Chapter 982 Oregon Laws 1999

Session Law

AN ACT

SB 686

Relating to corrections; and declaring an emergency.

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

SECTION 1. Sections 2 to 14 of this 1999 Act are added to and made a part of ORS chapter 421.

SECTION 2. As used in sections 2 to 14 of this 1999 Act:

(1) "Adversely affected" has the meaning used in ORS 183.480. A person within sight or sound of the women's correctional facility and intake center complex is presumed to be adversely affected by decisions or actions under sections 2 to 14 of this 1999 Act.

(2) "Complex" means a women's correctional facility and intake center, administration and other associated buildings, roads, sewer and water lines and other public services, and any other improvements made to the real property approved for siting under section 5 of this 1999 Act.

(3) "Public services" means off-site infrastructure to support the construction and operation of a complex. "Public services" includes but is not limited to electric and telecommunications services, sewer and water systems, fire and life safety services and road improvements.

(4) "State building code" has the meaning given that term in ORS 455.010.

SECTION 3. When directed by executive order of the Governor, the Department of Corrections shall:

(1) Propose a site for the construction and operation of a women's correctional facility and intake center complex in this state. The department shall consider the following criteria:

(a) Interest demonstrated by local jurisdictions in having the site selected for a women's correctional facility and intake center complex. A local jurisdiction may demonstrate interest by presenting to the Director of the Department of Corrections a resolution setting forth such interest.

(b) The availability or the ability of local jurisdictions to provide adequate infrastructure to serve the complex.

(c) Natural features that allow design features to promote compatibility with surroundings.

(d) The availability of the site by purchase, condemnation, exchange or otherwise.

(e) The sufficiency of the size and shape of the site to accommodate the complex.

(f) Whether the site is located in an area designated as a 100-year flood plain on a current map of the Federal Emergency Management Agency.

(g) Whether the site is located in a tsunami inundation zone.

(h) Whether the site either has infrastructure available on-site or the infrastructure otherwise can be provided and maintained. For purposes of this paragraph, "infrastructure" includes but is not limited to:

(A) Water for domestic use, fire protection and irrigation;

(B) Sanitary sewer collection and treatment;

(C) Surface drainage storm water collection and disposal; and

(D) Electricity, natural gas, oil or propane and telecommunications.

(i) Whether the site is served by a road or highway system capable of supporting the complex. New roadway improvements should be able to be constructed and available at the time the complex is scheduled to open.

(2) Publish an initial report stating the conclusions of the department with regard to the proposed site.

(3) Provide copies of the report to:

(a) Each of the county commissioners in the county where the proposed site is located;

(b) Each of the city council members where the proposed site is located if the site is in a city;

(c) Governmental agencies that may be called upon to provide services to the complex, including police, fire, water, sewage, roads and public transit; and

(d) Any member of the public who requests a copy and pays a fee as set by the department.

(4) Provide media notice regarding the process and the proposed site, including but not limited to publication in a newspaper of general circulation in the county or counties where the site is located.

SECTION 4. (1) Within 21 days after a site is proposed under section 3 of this 1999 Act, the Director of the Department of Corrections shall hold a hearing within the region where the proposed site is located to receive Department of Corrections, local government, neighborhood, law enforcement and public testimony regarding the proposed site.

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

(a) Be stated separately;

(b) Be in writing;

(c) Be specific;

(d) Directly relate to the site and the criteria described in section 3 (1) of this 1999 Act; and

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

(3) Within seven days following the hearing required under subsection (1) of this section, the director shall issue a final report regarding the proposed site. If the director recommends that the proposed site be used for the construction and operation of a women's correctional facility and intake center complex, the director shall specify in the report those conditions the director deems necessary and appropriate for the site.

(4) If the director recommends a site for which the local government did not express interest as described in section 3 (1)(a) of this 1999 Act, the director shall make findings that demonstrate why the director selected the site.

SECTION 5. Within 30 days of the date of the executive order described in section 3 of this 1999 Act, the Director of the Department of Corrections shall notify the Governor of the site proposed for the construction and operation of a women's correctional facility and intake center complex. The director shall make available for the Governor's review the final report required under section 4 of this 1999 Act and any other documents or materials that the Governor may request. The Governor shall approve or disapprove the site as the Governor deems necessary or advisable.

SECTION 6. Notwithstanding ORS 421.611 to 421.630 or any actions taken under ORS 421.611 to 421.630, and notwithstanding sections 3, 4 and 5 of this 1999 Act, the real property known as the F. H. Dammasch State Hospital shall not be used as a Department of Corrections facility.

