Chapter 622 Oregon Laws 1999

Session Law

AN ACT

SB 543

Relating to periodic review; creating new provisions; amending ORS 195.145, 197.180, 197.610, 197.628, 197.633, 197.636, 197.644 and 197.650; repealing sections 7, 8 and 9, chapter 6, Oregon Laws 1996, and section 1, chapter 1014, Oregon Laws 1999 (Enrolled House Bill 2406); and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 197.610 is amended to read:

197.610. (1) A proposal to amend a local government acknowledged comprehensive plan or land use regulation or to adopt a new land use regulation shall be forwarded to the Director of the Department of Land Conservation and Development at least 45 days before the [final] first evidentiary hearing on adoption. The proposal forwarded shall contain the text and any supplemental information that the local government believes is necessary to inform the director as to the effect of the proposal. The notice shall include the date set for the first evidentiary hearing. The director shall notify persons who have requested notice that the proposal is pending.

(2) When a local government determines that the goals do not apply to a particular proposed amendment or new regulation, notice under subsection (1) of this section is not required. In addition, a local government may submit an amendment or new regulation with less than 45 days' notice if the local government determines that there are emergency circumstances requiring expedited review. In both cases:

(a) The amendment or new regulation shall be submitted after adoption as provided in ORS 197.615 (1) and (2); and

(b) Notwithstanding the requirements of ORS 197.830 (2), the director or any other person may appeal the decision to the board under ORS 197.830 to 197.845.

(3) When the Department of Land Conservation and Development participates in a local government proceeding, at least 15 days before the final hearing on the proposed amendment to the comprehensive plan or land use regulation or the new land use regulation, [it] the department shall notify the local government of:

(a) Any concerns [it] the department has concerning the proposal; and

(b) Advisory recommendations on actions [it] the department considers necessary to address the concerns, including, but not limited to, suggested corrections to achieve compliance with the goals.

(4) The director shall report to the Land Conservation and Development Commission on whether the director:

(a) Believes the local government's proposal violates the goals; and

(b) Is participating in the local government proceeding.

SECTION 2. ORS 197.628 is amended to read:

197.628. (1) [The purpose of periodic review is to assure that] It is the policy of the State of Oregon to require the periodic review of comprehensive plans and land use regulations [are achieving] in order to respond to changes in local, regional and state conditions to ensure that the plans and regulations remain in compliance with the statewide planning goals adopted pursuant to ORS 197.230, and to ensure that the plans and regulations make adequate provision for needed housing, employment, transportation and public facilities and services.

(2) The Land Conservation and Development Commission shall concentrate periodic review assistance to local governments on achieving compliance with those statewide land use planning laws and goals that address needed housing, employment, transportation and public facilities and services.

(3) The following [standards establish the scope of review] conditions indicate the need for periodic review of comprehensive plans and land use regulations:

[(1)] (a) There has been a substantial change in circumstances including but not limited to the conditions, findings or assumptions upon which the comprehensive plan or land use regulations were based, so that the comprehensive plan or land use regulations do not comply with the statewide planning goals;

[(2)] (b) [That implementation] Decisions[, or the effects of implementation decisions, including the application of] implementing acknowledged comprehensive plan and land use [regulation provisions] regulations are inconsistent with the goals; [and]

[(3)] (c) [That] There are issues of regional or statewide significance, intergovernmental coordination or state agency plans or programs affecting land use which must be addressed in order to bring comprehensive plans and land use regulations into compliance with the [provisions of the] goals[.]; or

(d) The local government, commission or Department of Land Conservation and Development determines that the existing comprehensive plan and land use regulations are not achieving the statewide planning goals.

SECTION 3. ORS 197.633 is amended to read:

197.633. [(1)(a) Periodic review is a matter of statewide concern. To assure that comprehensive plans and land use regulations are maintained, there is a need for a process to systematically review and revise such plans and regulations. The purpose of the review requirements is to assure that plans are achieving the statewide planning goals and are coordinated as described in ORS 197.015 (5).]

[(b)] (1) The periodic review process is divided into two phases. Phase one is the evaluation of the existing comprehensive plan, land use regulations and citizen involvement program [and its implementation] and, if necessary, the development of a work program to make needed changes [in a] to the comprehensive plan or land use [regulation] regulations. Phase two is the completion of work tasks outlined in the work program.

