Bill Text: OR SB77 | 2013 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to appellate review of land use decisions; and declaring an emergency.

Spectrum: Committee Bill

Status: (Passed) 2013-07-03 - Effective date, June 26, 2013. [SB77 Detail]

Download: Oregon-2013-SB77-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

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

LC 1101

                         Senate Bill 77

Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Senate Interim Committee on
  Judiciary)

                             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 appellate review of quasi-judicial land use decisions
and limited land use decisions directly related to and made in
response to land use application to be conducted in single
proceeding in which Land Use Board of Appeals has joined all
appeals.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to appellate review of land use decisions; creating new
  provisions; amending ORS 196.115, 197.796, 197.830, 197.832,
  197.835, 197.840, 197.845 and 197.850; and declaring an
  emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 197.830 is amended to read:
  197.830. (1) Review of land use decisions or limited land use
decisions under ORS 197.830 to 197.845 shall be commenced by
filing a notice of intent to appeal { +  that includes
assignments of error upon which the petitioner intends to request
review + } with the Land Use Board of Appeals.
  (2) Except as provided in ORS 197.620, a person may petition
the board for review of a land use decision or limited land use
decision if the person:
  (a) Filed a notice of intent to appeal the decision as provided
in subsection (1) of this section; and
  (b) Appeared before the local government, special district or
state agency orally or in writing.
  (3) If a local government makes a land use decision without
providing a hearing, except as provided under ORS 215.416 (11) or
227.175 (10), or the local government makes a land use decision
that is different from the proposal described in the notice of
hearing to such a degree that the notice of the proposed action
did not reasonably describe the local government's final actions,
a person adversely affected by the decision may appeal the
decision to the board under this section:
  (a) Within 21 days of actual notice where notice is required;
or

  (b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
  (4) If a local government makes a land use decision without a
hearing pursuant to ORS 215.416 (11) or 227.175 (10):
  (a) A person who was not provided notice of the decision as
required under ORS 215.416 (11)(c) or 227.175 (10)(c) may appeal
the decision to the board under this section within 21 days of
receiving actual notice of the decision.
  (b) A person who is not entitled to notice under ORS 215.416
(11)(c) or 227.175 (10)(c) but who is adversely affected or
aggrieved by the decision may appeal the decision to the board
under this section within 21 days after the expiration of the
period for filing a local appeal of the decision established by
the local government under ORS 215.416 (11)(a) or 227.175
(10)(a).
  (c) A person who receives notice of a decision made without a
hearing under ORS 215.416 (11) or 227.175 (10) may appeal the
decision to the board under this section within 21 days of
receiving actual notice of the nature of the decision, if the
notice of the decision did not reasonably describe the nature of
the decision.
  (d) Except as provided in paragraph (c) of this subsection, a
person who receives notice of a decision made without a hearing
under ORS 215.416 (11) or 227.175 (10) may not appeal the
decision to the board under this section.
  (5) If a local government makes a 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 actions, a
person adversely affected by the decision may appeal the decision
to the board under this section:
  (a) Within 21 days of actual notice where notice is required;
or
  (b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
  (6) The appeal periods described in subsections (3), (4) and
(5) of this section:
  (a) May not exceed three years after the date of the decision,
except as provided in paragraph (b) of this subsection.
  (b) May not exceed 10 years after the date of the decision if
notice of a hearing or an administrative decision made pursuant
to ORS 197.195 or 197.763 is required but has not been provided.
  (7)(a) Within 21 days after a notice of intent to appeal has
been filed with the board under subsection (1) of this section,
any person described in paragraph (b) of this subsection may
intervene in and be made a party to the review proceeding by
filing a motion to intervene and by paying a filing fee   { - of
$100 - }  { +  as set forth in subsection (10) of this
section + }.
  (b) Persons who may intervene in and be made a party to the
review proceedings, as set forth in subsection (1) of this
section, are:
  (A) The applicant who initiated the action before the local
government, special district or state agency; or
  (B) Persons who appeared before the local government, special
district or state agency, orally or in writing.
