Bill Text: OR HB2129 | 2011 | Regular Session | Enrolled

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Bill Title: Relating to procedure for post-acknowledgment change to local land use plans.

Spectrum: Unknown

Status: (Passed) 2011-06-09 - Chapter 280, (2011 Laws): Effective date January 1, 2012. [HB2129 Detail]

Download: Oregon-2011-HB2129-Enrolled.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

                            Enrolled

                         House Bill 2129

Introduced and printed pursuant to House Rule 12.00. Presession
  filed (at the request of Governor John A. Kitzhaber for
  Department of Land Conservation and Development)

                     CHAPTER ................

                             AN ACT

Relating to procedure for post-acknowledgment change to local
  land use plans; creating new provisions; and amending ORS
  197.254, 197.610, 197.615, 197.620, 197.625, 197.830, 215.427,
  215.435, 227.178 and 227.181.

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 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, the department shall notify the local government
of: - }
    { - (a) Any concerns the department has concerning the
proposal; and - }
    { - (b) Advisory recommendations on actions the department
considers necessary to address the concerns, including, but not

Enrolled House Bill 2129 (HB 2129-A)                       Page 1

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. - }
   { +  (1) Before a local government adopts a change, including
additions and deletions, to an acknowledged comprehensive plan or
a land use regulation, the local government shall submit the
proposed change to the Director of the Department of Land
Conservation and Development. The Land Conservation and
Development Commission shall specify, by rule, the deadline for
submitting proposed changes, but in all cases the proposed change
must be submitted at least 20 days before the local government
holds the first evidentiary hearing on adoption of the proposed
change. The commission may not require a local government to
submit the proposed change more than 35 days before the first
evidentiary hearing.
  (2) If a local government determines that emergency
circumstances beyond the control of the local government require
expedited review, the local government shall submit the proposed
changes as soon as practicable, but may submit the proposed
changes after the applicable deadline.
  (3) Submission of the proposed change must include all of the
following materials:
  (a) The text of the proposed change to the comprehensive plan
or land use regulation implementing the plan;
  (b) If a comprehensive plan map or zoning map is created or
altered by the proposed change, a copy of the map that is created
or altered;
  (c) A brief narrative summary of the proposed change and any
supplemental information that the local government believes may
be useful to inform the director or members of the public of the
effect of the proposed change;
  (d) The date set for the first evidentiary hearing;
  (e) The form of notice or a draft of the notice to be provided
under ORS 197.763, if applicable; and
  (f) Any staff report on the proposed change or information
describing when the staff report will be available, and how a
copy of the staff report can be obtained.
  (4) The director shall cause notice of the proposed change to
the acknowledged comprehensive plan or the land use regulation to
be provided to:
  (a) Persons that have requested notice of changes to the
acknowledged comprehensive plan of the particular local
government, using electronic mail, electronic bulletin board,
electronic mailing list server or similar electronic method; and
  (b) Persons that are generally interested in changes to
acknowledged comprehensive plans, by posting notices periodically
on a public website using the Internet or a similar electronic
method.
  (5) When a local government determines that the land use
statutes, statewide land use planning goals and administrative
rules of the commission that implement either the statutes or the
goals do not apply to a proposed change to the acknowledged
comprehensive plan and the land use regulations, submission of
the proposed change under this section is not required.

Enrolled House Bill 2129 (HB 2129-A)                       Page 2

  (6) If, after submitting the materials described in subsection
(3) of this section, the proposed change is altered to such an
extent that the materials submitted no longer reasonably describe
the proposed change, the local government must notify the
Department of Land Conservation and Development of the
alterations to the proposed change and provide a summary of the
alterations along with any alterations to the proposed text or
map to the director at least 10 days before the final evidentiary
hearing on the proposal. The director shall cause notice of the
alterations to be given in the manner described in subsection (4)
of this section. Circumstances requiring resubmission of a
proposed change may include, but are not limited to, a change in
the principal uses allowed under the proposed change or a
significant change in the location at which the principal uses
would be allowed, limited or prohibited.
  (7) When the director determines that a proposed change to an
acknowledged comprehensive plan or a land use regulation may not
be in compliance with land use statutes or the statewide land use
planning goals, including administrative rules implementing
either the statutes or the goals, the department shall notify the
local government of the concerns at least 15 days before the
final evidentiary hearing, unless there is only one hearing or
the proposed change has been modified to the extent that
resubmission is required under subsection (6) of this section.
  (8) Notwithstanding subsection (7) of this section, the
department may provide advisory recommendations to the local
government concerning the proposed change to the acknowledged
comprehensive plan or land use regulation. + }
  SECTION 2. ORS 197.615 is amended to read:
  197.615.   { - (1) A local government that amends an
acknowledged comprehensive plan or land use regulation or adopts
a new land use regulation shall mail or otherwise submit to the
Director of the Department of Land Conservation and Development a
copy of the adopted text of the comprehensive plan provision or
land use regulation together with the findings adopted by the
local government. The text and findings must be mailed or
otherwise submitted not later than five working days after the
final decision by the governing body. If the proposed amendment
or new regulation that the director received under ORS 197.610
has been substantially amended, the local government shall
specify the changes that have been made in the notice provided to
the director. If the text and findings are mailed, they shall
include a signed statement by the person mailing them indicating
the date of deposit in the mail. - }
    { - (2)(a) On the same day that the text and findings are
mailed or delivered, the local government also shall mail or
otherwise submit notice to persons who: - }
    { - (A) Participated in the proceedings leading to the
adoption of the amendment to the comprehensive plan or land use
regulation or the new land use regulation; and - }
    { - (B) Requested of the local government in writing that
they be given such notice. - }
    { - (b) The notice required by this subsection shall: - }
    { - (A) Describe briefly the action taken by the local
government; - }
    { - (B) State the date of the decision; - }
    { - (C) If delivered by mail, include a certificate of
mailing containing a statement signed by the person mailing it
indicating the date the notice was deposited in the mail; - }

