76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1944
House Bill 2181
Sponsored by Representative KRIEGER; Representatives ESQUIVEL,
SCHAUFLER (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies attorney fees provision related to review of decision
of local government before Land Use Board of Appeals. Directs
board to award attorney fees and expenses to prevailing party if
prevailing party was applicant before local government.
Directs appellate courts to award attorney fees and expenses to
prevailing party on review of decision of Land Use Board of
Appeals if prevailing party was applicant before local
government.
A BILL FOR AN ACT
Relating to land use appeals; creating new provisions; and
amending ORS 197.830 and 197.850.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 197.830 is amended to read:
197.830. (1) Review of land use decisions or limited land use
decisions under ORS 197.830 to 197.845 shall be commenced by
filing a notice of intent to appeal with the Land Use Board of
Appeals.
(2) Except as provided in ORS 197.620 (1) and (2), a person may
petition the board for review of a land use decision or limited
land use decision if the person:
(a) Filed a notice of intent to appeal the decision as provided
in subsection (1) of this section; and
(b) Appeared before the local government, special district or
state agency orally or in writing.
(3) If a local government makes a land use decision without
providing a hearing, except as provided under ORS 215.416 (11) or
227.175 (10), or the local government makes a land use decision
that is different from the proposal described in the notice of
hearing to such a degree that the notice of the proposed action
did not reasonably describe the local government's final actions,
a person adversely affected by the decision may appeal the
decision to the board under this section:
(a) Within 21 days of actual notice where notice is required;
or
(b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
(4) If a local government makes a land use decision without a
hearing pursuant to ORS 215.416 (11) or 227.175 (10):
(a) A person who was not provided mailed notice of the decision
as required under ORS 215.416 (11)(c) or 227.175 (10)(c) may
appeal the decision to the board under this section within 21
days of receiving actual notice of the decision.
(b) A person who is not entitled to notice under ORS 215.416
(11)(c) or 227.175 (10)(c) but who is adversely affected or
aggrieved by the decision may appeal the decision to the board
under this section within 21 days after the expiration of the
period for filing a local appeal of the decision established by
the local government under ORS 215.416 (11)(a) or 227.175
(10)(a).
(c) A person who receives mailed notice of a decision made
without a hearing under ORS 215.416 (11) or 227.175 (10) may
appeal the decision to the board under this section within 21
days of receiving actual notice of the nature of the decision, if
the mailed notice of the decision did not reasonably describe the
nature of the decision.
(d) Except as provided in paragraph (c) of this subsection, a
person who receives mailed notice of a decision made without a
hearing under ORS 215.416 (11) or 227.175 (10) may not appeal the
decision to the board under this section.
(5) If a local government makes a limited land use decision
which is different from the proposal described in the notice to
such a degree that the notice of the proposed action did not
reasonably describe the local government's final actions, a
person adversely affected by the decision may appeal the decision
to the board under this section:
(a) Within 21 days of actual notice where notice is required;
or
(b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
(6)(a) Except as provided in paragraph (b) of this subsection,
the appeal periods described in subsections (3), (4) and (5) of
this section shall not exceed three years after the date of the
decision.
(b) If notice of a hearing or an administrative decision made
pursuant to ORS 197.195 or 197.763 is required but has not been
provided, the provisions of paragraph (a) of this subsection do
not apply.
(7)(a) Within 21 days after a notice of intent to appeal has
been filed with the board under subsection (1) of this section,
any person described in paragraph (b) of this subsection may
intervene in and be made a party to the review proceeding by
filing a motion to intervene and by paying a filing fee of $100.
(b) Persons who may intervene in and be made a party to the
review proceedings, as set forth in subsection (1) of this
section, are:
(A) The applicant who initiated the action before the local
government, special district or state agency; or
(B) Persons who appeared before the local government, special
district or state agency, orally or in writing.
(c) Failure to comply with the deadline or to pay the filing
fee set forth in paragraph (a) of this subsection shall result in
denial of a motion to intervene.
(8) If a state agency whose order, rule, ruling, policy or
other action is at issue is not a party to the proceeding, it may
file a brief with the board as if it were a party. The brief
shall be due on the same date the respondent's brief is due and
shall be accompanied by a filing fee of $100.
