ORS 215.427
Final action on permit or zone change application; refund of application fees


(1)

Except as provided in subsections (3), (5) and (10) of this section, for land within an urban growth boundary and applications for mineral aggregate extraction, the governing body of a county or its designee shall take final action on an application for a permit, limited land use decision or zone change, including resolution of all appeals under ORS 215.422 (Review of decision of hearings officer or other authority), within 120 days after the application is deemed complete. The governing body of a county or its designee shall take final action on all other applications for a permit, limited land use decision or zone change, including resolution of all appeals under ORS 215.422 (Review of decision of hearings officer or other authority), within 150 days after the application is deemed complete, except as provided in subsections (3), (5) and (10) of this section.

(2)

If an application for a permit, limited land use decision or zone change is incomplete, the governing body or its designee shall notify the applicant in writing of exactly what information is missing within 30 days of receipt of the application and allow the applicant to submit the missing information. The application shall be deemed complete for the purpose of subsection (1) of this section and ORS 197.311 (Final action on application for certain residential developments required within 100 days) upon receipt by the governing body or its designee of:

(a)

All of the missing information;

(b)

Some of the missing information and written notice from the applicant that no other information will be provided; or

(c)

Written notice from the applicant that none of the missing information will be provided.

(3)

(a) If the application was complete when first submitted or the applicant submits additional information, as described in subsection (2) of this section, within 180 days of the date the application was first submitted and the county has a comprehensive plan and land use regulations acknowledged under ORS 197.251 (Compliance acknowledgment), approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted.

(b)

If the application is for industrial or traded sector development of a site identified under section 12, chapter 800, Oregon Laws 2003, and proposes an amendment to the comprehensive plan, approval or denial of the application must be based upon the standards and criteria that were applicable at the time the application was first submitted, provided the application complies with paragraph (a) of this subsection.

(4)

On the 181st day after first being submitted, the application is void if the applicant has been notified of the missing information as required under subsection (2) of this section and has not submitted:

(a)

All of the missing information;

(b)

Some of the missing information and written notice that no other information will be provided; or

(c)

Written notice that none of the missing information will be provided.

(5)

The period set in subsection (1) of this section or the 100-day period set in ORS 197.311 (Final action on application for certain residential developments required within 100 days) may be extended for a specified period of time at the written request of the applicant. The total of all extensions, except as provided in subsection (10) of this section for mediation, may not exceed 215 days.

(6)

The period set in subsection (1) of this section applies:

(a)

Only to decisions wholly within the authority and control of the governing body of the county; and

(b)

Unless the parties have agreed to mediation as described in subsection (10) of this section or ORS 197.319 (Procedures prior to request of an enforcement order) (2)(b).

(7)

Notwithstanding subsection (6) of this section, the period set in subsection (1) of this section and the 100-day period set in ORS 197.311 (Final action on application for certain residential developments required within 100 days) do not apply to a decision of the county making a change to an acknowledged comprehensive plan or a land use regulation that is submitted to the Director of the Department of Land Conservation and Development under ORS 197.610 (Submission of proposed comprehensive plan or land use regulation changes to Department of Land Conservation and Development).

(8)

Except when an applicant requests an extension under subsection (5) of this section, if the governing body of the county or its designee does not take final action on an application for a permit, limited land use decision or zone change within 120 days or 150 days, as applicable, after the application is deemed complete, the county shall refund to the applicant either the unexpended portion of any application fees or deposits previously paid or 50 percent of the total amount of such fees or deposits, whichever is greater. The applicant is not liable for additional governmental fees incurred subsequent to the payment of such fees or deposits. However, the applicant is responsible for the costs of providing sufficient additional information to address relevant issues identified in the consideration of the application.

(9)

A county may not compel an applicant to waive the period set in subsection (1) of this section or to waive the provisions of subsection (8) of this section or ORS 197.311 (Final action on application for certain residential developments required within 100 days) or 215.429 (Mandamus proceeding when county fails to take final action on land use application within specified time) as a condition for taking any action on an application for a permit, limited land use decision or zone change except when such applications are filed concurrently and considered jointly with a plan amendment.