(2) The Land Conservation and Development Commission shall adopt rules for conducting periodic review. The rules shall provide a process for:

(a) Initiating periodic review;

(b) Citizen participation;

(c) The participation of state agencies;

(d) The preparation, review and approval of an evaluation of a comprehensive plan and land use regulations;

(e) Review of a work program; and

(f) Review of completed work tasks. [establish a schedule for review of local government comprehensive plans. The commission may use the schedule to achieve regional coordination objectives. No periodic review shall be scheduled sooner than four years nor later than 10 years from the date the Department of Land Conservation and Development or commission:]

[(a) Approved a work program;]

[(b) Approved a decision that no work program is required; or]

[(c) Terminated the previous periodic review.]

[(3) The review shall be conducted as follows:]

[(a) The department shall initiate the review process based on a schedule adopted by the commission. The department shall initiate the review process by sending a letter to the affected local government. The letter shall outline the requirements for conducting the review and identify the information which shall be submitted by the local government to the department.]

[(b) As part of the evaluation, a local government shall review its citizen involvement program and assure that there is an adequate process to obtain citizen input in all phases of the periodic review process.]

[(c) A local government shall evaluate its comprehensive plan and land use regulations to determine whether they are achieving the goals, objectives and policies outlined in the comprehensive plan and the statewide planning goals. As part of this evaluation, a local government shall compile the information required by commission rules. The commission may adopt, by rule, particular evaluation criteria for cities and counties and may make other distinctions based on the size of the jurisdiction, geographic location, pressure of growth and similar factors.]

[(d) The evaluation shall be based on the standards described in ORS 197.628.]

[(e) A local government shall either determine that no further work is necessary or shall develop a work program. The work program shall list planning tasks required to meet the review standards of ORS 197.628 and shall include proposed completion dates for each task. The commission may not require a work program when a local government has updated the comprehensive plan and land use regulations through the plan amendment process outlined in ORS 197.610 to 197.625 to be consistent with the requirements of ORS 197.628.]

[(f) A local government shall transmit the work program to the department as required by rule by the commission.]

[(g) Following receipt of the evaluation and work program, or the determination that no further work is necessary, the Director of the Department of Land Conservation and Development shall review the evaluation, citizen involvement provisions, work program and other required information based on the standards of ORS 197.628. The director shall consider the resources of the local government and state agencies before making a decision on a work program or determination that no further work is necessary. The director shall coordinate work programs of various jurisdictions to assure that regional issues are scheduled in a manner that fosters interjurisdictional and interagency coordination. Based on the director's review and the comments received from interested persons, the director may:]

[(A) Approve the evaluation and work program or determination that no further work is necessary;]

[(B) Reject the evaluation and work program and suggest modifications to the local government including a date for resubmittal; or]

[(C) Refer the evaluation and work program to the commission for review and action.]

[(h) A decision of the director with respect to any aspect of an evaluation, work program or determination that no further work is necessary may be appealed to the commission pursuant to administrative rules adopted by the commission. The commission action on an evaluation, work program or determination that no further work is necessary is a final order subject to judicial review in the manner provided in ORS 197.650.]

(3) A decision by the Director of the Department of Land Conservation and Development to approve a work program or a work task, that no work program is necessary or that no further work is necessary, may be appealed to the commission or referred to the commission by the director. The commission shall take action on the appeal or referral within 90 days of the appeal or referral. Action by the commission in response to an appeal from a decision of the director is a final order subject to judicial review in the manner provided in ORS 197.650.

(4) The commission and a local government shall attempt to complete periodic review within three years after approval of a work program. In order to promote the timely completion of periodic review, the commission shall establish a system of incentives to encourage local government compliance with timelines in periodic review work programs.

SECTION 4. ORS 197.636 is amended to read:

197.636. (1) Upon good cause shown by a local government, the Director of the Department of Land Conservation and Development may allow the local government an extension of time for submitting a work program or completing a work task. A decision by the director to grant or deny an extension may be appealed to the Land Conservation and Development Commission or may be referred to the commission by the director. The Department of Land Conservation and Development or the commission shall not extend the deadline for submitting a work program more than once nor for more than 90 days, and shall not extend the deadline for a work task more than once nor for more than 180 days.

