ORS 197.335
Order for compliance with goals

  • review of order
  • withholding grant funds
  • injunctions

(1)

An order issued under ORS 197.328 (Procedures to consider order to comply with goals) and the copy of the order mailed to the local government, state agency or special district shall set forth:

(a)

The nature of the noncompliance, including, but not limited to, the contents of the comprehensive plan or land use regulation, if any, of a local government that do not comply with the goals or the contents of a plan, program or regulation affecting land use adopted by a state agency or special district that do not comply with the goals. In the case of a pattern or practice of decision-making which violates the goals, comprehensive plan or land use regulations, the order shall specify the decision-making which constitutes the pattern or practice, including specific provisions the Land Conservation and Development Commission believes are being misapplied;

(b)

The specific lands, if any, within a local government for which the existing plan or land use regulation, if any, does not comply with the goals; and

(c)

The corrective action decided upon by the commission, including the specific requirements, with which the local government, state agency or special district must comply. In the case of a pattern or practice of decision-making that violates an acknowledged comprehensive plan or land use regulation, the commission may require revisions to the comprehensive plan, land use regulations or local procedures which the commission believes are necessary to correct the pattern or practice. Notwithstanding the provisions of this section, except as provided in subsection (3)(c) of this section, an enforcement order does not affect:

(A)

Land use applications filed with a local government prior to the date of adoption of the enforcement order unless specifically identified by the order;

(B)

Land use approvals issued by a local government prior to the date of adoption of the enforcement order; or

(C)

The time limit for exercising land use approvals issued by a local government prior to the date of adoption of the enforcement order.

(2)

Judicial review of a final order of the commission shall be governed by the provisions of ORS chapter 183 applicable to contested cases except as otherwise stated in this section. The commission’s final order shall include a clear statement of findings which set forth the basis for the order. Where a petition to review the order has been filed in the Court of Appeals, the commission shall transmit to the court the entire administrative record of the proceeding under review. Notwithstanding ORS 183.482 (Jurisdiction for review of contested cases) (3) relating to a stay of enforcement of an agency order, an appellate court, before it may stay an order of the commission, shall give due consideration to the public interest in the continued enforcement of the commission’s order and may consider testimony or affidavits thereon. Upon review, an appellate court may affirm, reverse, modify or remand the order. The court shall reverse, modify or remand the order only if it finds:

(a)

The order to be unlawful in substance or procedure, but error in procedure shall not be cause for reversal, modification or remand unless the court shall find that substantial rights of any party were prejudiced thereby;

(b)

The order to be unconstitutional;

(c)

The order is invalid because it exceeds the statutory authority of the agency; or

(d)

The order is not supported by substantial evidence in the whole record.

(3)

Intentionally left blank —Ed.

(a)

If the commission finds that in the interim period during which a local government, state agency or special district would be bringing itself into compliance with the commission’s order under ORS 197.320 (Power of commission to order compliance with goals and plans) or subsection (2) of this section it would be contrary to the public interest in the conservation or sound development of land to allow the continuation of some or all categories of land use decisions or limited land use decisions, it shall, as part of its order, limit, prohibit or require the approval by the local government of applications for subdivisions, partitions, building permits, limited land use decisions or land use decisions until the plan, land use regulation or subsequent land use decisions and limited land use decisions are brought into compliance. The commission may issue an order that requires review of local decisions by a hearings officer or the Department of Land Conservation and Development before the local decision becomes final.

(b)

Any requirement under this subsection may be imposed only if the commission finds that the activity, if continued, aggravates the goal, comprehensive plan or land use regulation violation and that the requirement is necessary to correct the violation.

(c)

The limitations on enforcement orders under subsection (1)(c)(B) of this section shall not be interpreted to affect the commission’s authority to limit, prohibit or require application of specified criteria to subsequent land use decisions involving land use approvals issued by a local government prior to the date of adoption of the enforcement order.

