Bill Text: OR SB676 | 2013 | Regular Session | Introduced
Bill Title: Relating to conduct of quasi-judicial, local land use hearings.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB676 Detail]
Download: Oregon-2013-SB676-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3608
Senate Bill 676
Sponsored by Senator KRUSE
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.
Requires governing body of local government to make final land
use decision of local government when resolution of issues
requires interpretation of provision of comprehensive plan, or
land use regulation implementing plan, that governing body has
not interpreted previously.
A BILL FOR AN ACT
Relating to conduct of quasi-judicial, local land use hearings;
creating new provisions; and amending ORS 195.314, 197.763,
197.796, 197.835, 215.416, 227.175, 469.370 and 469.373.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 197.763 is amended to read:
197.763. { + (1) + } The following procedures shall govern the
conduct of quasi-judicial land use hearings conducted before a
local governing body, planning commission, hearings body or
hearings officer on application for a land use decision and shall
be incorporated into the comprehensive plan and land use
regulations:
{ - (1) - } { + (a) + } An issue which may be the basis for
an appeal to the Land Use Board of Appeals shall be raised not
later than the close of the record at or following the final
evidentiary hearing on the proposal before the local government.
Such issues shall be raised and accompanied by statements or
evidence sufficient to afford the governing body, planning
commission, hearings body or hearings officer, and the parties an
adequate opportunity to respond to each issue.
{ - (2)(a) - } { + (b)(A) + } Notice of the hearings
governed by this section shall be provided to the applicant and
to owners of record of property on the most recent property tax
assessment roll where such property is located:
{ - (A) - } { + (i) + } Within 100 feet of the property
which is the subject of the notice where the subject property is
wholly or in part within an urban growth boundary;
{ - (B) - } { + (ii) + } Within 250 feet of the property
which is the subject of the notice where the subject property is
outside an urban growth boundary and not within a farm or forest
zone; or
{ - (C) - } { + (iii) + } Within 500 feet of the property
which is the subject of the notice where the subject property is
within a farm or forest zone.
{ - (b) - } { + (B) + } Notice shall also be provided to
any neighborhood or community organization recognized by the
governing body and whose boundaries include the site.
{ - (c) - } { + (C) + } At the discretion of the applicant,
the local government also shall provide notice to the Department
of Land Conservation and Development.
{ - (3) - } { + (c) + } The notice provided by the
jurisdiction shall:
{ - (a) - } { + (A) + } Explain the nature of the
application and the proposed use or uses which could be
authorized;
{ - (b) - } { + (B) + } List the applicable criteria from
the ordinance and the plan that apply to the application at
issue;
{ - (c) - } { + (C) + } Set forth the street address or
other easily understood geographical reference to the subject
property;
{ - (d) - } { + (D) + } State the date, time and location
of the hearing;
{ - (e) - } { + (E) + } State that failure of an issue to
be raised in a hearing, in person or by letter, or failure to
provide statements or evidence sufficient to afford the decision
maker an opportunity to respond to the issue precludes appeal to
the board based on that issue;
{ - (f) - } { + (F) + } Be mailed at least:
{ - (A) - } { + (i) + } Twenty days before the evidentiary
hearing; or
{ - (B) - } { + (ii) + } If two or more evidentiary
hearings are allowed, 10 days before the first evidentiary
hearing;
{ - (g) - } { + (G) + } Include the name of a local
government representative to contact and the telephone number
where additional information may be obtained;
{ - (h) - } { + (H) + } State that a copy of the
application, all documents and evidence submitted by or on behalf
of the applicant and applicable criteria are available for
inspection at no cost and will be provided at reasonable cost;
{ - (i) - } { + (I) + } State that a copy of the staff
report will be available for inspection at no cost at least seven
days prior to the hearing and will be provided at reasonable
cost; and
{ - (j) - } { + (J) + } Include a general explanation of
the requirements for submission of testimony and the procedure
for conduct of hearings.
{ - (4)(a) - } { + (d)(A) + } All documents or evidence
relied upon by the applicant shall be submitted to the local
government and be made available to the public.
{ - (b) - } { + (B) + } Any staff report used at the
hearing shall be available at least seven days prior to the
hearing. If additional documents or evidence are provided by any
party, the local government may allow a continuance or leave the
record open to allow the parties a reasonable opportunity to
respond. Any continuance or extension of the record requested by
an applicant shall result in a corresponding extension of the
time limitations of ORS 215.427 or 227.178 and ORS 215.429 or
227.179.
{ - (5) - } { + (e) + } At the commencement of a hearing
under a comprehensive plan or land use regulation, a statement
shall be made to those in attendance that:
{ - (a) - } { + (A) + } Lists the applicable substantive
criteria;
{ - (b) - } { + (B) + } States that testimony, arguments
and evidence must be directed toward the criteria described in
{ - paragraph (a) of this subsection - } { + subparagraph (A)
of this paragraph + } or other criteria in the plan or land use
regulation which the person believes to apply to the decision;
and
{ - (c) - } { + (C) + } States that failure to raise an
issue accompanied by statements or evidence sufficient to afford
the decision maker and the parties an opportunity to respond to
the issue precludes appeal to the board based on that issue.
{ - (6)(a) - } { + (f)(A) + } Prior to the conclusion of
the initial evidentiary hearing, any participant may request an
opportunity to present additional evidence, arguments or
testimony regarding the application. The local hearings authority
shall grant such request by continuing the public hearing
pursuant to { - paragraph (b) of this subsection - }
{ + subparagraph (B) of this paragraph + } or leaving the record
open for additional written evidence, arguments or testimony
pursuant to { - paragraph (c) of this subsection - } { +
subparagraph (C) of this paragraph + }.
