Chapter 197

 

      Chapter 197

 

NOTES OF DECISIONS

 

      A comprehensive plan, although denominated a “resolution,” is the controlling land use planning instrument for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

 

      Procedural requirements of the state-wide planning goals adopted by the Land Conservation and Development Commission are not applicable to ordinances adopted before the effective date of the goals. Schmidt v. Land Conservation and Development Comm., 29 Or App 665, 564 P2d 1090 (1977)

 

      This chapter, establishing LCDC and granting it authority to establish state-wide land use planning goals, does not unconstitutionally delegate legislative power where both standards (ORS chapter 215) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

 

      Where county’s comprehensive plan and land use regulations had not been acknowledged by LCDC, it was proper for county to apply state-wide planning standards directly to individual request for partition. Alexanderson v. Polk County Commissioners, 289 Or 427, 616 P2d 459 (1980)

 

      Issuance of a building permit was a “land conservation and development action” where county had no acknowledged comprehensive plan, land was not zoned and no previous land use decision had been made regarding the land. Columbia Hills v. LCDC, 50 Or App 483, 624 P2d 157 (1981), Sup Ct review denied

 

      Nothing in this chapter grants the Land Conservation and Development Department authority to challenge local land use decisions made after comprehensive plan acknowledgment. Ochoco Const. v. LCDC, 295 Or 422, 667 P2d 499 (1983)

 

      LCDC has authority in periodic review process to require local government to add specific language or provisions to its land use legislation to assure compliance with statewide goals and LCDC rules. Oregonians in Action v. LCDC, 121 Or App 497, 854 P2d 1010 (1993), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Authority of a land conservation and development commission to bind the state in an interstate compact or agreement, (1973) Vol 36, p 361; application of Fasano v. Bd. of County Commrs., (1974) Vol 36, p 960; state-wide planning goal in conjunction with interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; binding effect on governmental agencies of the adoption of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; application to state agencies, (1976) Vol 37, p 1129; preexisting ordinances during the interim implementing stage, (1976) Vol 37, p 1329; constitutionality of delegation to LCDC of authority to prescribe and enforce statewide planning goals, (1977) Vol 38, p 1130; effect of situation where similar petition is filed before both commission and a court, (1977) Vol 38, p 1268; consideration of availability of public school facilities in determination of whether to approve subdivision, (1978) Vol 38, p 1956

 

LAW REVIEW CITATIONS: 10 WLJ 99 (1973); 53 OLR 129 (1974); 5 EL 673 (1975); 54 OLR 203-223 (1975); 56 OLR 444 (1977); 18 WLR 49 (1982); 61 OLR 351 (1982); 20 WLR 764 (1984); 14 EL 661, 693, 713, 779, 843 (1984); 25 WLR 259 (1989); 31 WLR 147, 449, 817 (1995); 36 EL 25 (2006); 49 WLR 411 (2013)

 

      197.005 to 197.430

 

LAW REVIEW CITATIONS: 10 WLJ 414-421, 474, 475 (1974); 56 OLR 270 (1977)

 

      197.005

 

NOTES OF DECISIONS

 

      Rules governing re-application for, and reconsideration of, comprehensive plan in zone changes and interpretation of those rules are “local aspects of land conservation and development” which legislature left to local governments and doctrine of res judicata does not bar reconsideration of comprehensive plan and zoning amendments after LCDC determination of invalidity. Kite Ranches v. Shipsey, 53 Or App 833, 632 P2d 1355 (1981), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Referendum power against a county “comprehensive plan” or a zoning ordinance, (1974) Vol 36, p 1044. Land Conservation and Development Commission role in coastal zone planning report process, (1975) Vol 37, p 409

 

      197.010

 

LAW REVIEW CITATIONS: 85 OLR 815 (2006)

 

      197.013

 

LAW REVIEW CITATIONS: 18 WLR 75 (1982)

 

      197.015

 

NOTES OF DECISIONS

 

      A comprehensive plan is the controlling land use planning instrument for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975); distinguished in Green v. Hayward, 275 Or 693, 552 P2d 815 (1976)

 

      This section indicates legislative intent that comprehensive plans contain summaries, couched in broad terms, of land use policies. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978); Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)

 

      As policies relating to sewers are within category of policies which county is empowered to include within its comprehensive plan, local sewer district plan is not comprehensive plan within meaning of this section and sanitary district’s policy-making role is subordinate to county’s, county did not exceed its authority in not conforming its comprehensive plan to that of sanitary district. Jackson County v. Bear Creek Authority, 53 Or App 823, 632 P2d 1349 (1981), aff’d 293 Or 121, 645 P2d 532 (1982)

 

      School district’s decision to close school was not “land use decision” within meaning of this section. Westside Neighborhood v. School Dist. 4J, 58 Or App 154, 647 P2d 962 (1982), Sup Ct review denied

 

      Circuit court lacked jurisdiction over declaratory judgment action to review local government’s decision that defendants had vested right to continue nonconforming use because the decision was a “land use decision” under this section, reviewable exclusively by Land Use Board of Appeals; overruling to extent of inconsistency, Eagle Creek Rock Products v. Clackamas County, 27 Or App 371, 556 P2d 150 (1976), 1000 Friends of Oregon v. Clackamas County Commission, 29 Or App 617, 564 P2d 1080 (1977) and Eklund v. Clackamas County, 36 Or App 73, 583 P2d 567 (1978). Forman v. Clatsop County, 63 Or App 617, 665 P2d 365 (1983), aff’d297 Or 129, 681 P2d 786 (1984)

 

      City council resolution determining that petitioner had no vested right to continue to operate elementary school on church premises was land use decision under this section. Medford Assembly of God v. City of Medford, 64 Or App 815, 669 P2d 1161 (1983), aff’d 297 Or 138, 681 P2d 790 (1984)

 

