Notice of Proposed Rulemaking
LUBA is proposing to amend some of its administrative rules. The proposed amendments are necessary to conform LUBA’s rules to House Bill (HB) 2110 (2021), which generally increases the appeal filing fee and eliminates the requirement that appealing parties pay a deposit for costs and which LUBA anticipates will be passed by the Legislature and signed by the Governor this session. Below is a link to our website, which contains the notice of proposed rulemaking and a statement of need and fiscal impact, as required by ORS 183.335(1) and (2), as well as the text of the proposed rule amendments:
Comments may be submitted via email at LUBASupport@oregon.gov. Please include “Comments on Proposed Rule Amendments” in the subject line. Comments may also be submitted via U.S. mail at Land Use Board of Appeals, 775 Summer Street NE, Suite 330, Salem, Oregon 97301-1283. Comments will be accepted until 5:00 p.m. on June 11, 2021.
House Bill 2110
LUBA is introducing House Bill (HB) 2110 for the 2021 legislative session.
Currently, a Notice of Intent to Appeal (NITA) a land use decision to LUBA must “be accompanied by a filing fee of $200 and a deposit for costs to be established by the board.” ORS 197.830(9). The deposit for costs is currently $200, established by rule.
HB 2110 amends ORS 197.830 in two ways. First, it increases the filing fee from $200 to $300. LUBA’s filing fee was originally $50, when the agency was created in 1979. The last increase to the filing fee was 11 years ago in 2009, when the Legislature increased the filing fee from $175 to $200. An increase in the filing fee from $200 to $300 for the first time in 11 years is a reasonable increase given inflation. For comparison, the filing fee for state circuit courts is $263 and the filing fee for the Court of Appeals is $391.
Second, HB 2110 eliminates the requirement that a NITA be accompanied by a deposit for costs. LUBA currently has discretion to award the $200 deposit for costs to a successful local government. In practice, in the majority of cases where the local government is the prevailing party, the local government does not seek an award of the deposit for costs. Consequently, the $200 deposit for costs is returned to the petitioner at the conclusion of an appeal. The administrative costs of this practice to the agency far outweigh any benefit to the local government of receiving a check directly from LUBA for the cost of preparing the local record. Rather than having those costs paid from the deposit held by LUBA, LUBA will amend its procedural rules concurrent with this legislation to provide that, when the local government is the prevailing party and seeks reimbursement for the cost of preparing the record, LUBA will award the local government up to $200 to be paid directly by the petitioner/losing party. This will largely eliminate the need for accounting by agency staff, allowing LUBA staff to focus more attention on duties that allow the agency to meet its statutory deadlines to resolve land use appeals. The state courts long ago ceased collecting a deposit for costs.
Below is a link to the Oregon Legislative Information System, which contains the text of HB 2110, an overview, measure history, and scheduled events:
Novel Coronavirus (COVID-19) Update
To help slow and prevent the spread of COVID-19, and protect employees and the public, LUBA will be changing the way it provides services at its office in Salem. Offices will remain open, however state buildings are closed to public access, the public may contact LUBA staff by phone and email during regular business hours. Response to phone and email inquiries may be delayed. LUBA staff will endeavor to respond to messages within two business days. In-person interactions between staff and the public will be by appointment only.
LUBA will move to an appointment-only system for in person filings under OAR 661-010-0025(2)(a) (transmittal of record) and OAR 661-010-0075(2)(a)(B)(i) (filing of documents with the Board), effective Tuesday, March 24, 2020, until further notice. Appointments must be confirmed with LUBA at least four (4) hours before the requested appointment time. Appointments may be made by emailing LUBASupport@oregon.gov or calling 503-373-1265. LUBA will confirm an appointment is available as soon as practicable. Failure to arrive within 15 minutes after an appointment time will result in cancellation of the appointment and will require rescheduling.
Filings by first class mail with the United States Postal Service under OAR 661-010-0075(2)(a)(B)(ii) are not affected by this change.
Oregon LUBA Reports Volume 79
LUBA is now publishing Oregon LUBA Reports Volume 79. If you wish to order Volume 79, please complete this order form and sent it to LUBA with your check for $175.00 per volume.