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LEGISLATIVE HISTORY OF STATUTORY PROVISIONS REGULATING FEES FOR LOCAL LAND USE APPLICATIONS, LAND USE APPEALS, AND TRANSCRIPTS 

Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews. The legislature has adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters. ORS 215.416(11)(b), 215.422(1)(c), 227.175(10)(b), 227.180(1)(c). See Housing Council, 48 Or App at 538 (noting a possible exception to its holding, where the challenged decision involves financing of the citizen involvement program required by Statewide Planning Goal 1 (Citizen Involvement).

 

Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss); Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003)

By

Land Use Committee
Hugo Neighborhood Association & Historical Society
&
Goal One Coalition
&
Rogue Advocates
 December 22, 2006
 

Outline

EXECUTIVE SUMMARY

I. INTRODUCTION

A. Citizens’ View
B. Josephine County’s View
C. LUBA’s Order

II. CURRENT STATUTORY LANGUAGE: ORS 215.422(1)(c); ORS 227.180(1)(c); ORS 215.416(1); ORS 227.175(1); ORS 215.416(11)(b) and ORS 227.175(10(b)

III. ORIGINS OF FEE AND TRANSCRIPT PROVISIONS

A. First Appearance of Appeal Fee and Transcript Fee Limitations
B. Reason for Proposed Amendment

IV. SENATE COMMITTEE ON ENERGY AND ENVIRONMENT HEARINGS ON HB 2295

A. Senate Committee on Energy and Environment (Committee) Hearings on HB 2295
B. The Courts On Legislative History

V. 1991 AMENDMENTS RESULTING IN EXISTING STATUTORY LANGUAGE

VI. IMPLICATIONS

A. Abuses, Then and Now

B. Land Use Application Fees And Land Use Appeal Fees Are Land Use Decisions

1. Senate Committee on Energy and Environment

2. Court Orders and Opinions

C. Analysis to Justify Fees Must Be Substantial

1. Senate Committee on Energy and Environment

2. Court Opinions

3. Josephine County

D. What Is "Reasonable" Is Not Separable from the "Actual or Average Cost" Standard

1. Senate Committee on Energy and Environment

2. Court Opinions

E. Fee Amounts Can Be Less Than Actual Or Average Cost

1. Senate Committee on Energy and Environment

2. Court Opinions

3. Josephine County

VII. SUMMARY

Appendices

Appendix A - Citizen Appeal Of Josephine County’s Increase of Fees: Josephine County Order No. 2006-125

Appendix B -. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, September 1, 2006, Respondent’s Motion To Dismiss And Motion For Extension Of Time for Filing Record)

Appendix C - 1983 Senate Committee on Energy and Environment Hearings on Amending House Bill 2295 (Exhibit 1; Exhibit 2)

Appendix D - Authors

Exhibits

Exhibit 1. Meeting Minutes from Tape 189 A @ 281 for June 17, 1983 Hearing on House Bill (HB) 2295 Before the Senate Committee On Energy And Environment. 14 pages. Salem, OR.

Exhibit 2. Meeting Minutes from Tape 192 A @ 45 for June 29, 1983 Hearing on HB 2295 Before the Senate Committee On Energy And Environment. 2 pages. Salem, OR.

Exhibit 3. Oregon Shores Conservation Coalition Letter to Members of Senate Committee On Energy And Environment. May 26, 1983. Comments on HB 2295. 1 page. Rockaway, OR.

Exhibit 4. Oregon Shores Conservation Coalition Letter to Members of Senate Committee On Energy And Environment. June 15, 1983. Proposed Amendments to HB 2295. 4 pages. Rockaway, OR.

Exhibit 5. League of Women Voters of Oregon Letter to Members of Senate Committee On Energy And Environment. June 22, 1983. Proposed Amendments to HB 2295. 1 page. Salem, OR.

Exhibit 6. Oregon State Citizen Involvement Advisory Committee (CIAC) Memorandum to Oregon Land Conservation and Development Commission. January 18, 1983. Subject: Item 4.0: committee Report. CIAC investigated the appeal circumstances and found the fee and transcript charges to have been outrageous and unjustified, and one is a series of efforts to restrict citizen input and participation. 1 page. Salem, OR.

Exhibit 7. Senate Committee On Energy And Environment. July 12, 1983. Senate Amendments to House Bill 2295. 2 pages. Salem, OR.

Exhibit 8. Oregon Laws. 1983. ORS 92.046(1)(c).

LEGISLATIVE HISTORY OF STATUTORY PROVISIONS

REGULATING FEES FOR LOCAL LAND USE APPLICATIONS,

LAND USE APPEALS, AND TRANSCRIPTS1

EXECUTIVE SUMMARY

Land use application fees and land use appeal fees are land use decisions. Local government decisions to establish or raise land use application fees and land use appeal fees are appealable to LUBA as it has jurisdiction for land use decisions and limited land use decisions. Establishing or raising land use application fees and land use appeal fees are land use decisions, and the process to establish or raise fees is subject to either the quasi-judicial land use proceedings or the legislative process. Land use application fees and land use appeal fees are not "fiscal exceptions" to LUBA’s jurisdiction. Land use application fees and land use appeal fees must be reasonable and must be no more than their average or actual costs. However, the amount of land use application fees and local land use appeal fees are policy decisions and can be less than the maximum actual or average cost.

The level of analysis required to demonstrate compliance in determining actual or average costs for individual land use application fees and land use appeal fees requires providing substantial evidence that factually supports the individual costs. If the record included a focused representation by local government regarding the average or actual costs, the local government’s determination of actual or average cost would be reasonable, unless some opposing evidence had been submitted to rebut that representation.

Petitioners’ standing can not be resolved until the record is filed. Without the record it is impossible to resolve the parties’ dispute over whether all of the petitioners satisfied the standing requirements.

1. Disclaimer. This paper is as much about providing information and provoking questions as it is about opinions concerning the adequacy land use decisions. It does not provide recommendations to citizens and it is not legal advice. It does not take the place of a lawyer. If citizens use information contained in this paper, it is their personal responsibility to make sure that the facts and general information contained in it are applicable to their situation.

I. INTRODUCTION

The Hugo Neighborhood Association & Historical Society, the Goal One Coalition, and the Rogue Advocates are nonprofit organizations whose missions include providing assistance and support to citizens of Josephine County in matters affecting their communities. They provide this analysis on legislative history and court opinions at the request of, and on behalf of, their membership residing in Josephine County.

Land use planning should be conducted by and for the people of Oregon. Citizens should have ample access to be involved in land use decision-making and planning processes, including land use application fees, and land use appeal fees. Oregon Statewide Goal 1 - Citizen Involvement (CI), the backbone of Oregon’s statewide planning goals, is part of the "Oregon System" in which citizens should have a say in the governance of their state and their local communities. Citizen involvement in land use planning is more important than ever, which is exemplified by its being given top priority by our state, and labeled as such - "Goal 1".

LUBA explained in Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss) (Web Site: http://www.oregon.gov/LUBA/2006Orders.shtml) and in Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003):

". . . Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews. The legislature has adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters. ORS 215.416(11)(b), 215.422(1)(c), 227.175(10)(b), 227.180(1)(c). See Housing Council, 48 Or App at 538 (noting a possible exception to its holding, where the challenged decision involves financing of the citizen involvement program required by Statewide Planning Goal 1 (Citizen Involvement))."

A. Citizens’ View

The legislative history of local land use appeal fees is important because several citizens in Josephine County, Oregon, and around the state, have appealed to the Oregon Land Use Board of Appeals (LUBA) fee increases (Appendix A). In Josephine County the appeal is of the county’s third increase in applicant-driven land use fees and local land use appeal fees in two years without any initial or subsequent analysis of actual or average costs supporting these increases (Sommer v. Josephine County, __ Or LUBA __ LUBA No. 2006-150, August 14, 2006, Notice of Intent to Appeal). These citizens believe user fees are required to be no more than the actual or average cost of providing that service and can be less (ORS 215.422(1)(c); ORS 227.180(1)(c)). These citizens also

believe a change to fees should not be undertaken until some effort has been made to develop a factual assessment study designed to justify the issue of actual or average costs.

These citizens believe understanding the legislative history of ORS 215.422(1)(c) and ORS 227.180(1)(c) will help establish the difference between fees to defray local government land use appeal costs (ORS 215.422(1)(c), versus fees for processing land use application permits (ORS 215.416(1)). These citizens believe the Oregon Legislature recognized the difference between user fees for permit applicants with a personal and/or economic interest in the outcome and an engaged public with a sense of civic commitment, shared beliefs that value public objectives, and a sense of stewardship for each other and the places citizens call home. The engaged public has a commitment to a greater common good - a visionary belief that values public ends and civic responsibility.

These citizens believe the following about land use appeal fees and land use application fees.

1. Land Use Appeal Fees And Land Use Application Fees Are Land Use Decisions. The citizens believe that land use appeal fees and land use application fees are land use decisions.

2. LUBA Has Jurisdiction over Land Use Appeal Fees and Land Use Application Fees . The citizens believe that LUBA has jurisdiction over land use appeal fees and land use application fees.

3. Land Use Proceedings Required to Raise Fees. The citizens believe that raising land use appeal fees and land use application fees are land use decisions and the process to raise fees is subject to either the quasi-judicial land use proceedings or the legislative process.

4. Land Use Appeal Fees and Land Use Application Fees Are Not Exempt Fiscal Actions. The citizens believe that land use appeal fees and land use application fees are not "fiscal exceptions" to LUBA’s jurisdiction.

5. ORS 215.422(1)(c) Applies To County. The citizens believe that ORS 215.422(1)(c) is a county requirement that land use appeal fees shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal.

