Bill Text: OR SB452 | 2011 | Regular Session | Introduced

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Bill Title: Relating to fees for appeal of local land use decisions.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB452 Detail]

Download: Oregon-2011-SB452-Introduced.html

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     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 1855

                         Senate Bill 452

Sponsored by Senator PROZANSKI (at the request of Central Oregon
  LandWatch) (Presession filed.)

                             SUMMARY

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

  Limits amount of appeal fee that city or county may charge for
quasi-judicial review of city or county decisions on land use
application. Requires city or county to refund appeals fee and
transcript fee when appellate authority of city or county
declines to hear review.
  Prohibits city or county from charging fee for appeal of final
decision of county to Land Use Board of Appeals.

                        A BILL FOR AN ACT
Relating to fees for appeal of local land use decisions; creating
  new provisions; and amending ORS 197.835, 215.422 and 227.180.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 215.422 is amended to read:
  215.422.   { - (1)(a) A party aggrieved by the action of a
hearings officer or other decision-making authority may appeal
the action to the planning commission or county governing body,
or both, however the governing body prescribes. The appellate
authority on its own motion may review the action. The procedure
and type of hearing for such an appeal or review shall be
prescribed by the governing body, but shall not require the
notice of appeal to be filed within less than seven days after
the date the governing body mails or delivers the decision to the
parties. - }
    { - (b) Notwithstanding paragraph (a) of this subsection, the
governing body may provide that the decision of a hearings
officer or other decision-making authority is the final
determination of the county. - }
    { - (c) The governing body may prescribe, by ordinance or
regulation, fees to defray the costs incurred in acting upon an
appeal from a hearings officer, planning commission or other
designated person. The amount of the fee shall be reasonable and
shall be no more than the average cost of such appeals or the
actual cost of the appeal, excluding the cost of preparation of a
written transcript. The governing body may establish a fee for
the preparation of a written transcript. The fee shall be
reasonable and shall not exceed the actual cost of preparing the
transcript up to $500. In lieu of a transcript prepared by the
governing body and the fee therefor, the governing body shall
allow any party to an appeal proceeding held on the record to
prepare a transcript of relevant portions of the proceedings
conducted at a lower level at the party's own expense. If an
appellant prevails at a hearing or on appeal, the transcript fee
shall be refunded. - }
    { - (2) A party aggrieved by the final determination may have
the determination reviewed in the manner provided in ORS 197.830
to 197.845. - }
   { +  (1) The governing body of a county, by ordinance or
resolution, may:
  (a) Provide that the decision of a hearings officer or other
decision-making authority of the county is the final
determination of the county; or
  (b) Choose to act, or designate another entity to act, as an
appellate authority to review the decision of a hearings officer
or other decision-making authority.
  (2) If the governing body of the county establishes an
appellate authority pursuant to subsection (1)(b) of this
section, the governing body of the county, by ordinance or
resolution, shall prescribe the procedure and type of hearing to
provide for review of a decision of a hearings officer or other
decision-making authority, but the governing body may not require
that a notice of appeal be filed less than seven days after the
date the county mails or delivers the decision to the parties.
  (3) If the governing body of the county establishes an
appellate authority pursuant to subsection (1)(b) of this
section:
  (a) A party aggrieved by the action of a hearings officer or
other decision-making authority may appeal the decision to the
appellate authority; or
  (b) The appellate authority may review the decision on its own
motion.
  (4) To defray the costs incurred in acting upon an appeal from
a hearings officer or other decision-making authority, the
governing body of the county, by ordinance or regulation, may
prescribe:
  (a) A reasonable fee that does not exceed 10 percent of the
original application fee or $1,000, whichever is less, and that
excludes the cost to prepare a written transcript of the
proceedings to be reviewed.
  (b) A reasonable fee for the preparation of a written
transcript of the proceedings to be reviewed that does not exceed
the actual cost of preparing the transcript or $500, whichever is
less.
  (5) If an appellate authority of a county declines to review
