Oregon Bulletin
January 1, 2011
Rule
Caption: Adopt permanent rules to provide
camping opportunities as temporary workforce housing related to construction
projects.
Adm.
Order No.: LCDD 11-2010
Filed with Sec. of
State: 11-23-2010
Certified to be
Effective: 11-23-10
Notice Publication
Date: 8-1-2010
Rules Amended: 660-033-0130
Rules Repealed: 660-033-0130(T)
Subject: Adopts amendments to OAR 660-033-0130 (16), (17, (22),
and (37) to allow on-site and off-site temporary housing opportunities to be
considered as part of a proposal to site an energy facility on agricultural
lands. Such facilities must be removed or converted to an allowed use under OAR
660-033-0130 (19), campgrounds, or other statute or rule when construction is
complete. Repealed temporary language in OAR 660-033-0130(19).
**This filing is
correcting the filing made on September 24, 2010. It includes the full text of
OAR 660-033-0130.
Rules Coordinator: Casaria Tuttle—(503) 373-0050, ext. 322
660-033-0130
Minimum Standards Applicable to
the Schedule of Permitted and Conditional Uses
The following standards apply to uses listed in OAR
660-033-0120 where the corresponding section number is shown on the chart for a
specific use under consideration. Where no numerical reference is indicated on
the chart, this division does not specify any minimum review or approval
criteria. Counties may include procedures and conditions in addition to those
listed in the chart as authorized by law:
(1) A dwelling on farmland may be considered
customarily provided in conjunction with farm use if it meets the requirements
of OAR 660-033-0135.
(2)(a) No enclosed structure with a design capacity
greater than 100 people, or group of structures with a total design capacity of
greater than 100 people, shall be approved in connection with the use within
three miles of an urban growth boundary, unless an exception is approved
pursuant to ORS 197.732 and OAR chapter 660, division 4, or unless the
structure is described in a master plan adopted under the provisions of OAR
chapter 660, division 34.
(b) Any enclosed structures or group of enclosed
structures described in subsection (a) within a tract must be separated by at
least one-half mile. For purposes of this section, “tract” means a tract as
defined by ORS 215.010(2) that is in existence as of the effective date of this
section.
(c) Existing facilities wholly within a farm use zone
may be maintained, enhanced or expanded on the same tract, subject to other
requirements of law, but enclosed existing structures within a farm use zone
within three miles of an urban growth boundary may not be expanded beyond the
requirements of this rule.
(3)(a) A dwelling may be approved if:
(A) The lot or parcel on which the dwelling will be
sited was lawfully created and was acquired and owned continuously by the
present owner as defined in subsection (3)(g) of this rule:
(i) Since prior to January 1, 1985; or
(ii) By devise or by intestate succession from a person
who acquired and had owned continuously the lot or parcel since prior to
January 1, 1985.
(B) The tract on which the dwelling will be sited does
not include a dwelling;
(C) The lot or parcel on which the dwelling will be
sited was part of a tract on November 4, 1993, no dwelling exists on another
lot or parcel that was part of that tract;
(D) The proposed dwelling is not prohibited by, and
will comply with, the requirements of the acknowledged comprehensive plan and
land use regulations and other provisions of law;
(E) The lot or parcel on which the dwelling will be
sited is not high-value farmland except as provided in subsections (3)(c) and
(d) of this rule;
(F) When the lot or parcel on which the dwelling will
be sited lies within an area designated in an acknowledged comprehensive plan
as habitat of big game, the siting of the dwelling is consistent with the
limitations on density upon which the acknowledged comprehensive plan and land
use regulations intended to protect the habitat are based.
(b) When the lot or parcel on which the dwelling will
be sited is part of a tract, the remaining portions of the tract are
consolidated into a single lot or parcel when the dwelling is allowed;
(c) Notwithstanding the requirements of paragraph
(3)(a)(E) of this rule, a single-family dwelling may be sited on high-value
farmland if:
(A) It meets the other requirements of subsections
(3)(a) and (b) of this rule;
(B) The lot or parcel is protected as high-value
farmland as defined in OAR 660-033-0020(8)(a); and
(C) A hearings officer of a county determines that:
(i) The lot or parcel cannot practicably be managed for
farm use, by itself or in conjunction with other land, due to extraordinary
circumstances inherent in the land or its physical setting that do not apply
generally to other land in the vicinity. For the purposes of this section, this
criterion asks whether the subject lot or parcel can be physically put to farm
use without undue hardship or difficulty because of extraordinary circumstances
inherent in the land or its physical setting. Neither size alone nor a parcel’s
limited economic potential demonstrate that a lot of parcel cannot be
practicably managed for farm use. Examples of “extraordinary circumstances
inherent in the land or its physical setting” include very steep slopes, deep
ravines, rivers, streams, roads, railroad or utility lines or other similar
natural or physical barriers that by themselves or in combination separate the
subject lot or parcel from adjacent agricultural land and prevent it from being
practicably managed for farm use by itself or together with adjacent or nearby
farms. A lot or parcel that has been put to farm use despite the proximity of a
natural barrier or since the placement of a physical barrier shall be presumed
manageable for farm use.
(ii) The dwelling will comply with the provisions of
ORS 215.296(1);
(iii) The dwelling will not materially alter the
stability of the overall land use pattern in the area by applying the standards
set forth in paragraph (4)(a)(D) of this rule.
(D) A local government shall provide notice of all
applications for dwellings allowed under subsection (3)(c) of this rule to the
State Department of Agriculture. Notice shall be provided in accordance with
the governing body’s land use regulations but shall be mailed at least 20
calendar days prior to the public hearing before the hearings officer under
paragraph (3)(c)(C) of this rule.
(d) Notwithstanding the requirements of paragraph (3)(a)(E)
of this rule, a single-family dwelling may be sited on high-value farmland if:
(A) It meets the other requirements of subsections
(3)(a) and (b) of this rule;
(B) The tract on which the dwelling will be sited is:
(i) Identified in OAR 660-033-0020(8)(c) or (d); and
(ii) Not high-value farmland defined in OAR
660-033-0020(8)(a); and
(iii) Twenty-one acres or less in size; and
(C)(i) The tract is bordered on at least 67 percent of
its perimeter by tracts that are smaller than 21 acres, and at least two such
tracts had dwellings on January 1, 1993; or
(ii) The tract is not a flaglot and is bordered on at
least 25 percent of its perimeter by tracts that are smaller than 21 acres, and
at least four dwellings existed on January 1, 1993, within 1/4 mile of the
center of the subject tract. Up to two of the four dwellings may lie within an
urban growth boundary, but only if the subject tract abuts an urban growth
boundary; or
(D) The tract is a flaglot and is bordered on at least
25 percent of its perimeter by tracts that are smaller than 21 acres, and at
least four dwellings existed on January 1, 1993, within 1/4 mile of the center
of the subject tract and on the same side of the public road that provides
access to the subject tract. The governing body of a county must interpret the
center of the subject tract as the geographic center of the flaglot if the
applicant makes a written request for that interpretation and that
interpretation does not cause the center to be located outside the flaglot. Up
to two of the four dwellings may lie within an urban growth boundary, but only
if the subject tract abuts an urban growth boundary:
(i) “flaglot” means a tract containing a narrow strip
or panhandle of land providing access from the public road to the rest of the
tract.
(ii) “Geographic center of the flaglot” means the point
of intersection of two perpendicular lines of which the first line crosses the
midpoint of the longest side of a flaglot, at a 90-degree angle to the side,
and the second line crosses the midpoint of the longest adjacent side of the
flaglot.
(e) If land is in a zone that allows both farm and
forest uses is acknowledged to be in compliance with both Goals 3 and 4 and may
qualify as an exclusive farm use zone under ORS chapter 215, a county may apply
the standards for siting a dwelling under either section (3) of this rule or
OAR 660-006-0027, as appropriate for the predominant use of the tract on
January 1, 1993;
(f) A county may, by application of criteria adopted by
ordinance, deny approval of a dwelling allowed under section (3) of this rule
in any area where the county determines that approval of the dwelling would:
(A) Exceed the facilities and service capabilities of
the area;
(B) Materially alter the stability of the overall land
use pattern of the area; or
(C) Create conditions or circumstances that the county
determines would be contrary to the purposes or intent of its acknowledged
comprehensive plan or land use regulations.
(g) For purposes of subsection (3)(a) of this rule,
“owner” includes the wife, husband, son, daughter, mother, father, brother,
brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law,
mother-in-law, father-in-law, aunt, uncle, nephew, stepparent, stepchild,
grandparent or grandchild of the owner or a business entity owned by any one or
a combination of these family members;
(h) The county assessor shall be notified that the
governing body intends to allow the dwelling.
(i) When a local government approves an application for
a single-family dwelling under section (3) of this rule, the application may be
transferred by a person who has qualified under section (3) of this rule to any
other person after the effective date of the land use decision.
(4) Requires approval of the governing body or its
designate in any farmland area zoned for exclusive farm use:
(a) In the Willamette Valley, the use may be approved
if:
(A) The dwelling or activities associated with the
dwelling will not force a significant change in or significantly increase the
cost of accepted farming or forest practices on nearby lands devoted to farm or
forest use;
(B) The dwelling will be sited on a lot or parcel that
is predominantly composed of Class IV through VIII soils that would not, when
irrigated, be classified as prime, unique, Class I or II soils;
(C) The dwelling will be sited on a lot or parcel
created before January 1, 1993;
(D) The dwelling will not materially alter the
stability of the overall land use pattern of the area. In determining whether a
proposed nonfarm dwelling will alter the stability of the land use pattern in
the area, a county shall consider the cumulative impact of possible new nonfarm
dwellings and parcels on other lots or parcels in the area similarly situated.
