ORS 197.015
Definitions for ORS chapters 195, 196, 197 and ORS 197A.300 to 197A.325


As used in ORS chapters 195, 196 and 197 and ORS 197A.300 to 197A.325, unless the context requires otherwise:

(1)

“Acknowledgment” means a commission order that certifies that a comprehensive plan and land use regulations, land use regulation or plan or regulation amendment complies with the goals or certifies that Metro land use planning goals and objectives, Metro regional framework plan, amendments to Metro planning goals and objectives or amendments to the Metro regional framework plan comply with the goals.

(2)

“Board” means the Land Use Board of Appeals.

(3)

“Carport” means a stationary structure consisting of a roof with its supports and not more than one wall, or storage cabinet substituting for a wall, and used for sheltering a motor vehicle.

(4)

“Commission” means the Land Conservation and Development Commission.

(5)

“Comprehensive plan” means a generalized, coordinated land use map and policy statement of the governing body of a local government that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems, transportation systems, educational facilities, recreational facilities, and natural resources and air and water quality management programs. “Comprehensive” means all-inclusive, both in terms of the geographic area covered and functional and natural activities and systems occurring in the area covered by the plan. “General nature” means a summary of policies and proposals in broad categories and does not necessarily indicate specific locations of any area, activity or use. A plan is “coordinated” when the needs of all levels of governments, semipublic and private agencies and the citizens of Oregon have been considered and accommodated as much as possible. “Land” includes water, both surface and sub surface, and the air.

(6)

“Department” means the Department of Land Conservation and Development.

(7)

“Director” means the Director of the Department of Land Conservation and Development.

(8)

“Goals” means the mandatory statewide land use planning standards adopted by the commission pursuant to ORS chapters 195, 196 and 197.

(9)

“Guidelines” means suggested approaches designed to aid cities and counties in preparation, adoption and implementation of comprehensive plans in compliance with goals and to aid state agencies and special districts in the preparation, adoption and implementation of plans, programs and regulations in compliance with goals. Guidelines shall be advisory and shall not limit state agencies, cities, counties and special districts to a single approach.

(10)

“Land use decision”:

(a)

Includes:

(A)

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

(i)

The goals;

(ii)

A comprehensive plan provision;
(iii) A land use regulation; or

(iv)

A new land use regulation;

(B)

A final decision or determination of a state agency other than the commission with respect to which the agency is required to apply the goals; or

(C)

A decision of a county planning commission made under ORS 433.763 (Application for outdoor mass gathering for which county decides land use permit is required);

(b)

Does not include a decision of a local government:

(A)

That is made under land use standards that do not require interpretation or the exercise of policy or legal judgment;

(B)

That approves or denies a building permit issued under clear and objective land use standards;

(C)

That is a limited land use decision;

(D)

That determines final engineering design, construction, operation, maintenance, repair or preservation of a transportation facility that is otherwise authorized by and consistent with the comprehensive plan and land use regulations;

(E)

That is an expedited land division as described in ORS 197.360 (“Expedited land division” defined);

(F)

That approves, pursuant to ORS 480.450 (Notice of new installations) (7), the siting, installation, maintenance or removal of a liquefied petroleum gas container or receptacle regulated exclusively by the State Fire Marshal under ORS 480.410 (Definition) to 480.460 (Disposition of fees);

(G)

That approves or denies approval of a final subdivision or partition plat or that determines whether a final subdivision or partition plat substantially conforms to the tentative subdivision or partition plan; or

(H)

That a proposed state agency action subject to ORS 197.180 (State agency planning responsibilities) (1) is compatible with the acknowledged comprehensive plan and land use regulations implementing the plan, if:

(i)

The local government has already made a land use decision authorizing a use or activity that encompasses the proposed state agency action;

(ii)

The use or activity that would be authorized, funded or undertaken by the proposed state agency action is allowed without review under the acknowledged comprehensive plan and land use regulations implementing the plan; or
(iii) The use or activity that would be authorized, funded or undertaken by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan;

(c)

Does not include a decision by a school district to close a school;

(d)

Does not include, except as provided in ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (13)(c) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (6)(c), authorization of an outdoor mass gathering as defined in ORS 433.735 (Definitions for ORS 433.735 to 433.770), or other gathering of fewer than 3,000 persons that is not anticipated to continue for more than 120 hours in any three-month period; and

(e)

Does not include:

(A)

A writ of mandamus issued by a circuit court in accordance with ORS 215.429 (Mandamus proceeding when county fails to take final action on land use application within specified time) or 227.179 (Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days);

(B)

Any local decision or action taken on an application subject to ORS 215.427 (Final action on permit or zone change application) or 227.178 (Final action on certain applications required within 120 days) after a petition for a writ of mandamus has been filed under ORS 215.429 (Mandamus proceeding when county fails to take final action on land use application within specified time) or 227.179 (Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days); or

(C)

A state agency action subject to ORS 197.180 (State agency planning responsibilities) (1), if:

(i)

The local government with land use jurisdiction over a use or activity that would be authorized, funded or undertaken by the state agency as a result of the state agency action has already made a land use decision approving the use or activity; or

(ii)

A use or activity that would be authorized, funded or undertaken by the state agency as a result of the state agency action is allowed without review under the acknowledged comprehensive plan and land use regulations implementing the plan.