the decision of a hearings officer or other decision-making
authority, the county shall refund the full amount of appeal and
transcript fees collected by the county.
  (6) In lieu of having the county prepare a transcript, a party
to an appeal proceeding held on the record may elect to prepare a
transcript of relevant portions of the proceedings conducted at a
lower level at the party's own expense. The county still may
charge the transcript fee, but the county shall refund the
transcript fee if the party prevails on appeal. + }
    { - (3) - }  { +  (7) + }   { - No - }   { + A + } decision
or action of a planning commission or  { + the governing body of
the + } county   { - governing body shall be - }   { + is not + }
invalid due to ex parte contact or bias resulting from ex parte
contact with a member of the decision-making body, if the member
of the decision-making body receiving the contact:
  (a) Places on the record the substance of any written or oral
ex parte communications concerning the decision or action; and
  (b) Has a public announcement of the content of the
communication and of the parties' right to rebut the substance of
the communication made at the first hearing following the
communication   { - where - }   { + at which + } action will be
considered or taken on the subject to which the communication
related.
    { - (4) - }   { + (8) + } A communication between county
staff and the planning commission or governing body   { - shall
not be considered - }   { + is not + } an ex parte contact for
the purposes of subsection   { - (3) - }   { + (7) + } of this
section.
    { - (5) - }   { + (9) + } Subsection   { - (3) - }
 { + (7) + } of this section does not apply to ex parte contact
with a hearings officer approved under ORS 215.406 (1).
   { +  (10) A party aggrieved by the final decision of a county
may have the final decision reviewed by the Land Use Board of
Appeals in the manner provided in ORS 197.830 to 197.845.
  (11) A county may not charge a fee for appeal of a final
decision of the county to the board. + }
  SECTION 2. ORS 227.180 is amended to read:
  227.180.   { - (1)(a) A party aggrieved by the action of a
hearings officer may appeal the action to the planning commission
or council of the city, or both, however the council prescribes.
The appellate authority on its own motion may review the action.
The procedure for such an appeal or review shall be prescribed by
the council, but shall: - }
    { - (A) Not require that the appeal be filed within less than
seven days after the date the governing body mails or delivers
the decision of the hearings officer to the parties; - }
    { - (B) Require a hearing at least for argument; and - }
    { - (C) Require that upon appeal or review the appellate
authority consider the record of the hearings officer's action.
That record need not set forth evidence verbatim. - }
    { - (b) Notwithstanding paragraph (a) of this subsection, the
council may provide that the decision of a hearings officer or
other decision-making authority in a proceeding for a
discretionary permit or zone change is the final determination of
the city. - }
    { - (c) The governing body may prescribe, by ordinance or
regulation, fees to defray the costs incurred in acting upon an
appeal from a hearings officer, planning commission or other
designated person. The amount of the fee shall be reasonable and
shall be no more than the average cost of such appeals or the
actual cost of the appeal, excluding the cost of preparation of a
written transcript. The governing body may establish a fee for
the preparation of a written transcript. The fee shall be
reasonable and shall not exceed the actual cost of preparing the
transcript up to $500. In lieu of a transcript prepared by the
governing body and the fee therefor, the governing body shall
allow any party to an appeal proceeding held on the record to
prepare a transcript of relevant portions of the proceedings
conducted at a lower level at the party's own expense. If an
appellant prevails at a hearing or on appeal, the transcript fee
shall be refunded. - }
    { - (2) A party aggrieved by the final determination in a
proceeding for a discretionary permit or zone change may have the
determination reviewed under ORS 197.830 to 197.845. - }
   { +  (1) The governing body of a city, by ordinance or
resolution, may:
  (a) Provide that the decision of a hearings officer or other
decision-making authority of the city is the final determination
of the city; or
  (b) Choose to act, or designate another entity to act, as an
appellate authority to review the decision of a hearings officer
or other decision-making authority.
  (2) If the governing body of the city establishes an appellate
authority pursuant to subsection (1)(b) of this section, the
governing body of the city, by ordinance or resolution, shall
prescribe the procedure and type of hearing to provide for review
of a decision of a hearings officer or other decision-making
authority, but the governing body may not require that a notice

