Loading (50 kb)...'
(continued) firearms training facility” is an indoor or outdoor facility that provides training courses and issues certifications required:
(a) For law enforcement personnel;
(b) By the State Department of Fish and Wildlife; or
(c) By nationally recognized programs that promote shooting matches, target shooting and safety. [1995 c.475 §2]
197.772 Consent for designation as historic property. (1) Notwithstanding any other provision of law, a local government shall allow a property owner to refuse to consent to any form of historic property designation at any point during the designation process. Such refusal to consent shall remove the property from any form of consideration for historic property designation under ORS 358.480 to 358.545 or other law except for consideration or nomination to the National Register of Historic Places pursuant to the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470 et seq.).
(2) No permit for the demolition or modification of property removed from consideration for historic property designation under subsection (1) of this section shall be issued during the 120-day period following the date of the property owner’s refusal to consent.
(3) A local government shall allow a property owner to remove from the property a historic property designation that was imposed on the property by the local government. [1995 c.693 §21; 2001 c.540 §19]
197.775 [1973 c.482 §11; repealed by 1977 c.665 §24]
197.780 [1973 c.482 §12; repealed by 1977 c.665 §24]
197.785 [1973 c.482 §13; repealed by 1977 c.665 §24]
197.790 [1973 c.482 §14; repealed by 1977 c.665 §24]
197.794 Notice to railroad company upon certain applications for land use decision, limited land use decision or expedited land use decision. (1) As used in this section, “railroad company” has the meaning given that term in ORS 824.200.
(2) If a railroad-highway crossing provides or will provide the only access to land that is the subject of an application for a land use decision, a limited land use decision or an expedited land division, the applicant must indicate that fact in the application submitted to the decision maker.
(3) The decision maker shall provide notice to the Department of Transportation and the railroad company whenever the decision maker receives the information described under subsection (2) of this section. [2003 c.145 §2]
197.795 [1973 c.482 §10; repealed by 1977 c.665 §24]
197.796 Applicant for certain land use decisions may accept and appeal condition imposed on application; procedure; attorney fees. (1) An applicant for a land use decision, limited land use decision or expedited land division or for a permit under ORS 215.427 or 227.178 may accept a condition of approval imposed under ORS 215.416 or 227.175 and file a challenge to the condition under this section. Acceptance by an applicant for a land use decision, limited land use decision, expedited land division or permit under ORS 215.427 or 227.178 of a condition of approval imposed under ORS 215.416 or 227.175 does not constitute a waiver of the right to challenge the condition of approval. Acceptance of a condition may include but is not limited to paying a fee, performing an act or providing satisfactory evidence of arrangements to pay the fee or to ensure compliance with the condition.
(2) Any action for damages under this section shall be filed in the circuit court of the county in which the application was submitted within 180 days of the date of the decision.
(3)(a) A challenge filed pursuant to this section may not be dismissed on the basis that the applicant did not request a variance to the condition of approval or any other available form of reconsideration of the challenged condition. However, an applicant shall comply with ORS 197.763 (1) prior to appealing to the Land Use Board of Appeals or bringing an action for damages in circuit court and must exhaust all local appeals provided in the local comprehensive plan and land use regulations before proceeding under this section.
(b) In addition to the requirements of ORS 197.763 (5), at the commencement of the initial public hearing, a statement shall be made to the applicant that the failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow the local government or its designee to respond to the issue precludes an action for damages in circuit court.
(c) An applicant is not required to raise an issue under this subsection unless the condition of approval is stated with sufficient specificity to enable the applicant to respond to the condition prior to the close of the final local hearing.
(4) In any challenge to a condition of approval that is subject to the Takings Clause of the Fifth Amendment to the United States Constitution, the local government shall have the burden of demonstrating compliance with the constitutional requirements for imposing the condition.
(5) In a proceeding in circuit court under this section, the court shall award costs and reasonable attorney fees to a prevailing party. Notwithstanding ORS 197.830 (15), in a proceeding before the Land Use Board of Appeals under this section, the board shall award costs and reasonable attorney fees to a prevailing party.