To address this standard, the county shall:
(i) Identify a study area for the cumulative impacts
analysis. The study area shall include at least 2000 acres or a smaller area
not less than 1000 acres, if the smaller area is a distinct agricultural area
based on topography, soil types, land use pattern, or the type of farm or ranch
operations or practices that distinguish it from other, adjacent agricultural
areas. Findings shall describe the study area, its boundaries, the location of
the subject parcel within this area, why the selected area is representative of
the land use pattern surrounding the subject parcel and is adequate to conduct
the analysis required by this standard. Lands zoned for rural residential or
other urban or nonresource uses shall not be included in the study area;
(ii) Identify within the study area the broad types of
farm uses (irrigated or nonirrigated crops, pasture or grazing lands), the
number, location and type of existing dwellings (farm, nonfarm, hardship,
etc.), and the dwelling development trends since 1993. Determine the potential
number of nonfarm/lot-of-record dwellings that could be approved under
subsections (3)(a), (3)(d) and section (4) of this rule, including
identification of predominant soil classifications, the parcels created prior
to January 1, 1993 and the parcels larger than the minimum lot size that may be
divided to create new parcels for nonfarm dwellings under ORS 215.263(4). The
findings shall describe the existing land use pattern of the study area
including the distribution and arrangement of existing uses and the land use
pattern that could result from approval of the possible nonfarm dwellings under
this subparagraph;
(iii) Determine whether approval of the proposed
nonfarm/lot-of-record dwellings together with existing nonfarm dwellings will
materially alter the stability of the land use pattern in the area. The
stability of the land use pattern will be materially altered if the cumulative
effect of existing and potential nonfarm dwellings will make it more difficult
for the existing types of farms in the area to continue operation due to
diminished opportunities to expand, purchase or lease farmland, acquire water
rights or diminish the number of tracts or acreage in farm use in a manner that
will destabilize the overall character of the study area;
(E) The dwelling complies with such other conditions as
the governing body or its designate considers necessary.
(b) In the Willamette Valley, on a lot or parcel
allowed under OAR 660-033-0100(11) of this rule, the use may be approved if:
(A) The dwelling or activities associated with the
dwelling will not force a significant change in or significantly increase the
cost of accepted farming or forest practices on nearby lands devoted to farm or
forest use;
(B) The dwelling will not materially alter the
stability of the overall land use pattern of the area. In determining whether a
proposed nonfarm dwelling will alter the stability of the land use pattern in
the area, a county shall consider the cumulative impact of nonfarm dwellings on
other lots or parcels in the area similarly situated and whether creation of
the parcel will lead to creation of other nonfarm parcels, to the detriment of
agriculture in the area by applying the standards set forth in paragraph
(4)(a)(D) of this rule; and
(C) The dwelling complies with such other conditions as
the governing body or its designate considers necessary.
(c) In counties located outside the Willamette Valley
require findings that:
(A) The dwelling or activities associated with the
dwelling will not force a significant change in or significantly increase the
cost of accepted farming or forest practices on nearby lands devoted to farm or
forest use;
(B)(i) The dwelling is situated upon a lot or parcel,
or a portion of a lot or parcel, that is generally unsuitable land for the
production of farm crops and livestock or merchantable tree species,
considering the terrain, adverse soil or land conditions, drainage and
flooding, vegetation, location and size of the tract. A lot or parcel or
portion of a lot or parcel shall not be considered unsuitable solely because of
size or location if it can reasonably be put to farm or forest use in
conjunction with other land; and
(ii) A lot or parcel or portion of a lot or parcel is
not “generally unsuitable” simply because it is too small to be farmed
profitably by itself. If a lot or parcel or portion of a lot or parcel can be
sold, leased, rented or otherwise managed as a part of a commercial farm or
ranch, then the lot or parcel or portion of the lot or parcel is not “generally
unsuitable”. A lot or parcel or portion of a lot or parcel is presumed to be
suitable if, in Western Oregon it is composed predominantly of Class I-IV soils
or, in Eastern Oregon, it is composed predominantly of Class I-VI soils. Just
because a lot or parcel or portion of a lot or parcel is unsuitable for one
farm use does not mean it is not suitable for another farm use; or
(iii) If the parcel is under forest assessment, the
dwelling shall be situated upon generally unsuitable land for the production of
merchantable tree species recognized by the Forest Practices Rules, considering
the terrain, adverse soil or land conditions, drainage and flooding,
vegetation, location and size of the parcel. If a lot or parcel is under forest
assessment, the area is not “generally unsuitable” simply because it is too
small to be managed for forest production profitably by itself. If a lot or
parcel under forest assessment can be sold, leased, rented or otherwise managed
as a part of a forestry operation, it is not “generally unsuitable”. If a lot
or parcel is under forest assessment, it is presumed suitable if, in Western
Oregon, it is composed predominantly of soils capable of producing 50 cubic
feet of wood fiber per acre per year, or in Eastern Oregon it is composed
predominantly of soils capable of producing 20 cubic feet of wood fiber per
acre per year. If a lot or parcel is under forest assessment, to be found
compatible and not seriously interfere with forest uses on surrounding land it
must not force a significant change in forest practices or significantly
increase the cost of those practices on the surrounding land;
(C) The dwelling will not materially alter the
stability of the overall land use pattern of the area. In determining whether a
proposed nonfarm dwelling will alter the stability of the land use pattern in
the area, a county shall consider the cumulative impact of nonfarm dwellings on
other lots or parcels in the area similarly situated by applying the standards
set forth in paragraph (4)(a)(D) of this rule. If the application involves the
creation of a new parcel for the nonfarm dwelling, a county shall consider
whether creation of the parcel will lead to creation of other nonfarm parcels,
to the detriment of agriculture in the area by applying the standards set forth
in paragraph (4)(a)(D) of this rule; and
(D) The dwelling complies with such other conditions as
the governing body or its designate considers necessary.
(d) If a single-family dwelling is established on a lot
or parcel as set forth in section (3) of this rule or OAR 660-006-0027, no
additional dwelling may later be sited under the provisions of section (4) of
this rule;
(e) Counties that have adopted marginal lands
provisions before January 1, 1993, shall apply the standards in ORS 215.213(3)
— (8) for nonfarm dwellings on lands zoned exclusive farm use that are
not designated marginal or high-value farmland.
(5) Approval requires review by the governing body or
its designate under ORS 215.296. Uses may be approved only where such uses:
(a) Will not force a significant change in accepted
farm or forest practices on surrounding lands devoted to farm or forest use;
and
(b) Will not significantly increase the cost of
accepted farm or forest practices on lands devoted to farm or forest use.
(6) Such facility shall not seriously interfere with
accepted farming practices and shall be compatible with farm uses described in
ORS 215.203(2). Such facility may be approved for a one-year period which is
renewable and is intended to be only portable or temporary in nature. The
primary processing of a forest product, as used in this section, means the use
of a portable chipper or stud mill or other similar methods of initial
treatment of a forest product in order to enable its shipment to market. Forest
products as used in this section means timber grown upon a tract where the
primary processing facility is located.
(7) A personal use airport as used in this section
means an airstrip restricted, except for aircraft emergencies, to use by the
owner, and on an infrequent and occasional basis, by invited guests, and by
commercial aviation activities in connection with agricultural operations. No
aircraft may be based on a personal use airport other than those owned or
controlled by the owner of the airstrip. Exceptions to the activities permitted
under this definition may be granted through waiver action by the Oregon
Department of Aviation in specific instances. A personal use airport lawfully
existing as of September 13, 1975, shall continue to be permitted subject to
any applicable rules of the Oregon Department of Aviation.
(8)(a) A lawfully established dwelling is a single
family dwelling which:
(A) Has intact exterior walls and roof structure;
(B) Has indoor plumbing consisting of a kitchen sink,
toilet and bathing facilities connected to a sanitary waste disposal system;
(C) Has interior wiring for interior lights; and
(D) Has a heating system.
(b) In the case of replacement, the dwelling to be
replaced shall be:
(i) Removed, demolished, or converted to an allowable
use within three months of the completion of the replacement dwelling. A
replacement dwelling may be sited on any part of the same lot or parcel. A
dwelling established under this section shall comply with all applicable siting
standards. However, the standards shall not be applied in a manner that
prohibits the siting of the dwelling. If the dwelling to be replaced is located
on a portion of the lot or parcel not zoned for exclusive farm use, the
applicant, as a condition of approval, shall execute and record in the deed
records for the county where the property is located a deed restriction
prohibiting the siting of a dwelling on that portion of the lot or parcel. The
restriction imposed shall be irrevocable unless a statement of release is placed
in the deed records for the county. The release shall be signed by the county
or its designee and state that the provisions of this section regarding
replacement dwellings have changed to allow the siting of another dwelling. The
county planning director or the director’s designee shall maintain a record of
the lots and parcels that do not qualify for the siting of a new dwelling under
the provisions of this section, including a copy of the deed restrictions and
release statements filed under this section; and
(ii) For which the applicant has requested a deferred
replacement permit, is removed or demolished within three months after the
deferred replacement permit is issued. A deferred replacement permit allows
construction of the replacement dwelling at any time. If, however, the
established dwelling is not removed or demolished within three months after the
deferred replacement permit is issued, the permit becomes void. The replacement
dwelling must comply with applicable building codes, plumbing codes, sanitation
codes and other requirements relating to health and safety or to siting at the
time of construction. A deferred replacement permit may not be transferred, by
sale or otherwise, except by the applicant to the spouse or a child of the
applicant.
(c) An accessory farm dwelling authorized pursuant to
OAR 660-033-0130(24)(a)(B)(iii), may only be replaced by a manufactured
dwelling.
(9)(a) To qualify, a dwelling shall be occupied by
persons whose assistance in the management and farm use of the existing
commercial farming operation is required by the farm operator. The farm
operator shall continue to play the predominant role in the management and farm
use of the farm. A farm operator is a person who operates a farm, doing the
work and making the day-to-day decisions about such things as planting,
harvesting, feeding and marketing.
(b) Notwithstanding ORS 92.010 to 92.190 or the minimum
lot or parcel requirements under ORS 215.780, if the owner of a dwelling
described in OAR 660-033-0130(9) obtains construction financing or other
financing secured by the dwelling and the secured party forecloses on the
dwelling, the secured party may also foreclose on the homesite, as defined in
ORS 308A.250, and the foreclosure shall operate as a partition of the homesite
to create a new parcel. Prior conditions of approval for the subject land and
dwelling remain in effect.
