Bill Text: OR SB549 | 2011 | Regular Session | Introduced

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Bill Title: Relating to land use planning for areas of critical state concern.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB549 Detail]

Download: Oregon-2011-SB549-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 1089

                         Senate Bill 549

Sponsored by Senator GEORGE (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 applicability of statewide land use planning goals to
areas of critical state concern designated by Legislative
Assembly.

                        A BILL FOR AN ACT
Relating to land use planning for areas of critical state
  concern; amending ORS 197.005, 197.015, 197.040, 197.175,
  197.225, 197.610, 197.615, 197.628, 197.631 and 197.646.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 197.005 is amended to read:
  197.005. The Legislative Assembly finds that:
  (1) Uncoordinated use of lands within this state threatens the
orderly development, the environment of this state and the
health, safety, order, convenience, prosperity and welfare of the
people of this state.
  (2) To promote coordinated administration of land uses
consistent with comprehensive plans adopted throughout the state,
it is necessary to establish a process for the review of state
agency, city, county and special district land conservation and
development plans for compliance with  { + statewide land use
planning + } goals { +  that apply in areas of critical state
concern designated pursuant to ORS 197.405 + }.
  (3) Except as otherwise provided in subsection (4) of this
section, cities and counties should remain as the agencies to
consider, promote and manage the local aspects of land
conservation and development for the best interests of the people
within their jurisdictions.
  (4) The promotion of coordinated statewide land conservation
and development requires the creation of a statewide planning
agency to prescribe planning goals and objectives to be applied
by state agencies, cities, counties and special districts
 { - throughout the state - }  { +  in areas of critical state
concern designated pursuant to ORS 197.405 + }.
  (5) City and county governments are responsible for the
development of local comprehensive plans. The purpose of ORS
195.065, 195.070 and 195.075 is to enhance coordination among
cities, counties and special districts to   { - assure - }
 { + ensure + } effectiveness and efficiency in the delivery of
urban services required under those local comprehensive plans.
  SECTION 2. 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 land use planning goals and
objectives, Metro regional framework plan, amendments to Metro
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  { + that are + } adopted by the commission pursuant to
ORS chapters 195, 196 and 197 { +  and that apply in areas of
critical state concern + }.
  (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.
  (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) '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) '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) '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.
  (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 3. ORS 197.040 is amended to read:
  197.040. (1) The Land Conservation and Development Commission
shall:
  (a) Direct the performance by the Director of the Department of
Land Conservation and Development and the director's staff of
their functions under ORS chapters 195, 196 and 197.
  (b) In accordance with the provisions of ORS chapter 183, adopt
rules that it considers necessary to carry out ORS chapters 195,
196 and 197. Except as provided in subsection (3) of this
section, in designing its administrative requirements, the
commission shall:
  (A) Allow for the diverse administrative and planning
capabilities of local governments;
  (B) Consider the variation in conditions and needs in different
regions of the state and encourage regional approaches to
resolving land use problems;
  (C) Assess what economic and property interests will be, or are
likely to be, affected by the proposed rule;
  (D) Assess the likely degree of economic impact on identified
property and economic interests; and
  (E) Assess whether alternative actions are available that would
achieve the underlying lawful governmental objective and would
have a lesser economic impact.
  (c)(A) Adopt by rule in accordance with ORS chapter 183 or by
goal under ORS chapters 195, 196 and 197 any statewide land use
policies that it considers necessary to carry out ORS chapters
195, 196 and 197 { +  in areas of critical state concern
designated pursuant to ORS 197.405 + }.
  (B) Adopt by rule in accordance with ORS chapter 183 any
procedures necessary to carry out ORS 215.402 (4)(b) and 227.160
(2)(b).
  (C) Review decisions of the Land Use Board of Appeals and land
use decisions of the Court of Appeals and the Supreme Court
within 120 days of the date the decisions are issued to determine
if goal or rule amendments are necessary.
  (d) Cooperate with the appropriate agencies of the United
States, this state and its political subdivisions, any other
state, any interstate agency, any person or groups of persons
with respect to land conservation and development.