  (c) Failure to comply with the deadline or to pay the filing
fee set forth in   { - paragraph (a) of this - }  subsection
 { + (10) of this section + } shall result in denial of a motion
to intervene.
  (8) If a state agency whose order, rule, ruling, policy or
other action is at issue is not a party to the proceeding, it may
file a brief with the board as if it were a party. The brief
shall be due on the same date the respondent's brief is due and
shall be accompanied by a filing fee of $100.

  (9) A notice of intent to appeal a land use decision or limited
land use decision shall be filed not later than 21 days after the
date the decision sought to be reviewed becomes final. A notice
of intent to appeal plan and land use regulation amendments
processed pursuant to ORS 197.610 to 197.625 shall be filed not
later than 21 days after notice of the decision sought to be
reviewed is mailed or otherwise submitted to parties entitled to
notice under ORS 197.615. Failure to include a statement
identifying when, how and to whom notice was provided under ORS
197.615 does not render the notice defective. Copies of the
notice of intent to appeal shall be served upon the local
government, special district or state agency and the applicant of
record, if any, in the local government, special district or
state agency proceeding.   { - The notice shall be served and
filed in the form and manner prescribed by rule of the board and
shall be accompanied by a filing fee of $200 and a deposit for
costs to be established by the board. If a petition for review is
not filed with the board as required in subsections (10) and (11)
of this section, the filing fee and deposit shall be awarded to
the local government, special district or state agency as cost of
preparation of the record. - }  { + The notice must be served and
filed in the form and manner prescribed by rule of the board and
must be accompanied by a filing fee and a deposit for costs as
set forth in subsection (10) of this section. If a petition for
review is not filed with the board as required in subsections
(10), (11) and (12) of this section, the board shall award the
filing fee and deposit to the local government, special district
or state agency as cost of preparation of the record.
  (10)(a) A person that petitions for review under subsection (2)
of this section shall submit a filing fee of $1,000 and a deposit
for costs of $1,000.
  (b) A person that intervenes under subsection (7) of this
section shall submit a filing fee of $750.
  (c) By rule the board may establish criteria under which a
person that is directly affected by the land use decision or
limited land use decision and that is unable to pay the fee may
receive a partial fee waiver. + }
    { - (10)(a) - }   { + (11)(a) + } Within 21 days after
service of the notice of intent to appeal, the local government,
special district or state agency shall transmit to the board the
original or a certified copy of the entire record of the
proceeding under review. By stipulation of all parties to the
review proceeding the record may be shortened. The board may
require or permit subsequent corrections to the record; however,
the board shall issue an order on a motion objecting to the
record within 60 days of receiving the motion.
  (b) Within 10 days after service of a notice of intent to
appeal, the board shall provide notice to the petitioner and the
respondent of their option to enter into mediation pursuant to
ORS 197.860. Any person moving to intervene shall be provided
such notice within seven days after a motion to intervene is
filed. The notice required by this paragraph shall be accompanied
by a statement that mediation information or assistance may be
obtained from the Department of Land Conservation and
Development.
    { - (11) - }   { + (12) + } A petition for review of the land
use decision or limited land use decision and supporting brief
shall be filed with the board as required by the board under
subsection   { - (13) - }   { + (14) + } of this section.
    { - (12) - }   { + (13) + } The petition shall include a copy
of the decision sought to be reviewed and shall state:
  (a) The facts that establish that the petitioner has standing.
  (b) The date of the decision.
  (c) The issues the petitioner seeks to have reviewed.

    { - (13)(a) - }   { + (14)(a) + } The board shall adopt rules
establishing deadlines for filing petitions and briefs and for
oral argument.
  (b) At any time subsequent to the filing of a notice of intent
and prior to the date set for filing the record, or, on appeal of
a decision under ORS 197.610 to 197.625, prior to the filing of
the respondent's brief, the local government or state agency may
withdraw its decision for purposes of reconsideration.  If a
local government or state agency withdraws an order for purposes
of reconsideration, it shall, within such time as the board may
allow, affirm, modify or reverse its decision. If the petitioner
is dissatisfied with the local government or agency action after
withdrawal for purposes of reconsideration, the petitioner may
refile the notice of intent and the review shall proceed upon the
revised order. An amended notice of intent shall not be required
if the local government or state agency, on reconsideration,
affirms the order or modifies the order with only minor changes.
