Appeal of local government to referee
- Court of Appeals
(1)An appeal of a decision made under ORS 197.360 (“Expedited land division” defined) and 197.365 (Application) or under ORS 92.031 (Middle housing land division) and 197.365 (Application) shall be made as follows:
(a)An appeal must be filed with the local government within 14 days of mailing of the notice of the decision under ORS 197.365 (Application) (4) and shall be accompanied by a $300 deposit for costs.
(b)A decision may be appealed by:
(A)The applicant; or
(B)Any person or organization who files written comments in the time period established under ORS 197.365 (Application).
(c)An appeal shall be based solely on allegations:
(A)Of violation of the substantive provisions of the applicable land use regulations;
(B)Of unconstitutionality of the decision;
(C)That the application is not eligible for review under ORS 92.031 (Middle housing land division) or 197.360 (“Expedited land division” defined) to 197.380 (Application fees) and should be reviewed as a land use decision or limited land use decision; or
(D)That the parties’ substantive rights have been substantially prejudiced by an error in procedure by the local government.
(2)The local government shall appoint a referee to decide the appeal of a decision made under this section. The referee may not be an employee or official of the local government. However, a local government that has designated a hearings officer under ORS 215.406 (Planning and zoning hearings officers) or 227.165 (Planning and zoning hearings officers) may designate the hearings officer as the referee for appeals of a decision made under ORS 197.360 (“Expedited land division” defined) and 197.365 (Application).
(3)Within seven days of being appointed to decide the appeal, the referee shall notify the applicant, the local government, the appellant if other than the applicant, any person or organization entitled to notice under ORS 197.365 (Application) (2) that provided written comments to the local government and all providers of public facilities and services entitled to notice under ORS 197.365 (Application) (2) and advise them of the manner in which they may participate in the appeal. A person or organization that provided written comments to the local government but did not file an appeal under subsection (1) of this section may participate only with respect to the issues raised in the written comments submitted by that person or organization. The referee may use any procedure for decision-making consistent with the interests of the parties to ensure a fair opportunity to present information and argument. The referee shall provide the local government an opportunity to explain its decision, but is not limited to reviewing the local government decision and may consider information not presented to the local government.
(4)Intentionally left blank —Ed.
(a)The referee shall apply the substantive requirements of the applicable land use regulations and ORS 92.031 (Middle housing land division) or 197.360 (“Expedited land division” defined). If the referee determines that the application does not qualify as an expedited land division or a middle housing land division, as defined in ORS 92.031 (Middle housing land division), the referee shall remand the application for consideration as a land use decision or limited land use decision. In all other cases, the referee shall seek to identify means by which the application can satisfy the applicable requirements.
(b)For an expedited land use division, the referee may not reduce the density of the land division application.
(c)The referee shall make a written decision approving or denying the application or approving it with conditions designed to ensure that the application satisfies the land use regulations, within 42 days of the filing of an appeal. The referee may not remand the application to the local government for any reason other than as set forth in this subsection.
(5)Unless the governing body of the local government finds exigent circumstances, a referee who fails to issue a written decision within 42 days of the filing of an appeal shall receive no compensation for service as referee in the appeal.
(6)Notwithstanding any other provision of law, the referee shall order the local government to refund the deposit for costs to an appellant who materially improves his or her position from the decision of the local government. The referee shall assess the cost of the appeal in excess of the deposit for costs, up to a maximum of $500, including the deposit paid under subsection (1) of this section, against an appellant who does not materially improve his or her position from the decision of the local government. The local government shall pay the portion of the costs of the appeal not assessed against the appellant. The costs of the appeal include the compensation paid the referee and costs incurred by the local government, but not the costs of other parties.
(7)The Land Use Board of Appeals does not have jurisdiction to consider any decisions, aspects of decisions or actions made under ORS 92.031 (Middle housing land division) or 197.360 (“Expedited land division” defined) to 197.380 (Application fees).
(8)Any party to a proceeding before a referee under this section may seek judicial review of the referee’s decision in the manner provided for review of final orders of the Land Use Board of Appeals under ORS 197.850 (Judicial review of board order) and 197.855 (Deadline for final court order). The Court of Appeals shall review decisions of the referee in the same manner as provided for review of final orders of the Land Use Board of Appeals in those statutes. However, notwithstanding ORS 197.850 (Judicial review of board order) (9) or any other provision of law, the court shall reverse or remand the decision only if the court finds:
(a)That the decision does not concern an expedited land division as described in ORS 197.360 (“Expedited land division” defined) or middle housing land division as defined in ORS 92.031 (Middle housing land division) and the appellant raised this issue in proceedings before the referee;
(b)That there is a basis to vacate the decision as described in ORS 36.705 (Vacating award) (1)(a) to (d), or a basis for modification or correction of an award as described in ORS 36.710 (Modification or correction of award); or
(c)That the decision is unconstitutional. [1995 c.595 §10; 2003 c.598 §37; 2021 c.103 §8]
Section 197.375 — Appeal of local government to referee; Court of Appeals,
Notes of Decisions
Court may not vacate referee’s order on ground that referee engaged in improper statutory analysis or other error of law. Nieto v. City of Talent, 295 Or App 625, 436 P3d 82 (2019)