HOUSE COMMITTEE ON LAND USE

 

 

March 09, 2005   Hearing Room 50

1:30 P.M. Tapes  36 - 37

 

MEMBERS PRESENT:            Rep. Bill Garrard, Chair

Rep. Mitch Greenlick, Vice-Chair

Rep. Robert Ackerman

Rep. Mary Nolan

Rep. Patti Smith

Rep. Mac Sumner

 

MEMBER EXCUSED:             Rep. Gordon Anderson, Vice-Chair

 

STAFF PRESENT:                  Sam Litke, Committee Administrator

Lindsay Luckey, Committee Assistant

 

 

MEASURES/ISSUES HEARD:

                                                HB 2356 – Work Session

 

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 36, A

002

Chair Garrard

Calls the meeting to order at 1:35 p.m. and opens a work session on HB 2356.

HB 2356 – WORK SESSION

008

Sam Litke

Committee Administrator.  Reviews the public hearing, resulting work group and proposed amendments for HB 2356.

025

Rep. Sal Esquivel

HD 6.  Discusses -1 amendments (EXHIBIT A) as a result of the work group and explains that it revises two statutes; land use definitions in ORS 197 and the subdivision and partitions process in ORS 92. 

048

Chair Garrard

Asks if the amendment has his approval.

049

Rep. Esquivel

Responds affirmatively.

050

BJ Smith

Public and Government Relations Director, Clackamas County.  Directs committee to location of discussed changes on (EXHIBIT A) Page 6, lines 22-23.  ORS 197.015.12 clarifying the definition of a limited land use decision and notes the addition of the word “tentative” and “plan”. 

065

Rep. Greenlick

Asks if the amendments replace the bill and if the amendments are the same as the bill up to this point.

071

Smith

Responds that it is not exactly the same because there has been reorganization of the form and style.  Wants to point out the two places where substantive changes have been made.

078

Smith

References a second change on (EXHIBIT A) Page 3, lines 26-30 which adds a section, ORS 92.100 (6), to the chapter on approval of subdivisions and partitions.  Explains that the language clarifies that the last step is ministerial and not a land use or limited land use decision. 

108

Chair Garrard

Asked who in Legislative Counsel worked with them on these amendments.

110

Smith

Answers that Harrison Conley was the legislative counsel.

112

Chair Garrard

Requests that staff call Harrison Conley to the meeting.

120

Art Schlack

Association of Oregon Counties.  References the addition of an emergency clause on Page 8, lines 4-6 (EXHIBIT A) explaining it will make the provisions of HB 2356 effective immediately after passage.  Notes the intent of the -1 amendments to go back to original statutes.  Discusses reorganization done by Legislative Counsel and points out a section removed from Page 2, lines 12-15 and replaced on Page 3. 

145

Schlack

Discusses ambiguities in ORS 92 and challenges in reaching consensus.  Submits memorandum requesting  a number of groups be added to the bill as requestors and a report from the work group on the -1 amendments (EXHIBIT B) both illustrating consensus.

160

Schlack

Raises concern about language of amendment on Page 3, line 26 which reads “approval or denial of a final subdivision or partition plat” (EXHIBIT A) and clarifies that the party described “approves or fails to approve” and explains why “denial” is inappropriate.  Requests a conceptual amendment on Page 3, line 26 after “approval or” delete “denial of” and insert “failure to approve”.   With this request, urges the committee to send HB 2356 with the amended -1 amendments to the floor with a do-pass recommendation.

220

Chair Garrard

Discusses conceptual amendment to the amendment and asks for the input of Harrison Conley.

225

Harrison Conley

Deputy of Legislative Counsel.  Cites his concern with connotation of the word “failure”.  Expresses acceptance to make the requested change but   asks if the same would apply to the amendments in ORS 197.015 which uses the wording “approve or deny”.

240

Chair Garrard

References committee to Page 6, line 22.

242

Schlack

Emphasizes the centrality of this issue to the legislation explaining the process of “approval or denial” in reference to tentative subdivisions or partition plans and the “approval” or “failure to approve” not “deny” final subdivisions or partition plats.

250

Chair Garrard

Confirms that “failure to approve” would apply to a delay of approval due to administrative error, whereas a “denial” would end the process.

255

Schlack

Confirms.

257

Chair Garrard

Asks if this also applies to Page 6, line 24 which also uses the wording “approval or denial”.

260

Schlack

Responds negatively and explains its appropriateness.

275

Rep. Greenlick

Suggests the wording “approve or withhold approval”.

288

Schlack

Expresses agreement and confirms that it would have the same effect.

290

Rep. Greenlick

Asks Conley if there are limits to what the legislature can say is not a land use decision.

295

Conley

Responds that it is within the legislature’s purview to define “land use decisions” and “limited land use decisions”.

