Bill Text: OR SB547 | 2011 | Regular Session | Introduced

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Bill Title: Relating to secondary land; declaring an emergency.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB547 Detail]

Download: Oregon-2011-SB547-Introduced.html

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     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 1091

                         Senate Bill 547

Sponsored by Senator GEORGE (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.

  Establishes policy, criteria, procedures and other factors for
identifying secondary land. Provides procedures that local
governments must follow after identification of secondary land.
  Establishes uses allowed in area zoned as secondary land.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to secondary land; creating new provisions; amending ORS
  197.298, 215.304 and 215.780; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:

                               { +
POLICY + }

  SECTION 1.  { + The purposes of sections 1 to 5 of this 2011
Act are to:
  (1) Declare that the policy of the State of Oregon is to
protect farmlands, forestlands and other natural resources in the
State of Oregon from the detrimental effects of land uses and
activities not related to resource use;
  (2) Provide greater protection for commercial resource lands in
Oregon than has been provided before the effective date of this
2011 Act, while authorizing a broader range of uses on secondary
land; and
  (3) Provide clear procedures to identify secondary lands in
Oregon. + }

                               { +
DESIGNATION OF SECONDARY LAND + }

  SECTION 2.  { + (1) Each county of this state may prepare a
report and a map that identifies secondary land and the uses
allowed on secondary land. The report need not contain detailed
findings of fact but must set forth in summary the conclusions
reached as to the designation of secondary land and the
determination of uses allowed on secondary land.
  (2) On review under ORS 197.610 to 197.625 of changes proposed
under this section, the Director of the Department of Land
Conservation and Development shall accept a county designation of
secondary land if the county identifies land that meets the
requirements of this section.
  (3) Secondary land is land:
  (a) Outside an urban growth boundary;
  (b) That is not commercial farmland or commercial forestland as
described in this section; and
  (c) For which an exception has not been adopted pursuant to ORS
197.732.
  (4) Commercial farmland is land:
  (a) In tracts that are predominantly composed of soils that are
classified prime, unique, Class I or Class II;
  (b) That:
  (A) Was employed, in 2004, 2005 or 2006, in farm use as defined
in ORS 215.203, except ORS 215.203 (2)(b)(E), for the production
of crops for market or research purposes, other than for
nonirrigated pasture or for growing nonirrigated grass hay; and
  (B) Is listed, on the effective date of this 2011 Act, by the
United States Department of Agriculture in the soil database for
each county as capable of producing at least 75 percent of the
average per-acre production of any one of three leading crops, in
acres, in the county in 2006 as set forth in the Oregon County
and State Agricultural Estimates report of the Oregon State
University Extension Service;
  (c) In Tillamook County that was used, in 2004, 2005 or 2006,
as irrigated pasture for livestock production or as nonirrigated
pasture for livestock production or dairy operations;
  (d) Not used in the production of commercial crops because it
is in a farm-related government program, such as an annual
commodity acreage adjustment program, a conservation reserve
program or any other federal conservation program; or
  (e) That was predominantly employed, in 2004, 2005 or 2006, in
growing grapes, cranberries or Christmas trees.
  (5) Crops grown on commercial farmland include but are not
limited to field, seed or nursery crops, aquacultural crops,
berries, fruit, Christmas trees, nuts, vegetables, specialty
crops, grapes and mechanically harvested forage crops other than
nonirrigated grass hay. Crops grown on commercial farmland also
include specified perennials as demonstrated by the most recent
aerial photography of the Farm Service Agency of the United
States Department of Agriculture.
  (6) Commercial forestland is land in a tract that:
  (a)(A) Is used predominantly for growing commercial tree
species recognized under rules adopted under ORS 527.715 for
commercial production in a density that, if harvested, would be
subject to reforestation requirements; or
  (B) If harvested after January 1, 1995, would be restocked
either with commercial tree species or subject to reforestation
requirements; and
  (b) Is more than 20 acres and:
  (A) Contains predominant forest soils productivity of more
than:
  (i) 85 cubic feet per acre per year in western Oregon except in
Josephine and Jackson Counties;
  (ii) 50 cubic feet per acre per year in Josephine and Jackson
Counties; or
  (iii) 30 cubic feet per acre per year in eastern Oregon; and
  (B) Is capable of producing at least the following amounts of
wood fiber per year that are permissible to harvest under ORS
527.610 to 527.770:
  (i) 5,000 cubic feet in western Oregon; and
  (ii) 4,000 cubic feet in eastern Oregon.
  (7) A county shall designate land that is not described as
commercial farmland or commercial forestland as secondary land.
  (8) A county may only designate secondary land in blocks of at
least 80 acres. Notwithstanding subsection (3) of this section,
an 80-acre block may include land designated as an exception area
under ORS 197.732 (2)(a) or (b). Inclusion of the exception area
as part of the 80-acre block does not cause the exception area to
qualify as secondary land. A 20-acre or larger portion of a
40-acre or larger tract containing commercial farmland or
commercial forestland may be included in the block if the 20-acre
or larger portion satisfies the requirements of subsection (3) of
this section.
  (9) As used in this section, 'block' means one or more
contiguous tracts. Land is deemed to be contiguous even if
separated by roadways, waterways, railroads or similar strips of
land, unless the strips of land merely provide a longitudinal
connection. + }

