Bill Text: OR HB3438 | 2011 | Regular Session | Introduced
Bill Title: Relating to regional land use planning.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3438 Detail]
Download: Oregon-2011-HB3438-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 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 3208
House Bill 3438
Sponsored by Representative SHEEHAN; Representative WAND
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.
Eliminates authority for metropolitan service district to
establish urban growth boundary. Eliminates authority for
district to undertake coordinative role for land within district
that is otherwise undertaken by county for land within county.
Eliminates authority for district to review comprehensive plans
of local governments within district for compliance with regional
goals.
A BILL FOR AN ACT
Relating to regional land use planning; creating new provisions;
amending ORS 94.536, 94.538, 195.020, 195.025, 195.060,
195.065, 195.110, 195.145, 197.015, 197.254, 197.296, 197.298,
197.313, 197.314, 197.319, 197.320, 197.626, 197.651, 199.705,
221.034, 268.354, 268.380, 268.385, 268.390, 285C.500,
308A.350, 308A.700, 451.010, 459A.005 and 459A.010 and sections
6 and 7, chapter 844, Oregon Laws 2005; and repealing ORS
195.137, 195.139, 195.141, 195.143, 197.299, 197.301, 197.302
and 221.036.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The Legislative Assembly finds and declares
that making the land use planning process simpler and more
efficient is a matter of statewide concern. + }
SECTION 2. ORS 268.354 is amended to read:
268.354. (1) In addition to the requirements established by ORS
chapters 198, 221 and 222 for a boundary change, a metropolitan
service district, in consultation with the Metro Policy Advisory
Committee, may establish requirements for a boundary change that
is subject to the jurisdiction of the district pursuant to ORS
268.347.
(2) For a boundary change that is subject to the jurisdiction
of the district pursuant to ORS 268.347, the district shall:
(a) Establish a uniform hearing and notification process.
(b) Establish an expedited process for uncontested boundary
changes.
(c) Establish clear and objective criteria for a boundary
change.
(d) Ensure that a boundary change is in compliance with the
Metro regional framework plan, as defined in ORS 197.015, and
cooperative agreements and urban service agreements adopted
pursuant to ORS chapter 195.
(3) The role of a metropolitan service district in the boundary
determination process shall be ministerial only.
(4) Except as provided in this section and ORS 268.347 and
268.351, for a boundary change subject to the jurisdiction of the
metropolitan service district:
(a) Proceedings for annexation of territory to a city and for
all other changes in city boundaries shall be conducted as
provided in ORS chapter 222.
(b) Proceedings for annexation of territory to a district, and
for all other changes to the boundaries of a district, shall be
conducted as provided in ORS chapter 198. Notwithstanding ORS
268.020, as used in this paragraph, 'district' means a special
district as defined in ORS 197.015.
(c) Proceedings for annexation of territory to the metropolitan
service district { - , including annexation of territory not
within the urban growth boundary of the district, - } and for
all other changes to the boundaries of the district shall be
conducted as provided in ORS chapter 198.
(d) Notwithstanding contrary provisions regarding the party
responsible for conducting hearings under ORS chapter 198, the
metropolitan service district is the governing body responsible
for conducting proceedings for a minor boundary change to the
district. { - Except for a change to the district boundary by
adoption of an urban growth boundary under ORS 268.390, - }
Proceedings for a minor boundary change to the boundaries of a
district shall be conducted as provided in ORS chapter 198.
SECTION 3. ORS 268.380 is amended to read:
268.380. (1) A district may { - : - }
{ - (a) - } adopt { - land-use - } { + land use + }
planning goals and objectives for the district consistent with
{ + statewide land use planning + } goals adopted under ORS
chapters 195, 196 and 197 { + . The goals and objectives do not
constitute a comprehensive plan. + } { - ; - }
{ - (b) Review the comprehensive plans in effect on January
1, 1979, or subsequently adopted by the cities and counties
within the district and recommend that cities and counties, as
the district considers necessary, make changes in any plan to
ensure that the plan conforms to the district's metropolitan area
goals and objectives and the statewide goals; - }
{ - (c) Coordinate the land-use planning activities of that
portion of the cities and counties within the district; and - }
{ - (d) Coordinate its activities and the related activities
of the cities and counties within the district with the land-use
planning development activities of the federal government, other
local governmental bodies situated within this state or within
any other state and any agency of this state or another
state. - }
(2) When a district is required by a district charter to adopt
a regional framework plan, the regional framework plan shall
include and be consistent with land use planning goals and
objectives adopted by the district. { + The regional framework
plan and the individual components of the regional framework plan
do not constitute a comprehensive plan. + }
SECTION 4. ORS 268.385 is amended to read:
268.385. { - (1) For the purposes of ORS 195.025, the
district formed under this chapter shall exercise within the
district the review, advisory and coordinative functions assigned
under ORS 195.025 (1) to each county and city that is within the
district. - }
{ - (2) ORS 195.025 (3) and (4) shall not apply to a district
formed under this chapter. - } { + ORS 195.025 (4) and (5) does
not apply to cities and counties within a district formed under
this chapter. + }
SECTION 5. ORS 268.390 is amended to read:
268.390. (1) A district may { - define and apply a planning
procedure that identifies and designates - } { + identify and
designate + } areas and activities having significant impact upon
the orderly and responsible development of the metropolitan area,
including, but not limited to, impact on:
(a) Air quality;
(b) Water quality; and
(c) Transportation.
(2) A district may prepare and adopt functional plans for those
areas designated under subsection (1) of this section to control
metropolitan area impact on air and water quality, transportation
and other aspects of metropolitan area development the district
may identify.
{ - (3)(a) A district shall adopt an urban growth boundary
for the district in compliance with applicable goals adopted
under ORS chapters 195, 196 and 197. When a district includes
land designated as urban reserve under ORS 195.145 (1)(b) within
an urban growth boundary pursuant to ORS 197.298 (1), the
district is not required to consider the capability
classification system or the cubic foot site class of the land as
described in ORS 197.298 (2). - }
{ - (b) Notwithstanding the procedural requirements for
boundary changes under ORS 268.354, when the district adopts an
urban growth boundary, the urban growth boundary becomes the
boundary of the district. - }
{ - (4) - } { + (3) + } A district may review the
comprehensive plans adopted by the cities and counties within the
district that affect areas designated by the district under
subsection (1) of this section { - or the urban growth boundary
adopted under subsection (3) of this section and recommend or
require cities and counties, as it considers necessary, to - }
{ + and recommend that the cities and counties + } make changes
in any plan to ensure that the plan and any actions taken under
the plan substantially comply with the district's functional
plans adopted under subsection (2) of this section { - and its
urban growth boundary adopted under subsection (3) of this
section - } .
{ - (5) Pursuant to a regional framework plan, a district may
adopt implementing ordinances that: - }
{ - (a) Require local comprehensive plans and implementing
regulations to substantially comply with the regional framework
plan within two years after compliance acknowledgment. - }
{ - (b) Require adjudication and determination by the
district of the consistency of local comprehensive plans with the
regional framework plan. - }
{ - (c) Require each city and county within the jurisdiction
of the district and making land use decisions concerning lands
within the land use jurisdiction of the district to make those
decisions consistent with the regional framework plan. The
obligation to apply the regional framework plan to land use
decisions shall not begin until one year after the regional
framework plan is acknowledged as complying with the statewide
land use planning goals adopted under ORS chapters 195, 196 and
197. - }
{ - (d) Require changes in local land use standards and
procedures if the district determines that changes are necessary
to remedy a pattern or practice of decision-making inconsistent
with the regional framework plan. - }
{ - (6) A process established by the district to enforce the
requirements of this section must provide: - }
{ - (a) Notice of noncompliance to the city or county. - }
{ - (b) Opportunity for the city or county to be heard. - }
{ - (c) Entry of an order by the district explaining its
findings, conclusions and enforcement remedies, if any. - }
{ - (7) Enforcement remedies ordered under subsection (6) of
this section may include, but are not limited to: - }
{ - (a) Direct application of specified requirements of
functional plans to land use decisions by the city or county; - }
{ - (b) Withholding by the district of discretionary funds
from the city or county; and - }
{ - (c) Requesting an enforcement action pursuant to ORS
197.319 to 197.335 and withholding moneys pursuant to an
enforcement order resulting from the enforcement action. - }
{ - (8) An order issued under subsection (6) of this
section: - }
{ - (a) Must provide for relief from enforcement remedies
upon action by the city or county that brings the comprehensive
plan and implementing regulations into substantial compliance
with the requirement. - }
{ - (b) Is subject to review under ORS 197.830 to 197.845 as
a land use decision. - }
{ - (9) - } { + (4) + } The regional framework plan
{ - , - } { + and + } ordinances that implement the regional
framework plan { - and any determination by the district of
consistency with the regional framework plan - } are subject to
review under ORS 197.274.
SECTION 6. ORS 94.536, as amended by section 1, chapter 5,
Oregon Laws 2010, is amended to read:
94.536. As used in this section and ORS 94.538:
(1) 'Conservation easement' has the meaning given that term in
ORS 271.715.
(2) 'Governmental unit' means a city, county, metropolitan
service district or state agency as defined in ORS 171.133.
(3) 'Holder' has the meaning given that term in ORS 271.715.
(4) 'Lot' has the meaning given that term in ORS 92.010.
(5) 'Parcel' has the meaning given that term in ORS 92.010.
(6) 'Receiving area' means a designated area of land to which a
holder of development credits generated from a sending area may
transfer the development credits and in which additional uses or
development, not otherwise allowed, are allowed by reason of the
transfer.
(7) 'Resource land' means:
(a) Lands outside an urban growth boundary planned and zoned
for farm use, forest use or mixed farm and forest use.
(b) Lands inside or outside urban growth boundaries identified:
(A) In an acknowledged local or regional government inventory
as containing significant wetland, riparian, wildlife habitat,
historic, scenic or open space resources; or
(B) As containing important natural resources, estuaries,
coastal shorelands, beaches and dunes or other resources
described in the statewide land use planning goals.
(c) 'Conservation Opportunity Areas' identified in the ' Oregon
Conservation Strategy' adopted by the State Fish and Wildlife
Commission and published by the State Department of Fish and
Wildlife in September of 2006.
(8) 'Sending area' means a designated area of resource land
from which development credits generated from forgone development
are transferable, for uses or development not otherwise allowed,
to a receiving area.
(9) 'Tract' has the meaning given that term in ORS 215.010.
(10) 'Transferable development credit' means a severable
development interest in real property that can be transferred
from a lot, parcel or tract in a sending area to a lot, parcel or
tract in a receiving area.
(11) 'Transferable development credit system' means a land use
planning tool that allows the record owner of a lot, parcel or
tract of resource land in a sending area to voluntarily sever and
sell development interests from the lot, parcel or tract for
purchase and use by a potential developer to develop a lot,
parcel or tract in a receiving area at a higher intensity than
otherwise allowed.
(12) 'Urban growth boundary' has the meaning given that term in
ORS 195.060.
