68th OREGON LEGISLATIVE ASSEMBLY--1995 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 3-A-SS
Senate Bill 1156
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 President Smith, Senator
Walden)
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.
Provides financing method for extension of light rail system.
Defines terms.
Establishes South North Construction Fund.
Appropriates specified moneys from fund to Department of
Transportation for engineering, design and certain construction
and acquisition costs for first construction segment of South
North Line.
Allows director of department to enter into grant agreements
with Tri-Met.
Specifies that mass transit district must reimburse utility for
50 percent of relocation costs in certain circumstances.
Requires annual allocations of lottery moneys, commencing July
1, 1999.
Establishes Light Rail Bond Fund and appropriates moneys from
fund for payment of light rail lottery bonds.
Prohibits issuance of light rail lottery bonds unless federal
matching funds are available for light rail project.
Establishes Transportation Equity Account to finance
transportation projects outside of Portland metropolitan region.
Prohibits moneys in account from being used to offset moneys
from State Highway Fund distributed to areas outside Portland
metropolitan region.
Provides that moneys in Transportation Equity Account are
provided as described in this Act and from lottery revenues.
Requires Tri-Met to conduct studies relating to alternative
funding sources that will reduce need in Portland metropolitan
region for state financial assistance and to long term funding of
operations and maintenance of South North Line.
Requires Tri-Met to report findings of studies to Legislative
Assembly.
Requires State Treasurer to examine procedures relating to use
of lottery bond financing for purpose of maximizing benefits to
state.
Requires State Treasurer to report findings and make
recommendations to Legislative Assembly.
Grants original and exclusive jurisdiction of challenges to
validity of this Act to Supreme Court.
Adopts Columbia River Light Rail Transit Compact.
Provides siting procedures for South North Line light rail
project. Provides procedures for review of land use decisions
made pursuant to siting of South North Line.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the activities regulated by state government;
appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. { + (1) The
Legislative Assembly finds that:
(a) The development, acquisition and construction of light rail
systems and their attendant rights of way, equipment and
facilities in the urban and metropolitan areas of the State of
Oregon do and will accomplish the purpose of creating jobs and
furthering economic development in Oregon by, among other
advantages:
(A) Providing an important element of the public infrastructure
that provides the basic framework for continuing and expanding
economic activity in this state;
(B) Increasing the economy and efficiency of public
transportation, improving the attractiveness of urban and
metropolitan areas to new businesses and supporting the
operations and prosperity of existing businesses in those areas
by making those businesses more accessible to their customers and
employees;
(C) Alleviating the inefficiencies of congestion and crowding
associated with, and reducing the burdens of expansion and
maintenance of, existing public transportation systems and
facilities, as well as reducing energy consumption and air
pollution fostered by the use of motor vehicles;
(D) Creating employment opportunities in urban and metropolitan
areas through the funding of projects for the development and
construction of the light rail systems; and
(E) Generating significant new state and local income tax
revenues through jobs and other economic development created by
construction and operation of the South North Line light rail
project.
(b) Additionally, the provision of state and local moneys for
the proposed South North Line light rail project will encourage
the contribution of otherwise unavailable federal matching grant
moneys, the use of which will, for the reasons stated in
paragraph (a) of this subsection, forward the purpose of creating
jobs and furthering economic development in Oregon.
(c) Based on the legislative findings described in this
section, the use of net proceeds from the operation of the state
lottery for the support of the South North Line light rail
project is an appropriate use of state lottery funds under
section 4, Article XV of the Oregon Constitution and ORS 461.510.
(d) Payment of this state's share of the cost of expanding the
regional light rail system constitutes this state's primary
commitment to the funding from lottery revenues of economic
development projects in Clackamas, Multnomah and Washington
Counties with state lottery funds.
(e) The development of light rail projects in Clackamas,
Multnomah and Washington Counties will reduce the need in those
counties for construction of new highways funded with state
highway funds.
(f) It is the intent and policy of the Legislative Assembly to
ensure the funding and support of the South North Line light rail
project in the manner provided in sections 1 to 18 of this Act,
to the extent required for the state to realize the benefit of
all federal matching funds made available for that project, and
to the extent necessary to complete the project.
(g) At the May 15, 1995, Special Election, the voters of the
State of Oregon approved Measure No. 21, an amendment to section
4, Article XV, Oregon Constitution, which requires that
appropriation of sufficient amounts from the net proceeds of the
State Lottery to pay lottery bonds before net proceeds of the
State Lottery may be appropriated for any other purpose.
(h) In the autumn of 1995, the Congress of the United States
will commence its legislative process for authorizing various
mass transit projects throughout the nation, including the South
North Line. In order to be in a position to obtain the needed
commitment of federal matching funds for the South North Line, it
is necessary for this state to provide, prior to the commencement
of such federal legislative process, for the commitment of the
state lottery funds needed for this state's share of the costs of
the South North Line and to make provision for the prompt final
judicial resolution of all constitutional challenges to sections
1 to 18 of this Act.
(2) The Legislative Assembly declares that the purpose of
sections 1 to 18 of this Act is to establish a state revenue bond
program to provide the state's share of the cost of the South
North Line. The bonds authorized by sections 1 to 18 of this Act
shall be revenue bonds only, and the obligation of the state with
respect to the bonds, including any interim financing
obligations, and with respect to any grant agreement or pledge
authorized by sections 1 to 18 of this Act shall at all times be
restricted to the availability of unobligated net lottery
proceeds, any appropriated funds and any other moneys lawfully
credited to the South North Construction Fund and the Light Rail
Bond Fund. Neither the faith and credit of the state, nor any of
its taxing power, shall be pledged or committed to the payment of
bonds, including any interim financing obligations, or any grant
agreement, pledge or other commitment or covenant of the state
authorized by sections 1 to 18 of this Act. + }
**************************** SECTION 2. { + As used in
sections 1 to 18 of this Act, unless the context requires
otherwise:
(1) 'Appropriated funds' for a particular fiscal year means the
funds specifically appropriated or otherwise specifically made
available by the Legislative Assembly or the Emergency Board, as
the case may be, acting in its sole discretion, in the fiscal
year to replenish reserves established as additional security for
light rail lottery bonds pursuant to the authority granted in
section 5 of this Act.
(2) 'Dedicated lottery revenues' for a particular fiscal year
means an amount of unobligated net lottery proceeds equal to
$31.8 million minus the amount of lottery revenues that are
required under ORS 391.125 (1) to be transferred in that fiscal
year to the Regional Light Rail Extension Bond Account for the
purpose of paying when due the principal of and interest on the
Westside lottery bonds.
(3) 'Department' means the Department of Transportation.
(4) 'Director' means the Director of Transportation of the
State of Oregon.
(5) 'Financing obligations' means any bonds, notes, commercial
paper or other obligations for money borrowed issued by or on
behalf of Tri-Met for the purpose of financing any of the costs
of designing, acquiring, constructing and equipping the South
North Line, including the obligations of Tri-Met under any
municipal bond insurance policy, letter of credit, line of
credit, surety bond or other credit enhancement or liquidity
device given to secure or provide liquidity for any such bonds,
notes, commercial paper or other obligations.
(6) 'Grant agreement' means any agreement entered into by the
director and Tri-Met pursuant to section 3 (2) of this Act.
(7) 'Light Rail Bond Fund' means the account created pursuant
to section 6 of this Act.
(8) 'Light rail lottery bonds' means:
(a) Any refunding lottery bonds;
(b) All South North lottery bonds; and
(c) Any bonds issued to refund any of the bonds described in
paragraph (a) or (b) of this subsection.
(9) 'Metro' means the metropolitan service district created
under ORS chapter 268 and exercising home rule charter powers.
(10) 'Refunding lottery bonds' means any bonds issued for the
purpose of refunding any Westside lottery bonds.
(11) 'South North Line' means the line extending Tri-Met's
regional light rail system between the vicinity of the
intersection of SE Sunnyside Road and I-205 in Clackamas County,
Oregon, to Clark County, Washington, including each phase and
each segment thereof and all portions thereof located within and
without the State of Oregon, as set forth in the Regional
Transportation Plan adopted by Metro as such plan may be amended
from time to time.
(12) 'South North lottery bonds' means the bonds authorized to
be issued under section 5 (1) of this Act for the purpose of
funding the state's share of the cost of the South North Line.
The term includes any interim financing obligations issued to
provide interim financing for this state's share of the costs of
the South North Line pending the issuance of long-term South
North lottery bonds.
(13) 'Tri-Met' means the Tri-County Metropolitan Transportation
District of Oregon, a mass transit district created under ORS
chapter 267.
(14) 'Unobligated net lottery proceeds' means all revenues
derived from the operation of the state lottery except for:
(a) The revenues used for the payment of prizes and the
expenses of the state lottery as provided in section 4 (4)(e),
Article XV of the Oregon Constitution, ORS 461.500 (2) and
461.510 (3) and (4);
(b) The revenues required to be applied, distributed or
allocated as provided in ORS 461.543; and
(c) The revenues allocated to the Regional Light Rail Extension
Construction Fund pursuant to ORS 391.140 that are required under
ORS 391.125 (1) to be transferred to the Regional Light Rail
Extension Bond Account for the purpose of paying when due the
principal of and interest on the Westside lottery bonds.
(15) 'Westside lottery bonds' means the bonds issued by the
state pursuant to the authority granted in ORS 391.140, but not
including any refunding lottery bonds. + }
**************************** SECTION 3. { + (1) The South
North Construction Fund, separate and distinct from the General
Fund, is established in the State Treasury. The following funds
are appropriated continuously to the Department of
Transportation, and may be expended by the department for the
purposes of paying the costs of the preliminary engineering,
final design, advanced right of way acquisition or construction
and acquisition of equipment and facilities of the South North
Line:
(a) All moneys on deposit from time to time in the South North
Construction Fund, including investment earnings thereon; and
(b) All dedicated lottery revenues in a particular fiscal year
that are not required to be deposited into the Light Rail Bond
Fund pursuant to section 6 (1) of this Act for the purpose of
paying the principal of and interest on the light rail lottery
bonds coming due in such fiscal year, including any such
dedicated lottery revenues that are required to be, but have not
yet been, transferred to the South North Construction Fund.
Moneys in the South North Construction Fund may be expended for
South North Line purposes by application of such moneys to pay
amounts committed to be paid under all grant agreements entered
into between the Director of Transportation and Tri-Met pursuant
to this section and the expenses of the department in
administering the South North Construction Fund and the Light
Rail Bond Fund. If required to pay principal of or interest on
light rail bonds as those obligations become due and payable,
moneys in the South North Construction Fund may be transferred to
the Light Rail Bond Fund for the purpose of making such payments.
Interest and earnings received on moneys credited to the South
North Construction Fund shall accrue to and become part of the
South North Construction Fund. Interest and earnings received on
moneys credited to the Light Rail Bond Fund shall accrue to and
become part of the Light Rail Bond Fund.
(2) The director may enter into grant agreements with Tri-Met
that commit the department to pay anticipated funds from the
South North Construction Fund to Tri-Met for the purpose of
financing the costs of the first construction segment of the
South North Line, including servicing any financing obligations,
which grant agreements may, subject to the provisions of this
section, provide for the remittance of such funds on such
periodic basis, in such amounts, over such period of years and
with such priority over other commitments of such funds as the
director shall specify in the grant agreements. The total amount
committed under such grant agreements shall be limited to the
amount of $375 million that may be made available to pay the
costs of the first construction segment of the South North Line
exclusive of the department's administrative expenses.
Notwithstanding any other provision of law to the contrary, such
grant agreements may provide for the remittance to Tri-Met of
funds from the South North Construction Fund at the earliest
possible dates upon which such funds are available to the
department and are needed by Tri-Met to pay the costs of the
South North Line, all without regard to any specified percentage
of the state's share of the total South North Line project costs
or the proportion of funds theretofore advanced, or to be then
advanced, from the South North Construction Fund in relation to
the funds advanced from other federal, state or local sources to
pay South North Line project costs. Any such grant agreements,
when executed by the director and accepted by Tri-Met, shall be
solely conditioned upon actual funds available in the South North
Construction Fund and shall be valid, binding and irrevocable in
accordance with its terms, subject only to the availability of
funds in the South North Construction Fund. Tri-Met may pledge
its right to receive moneys under any grant agreement as security
for any financing obligations issued to finance any of the costs
of designing, acquiring, constructing and equipping the South
North Line, which pledge shall be valid and binding upon Tri-Met,
the department and all other persons from the date made, the
rights so pledged shall be immediately subject to the lien of
such pledge without physical delivery, filing or other act, and
the lien of such pledge shall be superior to all other claims and
liens of any kind whatsoever. Upon notice from Tri-Met that it
has so pledged its right to receive moneys under any grant
agreement, the department shall fully cooperate with Tri-Met and
the pledgee to give effect to such pledge, including but not
limited to acknowledging in writing to Tri-Met and the pledgee
the existence and validity of such pledge and agreeing to the
payment of any moneys due under the terms of the subject grant
agreement into such custodian account or accounts as shall be
specified under the terms of such pledge.
(3) Notwithstanding any grant agreement entered into by the
director under subsection (2) of this section, no moneys shall be
expended from the South North Construction Fund for the
preliminary engineering, final design, advanced right of way
acquisition or construction and acquisition of any segment of the
South North Line unless the director determines:
(a) That all state and local approvals are in place for the
segment of the South North Line for which funding is being
sought;
(b) That assurances are in place for obtaining all moneys,
other than moneys for which the determination is being made,
necessary to enable completion of the segment of the South North
Line for which funding is being sought and that Tri-Met has
agreed to provide an amount of money at least equal to that being
provided by the South North Construction Fund to pay the costs of
the segment of the South North Line for which funding is being
sought;
(c) With respect to the segment of the South North Line for
which funding is being sought, that the body of local officials
and state agency representatives designated by Metro and known as
the Joint Policy Alternatives Committee on Transportation has
certified that the segment of the South North Line is a regional
priority; and
(d) With respect to construction of any segment of the South
North Line, the elements of the project that are designated for
state participation and an estimated total amount of the state's
funding obligation.
(4) When the actual expenditures for a segment of the South
North Line fall short of the estimated expenditures for such
segment, those moneys that are not required for that segment of
the project shall remain in the South North Construction Fund for
use in completing other segments of the South North Line.
(5) On or before August 31 in each year, the director shall
certify to the Governor and the State Treasurer whether or not
there existed, as of the end of the immediately preceding fiscal
year, an unobligated balance of dedicated lottery revenues in the
South North Construction Fund. If the director certifies that
there existed such an unobligated balance of dedicated lottery
revenues, an amount equal to the unobligated balance of such
dedicated lottery revenues as of the end of the immediately
preceding fiscal year shall revert to the Executive Department
Economic Development Fund created by ORS 461.540, and the State
Treasurer shall credit such amount to that fund on or before the
September 15 next following the date of the certification by the
director.
(6) The director shall certify the unobligated balance of
dedicated lottery revenues in the South North Construction Fund,
and that unobligated balance of dedicated lottery revenues shall
revert to the Executive Department Economic Development Fund if
the director determines that the South North Line has been
completed and such project has been accepted by the department,
and all claims, suits and actions arising out of such project
that could create a liability payable out of the moneys in the
South North Construction Fund have been resolved.
(7) For purposes of subsections (5) and (6) of this section,
dedicated lottery revenues in the South North Construction Fund
shall be obligated to the extent such moneys are needed to fund
the amounts committed to be paid in the current or any future
fiscal year under any grant agreement entered into by the
director under subsection (2) of this section, to pay debt
service on any light rail lottery bonds or to pay the expenses of
the department in administering the South North Construction Fund
and the Light Rail Bond Fund.
(8) The department may deduct from the South North Construction
Fund the costs associated with administering the South North
Construction Fund and the Light Rail Bond Fund. + }
**************************** SECTION 4. { + (1) Subject only
to the availability of unobligated net lottery proceeds, in each
fiscal year beginning with the fiscal year commencing July 1,
1999, there shall be allocated from the Executive Department
Economic Development Fund created by ORS 461.540 an amount of
unobligated net lottery proceeds that will equal:
(a) The dedicated lottery revenues for such fiscal year; plus
(b) Such additional amount as shall be required to restore
withdrawals from any reserve account for light rail lottery bonds
established pursuant to the authority granted in section 6 (1) of
this Act to the extent such withdrawals result in the amount on
deposit in such reserve account being less than the amount the
state has covenanted to maintain therein.