      Denial of building permit may be land use decision under this section, which LUBA has exclusive jurisdiction to review, if it involves application of goal, comprehensive plan or zoning ordinance or may not be land use decision if it is ministerial decision or involves application of subdivision law. Bell v. Klamath County, 77 Or App 131, 711 P2d 209 (1985)

 

      Decision authorizing incorporation election is final decision for purposes of “land use decision” definition. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)

 

      Local road vacation decisions are not automatically “land use decisions”; if decision will have significant impact on present or future land uses it is land use decision and LUBA has jurisdiction. Billington v. Polk County, 299 Or 471, 703 P2d 232 (1985)

 

      Provision defining limits on parking spaces is “guideline” in city’s comprehensive plan and application is therefore not mandatory. Downtown Comm. Assoc. v. City of Portland, 80 Or App 336, 722 P2d 1258 (1986), Sup Ct review denied

 

      Because county’s ordinance did not contain “clear and objective standards” for determining whether farm dwelling for which building permit was sought was one “customarily provided in conjunction with farm use,” as required by ordinance, approval of permit was not ministerial decision and was not removed from LUBA’s review jurisdiction by this section. Doughton v. Douglas County, 82 Or App 444, 728 P2d 887 (1986), Sup Ct review denied

 

      LUBA properly dismissed appeal of land use decision because it was not “final” and did not come within “significant impact” test devised by Supreme Court as alternative basis for jurisdiction. Hemstreet v. Seaside Improvement Commission, 93 Or App 73, 761 P2d 533 (1988)

 

      Where Metro’s recommendation for freeway corridor in its Regional Transportation Plan was contingent on subsequent decisions aimed at determining or achieving compliance with statewide land use planning goals, it was not final appealable land use decision. Sensible Transportation v. Metro Service Dist., 100 Or App 564, 787 P2d 498 (1990), Sup Ct review denied

 

      LUBA erred in granting city’s motion to dismiss appeal based on lack of jurisdiction without factual determination as to whether city’s approval of subdivision was “consistent with land use standards.” Southwood Homeowners v. City Council of Philomath, 106 Or App 21, 806 P2d 162 (1991)

 

      Under this statute and ORS 197.825, circuit court authority ends and exclusive land use decisional process begins where granting or denial of permit involves exercise of judgment or interpretation of ordinance, rather than mere ministerial application of ordinance that requires no interpretation or judgment. Campbell v. Bd. of County Commissioners, 107 Or App 611, 813 P2d 1074 (1991)

 

      Where city, which was asked by petitioners for interpretation of its previous decision approving petitioners’ applications for preliminary and final development plan approval and conditional use permit, took no action on request except to discuss it and memorialize consensus opinion in administrator’s letter to petitioners, there was no land use decision subject to review. Owen Development Group, Inc. v. City of Gearhart, 111 Or App 476, 826 P2d 1016 (1992)

 

      Where recommendation effectively amends or is contrary to recommending body’s own plan and can be carried out without further action by recommending body, recommendation is final land use decision. Central Eastside Industrial Council v. City of Portland, 128 Or App 148, 875 P2d 482 (1994)

 

      In determining whether recommendation effectively amends or is contrary to recommending body’s own plan, applicability of plan’s general policy provisions is to be considered. Central Eastside Industrial Council v. City of Portland, 137 Or App 554, 905 P2d 265 (1995)

 

      Where determination by local government was appealed to local body lacking jurisdiction to review, status of local government determination as final land use decision was not altered by appeal to local body. Franklin v. Deschutes County, 139 Or App 1, 911 P2d 339 (1996)

 

      To be excluded from definition of “land use decision,” action in response to “writ of mandamus” must be in response to peremptory writ, not alternative writ. Murphy Citizens Advisory Committee v. Josephine County, 325 Or 101, 934 P2d 415 (1997)

 

      Annexation decision is “land use decision.” Cape v. City of Beaverton, 187 Or App 463, 68 P3d 261 (2003)

 

      Exemption from land use regulation for gathering “not anticipated to continue for more than 120 hours in any three-month period” allows only one gathering within period. Landsem Farms, LP v. Marion County, 190 Or App 120, 78 P3d 103 (2003)

 

      Surveyor’s checking of subdivision or partition plat under ORS 92.100 for compliance with state laws and local ordinances or resolutions is limited land use decision. Hammer v. Clackamas County, 190 Or App 473, 79 P3d 394 (2003), Sup Ct review denied

 

      Definition of “comprehensive plan” does not prohibit regional framework plan from performing some of same functions. City of Sandy v. Metro, 200 Or App 481, 115 P3d 960 (2005)

 

      Local government “has already made a land use decision authorizing a use or activity that encompasses” proposed state agency action if proposed state agency action is based on past land use decision that authorized particular use or activity and if that use or activity brings within or includes proposed state agency action. McPhillips Farm, Inc. v. Yamhill County, 256 Or App 402, 300 P3d 299 (2013)

 

ATTY. GEN. OPINIONS: Educational system policy statements as appropriate elements of county comprehensive plans, (1978) Vol 38, p 1713; consideration of availability of public school facilities in determining whether to approve subdivision, (1978) Vol 38, p 1956; effect of subdivision approval on school district, (1979) Vol 39, p 734

 

LAW REVIEW CITATIONS: 18 WLR 60 (1982); 19 EL 63 (1988); 68 OLR 984 (1989); 93 OLR 455 (2014)

 

      197.030

 

ATTY. GEN. OPINIONS: Appointment to commission of member of a county court retaining judicial jurisdiction, (1977) Vol 38, p 1288

 

LAW REVIEW CITATIONS: 10 WLJ 416 (1974)

 

      197.040

 

NOTES OF DECISIONS

 

      In statutory scheme, statewide planning goals occupy preferred position over rules, and legislative intent is that goals cannot be indirectly repealed or amended by exercise of LCDC’s general rulemaking power. Willamette University v. LCDC, 45 Or App 355, 608 P2d 1178 (1980)

 

      Rulemaking authority does not prevent LCDC from selecting specific remedy without first adopting remedy by rule. Jackson County v. LCDC, 132 Or App 302, 888 P2d 98 (1995), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Preparation of land use inventories, (1976) Vol 37, p 1324