(11)

“Land use regulation” means any local government zoning ordinance, land division ordinance adopted under ORS 92.044 (Adoption of standards and procedures governing approval of plats and plans) or 92.046 (Adoption of regulations governing approval of partitioning of land) or similar general ordinance establishing standards for implementing a comprehensive plan.

(12)

“Limited land use decision”:

(a)

Means a final decision or determination made by a local government pertaining to a site within an urban growth boundary that concerns:

(A)

The approval or denial of a tentative subdivision or partition plan, as described in ORS 92.040 (Application for approval of subdivision or partition) (1).

(B)

The approval or denial of an application based on discretionary standards designed to regulate the physical characteristics of a use permitted outright, including but not limited to site review and design review.

(b)

Does not mean a final decision made by a local government pertaining to a site within an urban growth boundary that concerns approval or denial of a final subdivision or partition plat or that determines whether a final subdivision or partition plat substantially conforms to the tentative subdivision or partition plan.

(13)

“Local government” means any city, county or metropolitan service district formed under ORS chapter 268 or an association of local governments performing land use planning functions under ORS 195.025 (Regional coordination of planning activities).

(14)

“Metro” means a metropolitan service district organized under ORS chapter 268.

(15)

“Metro planning goals and objectives” means the land use goals and objectives that a metropolitan service district may adopt under ORS 268.380 (Land-use planning goals and activities) (1)(a). The goals and objectives do not constitute a comprehensive plan.

(16)

“Metro regional framework plan” means the regional framework plan required by the 1992 Metro Charter or its separate components. Neither the regional framework plan nor its individual components constitute a comprehensive plan.

(17)

“New land use regulation” means a land use regulation other than an amendment to an acknowledged land use regulation adopted by a local government that already has a comprehensive plan and land regulations acknowledged under ORS 197.251 (Compliance acknowledgment).

(18)

“Person” means any individual, partnership, corporation, association, governmental subdivision or agency or public or private organization of any kind. The Land Conservation and Development Commission or its designee is considered a person for purposes of appeal under ORS chapters 195 and 197.

(19)

“Special district” means any unit of local government, other than a city, county, metropolitan service district formed under ORS chapter 268 or an association of local governments performing land use planning functions under ORS 195.025 (Regional coordination of planning activities), authorized and regulated by statute and includes but is not limited to water control districts, domestic water associations and water cooperatives, irrigation districts, port districts, regional air quality control authorities, fire districts, school districts, hospital districts, mass transit districts and sanitary districts.

(20)

“Urban unincorporated community” means an area designated in a county’s acknowledged comprehensive plan as an urban unincorporated community after December 5, 1994.

(21)

“Voluntary association of local governments” means a regional planning agency in this state officially designated by the Governor pursuant to the federal Office of Management and Budget Circular A-95 as a regional clearinghouse.

(22)

“Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration that are sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. [1973 c.80 §3; 1977 c.664 §2; 1979 c.772 §7; 1981 c.748 §1; 1983 c.827 §1; 1989 c.761 §1; 1989 c.837 §23; 1991 c.817 §1; 1993 c.438 §1; 1993 c.550 §4; 1995 c.595 §22; 1995 c.812 §1; 1997 c.833 §20; 1999 c.533 §11; 1999 c.866 §1; 2001 c.955 §§2,3; 2005 c.22 §137; 2005 c.88 §3; 2005 c.239 §2; 2005 c.829 §8; 2007 c.354 §§4,5; 2007 c.459 §§1,2; 2009 c.606 §2; 2009 c.790 §1; 2011 c.567 §7; 2013 c.575 §11]

Notes of Decisions

A comprehensive plan is the controlling land use planning instrument for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975); distinguished in Green v. Hayward, 275 Or 693, 552 P2d 815 (1976)

This section indicates legislative intent that comprehensive plans contain summaries, couched in broad terms, of land use policies. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978); Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)

As policies relating to sewers are within category of policies which county is empowered to include within its comprehensive plan, local sewer district plan is not comprehensive plan within meaning of this section and sanitary district’s policy-making role is subordinate to county’s, county did not exceed its authority in not conforming its comprehensive plan to that of sanitary district. Jackson County v. Bear Creek Authority, 53 Or App 823, 632 P2d 1349 (1981), aff’d 293 Or 121, 645 P2d 532 (1982)

