2015 ORS 197.763¹
Conduct of local quasi-judicial land use hearings
  • notice requirements
  • hearing procedures

The following procedures shall govern the conduct of quasi-judicial land use hearings conducted before a local governing body, planning commission, hearings body or hearings officer on application for a land use decision and shall be incorporated into the comprehensive plan and land use regulations:

(1) An issue which may be the basis for an appeal to the Land Use Board of Appeals shall be raised not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied by statements or evidence sufficient to afford the governing body, planning commission, hearings body or hearings officer, and the parties an adequate opportunity to respond to each issue.

(2)(a) Notice of the hearings governed by this section shall be provided to the applicant and to owners of record of property on the most recent property tax assessment roll where such property is located:

(A) Within 100 feet of the property which is the subject of the notice where the subject property is wholly or in part within an urban growth boundary;

(B) Within 250 feet of the property which is the subject of the notice where the subject property is outside an urban growth boundary and not within a farm or forest zone; or

(C) Within 500 feet of the property which is the subject of the notice where 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.

(3) The notice provided by the jurisdiction shall:

(a) Explain the nature of the application and the proposed use or uses which could be authorized;

(b) List the applicable criteria from the ordinance and the plan that apply to the application at issue;

(c) Set forth the street address or other easily understood geographical reference to the subject property;

(d) State the date, time and location of the hearing;

(e) State that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the decision maker an opportunity to respond to the issue precludes appeal to the board based on that issue;

(f) Be mailed at least:

(A) Twenty days before the evidentiary hearing; or

(B) If two or more evidentiary hearings are allowed, 10 days before the first evidentiary hearing;

(g) Include the name of a local government representative to contact and the telephone number where additional information may be obtained;

(h) State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;

(i) State that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and will be provided at reasonable cost; and

(j) Include a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings.

(4)(a) All documents or evidence relied upon by the applicant shall be submitted to the local government and be made available to the public.

(b) Any staff report used at the hearing shall be available at least seven days prior to the hearing. If additional documents or evidence are provided by any party, the local government may allow a continuance or leave the record open to allow the parties a reasonable opportunity to respond. Any continuance or extension of the record requested by an applicant shall result in a corresponding extension of the time limitations of ORS 215.427 (Final action on permit or zone change application) or 227.178 (Final action on certain applications required within 120 days) and ORS 215.429 (Mandamus proceeding when county fails to take final action on land use application within specified time) or 227.179 (Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days).

(5) At the commencement of a hearing under a comprehensive plan or land use regulation, a statement shall be made to those in attendance that:

(a) Lists the applicable substantive criteria;

(b) States that testimony, arguments and evidence must be directed toward the criteria described in paragraph (a) of this subsection or other criteria in the plan or land use regulation which the person believes to apply to the decision; and

(c) States that failure to raise an issue accompanied by statements or evidence sufficient to afford the decision maker and the parties an opportunity to respond to the issue precludes appeal to the board based on that issue.

(6)(a) Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, arguments or testimony regarding the application. The local hearings authority shall grant such request by continuing the public hearing pursuant to paragraph (b) of this subsection or leaving the record open for additional written evidence, arguments or testimony pursuant to paragraph (c) of this subsection.

(b) If the hearings authority grants a continuance, the hearing shall be continued to a date, time and place certain at least seven days from the date of the initial evidentiary hearing. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence, arguments or testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to submit additional written evidence, arguments or testimony for the purpose of responding to the new written evidence.

(c) If the hearings authority leaves the record open for additional written evidence, arguments or testimony, the record shall be left open for at least seven days. Any participant may file a written request with the local government for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearings authority shall reopen the record pursuant to subsection (7) of this section.

(d) A continuance or extension granted pursuant to this section shall be subject to the limitations of ORS 215.427 (Final action on permit or zone change application) or 227.178 (Final action on certain applications required within 120 days) and ORS 215.429 (Mandamus proceeding when county fails to take final action on land use application within specified time) or 227.179 (Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days), unless the continuance or extension is requested or agreed to by the applicant.

(e) Unless waived by the applicant, the local government shall allow the applicant at least seven days after the record is closed to all other parties to submit final written arguments in support of the application. The applicants final submittal shall be considered part of the record, but shall not include any new evidence. This seven-day period shall not be subject to the limitations of ORS 215.427 (Final action on permit or zone change application) or 227.178 (Final action on certain applications required within 120 days) and ORS 215.429 (Mandamus proceeding when county fails to take final action on land use application within specified time) or 227.179 (Petition for writ of mandamus authorized when city fails to take final action on land use application within 120 days).

(7) When a local governing body, planning commission, hearings body or hearings officer reopens a record to admit new evidence, arguments or testimony, any person may raise new issues which relate to the new evidence, arguments, testimony or criteria for decision-making which apply to the matter at issue.