6. Analysis Must Satisfy ORS 215.422(1)(c) And Must Be Factual. The citizens believe that the level of the government’s analysis must be factual to justify the requirement that land use appeal fees shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal.

7. Analysis Must Satisfy ORS 215.416(1) And Must Be Factual. The citizens believe that the level of the government’s analysis must be factual to justify the requirement that land use application fees shall be reasonable and shall be no more than the average costs or the actual cost.

8. Citizens Have Standing To Appeal To LUBA. The citizens believe that they have standing to appeal to LUBA as they are aggrieved and they participated in one or all three county budget hearing and/or legislative processes to raise the land use application fees and land use appeal fees.

9. Local Land Use Appeal Fees Are Permissive The citizens believe that raising land use application fees and land use appeal fees is permissive and it is not a requirement of the statutes; these fees are policy and can be less than the maximum average or actual costs.

B. Josephine County’s View

Josephine County’s view is covered in Appendix B -. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, September 1, 2006, Respondent’s Motion To Dismiss And Motion For Extension Of Time for Filing Record). A summary of the motion to dismiss the citizens’ appeal to LUBA follows.

1. Land Use Appeal Fees And Land Use Application Fees Are Not Land Use Decisions. The county did not view raising land use application fees and land use appeal fees as land use decisions, even if the actions had a direct effect on land use and zoning (Appendix B).

2. LUBA Has No Jurisdiction Over Appeal Fees. The county did not view its decision to raise land use application fees and land use appeal fees to be appealable to LUBA as LUBA’s jurisdiction was limited to land use decisions and limited land use decisions (Appendix B).

3. Quasi-judicial Land Use Proceedings Not Required to Raise Appeal Fees. As the county did not view raising land use application fees and land use appeal fees as land use decisions, it did not have to use the quasi-judicial land use proceedings process. The BCC used the county budget process and legislative process to raise land use application fees and land use appeal fees for the services provided by the Planning Department three times in two years since 2004 (Appendix B).

July 26, 2006 (Josephine County Order No. 2006-125)
June 1, 2005 (Josephine County Resolution No. 2005-041)
June 30, 2004 (Josephine County Resolution No. 2004-045)

4. Land Use Application Fees And Land Use Appeal Fees are Exempt Fiscal Actions. The county viewed land use application fees and land use appeal fees to be local government taxation and budget processes and legislative ordinances or regulations which the courts had exempted from LUBA jurisdiction. These were the so-called "fiscal exceptions" to LUBA’s jurisdiction (Appendix B).

5. ORS 215.422(1)(c) Does Not Apply To County. It is assumed by petitioners that the county did not view ORS 215.422(1)(c)’s requirement, that the government body land use appeal fees be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript, to be applicable to the county (not covered in Appendix B as the county’s identified authority was ORS 215.416(1) and ORS 215.422(1)(c) was ignored).

6. Comparative Analysis Satisfies ORS 215.422(1)(c). It is assumed by the petitioners that the county viewed the requirements of ORS 215.422(1)(c) that the governing body establish fees charged for land use appeal fees at an amount no more than the actual or average cost of providing that service to be satisfied by a comparative analysis of other local government’s land use appeal fees (not covered in Appendix B as the county’s identified authority was ORS 215.416(1) and ORS 215.422(1)(c) was ignored).

7. Comparative Analysis Satisfies ORS 215.416(1). The county viewed the requirements of ORS 215.416(1) that the governing body establish fees charged for land use applications at an amount no more than the actual or average cost of providing that service to be satisfied by a comparative analysis of other local government’s permit costs (Appendix B).

8. Citizens’ Standing To Appeal To LUBA. The county’s position was that the LUBA appeal should be dismissed as to several of the persons named in the notice of intent to appeal (NITA) because it asserted they had no standing to appeal. The county’s rationale was that the NITA identified that the petitioners Mike Walker, Ron and Phyllis Ray, and Herbert and Valerie Neelund were "aggrieved" by the decision appealed from, but they had made no assertion that they appeared or participated in the proceeding before the Josephine County Board of Commissioners (BCC) (Appendix B).

9. Local Land Use Application Fees And Local Appeal Fees Are Required. The county’s position was that raising land use application fees and land use appeal fees under the authority of ORS 215.416(1) was a requirement of the statute (Appendix B). The county’s identified authority was ORS 215.416(1) and ORS 215.422(1)(c) was ignored.

C. LUBA’s Order

The Oregon Land Use Board of Appeals’ (LUBA’s) order concerning the citizens and the county’s positions about land use application fees and land use appeal fees was published on its web site (http://www.oregon.gov/LUBA/2006Orders.shtml) (Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss)). A summary of LUBA’s order and denial of the county’s motion to dismiss the citizens’ appeal to LUBA follows : LUBA’s Order No. 2006-150 is similar to LUBA’s opinions in Landwatch Lane County v. Lane County, __ Or LUBA __ (LUBA No. 2006-039, June 26, 2006); Doty v. City of Bandon, 49 Or LUBA 411 (2005); Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003); and Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002).

1. Land Use Appeal Fees And Land Use Application Fees Are Land Use Decisions. LUBA’s order was that land use application fees and land use appeal fees are land use decisions (http://www.oregon.gov/LUBA/2006Orders.shtml). ". . .LUBA has consistently declined to apply the fiscal exception to decisions that involve local land use appeal fees or land use application fees."

2. LUBA Has Jurisdiction Over Land Use Application And Land Use Appeal Fees. LUBA’s order was that the county’s decision to raise land use application fees and land use appeal fees is appealable to LUBA as its jurisdiction is land use decisions and limited land use decisions (http://www.oregon.gov/LUBA/2006Orders.shtml).

3. Quasi-judicial Land Use Proceedings Or Legislative Process Required to Raise Land Use Application Fees And Land Use Appeal Fees. LUBA’s order was that decisions to raise land use application fees and land use appeal fees and the process to raise fees is subject to use of the quasi-judicial land use proceedings or legislative process. (http://www.oregon.gov/LUBA/2006Orders.shtml).

4. Land Use Application Fees And Land Use Appeal Fees Are Not Exempt Fiscal Actions. LUBA’s order was that land use application fees and land use appeal fees are not "fiscal exceptions" to LUBA’s jurisdiction (http://www.oregon.gov/LUBA/2006 Orders.shtml).

5. ORS 215.422(1)(c) Does Apply To County. LUBA’s order was that ORS 215.422(1)(c) is a requirement that land use appeal fees shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal (http://www.oregon.gov/LUBA/2006Orders.shtml).

6. Analysis Satisfying ORS 215.422(1)(c). Unknown. LUBA’s order did not cover the level of analysis required for land use appeal fees to be in compliance with ORS 215.422(1)(c). This question will be settled during the appeal (http://www.oregon.gov/ LUBA/2006Orders.shtml).

7. Analysis Satisfying ORS 215.416(1) Unknown. LUBA’s order did not cover the level of analysis required for land use application fees to be in compliance with ORS 215.416(1). This question will be settled during the appeal (http://www.oregon.gov /LUBA/2006Orders.shtml).

8. Citizens’ Standing To Appeal To LUBA Unknown. LUBA’s order did not cover standing as it agreed with petitioners that until the record was filed it was impossible to resolve the parties’ dispute over whether all of the petitioners satisfied the appearance requirement. It dismissed the county’s motion to dismiss some of the named petitioners, but allowed the county to renew the motion after the record was filed (http://www.oregon.gov/LUBA/2006Orders.shtml).

9. Local Land Use Appeal Fees Are Required. LUBA’s order did not cover the county’s position that raising land use application fees and land use appeal fees under the authority of ORS 215.416(1) was a requirement of the statute, or the citizen’s position that raising land use appeal fees under the authority of ORS 215.422(1)(c) was policy and permissive, and not a requirement of statute. (Appendix B). The county’s identified authority was ORS 215.416(1) and ORS 215.422(1)(c) was ignored. These questions will hopefully be settled during the appeal (http://www.oregon.gov/LUBA/2006Orders.shtml).

II. CURRENT STATUTORY LANGUAGE: ORS 215.422(1)(c); ORS 227.180(1)(c); ORS 215.416(1); ORS 227.175(1); ORS 215.416(11)(b) and ORS 227.175(10(b)

The legislature had adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters: ORS 215.422(1)(c); ORS 227.180(1)(c); ORS 215.416(1); ORS 227.175(1); ORS 215.416(11)(b) and ORS 227.175(10(b).

ORS 215.422(1)(c) and ORS 227.180(1)(c) provide:

"The governing body may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon an appeal from a hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript. The governing body may establish a fee for the preparation of a written transcript. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to $500. In lieu of a transcript prepared by the governing body and the fee therefor[e], the governing body shall allow any party to an appeal proceeding held on the record to prepare a transcript of relevant portions of the proceedings conducted at a lower level at the party’s own expense. If an appellant prevails at a hearing or on appeal, the transcript fee shall be refunded." [Emphasis added]

ORS 215.416(1) provides:

"When required or authorized by the ordinances, rules and regulations of a county, an owner of land may apply in writing to such persons as the governing body designates, for a permit, in the manner prescribed by the governing body. The governing body shall establish fees charged for processing permits at an amount no more than the actual or average cost of providing that service. [Emphasis added]

ORS 227.175(1) provides:

"When required or authorized by a city, an owner of land may apply in writing to the hearings officer, or such other person as the city council designates, for a permit or zone change, upon such forms and in such a manner as the city council prescribes. The governing body shall establish fees charged for processing permits at an amount no more than the actual or average cost of providing that service." [Emphasis added]

ORS 215.416(11)(b) and ORS 227.175(10)(b) provide:

"If a local government provides only a notice of the opportunity to request a hearing, the local government may charge a fee for the initial hearing. The maximum fee for an initial hearing shall be the cost to the local government of preparing for and conducting the appeal, or $250, whichever is less. If an appellant prevails at the hearing or upon subsequent appeal, the fee for the initial hearing shall be refunded. The fee allowed in this paragraph shall not apply to appeals made by neighborhood or community organizations recognized by the governing body and whose boundaries include the site."