of appeal be filed less than seven days after the date the city
mails or delivers the decision to the parties.
  (3) If the governing body of the city establishes an appellate
authority pursuant to subsection (1)(b) of this section:
  (a) A party aggrieved by the action of a hearings officer or
other decision-making authority may appeal the decision to the
appellate authority; or
  (b) The appellate authority may review the decision on its own
motion.
  (4) To defray the costs incurred in acting upon an appeal from
a hearings officer or other decision-making authority, the
governing body of the city, by ordinance or regulation, may
prescribe:
  (a) A reasonable fee that does not exceed 10 percent of the
original application fee or $1,000, whichever is less, and that
excludes the cost to prepare a written transcript of the
proceedings to be reviewed.
  (b) A reasonable fee for the preparation of a written
transcript of the proceedings to be reviewed that does not exceed
the actual cost of preparing the transcript or $500, whichever is
less.
  (5) If an appellate authority of a city declines to review the
decision of a hearings officer or other decision-making
authority, the city shall refund the full amount of appeal and
transcript fees collected by the city.
  (6) In lieu of having the city prepare a transcript, a party to
an appeal proceeding held on the record may elect to prepare a
transcript of relevant portions of the proceedings conducted at a
lower level at the party's own expense. The city still may charge
the transcript fee, but the city shall refund the transcript fee
if the party prevails on appeal. + }
    { - (3) - }   { + (7) + }   { - No - }   { + A  + }decision
or action of a planning commission or city governing body
 { - shall be - }   { + is not + } invalid due to ex parte
contact or bias resulting from ex parte contact with a member of
the decision-making body, if the member of the decision-making
body receiving the contact:
  (a) Places on the record the substance of any written or oral
ex parte communications concerning the decision or action; and
  (b) Has a public announcement of the content of the
communication and of the parties' right to rebut the substance of
the communication made at the first hearing following the
communication where action will be considered or taken on the
subject to which the communication related.
    { - (4) - }   { + (8) + } A communication between city staff
and the planning commission or governing body   { - shall not be
considered - }   { + is not + } an ex parte contact for the
purposes of subsection   { - (3) - }   { + (7) + } of this
section.
    { - (5) - }   { + (9) + } Subsection   { - (3) - }
 { + (7) + } of this section does not apply to ex parte contact
with a hearings officer.
   { +  (10) A party aggrieved by the final decision of a city
may have the final decision reviewed by the Land Use Board of
Appeals in the manner provided in ORS 197.830 to 197.845.
  (11) A city may not charge a fee for appeal of a final decision
of the city to the board. + }
  SECTION 3. ORS 197.835 is amended to read:
  197.835. (1) The Land Use Board of Appeals shall review the
land use decision or limited land use decision and prepare a
final order affirming, reversing or remanding the land use
decision or limited land use decision. The board shall adopt
rules defining the circumstances in which it will reverse rather
than remand a land use decision or limited land use decision that
is not affirmed.

