Chapter 1014 Oregon Laws 1999

Session Law

AN ACT

HB 2406

Relating to land use; creating new provisions; amending section 9, chapter 6, Oregon Laws 1996; repealing sections 1, 2 and 3, chapter [Vetoed], Oregon Laws 1999 (Enrolled House Bill 2474); and declaring an emergency.

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

SECTION 1. Section 9, chapter 6, Oregon Laws 1996, as amended by section 2, chapter 365, Oregon Laws 1997, is amended to read:

Sec. 9. Sections 3 to 7, chapter 6, Oregon Laws 1996, are repealed June 30, [1999] 2003.

SECTION 2. Section 3 of this 1999 Act is added to and made a part of ORS chapter 215.

SECTION 3. The Department of Land Conservation and Development shall develop, in conjunction with local governments and other state agencies, a computerized database that is capable of producing county-wide maps that show the diversity of Oregon's rural lands. The database shall include, at a minimum, information on soil classifications, forest capabilities, irrigated lands, croplands, actual farm use, and plan and zone designations. To create the database, the department shall use the most current soils information from the United States Natural Resources Conservation Service, or its successor agency, and may use any other related information that is readily available.

SECTION 4. Section 5 of this 1999 Act is added to and made a part of ORS chapter 197.

SECTION 5. (1) An applicant for a land use decision, limited land use decision or expedited land division or for a permit under ORS 215.428 or 227.178 may accept a condition of approval imposed under ORS 215.416 or 227.175 and file a challenge to the condition under this section. Acceptance by an applicant for a land use decision, limited land use decision, expedited land division or permit under ORS 215.428 or 227.178 of a condition of approval imposed under ORS 215.416 or 227.175 does not constitute a waiver of the right to challenge the condition of approval. Acceptance of a condition may include but is not limited to paying a fee, performing an act or providing satisfactory evidence of arrangements to pay the fee or to ensure compliance with the condition.

(2) Any action for damages under this section shall be filed in the circuit court of the county in which the application was submitted within 180 days of the date of the decision.

(3)(a) A challenge filed pursuant to this section may not be dismissed on the basis that the applicant did not request a variance to the condition of approval or any other available form of reconsideration of the challenged condition. However, an applicant shall comply with ORS 197.763 (1) prior to appealing to the Land Use Board of Appeals or bringing an action for damages in circuit court and must exhaust all local appeals provided in the local comprehensive plan and land use regulations before proceeding under this section.

(b) In addition to the requirements of ORS 197.763 (5), at the commencement of the initial public hearing, a statement shall be made to the applicant that the failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow the local government or its designee to respond to the issue precludes an action for damages in circuit court.

(c) An applicant is not required to raise an issue under this subsection unless the condition of approval is stated with sufficient specificity to enable the applicant to respond to the condition prior to the close of the final local hearing.

(4) In any challenge to a condition of approval that is subject to the Takings Clause of the Fifth Amendment to the United States Constitution, the local government shall have the burden of demonstrating compliance with the constitutional requirements for imposing the condition.

(5) In a proceeding in circuit court under this section, the court shall award costs and reasonable attorney fees to a prevailing party. Notwithstanding ORS 197.830 (14), in a proceeding before the Land Use Board of Appeals under this section, the board shall award costs and reasonable attorney fees to a prevailing party.

(6) This section applies to appeals by the applicant of a condition of approval and claims filed in state court seeking damages for the unlawful imposition of conditions of approval in a land use decision, limited land use decision, expedited land division or permit under ORS 215.428 or 227.178.

SECTION 6. Section 5 of this 1999 Act applies to conditions of approval imposed on an application for a land use decision, limited land use decision, expedited land division or permit under ORS 215.428 or 227.178 on or after the effective date of this 1999 Act.

SECTION 7. If House Bill 2474 becomes law, sections 1, 2 and 3, chapter [Vetoed], Oregon Laws 1999 (Enrolled House Bill 2474), are repealed.

SECTION 8. 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 the Secretary of State August 23, 1999

Effective date August 20, 1999

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