    { - (14) - }   { + (15) + } The board shall issue a final
order within 77 days after the date of transmittal of the record.
If the order is not issued within 77 days the applicant may apply
in Marion County or the circuit court of the county where the
application was filed for a writ of mandamus to compel the board
to issue a final order.
    { - (15)(a) - }   { + (16)(a) + } Upon entry of its final
order the board may, in its discretion, award costs to the
prevailing party including the cost of preparation of the record
if the prevailing party is the local government, special district
or state agency whose decision is under review. The  { + board
shall apply the + } deposit required by subsection   { - (9) - }
 { +  (10) + } of this section   { - shall be applied - }  to any
costs charged against the petitioner.
  (b) The board shall also award reasonable attorney fees and
expenses to the prevailing party against any other party who the
board finds presented a position without probable cause to
believe the position was well-founded in law or on factually
supported information.
    { - (16) - }   { + (17) + } Orders issued under this section
may be enforced in appropriate judicial proceedings.
    { - (17)(a) - }   { + (18)(a) + } The board shall provide for
the publication of its orders that are of general public interest
in the form it deems best adapted for public convenience. The
publications shall constitute the official reports of the board.
  (b) Any moneys collected or received from sales by the board
shall be paid into the Board Publications Account established by
ORS 197.832.
    { - (18) - }   { + (19) + } Except for any sums collected for
publication of board opinions, all fees collected by the board
under this section that are not awarded as costs shall be paid
over to the State Treasurer to be credited to the General Fund.
   { +  (20) The board shall track and report on its website:
  (a) The number of reviews commenced, as described in subsection
(1) of this section, the number of reviews commenced for which a
petition is filed under subsection (2) of this section and, in
relation to each of those numbers, the rate at which the reviews
result in a decision of the board to uphold, reverse or remand
the land use decision or limited land use decision.
  (b) A list of petitioners, the number of reviews commenced and
the rate at which the petitioner's reviews have resulted in
decisions of the board to uphold, reverse or remand the land use
decision or limited land use decision.
  (c) The total cost incurred by petitioners, respondents and
intervenors for participating in reviews.
  (d) A list of reviews, and a brief summary of the circumstances
in each review under which the board exercises its discretion to
require a losing party to pay the attorney fees of the prevailing
party. + }
  SECTION 2. ORS 197.832 is amended to read:
  197.832. The Board Publications Account is established in the
General Fund. All moneys in the account are appropriated
continuously to the Land Use Board of Appeals to be used for
paying expenses incurred by the board under ORS 197.830
 { - (17) - }  { + (18) + }. Disbursements of moneys from the
account shall be approved by a member of 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 - }   { + Except as
provided in subsection (4) of this section, the board shall limit
the issues raised on review to issues:
  (a)  + }Raised by any participant before the local hearings
body as provided by ORS 197.195 or 197.763, whichever is
applicable { + ; and
  (b) Identified in an assignment of error in a notice of intent
to appeal filed under ORS 197.830 in relation to one or more of
the multiple quasi-judicial land use decisions or limited land
use decisions that must be reviewed together pursuant to section
8 of this 2013 Act + }.
  (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) - }  { +  (15) + },
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 4. ORS 197.840 is amended to read:
  197.840. (1) The following periods of delay shall be excluded
from the 77-day period within which the board must make a final
decision on a petition under ORS 197.830   { - (14) - }  { +
(15) + }:
  (a) Any period of delay up to 120 days resulting from the
board's deferring all or part of its consideration of a petition
for review of a land use decision or limited land use decision
that allegedly violates the goals if the decision has been:
  (A) Submitted for acknowledgment under ORS 197.251; or
  (B) Submitted to the Department of Land Conservation and
Development as part of a periodic review work program task
pursuant to ORS 197.628 to 197.651 and not yet acknowledged.