School district’s decision to close school was not “land use decision” within meaning of this section. Westside Neighborhood v. School Dist. 4J, 58 Or App 154, 647 P2d 962 (1982), Sup Ct review denied

Circuit court lacked jurisdiction over declaratory judgment action to review local government’s decision that defendants had vested right to continue nonconforming use because the decision was a “land use decision” under this section, reviewable exclusively by Land Use Board of Appeals; overruling to extent of inconsistency, Eagle Creek Rock Products v. Clackamas County, 27 Or App 371, 556 P2d 150 (1976), 1000 Friends of Oregon v. Clackamas County Commission, 29 Or App 617, 564 P2d 1080 (1977) and Eklund v. Clackamas County, 36 Or App 73, 583 P2d 567 (1978). Forman v. Clatsop County, 63 Or App 617, 665 P2d 365 (1983), aff’d297 Or 129, 681 P2d 786 (1984)

City council resolution determining that petitioner had no vested right to continue to operate elementary school on church premises was land use decision under this section. Medford Assembly of God v. City of Medford, 64 Or App 815, 669 P2d 1161 (1983), aff’d 297 Or 138, 681 P2d 790 (1984)

Denial of building permit may be land use decision under this section, which LUBA has exclusive jurisdiction to review, if it involves application of goal, comprehensive plan or zoning ordinance or may not be land use decision if it is ministerial decision or involves application of subdivision law. Bell v. Klamath County, 77 Or App 131, 711 P2d 209 (1985)

Decision authorizing incorporation election is final decision for purposes of “land use decision” definition. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)

Local road vacation decisions are not automatically “land use decisions”; if decision will have significant impact on present or future land uses it is land use decision and LUBA has jurisdiction. Billington v. Polk County, 299 Or 471, 703 P2d 232 (1985)

Provision defining limits on parking spaces is “guideline” in city’s comprehensive plan and application is therefore not mandatory. Downtown Comm. Assoc. v. City of Portland, 80 Or App 336, 722 P2d 1258 (1986), Sup Ct review denied

Because county’s ordinance did not contain “clear and objective standards” for determining whether farm dwelling for which building permit was sought was one “customarily provided in conjunction with farm use,” as required by ordinance, approval of permit was not ministerial decision and was not removed from LUBA’s review jurisdiction by this section. Doughton v. Douglas County, 82 Or App 444, 728 P2d 887 (1986), Sup Ct review denied

LUBA properly dismissed appeal of land use decision because it was not “final” and did not come within “significant impact” test devised by Supreme Court as alternative basis for jurisdiction. Hemstreet v. Seaside Improvement Commission, 93 Or App 73, 761 P2d 533 (1988)

Where Metro’s recommendation for freeway corridor in its Regional Transportation Plan was contingent on subsequent decisions aimed at determining or achieving compliance with statewide land use planning goals, it was not final appealable land use decision. Sensible Transportation v. Metro Service Dist., 100 Or App 564, 787 P2d 498 (1990), Sup Ct review denied

LUBA erred in granting city’s motion to dismiss appeal based on lack of jurisdiction without factual determination as to whether city’s approval of subdivision was “consistent with land use standards.” Southwood Homeowners v. City Council of Philomath, 106 Or App 21, 806 P2d 162 (1991)

Under this statute and ORS 197.825, circuit court authority ends and exclusive land use decisional process begins where granting or denial of permit involves exercise of judgment or interpretation of ordinance, rather than mere ministerial application of ordinance that requires no interpretation or judgment. Campbell v. Bd. of County Commissioners, 107 Or App 611, 813 P2d 1074 (1991)

Where city, which was asked by petitioners for interpretation of its previous decision approving petitioners’ applications for preliminary and final development plan approval and conditional use permit, took no action on request except to discuss it and memorialize consensus opinion in administrator’s letter to petitioners, there was no land use decision subject to review. Owen Development Group, Inc. v. City of Gearhart, 111 Or App 476, 826 P2d 1016 (1992)

Where recommendation effectively amends or is contrary to recommending body’s own plan and can be carried out without further action by recommending body, recommendation is final land use decision. Central Eastside Industrial Council v. City of Portland, 128 Or App 148, 875 P2d 482 (1994)

In determining whether recommendation effectively amends or is contrary to recommending body’s own plan, applicability of plan’s general policy provisions is to be considered. Central Eastside Industrial Council v. City of Portland, 137 Or App 554, 905 P2d 265 (1995)

Where determination by local government was appealed to local body lacking jurisdiction to review, status of local government determination as final land use decision was not altered by appeal to local body. Franklin v. Deschutes County, 139 Or App 1, 911 P2d 339 (1996)

