Current through Register Vol. 63, No. 9, September 1, 2024
(1) Review and decision-making authority. The
department reviews IBTERs for consistency with the review criteria and
compliance with the procedural requirements in OAR 660-046-0360. The department
will deny an IBTER that does not meet either the review criteria or comply with
the procedural requirements. The department has final decision-making authority
for IBTERs. The Land Conservation and Development Commission has
decision-making authority for appeals of the department's decision.
(2) Posting for Public Comment. The
department will post a timely and complete IBTER on the department's website
along with the review criteria provided in section (5) and a statement that any
person may file a comment regarding the IBTER no more than 21 days after the
posting of the IBTER.
(3) Valid
Comments. Any person may file a comment with the Department. In order to be
considered valid, a comment must:
(a) Be in
writing and filed with the Department no more than 21 days after the Department
posting of the IBTER on the department's website;
(b) Address one or more of the five review
criteria in section (5); and
(c)
Provide the person's mailing address.
(4) Department Decision. The Department shall
review the IBTER along with any valid comments and shall approve, approve with
conditions of approval under section (7), or deny an IBTER. The department will
mail the decision to the local government submitting the IBTER and any person
that submitted valid comments. The department will issue a decision on an IBTER
as follows:
(a) Within 90 days of receipt of a
complete application for local governments subject to ORS
197.758(3);
(b) Within 120 days of receipt of a complete
application for local governments subject to ORS
197.758(2).
(5) Review criteria. The
department shall consider the following criteria in the review of IBTERs:
(a) Whether the identified deficiency is a
significant infrastructure deficiency, consistent with the parameters and
infrastructure-specific thresholds established in OAR 660-046-0330 and OAR
660-046-0340.
(b) Whether the IBTER
has adequately described and documented the identified significant
infrastructure deficiency and has established a boundary for the requested
extension area(s), as required by OAR 660-046-0350. The boundary for the
requested time extension is a specific area where there is an identified
significant infrastructure deficiency.
(c) Whether the proposed remediation plan is
likely to be effective and presents the most expeditiously feasible course of
action to enable implementation of middle housing provisions.
(d) Whether, in relation to the opportunity
area map provided per OAR 660-046-0350(3)(g) and any other available data
sources regarding income, race, or ethnicity within the jurisdiction, the local
government has demonstrated that correction of the significant infrastructure
deficiency will either help to overcome patterns of segregation by income,
race, or ethnicity, and foster inclusive communities free from barriers that
restrict access to opportunity based on protected characteristics, or, at
minimum, will not serve to perpetuate these inequities. To assist with this
evaluation, local governments may demonstrate that the IBTER is consistent with
a plan of actions over time by the local government and community partners that
will reduce barriers to opportunity for all community residents, in all areas
within the local government's jurisdiction.
(e) Whether the time period proposed for the
IBTER is the minimum necessary to remedy the significant infrastructure
deficiency.
(6) Response
to Comments. The department's decision under section (4) shall include a
response to each valid comment.
(7)
Conditions of Approval. The department may impose conditions in time extensions
that it deems necessary to satisfy the review criteria or to ensure the time
extension is consistent with the intent of OAR chapter 660, division 46, ORS
197.758,
and Oregon Laws 2019, chapter 639, section 4.
(8) Appeals.
(a) Within 21 days of the mailing of the
department's decision the local government submitting the IBTER or a person
that submitted a valid comment may file an appeal, in writing, of the decision
to the Land Conservation and Development Commission. The appellant shall
simultaneously provide a copy of the appeal to each recipient of the
department's decision as indicated by the department's certificate of
service.
(b) Appeals must identify
the specific findings and analysis that are alleged to be made in error in
relation to the applicable criterion or criteria. A challenge to a condition of
approval under section (7) must specify how the condition is inconsistent with
the intent of OAR chapter 660, division 46, ORS
197.758,
and Oregon Laws 2019, chapter 639, section 4. An appellant may submit written
materials in support of the appeal.
(c) The local jurisdiction or a party that
submitted a valid comment may file a written response to the appeal with the
Department within 21 days of the filing of the appeal.
(d) The Commission shall hold an appeal
hearing within 120 days of the filing of the appeal. The appeal hearing shall
be a contested case hearing. In making its decision the Commission may
consider:
(A) All materials in the record
that led to the Department decision under section (4);
(B) Any written materials submitted in
support of the appeal under subsection (8)(b);
(C) Any timely written responses filed in
response to the appeal under subsection(8)(c);
(D) The department staff report and
recommendation to the Commission; and
(E) Oral arguments and evidence presented at
the appeal hearing.
(e)
The Commission shall issue a final order rejecting or upholding the appeal
within 30 days of the appeal hearing.
Statutory/Other Authority: ORS
197.040 & OR Laws 2019, chapter 639, section 4(6)
Statutes/Other Implemented: ORS
197.758 & OR Laws 2019, chapter 639, sections 3 and 4
