City Planning and Zoning

ORS 227.178
Final action on certain applications required within 120 days

  • procedure
  • exceptions
  • refund of fees


(1)

Except as provided in subsections (3), (5) and (11) of this section, the governing body of a city 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 227.180 (Review of action on permit application), within 120 days after the application is deemed complete.

(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 or 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 the requested additional information within 180 days of the date the application was first submitted and the city 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 120-day 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 (11) of this section for mediation, may not exceed 245 days.

(6)

The 120-day 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 city; and

(b)

Unless the parties have agreed to mediation as described in subsection (11) 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 120-day 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 city 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 city or its designee does not take final action on an application for a permit, limited land use decision or zone change within 120 days after the application is deemed complete, the city shall refund to the applicant, subject to the provisions of subsection (9) of this section, 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) To obtain a refund under subsection (8) of this section, the applicant may either:

(A)

Submit a written request for payment, either by mail or in person, to the city or its designee; or

(B)

Include the amount claimed in a mandamus petition filed under ORS 227.179 (Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days). The court shall award an amount owed under this section in its final order on the petition.

(b)

Within seven calendar days of receiving a request for a refund, the city or its designee shall determine the amount of any refund owed. Payment, or notice that no payment is due, shall be made to the applicant within 30 calendar days of receiving the request. Any amount due and not paid within 30 calendar days of receipt of the request shall be subject to interest charges at the rate of one percent per month, or a portion thereof.

(c)

If payment due under paragraph (b) of this subsection is not paid within 120 days after the city or its designee receives the refund request, the applicant may file an action for recovery of the unpaid refund. In an action brought by a person under this paragraph, the court shall award to a prevailing applicant, in addition to the relief provided in this section, reasonable attorney fees and costs at trial and on appeal. If the city or its designee prevails, the court shall award reasonable attorney fees and costs at trial and on appeal if the court finds the petition to be frivolous.

(10)

A city may not compel an applicant to waive the 120-day 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 227.179 (Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days) 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.

(11)

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 city agree that a dispute concerning the application will be mediated. [1983 c.827 §27; 1989 c.761 §16; 1991 c.817 §15; 1995 c.812 §3; 1997 c.844 §8; 1999 c.533 §8; 2003 c.150 §1; 2003 c.800 §31; 2009 c.873 §16; 2011 c.280 §12; 2017 c.745 §11]

Notes of Decisions

Where petitioners' contention that applicant failed to file new application after city amended ordinance raised only questions of procedure without showing prejudice to petitioners' substantial rights, there was no basis for reversing granting of application. Sunburst II Homeowners Assn. v. City of West Linn, 101 Or App 458, 790 P2d 1213 (1990), Sup Ct review denied

Governing body cannot avoid mandamus action by issuing application denial after expiration of 120-day period but prior to mandamus hearing. State ex rel Compass Corp. v. City of Lake Oswego, 319 Or 537, 878 P2d 403 (1994)

Attorney fee provision of ORS 34.210 applies to action for writ to compel governing body to approve application. State ex rel Compass Corp. v. City of Lake Oswego, 135 Or App 148, 898 P2d 198 (1995)

Where provisions of state rule become applicable to local jurisdiction due to jurisdiction's not adopting local legislation, previously filed applications are not subject to provisions. East Lancaster Neighborhood Assoc. v. City of Salem, 139 Or App 333, 911 P2d 1283 (1996)

"Permit" does not include request for annexation. Clark v. City of Albany, 142 Or App 207, 921 P2d 406 (1996)

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)

Application is not subject to 120-day final action deadline upon remand from Land Use Board of Appeals. State ex rel Holland v. City of Cannon Beach, 153 Or App 176, 956 P2d 1039 (1998)

Action for writ to compel issuance of land use approval is deemed commenced on date filed with court. Seida v. City of Lincoln City, 160 Or App 499, 982 P2d 31 (1999), Sup Ct review denied

Once application is deemed complete, action by applicant other than written request for extension have no effect on date by which city must take final action. State ex rel Stewart v. City of Salem, 241 Or App 528, 251 P3d 783 (2011)

§§ 227.160 to 227.185

Notes of Decisions

References to application for permits and zone changes do not prevent use of quasi-judicial proceeding in other types of land use decisions. Department of Transportation v. City of Mosier, 161 Or App 252, 984 P2d 351 (1999)

Law Review Citations

10 WLJ 395 (1974); 68 OLR 1005 (1989)

Chapter 227

Atty. Gen. Opinions

Fasano v. Bd. of County Commrs., application to city governing bodies and planning commissions, (1974) Vol 36, p 960


Source

Last accessed
Jun. 26, 2021