Chapter 575 Oregon Laws 1999
Session Law
AN ACT
HB 2481
Relating to judicial review
of Land Use Board of Appeals orders; amending ORS 197.850.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 197.850 is amended to read:
197.850. (1) Any party to a proceeding before the Land Use
Board of Appeals under ORS 197.830 to 197.845 may seek judicial review of a
final order issued in those proceedings.
(2) Notwithstanding the provisions of ORS 183.480 to 183.550,
judicial review of orders issued under ORS 197.830 to 197.845 shall be solely
as provided in this section.
(3)(a) Jurisdiction for judicial review of proceedings under
ORS 197.830 to 197.845 is conferred upon the Court of Appeals. Proceedings for judicial review shall be instituted by
filing a petition in the Court of Appeals. The petition shall be filed within
21 days following the date the board delivered or mailed the order upon which
the petition is based.
(b) Filing of the petition, as set forth in paragraph (a) of
this subsection, and service of a petition on all persons identified in the
petition as adverse parties of record in the board proceeding is jurisdictional
and may not be waived or extended.
(4) The petition shall state the nature of the order the
petitioner desires reviewed. Copies of the petition shall be served by
registered or certified mail upon the board, and all other parties of record in
the board proceeding.
(5) Within seven days after service of the petition, the board
shall transmit to the court the original or a certified copy of the entire
record of the proceeding under review, but, by stipulation of all parties to
the review proceeding, the record may be shortened. Any party unreasonably
refusing to stipulate to limit the record may be taxed by the court for the
additional costs. The court may require or permit subsequent corrections or
additions to the record when deemed desirable. Except as specifically provided
in this subsection, the cost of the record shall not be taxed to the petitioner
or any intervening party. However, the court may tax such costs and the cost of
transcription of record to a party filing a frivolous petition for judicial review.
(6) Petitions and briefs shall be filed within time periods and
in a manner established by the Court of Appeals by rule.
(7)(a) [Within 42 days of the date of transmittal of
the record, the court shall hear oral argument on the petition.] The court shall hear oral argument within
49 days of the date of transmittal of the record.
(b) The court may hear oral
argument more than 49 days from the date of transmittal of the record provided
the court determines that the ends of justice served by holding oral argument
on a later day outweigh the best interests of the public and the parties. The
court shall not hold oral argument more than 49 days from the date of
transmittal of the record because of general congestion of the court calendar
or lack of diligent preparation or attention to the case by any member of the
court or any party.
(c) The court shall set
forth in writing a determination to hear oral argument more than 49 days from
the date the record is transmitted, together with the reasons for its
determination, and shall provide a copy to the parties. The court shall
schedule oral argument as soon as practicable thereafter.
(d) In making a
determination under paragraph (b) of this subsection, the court shall consider:
(A) Whether the case is so
unusual or complex, due to the number of parties or the existence of novel
questions of law, that 49 days is an unreasonable amount of time for the
parties to brief the case and for the court to prepare for oral argument; and
(B) Whether the failure to
hold oral argument at a later date likely would result in a miscarriage of
justice.
(8) Judicial review
of an order issued under ORS 197.830 to 197.845 shall be confined to the
record. The court shall not substitute its judgment for that of the board as to
any issue of fact.
(9) The court may affirm, reverse or remand the order. The
court shall reverse or remand the order only if it finds:
(a) The order to be unlawful in substance or procedure, but
error in procedure shall not be cause for reversal or remand unless the court
shall find that substantial rights of the petitioner were prejudiced thereby;
(b) The order to be unconstitutional; or
(c) The order is not supported by substantial evidence in the
whole record as to facts found by the board under ORS 197.835 (2).
(10) The Court of Appeals shall issue a final order on the
petition for judicial review with
the greatest possible expediency.
(11) If the order of the board is remanded by the Court of
Appeals or the Supreme Court, the board shall respond to the court's [mandate] appellate judgment within 30 days.
(12) A party shall file with the board an undertaking with one
or more sureties insuring that the party will pay all costs, disbursements and
attorney fees awarded against the party by the Court of Appeals if:
(a) The party appealed a decision of the board to the Court of
Appeals; and
(b) In making the decision being appealed to the Court of
Appeals, the board awarded attorney fees and expenses against that party under
ORS 197.830 (14)(b).
(13) Upon entry of its final order, the court shall award
attorney fees and expenses to a party who prevails on a claim that an approval
condition imposed by a local government on an application for a permit pursuant
to ORS 215.416 or 227.175 is unconstitutional under section 18, Article I,
Oregon Constitution, or the Fifth Amendment to the United States Constitution.
(14) The undertaking required in subsection (12) of this
section shall be filed with the board and served on the opposing parties within
10 days after the date the petition was filed with the Court of Appeals.
Approved by the Governor
July 8, 1999
Filed in the office of
Secretary of State July 9, 1999
Effective date October 23,
1999
__________