[(1)] (2) If a local government fails to submit a work program or to complete a work task by the deadline set by the [Department of Land Conservation and Development] director or [Land Conservation and Development] the commission [without good cause], including any extension that has been granted, the [department] director shall schedule a [contested case] hearing before [a hearings officer appointed by the Director of the Department of Land Conservation and Development] the commission. [Based on the findings and recommendation of the hearings officer,] The commission shall issue an order [either granting an extension or] imposing one or more of the following sanctions until [completion of] the local government submits its work program or completes any required work task:

(a) [Requiring] Require the local government to apply [all or] those portions of the goals [as applicable] and rules to land use decisions as specified in the order. Sanctions may [only] be imposed under this paragraph [when the sanctions are] only when necessary to resolve a specific [goal or periodic review] deficiency identified in the [hearings officer's report] order.

(b) Forfeiture of all or a portion of the grant money received to conduct the review, develop the work program or complete the work task.

(c) Completion of the [evaluation and development of a] work program or work task by the department. The commission may require the local government to pay the cost for completion of work performed by the department, following the withholding process set forth in ORS 197.335 (4).

(d) Application of such interim measures as the commission deems necessary to ensure compliance with the statewide planning goals.

[(2) When a local government misses a submittal date contained in the work program without proof of good cause by the local government, the director may schedule a contested case hearing. If requested by any person, the director shall schedule a contested case hearing. If a state agency fails to provide information identified in the work program and required to complete a work program task, the local government shall not be subject to sanctions related to that task. Based on the findings and recommendation of the hearings officer, the commission shall issue an order either granting an extension or imposing one or more of the following sanctions until completion of required work:]

[(a) Requiring the local government to apply all or portions of the goals as applicable to land use decisions. Sanctions may only be imposed under this paragraph when the sanctions are necessary to resolve a specific goal or periodic review deficiency identified in the hearings officer's report.]

[(b) Forfeiting all or a portion of grant money received to conduct the review.]

[(c) Adopting other enforcement order provisions as provided for in this chapter.]

[(d) Applying interim measures or standards to local land use decisions.]

[(3) When a submittal is found to be inadequate pursuant to ORS 197.633 (2) and (3), the commission may impose sanctions set forth in subsection (2) of this section.]

[(4)] (3) Commission action pursuant to subsection (1) or (2) of this section is a final order subject to judicial review in the manner provided in ORS 197.650.

SECTION 5. ORS 197.644 is amended to read:

197.644. (1) The Land Conservation and Development Commission may direct or, upon request of the local government, the Director of the Department of Land Conservation and Development may authorize a local government to modify an approved work program when:

(a) Issues of regional or statewide significance arising out of another local government's periodic review require an enhanced level of coordination;

(b) Issues of goal compliance are raised as a result of completion of a work program task resulting in a need to undertake further review or revisions; [or]

(c) Issues relating to the organization of the work program, coordination with affected agencies or persons, or orderly implementation of work tasks result in a need for further review or revision; or

(d) Issues relating to needed housing, employment, transportation or public facilities and services were omitted from the work program but must be addressed in order to ensure compliance with the statewide planning goals.

(2) The commission shall have exclusive jurisdiction for review of the evaluation, work program and completed work program tasks as set forth in ORS 197.628 to 197.646. The commission shall adopt rules governing standing, the provision of notice, conduct of hearings, adoption of stays, extension of time periods and other matters related to the administration of ORS 197.180, 197.245, 197.254, 197.295, 197.320, 197.620, 197.625, 197.628 to 197.646, 197.649, 197.650, 197.712, 197.747, 197.840, 215.416, 227.175 and 466.385.

[(3) The commission shall adopt standards and procedures for the review of extension of time for submittal dates, the evaluation, work program and other matters which are subject to review by the director.]

[(4)(a)] (3)(a) Commission action pursuant to subsection (1) or (2) of this section is a final order subject to judicial review in the manner provided in ORS 197.650.

(b) Action by the director pursuant to subsection (1) of this section may be appealed to the commission pursuant to [administrative] rules adopted by the commission. Commission action under this paragraph is a final order subject to judicial review in the manner provided in ORS 197.650.