(c) For the purpose of OAR 660-033-0130(9)(b),
“foreclosure” means only those foreclosures that are exempt from partition
under ORS 92.010(7)(a).
(10) A manufactured dwelling, or recreational vehicle,
or the temporary residential use of an existing building allowed under this
provision is a temporary use for the term of the hardship suffered by the
existing resident or relative as defined in ORS chapter 215. The manufactured
dwelling shall use the same subsurface sewage disposal system used by the
existing dwelling, if that disposal system is adequate to accommodate the
additional dwelling. If the manufactured home will use a public sanitary sewer
system, such condition will not be required. Governing bodies shall review the
permit authorizing such manufactured homes every two years. Within three months
of the end of the hardship, the manufactured dwelling or recreational vehicle
shall be removed or demolished or, in the case of an existing building, the
building shall be removed, demolished or returned to an allowed nonresidential
use. A temporary residence approved under this section is not eligible for
replacement under ORS 215.213(1)(q) or 215.283(1)(p). Oregon Department of
Environmental Quality review and removal requirements also apply. As used in
this section “hardship” means a medical hardship or hardship for the care of an
aged or infirm person or persons.
(11) Subject to the issuance of a license, permit or
other approval by the Department of Environmental Quality under ORS 454.695,
459.205, 468B.050, 468B.053 or 468B.055, or in compliance with rules adopted
under ORS 468B.095, and with the requirements of ORS 215.246, 215.247, 215.249
and 215.251, the land application of reclaimed water, agricultural process or
industrial process water or biosolids for agricultural, horticultural or
silvicultural production, or for irrigation in connection with a use allowed in
an exclusive farm use zones under this division.
(12) In order to meet the requirements specified in the
statute, a historic dwelling shall be listed on the National Register of
Historic Places.
(13) Such uses may be established, subject to the
adoption of the governing body or its designate of an exception to Goal 3,
Agricultural Lands, and to any other applicable goal with which the facility or
improvement does not comply. In addition, transportation uses and improvements
may be authorized under conditions and standards as set forth in OAR
660-012-0035 and 660-012-0065.
(14) Home occupations and the parking of vehicles may
be authorized. Home occupations shall be operated substantially in the dwelling
or other buildings normally associated with uses permitted in the zone in which
the property is located. A home occupation shall be operated by a resident or
employee of a resident of the property on which the business is located, and
shall employ on the site no more than five full-time or part-time persons.
(15) New uses that batch and blend mineral and
aggregate into asphalt cement may not be authorized within two miles of a
planted vineyard. Planted vineyard means one or more vineyards totaling 40
acres or more that are planted as of the date the application for batching and
blending is filed.
(16)(a) A utility facility is necessary for public
service if the facility must be sited in an exclusive farm use zone in order to
provide the service. To demonstrate that a utility facility is necessary, an
applicant must show that reasonable alternatives have been considered and that
the facility must be sited in an exclusive farm use zone due to one or more of
the following factors:
(A) Technical and engineering feasibility;
(B) The proposed facility is locationally dependent. A
utility facility is locationally dependent if it must cross land in one or more
areas zoned for exclusive farm use in order to achieve a reasonably direct route
or to meet unique geographical needs that cannot be satisfied on other lands;
(C) Lack of available urban and nonresource lands;
(D) Availability of existing rights of way;
(E) Public health and safety; and
(F) Other requirements of state and federal agencies.
(b) Costs associated with any of the factors listed in
subsection (16)(a) of this rule may be considered, but cost alone may not be
the only consideration in determining that a utility facility is necessary for
public service. Land costs shall not be included when considering alternative
locations for substantially similar utility facilities and the siting of
utility facilities that are not substantially similar.
(c) The owner of a utility facility approved under this
section shall be responsible for restoring, as nearly as possible, to its
former condition any agricultural land and associated improvements that are
damaged or otherwise disturbed by the siting, maintenance, repair or
reconstruction of the facility. Nothing in this subsection shall prevent the
owner of the utility facility from requiring a bond or other security from a
contractor or otherwise imposing on a contractor the responsibility for
restoration.
(d) The governing body of the county or its designee
shall impose clear and objective conditions on an application for utility
facility siting to mitigate and minimize the impacts of the proposed facility,
if any, on surrounding lands devoted to farm use in order to prevent a
significant change in accepted farm practices or a significant increase in the
cost of farm practices on surrounding farmlands.
(e) Utility facilities necessary for public service may
include on-site and off-site facilities for temporary workforce housing for
workers constructing a utility facility. Such facilities must be removed or
converted to an allowed use under OAR 660-033-0130(19) or other statute or rule
when project construction is complete. Off-site facilities allowed under this
paragraph are subject to OAR 660-033-0130(5). Temporary workforce housing
facilities not included in the initial approval may be considered through a
minor amendment request. A minor amendment request shall have no effect on the
original approval.
(f) In addition to the provisions of subsections 16(a)
to (d) of this rule, the establishment or extension of a sewer system as
defined by OAR 660-011-0060(1)(f) in an exclusive farm use zone shall be
subject to the provisions of OAR 660-011-0060.
(g) The provisions of subsections 16(a) to (d) of this
rule do not apply to interstate natural gas pipelines and associated facilities
authorized by and subject to regulation by the Federal Energy Regulatory
Commission.
(17) A power generation facility may include on-site
and off-site facilities for temporary workforce housing for workers
constructing a power generation facility. Such facilities must be removed or
converted to an allowed use under OAR 660-033-0130(19) or other statute or rule
when project construction is complete. Temporary workforce housing facilities
not included in the initial approval may be considered through a minor
amendment request. A minor amendment request shall be subject to OAR
660-033-0130(5) and shall have no effect on the original approval. Permanent
features of a power generation facility shall not preclude more than 12 acres
from use as a commercial agricultural enterprise unless an exception is taken
pursuant to ORS 197.732 and OAR chapter 660, division 4.
(18)(a) Existing facilities wholly within a farm use
zone may be maintained, enhanced or expanded on the same tract, subject to
other requirements of law. An existing golf course may be expanded consistent
with the requirements of sections (5) and (20) of this rule, but shall not be
expanded to contain more than 36 total holes.
(b) In addition to and not in lieu of the authority in
ORS 215.130 to continue, alter, restore or replace a use that has been
disallowed by the enactment or amendment of a zoning ordinance or regulation, a
use formerly allowed pursuant to ORS 215.213 (1)(a) or 215.283 (1)(a), as in
effect before the effective date of 2009 Or Laws Chapter 850, section 14, may
be expanded subject to:
(A) The requirements of subsection (c) of this section;
and
(B) Conditional approval of the county in the manner
provided in ORS 215.296.
(c) A nonconforming use described in subsection (b) of
this section may be expanded under this section if:
(A) The use was established on or before January 1,
2009; and
(B) The expansion occurs on:
(i) The tax lot on which the use was established on or
before January 1, 2009; or
(ii) A tax lot that is contiguous to the tax lot
described in subparagraph (i) of this paragraph and that was owned by the
applicant on January 1, 2009.
(19)(a) Except on a lot or parcel contiguous to a lake
or reservoir, private campgrounds shall not be allowed within three miles of an
urban growth boundary unless an exception is approved pursuant to ORS 197.732
and OAR chapter 660, division 4. A campground is an area devoted to overnight
temporary use for vacation, recreational or emergency purposes, but not for
residential purposes and is established on a site or is contiguous to lands
with a park or other outdoor natural amenity that is accessible for
recreational use by the occupants of the campground. A campground shall be
designed and integrated into the rural agricultural and forest environment in a
manner that protects the natural amenities of the site and provides buffers of
existing native trees and vegetation or other natural features between
campsites. Campgrounds authorized by this rule shall not include intensively
developed recreational uses such as swimming pools, tennis courts, retail
stores or gas stations. Overnight temporary use in the same campground by a
camper or camper’s vehicle shall not exceed a total of 30 days during any
consecutive 6 month period.
(b) Campsites may be occupied by a tent, travel
trailer, yurt or recreational vehicle. Separate sewer, water or electric
service hook-ups shall not be provided to individual camp sites except that
electrical service may be provided to yurts allowed for by subsection (19)(c)
of this rule.
(c) Subject to the approval of the county governing
body or its designee, a private campground may provide yurts for overnight
camping. No more than one-third or a maximum of 10 campsites, whichever is smaller,
may include a yurt. The yurt shall be located on the ground or on a wood floor
with no permanent foundation. Upon request of a county governing body, the Land
Conservation and Development Commission may provide by rule for an increase in
the number of yurts allowed on all or a portion of the campgrounds in a county
if the Commission determines that the increase will comply with the standards
described in ORS 215.296(1). As used in section (19) of this rule, “yurt” means
a round, domed shelter of cloth or canvas on a collapsible frame with no
plumbing, sewage disposal hook-up or internal cooking appliance.
(20) “Golf Course” means an area of land with highly
maintained natural turf laid out for the game of golf with a series of 9 or
more holes, each including a tee, a fairway, a putting green, and often one or
more natural or artificial hazards. A “golf course” for purposes of ORS
215.213(2)(f), 215.283(2)(f) and this division means a 9 or 18 hole regulation
golf course or a combination 9 and 18 hole regulation golf course consistent
with the following:
(a) A regulation 18 hole golf course is generally
characterized by a site of about 120 to 150 acres of land, has a playable
distance of 5,000 to 7,200 yards, and a par of 64 to 73 strokes;
(b) A regulation 9 hole golf course is generally
characterized by a site of about 65 to 90 acres of land, has a playable
distance of 2,500 to 3,600 yards, and a par of 32 to 36 strokes;
(c) Non-regulation golf courses are not allowed uses
within these areas. “Non-regulation golf course” means a golf course or golf
course-like development that does not meet the definition of golf course in
this rule, including but not limited to executive golf courses, Par 3 golf
courses, pitch and putt golf courses, miniature golf courses and driving
ranges;
(d) Counties shall limit accessory uses provided as
part of a golf course consistent with the following standards:
(A) An accessory use to a golf course is a facility or
improvement that is incidental to the operation of the golf course and is
either necessary for the operation and maintenance of the golf course or that
provides goods or services customarily provided to golfers at a golf course. An
accessory use or activity does not serve the needs of the non-golfing public.