  (b) Any period of delay resulting from a motion, including but
not limited to, a motion disputing the constitutionality of the
decision, standing, ex parte contacts or other procedural
irregularities not shown in the record.
  (c) Any reasonable period of delay resulting from a request for
a stay under ORS 197.845.
  (d) Any reasonable period of delay resulting from a continuance
granted by a member of the board on the member's own motion or at
the request of one of the parties, if the member granted the
continuance on the basis of findings that the ends of justice
served by granting the continuance outweigh the best interest of
the public and the parties in having a decision within 77 days.
  (2) No period of delay resulting from a continuance granted by
the board under subsection (1)(d) of this section shall be
excludable under this section unless the board sets forth in the
record, either orally or in writing, its reasons for finding that
the ends of justice served by granting the continuance outweigh
the best interests of the public and the other parties in a
decision within the 77 days. The factors the board shall consider
in determining whether to grant a continuance under subsection
(1)(d) of this section in any case are as follows:
  (a) Whether the failure to grant a continuance in the
proceeding would be likely to make a continuation of the
proceeding impossible or result in a miscarriage of justice; or
  (b) Whether the case is so unusual or so complex, due to the
number of parties or the existence of novel questions of fact or
law, that it is unreasonable to expect adequate consideration of
the issues within the 77-day time limit.
  (3) No continuance under subsection (1)(d) of this section
shall be granted because of general congestion of the board
calendar or lack of diligent preparation or attention to the case
by any member of the board or any party.
  (4) The board may defer all or part of its consideration of a
land use decision or limited land use decision described in
subsection (1)(a) of this section until the Land Conservation and
Development Commission has disposed of the acknowledgment
proceeding described in subsection (1)(a) of this section. If the
board deferred all or part of its consideration of a decision
under this subsection, the board may grant a stay of the
comprehensive plan provision, land use regulation, limited land
use decision or land use decision under ORS 197.845.
  SECTION 5. ORS 197.845 is amended to read:
  197.845. (1) Upon application of the petitioner, the board may
grant a stay of a land use decision or limited land use decision
under review if the petitioner demonstrates:
  (a) A colorable claim of error in the land use decision or
limited land use decision under review; and

  (b) That the petitioner will suffer irreparable injury if the
stay is not granted.
  (2) If the board grants a stay of a quasi-judicial land use
decision or limited land use decision approving a specific
development of land, it shall require the petitioner requesting
the stay to give an undertaking in the amount of $5,000. The
undertaking shall be in addition to the filing fee and deposit
for costs required under ORS 197.830   { - (9) - }  { +
(10) + }. The board may impose other reasonable conditions such
as requiring the petitioner to file all documents necessary to
bring the matter to issue within specified reasonable periods of
time.
  (3) If the board affirms a quasi-judicial land use decision or
limited land use decision for which a stay was granted under
subsections (1) and (2) of this section, the board shall award
reasonable attorney fees and actual damages resulting from the
stay to the person who requested the land use decision or limited
land use decision from the local government, special district or
state agency, against the person requesting the stay in an amount
not to exceed the amount of the undertaking.
  (4) The board shall limit the effect of a stay of a legislative
land use decision to the geographic area or to particular
provisions of the legislative decision for which the petitioner
has demonstrated a colorable claim of error and irreparable
injury under subsection (1) of this section. The board may impose
reasonable conditions on a stay of a legislative decision, such
as the giving of a bond or other undertaking or a requirement
that the petitioner file all documents necessary to bring the
matter to issue within a specified reasonable time period.
  SECTION 6. ORS 197.850 is amended to read:
  197.850. (1) Any party to a proceeding before the Land Use
Board of Appeals under ORS 197.830 to 197.845 may seek judicial
review of a final order issued in those proceedings.
  (2) Notwithstanding the provisions of ORS 183.480 to 183.540,
judicial review of orders issued under ORS 197.830 to 197.845 is
solely as provided in this section.