(2) The amounts of unobligated net lottery proceeds allocated
from the Executive Department Economic Development Fund pursuant
to this section shall be transferred as follows and in the order
of priority indicated:
(a) First, there shall be transferred to the Light Rail Bond
Fund the portion of such unobligated net lottery proceeds that,
when added to any amounts then on deposit in the Light Rail Bond
Fund that are available for such purpose, will be sufficient to
pay all amounts of principal and interest coming due during that
fiscal year on all outstanding light rail lottery bonds;
(b) Second, to the extent any deficiency exists with respect to
any reserve account established as additional security for any
light rail lottery bonds and such deficiency has not theretofore
been cured by appropriated funds, there shall be transferred to
such reserve account such portion of such unobligated net lottery
proceeds as shall be required to cure the remaining deficiency;
and
(c) Third, the balance, if any, of such unobligated net lottery
proceeds shall be transferred to the South North Construction
Fund.
(3) The annual amounts of unobligated net lottery proceeds
required to be transferred to the South North Construction Fund
under subsection (2)(c) of this section and all other moneys
deposited in the South North Construction Fund, together with all
investment earnings on all amounts on deposit from time to time
in the South North Construction Fund, are continuously
appropriated only for the purposes of funding the South North
Line by application of such moneys to the payment of amounts
committed to be paid under grant agreements entered into between
the Director of Transportation and Tri-Met pursuant to section 3
of this Act and to pay the expenses of the Department of
Transportation in administering the South North Construction Fund
and the Light Rail Bond Fund. The annual amounts of unobligated
net lottery proceeds required to be transferred to the Light Rail
Bond Fund under subsection (2)(a) of this section or to any
reserve account under subsection (2)(b) of this section and all
other moneys deposited in the Light Rail Bond Fund, together with
all investment earnings on all amounts on deposit from time to
time in the Light Rail Bond, are continuously appropriated only
for the purposes of paying when due the principal of and interest
on the outstanding light rail lottery bonds.
(4) In accordance with section 4 (4), Article XV, Oregon
Constitution, and notwithstanding any other provision of law, the
annual allocation of unobligated net lottery proceeds made by
subsection (1) of this section and the transfers thereof required
to be made by subsection (2) of this section shall be satisfied
and credited from the first unobligated net lottery proceeds
received by the state before any other allocation, appropriation
or disbursement of the unobligated net lottery proceeds is made
in such fiscal year.
(5) The transfer of unobligated net lottery proceeds to the
Light Rail Bond Fund and the South North Construction Fund
authorized by this section shall cease when the director
certifies in writing that transfers of moneys under this section
no longer are necessary because:
(a) Moneys in the Light Rail Bond Fund and in the South North
Construction Fund are sufficient for the payment in full of all
amounts owing under all outstanding light rail lottery bonds and
all grant agreements entered into between the director and
Tri-Met under section 3 of this Act and for the payment in full
of the expenses of the department in administering the Light Rail
Bond Fund and the South North Construction Fund; and
(b) The South North Line has been completed and such project
has been accepted by the department, and all claims, suits and
actions arising out of such project that could create a liability
payable out of the moneys in the Light Rail Bond Fund or the
South North Construction Fund have been resolved. The director
shall deliver a copy of such certificate to the Governor and the
State Treasurer.
(6) Upon receipt of the director's written certification
pursuant to subsection (5) of this section that transfer of
dedicated lottery revenues to the Light Rail Bond Fund and the
South North Construction Fund under this section is no longer
necessary, the State Treasurer shall thereafter credit dedicated
lottery revenues received by the Light Rail Bond Fund or the
South North Construction Fund under this section to the Executive
Department Economic Development Fund. + }
**************************** SECTION 5. { + (1) In accordance
with any applicable provisions of ORS chapters 286 and 288, the
State Treasurer, at the request of the Director of
Transportation, may issue South North lottery bonds for the
purpose of financing this state's share of the costs of the South
North Line, including the refunding of any interim financing
obligations. South North lottery bonds issued under this section
may include interim financing obligations for the purpose of
providing interim financing for this state's share of the costs
of the South North Line pending the issuance of long-term South
North lottery bonds. Such interim financing obligations may take
the form of notes, commercial paper or other obligations. To
secure interim financing obligations, this state may pledge the
proceeds of South North lottery bonds and the proceeds of interim
financing obligations authorized by sections 1 to 18 of this Act.
For the purpose of financing grants authorized by section 3 of
this Act, South North lottery bonds may be issued from time to
time in one or more series in an aggregate amount not to exceed:
(a) The principal sum of $375 million; plus
(b) An amount equal to the costs incurred in connection with
the issuance of the South North lottery bonds and other
administrative expenses of the State Treasurer and the department
in connection with the issuance of the South North lottery bonds;
plus
(c) The amount of any reserves determined to be necessary or
advantageous in connection with the South North lottery bonds;
plus
(d) The amount needed to pay for the cost of acquiring any
municipal bond insurance policy, letter of credit, line of
credit, surety bond or other credit enhancement device obtained
for the purpose of providing additional security or liquidity for
the South North lottery bonds.
(2) The director shall submit to the State Treasurer from time
to time written requests to issue the South North lottery bonds
as provided in subsection (1) of this section in amounts
sufficient to provide in a timely fashion the moneys required to
fund the obligations of the department under any grant agreements
entered into under section 3 of this Act for the purpose of
financing the state share of the costs of the South North Line.
(3) Moneys received from the issuance of South North lottery
bonds, including any investment earnings thereon, may be expended
only for the purpose of:
(a) Financing the costs of development, acquisition and
construction of the South North Line, including paying debt
service on any financing obligations or refunding any interim
financing obligations issued under subsection (1) of this
section;
(b) Paying the costs of issuing the South North lottery bonds
and other administrative expenses of the State Treasurer in
carrying out the provisions of section 6 of this Act and this
section;
(c) Funding any reserves determined to be necessary or
advantageous in connection with such South North lottery bonds;
and
(d) Paying the cost of acquiring any municipal bond insurance
policy, letter of credit, line of credit, surety bond or other
credit enhancement device obtained for the purpose of providing
additional security or liquidity for the South North lottery
bonds.
(4) In addition to the South North lottery bonds authorized to
be issued under this section, the State Treasurer is hereby
authorized, at the request of the director, to issue from time to
time one or more series of refunding lottery bonds for the
purpose of refunding in whole or in part any outstanding Westside
lottery bonds or South North lottery bonds. Such refunding
lottery bonds shall be issued in such amount as the State
Treasurer shall determine is necessary or appropriate in order
to:
(a) Pay or defease the principal of, redemption premium, if
any, and interest on the bonds to be refunded thereby;
(b) Pay the costs of issuing the refunding lottery bonds and
other administrative expenses of the State Treasurer in issuing
such bonds;
(c) Fund any reserves determined to be necessary or
advantageous in connection with such refunding lottery bonds; and
(d) Pay the cost of acquiring any municipal bond insurance
policy, letter of credit, line of credit, surety bond or other
credit enhancement device obtained for the purpose of providing
additional security or liquidity for the refunding lottery bonds.
(5) All light rail lottery bonds issued under this section
shall be payable from:
(a) The unobligated net lottery proceeds pledged thereto as
provided in subsection (7) of this section;
(b) Any appropriated funds; and
(c) The moneys and investments on deposit from time to time in
the Light Rail Bond Fund and any reserve account established as
additional security for the light rail lottery bonds. The light
rail lottery bonds shall not be a general obligation of this
state, and shall not be secured by or payable from any funds or
assets of this state other than the unobligated net lottery
proceeds and any appropriated funds and other moneys and
investments on deposit from time to time in the Light Rail Bond
Fund. In no circumstance shall the state be obligated to pay
amounts due under any light rail lottery bonds issued under this
section from any source other than unobligated net lottery
proceeds and the appropriated funds and other moneys and
investments on deposit from time to time in the Light Rail Bond
Fund. With the exception of available unobligated net lottery
proceeds, in no event shall the Legislative Assembly be under any
legal compulsion or obligation to appropriate or expend any other
funds for the purpose of paying any amounts owing on any light
rail lottery bonds. All light rail lottery bonds issued under
this section shall contain a statement that this state shall not
be obligated to pay bond principal, or interest thereon, from any
source other than unobligated net lottery proceeds and the
appropriated funds and other moneys and investments on deposit
from time to time in the Light Rail Bond Fund, and that the faith
and credit or the taxing power of the State of Oregon is not
pledged to the payment of the bond principal or interest thereon.
(6) If any light rail lottery bonds are secured by reserves,
either in the form of cash, investments, surety bonds, municipal
insurance, lines of credit, letters of credit or other similar
instruments, that the state has covenanted to maintain at
particular levels, and the reserves are drawn down below the
level which the state has covenanted to maintain, the director
shall promptly certify to the Legislative Assembly or, if the
Legislative Assembly is not then in session, to the Emergency
Board, the amount needed to restore the reserves to their
required level. The Legislative Assembly or the Emergency Board,
as the case may be, may provide appropriated funds in the amount
certified by the director. Any appropriated funds so provided
shall be used immediately to restore the balance in the reserves
established for the light rail lottery bonds. The director may
enter into covenants with the owners of the light rail lottery
bonds that specify the timing and content of the director's
certification. By enacting this subsection, the Legislative
Assembly acknowledges its current intention to provide
appropriated funds in the amount certified by the director
pursuant to this subsection. However, neither the Legislative
Assembly nor the Emergency Board shall have any legal obligation
to provide appropriated funds.
(7) Notwithstanding ORS 288.855 or any other provision of law,
all light rail lottery bonds, regardless of whether issued in one
or more issues, shall be secured by a pledge of and lien on the
unobligated net lottery proceeds and amounts in the Light Rail
Bond Fund. The lien of such pledge shall be valid and binding
immediately upon issuance of the light rail lottery bonds secured
thereby. The unobligated net lottery proceeds and amounts in the
Light Rail Bond Fund shall be immediately subject to the lien of
such pledge upon receipt of the unobligated net lottery proceeds
by the state regardless of when or whether they are allocated or
transferred to the Light Rail Bond Fund and without physical
delivery, filing or other act. The lien of such pledge of
unobligated net lottery proceeds and amounts in the Light Rail
Bond Fund shall be superior to all other claims, liens and
appropriations of any kind whatsoever. In connection with the
issuance of any light rail lottery bonds, the State Treasurer
shall have the authority and discretion to provide that:
(a) All light rail lottery bonds, regardless of series or time
of issuance, shall be equally and ratably secured by the lien of
the pledge of unobligated net lottery proceeds and amounts in the
Light Rail Bond Fund established pursuant to this section 6 of
this Act; or
(b) The light rail lottery bonds of one or more particular
series shall be secured by the lien of such pledge on a basis
that is prior and superior, or inferior and subordinate, to the
lien of such pledge securing one or more other series of light
rail lottery bonds.
(8) The State of Oregon hereby makes the covenants set forth in
paragraphs (a) to (d) of this subsection with and for the benefit
of the owners from time to time of the light rail lottery bonds.
The covenants shall constitute a contract with such owners:
(a) Except as authorized in subsection (7) of this section with
respect to the lien of the pledge of unobligated net lottery
proceeds that secures light rail lottery bonds, the state shall
not create any lien or encumbrance on the unobligated net lottery
proceeds that is equal or superior to the lien created by
subsection (7) of this section;
(b) Subject only to the availability of unobligated net lottery
proceeds, the state shall budget and appropriate in each fiscal
year an amount of unobligated net lottery proceeds that, when
added to other funds lawfully budgeted and appropriated and
available for such purpose, will be sufficient to pay in full the
principal and interest due and to become due in such fiscal year
on all outstanding light rail lottery bonds and maintain the
required balance in any reserves established for light rail
lottery bonds, and will apply the unobligated net lottery
proceeds and any other amounts so budgeted and appropriated to
the payment of such principal and interest when due and the
maintenance of such reserves;
(c) On or before the maturity date of any interim financing
obligations issued under this section, the State of Oregon shall
issue light rail lottery bonds or refunding interim financing
obligations in an amount that, when added to other amounts
available for such purpose, shall be sufficient to pay all
amounts coming due on the outstanding interim financing
obligations on such maturity date; and
(d) Until such time as all light rail lottery bonds have been
paid in full or provision for such payment has been made by means
of a defeasance in accordance with ORS 288.677, the state will
continue to operate the lottery in accordance with the
requirements of section 4, Article XV of the Oregon Constitution
as in effect on the date of issuance of the light rail lottery
bonds.
(9) The moneys in the Light Rail Bond Fund shall be used and
applied by the director to pay when due the principal of and
interest on any light rail lottery bonds issued under this
section.
(10) The interest on all light rail lottery bonds issued under
this section and on any refunding and advance refunding bonds
issued under ORS 286.051 for the purpose of refunding any light
rail lottery bonds is exempt from personal income taxation
imposed by this state under ORS chapter 316.
(11) In connection with the issuance of any light rail lottery
bonds, the State Treasurer may establish such accounts and
subaccounts within the South North Construction Fund and the
Light Rail Bond Fund and may establish such other funds, accounts
and subaccounts as the State Treasurer shall determine are
necessary or appropriate. The net proceeds derived from the
issuance and sale of the South North lottery bonds issued under
this section to finance the costs of the South North Line shall
be deposited in the South North Construction Fund and disbursed
upon the written request of the director for the purpose of
funding the department's obligations under any grant agreements
entered into with Tri-Met pursuant to section 3 of this Act. If
any South North lottery bonds, including any interim financing
obligations, are issued for the purpose of refunding any interim
financing obligations previously issued, the net proceeds derived
from the issuance and sale of such refunding South North lottery
bonds or interim financing obligations shall be deposited in the
South North Construction Fund and used to pay when due the
interim financing obligations so refunded.
(12) If, at the time of issuance of any light rail lottery
bonds, a municipal bond insurance policy, letter of credit, line
of credit, surety bond or other credit enhancement device is
available as additional security for the light rail lottery bonds
or any portion thereof at a cost effective price, the State
Treasurer may acquire such municipal bond insurance policy,
letter of credit, line of credit, surety bond or other credit
enhancement device in order to provide additional security for
the bonds or portion thereof. + }
**************************** SECTION 6. { + (1) The Light Rail
Bond Fund is created as a fund separate and distinct from the
General Fund. In connection with the issuance of any light rail
lottery bonds, the State Treasurer may establish such reserves as
are deemed necessary or appropriate in order to provide
additional security therefor, which reserves shall be held to the
credit of an appropriate account of the Light Rail Bond Fund. The
State Treasurer may provide that all or any portion of the Light
Rail Bond Fund, or any account therein, shall be held by a
trustee, and may enter into agreements with the trustee regarding
the use and application of the amounts held in the Light Rail
Bond Fund and accounts therein. Subject only to the availability
of unobligated net lottery proceeds, in each fiscal year in which
any amounts of principal or interest are due and payable on any
light rail lottery bonds, there shall be transferred to the Light
Rail Bond Fund or the appropriate reserve account therein the
amounts of unobligated net lottery proceeds required by section 4
(2)(a) and (b) of this Act, the net proceeds of any light rail
lottery bonds or interim financing obligations issued for the
purpose of refunding any outstanding interim financing
obligations and any appropriated funds.
(2) All moneys on deposit from time to time in the Light Rail
Bond Fund together with all investment earnings thereon, are
continuously appropriated to the payment of the light rail
lottery bonds. All investment earnings on moneys on deposit from
time to time in the Light Rail Bond Fund shall be retained in
that account and applied to pay the principal of and interest on
the light rail lottery bonds. + }
**************************** SECTION 7. { + (1) Subject to ORS
chapter 279 and any applicable prohibitions against preferences
in contracts related to the construction phase of the South North
Line, the managing agencies shall develop procedures that afford
qualified businesses in Oregon the opportunity to compete for
project contracts to the maximum extent feasible and consistent
with federal laws and regulations governing Federal Transit
Administration grants.