SECTION 6. ORS 195.145 is amended to read:

195.145. (1) To [insure] ensure that the supply of land available for urbanization is maintained, local governments may cooperatively designate lands outside urban growth boundaries as urban reserve areas, subject to ORS 197.610 to 197.625.

(2)(a) The Land Conservation and Development Commission may require a local government to designate an urban reserve area during its periodic review in accordance with the [standards] conditions for periodic review under ORS 197.628.

(b) Notwithstanding paragraph (a) of this subsection, the commission may require a local government to designate an urban reserve area outside of its periodic review if:

(A) The local government is located inside a Primary Metropolitan Statistical Area or a Metropolitan Statistical Area as designated by the Federal Census Bureau upon November 4, 1993; and

(B) The local government has been required to designate an urban reserve area by rule prior to November 4, 1993.

(3) In carrying out subsections (1) and (2) of this section:

(a) Within an urban reserve area, neither the commission nor any local government shall prohibit the siting on a legal parcel of a single family dwelling that would otherwise have been allowed under law existing prior to designation as an urban reserve area.

(b) The commission shall provide to local governments a list of options, rather than prescribing a single planning technique, to [assure] ensure the efficient transition from rural to urban use in urban reserve areas.

(4) For purposes of this section, "urban reserve area" means lands outside an urban growth boundary that will provide for:

(a) Future expansion over a long-term period; and

(b) The cost-effective provision of public facilities and service within the area when the lands are included within the urban growth boundary.

SECTION 7. ORS 197.650 is amended to read:

197.650. (1) A Land Conservation and Development Commission order may be appealed to the Court of Appeals in the manner provided in ORS 183.482 by the following persons:

(a) Persons who submitted comments or objections pursuant to ORS 197.251 (2) or proceedings under ORS 197.633, 197.636 or 197.644 and are appealing a commission order issued under ORS 197.251 or 197.633, 197.636 or 197.644;

(b) Persons who submitted comments or objections pursuant to procedures adopted by the commission for certification of state agency coordination programs and are appealing a certification issued under ORS 197.180 (6);

(d) Persons who submitted oral or written testimony in a proceeding before the commission pursuant to ORS 215.780.

(2) Notwithstanding ORS 183.482 (2) relating to contents of the petition, the petition shall state the nature of the order petitioner desires reviewed and whether the petitioner submitted comments or objections as provided in ORS 197.251 (2) or pursuant to ORS 197.633, 197.636 or 197.644.

(3) Notwithstanding ORS 183.482 (2) relating to service of the petition, copies of the petition shall be served by registered or certified mail upon the Department of Land Conservation and Development, the local government and all persons who filed comments or objections.

SECTION 8. ORS 197.180 is amended to read:

197.180. (1) Except as provided in ORS 197.277 or subsection (2) of this section or unless expressly exempted by another statute from any of the requirements of this section, state agencies shall carry out their planning duties, powers and responsibilities and take actions that are authorized by law with respect to programs affecting land use:

(a) In compliance with goals adopted or amended pursuant to ORS chapters 195, 196 and 197; and

(b) In a manner compatible with:

(A) Comprehensive plans and land use regulations initially acknowledged under ORS 197.251;

(B) Amendments to acknowledged comprehensive plans or land use regulations or new land use regulations acknowledged under ORS 197.625; and

(C) Amendments to acknowledged comprehensive plans or land use regulations or new land use regulations acknowledged through periodic review.

(2) State agencies need not comply with subsection (1)(b) of this section if the comprehensive plan or land use regulations are inconsistent with a state agency plan or program relating to land use that was not in effect at the time the local plan was acknowledged, and the agency has demonstrated:

(a) That the plan or program is mandated by state statute or federal law;

(b) That the plan or program is consistent with the goals;

(c) That the plan or program has objectives that cannot be achieved in a manner consistent with the comprehensive plan and land use regulations; and

(d) That the agency has complied with its certified state agency coordination program.

(3) Upon request by the Land Conservation and Development Commission, each state agency shall submit to the Department of Land Conservation and Development the following information:

(a) Agency rules and summaries of programs affecting land use;

(b) A program for coordination pursuant to ORS 197.040 (2)(e);

(d) A program for cooperation with and technical assistance to local governments.