  (e) Appoint advisory committees to aid it in carrying out ORS
chapters 195, 196 and 197 and provide technical and other
assistance, as it considers necessary, to each such committee.
  (2) Pursuant to ORS chapters 195, 196 and 197, the commission
shall:
  (a) Adopt, amend and revise goals consistent with regional,
county and city concerns { +  for areas of critical state concern
designated pursuant to ORS 197.405 + };
  (b) Prepare, collect, provide or cause to be prepared,
collected or provided land use inventories;
  (c) Prepare statewide planning guidelines;
  (d) Review comprehensive plans for compliance with goals;
  (e) Coordinate planning efforts of state agencies to assure
compliance with goals and compatibility with city and county
comprehensive plans;
  (f)   { - Insure - }   { + Ensure + } widespread citizen
involvement and input in all phases of the process;
  (g) Review and recommend to the Legislative Assembly the
designation of areas of critical state concern;
  (h) Report periodically to the Legislative Assembly and to the
committee;
  (i) Review the land use planning responsibilities and
authorities given to the state, regions, counties and cities,
review the resources available to each level of government and
make recommendations to the Legislative Assembly to improve the
administration of the statewide land use program; and
  (j) Perform other duties required by law.
  (3) The requirements of subsection (1)(b) of this section shall
not be interpreted as requiring an assessment for each lot or
parcel that could be affected by the proposed rule.
  SECTION 4. ORS 197.175 is amended to read:
  197.175. (1) Cities and counties shall exercise their planning
and zoning responsibilities, including, but not limited to, a
city or special district boundary change which shall mean the
annexation of unincorporated territory by a city, the
incorporation of a new city and the formation or change of
organization of or annexation to any special district authorized
by ORS 198.705 to 198.955, 199.410 to 199.534 or 451.010 to
451.620, in accordance with ORS chapters 195, 196 and 197 and the
goals approved under ORS chapters 195, 196 and 197. The Land
Conservation and Development Commission shall adopt rules
clarifying how the goals apply to the incorporation of a new city
 { +  containing territory that includes areas of critical state
concern designated pursuant to ORS 197.405 + }. Notwithstanding
the provisions of section 15, chapter 827, Oregon Laws 1983, the
rules   { - shall - } take effect upon adoption by the
commission. The applicability of rules promulgated under this
section to the incorporation of cities prior to August 9, 1983,
 { - shall be - }   { + is + } determined under the laws of this
state.
  (2) Pursuant to ORS chapters 195, 196 and 197, each city and
county in this state shall:
  (a) Prepare, adopt, amend and revise comprehensive plans in
compliance with goals approved by the commission { +  when the
plans apply to territory that includes areas of critical state
concern designated pursuant to ORS 197.405 + };
  (b) Enact land use regulations to implement their comprehensive
plans;
  (c) If its comprehensive plan and land use regulations have not
been acknowledged by the commission, make land use decisions and
limited land use decisions in compliance with the goals { +  when
the plans apply to territory that includes areas of critical
state concern designated pursuant to ORS 197.405 + };
  (d) If its comprehensive plan and land use regulations have
been acknowledged by the commission, make land use decisions and
limited land use decisions in compliance with the acknowledged
plan and land use regulations; and
  (e) Make land use decisions and limited land use decisions
subject to an unacknowledged amendment to a comprehensive plan or
land use regulation in compliance with those land use goals
applicable to the amendment.
  (3) Notwithstanding subsection (1) of this section, the
commission shall not initiate by its own action any annexation of
unincorporated territory pursuant to ORS 222.111 to 222.750 or
formation of and annexation of territory to any district
authorized by ORS 198.510 to 198.915 or 451.010 to 451.620.
  SECTION 5. ORS 197.225 is amended to read:
  197.225. The Department of Land Conservation and Development
shall prepare and the Land Conservation and Development
Commission shall adopt goals and guidelines for use by state
agencies, local governments and special districts in preparing,
adopting, amending and implementing existing and future
comprehensive plans { +  when the plans apply to territory that
includes areas of critical state concern designated pursuant to
ORS 197.405 + }.