(2) The managing agencies shall seek the cooperation and
assistance of contracting and construction associations in this
state when establishing the contracting procedures for the South
North Line. The managing agencies shall also establish and
implement programs to provide contracting and construction
businesses with information relating to the project.
(3) The managing agencies, to the maximum extent feasible,
shall encourage disadvantaged business enterprises to bid for
contracts and to otherwise participate in the construction of the
South North Line. + }
**************************** SECTION 8. { + Notwithstanding
any other provision of law, nothing shall prevent the Legislative
Assembly from subsequently dedicating other moneys to be
deposited in the South North Construction Fund to be used to pay
for the costs of the South North Line, including but not limited
to moneys derived from:
(1) The sale of property, interests in property or development
rights, including the sale of concession rights and franchises;
(2) Gifts, donations, grants, equity contributions, royalties,
concession fees, franchise fees or other fees, taxes,
impositions, revenues, tolls, charges, assessments, levies,
surcharges, impositions, duties, tariffs or other revenues; or
(3) Moneys that under an agreement with any governmental unit
or private person or entity, are required to be deposited in the
South North Construction Fund. + }
**************************** SECTION 9. { + (1) When location,
construction, relocation, reconstruction, maintenance or repair
of the South North Line requires a utility to relocate any of its
facilities that are located in a public right of way, the mass
transit district that constructs or operates the light rail
system shall reimburse the utility for 50 percent of the costs
and expenses incurred by the utility in relocating the
facilities.
(2) As a condition of reimbursement, a district may require a
utility to participate in preparation of the federal grant
application and determine the cost and expense of relocation. The
utility and the district shall agree upon the manner and amount
of reimbursement.
(3) As used in this section, 'utility' has the meaning given
that term in ORS 366.332. + }
**************************** SECTION 10. { + Notwithstanding
section 5 of this Act, the State Treasurer shall not issue any
light rail lottery bonds authorized by section 5 of this Act
unless, on or before the date of issuance of the bonds, federal
matching funds have been made available for the first
construction segment of the South North Line light rail
project. + }
**************************** SECTION 11. { + (1) The
Transportation Equity Account, separate and distinct from the
General Fund, is established in the State Treasury. Moneys in the
account, including all investment earnings thereon and any
revenues generated from increased state income taxes resulting
from construction of the South North Line, as estimated by the
Department of Revenue, are appropriated continuously to the
Department of Transportation for the purpose of paying the costs
of transportation projects located outside of the Portland
metropolitan region. Moneys allocated from the Transportation
Equity Account shall not be used to offset moneys distributed
from the State Highway Fund for areas outside the Portland
metropolitan region.
(2) The Transportation Equity Account shall consist of:
(a) Moneys provided to the account from sources described in
sections 12 and 14 of this Act pursuant to an intergovernmental
agreement among the Department of Transportation, Tri-Met, Metro
and other participating local governments.
(b) Lottery revenues allocated to the account by the
Legislative Assembly as provided in this section.
(3) In each fiscal year beginning July 1, 1999, there is
allocated from the Executive Department Economic Development Fund
an amount equal to the amount necessary to pay the annual debt
service on outstanding South North lottery bonds during that
fiscal year. However, when expenditures of $375 million are made
from the Transportation Equity Account as provided in section 15
of this Act, the allocation of moneys from the Executive
Department Economic Development Fund shall cease. In each fiscal
year, the State Treasurer shall certify the amount of the debt
service for South North lottery bonds for that fiscal year. All
amounts allocated under this section shall be transferred to the
Transportation Equity Account.
(4) The annual amounts required to be transferred to the
Transportation Equity Account under subsection (3) of this
section, together with all investment earnings on the amounts on
deposit from time to time in the account, are continuously
appropriated only for the purpose of distributing such moneys to
cities and counties under section 15 of this Act for financing
the costs of transportation projects.
(5) As used in this section and section 14 of this Act, '
Portland metropolitan region' means the areas within any regional
growth boundary or other urban growth boundary that are situated
within Clackamas, Multnomah and Washington Counties. + }
**************************** SECTION 12. { + Subject to
receipt of the federal funding commitment for the South North
Line project, Tri-Met, Metro and the other participating local
governments shall make, or take such actions within their power
to make arrangements for, the following payments into the
Transportation Equity Account pursuant to the intergovernmental
agreement described in section 11 (2)(a) of this Act:
(1) In each fiscal year during the period beginning July 1,
1999, and ending June 30, 2004, $8 million shall be paid into the
Transportation Equity Account as follows:
(a) $6 million shall be provided in accordance with federal law
from federal transportation funds, commonly known as STP Flexible
Funds, made available to the Portland metropolitan region through
state or regional transportation improvement programs for capital
projects and that would otherwise have been requested and
received by Tri-Met; and
(b) The participating local governments shall jointly provide
$2 million from lottery moneys distributed to them under ORS
461.547 or other laws or from other discretionary funds available
to the participating local governments.
(2) In each fiscal year during the period beginning July 1,
2004, and ending June 30, 2009, $7 million shall be paid into the
Transportation Equity Account as follows:
(A) $5 million shall be provided in accordance with federal law
from federal transportation funds, commonly known as STP Flexible
Funds, made available to the Portland metropolitan region through
state or regional transportation improvement programs for capital
projects and that would otherwise have been requested and
received by Tri-Met; and
(b) Participating local governments shall jointly provide $2
million from lottery moneys distributed to them under ORS 461.547
or other laws or from other discretionary funds available to the
participating local governments. + }
**************************** SECTION 13. { + The allocation of
lottery funds by the State of Oregon for the South North Line
project in the fiscal years beginning July 1, 1999, is subject to
the execution of an intergovernmental agreement among the
Department of Transportation, Tri-Met, Metro and other
participating local governments that:
(1) To the fullest extend permitted by law, irrevocably commits
the moneys described in section 12 of this Act to the
Transportation Equity Account; and
(2) Sets forth the administrative procedures for paying and
disbursing moneys into and from the Transportation Equity
Account. + }
**************************** SECTION 14. { + (1) Tri-Met, in
cooperation with Metro and the Joint Policy Alternatives
Committee on Transportation of Metro, shall study, consider and
develop innovative transportation funding methods that may be
used by Tri-Met, Metro and Clackamas, Multnomah and Washington
Counties to reduce the need in the Portland metropolitan region
for long-term transportation funding by the State of Oregon.
(2) Tri-Met shall establish a public-private task force that
shall:
(a) Identify and evaluate alternative funding sources or
methods to reduce the need of the Portland metropolitan region
for long-term transportation financing assistance from the State
of Oregon.
(b) Consider innovative public-private funding mechanisms to
capture the value created by transportation projects.
(c) Prepare findings that assess the financial, administrative
and policy effects of various transportation funding sources or
methods.
(d) Prepare a report describing the findings of the task force
and containing recommendations concerning transportation funding
and the legal and administrative changes necessary to allow
creation or appropriate use of recommended funding sources or
methods.
(3) Tri-Met, in cooperation with Metro and the Joint Policy
Alternatives Committee on Transportation of Metro, shall consider
the report prepared under subsection (2) of this section and
recommend new transportation funding sources and methods for the
Portland metropolitan region to the Sixty-ninth Legislative
Assembly. The recommendations may include a proposal for
distributing to the Transportation Equity Account state personal
income tax revenues that are attributable to increased employment
or higher wages resulting from the South North Line project. The
proposal shall describe a method for determining the amount of
the income tax revenues to be distributed to the account.
(4) Subject to enactment of legislation by the Sixty-ninth
Legislative Assembly that grants power to Tri-Met and other local
governments in the Portland metropolitan region to use new
sources and methods for funding transportation, Tri-Met, in
accordance with the provisions of such enacted legislation, shall
assume the obligation to use the new funding authority to either:
(a) Provide not more than $75 million to the Transportation
Equity Account during the construction of the South North Line;
or
(b) Agree to reduce the obligation of the State of Oregon to
finance the costs of the South North Line project by not more
than $75 million.
(5) In addition to the other requirements of this section,
Tri-Met shall conduct a study relating to the long-term funding
of the operations and maintenance of the South North Line. Upon
completion of the study, Tri-Met shall prepare a report that
contains the findings and conclusions of the study,
recommendations for long-term funding of the light rail line and
any proposals for needed legal or administrative changes. A copy
of the report shall be submitted to the Seventy-first Legislative
Assembly. + }
**************************** SECTION 15. { + (1) Beginning
with the fiscal year commencing July 1, 1999, there shall be
distributed in each fiscal year to the cities and counties
located wholly or partly outside the Portland metropolitan region
for the purpose of financing transportation projects all moneys
credited to the Transportation Equity Account by the State
Treasurer during that fiscal year. The moneys distributed under
this section shall be allocated 60 percent to counties and 40
percent to cities.
(2) The sum designated in subsection (1) of this section shall
be remitted by warrant to the county treasurers of the several
counties. The remittance in any year shall be in proportion of
the number of vehicles, trailers, semitrailers, pole trailers and
pole or pipe trailers registered in each county, to the total
number of such vehicles registered in the state as of December 31
of the preceding year, as indicated by motor vehicles
registration records. All such vehicles owned and operated by the
state and registered under ORS 805.040, 805.045 and 805.060 shall
be excluded from the computation in making the apportionment.
(3) The sum designated in subsection (1) of this section shall
be allocated to cities so that each city shall receive such share
of the moneys as its population bears to the total population of
all of the cities receiving moneys under this section. The moneys
shall be remitted to the financial officer of each city. + }
**************************** SECTION 16. { + Notwithstanding
any other law, in each fiscal year during the period beginning
July 1, 1999, and ending June 30, 2009, if the participating
local governments fail to provide the moneys required under
section 12 (1)(b) and (2)(b) of this Act or those governments'
share of the $75 million described in section 14 of this Act, the
Director of Transportation may certify such failure and the
resulting deficiency to the Oregon Department of Administrative
Services, the Economic Development Department and the State
Treasurer. Upon such certification, an amount equal to the
deficiency shall be withheld in the following fiscal year from
Clackamas, Multnomah and Washington Counties and the other
participating local governments from:
(1) Lottery moneys for economic development otherwise available
to those counties; and
(2) Other state shared revenues otherwise available to the
other participating local governments. + }
**************************** SECTION 16a. { + Sections 11 to
16 of this Act first become operative on the date on which
federal matching funds are made available for the first
construction segment of the South North Line light rail
project. + } { + + }
**************************** SECTION 17. { + (1) Prior to the
commencement of the regular session of the Sixty-ninth
Legislative Assembly, the State Treasurer shall conduct an
examination of the means by which the State of Oregon can best
coordinate and maximize the benefits of using bonds that are
secured by or payable from the net proceeds derived from the
operation of the State Lottery for purposes consistent with
section 4, Article XV, Oregon Constitution.
(2) The examination shall include, but not be limited to:
(a) The development of proposed legislation that will maximize
this state's flexibility in the use of net proceeds from the
operation of the State Lottery for the issuance of bonds to
finance projects that are eligible for funding under section 4,
Article XV, Oregon Constitution, while at the same time providing
a coordinated program for the issuance and administration of such
bonds;
(b) The identification of financing methods that will reduce
the costs to the State of Oregon of borrowing moneys through the
use of bonds or other obligations that are secured by or payable
from the net proceeds derived from the operation of the State
Lottery; and
(c) The maintenance and support of this state's current
commitment to the lottery bond funding of the Westside Light Rail
project under ORS 391.090 to 391.150 and the South North Line
under sections 1 to 18 of this Act and the preservation of the
security of lottery bonds issued under those laws.
(3) The State Treasurer shall report the findings of the
examination and the legislative proposals required by this
section to the Sixty-ninth Legislative Assembly and, if the
examination and recommendations are completed prior to the
commencement of the regular session of the Sixty-ninth
Legislative Assembly, to the Emergency Board. + }
**************************** SECTION 18. { + (1)
Notwithstanding ORS chapters 28 and 34, ORS 183.400 to 183.484 or
any other provision of law, exclusive jurisdiction for the
determination of the constitutionality of any provision of
sections 1 to 18 of this Act, including but not limited to the
determination of whether the light rail lottery bonds authorized
by sections 1 to 18 of this Act violate any provision of the
Oregon Constitution, is conferred upon the Supreme Court.
(2) Any interested person may petition the Supreme Court for a
determination of the constitutionality of any provision of
sections 1 to 18 of this Act, including but not limited to the
determination of whether the light rail lottery bonds authorized
by sections 1 to 18 of this Act violate any provision of the
Oregon Constitution. Any such petition must be filed within 30
days after the effective date of sections 1 to 18 of this Act.
The petition shall name the Director of the Department of
Transportation as respondent. If the petition seeks a
determination of whether the light rail lottery bonds authorized
by sections 1 to 18 of this 1995 Act violate any provision of the
Oregon Constitution, the petition shall also name the State
Treasurer as a respondent. The petition shall comply with the
specifications for opening briefs set forth in the Oregon Rules
of Appellate Procedure. Within 20 days following the filing of
the petition, the respondents may file an answering brief, which
shall comply with the specifications for answering briefs set
forth in the Oregon Rules of Appellate Procedure. The Supreme
Court may hear oral arguments and may provide by order for such
hearings and filings as are reasonably necessary for the prompt
disposition of the petition. The Supreme Court shall decide the
matter with the greatest expediency. + }
**************************** SECTION 19. { + (1) The
Legislative Assembly finds that a failure to obtain maximum
federal funding for the South North MAX Light Rail Project in the
upcoming federal transportation authorization act will seriously
impair the viability of the transportation system planned for the
Portland metropolitan area, the ability of the area to implement
a significant portion of its air quality and energy efficiency
strategies and the ability of affected local governments to
implement significant parts of their comprehensive plans. The
Legislative Assembly further finds that to maximize the state's
and metropolitan area's ability to obtain the highest available
level of federal funding for the South North MAX Light Rail
Project and to assure the timely and cost-effective construction
of the project, it is necessary:
(a) To establish the process to be used in making decisions in
a land use final order on the light rail route, light rail
stations, light rail park-and-ride lots, light rail maintenance
facilities and any highway improvements to be included in the
South North MAX Light Rail Project, including their locations;
(b) To expedite the process for appellate review of a land use
final order; and
(c) To establish an exclusive process for appellate review.
(2) Sections 19 to 31 of this Act shall be liberally construed
to accomplish the purposes enumerated in subsection (1) of this
section.
(3) The Legislative Assembly deems the procedures and
requirements provided for in sections 19 to 31 of this Act, under
the unique circumstances of the South North MAX Light Rail
Project, to be equivalent in spirit and substance to the land use
procedures that otherwise would be applicable. + }
**************************** SECTION 20. { + As used in
sections 19 to 31 of this Act, unless the context requires
otherwise:
(1) 'Administrator' means the State Court Administrator.
(2) 'Affected local governments' means:
(a) For the project, the cities and counties within which the
light rail route, stations, lots and maintenance facilities, and
the highway improvements for the project will be located.
(b) For the project extension, the cities and counties within
which the light rail route, stations, lots and maintenance
facilities, and the highway improvements for the project
extension will be located.
(3) 'Board' means the Land Use Board of Appeals.
(4) 'Commission' means the Land Conservation and Development
Commission.
(5) 'Council' means the elected legislative body of Metro.
(6) 'Court' means the Oregon Supreme Court.
(7) 'Criteria' means the land use criteria established by the
commission, as provided in section 23 of this Act.
(8) 'Development approval' means approval of a proposed
development of land 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.
(9) 'Draft Statement' means the Draft Environmental Impact
Statement for the project or project extension prepared pursuant
to regulations implementing the National Environmental Policy Act
of 1969.
(10) 'Final Statement' means the final Environmental Impact
Statement for the project or project extension, as may be amended
from time to time, or any supplementary assessments or
statements, prepared pursuant to regulations implementing the
National Environmental Policy Act of 1969.