 

      197.075

 

LAW REVIEW CITATIONS: 10 WLJ 415 (1974); 5 EL 719 (1975)

 

      197.160

 

LAW REVIEW CITATIONS: 10 WLJ 416 (1974)

 

      197.175

 

NOTES OF DECISIONS

 

      A comprehensive plan is the controlling land use planning instrument for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975); distinguished in Green v. Hayward, 275 Or 693, 552 P2d 815 (1976)

 

      In determining whether zoning amendments are consistent with the comprehensive plan, the plan must be read as a whole, for the plan map alone is not necessarily controlling. Green v. Hayward, 275 Or 693, 552 P2d 815 (1976)

 

      City’s decision to annex land outside its existing borders was exercise of city’s “planning responsibilities” within meaning of this section, and thus initial threshold determination of whether proposed annexation was consistent with state-wide planning goals was determination which was quasi-judicial in nature. Petersen v. Klamath Falls, 279 Or 249, 566 P2d 1193 (1977)

 

      Statewide planning goals apply to requests to partition land. Jurgenson v. Union County Court, 42 Or App 505, 600 P2d 1241 (1979)

 

      Though sewer authority alleged statutory responsibility for planning sewer systems, precluding county from adopting conflicting sewer policies in its comprehensive plan, county had authority, under this section, consistent with state-wide planning goals, to adopt its own policies relating to sewer systems. Jackson County v. Bear Creek Authority, 293 Or 121, 645 P2d 532 (1982)

 

      Legislature intended that county, in connection with proposed incorporation, must conduct meaningful inquiry as to all LCDC goals to extent possible. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)

 

      Under this section, an urban growth boundary is established when acknowledged. Perkins v. City of Rajneeshpuram, 300 Or 1, 706 P2d 949 (1985)

 

      Only after acknowledgment can city make land use decisions under comprehensive plan implementing ordinances and urban growth boundary. Perkins v. City of Rajneeshpuram, 300 Or 1, 706 P2d 949 (1985)

 

      When amendment to Metro’s urban growth boundary is totally controlled, in substance and procedure, by acknowledged land use regulation, amendment could not be independently reviewed for compliance with statewide land use planning goals. League of Women Voters v. Metro. Service Dist., 99 Or App 333, 781 P2d 1256 (1989), Sup Ct review denied

 

      When regulation contained internal requirement that regulation’s application to particular sites comply with statewide goals, city had to demonstrate compliance with statewide goals even though decision was made under acknowledged land use regulation. Blatt v. City of Portland, 109 Or App 259, 819 P2d 309 (1991), Sup Ct review denied

 

      Land developer’s “Comprehensive Plan and Zoning Map Amendment” proposing development of destination resort was action under county’s acknowledged comprehensive plan and was therefore not reviewable for Goal 8 compliance. Foland v. Jackson County, 311 Or 167, 807 P2d 801 (1991)

 

      Adoption of comprehensive plan designation may precede adoption of zoning and other implementing legislation necessary for future use. Neighbors for Livability v. City of Beaverton, 168 Or App 501, 4 P3d 765 (2000)

 

      Change to urban growth boundary based on land need must be based on both long-term need and need related to categories such as housing or employment opportunities. DLCD v. City of Klamath Falls, 290 Or App 495, 416 P3d 326 (2018)

 

ATTY. GEN. OPINIONS: Consideration of availability of public school facilities in determining whether to approve subdivision, (1978) Vol 38, p 1956

 

LAW REVIEW CITATIONS: 10 WLJ 400 (1974); 19 EL 61 (1988); 93 OLR 455 (2014)

 

      197.180

 

NOTES OF DECISIONS

 

      As agency actions under ORS 222.850 to 222.915, relating to public health annexations, have no relation to land use this section has no application to actions under those statutes. West Side Sanitary Dist. v. Health Div., 42 Or App 755, 601 P2d 858 (1979), aff’d as modified 289 Or 417, 614 P2d 1151 (1980)

 

      Health Division order issued pursuant to ORS 222.880 is not action “authorized by law with respect to programs affecting land use” under this section, so Division need not consider state-wide planning goals in reaching its decision. West Side Sanitary Dist. v. LCDC, 289 Or 393, 614 P2d 1141 (1980)

 

      Certification of Environmental Quality Commission pursuant to ORS 222.898 is not action required by this section to be made in accordance with statewide planning goals. West Side Sanitary Dist. v. LCDC, 289 Or 409, 614 P2d 1148 (1980)

 

      LCDC’s rule permitting state agencies to rely on statements of land use consistency adopted by other jurisdictions is not in conflict with this section. Schreiner’s Gardens v. DEQ, 71 Or App 381, 692 P2d 660 (1984)

 

      Where plaintiffs had opportunity to appeal county’s siting decision directly, plaintiff could not later appeal decision in another appeal concerning issuance of permits for activity to be conducted on site. Schreiner’s Gardens v. DEQ, 71 Or App 381, 692 P2d 660 (1984)

 

      State agency publication advising personnel of agency’s position and how to participate in local land use proceedings was not required to be included in agency’s program under this section. Oregonians in Action v. LCDC (Fish and Wildlife), 108 Or App 307, 814 P2d 561 (1991)

 

      Although this section requires compatibility with statewide planning goals and acknowledged local plans and regulations, compliance with acknowledged plans and regulations generally coincides with compatibility with goals and separate showing of compatibility with goals is not required in every case. 1000 Friends of Oregon v. LCDC (Forestry/Trans.), 111 Or App 491, 826 P2d 1023 (1992), Sup Ct review denied

 

      Programs administered by Department of Revenue that allow preferential assessment for farm and forest land are not “programs affecting land use” and are not subject to requirement of statewide goal and local comprehensive plan compliance under this section. Springer v. LCDC, 111 Or App 262, 826 P2d 54 (1992), Sup Ct review denied

 

      Use incidental to outright permitted use, but not included in original permit for outright permitted use, requires separate final determination of compatibility that is subject to LUBA review. Knee Deep Cattle Co. v. Lane County, 133 Or App 120, 890 P2d 449 (1995)

 

ATTY. GEN. OPINIONS: Nonapplicability of this section to water service territory applications, (1976) Vol 38, p 490; interpretation of compatibility obligation imposed under this section, (1986) Vol 45, p 98; extension of 90-day review period, (1986) Vol 45, p 98

 

LAW REVIEW CITATIONS: 5 EL 664 (1975); 14 EL 765 (1984); 93 OLR 455 (2014)

 

      197.185

 

      See annotations under ORS 195.020.