Accessory uses to a golf course may include: Parking; maintenance buildings;
cart storage and repair; practice range or driving range; clubhouse; restrooms;
lockers and showers; food and beverage service; pro shop; a practice or
beginners course as part of an 18 hole or larger golf course; or golf
tournament. Accessory uses to a golf course do not include: Sporting facilities
unrelated to golfing such as tennis courts, swimming pools, and weight rooms;
wholesale or retail operations oriented to the non-golfing public; or housing.
(B) Accessory uses shall be limited in size and
orientation on the site to serve the needs of persons and their guests who
patronize the golf course to golf. An accessory use that provides commercial
services (e.g., pro shop, etc.) shall be located in the clubhouse rather than
in separate buildings.
(C) Accessory uses may include one or more food and
beverage service facilities in addition to food and beverage service facilities
located in a clubhouse. Food and beverage service facilities must be part of
and incidental to the operation of the golf course and must be limited in size
and orientation on the site to serve only the needs of persons who patronize
the golf course and their guests. Accessory food and beverage service
facilities shall not be designed for or include structures for banquets, public
gatherings or public entertainment.
(21) “Living History Museum” means a facility designed
to depict and interpret everyday life and culture of some specific historic
period using authentic buildings, tools, equipment and people to simulate past
activities and events. As used in this rule, a living history museum shall be
related to resource based activities and shall be owned and operated by a
governmental agency or a local historical society. A living history museum may
include limited commercial activities and facilities that are directly related
to the use and enjoyment of the museum and located within authentic buildings
of the depicted historic period or the museum administration building, if areas
other than an exclusive farm use zone cannot accommodate the museum and related
activities or if the museum administration buildings and parking lot are
located within one quarter mile of an urban growth boundary. “Local historical
society” means the local historical society, recognized as such by the county
governing body and organized under ORS chapter 65.
(22) A power generation facility
may include on-site and off-site facilities for temporary workforce housing for
workers constructing a power generation facility. Such facilities must be
removed or converted to an allowed use under OAR 660-033-0130(19) or other
statute or rule when project construction is complete. Temporary workforce
housing facilities not included in the initial approval may be considered
through a minor amendment request. A minor amendment request shall be subject
to OAR 660-033-0130(5) and shall have no effect on the original approval.
Permanent features of a power generation facility shall not preclude more than
20 acres from use as a commercial agricultural enterprise unless an exception
is taken pursuant to ORS 197.732 and OAR chapter 660, division 4.
(23) A farm stand may be approved if:
(a) The structures are designed and used for sale of
farm crops and livestock grown on the farm operation, or grown on the farm
operation and other farm operations in the local agricultural area, including
the sale of retail incidental items and fee-based activity to promote the sale
of farm crops or livestock sold at the farm stand, if the annual sales of the
incidental items and fees from promotional activity do not make up more than 25
percent of the total annual sales of the farm stand; and
(b) The farm stand does not include structures designed
for occupancy as a residence or for activities other than the sale of farm
crops and livestock and does not include structures for banquets, public
gatherings or public entertainment.
(c) As used in this section, “farm crops or livestock”
includes both fresh and processed farm crops and livestock grown on the farm
operation, or grown on the farm operation and other farm operations in the
local agricultural area. As used in this subsection, “processed crops and
livestock” includes jams, syrups, apple cider, animal products and other
similar farm crops and livestock that have been processed and converted into
another product but not prepared food items.
(d) As used in this section, “local agricultural area”
includes Oregon or an adjacent county in Washington, Idaho, Nevada or
California that borders the Oregon county in which the farm stand is located.
(24) Accessory farm dwellings as defined by subsection
(24)(e) of this section may be considered customarily provided in conjunction
with farm use if:
(a) Each accessory farm dwelling meets all the following
requirements:
(A) The accessory farm dwelling will be occupied by a
person or persons who will be principally engaged in the farm use of the land
and whose seasonal or year-round assistance in the management of the farm use,
such as planting, harvesting, marketing or caring for livestock, is or will be
required by the farm operator; and
(B) The accessory farm dwelling will be located:
(i) On the same lot or parcel as the primary farm
dwelling; or
(ii) On the same tract as the primary farm dwelling
when the lot or parcel on which the accessory farm dwelling will be sited is
consolidated into a single parcel with all other contiguous lots and parcels in
the tract; or
(iii) On a lot or parcel on which the primary farm
dwelling is not located, when the accessory farm dwelling is limited to only a
manufactured dwelling with a deed restriction. The deed restriction shall be
filed with the county clerk and require the manufactured dwelling to be removed
when the lot or parcel is conveyed to another party. The manufactured dwelling
may remain if it is reapproved under these rules; or
(iv) On a lot or parcel on which the primary farm
dwelling is not located, when the accessory farm dwelling is limited to only
attached multi- unit residential structures allowed by the applicable state
building code or similar types of farm labor housing as existing farm labor
housing on the farm or ranch operation registered with the Department of
Consumer and Business Services, Oregon Occupational Safety and Health Division
under ORS 658.750. A county shall require all accessory farm dwellings approved
under this subparagraph to be removed, demolished or converted to a
nonresidential use when farm worker housing is no longer required; or
(v) On a lot or parcel on which the primary farm
dwelling is not located, when the accessory farm dwelling is located on a lot
or parcel at least the size of the applicable minimum lot size under ORS
215.780 and the lot or parcel complies with the gross farm income requirements
in OAR 660-033-0135(5) or (7), whichever is applicable; and
(C) There is no other dwelling on the lands designated
for exclusive farm use owned by the farm operator that is vacant or currently
occupied by persons not working on the subject farm or ranch and that could
reasonably be used as an accessory farm dwelling.
(b) In addition to the requirements in subsection (a)
of this section, the primary farm dwelling to which the proposed dwelling would
be accessory, meets one of the following:
(A) On land not identified as high-value farmland, the
primary farm dwelling is located on a farm or ranch operation that is currently
employed for farm use, as defined in ORS 215.203, and produced in the last two
years or three of the last five years the lower of the following:
(i) At least $40,000 in gross annual income from the
sale of farm products. In determining the gross income, the cost of purchased
livestock shall be deducted from the total gross income attributed to the
tract.
(ii) Gross annual income of at least the midpoint of
the median income range of gross annual sales for farms in the county with the
gross annual sales of $10,000 or more according to the 1992 Census of
Agriculture, Oregon. In determining the gross income, the cost of purchased
livestock shall be deducted from the total gross income attributed to the
tract; or
(B) On land identified as high-value farmland, the
primary farm dwelling is located on a farm or ranch operation that is currently
employed for farm use, as defined in ORS 215.203, and produced at least $80,000
in gross annual income from the sale of farm products in the last two years or
three of the last five years. In determining the gross income, the cost of
purchased livestock shall be deducted from the total gross income attributed to
the tract; or
(C) On land not identified as high-value farmland in
counties that have adopted marginal lands provisions under ORS 197.247 (1991
Edition) before January 1, 1993, the primary farm dwelling is located on a farm
or ranch operation that meets the standards and requirements of ORS
215.213(2)(a) or (b) or OAR 660-033-0130(24)(b)(A); or
(D) It is located on a commercial dairy farm as defined
by OAR 660-033-0135(11); and
(i) The building permits, if required, have been issued
and construction has begun or been completed for the buildings and animal waste
facilities required for a commercial dairy farm; and
(ii) The Oregon Department of Agriculture has approved
a permit for a “confined animal feeding operation” under ORS 468B.050 and
468B.200 to 468B.230; and
(iii) A Producer License for the sale of dairy products
under ORS 621.072.
(c) The governing body of a county shall not approve
any proposed division of a lot or parcel for an accessory farm dwelling
approved pursuant to this section. If it is determined that an accessory farm
dwelling satisfies the requirements of OAR 660-033-0135, a parcel may be
created consistent with the minimum parcel size requirements in OAR
660-033-0100;
(d) An accessory farm dwelling approved pursuant to
this section cannot later be used to satisfy the requirements for a dwelling
not provided in conjunction with farm use pursuant to section (4) of this rule.
(e) For the purposes of OAR 660-033-0130(24),
“accessory farm dwelling” includes all types of residential structures allowed
by the applicable state building code.”
(25) In counties that have adopted marginal lands
provisions under ORS 197.247 (1991 Edition) before January 1, 1993, an armed
forces reserve center, if the center is within one-half mile of a community
college. An “armed forces reserve center” includes an armory or National Guard
support facility.
(26) Buildings and facilities shall not be more than
500 square feet in floor area or placed on a permanent foundation unless the
building or facility preexisted the use approved under this section. The site
shall not include an aggregate surface or hard surface area unless the surface
preexisted the use approved under this section. An owner of property used for
the purpose authorized in this paragraph may charge a person operating the use
on the property rent for the property. An operator may charge users of the
property a fee that does not exceed the operator’s cost to maintain the
property, buildings and facilities. As used in this section, “model aircraft”
means a small-scale version of an airplane, glider, helicopter, dirigible or
balloon that is used or intended to be used for flight and controlled by radio,
lines or design by a person on the ground.
(27) Insect species shall not include any species under
quarantine by the State Department of Agriculture or the United States
Department of Agriculture. The county shall provide notice of all applications
under this section to the State Department of Agriculture. Notice shall be
provided in accordance with the county’s land use regulations but shall be
mailed at least 20 calendar days prior to any administrative decision or
initial public hearing on the application.