{ - (13) 'Urban reserve' has the meaning given that term in
ORS 195.137. - }
SECTION 7. ORS 94.538, as amended by section 2, chapter 5,
Oregon Laws 2010, is amended to read:
94.538. (1) One or more governmental units may establish a
transferable development credit system, including a process for
allowing transfer of development interests from a sending area
within the jurisdiction of one governmental unit to a receiving
area within the jurisdiction of another governmental unit.
(2) If the transferable development credit system allows
transfer of development interests between the jurisdictions of
different governmental units, the process must be described in an
intergovernmental agreement under ORS 190.003 to 190.130 entered
into by the governmental units with land use jurisdiction over
the sending and receiving areas and, for purposes of
administration of the process, the Department of Land
Conservation and Development. The intergovernmental agreement
may contain provisions for sharing between governmental units of
the prospective ad valorem tax revenues derived from new
development in the receiving area authorized under the system.
(3) A transferable development credit system must provide for:
(a) The record owner of a lot, parcel or tract in a sending
area to voluntarily sever and sell development interests of the
lot, parcel or tract for use in a receiving area;
(b) A potential developer of land in a receiving area to
purchase transferable development credits that allow a higher
intensity use or development of the land, including development
bonuses or other incentives not otherwise allowed, through
changes to the planning and zoning or waivers of density, height
or bulk limitations in the receiving area;
(c) The governmental units administering the system to
determine the type, extent and intensity of uses or development
allowed in the receiving area, based on the transferable
development credits generated from severed and sold development
interests; and
(d) The holder of a recorded instrument encumbering a lot,
parcel or tract from which the record owner proposes to sever
development interests for transfer to be given prior written
notice of the proposed transaction and to approve or disapprove
the transaction.
(4) A transferable development credit system must offer:
(a) Incentives for a record owner of resource land to
voluntarily prohibit or limit development on the resource land
and to sell or transfer forgone development to lands within
receiving areas.
(b) Benefits to landowners by providing monetary compensation
for limiting development in sending areas.
(c) Benefits to developers by allowing increased development
and development incentives in receiving areas.
(5) The governmental units administering a transferable
development credit system must:
(a) Designate sending areas that are chosen to achieve the
requirements set forth in this section and the objectives set
forth in ORS 94.534.
(b) Designate receiving areas that are chosen to achieve the
requirements set forth in this section and the objectives set
forth in ORS 94.534.
(c) Provide development bonuses and incentives to stimulate the
demand for the purchase and sale of transferable development
credits.
(d) Require that the record owner of development interests
transferred as development credits from a sending area to a
receiving area cause to be recorded, in the deed records of the
county in which the sending area is located, a conservation
easement that:
(A) Limits development of the lot, parcel or tract from which
the interests are severed consistent with the transfer; and
(B) Names an entity, approved by the governmental units
administering the system, as the holder of the conservation
easement.
(e) Maintain records of:
(A) The lots, parcels and tracts from which development
interests have been severed;
(B) The lots, parcels and tracts to which transferable
development credits have been transferred; and
(C) The allowable level of use or development for each lot,
parcel or tract after a transfer of development credits.
(f) Provide periodic summary reports of activities of the
system to the department.
(6) A receiving area must be composed of land that is within an
urban growth boundary or, subject to subsection (7) of this
section, within an urban reserve established under ORS
{ - 195.137 to - } 195.145 and that is:
(a) Appropriate and suitable for development.
(b) Not subject to limitations designed to protect natural
resources, scenic and historic areas, open spaces or other
resources protected under the statewide land use planning goals.
(c) Not within an area identified as a priority area for
protection in the 'Oregon Conservation Strategy' adopted by the
State Fish and Wildlife Commission and published by the State
Department of Fish and Wildlife in September of 2006.
(d) Not within a 'Conservation Opportunity Area' identified in
the 'Oregon Conservation Strategy' adopted by the State Fish and
Wildlife Commission and published by the State Department of Fish
and Wildlife in September of 2006.
(7) Land within an urban reserve:
(a) May be the site of a receiving area only if:
(A) The receiving area is likely to be brought within an urban
growth boundary at the next periodic review under ORS 197.628 to
197.650 or legislative review under ORS 197.626; and
(B) Development pursuant to the transferable development
credits is allowed only after the receiving area is brought
within an urban growth boundary.
(b) That is selected for use as a receiving area may be
designated for priority inclusion in the urban growth boundary,
when the urban growth boundary is amended, if the land qualifies
under the boundary location factors in a goal relating to
urbanization.
(8) The governing body of a governmental unit administering a
transferable development credit system may, directly or
indirectly through a contract with a nonprofit corporation,
establish a transferable development credit bank to facilitate:
(a) Buying severable development interests from lots, parcels
or tracts of resource land in a sending area.
(b) Selling transferable development credits to potential
developers of lots, parcels or tracts in a receiving area.
(c) Entering into agreements or contracts and performing acts
necessary, convenient or desirable to achieve the requirements
set forth in this section and the objectives set forth in ORS
94.534.
(d) Managing funds available for the purchase and sale of
transferable development credits.
(e) Authorizing and monitoring expenditures associated with the
system.
(f) Maintaining records of the transactions, including dates,
purchase amounts and locations of severed development interests
and development pursuant to transferred development credits, that
are sufficient to manage and evaluate the effectiveness of the
system.
(g) Providing periodic summary reports of activities of the
system to the governing body of a governmental unit administering
the system.
(h) Obtaining appraisals of development interests and
transferable development credits as necessary and pricing
transferable development credits for purchase or sale.
(i) Serving as a clearinghouse and information source for
buyers and sellers of transferable development credits.
(j) Accepting donations of transferable development credits.
(k) Soliciting and receiving grant funds for the implementation
of this section and ORS 94.536.
(9) A holder of a conservation easement shall hold, monitor and
enforce the conservation easement to ensure that lands in sending
areas do not retain development credits transferred under this
section and ORS 94.536.
SECTION 8. ORS 195.020 is amended to read:
195.020. (1) Special districts shall exercise their planning
duties, powers and responsibilities and take actions that are
authorized by law with respect to programs affecting land use,
including a city or special district boundary change as defined
in ORS 197.175 (1), in accordance with goals approved pursuant to
ORS chapters 195, 196 and 197.
(2) A county assigned coordinative functions under ORS 195.025
(1) { - , or the Metropolitan Service District, which is
assigned coordinative functions for Multnomah, Washington and
Clackamas counties by ORS 195.025 (1), - } shall enter into a
cooperative agreement with each special district { + and
metropolitan service district + } that provides an urban service
within the boundaries of the county { - or the metropolitan
district - } . A county
{ - or the Metropolitan Service District - } may enter into a
cooperative agreement with any other special district { + or
metropolitan service district + } operating within the boundaries
of the county { - or the metropolitan district - } .
(3) The appropriate city and county { - and, if within the
boundaries of the metropolitan service district, the metropolitan
service district, - } shall enter into a cooperative agreement
with each special district { + and metropolitan service
district + } that provides an urban service within an urban
growth boundary. The appropriate city and county { - , and the
metropolitan service district, - } may enter into a cooperative
agreement with any other special district { + or metropolitan
service district + } operating within an urban growth boundary.
(4) The agreements described in subsection (2) of this section
shall conform to the requirements of paragraphs (a) to (d), (f)
and (g) of this subsection. The agreements described in
subsection (3) of this section shall:
(a) Describe how the city or county will involve the special
district { + or metropolitan service district + } in
comprehensive planning, including plan amendments, periodic
review and amendments to land use regulations;
(b) Describe the responsibilities of the special district
{ + or the metropolitan service district + } in comprehensive
planning, including plan amendments, periodic review and
amendments to land use regulations regarding provision of urban
services;
(c) Establish the role and responsibilities of each party to
the agreement with respect to city or county approval of new
development;
(d) Establish the role and responsibilities of the city or
county with respect to district interests including, where
applicable, water sources, capital facilities and real property,
including rights of way and easements;
(e) Specify the units of local government which shall be
parties to an urban service agreement under ORS 195.065;
(f) If a metropolitan service district is a party to the
agreement, describe how the metropolitan service district will
involve the special district in the exercise of the metropolitan
service district's regional planning responsibilities; and
(g) Contain { - such - } other provisions as { + may be
required by rule of + } the Land Conservation and Development
Commission { - may require by rule - } .
(5) Agreements required under subsections (2) and (3) of this
section are subject to review by the commission. The commission
may provide by rule for periodic submission and review of
cooperative agreements to { - insure - } { + ensure + } that
they are consistent with acknowledged comprehensive plans.
SECTION 9. ORS 195.025 is amended to read:
195.025. (1) In addition to the responsibilities stated in ORS
197.175, each county, through its governing body, shall be
responsible for coordinating all planning activities affecting
land uses within the county, including planning activities of the
county, cities, { + metropolitan service districts, + } special
districts and state agencies, to { - assure - }
{ + ensure + } an integrated comprehensive plan for the entire
area of the county. { - In addition to being - }
{ + (2) The metropolitan service district is + } subject to
the provisions of ORS chapters 195, 196 and 197 with respect to
city or special district boundary changes, as defined by ORS
197.175 (1) { - , the governing body of the Metropolitan Service
District shall be considered the county review, advisory and
coordinative body for Multnomah, Clackamas and Washington
Counties for the areas within that district - } .
{ - (2) - } { + (3) + } For the purposes of carrying out
ORS chapters 195, 196 and 197, counties may voluntarily join
together with adjacent counties as authorized in ORS 190.003 to
190.620.
{ - (3) - } { + (4) + } Whenever counties and cities
representing 51 percent of the population in their area petition
the Land Conservation and Development Commission for an election
in their area to form a regional planning agency to exercise the
authority of the counties under subsection (1) of this section in
the area, the commission shall review the petition. If it finds
that the area described in the petition forms a reasonable
planning unit, it shall call an election in the area on a date
specified in ORS 203.085, to form a regional planning agency. The
election shall be conducted in the manner provided in ORS chapter
255. The county clerk shall be considered the elections officer
and the commission shall be considered the district elections
authority. The agency shall be considered established if the
majority of votes favor the establishment.
{ - (4) - } { + (5) + } If a voluntary association of local
governments adopts a resolution ratified by each participating
county and a majority of the participating cities therein which
authorizes the association to perform the review, advisory and
coordination functions assigned to the counties under subsection
(1) of this section, the association may perform such duties.
SECTION 10. ORS 195.060 is amended to read:
195.060. As used in ORS 195.020, 195.065 to 195.085 and
197.005, unless the context requires otherwise:
(1) 'District' has the meaning given that term in ORS 198.010.
In addition, the term includes a county service district
organized under ORS chapter 451.
(2) 'Urban growth boundary' means an acknowledged urban growth
boundary contained in a city or county comprehensive plan
{ - or an acknowledged urban growth boundary that has been
adopted by a metropolitan service district council under ORS
268.390 (3) - } .
(3) 'Urban service' has the meaning given that term in ORS
195.065.