 

      197.190

 

      See annotations under ORS 195.025.

 

      197.195

 

NOTES OF DECISIONS

 

      For decisions that cannot be based on comprehensive plan provisions, “appeal from that decision” refers to appeals to LUBA or courts from final city or county decision. Holland v. City of Cannon Beach, 142 Or App 5, 920 P2d 562 (1996)

 

      1995 amendment proscribing LUBA consideration of plan provisions not incorporated into local government regulation applies to appeal from local government decision rendered prior to effective date of amendment. Holland v. City of Cannon Beach, 142 Or App 5, 920 P2d 562 (1996)

 

      197.225 to 197.277

 

NOTES OF DECISIONS

 

      Where county did not treat identifiable and apparent conflicting uses as being such and did not undertake necessary analysis, conflict resolution and program development that would follow from their identification, but essentially avoided that process by assuming chain of events beyond its control would occur and might prevent or limit conflicting uses without regulatory intervention by county, county did not follow process that Goal 5 and OAR 660-16-000 et seq. require. Audubon Society of Portland v. LCDC, 92 Or App 496, 760 P2d 271 (1988), Sup Ct review denied

 

      197.225

 

NOTES OF DECISIONS

 

      Statewide planning goals apply to requests to partition land. Jurgenson v. Union County Court, 42 Or App 505, 600 P2d 1241 (1979)

 

      In statutory scheme, statewide planning goals occupy preferred position over rules, and legislative intent is that goals cannot be indirectly repealed or amended by exercise of LCDC’s general rulemaking power. Willamette University v. LCDC, 45 Or App 355, 608 P2d 1178 (1980)

 

      Amendment to land use goal which designated all land within municipal boundaries of a city as urban or urbanizable land regardless of actual nature or use of land exceeded LCDC’s delegated authority because it required local governments to make all land within city available for development without regard to general policies of land use planning scheme. 1000 Friends v. LCDC, 292 Or 735, 642 P2d 1158 (1982)

 

LAW REVIEW CITATIONS: 77 OLR 813 (1998)

 

      197.230

 

NOTES OF DECISIONS

 

      This section, enacted in 1977, was inapplicable to LCDC goal effective in 1975. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

 

      Amendment to land use goal which designated all land within municipal boundaries of a city as urban or urbanizable land regardless of actual nature of use of the land was invalid in requiring local governments to make all land within city available for development without regard to general policies of land use planning scheme. 1000 Friends v. LCDC, 292 Or 735, 642 P2d 1158 (1982)

 

LAW REVIEW CITATIONS: 31 WLR 449 (1995); 77 OLR 813 (1998)

 

      197.235

 

LAW REVIEW CITATIONS: 36 EL 79 (2006)

 

      197.245

 

NOTES OF DECISIONS

 

      LCDC’s finding of compelling reasons for early implementation of amendment of goal is part of amendment, not separate land use decision subject to LUBA’s jurisdiction. Oregonians in Action v. LCDC, 103 Or App 35, 795 P2d 1098 (1990)

 

      197.250

 

NOTES OF DECISIONS

 

      Statewide planning goals apply to requests to partition land. Jurgenson v. Union County Court, 42 Or App 505, 600 P2d 1241 (1979)

 

ATTY. GEN. OPINIONS: Enforceability of noncomplying local regulations, (1975) Vol 37, p 983; application of Coastal Shorelands planning goals to issuance of city building permits, (1977) Vol 38, p 895; Land Conservation and Development Commission review of county land use legislation adopted by initiative, (1980) Vol 41, p 230

 

LAW REVIEW CITATIONS: 5 EL 664 (1975); 68 OLR 983 (1989)

 

      197.251

 

NOTES OF DECISIONS

 

      Acknowledgment provisions of this section were not controlled by time limitation of former ORS 197.300 (2), so LCDC review of goal exception granted more than 60 days prior to filing of appeal in Court of Appeals was proper. Woodcock v. LCDC, 51 Or App 577, 626 P2d 901 (1981), Sup Ct review denied

 

      LCDC acknowledgment orders issued pursuant to this section are neither “contested case” orders nor “rules” for purposes of judicial review and are properly classified as “orders other than contested cases” which are subject to judicial review by the circuit court. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

 

      Where continuance order specifies whether plan or implementing regulations or both comply with certain state-wide planning goals, only that express finding of compliance is reviewable and court will not search supporting document to ascertain an implied finding of compliance. 1000 Friends of Oregon v. Marion Co., 56 Or App 755, 643 P2d 652 (1982)

 

      Judicial review of continuance order is authorized with respect to one or more state-wide planning goals only where entire plan or all regulations, or both, are explicitly found to comply. 1000 Friends of Oregon v. LCDC, 56 Or App 759, 643 P2d 654 (1982)

 

      LCDC may only acknowledge comprehensive plan if it finds that plan fully complies with all applicable goals. Marion County v. Federation for Sound Planning, 64 Or App 226, 668 P2d 406 (1983)

 

      LCDC must respond to objections to an acknowledgment request that are properly made and timely filed. Marion County v. Federation for Sound Planning, 64 Or App 226, 668 P2d 406 (1983)

 

