filed with the board
and served on the opposing parties within 10 days after the date
the petition was filed with the Court of Appeals.
  SECTION 2.  { + The amendments to ORS 197.850 by section 1 of
this 2009 Act apply to:
  (1) A petition for judicial review of a final order of the Land
Use Board of Appeals that is filed with the Court of Appeals on
or after the effective date of this 2009 Act.
  (2) A petition for judicial review of a local government
referee's decision on expedited land division that is filed with
the Court of Appeals on or after the effective date of this 2009
Act. + }
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