Other applicable statutes include the following: ORS 197.015(10(a); ORS 197.825(1).

ORS 197.015(10(a) provides:

"(10) Land use decision:

(a) Includes:

(A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:

(i) The goals;

(ii) A comprehensive plan provision;

(iii) A land use regulation; or

(iv) A new land use regulation;

(B) A final decision or determination of a state agency other than the commission with respect to which the agency is required to apply the goals; or

(C) A decision of a county planning commission made under ORS 433.763; . . ." [Emphasis added].

ORS 197.825(1) provides:

"(1) Except as provided in ORS 197.320 and subsections (2) and (3) of this section, the Land Use Board of Appeals shall have exclusive jurisdiction to review any land use decision or limited land use decision of a local government, special district or a state agency in the manner provided in ORS 197.830 to 197.845."

III. ORIGINS OF FEE AND TRANSCRIPT PROVISIONS

A. First Appearance of Appeal Fee and Transcript Fee Limitations

Legislative language providing for limitations on appeals and transcript fees were first proposed by the Oregon Shores Coastal Coalition in 1983 (Exhibit 3 and Exhibit 4) in the form of an amendment to House Bill (HB) 2295 (Exhibit 7). The bill had been passed by the House and was before the Senate Committee on Energy and Environment. The offered amendment provided:

"The governing body may establish, by ordinance or regulation, a fee to be charged for an appeal under this subsection. The amount of the fee, including the cost or preparation of a written transcript if one is prepared, shall be no more than the average or actual cost of the appeal and shall not exceed $500."

B. Reason for Proposed Amendment

The legislative history of ORS 215.422(1)(c) and ORS 227.180(1)(c) is interesting, especially the influence of the Oregon Citizen Involvement Advisory Committee (CIAC) during the amendment hearings on the1983 HB 2295 before the Senate Committee on Energy and Environment. The amendment hearings were prompted by the fact that the City of Newport, in 1981, demanded over $3,600 in filing and transcript fees from local citizens prior to hearing an appeal from the local planning commission. The CIAC investigated the appeal circumstances and on January 18, 1983 found the fee and transcript charges had been "outrageous and unjustified," and "one in a series of efforts by the City to restrict citizen input and participation." The following, in relevant part, is from the CIAC memorandum to the Oregon Land Conservation and Development Commission (LCDC) (Exhibit 6).

"The concerns raised by the Friends of Lincoln County in its objection to Goal 1 compliance have merit. It is evident to even the casual observer that the City has not complied with its citizen involvement program during the continuance period. Additionally, the outrageous and unjustified fee and transcript charges levied against Friends of Lincoln County during the Jump-Off-Joe proceedings appear to be just one in a series of efforts by the City to restrict citizen input and participation. The City has deliberately and successfully thwarted effective citizen participation in its planning process. What is most unfortunate is that it appears that the City will get away with it and that the public is ill-served in this case."

IV. SENATE COMMITTEE ON ENERGY AND ENVIRONMENT HEARINGS ON HB 2295

A. Senate Committee on Energy and Environment (Committee) Hearings on HB 2295

A representative of the Oregon Shores Coastal Coalition testified that the City of Newport had required a transcript fee of $3,600 for an appeal. It presented a survey of appeals fees charged by selected jurisdictions, which averaged $75 - $100. The amendment proposed would require that total fees, including filing fees and transcript fees, be reasonable, not exceed average or actual cost, and not exceed $500 (Exhibit 1, Exhibit 3, and Exhibit 4).

The Committee concurred that the amount charged for preparation of transcripts was outrageous. The committee discussion was focused on how to best address limiting transcript fees, since that was the major part of the appeal fee demanded by the City of Newport prior to hearing the merits of the case. However, transcript fees were not the only issue addressed by the Committee. The Committee eventually compromised and bundled several very important concepts about land use appeal fees and transcript fees as a result of the unreasonable transcript fees (Appendix C; Exhibit 1; Exhibit 2).

. Split on establishing an flat upper fee ceiling of $500 and compromised with no ceiling for the total fee amounts of an appeal.

. Support for actual appeal costs.

. Support for actual transcript costs up to $500 and then any amount above that would be split by the local government and the requester.

. Acknowledgment there was some kind of local government responsibility to pick up part of the costs for appeals and transcripts as part of what citizens pay taxes for, and public access to government via Oregon Statewide Goal 1 - Citizen Involvement.

. Fees charged should be reasonable, and should be no more than the actual or average cost of the appeal.

. Land use appeal fees and transcript fees should not be unreasonable and a place a chilling effect on citizen involvement (i.e, not put a talon on citizens).

. The parties to the action should be allowed to contest the reasonableness of an extraordinary high charge.

. Local governments have to justify, if they go beyond.

. Appeal and transcript fees should have a formula that justified the costs, whether it be for the costs of the transcripts or the appeal, or the combination thereof (i.e., if the local jurisdiction can show cause, I mean really show actual cost).

. Not interested in citizen involvement barriers, but supported reasonableness.

. Support for splitting the distinction between transcript fees and appeal fees.

Appeal fees themselves were not seen as the immediate problem by the Committee; the testimony had substantiated the fact that it was the transcripts that ran up the cost. However, the testimony among the Committee members, including the eventual statutes, clearly demonstrated that the issue might have been land use appeal fees and that it probably would be in the future.

The Committee was split on a ceiling of $500 for appeal fees and compromised with no ceiling, but supported the concept that the fees had to be reasonable and the parties to the action should be allowed to contest the reasonableness of an extraordinary high charge.

The Committee was concerned that local jurisdictions be able to set fee structures based upon average costs. Legislative counsel was concerned that it would not be possible to calculate the "average" cost of preparing transcripts. For this reason, the two elements of land use appeal fees and transcript fees were separated.

City and county representatives were concerned that ceilings not be imposed. The Committee was determined that transcript fees were not excessive. The solution found was to provide that transcript costs exceeding $500 would be shared on a 50/50 basis by the appellant and the jurisdiction, thus providing incentive for local governments to keep transcript costs down.

The Committee felt that fees charged should be reasonable, and should be no more than the actual or average cost of the appeal. Land use appeal fees and transcript fees should not be unreasonable and should not place a chilling effect on citizen involvement (i.e., not put a talon on citizens). The appeal and transcript fees should have a formula that justified the costs, whether it be for the costs of the transcripts or the appeal, or the combination thereof (i.e., if the local jurisdiction can show cause, I mean really show actual cost).

The Committee language that emerged and was enacted into the 1983 statutes was permissive (i.e., "may establish"), and ORS 215.422(1)(c) and ORS 227.180(1)(c) provided that appeal fees be no more than average or actual costs:

"The governing body may establish, by ordinance or regulation, a fee to be charged for an appeal under this subsection. The fee shall be reasonable and shall be no more that the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript. The governing body may establish a fee for the preparation of a written transcript. That fee shall be reasonable and shall be no more than the actual cost of the transcript up to $500 plus one-half the actual costs over $500." (Oregon Laws 1983, Chapter 827.) [Emphasis added]

B. The Courts On Legislative History

1980. The Oregon Court of Appeals in Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980) found that the Oregon Land Conservation and Development Commission (LCDC) did not have jurisdiction to review a city ordinance which imposed a "system development charge"on all new construction in the city. However, its conclusion was that there may be exceptions to what became the "fiscal exceptions" rule

"The present problem, more specifically, is what was the legislature’s intent when it constructed the present statewide land use planning program. Did it intend that units of government, school boards, cities, counties, etc., apply the statewide planning goals to their various taxation and budget decisions that might have some impact on land use? Stating the same question differently, did the legislature intend that LCDC be able to review, for goal compliance, the adoption and administration of local taxation and budget policy that might have an impact on land use?"

"The ambiguity of the line drawn by LCDC ("significant impact") and the unworkable procedure adopted by LCDC (determine impact from the evidence presented at a local hearing that might not be held) persuades us that a rule that some but not all local fiscal policy must comply with the goals cannot have been the legislative intent. That leaves the either/or question of whether the legislature intended all local fiscal policy or no local fiscal policy to comply with the goals."

"We simply cannot imagine that the legislature intended that all local taxation, budget and fiscal policy had to comply with the statewide planning goals. . . ."

"Having rejected as substantively and procedurally unmanageable any attempt to say that some but not all fiscal policy must comply with the goals and having rejected as inconceivable the notion that the legislature intended that all fiscal policy has to comply with the goals, the only remaining possibility is that no local taxation or budget ordinance has to comply with the goals."

"There may, of course, be exceptions. For example, Goal 1 requires local governments to adequately finance a program for citizen involvement in land use planning. LCDC may have authority to review or to require fiscal policy in this area. . . . Moreover, we are here dealing with only direct review of a single ordinance. Whether LCDC can review some fiscal policy during the acknowledgment process involving review of the comprehensive plan and all implementing ordinances may present a different question." page 538.

"We are aware that, as the cliche goes, the power to tax is the power to destroy. So we are also aware that our holding creates the possibility of a local government following a fiscal policy that impairs or destroys a state-mandated land use policy. That only documents, we believe, that there is no perfect answer in this case; that all of the alternatives can produce undesirable consequences. We conclude that the alternative we have decided was most likely legislatively intended produces the least undesirable consequences." page 539.