(28) The farm on which the processing facility is
located must provide at least one-quarter of the farm crops processed at the
facility. The building established for the processing facility shall not exceed
10,000 square feet of floor area exclusive of the floor area designated for
preparation, storage or other farm use or devote more than 10,000 square feet
to the processing activities within another building supporting farm use. A
processing facility shall comply with all applicable siting standards but the
standards shall not be applied in a manner that prohibits the siting of the
processing facility. A county shall not approve any division of a lot or parcel
that separates a processing facility from the farm operation on which it is
located.
(29)(a) Composting operations and facilities allowed on
high-value farmland are limited to those that are exempt from a permit from the
Department of Environmental Quality (DEQ) under OAR 340-093-0050, only require
approval of an Agricultural Compost Management Plan by the Oregon Department of
Agriculture, or require a permit from the DEQ under OAR 340-093-0050 where the
compost is applied primarily on the subject farm or used to manage and dispose
of by-products generated on the subject farm. Excess compost may be sold to
neighboring farm operations in the local area and shall be limited to bulk
loads of at least one unit (7.5 cubic yards) in size. Buildings and facilities
used in conjunction with the composting operation shall only be those required
for the operation of the subject facility.
(b) Composting operations and facilities allowed on
land not defined as high-value farmland shall be limited to the composting
operations and facilities allowed by subsection (29)(a) of this rule or that
require a permit from the Department of Environmental Quality under OAR
340-093-0050. Buildings and facilities used in conjunction with the composting
operation shall only be those required for the operation of the subject
facility. Onsite sales shall be limited to bulk loads of at least one unit (7.5
cubic yards) in size that are transported in one vehicle.
(30) The County governing body or its designate shall
require as a condition of approval of a single-family dwelling under ORS
215.213, 215.283 or 215.284 or otherwise in a farm or forest zone, that the
landowner for the dwelling sign and record in the deed records for the county a
document binding the landowner, and the landowner’s successors in interest,
prohibiting them from pursuing a claim for relief or cause of action alleging
injury from farming or forest practices for which no action or claim is allowed
under ORS 30.936 or 30.937.
(31) Public parks including only the uses specified
under OAR 660-034-0035 or 660-034-0040, whichever is applicable.
(32) Utility facility service lines are utility lines
and accessory facilities or structures that end at the point where the utility
service is received by the customer and that are located on one or more of the
following:
(a) A public right of way;
(b) Land immediately adjacent to a public right of way,
provided the written consent of all adjacent property owners has been obtained;
or
(c) The property to be served by the utility.
(33) An outdoor mass gathering as defined in ORS
433.735 or other gathering of fewer than 3,000 persons that is not anticipated
to continue for more than 120 hours in any three month period is not a “land
use decision” as defined in ORS 197.015(10) or subject to review under this
Division.
(34) Any gathering subject to review by a county
planning commission under the provisions of ORS 433.763. These gatherings and
any part of which is held in open spaces are those of more than 3,000 persons
which continue or can reasonably be expected to continue for more than 120
hours within any three-month period.
(35)(a) As part of the conditional use approval process
under ORS 215.296 and OAR 660-033-0130(5), for the purpose of verifying the
existence, continuity and nature of the business described in ORS 215.213(2)(w)
or 215.283(2)(y), representatives of the business may apply to the county and
submit evidence including, but not limited to, sworn affidavits or other
documentary evidence that the business qualifies; and
(b) Alteration, restoration or replacement of a use
authorized in ORS 215.213(2)(w) or 215.283(2)(y) may be altered, restored or
replaced pursuant to ORS 215.130(5), (6) and (9).
(36) For counties subject to ORS 215.283 and not
215.213, a community center authorized under this section may provide services
to veterans, including but not limited to emergency and transitional shelter,
preparation and service of meals, vocational and educational counseling and
referral to local, state or federal agencies providing medical, mental health,
disability income replacement and substance abuse services, only in a facility
that is in existence on January 1, 2006. The services may not include direct
delivery of medical, mental health, disability income replacement or substance
abuse services.
(37) For purposes of this rule a wind power generation
facility includes, but is not limited to, the following system components: all
wind turbine towers and concrete pads, permanent meteorological towers and wind
measurement devices, electrical cable collection systems connecting wind
turbine towers with the relevant power substation, new or expanded private
roads (whether temporary or permanent) constructed to serve the wind power
generation facility, office and operation and maintenance buildings, temporary
lay-down areas and all other necessary appurtenances, including but not limited
to on-site and off-site facilities for temporary workforce housing for workers
constructing a wind power generation facility. Such facilities must be removed
or converted to an allowed use under OAR 660-033-0130(19) or other statute or
rule when project construction is complete. Temporary workforce housing
facilities not included in the initial approval may be considered through a
minor amendment request filed after a decision to approve a power generation
facility. A minor amendment request shall be subject to OAR 660-033-0130(5) and
shall have no effect on the original approval. A proposal for a wind power
generation facility shall be subject to the following provisions:
(a) For high-value farmland soils described at ORS
195.300(10), the governing body or its designate must find that all of the
following are satisfied:
(A) Reasonable alternatives have been considered to
show that siting the wind power generation facility or component thereof on
high-value farmland soils is necessary for the facility or component to
function properly or if a road system or turbine string must be placed on such
soils to achieve a reasonably direct route considering the following factors:
(i) Technical and engineering feasibility;
(ii) Availability of existing rights of way; and
(iii) The long term environmental, economic, social and
energy consequences of siting the facility or component on alternative sites,
as determined under OAR 660-033-0130(37)(a)(B).
(B) The long-term environmental, economic, social and
energy consequences resulting from the wind power generation facility or any
components thereof 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 on other agricultural lands that do not
include high-value farmland soils.
(C) Costs associated with any of the factors listed in
OAR 660-033-0130(37)(a)(A) may be considered, but costs alone may not be the
only consideration in determining that siting any component of a wind power
generation facility on high-value farmland soils is necessary.
(D) The owner of a wind power generation facility
approved under OAR 660-033-0130(37)(a) shall be responsible for restoring, as
nearly as possible, to its former condition any agricultural land and
associated improvements that are damaged or otherwise disturbed by the siting,
maintenance, repair or reconstruction of the facility. Nothing in this subsection
shall prevent the owner of the facility from requiring a bond or other security
from a contractor or otherwise imposing on a contractor the responsibility for
restoration.
(E) The criteria of OAR 660-033-0130(37)(b) are
satisfied.
(b) For arable lands, meaning lands that are cultivated
or suitable for cultivation, including high-value farmland soils described at
ORS 195.300(10), the governing body or its designate must find that:
(A) The proposed wind power facility will not create
unnecessary negative impacts on agricultural operations conducted on the
subject property. Negative impacts could include, but are not limited to, the
unnecessary construction of roads, dividing a field or multiple fields in such
a way that creates small or isolated pieces of property that are more difficult
to farm, and placing wind farm components such as meteorological towers on
lands in a manner that could disrupt common and accepted farming practices; and
(B) The presence of a proposed wind power facility will
not result in unnecessary soil erosion or loss that could limit agricultural
productivity on the subject property. This provision may be satisfied by the
submittal and county approval of a soil and erosion control plan prepared by an
adequately qualified individual, showing how unnecessary soil erosion will be
avoided or remedied and how topsoil will be stripped, stockpiled and clearly
marked. The approved plan shall be attached to the decision as a condition of
approval; and
(C) Construction or maintenance activities will not
result in unnecessary soil compaction that reduces the productivity of soil for
crop production. This provision may be satisfied by the submittal and county
approval of a plan prepared by an adequately qualified individual, showing how
unnecessary soil compaction will be avoided or remedied in a timely manner
through deep soil decompaction or other appropriate practices. The approved
plan shall be attached to the decision as a condition of approval; and
(D) Construction or maintenance activities will not
result in the unabated introduction or spread of noxious weeds and other
undesirable weeds species. This provision may be satisfied by the submittal and
county approval of a weed control plan prepared by an adequately qualified
individual that includes a long-term maintenance agreement. The approved plan
shall be attached to the decision as a condition of approval.
(c) For nonarable lands, meaning lands that are not
suitable for cultivation, the governing body or its designate must find that
the requirements of OAR 660-033-0130(37)(b)(D) are satisfied.
(d) In the event that a wind power generation facility
is proposed on a combination of arable and nonarable lands as described in OAR
660-033-0130(37)(b) and (c) the approval criteria of OAR 660-033-0130(37)(b)
shall apply to the entire project.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.040
& 215.213
Hist.: LCDC 6-1992, f. 12-10-92,
cert. ef. 8-7-93; LCDC 3-1994, f. & cert. ef. 3-1-94; LCDC 6-1994 , f.
& cert. ef. 6-3-94; LCDC 8-1995, f. & cert. ef. 6-29-95; LDCD 5-1996,
f. & cert. ef. 12-23-96; LCDD 5-1997, f. & cert. ef. 12-23-97; LCDD
2-1998, f. & cert. ef. 6-1-98; LCDD 5-2000, f. & cert. ef. 4-24-00;
LCDD 9-2000, f. & cert. ef. 11-3-00; LCDD 1-2002, f. & cert. ef. 5-22-02;
LCDD 1-2004, f. & cert. ef. 4-30-04; LCDD 2-2006, f. & cert. ef.
2-15-06; LCDD 3-2008, f. & cert. ef. 4-18-08; LCDD 5-2008, f. 12-31-08,
cert. ef. 1-2-09; LCDD 5-2009, f. & cert. ef. 12-7-09; LCDD 6-2010, f.
& cert. ef. 6-17-10; LCDD 7-2010(Temp), f. & cert. ef. 6-17-10 thru
11-30-10; LCDD 9-2010, f. & cert. ef. 9-24-10; LCDD 11-2010, f. & cert.
ef. 11-23-10
Rule
Caption: Minor and technical amendments to
conform to law, clarify wording and correct references.
Adm.
Order No.: LCDD 12-2010
Filed with Sec. of
State: 12-8-2010
Certified to be
Effective: 12-8-10
Notice Publication
Date: 11-1-2010
Rules Amended: 660-001-0000, 660-001-0005, 660-001-0007,
660-001-0201, 660-001-0210, 660-001-0220, 660-001-0230, 660-003-0005,
660-003-0010, 660-003-0015, 660-003-0020, 660-003-0025, 660-003-0032,
660-003-0033, 660-003-0050
Subject: Rules were modified to make minor and technical
amendments to: conform to statutes, laws and rules; respond to Land Use Board
of Appeals and other court opinions; clarify ambiguous and unclear wording
consistent with the intent of the rule; update and correct references to rules,
statutes or other documents and correct grammar.