(4) Within 90 days of receipt, the Director of the Department of Land Conservation and Development shall review the information submitted pursuant to subsection (3) of this section and shall notify each agency if the director believes the rules and programs submitted are insufficient to assure compliance with goals and compatibility with city and county comprehensive plans and land use regulations.

(5) Within 90 days of receipt of notification specified in subsection (4) of this section, the agency may revise the rules or programs and resubmit them to the director.

(6) The director shall make findings under subsections (4) and (5) of this section as to whether the rules and programs are sufficient to assure compliance with the goals and compatibility with acknowledged city and county comprehensive plans and land use regulations, and shall forward the rules and programs to the commission for its action. The commission shall either certify the rules and programs as being in compliance with the goals and compatible with the comprehensive plans and land use regulations of affected local governments or shall determine the same to be insufficient by December 31, 1990.

(7) The department shall report to the appropriate committee of the House and the Senate and to the subcommittee of the Joint Ways and Means Committee that considers the agency budget, any agency that has failed to meet the requirements of subsection (6) of this section.

(8) Any agency that has failed to meet the requirements of subsection (6) of this section shall report the reasons therefor to the appropriate committee of the House and the Senate and to the subcommittee of the Joint Ways and Means Committee that considers the agency budget.

(9) Until state agency rules and programs are certified as being in compliance with the goals and compatible with applicable city and county comprehensive plans and land use regulations, the agency shall make findings when adopting or amending its rules and programs as to the applicability and application of the goals or acknowledged comprehensive plans, as appropriate.

(10) The commission shall adopt rules establishing procedures to assure that state agency permits affecting land use are issued in compliance with the goals and compatible with acknowledged comprehensive plans and land use regulations, as required by subsection (1) of this section. The rules shall prescribe the circumstances in which state agencies may rely upon a determination of compliance or compatibility made by the affected city or county. The rules shall allow a state agency to rely upon a determination of compliance by a city or county without an acknowledged comprehensive plan and land use regulations only if the city or county determination is supported by written findings demonstrating compliance with the goals.

(11) A state agency required to have a land use coordination program shall participate in a local government land use hearing, except a hearing under ORS 197.610 to 197.625, only in a manner that is consistent with the coordination program, unless the agency:

(a) Is exempt from coordination program requirements; or

(b) Participated in the local government's periodic review pursuant to ORS 197.633 [(3)(c)] and raised the issue that is the basis for participation in the land use hearing.

(12) In carrying out programs affecting land use, a state agency is not compatible with an acknowledged comprehensive plan if it takes or approves an action that is not allowed under the plan. However, a state agency may apply statutes and rules which the agency is required by law to apply in order to deny, condition or further restrict an action of the state agency or of any applicant before the state agency provided it applies those statutes and rules to the uses planned for in the acknowledged comprehensive plan.

(13) This section does not apply to rules, programs, decisions, determinations or activities carried out under ORS 527.610 to 527.770, 527.990 (1) and 527.992.

SECTION 9. Sections 10 to 14 of this 1999 Act are added to and made a part of ORS 197.610 to 197.650.

SECTION 10. (1) The Land Conservation and Development Commission shall establish and maintain a schedule for periodic review of comprehensive plans and land use regulations. Except as necessary to coordinate approved periodic review work programs and to account for special circumstances that from time to time arise, the schedule shall reflect the following timelines:

(a) A city with a population of less than 2,500 within its urban growth boundary shall not be required to conduct periodic review unless the city lies close enough to another city that has a population of 25,000 or more within its urban growth boundary that the smaller city is significantly affected by needed housing, employment, transportation or public facility and services decisions made by the larger city;

(b) Except as provided in subsection (2) of this section, a county with a population of less than 15,000 shall not be required to conduct periodic review;

(c) A county with a population of 15,000 or more but less than 50,000, or a city with a population of 2,500 or more but less than 25,000 inside its urban growth boundary, shall conduct periodic review every 5 to 15 years after completion of the previous periodic review; and

(d) A county with a population of 50,000 or more, or a metropolitan service district or a city with a population of 25,000 or more inside its urban growth boundary, shall conduct periodic review every 5 to 10 years after completion of the previous periodic review.