{ - (b) - } { + (B) + } If the hearings authority grants a
continuance, the hearing shall be continued to a date, time and
place certain at least seven days from the date of the initial
evidentiary hearing. An opportunity shall be provided at the
continued hearing for persons to present and rebut new evidence,
arguments or testimony. If new written evidence is submitted at
the continued hearing, any person may request, prior to the
conclusion of the continued hearing, that the record be left open
for at least seven days to submit additional written evidence,
arguments or testimony for the purpose of responding to the new
written evidence.
{ - (c) - } { + (C) + } If the hearings authority leaves
the record open for additional written evidence, arguments or
testimony, the record shall be left open for at least seven days.
Any participant may file a written request with the local
government for an opportunity to respond to new evidence
submitted during the period the record was left open. If such a
request is filed, the hearings authority shall reopen the record
pursuant to { - subsection (7) of this section - } { +
paragraph (g) of this subsection + }.
{ - (d) - } { + (D) + } A continuance or extension granted
pursuant to this section shall be subject to the limitations of
ORS 215.427 or 227.178 and ORS 215.429 or 227.179, unless the
continuance or extension is requested or agreed to by the
applicant.
{ - (e) - } { + (E) + } Unless waived by the applicant, the
local government shall allow the applicant at least seven days
after the record is closed to all other parties to submit final
written arguments in support of the application. The applicant's
final submittal shall be considered part of the record, but shall
not include any new evidence. This seven-day period shall not be
subject to the limitations of ORS 215.427 or 227.178 and ORS
215.429 or 227.179.
{ - (7) - } { + (g) + } When a local governing body,
planning commission, hearings body or hearings officer reopens a
record to admit new evidence, arguments or testimony, any person
may raise new issues which relate to the new evidence, arguments,
testimony or criteria for decision-making which apply to the
matter at issue.
{ - (8) - } { + (h) + } The failure of the property owner
to receive notice as provided in this section shall not
invalidate such proceedings if the local government can
demonstrate by affidavit that such notice was given. The notice
provisions of this section shall not restrict the giving of
notice by other means, including posting, newspaper publication,
radio and television.
{ + (2) When resolution of issues presented in a
quasi-judicial hearing requires the interpretation of a provision
of a comprehensive plan, or a land use regulation implementing
the plan, and the governing body has not interpreted the
provision previously, the governing body shall make the final
land use decision of the local government. + }
{ - (9) - } { + (3) + } For purposes of this section:
(a) 'Argument' means assertions and analysis regarding the
satisfaction or violation of legal standards or policy believed
relevant by the proponent to a decision. 'Argument' does not
include facts.
(b) 'Evidence' means facts, documents, data or other
information offered to demonstrate compliance or noncompliance
with the standards believed by the proponent to be relevant to
the decision.
SECTION 2. ORS 195.314 is amended to read:
195.314. (1) A public entity that receives a complete claim as
described in ORS 195.312 shall provide notice of the claim at
least 30 days before a public hearing on the claim or, if there
will not be a public hearing, at least 30 days before the
deadline for submission of written comments, to:
(a) All owners identified in the claim;
(b) All persons described in ORS 197.763 { - (2) - } { +
(1)(b) + };
(c) The Department of Land Conservation and Development, unless
the claim was filed with the department;
(d) Metro, if the property is located within the urban growth
boundary of Metro;
(e) The county in which the property is located, unless the
claim was filed with the county; and
(f) The city, if the property is located within the urban
growth boundary or adopted urban planning area of the city.
(2) The notice required under subsection (1) of this section
must describe the claim and state:
(a) Whether a public hearing will be held on the claim, the
date, time and location of the hearing, if any, and the final
date for submission of written evidence and arguments relating to
the claim;
(b) That judicial review of the final determination of a public
entity on the claim is limited to the written evidence and
arguments submitted to the public entity; and
(c) That judicial review is available only for issues that are
raised with sufficient specificity to afford the public entity an
opportunity to respond.
(3) Except as provided in subsection (4) of this section,
written evidence and arguments in proceedings on the claim must
be submitted to the public entity not later than:
(a) The close of the final public hearing on the claim; or
(b) If a public hearing is not held, the date that is specified
by the public entity in the notice required under subsection (1)
of this section.
(4) The claimant may request additional time to submit written
evidence and arguments in response to testimony or submittals.
The request must be made before the close of testimony or the
deadline for submission of written evidence and arguments.
(5) A public entity shall make the record on review of a claim,
including any staff reports, available to the public before the
close of the record as described in subsections (3) and (4) of
this section.
(6) A public entity shall mail a copy of the final
determination to the claimant and to any person who submitted
written evidence or arguments before the close of the record. The
public entity shall forward to the county, and the county shall
record, a memorandum of the final determination in the deed
records of the county in which the property is located.
SECTION 3. ORS 197.796 is amended to read:
197.796. (1) An applicant for a land use decision, limited land
use decision or expedited land division or for a permit under ORS
215.427 or 227.178 may accept a condition of approval imposed
under ORS 215.416 or 227.175 and file a challenge to the
condition under this section. Acceptance by an applicant for a
land use decision, limited land use decision, expedited land
division or permit under ORS 215.427 or 227.178 of a condition of
approval imposed under ORS 215.416 or 227.175 does not constitute
a waiver of the right to challenge the condition of approval.
Acceptance of a condition may include but is not limited to
paying a fee, performing an act or providing satisfactory
evidence of arrangements to pay the fee or to ensure compliance
with the condition.
(2) Any action for damages under this section shall be filed in
the circuit court of the county in which the application was
submitted within 180 days of the date of the decision.