Rules Coordinator: Casaria Tuttle—(503) 373-0050, ext. 322
660-001-0000
Notice of Proposed Rule
(1) Except as provided in OAR 660-001-0000(2) and ORS
183.335(7), prior to the adoption, amendment, or repeal of any permanent rule,
the Department of Land Conservation and Development shall give notice of the
proposed adoption, amendment, or repeal:
(a) In the Secretary of State’s Bulletin referred to in
ORS 183.360 at least 21 days prior to the effective date of the rule;
(b) By mailing a copy of the notice and proposed
rule(s) to persons on the Department of Land Conservation and Development’s
mailing list established pursuant to ORS 183.335(8) at least 28 days before the
effective date of the rule, including electronic notices if allowed by law;
(c) By mailing a copy of the notice, including
electronic mailing and also publication on the department website, of notices
to the persons, groups of persons, organizations, and associations who the
department considers to be interested in such adoption;
(d) By mailing or furnishing a copy of the notice to
the Associated Press and Capitol Press Room;
(e) By mailing a copy of the notice to the legislators
specified in ORS 183.335(15) at least 49 days before the effective date of the
rule;
(f) The department, at its discretion, may purchase a
display ad in a newspaper of statewide circulation to publicize the rulemaking;
and
(g) In instances where the rulemaking adopts, amends or
repeals a statewide planning goal, the department shall provide additional
notice as required by statute.
(2) The Commission may adopt, amend or suspend any rule
by temporary rule without prior notice or hearing or upon any abbreviated
notice and hearing that it finds practicable pursuant to ORS 183.335(5). At the
time the Commission adopts, amends or suspends any rule under this section, it
shall:
(a) Prepare and adopt the statements and rule documents
required by ORS 183.335(5)(a) to (e) which includes the Commission’s statement
of its findings “that its failure to act promptly will result in serious
prejudice to the public interest or the parties concerned and the specific
reasons for its findings of prejudice;” and
(b) Include in the notice of adoption of any temporary
rule a statement explaining the opportunity for judicial review of the validity
of the rule as provided in ORS 183.400.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 183
Hist.: LCD 7-1976, f. & ef.
6-4-76; LCDC 1-1995, f. & cert. ef. 1-4-95; LCCD 2-2004, f. & cert. ef.
5-7-04; LCDD 12-2010, f. & cert. ef. 12-8-10
660-001-0005
Model Rules of Procedure
(1) Pursuant to the provisions of ORS 183.341, the Land
Conservation and Development Commission adopts the Attorney General’s Model
Rules and Uniform Rules of Procedure under the Administrative Procedure Act,
effective January 1, 2008, except for that portion of OAR 137-003-0092(2)
regarding the number of calendar days allowed to act on a stay request. The
number of calendar days allowed to act on a stay request shall be 75 days
rather than 30 days.
(2) Pursuant to the provisions of ORS 183.457 and OAR
137-003-0008, the Land Conservation and Development Commission authorizes
parties and limited parties to contested case proceedings to be represented by
an authorized representative, subject to the other requirements of ORS 183.457
and OAR 137-003-0008.
[ED. NOTE: The full text of the
Attorney General’s Model Rules of Procedure is available from the office of the
Attorney General or the Land Conservation and Development Department.]
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 183.341
& 183.457
Hist.: LCD 3, f. 1-9-75, ef.
2-11-75; Renumbered from 660-010-0005; LCD 5-1978, f. & ef. 3-24-78; LCD
11-1981, f. & ef. 12-15-81; LCDC 8-1983, f. & ef. 11-23-83; LCDC
2-1986, f. & ef. 4-25-86; LCDC 4-1988, f. & cert. ef. 9-29-88; LCDC
4-1990, f. & cert. ef. 8-14-90; LCDC 4-1992, f. & cert. ef. 7-30-92;
LCDC 1-1995, f. & cert. ef. 1-4-95; LCDC 1-1996, f. & cert. ef. 4-3-96;
LCDD 1-1999, f. & cert. ef. 1-6-99; LCDD 2-2002, f. & cert. ef. 9-23-02;
LCDD 12-2010, f. & cert. ef. 12-8-10
660-001-0007
Request for Stay — Agency
Determination
Except as provided in OAR 660-001-0005(1) with regard
to the number of calendar days allowed to act on a stay request, agency
determinations concerning a request for a stay will be processed under OAR
137-003-0090 to 137-003-0092.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 183, 195,
196, 197 & OAR Ch. 137
Hist.: LCDC 2-1985, f. & ef.
3-13-85; LCDD 12-2010, f. & cert. ef. 12-8-10
660-001-0201
Definitions
The following definition, and the definitions in ORS
197.015 and 197.090(2)(e), apply to rules 660-001-0210 through 660-001-0220:
“Affected local government” means the local government, as defined in ORS
197.015, that made or adopted the land use decision, expedited land division or
limited land use decision at issue in the director’s request under these rules.
Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 197.090
Hist.: LCDD 1-2000, f. & cert.
ef. 1-24-00; LCDD 12-2010, f. & cert. ef. 12-8-10
660-001-0210
Timing of Director’s Request
(1) If a meeting of the commission is scheduled to
occur six or fewer days before the close of the applicable appeal period, or
the period for intervention in an appeal, the director shall seek commission
approval before appealing, or intervening in, a land use decision, expedited
land division or limited land use decision to the Land Use Board of Appeals. If
the next scheduled meeting of the commission does not occur or a quorum of the
commission is unavailable at the scheduled meeting, the department shall
proceed as provided in section (2) of this rule.
(2) If there is no commission meeting scheduled to
occur six or fewer days before the close of the applicable appeal period, or
the period for intervention in an appeal, the director may file, or intervene
in, the appeal and report the action to the commission and request permission
to pursue the appeal, or intervention, at the commission’s next scheduled
meeting.
Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 197.090
Hist.: LCDD 1-2000, f. & cert.
ef. 1-24-00; LCDD 12-2010, f. & cert. ef. 12-8-10
660-001-0220
Notice
(1) When the director seeks commission approval to file
or pursue an appeal, or an intervention in an appeal, of a land use decision,
expedited land division or limited land use decision, the department shall
provide written notice to the applicant and the affected local government. The
notice shall:
(a) Identify the land use decision, expedited land
division or limited land use decision at issue;
(b) Give the date and location of the commission
meeting at which the director will seek commission approval to file or pursue
an appeal, or an intervention in an appeal, of the identified action;
(c) Inform the applicant and affected local government
that each may provide written and oral testimony to the commission concerning
whether to approve the director’s request; and
(d) Include a list of the factors in OAR
660-001-0230(3), on which all testimony and the commission’s decision must be
based.
(2) The notice shall be mailed or sent by some other
means such as fax or e-mail as soon as practicable after the department
receives notice of the land use decision, expedited land division or limited
land use decision at issue.
Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 197.090
Hist.: LCDD 1-2000, f. & cert.
ef. 1-24-00; LCDD 12-2010, f. & cert. ef. 12-8-10
660-001-0230
Commission Hearing
(1) Only the director, or department staff on the
director’s behalf, the applicant and the affected local government may submit
written or oral testimony concerning whether the commission should approve the
director’s request to file or pursue an appeal, or an intervention in an
appeal, of a land use decision, expedited land division or limited land use
decision.
(2) Unless the director allows a closer deadline,
written testimony must be submitted at least five days before the commission
meeting to be provided to commission members in advance of the meeting. Written
testimony shall be no more than five pages, including any attachments, and must
be received in the Department’s Salem office to be “submitted” by the deadline.
If the time to submit written testimony under these rules falls on a Saturday,
Sunday, or state legal holiday, the time to perform the obligation shall be
shortened to the next day preceding that is not a Saturday, Sunday, or state
legal holiday.
(3) Written and oral testimony and the commission’s
decision to approve or deny the director’s request shall be based on one, or
more, of the following factors:
(a) Whether the case will require interpretation of a
statewide planning statute, goal, or rule;
(b) Whether a ruling in the case will serve to clarify
state planning law;
(c) Whether the case has important enforcement value;
(d) Whether the case concerns a significant natural,
cultural, or economic resource;
(e) Whether the case advances the objectives of the
agency’s Strategic Plan; or
(f) Whether there is a better way to accomplish the
objective of the appeal, such as dispute resolution, enforcement proceedings,
or technical assistance.
(4) The Chair shall limit the amount of time each
speaker may testify, and shall exclude written or oral testimony not relevant
to the factors in OAR 660-001-0230(3).
(5) Unless the Chair establishes a different order, oral
testimony will be presented in the following sequence:
(a) Director, and/or department staff;
(b) Applicant;
(c) Affected local government; and
(d) Director, and/or department staff.
(6) No rebuttal or response is permitted, although the
commissioners may question the director, department staff, the applicant, and
the affected local government regarding the factors during the commission’s
deliberations.
Stat. Auth.: ORS 197.040(1)(c)
Stats. Implemented: ORS 197.090
Hist.: LCDD 1-2000, f. & cert.
ef. 1-24-00; LCDD 12-2010, f. & cert. ef. 12-8-10
660-003-0005
Definitions
For purposes of this rule, the definitions contained in
ORS 197.015 apply. In addition, the following definitions apply:
(1) “Acknowledgment of Compliance” is an order of the
commission issued pursuant to ORS 197.251(1) that certifies that a
comprehensive plan and land use regulation, land use regulations or plan or
regulation amendment complies with the goals.
(2) “Affected Agencies and Districts” are state and
federal agencies, special districts and other local governments having programs
affecting land use.
(3) “Comments” are opinions, beliefs, or other
information which a person, local coordinating body or local government wants
the commission to consider in reviewing an acknowledgment request.
