PUBLIC COMMENT - DAN TERRELL & BILL KLOOS ON BEHALF OF HBA (1-4-17)

Agenda Item 4 - UGB Rulemaking December 3-4, 2015 - LCDC Meeting Page 39 of 56 this new statute, effective January 1, 2016, affects both the new simplified process and the existing traditional process is announced in the first rule (0000) at the beginning of division 38. That rule indicates that for the traditional process, cities will find (new) location rules in OAR chapter 660, division 24 interpreting these new requirements (see Attach B). We emphasize that, rather than providing criteria for study areas directly, ORS 197A.320 requires LCDC to adopt rules that implement the study area (and priorities) requirements in the statute. The statute indicates that "the Land Conservation and Development Commission shall provide [these requirements] by rule." In other words (as intended by the Design Team), beginning in 2016, the "location" and "priority" requirements are intended to reside in rule rather than in statute. Cities should not implement the statute directly in the manner of ORS 197.298 in the past. This means that ORS 197A.320 should not be considered a statute that applies directly to any city in amending its UGB; it only applies to LCDC in adopting implementing rules, and those rules (at 0160 and 0170) in turn apply to individual cities. The department proposes that the new rules reflecting these new location requirements be basically identical in divisions 24 and 38. However, the division 24 rules end up looking slightly different, since some additional provisions that don't apply to the simplified process in division 38 do need to apply in the traditional division 24 rules. These differences include rules in division 24 as follows: • Provisions for "in-progress" cities, i.e., cities that have already begun a UGB amendment using the rules in effect at the time they initiated the UGB amendment. • Changes to essentially keep (unchanged) current location provisions in division 24 that apply to the Metro UGB (see proposed amendments to OAR 6660-024-0060). • Citations for the "need" determinations are different in division 24 than in division 38. • The authorization to determine a "particular industrial use" or a "particular public facility use" is only provided for the traditional process in division 24. • Division 38 has separate rules governing how lands added to the UGB are "planned." Those separate rules don't exist in division 24, so certain "planning" requirements are include in the division 24 location rules that are not reflected in division 38 location rules (because they are provided later in the planning rules). It should be noted that the traditional process, ORS 197.298, sets priorities but does not require establishing the study area; it simply requires studying "land adjacent to the UGB." Similarly, the implementing rules currently in OAR 660-024-0060 provide very little guidance for a "study area" (the term is not used). That rule says "in determining alternative land for evaluation under ORS 197.298, `land adjacent to the UGB' is not limited to those lots or parcels that abut the UGB, but also includes land in the vicinity of the UGB that has a reasonable potential to satisfy the identified need deficiency." As such, the more detailed requirements for study areas end up being the only major change to the traditional process that is required by ORS 197A.