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Land-Use Decisions

ORS 197.015 Defines land use decisions to:

(a) Include:

(A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:

(i) The LCDC Goals;

(ii) A comprehensive plan provision;

(iii) A land use regulation; or

(iv) A new land use regulation; or

(B) A final decision or determination of a state agency other than the Commission with respect to which the agency is required to apply the goals.

(b) Not include a ministerial decision of a local government made under clear and objective standards contained in an acknowledged comprehensive plan or land use regulation and for which no right to a hearing is provided by the local government.

Types of Land-Use Decisions

Legislative - create and adopt as law general policies and regulations for future land use within a jurisdiction. Examples include the adoption or revision of a comprehensive plan, zoning regulations, or a subdivision ordinance. LCDC goals must be considered for legislative land-use decisions.

Quasi-Judicial - apply the law to specific land development or use proposals. Examples of quasi-judicial decisions include small-tract zoning designations, conditional use permits, and major land divisions. They typically involve the exercise of discretion by the decision-making official or body in applying general criteria of the plan or ordinance to the facts of a land development application. Quasi-judicial decisions always involve the property rights of specific persons.

Ministerial or Administrative - apply "clear and objective standards" for which the local government provides no right to a hearing. These decisions that are delegated to staff with the appropriate safeguards for the rights and interests of the affected parties. Examples include partitions or certain minor variances from standards.

Summary of Decision Requirements

Land Use Procedures and Practices

All Oregon communities are required to adopt implementing ordinances. Those ordinances spell out the requirements for land owners or developers in obtaining land use permit. The process starts with the applicant completing the required application materials. Most departments also provide general information on regulations, processes, and timing.

In more complicated instances, the applicant may request a pre-application conference. This can happen informally through phone calls, etc, or it can happen in a formal meeting.

Most jurisdictions encourage formal contact—improves application, makes processing more efficient.

Points to consider in pre-application conferences:

1. Does the application contain the all required elements?
2. Does the application comply with requirements of applicable statutes and ordinances?
3. Does the application contain unnecessary language that should be deleted?
4. Is the application clear and concise?
5. Has the application been reviewed and authorized by the appropriate staff?
6. Are all application forms clearly identified and arranged in a logical sequence?
7. Have provision been made to make application information available in a timely manner?

Application Review

Initial Review:

ORS 215.428-227.128 require final action on most applications within 120 days of the application being deemed complete.

Applicants must be advised of any missing information within 30 days of submittal.

Fees:

Most local governments assess fees at the time of submittal. Fees vary by jurisdiction.

Filing Systems:

All jurisdictions use filing systems. Following is an example of a common filing system:

98-1-CU-Smith

This can be read as follows:

1. the application was submitted in 1998
2. this was the first application of this type in 1998
3. The application is for a conditional use (CU) permit
4. The applicant’s last name is Smith

Coordinated Review:

ORS 197.190 allows coordinated review of land use applications. This can shorten review time for applications that fall within multiple jurisdictions.

Staff Reports:

Most quasi-judicial and legislative decisions require staff review after application and before the public hearing.

Staff reports assist the decision making body by assuring:

1. An adequate, factually-based hearing
2. A proper record
3. Adequate findings

Staff play a dual role: impartial facilitator, provide recommendations on decision

Staff reports are usually structured as a findings document and include the following sections:

• Basic facts
• General background
• Nature of site
• Nature of surrounding area
• Nature of request
• Applicable criteria and standards
• Conclusions

Public hearings

Notice of Hearing:

• Authority for notice requirements—for Cities, ORS 227.175(4); for Counties ORS 215.223(3) and 215.216(4). Moreover, ORS 227.170 and 215.412 require local governments adopt hearing procedures. The notice requirements of the Oregon open meeting law must be followed (ORS 192.640).

Who must be notified—Changed with passage of Measure 56 in 1998. Measure 56 expanded notification requirements for land use decisions that limit or prohibit uses currently allowed on the landowners' property. Most ordinances require notification of the applicant and owners of abutting land within a certain distance of the site.

• Time requirements—ORS 215.223(1) and 215.060 prescribe a 1—day notice period before a hearing adoption of certain land use decisions.

• Type of notice—Type of notice varies by jurisdiction. Notice can be made by mail, by posting, newspaper publication or personal delivery

• Content of Notice—The notice should state the nature of the application, describe the property, and give the time, place and date of the hearing.

Quasi-Judicial Procedures

Decisions that are quasi-judicial decisions have several basic requirements:

• Opportunity to be heard—this means that a public hearing must be available at some point in the local process.
• Right to present and rebut evidence—while participants have basic rights, the hearing body may set limits on the manner of presentation and rebuttal. This can include the length of oral testimony, encouragement of written testimony.
• Right to an impartial tribunal—Oregon courts have generally followed the interpretation that actual bias, rather than the appearance of bias, must be shown to demonstrate that a tribunal has not acted impartially. Contentions of bias usually arise from: (1) contacts outside the hearings process (ex parte contacts), and (2) conflicts of interest.
• An adequate record—A key purpose of a hearing is to create a record of evidence on which the decision can be made. Appeals of decisions usually rely solely on the decision record. The record contains all evidence presented at the hearing, including exhibits, maps, documents and other written material, all written testimony, the minutes of the hearing, and the findings of the decision body.
• Findings—quasi-judicial decisions must be supported by findings based on evidence in the record of the proceedings. Findings should be based on the relevant decision criteria, the basic facts discovered in the hearing, and a complete statement of reasons justifying the decision.

Appeals

1. Hearings officer
2. Planning Commission
3. City Council
4. LUBA
5. Court of Appeals
6. State Supreme Court

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This page maintained by Bob Parker
January 08, 2002