(6) This section applies to appeals by the applicant of a condition of approval and claims filed in state court seeking damages for the unlawful imposition of conditions of approval in a land use decision, limited land use decision, expedited land division or permit under ORS 215.427 or 227.178. [1999 c.1014 §5]
Note: Sections 1, 5 and 6, chapter 955, Oregon Laws 2001, provide:
Sec. 1. Judicial determination whether right to use is vested. (1) An owner of real property who has made substantial good faith expenditures toward completing a particular use that was permitted at the time the owner made the expenditures may file a declaratory judgment action under ORS chapter 28 to seek a judicial determination as to whether the owner has a vested right to the use. The circuit court for the county in which the real property is located has exclusive jurisdiction of an action under this section.
(2) An action may be commenced under this section only after final action is taken on an application for a permit under the provisions of ORS 215.427 or 227.178. The decision of the governing body of the county or city on the application is not binding on the court.
(3) A vested right to a use may be determined to have been lost by reason of the passage of time if there is a substantial delay in completing implementation of the use and it is established by substantial evidence that:
(a) The owner has abandoned implementation of the use; or
(b) The owner has recovered the owner’s investment in implementing the use, and considerations of health, safety or welfare have intervened during the period of delay.
(4) Nothing in this section is intended to limit or otherwise affect:
(a) The rights of the governing body of a county under ORS 215.130 or of an owner of real property under ORS 215.130; or
(b) Any rights associated with an application under ORS 215.427 (3) or 227.178 (3). [2001 c.955 §1]
Sec. 5. (1) Section 1 of this 2001 Act and the amendments to ORS 197.015 by section 2 of this 2001 Act apply only to claims of a vested right described in section 1 of this 2001 Act for which final action is taken on an application for a permit under the provisions of ORS 215.427 or 227.178 on or after the effective date of this 2001 Act [August 10, 2001].
(2) The repeal of section 1 of this 2001 Act by section 6 of this 2001 Act, and the amendments to ORS 197.015 by section 3 of this 2001 Act, do not affect any action filed under section 1 of this 2001 Act before December 31, 2003. Any action filed under section 1 of this 2001 Act before December 31, 2003, shall continue to be governed by section 1 of this 2001 Act, as though section 1 of this 2001 Act had not been repealed. [2001 c.955 §5]
Sec. 6. Section 1 of this 2001 Act is repealed on December 31, 2003. [2001 c.955 §6]
LAND USE BOARD OF APPEALS
197.805 Policy on review of land use decisions. It is the policy of the Legislative Assembly that time is of the essence in reaching final decisions in matters involving land use and that those decisions be made consistently with sound principles governing judicial review. It is the intent of the Legislative Assembly in enacting ORS 197.805 to 197.855 to accomplish these objectives. [1979 c.772 §1a; 1983 c.827 §28]
197.810 Land Use Board of Appeals; appointment and removal of members; qualifications. (1) There is hereby created a Land Use Board of Appeals consisting of not more than three positions. Board members shall be appointed by the Governor subject to confirmation by the Senate in the manner provided in ORS 171.562 and 171.565. The board shall consist of a board chairperson chosen by the board members and such other board members as the Governor considers necessary. The members of the board shall serve terms of four years. A member is eligible for reappointment. The salaries of the members shall be fixed by the Governor unless otherwise provided for by law. The salary of a member of the board shall not be reduced during the period of service of the member.
(2) The Governor may at any time remove any member of the board for inefficiency, incompetence, neglect of duty, malfeasance in office or unfitness to render effective service. Before such removal the Governor shall give the member a copy of the charges against the member and shall fix the time when the member can be heard in defense against the charges, which shall not be less than 10 days thereafter. The hearing shall be open to the public and shall be conducted in the same manner as a contested case under ORS chapter 183. The decision of the Governor to remove a member of the board shall be subject to judicial review in the same manner as provided for review of contested cases under ORS 183.480 to 183.540.
(3) Board members appointed under subsection (1) of this section shall be members in good standing of the Oregon State Bar. [1979 c.772 §2; 1983 c.827 §28a; 1997 c.436 §1; 1999 c.257 §1]
197.815 Office location; proceedings may be conducted by telephone. (1) The principal office of the Land Use Board of Appeals shall be in the state capital, but the board may hold hearings in any county or city in order to provide reasonable opportunities to parties to appear before the board with as little inconvenience and expense as is practicable. Upon request of the board, the county or city governing body shall provide the board with suitable rooms for hearings held in that city or county.