Enrolled House Bill 2129 (HB 2129-A)                       Page 3

    { - (D) List the place where and the time when the amendment
to the acknowledged comprehensive plan or land use regulation or
the new land use regulation, and findings, may be reviewed;
and - }
    { - (E) Explain the requirements for appealing the action of
the local government under ORS 197.830 to 197.845. - }
    { - (3) Not later than five working days after receipt of an
amendment to an acknowledged comprehensive plan or land use
regulation or a new land use regulation submitted under
subsection (1) of this section, the director shall notify by mail
or other submission any persons who have requested notification.
The notice shall: - }
    { - (a) Explain the requirements for appealing the action of
the local government under ORS 197.830 to 197.845; and - }
    { - (b) List the locations where the comprehensive plan or
land use regulation amendment or new land use regulation may be
reviewed. - }
   { +  (1) When a local government adopts a proposed change to
an acknowledged comprehensive plan or a land use regulation, the
local government shall submit the decision to the Director of the
Department of Land Conservation and Development within 20 days
after making the decision.
  (2) The submission must contain the following materials:
  (a) A copy of the signed decision, the findings and the text of
the change to the comprehensive plan or land use regulation;
  (b) If a comprehensive plan map or zoning map is created or
altered by the proposed change, a copy of the map that is created
or altered;
  (c) A brief narrative summary of the decision, including a
summary of substantive differences from the proposed change
submitted under ORS 197.610 and any supplemental information that
the local government believes may be useful to inform the
director or members of the public of the effect of the actual
change; and
  (d) A statement by the individual transmitting the submission,
identifying the date of the decision and the date of the
submission.
  (3) The director shall cause notice of the decision and an
explanation of the requirements for appealing the land use
decision under ORS 197.830 to 197.845 to be provided to:
  (a) Persons that have requested notice of changes to the
acknowledged comprehensive plan of the particular local
government, using electronic mail, electronic bulletin board,
electronic mailing list server or similar electronic method; and
  (b) Persons that are generally interested in changes to
acknowledged comprehensive plans, by posting notices periodically
on a public website using the Internet or a similar electronic
method.
  (4) On the same day the local government submits the decision
to the director, the local government shall mail, or otherwise
deliver, notice to persons that:
  (a) Participated in the local government proceedings that led
to the decision to adopt the change to the acknowledged
comprehensive plan or the land use regulation; and
  (b) Requested in writing that the local government give notice
of the change to the acknowledged comprehensive plan or the land
use regulation.
  (5) The notice required by subsection (4) of this section must
state how and where the materials described in subsection (2) of
this section may be obtained and must:

Enrolled House Bill 2129 (HB 2129-A)                       Page 4

  (a) Include a statement by the individual delivering the notice
that identifies the date on which the notice was delivered and
the individual delivering the notice;
  (b) List the locations and times at which the public may review
the decision and findings; and
  (c) Explain the requirements for appealing the land use
decision under ORS 197.830 to 197.845. + }
  SECTION 3. ORS 197.620 is amended to read:
  197.620. (1)   { - Notwithstanding the requirements of ORS
197.830 (2), persons who participated either orally or in writing
in the local government proceedings leading to the adoption of an
amendment to an acknowledged comprehensive plan or land use
regulation or a new land use regulation may appeal the decision
to the Land Use Board of Appeals under ORS 197.830 to
197.845. - }  A decision to not adopt a legislative amendment or
a new land use regulation is not appealable   { - except
where - }   { + unless + } the amendment is necessary to address
the requirements of a new or amended goal, rule or statute.
  (2) Notwithstanding the requirements of ORS 197.830 (2)  { - ,
the Director of the Department of Land Conservation and
Development or any other person may file an appeal of the local
government's decision under ORS 197.830 to 197.845, if an
amendment to an acknowledged comprehensive plan or land use
regulation or a new land use regulation differs from the proposal
submitted under ORS 197.610 to such a degree that the notice
under ORS 197.610 did not reasonably describe the nature of the
local government final action. - }   { + that a person have
appeared before the local government orally or in writing to seek
review of a land use decision, the Director of the Department of
Land Conservation and Development or any other person may appeal
the decision to the Land Use Board of Appeals if:
  (a) The local government failed to submit all of the materials
described in ORS 197.610 (3) or, if applicable, ORS 197.610 (6),
and the failure to submit the materials prejudiced substantial
rights of the Department of Land Conservation and Development or
the person;
  (b) Except as provided in subsection (3) of this section, the
local government submitted the materials described in ORS 197.610
(3) or, if applicable, ORS 197.610 (6), after the deadline
specified in ORS 197.610 (1) or (6) or rules of the Land
Conservation and Development Commission, whichever is applicable;
or
  (c) The decision differs from the proposed changes submitted
under ORS 197.610 to such an extent that the materials submitted
under ORS 197.610 do not reasonably describe the decision.
  (3) Subsection (2)(b) of this section does not authorize an
appeal if the local government cures an untimely submission of
materials as provided in this subsection. A local government may
cure the untimely submission of materials by either:
  (a) Postponing the date for the final evidentiary hearing by
the greater of 10 days or the number of days by which the
submission was late; or
  (b) Holding the evidentiary record open for an additional
period of time equal to 10 days or the number of days by which
the submission was late, whichever is greater. Additionally, the
local government shall provide notice of the postponement or
record extension to the Department of Land Conservation and
Development. + }
  SECTION 4. ORS 197.625 is amended to read:

