Chapter 17.144
EXPEDITED LAND DIVISIONS
Sections:
17.144.010 Expedited land division defined – Applicability.
17.144.020 Application for expedited land division – Notice requirements – Procedure.
17.144.030 Failure of local government to approve or deny application within specified time.
17.144.050 Application fees for expedited land division.
17.144.010 Expedited land division defined – Applicability.
(1) An “expedited land division”:
(a) Is an action of a local government that:
(i) Includes land that is zoned for residential uses and is within an urban growth boundary;
(ii) Is solely for the purposes of residential use, including recreational or open space uses accessory to residential use;
(iii) Does not provide for dwellings or accessory buildings to be located on land that is specifically mapped and designated in the comprehensive plan and land use regulations for full or partial protection of natural features under the statewide planning goals that protect:
(A) Open spaces, scenic and historic areas and natural resources;
(B) The Willamette River Greenway;
(C) Estuarine resources;
(D) Coastal shorelands; and
(E) Beaches and dunes;
(iv) Satisfies minimum street or other right-of-way connectivity standards established by acknowledged land use regulations or, if such standards are not contained in the applicable regulations, as required by statewide planning goals or rules;
(v) Creates enough lots or parcels to allow building residential units at 80 percent or more of the maximum net density permitted by the zoning designation of the site;
(b) Is a land division that:
(i) Will create three or fewer parcels under ORS 92.010; and
(ii) Meets the criteria set forth for an action under subsection (1)(a)(i) through (v) of this section.
(2) An expedited land division as described in this section is not a land use decision or a limited land use decision under ORS 197.015 or a permit under ORS 215.402 or 227.160.
(3) The provisions of this section through SHMC 17.144.050 apply to all elements of a local government comprehensive plan and land use regulations applicable to a land division, including any planned development standards and any procedures designed to regulate:
(a) The physical characteristics of permitted uses;
(b) The dimensions of the lots or parcels to be created; or
(c) Transportation, sewer, water, drainage and other facilities or services necessary for the proposed development, including but not limited to right-of-way standards, facility dimensions and on-site and off-site improvements.
(4) An application to a local government for an expedited land division shall describe the manner in which the proposed division complies with each of the provisions of subsection (1) of this section. (Ord. 2875 § 1.176.010, 2003)
17.144.020 Application for expedited land division – Notice requirements – Procedure.
(1) When requested by an applicant for an expedited land division, in lieu of the procedure set forth in its comprehensive plan and land use regulations, the local government shall use the following procedures for an expedited land division under SHMC 17.144.010:
(a) If the application for expedited land division is incomplete, the local government shall notify the applicant of exactly what information is missing within 21 days of receipt of the application and allow the applicant to submit the missing information. For purposes of computation of time under this section, the application shall be deemed complete on the date the applicant submits the requested information or refuses in writing to submit it.
(b) 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, 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.
(2) The local government shall provide written notice of the receipt of the completed application for an expedited land division to any state agency, local government or special district responsible for providing public facilities or services to the development and to owners of property as per type of land division (e.g., subdivision, 300 feet; partitions, 200 feet). The notification list shall be compiled from the most recent property tax assessment roll. For purposes of appeal to the referee under SHMC 17.144.040, this requirement shall be deemed met when the local government can provide an affidavit or other certification that such notice was given. Notice shall also be provided to any neighborhood or community planning organization recognized by the governing body and whose boundaries include the site.
(3) The notice required under subsection (2) of this section shall:
(a) State:
(i) The deadline for submitting written comments;
(ii) That issues that may provide the basis for an appeal to the referee must be raised in writing prior to the expiration of the comment period; and
(iii) That issues must be raised with sufficient specificity to enable the local government to respond to the issue;
(b) Set forth, by commonly used citation, the applicable criteria for the decision;
(c) Set forth the street address or other easily understood geographical reference to the subject property;
(d) State the place, date, and time that comments are due;
(e) State a time and place where copies of all evidence submitted by the applicant will be available for review;
(f) Include the name and telephone number of a local government contact person; and
(g) Briefly summarize the local decision-making process for the expedited land division decision being made.
(4) After notice under subsections (2) and (3) of this section, the local government shall:
(a) Provide a 14-day period for submission of written comments prior to the decision;
(b) Make a decision to approve or deny the application within 63 days of receiving a completed application, based on whether it satisfies the substantive requirements of the local government’s land use regulations. An approval may include conditions to ensure that the application meets the applicable land use regulations. For applications subject to this section, the local government:
(i) Shall not hold a hearing on the application; and
(ii) Shall issue a written determination of compliance or noncompliance with applicable land use regulations that includes a summary statement explaining the determination. The summary statement may be in any form reasonably intended to communicate the local government’s basis for the determination;
(c) Provide notice of the decision to the applicant and to those who received notice under subsection (2) of this section within 63 days of the date of a competed application. The notice of decision shall include:
(i) The summary statement described in subsection (4)(b)(ii) of this section; and
(ii) An explanation of appeal rights under SHMC 17.144.040. (Ord. 2875 § 1.176.020, 2003)
17.144.030 Failure of local government to approve or deny application within specified time.
(1) Except as provided in subsection (2) of this section, if the local government does not make a decision on an expedited land division within 63 days after the application is deemed complete, the applicant may apply in the circuit court for the county in which the application was filed for a writ of mandamus to compel the local government to issue the approval. The writ shall be issued unless the local government shows that the approval would violate a substantive provision of the applicable land use regulations or the requirements of SHMC 17.144.010. A decision of the circuit court under this section may be appealed only to the Court of Appeals.
