68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
Enrolled
House Bill 2709
Sponsored by Representative REPINE; Representative MARKHAM (at
the request of Home Builders Association of Metropolitan
Portland, Oregon State Home Builders Association)
CHAPTER ................
AN ACT
Relating to buildable land available in urban growth boundary;
creating new provisions; amending ORS 30.936, 197.295 and
197.320; and repealing ORS 195.035.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. { + Sections 3 and 5
of this Act are added to and made a part of ORS 197.295 to
197.314. + }
**************************** SECTION 2. ORS 197.295 is amended
to read:
197.295. As used in ORS { - 197.303 to 197.313 - }
{ + 197.295 to 197.314 + } and 197.475 to 197.490:
(1) 'Buildable lands' means lands in urban and urbanizable
areas that are suitable, available and necessary for residential
uses. { + Buildable lands includes both vacant land and
developed land likely to be redeveloped. + }
(2) 'Manufactured dwelling park' has the meaning given that
term in ORS 446.003.
(3) 'Government assisted housing' means housing that is
financed in whole or part by either a federal or state housing
agency or a local housing authority as defined in ORS 456.005 to
456.720, or housing that is occupied by a tenant or tenants who
benefit from rent supplements or housing vouchers provided by
either a federal or state housing agency or a local housing
authority.
(4) 'Manufactured homes' has the meaning given that term in ORS
446.003.
(5) 'Mobile home park' has the meaning given that term in ORS
446.003.
(6) 'Periodic review' means the process and procedures as set
forth in ORS 197.628 to 197.646.
(7) 'Urban growth boundary' means an urban growth boundary
included or referenced in a comprehensive plan.
**************************** SECTION 3. { + (1)(a) The
provisions of this section apply to local government
comprehensive plans for lands:
(A) Within any urban growth boundary for a city with a
population of 25,000 or more;
(B) Within any urban growth boundary for a city with a
population of less than 25,000 with a rate of growth that
exceeded the average rate of growth for the state for three of
the last five years; and
(C) For which a functional plan is prepared by a metropolitan
service district under ORS 268.390 (2).
(b) Notwithstanding paragraph (a) of this subsection, the Land
Conservation and Development Commission may waive the
requirements of that paragraph.
(2) At periodic review or any other legislative review of the
urban growth boundary, comprehensive plans or functional plans
shall provide sufficient buildable lands within urban growth
boundaries established pursuant to statewide planning goals to
accommodate estimated housing needs for 20 years.
(3) As part of its next periodic review pursuant to ORS 197.628
to 197.650 following the effective date of this 1995 Act or any
other legislative review of the urban growth boundary, a local
government shall:
(a) Inventory the supply of buildable lands within the urban
growth boundary;
(b) Determine the actual density and the actual average mix of
housing types of residential development that have occurred
within the urban growth boundary since the last periodic review
or five years, whichever is greater; and
(c) Conduct an analysis of housing need by type and density
range, in accordance with ORS 197.303 and statewide planning
goals and rules relating to housing, to determine the amount of
land needed for each needed housing type for the next 20 years.
(4) If the determination required by subsection (3) of this
section indicates that the urban growth boundary does not contain
sufficient buildable lands to accommodate housing needs for 20
years at the actual developed density that has occurred since the
last periodic review, the local government shall take one of the
following actions:
(a) Amend its urban growth boundary to include sufficient
buildable lands to accommodate housing needs for 20 years at the
actual developed density during the period since the last
periodic review or within the last five years, whichever is
greater. As part of this process, the amendment shall include
sufficient land reasonably necessary to accommodate the siting of
new public school facilities. The need and inclusion of lands for
new public school facilities shall be a coordinated process
between the affected public school districts and the local
government that has the authority to approve the urban growth
boundary;
(b) Amend its comprehensive plan, functional plan or land use
regulations to include new measures that demonstrably increase
the likelihood that residential development will occur at
densities sufficient to accommodate housing needs for 20 years
without expansion of the urban growth boundary. A local
government or metropolitan service district that takes this
action shall monitor and record the level of development activity
and development density by housing type following the date of the
adoption of the new measures; or
(c) Adopt a combination of the actions described in paragraphs
(a) and (b) of this subsection.
(5) Using the analysis conducted under subsection (3)(c) of
this section, the local government shall determine the overall
average density and overall mix of housing types at which
residential development of needed housing types must occur in
order to meet housing needs over the next 20 years. If that
density is greater than the actual density of development
determined under subsection (3)(b) of this section, or if that
mix is different from the actual mix of housing types determined
under subsection (3)(b) of this section, the local government, as
part of its periodic review, shall adopt measures that
Enrolled House Bill 2709 Page 2
demonstrably increase the likelihood that residential development
will occur at the housing types and density and at the mix of
housing types required to meet housing needs over the next 20
years.
(6) A local government that takes any actions under subsection
(4) or (5) of this section shall demonstrate that the
comprehensive plan and land use regulations comply with goals and
rules adopted by the commission and implement ORS 197.295 to
197.314.
(7) In establishing that actions and measures adopted under
subsections (4) and (5) of this section demonstrably increase the
likelihood of higher density residential development, the local
government shall at a minimum ensure that land zoned for needed
housing is in locations appropriate for the housing types
identified under subsection (3) of this section and is zoned at
density ranges that are likely to be achieved by the housing
market using the analysis in subsection (3) of this section.
