68th OREGON LEGISLATIVE ASSEMBLY--1995 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 1580
House Bill 2114
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Natural Resources)
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.
Restricts Land Conservation and Development Commission
authority to matters of statewide concern. Defines terms. Makes
related changes.
A BILL FOR AN ACT
Relating to division of responsibilities in land use planning
process; creating new provisions; and amending ORS 197.013,
197.015, 197.040, 197.230, 197.340 and 197.732.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 197.013 is amended to read:
197.013. { + (1) Except as pertains to matters of local
significance, + } implementation and enforcement of acknowledged
comprehensive plans and land use regulations are matters of
statewide concern.
{ + (2) Matters of local significance are all planning and
zoning matters that are not described as matters of statewide
concern.
(3) Matters of statewide concern are:
(a) Major transportation systems.
(b) Major industrial facilities.
(c) Major commercial developments.
(d) Housing for:
(A) Persons of lower, middle and fixed income; and
(B) Major residential developments.
(e) Major recreational facilities, including the siting of
destination resorts.
(f) Major correctional facilities.
(g) Public facilities, including:
(A) Major waste treatment and disposal facilities; and
(B) Major public utilities facilities.
(h) Declaration of moratoria on construction and land
development by local governments.
(i) Protection of the following resources:
(A) Estuaries;
(B) Coastal shorelands;
(C) Beaches and dunes;
(D) Ocean resources;
(E) Willamette River Greenway;
(F) Primary farmland and primary forestland; and
(G) Natural and scenic resources as described in ORS 197.230,
and subject to the provisions thereof.
(j) Operations conducted for:
(A) Mining and processing of geothermal resources, as defined
in ORS 522.005, and gas and oil, as defined in ORS 520.005;
(B) Mining of aggregate resources;
(C) Mining of mineral and other subsurface resources not
described in subparagraph (B) of this paragraph;
(D) Processing, as defined in ORS 517.750, of aggregate into
asphalt or portland cement; and
(E) Processing of mineral resources and subsurface resources
not otherwise described in this paragraph. + }
{ + (4) As used in this section, 'major' means having
significant impacts on two or more counties or special
districts. + }
SECTION 2. ORS 197.015 is amended to read:
197.015. As used in ORS chapters 195, 196 and 197, unless the
context requires otherwise:
(1) 'Acknowledgment' means a commission order that certifies
that a comprehensive plan and land use regulations, land use
regulation or plan or regulation amendment complies with the
goals or certifies that Metro land use planning goals and
objectives, Metro regional framework plan, amendments to Metro
planning goals and objectives or amendments to the Metro regional
framework plan comply with the statewide planning goals.
(2) 'Board' means the Land Use Board of Appeals or any member
thereof.
(3) 'Commission' means the Land Conservation and Development
Commission.
(4) 'Committee' means the Joint Legislative Committee on Land
Use.
(5) 'Comprehensive plan' means a generalized, coordinated land
use map and policy statement of the governing body of a local
government that interrelates all functional and natural systems
and activities relating to { + the rights of private landowners,
economic development, employment, housing, energy, public health
and safety, + } the use of lands, including but not limited to
sewer and water systems, transportation systems, educational
facilities, recreational facilities, and natural resources and
air and water quality management programs. 'Comprehensive' means
all-inclusive, both in terms of the geographic area covered and
functional and natural activities and systems occurring in the
area covered by the plan. 'General nature' means a summary of
policies and proposals in broad categories and does not
necessarily indicate specific locations of any area, activity or
use. A plan is 'coordinated' when the needs of all levels of
governments, semipublic and private agencies { + , private
landowners + } and the citizens of Oregon have been considered
and accommodated as much as possible. 'Land' includes water, both
surface and subsurface, and the air.
(6) 'Department' means the Department of Land Conservation and
Development.
(7) 'Director' means the Director of the Department of Land
Conservation and Development.
(8) 'Goals' means the mandatory statewide planning standards
adopted by the commission pursuant to ORS chapters 195, 196 and
197.
(9) 'Guidelines' means suggested approaches designed to aid
cities and counties in preparation, adoption and implementation
of comprehensive plans in compliance with goals and to aid state
agencies and special districts in the preparation, adoption and
implementation of plans, programs and regulations in compliance
with goals. Guidelines shall be advisory and shall not limit
state agencies, cities, counties and special districts to a
single approach.
(10) 'Land use decision':
(a) Includes:
(A) A final decision or determination made by a local
government or special district that concerns the adoption,
amendment or application of:
(i) The goals;
(ii) A comprehensive plan provision;
(iii) A land use regulation; or
(iv) A new land use regulation; or
(B) A final decision or determination of a state agency other
than the commission with respect to which the agency is required
to apply the goals; and
(b) Does not include a decision of a local government:
(A) Which is made under land use standards which do not require
interpretation or the exercise of policy or legal judgment;
(B) Which approves or denies a building permit issued under
clear and objective land use standards;
(C) Which is a limited land use decision; or
(D) Which determines final engineering design, construction,
operation, maintenance, repair or preservation of a
transportation facility which is otherwise authorized by and
consistent with the comprehensive plan and land use regulations;
and
(c) Does not include a decision by a school district to close a
school.