Enrolled House Bill 2129 (HB 2129-A)                       Page 5

  197.625.   { - (1) If a notice of intent to appeal is not filed
within the 21-day period set out in ORS 197.830 (9), the
amendment to the acknowledged comprehensive plan or land use
regulation or the new land use regulation shall be considered
acknowledged upon the expiration of the 21-day period. An
amendment to an acknowledged comprehensive plan or land use
regulation is not considered acknowledged unless the notices
required under ORS 197.610 and 197.615 have been submitted to the
Director of the Department of Land Conservation and Development
and: - }
    { - (a) The 21-day appeal period has expired; or - }
    { - (b) If an appeal is timely filed, the board affirms the
decision or the appellate courts affirm the decision. - }
    { - (2) If the decision adopting an amendment to an
acknowledged comprehensive plan or land use regulation or a new
land use regulation is affirmed on appeal under ORS 197.830 to
197.855, the amendment or new regulation shall be considered
acknowledged upon the date the appellate decision becomes
final. - }
    { - (3)(a) Prior to its acknowledgment, the adoption of a new
comprehensive plan provision or land use regulation or an
amendment to a comprehensive plan or land use regulation is
effective at the time specified by local government charter or
ordinance and is applicable to land use decisions, expedited land
divisions and limited land use decisions if the amendment was
adopted in substantial compliance with ORS 197.610 and 197.615
unless a stay is granted under ORS 197.845. - }
    { - (b) Any approval of a land use decision, expedited land
division or limited land use decision subject to an
unacknowledged amendment to a comprehensive plan or land use
regulation shall include findings of compliance with those land
use goals applicable to the amendment. - }
    { - (c) The issuance of a permit under an effective but
unacknowledged comprehensive plan or land use regulation shall
not be relied upon to justify retention of improvements so
permitted if the comprehensive plan provision or land use
regulation does not gain acknowledgment. - }
    { - (d) The provisions of this subsection apply to
applications for land use decisions, expedited land divisions and
limited land use decisions submitted after February 17, 1993, and
to comprehensive plan and land use regulation amendments
adopted: - }
    { - (A) After June 1, 1991, pursuant to periodic review
requirements under ORS 197.628, 197.633 and 197.636; - }
    { - (B) After June 1, 1991, to meet the requirements of ORS
197.646; and - }
    { - (C) After November 4, 1993. - }
    { - (4) The director shall issue certification of the
acknowledgment upon receipt of an affidavit from the board
stating either: - }
    { - (a) That no appeal was filed within the 21 days allowed
under ORS 197.830 (9); or - }
    { - (b) The date the appellate decision affirming the
adoption of the amendment or new regulation became final. - }
    { - (5) The board shall issue an affidavit for the purposes
of subsection (4) of this section within five days of receiving a
valid request from the local government. - }
    { - (6) After issuance of the notice provided in ORS 197.633,
nothing in this section shall prevent the Land Conservation and
Development Commission from entering an order pursuant to ORS

Enrolled House Bill 2129 (HB 2129-A)                       Page 6

197.633, 197.636 or 197.644 to require a local government to
respond to the standards of ORS 197.628. - }
   { +  (1) A local decision adopting a change to an acknowledged
comprehensive plan or a land use regulation is deemed to be
acknowledged when the local government has complied with the
requirements of ORS 197.610 and 197.615 and either:
  (a) The 21-day appeal period set out in ORS 197.830 (9) has
expired and a notice of intent to appeal has not been filed; or
  (b) If an appeal has been timely filed, the Land Use Board of
Appeals affirms the local decision or, if an appeal of the
decision of the board is timely filed, an appellate court affirms
the decision.
  (2) If the local decision adopting a change to an acknowledged
comprehensive plan or a land use regulation is affirmed on appeal
under ORS 197.830 to 197.855, the comprehensive plan or the land
use regulation, as modified, is deemed to be acknowledged upon
the date the decision of the board or the decision of an
appellate court becomes final.
  (3) Prior to acknowledgment of a change to an acknowledged
comprehensive plan or a land use regulation:
  (a) The change is effective at the time specified by local
government charter or ordinance; and
  (b) If the change was adopted in substantial compliance with
ORS 197.610 and 197.615, the local government shall apply the
change to land use decisions, expedited land divisions and
limited land use decisions unless a stay is granted under ORS
197.845.
  (4) Approval of a land use decision, expedited land division or
limited land use decision that is subject to an effective but
unacknowledged provision of a comprehensive plan or a land use
regulation must include findings of compliance with land use
statutes, statewide land use planning goals and administrative
rules of the Land Conservation and Development Commission
implementing the statutes or goals that apply to the decision and
that the unacknowledged provision implements.
  (5) If an effective but unacknowledged provision of a
comprehensive plan or a land use regulation fails to gain
acknowledgment, a permit or zone change approved, in whole or in
part, on the basis of the change does not justify retention of
the improvements that were authorized by the permit or zone
change.
  (6) If requested by a local government, the Director of the
Department of Land Conservation and Development shall issue
certification of the acknowledgment upon receipt of an affidavit
from:
  (a) The local government, attesting that the change to the
acknowledged comprehensive plan or the land use regulation was
accomplished in compliance with ORS 197.610 and 197.615; and
  (b) The Land Use Board of Appeals, stating either:
  (A) That no notice of appeal was filed within the 21 days
allowed under ORS 197.830 (9); or
  (B) The date the decision of the board or the decision of an
appellate court affirming the change to the acknowledged
comprehensive plan or the land use regulation became final.
  (7) The board shall issue an affidavit for the purposes of
subsection (6) of this section within five days after receiving a
valid request from the local government. + }
  SECTION 5.  { + Section 6 of this 2011 Act is added to and made
a part of ORS 197.610 to 197.625. + }

