Bill Text: OR HB3166 | 2011 | Regular Session | Enrolled
Bill Title: Relating to review of local government decisions related to land use; and declaring an emergency.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-23 - Chapter 483, (2011 Laws): Effective date June 23, 2011. [HB3166 Detail]
Download: Oregon-2011-HB3166-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
House Bill 3166
Sponsored by Representative FREEMAN, Senator KRUSE
CHAPTER ................
AN ACT
Relating to review of local government decisions related to land
use; creating new provisions; amending ORS 197.830; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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).
Enrolled House Bill 3166 (HB 3166-B) Page 1
(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:
(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. - }
{ + (6) The appeal periods described in subsections (3), (4)
and (5) of this section:
(a) May not exceed three years after the date of the decision,
except as provided in paragraph (b) of this subsection.
(b) May not exceed 10 years after the date of the decision 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. + }
(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
Enrolled House Bill 3166 (HB 3166-B) Page 2
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 under ORS 197.615 shall 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
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.
Enrolled House Bill 3166 (HB 3166-B) Page 3
(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.
(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 2. { + The amendments to ORS 197.830 by section 1 of
this 2011 Act apply to a judicial or quasi-judicial review of
land use decisions or limited land use decisions that has not
been reduced to a final judgment subject to no further
appeal. + }
SECTION 3. { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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Enrolled House Bill 3166 (HB 3166-B) Page 4
Passed by House April 18, 2011
Repassed by House June 13, 2011
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate June 9, 2011
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 3166 (HB 3166-B) Page 5
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 3166 (HB 3166-B) Page 6
