Bill Text: OR SB839 | 2011 | Regular Session | Introduced
Bill Title: Relating to siting of industrial uses; appropriating money.
Sponsorship: Committee Bill
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB839 Detail]
Download: Oregon-2011-SB839-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3528
Senate Bill 839
Sponsored by COMMITTEE ON BUSINESS, TRANSPORTATION AND ECONOMIC
DEVELOPMENT
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.
Authorizes designation of regionally significant industrial
areas. Allows for expedited permitting of industrial uses in
regionally significant industrial areas.
Establishes Economic Recovery Review Council. Authorizes
council to perform expedited site reviews for proposed industrial
development projects that have state significance.
Establishes Economic Recovery Review Council Fund and
continuously appropriates moneys in fund to council for purposes
of performing expedited site reviews.
Sunsets council, fund and authority for expedited site reviews
for proposed industrial development projects of state
significance on January 2 of first even-numbered year after
notification that annual average unemployment rate for most
recent calendar year in Oregon is less than eight percent.
A BILL FOR AN ACT
Relating to siting of industrial uses; and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The Legislative Assembly finds and declares
that:
(1) Certain investments in industrial development that provides
above-average wages and employs a skilled workforce are of such
significance to the economic recovery of the State of Oregon that
the development merits an expedited site review process.
(2) Expedited site review for proposed industrial development
projects of state significance bolsters the economies of local
communities and contributes to the economic recovery of the State
of Oregon as a whole. + }
{ +
INDUSTRIAL DEVELOPMENT PROJECTS OF STATE SIGNIFICANCE + }
SECTION 2. { + (1) Industrial development projects of state
significance are projects that:
(a) Create jobs with average wages above 180 percent of the
minimum wage.
(b) Create a large number of new jobs in relation to the
economy and population of the area directly impacted by the
development.
(c) Create jobs in manufacturing, research and development, or
resource-related industries.
(d) Involve a significant investment of capital in relation to
the economy and population of the area directly impacted by the
development.
(e) Have community support, as indicated by a resolution of the
governing body of the local government within whose jurisdiction
the development would occur.
(f) Do not require:
(A) An exception to a statewide land use planning goal taken
under ORS 197.732; or
(B) A change to the acknowledged comprehensive plan or land use
regulations of the local government within whose jurisdiction the
development would occur.
(2) In lieu of filing an application for a discretionary permit
under ORS 215.402 to 215.438 or 227.160 to 227.186, a person may
file an application for expedited site review of an industrial
development project that the applicant believes will qualify as
an industrial development project of state significance.
(3) The Economic Recovery Review Council, established under
section 3 of this 2011 Act, may expedite the permitting of an
industrial development project of state significance through an
expedited site review process in which the council reviews the
application, by applying state and local standards and criteria
and after providing an opportunity for public participation, to
determine whether the proposed project complies with the
standards and criteria.
(4) An owner or developer of a proposed industrial development
project may apply to the council for expedited site review. The
owner or developer must include with the application evidence
that the project meets the criteria for state significance set
forth in subsection (1) of this section.
(5) If the council determines under subsection (3) of this
section that the proposed project is an industrial development
project of state significance, the council shall apply the
standards and criteria that apply to review of each permit,
license and certificate required for project development. If the
council determines that the permits, licenses and certificates
would be issued, the council shall approve the project by issuing
a site permit.
(6) The council may charge the applicant a fee for costs
reasonably incurred to conduct the expedited site review. The
council shall deposit moneys received under this section in the
Economic Recovery Review Council Fund established under section 5
of this 2011 Act.
(7) Issuance of a site permit by the council under this section
binds public bodies, as defined in ORS 174.109, as to the
approval of the site and the operation of the industrial
development project on the site. Public bodies shall:
(a) Issue the permits, licenses and certificates required for
the industrial development project;
(b) Enter into intergovernmental agreements as necessary for
construction and operation of the project; and
(c) Subject to the provisions of this section, exercise
enforcement authority over each permit, license or certificate
issued by the public body.
(8) A person adversely affected by a final decision of the
council may appeal on the record before the council to the Oregon
Court of Appeals. + }
{ +
ECONOMIC RECOVERY REVIEW COUNCIL + }
SECTION 3. { + (1) There is established an Economic Recovery
Review Council, consisting of five members who serve in their
respective roles as the directors of:
(a) The Oregon Business Development Department.