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  SECTION 6.  { + (1) Notwithstanding contrary provisions of
state and local law, a local government that proposes a change to
an acknowledged comprehensive plan or a land use regulation
solely for the purpose of conforming the plan and regulations to
new requirements in a land use statute, statewide land use
planning goal or rule of the Land Conservation and Development
Commission implementing the statutes or goals may take action to
change the comprehensive plan or the land use regulation without
holding a public hearing if:
  (a) The local government gives notice to the Department of Land
Conservation and Development of the proposed change in the manner
provided by ORS 197.610 and 197.615; and
  (b) The department confirms in writing that the only effect of
the proposed change is to conform the comprehensive plan or the
land use regulations to the new requirements.
  (2) Notwithstanding the requirement under ORS 197.830 (2) that
a person must have appeared before the local government orally or
in writing, a person that has not appeared may petition for
review of the decision under subsection (1) of this section
solely to determine whether the only effect of the local decision
is to conform the comprehensive plan or the land use regulation
to the new requirements. + }
  SECTION 7. ORS 197.254 is amended to read:
  197.254. (1) A state agency   { - shall be - }   { + is + }
barred { + , + } after the date set for submission of programs by
the Land Conservation and Development Commission as provided in
ORS 197.180 (4), from contesting a request for acknowledgment
submitted by a local government under ORS 197.251 or from filing
an appeal   { - under ORS 197.620 (1) or (2) - }  { +  of a
post-acknowledgement change under ORS 197.610 to 197.625 to a
comprehensive plan or a land use regulation + }, if the
commission finds that:
  (a) The state agency has not complied with ORS 197.180; or
  (b) The state agency has not coordinated its plans, programs or
rules affecting land use with the comprehensive plan or land use
regulations of the city or county pursuant to a coordination
program approved by the commission under ORS 197.180.
  (2) A state agency   { - shall be - }   { + is + } barred from
seeking a commission order under ORS 197.644 requiring amendment
of a local government comprehensive plan or  { + a + } land use
regulation in order to comply with the agency's plan or program
unless the agency has first requested the amendment from the
local government and has had its request denied.
  (3) A special district   { - shall be - }   { + is + } barred
from contesting a request for initial compliance acknowledgment
submitted by a local government under ORS 197.251 or from filing
an appeal   { - under ORS 197.620 (1) or (2) - }   { + of a
post-acknowledgement change under ORS 197.610 to 197.625 to a
comprehensive plan or a land use regulation + }, if the county or
metropolitan service district assigned coordinative functions
under ORS 195.025 (1) finds that:
  (a) The special district has not entered into a cooperative
agreement under ORS 195.020; or
  (b) The special district has not coordinated its plans,
programs or regulations affecting land use with the comprehensive
plan or land use regulations of the local government pursuant to
its cooperative agreement made under ORS 195.020.
  (4) A special district   { - shall be - }   { + is + } barred
from seeking a commission order under ORS 197.644 requiring
amendment of a local government comprehensive plan or  { + a + }