SECTION 11. ORS 195.065 is amended to read:
195.065. (1) Under ORS 190.003 to 190.130, units of local
government and special districts that provide an urban service to
an area within an urban growth boundary that has a population
greater than 2,500 persons, and that are identified as
appropriate parties by a cooperative agreement under ORS 195.020,
shall enter into urban service agreements that:
(a) Specify whether the urban service will be provided in the
future by a city, county, district, authority or a combination of
one or more cities, counties, districts or authorities.
(b) Set forth the functional role of each service provider in
the future provision of the urban service.
(c) Determine the future service area for each provider of the
urban service.
(d) Assign responsibilities for:
(A) Planning and coordinating provision of the urban service
with other urban services;
(B) Planning, constructing and maintaining service facilities;
and
(C) Managing and administering provision of services to urban
users.
(e) Define the terms of necessary transitions in provision of
urban services, ownership of facilities, annexation of service
territory, transfer of moneys or project responsibility for
projects proposed on a plan of the city or district prepared
pursuant to ORS 223.309 and merger of service providers or other
measures for enhancing the cost efficiency of providing urban
services.
(f) Establish a process for review and modification of the
urban service agreement.
(2)(a) Each county shall have responsibility for convening
representatives of all cities and special districts that provide
or declare an interest in providing an urban service inside an
urban growth boundary within the county, for the purpose of
negotiating an urban service agreement. A county may establish
two or more subareas inside an urban growth boundary for the
purpose of such agreements. If an urban service is to be provided
within the boundaries of a metropolitan service district, a
county shall notify the metropolitan service district in advance
of the time for cities and special districts to meet for the
purpose of negotiating an urban service agreement { - , and the
Metropolitan Service District shall exercise its review, advisory
and coordination functions under ORS 195.025 - } .
(b) When negotiating for an urban service agreement, a county
shall consult with recognized community planning organizations
within the area affected by the urban service agreement.
(3) Decisions on a local government structure to be used to
deliver an urban service under ORS 195.070 are not land use
decisions under ORS 197.015.
(4) For purposes of ORS 195.020, 195.070, 195.075, 197.005 and
this section, 'urban services' means:
(a) Sanitary sewers;
(b) Water;
(c) Fire protection;
(d) Parks;
(e) Open space;
(f) Recreation; and
(g) Streets, roads and mass transit.
(5) Whether the requirement of subsection (1) of this section
is met by a single urban service agreement among multiple
providers of a service, by a series of agreements with individual
providers or by a combination of multiprovider and
single-provider agreements shall be a matter of local discretion.
SECTION 12. ORS 195.110 is amended to read:
195.110. (1) As used in this section, 'large school district'
means a school district that has an enrollment of over 2,500
students based on certified enrollment numbers submitted to the
Department of Education during the first quarter of each new
school year.
(2) A city or county containing a large school district shall:
(a) Include as an element of its comprehensive plan a school
facility plan prepared by the district in consultation with the
affected city or county.
(b) Initiate planning activities with a school district to
accomplish planning as required under ORS 195.020.
(3) The provisions of subsection (2)(a) of this section do not
apply to a city or a county that contains less than 10 percent of
the total population of the large school district.
(4) The large school district shall select a representative to
meet and confer with a representative of the city or county, as
described in subsection (2)(b) of this section, to accomplish the
planning required by ORS 195.020 and shall notify the city or
county of the selected representative. The city or county shall
provide the facilities and set the time for the planning
activities. The representatives shall meet at least twice each
year, unless all representatives agree in writing to another
schedule, and make a written summary of issues discussed and
proposed actions.
(5)(a) The school facility plan must cover a period of at least
10 years and must include, but need not be limited to, the
following elements:
(A) Population projections by school age group.
(B) Identification by the city or county and by the large
school district of desirable school sites.
(C) Descriptions of physical improvements needed in existing
schools to meet the minimum standards of the large school
district.
(D) Financial plans to meet school facility needs, including an
analysis of available tools to ensure facility needs are met.
(E) An analysis of:
(i) The alternatives to new school construction and major
renovation; and
(ii) Measures to increase the efficient use of school sites
including, but not limited to, multiple-story buildings and
multipurpose use of sites.
(F) Ten-year capital improvement plans.
(G) Site acquisition schedules and programs.
(b) Based on the elements described in paragraph (a) of this
subsection and applicable laws and rules, the school facility
plan must also include an analysis of the land required for the
10-year period covered by the plan that is suitable, as a
permitted or conditional use, for school facilities inside the
urban growth boundary.
(6) If a large school district determines that there is an
inadequate supply of suitable land for school facilities for the
10-year period covered by the school facility plan, the city or
county, or both, and the large school district shall cooperate in
identifying land for school facilities and take necessary
actions, including, but not limited to, adopting appropriate
zoning, aggregating existing lots or parcels in separate
ownership { - , - } { + and + } adding one or more sites
designated for school facilities to an urban growth boundary
{ - , or petitioning a metropolitan service district to add one
or more sites designated for school facilities to an urban growth
boundary pursuant to applicable law - } .
(7) The school facility plan shall provide for the integration
of existing city or county land dedication requirements with the
needs of the large school district.
(8) The large school district shall:
(a) Identify in the school facility plan school facility needs
based on population growth projections and land use designations
contained in the city or county comprehensive plan; and
(b) Update the school facility plan during periodic review or
more frequently by mutual agreement between the large school
district and the affected city or county.
(9)(a) In the school facility plan, the district school board
of a large school district may adopt objective criteria to be
used by an affected city or county to determine whether adequate
capacity exists to accommodate projected development. Before the
adoption of the criteria, the large school district shall confer
with the affected cities and counties and agree, to the extent
possible, on the appropriate criteria. After a large school
district formally adopts criteria for the capacity of school
facilities, an affected city or county shall accept those
criteria as its own for purposes of evaluating applications for a
comprehensive plan amendment or for a residential land use
regulation amendment.
(b) A city or county shall provide notice to an affected large
school district when considering a plan or land use regulation
amendment that significantly impacts school capacity. If the
large school district requests, the city or county shall
implement a coordinated process with the district to identify
potential school sites and facilities to address the projected
impacts.
(10) A school district that is not a large school district may
adopt a school facility plan as described in this section in
consultation with an affected city or county.
(11) The capacity of a school facility is not the basis for a
development moratorium under ORS 197.505 to 197.540.
(12) This section does not confer any power to a school
district to declare a building moratorium.
(13) A city or county may deny an application for residential
development based on a lack of school capacity if:
(a) The issue is raised by the school district;
(b) The lack of school capacity is based on a school facility
plan formally adopted under this section; and
(c) The city or county has considered options to address school
capacity.
SECTION 13. ORS 195.145 is amended to read:
195.145. (1) To ensure that the supply of land available for
urbanization is maintained { + , + } { - : - }
{ - (a) - } local governments may cooperatively designate
lands outside urban growth boundaries as urban reserves subject
to ORS 197.610 to 197.625.
{ - (b) Alternatively, a metropolitan service district
established under ORS chapter 268 and a county may enter into a
written agreement pursuant to ORS 190.003 to 190.130, 195.025 or
197.652 to 197.658 to designate urban reserves. A process and
criteria developed pursuant to this paragraph are an alternative
to a process or criteria adopted pursuant to paragraph (a) of
this subsection. - }
(2)(a) The Land Conservation and Development Commission may
require a local government to designate an urban reserve pursuant
to subsection { - (1)(a) - } { + (1) + } of this section
during its periodic review in accordance with the conditions for
periodic review under ORS 197.628.
(b) Notwithstanding paragraph (a) of this subsection, the
commission may require a local government to designate an urban
reserve pursuant to subsection { - (1)(a) - } { + (1) + } of
this section outside of its periodic review if:
(A) The local government is located inside a Primary
Metropolitan Statistical Area or a Metropolitan Statistical Area
as designated by the Federal Census Bureau upon November 4, 1993;
and
(B) The local government has been required to designate an
urban reserve by rule prior to November 4, 1993.
(3) In carrying out subsections (1) and (2) of this section:
(a) Within an urban reserve, neither the commission nor any
local government shall prohibit the siting on a legal parcel of a
single family dwelling that would otherwise have been allowed
under law existing prior to designation as an urban reserve.
(b) The commission shall provide to local governments a list of
options, rather than prescribing a single planning technique, to
ensure the efficient transition from rural to urban use in urban
reserves.
{ + (4) As used in this section, 'urban reserve' means land
outside an urban growth boundary that will provide for:
(a) Future expansion over a long-term period; and
(b) The cost-effective provision of public facilities and
services within the area when the lands are included within the
urban growth boundary. + }
{ - (4) Urban reserves designated by a metropolitan service
district and a county pursuant to subsection (1)(b) of this
section must be planned to accommodate population and employment
growth for at least 20 years, and not more than 30 years, after
the 20-year period for which the district has demonstrated a
buildable land supply in the most recent inventory, determination
and analysis performed under ORS 197.296. - }
{ - (5) A district and a county shall base the designation of
urban reserves under subsection (1)(b) of this section upon
consideration of factors including, but not limited to, whether
land proposed for designation as urban reserves, alone or in
conjunction with land inside the urban growth boundary: - }
{ - (a) Can be developed at urban densities in a way that
makes efficient use of existing and future public infrastructure
investments; - }
{ - (b) Includes sufficient development capacity to support a
healthy urban economy; - }
{ - (c) Can be served by public schools and other urban-level
public facilities and services efficiently and cost-effectively
by appropriate and financially capable service providers; - }
{ - (d) Can be designed to be walkable and served by a
well-connected system of streets by appropriate service
providers; - }
{ - (e) Can be designed to preserve and enhance natural
ecological systems; and - }
{ - (f) Includes sufficient land suitable for a range of
housing types. - }
{ - (6) The commission shall adopt by goal or by rule a
process and criteria for designating urban reserves pursuant to
subsection (1)(b) of this section. - }
SECTION 14. ORS 197.015 is amended to read:
197.015. As used in ORS chapters 195, 196 and 197, unless the
context requires otherwise:
(1) 'Acknowledgment' means a commission order that certifies
that a comprehensive plan and land use regulations, land use
regulation or plan or regulation amendment complies with the
goals or certifies that { - Metro - } { + regional + } land
use planning goals and objectives, Metro regional framework plan,
amendments to
{ - Metro - } { + regional + } planning goals and objectives
or amendments to the Metro regional framework plan comply with
the goals.
(2) 'Board' means the Land Use Board of Appeals.
(3) 'Carport' means a stationary structure consisting of a roof
with its supports and not more than one wall, or storage cabinet
substituting for a wall, and used for sheltering a motor vehicle.
(4) 'Commission' means the Land Conservation and Development
Commission.
(5) 'Comprehensive plan' means a generalized, coordinated land
use map and policy statement of the governing body of a local
government that interrelates all functional and natural systems
and activities relating to the use of lands, including but not
limited to sewer and water systems, transportation systems,
educational facilities, recreational facilities, and natural
resources and air and water quality management programs. '
Comprehensive' means all-inclusive, both in terms of the
geographic area covered and functional and natural activities and
systems occurring in the area covered by the plan. 'General
nature' means a summary of policies and proposals in broad
categories and does not necessarily indicate specific locations
of any area, activity or use. A plan is 'coordinated' when the
needs of all levels of governments, semipublic and private
agencies and the citizens of Oregon have been considered and
accommodated as much as possible. 'Land' includes water, both
surface and subsurface, and the air.
