Land Use Law Alert: Oregon Be Nimble, Oregon Be Quick: SB 766 and Industrial Land Development

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SB 766's proposed fast tracking of certain industrial developments includes provisions limiting the role of local government in approving the projects and bypassing the Land Use Board of Appeals (LUBA). As the state and its subregions focus on economic development strategies, SB 766 is viewed by some as an important step in increasing the state's nimbleness and ability to take advantage of economic opportunities. To others, however, it is inappropriate state intervention in matters of local concern. The challenge in crafting SB 766 will be ensuring that, if it is adopted, Oregon is both nimble and protected from "burns." An amended version of the bill is currently being prepared in an attempt to address some of the concerns raised to date.

As originally drafted, SB 766 version 1.0 provides two tracks for expedited permit review. One track is for industrial development projects of state significance. The second track is for regionally significant industrial areas.

Classification of a project as an industrial development project of state significance requires conformance with six separate criteria. The criteria include a requirement that community support be evidenced by a resolution passed by the local government and that the proposed development will not require a comprehensive plan or land use regulation change. Once the project meets the six criteria, the developer has the option of seeking fast-track review by a newly formed Economic Recovery Review Council. The members of the Council will be the directors of the Oregon Business Development Department and the Departments of Land Conservation and Development, Transportation, Environmental Quality and State Lands. Technical and advisory committees may be established by the Council to assist it in its work. The Council will provide opportunity for public input and, rather than the local government and a myriad of state agencies, will determine whether the project meets state and local criteria. Public bodies will be bound by the Council's approval of a permit. Adversely affected persons may appeal the Council's decision to the Oregon Court of Appeals.

SB 766 version 1.0 provides that it will sunset expedited reviews for proposed industrial developments of state significance on January 2 of the first even-numbered year after notification that the annual average unemployment rate is less than 8 percent for the most recent calendar year in Oregon. Until that happens and the bill sunsets, SB 766 would provide a fast track for seeking approval of industrial developments of state significance consistent with the existing zoning.

The second prong of the bill concerns regionally significant industrial areas. Regionally significant industrial areas are characterized in part by superior access to transportation and freight infrastructure, and are located in close proximity to labor markets and have site characteristics that provide a significant competitive advantage that is hard to replicate in the region. The bill's provisions for these sites are not subject to a sunset provision.

The bill calls for the identification of regionally significant industrial areas by the Oregon Business Development Department, the Department of Land Conservation and Development and the Department of Transportation in cooperation with local governments and private industry. These sites are then to be protected from conflicting development through the use of buffers to avoid or minimize conflicts with surrounding use, mitigation for the loss of employment potential within a regionally significant industrial area, and refraining from planning or zoning the area in a manner that prevents industrial uses in the area or allows conflicting uses in the area. If industrial development does not occur within a "to be determined" time period, the Land Conservation and Development Commission may allow alteration or elimination of the protections.

Like the industrial development projects of state significance, these identified sites are not eligible for an expedited industrial use permit for a new use or expansion of an existing use if the use would require a change to the acknowledged comprehensive plan or land use regulations. Under the bill, the local government accepts written comments on the proposal but is not allowed to hold its own hearing on the matter. The local government prepares a written determination evaluating consistency with the applicable comprehensive plan and land use regulations. The local government's decision may be appealed to a referee by the applicant or a person or organization entitled to notice that submits timely written comments. The referee may consider information not presented to the local government and may remand the decision to the local government only if he or she determines that the application is not eligible for expedited review. In all other cases the referee is instructed to look for means by which the application can satisfy the applicable requirements. LUBA does not have jurisdiction. The referee's decision may, however, be appealed to the court of appeals. The court will reverse or remand the decision only if the decision does not concern an expedited industrial use permit and that issue was raised below; there is a basis for vacation, correction or modification of the order as described in statutory provisions governing arbitrations; or the decision is unconstitutional.

SB 766 version 1.0 sets out a shorter timeframe for review than is generally applicable to similar land use applications, more narrowly defines the parties with standing to sue and deletes the LUBA level of appellate review. The bill also requires the use of buffers and other strategies, including mitigation, to preserve the regionally significant sites for industrial development. By providing expedited review for certain developments on industrially zoned land, SB 766 strives to lessen the time and cost associated with determining whether a project may go forward under the applicable land use and related regulations. A consolidated review body is not unheard of in Oregon. The state's Energy Facility Siting Council provides a review body and permitting process for certain energy facilities determined to be important on a state level.

As public hearings are held on SB 766 the challenge will be balancing sometimes competing interests and ensuring that SB 766 achieves its admirable goal of contributing to Oregon's economic recovery. SB 766 version 2.0 is in progress and may be available as early as the end of this week. Whether the new version is a tweak or an overhaul, it should make for interesting reading and debate.

For more information or questions, please contact Michelle Rudd or your Stoel Rives attorney.

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Michelle Rudd
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