                               { +
DWELLINGS AND PARCEL SIZES ON SECONDARY LAND + }

  SECTION 3.  { + (1) If a local government identifies secondary
land under section 2 of this 2011 Act, the local government:
  (a) May allow uses and land divisions on secondary land and may
adopt zoning ordinances to regulate secondary land pursuant to
the provisions of sections 3 to 5 of this 2011 Act and under ORS
215.213 or 215.283.
  (b) Shall allow uses and land divisions on commercial farmland
and shall adopt zoning ordinances to regulate commercial farmland
pursuant to section 4 of this 2011 Act and ORS 215.213 or
215.283.
  (2) Notwithstanding any other provision of this chapter, a
single-family dwelling may be established on a lot or parcel of
secondary land if:
  (a) The lot or parcel on which the dwelling will be sited does
not already include a dwelling;
  (b) The dwelling will be sited outside of the Willamette River
Greenway; and
  (c) The dwelling will not be sited within 300 feet of land
identified as commercial farmland or commercial forestland unless
impracticable, in which case the greatest distance practicable
will be used.
  (3) The minimum lot or parcel size for secondary land is 20
acres, except for:
  (a) Land adjacent to commercial farmland or commercial
forestland described in section 2 of this 2011 Act, or to public
lands managed for timber production, in which case the minimum
lot or parcel size is 40 acres; and
  (b) Land adjacent to urban growth boundaries, exception areas,
nonresource areas or marginal lands, in which case the minimum
lot or parcel size is 10 acres. + }

                               { +
TRANSITION TO SECONDARY LAND ZONING + }

  SECTION 4.  { + (1) Before a county completes the secondary
lands designation as set forth in section 2 of this 2011 Act, the
county shall allow uses on land zoned for exclusive farm use as
otherwise required by law.
  (2) After a county completes the secondary lands designation as
set forth in section 2 of this 2011 Act, a county may designate
all land zoned for exclusive farm use as commercial farmland,
commercial forestland or secondary land.
  (3) If a county designates commercial farmland and secondary
land, for purposes of this chapter and ORS 308A.050 to 308A.128,
commercial farmland shall be treated as exclusive farm use land.
A county may approve uses of commercial farmland as provided for
lands zoned for exclusive farm use under the provisions of this
chapter. Instead of the uses allowed under ORS 215.213 or
215.283, a county shall permit uses allowed under section 5 of
this 2011 Act for secondary land. + }