(2) For the convenience of one or more of the parties, the board may hold hearings by telephone. [1983 c.827 §29; 1999 c.257 §2]
197.820 Duty to conduct review proceedings; authority to issue orders; rules. (1) The Land Use Board of Appeals shall conduct review proceedings upon petitions filed in the manner prescribed in ORS 197.830.
(2) In conducting review proceedings the members of the board may sit together or separately as the board chairperson shall decide.
(3) The board chairperson shall apportion the business of the board among the members of the board. Each member shall have the power to hear and issue orders on petitions filed with the board and on all issues arising under those petitions.
(4) The board shall adopt rules governing the conduct of review proceedings brought before it under ORS 197.830 to 197.845. [1979 c.772 §2a; 1983 c.827 §28b; 1997 c.436 §2; 1999 c.257 §3]
197.825 Jurisdiction of board; limitations; effect on circuit court jurisdiction. (1) Except as provided in ORS 197.320 and subsections (2) and (3) of this section, the Land Use Board of Appeals shall have exclusive jurisdiction to review any land use decision or limited land use decision of a local government, special district or a state agency in the manner provided in ORS 197.830 to 197.845.
(2) The jurisdiction of the board:
(a) Is limited to those cases in which the petitioner has exhausted all remedies available by right before petitioning the board for review;
(b) Is subject to the provisions of ORS 197.850 relating to judicial review by the Court of Appeals;
(c) Does not include those matters over which the Department of Land Conservation and Development or the Land Conservation and Development Commission has review authority under ORS 197.251, 197.430, 197.445, 197.450, 197.455 and 197.628 to 197.650;
(d) Does not include those land use decisions of a state agency over which the Court of Appeals has jurisdiction for initial judicial review under ORS 183.400, 183.482 or other statutory provisions;
(e) Does not include any rules, programs, decisions, determinations or activities carried out under ORS 527.610 to 527.770, 527.990 (1) and 527.992;
(f) Is subject to ORS 196.115 for any county land use decision that may be reviewed by the Columbia River Gorge Commission pursuant to sections 10(c) or 15(a)(2) of the Columbia River Gorge National Scenic Area Act, P.L. 99-663; and
(g) Does not include review of expedited land divisions under ORS 197.360.
(3) Notwithstanding subsection (1) of this section, the circuit courts of this state retain jurisdiction:
(a) To grant declaratory, injunctive or mandatory relief in proceedings arising from decisions described in ORS 197.015 (10)(b) or proceedings brought to enforce the provisions of an adopted comprehensive plan or land use regulations; and
(b) To enforce orders of the board in appropriate proceedings brought by the board or a party to the board proceeding resulting in the order. [1983 c.827 §30; 1987 c.729 §14; 1987 c.856 §9; 1987 c.919 §4; 1989 c.761 §11; 1991 c.817 §4; 1995 c.595 §26; 1999 c.348 §16]
197.828 Board review of limited land use decision. (1) The Land Use Board of Appeals shall either reverse, remand or affirm a limited land use decision on review.
(2) The board shall reverse or remand a limited land use decision if:
(a) The decision is not supported by substantial evidence in the record. The existence of evidence in the record supporting a different decision shall not be grounds for reversal or remand if there is evidence in the record to support the final decision;
(b) The decision does not comply with applicable provisions of the land use regulations;
(c) The decision is:
(A) Outside the scope of authority of the decision maker; or
(B) Unconstitutional; or
(d) The local government committed a procedural error which prejudiced the substantial rights of the petitioner. [1991 c.817 §2]
197.829 Board to affirm certain local government interpretations. (1) The Land Use Board of Appeals shall affirm a local government’s interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government’s interpretation:
(a) Is inconsistent with the express language of the comprehensive plan or land use regulation;
(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation;
(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or
(d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements.
(2) If a local government fails to interpret a provision of its comprehensive plan or land use regulations, or if such interpretation is inadequate for review, the board may make its own determination of whether the local government decision is correct. [1993 c.792 §43; 1995 c.595 §4]
197.830 Review procedures; standing; deadlines; issues subject to review; attorney fees and costs; publication of orders; mediation. (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 may intervene in and be made a party to the review proceeding upon a showing of compliance with subsection (2) of this section.
(b) Notwithstanding the provisions of paragraph (a) of this subsection, 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 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.
(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 $175 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 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 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.