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land use regulation in order to comply with the special
district's plan or program unless the special district has first
requested the amendment from the local government and has had its
request denied.
  SECTION 8.  { + ORS 197.651 is added to and made a part of ORS
197.628 to 197.650. + }
  SECTION 9. ORS 197.830 is amended to read:
  197.830. (1) Review of land use decisions or limited land use
decisions under ORS 197.830 to 197.845 shall be commenced by
filing a notice of intent to appeal with the Land Use Board of
Appeals.
  (2) Except as provided in ORS 197.620   { - (1) and (2) - } , a
person may petition the board for review of a land use decision
or limited land use decision if the person:
  (a) Filed a notice of intent to appeal the decision as provided
in subsection (1) of this section; and
  (b) Appeared before the local government, special district or
state agency orally or in writing.
  (3) If a local government makes a land use decision without
providing a hearing, except as provided under ORS 215.416 (11) or
227.175 (10), or the local government makes a land use decision
that is different from the proposal described in the notice of
hearing to such a degree that the notice of the proposed action
did not reasonably describe the local government's final actions,
a person adversely affected by the decision may appeal the
decision to the board under this section:
  (a) Within 21 days of actual notice where notice is required;
or
  (b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
  (4) If a local government makes a land use decision without a
hearing pursuant to ORS 215.416 (11) or 227.175 (10):
  (a) A person who was not provided   { - mailed - }  notice of
the decision as required under ORS 215.416 (11)(c) or 227.175
(10)(c) may appeal the decision to the board under this section
within 21 days of receiving actual notice of the decision.
  (b) A person who is not entitled to notice under ORS 215.416
(11)(c) or 227.175 (10)(c) but who is adversely affected or
aggrieved by the decision may appeal the decision to the board
under this section within 21 days after the expiration of the
period for filing a local appeal of the decision established by
the local government under ORS 215.416 (11)(a) or 227.175
(10)(a).
  (c) A person who receives   { - mailed - }  notice of a
decision made without a hearing under ORS 215.416 (11) or 227.175
(10) may appeal the decision to the board under this section
within 21 days of receiving actual notice of the nature of the
decision, if the
  { - mailed - }  notice of the decision did not reasonably
describe the nature of the decision.
  (d) Except as provided in paragraph (c) of this subsection, a
person who receives   { - mailed - }  notice of a decision made
without a hearing under ORS 215.416 (11) or 227.175 (10) may not
appeal the decision to the board under this section.
  (5) If a local government makes a limited land use decision
which is different from the proposal described in the notice to
such a degree that the notice of the proposed action did not
reasonably describe the local government's final actions, a
person adversely affected by the decision may appeal the decision
to the board under this section:

Enrolled House Bill 2129 (HB 2129-A)                       Page 9

  (a) Within 21 days of actual notice where notice is required;
or
  (b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
  (6)(a) Except as provided in paragraph (b) of this subsection,
the appeal periods described in subsections (3), (4) and (5) of
this section shall not exceed three years after the date of the
decision.
  (b) If notice of a hearing or an administrative decision made
pursuant to ORS 197.195 or 197.763 is required but has not been
provided, the provisions of paragraph (a) of this subsection do
not apply.
  (7)(a) Within 21 days after a notice of intent to appeal has
been filed with the board under subsection (1) of this section,
any person described in paragraph (b) of this subsection may
intervene in and be made a party to the review proceeding by
filing a motion to intervene and by paying a filing fee of $100.
  (b) Persons who may intervene in and be made a party to the
review proceedings, as set forth in subsection (1) of this
section, are:
  (A) The applicant who initiated the action before the local
government, special district or state agency; or
  (B) Persons who appeared before the local government, special
district or state agency, orally or in writing.
  (c) Failure to comply with the deadline or to pay the filing
fee set forth in paragraph (a) of this subsection shall result in
denial of a motion to intervene.
  (8) If a state agency whose order, rule, ruling, policy or
other action is at issue is not a party to the proceeding, it may
file a brief with the board as if it were a party. The brief
shall be due on the same date the respondent's brief is due and
shall be accompanied by a filing fee of $100.
  (9) A notice of intent to appeal a land use decision or limited
land use decision shall be filed not later than 21 days after the
date the decision sought to be reviewed becomes final. A notice
of intent to appeal plan and land use regulation amendments
processed pursuant to ORS 197.610 to 197.625 shall be filed not
later than 21 days after notice of the decision sought to be
reviewed is mailed or otherwise submitted to parties entitled to
notice under ORS 197.615. Failure to include a   { - certificate
of mailing with the notice mailed - }   { + statement identifying
when, how and to whom notice was provided + } under ORS 197.615
 { - shall - }   { + does + } not render the notice defective.
Copies of the notice of intent to appeal shall be served upon the
local government, special district or state agency and the
applicant of record, if any, in the local government, special
district or state agency proceeding. The notice shall be served
and filed in the form and manner prescribed by rule of the board
and shall be accompanied by a filing fee of $200 and a deposit
for costs to be established by the board. If a petition for
review is not filed with the board as required in subsections
(10) and (11) of this section, the filing fee and deposit shall
be awarded to the local government, special district or state
agency as cost of preparation of the record.
  (10)(a) Within 21 days after service of the notice of intent to
appeal, the local government, special district or state agency
shall transmit to the board the original or a certified copy of
the entire record of the proceeding under review. By stipulation
of all parties to the review proceeding the record may be
shortened. The board may require or permit subsequent corrections