                               { +
USES ON SECONDARY LANDS + }

  SECTION 5.  { + (1) The following uses may be established in
any area zoned for secondary land use under section 2 of this
2011 Act:
  (a) Room and board arrangements for a maximum of five unrelated
persons in existing residences.
  (b) Water intake facilities for irrigation.
  (c) Any use, operation or practice allowed on forestland under
ORS 527.610 to 527.770.
  (d) Temporary forest labor camps.
  (e) Uninhabited structures accessory to fish and wildlife
enhancement.
  (f) Open space, watershed and soil protection and other uses
that comply with the provisions of a statewide land use planning
goal relating to protection of natural resources and conservation
of scenic, historic and open space resources.
  (g) Caretaker residences for public parks, wildlife preserves
and fish hatcheries.
  (h) Local utility lines, conduits and accessory equipment.
  (i) New water reservoirs that meet the requirements of the
Water Resources Commission.
  (j) Uses otherwise provided under ORS 215.213 (1) or 215.283
(1).
  (k) Other uses the county determines to be consistent with
secondary land zoning.
  (2) A county may allow the following uses, subject to ORS
215.296 and the approval of the governing body or its designee,
in any area zoned for secondary land use under section 2 of this
2011 Act:
  (a) Mining and processing of geothermal resources as defined by
ORS 522.005.
  (b) Mining of aggregate, mineral and other subsurface resources
subject to ORS 215.298.
  (c) Processing, as defined in ORS 517.750, of aggregate into
asphalt or portland cement.
  (d) Processing of mineral resources and other subsurface
resources not otherwise described in this section.
  (e) Any commercial activity in conjunction with farm use.
  (f) Permanent facilities for primary processing of forest
products.
  (g) Logging equipment storage and repair facilities.
  (h) Log scaling and weigh stations.
  (i) Towers and fire stations for forest fire protection.
  (j) Asphalt and concrete batch plants.
  (k) Private hunting preserves, with living accommodations
available for use during hunting seasons, authorized by the State
Department of Fish and Wildlife.
  (L) Private accommodations accessory to fishing, for temporary
use.
  (m) Firearms training facilities.
  (n) Water intake and related treatment facilities, pumping
stations and distribution lines.
  (o) Dog kennels and facilities for racing dogs.
  (p) Golf courses.
  (q) Television, radio and microwave communication facilities
and transmission towers.
  (r) Expansion of existing nonprofit governmental community
centers and grange halls.
  (s) Residential homes, as defined in ORS 197.660, in existing
dwellings.
  (t) Fire stations.
  (u) Distribution conduits for electricity, gas, oil and
geothermal resources within rights of way that are 30 feet or
less in width.
  (v) Commercial utility facilities for the purpose of generating
power for public use by sale.
  (w) Personal-use airports for airplanes and helicopter pads,
including associated hangar, maintenance and service facilities.
As used in this paragraph, 'personal-use airport' means an
airstrip restricted, except for aircraft emergencies, to use by
the owner, by invited guests on an infrequent and occasional
basis and by commercial aviation activities in connection with
agricultural operations. Aircraft may not 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 paragraph may be granted through waiver action by the
Department of Transportation in specific instances. A county
shall continue to allow a personal-use airport lawfully existing
as of September 13, 1975, subject to applicable rules of the
Department of Transportation. A county may allow expansion of
existing personal-use airports.
  (x) Aids to navigation and aviation.
  (y) Surface mining, underground mining and processing, all as
defined in ORS 517.750, of aggregate and mineral resources.
  (z) New water reservoirs larger than five acres that meet the
requirements of the Water Resources Commission.
  (aa) Parks owned and operated by a governmental agency.
  (bb) Home occupations as provided in ORS 215.448.
  (cc) One manufactured dwelling in conjunction with an existing
dwelling as a temporary use for the term of a hardship suffered
by the existing resident or a relative of the resident.
  (dd) Any other use allowed under ORS 215.213 or 215.283. + }