(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. [1983 c.827 §31; 1985 c.119 §3; 1987 c.278 §1; 1987 c.729 §16; 1989 c.761 §12; 1991 c.817 §7; 1993 c.143 §1; 1993 c.310 §1; 1995 c.160 §1; 1995 c.595 §3; 1997 c.187 §1; 1997 c.452 §1; 1999 c.255 §2; 1999 c.348 §17; 1999 c.621 §3; 2003 c.791 §28; 2003 c.793 §6]
197.831 Clear and objective approval standards; burden of proof. In a proceeding before the Land Use Board of Appeals or on judicial review from an order of the board that involves an ordinance required to contain clear and objective approval standards for a permit under ORS 197.307 and 227.175, the local government imposing the provisions of the ordinance shall demonstrate that the approval standards are capable of being imposed only in a clear and objective manner. [1999 c.357 §5]
197.832 Board Publications Account. The Board Publications Account is established in the General Fund. All moneys in the account are appropriated continuously to the Land Use Board of Appeals to be used for paying expenses incurred by the board under ORS 197.830 (17). Disbursements of moneys from the account shall be approved by a member of the board. [1985 c.119 §5; 1989 c.761 §24; 1995 c.595 §17; 1997 c.436 §3; 1999 c.257 §4; 1999 c.621 §6]
197.835 Scope of review. (1) The Land Use Board of Appeals shall review the land use decision or limited land use decision and prepare a final order affirming, reversing or remanding the land use decision or limited land use decision. The board shall adopt rules defining the circumstances in which it will reverse rather than remand a land use decision or limited land use decision that is not affirmed.
(2)(a) Review of a decision under ORS 197.830 to 197.845 shall be confined to the record.
(b) In the case of disputed allegations of standing, unconstitutionality of the decision, ex parte contacts, actions described in subsection (10)(a)(B) of this section or other procedural irregularities not shown in the record that, if proved, would warrant reversal or remand, the board may take evidence and make findings of fact on those allegations. The board shall be bound by any finding of fact of the local government, special district or state agency for which there is substantial evidence in the whole record.
(3) Issues shall be limited to those raised by any participant before the local hearings body as provided by ORS 197.195 or 197.763, whichever is applicable.
(4) A petitioner may raise new issues to the board if:
(a) The local government failed to list the applicable criteria for a decision under ORS 197.195 (3)(c) or 197.763 (3)(b), in which case a petitioner may raise new issues based upon applicable criteria that were omitted from the notice. However, the board may refuse to allow new issues to be raised if it finds that the issue could have been raised before the local government; or
(b) The local government made a land use decision or 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 action.
(5) The board shall reverse or remand a land use decision not subject to an acknowledged comprehensive plan and land use regulations if the decision does not comply with the goals. The board shall reverse or remand a land use decision or limited land use decision subject to an acknowledged comprehensive plan or land use regulation if the decision does not comply with the goals and the Land Conservation and Development Commission has issued an order under ORS 197.320 or adopted a new or amended goal under ORS 197.245 requiring the local government to apply the goals to the type of decision being challenged.
(6) The board shall reverse or remand an amendment to a comprehensive plan if the amendment is not in compliance with the goals.
(7) The board shall reverse or remand an amendment to a land use regulation or the adoption of a new land use regulation if:
(a) The regulation is not in compliance with the comprehensive plan; or
(b) The comprehensive plan does not contain specific policies or other provisions which provide the basis for the regulation, and the regulation is not in compliance with the statewide planning goals.
(8) The board shall reverse or remand a decision involving the application of a plan or land use regulation provision if the decision is not in compliance with applicable provisions of the comprehensive plan or land use regulations.
(9) In addition to the review under subsections (1) to (8) of this section, the board shall reverse or remand the land use decision under review if the board finds:
(a) The local government or special district:
(A) Exceeded its jurisdiction;
(B) Failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner;
(C) Made a decision not supported by substantial evidence in the whole record;
(D) Improperly construed the applicable law; or
(E) Made an unconstitutional decision; or
(b) The state agency made a decision that violated the goals.
(10)(a) The board shall reverse a local government decision and order the local government to grant approval of an application for development denied by the local government if the board finds:
(A) Based on the evidence in the record, that the local government decision is outside the range of discretion allowed the local government under its comprehensive plan and implementing ordinances; or
(B) That the local government’s action was for the purpose of avoiding the requirements of ORS 215.427 or 227.178.
