ORS 227.175
Application for permit or zone change
- fees
- consolidated procedure
- hearing
- approval criteria
- decision without hearing
(1)
When required or authorized by a city, an owner of land may apply in writing to the hearings officer, or such other person as the city council designates, for a permit or zone change, upon such forms and in such a manner as the city council prescribes. The governing body shall establish fees charged for processing permits at an amount no more than the actual or average cost of providing that service.(2)
The governing body of the city shall establish a consolidated procedure by which an applicant may apply at one time for all permits or zone changes needed for a development project. The consolidated procedure shall be subject to the time limitations set out in ORS 227.178 (Final action on certain applications required within 120 days). The consolidated procedure shall be available for use at the option of the applicant no later than the time of the first periodic review of the comprehensive plan and land use regulations.(3)
Except as provided in subsection (10) of this section, the hearings officer shall hold at least one public hearing on the application.(4)
Intentionally left blank —Ed.(a)
A city may not approve an application unless the proposed development of land would be in compliance with the comprehensive plan for the city and other applicable land use regulation or ordinance provisions. The approval may include such conditions as are authorized by ORS 227.215 (Regulation of development) or any city legislation.(b)
Intentionally left blank —Ed.(A)
A city may not deny an application for a housing development located within the urban growth boundary if the development complies with clear and objective standards, including clear and objective design standards contained in the city comprehensive plan or land use regulations.(B)
This paragraph does not apply to:(i)
Applications or permits for residential development in areas described in ORS 197.307 (Needed housing policy) (5); or(ii)
Applications or permits reviewed under an alternative approval process adopted under ORS 197.307 (Needed housing policy) (6).(c)
A city may not condition an application for a housing development on a reduction in density if:(A)
The density applied for is at or below the authorized density level under the local land use regulations; and(B)
At least 75 percent of the floor area applied for is reserved for housing.(d)
A city may not condition an application for a housing development on a reduction in height if:(A)
The height applied for is at or below the authorized height level under the local land use regulations;(B)
At least 75 percent of the floor area applied for is reserved for housing; and(C)
Reducing the height has the effect of reducing the authorized density level under local land use regulations.(e)
Notwithstanding paragraphs (c) and (d) of this subsection, a city may condition an application for a housing development on a reduction in density or height only if the reduction is necessary to resolve a health, safety or habitability issue or to comply with a protective measure adopted pursuant to a statewide land use planning goal. Notwithstanding ORS 197.350 (Burden of persuasion or proof in appeal to board or commission), the city must adopt findings supported by substantial evidence demonstrating the necessity of the reduction.(f)
As used in this subsection:(A)
“Authorized density level” means the maximum number of lots or dwelling units or the maximum floor area ratio that is permitted under local land use regulations.(B)
“Authorized height level” means the maximum height of a structure that is permitted under local land use regulations.(C)
“Habitability” means being in compliance with the applicable provisions of the state building code under ORS chapter 455 and the rules adopted thereunder.(5)
Hearings under this section may be held only after notice to the applicant and other interested persons and shall otherwise be conducted in conformance with the provisions of ORS 197.797 (Local quasi-judicial land use hearings).(6)
Notice of a public hearing on a zone use application shall be provided to the owner of an airport, defined by the Oregon Department of Aviation as a “public use airport” if:(a)
The name and address of the airport owner has been provided by the Oregon Department of Aviation to the city planning authority; and(b)
The property subject to the zone use hearing is:(A)
Within 5,000 feet of the side or end of a runway of an airport determined by the Oregon Department of Aviation to be a “visual airport”; or(B)
Within 10,000 feet of the side or end of the runway of an airport determined by the Oregon Department of Aviation to be an “instrument airport.”(7)
Notwithstanding the provisions of subsection (6) of this section, notice of a zone use hearing need only be provided as set forth in subsection (6) of this section if the permit or zone change would only allow a structure less than 35 feet in height and the property is located outside of the runway “approach surface” as defined by the Oregon Department of Aviation.(8)
If an application would change the zone of property that includes all or part of a mobile home or manufactured dwelling park as defined in ORS 446.003 (Definitions for ORS 446.003 to 446.200 and 446.225 to 446.285 and ORS chapters 195, 196, 197, 215 and 227), the governing body shall give written notice by first class mail to each existing mailing address for tenants of the mobile home or manufactured dwelling park at least 20 days but not more than 40 days before the date of the first hearing on the application. The governing body may require an applicant for such a zone change to pay the costs of such notice.(9)
The failure of a tenant or an airport owner to receive a notice which was mailed shall not invalidate any zone change.(B)
Written notice of the decision shall be mailed to those persons described in paragraph (c) of this subsection.(C)