(9) A notice of intent to appeal a land use decision or limited
land use decision shall be filed not later than 21 days after the
date the decision sought to be reviewed becomes final. A notice
of intent to appeal plan and land use regulation amendments
processed pursuant to ORS 197.610 to 197.625 shall be filed not
later than 21 days after notice of the decision sought to be
reviewed is mailed or otherwise submitted to parties entitled to
notice under ORS 197.615. Failure to include a certificate of
mailing with the notice mailed under ORS 197.615 shall not render
the notice defective. Copies of the notice of intent to appeal
shall be served upon the local government, special district or
state agency and the applicant of record, if any, in the local
government, special district or state agency proceeding. The
notice shall be served and filed in the form and manner
prescribed by rule of the board and shall be accompanied by a
filing fee of $200 and a deposit for costs to be established by
the board. If a petition for review is not filed with the board
as required in subsections (10) and (11) of this section, the
filing fee and deposit shall be awarded to the local government,
special district or state agency as cost of preparation of the
record.
(10)(a) Within 21 days after service of the notice of intent to
appeal, the local government, special district or state agency
shall transmit to the board the original or a certified copy of
the entire record of the proceeding under review. By stipulation
of all parties to the review proceeding the record may be
shortened. The board may require or permit subsequent corrections
to the record; however, the board shall issue an order on a
motion objecting to the record within 60 days of receiving the
motion.
(b) Within 10 days after service of a notice of intent to
appeal, the board shall provide notice to the petitioner and the
respondent of their option to enter into mediation pursuant to
ORS 197.860. Any person moving to intervene shall be provided
such notice within seven days after a motion to intervene is
filed. The notice required by this paragraph shall be accompanied
by a statement that mediation information or assistance may be
obtained from the Department of Land Conservation and
Development.
(11) A petition for review of the land use decision or limited
land use decision and supporting brief shall be filed with the
board as required by the board under subsection (13) of this
section.
(12) The petition shall include a copy of the decision sought
to be reviewed and shall state:
(a) The facts that establish that the petitioner has standing.
(b) The date of the decision.
(c) The issues the petitioner seeks to have reviewed.
(13)(a) The board shall adopt rules establishing deadlines for
filing petitions and briefs and for oral argument.
(b) At any time subsequent to the filing of a notice of intent
and prior to the date set for filing the record, or, on appeal of
a decision under ORS 197.610 to 197.625, prior to the filing of
the respondent's brief, the local government or state agency may
withdraw its decision for purposes of reconsideration. If a
local government or state agency withdraws an order for purposes
of reconsideration, it shall, within such time as the board may
allow, affirm, modify or reverse its decision. If the petitioner
is dissatisfied with the local government or agency action after
withdrawal for purposes of reconsideration, the petitioner may
refile the notice of intent and the review shall proceed upon the
revised order. An amended notice of intent shall not be required
if the local government or state agency, on reconsideration,
affirms the order or modifies the order with only minor changes.
(14) The board shall issue a final order within 77 days after
the date of transmittal of the record. If the order is not issued
within 77 days the applicant may apply in Marion County or the
circuit court of the county where the application was filed for a
writ of mandamus to compel the board to issue a final order.
(15) { - (a) - } Upon entry of its final order the
board { + :
(a) + } May, in its discretion, award costs to the prevailing
party including the cost of preparation of the record if the
prevailing party is the local government, special district or
state agency whose decision is under review. The deposit required
by subsection (9) of this section shall be applied to any costs
charged against the petitioner.
(b) { - The board shall also - } { + Shall + } award
reasonable attorney fees and expenses to the prevailing party
{ - against any other party who the board finds presented a
position without probable cause to believe the position was
well-founded in law or on factually supported information - }
{ + if the prevailing party was the applicant before the local
government + }.
(16) Orders issued under this section may be enforced in
appropriate judicial proceedings.
(17)(a) The board shall provide for the publication of its
orders that are of general public interest in the form it deems
best adapted for public convenience. The publications shall
constitute the official reports of the board.
(b) Any moneys collected or received from sales by the board
shall be paid into the Board Publications Account established by
ORS 197.832.
(18) Except for any sums collected for publication of board
opinions, all fees collected by the board under this section that
are not awarded as costs shall be paid over to the State
Treasurer to be credited to the General Fund.
SECTION 2. ORS 197.850 is amended to read:
197.850. (1) Any party to a proceeding before the Land Use
Board of Appeals under ORS 197.830 to 197.845 may seek judicial
review of a final order issued in those proceedings.