(3)(a) A challenge filed pursuant to this section may not be
dismissed on the basis that the applicant did not request a
variance to the condition of approval or any other available form
of reconsideration of the challenged condition. However, an
applicant shall comply with ORS 197.763 { - (1) - } { +
(1)(a) + } prior to appealing to the Land Use Board of Appeals or
bringing an action for damages in circuit court and must exhaust
all local appeals provided in the local comprehensive plan and
land use regulations before proceeding under this section.
(b) In addition to the requirements of ORS 197.763
{ - (5) - } { + (1)(e) + }, at the commencement of the initial
public hearing, a statement shall be made to the applicant that
the failure of the applicant to raise constitutional or other
issues relating to proposed conditions of approval with
sufficient specificity to allow the local government or its
designee to respond to the issue precludes an action for damages
in circuit court.
(c) An applicant is not required to raise an issue under this
subsection unless the condition of approval is stated with
sufficient specificity to enable the applicant to respond to the
condition prior to the close of the final local hearing.
(4) In any challenge to a condition of approval that is subject
to the Takings Clause of the Fifth Amendment to the United States
Constitution, the local government shall have the burden of
demonstrating compliance with the constitutional requirements for
imposing the condition.
(5) In a proceeding in circuit court under this section, the
court shall award costs and reasonable attorney fees to a
prevailing party. Notwithstanding ORS 197.830 (15), in a
proceeding before the Land Use Board of Appeals under this
section, the board shall award costs and reasonable attorney fees
to a prevailing party.
(6) This section applies to appeals by the applicant of a
condition of approval and claims filed in state court seeking
damages for the unlawful imposition of conditions of approval in
a land use decision, limited land use decision, expedited land
division or permit under ORS 215.427 or 227.178.
SECTION 4. 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) - } { + (1)(c)(B) + }, in which case a petitioner
may raise new issues based upon applicable criteria that were
omitted from the notice. However, the board may refuse to allow
new issues to be raised if it finds that the issue could have
been raised before the local government; or
(b) The local government made a land use decision or limited
land use decision which is different from the proposal described
in the notice to such a degree that the notice of the proposed
action did not reasonably describe the local government's final
action.
(5) The board shall reverse or remand a land use decision not
subject to an acknowledged comprehensive plan and land use
regulations if the decision does not comply with the goals. The
board shall reverse or remand a land use decision or limited land
use decision subject to an acknowledged comprehensive plan or
land use regulation if the decision does not comply with the
goals and the Land Conservation and Development Commission has
issued an order under ORS 197.320 or adopted a new or amended
goal under ORS 197.245 requiring the local government to apply
the goals to the type of decision being challenged.
(6) The board shall reverse or remand an amendment to a
comprehensive plan if the amendment is not in compliance with the
goals.
(7) The board shall reverse or remand an amendment to a land
use regulation or the adoption of a new land use regulation if:
(a) The regulation is not in compliance with the comprehensive
plan; or
(b) The comprehensive plan does not contain specific policies
or other provisions which provide the basis for the regulation,
and the regulation is not in compliance with the statewide
planning goals.
(8) The board shall reverse or remand a decision involving the
application of a plan or land use regulation provision if the
decision is not in compliance with applicable provisions of the
comprehensive plan or land use regulations.
(9) In addition to the review under subsections (1) to (8) of
this section, the board shall reverse or remand the land use
decision under review if the board finds:
(a) The local government or special district:
(A) Exceeded its jurisdiction;
(B) Failed to follow the procedures applicable to the matter
before it in a manner that prejudiced the substantial rights of
the petitioner;
(C) Made a decision not supported by substantial evidence in
the whole record;
(D) Improperly construed the applicable law; or
(E) Made an unconstitutional decision; or
(b) The state agency made a decision that violated the goals.
(10)(a) The board shall reverse a local government decision and
order the local government to grant approval of an application
for development denied by the local government if the board
finds:
(A) Based on the evidence in the record, that the local
government decision is outside the range of discretion allowed
the local government under its comprehensive plan and
implementing ordinances; or
(B) That the local government's action was for the purpose of
avoiding the requirements of ORS 215.427 or 227.178.
(b) If the board does reverse the decision and orders the local
government to grant approval of the application, the board shall
award attorney fees to the applicant and against the local
government.
(11)(a) Whenever the findings, order and record are sufficient
to allow review, and to the extent possible consistent with the
time requirements of ORS 197.830 (14), the board shall decide all
issues presented to it when reversing or remanding a land use
decision described in subsections (2) to (9) of this section or
limited land use decision described in ORS 197.828 and 197.195.
(b) Whenever the findings are defective because of failure to
recite adequate facts or legal conclusions or failure to
adequately identify the standards or their relation to the facts,
but the parties identify relevant evidence in the record which
clearly supports the decision or a part of the decision, the
board shall affirm the decision or the part of the decision
supported by the record and remand the remainder to the local
government, with direction indicating appropriate remedial
action.
(12) The board may reverse or remand a land use decision under
review due to ex parte contacts or bias resulting from ex parte
contacts with a member of the decision-making body, only if the
member of the decision-making body did not comply with ORS
215.422 (3) or 227.180 (3), whichever is applicable.
(13) Subsection (12) of this section does not apply to reverse
or remand of a land use decision due to ex parte contact or bias
resulting from ex parte contact with a hearings officer.
(14) The board shall reverse or remand a land use decision or
limited land use decision which violates a commission order
issued under ORS 197.328.
(15) In cases in which a local government provides a
quasi-judicial land use hearing on a limited land use decision,
the requirements of subsections (12) and (13) of this section
apply.