(4) “Objections” are statements or positions by persons
(including the local coordinating body, affected agencies or districts)
opposing the granting of an Acknowledgment of Compliance.
(5) “Compliance Schedule” is a listing of the tasks
which a local government must complete in order to bring its comprehensive
plan, land use regulations and land use decisions into initial compliance with
the goals, including a generalized time schedule showing when the tasks are estimated
to be completed and when a comprehensive plan or land use regulations which
comply with the goals are estimated to be adopted.
(6) “Urban Planning Area” is a geographical area within
an urban growth boundary.
(7) “Continuance” is an order of the commission issued
pursuant to ORS 197.251(1) that certifies that a comprehensive plan, land use
regulations or both do not comply with one or more goals and certifies that
section(s) of the plan or regulation or both comply with one or more of the
goals. The order specifies amendments or other action that the local government
must complete within a specified time period for acknowledgment to occur. The
order is final for purposes of judicial review of the comprehensive plan, land
use regulation or both as to the goals with which the plan, regulation or both
the plan and regulation are in compliance.
(8) “Denial” is an order of the commission issued
pursuant to ORS 197.251(1) that certifies that a comprehensive plan, land use
regulations or both do not comply with one or more goals. The order specifies
amendments or other actions that the local government must complete for
acknowledgment to occur. The order is used when the amendments or other changes
required in the comprehensive plan, land use regulation or both affect many
goals and are likely to take a substantial period of time to complete.
(9) “Record of Proceedings Before the Local
Government”, as used in ORS 197.251, means the materials submitted to the
director as part of an acknowledgment request in accordance with OAR
660-003-0010(2)(a), (b) and (c), supporting evidence and documents and any
official minutes or tapes of meetings leading to the adoption of a
comprehensive plan, land use regulations or amendments thereto. Supporting
evidence and documents listed, but not submitted with the acknowledgment
request as provided in OAR 660-003-0010(2)(b) shall be considered part of the
record of proceedings before the local government and part of the record of
proceedings before the local government and part of the record before the
commission. Notwithstanding the requirements of OAR 660-003-0010(2)(b) the
director may require that such evidence or documents, or a copy, be provided to
the department for convenience or if required for judicial review. This definition
applies to all acknowledgment requests, corrections submitted pursuant to a
commission’s continuance order and new acknowledgement requests subsequent to a
commission’s denial order submitted to the director after the effective date of
this rule.
(10) “Filing” or “Submitted” for purposes of these
rules shall mean that the required documents have been received by the
department at its Salem, Oregon office.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.015
& 197.251
Hist.: LCD 8-1978, f. 6-30-78, ef.
7-2-78; LCD 9-1981(Temp), f. & ef. 10-1-81; LCD 13-1981, f. & ef.
12-15-81; LCDC 3-1985, f. & ef. 7-2-85; LCDD 12-2010, f. & cert. ef.
12-8-10
660-003-0010
Acknowledgment Procedures
(1) When a local government has adopted a comprehensive
plan and land use regulations, as provided by ORS 197.175 and 197.250, prepared
corrections pursuant to a commission’s continuance order, or prepares a new
acknowledgment request subsequent to a commission’s denial order, it may
request the commission to grant an acknowledgment of compliance. An
acknowledgment request shall be sent to the director of the department.
(2) The acknowledgment request shall include:
(a) A list by ordinance number and adoption date and
six copies of the plans and implementing ordinances or land use regulations,
inventories and other factual information to be reviewed, provided that two
additional copies shall be required by the director for counties and coastal
jurisdictions;
(b) Six copies of a list of all supporting documents,
including minutes and tapes which comprise the “record of proceedings” provided
that two (2) additional copies shall be required by the director for counties
and coastal jurisdictions. The list of all supporting evidence and documents
shall identify any items not included with each plan copy, briefly describe the
contents of the items not included and identify where those items may be
examined by the commission, department, affected agencies and districts and
interested persons. The local government shall make such supporting evidence
and documents available at the hearing before the commission held pursuant to
OAR 660-003-0025;
(c) Six copies of a written statement setting forth the
means by which a plan for management of the unincorporated area within the
urban growth boundary will be completed and by which the urban growth boundary
may be modified (unless the same information is incorporated in other documents
submitted in the acknowledgment request), provided that two additional copies
shall be required by the director for counties and coastal jurisdictions;
(d) The name and address of the person representing the
local government to receive notice of commission consideration of the
acknowledgment request and to receive a copy of the director’s report required
under OAR 660-003-0025;
(e) A list of all affected agencies and districts,
including addresses, identified in the local government’s agency involvement
program; and
(f) A list of the names and addresses of the
chairperson of the Committee for Citizen Involvement and other citizen advisory
committees, if any.
(3) The local government requesting acknowledgment
shall send a single copy of the materials described in section (2) of this rule
to the appropriate local coordination body as defined in ORS 195.025.
(4) Upon receipt of a compliance acknowledgment
request, the department shall review the request to determine whether the
request for acknowledgment contains each of the documents and information
required by section (2) of this rule. The department may decline to accept an
acknowledgment request submitted for only a portion of the area of a local
government.
(5) If the request is complete, the department shall
commence its review of the request as required by OAR 660-003-0025 and shall
provide the public notice required by OAR 660-003-0015.
(6) If the request is not complete, the department,
within 14 days of receipt of the acknowledgment request, shall in writing,
notify the local government what specific requirements of section (2) of this
rule have not been met. If, after 30 days from receipt of an acknowledgment
request a city or county has not provided the department with the required
documents or information, the department shall advise the local government that
the request is not complete and shall in writing inform the local government
and local coordinating body of such determination.
(7) For purposes of the 90 day period as used in ORS
197.251(1), “request” means an acknowledgment request determined by the
department to include all the necessary materials required by subsections
(2)(a) through (f) of this rule, and thus be complete.
(8) Notwithstanding any of the provisions of section
(1) of this rule, when the director determines that a modification of any of
the above rules is consistent with the applicable laws and in the best
interests of the public, he may make exceptions to the application of section
(2) of this rule. However, in waiving or modifying the above rules, the
director must assure a reasonable opportunity to review documents and prepare
and submit comments and objections.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.251
Hist.: LCD 8-1978, f. 6-30-78, ef.
7-2-78; LCD 6-1979(Temp), f. & ef. 9-6-79; LCD 1-1980, f. & ef.
1-14-80; LCD 9-1981(Temp), f. & ef. 10-1-81; LCD 13-1981, f. & ef.
12-15-81; LCDC 3-1985, f. & ef. 7-2-85; LCDD 12-2010, f. & cert. ef.
12-8-10
660-003-0015
Notice
The department shall, in writing, provide notice of the
procedures and time limits for making comments or objections and of the
locations where the acknowledgment request documents can be inspected by the
general public and specifically to the following (except as provided in OAR
660-003-0032 through 660-003-0050):
(1) Affected agencies and districts identified by the
local government or the department;
(2) The Local Officials Advisory Committee (LOAC) and
the State Citizen Involvement Advisory Committee (CIAC);
(3) The county or regional planning agency acting as
the local coordination body pursuant to ORS 195.025;
(4) The chairpersons of the local Committee(s) for
Citizen Involvement and other citizen advisory committees identified in the
acknowledgment request pursuant to OAR 660-003-0010(2)(f);
(5) Any other person(s) who have in writing to the
department requested notice.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.251
Hist.: LCD 8-1978, f. 6-30-78, ef.
7-2-78; LCD 9-1981(Temp), f. & ef. 10-1-81; LCD 13-1981, f. & ef.
12-15-81; LCDC 3-1990, f. & cert. ef. 6-6-90; LCDD 12-2010, f. & cert.
ef. 12-8-10
660-003-0020
Comments and Objections
(1) After notice of receipt of the acknowledgment
request has been mailed there shall be a 45 day period to submit written
comments or objections together with any additional evidence to the department.
However, after notice of receipt of the acknowledgment request resubmitted
subsequent to a continuance order has been mailed there shall be a time period
determined by the director of at least 20 days to submit written comments or
objections together with any additional evidence to the department.
(2) Any person(s) commenting or objecting to an
acknowledgment request are urged to send written copy of their comments or
objection(s) to the local government which has requested acknowledgment. When
an objection is based upon site-specific goal requirements as applied to
particular properties, the person objecting is urged to send a written copy of
the objection to those persons owning the property which is the subject of the
objection. State agency and special district comments or objections shall be
subject to the requirements of ORS 197.254.
(3) The commission shall consider only those comments
and objections to an acknowledgment request that allege that the local
government’s plan, ordinances or land use regulations do or do not comply with
one or more of the goals.
(4) Any comments and objections or additional evidence
which is not received by the department within the time required by section (1)
of this rule shall not be considered by the commission unless the commission
determines that such evidence could not have been presented as required by
section (1) of this rule.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.251
& 197.254
Hist.: LCD 8-1978, f. 6-30-78, ef.
7-2-78; LCD 9-1981(Temp), f. & ef. 10-1-81; LCD 13-1981, f. & ef.
12-15-81; LCDC 3-1985, f. & ef. 7-2-85; LCDD 12-2010, f. & cert. ef.
12-8-10
660-003-0025
Acknowledgment Review
(1) When an acknowledgment request, corrections
submitted pursuant to a commission’s continuance order or a new acknowledgement
request subsequent to a commission’s denial order has been received by the
director, the department shall conduct an evaluation of the submitted plan,
ordinances or land use regulations in order to advise the commission whether or
not they comply with the Statewide Planning Goals. The department may
investigate and resolve issues raised in the comments and objections or upon
the department’s own review of the comprehensive plan and land use regulations.
The department may collect or develop evidence which rebuts any supporting
documents, comments, objections or evidence submitted pursuant to OAR
660-003-0010(2) or 660-003-0020(1). The results of this evaluation including
response to all objections timely submitted shall be set forth in a written
report. However, the failure to respond to an objection which was timely filed
shall not be grounds for invalidation of a commission order issued under this
rule. Copies of the department’s report shall be sent to the local government
requesting acknowledgment, the local coordination body, any person who has in
writing commented or objected to the acknowledgment request, within the time
period required by OAR 660-003-0020(1), and any other person requesting a copy
in writing. The department shall send out copies of the report on an
acknowledgment request at least 21 days before commission review of the
acknowledgment request. However, the department shall send out copies of the
report on corrections submitted pursuant to a commission’s continuance order at
least 14 days before commission review of such request.