Notice under this subsection shall comply with ORS 197.797 (Local quasi-judicial land use hearings) (3)(a), (c), (g) and (h) and shall describe the nature of the decision. In addition, the notice shall state that any person who is adversely affected or aggrieved or who is entitled to written notice under paragraph (c) of this subsection may appeal the decision by filing a written appeal in the manner and within the time period provided in the city’s land use regulations. A city may not establish an appeal period that is less than 12 days from the date the written notice of decision required by this subsection was mailed. The notice shall state that the decision will not become final until the period for filing a local appeal has expired. The notice also shall state that a person who is mailed written notice of the decision cannot appeal the decision directly to the Land Use Board of Appeals under ORS 197.830 (Review procedures).(D)
An appeal from a hearings officer’s decision made without hearing under this subsection shall be to the planning commission or governing body of the city. An appeal from such other person as the governing body designates shall be to a hearings officer, the planning commission or the governing body. In either case, the appeal shall be to a de novo hearing.(E)
The de novo hearing required by subparagraph (D) of this paragraph shall be the initial evidentiary hearing required under ORS 197.797 (Local quasi-judicial land use hearings) as the basis for an appeal to the Land Use Board of Appeals. At the de novo hearing:(i)
The applicant and other parties shall have the same opportunity to present testimony, arguments and evidence as they would have had in a hearing under subsection (3) of this section before the decision;(ii)
The presentation of testimony, arguments and evidence shall not be limited to issues raised in a notice of appeal; and(iii)
The decision maker shall consider all relevant testimony, arguments and evidence that are accepted at the hearing.(b)
If a local government provides only a notice of the opportunity to request a hearing, the local government may charge a fee for the initial hearing. The maximum fee for an initial hearing shall be the cost to the local government of preparing for and conducting the appeal, or $250, whichever is less. If an appellant prevails at the hearing or upon subsequent appeal, the fee for the initial hearing shall be refunded. The fee allowed in this paragraph shall not apply to appeals made by neighborhood or community organizations recognized by the governing body and whose boundaries include the site.(c)
Intentionally left blank —Ed.(A)
Notice of a decision under paragraph (a) of this subsection shall be provided to the applicant and to the owners of record of property on the most recent property tax assessment roll where such property is located:(i)
Within 100 feet of the property that is the subject of the notice when the subject property is wholly or in part within an urban growth boundary;(ii)
Within 250 feet of the property that is the subject of the notice when the subject property is outside an urban growth boundary and not within a farm or forest zone; or(iii)
Within 750 feet of the property that is the subject of the notice when the subject property is within a farm or forest zone.(B)
Notice shall also be provided to any neighborhood or community organization recognized by the governing body and whose boundaries include the site.(C)
At the discretion of the applicant, the local government also shall provide notice to the Department of Land Conservation and Development.(11)
A decision described in ORS 227.160 (Definitions for ORS 227.160 to 227.186) (2)(b) shall:(a)
Be entered in a registry available to the public setting forth:(A)
The street address or other easily understood geographic reference to the subject property;(B)
The date of the decision; and(C)
A description of the decision made.(b)
Be subject to the jurisdiction of the Land Use Board of Appeals in the same manner as a limited land use decision.(c)
Be subject to the appeal period described in ORS 197.830 (Review procedures) (5)(b).(12)
At the option of the applicant, the local government shall provide notice of the decision described in ORS 227.160 (Definitions for ORS 227.160 to 227.186) (2)(b) in the manner required by ORS 197.797 (Local quasi-judicial land use hearings) (2), in which case an appeal to the board shall be filed within 21 days of the decision. The notice shall include an explanation of appeal rights.(13)
Notwithstanding other requirements of this section, limited land use decisions shall be subject to the requirements set forth in ORS 197.195 (Limited land use decision) and 197.828 (Board review of limited land use decision). [1973 c.739 §§9,10; 1975 c.767 §8; 1983 c.827 §24; 1985 c.473 §15; 1987 c.106 §3; 1987 c.729 §18; 1989 c.648 §63; 1991 c.612 §21; 1991 c.817 §6; 1995 c.692 §2; 1997 c.844 §5; 1999 c.621 §2; 1999 c.935 §24; 2001 c.397 §2; 2017 c.745 §3; 2019 c.640 §18]
Source:
Section 227.175 — Application for permit or zone change; fees; consolidated procedure; hearing; approval criteria; decision without hearing, https://www.oregonlegislature.gov/bills_laws/ors/ors227.html.
Notes of Decisions
City council must make findings that proposed subdivision complied with applicable land use regulations, but court will not reverse plat approval where no assertion was made that any specific provision was violated. Golf Holding Co. v. McEachron, 39 Or App 675, 593 P2d 1202 (1979), Sup Ct review denied
Only conformity to comprehensive plan, not specific additional showing of public need or consideration of other available property, is prerequisite to zone change. Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)
Requirement for de novo hearing upon appeal to LUBA does not prevent local government from imposing prehearing identification and notice of issues requirement. Johns v. City of Lincoln City, 146 Or App 594, 933 P2d 978 (1997)
City ordinance that conditions approval of application for housing development on clear and objective standards directly intended to resolve health, safety or habitability issue, but that also incidentally reduce density, does not violate this section. Roberts v. City of Cannon Beach, 316 Or App 305, 504 P3d 1249 (2021)
Law Review Citations
6 EL 153 (1975)
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