                               { +
TAX STATUS + }

  SECTION 6.  { + (1) As used in this section:
  (a) 'Lot' has the meaning given that term in ORS 92.010.
  (b) 'Nonfarm use' means any use other than those uses defined
in ORS 215.203 (2).
  (c) 'Parcel' has the meaning given that term in ORS 215.010.
  (2) After land has been zoned as secondary land under section 2
of this 2011 Act, the assessment provisions of ORS 308A.050 to
308A.128 continue to apply to the secondary land that otherwise
qualifies for and is receiving special assessment until the land
is converted to a nonfarm use. If a lot or parcel of secondary
land otherwise qualifies for and is receiving special assessment
and a portion of that lot or parcel is converted to a nonfarm
use, the assessment provisions of ORS 308A.050 to 308A.128
continue to apply to the remainder of that lot or parcel of
secondary land not converted to a nonfarm use. + }

                               { +
COMMISSION LIMITATIONS + }

  SECTION 7.  { + In accordance with ORS 197.240 and 197.245, the
Land Conservation and Development Commission shall amend the
statewide land use planning goals to authorize counties to
designate secondary land under sections 1 to 5 of this 2011
Act. + }
  SECTION 8.  { + (1) Sections 1 to 5 of this 2011 Act are added
to and made a part of ORS chapter 215.
  (2) Section 6 of this 2011 Act is added to and made a part of
ORS 308A.050 to 308A.128.
  (3) Section 7 of this 2011 Act is added to and made a part of
ORS chapter 197. + }
  SECTION 9. ORS 215.304 is amended to read:
  215.304. (1) The Land Conservation and Development Commission
  { - shall - }   { + may + } not adopt or implement any rule to
identify or designate small-scale farmland or secondary land.
  (2) Amendments required to conform rules to the provisions of
subsection (1) of this section and ORS 215.700 to 215.780 shall
be adopted by March 1, 1994.
  (3) Any portion of a rule inconsistent with the provisions of
ORS 197.247 (1991 Edition), 215.213, 215.214 (1991 Edition),
215.288 (1991 Edition), 215.317, 215.327 and 215.337 (1991
Edition) or 215.700 to 215.780 on March 1, 1994:
  (a)   { - Shall - }   { + May + } not be implemented or
enforced; and
  (b)   { - Has no - }   { + Does not have a  + }legal effect.
 { +
  (4) Any portion of a statewide land use planning goal,
administrative rule, comprehensive plan, land use regulation or
ordinance not in conformance with the provisions of sections 1 to
5 of this 2011 Act on the effective date of this 2011 Act:
  (a) May not be implemented or enforced; and
  (b) Does not have a legal effect.
  (5) The commission may not:
  (a) Adopt rules for uses of commercial farmland or secondary
land that prohibit or limit uses that are allowed in ORS 215.203,
215.213 or 215.283 or section 5 of this 2011 Act; or
  (b) Adopt rules regarding the designation of secondary land
except as allowed under sections 1 to 5 and 7 of this 2011
Act. + }
  SECTION 10. ORS 197.298 is amended to read:
  197.298. (1) In addition to any requirements established by
rule addressing urbanization, land may not be included within an
urban growth boundary except under the following priorities:
  (a) First priority is land that is designated urban reserve
land under ORS 195.145, rule or metropolitan service district
action plan.
  (b) If land under paragraph (a) of this subsection is
inadequate to accommodate the amount of land needed, second
priority is land adjacent to an urban growth boundary that is
identified in an acknowledged comprehensive plan as an exception
area or nonresource land. Second priority may include resource
land that is completely surrounded by exception areas unless such
resource land is high-value farmland as described in ORS 215.710.
  (c) If land under paragraphs (a) and (b) of this subsection is
inadequate to accommodate the amount of land needed, third
priority is land designated as marginal land pursuant to ORS
197.247 (1991 Edition).
   { +  (d) If land under paragraphs (a) to (c) of this
subsection is inadequate to accommodate the amount of land
needed, fourth priority is land designated as secondary land
under section 2 of this 2011 Act. + }
    { - (d) - }   { + (e) + } If land under paragraphs (a) to
 { - (c) - }   { + (d) + } of this subsection is inadequate to
accommodate the amount of land needed,
  { - fourth - }   { + fifth + } priority is land designated in
an acknowledged comprehensive plan for agriculture or forestry,
or both.
  (2) Higher priority shall be given to land of lower capability
as measured by the capability classification system or by cubic
foot site class, whichever is appropriate for the current use.
  (3) Land of lower priority under subsection (1) of this section
may be included in an urban growth boundary if land of higher
priority is found to be inadequate to accommodate the amount of
land   { - estimated in subsection (1) of this section - }  { +
needed + } for one or more of the following reasons:
  (a) Specific types of identified land needs cannot be
reasonably accommodated on higher priority lands;
  (b) Future urban services could not reasonably be provided to
the higher priority lands due to topographical or other physical
constraints; or