(b) The Department of Land Conservation and Development.
(c) The Department of Transportation.
(d) The Department of Environmental Quality.
(e) The Department of State Lands.
(2) Each member serves during the member's tenure in the role
described in subsection (1) of this section.
(3) Members of the council are not entitled to compensation,
but at the discretion of the council may be reimbursed from funds
available to the council for actual and necessary travel and
other expenses incurred by them in the performance of their
official duties, in the manner and amount provided in ORS
292.495.
(4) The council shall select one of its members as chairperson
and another as vice chairperson, for such terms and with duties
and powers necessary for the performance of the functions of such
offices as the council determines.
(5) A majority of the members of the council constitutes a
quorum for the transaction of business.
(6) If the council has at least one application for expedited
site review under consideration, the council shall meet at least
once every ___ months at a date, time and place determined by the
council. The council may also meet at other dates, times and
places specified by the call of the chairperson or of a majority
of the members of the council. + }
SECTION 4. { + (1) The Economic Recovery Review Council is an
independent council that reports directly to the Governor. For
the purposes of the responsibilities of the council, the members
of the council are not responsible to the boards or commissions
to whom the members report as directors of their respective state
agencies.
(2) The council must be funded by the transfer of funds from
each agency whose director is a member of the council. The
council shall deposit moneys received pursuant to this subsection
in the Economic Recovery Review Council Fund established under
section 5 of this 2011 Act.
(3) The Oregon Business Development Department shall provide
office space for the council.
(4) The council may employ an executive director.
(5) The designation of the executive director must be by
written order, filed with the Secretary of State.
(6) Subject to any applicable provisions of ORS chapter 240,
the executive director shall appoint all subordinate officers and
employees of the council, prescribe their duties and fix their
compensation.
(7) The council may establish advisory and technical committees
the council considers necessary to aid and advise the council in
the performance of council functions. The committees may be
continuing or temporary committees. The council shall determine
the representation, membership, terms and organization of the
committees and shall appoint the committees' members.
(8) Members of the committees are not entitled to compensation,
but at the discretion of the council may be reimbursed from funds
available to the council for actual and necessary travel and
other expenses incurred by them in the performance of their
official duties, in the manner and amount provided in ORS
292.495.
(9) In accordance with applicable provisions of ORS chapter
183, the council may adopt rules necessary for the administration
of sections 1 to 5 of this 2011 Act. + }
SECTION 5. { + (1) The Economic Recovery Review Council Fund
is established in the State Treasury, separate and distinct from
the General Fund. Interest earned by the Economic Recovery Review
Council Fund shall be credited to the fund.
(2) Moneys in the Economic Recovery Review Council Fund are
continuously appropriated to the Economic Recovery Review Council
for the purpose of administering the provisions of sections 1 to
5 of this 2011 Act.
(3) The Economic Recovery Review Council Fund consists of
moneys:
(a) Collected by the council from the fees authorized by
section 2 (6) of this 2011 Act.
(b) Transferred to the council pursuant to section 4 (2) of
this 2011 Act.
(c) Any other moneys appropriated to the council. + }
{ +
REGIONALLY SIGNIFICANT INDUSTRIAL AREAS + }
SECTION 6. { + As used in sections 6 to 11 of this 2011 Act:
(1) 'Industrial use' means employment activities, including,
but not limited to, manufacturing, assembly, fabrication,
processing, storage, logistics, warehousing, importation,
distribution and transshipment and research and development, that
generate income from the design, development, production,
handling or distribution of goods.
(2) 'Regionally significant industrial area' means an area
planned and zoned for industrial use that:
(a) Contains vacant sites, including brownfields, that are
suitable for the location of new industrial uses or the expansion
of existing industrial uses and that collectively can provide
significant additional employment in the region;
(b) Has site characteristics that give the area significant
competitive advantages that are difficult or impossible to
replicate in the region;
(c) Has superior access to transportation and freight
infrastructure including, but not limited to, rail, port,
airport, multimodal freight or transshipment facilities, and
other major transportation facilities or routes; and
(d) Is located in close proximity to major labor markets. + }
SECTION 7. { + (1) In cooperation with local governments and
private industry, the Oregon Business Development Department, the
Department of Land Conservation and Development and the
Department of Transportation shall identify regionally
significant industrial areas.