(16) The board may decide cases before it by means of
memorandum decisions and shall prepare full opinions only in such
cases as it deems proper.
SECTION 5. ORS 215.416 is amended to read:
215.416. (1) When required or authorized by the ordinances,
rules and regulations of a county, an owner of land may apply in
writing to such persons as the governing body designates, for a
permit, in the manner prescribed by the governing body. The
governing body shall establish fees charged for processing
permits at an amount no more than the actual or average cost of
providing that service.
(2) The governing body shall establish a consolidated procedure
by which an applicant may apply at one time for all permits or
zone changes needed for a development project. The consolidated
procedure shall be subject to the time limitations set out in ORS
215.427. The consolidated procedure shall be available for use at
the option of the applicant no later than the time of the first
periodic review of the comprehensive plan and land use
regulations.
(3) Except as provided in subsection (11) of this section, the
hearings officer shall hold at least one public hearing on the
application.
(4) The application shall not be approved if the proposed use
of land is found to be in conflict with the comprehensive plan of
the county and other applicable land use regulation or ordinance
provisions. The approval may include such conditions as are
authorized by statute or county legislation.
(5) Hearings under this section shall be held only after notice
to the applicant and also notice to other persons as otherwise
provided by law and shall otherwise be conducted in conformance
with the provisions of ORS 197.763.
(6) Notice of a public hearing on an application submitted
under this section shall be provided to the owner of an airport
defined by the Oregon Department of Aviation as a 'public use
airport' if:
(a) The name and address of the airport owner has been provided
by the Oregon Department of Aviation to the county planning
authority; and
(b) The property subject to the land use hearing is:
(A) Within 5,000 feet of the side or end of a runway of an
airport determined by the Oregon Department of Aviation to be a '
visual airport'; or
(B) Within 10,000 feet of the side or end of the runway of an
airport determined by the Oregon Department of Aviation to be an
' instrument airport. '
(7) Notwithstanding the provisions of subsection (6) of this
section, notice of a land use hearing need not be provided as set
forth in subsection (6) of this section if the zoning permit
would only allow a structure less than 35 feet in height and the
property is located outside the runway 'approach surface' as
defined by the Oregon Department of Aviation.
(8)(a) Approval or denial of a permit application shall be
based on standards and criteria which shall be set forth in the
zoning ordinance or other appropriate ordinance or regulation of
the county and which shall relate approval or denial of a permit
application to the zoning ordinance and comprehensive plan for
the area in which the proposed use of land would occur and to the
zoning ordinance and comprehensive plan for the county as a
whole.
(b) When an ordinance establishing approval standards is
required under ORS 197.307 to provide only clear and objective
standards, the standards must be clear and objective on the face
of the ordinance.
(9) Approval or denial of a permit or expedited land division
shall be based upon and accompanied by a brief statement that
explains the criteria and standards considered relevant to the
decision, states the facts relied upon in rendering the decision
and explains the justification for the decision based on the
criteria, standards and facts set forth.
(10) Written notice of the approval or denial shall be given to
all parties to the proceeding.
(11)(a)(A) The hearings officer or such other person as the
governing body designates may approve or deny an application for
a permit without a hearing if the hearings officer or other
designated person gives notice of the decision and provides an
opportunity for any person who is adversely affected or
aggrieved, or who is entitled to notice under paragraph (c) of
this subsection, to file an appeal.
(B) Written notice of the decision shall be mailed to those
persons described in paragraph (c) of this subsection.
(C) Notice under this subsection shall comply with ORS 197.763
{ - (3)(a), (c), (g) and (h) - } { + (1)(c)(A), (C), (G) and
(H) + } and shall describe the nature of the decision. In
addition, the notice shall state that any person who is adversely
affected or aggrieved or who is entitled to written notice under
paragraph (c) of this subsection may appeal the decision by
filing a written appeal in the manner and within the time period
provided in the county's land use regulations. A county may not
establish an appeal period that is less than 12 days from the
date the written notice of decision required by this subsection
was mailed. The notice shall state that the decision will not
become final until the period for filing a local appeal has
expired. The notice also shall state that a person who is mailed
written notice of the decision cannot appeal the decision
directly to the Land Use Board of Appeals under ORS 197.830.
(D) An appeal from a hearings officer's decision made without
hearing under this subsection shall be to the planning commission
or governing body of the county. An appeal from such other person
as the governing body designates shall be to a hearings officer,
the planning commission or the governing body. In either case,
the appeal shall be to a de novo hearing.
(E) The de novo hearing required by subparagraph (D) of this
paragraph shall be the initial evidentiary hearing required under
ORS 197.763 as the basis for an appeal to the Land Use Board of
Appeals. At the de novo hearing:
(i) The applicant and other parties shall have the same
opportunity to present testimony, arguments and evidence as they
would have had in a hearing under subsection (3) of this section
before the decision;
(ii) The presentation of testimony, arguments and evidence
shall not be limited to issues raised in a notice of appeal; and
(iii) The decision maker shall consider all relevant testimony,
arguments and evidence that are accepted at the hearing.
(b) If a local government provides only a notice of the
opportunity to request a hearing, the local government may charge
a fee for the initial hearing. The maximum fee for an initial
hearing shall be the cost to the local government of preparing
for and conducting the appeal, or $250, whichever is less. If an
appellant prevails at the hearing or upon subsequent appeal, the
fee for the initial hearing shall be refunded. The fee allowed in
this paragraph shall not apply to appeals made by neighborhood or
community organizations recognized by the governing body and
whose boundaries include the site.