1991. LUBA explained some of the legislative history in DLCD v. Jackson County, 21 Or LUBA 93 (1991). However, its focus was limited to whether ORS 215.416 and ORS 215.422 prohibited the county from establishing a fee requirement for appeals of a planning director’s minor partition and nonfarm dwelling permit decisions made without a hearing. LUBA concluded the county was not prohibited from establishing an appeals fee.

According to LUBA, the intent of the legislature at the time of the 1983 amendments to ORS 215.416 and ORS 215.422 were enacted was to limit the costs imposed on appellants in local land use proceedings (DLCD v. Jackson County, page 9). The legislature did not intend to prohibit fees for such appeals (DLCD v. Jackson County, page 10). The concern about excessive fees charged for local appeals was an issue entirely separate from that of allowing initial permit decisions to be made without a hearing (DLCD v. Jackson County, page 12). The concern was to a great degree prompted by a specific instance where appellants of a local decision made after a hearing had been charged allegedly excessive fees for the preparation of transcripts of the hearing (DLCD v. Jackson County, page 12). The issue and the concern expressed by legislators were primarily focused on the transcript fee issue, and no distinction was ever expressed between fees for appeals of local decisions made after a hearing or without a hearing.

1991. LUBA in Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003) explained:

". . . . The legislature has adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters. ORS 215.416(11)(b), 215.422(1)(c), 227.175(10)(b), 227.180(1)(c). . . ." [Emphasis added]

1992. LUBA in Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002) explained that under ORS 197.825(1), LUBA’s jurisdiction was limited to land use decisions and that land use application fees and land use appeal fees are land use decisions under ORS 197.015(10(a):

". . . . We recognize that the word "concern" in ORS 197.015(10(a) might be interpreted and applied more narrowly here to conclude that the challenged decision does not "concern" application of the YCZO. However, we see no reason to believe that narrow construction would be consistent with the legislature’s intent. If the legislature had intended that this part of the definition of the term "land use decision" only include decisions that actually apply a land use regulation, it could have limited its scope to decision that "apply" a land use regulation rather than include decisions that "concern the application"of a land use regulation."

V. 1991 AMENDMENTS RESULTING IN EXISTING STATUTORY LANGUAGE

In 1991, HB 2261 resulted in the removal of provisions allowing for the 50/50 sharing of transcript costs in excess of $500. As a result, the fee that a local government could charge for preparation of a written transcript was capped at $500. This revision was at the behest of a technical committee working on the bill. The objective was to keep costs of local appeal proceedings at a minimum.

The bill would accomplish the objective of minimizing the costs of an appeal by allowing an appellant to prepare transcripts of relevant portions of lower proceedings, at his own expense. The provision was uncontroversial, and drew no testimony or comment other than revisions on behalf of the DLCD.

VI. IMPLICATIONS

LUBA found in Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003) that "Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews."

"Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews. The legislature has adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters. ORS 215.416(11)(b), 215.422(1)(c), 227.175(10)(b), 227.180(1)(c). See Housing Council, 48 Or App at 538 (noting a possible exception to its holding, where the challenged decision involves financing of the citizen involvement program required by Statewide Planning Goal 1 (Citizen Involvement))."

The following sections summarize some major themes that continue to evolve in the courts, including the relationship of the legislative history of land use appeal fees and transcript fees to these themes.

. Abuses, Then and Now

. Land Use Application Fees And Land Use Appeal Fees Are Land Use Decisions

. Analysis to Justify Fees Must Be Substantial

. What Is "Reasonable" Is Not Separable from the "Actual or Average Cost" Standards

. Fee Amounts Are Policy And Can Be Less Than Actual Or Average Cost

 

A. Abuses, Then and Now

1983 Provisions that appeals and transcript fees be reasonable, and not exceed actual or average costs, were adopted in response to a local government imposing an outrageous fee that discouraged or made impossible citizen involvement (1983 Senate Committee on Energy and Environment Hearings on HB 2295; Section III.A.; Appendix C; Exhibit 1).

Land use appeal fees were not the focus of previous legislation, because the identified abuse had been with excessive transcript fees. However, transcript fees were not the only issue addressed by the Committee. The testimony among the Committee members demonstrated that the issue might have been land use appeal fees and that it probably would be in the future. The Committee eventually compromised and bundled several very important concepts about appeal fees and transcript fees as a result of the unreasonable transcript fees (1983 Senate Committee on Energy and Environment Hearings on HB 2295; Section III.A.; Appendix C; Exhibit 1).

1995. The City of Portland argued its decision fell within either one of two exceptions to LUBA’s jurisdiction: fiscal exception and/or ministerial exception. LUBA disagreed

(Ramsey v. City of Portland, 29 Or LUBA 139 (1995).

2002. Yamhill County argued its decision to increase the fee it charges for certain land use appeals and requests was a "fiscal" decision and not a land use decision which placed the decision and process outside of the jurisdiction of LUBA. LUBA disagreed (Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002)).

2003 Abuses with the imposition of excessive appeal fees have a chilling effect on citizen involvement. For example, in 2003 Lane County charged $3,010 for an appeal of a decision by a hearings official. The City of Portland had charged $3,567.50 for an appeal of a decision by a hearings officer.

2003. The City of Lebanon ignored court law and argued its decision to set the fee to appeal any land use action, including planning commission decisions, at a rate equal to the application fee was a "fiscal" decision, not a land use decision, which placed the decision and process outside of the jurisdiction of LUBA. LUBA disagreed (Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003)).

2005. The City of Bandon ignored court law and argued its decision to increase eight types of land use applications was not a land use decision and that it was a ministerial decision which placed the decision and process outside of the jurisdiction of LUBA. LUBA disagreed (Doty v. City of Bandon, 49 Or LUBA 411 (2005)).

2006. Abuses with the imposition of excessive appeal fees and have a chilling effect on citizen involvement. For example, in 2006 Josephine County raised its land use appeal fee, for a decision by the Josephine County Rural Planning Commission for a local appeal to the Josephine County Board of Commissioners, to $1,550 without substantial supporting evidence.

The county raised land use application fees and land use appeal fees for the services provided by its Planning Department three times in two years through its budget and legislative processes.

July 26, 2006 (Order No. 2006-125)
June 1, 2005 (Resolution No. 2005-041)
June 30, 2004 (Resolution No. 2004-045)

The county was aware of LUBA’s opinions, but argued interpretations contrary to the pattern set by LUBA that land use application fees and land use appeal fees were not fiscal exceptions. It argued its three decisions, to increase all land use application fees and land use appeal fees, were "fiscal" decisions and not land use decisions, which placed the decisions and processes outside of the jurisdiction of LUBA. LUBA disagreed (Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss; http://www.oregon.gov/LUBA/2006Orders.shtml).

Over 20 years have passed since the legislature passed its first statutes on land use appeal fees and transcript fees. The abuses that initiated the laws are still with us and citizens continue to protest. The courts have become the main vehicle in forcing compliance by local governments in the statues designed to protect the public’s access and opportunity to participate in the land use planning process (Appendix A).

B. Land Use Application Fees And Land Use Appeal Fees Are Land Use Decisions

Land use application fees and land use appeal fees are land use decisions for which LUBA has jurisdiction.

1. Senate Committee on Energy and Environment

The Committee was dealing with land use appeal fees and transcript fees (Section III.A.; Appendix C; Exhibit 1).

2. Court Orders and Opinions

There is a solid set of court rulings that local government decisions regarding local land use application fees and land use appeal fees are land use decisions subject to LUBA’s jurisdiction.

. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss)

. Landwatch Lane County v. Lane County, __ Or LUBA __ (LUBA No. 2006-039, June 26, 2006).

. Doty v. City of Bandon, 49 Or LUBA 411 (2005)

. Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003)

. Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002).

. Ramsey v. City of Portland, 29 Or LUBA 139 (1995).

. DLCD v. Jackson County, 21 Or LUBA 93 (1991).

. Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980)

LUBA found in Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss) that:

". . . LUBA has consistently declined to apply the fiscal exception to decisions that involve local land use appeal fees or land use application fees. Landwatch Lane County v. Lane County, __ Or LUBA __ (LUBA No. 2006-039, June 26, 2006) (county failed to establish that appeal fee increases are consistent with ORS 215.422(1)(c)); Doty v. City of Bandon, 49 Or LUBA 411 (2005) (resolution increasing application fees is not subject to fiscal exception); Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003) (city established that appeal fee increases are consistent with ORS 227.180(1)(c); Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002) (decision imposing $700 appeal fee violated ORS 215.416(11)(b)); Ramsey v. City of Portland, 29 Or LUBA 139 (1995) (city’s application of the appeal fee section of its zoning ordinance to dismiss a local appeal was filed without the appeal fee that the zoning ordinance required by a land use decision)..

LUBA found in Doty v. City of Bandon, 49 Or LUBA 411 (2005):

"Even if the challenged decision did not affect the local appeal fee in any way, we disagree with the city that the reasoning in the foregoing cases is inapplicable to decisions that increase land use application fees. In similar language to ORS 227.180(1)(c), ORS 227.175(1) prohibits land use permit application fees that are greater than "the actual or average cost" of processing the application, Further, land use application fees are just as much if not more an "integral part of the zoning code provisions governing the processing and review of land use applications" as are local appeal fees."