(2) Notwithstanding the provisions of ORS 183.480 to 183.540,
judicial review of orders issued under ORS 197.830 to 197.845 is
solely as provided in this section.
(3)(a) Jurisdiction for judicial review of proceedings under
ORS 197.830 to 197.845 is conferred upon the Court of Appeals.
Proceedings for judicial review are instituted by filing a
petition in the Court of Appeals. The petition must be filed
within 21 days following the date the board delivered or mailed
the order upon which the petition is based.
(b) Filing of the petition, as set forth in paragraph (a) of
this subsection, and service of a petition on all persons
identified in the petition as adverse parties of record in the
board proceeding is jurisdictional and may not be waived or
extended.
(4) The petition must state the nature of the order the
petitioner desires reviewed. Copies of the petition must be
served by first class, registered or certified mail on the board
and all other parties of record in the board proceeding.
(5) Within seven days after service of the petition, the board
shall transmit to the court the original or a certified copy of
the entire record of the proceeding under review, but, by
stipulation of all parties to the review proceeding, the record
may be shortened. The court may tax a party that unreasonably
refuses to stipulate to limit the record for the additional
costs. The court may require or permit subsequent corrections or
additions to the record when deemed desirable. Except as
specifically provided in this subsection, the court may not tax
the cost of the record to the petitioner or any intervening
party. However, the court may tax such costs and the cost of
transcription of record to a party filing a frivolous petition
for judicial review.
(6) Petitions and briefs must be filed within time periods and
in a manner established by the Court of Appeals by rule.
(7)(a) The court shall hear oral argument within 49 days of the
date of transmittal of the record.
(b) The court may hear oral argument more than 49 days from the
date of transmittal of the record provided the court determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. The court shall not hold oral argument more than 49 days
from the date of transmittal of the record because of general
congestion of the court calendar or lack of diligent preparation
or attention to the case by any member of the court or any party.
(c) The court shall set forth in writing a determination to
hear oral argument more than 49 days from the date the record is
transmitted, together with the reasons for its determination, and
shall provide a copy to the parties. The court shall schedule
oral argument as soon as practicable thereafter.
(d) In making a determination under paragraph (b) of this
subsection, the court shall consider:
(A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the court to prepare for oral argument;
and
(B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
(8) Judicial review of an order issued under ORS 197.830 to
197.845 shall be confined to the record. The court shall not
substitute its judgment for that of the board as to any issue of
fact.
(9) The court may affirm, reverse or remand the order. The
court shall reverse or remand the order only if it finds:
(a) The order to be unlawful in substance or procedure, but
error in procedure is not cause for reversal or remand unless the
court finds that substantial rights of the petitioner were
prejudiced thereby;
(b) The order to be unconstitutional; or
(c) The order is not supported by substantial evidence in the
whole record as to facts found by the board under ORS 197.835
(2).
(10) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
(11) If the order of the board is remanded by the Court of
Appeals or the Supreme Court, the board shall respond to the
court's appellate judgment within 30 days.
(12) A party must file with the board an undertaking with one
or more sureties insuring that the party will pay all costs,
disbursements and attorney fees awarded against the party by the
Court of Appeals if:
(a) The party appealed a decision of the board to the Court of
Appeals; and
(b) In making the decision being appealed to the Court of
Appeals, the board awarded attorney fees and expenses against
that party under ORS 197.830 (15)(b).
(13) Upon entry of its final order, the court shall award
attorney fees and expenses to { + :
(a) + } A party who prevails on a claim that an approval
condition imposed by a local government on an application for a
permit pursuant to ORS 215.416 or 227.175 is unconstitutional
under section 18, Article I, Oregon Constitution, or the Fifth
Amendment to the United States Constitution.
{ + (b) The prevailing party if the prevailing party was the
applicant before the local government. + }
(14) The undertaking required in subsection (12) of this
section must be filed with the board and served on the opposing
parties within 10 days after the date the petition was filed with
the Court of Appeals.
SECTION 3. { + The amendments to ORS 197.830 and 197.850 by
sections 1 and 2 of this 2011 Act apply to notices of intent to
appeal filed with the Land Use Board of Appeals under ORS 197.830
(1) on or after the effective date of this 2011 Act. + }
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