      It is implicit in authority of this section that LCDC may satisfy self that entity seeking compliance review is a formally incorporated city at time review is requested, however LCDC does not have authority to decide in acknowledgment proceeding how city may subsequently lose corporate status or what consequences of that loss would be. City of Rajneeshpuram v. LCDC, 76 Or App 55, 708 P2d 1152 (1985)

 

      City could not rely on adopted urban growth boundary in converting agricultural land to urban uses before comprehensive plan containing urban growth boundary was acknowledged by LCDC. Perkins v. City of Rajneeshpuram, 300 Or 1, 706 P2d 949 (1985)

 

      Continuance order is not final order for purpose of judicial review with respect to part of plan and regulations not complying with goals. Products Management Corp. v. LCDC, 78 Or App 204, 715 P2d 1125 (1986), Sup Ct review denied

 

      Land Conservation and Development Commission’s promulgating goals of agency and monitoring compliance did not comport with judicial role, but supported finding that these activities were executive functions for purposes of determining absolute immunity from property owners’ action. Zamsky v. Hansell, 933 F2d 677 (9th Cir. 1991)

 

ATTY. GEN. OPINIONS: Effect of LCDC’s granting partial acknowledgment of comprehensive plan, (1980) Vol 40, p 274

 

      197.295 to 197.307

 

LAW REVIEW CITATIONS: 18 WLR 75 (1982); 61 OLR 351 (1982)

 

      197.296

 

NOTES OF DECISIONS

 

      In urban growth boundary amendment process, no single land use goal factor is determinative or acts as threshold requirement to be met. Citizens Against Irresponsible Growth v. Metro, 179 Or App 12, 38 P3d 956 (2002)

 

LAW REVIEW CITATIONS: 93 OLR 455 (2014)

 

      197.298

 

NOTES OF DECISIONS

 

      Consideration of statutory factors for urbanization priority does not meet requirement of land use goal to consider agricultural land retention priority. 1000 Friends of Oregon v. Metro, 174 Or App 406, 26 P3d 151 (2001)

 

      Whether higher priority land is “inadequate” to accommodate amount of land needed within proposed urban growth boundary is determined by suitability of land in addition to quantity of land. City of West Linn v. Land Conservation and Development Commission, 201 Or App 419, 119 P3d 285 (2005)

 

      City must determine its separate land use needs by specific type and density rather than by broad, generic needs. 1000 Friends of Oregon v. LCDC, 244 Or App 239, 259 P3d 1021 (2011)

 

      Prioritization under this statute is for purpose of identifying land that could be added to urban growth boundary; applicable land use goal is for purpose of determining which identified lands should be added to urban growth boundary. 1000 Friends of Oregon v. LCDC, 244 Or App 239, 259 P3d 1021 (2011)

 

      Only land use goal factors related to consequences of land use and compatibility of land may be used to determine if prioritized land is inadequate to accommodate amount of land needed. 1000 Friends of Oregon v. LCDC, 244 Or App 239, 259 P3d 1021 (2011)

 

LAW REVIEW CITATIONS: 93 OLR 455 (2014)

 

      197.299

 

LAW REVIEW CITATIONS: 93 OLR 455 (2014)

 

      197.302

 

LAW REVIEW CITATIONS: 93 OLR 455 (2014)

 

      197.303

 

NOTES OF DECISIONS

 

      LCDC may not require Happy Valley, city with population of less than 2,500, to provide specific housing mix by types. City of Happy Valley v. LCDC, 66 Or App 795, 677 P2d 43 (1984)

 

      Exception from part of definition for cities with population of less than 2,500 and counties with population of less than 15,000 does not excuse such cities and counties from having clear and objective standards that do not discourage needed housing in city or county comprehensive plan. Montgomery v. City of Dunes City, 236 Or App 194, 236 P3d 750 (2010)

 

      197.307

 

NOTES OF DECISIONS

 

      Where local provisions deal with contents of notices required under ORS 227.178, “clear and objective” standards may be established through notice contents rather than through text of local provisions. Rogue Valley Association of Realtors v. City of Ashland, 158 Or App 1, 970 P2d 685 (1999), Sup Ct review denied

 

      Requirement that appearance and aesthetic standards attached to certain development or permit applications be “clear and objective” applies only when standards have no other regulatory purpose. Rogue Valley Association of Realtors v. City of Ashland, 158 Or App 1, 970 P2d 685 (1999), Sup Ct review denied

 

      197.312

 

LAW REVIEW CITATIONS: 26 WLR 398 (1990)

 

      197.319

 

LAW REVIEW CITATIONS: 93 OLR 455 (2014)

 

      197.320

 

NOTES OF DECISIONS

 

      This statute does not confer authority on LCDC to order local jurisdiction, as interim measure, to make specific land use decisions that would require its approval of certain applications for subdivisions, partitions and building permits. City of Happy Valley v. LCDC, 66 Or App 803, 677 P2d 47 (1984), Sup Ct review denied

 

      197.335

 

NOTES OF DECISIONS

 

      LCDC limitation on validity of local land use approvals may extend to approvals granted prior to LCDC order. Jackson County v. LCDC, 132 Or App 302, 888 P2d 98 (1995), Sup Ct review denied

 

      197.340

 

NOTES OF DECISIONS

 

      This section requires statewide planning goals to be given equal weight in planning process and does not permit outright violation of one goal to further policy of another. DLCD v. Yamhill County, 99 Or App 441, 783 P2d 16 (1989)

 

      197.352

      See annotations under ORS 195.305.