(11) 'Full Funding Grant Agreement' means the contractual
agreement entered into between the Federal Government and the
local grant recipient establishing the maximum federal financing
contribution for construction of the project or project extension
and setting forth terms, conditions and limitations for federal
financing of the project and project extension.
(12) 'Highway improvements' means the highway improvements, if
any, to be included in the project or project extension. The
highway improvements shall be selected from among the highway
improvements, if any, described in a Draft Statement or Final
Statement for the project or project extension.
(13) 'Land use final order' means a written order or orders of
the council deciding:
(a) The light rail route for the project or project extension,
including its location;
(b) Stations, lots and maintenance facilities for the project
or project extension, including their locations; and
(c) The highway improvements for the project or project
extension, including their locations.
(14) 'Light rail route' means the light rail alignment to be
included in the project or project extension. The light rail
route shall be selected from among light rail route alternatives
described in a Draft Statement or Final Statement for the project
or project extension.
(15) 'Locally Preferred Alternative Report' means a decision
adopted in accordance with federal requirements determining
whether or not to build the South North MAX Light Rail Project
and, if to build, recommending the light rail route, stations,
lots and maintenance facilities, and the highway improvements,
including their locations, to be included in the South North MAX
Light Rail Project.
(16) 'Locations' means the boundaries within which the light
rail route, stations, lots and maintenance facilities, and the
highway improvements shall be located, as provided in section 22
(1) of this Act.
(17) 'Measures' includes any mitigation measures, design
features, or other amenities or improvements associated with the
project or project extension.
(18) 'Project' means the portion of the South North MAX Light
Rail Project within the Portland metropolitan area urban growth
boundary, including each segment thereof as set forth in the
Phase I South North Corridor Project Locally Preferred
Alternative Report as may be amended from time to time or as may
be modified in a Final Statement or the Full Funding Grant
Agreement. The project includes the light rail route, stations,
lots and maintenance facilities, and any highway improvements to
be included in the project.
(19) 'Project extension' means the portion of the South North
MAX Light Rail Project within the Portland metropolitan area
urban growth boundary as set forth in the Phase II South North
Corridor Project Locally Preferred Alternative Report as may be
amended from time to time or as may be modified in a Final
Statement or the Full Funding Grant Agreement. The project
extension includes the light rail route, stations, lots, and
maintenance facilities, and any highway improvements to be
included in the project extension.
(20) 'Stations, lots and maintenance facilities' means the
light rail stations, light rail park-and-ride lots and light rail
vehicle maintenance facilities to be included in the project or
project extension, to be selected from among alternatives
described in a Draft Statement or Final Statement for the project
or project extension.
(21) 'Steering Committee' means a committee staffed by Metro
through the time of adoption of the initial land use final order
for the project or project extension, and thereafter staffed by
Tri-Met, comprised at least of representatives of the Department
of Transportation, Tri-Met and elected officials of the affected
local governments and Metro, whose specific membership and manner
of function shall be determined by intergovernmental agreement
between Metro, Tri-Met, the Department of Transportation and the
affected local governments for the project or project extension.
(22) 'Tri-Met' means the Tri-county Metropolitan Transportation
District of Oregon. + }
**************************** SECTION 21. { + Notwithstanding
any other provision of law, the procedures and requirements
provided for in sections 19 to 31 of this Act shall be the only
land use procedures and requirements to which the following land
use decisions shall be subject:
(1) Decisions on the light rail route for the project and
project extension, including its location;
(2) Decisions on the stations, lots and maintenance facilities
for the project and project extension, including their locations;
and
(3) Decisions on the highway improvements for the project and
project extension, including their locations. + }
**************************** SECTION 22. { + (1) A land use
final order shall establish the light rail route, stations, lots
and maintenance facilities, and the highway improvements for the
project or project extension, including their locations, as
provided in this section and in accordance with the procedures
identified in section 25 of this Act.
(a) Prior to publication of the public hearing notice described
in section 25 (1) of this Act, and following receipt of
recommendations from the Department of Transportation and the
Steering Committee, Tri-Met shall apply to the council for a land
use final order approving the light rail route, stations, lots
and maintenance facilities, and the highway improvements,
including their locations. The applied for locations shall be in
the form of boundaries within which the light rail route,
stations, lots and maintenance facilities, and the highway
improvements shall be located. These boundaries shall be
sufficient to accommodate adjustments to the specific placements
of the light rail route, stations, lots and maintenance
facilities, and the highway improvements for which need commonly
arises upon the development of more detailed environmental or
engineering data following approval of a Full Funding Grant
Agreement.
(b) Following a public hearing as provided in section 25 (3) of
this Act, the council shall either adopt a land use final order
establishing the facilities and locations applied for by Tri-Met
or continue the public hearing and refer the proposed facilities
and locations back to Tri-Met for further review.
(c) Upon referral by the council, Tri-Met shall consider
amendments to its proposed facilities and locations and then
forward a further application to the council for hearing and
adoption. The council shall either adopt a land use final order
establishing the facilities and locations applied for by Tri-Met
or again continue the hearing and refer the proposed facilities
and locations back to Tri-Met for further review and application
to the council.
(2) Any siting of the light rail route, a station, lot or
maintenance facility, or a highway improvement outside the
locations established in a land use final order, and any new
station, lot, maintenance facility or highway improvement, shall
require a land use final order amendment or a new land use final
order which shall be adopted in accordance with the process
provided for in subsection (1) of this section. + }
**************************** SECTION 23. { + The Land
Conservation and Development Commission shall establish criteria
to be used by the council in making decisions in a land use final
order on the light rail route, stations, lots and maintenance
facilities, and the highway improvements for the project and
project extension, including their locations. The provisions in
ORS chapters 183, 192, 195, 197, 215 and 227 and in any other law
or regulation shall not apply to proceedings of the commission
under sections 19 to 31 of this Act. The following procedures
shall govern the proceedings of the commission in establishing
criteria:
(1) The commission shall publish notice of a public hearing on
criteria to be established by the commission in a newspaper of
general circulation within the Portland metropolitan area at
least 20 days prior to the public hearing. The notice shall:
(a) Identify the general subject matter of the hearing and the
date, time and place of the hearing;
(b) State that any criteria to be proposed to the commission
must be filed at the Salem office of the Department of Land
Conservation and Development at least 10 days prior to
commencement of the hearing and will be available for public
inspection following filing;
(c) State that appeals from an order establishing criteria must
be filed within seven days following the date written notice of
the order is mailed;
(d) State that failure by a person to raise an issue at the
hearing in person or in writing, or failure to provide sufficient
specificity to afford the commission an opportunity to respond to
the issue raised, shall preclude appeal by that person to the
court on that issue;
(e) State that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing; and
(f) State that written notice of adoption of an order
establishing criteria will be provided only to persons who
provide oral or written testimony at the hearing and who also
provide, in writing, a request for written notice and a mailing
address to which notice should be sent.
(2) The commission also may provide such other notice as it
deems appropriate to inform interested persons of the hearing.
However, no other form of notice is required.
(3) A copy of the staff report, if any, shall be available for
public inspection at least four days prior to the public hearing.
(4) The commission shall hold a public hearing on the criteria
to be established by the commission. At the commencement of the
hearing, a statement shall be made to those in attendance that:
(a) Identifies the general subject matter of the hearing;
(b) States that appeals from an order establishing criteria
must be filed within seven days following the date written notice
of the order is mailed;
(c) States that failure by a person to raise an issue at the
hearing in person or in writing, or failure to provide sufficient
specificity to afford the commission an opportunity to respond to
the issue raised, shall preclude appeal by that person to the
court on that issue;
(d) States that submittal of proposed criteria at the hearing
will not be accepted unless the proposed criteria were filed at
the Salem office of the Department of Land Conservation and
Development at least 10 days prior to the commencement of the
hearing;
(e) States that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing; and
(f) States that written notice of adoption of an order
establishing criteria will be provided only to persons who
provide oral or written testimony at the hearing and who also
provide, in writing, a request for written notice and a mailing
address to which notice should be sent.
(5) The commission shall allow for the submission of oral and
written testimony at the hearing, subject to such hearing
procedures as the commission may deem necessary. The commission
may exclude irrelevant, immaterial or unduly repetitious
testimony. The commission shall not allow the submission of
proposed criteria at the hearing unless the proposed criteria
were filed at the Salem office of the Department of Land
Conservation and Development at least 10 days prior to the
commencement of the hearing. Minutes of the hearing shall be
taken.
(6) The commission shall close the hearing and adopt an order
establishing the criteria within 14 days following commencement
of the hearing. In establishing the criteria, the commission
shall consider those statewide planning goals and those plan
policies that are relevant to decisions regarding the light rail
route, stations, lots and maintenance facilities, and the highway
improvements, and their locations. The commission's order shall
include a brief statement explaining how the criteria established
reasonably reflect those statewide land use planning goals and
those plan policies that are relevant to decisions regarding the
light rail route, stations, lots and maintenance facilities, and
the highway improvements, and their locations.
(7) Following establishment of the criteria, the commission as
soon as reasonably possible shall:
(a) Notify in writing the council, Tri-Met, the Department of
Transportation, the affected local governments and any person who
provided oral or written testimony at the hearing and who also
provided, in writing, a request for written notice and a mailing
address to which notice should be sent of its order and the
criteria it has established; and
(b) Make copies of its order and the criteria available for
public inspection at the Salem and Portland offices of the
Department of Land Conservation and Development.
(8) The commission shall adopt the order described in
subsection (6) of this section within 90 days following the
effective date of sections 19 to 31 of this Act. + }
**************************** SECTION 24. { + (1)
Notwithstanding ORS 183.400, 183.482, 183.484, 197.825 or any
other law or regulation, exclusive jurisdiction to review a Land
Conservation and Development Commission order establishing
criteria under section 23 of this Act is conferred on the court.
(2) Proceedings for review of the commission's order shall be
instituted when any person who is adversely affected files a
notice of intent to appeal with the administrator that meets the
following requirements:
(a) The notice shall be filed within seven days following
written notice of the commission's order.
(b) The notice shall state the nature of the commission's
order, in what manner the commission rejected the position raised
by the petitioner before the commission and, with supporting
affidavit, facts showing how the petitioner is adversely
affected. The petitioner shall be considered adversely affected
if:
(A) The petitioner provided oral or written testimony at the
commission's hearing; and
(B) The petitioner proposed criteria, as provided in section 23
(5) of this Act, that the commission rejected in its order, or
the petitioner, in the petitioner's testimony at the hearing,
opposed the criteria which the commission selected in its order.
(c) The petitioner shall deliver a copy of the notice of intent
to appeal by personal service to the commission at the Salem
office of the Department of Land Conservation and Development, at
the Salem office of the Department of Transportation, to the
Attorney General, to the council at the office of Metro's
executive officer, to Tri-Met at the office of Tri-Met's general
manager and to the affected local governments.
(3) Within seven days following filing of the notice of intent
to appeal, the commission shall personally deliver to the court a
certified copy of the record of its criteria proceedings. The
record shall include only:
(a) The commission's order establishing the criteria;
(b) Any written report received by the commission from the
Department of Land Conservation and Development at the hearing;
(c) Proposed criteria submitted to the commission as provided
in section 23 (5) of this Act and written testimony submitted to
the commission at the hearing;
(d) Minutes of the public hearing before the commission;
(e) The published notice of public hearing; and
(f) Proof of mailing to persons entitled to notice of the
commission's order.
(4) Within 14 days following the filing of the notice of intent
to appeal, the petitioner shall file the petitioner's brief. The
petitioner shall personally deliver the brief to the
administrator, to the Attorney General, to the council at the
office of Metro's executive officer, to Tri-Met at the office of
Tri-Met's general manager and to the affected local governments.
The brief shall comply with the specifications for opening briefs
set forth in the rules of appellate procedure.
(5) Within 28 days following the filing of the notice of intent
to appeal, the commission, Metro, Tri-Met, the Department of
Transportation and any affected local government, unless Metro,
Tri-Met, the Department of Transportation or an affected local
government is the petitioner, may file an answering brief that
shall comply with the specifications for answering briefs set
forth in the rules of appellate procedure.
(6) On review, the court may reverse or remand the commission's
order only if it finds that the order:
(a) Violates constitutional provisions;
(b) Exceeds the statutory authority of the commission; or
(c) Was adopted by the commission without substantial
compliance with the procedures in section 23 of this Act in a
manner that prejudiced the substantial rights of the petitioner.
Failure of the commission to notify a person entitled to written
notice under section 23 (7)(a) of this Act shall not be a ground
for reversal or remand if evidence of mailing to that person is
provided. The court shall not substitute its judgment for that of
the commission as to any issue of fact or as to any issue within
the commission's discretion.
(7) The court shall not stay any action by the council under
sections 19 to 31 of this Act pending the court's review under
this section.
(8) The court may decide the matter on the briefs or it may
hold oral arguments. The court shall decide the matter at its
earliest practicable convenience, consistent with sections 19 to
31 of this Act. + }
**************************** SECTION 25. { + The council shall
apply the criteria established by the commission in making
decisions in a land use final order on the light rail route,
stations, lots and maintenance facilities, and the highway
improvements, including their locations. The provisions in ORS
chapters 183, 192, 195, 197, 215, 227, 267 and 268 and in any
other law or regulation shall not apply to proceedings of the
council under sections 19 to 31 of this Act. The following
procedures shall govern the council's proceedings in adopting a
land use final order:
(1)(a) The council shall publish notice of a public hearing on
the light rail route, stations, lots and maintenance facilities,
and the highway improvements, including their locations, as to
which decisions will be made in the land use final order of the
council in a newspaper of general circulation within Metro's
jurisdictional area at least 14 days prior to the hearing.
(b) The notice shall:
(A) Identify the general subject matter of the hearing and the
street address where a staff report and the criteria may be
found;
(B) Identify the date, time and place of the hearing;
(C) State that appeals from decisions in a land use final order
must be filed within 14 days following the date the land use
final order is reduced to writing and bears the necessary
signatures;
(D) State that failure by a person to raise an issue at the
hearing in person or in writing, or failure to provide sufficient
specificity to afford the council an opportunity to respond to
the issue raised, shall preclude appeal by that person to the
board based on that issue;
(E) State that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing; and
(F) State that written notice of adoption of the land use final
order will be provided only to persons who provide oral or
written testimony at the hearing and who also provide, in
writing, a request for written notice and a mailing address to
which notice should be sent.
(c) The council also shall provide such other notice as is, in
its judgment, reasonably calculated to give notice to persons who
may be substantially affected by its decision. No other form of
notice is required.
(2) A copy of the staff report shall be available for public
inspection at least seven days prior to the public hearing. The
staff report shall set forth and address compliance with the
criteria. The staff report also shall include a description of
the proposed boundaries within which the light rail route,
stations, lots and maintenance facilities, and the highway
improvements shall be located, as recommended by Tri-Met under
section 22 (1) of this Act. The staff report may be amended as
the staff considers necessary or desirable prior to the public
hearing without further notice.
(3) The council shall hold a public hearing on the light rail
route, stations, lots and maintenance facilities, and the highway
improvements, including their locations, as to which decisions
will be made in the land use final order. At the commencement of
the hearing, a statement shall be made to those in attendance
that:
(a) Lists the criteria or directs those present to a place at
the hearing location where any person may obtain a list of the
criteria at no cost;
(b) Lists generally the light rail route, stations, lots and
maintenance facilities, and the highway improvements, including
their locations, as to which decisions will be made in the land
use final order;
(c) States that testimony shall be directed towards the
application of the criteria to the light rail route, stations,
lots and maintenance facilities, and the highway improvements,
including their locations, as to which decisions will be made in
the land use final order;
(d) States that appeals from decisions in a land use final
order on the light rail route, stations, lots and maintenance
facilities, and the highway improvements, including their
locations, must be filed within 14 days following the date the
land use final order is reduced to writing and bears the
necessary signatures;
(e) States that failure by a person to raise an issue at the
hearing, in person or in writing, or failure to provide
sufficient specificity to afford the council an opportunity to
respond to the issue raised, shall preclude appeal by that person
to the board based on that issue;
(f) States that written notice of adoption of the land use
final order will be provided only to persons who have provided
oral or written testimony at the hearing and who also have
provided, in writing, a request for written notice and a mailing
address to which notice should be sent; and
(g) States that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing.
