The Approval Process and Related Issues

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The Approval Process and Related Issues

• David F. Doughman
• Beery Elsner Hammond LLP December 8, 2008 NBI
  Seminar
• Practical Guide to Zoning and Land Use Law

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State Law

• ORS Chapters 197, 215 and 227.
• Land Conservation and Development Commission
  (LCDC), Department of Land Conservation and
  Development (DLCD) and the Statewide Planning
  Goals.
• LCDC Administrative Rules.

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ORS Chapter 197

• Contains the guts of Oregons comprehensive
  land use planning system.
• Establishes LCDC and DLCD.
• Establishes Land Use Board of Appeals (LUBA).
• Periodic Review.
• Acknowledgement.
• Post-Acknowledgement Plan Amendments (PAPA).
• Establishes uniform notice and hearing procedures
  for quasi-judicial land use applications.

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ORS Chapter 215

• Authorizes counties to perform land use planning
  and zoning.
• Contains laws related to farm and forest lands
  and counties obligations with respect to such
  lands.
• Requires counties to process certain applications
  within 150 days.

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ORS Chapter 221

• Authorizes cities to perform land use planning
  and zoning.
• Requires cities to process certain applications
  within 120 days.

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LCDC and the Statewide Goals

• In 1973, Senate Bill 100 establishes Oregons
  comprehensive land use planning system, including
  establishment of LCDC.
• LCDC directed to enact goals that would govern
  and guide the establishment of local
  comprehensive plans.
• Today there are 19 goals
• Goal 1 Citizen Involvement
• Goal 2 Land Use Planning
• Goal 3 Agricultural Lands
• Goal 4 Forest Lands
• Goal 5 Open Spaces, Scenic and Historic Areas and
  Natural Resources
• Goal 6 Air, Water and Land Resources Quality

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LCDC and the Statewide Goals

• Goals continued
• Goal 7 Areas Subject to Natural Disasters and
  Hazards
• Goal 8 Recreation Needs
• Goal 9 Economy of the State
• Goal 10 Housing
• Goal 11 Public Facilities and Services
• Goal 12 Transportation
• Goal 13 Energy
• Goal 14 Urbanization
• Goal 15 Willamette River Greenway
• Goal 16 Estuarine Resources
• Goal 17 Coastal Shorelands
• Goal 18 Beaches and Dunes
• Goal 19 Ocean Resources

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LCDC Administrative Rules

• Chapter 660 of the Oregon Administrative Rules
  (OAR).
• Elaborate on both the Goals themselves and
  certain statutory provisions.
• Significant OARs include
• OAR 660-004 Goal 2 exception process
• OAR 660-007 and 008 Goal 10 housing
• OAR 660-012 Transportation Planning Rule
• OAR 660-024 Urban Growth Boundaries

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Local and Regional Law

• Comprehensive Plans
• Development Codes
• Development Applications
• Hearings
• Local Appeals

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Comprehensive Plans

• Act as a jurisdictions constitution with
  respect to planning and zoning.
• All legislation passed by a jurisdiction must be
  consistent with its comprehensive plan.
• Establishes policy prerogatives that are refined
  and made more specific via code criteria.
• Every comprehensive plan must be consistent with
  Oregons statewide planning goals.

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Development Codes

• Contain a given jurisdictions specific land use
  criteria and standards.
• Standards govern a wide variety of
  development-related applications.
• Prescribe uses allowed in the various zones that
  exist in the jurisdiction.
• A development code must be consistent with the
  jurisdictions comprehensive plan.

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Land Use Applications

• Can take many varieties
• Subdivision application.
• Conditional use application.
• Design Review application.
• Majority lead to a quasi-judicial decision by
  the local government.
• Most applications must be processed according to
  timelines (120/150-day).
• Most freeze the applicable criteria to those
  that existed on the date when the application was
  submitted.

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Hearings

• Hearings may be either quasi-judicial or
  legislative.
• Quasi-judicial hearings must be noticed and must
  proceed in accordance with ORS 197.763 and any
  local regulations.
• Members of a hearing body must be free of bias
  and conflicts of interest and must declare on the
  record any ex-parte contacts.
• Hearings typically conclude with a tentative oral
  decision and are followed by the adoption of a
  written order with findings.

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Local Appeals

• Before a LUBA appeal can be made an applicant or
  opponent must exhaust all local administrative
  appeals.
• Must consult code to determine whether right to
  appeal to higher local body exists.
• May be a decision made by staff with the right of
  appeal to a planning commission or hearings
  officer.
• Depending on the jurisdiction, a second appeal
  may be necessary (e.g. to the governing body).

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Types of Applications

• Land Divisions
• Design/Site Plan Review
• Conditional Uses

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Land Divisions

• Subdivisions and Partitions.
• Governed by ORS Chapter 92 and local criteria
  adopted to implement same.
• Will be evaluated to confirm that resulting lots
  or parcels will contain minimum square footage
  (i.e. minimum lot sizes) and that the lots or
  parcels can be adequately served by necessary
  infrastructure (i.e. streets, sewer, water, etc.).

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Design/Site Plan Review

• Typically required for all types of development
  except single-family detached homes.
• Goal is to ensure that development meets the
  jurisdictions design standards.
• Architectural design.
• Parking plan.
• Environmental mitigation.
• With the exception of Portland, virtually all
  local criteria governing housing must be clear
  and objective.

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Conditional Uses

• Uses in a zone that are not permitted outright
  but may be permitted if an applicant can show
  that the use will be compatible with its
  surroundings.
• Conditional use criteria are generally very
  subjective and grant a significant amount of
  discretion to the local decision maker.

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Moratoria

• In Oregon, moratoria are strictly regulated by
  ORS 197.505 through 197.540.
• Allows government to prohibit certain types of
  development if it can demonstrate that doing so
  will prevent a shortage of public facilities.
• May only be enacted after notice and a hearing
  and the adoption of sufficient findings.
• Must be limited in duration.