(b) If the board does reverse the decision and orders the local government to grant approval of the application, the board shall award attorney fees to the applicant and against the local government.
(11)(a) Whenever the findings, order and record are sufficient to allow review, and to the extent possible consistent with the time requirements of ORS 197.830 (14), the board shall decide all issues presented to it when reversing or remanding a land use decision described in subsections (2) to (9) of this section or limited land use decision described in ORS 197.828 and 197.195.
(b) Whenever the findings are defective because of failure to recite adequate facts or legal conclusions or failure to adequately identify the standards or their relation to the facts, but the parties identify relevant evidence in the record which clearly supports the decision or a part of the decision, the board shall affirm the decision or the part of the decision supported by the record and remand the remainder to the local government, with direction indicating appropriate remedial action.
(12) The board may reverse or remand a land use decision under review due to ex parte contacts or bias resulting from ex parte contacts with a member of the decision-making body, only if the member of the decision-making body did not comply with ORS 215.422 (3) or 227.180 (3), whichever is applicable.
(13) Subsection (12) of this section does not apply to reverse or remand of a land use decision due to ex parte contact or bias resulting from ex parte contact with a hearings officer.
(14) The board shall reverse or remand a land use decision or limited land use decision which violates a commission order issued under ORS 197.328.
(15) In cases in which a local government provides a quasi-judicial land use hearing on a limited land use decision, the requirements of subsections (12) and (13) of this section apply.
(16) The board may decide cases before it by means of memorandum decisions and shall prepare full opinions only in such cases as it deems proper. [1983 c.827 §§32,32a; 1985 c.811 §15; 1987 c.729 §2; 1989 c.648 §57; 1989 c.761 §13; 1991 c.817 §13; 1995 c.595 §§3a,5; 1995 c.812 §5; 1997 c.844 §3; 1999 c.621 §7]
197.840 Exceptions to deadline for final decision. (1) The following periods of delay shall be excluded from the 77-day period within which the board must make a final decision on a petition under ORS 197.830 (14):
(a) Any period of delay up to 120 days resulting from the board’s deferring all or part of its consideration of a petition for review of a land use decision or limited land use decision that allegedly violates the goals if the decision has been:
(A) Submitted for acknowledgment under ORS 197.251; or
(B) Submitted to the Department of Land Conservation and Development as part of a periodic review work program task pursuant to ORS 197.628 to 197.650 and not yet acknowledged.
(b) Any period of delay resulting from a motion, including but not limited to, a motion disputing the constitutionality of the decision, standing, ex parte contacts or other procedural irregularities not shown in the record.
(c) Any reasonable period of delay resulting from a request for a stay under ORS 197.845.
(d) Any reasonable period of delay resulting from a continuance granted by a member of the board on the member’s own motion or at the request of one of the parties, if the member granted the continuance on the basis of findings that the ends of justice served by granting the continuance outweigh the best interest of the public and the parties in having a decision within 77 days.
(2) No period of delay resulting from a continuance granted by the board under subsection (1)(d) of this section shall be excludable under this section unless the board sets forth in the record, either orally or in writing, its reasons for finding that the ends of justice served by granting the continuance outweigh the best interests of the public and the other parties in a decision within the 77 days. The factors the board shall consider in determining whether to grant a continuance under subsection (1)(d) of this section in any case are as follows:
(a) Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice; or
(b) Whether the case is so unusual or so complex, due to the number of parties or the existence of novel questions of fact or law, that it is unreasonable to expect adequate consideration of the issues within the 77-day time limit.
(3) No continuance under subsection (1)(d) of this section shall be granted because of general congestion of the board calendar or lack of diligent preparation or attention to the case by any member of the board or any party.
(4) The board may defer all or part of its consideration of a land use decision or limited land use decision described in subsection (1)(a) of this section until the Land Conservation and Development Commission has disposed of the acknowledgment proceeding described in subsection (1)(a) of this section. If the board deferred all or part of its consideration of a decision under this subsection, the board may grant a stay of the comprehensive plan provision, land use regulation, limited land use decision or land use decision under ORS 197.845. [1983 c.827 §33; 1989 c.761 §25; 1991 c.612 §19; 1991 c.817 §27; 1995 c.595 §18; 1999 c.348 §18; 1999 c.621 §8]
197.845 Stay of decision being reviewed; criteria; undertaking; conditions; limitations. (1) Upon application of the petitioner, the board may grant a stay of a land use decision or limited land use decision under review if the petitioner demonstrates:
(a) A colorable claim of error in the land use decision or limited land use decision under review; and
(b) That the petitioner will suffer irreparable injury if the stay is not granted.
