Order for compliance with goals
- review of order
- withholding grant funds
(1)An order issued under ORS 197.328 (Procedures to consider order to comply with goals) and the copy of the order mailed to the local government, state agency or special district shall set forth:
(a)The nature of the noncompliance, including, but not limited to, the contents of the comprehensive plan or land use regulation, if any, of a local government that do not comply with the goals or the contents of a plan, program or regulation affecting land use adopted by a state agency or special district that do not comply with the goals. In the case of a pattern or practice of decision-making which violates the goals, comprehensive plan or land use regulations, the order shall specify the decision-making which constitutes the pattern or practice, including specific provisions the Land Conservation and Development Commission believes are being misapplied;
(b)The specific lands, if any, within a local government for which the existing plan or land use regulation, if any, does not comply with the goals; and
(c)The corrective action decided upon by the commission, including the specific requirements, with which the local government, state agency or special district must comply. In the case of a pattern or practice of decision-making that violates an acknowledged comprehensive plan or land use regulation, the commission may require revisions to the comprehensive plan, land use regulations or local procedures which the commission believes are necessary to correct the pattern or practice. Notwithstanding the provisions of this section, except as provided in subsection (3)(c) of this section, an enforcement order does not affect:
(A)Land use applications filed with a local government prior to the date of adoption of the enforcement order unless specifically identified by the order;
(B)Land use approvals issued by a local government prior to the date of adoption of the enforcement order; or
(C)The time limit for exercising land use approvals issued by a local government prior to the date of adoption of the enforcement order.
(2)Judicial review of a final order of the commission shall be governed by the provisions of ORS chapter 183 applicable to contested cases except as otherwise stated in this section. The commission’s final order shall include a clear statement of findings which set forth the basis for the order. Where a petition to review the order has been filed in the Court of Appeals, the commission shall transmit to the court the entire administrative record of the proceeding under review. Notwithstanding ORS 183.482 (Jurisdiction for review of contested cases) (3) relating to a stay of enforcement of an agency order, an appellate court, before it may stay an order of the commission, shall give due consideration to the public interest in the continued enforcement of the commission’s order and may consider testimony or affidavits thereon. Upon review, an appellate court may affirm, reverse, modify or remand the order. The court shall reverse, modify 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, modification or remand unless the court shall find that substantial rights of any party were prejudiced thereby;
(b)The order to be unconstitutional;
(c)The order is invalid because it exceeds the statutory authority of the agency; or
(d)The order is not supported by substantial evidence in the whole record.
(3)Intentionally left blank —Ed.
(a)If the commission finds that in the interim period during which a local government, state agency or special district would be bringing itself into compliance with the commission’s order under ORS 197.320 (Power of commission to order compliance with goals and plans) or subsection (2) of this section it would be contrary to the public interest in the conservation or sound development of land to allow the continuation of some or all categories of land use decisions or limited land use decisions, it shall, as part of its order, limit, prohibit or require the approval by the local government of applications for subdivisions, partitions, building permits, limited land use decisions or land use decisions until the plan, land use regulation or subsequent land use decisions and limited land use decisions are brought into compliance. The commission may issue an order that requires review of local decisions by a hearings officer or the Department of Land Conservation and Development before the local decision becomes final.
(b)Any requirement under this subsection may be imposed only if the commission finds that the activity, if continued, aggravates the goal, comprehensive plan or land use regulation violation and that the requirement is necessary to correct the violation.
(c)The limitations on enforcement orders under subsection (1)(c)(B) of this section shall not be interpreted to affect the commission’s authority to limit, prohibit or require application of specified criteria to subsequent land use decisions involving land use approvals issued by a local government prior to the date of adoption of the enforcement order.
(4)As part of its order under ORS 197.320 (Power of commission to order compliance with goals and plans) or subsection (2) of this section, the commission may withhold grant funds from the local government to which the order is directed. As part of an order issued under this section, the commission may notify the officer responsible for disbursing state-shared revenues to withhold that portion of state-shared revenues to which the local government is entitled under ORS 221.770 (Revenue sharing to cities), 323.455 (Distribution of certain cigarette tax revenues), 366.762 (Appropriation from highway fund for counties) and 366.800 (Appropriation from highway fund for cities) and ORS chapter 471 which represents the amount of state planning grant moneys previously provided the local government by the commission. The officer responsible for disbursing state-shared revenues shall withhold state-shared revenues as outlined in this section and shall release funds to the local government or department when notified to so do by the commission or its designee. The commission may retain a portion of the withheld revenues to cover costs of providing services incurred under the order, including use of a hearings officer or staff resources to monitor land use decisions and limited land use decisions or conduct hearings. The remainder of the funds withheld under this provision shall be released to the local government upon completion of requirements of the commission order.
(5)Intentionally left blank —Ed.
(a)As part of its order under this section, the commission may notify the officer responsible for disbursing funds from any grant or loan made by a state agency to withhold such funds from a special district to which the order is directed. The officer responsible for disbursing funds shall withhold funds as outlined in this section and shall release funds to the special district or department when notified to do so by the commission.
(b)The commission may retain a portion of the funds withheld to cover costs of providing services incurred under the order, including use of a hearings officer or staff resources to monitor land use decisions and limited land use decisions or conduct hearings. The remainder of the funds withheld under this provision shall be released to the special district upon completion of the requirements of the commission order.
(6)The commission may institute actions or proceedings for legal or equitable remedies in the Circuit Court for Marion County or in the circuit court for the county to which the commission’s order is directed or within which all or a portion of the applicable city is located to enforce compliance with the provisions of any order issued under this section or to restrain violations thereof. Such actions or proceedings may be instituted without the necessity of prior agency notice, hearing and order on an alleged violation. [1989 c.761 §7; 1991 c.817 §25; 1993 c.804 §11; 1995 c.301 §36; 1995 c.778 §1]
Section 197.335 — Order for compliance with goals; review of order; withholding grant funds; injunctions,
Notes of Decisions
LCDC limitation on validity of local land use approvals may extend to approvals granted prior to LCDC order. Jackson County v. LCDC, 132 Or App 302, 888 P2d 98 (1995), Sup Ct review denied