Bill Text: OR HB4049 | 2012 | Regular Session | Introduced
Bill Title: Relating to the functions of entities created by statute; declaring an emergency.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2012-03-05 - In committee upon adjournment. [HB4049 Detail]
Download: Oregon-2012-HB4049-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 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 292
House Bill 4049
Sponsored by Representative LINDSAY (Presession filed.)
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 that person seeking to appeal land use decision or
limited land use decision to Land Use Board of Appeals must own,
or have ownership interest in, real property within _____ miles
of real property that is object of decision.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the functions of entities created by statute;
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 { + who owns,
or has an ownership interest in, real property that is
within _____ miles of real property that is an object of a land
use decision or limited land use decision + } may petition the
board for review of { - a - } { + the + } 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 { + who owns, or has an ownership interest in, real
property that is within _____ miles of real property that is an
object of the land use decision and who is + } adversely affected
by the decision may appeal the decision to the board under this
section:
(a) Within 21 days of actual notice { - where - }
{ + when + } notice is required; or
(b) Within 21 days of the date { - a - } { + the + } person
knew or should have known of the decision { - where no notice
is - } { + when notice is not + } 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 { + owns, or has an ownership interest in,
real property that is within _____ miles of real property that is
an object of the decision and 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 { + owns, or has an ownership
interest in, real property that is within _____ miles of real
property that is an object of the decision and 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 { + and the person owns, or has an ownership
interest in, real property that is within _____ miles of real
property that is an object of the decision and the person is
adversely affected or aggrieved by 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 { + who owns, or has an ownership interest in, real
property that is within _____ miles of real property that is an
object of the limited land use decision and who is + } adversely
affected by the decision may appeal the decision to the board
under this section:
(a) Within 21 days of actual notice { - where - }
{ + when + } notice is required; or
(b) Within 21 days of the date { - a - } { + the + } person
knew or should have known of the decision { - where no notice
is - } { + when notice is not + } 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 { + own, or have an ownership interest in,
real property that is within _____ miles of real property that is
an object of the land use decision or limited land use decision
and 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 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.
SECTION 2. { + The amendments to ORS 197.830 by section 1 of
this 2012 Act apply to persons filing notices of intent to appeal
on and after the effective date of this 2012 Act. + }
SECTION 3. { + This 2012 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2012 Act takes effect on its
passage. + }
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