To be excluded from definition of “land use decision,” action in response to “writ of mandamus” must be in response to peremptory writ, not alternative writ. Murphy Citizens Advisory Committee v. Josephine County, 325 Or 101, 934 P2d 415 (1997)

Annexation decision is “land use decision.” Cape v. City of Beaverton, 187 Or App 463, 68 P3d 261 (2003)

Exemption from land use regulation for gathering “not anticipated to continue for more than 120 hours in any three-month period” allows only one gathering within period. Landsem Farms, LP v. Marion County, 190 Or App 120, 78 P3d 103 (2003)

Surveyor’s checking of subdivision or partition plat under ORS 92.100 for compliance with state laws and local ordinances or resolutions is limited land use decision. Hammer v. Clackamas County, 190 Or App 473, 79 P3d 394 (2003), Sup Ct review denied

Definition of “comprehensive plan” does not prohibit regional framework plan from performing some of same functions. City of Sandy v. Metro, 200 Or App 481, 115 P3d 960 (2005)

Local government “has already made a land use decision authorizing a use or activity that encompasses” proposed state agency action if proposed state agency action is based on past land use decision that authorized particular use or activity and if that use or activity brings within or includes proposed state agency action. McPhillips Farm, Inc. v. Yamhill County, 256 Or App 402, 300 P3d 299 (2013)

Atty. Gen. Opinions

Educational system policy statements as appropriate elements of county comprehensive plans, (1978) Vol 38, p 1713; consideration of availability of public school facilities in determining whether to approve subdivision, (1978) Vol 38, p 1956; effect of subdivision approval on school district, (1979) Vol 39, p 734

Law Review Citations

18 WLR 60 (1982); 19 EL 63 (1988); 68 OLR 984 (1989); 93 OLR 455 (2014)

§§ 197.005 to 197.430

Law Review Citations

10 WLJ 414-421, 474, 475 (1974); 56 OLR 270 (1977)

Chapter 197

Notes of Decisions

A comprehensive plan, although denominated a “resolution,” is the controlling land use planning instrument for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

Procedural requirements of the state-wide planning goals adopted by the Land Conservation and Development Commission are not applicable to ordinances adopted before the effective date of the goals. Schmidt v. Land Conservation and Development Comm., 29 Or App 665, 564 P2d 1090 (1977)

This chapter, establishing LCDC and granting it authority to establish state-wide land use planning goals, does not unconstitutionally delegate legislative power where both standards (ORS chapter 215) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county’s comprehensive plan and land use regulations had not been acknowledged by LCDC, it was proper for county to apply state-wide planning standards directly to individual request for partition. Alexanderson v. Polk County Commissioners, 289 Or 427, 616 P2d 459 (1980)

Issuance of a building permit was a “land conservation and development action” where county had no acknowledged comprehensive plan, land was not zoned and no previous land use decision had been made regarding the land. Columbia Hills v. LCDC, 50 Or App 483, 624 P2d 157 (1981), Sup Ct review denied

Nothing in this chapter grants the Land Conservation and Development Department authority to challenge local land use decisions made after comprehensive plan acknowledgment. Ochoco Const. v. LCDC, 295 Or 422, 667 P2d 499 (1983)

LCDC has authority in periodic review process to require local government to add specific language or provisions to its land use legislation to assure compliance with statewide goals and LCDC rules. Oregonians in Action v. LCDC, 121 Or App 497, 854 P2d 1010 (1993), Sup Ct review denied

Atty. Gen. Opinions

Authority of a land conservation and development commission to bind the state in an interstate compact or agreement, (1973) Vol 36, p 361; application of Fasano v. Bd. of County Commrs., (1974) Vol 36, p 960; state-wide planning goal in conjunction with interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; binding effect on governmental agencies of the adoption of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; application to state agencies, (1976) Vol 37, p 1129; preexisting ordinances during the interim implementing stage, (1976) Vol 37, p 1329; constitutionality of delegation to LCDC of authority to prescribe and enforce statewide planning goals, (1977) Vol 38, p 1130; effect of situation where similar petition is filed before both commission and a court, (1977) Vol 38, p 1268; consideration of availability of public school facilities in determination of whether to approve subdivision, (1978) Vol 38, p 1956

Law Review Citations

10 WLJ 99 (1973); 53 OLR 129 (1974); 5 EL 673 (1975); 54 OLR 203-223 (1975); 56 OLR 444 (1977); 18 WLR 49 (1982); 61 OLR 351 (1982); 20 WLR 764 (1984); 14 EL 661, 693, 713, 779, 843 (1984); 25 WLR 259 (1989); 31 WLR 147, 449, 817 (1995); 36 EL 25 (2006); 49 WLR 411 (2013)


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