Actions or measures, or both, may include but are not limited to:
(a) Increases in the permitted density on existing residential
land;
(b) Financial incentives for higher density housing;
(c) Provisions permitting additional density beyond that
generally allowed in the zoning district in exchange for
amenities and features provided by the developer;
(d) Removal or easing of approval standards or procedures;
(e) Minimum density ranges;
(f) Redevelopment and infill strategies;
(g) Authorization of housing types not previously allowed by
the plan or regulations; and
(h) Adoption of an average residential density standard. + }
**************************** SECTION 4. ORS 197.320 is amended
to read:
197.320. The { + Land Conservation and Development + }
Commission shall issue an order requiring a local government,
state agency or special district to take action necessary to
bring its comprehensive plan, land use regulation, limited land
use decisions or other land use decisions into compliance with
the goals, acknowledged comprehensive plan provisions or land use
regulations if the commission has good cause to believe:
(1) A comprehensive plan or land use regulation adopted by a
local government not on a compliance schedule is not in
compliance with the goals by the date set in ORS 197.245 or
197.250 for such compliance;
(2) A plan, program, rule or regulation affecting land use
adopted by a state agency or special district is not in
compliance with the goals by the date set in ORS 197.245 or
197.250 for such compliance;
(3) A local government is not making satisfactory progress
toward performance of its compliance schedule;
(4) A state agency is not making satisfactory progress in
carrying out its coordination agreement or the requirements of
ORS 197.180;
(5) A local government has no comprehensive plan or land use
regulation and is not on a compliance schedule directed to
developing the plan or regulation;
(6) A local government has engaged in a pattern or practice of
decision making that violates an acknowledged comprehensive plan
or land use regulation. In making its determination under this
subsection, the commission shall determine whether there is
evidence in the record to support the decisions made. The
Enrolled House Bill 2709 Page 3
commission shall not judge the issue solely upon adequacy of the
findings in support of the decisions;
(7) A local government has failed to comply with a commission
order entered under ORS 197.644;
(8) A special district has engaged in a pattern or practice of
decision-making that violates an acknowledged comprehensive plan
or cooperative agreement adopted pursuant to ORS 197.020;
{ - or - }
(9) A special district is not making satisfactory progress
toward performance of its obligations under ORS chapters 195 and
197 { + ; or + } { - . - }
{ + (10) A local government is applying approval standards,
special conditions on approval of specific development proposals
or procedures for approval that do not comply with ORS 197.307
(6). + }
**************************** SECTION 5. { + (1) In addition to
any requirements established by rule addressing urbanization,
land may not be included within an urban growth boundary except
under the following priorities:
(a) First priority is land that is designated urban reserve
land under ORS 195.145, rule or metropolitan service district
action plan.
(b) If land under paragraph (a) of this subsection is
inadequate to accommodate the amount of land needed, second
priority is land adjacent to an urban growth boundary that is
identified in an acknowledged comprehensive plan as an exception
area or nonresource land. Second priority may include resource
land that is completely surrounded by exception areas unless such
resource land is high-value farmland as described in ORS 215.710.
(c) If land under paragraphs (a) and (b) of this subsection is
inadequate to accommodate the amount of land needed, third
priority is land designated as marginal land pursuant to ORS
197.247 (1991 Edition).
(d) If land under paragraphs (a) to (c) of this subsection is
inadequate to accommodate the amount of land needed, fourth
priority is land designated in an acknowledged comprehensive plan
for agriculture or forestry, or both.
(2) Higher priority shall be given to land of lower capability
as measured by the capability classification system or by cubic
foot site class, whichever is appropriate for the current use.
(3) Land of lower priority under subsection (1) of this section
may be included in an urban growth boundary if land of higher
priority is found to be inadequate to accommodate the amount of
land estimated in subsection (1) of this section for one or more
of the following reasons:
(a) Specific types of identified land needs cannot be
reasonably accommodated on higher priority lands;
(b) Future urban services could not reasonably be provided to
the higher priority due to topographical or other physical
constraints; or
(c) Maximum efficiency of land uses within a proposed urban
growth boundary requires inclusion of lower priority lands in
order to include or to provide services to higher priority
lands. + }
**************************** SECTION 6. { + ORS 195.035 is
repealed and section 7 of this Act is enacted in lieu
thereof. + }
**************************** SECTION 7. { + The coordinating
body under ORS 195.025 (1) shall establish and maintain a
population forecast for the entire area within its boundary for
Enrolled House Bill 2709 Page 4
use in maintaining and updating comprehensive plans, and shall
coordinate the forecast with the local governments within its
boundary. + }
**************************** SECTION 8. ORS 30.936 is amended
to read:
30.936. (1) No farming or forest practice on lands zoned for
farm or forest use occurring outside an urban growth boundary
shall give rise to any private right of action or claim for
relief based on nuisance or trespass.
(2) Subsection (1) of this section shall not apply to a right
of action or claim for relief for:
(a) Damage to commercial agricultural products; or
(b) Death or serious physical injury as defined in ORS 161.015.
(3) Subsection (1) of this section applies regardless of
whether the farming or forest practice has undergone any change
or interruption.
(4) If the urban growth boundary is changed in such a way as to
place a farming or forest practice outside its limits, subsection
(1) of this section applies to that farming or forest practice
after the date the urban growth boundary is changed.
(5) Subsection (1) of this section shall not apply to a right
of action or claim for relief based on trespass for use of
pesticides as defined in ORS 634.006.
{ + (6) If the urban growth boundary is changed pursuant to
section 3 of this 1995 Act in such a way as to place a farming
practice inside its limits, subsection (1) of this section
continues to apply to that farming practice until a change to a
nonfarm use. + }
----------
Passed by House May 16, 1995
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 24, 1995
...........................................................
President of Senate
Enrolled House Bill 2709 Page 5
Received by Governor:
......M.,............., 1995
Approved:
......M.,............., 1995
...........................................................
Governor
Filed by Office of Secretary of State:
......M.,............., 1995
...........................................................
Secretary of State
Enrolled House Bill 2709 Page 6