 

      197.405

 

ATTY. GEN. OPINIONS: Preparation of land use inventories, (1976) Vol 37, p 1324

 

      197.435 to 197.465

 

NOTES OF DECISIONS

 

      Determination of whether area consists of 50 or more acres of contiguous prime farmland may be based on later soil capability studies, rather than being limited to local jurisdiction’s adopted destination resort siting map. Foland v. Jackson County, 101 Or App 632, 792 P2d 1228 (1990), aff’d 311 Or 167, 807 P2d 801 (1991)

 

      197.445

 

NOTES OF DECISIONS

 

      County may approve development that does not meet requirements for destination resorts if county takes into account exceptions to statewide planning goals for agricultural lands, forestlands, public facilities and services or urbanization. Friends of Marion County v. Marion County, 233 Or App 488, 227 P3d 198 (2010)

 

      Site on which destination resort is located does not need to be owned by single person. Central Oregon Landwatch v. Deschutes County, 245 Or App 166, 262 P3d 1153 (2011)

 

      197.455

 

NOTES OF DECISIONS

 

      Nothing in this statute suggests that, at site approval stage, multiple tracts of land cannot be combined to satisfy minimum site size requirement. Central Oregon Landwatch v. Deschutes County, 245 Or App 166, 262 P3d 1153 (2011)

 

      197.465

 

NOTES OF DECISIONS

 

      Mapping provisions of this section do not mandate that only originally adopted map can be relevant to siting decision. Foland v. Jackson County, 101 Or App 632, 792 P2d 1228 (1990), aff’d 311 Or 167, 807 P2d 801 (1991)

 

      197.520

 

NOTES OF DECISIONS

 

      Moratorium may not be amended without complying with procedural requirements for adoption of moratorium. Thunderbird Hotels, LLC v. City of Portland, 218 Or App 548, 180 P3d 87 (2008)

 

      197.522

 

NOTES OF DECISIONS

 

      Placing burden of proof on petitioner to establish impropriety of permit or approval condition does not facially violate statute. Lincoln City Chamber of Commerce v. City of Lincoln City, 164 Or App 272, 991 P2d 1080 (1999), Sup Ct review denied

 

      197.530

 

NOTES OF DECISIONS

 

      Extended moratorium may not differ in substance from moratorium originally adopted. Thunderbird Hotels, LLC v. City of Portland, 218 Or App 548, 180 P3d 87 (2008)

 

      197.610

 

NOTES OF DECISIONS

 

      City cannot adopt comprehensive plan designation that provides for property to automatically revert to earlier designation if not developed in timely manner. Neighbors for Livability v. City of Beaverton, 168 Or App 501, 4 P3d 765 (2000)

 

      Failure to provide statutorily required notice is substantive defect that does not depend on whether failure deprived anyone of participatory rights. North East Medford Neighborhood Coalition v. City of Medford, 214 Or App 46, 162 P3d 1059 (2007)

 

      197.615

 

NOTES OF DECISIONS

 

      On remand, where petitioners who were entitled to notice of land use decision did not receive notice from county, time under ORS 197.830 for their filing of intent to appeal to LUBA was tolled until they had knowledge of decision. Ludwick v. Yamhill County, 72 Or App 224, 696 P2d 536 (1985), Sup Ct review denied

 

      197.620

 

NOTES OF DECISIONS

 

      Preservation requirement of this section was not satisfied by inclusion in record of proceedings leading to adoption of two earlier ordinances, in connection with which objectors asserted grounds relied on, where grounds were not raised in connection with proceedings leading to adoption of the ordinance under review. Maresh v. Yamhill County, 68 Or App 471, 683 P2d 124 (1984)

 

      Person that merely files appearance in local government proceedings has not “participated” in proceedings. Century Properties, LLC v. City of Corvallis, 207 Or App 8, 139 P3d 990 (2006)

 

      197.626

 

LAW REVIEW CITATIONS: 93 OLR 455 (2014)

 

      197.644

 

NOTES OF DECISIONS

 

      During periodic review process, goal compliance of particular work task decision may be determined without regard to effect on goal compliance of other work task decisions, provided that completed work plan complies with all goals. Hummel v. Land Conservation and Development Commission, 152 Or App 404, 954 P2d 824 (1998), Sup Ct review denied

 

      197.646

 

NOTES OF DECISIONS

 

      Where city amended local plan and regulations to implement new state goal and plan, but county failed to make amendments, failure did not make state goal and plan directly applicable to county decision governing property within city limits. Oregon Shores Conservation Coalition v. Lincoln County, 164 Or App 426, 992 P2d 936 (1999), Sup Ct review denied

 

      197.707 to 197.717

 

NOTES OF DECISIONS

 

      Goal 9, these sections or implementing provisions which localities must adopt pursuant to statute do not mandate approval of every land use proposal with potentially beneficial economic effects. Benjfran Development v. Metro. Service Dist., 95 Or App 22, 767 P2d 467 (1989)

 

      197.712

 

NOTES OF DECISIONS

 

      Goal provision making statutory requirement applicable only to land within urban growth boundary is within authority of Land Conservation and Development Commission to refine statutory policy. Port of St. Helens v. Land Conservation and Development Commission, 165 Or App 487, 996 P2d 1014 (2000), Sup Ct review denied

 

      197.732

 

NOTES OF DECISIONS

 

      Goal exception establishing standards for allowing rural residential development outside urban growth boundary if needed does not allow development based solely on general market demand, past development or market trends. 1000 Friends of Oregon v. LCDC, 69 Or App 717, 688 P2d 103 (1984)

 

      There must be substantial evidence beyond fact of development itself that farming practices would be impeded by residential development. Prentice v. LCDC, 71 Or App 394, 692 P2d 642 (1984)

 

      Existing nonresource use is insufficient basis to allow prospective nonresource use unless existing use creates need for additional nonresource development in future. Ludwick v. Yamhill County, 72 Or App 224, 696 P2d 536 (1985), Sup Ct review denied

 

      New exceptions criteria apply to all plans not acknowledged when new criteria went into effect. 1000 Friends of Oregon v. LCDC, 75 Or App 199, 706 P2d 987 (1985), Sup Ct review denied

 

      Exception for physical development may be based on developed area only and does not entail consideration of tract of which it is part, unless nonresource use of other parts of tract is also proposed. Denison v. Douglas County, 101 Or App 131, 789 P2d 1388 (1990)

 

      Exception for physical development may be allowed without demonstrating that conditions permitting agricultural use cannot be restored. Denison v. Douglas County, 101 Or App 131, 789 P2d 1388 (1990)

