Agenda Item 4 - UGB Rulemaking <br />December 3-4, 2015 - LCDC Meeting <br />Page 15 of 56 <br />periodic review. ORS 197A provides that periodic review is no longer required for cities that use <br />the new method. While the department recommends that key definitions that are used in other <br />rules should not be different in the new division 24 unless there is a compelling reason, in this <br />case there is such a reason. In the proposed new rules, this term becomes important in order to <br />mark the beginning of a particular local government's 14-year UGB planning period, and <br />therefore the term is mentioned in several rules throughout the proposed division 38. <br />Section (5): "Nonresource land" is an important new term in the "location and priorities" portion <br />of the division (see rules at OAR 660-038-0160 and 0170). The term is not defined in law, but <br />does have a previous definition in LCDC's division 4 exceptions rule. Therefore, the department <br />proposes that for purposes of division 38, this term shall have that meaning specified in <br />OAR 660-004-0005(3). <br />Section (6): This definition provides that "Range" means a range of numbers. The new laws at <br />ORS 197A indicate that the commission rules must provide cities with a range of choices for <br />various policy choices in the rules. A city may choose to use the number at either end of a stated <br />range or any number between. Ranges allow a city to make choices regarding its future growth. <br />ORS 197A.325 also includes new "standards of review" for LUBA to use in considering an <br />appeal of a UGB. That statute provides that "...in circumstances in which the Land Conservation <br />and Development Commission has specified by rule a number or a range of numbers that the city <br />may use the city is not required to adopt findings to support the use of the number or a <br />number within the range of numbers; and [LUBA's] review of the number may determine <br />only that the city has used a number that is allowed by the rule." <br />Section (7): "Serviceable" is defined in the new statute at ORS 197A.300(2). The department has <br />repeated the definition word-for-word from the statute - legal counsel has advised that the <br />commission does not have the authority to change this definition even though there may be some <br />interpretation issues with the way it is worded. The proposed definition of "serviceable" is "that: <br />"adequate sewer, water and transportation capacity for planned urban development is available <br />or can be either provided or made subject to committed financing; or committed financing <br />can be in place to provide adequate sewer, water and transportation capacity for planned urban <br />development." <br />This definition has been the source of some confusion as indicated in comments. ORS 197A <br />requires cities to demonstrate that, within a UGB (when a city uses the simplified method) at <br />least seven years of land is serviceable, which can be achieved through a showing that <br />committed financing "can be in place." The required showing for the remainder of the 14-year <br />supply is that the land can be serviceable; a distinction clearly intended to place a lower <br />threshold for demonstrating service capability for the second seven years of the 14-year planning <br />period. However, the similarity between the "can be in place" language in the definition of <br />serviceable, and the required "can be serviceable" showing for the remainder of the 14-year land <br />supply seems to blur that distinction. To provide appropriate meaning to both of these statutory <br />elements of the serviceability test, the department has proposed a serviceability rule at OAR 660- <br />038-0200 that provides separate parameters for each (see discussion below in this report <br />regarding the proposed serviceability rule at OAR 660-038-0200). <br />