SECTION 7. (1) Notwithstanding ORS 195.025, 197.175, 197.180, 215.130 (4), 227.286 or 455.150 or any other provision of law, including but not limited to statutes, ordinances, regulations and charter provisions, the Director of the Department of Consumer and Business Services, through the Building Codes Division, shall exercise authority for the issuance of all permits required under the state building code for the construction and operation of the women's correctional facility and intake center complex approved under section 5 of this 1999 Act.

(2) All other state agencies, including but not limited to the Department of Environmental Quality, shall issue such permits within the authority of the agency as may be necessary for the construction and operation of the complex.

(3) Within the authority of the city, county or political subdivision, each city, county and political subdivision shall issue the appropriate permits, licenses and certificates not issued under subsections (1) and (2) of this section, including all necessary construction permits over public rights of way, and enter into any intergovernmental agreements as may be necessary for the construction and operation of the complex.

(4) A state agency or local government that issues a permit, license or certificate under this section shall continue to exercise enforcement authority over the permit, license or certificate.

(5) Except as provided in section 10 of this 1999 Act, nothing in sections 2 to 14 of this 1999 Act expands or otherwise alters the obligations of a city, county or political subdivision to pay for infrastructure improvements for the complex.

(6)(a) State agencies and local governments shall issue any permit, license or certificate required under subsections (1) to (3) of this section within 60 days of receiving a completed application for the permit, license or certificate from the Department of Corrections or a person acting on behalf of the department. A state agency or local government may impose reasonable conditions on any permit, license or certificate but may not deny the permit, license or certificate unless denial is required under federal law.

(b) If a permit, license or certificate required under this section is not issued within 60 days of receiving a completed application, the Department of Corrections may file a petition for a writ of mandamus in the circuit court for the jurisdiction of the affected local government to compel issuance of the permit, license or certificate. The writ shall issue unless the local government can demonstrate by clear and convincing evidence that issuing the permit, license or certificate would violate a substantive provision of the state building code, exceed the local government's statutory authority or violate federal law.

(c) Proceedings on a petition for a writ of mandamus under this subsection shall comply with the applicable provisions of ORS chapter 34.

(7) The issuance of any permit, license or certificate under this section and any construction or development undertaken pursuant to such permit, license or certificate shall not be considered in support of or in opposition to an application for a land use decision under ORS chapter 197, 215 or 227.

SECTION 8. (1) In accordance with the applicable provisions of ORS 183.310 to 183.550 and notwithstanding ORS 455.035, the Director of the Department of Consumer and Business Services shall adopt such rules as the director determines necessary to implement the provisions of section 7 of this 1999 Act.

(2) The director shall adopt temporary rules under ORS 183.335 (5) within 21 days of the effective date of this 1999 Act, and permanent rules within 180 days of the effective date of this 1999 Act.

SECTION 9. (1) Notwithstanding ORS 183.400, 183.482, 183.484 or 197.825 or any other law, review of any decision or action relating to the issuance or denial of a permit, license or certificate under section 7 of this 1999 Act is as described in this section.

(2) A person or governmental entity adversely affected by a decision or action may institute a proceeding for review by filing a petition in Marion County Circuit Court that meets the following requirements:

(a) The petition must be filed within 21 days of issuance of the specific decision or action on which the petition is based.

(b) The petition must include the following:

(A) A statement of the nature of the decision or action the petitioner desires to be reviewed.

(B) A statement of the constitutional, statutory or other legal provision providing a basis for the challenge.

(C) A statement of whether the validity of the decision or action depends on factual findings and whether it is necessary to create a record in order to review the challenge.

(D) A statement and supporting affidavit showing how the petitioner is adversely affected by the decision or action.

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

(3) The court may affirm, reverse or remand the decision or action. The court shall reverse or remand the decision or action if the court finds that the entity making the decision or taking the action:

(a) Exceeded its statutory or constitutional authority; or

(b) Made a decision or took an action, the validity of which depends on the existence of one or more facts, when the requisite fact or facts do not exist.

(4) As to any decision or action, the validity of which depends on the existence of a particular fact:

(a) The court shall first decide whether any claims of error require fact-finding because the challenged decision or action depends on the existence of one or more facts. If the court determines that the claim of error requires fact-finding, the court shall decide whether additional evidence is required in order to determine whether the necessary fact exists. To be considered by the court, the evidence, if required, need not have been before the decision maker at the time of making the decision or taking the action.

(b) In determining the existence of a necessary fact, the fact shall be deemed to exist if the court finds, based on the record presented to or made before it, that there is evidence, taken in isolation, from which a reasonable person could conclude that the fact exists.

(5) If the court determines that the claim of error may be resolved without taking additional evidence, the court shall certify the matter to the Supreme Court and the Supreme Court shall accept the certification. The Supreme Court shall conduct its review as provided in subsections (3) and (4) of this section.