(c)(A) Notice of a decision under paragraph (a) of this
subsection shall be provided to the applicant and to the owners
of record of property on the most recent property tax assessment
roll where such property is located:
(i) Within 100 feet of the property that is the subject of the
notice when the subject property is wholly or in part within an
urban growth boundary;
(ii) Within 250 feet of the property that is the subject of the
notice when the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(iii) Within 750 feet of the property that is the subject of
the notice when the subject property is within a farm or forest
zone.
(B) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(C) At the discretion of the applicant, the local government
also shall provide notice to the Department of Land Conservation
and Development.
(12) A decision described in ORS 215.402 (4)(b) shall:
(a) Be entered in a registry available to the public setting
forth:
(A) The street address or other easily understood geographic
reference to the subject property;
(B) The date of the decision; and
(C) A description of the decision made.
(b) Be subject to the jurisdiction of the Land Use Board of
Appeals in the same manner as a limited land use decision.
(c) Be subject to the appeal period described in ORS 197.830
(5)(b).
(13) At the option of the applicant, the local government shall
provide notice of the decision described in ORS 215.402 (4)(b) in
the manner required by ORS 197.763 { - (2) - } { +
(1)(b) + }, in which case an appeal to the board shall be filed
within 21 days of the decision. The notice shall include an
explanation of appeal rights.
(14) Notwithstanding the requirements of this section, a
limited land use decision shall be subject to the requirements
set forth in ORS 197.195 and 197.828.
SECTION 6. ORS 227.175 is amended to read:
227.175. (1) When required or authorized by a city, an owner of
land may apply in writing to the hearings officer, or such other
person as the city council designates, for a permit or zone
change, upon such forms and in such a manner as the city council
prescribes. The governing body shall establish fees charged for
processing permits at an amount no more than the actual or
average cost of providing that service.
(2) The governing body of the city shall establish a
consolidated procedure by which an applicant may apply at one
time for all permits or zone changes needed for a development
project. The consolidated procedure shall be subject to the time
limitations set out in ORS 227.178. The consolidated procedure
shall be available for use at the option of the applicant no
later than the time of the first periodic review of the
comprehensive plan and land use regulations.
(3) Except as provided in subsection (10) of this section, the
hearings officer shall hold at least one public hearing on the
application.
(4) The application shall not be approved unless the proposed
development of land would be in compliance with the comprehensive
plan for the city and other applicable land use regulation or
ordinance provisions. The approval may include such conditions as
are authorized by ORS 227.215 or any city legislation.
(5) Hearings under this section may be held only after notice
to the applicant and other interested persons and shall otherwise
be conducted in conformance with the provisions of ORS 197.763.
(6) Notice of a public hearing on a zone use application shall
be provided to the owner of an airport, defined by the Oregon
Department of Aviation as a 'public use airport' if:
(a) The name and address of the airport owner has been provided
by the Oregon Department of Aviation to the city planning
authority; and
(b) The property subject to the zone use hearing is:
(A) Within 5,000 feet of the side or end of a runway of an
airport determined by the Oregon Department of Aviation to be a '
visual airport'; or
(B) Within 10,000 feet of the side or end of the runway of an
airport determined by the Oregon Department of Aviation to be an
' instrument airport. '
(7) Notwithstanding the provisions of subsection (6) of this
section, notice of a zone use hearing need only be provided as
set forth in subsection (6) of this section if the permit or zone
change would only allow a structure less than 35 feet in height
and the property is located outside of the runway 'approach
surface' as defined by the Oregon Department of Aviation.
(8) If an application would change the zone of property that
includes all or part of a mobile home or manufactured dwelling
park as defined in ORS 446.003, the governing body shall give
written notice by first class mail to each existing mailing
address for tenants of the mobile home or manufactured dwelling
park at least 20 days but not more than 40 days before the date
of the first hearing on the application. The governing body may
require an applicant for such a zone change to pay the costs of
such notice.
(9) The failure of a tenant or an airport owner to receive a
notice which was mailed shall not invalidate any zone change.
(10)(a)(A) The hearings officer or such other person as the
governing body designates may approve or deny an application for
a permit without a hearing if the hearings officer or other
designated person gives notice of the decision and provides an
opportunity for any person who is adversely affected or
aggrieved, or who is entitled to notice under paragraph (c) of
this subsection, to file an appeal.
(B) Written notice of the decision shall be mailed to those
persons described in paragraph (c) of this subsection.
(C) Notice under this subsection shall comply with ORS 197.763
{ - (3)(a), (c), (g) and (h) - } { + (1)(c)(A), (C), (G) and
(H) + }and shall describe the nature of the decision. In
addition, the notice shall state that any person who is adversely
affected or aggrieved or who is entitled to written notice under
paragraph (c) of this subsection may appeal the decision by
filing a written appeal in the manner and within the time period
provided in the city's land use regulations. A city may not
establish an appeal period that is less than 12 days from the
date the written notice of decision required by this subsection
was mailed. The notice shall state that the decision will not
become final until the period for filing a local appeal has
expired. The notice also shall state that a person who is mailed
written notice of the decision cannot appeal the decision
directly to the Land Use Board of Appeals under ORS 197.830.
(D) An appeal from a hearings officer's decision made without
hearing under this subsection shall be to the planning commission
or governing body of the city. An appeal from such other person
as the governing body designates shall be to a hearings officer,
the planning commission or the governing body. In either case,
the appeal shall be to a de novo hearing.