(2) The local government, persons who have submitted
written comments or objections under OAR 660-003-0020(1) or persons who own
property which is the subject of site specific objections received under OAR
660-003-0020(1) shall have ten calendar days from the date of mailing of the
department’s report to file written exceptions to that report. Except as
provided in section (3) of this rule, written exceptions shall not include
additional evidence. Persons or local governments submitting exceptions are
urged to file a copy with the affected local government and persons who
submitted comments or objections. The department shall promptly submit
exceptions to the commission.
(3) Written exceptions to the department’s report filed
pursuant to section (2) of this rule may include evidence to rebut any
additional evidence submitted pursuant to OAR 660-003-0020(1) or developed by
the department pursuant to section (1) of this rule. Written exceptions which
include rebuttal evidence pursuant to this section, shall clearly identify the
additional evidence being rebutted and shall be limited to rebuttal evidence.
Final rebuttal evidence allowed under this section shall not create a right to
submit additional evidence to the commission under section (5) of this rule.
(4) The department may submit a written or oral opinion
to the commission regarding any evidence, comments, objections, or exceptions
submitted to the commission concerning an acknowledgment request. Persons
submitting comments, objections, or exceptions within the time periods set
forth in OAR 660-003-0020(1) or section (2) of this rule shall be permitted to
submit evidence to rebut any new evidence submitted for the first time pursuant
to section (3) of this rule.
(5) The commission may allow any person who filed
written comments or objections within the time period set forth in OAR
660-003-0020(1) to appear before the commission to present oral argument on
their written comments, objections or exceptions. The commission shall not
allow any additional evidence and testimony that could have been presented to
the local government or to the director in accordance with OAR 660-003-0020(1)
or section (3) of this rule, but was not. Any new evidence submitted during, or
as part of, oral argument shall not be considered by the commission unless the
commission determines that such evidence could not have been presented to the
local government or to the director in accordance with OAR 660-003-0020(1) or
[6]section (3) of this rule.
(6) The commission may allow any interested person who
has not filed written comments or objections pursuant to OAR 660-003-0020 to
comment on evidence, testimony or the director’s report that has already been
presented to the commission. Such comments shall not be part of the record
before the commission and shall not be considered comments or objections
submitted pursuant to ORS 197.251(2).
(7) At the time of consideration of the acknowledgment
request, the commission shall either grant, continue, postpone for extenuating
circumstances or deny the acknowledgment request, or any combination of these
actions including partial acknowledgment, pursuant to ORS 197.251(1).
(8) Commission orders for acknowledgment, continuance
or denial shall be provided to the local government requesting acknowledgment,
and persons who filed comments or objections.
(9) When the commission resumes its consideration of
the acknowledgment request, submitted subsequent to a continuance order, it
shall limit its review to a determination of whether the corrections submitted
bring the acknowledgment submission into compliance with the Statewide Planning
Goals found not to be complied with in the previous review, unless compliance with
other goals is affected by the corrections.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.251,
197.254, 197.340, 197.747 & 197.757
Hist.: LCD 8-1978, f. 6-30-78, ef.
7-2-78; LCD 9-1981(Temp), f. & ef. 10-1-81; LCD 13-1981, f. & ef.
12-15-81; LCDC 3-1985, f. & ef. 7-2-85; LCDD 3-2004, f. & cert. ef.
5-7-04; LCDD 12-2010, f. & cert. ef. 12-8-10
660-003-0032
Expedited Review Upon
Reconsideration or Consideration of a Subsequent Request for Acknowledgment
(1) When the commission reconsiders an acknowledgment
request pursuant to a continuance order, the commission may expedite the
acknowledgment procedure by waiving, reducing or otherwise modifying the
requirements of OAR 660-003-0010, 660-003-0015, and 660-003-0020; provided,
however, that notice will be provided to the local government, the coordination
body, those persons who have submitted comments or objections on this portion
of the acknowledgment request in accordance with the requirement of OAR
660-003-0020(1) and (2), those persons who request notice in writing, and a
general newspaper notice. Upon resubmittal such notice shall state that there
is at least a 20 day period to be determined by the director for submission of
written comments or objections from the mailing of the notice of the receipt of
the acknowledgment request. However, in the judgment of the director, where
continuances involve relatively complex issues, the notice shall provide the
maximum notice possible, up to 45 days.
(2) When the commission reconsiders an acknowledgment
request subsequent to a continuance order; the commission shall expedite the
acknowledgment procedure by relying on the previous record and limiting
additional comments and objections, affected agency comments, and the
department’s review to only those aspects of a city’s or county’s comprehensive
plan or implementing ordinances previously identified by the commission as not
being in compliance.
(3) Upon receipt of corrections made pursuant to a
continuance order submitted by a local government the department shall notify
all persons who are entitled to notice of the local government’s acknowledgment
request under section (1) of this rule, of the time and place where the
corrections may be inspected and the time within which objections or comments
to the corrections must be submitted.
(4) Written comments or objections to the corrections
made pursuant to a continuance order by the commission shall be submitted to
the department in accordance with OAR 660-003-0020.
(5) The commission’s review of corrections made pursuant
to a continuance order or the commission’s review of a new acknowledgment
request made subsequent to a denial by the commission will be conducted in
accordance with the requirements of OAR 660-003-0025.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.251
Hist.: LCD 9-1981(Temp), f. &
ef.10-1-81; LCD 13-1981, f. & ef. 12-15-81; LCDD 12-2010, f. & cert.
ef. 12-8-10
660-003-0033
Expedited Notice Procedure for
Acknowledgment
(1) When during an acknowledgment review, a city or
county changes its plan or land use regulations after the comment period
provided for in either OAR 660-003-0020(1) or 660-003-0032(1), the director may
determine that additional notice to the public or persons who have submitted
comments or objections is not necessary prior to consideration of the
jurisdiction’s acknowledgment request by the commission. In making this
determination, the director shall carefully consider the complexity of the goal
compliance issues involved, the nature and number of comments and objections
previously received, the opportunities provided by the jurisdiction for public
review and comment on recent amendments and the length of time between the
adoption of the recent amendments and the date of commission action on the
jurisdiction’s acknowledgment request. The department shall work closely with
persons who have previously submitted comments and objections and the
jurisdiction to resolve any conflicts concerning the additional amendments
prior to commission action on the acknowledgment request.
(2) The director may forego additional notice to the
public and persons who have submitted comments or objections only if the
jurisdiction provides general notice to the public and notifies persons who
submitted comments or objections in writing of an opportunity to participate in
the local hearing(s) regarding the adoption of the additional amendments. The
jurisdiction shall send a copy of the written notice to all persons who
submitted comments or objections and to the department in Salem.
(3) When the commission considers the jurisdiction’s
request for acknowledgment, the commission shall allow testimony from the
public or persons who have submitted comments or objections which allege
inadequate opportunity for review of the jurisdiction’s amendment adopted after
the comment deadline. If the commission determines that further notice and
opportunity for comment is needed, or if additional opportunity to file
exceptions to the director’s report under ORS 197.251(3) is required, it shall
instruct the director to provide such notice and opportunity for comment before
the commission acts on the jurisdiction’s acknowledgment request.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.251
Hist.: LCDC 6-1983, f. & ef.
7-20-83; LCDD 12-2010, f. & cert. ef. 12-8-10
660-003-0050
Review Upon Remand or Reversal
from Oregon Court of Appeals or Oregon Supreme Court
(1) The commission shall reconsider an acknowledgment
request as a result of a remand or reversal from the Oregon Court of Appeals or
Oregon Supreme Court within 90 days of the date the decision becomes final. The
director shall review the Court’s decision and make written recommendations to
the commission regarding any additional planning work that is required for
acknowledgment of compliance with the goals as a result of the Court’s
decision.
(2) The director’s recommendations shall be sent out at
least 14 days before the commission’s reconsideration of the acknowledgment
request subject to the Court’s remand or reversal. The director’s
recommendations shall be sent to the applicable local government, local
coordination body, parties on appeal and those persons who, according to the
department’s records, were mailed a copy of the commission’s acknowledgment or
continuance order subject to the Court’s remand or reversal.
(3) The persons mailed a copy of the director’s
recommendations under section (2) of this rule shall have ten calendar days
from the date of mailing of the director’s recommendations to file with the
director written exceptions to those recommendations.
(4) The director may submit a written or oral opinion
to the commission regarding exceptions submitted to the commission concerning
the remand or reversal.
(5) The commission may allow any person who received a
copy of the director’s recommendation under section (1) of this rule or who
filed written exceptions within the time period set forth in section (3) of
this rule to appear before the commission to present oral comments on the
director’s recommendation or their written exceptions. The commission shall not
allow additional evidence to be presented which was not part of the record of
the commission’s initial acknowledgment review subject to the Court’s remand or
reversal.
(6) The commission may allow any interested person who
was not mailed a copy of the director’s recommendation or did not file a
written exception pursuant to sections (1) and (3) of this rule to comment on
the director’s recommendation or submitted written exceptions.
(7) Following review of the director’s recommendation
and any exceptions, the commission shall enter a continuance order for those
parts of the comprehensive plan or land use regulations for which the court
determined that goal compliance had not been demonstrated. The commission may
also enter a limited acknowledgment order for parts of the comprehensive plan
and land use regulations not affected by the continuance order.
(8) The commission’s review of corrections made
pursuant to an order issued pursuant to section (7) of this rule will be
conducted in accordance with the requirements of OAR 660-003-0025 or
660-003-0033.
Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 197.251
Hist.: LCDC 6-1985, f. & ef.
11-15-85; LCDD 12-2010, f. & cert. ef. 12-8-10
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
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