(6) Any party to the proceedings before the court may appeal from the judgment of that court to the Supreme Court by filing a petition meeting the criteria set forth in subsection (2) of this section. The petition must be filed within 21 days after the entry of the judgment. The Supreme Court shall conduct its review as provided in subsections (3) and (4) of this section.

SECTION 10. (1) The Department of Corrections shall obtain public services necessary for the construction and operation of a women's correctional facility and intake center complex in the manner provided under ORS 421.628 (4) to (15).

(2) Regardless of the territorial limits of the public body providing public services to the complex, and notwithstanding any other law, upon request or application from the department, the public body shall provide any public service necessary for the construction and operation of the complex. During the pendency of any mediation, arbitration or judicial review proceeding under this section, the public body shall provide any public service necessary for the continued construction and operation of the complex, as requested by the department.

(3) The existence of a public service provided to the complex shall not be a consideration in support of or in opposition to an application for a land use decision, limited land use decision or expedited land division under ORS chapter 197, 215 or 227.

SECTION 11. (1) Within 60 days after the effective date of this 1999 Act, the Director of the Department of Corrections shall form a Prison Advisory Committee. The committee shall meet to discuss, and make recommendations to the director about, potential construction and operational impacts of the women's correctional facility and intake center complex. Impacts may include plans for buffering, lighting and noise mitigation to minimize intrusion into the privacy of surrounding residences. The director shall consider the recommendations and shall adopt such recommendations as practicable, considering safety, security and operational needs of the complex.

(2) The Department of Corrections shall maintain a policy or plan for notifying local jurisdictions and surrounding residents of inmate escapes and other incidents that, in the director's judgment, may raise local safety concerns.

(3) Any decision made or action taken under this section is final and is not subject to judicial review.

SECTION 12. (1) Except as provided in section 9 of this 1999 Act and notwithstanding ORS 183.400, 183.482, 183.484 or 197.825 or any other law, exclusive jurisdiction for review of the constitutionality of sections 2 to 11 of this 1999 Act and any decision relating to the siting of a women's correctional facility and intake center complex under sections 3, 4, 5, 8, 10 and 11 of this 1999 Act is conferred upon the Supreme Court.

(2) A person or local government adversely affected by sections 2 to 11 of this 1999 Act may institute a proceeding for review by filing with the Supreme Court a petition that meets the following requirements:

(a) The petition for review of the constitutionality of this 1999 Act must be filed within 21 days after the effective date of this 1999 Act. The petition must include the following:

(A) A statement of the constitutional provision providing a basis for the challenge.

(B) A statement and supporting affidavit showing how the petitioner is adversely affected.

(b) A petition for review of a decision made under sections 3, 4, 5, 8, 10 and 11 of this 1999 Act shall be filed within 21 days of issuance of the specific decision on which the petition is based.

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

(4) A petition filed under subsection (2)(b) of this section shall state the nature of the decision the petitioner desires reviewed and in what manner the decision below rejected the position raised by the petitioner.

(5) Within 30 days after service of the petition under subsection (2)(a) of this section, 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 or the Director of the Department of Corrections as to any issue of fact or issue within executive branch discretion.

(6) If the petition is filed under subsection (2)(b) of this section, the record shall include only:

(a) The director's final report prepared under section 4 of this 1999 Act.

(b) The conditions, if any, on the proposed site.

(c) The transcript of the hearing before the department. However, on motion of the director, 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 director, 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 director.

(7) Upon review, the Supreme Court may reverse or remand a decision made under sections 3, 4, 5, 8, 10 and 11 of this 1999 Act if the Supreme Court finds the director, Department of Corrections or the Governor:

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

(b) Made a decision not supported by substantial evidence. For purposes of this subsection, "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.

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

SECTION 13. (1) To the extent practicable, the appropriate court shall consolidate any proceedings for review under sections 2 to 14 of this 1999 Act.

(2) A circuit court, the Court of Appeals and the Supreme Court shall give proceedings for review under sections 2 to 14 of this 1999 Act, and all appeals therefrom, priority over all other matters before the court.

(3) Except for proceedings on a petition for a writ of mandamus under section 7 of this 1999 Act, the circuit court may not issue an injunction or a stay in a proceeding under sections 2 to 14 of this 1999 Act.

SECTION 14. The condemnation of any real property required under this 1999 Act by the Department of Corrections, or on behalf of the department, shall be conducted according to the applicable provisions of ORS chapter 35. Amounts paid in just compensation for condemned real property shall be determined according to ORS 35.346.

SECTION 15. 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 on its passage.

Approved by the Governor August 20, 1999

Filed in the office of Secretary of State August 20, 1999

Effective date August 20, 1999

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