  (3)(a) Jurisdiction for judicial review of proceedings under
ORS 197.830 to 197.845 is conferred upon the Court of Appeals.
Proceedings for judicial review are instituted by filing a
petition in the Court of Appeals. The petition must be filed
within 21 days following the date the board delivered or mailed
the order upon which the petition is based.
  (b) Filing of the petition, as set forth in paragraph (a) of
this subsection, and service of a petition on all persons
identified in the petition as adverse parties of record in the
board proceeding is jurisdictional and may not be waived or
extended.
  (4) The petition must state the nature of the order the
petitioner desires reviewed. Copies of the petition must be
served by first class, registered or certified mail on the board
and all other parties of record in the board proceeding.
  (5) Within seven days after service of the petition, the board
shall transmit to the court the original or a certified copy of
the entire record of the proceeding under review, but, by
stipulation of all parties to the review proceeding, the record
may be shortened. The court may tax a party that unreasonably
refuses to stipulate to limit the record for the additional
costs.  The court may require or permit subsequent corrections or
additions to the record when deemed desirable. Except as
specifically provided in this subsection, the court may not tax
the cost of the record to the petitioner or any intervening
party.  However, the court may tax such costs and the cost of
transcription of record to a party filing a frivolous petition
for judicial review.
  (6) Petitions and briefs must be filed within time periods and
in a manner established by the Court of Appeals by rule.
  (7)(a) The court shall hear oral argument within 49 days of the
date of transmittal of the record.
  (b) The court may hear oral argument more than 49 days from the
date of transmittal of the record provided the court determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. The court shall not hold oral argument more than 49 days
from the date of transmittal of the record because of general
congestion of the court calendar or lack of diligent preparation
or attention to the case by any member of the court or any party.
  (c) The court shall set forth in writing a determination to
hear oral argument more than 49 days from the date the record is
transmitted, together with the reasons for its determination, and
shall provide a copy to the parties. The court shall schedule
oral argument as soon as practicable thereafter.
  (d) In making a determination under paragraph (b) of this
subsection, the court shall consider:
  (A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the court to prepare for oral argument;
and
  (B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
  (8) Judicial review of an order issued under ORS 197.830 to
197.845 shall be confined to the record. The court shall not
substitute its judgment for that of the board as to any issue of
fact.
  (9) The court may affirm, reverse or remand the order. The
court shall reverse or remand the order only if it finds:
  (a) The order to be unlawful in substance or procedure, but
error in procedure is not cause for reversal or remand unless the
court finds that substantial rights of the petitioner were
prejudiced thereby;
  (b) The order to be unconstitutional; or
  (c) The order is not supported by substantial evidence in the
whole record as to facts found by the board under ORS 197.835
(2).
  (10) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
  (11) If the order of the board is remanded by the Court of
Appeals or the Supreme Court, the board shall respond to the
court's appellate judgment within 30 days.
  (12) A party must file with the board an undertaking with one
or more sureties insuring that the party will pay all costs,
disbursements and attorney fees awarded against the party by the
Court of Appeals if:
  (a) The party appealed a decision of the board to the Court of
Appeals; and
  (b) In making the decision being appealed to the Court of
Appeals, the board awarded attorney fees and expenses against
that party under ORS 197.830   { - (15)(b) - }  { +  (16)(b) + }.
  (13) Upon entry of its final order, the court shall award
attorney fees and expenses to a party who prevails on a claim
that an approval condition imposed by a local government on an
application for a permit pursuant to ORS 215.416 or 227.175 is
unconstitutional under section 18, Article I, Oregon
Constitution, or the Fifth Amendment to the United States
Constitution.
  (14) The undertaking required in subsection (12) of this
section must be filed with the board and served on the opposing
parties within 10 days after the date the petition was filed with
the Court of Appeals.