LUBA found in Friends of Linn County v. City of Lebanon, 45 Or LUBA 408 (2003):

"In a separate line of cases, however, we have declined to treat appeals of local land use decisions involving local appeal fees as subject to the fiscal decision exception. In Ramsey v. City of Portland, 29 Or LUBA 139 (1995), the challenged decision involved the rejection of a local appeal of the hearing officer to the city council due to the petitioner’s failure to pay the local appeal fee required by the zoning ordinance. We held that application of the appeal fee portion of the zoning ordinance was not a purely fiscal matter and did not fall under the fiscal decision exception to our jurisdiction."

"Friends of Yamhill County [43 Or LUBA 270 (2002)] demonstrates that whether the appeal fee amount is codified in the zoning ordinance is not dispositive as to our jurisdiction under either the statutory definition of land use decision or the fiscal decision exception. The essential questions are: (1) whether the challenged appeal fees "concern" the application of a land use regulation; and (2) whether they are an integral part of the zoning code provisions governing the processing and review of land use applications. As in Ramsey and Friends of Yamhill County, we believe that appeal fees for planning commission decision "concern" the application of the city’s land use regulation and are an integral part of the zoning code provisions."

LUBA found in Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003) that "Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews."

". . . As we suggested in Ramsey and Friends of Yamhill County, local appeal fees are often, and perhaps invariably, "an integral part of the zoning code provisions governing the processing and review of land use applications." Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews. The legislature has adopted several statutes regulating local governments’ discretion to impose fees and related transcript costs, codified in city and county zoning and planning chapters. ORS 215.416(11)(b), 215.422(1)(c), 227.175(10)(b), 227.180(1)(c). See Housing Council, 48 Or App at 538 (noting a possible exception to its holding, where the challenged decision involves financing of the citizen involvement program required by Statewide Planning Goal 1 (Citizen Involvement))."

"Given the integral role appeal fees play with respect to land use reviews and citizen involvement, we see no reason to decline to review a decision because the challenged fee is bundled with a large number of other fee changes, most of which do not touch on land use matters. . ."

The Oregon Court of Appeals found in Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980) that under statute governing the jurisdiction of the Oregon Land Conservation and Development commission, that the Commission did not have jurisdiction to review, for compliance with statewide planning goals, adoption and administration of local taxation and budget policy that might have an impact on land use, and, therefore, the Commission did not have jurisdiction to review city ordinance which imposed a "system development charge"on all new construction in city. However, its conclusion was that there may be exceptions to what became the "fiscal exceptions’ rule (Section III.B). In a line of opinions, LUBA had determined that two of these exceptions were: land use application fees and land use appeal fees.

Local governments continue to embrace the concept that "Local appeal fees implicate core land use concerns regarding access to and citizen participation in land use reviews" by arguing that fees are fiscal matters outside of the land use planning process. They continue this stance despite a solid set of court rulings that local government decisions regarding local land use application fees and land use appeal fees are land use decisions subject to LUBA’s jurisdiction.

C. Analysis to Justify Fees Must Be Substantial

1. Senate Committee on Energy and Environment

In 1983 the Senate Committee on Energy and Environment was dealing with land use appeal fees and transcript fees. The legislative intent of the Committee was concern that actual or average appeal costs be computed by a formula that actually justified the costs (Section III.A.; Appendix C; Exhibit 1). The Committee felt that fees charged should be reasonable, and should be no more than the actual or average cost of the appeal. Land use appeal fees and transcript fees should not be unreasonable and should not place a chilling effect on citizen involvement (i.e., not put a talon on citizens). The appeal and transcript fees should have a formula that justified the costs, whether it be for the costs of the transcripts or the appeal, or the combination thereof (i.e., if the local jurisdiction can show cause, I mean really show actual cost).

2. Court Opinions

In Landwatch Lane County v. Lane County, __ Or LUBA __ (LUBA No. 2006-039, June 26, 2006 - "Although petitioner’s assignment of error is nominally a challenge to the adequacy of the county’s findings, the argument under that assignment of error also challenges the evidentiary support for the county’s critical findings." page 3. LUBA found in Landwatch Lane County v. Lane County, that actual or average appeal costs had to be supported by substantial evidence.

Opinion - "The above-emphasised findings, if they were supported by substantial evidence, would likely be adequate to respond to the issue that petitioner raised below and again raises in this assignment of error. For example, if the record included a focused representation by the planning staff regarding the average or actual costs to the county of providing a local appeal to challenge a planning commission or hearings official decision and that explanation supported a conclusion that the costs exceed the existing and proposed increased fee, we would almost certainly be required to deny this assignment of error unless some opposing evidence had been submitted to the county to rebut that representation.3 However, as we explain below, the county does not cite and we are unable to find the "representation" that finding four appears to rely on. The representations that the county identifies in its brief are generally directed at total Land Management Division costs and total Land Management Division fee revenues and make no attempt at all to focus on the three fees that are at issue in this appeal. . . .There does not appear to be any dispute that the total cost of operating the county Land Management Division, both before and after the challenged fee increases, exceeds the aggregate revenues that have been collected in the past and likely will exceed the revenue that will be collected in the future under the increased fee structure. The relevant question is whether a reasonable person would conclude from the fact that the three fees the challenged order adopts for appeals of planning commission and hearings official decisions will not exceed the average or actual costs of such appeals. Based on the present record, we do not believe a reasonable person would reach that conclusion." pages 3 - 4.

Opinion - "Had Land Management Division staff made any particularized effort to explain why it believes the three fees proposed for planning commission and hearings officer appeals do not exceed the average or actual costs of those appeals, it might be appropriate for the county to fault petitioner for not attempting to refute that testimony. However, as far as we can tell, the Land Management Division did not make any particular effort to explain why the three fees that are subject to ORS 215.422(1)(c) comply with the limitation imposed by that statute." page 5.

Opinion - "The county is in the best position to provide rough estimates of staff time costs and other significant costs for typical or average appeals that fall within the three categories listed in ORS 215.422(1)(c)." page 5.

Opinion - "Without a more particularized evidentiary effort to focus on the three types of appeals listed in ORS 215.422(1)(c). we agree with petitioners that there was nothing "in the record for any member of the public to ‘refute,’ . . ." page 5.

LUBA found in Doty v. City of Bandon, 49 Or LUBA 411 (2005) that a detailed comparative analysis might be necessary to support a decision that adopts application fees in the first instance:

Opinion - "The detailed comparative analysis that petitioner believes is required under BMC 17.120.180 and ORS 227.175(1) might be necessary to support a decision that adopts application fees in the first instance or where the city is attempting to justify the maximum amount of fees authorized by the code and statute, i.e., fees that represent the actual or average cost of providing planning reviews. That level of detail seems less necessary where, as here, the city is simply increasing certain existing application fees to reflect increased costs and there is unrebutted testimony that, even with the increased fees, the fee schedule does not recover the total cost of application reviews. Petitioner offers no reason to doubt the staff testimony that staff evaluated the costs of application reviews, and the recommended fees accurately reflect increased costs of providing application reviews for certain types of development applications. Nor does petitioner dispute the statement that, even with the increased fees, the fee schedule does not acount for the total cost of such reviews. While the staff testimony on those points was not accompanied by any supporting facts or details, absent some reason to doubt that testimony or require more detail, we cannot say that a reasonable person could not rely on the staff testimony, to support a finding of compliance with BMC 17.120.180 and ORS 227.175(1). See Friends of Linn County, 45 Or LUBA 421-22 (nonspecific staff testimony that the recommended appeal fee is consistent with the anticipated average cost of appeals is substantial evidence, absent contradictory evidence) ." pages 9 - 10.

3. Josephine County

Josephine County clearly understood that, "The governing body shall establish fees charged for processing permits at an amount no more than the actual or average cost of providing that service." Over two calendar years and three budget cycles it quoted ORS 215.416(1) again and again to prove that point.

July 26, 2006 (Josephine County Order No. 2006-125)
June 1, 2005 (Josephine County Resolution No. 2005-041)
June 30, 2004 (Josephine County Resolution No. 2004-045)

The county presumably would agree that ORS 215.416(1); ORS 227.175(1) applies for counties and cities whereas the petitioners believe ORS 215.422(1)(c); ORS 227.180(1)(c).; ORS 215.416(1); and ORS 227.175(1) apply for counties and cities. Regardless, in 2006 the county provided its "formula" for determining actual or average cost of providing services for land use application permits pertaining to ORS 215.416(1) (June 2006 Josephine County Planning Director worksheets and presentation items for budget preparation - FY 2006-2007; Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, August 14, 2006) - Item 14 of November 13, 2006 record of proceeding, page 116).

Petitioners agree that this "formula" would be acceptable in determining actual or average costs for both land use applications and land use appeal fees for ORS 215.422(1)(c); ORS 227.180(1)(c).; ORS 215.416(1); and ORS 227.175(1) if applied to each individual type of land use application and land use appeal. In other words, application of the "formula" would provide substantial evidence that factually supported the actual or average costs for each individual type of land use application and land use appeal fee.

The June 2006 presentation by the Josephine County Planning Director included the following "formula" for determining actual or average cost.

1. Total fees cannot exceed total costs

2. Total cost of providing service includes more than planning

         a. BCC
         b. Legal
         c. Public Works
 
3. Total cost includes more than personnel costs (salary + benefits)

a. OVERHEAD

i. Operating Expenses (Office supplies, equipment, utilities, insurance, building vehicles)
ii. Other county support services (computers, GIS legal, finance, personnel)

4. Calculating Fees

a. The Amount of Time Spent on Applications
b. The Number of Applications
c. Relationship to Other Applications
d. The Cost of Advance Planning
e. Compare to Other Jurisdictions

5. Room for Policies

a. Appeals
b. Medical Hardships
c. Violation Surcharge

The problem with the county’s last three legislative decisions on fee increases is that it never provided any analysis, let alone the detailed analysis required by the county’s "formula" to provide the substantial evidence that factually supported the decisions to increase fees to amounts not greater than actual or average costs. There is no documentation in the record of this matter of the average or actual costs of handling individual types of land use application and land use appeals. There is no documentation of staff time or the cost of staff time for providing the services needed to process individual types of land use applications and land use appeals. There is no documentation of notice, mailing, copying, or other "formula" costs associated with the processing of individual types of land use applications and land use appeals.