  SECTION 6. ORS 197.610 is amended to read:
  197.610. (1)  { + If + } a proposal to amend a local government
acknowledged comprehensive plan or land use regulation or to
adopt a new land use regulation   { - shall be forwarded - }
 { + applies to territory that includes areas of critical state
concern designated pursuant to ORS 197.405, the local government
shall forward the proposal + } to the Director of the Department
of Land Conservation and Development at least 45 days before the
first evidentiary hearing on adoption. The proposal forwarded
shall contain the text and any supplemental information that the
local government believes is necessary to inform the director as
to the effect of the proposal. The notice shall include the date
set for the first evidentiary hearing. The director shall notify
persons who have requested notice that the proposal is pending.
  (2) When a local government determines that the goals do not
apply to a particular proposed amendment or new regulation,
notice under subsection (1) of this section is not required. In
addition, a local government may submit an amendment or new
regulation with less than 45 days' notice if the local government
determines that there are emergency circumstances requiring
expedited review. In both cases:
  (a) The amendment or new regulation shall be submitted after
adoption as provided in ORS 197.615 (1) and (2); and
  (b) Notwithstanding the requirements of ORS 197.830 (2), the
director or any other person may appeal the decision to the board
under ORS 197.830 to 197.845.
  (3) When the Department of Land Conservation and Development
participates in a local government proceeding, at least 15 days
before the final hearing on the proposed amendment to the
comprehensive plan or land use regulation or the new land use
regulation, the department shall notify the local government of:
  (a) Any concerns the department has concerning the proposal;
and
  (b) Advisory recommendations on actions the department
considers necessary to address the concerns, including, but not
limited to, suggested corrections to achieve compliance with the
goals.
  (4) The director shall report to the Land Conservation and
Development Commission on whether the director:
  (a) Believes the local government's proposal violates the
goals; and
  (b) Is participating in the local government proceeding.
  SECTION 7. ORS 197.615 is amended to read:
  197.615. (1) A local government that amends an acknowledged
comprehensive plan or land use regulation or adopts a new land
use regulation  { + that applies to territory that includes areas
of critical state concern designated pursuant to ORS 197.405 + }
shall mail or otherwise submit to the Director of the Department
of Land Conservation and Development a copy of the adopted text
of the comprehensive plan provision or land use regulation
together with the findings adopted by the local government. The
text and findings must be mailed or otherwise submitted not later
than five working days after the final decision by the governing
body. If the proposed amendment or new regulation that the
director received under ORS 197.610 has been substantially
amended, the local government shall specify the changes that have
been made in the notice provided to the director. If the text and
findings are mailed, they shall include a signed statement by the
person mailing them indicating the date of deposit in the mail.
  (2)(a) On the same day that the text and findings are mailed or
delivered, the local government also shall mail or otherwise
submit notice to persons who:
  (A) Participated in the proceedings leading to the adoption of
the amendment to the comprehensive plan or land use regulation or
the new land use regulation; and
  (B) Requested of the local government in writing that they be
given such notice.
  (b) The notice required by this subsection shall:
  (A) Describe briefly the action taken by the local government;
  (B) State the date of the decision;
  (C) If delivered by mail, include a certificate of mailing
containing a statement signed by the person mailing it indicating
the date the notice was deposited in the mail;
  (D) List the place where and the time when the amendment to the
acknowledged comprehensive plan or land use regulation or the new
land use regulation, and findings, may be reviewed; and
  (E) Explain the requirements for appealing the action of the
local government under ORS 197.830 to 197.845.
  (3) Not later than five working days after receipt of an
amendment to an acknowledged comprehensive plan or land use
regulation or a new land use regulation submitted under
subsection (1) of this section, the director shall notify by mail
or other submission any persons who have requested notification.
The notice shall:
  (a) Explain the requirements for appealing the action of the
local government under ORS 197.830 to 197.845; and

  (b) List the locations where the comprehensive plan or land use
regulation amendment or new land use regulation may be reviewed.
  SECTION 8. ORS 197.628 is amended to read:
  197.628. (1) It is the policy of the State of Oregon to require
the periodic review of comprehensive plans and land use
regulations in order to respond to changes in local, regional and
state conditions to ensure that the plans and regulations remain
in compliance with the statewide planning goals adopted pursuant
to ORS 197.230, and to ensure that the plans and regulations make
adequate provision for economic development, needed housing,
transportation, public facilities and services and
urbanization { +  in areas of critical state concern designated
pursuant to ORS 197.405 + }.