  SECTION 7.  { + Section 8 of this 2013 Act is added to and made
a part of ORS 197.830 to 197.845. + }
  SECTION 8.  { + (1) When a local government, a special district
or a state agency considers an application, the approval or
denial of which requires the local government, the special
district or the state agency to make multiple quasi-judicial land
use decisions or limited land use decisions in relation to real
property that is the object of the application, the local
government, the special district or the state agency shall make
findings that identify each quasi-judicial land use decision or
limited land use decision that is related to and made, by the
local government, the special district, the state agency or
another public body, as defined in ORS 174.109, in direct
response to the application.
  (2) A person seeking Land Use Board of Appeals review of a
quasi-judicial land use decision or limited land use decision
described in subsection (1) of this section shall comply with all
provisions of ORS 197.830 to 197.855, including the requirement
to timely file a notice of intent to appeal pursuant to ORS
197.830.
  (3) Upon receipt of a notice of intent to appeal a decision
described in subsection (1) of this section, the board shall:
  (a) Toll the operation of timelines described in ORS 197.830,
except the timeline for other persons to file notices of intent
to appeal, until the local government, the special district or
the state agency grants final approval or denial to the
application;
  (b) Join in a single proceeding all separate appeals of the
related decisions made in direct response to the application;
  (c) Notify parties of the tolling of timelines as the parties
are joined in the proceeding; and
  (d) Review in a single proceeding all related quasi-judicial
land use decisions and limited land use decisions made in direct
response to the application.
  (4) When a local government, a special district or a state
agency has notice that a notice of intent to appeal has been
filed with respect to a quasi-judicial land use decision or
limited land use decision described in subsection (1) of this
section:
  (a) The local government, the special district or the state
agency shall notify the board and all parties joined in the
single review proceeding that the local government, the special
district or the state agency has taken final action on the
application; and
  (b) The board shall notify parties, as necessary, of
adjustments to due dates under the timelines based on the tolling
of timelines pursuant to this section. + }
  SECTION 9. ORS 196.115 is amended to read:
  196.115. (1) For purposes of judicial review, decisions of the
Columbia River Gorge Commission shall be subject to review solely
as provided in this section, except as otherwise provided by the
Columbia River Gorge National Scenic Area Act, P.L. 99-663.
  (2)(a) A final action or order by the commission in a review or
appeal of any action of the commission pursuant to section 10(c)
or 15(b)(4) of the Columbia River Gorge National Scenic Area Act,
or a final action or order by the commission in a review or
appeal of any action of a county pursuant to section 15(a)(2) or
15(b)(4) of the Columbia River Gorge National Scenic Area Act,
shall be reviewed by the Court of Appeals on a petition for
judicial review filed and served as provided in subsections (3)
and (4) of this section and ORS 183.482.
  (b) On a petition for judicial review under paragraph (a) of
this subsection the Court of Appeals also shall review the action
of the county that is the subject of the commission's order, if
requested in the petition.
  (c) The Court of Appeals shall issue a final order on review
under this subsection within the time limits provided by ORS
197.855.
  (d) In lieu of judicial review under paragraphs (a) and (b) of
this subsection, a county action may be appealed to the Land Use
Board of Appeals under ORS 197.805 to 197.855. A notice of intent
to appeal the county's action shall be filed not later than 21
days after the commission's order on the county action becomes
final.
  (e) Notwithstanding ORS 197.835, the scope of review in an
appeal pursuant to paragraph (d) of this subsection shall not
include any issue relating to interpretation or implementation of
the Columbia River Gorge National Scenic Area Act, P.L. 99-663,
and any issue related to such interpretation or implementation
shall be waived by the filing of an appeal under paragraph (d) of
this subsection.
  (f) After county land use ordinances are approved pursuant to
sections 7(b) and 8(h) to (k) of the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, the Land Use Board of
Appeals shall not review land use decisions within the general
management area or special management area for compliance with
the statewide planning goals. The limitation of this paragraph
shall not apply if the Land Conservation and Development
Commission decertifies the management plan pursuant to ORS
196.107.
  (3)(a) If a petition for judicial review of a commission order
is filed pursuant to subsection (2)(a) of this section, the
procedures to be followed by the parties, the commission and the
court, and the court's review, shall be in accordance with ORS
183.480, 183.482 (1) to (7), 183.485, 183.486, 183.490 and
183.497, except as this section or the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, otherwise provides.
