Chapter 853 Oregon Laws 1999

Session Law

AN ACT

HB 2278

Relating to prison siting; creating new provisions; and amending ORS 421.623 and 421.630.

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

SECTION 1. ORS 421.623 is amended to read:

421.623. (1) Within 30 days after nomination of sites as set forth in ORS 421.616, the Corrections Facilities Siting Authority shall hold a hearing within the region where each nominated site is located to receive Department of Corrections, local government, neighborhood, law enforcement and public testimony regarding the sites nominated and conditions proposed therefor.

(2) Not later than 10 days before the hearing held by the authority as required by subsection (1) of this section, any affected local government or any person may submit proposed conditions to the authority. Each proposed condition shall:

(a) Be stated separately;

(b) Be in writing;

(d) Be specific;

(e) Directly relate to any site or its proposed development, infrastructure, access thereto or physical condition on or in the immediate vicinity of such site; and

(f) Be supported by a statement of the need or reasons therefor.

(3)(a) Within 45 days after nomination of the sites as set forth in ORS 421.616, the authority shall select and rank in order of preference such sites as the Governor deems necessary or advisable for the construction and operation of corrections facilities, and specify site development conditions for each site, [based on substantial evidence in the record as a whole and] supported by findings, which findings shall address [only:]

[(a)] the criteria specified by the department pursuant to ORS 421.614 and in ORS 421.616.

(b) [The reasons for not adopting any of the proposed conditions that were submitted in accordance with subsection (2) of this section for the selected sites.] In addition to the findings required by paragraph (a) of this subsection, when the authority refuses to adopt a proposed condition submitted in accordance with subsection (2) of this section, the authority shall state on the record why, in its judgment, the refusal to adopt the proposed condition is in the public interest.

(4) If one or more of the nominated sites meets the mandatory criteria established by the department pursuant to ORS 421.614, the local jurisdiction demonstrates interest as described in subsection (5) of this section, and the authority selects a site that has not demonstrated interest as described under subsection (5) of this section, the authority shall make findings that demonstrate why it selected the site in which the local jurisdiction did not demonstrate interest.

(5) A local jurisdiction may demonstrate interest by presenting to the Department of Corrections a resolution that sets forth such interest no later than 30 days from issuance of an executive order under ORS 421.616.

SECTION 2. ORS 421.630 is amended to read:

421.630. (1) Notwithstanding ORS 183.400, 183.482, 183.484 and 197.825 or any other law, exclusive jurisdiction for review of any decision relating to the establishment of, addition to, remodeling of or siting of a corrections facility including the establishment of criteria under ORS 421.614, the nomination of sites under ORS 421.616 or any actions under ORS 421.623 or 421.626 is conferred upon the Supreme Court.

(2) Proceedings for review shall be instituted when any person or local government adversely affected files a petition with the Supreme Court that meets the following requirements:

(a) The petition shall be filed within 21 days of issuance of the specific decision on which the petition is based, except that a petition based on a decision to adopt criteria pursuant to ORS 421.614 shall be filed within 21 days of the issuance of the criteria. A decision made pursuant to ORS 421.623 or 421.626 with respect to any site may be reviewed by the Supreme Court as provided in ORS 421.611 to 421.630.

(b) The petition shall state the nature of the decision the petitioner desires reviewed, in what manner the decision below rejected the position raised by the petitioner below and shall state, by supporting affidavit, the facts showing how the petitioner is adversely affected. In the case of a decision by the Corrections Facilities Siting Authority, the petitioner is adversely affected only when the petitioner can establish by clear and convincing evidence in the affidavit that:

(A) The petitioner participated before the authority;

(B) The petitioner will be within sight or sound of the facility or is affected economically in excess of $5,000 in value; and

(c) The petitioner shall serve a copy of the petition by registered or certified mail upon the Department of Corrections, the authority and the Attorney General.

(d) Within 30 days after service of the petition, the department shall transmit to the Supreme Court, or a special master it designates, the original or a certified copy of the entire record and any findings that may have been made. The court shall not substitute its judgment for that of the Governor, the department or the authority as to any issue of fact or issue within executive branch discretion.

(3) If the petition is for review of a decision made by the siting authority, the record shall include only:

(a) The report of the authority.

(b) The conditions, if any, on the nomination.

(c) The transcript of the hearing before the authority. However, on motion of the authority, the Supreme Court may limit the transcript to those matters in which the petitioner is interested as provided in subsection (2)(b) of this section.

(d) Evidence submitted by the petitioner to the authority, but on motion of any party to the judicial review, the Supreme Court may supplement the record with additional materials from the hearing before the authority.

(e) The transcript of the decision-making meeting of the authority.

(f) The authority findings and decision.

(4) Upon review, the Supreme Court may reverse or remand the decision if the Supreme Court [finds] concludes that the department, the authority or the Governor:

(a) Exceeded the statutory or constitutional authority of the decision maker; [or]

(b) Made a decision based on findings that are not supported by substantial evidence[. For purposes of this subsection and ORS 421.623 (3), "substantial evidence" means evidence that, taken in isolation, a reasonable mind could accept as adequate to support a conclusion. The substantiality of the evidence shall not be evaluated by considering the whole record] in the record as described in ORS 183.482 (8)(c); or

(c) Refused to adopt a proposed condition submitted under ORS 421.623 (2) and failed to provide the statement required by ORS 421.623 (3)(b).

(5) Proceedings for review under this section shall be given priority over all other matters before the Supreme Court.

SECTION 3. The amendments to ORS 421.623 and 421.630 by sections 1 and 2 of this 1999 Act apply to decisions of the Department of Corrections, Corrections Facilities Siting Authority or Governor made on or after the effective date of this 1999 Act.

Approved by the Governor July 23, 1999

Filed in the office of Secretary of State July 23, 1999

Effective date October 23, 1999

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