68th OREGON LEGISLATIVE ASSEMBLY--1996 Special 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 280-1
House Bill 3478
Sponsored by SPECIAL SESSION COMMITTEE ON GOVERNMENT AFFAIRS
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 siting procedures for South North 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 procedures for the siting of the South North light
rail line; creating new provisions; repealing ORS 197.550,
197.553, 197.556, 197.559, 197.562, 197.565, 197.568, 197.571,
197.574, 197.577, 197.581, 197.584 and 197.590; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 13 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 4 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 6
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 2. { + (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 1 to 13 of this Act shall be liberally construed
to accomplish the purposes enumerated in subsection (1) of this
section.
(3) It is the intent of the Legislative Assembly that residents
of neighborhoods within the Tri-County Metropolitan
Transportation District of Oregon affected by land use decisions,
limited land use decisions or land divisions resulting from the
siting, construction or operation of any MAX Light Rail line,
either as individuals or through their neighborhood associations,
shall have the opportunity to participate in such decisions and
divisions.
(4) The Legislative Assembly deems the procedures and
requirements provided for in sections 1 to 13 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 3. { + Notwithstanding any other provision of law, the
procedures and requirements provided for in sections 1 to 13 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 4. { + 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 1 to 13 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 this Act. + }
SECTION 5. { + (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 4 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 4
(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 4 (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 4 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 4 (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 1 to 13 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 1 to
13 of this Act. + }
SECTION 6. { + (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 7 of this
Act.
(a) Prior to publication of the public hearing notice described
in section 7 (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 7 (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 7. { + 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 1 to
13 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 6 (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 6 (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 8. { + (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 1 (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 9. { + (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 1 to 13 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 1 to 13 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 10. { + (1) Any party appearing before the Land Use
Board of Appeals under section 9 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 1 to 13 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 9 (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 7 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 9
(12) of this Act. + }
SECTION 11. { + (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 1 (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 1 (21) of
this Act. + }
SECTION 12. { + (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 11 (2) of this
Act. + }
SECTION 13. { + No action taken by the commission, the
council, the board or the court under sections 1 to 13 of this
Act shall be invalid due to a failure to meet a timeline
established by sections 1 to 13 of this Act. + }
SECTION 14. { + ORS 197.550, 197.553, 197.556, 197.559,
197.562, 197.565, 197.568, 197.571, 197.574, 197.577, 197.581,
197.584 and 197.590 are repealed. + }
SECTION 15. { + 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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