(2) The Land Conservation and Development Commission by rule
shall designate ___ to ___ regionally significant industrial
areas within three years after the effective date of this 2011
Act.
(3) The future employment potential of a regionally significant
industrial area is subject to protection from conflicting
development in the following ways:
(a) Local governments may not plan or zone the area in a manner
that would:
(A) Prevent industrial uses within the area; or
(B) Allow uses that cause conflict with industrial uses.
(b) Local governments shall:
(A) Buffer regionally significant industrial areas as
appropriate to avoid or minimize conflicts with surrounding uses;
and
(B) Mitigate for any loss in employment potential within a
regionally significant industrial area.
(4) If ___ percent of the vacant developable land within a
regionally significant industrial area has not been developed
within ___ years after designation of the area, the commission by
rule may allow protections from conflicting development described
in subsection (3) of this section to be altered or eliminated.
(5) Within a regionally significant industrial area, a new
industrial use or the expansion of an existing industrial use is
eligible for an expedited industrial use permit if the new or
expanded use does not require a change to the acknowledged
comprehensive plan or land use regulations. + }
SECTION 8. { + (1) When an applicant requests review of an
application for an expedited industrial use permit under this
section, in lieu of the procedure set forth in its comprehensive
plan and land use regulations, the local government shall use the
following procedures:
(a) If the application for an expedited industrial use permit
is incomplete, the local government shall notify the applicant of
exactly what information is missing within 21 days of receipt of
the application and allow the applicant to submit the missing
information. For purposes of computation of time under this
section, the application is deemed complete on the date the
applicant submits the requested information or refuses in writing
to submit it.
(b) If the application for an expedited industrial use permit
is complete when first submitted or the applicant submits the
requested additional information within 180 days of the date the
application was first submitted, the local government shall
approve or deny the application on the basis of the standards and
criteria that were applicable at the time the application was
first submitted.
(2) The local government shall provide written notice of the
receipt of the completed application for an expedited industrial
use permit to the state agencies, local governments and special
districts responsible for providing public facilities or services
to the site of the proposed industrial development project and to
owners of property located within 100 feet of the entire
contiguous site for which the application is made. The
notification list must be compiled from the most recent property
tax assessment roll. For purposes of appeal to the referee under
section 10 of this 2011 Act, this requirement is deemed to have
been met when the local government can provide an affidavit or
other certification that the notice was given. The local
government shall also provide notice to a neighborhood or
community planning organization recognized by the governing body
when the boundaries of the planning organization include the site
of the proposed industrial development project.
(3) The notice required under subsection (2) of this section
shall:
(a) State that issues:
(A) Providing the basis for an appeal to the referee must be
raised in writing prior to the expiration of the comment period;
and
(B) Must be raised with sufficient specificity to enable the
local government to respond to the issue.
(b) Set forth, by commonly used citation, the applicable
criteria for the decision.
(c) Set forth the street address or other easily understood
geographical reference to the site of the proposed industrial
development project.
(d) State the date, time and place that comments are due.
(e) State a date, time and place where copies of all evidence
submitted by the applicant will be available for review.
(f) Include the name and telephone number of a local government
contact person.
(g) Briefly summarize the local decision-making process for
approval or denial of the application for an expedited industrial
use permit.
(4) After notice under subsections (2) and (3) of this section,
the local government shall:
(a) Provide a 14-day period for submission of written comments
prior to the decision.
(b) Make a decision to approve or deny the application for an
expedited industrial use permit within 63 days after receiving a
completed application, based on whether the application satisfies
the substantive requirements of the local government's
comprehensive plan and land use regulations. An approval may
include conditions to ensure that the proposed industrial
development project meets the applicable comprehensive plan and
land use regulations. For applications subject to this section,
the local government:
(A) May not hold a hearing on the application; and
(B) Shall issue a written determination of compliance or
noncompliance with the applicable comprehensive plan and land use
regulations that includes a summary statement explaining the
determination. The summary statement may be in any form
reasonably intended to communicate the local government's basis
for the determination.