(4) The council shall allow for the submission of oral and
written testimony at the hearing, subject to such hearing
procedures as the council may deem necessary or appropriate for
the adoption of land use final orders. The council may exclude
irrelevant, immaterial or unduly repetitious testimony.
(5) The council may take official notice at the hearing of any
matter identified in ORS 40.065 and 40.090 or as authorized by
the resolution, if any, of the council establishing hearing
procedures for the adoption of land use final orders.
(6) The council shall close the hearing and shall adopt by
resolution a land use final order. The council may continue the
matter as provided in section 22 (1) of this Act or as it
otherwise considers necessary for the purpose of land use final
order adoption.
(7) The land use final order shall be accompanied by written
findings demonstrating how the decisions on the light rail route,
stations, lots and maintenance facilities, and the highway
improvements, including their locations, comply with the
criteria.
(8) Following adoption of a land use final order, the council
as soon as reasonably possible shall:
(a) Provide media notice of the adoption; and
(b) Provide written notice of the adoption to persons who:
(A) Provided oral or written testimony at the hearing; and
(B) Provided at the hearing, in writing, a request for written
notice and a mailing address to which written notice should be
sent. Persons whose names appear on petitions provided at the
hearing shall not be considered to have provided oral or written
testimony at the hearing. The written notice of adoption provided
hereunder shall indicate the date of written adoption and
signature of the land use final order, identify the place at and
time during which a copy of the land use final order may be
obtained and state that appeals from decisions in the land use
final order must be filed within 14 days following written
adoption and signature of the land use final order.
(9) The procedures established by this section establish the
only opportunities that the council must provide for interested
persons to participate in the proceedings of the council in
adopting a land use final order. Subject to the other provisions
established by this section, the council by resolution may
establish additional procedures to govern its proceedings in
adopting a land use final order. + }
**************************** SECTION 26. { + (1) The state,
and all affected counties, cities, special districts and
political subdivisions shall:
(a) Amend their comprehensive or functional plans, including
public facility plans and transportation system plans and their
land use regulations, to the extent necessary to make them
consistent with a land use final order; and
(b) Issue the appropriate development approvals, permits,
licenses and certificates necessary for the construction of the
project or project extension consistent with a land use final
order. Development approvals, permits, licenses and certificates
may be subject to reasonable and necessary conditions of
approval, but may not, by themselves or cumulatively, prevent
implementation of a land use final order.
(2) Notwithstanding the provisions of subsection (1)(a) of this
section or any other provision of state or local law, a land use
final order shall be fully effective upon adoption.
(3) For purposes of subsection (1)(b) of this section, an
approval condition shall be considered not reasonable or
necessary, or shall be considered to prevent implementation of a
land use final order, if:
(a) The measure has been deleted or deferred from the project
or project extension in the Full Funding Grant Agreement; or
(b) The Steering Committee determines in accordance with the
provisions of the intergovernmental agreement described in
section 20 (21) of this Act that:
(A) There are not sufficient federal, state and local funds
within the project or project extension budget to pay for the
measure;
(B) The measure will significantly delay the completion or
otherwise prevent the timely implementation of the project or
project extension; or
(C) The measure will significantly negatively impact the
operations of the project or project extension.
(4) Applications for development approvals under subsection
(1)(b) of this section shall be treated as land use decisions and
not as limited land use decisions.
(5) Plan and land use regulation amendments, to the extent
required under subsection (1)(a) of this section shall not be
reviewable by any court or agency.
(6) Development approvals and permit, license and certificate
decisions under subsection (1)(b) of this section may be the
subject of administrative and judicial review as provided by law.
However, determinations of the Steering Committee made pursuant
to subsection (3) of this section shall not be reviewable and
shall control in the event of conflict.
(7) Each state agency, special district or affected local
government that issues a development approval, permit, license or
certificate for the project or project extension shall continue
to exercise enforcement authority over the development approval,
permit, license or certificate. + }
**************************** SECTION 27. { + (1)
Notwithstanding ORS 183.482, 183.484, 197.825 or any other law or
regulation, exclusive jurisdiction for review of a land use final
order relating to the project or project extension is conferred
on the Land Use Board of Appeals and the court as provided by
sections 19 to 31 of this Act.
(2) Review of a land use final order relating to the project or
project extension shall be initiated within 14 days following the
date that the land use final order is reduced to writing and
bears the necessary signatures by personal delivery to the board,
to the administrator and to Metro at the office of Metro's
executive officer of a notice of intent to appeal as required by
this section.
(3) A person may petition for review of a land use final order
relating to the project or project extension if the person:
(a) Personally delivered a notice of intent to appeal the land
use final order as provided for in subsection (2) of this
section; and
(b) Appeared before the council orally or in writing at the
land use final order hearing on the project or project extension.
(4) A person's failure to raise an issue at the land use final
order hearing, in person or in writing, or failure to provide
sufficient specificity to afford the council an opportunity to
respond to the issue raised, shall preclude that person from
petitioning for review based on that issue.
(5) A notice of intent to appeal shall:
(a) Contain an affidavit stating the facts that support the
petitioner's standing as provided in subsection (3) of this
section;
(b) State with particularity the grounds on which the
petitioner assigns error; and
(c) State the residence or business address of the petitioner
to which documents may be delivered, and the telephone and
facsimile number or numbers where the petitioner may be reached
during normal business hours.
(6) Metro shall personally deliver to the board and to the
administrator a certified copy of the record of the council's
land use final order proceedings within seven days following the
filing and delivery of a notice of intent to appeal as provided
in subsection (2) of this section. Metro shall make copies of the
record available to the public for the actual costs of copying.
The record shall consist of the land use final order, the written
findings accompanying the land use final order, the notice of the
land use final order hearing, any audio cassette recordings of
the hearing, a statement of matters that were officially noticed
at the hearing, the staff report and any amendments thereto and
documents accepted into the record at the hearing. Metro shall
make a copy of the record available for inspection by petitioners
and shall provide a copy of the record to any petitioner upon
request for the actual costs of copying.
(7) Any objection to the record shall be personally delivered
or transmitted by facsimile to the board, to the administrator
and to Metro at the office of Metro's executive officer within
four days following delivery of the record to the board. Within
four days thereafter, responses of Metro to objections to the
record shall be personally delivered or faxed to the board, to
the administrator and to the residences or business addresses of
the persons objecting. Thereafter, the board shall rule
expeditiously on objections. The board's ruling on objections
shall not affect the briefing schedule or decision timelines set
forth in sections 19 to 31 of this Act.
(8) No stays or continuances of proceedings shall be permitted.
No person may intervene in and thereby be made a party to the
review proceedings, except that Tri-Met, the Department of
Transportation and the affected local governments shall have
standing to and may intervene on their own behalf.
(9) Within 14 days following the filing of the notice of intent
to appeal, a petitioner shall personally deliver a petition for
review and brief to the board, to the administrator, to Metro at
the office of Metro's executive officer and to Tri-Met, the
Department of Transportation or an affected local government if
it has filed a motion to intervene in the review proceeding. The
petition for review and brief shall set out in detail each
assignment of error and shall identify those portions of the
record in which the petitioner raised in the land use final order
hearing the issues as to which error is assigned. The petition
for review and brief shall comply with the specifications for
opening briefs set forth in the rules of appellate procedure.
(10) Within 28 days following the filing of the notice of
intent to appeal, Metro and any intervening party shall
personally deliver to the board, to the administrator and to any
petitioner at the petitioner's residence or business address
their briefs in response to a petition for review and brief.
Responding briefs shall comply with the specifications for
answering briefs set forth in the rules of appellate procedure.
(11) Within 35 days following the filing of the notice of
intent to appeal, the board shall hear oral argument in the
manner provided for in its administrative rules. The board shall
issue a final opinion within 28 days following oral argument. The
board's final opinion shall affirm or remand the council's land
use final order, stating the reasons for the decision.
(12)(a) The board shall remand the land use final order only if
it finds that the council:
(A) Improperly construed the criteria;
(B) Exceeded its statutory or constitutional authority; or
(C) Made a decision in the land use final order on the light
rail route, on stations, lots or maintenance facilities, or the
highway improvements, including their locations, that was not
supported by substantial evidence in the whole record. The
existence in the whole record of substantial evidence supporting
a different decision on the light rail route, stations, lots or
maintenance facilities, or the highway improvements, including
their locations, shall not be a ground for remand if there also
was substantial evidence in the whole record supporting the land
use final order.
(b) Failure to comply with statutory procedures, including
notice requirements, shall not be grounds for invalidating a land
use final order.
(c) The board shall affirm all portions of the land use final
order that it does not remand.
(13) Upon issuance of its final opinion, the board shall file
the opinion with the administrator and transmit copies to the
parties. The board also shall inform the parties of the filing of
the final opinion by telephone or facsimile. Within seven days
following issuance of its final order, the board shall file with
the administrator a copy of the record of the board.
(14) Neither the board nor the court shall substitute its
judgment for that of the council as to any issue of fact or any
issue within the discretion of the council. + }
**************************** SECTION 28. { + (1) Any party
appearing before the Land Use Board of Appeals under section 27
of this Act and objecting to the board's final opinion may
petition the court for review of the final opinion as provided
for in this section. The petition shall be filed with the
administrator and served on the board and all parties within 14
days following the board's issuance of its final opinion in the
manner provided for filing and service in the rules of appellate
procedure. The petition shall be in the form of a brief and shall
state, with particularity and with supporting authority, each
reason asserted for reversal or modification of the board's
decision. Insofar as practicable, the petition shall comply with
the specifications for petitions for review in the rules of
appellate procedure.
(2) If a petition for review has been filed, then within 14
days thereafter, any other party appearing before the board may,
but need not, file a response to the petition for review. In the
absence of a response, the party's brief before the board shall
be considered as the response. A party seeking to respond to the
petition for review shall file its response with the
administrator and serve it on the board and all parties in the
manner provided for filing and service in the rules of appellate
procedure. The response shall be in the form of a brief and shall
comply with the specifications for responses to petitions for
review in the rules of appellate procedure.
(3) The court may decide the matter on the briefs, or it may
hold oral argument. The court may adopt the board's final opinion
as its own, affirm without opinion or issue a separate opinion.
The court shall decide the matter at its earliest practicable
convenience, consistent with sections 19 to 31 of this Act.
(4) The court shall affirm or remand the land use final order,
in whole or in part. The court shall affirm all parts of the
final order that it does not remand. The court shall base its
decision on the standards for review set out in section 27 (12)
of this Act. If the court remands, the council shall respond as
to those matters remanded by adopting by resolution a land use
final order on remand. The provisions of section 25 of this Act
shall govern the proceedings of the council in adopting a land
use final order on remand. Upon adoption of a land use final
order on remand, Metro shall immediately file with the
administrator the land use final order on remand and the record
of the council. Metro shall personally deliver copies of its
land use final order on remand to the parties before the court
and shall inform the parties of the filing of the final order on
remand by telephone or facsimile.
(5) If the court remands, the court shall retain jurisdiction
over the matters remanded. Within 14 days following adoption of a
land use final order on remand, the parties before the court may
submit memoranda to the court with respect thereto and shall
personally deliver copies of the memoranda to other parties
before the court. The court may limit the length of such
memoranda. The court's decision on the land use final order on
remand shall be based on the standards set forth in section 27
(12) of this Act. + }
**************************** SECTION 29. { + (1) If, as a
condition of executing a Full Funding Grant Agreement, the
Federal Government requires the deletion or deferral of portions
of the approved project or project extension, or the deletion or
deferral of measures expressly provided for in a Final Statement,
a determination of which improvements or measures to delete or
defer shall be made in accordance with the provisions of the
intergovernmental agreement described in section 20 (21) of this
Act.
(2) If, subsequent to execution of a Full Funding Grant
Agreement, additional deletions or deferrals are required due to
insufficient funds in the budgets for the project or project
extension, a determination of which improvements or measures to
delete or defer shall be made in accordance with the provisions
of the intergovernmental agreement described in section 20 (21)
of this Act. + }
**************************** SECTION 30. { + (1) Upon
execution of a Full Funding Grant Agreement, the council shall
amend the land use final order to be consistent with the terms
and conditions of the Full Funding Grant Agreement.
(2) The following amendments to a land use final order shall be
considered technical and environmental and shall not be subject
to judicial or administrative review:
(a) Amendments resulting from adoption of a Final Statement;
(b) Amendments required to ensure consistency with an executed
Full Funding Grant Agreement; and
(c) Amendments to defer or delete a portion of the project or
project extension as provided for in section 22 (2) of this
Act. + }
**************************** SECTION 31. { + No action taken
by the commission, the council, the board or the court under
sections 19 to 31 of this Act shall be invalid due to a failure
to meet a timeline established by sections 19 to 31 of this
Act. + }
**************************** SECTION 31a. { + The Legislative
Assembly of the State of Oregon hereby adopts and ratifies the
Columbia River Light Rail Transit Compact set forth in section 33
of this Act, and the provisions of the compact are hereby
declared to be the law of this state upon such compact becoming
effective as provided in Article XX of the compact. + }
**************************** SECTION 31b. { + The provisions
of the Columbia River Light Rail Transit Compact are as
follows: + }
_________________________________________________________________
{ +
ARTICLE I + }
{ +
Columbia River Light Rail Transit Authority Established
The States of Oregon and Washington establish by way of this
interstate compact an independent, separate regional authority,
which is an instrumentality of both of the signatory parties
hereto, known as Columbia River Light Rail Transit Authority
(hereinafter referred to as the 'Authority'). The Authority shall
be a body corporate and politic, and shall have only those powers
and duties granted by this compact and such additional powers as
may hereafter be conferred upon the Authority by the acts of both
signatories. + }
{ +
ARTICLE II + }
{ +
Definitions
As used in this compact, the following words and terms shall
have the following meanings, unless the context clearly requires
a different meaning:
(1) 'C-TRAN' means the Clark County Public Transportation
Benefit Authority based in Clark County, Washington, or any
successor agency or authority.
(2) 'Major feeder system' means all bus or other transit
services provided by C-TRAN or Tri-Met that are or are planned to
be connected with the South North light rail transit line, to
accommodate the transfer of passengers to or from the light rail
line and to transport light rail passengers between the light
rail station and their trip origin or trip destination.
(3) 'Signatory' or 'signatory state' means the State of Oregon
or the State of Washington.
(4) 'South North light rail transit line' means the light rail
line directly connecting portions of Clackamas County, Oregon,
Portland, Oregon and Clark County, Washington as may be extended
from time to time, including any segment thereof, and also
including, without limitation, all light rail vehicles,
rights-of-way, trackage, electrification, stations, park-and-ride
facilities, maintenance facilities, tunnels, bridges and
equipment, fixtures, buildings and structures incidental to or
required in connection with the performance of light rail service
between portions of Clackamas County, Oregon, Portland, Oregon
and Clark County, Washington. The South North light rail transit
line shall include a system that comprises any future light rail
lines and transit facilities that cross the jurisdictional lines
of the signatory states.
(5) 'Transit facilities' means all real and personal property
necessary or useful in rendering transit service by means of
rail, bus, water and any other mode of travel including, without
limitation, tracks, rights of way, bridges, tunnels, subways,
rolling stock for rail, motor vehicles, stations, terminals,
areas for parking and all equipment, fixtures, buildings and
structures and services incidental to or required in connection
with the performance of transit service.
(6) 'Transit service' means the transportation of persons and
their packages and baggage by C-TRAN, Tri-Met or the Authority by
means of transit facilities.