(E) The de novo hearing required by subparagraph (D) of this
paragraph shall be the initial evidentiary hearing required under
ORS 197.763 as the basis for an appeal to the Land Use Board of
Appeals. At the de novo hearing:
(i) The applicant and other parties shall have the same
opportunity to present testimony, arguments and evidence as they
would have had in a hearing under subsection (3) of this section
before the decision;
(ii) The presentation of testimony, arguments and evidence
shall not be limited to issues raised in a notice of appeal; and
(iii) The decision maker shall consider all relevant testimony,
arguments and evidence that are accepted at the hearing.
(b) If a local government provides only a notice of the
opportunity to request a hearing, the local government may charge
a fee for the initial hearing. The maximum fee for an initial
hearing shall be the cost to the local government of preparing
for and conducting the appeal, or $250, whichever is less. If an
appellant prevails at the hearing or upon subsequent appeal, the
fee for the initial hearing shall be refunded. The fee allowed in
this paragraph shall not apply to appeals made by neighborhood or
community organizations recognized by the governing body and
whose boundaries include the site.
(c)(A) Notice of a decision under paragraph (a) of this
subsection shall be provided to the applicant and to the owners
of record of property on the most recent property tax assessment
roll where such property is located:
(i) Within 100 feet of the property that is the subject of the
notice when the subject property is wholly or in part within an
urban growth boundary;
(ii) Within 250 feet of the property that is the subject of the
notice when the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(iii) Within 750 feet of the property that is the subject of
the notice when the subject property is within a farm or forest
zone.
(B) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(C) At the discretion of the applicant, the local government
also shall provide notice to the Department of Land Conservation
and Development.
(11) A decision described in ORS 227.160 (2)(b) shall:
(a) Be entered in a registry available to the public setting
forth:
(A) The street address or other easily understood geographic
reference to the subject property;
(B) The date of the decision; and
(C) A description of the decision made.
(b) Be subject to the jurisdiction of the Land Use Board of
Appeals in the same manner as a limited land use decision.
(c) Be subject to the appeal period described in ORS 197.830
(5)(b).
(12) At the option of the applicant, the local government shall
provide notice of the decision described in ORS 227.160 (2)(b) in
the manner required by ORS 197.763 { - (2) - } { +
(1)(b) + }, in which case an appeal to the board shall be filed
within 21 days of the decision. The notice shall include an
explanation of appeal rights.
(13) Notwithstanding other requirements of this section,
limited land use decisions shall be subject to the requirements
set forth in ORS 197.195 and 197.828.
SECTION 7. ORS 469.370 is amended to read:
469.370. (1) Based on its review of the application and the
comments and recommendations on the application from state
agencies and local governments, the State Department of Energy
shall prepare and issue a draft proposed order on the
application.
(2) Following issuance of the draft proposed order, the Energy
Facility Siting Council shall hold one or more public hearings on
the application for a site certificate in the affected area and
elsewhere, as the council considers necessary. Notice of the
hearing shall be mailed at least 20 days before the hearing. The
notice shall, at a minimum:
(a) Comply with the requirements of ORS 197.763 { - (2) - }
{ + (1)(b) + }, with respect to the persons notified;
(b) Include a description of the facility and the facility's
general location;
(c) Include the name of an agency representative to contact and
the telephone number where additional information may be
obtained;
(d) State that copies of the application and draft proposed
order are available for inspection at no cost and will be
provided at a reasonable cost; and
(e) State that failure to raise an issue in person or in
writing prior to the close of the record of the public hearing
with sufficient specificity to afford the decision maker an
opportunity to respond to the issue precludes consideration of
the issue in a contested case.
(3) Any issue that may be the basis for a contested case shall
be raised not later than the close of the record at or following
the final public hearing prior to issuance of the department's
proposed order. Such issues shall be raised with sufficient
specificity to afford the council, the department and the
applicant an adequate opportunity to respond to each issue. A
statement of this requirement shall be made at the commencement
of any public hearing on the application.
(4) After reviewing the application, the draft proposed order
and any testimony given at the public hearing and after
consulting with other agencies, the department shall issue a
proposed order recommending approval or rejection of the
application. The department shall issue public notice of the
proposed order, that shall include notice of a contested case
hearing specifying a deadline for requests to participate as a
party or limited party and a date for the prehearing conference.
(5) Following receipt of the proposed order from the
department, the council shall conduct a contested case hearing on
the application for a site certificate in accordance with the
applicable provisions of ORS chapter 183 and any procedures
adopted by the council. The applicant shall be a party to the
contested case. The council may permit any other person to become
a party to the contested case in support of or in opposition to
the application only if the person appeared in person or in
writing at the public hearing on the site certificate
application. Issues that may be the basis for a contested case
shall be limited to those raised on the record of the public
hearing under subsection (3) of this section, unless:
(a) The department failed to follow the requirements of
subsection (2) or (3) of this section; or
(b) The action recommended in the proposed order, including any
recommended conditions of the approval, differs materially from
that described in the draft proposed order, in which case only
new issues related to such differences may be raised.
(6) If no person requests party status to challenge the
department's proposed order, the proposed order shall be
forwarded to the council and the contested case hearing shall be
concluded.
(7) At the conclusion of the contested case, the council shall
issue a final order, either approving or rejecting the
application based upon the standards adopted under ORS 469.501
and any additional statutes, rules or local ordinances determined
to be applicable to the facility by the project order, as
amended. The council shall make its decision by the affirmative
vote of at least four members approving or rejecting any
application for a site certificate. The council may amend or
reject the proposed order, so long as the council provides public
notice of its hearing to adopt a final order, and provides an
opportunity for the applicant and any party to the contested case
to comment on material changes to the proposed order, including
material changes to conditions of approval resulting from the
council's review. The council's order shall be considered a final
order for purposes of appeal.