 

      Local government may not take exception to statewide planning goal for purpose of allowing proposed use that is permissible under goal. Department of Land Conservation and Development v. Yamhill County, 183 Or App 556, 53 P3d 462 (2002)

LAW REVIEW CITATIONS: 19 EL 60 (1988)

 

      197.763

 

NOTES OF DECISIONS

 

      County ordinance violated this section by restricting time within which opponents could file evidence but was consistent with this section in allowing applicant to present additional evidence within 20-day period between county’s notice and hearing. 1000 Friends of Oregon v. Lane County, 102 Or App 68, 793 P2d 885 (1990)

 

      As used in this statute, “sufficient specificity” requires no more than fair notice to adjudicators and opponents and is not analogous to specificity necessary for preservation in judicial proceedings. Boldt v. Clackamas County, 107 Or App 619, 813 P2d 1078 (1991)

 

      When record of proceeding is reopened at LUBA’s direction on remand, “new issues” include remanded issues, but not issues that LUBA affirmed or reversed on their merits. Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992)

 

      Reference to application for land use decision does not prevent use of quasi-judicial proceeding in other types of land use decisions. Department of Transportation v. City of Mosier, 161 Or App 252, 984 P2d 351 (1999)

 

      Requirement of 20 days’ notice applies to new evidentiary hearing process initiated to comply with order of reviewing body. Hausam v. City of Salem, 178 Or App 417, 37 P3d 1039 (2001)

 

      Where city’s public notice of limited hearing announced that hearing would not permit new evidence but prior record was reopened to new evidence during hearing, this section required city to give corrective notice of opportunity for any person to address new evidence. Trautman/Conte v. City of Eugene, 280 Or App 752, 383 P3d 420 (2016)

 

LAW REVIEW CITATIONS: 77 OLR 845 (1998); 36 WLR 441 (2000)

 

      197.770

 

NOTES OF DECISIONS

 

      Firearms training facility in existence on September 9, 1995, may continue regardless of whether facility was lawfully established. Citizens for Responsibility v. Lane County, 207 Or App 500, 142 P3d 486 (2006), Sup Ct review denied

 

      197.772

 

NOTES OF DECISIONS

 

      As used in this section, “property owner” refers to person who owned property when historic property designation was imposed, not to person who acquired property after designation is in place, so subsequent owner may not remove designation. Lake Oswego Preservation Society v. City of Lake Oswego, 360 Or 115, 379 P3d 462 (2016)

 

      197.805 to 197.850

 

NOTES OF DECISIONS

 

      To bring inverse condemnation action in state court, landowner must exhaust available local administrative remedies, but is not required to appeal local administrative determinations to Land Use Board of Appeals. West Linn Corporate Park, L.L.C. v. City of West Linn, 349 Or 58, 240 P3d 29 (2010)

 

LAW REVIEW CITATIONS: 19 WLR 109 (1983); 65 OLR 185, 186 (1986); 19 EL 67 (1988)

 

      197.805

 

NOTES OF DECISIONS

 

      Land Use Board of Appeals is not subject to constitutional requirement that proceeding present justiciable controversy. Just v. City of Lebanon, 193 Or App 132, 88 P3d 312 (2004)

 

      Policy that Land Use Board of Appeals decisions be made “consistently with” judicial review principles allows modification or disregard of judicial principles to ensure that decisions are compatible with specific statutes and principles governing board review. Just v. City of Lebanon, 193 Or App 132, 88 P3d 312 (2004)

 

      197.820

 

NOTES OF DECISIONS

 

      Statutory function of LUBA to conduct review of land use decisions through quasi-judicial proceedings does not violate doctrine of separation of powers. Wright v. KECH-TV, 300 Or 139, 707 P2d 1232 (1985)

 

      197.825

 

NOTES OF DECISIONS

 

      Where right to ask for review is unconditionally granted by county, although county Board of Commissioners may elect not to hear appeal, there is remedy available by right which must be exhausted before LUBA has jurisdiction under this section. Lyke v. Lane County, 70 Or App 82, 688 P2d 411 (1984)

 

      Lane County ordinance purporting to permit petitioner to elect whether or not to use local appeal right before appealing to LUBA conflicts with this section. Lyke v. Lane County, 70 Or App 82, 688 P2d 411 (1984)

 

      Voter rejection of annexation proposal was not land use decision appealable to court of appeals; if annexation were appealable, it would be on action by governing body rather than election. Heritage Enterprises v. City of Corvallis, 71 Or App 581, 693 P2d 651 (1984), aff’d 300 Or 168, 708 P2d 601 (1985)

 

      Where defendant’s actions are taken in compliance with land use decision by local government, subject matter of action is within LUBA’s exclusive jurisdiction. Wright v. KECH-TV, 71 Or App 662, 694 P2d 545 (1984), aff’d 300 Or 139, 707 P2d 1232 (1985)

 

      Exhaustion of remedies requirement is merely exception to and limitation on general grant of jurisdiction and does not extend LUBA jurisdiction to review anything that is not land use decision. Heritage Enterprises v. City of Corvallis, 300 Or 168, 708 P2d 601 (1985)

 

      Discretionary rehearing was not one of “remedies available by right” required to be exhausted before seeking LUBA review of local government action. Portland Audubon Society v. Clackamas County, 77 Or App 277, 712 P2d 839 (1986)

 

      Petitioner’s failure to adequately pursue county procedures in appealing small-tract plan amendment from planning commission to governing body did not constitute failure to exhaust local remedies or preclude obtaining LUBA’s review of amendment. Colwell v. Washington Co., 79 Or App 82, 718 P2d 747 (1986), Sup Ct review denied

 

      Although circuit court could not give mandamus relief under this section to compel county to rescind partition approval because county had no mandatory duty to rescind as distinct from enforcing its land use regulations in other ways, subject matter was within court’s jurisdiction as well as or instead of LUBA’s. Doughton v. Douglas County, 90 Or App 49, 750 P2d 1174 (1988)