(7) 'Tri-Met' means the Tri-County Metropolitan Transportation
District based in Portland, Oregon, or any successor agency or
authority. + }
{ +
ARTICLE III + }
{ +
Purpose and Functions + }
{ + The purpose of the Authority is:
(1) To generally cause the South North light rail transit line
to be designed, engineered, financed, constructed and developed
consistently with the applicable regional transportation and land
use plans and the locally preferred alternative selected pursuant
to regulations of the Federal Transit Administration or the
regulations of any successor federal agency or authority;
(2) To facilitate the operation and maintenance of the South
North light rail transit line;
(3) To coordinate C-TRAN and Tri-Met activities to implement
and operate the major feeder system that serves the South North
light rail transit line;
(4) To coordinate C-TRAN and Tri-Met activities to implement
and operate buses or other transit facilities that serve bi-state
trips; and
(5) To serve only such other regional transit purposes and to
perform such other regional transit functions as the signatories
may authorize. + }
{ +
ARTICLE IV + }
{ +
Powers + }
{ + The Authority has the power to:
(1) Sue and be sued, plead and be impleaded in all actions,
suits or proceedings, brought by or against it.
(2) Adopt suitable rules and regulations not inconsistent with
this compact, the Constitution and laws of the United States or
the constitutions and laws of the signatories. The Authority may
adopt rules and regulations that:
(a) Govern its activities;
(b) Add specificity to its powers and duties;
(c) Interpret legislation that is applicable to the Authority;
and
(d) Resolve inconsistencies resulting from the application of
the laws and regulations of both signatories.
(3) Acquire, maintain, control, and convey easements, licenses,
and other limited property rights for the purpose of constructing
the South North light rail transit line. However, the Authority
shall not have the power to own real property.
(4) Receive and accept federal, state, regional or local
payments, appropriations, grants, gifts, loans, advances, credit
enhancements, credit guarantees and other funds, properties and
services as may be transferred or made available to the Authority
by either signatory, any political subdivision or agency thereof,
by the United States, or by any agency thereof, or by any other
public or private corporation or individual. Any funds received
by the Authority from any source may be commingled and expended
to carry out the purposes and functions of the Authority without
regard to any law of the signatories that requires expenditure of
appropriated funds within the fiscal period for which the
appropriation is made.
(5) Disburse funds for its lawful activities and to make grants
or loans to C-TRAN or Tri-Met.
(6) Enter into agreements with:
(a) C-TRAN or Tri-Met to provide planning, engineering, design,
administration, construction management or other services needed
for the development of the South North light rail transit line;
(b) C-TRAN, Tri-Met or, except with regard to matters specified
in paragraph (a) of this subsection, private entities for the
construction of the South North light rail transit line;
(c) C-TRAN, Tri-Met or, except with regard to matters specified
in paragraph (a) of this subsection, private entities for the
construction of bridges over or tunnels under navigable streams
and bodies of water to be owned individually or jointly by the
States of Oregon and Washington;
(d) C-TRAN or Tri-Met for the management, operation, and
maintenance of the South North light rail transit line;
(e) C-TRAN or Tri-Met providing for acquisition by C-TRAN,
Tri-Met or other public entities of the property rights needed
for the South North light rail transit line and related
activities;
(f) C-TRAN, Tri-Met or private entities to purchase, lease or
otherwise acquire the materials, equipment and vehicles needed
for the construction and implementation of the South North light
rail transit line; and
(g) C-TRAN or Tri-Met to implement the decisions of the
Authority.
(7) Delegate any of its powers and duties to any political
subdivision or governmental agency.
(8) Resolve any disputes between C-TRAN and Tri-Met over the
operation of the South North light rail transit line or the major
feeder system. However, the Authority shall not have the power to
require from C-TRAN and Tri-Met capital improvements to the South
North light rail transit line or the major feeder system.
(9) To the extent allowed by law, encourage, assist and
facilitate public and private development along the South North
light rail transit line.
(10) Perform all other necessary and incidental functions.
(11) Exercise such additional powers as shall be conferred on
it by Act of the federal Congress or jointly by the
signatories. + }
{ +
ARTICLE V + }
{ +
Board Membership + }
{ + The Authority shall be governed by a board of six
directors consisting of three members of the C-TRAN governing
body and three members of the Tri-Met governing body. Directors
representing C-TRAN and Tri-Met shall be appointed by their
respective governing bodies. + }
{ +
ARTICLE VI + }
{ +
Terms of Office + }
{ + Board members shall serve terms of four years, unless
terminated earlier by the governing body of the appointing
transit agency. + }
{ +
ARTICLE VII + }
{ +
Compensation of Directors + }
{ + The directors shall serve without compensation. The
directors may be reimbursed for the necessary expenses incurred
in the performance of their duties pursuant to adopted policies
of the transit agency that appointed them. + }
{ +
ARTICLE VIII + }
{ +
Organization and Procedure + }
{ + The board of directors of the Authority shall by rule
provide for its own organization and procedure. It shall
biennially elect a chairperson from among its directors who shall
serve a term of two years subject to earlier removal by a vote of
four directors. Meetings of the board shall be held as
frequently as the board deems that the proper performance of its
duties requires, and the board shall keep minutes of its
meetings. The board shall adopt rules and regulations governing
its meetings, minutes and transactions. + }
{ +
ARTICLE IX + }
{ +
Staff + }
{ + The Authority shall not have the power to hire
administrative staff. Administrative staff support shall be
provided by C-TRAN and Tri-Met by intergovernmental
agreement. + }
{ +
ARTICLE X + }
{ +
Quorum and Actions by the Board + }
{ + Four directors shall constitute a quorum. No action by
the board shall be effective unless there is an affirmative vote
of a majority of those present. + }
{ +
ARTICLE XI + }
{ +
Conflicts of Interest + }
{ + (1) No director shall:
(a) Be financially interested, either directly or indirectly,
in any contract, sale, purchase, lease or transfer of real or
personal property to which the board of directors of the
Authority is party;
(b) In connection with services performed within the scope of
official duties, solicit or accept money or any other thing of
value in addition to the expenses paid to the director by the
Authority; or
(c) Offer money or any other thing of value for or in
consideration of obtaining an appointment, promotion or privilege
in employment with the Authority.
(2) Any director who willfully violates any provision of this
section shall, in the discretion of the board, forfeit the office
of the director. Any contract or agreement made in contravention
of this section may be declared void by the board. Nothing in
this section shall be considered to abrogate or limit the
applicability of any federal or state law that may be violated by
any action proscribed by this section. + }
{ +
ARTICLE XII + }
{ +
Financial Plans and Reports + }
{ + The board of directors of the authority shall make and
publish, as necessary, financial plans and detailed annual
budgets for the construction, operation and maintenance of the
South North light rail transit line, including a Sources of Funds
plan. The board may also prepare, publish and distribute such
other public reports and informational materials as it may deem
necessary or desirable. + }
{ +
ARTICLE XIII + }
{ +
Operation and Maintenance Costs + }
{ + (1) The Authority shall annually determine the amount of
the South North light rail transit line's operating and
maintenance costs and the Authority's administrative costs that
shall be contributed to the Authority by C-TRAN and Tri-Met. The
amount to be collected from C-TRAN and Tri-Met shall be based
upon all relevant factors, including but not limited to,
ridership origination and destination and relative usage of the
South North light rail transit line.
(2) After establishing the amount to be allocated to C-TRAN and
Tri-Met, the Authority shall levy an annual assessment on C-TRAN
and Tri-Met for the purpose of financing the management,
administration, operation, maintenance, repair, expansion, and
related activities for facilities, equipment, systems or
improvements included in the South North light rail transit
line. + }
{ +
ARTICLE XIV + }
{ +
Capital Contributions + }
{ + (1) The Authority shall enter into a financing plan
agreement with C-TRAN, Tri-Met and any private entities providing
construction financing for the South North light rail transit
line or any segment thereof, which agreement shall establish a
financing plan for the construction phases of the South North
light rail transit line, including each segment thereof. The
financing plan agreement shall specify the obligations of each
party to pay a portion of the construction costs of the South
North light rail transit line, including the estimated total
construction costs, the percentage share of each party of the
total construction costs, the estimated schedule for the payment
of each party's percentage share and the planned source of funds
from which each party intends to fund its share of the total
construction costs. The financing plan agreement, among other
matters, may:
(a) Separately specify each party's obligation for each segment
of the South North light rail transit line;
(b) Limit the liability of C-TRAN and Tri-Met to particular
funding sources identified in the financing plan agreement;
(c) Make provisions for any interim financing, credit
enhancements or guarantees to be provided by C-TRAN, Tri-Met or
any other parties in order to supply the funds needed to
construct the South North light rail transit line in accordance
with the construction schedule established in the financing plan
agreement; or
(d) Provide that all or a portion of one party's obligations
shall be satisfied by making payments to another party to the
agreement in order to pay or reimburse the construction or
financing costs incurred by the payee.
(2) The financing plan agreement shall provide that C-TRAN and
Tri-Met shall each retain full power and authority to pledge
their respective sources of funds as security for any bonds,
notes or other obligations issued thereby, and for any credit
enhancements obtained in connection with any such bonds, notes or
other obligations, in order to provide interim or permanent
financing for the construction costs of the South North light
rail transit line. The financing plan agreement shall not in any
way or to any extent create a pledge of or a lien or encumbrance
on any funds of C-TRAN or Tri-Met.
(3) C-TRAN and Tri-Met singly or together shall enter into one
or more Full Funding Grant Agreements with the Federal Transit
Administration, or its successor, to establish the federal
funding commitment for the South North light rail transit line,
or any segments thereof, and the terms and conditions for
obtaining the federal funds. The Authority shall cause the South
North light rail transit line, and each segment thereof, to be
designed, engineered and constructed in a manner consistent with
the applicable Full Funding Grant Agreement, applicable state
laws and the terms and conditions of the financing plan
agreement.
(4) The financing plan agreement may be amended from time to
time by the Authority, C-TRAN and Tri-Met to the extent such
parties determine any amendment is necessary or beneficial. Any
such amendment shall require the consent of any private entity
that is a party to the financing plan agreement only if and to
the extent such consent is required under the terms of the
financing plan agreement. + }
{ +
ARTICLE XV + }
{ +
Indemnification + }
{ + (1) C-TRAN shall hold Tri-Met and the Authority harmless
and indemnify Tri-Met and the Authority for any and all
liability, settlements, losses, costs, damages and expenses in
connection with any action, suit or claim resulting from C-TRAN's
negligent errors, omissions or acts in carrying out the purposes
of this compact.
(2) Tri-Met shall hold C-TRAN and the Authority harmless and
indemnify C-TRAN and the Authority for any and all liability,
settlements, losses, costs, damages and expenses in connection
with any action, suit or claim resulting from Tri-Met's negligent
errors, omissions or acts in carrying out the purposes of this
compact.
(3) The Authority shall hold C-TRAN and Tri-Met harmless and
indemnify C-TRAN and Tri-Met for any and all liability,
settlements, losses, costs, damages and expenses in connection
with any action, suit or claim resulting from the Authority's
negligent errors, omissions or acts in carrying out the purposes
of this compact. + }
{ +
ARTICLE XVI + }
{ +
Fares + }
{ + Fares will be established and collected by C-TRAN and
Tri-Met for trips originating within their respective districts.
Payment of those fares will be honored by the Authority as
payment for passage on the South North light rail transit
line. + }
{ +
ARTICLE XVII + }
{ +
Insurance + }
{ + The board of directors of the Authority may self-insure
or purchase insurance and pay the premiums therefor against loss
or damage, against liability for injury to persons or property
and against loss of revenue from any cause whatsoever. Such
insurance coverage shall be in such form and amount as the board
may determine, subject to the requirements of any agreement or
other obligations of the Authority. + }
{ +
ARTICLE XVIII + }
{ +
Tax Exemption + }
{ + (1) It is hereby declared that the creation of the
Authority and the carrying out of the purposes of the Authority
is in all respects for the benefit of all people of the signatory
states. It is further declared that the Authority and the board
of directors are performing a public purpose and an essential
government function, including, without limitation, proprietary,
governmental and other functions, in the exercise of the powers
conferred by this compact. Therefore, the Authority and the board
of directors shall not be required to pay taxes or assessments
upon any of the property under its jurisdiction, control,
possession or supervision or upon its activities in the operation
and maintenance of the South North light rail transit line or
upon any revenues therefrom.
(2) When C-TRAN or Tri-Met, acting under an agreement with the
Authority pursuant to Article IV of this compact, possesses or
controls property or conducts activities in the operation and
maintenance of the South North light rail transit line:
(a) C-TRAN and Tri-Met shall remain subject to the tax laws of
their respective states with respect to such property located, or
activities conducted, within their respective states;
(b) C-TRAN shall be subject to the tax laws of the State of
Oregon with respect to such property located, or activities
conducted, in Oregon only to the extent Tri-Met would be subject
to those laws if Tri-Met rather than C-TRAN possessed or
controlled the property or conducted the activity; and
(c) Tri-Met shall be subject to the tax laws of the State of
Washington with respect to such property located, or activities
conducted, in Washington only to the extent C-TRAN would be
subject to those laws if C-TRAN rather than Tri-Met possessed or
controlled the property or conducted the activity. + }
{ +
ARTICLE XIX + }
{ +
Applicable Laws + }
{ + The Authority shall be both subject to and exempt from
certain laws of the States of Oregon and Washington as concurred
in by the legislature of each state, respectively. Where the laws
of the States of Oregon and Washington are not made inapplicable
to the Authority by legislative action, the laws of the
respective states will continue to apply to activities occurring
within each state's geographical boundaries. However, the
following laws shall apply generally to the Authority regardless
of the state in which the activities governed by the laws occur.
The following laws shall govern exclusively the matters they
address, and the provisions of corresponding or analogous laws of
either signatory shall have no effect:
(1) Federal Administrative Procedures Act (5 U.S.C. 500 et
seq.), as amended from time to time, or any successor
legislation;
(2) Federal Miller Act (40 U.S.C. 270a et seq.), as amended
from time to time, or any successor legislation;
(3) Federal prevailing wage law (40 U.S.C. 276a et seq.), as
amended from time to time, or any successor legislation;
(4) Federal rules on disadvantaged business enterprises (49
C.F.R. Part 23), as amended from time to time, or any successor
legislation;
(5) Federal competitive bidding laws (41 U.S.C. 251 et seq.),
as amended from time to time, or any successor legislation; and
(6) ORS 30.260 to 30.300 (1993 Edition). + }
{ +
ARTICLE XX + }
{ +
Jurisdiction of Courts + }
{ + (1) The United States District Courts shall have original
jurisdiction, concurrent with the courts of Oregon and
Washington, of all actions brought by or against the Authority
and shall enforce subpoenas issued under this Compact. Any such
action initiated in a state court shall be removable to the
appropriate United States District Court in the manner provided
by the Act of June 25, 1948, as amended (28 U.S.C. Ý1446).
(2) All laws or parts of laws of the United States and of the
signatory states that are inconsistent with the provisions of
this compact are hereby amended for the purpose of this compact
to the extent necessary to eliminate such inconsistencies and to
carry out the provisions of this compact. + }
{ +
ARTICLE XXI + }
{ +
Severability + }
{ + If any provision of this compact, or its application to
any person or circumstance, is held to be invalid, all other
provisions of this compact, and the application of all of its
provisions to all other persons and circumstances, shall remain
valid and to this end, the provisions of this compact are
severable. + }
{ +
ARTICLE XXII + }
{ +
Effective Date + }
{ + This compact shall take effect, and the board of the
Authority may exercise its authority pursuant to the compact when
it has been ratified by the federal Congress and adopted by both
signatories, and the six directors of the board have been
appointed. The effective date of this compact shall be the date
of the establishment of the board of directors of the
Authority. + }
_________________________________________________________________
**************************** SECTION 31c. { + (1) A mass
transit district established under ORS 267.010 to 267.390, when
operating under the authority or direction of the Columbia River
Light Rail Transit Authority established under the Columbia River
Light Rail Transit Compact ratified by section 32 of this Act,
retains all the rights, powers, privileges and immunities
conferred upon the district by ORS 267.010 to 267.390 to the
extent that those rights, powers, privileges and immunities are
consistent with the provisions of the Columbia River Light Rail
Transit Compact.