(c) Provide notice of the decision to the applicant, and to a
person or organization that received notice under subsection (2)
of this section, within 63 days of the date of a completed
application. The notice of decision shall include:
(A) The summary statement described in paragraph (b)(B) of this
subsection; and
(B) An explanation of appeal rights under section 10 of this
2011 Act. + }
SECTION 9. { + (1) Except as provided in subsection (2) of
this section, if a local government does not make a decision on
an application for approval of an expedited industrial use permit
within 63 days after the application is deemed complete under
section 8 of this 2011 Act, the applicant may apply in the
circuit court for the county in which the application was filed
for a writ of mandamus to compel the local government to issue
the permit. The circuit court shall issue the writ unless the
local government shows that approval of the permit would violate
a substantive provision of the applicable comprehensive plan and
land use regulations or the requirements of section 7 of this
2011 Act. A decision of the circuit court under this section may
be appealed only to the Oregon Court of Appeals.
(2) After seven days' notice to the applicant, the governing
body of the local government may, at a regularly scheduled public
meeting, take action to extend the 63-day time period to a date
certain for one or more applications for an expedited industrial
use permit prior to the expiration of the 63-day period, based on
a determination that an unexpected or extraordinary increase in
applications for expedited industrial use permits makes action
within 63 days impracticable. An extension may not be granted to
a date more than 120 days after the application was deemed
complete under section 8 of this 2011 Act. Upon approval of an
extension, the provisions of sections 7 to 11 of this 2011 Act,
including the mandamus remedy provided by subsection (1) of this
section, remain applicable to the application for an expedited
industrial use permit, except that the extended period must be
substituted for the 63-day period wherever applicable.
(3) The decision to approve or not approve an extension of time
under subsection (2) of this section is not a land use decision
or limited land use decision. + }
SECTION 10. { + (1) An appeal of a decision made under section
8 of this 2011 Act must be made as follows:
(a) An appeal must be filed with the local government within 14
days of mailing of the notice of the decision under section 8 (4)
of this 2011 Act, and must be accompanied by a $300 deposit for
costs.
(b) A decision may be appealed by:
(A) The applicant; or
(B) Any person or organization entitled to notice under section
8 (2) of this 2011 Act that submits written comments in the time
period established under section 8 of this 2011 Act.
(c) An appeal must be based solely on allegations:
(A) Of a violation of the substantive provisions of the
applicable comprehensive plan and land use regulations;
(B) Of unconstitutionality of the decision;
(C) That the application is not eligible for review under
sections 7 to 11 of this 2011 Act and should be reviewed as a
land use decision or limited land use decision; or
(D) That the parties' substantive rights have been
substantially prejudiced by an error in procedure by the local
government.
(2) The local government shall appoint a referee to decide the
appeal of a decision made under sections 7 to 11 of this 2011
Act. The referee may not be an employee or official of the local
government. However, a local government that has designated a
hearings officer under ORS 215.406 or 227.165 may designate the
hearings officer as the referee for appeals of a decision made
under sections 7 to 11 of this 2011 Act.
(3) Within seven days after being appointed to decide the
appeal, the referee shall notify the applicant, the local
government, the appellant if other than the applicant, any person
or organization entitled to notice under section 8 (2) of this
2011 Act that provided written comments to the local government,
and all providers of public facilities and services entitled to
notice under section 8 (2) of this 2011 Act, and advise them of
the manner in which they may participate in the appeal. A person
or organization that provided written comments to the local
government but did not file an appeal under subsection (1) of
this section may participate only with respect to the issues
raised in the written comments submitted by that person or
organization. The referee may use any procedure for
decision-making consistent with the interests of the parties to
ensure a fair opportunity to present information and argument.
The referee shall provide the local government an opportunity to
explain its decision. However, the referee is not limited to
reviewing the local government decision and may consider
information not presented to the local government.
(4)(a) The referee shall apply the substantive requirements of
the local government's comprehensive plan and land use
regulations. If the referee determines that the proposed
industrial development project does not qualify for an expedited
industrial use permit as described in section 7 of this 2011 Act,
the referee shall remand the application for consideration as a
land use decision or limited land use decision. In all other
cases, the referee shall seek to identify means by which the
application can satisfy the applicable requirements.
(b) The referee shall make a written decision approving or
denying the application for an expedited industrial use permit or
approving the application with conditions designed to ensure that
the proposed industrial development project satisfies the
applicable comprehensive plan and land use regulations, within 42
days of the filing of an appeal. The referee may not remand the
application to the local government for any reason other than as
set forth in this subsection.