  (2)(a) Review of a decision under ORS 197.830 to 197.845 shall
be confined to the record.
  (b) In the case of disputed allegations of standing,
unconstitutionality of the decision, ex parte contacts, actions
described in subsection (10)(a)(B) of this section or other
procedural irregularities not shown in the record that, if
proved, would warrant reversal or remand, the board may take
evidence and make findings of fact on those allegations. The
board shall be bound by any finding of fact of the local
government, special district or state agency for which there is
substantial evidence in the whole record.
  (3) Issues shall be limited to those raised by any participant
before the local hearings body as provided by ORS 197.195 or
197.763, whichever is applicable.
  (4) A petitioner may raise new issues to the board if:
  (a) The local government failed to list the applicable criteria
for a decision under ORS 197.195 (3)(c) or 197.763 (3)(b), in
which case a petitioner may raise new issues based upon
applicable criteria that were omitted from the notice. However,
the board may refuse to allow new issues to be raised if it finds
that the issue could have been raised before the local
government; or
  (b) The local government made a land use decision or limited
land use decision which is different from the proposal described
in the notice to such a degree that the notice of the proposed
action did not reasonably describe the local government's final
action.
  (5) The board shall reverse or remand a land use decision not
subject to an acknowledged comprehensive plan and land use
regulations if the decision does not comply with the goals. The
board shall reverse or remand a land use decision or limited land
use decision subject to an acknowledged comprehensive plan or
land use regulation if the decision does not comply with the
goals and the Land Conservation and Development Commission has
issued an order under ORS 197.320 or adopted a new or amended
goal under ORS 197.245 requiring the local government to apply
the goals to the type of decision being challenged.
  (6) The board shall reverse or remand an amendment to a
comprehensive plan if the amendment is not in compliance with the
goals.
  (7) The board shall reverse or remand an amendment to a land
use regulation or the adoption of a new land use regulation if:
  (a) The regulation is not in compliance with the comprehensive
plan; or
  (b) The comprehensive plan does not contain specific policies
or other provisions which provide the basis for the regulation,
and the regulation is not in compliance with the statewide
planning goals.
  (8) The board shall reverse or remand a decision involving the
application of a plan or land use regulation provision if the
decision is not in compliance with applicable provisions of the
comprehensive plan or land use regulations.
  (9) In addition to the review under subsections (1) to (8) of
this section, the board shall reverse or remand the land use
decision under review if the board finds:
  (a) The local government or special district:
  (A) Exceeded its jurisdiction;
  (B) Failed to follow the procedures applicable to the matter
before it in a manner that prejudiced the substantial rights of
the petitioner;
  (C) Made a decision not supported by substantial evidence in
the whole record;
  (D) Improperly construed the applicable law; or
  (E) Made an unconstitutional decision; or
  (b) The state agency made a decision that violated the goals.

  (10)(a) The board shall reverse a local government decision and
order the local government to grant approval of an application
for development denied by the local government if the board
finds:
  (A) Based on the evidence in the record, that the local
government decision is outside the range of discretion allowed
the local government under its comprehensive plan and
implementing ordinances; or
  (B) That the local government's action was for the purpose of
avoiding the requirements of ORS 215.427 or 227.178.
  (b) If the board does reverse the decision and orders the local
government to grant approval of the application, the board shall
award attorney fees to the applicant and against the local
government.
  (11)(a) Whenever the findings, order and record are sufficient
to allow review, and to the extent possible consistent with the
time requirements of ORS 197.830 (14), the board shall decide all
issues presented to it when reversing or remanding a land use
decision described in subsections (2) to (9) of this section or
limited land use decision described in ORS 197.828 and 197.195.
  (b) Whenever the findings are defective because of failure to
recite adequate facts or legal conclusions or failure to
adequately identify the standards or their relation to the facts,
but the parties identify relevant evidence in the record which
clearly supports the decision or a part of the decision, the
board shall affirm the decision or the part of the decision
supported by the record and remand the remainder to the local
government, with direction indicating appropriate remedial
action.
  (12) The board may reverse or remand a land use decision under
review due to ex parte contacts or bias resulting from ex parte
contacts with a member of the decision-making body, only if the
member of the decision-making body did not comply with ORS
215.422   { - (3) - }   { + (7) + } or 227.180   { - (3) - }
 { +   + }  { +  (7) + }, whichever is applicable.
  (13) Subsection (12) of this section does not apply to reverse
or remand of a land use decision due to ex parte contact or bias
resulting from ex parte contact with a hearings officer.
  (14) The board shall reverse or remand a land use decision or
limited land use decision which violates a commission order
issued under ORS 197.328.
  (15) In cases in which a local government provides a
quasi-judicial land use hearing on a limited land use decision,
the requirements of subsections (12) and (13) of this section
apply.
  (16) The board may decide cases before it by means of
memorandum decisions and shall prepare full opinions only in such
cases as it deems proper.
  SECTION 4.  { + The amendments to ORS 197.835, 215.422 and
227.180 by sections 1 to 3 of this 2011 Act apply to
quasi-judicial review by a city or county of the decisions made
by a hearings officer or other decision-making authority at the
city or county level on and after the effective date of this 2011
Act. + }
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