The Approval Process and Related
David F. Doughman
BEERY ELSNER & HAMMOND LLP
December 8, 2008 NBI Seminar
“Practical Guide to Zoning and Land Use Law”
ORS Chapters 197, 215 and 227.
Land Conservation and Development Commission
(“LCDC”), Department of Land Conservation and
Development (“DLCD”) and the Statewide
LCDC Administrative Rules.
ORS Chapter 197
Contains the “guts” of Oregon’s comprehensive
land use planning system.
– Establishes LCDC and DLCD.
– Establishes Land Use Board of Appeals (“LUBA”).
– Periodic Review.
– Post-Acknowledgement Plan Amendments (“PAPA”).
– Establishes uniform notice and hearing procedures for
quasi-judicial land use applications.
ORS Chapter 215
Authorizes counties to perform land use planning
Contains laws related to farm and forest lands and
counties obligations with respect to such lands.
Requires counties to process certain applications
within 150 days.
ORS Chapter 221
Authorizes cities to perform land use planning and
Requires cities to process certain applications
within 120 days.
LCDC and the Statewide Goals
In 1973, Senate Bill 100 establishes Oregon’s
comprehensive land use planning system,
including establishment of LCDC.
LCDC directed to enact “goals” that would govern
and guide the establishment of local
Today there are 19 goals:
– Goal 1 Citizen Involvement
– Goal 2 Land Use Planning
– Goal 3 Agricultural Lands
– Goal 4 Forest Lands
– Goal 5 Open Spaces, Scenic and Historic Areas and Natural Resources
– Goal 6 Air, Water and Land Resources Quality
LCDC and the Statewide Goals
– Goal 7 Areas Subject to Natural Disasters and Hazards
– Goal 8 Recreation Needs
– Goal 9 Economy of the State
– Goal 10 Housing
– Goal 11 Public Facilities and Services
– Goal 12 Transportation
– Goal 13 Energy
– Goal 14 Urbanization
– Goal 15 Willamette River Greenway
– Goal 16 Estuarine Resources
– Goal 17 Coastal Shorelands
– Goal 18 Beaches and Dunes
– Goal 19 Ocean Resources
LCDC Administrative Rules
– Chapter 660 of the Oregon Administrative Rules (“OAR”).
– Elaborate on both the Goals themselves and certain
– Significant OARs include:
OAR 660-004: Goal 2 exception process
OAR 660-007 and 008: Goal 10 housing
OAR 660-012: Transportation Planning Rule
OAR 660-024: Urban Growth Boundaries
Local and Regional Law
Act as a jurisdiction’s “constitution” with respect
to planning and zoning.
– All legislation passed by a jurisdiction must be
consistent with its comprehensive plan.
– Establishes policy prerogatives that are refined and
made more specific via code criteria.
Every comprehensive plan must be consistent
with Oregon’s statewide planning goals.
Contain a given jurisdiction’s specific land use
criteria and standards.
Standards govern a wide variety of development-
Prescribe uses allowed in the various zones that
exist in the jurisdiction.
A development code must be consistent with the
jurisdiction’s comprehensive plan.
Land Use Applications
Can take many varieties:
– Subdivision application.
– Conditional use application.
– Design Review application.
Majority lead to a “quasi-judicial” decision by the
Most applications must be processed according to
Most “freeze” the applicable criteria to those that
existed on the date when the application was
Hearings may be either “quasi-judicial” or
Quasi-judicial hearings must be noticed and must
proceed in accordance with ORS 197.763 and any
Members of a hearing body must be free of bias
and conflicts of interest and must declare on the
record any “ex-parte” contacts.
Hearings typically conclude with a tentative oral
decision and are followed by the adoption of a
written order with findings.
Before a LUBA appeal can be made an applicant
or opponent must exhaust all local administrative
Must consult code to determine whether right to
appeal to higher local body exists.
May be a decision made by staff with the right of
appeal to a planning commission or hearings
Depending on the jurisdiction, a second appeal
may be necessary (e.g. to the governing body).
Types of Applications
Design/Site Plan Review
Subdivisions and Partitions.
Governed by ORS Chapter 92 and local criteria
adopted to implement same.
Will be evaluated to confirm that resulting lots or
parcels will contain minimum square footage (i.e.
minimum lot sizes) and that the lots or parcels can
be adequately served by necessary infrastructure
(i.e. streets, sewer, water, etc.).
Design/Site Plan Review
Typically required for all types of development
except single-family detached homes.
Goal is to ensure that development meets the
jurisdiction’s design standards.
– Architectural design.
– Parking plan.
– Environmental mitigation.
With the exception of Portland, virtually all local
criteria governing housing must be “clear and
Uses in a zone that are not permitted outright but
may be permitted if an applicant can show that
the use will be compatible with its surroundings.
Conditional use criteria are generally very
subjective and grant a significant amount of
discretion to the local decision maker.
In Oregon, moratoria are strictly regulated by ORS
197.505 through 197.540.
Allows government to prohibit certain types of
development if it can demonstrate that doing so
will prevent a shortage of public facilities.
May only be enacted after notice and a hearing
and the adoption of sufficient findings.
Must be limited in duration.