(6) 'Department' means the Department of Land Conservation and
Development.
(7) 'Director' means the Director of the Department of Land
Conservation and Development.
(8) 'Goals' means the mandatory statewide land use planning
standards adopted by the commission pursuant to ORS chapters 195,
196 and 197.
(9) 'Guidelines' means suggested approaches designed to aid
cities and counties in preparation, adoption and implementation
of comprehensive plans in compliance with goals and to aid state
agencies and special districts in the preparation, adoption and
implementation of plans, programs and regulations in compliance
with goals. Guidelines shall be advisory and shall not limit
state agencies, cities, counties and special districts to a
single approach.
(10) 'Land use decision':
(a) Includes:
(A) A final decision or determination made by a local
government or special district that concerns the adoption,
amendment or application of:
(i) The goals;
(ii) A comprehensive plan provision;
(iii) A land use regulation; or
(iv) A new land use regulation;
(B) A final decision or determination of a state agency other
than the commission with respect to which the agency is required
to apply the goals; or
(C) A decision of a county planning commission made under ORS
433.763;
(b) Does not include a decision of a local government:
(A) That is made under land use standards that do not require
interpretation or the exercise of policy or legal judgment;
(B) That approves or denies a building permit issued under
clear and objective land use standards;
(C) That is a limited land use decision;
(D) That determines final engineering design, construction,
operation, maintenance, repair or preservation of a
transportation facility that is otherwise authorized by and
consistent with the comprehensive plan and land use regulations;
(E) That is an expedited land division as described in ORS
197.360;
(F) That approves, pursuant to ORS 480.450 (7), the siting,
installation, maintenance or removal of a liquefied petroleum gas
container or receptacle regulated exclusively by the State Fire
Marshal under ORS 480.410 to 480.460;
(G) That approves or denies approval of a final subdivision or
partition plat or that determines whether a final subdivision or
partition plat substantially conforms to the tentative
subdivision or partition plan; or
(H) That a proposed state agency action subject to ORS 197.180
(1) is compatible with the acknowledged comprehensive plan and
land use regulations implementing the plan, if:
(i) The local government has already made a land use decision
authorizing a use or activity that encompasses the proposed state
agency action;
(ii) The use or activity that would be authorized, funded or
undertaken by the proposed state agency action is allowed without
review under the acknowledged comprehensive plan and land use
regulations implementing the plan; or
(iii) The use or activity that would be authorized, funded or
undertaken by the proposed state agency action requires a future
land use review under the acknowledged comprehensive plan and
land use regulations implementing the plan;
(c) Does not include a decision by a school district to close a
school;
(d) Does not include authorization of an outdoor mass gathering
as defined in ORS 433.735, or other gathering of fewer than 3,000
persons that is not anticipated to continue for more than 120
hours in any three-month period; and
(e) Does not include:
(A) A writ of mandamus issued by a circuit court in accordance
with ORS 215.429 or 227.179;
(B) Any local decision or action taken on an application
subject to ORS 215.427 or 227.178 after a petition for a writ of
mandamus has been filed under ORS 215.429 or 227.179; or
(C) A state agency action subject to ORS 197.180 (1), if:
(i) The local government with land use jurisdiction over a use
or activity that would be authorized, funded or undertaken by the
state agency as a result of the state agency action has already
made a land use decision approving the use or activity; or
(ii) A use or activity that would be authorized, funded or
undertaken by the state agency as a result of the state agency
action is allowed without review under the acknowledged
comprehensive plan and land use regulations implementing the
plan.
(11) 'Land use regulation' means any local government zoning
ordinance, land division ordinance adopted under ORS 92.044 or
92.046 or similar general ordinance establishing standards for
implementing a comprehensive plan.
(12) 'Limited land use decision':
(a) Means a final decision or determination made by a local
government pertaining to a site within an urban growth boundary
that concerns:
(A) The approval or denial of a tentative subdivision or
partition plan, as described in ORS 92.040 (1).
(B) The approval or denial of an application based on
discretionary standards designed to regulate the physical
characteristics of a use permitted outright, including but not
limited to site review and design review.
(b) Does not mean a final decision made by a local government
pertaining to a site within an urban growth boundary that
concerns approval or denial of a final subdivision or partition
plat or that determines whether a final subdivision or partition
plat substantially conforms to the tentative subdivision or
partition plan.
(13) 'Local government' means any city, county or metropolitan
service district formed under ORS chapter 268 or an association
of local governments performing land use planning functions under
ORS 195.025.
(14) 'Metro' means a metropolitan service district organized
under ORS chapter 268 { + for the Portland metropolitan
area + }.
{ - (15) 'Metro planning goals and objectives' means the land
use goals and objectives that a metropolitan service district may
adopt under ORS 268.380 (1)(a). The goals and objectives do not
constitute a comprehensive plan. - }
{ - (16) - } { + (15) + } 'Metro regional framework plan'
means the regional framework plan required by the 1992 Metro
Charter or its separate components. { - Neither the regional
framework plan nor its individual components constitute a
comprehensive plan. - }
{ - (17) - } { + (16) + } 'New land use regulation' means a
land use regulation other than an amendment to an acknowledged
land use regulation adopted by a local government that already
has a comprehensive plan and land regulations acknowledged under
ORS 197.251.
{ - (18) - } { + (17) + } 'Person' means any individual,
partnership, corporation, association, governmental subdivision
or agency or public or private organization of any kind. The Land
Conservation and Development Commission or its designee is
considered a person for purposes of appeal under ORS chapters 195
and 197.
{ + (18) 'Regional planning goals and objectives' means the
land use goals and objectives adopted by a metropolitan service
district under ORS 268.380. + }
(19) 'Special district' means any unit of local government,
other than a city, county, metropolitan service district formed
under ORS chapter 268 or an association of local governments
performing land use planning functions under ORS 195.025,
authorized and regulated by statute and includes but is not
limited to water control districts, domestic water associations
and water cooperatives, irrigation districts, port districts,
regional air quality control authorities, fire districts, school
districts, hospital districts, mass transit districts and
sanitary districts.
(20) 'Urban unincorporated community' means an area designated
in a county's acknowledged comprehensive plan as an urban
unincorporated community after December 5, 1994.
(21) 'Voluntary association of local governments' means a
regional planning agency in this state officially designated by
the Governor pursuant to the federal Office of Management and
Budget Circular A-95 as a regional clearinghouse.
(22) 'Wetlands' means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
that are sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions.
SECTION 15. 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), 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 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), 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 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 16. ORS 197.296 is amended to read:
197.296. (1)(a) The provisions of this section apply to
{ - metropolitan service district regional framework plans
and - } local government comprehensive plans for lands within
the urban growth boundary of a city that { - is located outside
of a metropolitan service district and - } has a population of
25,000 or more.
(b) The Land Conservation and Development Commission may
establish a set of factors under which additional cities are
subject to the provisions of this section. In establishing the
set of factors required under this paragraph, the commission
shall consider the size of the city, the rate of population
growth of the city or the proximity of the city to another city
with a population of 25,000 or more or to a metropolitan service
district.
(2) At periodic review pursuant to ORS 197.628 to 197.650 or at
any other legislative review of the comprehensive plan { - or
regional plan - } that concerns the urban growth boundary and
requires the application of a statewide planning goal relating to
buildable lands for residential use, a local government shall
demonstrate that its comprehensive plan { - or regional
plan - } provides sufficient buildable lands within the urban
growth boundary established pursuant to statewide planning goals
to accommodate estimated housing needs for 20 years. The 20-year
period shall commence on the date initially scheduled for
completion of the periodic or legislative review.
(3) In performing the duties under subsection (2) of this
section, a local government shall:
(a) Inventory the supply of buildable lands within the urban
growth boundary and determine the housing capacity of the
buildable lands; and
(b) Conduct an analysis of housing need by type and density
range, in accordance with ORS 197.303 and statewide planning
goals and rules relating to housing, to determine the number of
units and amount of land needed for each needed housing type for
the next 20 years.
(4)(a) For the purpose of the inventory described in subsection
(3)(a) of this section, 'buildable lands' includes:
(A) Vacant lands planned or zoned for residential use;
(B) Partially vacant lands planned or zoned for residential
use;
(C) Lands that may be used for a mix of residential and
employment uses under the existing planning or zoning; and
(D) Lands that may be used for residential infill or
redevelopment.
(b) For the purpose of the inventory and determination of
housing capacity described in subsection (3)(a) of this section,
the local government must demonstrate consideration of:
(A) The extent that residential development is prohibited or
restricted by local regulation and ordinance, state law and rule
or federal statute and regulation;
(B) A written long term contract or easement for radio,
telecommunications or electrical facilities, if the written
contract or easement is provided to the local government; and
(C) The presence of a single family dwelling or other structure
on a lot or parcel.
(c) Except for land that may be used for residential infill or
redevelopment, a local government shall create a map or document
that may be used to verify and identify specific lots or parcels
that have been determined to be buildable lands.
(5)(a) Except as provided in paragraphs (b) and (c) of this
subsection, the determination of housing capacity and need
pursuant to subsection (3) of this section must be based on data
relating to land within the urban growth boundary that has been
collected since the last periodic review or five years, whichever
is greater. The data shall include:
(A) The number, density and average mix of housing types of
urban residential development that have actually occurred;
(B) Trends in density and average mix of housing types of urban
residential development;
(C) Demographic and population trends;
(D) Economic trends and cycles; and
(E) The number, density and average mix of housing types that
have occurred on the buildable lands described in subsection
(4)(a) of this section.
(b) A local government shall make the determination described
in paragraph (a) of this subsection using a shorter time period
than the time period described in paragraph (a) of this
subsection if the local government finds that the shorter time
period will provide more accurate and reliable data related to
housing capacity and need. The shorter time period may not be
less than three years.
(c) A local government shall use data from a wider geographic
area or use a time period for economic cycles and trends longer
than the time period described in paragraph (a) of this
subsection if the analysis of a wider geographic area or the use
of a longer time period will provide more accurate, complete and
reliable data relating to trends affecting housing need than an
analysis performed pursuant to paragraph (a) of this subsection.
The local government must clearly describe the geographic area,
time frame and source of data used in a determination performed
under this paragraph.
(6) If the housing need determined pursuant to subsection
(3)(b) of this section is greater than the housing capacity
determined pursuant to subsection (3)(a) of this section, the
local government shall take one or more of the following actions
to accommodate the additional housing need:
(a) Amend its urban growth boundary to include sufficient
buildable lands to accommodate housing needs for the next 20
years. As part of this process, the local government shall
consider the effects of measures taken pursuant to paragraph (b)
of this subsection. The amendment shall include sufficient land
reasonably necessary to accommodate the siting of new public
school facilities. The need and inclusion of lands for new public
school facilities shall be a coordinated process between the
affected public school districts and the local government that
has the authority to approve the urban growth boundary;
(b) Amend its comprehensive plan { - , regional plan,
functional plan - } or land use regulations to include new
measures that demonstrably increase the likelihood that
residential development will occur at densities sufficient to
accommodate housing needs for the next 20 years without expansion
of the urban growth boundary. A local government { - or
metropolitan service district - } that takes this action shall
monitor and record the level of development activity and
development density by housing type following the date of the
adoption of the new measures; or
(c) Adopt a combination of the actions described in paragraphs
(a) and (b) of this subsection.