  (c) Maximum efficiency of land uses within a proposed urban
growth boundary requires inclusion of lower priority lands in
order to include or to provide services to higher priority lands.

                               { +
MISCELLANEOUS + }

  SECTION 11. ORS 215.780 is amended to read:
  215.780. (1) Except as provided in subsection (2) of this
section, the following minimum lot or parcel sizes apply to all
counties:
  (a) For land zoned for exclusive farm use and not designated
rangeland, at least 80 acres;
  (b) For land zoned for exclusive farm use and designated
rangeland, at least 160 acres; and
  (c) For land designated forestland, at least 80 acres.
  (2) A county may adopt a lower minimum lot or parcel size than
that described in subsection (1) of this section in any of the
following circumstances:
  (a) By demonstrating to the Land Conservation and Development
Commission that it can do so while continuing to meet the
requirements of ORS 215.243 and 527.630 and the land use planning
goals adopted under ORS 197.230.
  (b) To allow the establishment of a parcel for a dwelling on
land zoned for forest use or mixed farm and forest use, subject
to the following requirements:
  (A) The parcel established shall not be larger than five acres,
except as necessary to recognize physical factors such as roads
or streams, in which case the parcel shall be no larger than 10
acres;
  (B) The dwelling existed prior to June 1, 1995;
  (C)(i) The remaining parcel, not containing the dwelling, meets
the minimum land division standards of the zone; or
  (ii) The remaining parcel, not containing the dwelling, is
consolidated with another parcel, and together the parcels meet
the minimum land division standards of the zone; and
  (D) The remaining parcel, not containing the dwelling, is not
entitled to a dwelling unless subsequently authorized by law or
goal.
  (c) In addition to the requirements of paragraph (b) of this
subsection, if the land is zoned for mixed farm and forest use
the following requirements apply:
  (A) The minimum tract eligible under paragraph (b) of this
subsection is 40 acres.
  (B) The tract shall be predominantly in forest use and that
portion in forest use qualified for special assessment under a
program under ORS chapter 321.
  (C) The remainder of the tract shall not qualify for any uses
allowed under ORS 215.213 and 215.283 that are not allowed on
forestland.
  (d) To allow a division of forestland to facilitate a forest
practice as defined in ORS 527.620 that results in a parcel that
does not meet the minimum area requirements of subsection (1)(c)
of this section or paragraph (a) of this subsection. Parcels
created pursuant to this subsection:
  (A) Shall not be eligible for siting of a new dwelling;
  (B) Shall not serve as the justification for the siting of a
future dwelling on other lots or parcels;
  (C) Shall not, as a result of the land division, be used to
justify redesignation or rezoning of resource lands;
  (D) Shall not result in a parcel of less than 35 acres, except:
  (i) Where the purpose of the land division is to facilitate an
exchange of lands involving a governmental agency; or
  (ii) Where the purpose of the land division is to allow
transactions in which at least one participant is a person with a
cumulative ownership of at least 2,000 acres of forestland; and
  (E) If associated with the creation of a parcel where a
dwelling is involved, shall not result in a parcel less than the
minimum lot or parcel size of the zone.
  (e) To allow a division of a lot or parcel zoned for forest use
or mixed farm and forest use under a statewide planning goal
protecting forestland if:
  (A) At least two dwellings lawfully existed on the lot or
parcel prior to November 4, 1993;
  (B) Each dwelling complies with the criteria for a replacement
dwelling under ORS 215.213 (1)(q) or 215.283 (1)(p);
  (C) Except for one lot or parcel, each lot or parcel created
under this paragraph is between two and five acres in size;
  (D) At least one dwelling is located on each lot or parcel
created under this paragraph; and
  (E) The landowner of a lot or parcel created under this
paragraph provides evidence that a restriction prohibiting the