(2) A mass transit agency organized under the laws of the State
of Washington, when operating in Oregon under the authority or
direction of the Columbia River Light Rail Transit Authority
established under the Columbia River Light Rail Transit Compact
ratified by section 32 of this Act, may exercise all of the
rights, powers, privileges and immunities conferred upon a mass
transit district by ORS 267.010 to 267.390 to the extent that
those rights, powers, privileges and immunities are consistent
with the provisions of the Columbia River Light Rail Transit
Compact. + }
**************************** SECTION 32. { + (1) The
Legislative Assembly finds that a failure to obtain maximum
federal funding for the South North MAX Light Rail Project in the
upcoming federal transportation authorization act will seriously
impair the viability of the transportation system planned for the
Portland metropolitan area, the ability of the area to implement
a significant portion of its air quality and energy efficiency
strategies and the ability of affected local governments to
implement significant parts of their comprehensive plans. The
Legislative Assembly further finds that to maximize the state's
and metropolitan area's ability to obtain the highest available
level of federal funding for the South North MAX Light Rail
Project and to ensure the timely and cost-effective construction
of the project, it is necessary:
(a) To establish the process to be used in making decisions in
a land use final order on the light rail route, light rail
stations, light rail park-and-ride lots, light rail maintenance
facilities and any highway improvements to be included in the
South North MAX Light Rail Project, including their locations;
(b) To expedite the process for appellate review of a land use
final order; and
(c) To establish an exclusive process for appellate review.
(2) Sections 32 to 44 of this Act shall be liberally construed
to accomplish the purposes enumerated in subsection (1) of this
section.
(3) The Legislative Assembly deems the procedures and
requirements provided for in sections 32 to 44 of this Act, under
the unique circumstances of the South North MAX Light Rail
Project, to be equivalent in spirit and substance to the land use
procedures that otherwise would be applicable. + }
**************************** SECTION 33. { + As used in
sections 33 to 44 of this Act, unless the context requires
otherwise:
(1) 'Administrator' means the State Court Administrator.
(2) 'Affected local governments' means:
(a) For the project, the cities and counties within which the
light rail route, stations, lots and maintenance facilities, and
the highway improvements for the project will be located.
(b) For the project extension, the cities and counties within
which the light rail route, stations, lots and maintenance
facilities, and the highway improvements for the project
extension will be located.
(3) 'Board' means the Land Use Board of Appeals.
(4) 'Commission' means the Land Conservation and Development
Commission.
(5) 'Council' means the elected legislative body of Metro.
(6) 'Court' means the Oregon Supreme Court.
(7) 'Criteria' means the land use criteria established by the
commission, as provided in section 36 of this Act.
(8) 'Development approval' means approval of a proposed
development of land 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.
(9) 'Draft Statement' means the Draft Environmental Impact
Statement for the project or project extension prepared pursuant
to regulations implementing the National Environmental Policy Act
of 1969.
(10) 'Final Statement' means the Final Environmental Impact
Statement for the project or project extension, as may be amended
from time to time, or any supplementary assessments or
statements, prepared pursuant to regulations implementing the
National Environmental Policy Act of 1969.
(11) 'Full Funding Grant Agreement' means the contractual
agreement entered into between the Federal Government and the
local grant recipient establishing the maximum federal financing
contribution for construction of the project or project extension
and setting forth terms, conditions and limitations for federal
financing of the project and project extension.
(12) 'Highway improvements' means the highway improvements, if
any, to be included in the project or project extension. The
highway improvements shall be selected from among the highway
improvements, if any, described in a Draft Statement or Final
Statement for the project or project extension.
(13) 'Land use final order' means a written order or orders of
the council deciding:
(a) The light rail route for the project or project extension,
including its location;
(b) Stations, lots and maintenance facilities for the project
or project extension, including their locations; and
(c) The highway improvements for the project or project
extension, including their locations.
(14) 'Light rail route' means the light rail alignment to be
included in the project or project extension. The light rail
route shall be selected from among light rail route alternatives
described in a Draft Statement or Final Statement for the project
or project extension.
(15) 'Locally Preferred Alternative Report' means a decision
adopted in accordance with federal requirements determining
whether or not to build the South North MAX Light Rail Project
and, if the decision is to build, recommending the light rail
route, stations, lots and maintenance facilities, and the highway
improvements, including their locations, to be included in the
South North MAX Light Rail Project.
(16) 'Locations' means the boundaries within which the light
rail route, stations, lots and maintenance facilities, and the
highway improvements shall be located, as provided in section 35
(1) of this Act.
(17) 'Measures' includes any mitigation measures, design
features, or other amenities or improvements associated with the
project or project extension.
(18) 'Project' means the portion of the South North MAX Light
Rail Project within the Portland metropolitan area urban growth
boundary, including each segment thereof as set forth in the
Phase I South North Corridor Project Locally Preferred
Alternative Report as may be amended from time to time or as may
be modified in a Final Statement or the Full Funding Grant
Agreement. The project includes the light rail route, stations,
lots and maintenance facilities, and any highway improvements to
be included in the project.
(19) 'Project extension' means the portion of the South North
MAX Light Rail Project within the Portland metropolitan area
urban growth boundary as set forth in the Phase II South North
Corridor Project Locally Preferred Alternative Report as may be
amended from time to time or as may be modified in a Final
Statement or the Full Funding Grant Agreement. The project
extension includes the light rail route, stations, lots, and
maintenance facilities, and any highway improvements to be
included in the project extension.
(20) 'Stations, lots and maintenance facilities' means the
light rail stations, light rail park-and-ride lots and light rail
vehicle maintenance facilities to be included in the project or
project extension, to be selected from among alternatives
described in a Draft Statement or Final Statement for the project
or project extension.
(21) 'Steering Committee' means a committee staffed by Metro
through the time of adoption of the initial land use final order
for the project or project extension, and thereafter staffed by
Tri-Met, comprised at least of representatives of the Department
of Transportation, Tri-Met and elected officials of the affected
local governments and Metro, whose specific membership and manner
of function shall be determined by intergovernmental agreement
between Metro, Tri-Met, the Department of Transportation and the
affected local governments for the project or project extension.
(22) 'Tri-Met' means the Tri-county Metropolitan Transportation
District of Oregon. + }
**************************** SECTION 34. { + Notwithstanding
any other provision of law, the procedures and requirements
provided for in sections 33 to 44 of this Act shall be the only
land use procedures and requirements to which the following land
use decisions shall be subject:
(1) Decisions on the light rail route for the project and
project extension, including its location;
(2) Decisions on the stations, lots and maintenance facilities
for the project and project extension, including their locations;
and
(3) Decisions on the highway improvements for the project and
project extension, including their locations. + }
**************************** SECTION 35. { + (1) A land use
final order shall establish the light rail route, stations, lots
and maintenance facilities, and the highway improvements for the
project or project extension, including their locations, as
provided in this section and in accordance with the procedures
identified in section 38 of this Act.
(2) Prior to publication of the public hearing notice described
in section 38 (1) of this Act, and following receipt of
recommendations from the Department of Transportation and the
Steering Committee, Tri-Met shall apply to the council for a land
use final order approving the light rail route, stations, lots
and maintenance facilities, and the highway improvements,
including their locations. The applied for locations shall be in
the form of boundaries within which the light rail route,
stations, lots and maintenance facilities, and the highway
improvements shall be located. These boundaries shall be
sufficient to accommodate adjustments to the specific placements
of the light rail route, stations, lots and maintenance
facilities, and the highway improvements for which need commonly
arises upon the development of more detailed environmental or
engineering data following approval of a Full Funding Grant
Agreement.
(3) Following a public hearing as provided in section 38 (3) of
this Act, the council shall either adopt a land use final order
establishing the facilities and locations applied for by Tri-Met
or continue the public hearing and refer the proposed facilities
and locations back to Tri-Met for further review.
(4) Upon referral by the council, Tri-Met shall consider
amendments to its proposed facilities and locations and then
forward a further application to the council for hearing and
adoption. The council shall either adopt a land use final order
establishing the facilities and locations applied for by Tri-Met
or again continue the hearing and refer the proposed facilities
and locations back to Tri-Met for further review and application
to the council.
(5) Any siting of the light rail route, a station, lot or
maintenance facility, or a highway improvement outside the
locations established in a land use final order, and any new
station, lot, maintenance facility or highway improvement, shall
require a land use final order amendment or a new land use final
order which shall be adopted in accordance with the process
provided for in subsections (1) to (4) of this section. + }
**************************** SECTION 36. { + The Land
Conservation and Development Commission shall establish criteria
to be used by the council in making decisions in a land use final
order on the light rail route, stations, lots and maintenance
facilities, and the highway improvements for the project and
project extension, including their locations. The provisions in
ORS chapters 183, 192, 195, 197, 215 and 227 and any regulations
promulgated thereunder shall not apply to proceedings of the
commission under sections 33 to 44 of this Act. The following
procedures shall govern the proceedings of the commission in
establishing criteria:
(1) The commission shall publish notice of a public hearing on
criteria to be established by the commission in a newspaper of
general circulation within the Portland metropolitan area at
least 20 days prior to the public hearing. The notice shall:
(a) Identify the general subject matter of the hearing and the
date, time and place of the hearing;
(b) State that any criteria to be proposed to the commission
must be filed at the Salem office of the Department of Land
Conservation and Development at least 10 days prior to
commencement of the hearing and will be available for public
inspection following filing;
(c) State that appeals from an order establishing criteria must
be filed within seven days following the date written notice of
the order is mailed;
(d) State that failure by a person to raise an issue at the
hearing in person or in writing, or failure to provide sufficient
specificity to afford the commission an opportunity to respond to
the issue raised, shall preclude appeal by that person to the
Oregon Supreme Court on that issue;
(e) State that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing; and
(f) State that written notice of adoption of an order
establishing criteria will be provided only to persons who
provide oral or written testimony at the hearing and who also
provide, in writing, a request for written notice and a mailing
address to which notice should be sent.
(2) The commission also may provide such other notice as it
deems appropriate to inform interested persons of the hearing.
However, no other form of notice is required.
(3) A copy of the staff report, if any, shall be available for
public inspection at least four days prior to the public hearing.
(4) The commission shall hold a public hearing on the criteria
to be established by the commission. At the commencement of the
hearing, a statement shall be made to those in attendance that:
(a) Identifies the general subject matter of the hearing;
(b) States that appeals from an order establishing criteria
must be filed within seven days following the date written notice
of the order is mailed;
(c) States that failure by a person to raise an issue at the
hearing in person or in writing, or failure to provide sufficient
specificity to afford the commission an opportunity to respond to
the issue raised, shall preclude appeal by that person to the
court on that issue;
(d) States that submittal of proposed criteria at the hearing
will not be accepted unless the proposed criteria were filed at
the Salem office of the Department of Land Conservation and
Development at least 10 days prior to the commencement of the
hearing;
(e) States that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing; and
(f) States that written notice of adoption of an order
establishing criteria will be provided only to persons who
provide oral or written testimony at the hearing and who also
provide, in writing, a request for written notice and a mailing
address to which notice should be sent.
(5) The commission shall allow for the submission of oral and
written testimony at the hearing, subject to such hearing
procedures as the commission may deem necessary. The commission
may exclude irrelevant, immaterial or unduly repetitious
testimony. The commission shall not allow the submission of
proposed criteria at the hearing unless the proposed criteria
were filed at the Salem office of the Department of Land
Conservation and Development at least 10 days prior to the
commencement of the hearing. Minutes of the hearing shall be
taken.
(6) The commission shall close the hearing and adopt an order
establishing the criteria within 14 days following commencement
of the hearing. In establishing the criteria, the commission
shall consider those statewide planning goals and those plan
policies that are relevant to decisions regarding the light rail
route, stations, lots and maintenance facilities, and the highway
improvements, and their locations. The commission's order shall
include a brief statement explaining how the criteria established
reasonably reflect those statewide land use planning goals and
those plan policies that are relevant to decisions regarding the
light rail route, stations, lots and maintenance facilities, and
the highway improvements, and their locations.
(7) Following establishment of the criteria, the commission as
soon as reasonably possible shall:
(a) Notify in writing the council, Tri-Met, the Department of
Transportation, the affected local governments and any person who
provided oral or written testimony at the hearing and who also
provided, in writing, a request for written notice and a mailing
address to which notice should be sent of its order and the
criteria it has established; and
(b) Make copies of its order and the criteria available for
public inspection at the Salem and Portland offices of the
Department of Land Conservation and Development.
(8) The commission shall adopt the order described in
subsection (6) of this section within 90 days following the
effective date of this Act. + }
**************************** SECTION 37. { + (1)
Notwithstanding ORS 183.400, 183.482, 183.484, 197.825 or any
other law or regulation, exclusive jurisdiction to review a Land
Conservation and Development Commission order establishing
criteria under section 36 of this Act is conferred on the Oregon
Supreme Court.
(2) Proceedings for review of the commission's order shall be
instituted when any person who is adversely affected files a
notice of intent to appeal with the State Court Administrator
that meets the following requirements:
(a) The notice shall be filed within seven days following
written notice of the commission's order.
(b) The notice shall state the nature of the commission's
order, in what manner the commission rejected the position raised
by the petitioner before the commission and, with supporting
affidavit, facts showing how the petitioner is adversely
affected. The petitioner shall be considered adversely affected
if:
(A) The petitioner provided oral or written testimony at the
commission's hearing; and
(B) The petitioner proposed criteria, as provided in section 36
(5) of this Act, that the commission rejected in its order, or
the petitioner, in the petitioner's testimony at the hearing,
opposed the criteria which the commission selected in its order.
(c) The petitioner shall deliver a copy of the notice of intent
to appeal by personal service to the commission at the Salem
office of the Department of Land Conservation and Development, at
the Salem office of the Department of Transportation, to the
Attorney General, to the council at the office of Metro's
executive officer, to Tri-Met at the office of Tri-Met's general
manager and to the affected local governments.
(3) Within seven days following filing of the notice of intent
to appeal, the commission shall personally deliver to the court a
certified copy of the record of its criteria proceedings. The
record shall include only:
(a) The commission's order establishing the criteria;
(b) Any written report received by the commission from the
Department of Land Conservation and Development at the hearing;
(c) Proposed criteria submitted to the commission as provided
in section 36 (5) of this Act and written testimony submitted to
the commission at the hearing;
(d) Minutes of the public hearing before the commission;
(e) The published notice of public hearing; and
(f) Proof of mailing to persons entitled to notice of the
commission's order.
(4) Within 14 days following the filing of the notice of intent
to appeal, the petitioner shall file the petitioner's brief. The
petitioner shall personally deliver the brief to the
administrator, to the Attorney General, to the council at the
office of Metro's executive officer, to Tri-Met at the office of
Tri-Met's general manager and to the affected local governments.
The brief shall comply with the specifications for opening briefs
set forth in the rules of appellate procedure.
(5) Within 28 days following the filing of the notice of intent
to appeal, the commission, Metro, Tri-Met, the Department of
Transportation and any affected local government, unless Metro,
Tri-Met, the Department of Transportation or an affected local
government is the petitioner, may file an answering brief that
shall comply with the specifications for answering briefs set
forth in the rules of appellate procedure.
(6) On review, the court may reverse or remand the commission's
order only if it finds that the order:
(a) Violates constitutional provisions;
(b) Exceeds the statutory authority of the commission; or
(c) Was adopted by the commission without substantial
compliance with the procedures in section 36 of this Act in a
manner that prejudiced the substantial rights of the petitioner.
Failure of the commission to notify a person entitled to written
notice under section 36 (7)(a) of this Act shall not be a ground
for reversal or remand if evidence of mailing to that person is
provided. The court shall not substitute its judgment for that of
the commission as to any issue of fact or as to any issue within
the commission's discretion.
(7) The court shall not stay any action by the council under
this Act pending the court's review under this section.
(8) The court may decide the matter on the briefs or it may
hold oral arguments. The court shall decide the matter at its
earliest practicable convenience, consistent with sections 33 to
44 of this Act. + }
**************************** SECTION 38. { + The council shall
apply the criteria established by the Land Conservation and
Development Commission in making decisions in a land use final
order on the light rail route, stations, lots and maintenance
facilities, and the highway improvements, including their
locations. The provisions in ORS chapters 183, 192, 195, 197,
215, 227, 267 and 268 and any regulations promulgated thereunder
shall not apply to proceedings of the council under this Act. The
following procedures shall govern the council's proceedings in
adopting a land use final order:
(1)(a) The council shall publish notice of a public hearing on
the light rail route, stations, lots and maintenance facilities,
and the highway improvements, including their locations, as to
which decisions will be made in the land use final order of the
council in a newspaper of general circulation within Metro's
jurisdictional area at least 14 days prior to the hearing.