(4)

As part of its order under ORS 197.320 (Power of commission to order compliance with goals and plans) or subsection (2) of this section, the commission may withhold grant funds from the local government to which the order is directed. As part of an order issued under this section, the commission may notify the officer responsible for disbursing state-shared revenues to withhold that portion of state-shared revenues to which the local government is entitled under ORS 221.770 (Revenue sharing to cities), 323.455 (Distribution of certain cigarette tax revenues), 366.762 (Appropriation from highway fund for counties) and 366.800 (Appropriation from highway fund for cities) and ORS chapter 471 which represents the amount of state planning grant moneys previously provided the local government by the commission. The officer responsible for disbursing state-shared revenues shall withhold state-shared revenues as outlined in this section and shall release funds to the local government or department when notified to so do by the commission or its designee. The commission may retain a portion of the withheld revenues to cover costs of providing services incurred under the order, including use of a hearings officer or staff resources to monitor land use decisions and limited land use decisions or conduct hearings. The remainder of the funds withheld under this provision shall be released to the local government upon completion of requirements of the commission order.

(5)

Intentionally left blank —Ed.

(a)

As part of its order under this section, the commission may notify the officer responsible for disbursing funds from any grant or loan made by a state agency to withhold such funds from a special district to which the order is directed. The officer responsible for disbursing funds shall withhold funds as outlined in this section and shall release funds to the special district or department when notified to do so by the commission.

(b)

The commission may retain a portion of the funds withheld to cover costs of providing services incurred under the order, including use of a hearings officer or staff resources to monitor land use decisions and limited land use decisions or conduct hearings. The remainder of the funds withheld under this provision shall be released to the special district upon completion of the requirements of the commission order.

(6)

The commission may institute actions or proceedings for legal or equitable remedies in the Circuit Court for Marion County or in the circuit court for the county to which the commission’s order is directed or within which all or a portion of the applicable city is located to enforce compliance with the provisions of any order issued under this section or to restrain violations thereof. Such actions or proceedings may be instituted without the necessity of prior agency notice, hearing and order on an alleged violation. [1989 c.761 §7; 1991 c.817 §25; 1993 c.804 §11; 1995 c.301 §36; 1995 c.778 §1]

Source: Section 197.335 — Order for compliance with goals; review of order; withholding grant funds; injunctions, https://www.­oregonlegislature.­gov/bills_laws/ors/ors197.­html.

Notes of Decisions

LCDC limitation on validity of local land use approvals may extend to approvals granted prior to LCDC order. Jackson County v. LCDC, 132 Or App 302, 888 P2d 98 (1995), Sup Ct review denied