landowner and the landowner's successors in interest from further
dividing the lot or parcel has been recorded with the county
clerk of the county in which the lot or parcel is located. A
restriction imposed under this paragraph shall be irrevocable
unless a statement of release is signed by the county planning
director of the county in which the lot or parcel is located
indicating that the comprehensive plan or land use regulations
applicable to the lot or parcel have been changed so that the lot
or parcel is no longer subject to statewide planning goals
protecting forestland or unless the land division is subsequently
authorized by law or by a change in a statewide planning goal for
land zoned for forest use or mixed farm and forest use.
  (f) To allow a proposed division of land in a forest zone or a
mixed farm and forest zone as provided in ORS 215.783.
  (3) A county planning director shall maintain a record of lots
and parcels that do not qualify for division under the
restrictions imposed under subsections (2)(e) and (4) of this
section. The record shall be readily available to the public.
  (4) A lot or parcel may not be divided under subsection (2)(e)
of this section if an existing dwelling on the lot or parcel was
approved under:
  (a) A statute, an administrative rule or a land use regulation
as defined in ORS 197.015 that required removal of the dwelling
or that prohibited subsequent division of the lot or parcel; or
  (b) A farm use zone provision that allowed both farm and forest
uses in a mixed farm and forest use zone under a statewide
planning goal protecting forestland.
  (5) A county with a minimum lot or parcel size acknowledged by
the commission pursuant to ORS 197.251 after January 1, 1987, or
acknowledged pursuant to periodic review requirements under ORS
197.628 to 197.650 that is smaller than those prescribed in
subsection (1) of this section need not comply with subsection
(2) of this section.
  (6)(a) An applicant for the creation of a parcel pursuant to
subsection (2)(b) of this section shall provide evidence that a
restriction on the remaining parcel, not containing the dwelling,
has been recorded with the county clerk of the county where the
property is located. An applicant for the creation of a parcel
pursuant to subsection (2)(d) of this section shall provide
evidence that a restriction on the newly created parcel has been
recorded with the county clerk of the county where the property
is located. The restriction shall allow no dwellings unless
authorized by law or goal on land zoned for forest use except as
permitted under subsection (2) of this section.
  (b) A restriction imposed under this subsection shall be
irrevocable unless a statement of release is signed by the county
planning director of the county where the property is located
indicating that the comprehensive plan or land use regulations
applicable to the property have been changed in such a manner

that the parcel is no longer subject to statewide planning goals
pertaining to agricultural land or forestland.
  (c) The county planning director shall maintain a record of
parcels that do not qualify for the siting of a new dwelling
under restrictions imposed by this subsection. The record shall
be readily available to the public.
  (7) A landowner allowed a land division under subsection (2) of
this section shall sign a statement that shall be recorded with
the county clerk of the county in which the property is located,
declaring that the landowner and the landowner's successors in
interest will not in the future complain about accepted farming
or forest practices on nearby lands devoted to farm or forest
use.
   { +  (8) For secondary land identified under section 2 of this
2011 Act, the minimum lot or parcel sizes set forth in
subsections (1) and (2) of this section do not apply. + }
  SECTION 12.  { + The unit captions used in this 2011 Act are
provided only for convenience in locating provisions of this 2011
Act and do not become part of the statutory law of this state or
express any legislative intent in the enactment of this 2011
Act. + }
  SECTION 13.  { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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