(5) Unless the governing body of the local government finds
exigent circumstances, a referee who fails to issue a written
decision within 42 days of the filing of an appeal shall receive
no compensation for service as referee in the appeal.
(6) Notwithstanding any other provision of law, the referee
shall order the local government to refund the deposit for costs
paid under subsection (1) of this section to an appellant that
materially improves the appellant's position from the decision of
the local government. The referee shall assess the costs of the
appeal in excess of the deposit for costs, up to a maximum of
$500, including the deposit for costs paid under subsection (1)
of this section, against an appellant that does not materially
improve the appellant's position from the decision of the local
government. The local government shall pay the portion of the
costs of the appeal not assessed against the appellant. The costs
of the appeal include the compensation paid the referee and costs
incurred by the local government, but not the costs of other
parties.
(7) The Land Use Board of Appeals does not have jurisdiction to
consider any decisions, aspects of decisions or actions made
under sections 6 to 11 of this 2011 Act.
(8) A party to a proceeding before a referee under this section
may seek judicial review of the referee's decision in the manner
provided for review of final orders of the Land Use Board of
Appeals under ORS 197.850 and 197.855. The Oregon Court of
Appeals shall review decisions of the referee in the same manner
as provided for review of final orders of the Land Use Board of
Appeals in those statutes. However, notwithstanding ORS 197.850
(9) or any other provision of law, the court shall reverse or
remand the decision only if the court finds:
(a) That the decision does not concern an expedited industrial
use permit as described in section 7 of this 2011 Act and the
appellant raised this issue in proceedings before the referee;
(b) That there is a basis to vacate the decision as described
in ORS 36.705 (1)(a) to (d), or a basis for modification or
correction of an award as described in ORS 36.710; or
(c) That the decision is unconstitutional. + }
SECTION 11. { + Each city and county shall establish a fee for
an application for an expedited industrial use permit. The fee
must be set at a level calculated to recover the estimated full
cost of processing an application, including the cost of appeals
to the referee under section 10 of this 2011 Act, based on the
estimated average cost of the applications. Within one year after
establishing the fee required under this section, the city or
county shall review and revise the fee, if necessary, to reflect
actual costs based on experience processing applications under
sections 6 to 11 of this 2011 Act. + }
{ +
ABOLISHMENT OF ECONOMIC RECOVERY REVIEW COUNCIL + }
{ +
AND ECONOMIC RECOVERY REVIEW COUNCIL FUND + }
SECTION 12. { + (1) On the date specified in section 13 of
this 2011 Act:
(a) The Economic Recovery Review Council established under
section 3 of this 2011 Act is abolished and the tenure of office
of the members of the council, the executive director of the
council and all employees ceases.
(b) The Economic Recovery Review Council Fund established under
section 5 of this 2011 Act is abolished. The Economic Recovery
Review Council shall allocate and redistribute the unexpended
balance of moneys in the fund to the state agencies that funded
the council, as described in section 4 (2) of this 2011 Act.
(2) The members of the council shall allocate and deliver to
the respective state agencies whose directors served as members
of the council all records and property within the jurisdiction
of the council, and the state agencies whose directors served on
the council shall take possession of the records and property.
The Governor shall resolve any dispute relating to the allocation
and delivery of records and property under this section, and the
Governor's decision is final.
(3) The abolishment of the council does not relieve a person of
a liability, duty or obligation accruing under or with respect to
the duties, functions and powers abolished by this section. The
Oregon Department of Administrative Services may undertake the
collection or enforcement of any such liability, duty or
obligation.
(4) The rights and obligations of the council legally incurred
under contracts, leases and business transactions executed,
entered into or begun before the date specified in section 13 of
this 2011 Act are transferred to the Oregon Department of
Administrative Services. For the purpose of succession to these
rights and obligations, the department is a continuation of the
council and not a new authority. + }
{ +
SUNSET OF ECONOMIC RECOVERY REVIEW COUNCIL + }
{ +
AND EXPEDITED SITE REVIEW + }
SECTION 13. { + Sections 1 to 5 of this 2011 Act are repealed
January 2 of the first even-numbered year after the Employment
Department notifies the Economic Recovery Review Council and the
Office of the Legislative Counsel that the annual average
unemployment rate for the most recent calendar year in Oregon is
less than eight percent. + }
{ +
UNIT CAPTIONS + }
SECTION 14. { + The unit captions used in this 2011 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act. + }
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