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
B-Engrossed
Senate Bill 77
Ordered by the House June 4
Including Senate Amendments dated April 29 and House Amendments
dated June 4
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.
{ - 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. - }
Requires board to track and report on website data related to
land use reviews and results of reviews.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to appellate review of land use decisions; creating new
provisions; amending ORS 197.830; 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 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.
(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 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.
(10)(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) 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) of this
section.
(12) 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) 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) 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) 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) 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) Orders issued under this section may be enforced in
appropriate judicial proceedings.
(17)(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) 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.
{ + (19) 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. The board
shall track and report reviews under this paragraph in categories
established by the board.
(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) A list of respondents, the number of reviews involving each
respondent and the rate at which reviews involving the respondent
have resulted in decisions of the board to uphold, reverse or
remand the land use decision or limited land use decision.
Additionally, when a respondent is the local government that made
the land use decision or limited land use decision, the board
shall track whether the local government appears before the
board.
(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. { + The amendments to ORS 197.830 by section 1 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. + }
SECTION 3. { + 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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