(2) A county with a portion of its population within the urban growth boundary of a city subject to periodic review under this section shall conduct periodic review for that portion of the county according to the schedule and work program set for the city.

(3) The Land Conservation and Development Commission may schedule periodic review for a local government earlier than provided in subsection (1) of this section if necessary to ensure that all local governments in a region whose land use decisions would significantly affect other local governments in the region are conducting periodic review concurrently.

(4) A city or county that is exempt from periodic review under subsection (1)(a) or (b) of this section may request periodic review by the commission.

SECTION 11. (1) In order to use state and local periodic review resources most efficiently and effectively and to concentrate periodic review on adequate provision of needed housing, employment, transportation and public facilities and services, the Land Conservation and Development Commission shall adopt, amend or repeal the statewide land use planning goals, guidelines and corresponding rules as necessary to facilitate periodic review and to provide for compliance by local governments with those goals not described in ORS 197.628 (2) through the post-acknowledgment procedures of ORS 197.610 to 197.625.

(2) In the biennial report required under ORS 197.060, the commission shall report to the Legislative Assembly and the Joint Legislative Committee on Land Use on its activities implementing subsection (1) of this section.

SECTION 12. (1) Upon request of the Department of Land Conservation and Development, the Housing and Community Services Department shall review the inventory and analysis of housing, and measures taken to address the housing need, required of certain local governments under ORS 197.296. The review shall address the likely effect of measures developed by a local government under ORS 197.296 (4) on the adequacy of the supply of buildable land and opportunities to satisfy needs identified under ORS 197.296 (3).

(2) The Land Conservation and Development Commission and the Director of the Department of Land Conservation and Development shall consider the review and any recommendations of the Housing and Community Services Department when determining whether a local government has complied with the statewide land use planning goals and the requirements of ORS 197.296.

SECTION 13. (1) Upon request of the Department of Land Conservation and Development, the Economic Development Department shall review the inventory and analysis of industrial and commercial land, and measures taken to address the land needs, required of certain local governments under ORS 197.712. The review shall address the likely effect of measures developed by a local government on the adequacy of the supply of sites and opportunities to satisfy needs identified under ORS 197.712.

(2) The Land Conservation and Development Commission and the Director of the Department of Land Conservation and Development shall consider the review and any recommendations of the Economic Development Department when determining whether a local government has complied with the statewide land use planning goals and the requirements of ORS 197.712.

SECTION 14. A city with a population of 2,500 or more within its urban growth boundary that amends the urban growth boundary to include more than 50 acres or that designates urban reserve areas under ORS 195.145 shall submit the amendment or designation to the Land Conservation and Development Commission in the manner provided for periodic review under ORS 197.628 to 197.644.

SECTION 15. A city or county that is exempt from periodic review under section 10 (1)(a) or (b) of this 1999 Act may choose to continue a periodic review begun prior to the effective date of this 1999 Act.

SECTION 16. Sections 7, 8 and 9, chapter 6, Oregon Laws 1996, are repealed.

SECTION 17. If House Bill 2406 becomes law, section 1, chapter 1014, Oregon Laws 1999 (Enrolled House Bill 2406) (amending section 9, chapter 6, Oregon Laws 1996), is repealed.

SECTION 18. If this 1999 Act does not become effective until after July 1, 1999, the repeal of section 9, chapter 6, Oregon Laws 1996, by section 16 of this 1999 Act revives sections 3 to 6, chapter 6, Oregon Laws 1996. If this 1999 Act does not become effective until after July 1, 1999, this 1999 Act shall be operative retroactively to that date, and the operation and effect of sections 3 to 6, chapter 6, Oregon Laws 1996, shall continue unaffected from July 1, 1999, to the effective date of this 1999 Act and thereafter. Any otherwise lawful action taken or otherwise lawful obligation incurred under the authority of sections 3 to 6, chapter 6, Oregon Laws 1996, after July 1, 1999, and before the effective date of this 1999 Act, is ratified and approved.

SECTION 19. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect June 30, 1999.

Approved by the Governor July 12, 1999

Filed in the office of Secretary of State July 12, 1999

Effective date July 12, 1999

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