It is the petitioner’s position that the required analysis had never been conducted (except for a comparative analysis of other counties’ fees) based upon the void of any evidence in the record. Fee surveys of other adjacent counties does not satisfy the law, nor are they reliable for determining actual or average costs, as there are many factors that affect how and why other communities have set their fees at "their" levels. For example, many communities have established their own policies that some services are a benefit to the entire community rather than to special interests: public safety emergency response services such as police patrol services and fire suppression; maintaining and developing public facilities on a uniform, community-wide basis such as streets, parks, and general-purpose buildings; and providing social service programs, economic development activities, and planning services because they are clearly intended to serve the broader community. Where other counties have made these policies their associated services have very low cost recovery goals.

It is common practice for local governments to establish or increase land use application fees and/or land use appeal fees supported by conclusory statements without any substantial evidence beyond simple comparison analysis. This practice does not meet the compliance standards.

D. What Is "Reasonable" Is Not Separable from the "Actual or Average Cost" Standard

1. Senate Committee on Energy and Environment

In 1983 the Senate Committee on Energy and Environment was dealing with land use appeal fees and transcript fees. The legislative intent of the Committee was that fees charged should be reasonable, and should be no more than the actual or average cost of the appeal. Land use appeal fees and transcript fees should not be unreasonable and should not place a chilling effect on citizen involvement (i.e., not put a talon on citizens). The Committee was split on a ceiling of $500 for appeal fees and compromised with no ceiling, but supported the concept that the fees had to be reasonable and the parties to the action should be allowed to contest the reasonableness of an extraordinary high charge (Section III.A.; Appendix C; Exhibit 1).

Concerning what constitutes "reasonable," the Committee discussion considered existing local appeal fees, which ranged from $75 to $337.50, with an average of $75 - $100; and the $150 fee for an appeal to LUBA. The fact that the legislature established cost sharing for preparation of transcripts beginning at $500, and that $500 was later set as a ceiling, indicates that costs exceeding $500 might be presumed to be unreasonable (Section III.A.; Appendix C; Exhibit 1).

The Committee was concerned that local jurisdictions be able to establish fee schedules based on actual or average administrative costs. The transcripts of the Committee hearings indicate that the Committee believed that parties should be able to challenge any excessive fees (Section III.A.; Appendix C; Exhibit 1).

2. Court Opinions

The local government is in the best position to provide estimates of staff time costs and other significant costs to support the determination of average or actual costs of individual land use application fees and land use appeal fees. When local governments provide a particularized effort to explain why the fees do not exceed the average or actual costs, it might be appropriate for the government to fault petitioner for not attempting to refute that testimony. However, without a focused representation, the relevant question is whether a reasonable person would conclude that fees will not exceed the average or actual costs of individual land use application fees and land use appeal fees. If the governing body does not cite, and are the courts are unable to find the "representation" that findings rely on, the courts will rule that a reasonable person would not reach the conclusion that fees will not exceed the average or actual costs of individual land use application fees and land use appeal fees.

LUBA found in Friends of Linn County v. City of Lebanon, 45 Or LUBA 408 (2003) that reasonableness of an appeal cannot be determined in a meaningful way independently of the average or actual cost of the appeal:

Headnote - "Under ORS 227.180(1)(c), the question of whether local appeal fees are "reasonable" is not separable from the question of whether the appeal fees are not more than the average or actual cost of such appeals, absent evidence that the local government spends an unreasonable amount of time or incurs unreasonable expenses in processing appeals."

Headnote - That the legislature has capped local fees for providing a hearing under ORS 215.416(11)(b) and 227.175(10)(b) at $250 does not demonstrate that a $500 fee to appeal a planning commission decision to the governing body is unreasonable, for purposes of ORS 227.180(1)(c)."

Opinion - "The juxtaposition of these concerns is demonstrated by the difficulty in independently evaluating the reasonableness of a specific fee amount out of context of the decision being appealed and the other types of decisions commonly appealed. Not only does the nature of the application itself come into play, but also a large number of other potential variables.7 Clearly, what in a vacuum might seem reasonable for one type of appeal would seem just as unreasonable for another type of appeal. Therefore, we do not believe that reasonableness of an appeal can be determined in a meaningful way independently of the average or actual cost of the appeal."

LUBA found in Ramsey v. City of Portland, 29 Or LUBA 139 (1995):

Headnote - "Petitioner’s contention that the fee charged for a local appeal violates ORS 227.180(1)(c) must fail where there is no evidence in the record establishing that the local appeal fee is unreasonable or that it exceeds the average or actual cost of such an appeal, and petitioner does not move for an evidentiary hearing to submit such evidence."

LUBA found in Doty v. City of Bandon, 49 Or LUBA 411 (2005):

Opinion - "While the staff testimony on those points was not accompanied by any supporting facts or details, absent some reason to doubt that testimony or require more detail, we cannot say that a reasonable person could not rely on the staff testimony, to support a finding of compliance with BMC 17.120.180 and ORS 227.175(1). See Friends of Linn County, 45 Or LUBA 421-22 (nonspecific staff testimony that the recommended appeal fee is consistent with the anticipated average cost of appeals is substantial evidence, absent contradictory evidence) ." page 10.

It is common practice for local governments to establish fees for appeals based upon an initial application fee. There is no established relationship between the cost of processing a land-use application and the cost of an appeal of an application, and local governments make no attempt to establish such a relationship when setting fee schedules. The legislative intent that local governments be made to justify appeal fee charges has not been fulfilled.

What is "reasonable" is not separable from the "actual or average cost" standard. Local governments continue to abuse the reasonable standard by not providing actual or average costs to support their conclusory statements that the establishment, or increase in land use application fees and land use appeal fees, are lower than actual or average costs.

E. Fee Amounts Are Policy And Can Be Less Than Actual Or Average Cost

1. Senate Committee on Energy and Environment

In 1983 the Senate Committee on Energy and Environment was dealing with land use appeal fees and transcript fees. The legislative intent of the Committee was split on a ceiling of $500 for appeal fees and compromised with no fee ceiling being legislated, but supported the concept that the fees had to be reasonable and no more than the average cost or the actual cost of the appeal. The parties to the action should be allowed to contest the reasonableness of an extraordinarily high charge (Section III.A.; Appendix C; Exhibit 1; Exhibit 2).

The Committee’s work resulted in laws which provided that local governments "may" prescribe appeal fees and that they should be reasonable and "no more than" the average cost of such appeals. ORS 215.422(1)(c) and ORS 227.180(1)(c) provide, in relevant part:

"The governing body may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon an appeal from a hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript.

2. Court Opinions

LUBA found in Doty v. City of Bandon, 49 Or LUBA 411 (2005):

"BMC 17.120.180, ORS 227.175(1) and ORS 227.180(1) set limits on the fees a city may charge for land use applications and local appeal fees, but do not preclude cities from charging less for services than the actual or average cost. Under the code and statues, the city must decide whether to charge the maximum allowed or something less. Deciding whether to charge the maximum or something less under the code and statutes will often if not invariably require the exercise of policy judgment. For example, the city may wish to charge the maximum for land use applications or for local appeals, because it wishes to discourage development applications or limit local appeals. Conversely, the city may decide to charge significantly less than the actual or average cost because it wishes to encourage development applications or provide greater access to appellate review. Further, the city may decide to subsidize certain development applications, or certain types of local appeals, and not subsidize them." [Emphasis added] pages 6 - 7.

3. Josephine County

Josephine County used the potential loss of the O & C revenues and paraphrased ORS 215.416(1) using its inference as a battering ram that, with its paraphrasing, misled its citizens: "The County is mandated by Oregon Revised Statue 215.416(1) to adopt fees for the processing of permits up to the actual or average cost of providing such services by Josephine County." [Emphasis added]. The way the county translated ORS 215.416(1) concluded that the county was mandated by law to charge actual or average costs. Over two calendar years and three budget cycles it quoted ORS 215.416(1) again and again to prove this point, but it ignored ORS 215.422(1)(c), which on the surface of the statute was more permissive.

July 26, 2006 (Josephine County Order No. 2006-125)
June 1, 2005 (Josephine County Resolution No. 2005-041)
June 30, 2004 (Josephine County Resolution No. 2004-045)

ORS 215.416(1) provides:

"When required or authorized by the ordinances, rules and regulations of a county, an owner of land may apply in writing to such persons as the governing body designates, for a permit, in the manner prescribed by the governing body. The governing body shall establish fees charged for processing permits at an amount no more than the actual or average cost of providing that service. [Emphasis added]

The county’s paraphrased ORS 215.416(1) and the actual ORS 215.416(1), in relevant part, are provided.

County: to adopt fees for the processing of permits up to the actual or average cost

Statute: shall establish fees charged for processing permits at an amount no more than the actual or average cost

ORS 215.422(1)(c) provides:

"The governing body may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon an appeal from a hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript. The governing body may establish a fee for the preparation of a written transcript. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to $500. In lieu of a transcript prepared by the governing body and the fee therefor[e], the governing body shall allow any party to an appeal proceeding held on the record to prepare a transcript of relevant portions of the proceedings conducted at a lower level at the party’s own expense. If an appellant prevails at a hearing or on appeal, the transcript fee shall be refunded." [Emphasis added]

July 26, 2006 (Josephine County Order No. 2006-125): "The cost of the proposed fees is calculated to cover the actual or average cost of providing the services and administration of the programs directly related to the proposed fees." The proposed fees were identified in Exhibit A to Order No. 2006-125 which identified "The County is mandated by Oregon Revised Statue 215.416(1) to adopt fees for the processing of permits up to the actual or average cost of providing such services by Josephine County." [Emphasis added]. The way the county paraphrased ORS 215.416(1) inferred that the county was mandated by law to charge actual or average costs.

