Bill Text: OR HB3362 | 2013 | Regular Session | Introduced

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Bill Title: Relating to review of post-acknowledgement land use decision-making; declaring an emergency.

Sponsorship: Partisan Bill (Republican 5)

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3362 Detail]

Download: Oregon-2013-HB3362-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1320

                         House Bill 3362

Sponsored by Representatives CONGER, WHISNANT; Representatives
  HUFFMAN, MCLANE, Senator KNOPP

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Limits review by Land Use Board of Appeals of
post-acknowledgement legislative changes to comprehensive plans
and land use regulations implementing plans to issues raised
during local planning process.
  Requires Department of Land Conservation and Development to
study requirements for citizen involvement in local land use
planning to identify changes that can reduce potential for
appeals by ensuring more effective involvement in local land use
planning.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to review of post-acknowledgement land use
  decision-making; creating new provisions; amending ORS 197.195,
  197.620 and 197.835; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 197.620 is amended to read:
  197.620. (1) A decision to not adopt a legislative amendment or
a new land use regulation is not appealable 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) 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.
   { +  (4) For an issue to provide a basis for an appeal to the
Land Use Board of Appeals, the issue must be raised:
  (a) In writing prior to the expiration of the comment period.
  (b) With sufficient specificity to enable the decision maker to
respond to the issue. + }
  SECTION 2. ORS 197.835 is amended to read:
  197.835. (1) The Land Use Board of Appeals shall review the
land use decision or limited land use decision and prepare a
final order affirming, reversing or remanding the land use
decision or limited land use decision. The board shall adopt
rules defining the circumstances in which it will reverse rather
than remand a land use decision or limited land use decision that
is not affirmed.
  (2)(a) Review of a decision under ORS 197.830 to 197.845 shall
be confined to the record.
  (b) In the case of disputed allegations of standing,
unconstitutionality of the decision, ex parte contacts, actions
described in subsection (10)(a)(B) of this section or other
procedural irregularities not shown in the record that, if
proved, would warrant reversal or remand, the board may take
evidence and make findings of fact on those allegations. The
board shall be bound by any finding of fact of the local
government, special district or state agency for which there is
substantial evidence in the whole record.
  (3)   { - Issues shall be limited to those - }   { + The board
shall limit issues reviewed on appeal to the issues + } raised by
any participant before the local hearings body as provided by ORS
197.195 { + , 197.620 + } or 197.763, whichever is applicable.
  (4) A petitioner may raise new issues to the board if:
  (a) The local government failed to list the applicable criteria
for a decision under ORS 197.195   { - (3)(c) - }
 { + (3)(d) + } or 197.763 (3)(b), in which case a petitioner may
raise new issues based upon applicable criteria that were omitted
from the notice.  However, the board may refuse to allow new
issues to be raised if it finds that the issue could have been
raised before the local government; or
  (b) The local government made a land use decision or 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
action.
  (5) The board shall reverse or remand a land use decision not
subject to an acknowledged comprehensive plan and land use
regulations if the decision does not comply with the goals. The
board shall reverse or remand a land use decision or limited land
use decision subject to an acknowledged comprehensive plan or
land use regulation if the decision does not comply with the
goals and the Land Conservation and Development Commission has
issued an order under ORS 197.320 or adopted a new or amended

goal under ORS 197.245 requiring the local government to apply
the goals to the type of decision being challenged.
  (6) The board shall reverse or remand an amendment to a
comprehensive plan if the amendment is not in compliance with the
goals.
  (7) The board shall reverse or remand an amendment to a land
use regulation or the adoption of a new land use regulation if:
  (a) The regulation is not in compliance with the comprehensive
plan; or
  (b) The comprehensive plan does not contain specific policies
or other provisions which provide the basis for the regulation,
and the regulation is not in compliance with the statewide
planning goals.
  (8) The board shall reverse or remand a decision involving the
application of a plan or land use regulation provision if the
decision is not in compliance with applicable provisions of the
comprehensive plan or land use regulations.
  (9) In addition to the review under subsections (1) to (8) of
this section, the board shall reverse or remand the land use
decision under review if the board finds:
  (a) The local government or special district:
  (A) Exceeded its jurisdiction;
  (B) Failed to follow the procedures applicable to the matter
before it in a manner that prejudiced the substantial rights of
the petitioner;
  (C) Made a decision not supported by substantial evidence in
the whole record;
  (D) Improperly construed the applicable law; or
  (E) Made an unconstitutional decision; or
  (b) The state agency made a decision that violated the goals.
  (10)(a) The board shall reverse a local government decision and
order the local government to grant approval of an application
for development denied by the local government if the board
finds:
  (A) Based on the evidence in the record, that the local
government decision is outside the range of discretion allowed
the local government under its comprehensive plan and
implementing ordinances; or
  (B) That the local government's action was for the purpose of
avoiding the requirements of ORS 215.427 or 227.178.
  (b) If the board does reverse the decision and orders the local
government to grant approval of the application, the board shall
award attorney fees to the applicant and against the local
government.
  (11)(a) Whenever the findings, order and record are sufficient
to allow review, and to the extent possible consistent with the
time requirements of ORS 197.830 (14), the board shall decide all
issues presented to it when reversing or remanding a land use
decision described in subsections (2) to (9) of this section or
limited land use decision described in ORS 197.828 and 197.195.
  (b) Whenever the findings are defective because of failure to
recite adequate facts or legal conclusions or failure to
adequately identify the standards or their relation to the facts,
but the parties identify relevant evidence in the record which
clearly supports the decision or a part of the decision, the
board shall affirm the decision or the part of the decision
supported by the record and remand the remainder to the local
government, with direction indicating appropriate remedial
action.
  (12) The board may reverse or remand a land use decision under
review due to ex parte contacts or bias resulting from ex parte
contacts with a member of the decision-making body, only if the
member of the decision-making body did not comply with ORS
215.422 (3) or 227.180 (3), whichever is applicable.

