Chapter 4
Key Statutes and Rules

As described in Chapter 2, Oregon's main standard for citizen involvement programs is Statewide Planning Goal 1. But Goal 1 is not the only state law or rule that affects citizen involvement. Special regulations about notice and other procedures greatly affect public participation in planning. The main areas of special regulations are described below.

It's important to note that these state laws and rules are applied through the local comprehensive plan. Oregon's cities and counties fold the state's regulations into their local plans and implementing ordinances, which then become the controlling documents for all land use actions. A citizen who wants to know what procedures will be used in a specific land use action should consult his community's plan and ordinances, not the state's laws, goals, or rules. State law, for example, requires notice to landowners within 100 feet of the subject property for certain types of cases. But a city could choose to use a 200-foot standard. The city's requirement, not state law, would be the controlling standard in any appeal.

Land Use Decisions

Every day in Oregon, local officials make hundreds of decisions having to do with planning, zoning, and development and division of land. Some of those decisions involve the creation of new policies that have significant effects on an entire community. Others are routine actions with almost no perceptible effects.

Oregon's laws classify these land use actions in a three-part hierarchy:

land use decisions;
limited land use decisions;
administrative actions.

Land use decisions are the actions with the greatest potential to affect a community's land or people. In the words of the Oregon Supreme Court, a land use decision is one that "has a significant impact on present or future land uses" (City of Pendleton v. Kerns, 1982).

Land use decisions are subject to statutes that generally provide for more extensive citizen involvement. That is, the rules establish broader appeal rights, more extensive notice requirements, and greater opportunity for public hearings. The other two types of actions are subject to different rules that allow for less citizen involvement, as described in the two sections that follow.

The distinction between the three types of land use actions is not always apparent. For example, a county's decision to approve a new dwelling in an Exclusive Farm Use Zone is a land use decision. Neighbors must receive notice, they have the right to a public hearing, and they may appeal the decision to LUBA. But a city's decision to issue a building permit for a new house in an R-1 Zone is not a land use decision. It's an administrative action. Neighbors need not be notified, no hearing must be held, and any appeal would go to circuit court.

The formal definition of land use decision is found in ORS 197.015(10), quoted below:

Land use decision:

(a) Includes:
: (A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:
: (i) The goals;
: (ii) A comprehensive plan provision;
: (iii) A land use regulation; or
: (iv) A new land use regulation; or
: (B) A final decision or determination of a state agency other than the commission [LCDC] with respect to which the agency is required to apply the goals; and

(b) Does not include a decision of a local government:
: (A) Which is made under land use standards which do not require interpretation or the exercise of policy or legal judgment;
: (B) Which approves or denies a building permit issued under clear and objective land use standards;
: (C) Which is a limited land use decision; or
: (D) Which determines final engineering design, construction, operation, maintenance, repair or preservation of a transportation facility which is otherwise authorized by and consistent with the comprehensive plan and land use regulations.

That definition has been interpreted broadly by the courts. In other words, some actions that might not seem to fit the above definition have been found to be land use decisions. The actual impact on land use is the crucial factor.

Land use decisions may be either "legislative" or "quasi-judicial." The difference between the two is not always precise. In general, however, legislative land use decisions involve the creation of policies or regulations; quasi-judicial land use decisions involve the application of policies or regulations to a specific situation or piece of land.

Suppose, for example, that a city council adopts policies and regulations to manage development on lands subject to flooding. The council is "legislating" -- creating law that affects all or much of the community. That's a legislative decision.

Now suppose the same city's planning commission decides to approve a request for a conditional use permit to build a house in the Flood Management Zone. Here, the city is not creating new law. Rather, it is applying existing law. In judging how the law should be applied in that particular case, the planning commission is making a quasi-judicial land use decision.

The laws that govern procedures for making legislative land use decisions are relatively broad. For example, they give local officials greater latitude to decide who will receive notice about a particular decision.

The laws that apply to quasi-judicial decision making are more detailed. The most important is ORS 197.763. This statute sets forth procedures that city and county officials must use when deciding requests for variances, conditional use permits, and other land use permits. The statute answers four basic questions:

Who must get notice of the proposed decision?
What information must be in that notice?
When must the notice be provided?
Who may appeal the decision?

You may read the complete text of ORS 197.763 in Oregon Revised Statutes Chapter 197. It details what must be done to inform citizens about each proposed land use decision. In cities, for example, notice must be mailed to all owners of property within 100 feet of land involved in a proposed land use decision; the notice must be mailed at least 20 days before the public hearing.
ORS 197.763 applies to cities and counties alike. But Oregon's laws also contain more specialized laws on permits, hearings, and notices. ORS 215.416 describes certain steps to be followed by counties; ORS 227.175 describes similar procedures for cities. See Oregon Revised Statutes, Chapter 215 and Chapter 227
The statutes described above establish minimum standards for "due process." They specify what must be done, not necessarily what should be done. Often, local officials need to go beyond the statutory standards to have effective citizen involvement.