300

Rep. Greenlick

Notes its possible relevance in thinking about Measure 37.

305

Chair Garrard

Confirms that for the conceptual amendment they would be deleting the words “denial of” and replacing them with “withholding approval” and asks if that would be acceptable to Conley.

310

Conley

Suggests “approving or failing to approve a final subdivision or partition plat”.  Corrects to use word “withholding”.

315

Chair Garrard

Directs committee to stand at ease at 1:55 p.m.

316

Chair Garrard

Calls the meeting back to order at 1:58 p.m.

320

Conley

Suggests on Page 3, line 26 removing the words “approval or denial” and in their place substituting “approving or withholding approval”.

325

Chair Garrard

Repeats the change and clarifies that the final word added is “approval” or “approving”.

327

Conley

Confirms “approval”.

330

Chair Garrard

Corrects the change to be “approval or withholding approval”.

335

Rep. Nolan

Suggests the wording “granting approval or withholding approval”.

340

Chair Garrard

States that on Page 3, (7), line 26 the conceptual amendment will be a deletion of the words “approval or denial” and insertion of the words “granting approval or withholding approval”.

346

Conley

Confirms this change.

349

Chair Garrard

Asks if this change is acceptable to Smith and Schlack.

352

Smith and Schlack

Affirms that it is. 

355

Rep. Ackerman

Refers to page 3, line 26 and asks if under the Administrative Procedures Act their intent could be misinterpreted.

357

Conley

Asks Rep. Ackerman to repeat his question.

359

Rep. Ackerman

Describes the process under the Administrative Procedures Act for a non-contested case and wants to make sure the amendments are not creating an unintended channel.

365

Conley

Responds he is not familiar enough with the uncontested case procedures to answer.

371

Rep. Ackerman

Doesn’t want to delay action but expresses concern in understanding all possible consequences.

375

Chair Garrard

Asks for Rep. Ackerman’s suggestion.

380

Rep. Ackerman

Responds that it may be wise to have counsel review the issue unless there is a more exclusive provision elsewhere in the bill.

385

Chris Crean

Land Use Practitioner.  Explains the judicial review process for final plats. 

 

TAPE 37, B

001

Crean

Mentions that the bill does not address judicial review of the planning staff in final plat approvals.

004

Conley

Agrees with Crean but restates his understanding of the question Rep. Ackerman asked and states that he is not clear if they have created the right for an administrative hearing.

011

Rep. Ackerman

Asks what the method of reviewing the subdivision or partition “standing alone”.

018

Conley

Responds that it is unclear if they have created the need for an administrative hearing. 

020

Rep. Ackerman

Concludes that it is not a process that leads to administrative decisions that could be appealed elsewhere.

022

Conley

Responds that they are taking it out of the land use process and the Land Use Board of Appeals’ (LUBA) jurisdiction.

024

Rep. Ackerman

States satisfaction with conclusions.

028

Chair Garrard

Asks Rep. Ackerman if he agrees with the corrected wording.

030

Rep. Ackerman

Confirms.

032

Chair Garrard

Asks Smith, Schlack and Crean if they agree to the wording “granting approval or withholding approval”.

035

Smith, Schlack, Crean

Agree.

040

Rep. Greenlick

MOTION:  Moves to ADOPT HB 2356-1 amendments dated 3/9/05.

 

 

VOTE:  6-0-1

AYE:            In a roll call vote, all members present vote Aye.

EXCUSED:  1 - Anderson

 

Chair Garrard

The motion CARRIES.

045

Rep. Greenlick

MOTION:  Moves to AMEND HB 2356-1 on page 3, in line 26, after "approval," delete "or denial," and on page 3, in line 26, after "(7)," insert "granting approval or withholding".

046

Rep. P Smith

Asks if the first “approval” will remain.

047

Chair Garrard

Responds affirmatively and notes it will now become the last word.

 

 

VOTE:  6-0-1

AYE:            In a roll call vote, all members present vote Aye.

EXCUSED:  1 - Anderson

 

Chair Garrard

The motion CARRIES.

055

Rep. Greenlick

MOTION:  Moves HB 2356 with -1 amendments AS AMENDED to the floor with a DO PASS recommendation.

 

 

VOTE:  6-0-1

AYE:            In a roll call vote, all members present vote Aye.

EXCUSED:  1 - Anderson

 

Chair Garrard

The motion CARRIES.

REP. ESQUIVEL will lead discussion on the floor.

079

Chair Garrard

Closes the work session on HB 2356 and adjourns the meeting at 2:10 p.m.

 

 

EXHIBIT SUMMARY

 

  1. HB 2356, -1 Amendments, Rep. Sal Esquivel, 8 pp
  2. HB 2356,  memorandum and written testimony, Art Schlack, 2 pp