(8) Rejection or approval of an application, together with any
conditions that may be attached to the certificate, shall be
subject to judicial review as provided in ORS 469.403.
(9) The council shall either approve or reject an application
for a site certificate:
(a) Within 24 months after filing an application for a nuclear
installation, or for a thermal power plant, other than that
described in paragraph (b) of this subsection, with a nameplate
rating of more than 200,000 kilowatts;
(b) Within nine months after filing of an application for a
site certificate for a combustion turbine power plant, a
geothermal-fueled power plant or an underground storage facility
for natural gas;
(c) Within six months after filing an application for a site
certificate for an energy facility, if the application is:
(A) To expand an existing industrial facility to include an
energy facility;
(B) To expand an existing energy facility to achieve a nominal
electric generating capacity of between 25 and 50 megawatts; or
(C) To add injection or withdrawal capacity to an existing
underground gas storage facility; or
(d) Within 12 months after filing an application for a site
certificate for any other energy facility.
(10) At the request of the applicant, the council shall allow
expedited processing of an application for a site certificate for
an energy facility with an average electric generating capacity
of less than 100 megawatts. No notice of intent shall be
required. Following approval of a request for expedited review,
the department shall issue a project order, which may be amended
at any time. The council shall either approve or reject an
application for a site certificate within six months after filing
the site certificate application if there are no intervenors in
the contested case conducted under subsection (5) of this
section. If there are intervenors in the contested case, the
council shall either approve or reject an application within nine
months after filing the site certificate application. For
purposes of this subsection, the generating capacity of a thermal
power plant is the nameplate rating of the electrical generator
proposed to be installed in the plant.
(11) Failure of the council to comply with the deadlines set
forth in subsection (9) or (10) of this section shall not result
in the automatic issuance or denial of a site certificate.
(12) The council shall specify in the site certificate a date
by which construction of the facility must begin.
(13) For a facility that is subject to and has been or will be
reviewed by a federal agency under the National Environmental
Policy Act, 42 U.S.C. Section 4321, et seq., the council shall
conduct its site certificate review, to the maximum extent
feasible, in a manner that is consistent with and does not
duplicate the federal agency review. Such coordination shall
include, but need not be limited to:
(a) Elimination of duplicative application, study and reporting
requirements;
(b) Council use of information generated and documents prepared
for the federal agency review;
(c) Development with the federal agency and reliance on a joint
record to address applicable council standards;
(d) Whenever feasible, joint hearings and issuance of a site
certificate decision in a time frame consistent with the federal
agency review; and
(e) To the extent consistent with applicable state standards,
establishment of conditions in any site certificate that are
consistent with the conditions established by the federal agency.
SECTION 8. ORS 469.373 is amended to read:
469.373. (1) Notwithstanding the expedited review process
established pursuant to ORS 469.370, an applicant may apply under
the provisions of this section for expedited review of an
application for a site certificate for an energy facility if the
energy facility:
(a) Is a combustion turbine energy facility fueled by natural
gas or is a reciprocating engine fueled by natural gas, including
an energy facility that uses petroleum distillate fuels for
backup power generation;
(b) Is a permitted or conditional use allowed under an
applicable local acknowledged comprehensive plan, land use
regulation or federal land use plan, and is located:
(A) At or adjacent to an existing energy facility; or
(B)(i) At, adjacent to or in close proximity to an existing
industrial use; and
(ii) In an area currently zoned or designated for industrial
use;
(c)(A) Requires no more than three miles of associated
transmission lines or three miles of new natural gas pipelines
outside of existing rights of way for transmission lines or
natural gas pipelines; or
(B) Imposes, in the determination of the Energy Facility Siting
Council, no significant impact in the locating of associated
transmission lines or new natural gas pipelines outside of
existing rights of way;
(d) Requires no new water right or water right transfer;
(e) Provides funds to a qualified organization in an amount
determined by the council to be sufficient to produce any
required reduction in emissions as specified in ORS 469.503
(2)(c)(C) and in rules adopted under ORS 469.503 for the total
carbon dioxide emissions produced by the energy facility for the
life of the energy facility; and
(f)(A) Discharges process wastewater to a wastewater treatment
facility that has an existing National Pollutant Discharge
Elimination System permit, can obtain an industrial pretreatment
permit, if needed, within the expedited review process time frame
and has written confirmation from the wastewater facility permit
holder that the additional wastewater load will be accommodated
by the facility without resulting in a significant thermal
increase in the facility effluent or without requiring any
changes to the wastewater facility National Pollutant Discharge
Elimination System permit;
(B) Plans to discharge process wastewater to a wastewater
treatment facility owned by a municipal corporation that will
accommodate the wastewater from the energy facility and supplies
evidence from the municipal corporation that:
(i) The municipal corporation has included, or intends to
include, the process wastewater load from the energy facility in
an application for a National Pollutant Discharge Elimination
System permit; and
(ii) All conditions required of the energy facility to allow
the discharge of process wastewater from the energy facility will
be satisfied; or
(C) Obtains a National Pollutant Discharge Elimination System
or water pollution control facility permit for process wastewater
disposal, supplies evidence to support a finding that the
discharge can likely be permitted within the expedited review
process time frame and that the discharge will not require:
(i) A new National Pollutant Discharge Elimination System
permit, except for a storm water general permit for construction
activities; or
(ii) A change in any effluent limit or discharge location under
an existing National Pollutant Discharge Elimination System or
water pollution control facility permit.
(2) An applicant seeking expedited review under this section
shall submit documentation to the State Department of Energy,
prior to the submission of an application for a site certificate,
that demonstrates that the energy facility meets the
qualifications set forth in subsection (1) of this section. The
department shall determine, within 14 days of receipt of the
documentation, on a preliminary, nonbinding basis, whether the
energy facility qualifies for expedited review.