(2) After seven days’ notice to the applicant, the governing body of the local government may, at a regularly scheduled public meeting, take action to extend the 63-day time period to a date certain for one or more applications for an expedited land division prior to the expiration of the 63-day period, based on a determination that an unexpected or extraordinary increase in applications makes action within 63 days impracticable. In no case shall an extension be to a date more than 120 days after the application was deemed complete. Upon approval of an extension, the provisions of SHMC 17.144.010 through 17.144.050, including the mandamus remedy provided by subsection (1) of this section, shall remain applicable to the expedited land division, except that the extended period shall be substituted for the 63-day period wherever applicable.
(3) The decision to approve or not approve an extension under subsection (2) of this section is not a land use decision or limited land use decision. (Ord. 2875 § 1.176.030, 2003)
17.144.040 Appeal of decision on application for expedited land division – Notice requirements – Standards for review – Procedure – Costs.
(1) An appeal of a decision made under SHMC 17.144.010 and 17.144.020 shall be made as follows:
(a) An appeal must be filed with the local government within 14 days of mailing of the notice of the decision under SHMC 17.144.020(4), and shall be accompanied by a $300.00 deposit for costs;
(b) A decision may be appealed by:
(i) The applicant; or
(ii) Any person or organization who files written comments in the time period established under SHMC 17.144.020;
(c) An appeal shall be based solely on allegations:
(i) Of violation of the substantive provisions of the applicable land use regulations;
(ii) Of unconstitutionality of the decision;
(iii) That the application is not eligible for review under SHMC 17.144.010 through 17.144.050 and should be reviewed as a land use decision or limited land use decision; or
(iv) That the parties’ substantive rights have been substantially prejudiced by an error in procedure by the local government.
(2) The local government shall appoint a referee to decide the appeal of a decision made under SHMC 17.144.010 and 17.144.020. The referee shall not be an employee or official of the local government. However, a local government that has designated a hearings officer under ORS 215.406 or 227.165 may designate the hearings officer as the referee for appeals of a decision made under SHMC 17.144.010 and 17.144.020.
(3) Within seven days of being appointed to decide the appeal, the referee shall notify the applicant, the local government, the appellant if other than the applicant, any person or organization entitled to notice under SHMC 17.144.020(2) that provided written comments to the local government and all providers of public facilities and services entitled to notice under SHMC 17.144.020 and advise them of the manner in which they may participate in the appeal. A person or organization that provided written comments to the local government but did not file an appeal under subsection (1) of this section may participate only with respect to the issues raised in the written comments submitted by that person or organization. The referee may use any procedure for decision-making consistent with the interests of the parties to ensure a fair opportunity to present information and argument. The referee shall provide the local government an opportunity to explain its decision, but is not limited to reviewing the local government decision and may consider information not presented to the local government.
(4) The referee shall apply the substantive requirements of the local government’s land use regulations and SHMC 17.144.010. If the referee determines that the application does not qualify as an expedited land division as described in SHMC 17.144.010, the referee shall remand the application for consideration as a land use decision or limited land use decision. In all other cases, the referee shall seek to identify means by which the application can satisfy the applicable requirements.
(5) The referee may not reduce the density of the land division application. The referee shall make a written decision approving or denying the application or approving it with conditions designed to ensure that the application satisfies the land use regulations, within 42 days of the filing of an appeal. The referee may not remand the application to the local government for any reason other than as set forth in this subsection.
(6) Unless the governing body of the local government finds exigent circumstances, a referee who fails to issue a written decision within 42 days of the filing of an appeal shall receive no compensation for service as referee in the appeal.
(7) Notwithstanding any other provision of law, the referee shall order the local government to refund the deposit for costs to an appellant who materially improves his or her position from the decision of the local government. The referee shall assess the cost of the appeal in excess of the deposit for costs, up to a maximum of $500.00, including the deposit paid under subsection (1) of this section, against an appellant who does not materially improve his or her position from the decision of the local government. The local government shall pay the portion of the costs of the appeal not assessed against the appellant. The costs of the appeal include the compensation paid the referee and costs incurred by the local government, but not the costs of other parties.
(8) The Land Use Board of Appeals does not have jurisdiction to consider any decision, aspects of decisions or actions made under SHMC 17.144.010 through 17.144.050.
(9) Any party to a proceeding before a referee under this section may seek judicial review of the referee’s decision in the manner provided for review of final orders of the Land Use Board of Appeals under ORS 197.850 and 197.855. The Court of Appeals shall review decisions of the referee in the same manner as provided for review of final orders of the Land Use Board of Appeals in those statutes. However, notwithstanding ORS 197.850(9) or any other provision of law, the court shall reverse or remand the decision only if it finds:
(a) That the decision does not concern an expedited land division as described in SHMC 17.144.010 and the appellant raised this issue in proceedings before the referee;
(b) That there is a basis to vacate the decision as described in ORS 36.705(1)(a) to (d) (Vacating award), or a basis for modification or correction of an award as described in ORS 36.710 (Modification or correction of award); or
(c) That the decision is unconstitutional. (Ord. 3186 § 23, 2015; Ord. 2875 § 1.176.040, 2003)
17.144.050 Application fees for expedited land division.
Application fees for expedited land division shall be the same as for subdivisions if over three lots, and the same as for partitions if less than four lots. (Ord. 2875 § 1.176.050, 2003)