(7) Using the analysis conducted under subsection (3)(b) of
this section, the local government shall determine the overall
average density and overall mix of housing types at which
residential development of needed housing types must occur in
order to meet housing needs over the next 20 years. If that
density is greater than the actual density of development
determined under subsection (5)(a)(A) of this section, or if that
mix is different from the actual mix of housing types determined
under subsection (5)(a)(A) of this section, the local government,
as part of its periodic review, shall adopt measures that
demonstrably increase the likelihood that residential development
will occur at the housing types and density and at the mix of
housing types required to meet housing needs over the next 20
years.
(8)(a) A local government { - outside a metropolitan service
district - } that takes any actions under subsection (6) or (7)
of this section shall demonstrate that the comprehensive plan and
land use regulations comply with goals and rules adopted by the
commission and implement ORS 197.295 to 197.314.
(b) The local government shall determine the density and mix of
housing types anticipated as a result of actions taken under
subsections (6) and (7) of this section and monitor and record
the actual density and mix of housing types achieved. The local
government shall compare actual and anticipated density and mix.
The local government shall submit its comparison to the
commission at the next periodic review or at the next legislative
review of its urban growth boundary, whichever comes first.
(9) In establishing that actions and measures adopted under
subsections (6) or (7) of this section demonstrably increase the
likelihood of higher density residential development, the local
government shall at a minimum ensure that land zoned for needed
housing is in locations appropriate for the housing types
identified under subsection (3) of this section and is zoned at
density ranges that are likely to be achieved by the housing
market using the analysis in subsection (3) of this section.
Actions or measures, or both, may include but are not limited to:
(a) Increases in the permitted density on existing residential
land;
(b) Financial incentives for higher density housing;
(c) Provisions permitting additional density beyond that
generally allowed in the zoning district in exchange for
amenities and features provided by the developer;
(d) Removal or easing of approval standards or procedures;
(e) Minimum density ranges;
(f) Redevelopment and infill strategies;
(g) Authorization of housing types not previously allowed by
the plan or regulations;
(h) Adoption of an average residential density standard; and
(i) Rezoning or redesignation of nonresidential land.
SECTION 17. ORS 197.298 is amended to read:
197.298. (1) In addition to any requirements established by
rule addressing urbanization, land may not be included within an
urban growth boundary except under the following priorities:
(a) First priority is land that is designated urban reserve
land under ORS 195.145 { - , - } { + or + } rule { - or
metropolitan service district action plan - } .
(b) If land under paragraph (a) of this subsection is
inadequate to accommodate the amount of land needed, second
priority is land adjacent to an urban growth boundary that is
identified in an acknowledged comprehensive plan as an exception
area or nonresource land. Second priority may include resource
land that is completely surrounded by exception areas unless such
resource land is high-value farmland as described in ORS 215.710.
(c) If land under paragraphs (a) and (b) of this subsection is
inadequate to accommodate the amount of land needed, third
priority is land designated as marginal land pursuant to ORS
197.247 (1991 Edition).
(d) If land under paragraphs (a) to (c) of this subsection is
inadequate to accommodate the amount of land needed, fourth
priority is land designated in an acknowledged comprehensive plan
for agriculture or forestry, or both.
(2) Higher priority shall be given to land of lower capability
as measured by the capability classification system or by cubic
foot site class, whichever is appropriate for the current use.
(3) Land of lower priority under subsection (1) of this section
may be included in an urban growth boundary if land of higher
priority is found to be inadequate to accommodate the amount of
land estimated in subsection (1) of this section for one or more
of the following reasons:
(a) Specific types of identified land needs cannot be
reasonably accommodated on higher priority lands;
(b) Future urban services could not reasonably be provided to
the higher priority lands due to topographical or other physical
constraints; or
(c) Maximum efficiency of land uses within a proposed urban
growth boundary requires inclusion of lower priority lands in
order to include or to provide services to higher priority lands.
SECTION 18. ORS 197.313 is amended to read:
197.313. Nothing in ORS 197.312 or in the amendments to ORS
197.295 { - , 197.303, - } { + and + } 197.307 by sections 1
{ - , 2 - } and 3, chapter 795, Oregon Laws 1983, shall be
construed to require a city or county to contribute to the
financing, administration or sponsorship of government assisted
housing.
SECTION 19. ORS 197.314 is amended to read:
197.314. (1) Notwithstanding ORS 197.296, 197.298,
{ - 197.299, 197.301, 197.302, - } 197.303, 197.307, 197.312
and 197.313, within urban growth boundaries each city and county
shall amend its comprehensive plan and land use regulations for
all land zoned for single-family residential uses to allow for
siting of manufactured homes as defined in ORS 446.003. A local
government may only subject the siting of a manufactured home
allowed under this section to regulation as set forth in ORS
197.307 (5).
(2) Cities and counties shall adopt and amend comprehensive
plans and land use regulations under subsection (1) of this
section according to the provisions of ORS 197.610 to 197.650.
(3) Subsection (1) of this section does not apply to any area
designated in an acknowledged comprehensive plan or land use
regulation as a historic district or residential land immediately
adjacent to a historic landmark.
(4) Manufactured homes on individual lots zoned for
single-family residential use in subsection (1) of this section
shall be in addition to manufactured homes on lots within
designated manufactured dwelling subdivisions.
(5) Within any residential zone inside an urban growth boundary
where a manufactured dwelling park is otherwise allowed, a city
or county shall not adopt, by charter or ordinance, a minimum lot
size for a manufactured dwelling park that is larger than one
acre.
(6) A city or county may adopt the following standards for the
approval of manufactured homes located in manufactured dwelling
parks that are smaller than three acres:
(a) The manufactured home shall have a pitched roof, except
that no standard shall require a slope of greater than a nominal
three feet in height for each 12 feet in width.
(b) The manufactured home shall have exterior siding and
roofing that, in color, material and appearance, is similar to
the exterior siding and roofing material commonly used on
residential dwellings within the community or that is comparable
to the predominant materials used on surrounding dwellings as
determined by the local permit approval authority.
(7) This section shall not be construed as abrogating a
recorded restrictive covenant.
SECTION 20. ORS 197.319 is amended to read:
197.319. (1) Before a person may request adoption of an
enforcement order under ORS 197.320, the person shall:
(a) Present the reasons, in writing, for such an order to the
affected local government; and
(b) Request:
(A) Revisions to the local comprehensive plan, land use
regulations, special district cooperative or urban service
agreement or decision-making process which is the basis for the
order; or
(B) That an action be taken regarding the local comprehensive
plan, land use regulations, special district agreement or
decision-making process that is the basis for the order.
(2)(a) The local government or special district shall issue a
written response to the request within 60 days of the date the
request is mailed to the local government or special district.
(b) The requestor and the local government or special district
may enter into mediation to resolve issues in the request. The
Department of Land Conservation and Development shall provide
mediation services when jointly requested by the local government
or special district and the requestor.
(c) If the local government or special district does not act in
a manner which the requestor believes is adequate to address the
issues raised in the request within the time period provided in
paragraph (a) of this subsection, a petition may be presented to
the Land Conservation and Development Commission under ORS
197.324.
{ - (3) A metropolitan service district may request an
enforcement order under ORS 197.320 (12) without first complying
with subsections (1) and (2) of this section. - }
SECTION 21. ORS 197.320 is amended to read:
197.320. The Land Conservation and Development Commission shall
issue an order requiring a local government, state agency or
special district to take action necessary to bring its
comprehensive plan, land use regulation, limited land use
decisions or other land use decisions into compliance with the
goals, acknowledged comprehensive plan provisions or land use
regulations if the commission has good cause to believe:
(1) A comprehensive plan or land use regulation adopted by a
local government not on a compliance schedule is not in
compliance with the goals by the date set in ORS 197.245 or
197.250 for such compliance;
(2) A plan, program, rule or regulation affecting land use
adopted by a state agency or special district is not in
compliance with the goals by the date set in ORS 197.245 or
197.250 for such compliance;
(3) A local government is not making satisfactory progress
toward performance of its compliance schedule;
(4) A state agency is not making satisfactory progress in
carrying out its coordination agreement or the requirements of
ORS 197.180;
(5) A local government has no comprehensive plan or land use
regulation and is not on a compliance schedule directed to
developing the plan or regulation;
(6) A local government has engaged in a pattern or practice of
decision making that violates an acknowledged comprehensive plan
or land use regulation. In making its determination under this
subsection, the commission shall determine whether there is
evidence in the record to support the decisions made. The
commission shall not judge the issue solely upon adequacy of the
findings in support of the decisions;
(7) A local government has failed to comply with a commission
order entered under ORS 197.644;
(8) A special district has engaged in a pattern or practice of
decision-making that violates an acknowledged comprehensive plan
or cooperative agreement adopted pursuant to ORS 197.020;
(9) A special district is not making satisfactory progress
toward performance of its obligations under ORS chapters 195 and
197;
(10) A local government is applying approval standards, special
conditions on approval of specific development proposals or
procedures for approval that do not comply with ORS 197.307 (6);
or
(11) A local government is not making satisfactory progress
toward meeting its obligations under ORS 195.065.
{ - (12) A local government within the jurisdiction of a
metropolitan service district has failed to make changes to the
comprehensive plan or land use regulations to comply with the
regional framework plan of the district or has engaged in a
pattern or practice of decision-making that violates a
requirement of the regional framework plan. - }
SECTION 22. ORS 197.626 is amended to read:
197.626. { - A metropolitan service district that amends its
urban growth boundary to include more than 100 acres, or that
amends the district's regional framework plan or land use
regulations implementing the plan to establish urban reserves
designated under ORS 195.145 (1)(b), - } A city with a
population of 2,500 or more within its urban growth boundary that
amends the urban growth boundary to include more than 50 acres or
that designates urban reserve under ORS 195.145 { - , or a
county that amends the county's comprehensive plan or land use
regulations implementing the plan to establish rural reserves
designated under ORS 195.141, - } shall submit the amendment or
designation to the Land Conservation and Development Commission
in the manner provided for periodic review under ORS 197.628 to
197.650.
SECTION 23. ORS 197.651 is amended to read:
197.651. (1) Notwithstanding ORS 197.650, a Land Conservation
and Development Commission order concerning the designation of
urban reserves under ORS 195.145 { - (1)(b) or rural reserves
under ORS 195.141 - } may be appealed to the Court of Appeals by
the persons described in ORS 197.650.
(2) Judicial review of orders described in subsection (1) of
this section is as provided in this section.