  (2) The Land Conservation and Development Commission shall
concentrate periodic review assistance to local governments on
achieving compliance with those statewide land use planning laws
and goals that address economic development, needed housing,
transportation, public facilities and services and
urbanization { +  in areas of critical state concern designated
pursuant to ORS 197.405 + }.
  (3) The following conditions indicate the need for periodic
review of comprehensive plans and land use regulations:
  (a) There has been a substantial change in circumstances
including but not limited to the conditions, findings or
assumptions upon which the comprehensive plan or land use
regulations were based, so that the comprehensive plan or land
use regulations do not comply with the statewide planning goals
relating to economic development, needed housing, transportation,
public facilities and services and urbanization { +  in areas of
critical state concern designated pursuant to ORS 197.405 + };
  (b) Decisions implementing acknowledged comprehensive plan and
land use regulations are inconsistent with the goals relating to
economic development, needed housing, transportation, public
facilities and services and urbanization { +  in areas of
critical state concern designated pursuant to ORS 197.405 + };
  (c) There are issues of regional or statewide significance,
intergovernmental coordination or state agency plans or programs
affecting land use which must be addressed in order to bring
comprehensive plans and land use regulations into compliance with
the goals relating to economic development, needed housing,
transportation, public facilities and services and
urbanization { +  in areas of critical state concern designated
pursuant to ORS 197.405 + }; or
  (d) The local government, commission or Department of Land
Conservation and Development determines that the existing
comprehensive plan and land use regulations are not achieving the
statewide planning goals relating to economic development, needed
housing, transportation, public facilities and services and
urbanization { +  in areas of critical state concern designated
pursuant to ORS 197.405 + }.
  SECTION 9. ORS 197.631 is amended to read:
  197.631. In order to use state and local periodic review
resources most efficiently and effectively and to concentrate
periodic review on adequate provision of economic development,
needed housing, transportation, public facilities and services
and urbanization { +  in areas of critical state concern
designated pursuant to ORS 197.405 + }, the Land Conservation and
Development Commission shall adopt, amend or repeal the statewide
land use planning goals, guidelines and corresponding rules as
necessary to facilitate periodic review and to provide for
compliance by local governments with those goals not described in
ORS 197.628 (2) through the post-acknowledgment procedures of ORS
197.610 to 197.625.
  SECTION 10. ORS 197.646 is amended to read:
  197.646. (1) A local government shall amend its acknowledged
comprehensive plan, regional framework plan and land use
regulations implementing either plan by a self-initiated
post-acknowledgment process under ORS 197.610 to 197.625 to
comply with:
  (a) A new statutory requirement; or
  (b) A new land use planning goal or rule requirement adopted by
the Land Conservation and Development Commission.
  (2) Periodic review is not the implementation process for new
statutory, land use planning goal or rule requirements.
  (3)(a) The Department of Land Conservation and Development
shall notify local governments when a new statutory requirement
or a new land use planning goal or rule requirement adopted by
the commission requires changes to an acknowledged comprehensive
plan, a regional framework plan and land use regulations
implementing either plan.
  (b) The commission shall establish, by rule, the time period
within which an acknowledged comprehensive plan, a regional
framework plan and land use regulations implementing either plan
must be in compliance with:
  (A) A new statutory requirement, if the legislation does not
specify a time period for compliance; and
  (B) A new land use planning goal or rule requirement adopted by
the commission.
  (4) When a local government does not adopt amendments to a
comprehensive plan, a regional framework plan and land use
regulations implementing either plan as required by subsection
(1) of this section, the new statutory, land use planning goal or
rule requirements apply directly to the local government's land
use decisions { +  that apply to areas of critical state concern
designated pursuant to ORS 197.405 + }. The failure to adopt
amendments to a comprehensive plan, a regional framework plan and
land use regulations implementing either plan required by
subsection (1) of this section is a basis for initiation of
enforcement action pursuant to ORS 197.319 to 197.335.
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