  (13) Subsection (12) of this section does not apply to reverse
or remand of a land use decision due to ex parte contact or bias
resulting from ex parte contact with a hearings officer.
  (14) The board shall reverse or remand a land use decision or
limited land use decision which violates a commission order
issued under ORS 197.328.
  (15) In cases in which a local government provides a
quasi-judicial land use hearing on a limited land use decision,
the requirements of subsections (12) and (13) of this section
apply.
  (16) The board may decide cases before it by means of
memorandum decisions and shall prepare full opinions only in such
cases as it deems proper.
  SECTION 3. ORS 197.195 is amended to read:
  197.195. (1) A limited land use decision shall be consistent
with applicable provisions of city or county comprehensive plans
and land use regulations. Such a decision may include conditions
authorized by law. Within two years of September 29, 1991, cities
and counties shall incorporate all comprehensive plan standards
applicable to limited land use decisions into their land use
regulations. A decision to incorporate all, some, or none of the
applicable comprehensive plan standards into land use regulations
shall be undertaken as a post-acknowledgment amendment under ORS
197.610 to 197.625. If a city or county does not incorporate its
comprehensive plan provisions into its land use regulations, the
comprehensive plan provisions may not be used as a basis for a
decision by the city or county or on appeal from that decision.
  (2) A limited land use decision is not subject to the
requirements of ORS 197.763.
  (3) A limited land use decision is subject to the
  { - requirements of paragraphs (a) to (c) of this
subsection. - }  { +  following requirements: + }
  (a) In making a limited land use decision, the local government
shall follow the applicable procedures contained within its
acknowledged comprehensive plan and land use regulations and
other applicable legal requirements.
  (b) For limited land use decisions, the local government shall
provide written notice to owners of property within 100 feet of
the entire contiguous site for which the application is made.
The list shall be compiled from the most recent property tax
assessment roll. For purposes of review, this requirement shall
be deemed met when the local government can provide an affidavit
or other certification that such notice was given. Notice shall
also be provided to any neighborhood or community organization
recognized by the governing body and whose boundaries include the
site.
   { +  (c) For an issue to provide a basis for an appeal to the
Land Use Board of Appeals, the issue must be raised:
  (A) In writing prior to the expiration of the comment period.
  (B) With sufficient specificity to enable the decision maker to
respond to the issue. + }
    { - (c) - }   { + (d) + } The notice and procedures used by
local government shall:
  (A) Provide a 14-day period for submission of written comments
prior to the decision;
    { - (B) State that issues which may provide the basis for an
appeal to the Land Use Board of Appeals shall be raised in
writing prior to the expiration of the comment period. Issues
shall be raised with sufficient specificity to enable the
decision maker to respond to the issue; - }
   { +  (B) State that for an issue to provide the basis for an
appeal to the Land Use Board of Appeals, the issue must be
raised:
  (i) In writing prior to the expiration of the comment period;
and

  (ii) With sufficient specificity to enable the decision maker
to respond to the issue; + }
  (C) List, by commonly used citation, the applicable criteria
for the decision;
  (D) Set forth the street address or other easily understood
geographical reference to the subject property;
  (E) State the place, date and time that comments are due;
  (F) State that copies of all evidence relied upon by the
applicant are available for review, and that copies can be
obtained at cost;
  (G) Include the name and phone number of a local government
contact person;
  (H) Provide notice of the decision to the applicant and any
person who submits comments under subparagraph (A) of this
paragraph. The notice of decision must include an explanation of
appeal rights; and
  (I) Briefly summarize the local decision making process for the
limited land use decision being made.
  (4) Approval or denial of a limited land use decision shall be
based upon and accompanied by a brief statement that explains the
criteria and standards considered relevant to the decision,
states the facts relied upon in rendering the decision and
explains the justification for the decision based on the
criteria, standards and facts set forth.
  (5) A local government may provide for a hearing before the
local government on appeal of a limited land use decision under
this section. The hearing may be limited to the record developed
pursuant to the initial hearing under subsection (3) of this
section or may allow for the introduction of additional testimony
or evidence. A hearing on appeal that allows the introduction of
additional testimony or evidence shall comply with the
requirements of ORS 197.763. Written notice of the decision
rendered on appeal shall be given to all parties who appeared,
either orally or in writing, before the hearing. The notice of
decision shall include an explanation of the rights of each party
to appeal the decision.
  SECTION 4.  { + (1) The Department of Land Conservation and
Development shall review a statewide land use planning goal
related to citizen involvement to determine whether changes can
reduce the potential for appeal of local land use decision-making
to the Land Use Board of Appeals by ensuring more effective
citizen involvement in the review of local land use planning.
  (2) The department shall report to the appropriate legislative
interim committees on or before January 1, 2015. + }
  SECTION 5.  { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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