(3) Jurisdiction for judicial review is conferred upon the
Court of Appeals. A proceeding for judicial review may be
instituted by filing a petition in the Court of Appeals. The
petition must be filed within 21 days after the date the
commission delivered or mailed the order upon which the petition
is based.
(4) The filing of the petition, as set forth in subsection (3)
of this section, and service of a petition on the persons who
submitted oral or written testimony in the proceeding before the
commission are jurisdictional and may not be waived or extended.
(5) The petition must state the nature of the order the
petitioner seeks to have reviewed. Copies of the petition must be
served by registered or certified mail upon the commission and
the persons who submitted oral or written testimony in the
proceeding before the commission.
(6) Within 21 days after service of the petition, the
commission shall transmit to the Court of Appeals the original or
a certified copy of the entire record of the proceeding under
review. However, by stipulation of the parties to the review
proceeding, the record may be shortened. The Court of Appeals may
tax a party that unreasonably refuses to stipulate to limit the
record for the additional costs. The Court of Appeals may require
or permit subsequent corrections or additions to the record.
Except as specifically provided in this subsection, the Court of
Appeals may not tax the cost of the record to the petitioner or
an intervening party. However, the Court of Appeals may tax the
costs to a party that files a frivolous petition for judicial
review.
(7) Petitions and briefs must be filed within time periods and
in a manner established by the Court of Appeals by rule.
(8) The Court of Appeals shall:
(a) Hear oral argument within 49 days of the date of
transmittal of the record unless the Court of Appeals determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. However, the Court of Appeals may not hold oral argument
more than 49 days after the date of transmittal of the record
because of general congestion of the court calendar or lack of
diligent preparation or attention to the case by a member of the
court or a party.
(b) Set forth in writing and provide to the parties a
determination to hear oral argument more than 49 days from the
date the record is transmitted, together with the reasons for the
determination. The Court of Appeals shall schedule oral argument
as soon as is practicable.
(c) Consider, in making a determination under paragraph (b) of
this subsection:
(A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the Court of Appeals to prepare for oral
argument; and
(B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
(9) The court:
(a) Shall limit judicial review of an order reviewed under this
section to the record.
(b) May not substitute its judgment for that of the Land
Conservation and Development Commission as to an issue of fact.
(10) The Court of Appeals may affirm, reverse or remand an
order reviewed under this section. The Court of Appeals shall
reverse or remand the order only if the court finds the order is:
(a) Unlawful in substance or procedure. However, error in
procedure is not cause for reversal or remand unless the Court of
Appeals determines that substantial rights of the petitioner were
prejudiced.
(b) Unconstitutional.
(c) Not supported by substantial evidence in the whole record
as to facts found by the commission.
(11) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
(12) If the order of the commission is remanded by the Court of
Appeals or the Supreme Court, the commission shall respond to the
court's appellate judgment within 30 days.
SECTION 24. ORS 199.705 is amended to read:
199.705. In ORS 199.705 to 199.795:
(1) 'City-county' means a city incorporated under ORS 199.705
to 199.795 and having both city and county functions.
(2) 'City in the county' means a city having more than 50
percent of its population in the county.
(3) 'Most populous city' means a city of not less than 300,000
population.
(4) 'Unincorporated area' means the area of unincorporated
territory within the county { - that is outside the urban
growth boundary adopted under ORS 268.390 - } .
SECTION 25. ORS 221.034 is amended to read:
221.034. (1) As used in this section:
(a) 'Neighboring city' means a city that has any part of its
territory situated within three miles of the area proposed to be
incorporated.
(b) 'Rural unincorporated community' means a settlement with a
boundary identified in an acknowledged comprehensive plan of a
county and that:
(A) Is made up primarily of lands subject to an exception to
statewide planning goals related to agricultural lands or
forestlands;
(B) Either was identified in the acknowledged comprehensive
plan of a county as a 'rural community,' 'service center, ' '
rural center,' 'resort community' or similar term before October
28, 1994, or is listed in the Department of Land Conservation and
Development's 'Survey of Oregon Unincorporated Communities'
(January 30, 1997);
(C) Lies outside the urban growth boundary of a city { - or a
metropolitan service district - } ; and
(D) Is not incorporated as a city.
(c) 'Urban reserve' has the meaning given that term in ORS
{ - 195.137 - } { + 195.145 + }.
(d) 'Urban services' has the meaning given that term in ORS
195.065.
(2) When any of the area proposed to be incorporated as a city
lies within an urbanized area, but outside the urban growth
boundary of a city { - or a metropolitan service district - } :
(a) The area proposed to be incorporated must also be located
entirely within a designated rural unincorporated community and
contiguous lands subject to an exception to statewide planning
goals related to agricultural lands or forestlands.
(b) The petition required by ORS 221.031 must be accompanied by
an affidavit, signed by a chief petitioner, stating that:
(A) Ten percent of the electors registered within the area
proposed for incorporation favor the incorporation; and
(B) The chief petitioners have engaged the neighboring cities
in discussions concerning the effects of the proposed
incorporation, including discussions specifically relating to how
those cities and the proposed city will allow for expansion of
urban growth boundaries and, where applicable, for creation or
expansion of urban reserves.
(c) The economic feasibility statement required by ORS 221.035
must:
(A) Indicate that the proposed city must plan for and provide
urban services in a cost-effective manner at the minimum level
adequate to meet current needs and projected growth;
(B) Contain a proposed permanent rate limit for operating taxes
to provide revenues for urban services; and
(C) Indicate that the proposed city must plan for residential
development at or above the same urban density planned for an
existing city, within the county, that has a similar geographic
area within the existing city's urban growth boundary or, for a
proposed city within three miles of Metro's boundary, a minimum
urban residential density in accordance with a statewide planning
goal and rules pertaining to needed housing for cities within
Metro's urban growth boundary.
(d) If the proposed city will be required to complete a public
facility plan and a transportation systems plan, the proposed
city must demonstrate the ability to provide urban services to
meet current needs and projected growth. The proposed city may
meet this requirement, in whole or in part, by establishing an
agreement in principle with a city or a district, as defined in
ORS 195.060, to provide the urban services.
(3) If the governing body of a neighboring city determines that
the proposed incorporation adversely affects that city, the
governing body may ask the county court with which the petition
for incorporation was filed to reject the petition and terminate
the incorporation proceedings. The objections by the city to the
incorporation shall be heard and considered by the county court
at a public hearing held under ORS 221.040.
(4) If, at the hearing held under ORS 221.040, the county court
finds that any of the requirements of subsection (2) of this
section are not met or that the proposed incorporation will
adversely affect a neighboring city, the county court shall
provide by order for the termination of the incorporation
proceedings. The order shall contain the findings of the county
court relating to the proposed incorporation and the reasons for
terminating the incorporation proceedings.
(5) In the manner provided in ORS 197.830 to 197.845, the Land
Use Board of Appeals shall review, upon the petition of a party
to the incorporation proceedings, the order of the county court
under subsection (4) of this section.
SECTION 26. Section 6, chapter 844, Oregon Laws 2005, is
amended to read:
{ + Sec. 6. + } An area of land within the urban growth
boundary of the metropolitan service district established in the
Portland metropolitan area { + , as the urban growth boundary
existed on September 2, 2005, + } may not be annexed under ORS
222.750 if:
(1) The area of land is larger than seven acres and is zoned
for industrial use;
(2) The land is owned by an Oregon-based business entity that
has been in continuous operation, either directly or through a
predecessor, for at least 60 years; and
(3) The business entity employs more than 500 individuals on
the land.
SECTION 27. Section 7, chapter 844, Oregon Laws 2005, is
amended to read:
{ + Sec. 7. + } An area of land within the urban growth
boundary of the metropolitan service district established in the
Portland metropolitan area { + , as the urban growth boundary
existed on September 2, 2005, + } may not be annexed under ORS
222.750 if:
(1) The area of land is larger than 14 acres and is zoned for
industrial use;
(2) The land is owned by an Oregon-based business entity that
has been in continuous operation on a portion of the land for at
least 40 years; and
(3) The business entity employs more than 300 individuals on
the land.
SECTION 28. ORS 285C.500, as amended by section 1, chapter 595,
Oregon Laws 2005, is amended to read:
285C.500. As used in ORS 285C.500 to 285C.506:
(1) 'Business firm' has the meaning given that term in ORS
285C.050.
(2) 'County per capita personal income' means the per capita
personal income level published by the Bureau of Economic
Analysis of the United States Department of Commerce for a
county.
(3) 'County unemployment rate' means the most recently
available unemployment rate for the county, as determined by the
Employment Department.
(4) 'Facility' means the land, real property improvements and
personal property that are used by a business firm to conduct
business operations, and that are the subject of an application
for preliminary certification under ORS 285C.503 or annual
certification under ORS 285C.506.
(5) 'Qualified location' means any area that is:
(a) Zoned for industrial use or is within the urban growth
boundary of a city that has 15,000 or fewer residents; and
(b) Located in a county that, during either of the two years
preceding the date an application for preliminary certification
is filed under ORS 285C.503, had both:
(A) A county unemployment rate that was in the top half of
county unemployment rates in this state; and
(B) A county per capita personal income that was in the bottom
half of county per capita personal incomes in this state.
(6) 'Urban growth boundary' means an urban growth boundary
contained in a city or county comprehensive plan that has been
acknowledged by the Land Conservation and Development Commission
pursuant to ORS 197.251 { - or an urban growth boundary that
has been adopted by a metropolitan service district under ORS
268.390 (3) - } .
SECTION 29. ORS 308A.350 is amended to read:
308A.350. As used in ORS 308A.350 to 308A.383:
(1) 'Owner' means the party or parties having the fee interest
in land, except that where land is subject to a real estate sales
contract, 'owner' means the contract vendee under a recorded
contract.
(2) 'Department' means the State Department of Fish and
Wildlife.
(3) 'Designated riparian land' means the beds of streams, the
adjacent vegetation communities, and the land thereunder, which
are predominantly influenced by their association with water, not
to extend more than 100 feet landward of the line of nonaquatic
vegetation, which are privately owned and which qualify for
exemption under ORS 308A.350 to 308A.383.
(4) 'Urban growth boundary' means an urban growth boundary
contained in a city or county comprehensive plan that has been
acknowledged by the Land Conservation and Development Commission
pursuant to ORS 197.251 { - or an urban growth boundary that
has been adopted by a metropolitan service district council under
ORS 268.390 (3) - } .
SECTION 30. ORS 308A.700 is amended to read:
308A.700. As used in ORS 308A.700 to 308A.733:
(1) 'Disqualification' includes the removal of forestland
designation under ORS 321.359, 321.712, 321.716 or 321.842.
(2) 'Urban growth boundary' means an urban growth boundary
contained in a city or county comprehensive plan that has been
acknowledged by the Land Conservation and Development Commission
pursuant to ORS 197.251 { - or an urban growth boundary that
has been adopted by a metropolitan service district under ORS
268.390 (3) - } .
SECTION 31. ORS 451.010 is amended to read:
451.010. (1) Master plans and service districts may be
established as provided by this chapter regarding:
(a) Sewage works, including all facilities necessary for
collecting, pumping, treating and disposing of sanitary or storm
sewage.