Enrolled House Bill 2129 (HB 2129-A)                      Page 10

to the record; however, the board shall issue an order on a
motion objecting to the record within 60 days of receiving the
motion.
  (b) Within 10 days after service of a notice of intent to
appeal, the board shall provide notice to the petitioner and the
respondent of their option to enter into mediation pursuant to
ORS 197.860. Any person moving to intervene shall be provided
such notice within seven days after a motion to intervene is
filed. The notice required by this paragraph shall be accompanied
by a statement that mediation information or assistance may be
obtained from the Department of Land Conservation and
Development.
  (11) A petition for review of the land use decision or limited
land use decision and supporting brief shall be filed with the
board as required by the board under subsection (13) of this
section.
  (12) The petition shall include a copy of the decision sought
to be reviewed and shall state:
  (a) The facts that establish that the petitioner has standing.
  (b) The date of the decision.
  (c) The issues the petitioner seeks to have reviewed.
  (13)(a) The board shall adopt rules establishing deadlines for
filing petitions and briefs and for oral argument.
  (b) At any time subsequent to the filing of a notice of intent
and prior to the date set for filing the record, or, on appeal of
a decision under ORS 197.610 to 197.625, prior to the filing of
the respondent's brief, the local government or state agency may
withdraw its decision for purposes of reconsideration.  If a
local government or state agency withdraws an order for purposes
of reconsideration, it shall, within such time as the board may
allow, affirm, modify or reverse its decision. If the petitioner
is dissatisfied with the local government or agency action after
withdrawal for purposes of reconsideration, the petitioner may
refile the notice of intent and the review shall proceed upon the
revised order. An amended notice of intent shall not be required
if the local government or state agency, on reconsideration,
affirms the order or modifies the order with only minor changes.
  (14) The board shall issue a final order within 77 days after
the date of transmittal of the record. If the order is not issued
within 77 days the applicant may apply in Marion County or the
circuit court of the county where the application was filed for a
writ of mandamus to compel the board to issue a final order.
  (15)(a) Upon entry of its final order the board may, in its
discretion, award costs to the prevailing party including the
cost of preparation of the record if the prevailing party is the
local government, special district or state agency whose decision
is under review. The deposit required by subsection (9) of this
section shall be applied to any costs charged against the
petitioner.
  (b) The board shall also award reasonable attorney fees and
expenses to the prevailing party against any other party who the
board finds presented a position without probable cause to
believe the position was well-founded in law or on factually
supported information.
  (16) Orders issued under this section may be enforced in
appropriate judicial proceedings.
  (17)(a) The board shall provide for the publication of its
orders that are of general public interest in the form it deems
best adapted for public convenience. The publications shall
constitute the official reports of the board.

Enrolled House Bill 2129 (HB 2129-A)                      Page 11

  (b) Any moneys collected or received from sales by the board
shall be paid into the Board Publications Account established by
ORS 197.832.
  (18) Except for any sums collected for publication of board
opinions, all fees collected by the board under this section that
are not awarded as costs shall be paid over to the State
Treasurer to be credited to the General Fund.
  SECTION 10. ORS 215.427 is amended to read:
  215.427. (1) Except as provided in subsections (3), (5) and
(10) of this section, for land within an urban growth boundary
and applications for mineral aggregate extraction, the governing
body of a county or its designee shall take final action on an
application for a permit, limited land use decision or zone
change, including resolution of all appeals under ORS 215.422,
within 120 days after the application is deemed complete. The
governing body of a county or its designee shall take final
action on all other applications for a permit, limited land use
decision or zone change, including resolution of all appeals
under ORS 215.422, within 150 days after the application is
deemed complete, except as provided in subsections (3), (5) and
(10) of this section.
  (2) If an application for a permit, limited land use decision
or zone change is incomplete, the governing body or its designee
shall notify the applicant in writing of exactly what information
is missing within 30 days of receipt of the application and allow
the applicant to submit the missing information. The application
shall be deemed complete for the purpose of subsection (1) of
this section upon receipt by the governing body or its designee
of:
  (a) All of the missing information;
  (b) Some of the missing information and written notice from the
applicant that no other information will be provided; or
  (c) Written notice from the applicant that none of the missing
information will be provided.
  (3)(a) If the application was complete when first submitted or
the applicant submits additional information, as described in
subsection (2) of this section, within 180 days of the date the
application was first submitted and the county has a
comprehensive plan and land use regulations acknowledged under
ORS 197.251, approval or denial of the application shall be based
upon the standards and criteria that were applicable at the time
the application was first submitted.
  (b) If the application is for industrial or traded sector
development of a site identified under section 12, chapter 800,
Oregon Laws 2003, and proposes an amendment to the comprehensive
plan, approval or denial of the application must be based upon
the standards and criteria that were applicable at the time the
application was first submitted, provided the application
complies with paragraph (a) of this subsection.
  (4) On the 181st day after first being submitted, the
application is void if the applicant has been notified of the
missing information as required under subsection (2) of this
section and has not submitted:
  (a) All of the missing information;
  (b) Some of the missing information and written notice that no
other information will be provided; or
  (c) Written notice that none of the missing information will be
provided.
  (5) The period set in subsection (1) of this section may be
extended for a specified period of time at the written request of