197.005
Legislative findings
197.010
Policy
197.012
Compact urban development
197.013
Implementation and enforcement are of statewide concern
197.015
Definitions for ORS chapters 195, 196, 197 and ORS 197A.300 to 197A.325
197.020
Land use decision considerations
197.022
Policy regarding ORS 215.433 and 227.184
197.030
Land Conservation and Development Commission
197.035
Officers
197.040
Duties of commission
197.045
Powers of commission
197.047
Notice to local governments and property owners of changes to commission rules or certain statutes
197.050
Interstate agreements and compacts
197.060
Biennial report
197.065
Biennial report analyzing uses of certain land
197.070
Public inspection of assessments prepared by commission
197.075
Department of Land Conservation and Development
197.085
Director
197.090
Duties and authority of director
197.095
Land Conservation and Development Account
197.158
Policy-neutral review and audit of statewide land use program
197.160
State Citizen Involvement Advisory Committee
197.165
Local Officials Advisory Committee
197.173
Findings regarding coordination between state agencies and local governments
197.175
Cities’ and counties’ planning responsibilities
197.178
Development applications
197.180
State agency planning responsibilities
197.183
Local government to notify Department of Aviation of applications received for certain water impoundments
197.186
Removal from buildable lands inventory of land subject to open space tax assessment
197.195
Limited land use decision
197.200
Refinement plan
197.225
Preparation
197.230
Considerations
197.235
Public hearings
197.240
Commission action
197.245
Commission amendment of initial goals
197.250
Compliance with goals required
197.251
Compliance acknowledgment
197.253
Participation in local proceedings required for submitting comments and objections
197.254
Bar to contesting acknowledgment, appealing or seeking amendment
197.256
Acknowledgment deadline for newly incorporated cities
197.265
State compensation for costs of defending compliance actions
197.270
Copies of comprehensive plan and land use regulations
197.274
Review of Metro regional framework plan
197.277
Oregon Forest Practices Act
197.279
Approved wetland conservation plans comply with goals
197.283
Commission to assure protection of ground water resources
197.286
Definitions for ORS 197.286 to 197.314 and 197.475 to 197.490
197.290
Housing production strategy
197.291
Review of housing production strategy
197.293
Identification of cities with unmet housing needs
197.296
Analysis of housing capacity and needed housing by Metro, cities outside of Metro and smaller cities
197.297
Analysis of housing capacity and needed housing in Metro cities
197.298
Priority of land to be included within urban growth boundary
197.299
Metro accommodation of needed housing and school lands
197.301
Metro report of performance measures
197.302
Metro determination of buildable land supply
197.303
“Needed housing” defined
197.304
Lane County accommodation of needed housing
197.307
Needed housing policy
197.308
Affordable housing allowed outright
197.309
Local requirements to develop affordable housing
197.311
Final action on affordable housing application
197.312
Limitation on city and county prohibitions
197.313
Interpretation of ORS 197.312
197.314
Required siting of manufactured homes
197.319
Procedures prior to request of an enforcement order
197.320
Power of commission to order compliance with goals and plans
197.324
Proceedings prior to order of compliance with goals
197.328
Procedures to consider order to comply with goals
197.335
Order for compliance with goals
197.340
Weight given to goals in planning practice
197.350
Burden of persuasion or proof in appeal to board or commission
197.353
Measure 37 timelines
197.360
“Expedited land division” defined
197.365
Application
197.370
Failure of local government to timely act on application
197.375
Appeal of local government to referee
197.380
Application fees
197.390
Activities on federal land
197.395
Application for permit
197.405
Designation of areas of critical state concern
197.410
Use and activities regulated
197.416
Metolius Area of Critical State Concern
197.430
Enforcement powers
197.431
Expansion of speedway destination site
197.432
Definitions for ORS 197.431 to 197.434
197.433
Development of major motor speedway
197.434
Traffic impacts of speedway destination
197.435
Definitions for ORS 197.435 to 197.467
197.440
Legislative findings
197.445
Destination resort criteria
197.450
Siting without taking goal exception
197.455
Siting of destination resorts
197.460
Compatibility with adjacent land uses
197.462
Use of land excluded from destination resort
197.465
Comprehensive plan implementing measures
197.467
Conservation easement to protect resource site
197.475
Policy
197.480
Planning for parks
197.485
Prohibition on restrictions of manufactured dwelling
197.488
Replacement of park destroyed by natural disaster
197.490
Restriction on establishment of park
197.492
Definitions for ORS 197.492 and 197.493
197.493
Placement and occupancy of recreational vehicle
197.505
Definitions for ORS 197.505 to 197.540
197.510
Legislative findings
197.520
Manner of declaring moratorium
197.522
Local government to approve subdivision, partition or construction