The county’s paraphrased ORS 215.416(1) and the actual ORS 215.416(1), in relevant part, are provided.

County: to adopt fees for the processing of permits up to the actual or average cost

Statute: shall establish fees charged for processing permits at an amount no more than the actual or average cost

June 1, 2005 (Josephine County Resolution No. 2005-041): "WHEREAS, the County is mandated by Oregon Revised Statue 215.416(1) to adopt fees for the processing of permits up to the actual or average cost of providing such services by Josephine County. . . ." [Emphasis added]. The way the county paraphrased ORS 215.416(1) inferred that the county was mandated by law to charge actual or average costs.

The county’s paraphrased ORS 215.416(1) and the actual ORS 215.416(1), in relevant part, are provided.

County: to adopt fees for the processing of permits up to the actual or average cost

Statute: shall establish fees charged for processing permits at an amount no more than the actual or average cost

June 30, 2004 (Josephine CountyResolution No. 2004-045): "WHEREAS, the County is mandated by Oregon Revised Statue 215.416(1), to adopt fees for the processing of permits up to the actual or average cost of providing such services by the Josephine County Planning Office. . . ." [Emphasis added]. The way the county paraphrased ORS 215.416(1) inferred that the county was mandated by law to charge actual or average costs.

The county’s paraphrased ORS 215.416(1) and the actual ORS 215.416(1), in relevant part, are provided.

County: to adopt fees for the processing of permits up to the actual or average cost

Statute: shall establish fees charged for processing permits at an amount no more than the actual or average cost

The LUBA ruling on the city fee statutes ORS 227.175(1) and ORS 227.180(1) clearly considered land use application fees and land use appeal fees to be permissive (Doty v. City of Bandon, 49 Or LUBA 411 (2005)). Under its ruling LUBA readily viewed a range of fees for land use applications and land use appeals as "policy" that can range from zero to the maximum of average or actual costs.

Josephine County violated ORS 215.416(1) with its paraphrasing of the statute that misled its citizens. The statute is clear in its expression that fees charged for processing permits are to be at amounts no more than the actual or average cost rather than that fees must be adopted for the processing of permits up to the actual or average costs (i.e., inferring that the county was mandated by law to charge actual or average costs). The permissive nature of fees for land use applications and land use appeals is straightforward when reviewing ORS 215.422(1)(c) which provides the permissive "may" for fees charged "no more than" the actual or average costs.

 

"The governing body may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon an appeal from a hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript.

VII. SUMMARY

Court ruling have established the following court law for land use application fees and and use appeal fees.

. Land use application fees and/or land use appeal fees are land use decisions.

. A decision to establish or raise land use application fees and/or land use appeal fees is appealable to LUBA as it has jurisdiction for land use decisions and limited land use decisions.

. Establishing or raising land use application fees and/or land use appeal fees are land use decisions, and the process to raise fees is subject to quasi-judicial land use proceedings, or the legislative process.

. Land use application fees and/or land use appeal fees are not "fiscal exceptions" to LUBA’s jurisdiction.

. Land use application fees and/or land use appeal fees must be reasonable and must be no more than the average or the actual costs.

. Land use application fees and/or local land use appeal fees are policy decisions and can be less than the maximum actual or average costs.

The level of analysis required to demonstrate compliance in determining actual or average costs for individual land use application fees and land use appeal fees requires providing substantial evidence that factually supports those costs. If the record included a focused representation by local government regarding the average or actual costs, the local government’s determination of actual or average cost for individual land use application fees and land use appeal fees would be reasonable, unless some opposing evidence had been submitted to rebut that representation.

The local government is in the best position to provide estimates of staff time costs and other significant costs to support the determination of average or actual costs of individual land use application fees and land use appeal fees. When local governments provide a particularized effort to explain why the fees do not exceed the average or actual costs, it might be appropriate for the government to fault petitioner for not attempting to refute that testimony. Without a focused representation (i.e., cost analysis), the relevant question is whether a reasonable person would conclude that fees will not exceed the average or actual costs of individual land use application fees and land use appeal fees. If the governing body does not cite, and if the courts are subsequently unable to find the "representation" that findings rely on, the courts will rule that a reasonable person would not reach the conclusion that fees will not exceed the average or actual costs of individual land use application fees and land use appeal fees.

Petitioners’ standing cannot be resolved until the record is filed; without the record it is impossible to resolve the parties’ dispute over whether all of the petitioners satisfied the standing requirements.

Appendix A - Citizen Appeal Of Josephine County’s Increase of Fees:
Josephine County Order No. 2006-125

Several citizens in Josephine County, Oregon have appealed to the Oregon Land Use Board of Appeals (LUBA) the county’s third increase in user and permits fees, in as many years, without any analysis of actual or average costs supporting the increases (S ommer v. Josephine County, __ Or LUBA __ LUBA No. 2006-150, August 14, 2006, Notice of Intent to Appeal).

"Notice is hereby given that petitioners intend to appeal the land use decision of Respondent entitled: Order No. 2006-125 In the Matter of Uniform Procedure for Setting Fees Charged by County: Provision of Planning Permits and Services; Adopting Fee Schedule"

A Petitioners’ settlement proposal dated December 2006 is based on their core interest of reducing land use appeal fees from the current $1,500 level to the 2003 level of $250 (Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, December 2006, Petitioners’ Settlement Proposal). Without a settlement Petitioners plan to appeal to LUBA all land use application fees and land use appeal fees. Petitions made the following informal settlement proposal to initiate dialogue between the parties; they will agree to dismiss their appeal to LUBA if Josephine County agrees to the following:

1. the County will roll back all land use appeal fees to its 2003 level of $250,

2. the County will reimburse difference in fees it collected since the first fee increase,

3. specifically the County will reimburse fees in full it collected for appeals which move to the Circuit Court through Write of Mandamus Action because the County failed to meet the statutory deadline and did not incur the cost of an appeals hearing, and

4. the County will hold all land use appeal fees at $250 as a sign of its support for Oregon Statewide Goal 1 - Citizen Involvement and its own citizen involvement program (Josephine County Ordinance 93-13).

User fees dedicated to the user through the county’s "current planning" function are required to be no more than the actual or average cost of providing that service. A change to user fees should not be undertaken until some effort has been made to develop a real assessment study designed to address the issue of actual or average costs.

Fee surveys of other adjacent counties does not satisfy the law, nor are they reliable, as there are many factors that affect how and why other communities have set their fees at "their" levels. For example, many communities have established their own policies that some services are a benefit to the entire community rather than to special interests: public safety emergency response services such as police patrol services and fire suppression; maintaining and developing public facilities on a uniform, community-wide basis such as streets, parks, and general-purpose buildings; and providing social service programs, economic development activities, and planning services because they are clearly intended to serve the broader community. Where other counties have made these policies their associated services have very low cost recovery goals.

The following is the history of the Josephine County LUBA appeal as it has evolved to this point follows.

. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, November 2006, Petitioners’ Settlement Proposal.
. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, LUBA Order On Motion to Dismiss; http://www.oregon.gov/LUBA/ 2006Orders.shtml).
. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, October 19, 2006, Petitioners Response To Respondents’ Motion To Dismiss And Motion For Extension Of Time For Filing The Record).
. Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, September 1, 2006, Respondent’s Motion To Dismiss And Motion For Extension Of Time for Filing Record).
. Sommer v. Josephine County, __ Or LUBA __ LUBA No. 2006-150, August 14, 2006, Notice of Intent to Appeal).

A County Decision Regarding Local Land Use and Appeals Fees Is a Land Use Decision Subject to LUBA’s Jurisdiction - Court Rulings

. Landwatch Lane County v. Lane County, __ Or LUBA __ (LUBA No. 2006-039, June 26, 2006).
. Doty v. City of Bandon, 49 Or LUBA 411 (2005).
. Friends of Linn County v. City of Lebanon, 45 Or LUBA 408, 414-16 (2003).
. Friends of Yamhill County v. Yamhill County, 43 Or LUBA 270 (2002).
. Ramsey v. City of Portland, 29 Or LUBA 139 (1995).
. DLCD v. Jackson County, 21 Or LUBA 93 (1991).
. Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980).

Fiscal Decisions Excluded From LUBA’s Jurisdiction - Court Rulings

. Lewis v. City of Bend, 45 Or LUBA 122, 124 (2003).
. Jesinghaus v. City of Grants Pass, 42, Or LUBA 477, 483 (2002).
. Baker v. City of Woodburn, 37 Or LUBA 563, 568-69, aff’d 167 Or App 259, 4 P3d 775 (2000).
. The Petrie Company v. City of Tigard, 28 Or LUBA 535, 540 (1995).
. Housing Council v. City of Lake Oswego, 48 Or App 525, 617 P2d 655 (1980).