(b) The notice shall:
(A) Identify the general subject matter of the hearing and the
street address where a staff report and the criteria may be
found;
(B) Identify the date, time and place of the hearing;
(C) State that appeals from decisions in a land use final order
must be filed within 14 days following the date the land use
final order is reduced to writing and bears the necessary
signatures;
(D) State that failure by a person to raise an issue at the
hearing in person or in writing, or failure to provide sufficient
specificity to afford the council an opportunity to respond to
the issue raised, shall preclude appeal by that person to the
Land Use Board of Appeals based on that issue;
(E) State that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing; and
(F) State that written notice of adoption of the land use final
order will be provided only to persons who provide oral or
written testimony at the hearing and who also provide, in
writing, a request for written notice and a mailing address to
which notice should be sent.
(c) The council also shall provide such other notice as is, in
its judgment, reasonably calculated to give notice to persons who
may be substantially affected by its decision. No other form of
notice is required.
(2) A copy of the staff report shall be available for public
inspection at least seven days prior to the public hearing. The
staff report shall set forth and address compliance with the
criteria. The staff report also shall include a description of
the proposed boundaries within which the light rail route,
stations, lots and maintenance facilities, and the highway
improvements shall be located, as recommended by Tri-Met under
section 35 (1) of this Act. The staff report may be amended as
the staff considers necessary or desirable prior to the public
hearing without further notice.
(3) The council shall hold a public hearing on the light rail
route, stations, lots and maintenance facilities, and the highway
improvements, including their locations, as to which decisions
will be made in the land use final order. At the commencement of
the hearing, a statement shall be made to those in attendance
that:
(a) Lists the criteria or directs those present to a place at
the hearing location where any person may obtain a list of the
criteria at no cost;
(b) Lists generally the light rail route, stations, lots and
maintenance facilities, and the highway improvements, including
their locations, as to which decisions will be made in the land
use final order;
(c) States that testimony shall be directed towards the
application of the criteria to the light rail route, stations,
lots and maintenance facilities, and the highway improvements,
including their locations, as to which decisions will be made in
the land use final order;
(d) States that appeals from decisions in a land use final
order on the light rail route, stations, lots and maintenance
facilities, and the highway improvements, including their
locations, must be filed within 14 days following the date the
land use final order is reduced to writing and bears the
necessary signatures;
(e) States that failure by a person to raise an issue at the
hearing, in person or in writing, or failure to provide
sufficient specificity to afford the council an opportunity to
respond to the issue raised, shall preclude appeal by that person
to the board based on that issue;
(f) States that written notice of adoption of the land use
final order will be provided only to persons who have provided
oral or written testimony at the hearing and who also have
provided, in writing, a request for written notice and a mailing
address to which notice should be sent; and
(g) States that persons whose names appear on petitions
submitted into the public hearing record will not be considered
by that action to have provided oral or written testimony at the
hearing.
(4) The council shall allow for the submission of oral and
written testimony at the hearing, subject to such hearing
procedures as the council may deem necessary or appropriate for
the adoption of land use final orders. The council may exclude
irrelevant, immaterial or unduly repetitious testimony.
(5) The council may take official notice at the hearing of any
matter identified in ORS 40.065 or 40.090 or as authorized by the
resolution, if any, of the council establishing hearing
procedures for the adoption of land use final orders.
(6) The council shall close the hearing and shall adopt by
resolution a land use final order. The council may continue the
matter as provided in section 35 (1) of this Act or as it
otherwise considers necessary for the purpose of land use final
order adoption.
(7) The land use final order shall be accompanied by written
findings demonstrating how the decisions on the light rail route,
stations, lots and maintenance facilities, and the highway
improvements, including their locations, comply with the
criteria.
(8) Following adoption of a land use final order, the council
as soon as reasonably possible shall:
(a) Provide media notice of the adoption; and
(b) Provide written notice of the adoption to persons who:
(A) Provided oral or written testimony at the hearing; and
(B) Provided at the hearing, in writing, a request for written
notice and a mailing address to which written notice should be
sent. Persons whose names appear on petitions provided at the
hearing shall not be considered to have provided oral or written
testimony at the hearing. The written notice of adoption provided
hereunder shall indicate the date of written adoption and
signature of the land use final order, identify the place at and
time during which a copy of the land use final order may be
obtained and state that appeals from decisions in the land use
final order must be filed within 14 days following written
adoption and signature of the land use final order.
(9) The procedures established by this section establish the
only opportunities that the council must provide for interested
persons to participate in the proceedings of the council in
adopting a land use final order. Subject to the other provisions
established by this section, the council by resolution may
establish additional procedures to govern its proceedings in
adopting a land use final order. + }
**************************** SECTION 39. { + (1) The state,
and all affected counties, cities, special districts and
political subdivisions shall:
(a) Amend their comprehensive or functional plans, including
public facility plans and transportation system plans and their
land use regulations, to the extent necessary to make them
consistent with a land use final order; and
(b) Issue the appropriate development approvals, permits,
licenses and certificates necessary for the construction of the
project or project extension consistent with a land use final
order. Development approvals, permits, licenses and certificates
may be subject to reasonable and necessary conditions of
approval, but may not, by themselves or cumulatively, prevent
implementation of a land use final order.
(2) Notwithstanding the provisions of subsection (1)(a) of this
section or any other provision of state or local law, a land use
final order shall be fully effective upon adoption.
(3) For purposes of subsection (1)(b) of this section, an
approval condition shall be considered not reasonable or
necessary, or shall be considered to prevent implementation of a
land use final order, if:
(a) The measure has been deleted or deferred from the project
or project extension in the Full Funding Grant Agreement; or
(b) The Steering Committee determines in accordance with the
provisions of the intergovernmental agreement described in
section 33 (21) of this Act that:
(A) There are not sufficient federal, state and local funds
within the project or project extension budget to pay for the
measure;
(B) The measure will significantly delay the completion or
otherwise prevent the timely implementation of the project or
project extension; or
(C) The measure will significantly negatively impact the
operations of the project or project extension.
(4) Applications for development approvals under subsection
(1)(b) of this section shall be treated as land use decisions and
not as limited land use decisions.
(5) Comprehensive plan and land use regulation amendments, to
the extent required under subsection (1)(a) of this section shall
not be reviewable by any court or agency.
(6) Development approvals and permit, license and certificate
decisions under subsection (1)(b) of this section may be the
subject of administrative and judicial review as provided by law.
However, determinations of the Steering Committee made pursuant
to subsection (3) of this section shall not be reviewable and
shall control in the event of conflict.
(7) Each state agency, special district or affected local
government that issues a development approval, permit, license or
certificate for the project or project extension shall continue
to exercise enforcement authority over the development approval,
permit, license or certificate. + }
**************************** SECTION 40. { + (1)
Notwithstanding ORS 183.400, 183.482, 183.484, 197.825 or any
other law or regulation, exclusive jurisdiction for review of a
land use final order relating to the project or project extension
is conferred on the Land Use Board of Appeals and the Oregon
Supreme Court as provided in sections 39 to 41 of this Act.
(2) Review of a land use final order relating to the project or
project extension shall be initiated within 14 days following the
date that the land use final order is reduced to writing and
bears the necessary signatures by personal delivery to the board,
to the State Court Administrator and to Metro at the office of
Metro's executive officer of a notice of intent to appeal as
required by this section.
(3) A person may petition for review of a land use final order
relating to the project or project extension if the person:
(a) Personally delivered a notice of intent to appeal the land
use final order as provided for in subsection (2) of this
section; and
(b) Appeared before the council orally or in writing at the
land use final order hearing on the project or project extension.
(4) A person's failure to raise an issue at the land use final
order hearing, in person or in writing, or failure to provide
sufficient specificity to afford the council an opportunity to
respond to the issue raised, shall preclude that person from
petitioning for review based on that issue.
(5) A notice of intent to appeal shall:
(a) Contain an affidavit stating the facts that support the
petitioner's standing as provided in subsection (3) of this
section;
(b) State with particularity the grounds on which the
petitioner assigns error; and
(c) State the residence or business address of the petitioner
to which documents may be delivered, and the telephone and
facsimile number or numbers where the petitioner may be reached
during normal business hours.
(6) Metro shall personally deliver to the board and to the
administrator a certified copy of the record of the council's
land use final order proceedings within seven days following the
filing and delivery of a notice of intent to appeal as provided
in subsection (2) of this section. Metro shall make copies of the
record available to the public for the actual costs of copying.
The record shall consist of the land use final order, the written
findings accompanying the land use final order, the notice of the
land use final order hearing, any audio cassette recordings of
the hearing, a statement of matters that were officially noticed
at the hearing, the staff report and any amendments thereto and
documents accepted into the record at the hearing. Metro shall
make a copy of the record available for inspection by petitioners
and shall provide a copy of the record to any petitioner upon
request for the actual costs of copying.
(7) Any objection to the record shall be personally delivered
or transmitted by facsimile to the board, to the administrator
and to Metro at the office of Metro's executive officer within
four days following delivery of the record to the board. Within
four days thereafter, responses of Metro to objections to the
record shall be personally delivered or faxed to the board, to
the administrator and to the residences or business addresses of
the persons objecting. Thereafter, the board shall rule
expeditiously on objections. The board's ruling on objections
shall not affect the briefing schedule or decision timelines set
forth in this Act.
(8) No stays or continuances of proceedings shall be permitted.
No person may intervene in and thereby be made a party to the
review proceedings, except that Tri-Met, the Department of
Transportation and the affected local governments shall have
standing to and may intervene on their own behalf.
(9) Within 14 days following the filing of the notice of intent
to appeal, a petitioner shall personally deliver a petition for
review and brief to the board, to the administrator, to Metro at
the office of Metro's executive officer and to Tri-Met, the
Department of Transportation or an affected local government if
it has filed a motion to intervene in the review proceeding. The
petition for review and brief shall set out in detail each
assignment of error and shall identify those portions of the
record in which the petitioner raised in the land use final order
hearing the issues as to which error is assigned. The petition
for review and brief shall comply with the specifications for
opening briefs set forth in the rules of appellate procedure.
(10) Within 28 days following the filing of the notice of
intent to appeal, Metro and any intervening party shall
personally deliver to the board, to the administrator and to any
petitioner at the petitioner's residence or business address
their briefs in response to a petition for review and brief.
Responding briefs shall comply with the specifications for
answering briefs set forth in the rules of appellate procedure.
(11) Within 35 days following the filing of the notice of
intent to appeal, the board shall hear oral argument in the
manner provided for in its administrative rules. The board shall
issue a final opinion within 28 days following oral argument. The
board's final opinion shall affirm or remand the council's land
use final order, stating the reasons for the decision.
(12)(a) The board shall remand the land use final order only if
it finds that the council:
(A) Improperly construed the criteria;
(B) Exceeded its statutory or constitutional authority; or
(C) Made a decision in the land use final order on the light
rail route, on stations, lots or maintenance facilities, or the
highway improvements, including their locations, that was not
supported by substantial evidence in the whole record. The
existence in the whole record of substantial evidence supporting
a different decision on the light rail route, stations, lots or
maintenance facilities, or the highway improvements, including
their locations, shall not be a ground for remand if there also
was substantial evidence in the whole record supporting the land
use final order.
(b) Failure to comply with statutory procedures, including
notice requirements, shall not be grounds for invalidating a land
use final order.
(c) The board shall affirm all portions of the land use final
order that it does not remand.
(13) Upon issuance of its final opinion, the board shall file
the opinion with the administrator and transmit copies to the
parties. The board also shall inform the parties of the filing of
the final opinion by telephone or facsimile. Within seven days
following issuance of its final order, the board shall file with
the administrator a copy of the record of the board.
(14) Neither the board nor the court shall substitute its
judgment for that of the council as to any issue of fact or any
issue within the discretion of the council. + }
**************************** SECTION 41. { + (1) Any party
appearing before the Land Use Board of Appeals under section 40
of this Act and objecting to the board's final opinion may
petition the court for review of the final opinion as provided
for in this section. The petition shall be filed with the
administrator and served on the board and all parties within 14
days following the board's issuance of its final opinion in the
manner provided for filing and service in the rules of appellate
procedure. The petition shall be in the form of a brief and shall
state, with particularity and with supporting authority, each
reason asserted for reversal or modification of the board's
decision. Insofar as practicable, the petition shall comply with
the specifications for petitions for review in the rules of
appellate procedure.
(2) If a petition for review has been filed, then within 14
days thereafter, any other party appearing before the board may,
but need not, file a response to the petition for review. In the
absence of a response, the party's brief before the board shall
be considered as the response. A party seeking to respond to the
petition for review shall file its response with the
administrator and serve it on the board and all parties in the
manner provided for filing and service in the rules of appellate
procedure. The response shall be in the form of a brief and shall
comply with the specifications for responses to petitions for
review in the rules of appellate procedure.
(3) The court may decide the matter on the briefs, or it may
hold oral argument. The court may adopt the board's final opinion
as its own, affirm without opinion or issue a separate opinion.
The court shall decide the matter at its earliest practicable
convenience, consistent with sections 33 to 44 of this Act.
(4) The court shall affirm or remand the land use final order,
in whole or in part. The court shall affirm all parts of the
final order that it does not remand. The court shall base its
decision on the standards for review set out in section 40 (12)
of this Act. If the court remands, the council shall respond as
to those matters remanded by adopting by resolution a land use
final order on remand. The provisions of section 38 of this Act
shall govern the proceedings of the council in adopting a land
use final order on remand. Upon adoption of a land use final
order on remand, Metro shall immediately file with the
administrator the land use final order on remand and the record
of the council. Metro shall personally deliver copies of its
land use final order on remand to the parties before the court
and shall inform the parties of the filing of the final order on
remand by telephone or facsimile.
(5) If the court remands, the court shall retain jurisdiction
over the matters remanded. Within 14 days following adoption of a
land use final order on remand, the parties before the court may
submit memoranda to the court with respect thereto and shall
personally deliver copies of the memoranda to other parties
before the court. The court may limit the length of such
memoranda. The court's decision on the land use final order on
remand shall be based on the standards set forth in section 40
(12) of this Act. + }
**************************** SECTION 42. { + (1) If, as a
condition of executing a Full Funding Grant Agreement, the
Federal Government requires the deletion or deferral of portions
of the approved project or project extension, or the deletion or
deferral of measures expressly provided for in a Final Statement,
a determination of which improvements or measures to delete or
defer shall be made in accordance with the provisions of the
intergovernmental agreement described in section 33 (21) of this
Act.
(2) If, subsequent to execution of a Full Funding Grant
Agreement, additional deletions or deferrals are required due to
insufficient funds in the budgets for the project or project
extension, a determination of which improvements or measures to
delete or defer shall be made in accordance with the provisions
of the intergovernmental agreement described in section 33 (21)
of this Act. + }
**************************** SECTION 43. { + (1) Upon
execution of a Full Funding Grant Agreement, the council shall
amend the land use final order to be consistent with the terms
and conditions of the Full Funding Grant Agreement.
(2) The following amendments to a land use final order shall be
considered technical and environmental and shall not be subject
to judicial or administrative review:
(a) Amendments resulting from adoption of a Final Statement;
(b) Amendments required to ensure consistency with an executed
Full Funding Grant Agreement; and
(c) Amendments to defer or delete a portion of the project or
project extension as provided for in section 35 (5) of this
Act. + }
**************************** SECTION 44. { + No action taken
by the commission, the council, the board or the court under this
Act shall be invalid due to a failure to meet a timeline
established under sections 33 to 44 of this Act. + } { + + }
**************************** SECTION 45. { + This Act being
necessary for the immediate preservation of the public peace,
health and safety, an emergency is declared to exist, and this
Act takes effect on its passage. + }
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