  (b) Notwithstanding any provision of ORS 183.482:
  (A) The commission shall transmit the original record or the
certified copy of the entire record within 21 days after service
of a petition for judicial review is served on the commission;
and
  (B) The parties shall file briefs with the court within the
times allowed by rules of the court.
  (c) The court may affirm, reverse or remand the order. If the
court finds that the agency has erroneously interpreted a
provision of law and that a correct interpretation compels a
particular action, the court shall:
  (A) Set aside or modify the order; or
  (B) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
  (d) The court shall remand the order to the agency if the court
finds the agency's exercise of discretion to be:
  (A) Outside the range of discretion delegated to the agency by
law;
  (B) Inconsistent with an agency rule, an officially stated
agency position or a prior agency practice, unless the
inconsistency is explained by the agency; or
  (C) Otherwise in violation of a constitutional or statutory
provision.
  (e) The court shall set aside or remand the order if the court
finds that the order is not supported by substantial evidence in
the whole record.
  (f) Notwithstanding any other provision of this section, in any
case where review of a county action as well as a commission
order is sought pursuant to subsection (2)(a) and (b) of this
section, the court shall accept any findings of fact by the
commission which the court finds to be supported by substantial
evidence in the whole record, and such findings by the commission
shall prevail over any findings by the county concerning the same
or substantially the same facts.
  (4)(a) Except as otherwise provided by this section or the
Columbia River Gorge National Scenic Area Act, P.L. 99-663, if
review of a county action is sought pursuant to subsection (2)(b)
of this section, the procedures to be followed by the parties,
the county and the court, and the court's review, shall be in
accordance with those provisions governing review of county land
use decisions by the Land Use Board of Appeals set forth in ORS
197.830 (2) to (8),   { - (10), (15) and (16) - }   { + (11),
(16) and (17) + } and 197.835 (2) to (10), (12) and (13). As used
in this section, ' board' as used in the enumerated provisions
shall mean ' court' and the term 'notice of intent to appeal' in
ORS 197.830   { - (10) - }  { +  (11) + } shall refer to the
petition described in subsection (2) of this section.
  (b) In addition to the other requirements of service under this
section, the petitioner shall serve the petition upon the persons
and bodies described in ORS 197.830 (9), as a prerequisite to
judicial review of the county action.
  (c) In accordance with subsection (3)(b)(B) of this section, a
party to a review of both a commission order and a county action
shall file only one brief with the court, which shall address
both the commission order and the county action.
  (d) Review of a decision under ORS 197.830 to 197.845 shall be
confined to the record. Subject to subsection (3)(f) of this
section, the court shall be bound by any finding of fact of the
county for which there is substantial evidence in the whole
record. The court may appoint a master and follow the procedures
of ORS 183.482 (7) in connection with matters that the board may
take evidence for under ORS 197.835 (2).
  (5) Approval of county land use ordinances by the commission
pursuant to section 7 of the Columbia River Gorge National Scenic
Area Act, P.L. 99-663, may be reviewed by the Court of Appeals as
provided in ORS 183.482.
  (6) Notwithstanding ORS 183.484, any proceeding filed in
circuit court by or against the commission shall be filed with
the circuit court for the county in which the commission has a
principal business office or in which the land involved in the
proceeding is located.
  SECTION 10. 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) 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), 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) - }
 { +  (16) + }, 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 11.  { + (1) The amendments to 196.115, 197.796,
197.830, 197.832, 197.835, 197.840, 197.845 and 197.850 by
sections 1 to 6, 9 and 10 of this 2013 Act apply to the review of
land use decisions and limited land use decisions for which a
notice of intent to appeal is filed on or after the effective
date of this 2013 Act.
  (2) Section 8 of this 2013 Act applies to an application filed
on or after the effective date of this 2013 Act. + }
  SECTION 12.  { + This 2013 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2013 Act takes effect on
its passage. + }
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