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LEGISLATIVE HISTORY OF STATUTORY PROVISIONS REGULATING FEES FOR LOCAL APPEALS AND TRANSCRIPTS.     MARCH 2003

SUMMARY: LEGISLATIVE HISTORY of STATUTORY PROVISIONS REGULATING FEES for LOCAL APPEALS AND TRANSCRIPTS

March 2003

A. Current statutory language

ORS 215.422(1) and ORS 227.180(1) 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 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. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to $500. I lieu of a transcript prepared by the governing body and the fee therefor, 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."

B. Origins of fee and transcript provisions

1. First appearance of appeal fee and transcript fee limitations

Language providing for limitations on appeals and transcript fees were first proposed by the Oregon Shores Coastal Coalition in 1983 in the form of an amendment to HB 2295. The bill had been passed by the House and was before the Senate Committee on 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."

2. Reason for proposed amendment

The amendment was prompted by the fact that the City of Newport, in 1981, demanded over $3600 in filing and transcript fees from local citizens prior to hearing an appeal from the local planning commission. The State Citizen Involvement Advisory Committee investigated the appeal circumstances and found the fee and transcript charges to have been "outrageous and unjustified," and "one is a series of efforts by the City to restrict citizen input and participation[.]" (Report to the Land Conservation and Development Commission, January 18, 1983.)

C. Summary of Senate Committee on Energy and Environment hearings on HB 2295

Jon Christianson of the Oregon Shores Coastal Coalition testified that the City of Newport had required a transcript fee of $3600 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.

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 problem identified.

Appeal fees themselves were not seen to be a problem; as Senator Joyce Cohen stated. "I think the testimony substantiated the fact that it’s the transcripts that run up the cost." (See transcript, p. 12.)

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 – appeal fees and transcript fees – were separated.

Cities and counties were concerned that a ceiling not be imposed. The committee was determined that transcript fees not be 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 language that emerged from the committee and that was enacted into statute provided:

"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.)

D. 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 those of Dale Blanton, who presented the revisions on behalf of DLCD.

E. Summary and implications of legislative history

1. Abuses, then and now

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.

Appeal fees were not the focus of previous legislation, because the identified abuse had been with excessive transcript fees.

Current abuses with the imposition of excessive fees relate to appeal fees. For example, Lane County charges $3,010 for an appeal of a decision by a hearings official. The City of Portland has charged $3,567.50 for an appeal of a decision by a hearings officer.

2. What is "reasonable"?

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.

3. The "actual or average cost" standard

In 1983, the committee was concerned that local jurisdictions be able to establish fee schedules based on average administrative costs. The transcripts of the hearings indicate that the committee believed that parties would be able to challenge any excessive fees.

Subsequent cases have established that a local government’s fees cannot be challenged in a quasi-judicial proceeding. Such a challenge constitutes a collateral attack on a previous land-use decision. The only opportunity for challenging a local government’s appeal fees is to appeal the adopting ordinance to LUBA within the 21-day appeal period.

It is common practice for local jurisdictions 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.

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