(b) Drainage works, including all facilities necessary for
collecting, pumping and disposing of storm and surface water.
(c) Street lighting works, including all facilities necessary
for the lighting of streets and highways.
(d) Public parks and recreation facilities, including land,
structures, equipment, supplies and personnel necessary to
acquire, develop and maintain such public park and recreation
facilities and to administer a program of supervised recreation
services.
(e) Diking and flood control works, including all facilities
necessary for diking and control of watercourses.
(f) Water supply works and service, including all facilities
necessary for tapping natural sources of domestic and industrial
water, treating and protecting the quality of the water and
transmitting it to the point of sale to any person, city,
domestic water supply corporation or other public or private
agency for domestic, municipal and industrial water supply
service.
(g) Solid waste disposal. This paragraph does not apply in
Clackamas, Multnomah and Washington Counties.
(h) Public transportation, including public depots, public
parking and the motor vehicles and other equipment necessary for
the transportation of persons together with their personal
property.
(i) Agricultural educational extension services.
(j) Emergency medical services, including ambulance services.
(k) Library services.
(L) Roads.
(m) Emergency communications services, including a 9-1-1
emergency reporting system established under ORS 403.115.
(n) Law enforcement services.
(o) Human services.
(p) Cemetery maintenance.
(q) Animal control.
(2) Within the geographical jurisdiction of any local
government boundary commission established by or pursuant to ORS
199.410 to 199.519, in addition to the purposes described in
subsection (1) of this section, master plans and service
districts may be established as provided by this chapter
regarding:
(a) Fire prevention and protection.
(b) Hospital and ambulance services.
(c) Vector control.
(d) Weather modification.
(3) Within the boundaries of any subdivision, service districts
may be established as provided by this chapter regarding:
(a) Fire prevention and protection.
(b) Security services provided by contract with an association
of homeowners whose property is located entirely within the
boundaries of the service district, which services may include
the enforcement of the rules or regulations of the association
dealing with public access to or the use of the property of the
association, routine patrolling and inspection of private areas
located within the jurisdiction of the association and matters of
traffic and safety within such areas.
(c) Law enforcement services.
(d) Hospital and ambulance services.
(e) Vector control.
(f) Activities set forth in subsection (1)(a), (f), (g), (j)
and (m) of this section.
(4) As used in subsection (3) of this section, ' subdivision'
means a subdivision as defined by ORS 92.010 or any contiguous
group of such subdivisions that:
(a) Is a planned community within the meaning of ORS 94.550
without regard to whether such subdivision or group of
subdivisions is subject to ORS 94.550 to 94.783;
(b) Is located entirely within an unincorporated area and is
everywhere separated by a distance of five miles or more from an
urban growth boundary described in an acknowledged comprehensive
plan of a city { - or the urban growth boundary adopted by a
metropolitan service district under ORS 268.390 (3) - } ; and
(c) Prior to the establishment of a service district under
subsection (3) of this section, is designated a subdivision for
purposes of this subsection by the governing body of the county
in which the subdivision or group of subdivisions is located.
(5) Within the boundaries of Washington County, master plans
and service districts may be established as provided by this
chapter regarding water resource management services that affect
the quality and quantity of water within a single watershed,
basin or planning area. As used in this subsection, 'water
resource management services' means:
(a) Planning for and provision of two or more services or
facilities such as sewage works, drainage works, surface water
management, endangered species recovery management, water quality
management, diking and flood control works, river flow
management, water supply works, wastewater reuse and irrigation
facilities.
(b) Activities ancillary to the services and facilities listed
in paragraph (a) of this subsection, including facilities for the
production, sale or purchase of energy when such facilities are
integrated in a master plan adopted under ORS 451.120.
SECTION 32. ORS 459A.005 is amended to read:
459A.005. (1) As used in ORS 459.015, 459.250 and 459A.005 to
459A.665, the 'opportunity to recycle' means at least that the
city, county or metropolitan service district responsible for
solid waste management:
(a)(A) Provides a place for collecting source separated
recyclable material located either at a disposal site or at
another location more convenient to the population being served
and, if a city has a population of 4,000 or more, collection at
least once a month of source separated recyclable material from
collection service customers within the city's urban growth
boundary { - or, where applicable, within the urban growth
boundary established by a metropolitan service district - } ; or
(B) Provides an alternative method which complies with rules of
the Environmental Quality Commission; and
(b) Complies with the rates and program elements required under
ORS 459A.010.
(2) The 'opportunity to recycle' defined in subsection (1) of
this section also includes a public education and promotion
program that:
(a) Gives notice to each person of the opportunity to recycle;
and
(b) Encourages source separation of recyclable material.
SECTION 33. ORS 459A.010 is amended to read:
459A.010. (1) It is the goal of the State of Oregon that:
(a) For the calendar year 2005, the amount of recovery from the
general solid waste stream shall be at least 45 percent;
(b) For the calendar year 2009, the amount of recovery from the
general solid waste stream shall be at least 50 percent;
(c) For the calendar year 2005 and subsequent years, that there
be no annual increase in per capita municipal solid waste
generation; and
(d) For the calendar year 2009 and subsequent years, that there
be no annual increase in total municipal solid waste generation.
(2) In addition to the requirements of ORS 459A.005, the '
opportunity to recycle' shall include the requirements of
subsection (3) of this section using the following program
elements:
(a) Provision of at least one durable recycling container to
each residential service customer.
(b) On-route collection at least once each week of source
separated recyclable material to residential customers, provided
on the same day that solid waste is collected from each customer.
(c) An expanded education and promotion program conducted to
carry out the policy set forth in ORS 459.015, to inform solid
waste generators of the manner and benefits of reducing, reusing,
recycling and composting material and to promote use of recycling
services. The city, county or metropolitan service district
responsible for providing an opportunity to recycle under ORS
459A.005 and this section shall provide the education and
promotion program in either of the following two ways:
(A) Preparing and implementing an education and promotion plan
that includes actions to effectively reach solid waste generators
and all new and existing collection service customers, as
necessary to fulfill the intent of this paragraph. The plan shall
be submitted to the Department of Environmental Quality the first
year that the plan is in effect. Thereafter, the wasteshed shall
submit a summary of activities in the plan to the Department of
Environmental Quality at the same time the county submits the
periodic report required under ORS 459A.050 (1)(a). The summary
shall cover at least the time period until the next periodic
report is due to the department.
(B) Implementing all of the following:
(i) Provision of recycling notification and education packets
to all new residential, commercial and institutional collection
service customers that include at a minimum the materials
collected, the schedule for collection, the way to prepare
materials for collection and the reasons persons should separate
their material for recycling. The educational and promotional
materials provided to commercial collection customers should be
targeted to meet the needs of various types of businesses and
should include reasons to recycle, including economic benefits,
common barriers to recycling and solutions, additional resources
for commercial generators of solid waste and other information
designed to assist and encourage recycling efforts. The
educational and promotional materials provided to commercial
collection customers shall encourage each commercial collection
customer to have a goal to achieve 50 percent recovery from its
solid waste stream by the year 2009.
(ii) Provision of recycling information in a variety of formats
and materials at least four times a calendar year to collection
service customers that includes at a minimum the materials
collected and the schedule for collection.
(iii) Provision at least annually to all residential,
commercial and institutional collection service customers, of the
information under sub-subparagraph (i) of this subparagraph.
(iv) Targeting of community and media events to promote
recycling.
(d) Collection of at least four principal recyclable materials
or the number of materials required to be collected under the
residential on-route collection program, whichever is less, from
each multifamily dwelling complex having five or more units. The
multifamily collection program shall include promotion and
education directed to the residents of the multifamily dwelling
units.
(e) An effective residential yard debris collection and
composting program that includes the promotion of home composting
of yard debris, and that also includes either:
(A) Monthly or more frequent on-route collection of yard debris
from residences for production of compost or other marketable
products; or
(B) A system of yard debris collection depots conveniently
located and open to the public at least once a week.
(f) A commercial recycling program that includes:
(A) Weekly, or on a more appropriate regular schedule, onsite
collection of source separated principal recyclable materials
from, at a minimum, commercial solid waste generators employing
10 or more persons and occupying 1,000 square feet or more in a
single location.
(B) An education and promotion program conducted to inform all
commercial generators of solid waste of the manner and benefits
of the commercial recycling program that provides effective
promotion of the program to the generators.
(C) In addition to the requirements of subparagraphs (A) and
(B) of this paragraph, a commercial recycling program may also
consist of other elements including but not limited to waste
assessments and recycling recognition programs. A wasteshed is
encouraged to involve local business organizations in publicly
recognizing outstanding recycling efforts by commercial
generators of solid waste. The recognition may include awards
designed to provide additional incentives to increase recycling
efforts.
(D) Each commercial generator of solid waste shall strive to
achieve 50 percent recovery from its solid waste stream by the
year 2009.
(g) Expanded depots for recycling of at least all principal
recyclable materials and provisions for promotion and education
to maximize the use of the depots. The depots shall have regular
and convenient hours and shall be open on the weekend days and,
when feasible, shall collect additional recyclable materials.
(h) Solid waste residential collection rates that encourage
waste reduction, reuse and recycling through reduced rates for
smaller containers, including at least one rate for a container
that is 21 gallons or less in size. Based on the average weight
of solid waste disposed per container for containers of different
sizes, the rate on a per pound disposed basis shall not decrease
with increasing size of containers, nor shall the rates per
container service be less with additional containers serviced.
(i) A collection and composting system for food, paper that is
not recyclable because of contamination and other compostable
waste from commercial and institutional entities that generate
large amounts of such wastes.
(3)(a) Each city with a population of at least 4,000 but not
more than 10,000 { - that is not within a metropolitan service
district - } and any county responsible for the area between the
city limits and the urban growth boundary of such city shall
implement one of the following:
(A) The program elements set forth in subsection (2)(a), (b)
and (c) of this section;
(B) A program that includes at least three elements set forth
in subsection (2) of this section; or
(C) An alternative method of achieving recovery rates that
complies with rules of the Environmental Quality Commission.
(b) Each city { - that is within a metropolitan service
district or - } that has a population of more than 10,000 and
any county responsible for the area { - within a metropolitan
service district or the area - } between the city limits and the
urban growth boundary of such city shall implement one of the
following:
(A) Program elements set forth under subsection (2)(a), (b) and
(c) of this section and one additional element set forth under
subsection (2) of this section;
(B) A program that includes at least five elements set forth
under subsection (2) of this section; or
(C) An alternative method of achieving recovery rates that
complies with rules of the Environmental Quality Commission.
(4)(a) Recovery rates shall be determined by dividing the total
weight of material recovered by the sum of the total weight of
the material recovered plus the total weight of solid waste
disposed that was generated in each wasteshed. It is the policy
of the State of Oregon that recovery of material shall be
consistent with the priority of solid waste management in ORS
459.015 (2).