(10)

The periods set forth in subsections (1) and (5) of this section and ORS 197.311 (Final action on application for certain residential developments required within 100 days) may be extended by up to 90 additional days, if the applicant and the county agree that a dispute concerning the application will be mediated. [1997 c.414 §2; 1999 c.393 §§3,3a; enacted in lieu of 215.428 in 1999; 2003 c.800 §30; 2007 c.232 §1; 2009 c.873 §15; 2011 c.280 §10; 2017 c.745 §10]

Notes of Decisions

Under Former Similar Statute (Ors 215.428)

Mandamus is not available once local governing body has issued land use decision, even if decision is issued after 120-day deadline. Simon v. Bd. of Co. Comm. of Marion Co., 91 Or App 487, 755 P2d 741 (1988); State ex rel Fraley v. Deschutes County Bd. of Commissioners, 151 Or App 201, 948 P2d 1249 (1997), Sup Ct review denied

LUBA erred by concluding that conditional use standards applied without determining whether petitioner’s pre-amendment filings constituted application to which this section relates. Kirpal Light Satsang v. Douglas County, 96 Or App 207, 772 P2d 944 (1989), Sup Ct review denied, on reconsideration 97 Or App 614, 776 P2d 1312 (1989)

Absent county rule establishing when land use decision is final, such decision is final when made, not when mailed. Bigej Enterprises v. Tillamook County, 115 Or App 425, 838 P2d 1095 (1992), as modified by 118 Or App 342, 847 P2d 869 (1993)

Plaintiff’s agreements to waive periods of time constituted request for extensions under provision of this section allowing 120-day period to be extended at request of applicant. Bigej Enterprises v. Tillamook County, 115 Or App 425, 838 P2d 1095 (1992), as modified by 118 Or App 342, 847 P2d 869 (1993)

Standards and criteria do not become “applicable” until acknowledged by LUBA. Von Lubken v. Hood River County, 118 Or App 246, 846 P2d 1178 (1993), Sup Ct review denied

Where zoning change cannot be accomplished without amendment of comprehensive plan, circuit court writ of mandamus is not available to compel decision. Edney v. Columbia County Board of Commissioners, 318 Or 138, 863 P2d 1259 (1993)

County interpretation of county ordinance is not entitled to deference in mandamus proceeding. State ex rel Currier v. Clatsop County, 149 Or App 285, 942 P2d 847 (1997); State ex rel Coastal Management, Inc. v. Washington County, 159 Or App 533, 979 P2d 300 (1999)

Decision to approve preliminary or final plan is wholly within authority and control of county, notwithstanding that other entities may play part in applicant’s fulfillment of county-imposed conditions. State ex rel Aspen Group v. Washington County, 150 Or App 371, 946 P2d 347 (1997), Sup Ct review denied

Discretionary attorney fees under ORS 34.210 are available in action to compel county approval of plan. State ex rel Aspen Group v. Washington County, 150 Or App 371, 946 P2d 347 (1997), Sup Ct review denied

“Writ of mandamus” filed by applicant to compel governing body to issue approval is peremptory writ. Murphy Citizens Advisory Committee v. Josephine County, 325 Or 101, 934 P2d 415 (1997)

Applicant may bring mandamus action notwithstanding that applicant initiated local review procedure that prevents untimely decision from being final action. State ex rel K. B. Recycling, Inc. v. Clackamas County, 171 Or App 46, 14 P3d 643 (2000)

In General

Although law under which application is approved or denied may not change after application filing date, material change in facts underlying application may affect approval or denial of application. Department of Land Conservation and Development v. Jefferson County, 220 Or App 518, 188 P3d 313 (2008), Sup Ct review denied

Criteria and standards established under waiver described in ORS 195.305 are of no effect. Pete’s Mountain Homeowners Association v. Clackamas County, 227 Or App 140, 204 P3d 802 (2009), Sup Ct review denied

Chapter 215

Notes of Decisions

Published notice is adequate if property owners can reasonably ascertain that property in which they hold interest may be affected. Clackamas County v. Emmert, 14 Or App 493, 513 P2d 532 (1973), Sup Ct review denied

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

Where county had not yet adopted comprehensive plan but had zoned certain portions “primarily agricultural,” county had not enacted adequate interim measures to protect its agricultural land until exclusive farm use zoning was completed. Columbia County v. LCDC, 44 Or App 749, 606 P2d 1184 (1980)

Atty. Gen. Opinions

Fasano v. Bd. of County Commrs., application to county governing bodies and planning commissions, (1974) Vol 36, p 960; binding effect on governmental agencies of the adoption of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894

Law Review Citations

36 EL 25 (2006)


Source
Last accessed
May. 15, 2020