Appendix B - Sommer v. Josephine County, __ Or LUBA __ (LUBA No. 2006-150, September 1, 2006, Respondent’s Motion To Dismiss And Motion For Extension Of Time for Filing Record)

Appendix C - 1983 Senate Committee on Energy and Environment Hearings on
Amending House Bill 2295 (Exhibit 1)
 
Jon Christianson of the Oregon Shores Coastal Coalition testified that the City of Newport had required a transcript fee of $3,600 for an appeal. He presented a survey of appeals fees charged by selected jurisdictions, which averaged $75-$100. The amendment proposed would require that total fees, including filing fees and transcript fees, be reasonable, not exceed average or actual cost, and not exceed $500 (Exhibit 1, Exhibit 3, and Exhibit 4).
The Committee concurred that the amount charged for preparation of transcripts was outrageous. The committee discussion was focused on how to best address limiting transcript fees, since that was the major part of the appeal fee demanded by the City of Newport prior to hearing the merits of the case. However, transcript fees were not the only issue addressed by the Committee. The following, in relevant part, is from Senate Committee on Energy and Environment (Exhibit 1).
Gordon Fultz, League of Oregon Cities. "Gordon Fultz:" . . . ‘Our problem ___ concerns average, which would imply, if a court recorder were three times as expensive as what normally would be the case, that perhaps that would be unreasonable." . . . ". . . I guess we’d like to at least not have a limit on us. But I have no problem with imposing some kind of language that says we have to follow the actual cost, or some kind of . . ." Exhibit 1, page 4.
 
"Sen ?. If your talking about the cost of transcribing, that’s what you’re really talking about. ____ you’re going to have transcribed anyway, when there’s a contested case, and it appears the City of Newport decided to pick their total costs on the backs of citizens where there’s not even an appeal. That’s what this looks like. And, under any circumstances, Newport would have to add a copy of a transcript for their own use, and when you start passing out these transcripts, more than one party is going to use them, and citizens ought to have a right to a reasonable access to [a] transcript which they pay taxes for. Why shouldn’t they have some access to it as long as it isn’t mischief making?" Exhibit 1, page 5.
 
"Sen Day: _____ an appeal that was very outrageous. They charge $3600 ___. I guess they did, but it was sure a talon put on citizens." Exhibit 1, page 5.
 
Gordon Fultz, League of Oregon Cities. "Fultz:" . . . "Sen. Kitzhaber, Sen. Day, I’,m not here this evening to defend the particulars of the City of Newport’s actions, and I would certainly, and I know that my organization would have no problem with requiring fees charged for appeals of local actions to be reasonable, and to not exceed the actual or average cost. If you would like to augment the Oregon Shores Coalition’s proposed amendment by suggesting, by requiring that those fees charged shall be reasonable, and shall be no more than the actual or average cost of the appeal, we would be very comfortable with that. But you are not setting a ceiling limit on that, and yet our requiring that they be reasonable – and that does allow the parties to the action to contest the reasonableness of an extraordinary high charge." Exhibit 1, page 5.
 
"Sen Day: I don’t know how the rest of you feel, but [I] wouldn’t mind loooking [at] actual costs, and a reasonable ___, and a portion – if we’re going to use it, the city ought to help, the local jurisdiction ought to help pay for it." Exhibit 1, page 6.
 
"Sen ?: Mr. Chair, I agree with Sen. Day because I think Newport would have thought twice about how they were shooting up transcriber fees of $3600 if they were forced to pick up half the cost." Exhibit 1, page 6.
 
"Sen Starkovich: The amount of the fee, including the cost of preparation of a written transcript if one is prepared, shall be the actual cost of the appeal but shall not exceed $500." Exhibit 1, page 10.
 
Bob Stacey, 1000 Friends of Oregon. "Stacey:" "I think that’s one point in favor of the amendment, but it’s not what we ___ as it currently exists, with proviso that some kind of ___ for average cost fee schedules be part of the amendment. It’s the concern that one flaming example may encourage other decision-makers to use a newfound barrier. . . ." Exhibit 1, page 11.
 
"Sen. Cohen: the only other thing that I would add, I think that rather than let’s making it – if we have real concern about that they have to justify, if they go beyond." Exhibit 1, page 11.
 
"Sen. Day: ___ unless they can show actual cost, we’ve seen that, and it’s reasonable." Exhibit 1, page 11.
 
"Sen. Day: If we get one doesn’t, I guess. But I think it’s a pretty poor signal from the legislature that they aren’t going to run amok. And, obviously, going out hiring some court reporter at $3600 is crazy." Exhibit 1, page 11.
 
"Sen Day:" " . . If you force them to a formula that actually justifies the costs, whether it be for the costs of the transcripts or the appeal, or the combination thereof, I think that’s somewhat reasonable. . . ." Exhibit 1, page 11.
 
"Sen Cohen: They probably do anyway. I think they do, for the most part, eat the cost of those appeals. It’s part of doing business." Exhibit 1, page 11.
 
"Sen. Day: What I’m suggesting is that, taking the amount the Shores Coalition is [proposing] and saying, look, you can exceed $500 if the local jurisdiction can show cause, I mean really show actual cost, it’s gone beyond that." Exhibit 1, page 12.
 
Elizabeth Norman, Legislative Counsel. " Norman: I think it does it, but I would prefer to be able to make it more clear that just saying average or actual – the average doesn’ty make a lot of sense in there because unless they later ___ transcript fees, so I don’t think you ever have an average. So if you want to split it, and say an average fee and then actual transcripts, or just take average out, however, you want to do it. I know I wrote the language, but . . ." Exhibit 1, page 13.
 
"Chair Kitzhaber: Well, Senator ____ had a suggestion that if it exceeded $500 there would be some kind of apportionment of cost with the citizen and the jurisdiction." Exhibit 1, page 13.
 
"Sen. Cohen: That’s a third way tacked on. So we’re splitting it to make it, to make what she’s already drafted better. And then, "shall not exceed $500 except if the costs exceed $500 . . ." Exhibit 1, page 13.
 
"Sen. Hemby (?): Are you splitting the excess over $500 or are you splitting the whole transcript fee if . . ." Exhibit 1, page 13.
 
"Chair Kitzhaber: I think we’re splitting the excess over $500." Exhibit 1, page 13.

Appendix D - Authors

Hugo Land Use Committee
Hugo Neighborhood Association & Historical Society (Hugo Neighborhood Association)
Hal B. Anthony, Member
Hugo Land Use Committee
Hugo Neighborhood Association
3995 Russell Road
Grants Pass, Oregon 97526
541-476-4156
Email: threepines@jeffnet.org
Web Page: http://jeffnet.org/~hugo/
 
Wayne McKy, Member
Hugo Land Use Committee
Hugo Neighborhood Association
6497 Hugo Road
Grants Pass, Oregon 97526
541-476-4006
Web Page: http://jeffnet.org/~hugo/
 
Holger T. Sommer, Member
Hugo Land Use Committee
Hugo Neighborhood Association
2000 Hugo Rd.
Merlin, OR 97532
541-476-5744
Email: HolgerTSo@aol.com
Web Page: http://jeffnet.org/~hugo/
 
Mike Walker, Member
Hugo Land Use Committee
Hugo Neighborhood Association
3388B Merlin Rd #195
Grants Pass, Oregon 97526
541-471-8271
Email: hugo@jeffnet.org
Web Page: http://jeffnet.org/~hugo/
 
Goal One Coalition
Jim Just, Executive Director
Goal One Coalition
39625 Almen Drive
Lebanon OR 97355
541-258-6074
Email: Email: jim@goal1.org
Web Page: www.goal1.org
 
Holger T. Sommer, Director
Goal One Coalition
2000 Hugo Rd.
Merlin, OR 97532
541-476-5744
Email: HolgerTSo@aol.com
Web Page: www.goal1.org
 
Mike Walker, Director
Goal One Coalition
3388B Merlin Rd #195
Grants Pass, Oregon 97526
541-471-8271
Email: hugo@jeffnet.org
Web Page: www.goal1.org
 
Rogue Advocates
Spencer Lennard, Director
Rogue Advocates
P.O. Box 489
Williams, Oregon 97544
541-941-9242
Email: bigwildlife@gmail.com
 
Mike Walker, Director
Rogue Advocates
3388B Merlin Rd #195
Grants Pass, Oregon 97526
541-471-8271
Email: hugo@jeffnet.org

Exhibits

Exhibit 1. Meeting Minutes from Tape 189 A @ 281 for June 17, 1983 Hearing on House Bill (HB) 2295 Before the Senate Committee On Energy And Environment. 14 pages. Salem, OR.

Exhibit 2. Meeting Minutes from Tape 192 A @ 45 for June 29, 1983 Hearing on HB 2295 Before the Senate Committee On Energy And Environment. 2 pages. Salem, OR.

Exhibit 3. Oregon Shores Conservation Coalition Letter to Members of Senate Committee On Energy And Environment. May 26, 1983. Comments on HB 2295. 1 page. Rockaway, OR.

Exhibit 4. Oregon Shores Conservation Coalition Letter to Members of Senate Committee On Energy And Environment. June 15, 1983. Proposed Amendments to HB 2295. 4 pages. Rockaway, OR.

Exhibit 5. League of Women Voters of Oregon Letter to Members of Senate Committee On Energy And Environment. June 22, 1983. Proposed Amendments to HB 2295. 1 page. Salem, OR.

Exhibit 6. Oregon State Citizen Involvement Advisory Committee (CIAC) Memorandum to Oregon Land Conservation and Development Commission. January 18, 1983. Subject: Item 4.0: committee Report. CIAC investigated the appeal circumstances and found the fee and transcript charges to have been outrageous and unjustified, and one is a series of efforts to restrict citizen input and participation. 1 page. Salem, OR.

Exhibit 7. Senate Committee On Energy And Environment. July 12, 1983. Senate Amendments to House Bill 2295. 2 pages. Salem, OR.

Exhibit 8. Oregon Laws. 1983. ORS 92.046(1)(c).

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