197.524
Local government to adopt moratorium or public facilities strategy following pattern or practice of delaying or stopping issuance of permits
197.530
Correction program
197.540
Review by Land Use Board of Appeals
197.610
Submission of proposed comprehensive plan or land use regulation changes to Department of Land Conservation and Development
197.612
Comprehensive plan or land use regulation changes to conform plan or regulations to new requirement in statute, goal or rule
197.615
Submission of adopted comprehensive plan or land use regulation changes to Department of Land Conservation and Development
197.620
Appeal of certain comprehensive plan or land use regulation decision-making
197.625
Acknowledgment of comprehensive plan or land use regulation changes
197.626
Submission of land use decisions that expand urban growth boundary or designate urban or rural reserves
197.627
Meaning of “compliance with the goals” for certain purposes
197.628
Periodic review
197.629
Schedule for periodic review
197.631
Commission to amend regulations to facilitate periodic review
197.633
Two phases of periodic review
197.636
Procedures and actions for failure to meet periodic review deadlines
197.637
Department of Land Conservation and Development may request review by Housing and Community Services Department of certain local housing measures
197.638
Department of Land Conservation and Development may request review by Oregon Business Development Department of local inventory and analysis of industrial and commercial land
197.639
State assistance teams
197.644
Modification of work program
197.646
Implementation of new requirement in goal, rule or statute
197.649
Fees for notice
197.650
Appeal to Court of Appeals
197.651
Appeal to Court of Appeals for judicial review of final order of Land Conservation and Development Commission
197.652
Regional problem-solving process
197.654
Regional problem-solving goals, actions and agreements
197.656
Commission approval of comprehensive plans not in compliance with goals
197.658
Modifying local work plan
197.659
Commission approval of certain changes in comprehensive plans or land use regulations
197.660
Definitions
197.663
Legislative findings
197.665
Locations of residential homes
197.667
Location of residential facility
197.670
Zoning requirements and prohibitions for residential homes and residential facilities
197.677
Policy
197.680
Legislative findings
197.685
Location of farmworker housing
197.707
Legislative intent
197.712
Commission duties
197.713
Industrial development on industrial lands outside urban growth boundaries
197.714
Cooperation of county and city concerning industrial development
197.716
Industrial and employment uses in listed counties
197.717
Technical assistance by state agencies
197.719
Industrial use of abandoned or diminished mill sites
197.722
Definitions for ORS 197.722 to 197.728
197.723
Designation of regionally significant industrial areas
197.724
Review of application for land use permit within regionally significant industrial area
197.726
Jurisdiction on appeal
197.727
Fee for review
197.728
Rules
197.732
Goal exceptions
197.734
Exceptions to certain statewide planning goal criteria
197.736
Commission implementation of ORS 197.340 and 197.732
197.746
Transitional housing accommodations
197.748
Conversion of hotel or motel to emergency shelter or affordable housing
197.752
Lands available for urban development
197.754
Land identified for urban services
197.756
Farm use assessment in area identified for urban services
197.758
Development of middle housing
197.761
Development of residential platted lot
197.764
Application to remove property from within urban growth boundary
197.766
Laws applicable to certain local decisions regarding urban growth boundary
197.768
Local government or special district adoption of public facilities strategy
197.770
Firearms training facilities
197.772
Consent for designation as historic property
197.782
Emergency shelters developed under temporary authorization
197.791
Inventory of local government surplus real property
197.794
Notice to railroad company upon certain applications for land use decision, limited land use decision or expedited land use decision
197.796
Applicant for certain land use decisions may accept and appeal condition imposed on application
197.797
Local quasi-judicial land use hearings
197.798
Rules regulating transportation improvements by city or county
197.805
Policy on review of land use decisions
197.810
Land Use Board of Appeals
197.815
Office location
197.820
Duty to conduct review proceedings
197.825
Jurisdiction of board
197.828
Board review of limited land use decision
197.829
Board to affirm certain local government interpretations
197.830
Review procedures
197.831
Appellate review of clear and objective approval standards, conditions and procedures for needed housing
197.832
Board Publications Account
197.835
Scope of review
197.840
Exceptions to deadline for final decision
197.843
Attorney fees for applicant developing affordable housing
197.845
Stay of decision being reviewed
197.850
Judicial review of board order
197.855
Deadline for final court order
197.860
Stay of proceedings to allow mediation
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