Enrolled House Bill 2129 (HB 2129-A)                      Page 12

the applicant. The total of all extensions, except as provided in
subsection (10) of this section for mediation, may not exceed 215
days.
  (6) The period set in subsection (1) of this section applies:
  (a) Only to decisions wholly within the authority and control
of the governing body of the county; and
  (b) Unless the parties have agreed to mediation as described in
subsection (10) of this section or ORS 197.319 (2)(b).
  (7) Notwithstanding subsection (6) of this section, the period
set in subsection (1) of this section does not apply to   { - an
amendment to an acknowledged comprehensive plan or land use
regulation or adoption of a new land use regulation that was
forwarded to the Director of the Department of Land Conservation
and Development under ORS 197.610 (1) - }   { + a decision of the
county making a change to an acknowledged comprehensive plan or a
land use regulation that is submitted to the Director of the
Department of Land Conservation and Development under ORS
197.610 + }.
  (8) Except when an applicant requests an extension under
subsection (5) of this section, if the governing body of the
county or its designee does not take final action on an
application for a permit, limited land use decision or zone
change within 120 days or 150 days, as applicable, after the
application is deemed complete, the county shall refund to the
applicant either the unexpended portion of any application fees
or deposits previously paid or 50 percent of the total amount of
such fees or deposits, whichever is greater. The applicant is not
liable for additional governmental fees incurred subsequent to
the payment of such fees or deposits. However, the applicant is
responsible for the costs of providing sufficient additional
information to address relevant issues identified in the
consideration of the application.
  (9) A county may not compel an applicant to waive the period
set in subsection (1) of this section or to waive the provisions
of subsection (8) of this section or ORS 215.429 as a condition
for taking any action on an application for a permit, limited
land use decision or zone change except when such applications
are filed concurrently and considered jointly with a plan
amendment.
  (10) The periods set forth in subsection (1) of this section
and the period set forth in subsection (5) of this section may be
extended by up to 90 additional days, if the applicant and the
county agree that a dispute concerning the application will be
mediated.
  SECTION 11. ORS 215.435 is amended to read:
  215.435. (1) Pursuant to a final order of the Land Use Board of
Appeals under ORS 197.830 remanding a decision to a county, the
governing body of the county or its designee shall take final
action on an application for a permit, limited land use decision
or zone change within 90 days of the effective date of the final
order issued by the board. For purposes of this subsection, the
effective date of the final order is the last day for filing a
petition for judicial review of a final order of the board under
ORS 197.850 (3). If judicial review of a final order of the board
is sought under ORS 197.830, the 90-day period established under
this subsection shall not begin until final resolution of the
judicial review.
  (2)(a) In addition to the requirements of subsection (1) of
this section, the 90-day period established under subsection (1)

Enrolled House Bill 2129 (HB 2129-A)                      Page 13

of this section shall not begin until the applicant requests in
writing that the county proceed with the application on remand.
  (b) The 90-day period may be extended for a reasonable period
of time at the request of the applicant.
  (3) The 90-day period established under subsection (1) of this
section applies only to decisions wholly within the authority and
control of the governing body of the county.
  (4) Subsection (1) of this section does not apply to a remand
proceeding concerning   { - an amendment to an acknowledged
comprehensive plan or land use regulation or the adoption of a
new land use regulation that was forwarded to the Director of the
Department of Land Conservation and Development under ORS
197.610 - }  { + a decision of the county making a change to an
acknowledged comprehensive plan or a land use regulation that is
submitted to the Director of the Department of Land Conservation
and Development under ORS 197.610 + }.
  SECTION 12. ORS 227.178 is amended to read:
  227.178. (1) Except as provided in subsections (3), (5) and
(11) of this section, the governing body of a city or its
designee shall take final action on an application for a permit,
limited land use decision or zone change, including resolution of
all appeals under ORS 227.180, within 120 days after the
application is deemed complete.
  (2) If an application for a permit, limited land use decision
or zone change is incomplete, the governing body or its designee
shall notify the applicant in writing of exactly what information
is missing within 30 days of receipt of the application and allow
the applicant to submit the missing information. The application
shall be deemed complete for the purpose of subsection (1) of
this section upon receipt by the governing body or its designee
of:
  (a) All of the missing information;
  (b) Some of the missing information and written notice from the
applicant that no other information will be provided; or
  (c) Written notice from the applicant that none of the missing
information will be provided.
  (3)(a) If the application was complete when first submitted or
the applicant submits the requested additional information within
180 days of the date the application was first submitted and the
city has a comprehensive plan and land use regulations
acknowledged under ORS 197.251, approval or denial of the
application shall be based upon the standards and criteria that
were applicable at the time the application was first submitted.
  (b) If the application is for industrial or traded sector
development of a site identified under section 12, chapter 800,
Oregon Laws 2003, and proposes an amendment to the comprehensive
plan, approval or denial of the application must be based upon
the standards and criteria that were applicable at the time the
application was first submitted, provided the application
complies with paragraph (a) of this subsection.
  (4) On the 181st day after first being submitted, the
application is void if the applicant has been notified of the
missing information as required under subsection (2) of this
section and has not submitted:
  (a) All of the missing information;
  (b) Some of the missing information and written notice that no
other information will be provided; or
  (c) Written notice that none of the missing information will be
provided.