(b) Each wasteshed implementing a waste prevention program
shall receive a two percent credit on the wasteshed's recovery
rate. A waste prevention program shall include:
(A) A wasteshed-wide program to provide general educational
materials to residents about waste prevention and examples of
things residents can do to prevent generation of waste; and
(B) Two of the following:
(i) Reduce the wasteshed annual per capita waste generation by
two percent each year;
(ii) Conduct a waste prevention media promotion campaign
targeted at residential generators;
(iii) Expand the education program in primary and secondary
schools to include waste prevention and reuse;
(iv) Household hazardous waste prevention education program;
(v) Local governments will conduct waste prevention assessments
of their operations, or provide waste prevention assessments for
businesses and institutions and document any waste prevention
measures implemented;
(vi) Conduct a material specific waste prevention campaign for
businesses throughout the wasteshed;
(vii) Implement a Resource Efficiency Model City program;
(viii) Conduct a material-specific waste prevention education
campaign that focuses on a toxic or energy-intensive material;
(ix) Local governments will implement programs to buy
recycled-content products for their operations, consistent with
procurement guidelines issued by the United States Environmental
Protection Agency; or
(x) Local governments will implement programs for new
construction and remodeling of local government buildings that
incorporate recycled-content materials, energy conservation
features, water conservation and stormwater management features
and other elements to increase the resource efficiency and lower
the environmental impact of these buildings.
(c) Each wasteshed implementing a reuse program shall receive a
two percent credit on the wasteshed's recovery rate. A reuse
program shall include:
(A) A promotion and education campaign on the benefits and
opportunities for reuse available to the public in the wasteshed;
and
(B) Two of the following:
(i) Operate construction and demolition debris salvage programs
with depots;
(ii) Promote reuse programs offered by local resale businesses,
thrift stores and equipment vendors, such as computer and
photocopier refurbishers, to the public and businesses;
(iii) Identify and promote local businesses that will take back
white goods for refurbishing and resale to the public;
(iv) Develop and promote use of waste exchange programs for the
public and private sectors;
(v) Site accommodation for recovery of reusable material at
transfer stations and landfills; or
(vi) Sidewalk pickup or community fair program in cities over
4,000 population in the wasteshed.
(d) Each wasteshed implementing a residential composting
program shall receive a two percent credit on the wasteshed's
recovery rate. A residential composting program shall include:
(A) Promotion of the residential composting program through
public information and demonstration sites or sites; and
(B) Two of the following:
(i) A program to encourage leaving grass clippings generated by
lawn mowing on-site rather than bagging the clippings for
disposal or composting;
(ii) A composting program for local schools;
(iii) An increase in availability of compost bins for
residents; or
(iv) Another program increasing a household's ability to manage
yard trimmings or food wastes.
(e) A wasteshed may receive, upon application to the Department
of Environmental Quality, a recovery credit greater than two
percent for a residential composting program. To receive the
recovery credit under this paragraph, the wasteshed must provide
quantitatively verifiable documentation of residential composting
tonnage to the department. The documentation must show that more
than two percent of the wasteshed's generated tonnage of solid
waste is diverted from the wastestream by residential composting.
(f)(A) If there is not a viable market for recycling a material
under paragraph (a) of this subsection, the composting or burning
of the material for energy recovery may be included in the
recovery rate for the wasteshed.
(B) If the material is burned for energy recovery and then
included in the recovery rate for Clackamas, Multnomah or
Washington Counties in aggregate or for Benton, Lane, Linn,
Marion, Polk or Yamhill County wastesheds, the same material,
when burned as part of mixed solid waste, may be included in the
recovery rate for a wasteshed that burns mixed solid waste for
energy recovery. The amount of the material within the mixed
solid waste that may be included in the recovery rate for energy
recovery shall be determined by a waste composition study
performed by the wasteshed at least every four years.
(C) Mixtures of materials that are composted or burned for
energy recovery shall not be included in the recovery rate if
more than half of the mixed materials by weight could have been
recycled if properly source separated.
(D) In its annual report to the department, the county or
metropolitan service district shall state how much composting or
energy recovery under this paragraph is included as recovery and
state the basis for the determination that there was not a viable
market for recycling the material.
(E) As used in this paragraph, 'viable market' means a place
within a wasteshed that will pay for the material or accept the
material free of charge or a place outside a wasteshed that will
pay a price for the material that, at minimum, covers the cost of
transportation of the material.
(g) Recovery rates shall not include:
(A) Industrial and manufacturing wastes such as boxboard
clippings and metal trim that are recycled before becoming part
of a product that has entered the wholesale or retail market.
(B) Metal demolition debris in which arrangements are made to
sell or give the material to processors before demolition such
that it does not enter the solid waste stream.
(C) Discarded vehicles or parts of vehicles that do not
routinely enter the solid waste stream.
(D) Material recovered for composting or energy recovery from
mixed solid waste, except as provided in paragraph (f) of this
subsection.
(h) 'Solid waste disposed' shall mean the total weight of solid
waste disposed other than the following:
(A) Sewage sludge or septic tank and cesspool pumpings;
(B) Waste disposed of at an industrial waste disposal site;
(C) Industrial waste, ash, inert rock, dirt, plaster, asphalt
and similar material if delivered to a municipal solid waste
disposal site or demolition disposal site and if a record is kept
of such deliveries and submitted as part of the annual report
submitted under ORS 459A.050;
(D) Waste received at an ash monofill from an energy recovery
facility; and
(E) Solid waste not generated within this state.
(i) The statewide recovery rate shall include the two percent
credit for reuse programs under paragraph (c) of this subsection
and the credit for residential composting under paragraphs (d)
and (e) of this subsection, beginning with the statewide recovery
rate calculated for the calendar year 2001.
(5)(a) Each local government that franchises or licenses the
collection of solid waste and establishes the rates to be charged
for collection service shall either:
(A) Include in those rates all net costs incurred by the
franchisee or licensee for providing the 'opportunity to recycle'
under ORS 459A.005 and for implementing the requirements of
subsection (3) of this section; or
(B) Fund implementation of the 'opportunity to recycle ' under
ORS 459A.005 or the requirements of subsection (3) of this
section through an alternative source of funding including but
not limited to disposal fees.
(b) As used in this subsection, 'net costs' includes but is not
limited to the reasonable costs for collecting, handling,
processing, storing, transporting and delivering recyclable
material to market and for providing any required education and
promotion or data collection services adjusted by a factor to
account for proceeds from the sale of recyclable material.
(6)(a) Clackamas, Multnomah and Washington counties, in
aggregate, shall achieve a recovery rate of 62 percent for the
calendar year 2005 and 64 percent for the calendar year 2009.
(b) The wastesheds shall achieve the following recovery rates
for the calendar year 2005:
(A) Baker County, 25 percent;
(B) Benton County, 45 percent;
(C) Clatsop County, 25 percent;
(D) Columbia County, 28 percent;
(E) Coos County, 30 percent;
(F) Crook County, 20 percent;
(G) Curry County, 30 percent;
(H) Deschutes County, 32 percent;
(I) Douglas County, 35 percent;
(J) Gilliam County, 20 percent;
(K) Grant County, 19 percent;
(L) Harney County, 30 percent;
(M) Hood River County, 25 percent;
(N) Jackson County, 40 percent;
(O) Jefferson County, 25 percent;
(P) Josephine County, 38 percent;
(Q) Klamath County, 15 percent;
(R) Lake County, 8 percent;
(S) Lane County, 45 percent;
(T) Lincoln County, 19 percent;
(U) Linn County, 40 percent;
(V) Malheur County, 21 percent;
(W) Marion County, 37 percent;
(X) City of Milton-Freewater, 22 percent;
(Y) Morrow County, 18 percent;
(Z) Polk County, 30 percent;
(AA) Sherman County, 20 percent;
(BB) Tillamook County, 30 percent;
(CC) Umatilla County, 20 percent;
(DD) Union County, 25 percent;
(EE) Wallowa County, 20 percent;
(FF) Wasco County, 35 percent;
(GG) Wheeler County, 20 percent; and
(HH) Yamhill County, 39 percent.
(c) The wastesheds shall achieve the following recovery rates
for the calendar year 2009:
(A) Baker County, 25 percent;
(B) Benton County, 50 percent;
(C) Clatsop County, 25 percent;
(D) Columbia County, 32 percent;
(E) Coos County, 30 percent;
(F) Crook County, 20 percent;
(G) Curry County, 30 percent;
(H) Deschutes County, 45 percent;
(I) Douglas County, 40 percent;
(J) Gilliam County, 20 percent;
(K) Grant County, 19 percent;
(L) Harney County, 40 percent;
(M) Hood River County, 25 percent;
(N) Jackson County, 40 percent;
(O) Jefferson County, 25 percent;
(P) Josephine County, 38 percent;
(Q) Klamath County, 20 percent;
(R) Lake County, 10 percent;
(S) Lane County, 54 percent;
(T) Lincoln County, 20 percent;
(U) Linn County, 40 percent;
(V) Malheur County, 22 percent;
(W) Marion County, 54 percent;
(X) City of Milton-Freewater, 25 percent;
(Y) Morrow County, 20 percent;
(Z) Polk County, 35 percent;
(AA) Sherman County, 20 percent;
(BB) Tillamook County, 30 percent;
(CC) Umatilla County, 20 percent;
(DD) Union County, 25 percent;
(EE) Wallowa County, 20 percent;
(FF) Wasco County, 35 percent;
(GG) Wheeler County, 20 percent; and
(HH) Yamhill County, 45 percent.
(d) Each wasteshed shall prepare an individualized plan that
identifies policies or programs specific to the wasteshed's local
conditions to achieve the required recovery goals. The plan shall
be available to the department upon the department's request by
December 31, 2001. The plan shall be updated by December 31,
2006, and updated again by December 31, 2010. Clackamas,
Multnomah and Washington Counties, in aggregate, may meet this
requirement through the programs under ORS 459.340, 459.345,
459.350 and 459A.050.
(e) If a wasteshed does not achieve its 2005 or 2009 waste
recovery goal, the wasteshed shall conduct a technical review of
existing policies or programs and determine revisions to meet the
recovery goal. The department shall, upon the request of the
wasteshed, assist in the technical review. The wasteshed may
request, and may assist the department in conducting, a technical
review to determine whether the wasteshed goal is valid.
(7) In calculating the recovery rates set forth in subsection
(6) of this section, commercial, industrial and demolition scrap
metal, vehicles, major equipment and home or industrial
appliances that are handled or processed for use in manufacturing
new products and that do not routinely enter the solid waste
stream through land disposal facilities, transfer stations,
recycling depots or on-route collection programs shall not be
counted as material recovery or recycling. The department shall
annually conduct an industry survey to determine the contribution
of post-consumer residential scrap metal, including home
appliances, to recycling and recovery levels in a manner which
prevents double counting of material recovered. Information
collected under the provisions of this section, as it relates
specifically to private sector customer lists or specific amounts
and types of materials collected or marketed, shall be maintained
as confidential by the department and exempt from disclosure
under ORS 192.410 to 192.505. The department may use and disclose
such information in aggregated form.
SECTION 34. { + ORS 195.137, 195.139, 195.141, 195.143,
197.299, 197.301, 197.302 and 221.036 are repealed. + }
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