(11) 'Land use regulation' means any local government zoning
ordinance, land division ordinance adopted under ORS 92.044 or
92.046 or similar general ordinance establishing standards for
implementing a comprehensive plan.
(12) 'Limited land use decision' is a final decision or
determination made by a local government pertaining to a site
within an urban growth boundary which concerns:
(a) The approval or denial of a subdivision or partition, as
described in ORS chapter 92.
(b) The approval or denial of an application based on
discretionary standards designed to regulate the physical
characteristics of a use permitted outright, including but not
limited to site review and design review.
(13) 'Local government' means any city, county or metropolitan
service district formed under ORS chapter 268 or an association
of local governments performing land use planning functions under
ORS 195.025.
(14) 'Metro' means a metropolitan service district organized
under ORS chapter 268.
(15) 'Metro planning goals and objectives' means the land use
goals and objectives that a metropolitan service district is
required to adopt under ORS 268.380 (1). The goals and objectives
do not constitute a comprehensive plan.
(16) 'Metro regional framework plan' means the regional
framework plan required by the 1992 Metro Charter or its separate
components. Neither the regional framework plan nor its
individual components constitute a comprehensive plan.
(17) 'New land use regulation' means a land use regulation
other than an amendment to an acknowledged land use regulation
adopted by a local government that already has a comprehensive
plan and land regulations acknowledged under ORS 197.251.
(18) 'Person' means any individual, partnership, corporation,
association, governmental subdivision or agency or public or
private organization of any kind. The Land Conservation and
Development Commission or its designee is considered a person for
purposes of appeal under ORS chapters 195 and 197.
(19) 'Special district' means any unit of local government,
other than a city, county, metropolitan service district formed
under ORS chapter 268 or an association of local governments
performing land use planning functions under ORS 195.025
authorized and regulated by statute and includes but is not
limited to: Water control districts, domestic water associations
and water cooperatives, irrigation districts, port districts,
regional air quality control authorities, fire districts, school
districts, hospital districts, mass transit districts and
sanitary districts.
(20) 'Voluntary association of local governments' means a
regional planning agency in this state officially designated by
the Governor pursuant to the federal Office of Management and
Budget Circular A-95 as a regional clearinghouse.
(21) 'Wetlands' means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
that are sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions.
SECTION 3. ORS 197.040 is amended to read:
197.040. (1) The { + Land Conservation and Development + }
Commission shall:
(a) Direct the performance by the Director { + of the
Department of Land Conservation and Development + } and the
director's staff of their functions under ORS chapters 195, 196
and 197.
(b) In accordance with the provisions of ORS 183.310 to
183.550, adopt rules that it considers necessary to carry out ORS
chapters 195, 196 and 197. In designing its administrative
requirements, the commission shall allow for the diverse
administrative and planning capabilities of local governments.
(c)(A) Adopt by rule in accordance with ORS 183.310 to 183.550
or by goal under ORS chapters 195, 196 { + , + } { - and - }
197 { + and 215, + } any statewide land use policies
{ + pertaining to matters of statewide concern + } that it
considers necessary to carry out ORS chapters 195, 196 { + , + }
{ - and - } 197 { + and 215 + }.
(B) Adopt by rule in accordance with ORS 183.310 to 183.550 any
procedures necessary to carry out ORS 215.402 (4)(b) and 227.160
(2)(b).
(C) Review decisions of the Land Use Board of Appeals and land
use decisions of the Court of Appeals and the Supreme Court
within 120 days of the date the decisions are issued to determine
if goal or rule amendments are necessary.
(d) Cooperate with the appropriate agencies of the United
States, this state and its political subdivisions, any other
state, any interstate agency, any person or groups of persons
with respect to land conservation and development.
(e) Appoint advisory committees to aid it in carrying out ORS
chapters 195, 196 and 197 and provide technical and other
assistance, as it considers necessary, to each such committee.
(2) Pursuant to ORS chapters 195, 196 and 197, the commission
shall:
(a) Adopt, amend and revise goals { + pertaining to matters of
statewide concern + } consistent with regional, county and city
concerns;
(b) Prepare, collect, provide or cause to be prepared,
collected or provided land use inventories;
(c) Prepare statewide planning guidelines;
(d) Review comprehensive plans for compliance with goals;
(e) Coordinate planning efforts of state agencies to assure
compliance with goals and compatibility with city and county
comprehensive plans; { +
(f) Ensure widespread property owner involvement and input in
all phases of the process; + }
{ - (f) - } { + (g) + } Insure widespread citizen
involvement and input in all phases of the process;
{ - (g) Review and recommend to the Legislative Assembly the
designation of areas of critical state concern; - }
(h) Report periodically to the Legislative Assembly and to the
committee; and
(i) Perform other duties required by law.
SECTION 4. ORS 197.230 is amended to read:
197.230. (1) In preparing, adopting and amending goals and
guidelines, the Department { + of Land Conservation and
Development + } and the { + Land Conservation and
Development + } Commission shall:
(a) Consider the existing comprehensive plans of local
governments and the plans and programs affecting land use of
state agencies and special districts in order to preserve
functional and local aspects of land conservation and
development.