(2) If the board grants a stay of a quasi-judicial land use decision or limited land use decision approving a specific development of land, it shall require the petitioner requesting the stay to give an undertaking in the amount of $5,000. The undertaking shall be in addition to the filing fee and deposit for costs required under ORS 197.830 (9). The board may impose other reasonable conditions such as requiring the petitioner to file all documents necessary to bring the matter to issue within specified reasonable periods of time.
(3) If the board affirms a quasi-judicial land use decision or limited land use decision for which a stay was granted under subsections (1) and (2) of this section, the board shall award reasonable attorney fees and actual damages resulting from the stay to the person who requested the land use decision or limited land use decision from the local government, special district or state agency, against the person requesting the stay in an amount not to exceed the amount of the undertaking.
(4) The board shall limit the effect of a stay of a legislative land use decision to the geographic area or to particular provisions of the legislative decision for which the petitioner has demonstrated a colorable claim of error and irreparable injury under subsection (1) of this section. The board may impose reasonable conditions on a stay of a legislative decision, such as the giving of a bond or other undertaking or a requirement that the petitioner file all documents necessary to bring the matter to issue within a specified reasonable time period. [1983 c.827 §34; 1989 c.761 §22; 1991 c.817 §28; 1999 c.621 §9]
197.850 Judicial review of board order; procedures; scope of review; attorney fees; undertaking. (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 shall be 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 shall be instituted by filing a petition in the Court of Appeals. The petition shall 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 shall state the nature of the order the petitioner desires reviewed. Copies of the petition shall be served by registered or certified mail upon 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. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court 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 cost of the record shall not be taxed 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 shall 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 shall not be cause for reversal or remand unless the court shall find 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 shall 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 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.
(14) The undertaking required in subsection (12) of this section shall 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. [1983 c.827 §35; 1989 c.515 §1; 1989 c.761 §26; 1995 c.595 §19; 1997 c.733 §1; 1999 c.575 §1; 1999 c.621 §10]
197.855 Deadline for final court order; exceptions. (1) The Court of Appeals shall issue a final order on a petition for review filed under ORS 197.850 within 91 days after oral argument on the petition.
(2) The following periods of delay shall be excluded from the 91-day period within which the court must issue a final order on a petition:
(a) Any period of delay resulting from a motion properly before the court; or
(b) Any reasonable period of delay resulting from a continuance granted by the court on the court’s own motion or at the request of one of the parties, if the court granted the continuance on the basis of findings that the ends of justice served by granting the continuance outweigh the best interest of the public and the parties in having a decision within 91 days.
(3) No period of delay resulting from a continuance granted by the court under subsection (2)(b) of this section shall be excludable under this section unless the court sets forth, in the record, either orally or in writing, its reasons for finding that the ends of justice served by granting the continuance outweigh the best interests of the public and the other parties in a decision within the 91 days. The factors the court shall consider in determining whether to grant a continuance under subsection (2)(b) of this section in any case are as follows:
(a) Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice; or
(b) Whether the case is so unusual or so complex, due to the number of parties or the existence of novel questions of fact or law, that it is unreasonable to expect adequate consideration of the issues within the 91-day time limit.
(4) No continuance under subsection (2)(b) of this section shall be granted 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. [1983 c.827 §35a]
197.860 Stay of proceedings to allow mediation.
All parties to an appeal may at any time prior to a final decision by the Court of Appeals under ORS 197.855 stipulate that the appeal proceeding be stayed for any period of time agreeable to the parties and the board or court to allow the parties to enter mediation. Following mediation, the board or the court may, at the request of the parties, dismiss the appeal or remand the decision to the board or the local government with specific instructions for entry of a final decision on remand. If the parties fail to agree to a stipulation for remand or dismissal through mediation within the time the appeal is stayed, the appeal shall proceed with such reasonable extension of appeal deadlines as the board or Court of Appeals considers appropriate. [1989 c.761 §14]