(3) If the department determines that the energy facility
preliminarily qualifies for expedited review, the applicant may
submit an application for expedited review. Within 30 days after
the date that the application for expedited review is submitted,
the department shall determine whether the application is
complete. If the department determines that the application is
complete, the application shall be deemed filed on the date that
the department sends the applicant notice of its determination.
If the department determines that the application is not
complete, the department shall notify the applicant of the
deficiencies in the application and shall deem the application
filed on the date that the department determines that the
application is complete. The department or the council may
request additional information from the applicant at any time.
(4) The State Department of Energy shall send a copy of a filed
application to the Department of Environmental Quality, the Water
Resources Department, the State Department of Fish and Wildlife,
the State Department of Geology and Mineral Industries, the State
Department of Agriculture, the Department of Land Conservation
and Development, the Public Utility Commission and any other
state agency, city, county or political subdivision of the state
that has regulatory or advisory responsibility with respect to
the proposed energy facility. The State Department of Energy
shall send with the copy of the filed application a notice
specifying that:
(a) In the event the council issues a site certificate for the
energy facility, the site certificate will bind the state and all
counties, cities and political subdivisions in the state as to
the approval of the site, the construction of the energy facility
and the operation of the energy facility, and that after the
issuance of a site certificate, all permits, licenses and
certificates addressed in the site certificate must be issued as
required by ORS 469.401 (3); and
(b) The comments and recommendations of state agencies,
counties, cities and political subdivisions concerning whether
the proposed energy facility complies with any statute, rule or
local ordinance that the state agency, county, city or political
subdivision would normally administer in determining whether a
permit, license or certificate required for the construction or
operation of the energy facility should be approved will be
considered only if the comments and recommendations are received
by the department within a reasonable time after the date the
application and notice of the application are sent by the
department.
(5) Within 90 days after the date that the application was
filed, the department shall issue a draft proposed order setting
forth:
(a) A description of the proposed energy facility;
(b) A list of the permits, licenses and certificates that are
addressed in the application and that are required for the
construction or operation of the proposed energy facility;
(c) A list of the statutes, rules and local ordinances that are
the standards and criteria for approval of any permit, license or
certificate addressed in the application and that are required
for the construction or operation of the proposed energy
facility; and
(d) Proposed findings specifying how the proposed energy
facility complies with the applicable standards and criteria for
approval of a site certificate.
(6) The council shall review the application for site
certification in the manner set forth in subsections (7) to (10)
of this section and shall issue a site certificate for the
facility if the council determines that the facility, with any
required conditions to the site certificate, will comply with:
(a) The requirements for expedited review as specified in this
section;
(b) The standards adopted by the council pursuant to ORS
469.501 (1)(a), (c) to (e), (g), (h) and (L) to (o);
(c) The requirements of ORS 469.503 (3); and
(d) The requirements of ORS 469.504 (1)(b).
(7) Following submission of an application for a site
certificate, the council shall hold a public informational
meeting on the application. Following the issuance of the
proposed order, the council shall hold at least one public
hearing on the application. The public hearing shall be held in
the area affected by the energy facility. The council shall mail
notice of the hearing at least 20 days prior to the hearing. The
notice shall comply with the notice requirements of ORS 197.763
{ - (2) - } { + (1)(b) + } and shall include, but need not be
limited to, the following:
(a) A description of the energy facility and the general
location of the energy facility;
(b) The name of a department representative to contact and the
telephone number at which people may obtain additional
information;
(c) A statement that copies of the application and proposed
order are available for inspection at no cost and will be
provided at reasonable cost; and
(d) A statement that the record for public comment on the
application will close at the conclusion of the hearing and that
failure to raise an issue in person or in writing prior to the
close of the record, with sufficient specificity to afford the
decision maker an opportunity to respond to the issue, will
preclude consideration of the issue, by the council or by a court
on judicial review of the council's decision.
(8) Prior to the conclusion of the hearing, the applicant may
request an opportunity to present additional written evidence,
arguments or testimony regarding the application. In the
alternative, prior to the conclusion of the hearing, the
applicant may request a contested case hearing on the
application. If the applicant requests an opportunity to present
written evidence, arguments or testimony, the council shall leave
the record open for that purpose only for a period not to exceed
14 days after the date of the hearing. Following the close of the
record, the department shall prepare a draft final order for the
council. If the applicant requests a contested case hearing, the
council may grant the request if the applicant has shown good
cause for a contested case hearing. If a request for a contested
case hearing is granted, subsections (9) to (11) of this section
do not apply, and the application shall be considered under the
same contested case procedures used for a nonexpedited
application for a site certificate.
(9) The council shall make its decision based on the record and
the draft final order prepared by the department. The council
shall, within six months of the date that the application is
deemed filed:
(a) Grant the application;
(b) Grant the application with conditions;
(c) Deny the application; or
(d) Return the application to the site certification process
required by ORS 469.320.
(10) If the application is granted, the council shall issue a
site certificate pursuant to ORS 469.401 and 469.402.
Notwithstanding subsection (6) of this section, the council may
impose conditions based on standards adopted under ORS 469.501
(1)(b), (f) and (i) to (k), but may not deny an application based
on those standards.
(11) Judicial review of the approval or rejection of a site
certificate by the council under this section shall be as
provided in ORS 469.403.
SECTION 9. { + The amendments to ORS 197.763 by section 1 of
this 2013 Act apply to quasi-judicial land use hearings before a
local government conducted on or after the effective date of this
2013 Act. + }
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