(b) Give consideration to the following areas and activities:
(A) { - Lands adjacent to freeway interchanges - } { +
Private property rights + };
(B) Estuarine areas;
(C) Tide, marsh and wetland areas;
(D) Lakes and lakeshore areas;
(E) Wilderness, recreational and outstanding scenic areas;
(F) Beaches, dunes, coastal headlands and related areas;
(G) Wild and scenic rivers and related lands;
(H) Flood plains and areas of geologic hazard;
(I) { - Unique wildlife - } Habitats { + of threatened and
endangered wildlife species + }; { - and - }
(J) { - Agricultural land. - } { + Primary farmlands; and
(K) Primary forestlands. + }
(c) Make a finding of statewide need for the adoption of any
new goal or the amendment of any existing goal.
(d) Design goals to allow a reasonable degree of flexibility in
the application of goals by state agencies, cities, counties and
special districts.
(2) Goals shall not be land management regulations for
specified geographic areas established through designation of an
area of critical state concern under ORS 197.405.
SECTION 5. ORS 197.340 is amended to read:
197.340. (1) { + Except as provided in ORS 197.732 (3), + }
the { + Land Conservation and Development + } Commission, the
Department { + of Land Conservation and Development, other state
agencies + } and local governments shall give the goals equal
weight in { - the planning process - } { + any matter in
which the goals are required to be applied + }.
(2) The commission and the department shall consider and
recognize regional diversity and differences in regional needs
when making or reviewing a land use decision { + or otherwise
applying the goals + }.
SECTION 6. ORS 197.732 is amended to read:
197.732. (1) A local government may adopt an exception to a
goal { - when - } { + if + }:
(a) The land subject to the exception is physically developed
to the extent that it is no longer available for uses allowed by
the applicable goal;
(b) The land subject to the exception is irrevocably committed
as described by { + Land Conservation and Development + }
Commission rule to uses not allowed by the applicable goal
because existing adjacent uses and other relevant factors make
uses allowed by the applicable goal impracticable; or
(c) The following standards are met:
(A) Reasons justify why the state policy embodied in the
applicable goals should not apply;
(B) Areas which do not require a new exception cannot
reasonably accommodate the use; { + and + }
{ - (C) The long term environmental, economic, social and
energy consequences resulting from the use at the proposed site
with measures designed to reduce adverse impacts are not
significantly more adverse than would typically result from the
same proposal being located in areas requiring a goal exception
other than the proposed site; and - }
{ - (D) - } { + (C) + } The proposed uses are compatible
with other adjacent uses or will be so rendered through measures
designed to reduce adverse impacts.
{ + (2)(a) 'Areas,' as used in subsection (1)(c)(B) of this
section, is not intended to include lands not under the direct
ownership or control of the proponent of the exception. + }
{ - (2) - } { + (b) + } 'Compatible,' as used in subsection
{ - (1)(c)(D) - } { + (1)(c)(C) + } of this section, is not
intended as an absolute term meaning no interference or adverse
impacts of any type with adjacent uses.
(3) The commission shall adopt rules establishing under what
circumstances particular reasons may or may not be used to
justify an exception under subsection (1)(c)(A) of this section.
{ + Achieving a goal is a valid reason when adopting an
exception to another goal. + }
(4) A local government approving or denying a proposed
exception shall set forth findings of fact and a statement of
reasons which demonstrate that the standards of subsection (1) of
this section have or have not been met.
(5) Each notice of a public hearing on a proposed exception
shall specifically note that a goal exception is proposed and
shall summarize the issues in an understandable manner.
(6) Upon review of a decision approving or denying an
exception:
(a) The board or the commission shall be bound by any finding
of fact for which there is substantial evidence in the record of
the local government proceedings resulting in approval or denial
of the exception;
(b) The board upon petition, or the commission, shall determine
whether the local government's findings and reasons demonstrate
that the standards of subsection (1) of this section have or have
not been met; and
(c) The board or commission shall adopt a clear statement of
reasons which sets forth the basis for the determination that the
standards of subsection (1) of this section have or have not been
met.
(7) The commission shall by rule establish the standards
required to justify an exception to the definition of 'needed
housing' authorized by ORS 197.303 (3).
(8) As used in this section, 'exception' means a comprehensive
plan provision, including an amendment to an acknowledged
comprehensive plan, that:
(a) Is applicable to specific properties or situations and does
not establish a planning or zoning policy of general
applicability;
(b) Does not comply with some or all goal requirements
applicable to the subject properties or situations; and
(c) Complies with standards under subsection (1) of this
section.
(9) An exception acknowledged under ORS 197.251, 197.625 or
197.630 (1) (1981 Replacement Part) on or before August 9, 1983,
shall continue to be valid and shall not be subject to this
section. { +
(10) The process to adopt an exception to a goal pertains only
to matters of statewide concern as described in ORS 197.013. + }
SECTION 7. { + The Land Conservation and Development
Commission shall amend goals, in accordance with ORS 197.240 and
197.245, and amend and adopt rules and guidelines, as necessary,
to implement the provisions of this Act. + }
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