(8) The failure of the property owner to receive notice as provided in this section shall not invalidate such proceedings if the local government can demonstrate by affidavit that such notice was given. The notice provisions of this section shall not restrict the giving of notice by other means, including posting, newspaper publication, radio and television.

(9) For purposes of this section:

(a) Argument means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by the proponent to a decision. Argument does not include facts.

(b) Evidence means facts, documents, data or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision. [1989 c.761 §10a (enacted in lieu of 197.762); 1991 c.817 §31; 1995 c.595 §2; 1997 c.763 §6; 1997 c.844 §2; 1999 c.533 §12]

Notes of Decisions

County ordinance violated this sec­tion by restricting time within which opponents could file evidence but was consistent with this sec­tion in allowing applicant to present addi­tional evidence within 20-day period between countys notice and hearing. 1000 Friends of Oregon v. Lane County, 102 Or App 68, 793 P2d 885 (1990)

As used in this statute, sufficient specificity requires no more than fair notice to adjudicators and opponents and is not analogous to specificity necessary for preserva­tion in judicial pro­ceed­ings. Boldt v. Clackamas County, 107 Or App 619, 813 P2d 1078 (1991)

When record of pro­ceed­ing is reopened at LUBAs direc­tion on remand, new issues include remanded issues, but not issues that LUBA affirmed or reversed on their merits. Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992)

Reference to applica­tion for land use decision does 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)

Require­ment of 20 days notice applies to new evidentiary hearing process initiated to comply with order of reviewing body. Hausam v. City of Salem, 178 Or App 417, 37 P3d 1039 (2001)

Law Review Cita­tions

77 OLR 845 (1998); 36 WLR 441 (2000)

Chapter 197

Notes of Decisions

A comprehensive plan, although denominated a resolu­tion, is the controlling land use planning instru­ment for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

Procedural require­ments of the state-wide planning goals adopted by the Land Conserva­tion and Develop­ment Commission are not applicable to ordinances adopted before the effective date of the goals. Schmidt v. Land Conserva­tion and Develop­ment Comm., 29 Or App 665, 564 P2d 1090 (1977)

This chapter, es­tab­lishing LCDC and granting it authority to es­tab­lish state-wide land use planning goals, does not unconstitu­tionally delegate legislative power where both standards (ORS chapter 215) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where countys comprehensive plan and land use regula­tions had not been acknowledged by LCDC, it was proper for county to apply state-wide planning standards directly to individual request for parti­tion. Alexanderson v. Polk County Commissioners, 289 Or 427, 616 P2d 459 (1980)

Issuance of a building permit was a land conserva­tion and develop­ment ac­tion where county had no acknowledged comprehensive plan, land was not zoned and no pre­vi­ous land use decision had been made re­gard­ing the land. Columbia Hills v. LCDC, 50 Or App 483, 624 P2d 157 (1981), Sup Ct review denied

Nothing in this chapter grants the Land Conserva­tion and Develop­ment Depart­ment authority to challenge local land use decisions made after comprehensive plan acknowledg­ment. Ochoco Const. v. LCDC, 295 Or 422, 667 P2d 499 (1983)

LCDC has authority in periodic review process to require local govern­ment to add specific language or pro­vi­sions to its land use legisla­tion to assure compliance with statewide goals and LCDC rules. Oregonians in Ac­tion v. LCDC, 121 Or App 497, 854 P2d 1010 (1993), Sup Ct review denied

Atty. Gen. Opinions

Authority of a land conserva­tion and develop­ment com­mis­sion to bind the state in an interstate compact or agree­ment, (1973) Vol 36, p 361; applica­tion of Fasano v. Bd. of County Commrs., (1974) Vol 36, p 960; state-wide planning goal in conjunc­tion with interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; binding effect on govern­mental agencies of the adop­tion of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; applica­tion to state agencies, (1976) Vol 37, p 1129; preexisting ordinances during the interim imple­menting stage, (1976) Vol 37, p 1329; constitu­tionality of delega­tion to LCDC of authority to prescribe and enforce statewide planning goals, (1977) Vol 38, p 1130; effect of situa­tion where similar peti­tion is filed before both com­mis­sion and a court, (1977) Vol 38, p 1268; considera­tion of availability of public school facilities in determina­tion of whether to approve subdivision, (1978) Vol 38, p 1956

Law Review Cita­tions

10 WLJ 99 (1973); 53 OLR 129 (1974); 5 EL 673 (1975); 54 OLR 203-223 (1975); 56 OLR 444 (1977); 18 WLR 49 (1982); 61 OLR 351 (1982); 20 WLR 764 (1984); 14 EL 661, 693, 713, 779, 843 (1984); 25 WLR 259 (1989); 31 WLR 147, 449, 817 (1995); 36 EL 25 (2006); 49 WLR 411 (2013)


1 Legislative Counsel Committee, CHAPTER 197—Comprehensive Land Use Planning I, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors197.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 197, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano197.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.