The statutory requirements are minimums: they specify the least that may be done, not necessarily what should be done.

Suppose, for example, a developer seeks a conditional use permit to build a health clinic to serve low-income families. ORS 197.763 requires that city officials send notice only to owners of property within 100 feet of the proposed clinic site. Those neighbors are the people most likely to oppose the project. But construction of the clinic may be of great interest to others: local advocates for affordable health care, agencies that assist low-income families, and so on. A good citizen involvement program will go beyond ORS 197.763 and ensure that all interested people and groups hear about such a proposal, not just those who would live next door to it.
Such advice is easy to say but hard to follow, because opting for more citizen participation involves some costs. It takes more money. It takes more staff time. It may seem to increase the risk of conflict (even though it's more likely to reduce conflict in the long run).
Those ever-present costs constitute a strong force working against citizen involvement. That's why it is so important to have a strong CCI and a detailed citizen involvement program. They are the main forces -- sometimes the only forces -- working to put the people in planning.

Limited Land Use Decisions
This new category of land use actions was created in 1991 by amendments to Oregon's planning statutes. It is defined by ORS 197.015(12) as follows:

Limited land use decision is a final decision or determination made by a local government pertaining to a site within an urban growth boundary which concerns:
(a) The approval or denial of a subdivision or partition, as described in ORS chapter 92.
(b) The approval or denial of an application based on discretionary standards designed to regulate the physical characteristics of a use permitted outright, including but not limited to site review and design review.
Procedural requirements for limited land use decisions are set forth in ORS 197.195. Here's a summary of the main points:

Property owners within 100 feet of the subject property must receive notice.
Any recognized neighborhood organization for the area must receive notice.
Individuals and organizations have a 14-day period in which to submit comments before the decision is made.
They must raise issues in writing during the 14-day comment period or lose their right to appeal.
The notice must specify the criteria to be applied; the location of the property in question; the date, time, and place for written comments to be received; that copies of evidence can be viewed and copied; the local government's contact person; the process for making the decision.
Decision makers must explain in writing how the proposal meets or fails to meet applicable standards.
People who submit comments will get notice of the decision after it is made and an explanation of their appeal rights.
Appeals of limited land use decisions are heard by the Land Use Board of Appeals.

Administrative Actions
Many land use actions are routine administrative matters. They are handled by staff without extensive public notice or review -- not because citizen involvement is unnecessary, but because the citizens have already spoken.
Suppose, for example, that a city spends one year refining its zoning ordinance. After numerous hearings and much favorable public comment, the city decides to allow "granny flats" outright in the R-1 zone. (A granny flat is a small apartment attached to a single-family dwelling.) A month after the new ordinance is adopted, a homeowner applies for a building permit to modify his house to create a granny flat.
If that proposal satisfies the applicable standards and definition, local officials should approve the permit. To seek further comment from adjoining land owners about the appropriateness of granny flats in the R-1 zone would be wasteful. It also could be considered "anti citizen involvement," for it implies that opposition from one neighbor could override a policy set by the entire community.
As noted above, the differences between land use decisions, limited land use decisions, and administrative actions are not always clear or precise. These three rules of thumb generally apply, however:

If the proposed action is not a land use decision or limited land use decision, then it's an administrative action.
Administrative actions are carried out with a minimum of notice and public review; they provide the least opportunity for citizens to be involved in the decision making.
Appeals of land use decisions and limited land use decisions go to the Land Use Board of Appeals. Appeals of administrative actions go to circuit court.

Periodic Review
State law (ORS 197.628 - .650) calls for local comprehensive plans to be reviewed and updated every four to ten years. That process, known as periodic review, gives local officials both a mandate and an opportunity to renew the public's participation in land use planning.
Oregon's statutes and administrative rules on periodic review were revised in 1991, partly to improve public involvement. Oregon Administrative Rule (OAR) 660-25-080 is the key section. It outlines six main steps for citizen involvement in periodic review*:

Announce the review. Publish at least one notice in a local newspaper; notify people and groups likely to have an interest in periodic review; notify people who requested such notice.
Review the CIP. Check the community's adopted citizen involvement program to see that it assures an adequate process for citizen involvement in all phases of the periodic review.
Follow the CIP. Use the citizen involvement program as the blueprint for public participation during periodic review.
Ask what needs to be done. The law requires each community to draw up a work program specifying what tasks should be accomplished in periodic review. Give the public opportunities to suggest what tasks should be in that work program.
Ask for comments on what is done. Give citizens opportunities to comment on those tasks as they are carried out.
Respond. Reply to the public's suggestions about the work program and about individual items on it. The response can be oral (during a hearing, for example) or written.
* Some communities may go through periodic review under the pre-1991 rules.
Plan Amendments
In effect, periodic review is a major overhaul of the local plan; plan amendments are repairs and adjustments. Cities and counties throughout Oregon make about 3,500 amendments of their plans and land use ordinances each year. Some of the amendments are minor technical changes that mean little to most citizens. Others are major actions that affect an entire city.
Some plan amendments are quasi-judicial land use decisions and are subject to the very specific laws described above and in ORS 197.763. But many are legislative decisions: local officials have greater flexibility in deciding how the public is to be involved in such actions.
Oregon's laws do specify certain procedures that local governments must follow when they amend their plans and land use regulations. But those statutes (ORS 197.610-.625) deal mainly with how the local government is to deal with DLCD. The laws on plan amendments have little to say about public involvement, particularly in legislative plan amendments. The laws specify only that local governments must notify persons who "participated in the proceedings leading to the adoption of the amendment" within five working days after the amendment is adopted. But they don't say how those persons may have heard about the proposal to amend the plan in the first place.
Because of their great range of significance and because state law offers little guidance, legislative plan amendments present local officials with some of their most difficult decisions about citizen involvement. The officials must find a proper balance, choosing citizen involvement measures proportional to the scale of the plan amendment being proposed.
For a minor amendment that will have few on-the-ground effects, a minimal effort is needed: a posted notice, a legal ad, and a single public hearing might suffice. For a complex amendment that would affect an entire neighborhood, flyers, workshops, display ads, and several hearings might be appropriate.
The local Committee for Citizen Involvement (CCI) can play an important role here, by suggesting an appropriate citizen involvement effort. Without such independent advice, the citizens may tend to be left out.

"What kind of citizen involvement effort should we make in this case?" The CCI is often the best source for answers to questions like that.

The City of Eugene answers the question "How much citizen involvement?" by applying criteria to distinguish "low interest" and "high interest" land use issues. Issues that are likely to be less controversial, affect a smaller area, and take less time are considered "low interest." Issues more likely to be controversial, affect a large area, and take more time are considered "high interest." The city also has developed guidelines for handling each type of issue. For high-interest issues, the guidelines prescribe a more extensive citizen involvement process.

Open Meetings
Oregon is widely acclaimed as a state with open, accessible government. One reason for that is the state's "Open Meetings Law." See Oregon Revised Statutes Chapter 192 for the complete text of that law. The main points can be summarized as follows:

"It is the intent of ORS 192.610 to 192.690 that decisions of governing bodies be arrived at openly."
The term "governing bodies" includes city councils, boards of commissioners, county courts, city and county planning commissions, and state commissions such as LCDC (but not hearings officers).
If a quorum of a governing body gets together to make some sort of decision or to "deliberate toward a decision," it's usually considered a public meeting: interested persons and the media should be notified, and they may attend.
Onsite inspections, attendance at some types of conferences, and executive sessions are exempt from some of the open meeting requirements.

Going Beyond the Law
Some officials use the laws mentioned above as their only standard for citizen involvement. If the laws that apply to a particular case say to notify all property owners within 100 feet of the subject property, then such notice is assumed to be an adequate citizen involvement effort. Assuming that the law provides a perfect standard, however, may be a big mistake.
Consider, for example, two requests for conditional use permits in an Exclusive Farm Use (EFU) zone: one to build a kennel, the other to establish a regional landfill. In the eyes of the law, both are quasi-judicial land use decisions; both are subject to the same laws regarding notification, hearings, standing, and appeals. The landfill, however, clearly merits a more extensive citizen involvement effort.
The law specifies only what must be done, not necessarily what should be done. Choosing to do the minimum may prove to be costly. In the case of the landfill, for example, an attempt to save a few hundred dollars of postage and staff time by minimizing citizen involvement may result in litigation costing tens of thousands of dollars.
It should be remembered, too, that "the law" includes more than just statutes on notice, hearings, standing, and appeals. It also includes Goal 1, the citizen involvement policies in the local comprehensive plan, and the adopted CIP.
In short, a legalistic view of citizen involvement often is too narrow. Factors other than the law need to be considered, too. For all but the most routine planning actions, the following questions should be asked:

Will the proposed planning action affect a large land area?
Will it affect many people?
Will it involve new issues not addressed by the plan or not familiar to the public?
Will it establish important new policies or precedents?
Will it involve issues that are likely to be controversial?
If the answer to some or all of those questions is Yes, a more extensive citizen involvement effort than that required by the law is likely to be needed.

A legalistic view of citizen involvement is often too narrow. Factors beyond the minimums set by law need to be considered, too.

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Chapter 4 Key Statutes and Rules

Land Use Decisions

Limited Land Use Decisions

Administrative Actions

Periodic Review

Plan Amendments

Open Meetings

Going Beyond the Law

Chapter 4
Key Statutes and Rules