Enrolled House Bill 2129 (HB 2129-A)                      Page 14

  (5) The 120-day period set in subsection (1) of this section
may be extended for a specified period of time at the written
request of the applicant. The total of all extensions, except as
provided in subsection (11) of this section for mediation, may
not exceed 245 days.
  (6) The 120-day period set in subsection (1) of this section
applies:
  (a) Only to decisions wholly within the authority and control
of the governing body of the city; and
  (b) Unless the parties have agreed to mediation as described in
subsection (11) of this section or ORS 197.319 (2)(b).
  (7) Notwithstanding subsection (6) of this section, the 120-day
period set in subsection (1) of this section does not apply to
 { - an amendment to an acknowledged comprehensive plan or land
use regulation or adoption of a new land use regulation that was
forwarded to the Director of the Department of Land Conservation
and Development under ORS 197.610 (1) - }   { + a decision of the
city making a change to an acknowledged comprehensive plan or a
land use regulation that is submitted to the Director of the
Department of Land Conservation and Development under ORS
197.610 + }.
  (8) Except when an applicant requests an extension under
subsection (5) of this section, if the governing body of the city
or its designee does not take final action on an application for
a permit, limited land use decision or zone change within 120
days after the application is deemed complete, the city shall
refund to the applicant, subject to the provisions of subsection
(9) of this section, either the unexpended portion of any
application fees or deposits previously paid or 50 percent of the
total amount of such fees or deposits, whichever is greater. The
applicant is not liable for additional governmental fees incurred
subsequent to the payment of such fees or deposits. However, the
applicant is responsible for the costs of providing sufficient
additional information to address relevant issues identified in
the consideration of the application.
  (9)(a) To obtain a refund under subsection (8) of this section,
the applicant may either:
  (A) Submit a written request for payment, either by mail or in
person, to the city or its designee; or
  (B) Include the amount claimed in a mandamus petition filed
under ORS 227.179. The court shall award an amount owed under
this section in its final order on the petition.
  (b) Within seven calendar days of receiving a request for a
refund, the city or its designee shall determine the amount of
any refund owed. Payment, or notice that no payment is due, shall
be made to the applicant within 30 calendar days of receiving the
request. Any amount due and not paid within 30 calendar days of
receipt of the request shall be subject to interest charges at
the rate of one percent per month, or a portion thereof.
  (c) If payment due under paragraph (b) of this subsection is
not paid within 120 days after the city or its designee receives
the refund request, the applicant may file an action for recovery
of the unpaid refund. In an action brought by a person under this
paragraph, the court shall award to a prevailing applicant, in
addition to the relief provided in this section, reasonable
attorney fees and costs at trial and on appeal. If the city or
its designee prevails, the court shall award reasonable attorney
fees and costs at trial and on appeal if the court finds the
petition to be frivolous.

Enrolled House Bill 2129 (HB 2129-A)                      Page 15

  (10) A city may not compel an applicant to waive the 120-day
period set in subsection (1) of this section or to waive the
provisions of subsection (8) of this section or ORS 227.179 as a
condition for taking any action on an application for a permit,
limited land use decision or zone change except when such
applications are filed concurrently and considered jointly with a
plan amendment.
  (11) The period set forth in subsection (1) of this section and
the period set forth in subsection (5) of this section may be
extended by up to 90 additional days, if the applicant and the
city agree that a dispute concerning the application will be
mediated.
  SECTION 13. ORS 227.181 is amended to read:
  227.181. (1) Pursuant to a final order of the Land Use Board of
Appeals under ORS 197.830 remanding a decision to a city, the
governing body of the city or its designee shall take final
action on an application for a permit, limited land use decision
or zone change within 90 days of the effective date of the final
order issued by the board. For purposes of this subsection, the
effective date of the final order is the last day for filing a
petition for judicial review of a final order of the board under
ORS 197.850 (3). If judicial review of a final order of the board
is sought under ORS 197.830, the 90-day period established under
this subsection shall not begin until final resolution of the
judicial review.
  (2)(a) In addition to the requirements of subsection (1) of
this section, the 90-day period established under subsection (1)
of this section shall not begin until the applicant requests in
writing that the city proceed with the application on remand.
  (b) The 90-day period may be extended for a reasonable period
of time at the request of the applicant.
  (3) The 90-day period established under subsection (1) of this
section applies only to decisions wholly within the authority and
control of the governing body of the city.
  (4) Subsection (1) of this section does not apply to a remand
proceeding concerning   { - an amendment to an acknowledged
comprehensive plan or land use regulation or the adoption of a
new land use regulation that was forwarded to the Director of the
Department of Land Conservation and Development under ORS
197.610 - }  { + a decision of the city making a change to an
acknowledged comprehensive plan or a land use regulation that is
submitted to the Director of the Department of Land Conservation
and Development under ORS 197.610 + }.
  SECTION 14.  { + Section 6 of this 2011 Act and the amendments
to ORS 197.254, 197.610, 197.615, 197.620, 197.625, 197.830,
215.427, 215.435, 227.178 and 227.181 by sections 1 to 4, 7 and 9
to 13 of this 2011 Act apply to proposed changes to an
acknowledged comprehensive plan or a land use regulation that is
first submitted to the Director of the Department of Land
Conservation and Development on or after the effective date of
this 2011 Act. + }
                         ----------

Enrolled House Bill 2129 (HB 2129-A)                      Page 16

Passed by House April 26, 2011

    .............................................................
                         Ramona Kenady Line, Chief Clerk of House

    .............................................................
                                    Bruce Hanna, Speaker of House

    .............................................................
                                   Arnie Roblan, Speaker of House

Passed by Senate May 26, 2011

    .............................................................
                              Peter Courtney, President of Senate

Enrolled House Bill 2129 (HB 2129-A)                      Page 17

Received by Governor:

......M.,............., 2011

Approved:

......M.,............., 2011

    .............................................................
                                         John Kitzhaber, Governor

Filed in Office of Secretary of State:

......M.,............., 2011

    .............................................................
                                   Kate Brown, Secretary of State

Enrolled House Bill 2129 (HB 2129-A)                      Page 18