OAR 660-046-0360: Review Process, Review Criteria and Appeal Process

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