 

      County’s purported decision not to revoke partition approval did not divest circuit court of jurisdiction under this section where petitioner alleged that there was ongoing pattern of non-enforcement, of which refusal to revoke approval was merely incident. Doughton v. Douglas County, 90 Or App 49, 750 P2d 1174 (1988)

 

      Mandamus remedy of [former] ORS 215.428 is not available once local governing body has issued land use decision even if decision is issued after 120 day deadline; once land use decision is issued, LUBA has exclusive jurisdiction to review that decision pursuant to this section. Simon v. Bd. of Co. Comm. of Marion Co., 91 Or App 487, 755 P2d 741 (1988)

 

      Where opposed action takes form of or is permitted by land use decision, exclusive avenue of review is to LUBA, then to Court of Appeals and this section does not establish circuit court jurisdiction to render second decision on same subject in guise of enforcement. City of Oregon City v. Mill-Maple Properties, Inc., 98 Or App 238, 779 P2d 172 (1989)

 

      Where Metro’s recommendation for freeway corridor in its Regional Transportation Plan was contingent on subsequent decisions aimed at determining or achieving compliance with statewide land use planning goals, it was not final appealable land use decision. Sensible Transportation v. Metro Service Dist., 100 Or App 564, 787 P2d 498 (1990), Sup Ct review denied

 

      Circuit court had no jurisdiction to review county’s determination whether conditional use permit had expired where determination was land use decision, based upon substantial progress of development. Sauvie Island Agricultural v. GGS (Hawaii), Inc., 107 Or App 1, 810 P2d 856 (1991)

 

      Under this statute and ORS 197.015, circuit court authority ends and exclusive land use decisional process begins where granting or denial of permit involves exercise of judgment or interpretation of ordinance, rather than mere ministerial application of ordinance that requires no interpretation or judgment. Campbell v. Bd. of County Commissioners, 107 Or App 611, 813 P2d 1074 (1991)

 

      Local government’s decision to bring enforcement proceeding under this section is not reviewable by LUBA because it is not land use decision. Wygant v. Curry County, 110 Or App 189, 821 P2d 1109 (1991)

 

      Although damages for inverse condemnation are available only through judicial action, inverse condemnation issues can be raised either before LUBA or in judicial forum. Springer v. City of Bend, 111 Or App 136, 826 P2d 1, Sup Ct review denied; Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994)

 

      Landowner is not required to exhaust all available local appeals where scope of what local regulation permits or prohibits can be determined from particular decision appealed, distinguishing Fifth Avenue Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978). Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994)

 

      Circuit court authority to decide land use issues is dependent on nature of proceeding, not nature of issue. Clackamas County v. Marson, 128 Or App 18, 874 P2d 110 (1994), Sup Ct review denied

 

      In marginal cases where enactment could fairly be characterized either as land use regulation or other type of regulation, Land Use Board of Appeals and courts have concurrent jurisdiction to hear challenge. Scappoose Sand and Gravel, Inc. v. Columbia County, 161 Or App 325, 984 P2d 876 (1999), Sup Ct review denied

 

      Where hearing process was terminated before adjudication on merits, person who did not file own appeal but appeared at hearing satisfied exhaustion of remedies requirement for appealing resulting decision. Dead Indian Memorial Road Neighbors v. Jackson County, 188 Or App 503, 72 P3d 648 (2003)

 

      Party may not raise issue before Land Use Board of Appeals if party could have specified issue as ground for appeal before local body, but did not do so. Miles v. City of Florence, 190 Or App 500, 79 P3d 382 (2003), Sup Ct review denied

 

LAW REVIEW CITATIONS: 68 OLR 987 (1989)

 

      197.829

 

NOTES OF DECISIONS

 

      LUBA may affirm county’s interpretation of county zoning ordinance and comprehensive plan exception only if record includes language capable of being interpreted. Reeves v. Yamhill County, 132 Or App 263, 888 P2d 79 (1995)

 

      Unless governing body expressly changes interpretation of lower body in affirming lower body’s decision, interpretation by lower body shall be treated on appeal as interpretation of governing body. Derry v. Douglas County, 132 Or App 386, 888 P2d 588 (1995)

 

      Goal or rule compliance challenge to interpretation that complies with acknowledged plan may not be brought if direct goal or rule compliance challenge to acknowledged plan is unavailable under ORS 197.835. Friends of Neabeack Hill v. City of Philomath, 139 Or App 39, 911 P2d 350 (1996), Sup Ct review denied

 

      Local body interpretation is to be reviewed to determine whether it is clearly wrong, not whether it is right. Huntzicker v. Washington County, 141 Or App 257, 917 P2d 1051 (1996), Sup Ct review denied; deBardelaben v. Tillamook County, 142 Or App 319, 922 P2d 683 (1996)

 

      Need for or sufficiency of local body exceptions to state planning goals is question of state law. Leathers v. Marion County, 144 Or App 123, 925 P2d 148 (1996)

 

      Where local government does not expressly interpret standard, interpretation may be inferable from application of standard in decision. Alliance for Responsible Land Use v. Deschutes County, 149 Or App 259, 942 P2d 836 (1997)

 

      Reviewing body’s exercise of authority to interpret previously uninterpreted local provision is discretionary. Opp v. City of Portland, 153 Or App 10, 955 P2d 768 (1998), Sup Ct review denied

 

      Court will reverse local land use decision for failure to allow additional evidence regarding interpretation of local legislation only if: 1) interpretation significantly changes existing interpretation or exceeds range of interpretations that could reasonably have been anticipated by parties; and 2) party seeking reversal demonstrates to Land Use Board of Appeals that it can produce specific evidence differing in substance from earlier evidence and directly responsive to unanticipated interpretation. Gutoski v. Lane County, 155 Or App 369, 963 P2d 145 (1998)

 

      Local interpretation of ordinance is not required to follow doctrine of ejusdem generis or other interpretive methodology. Department of Transportation v. City of Mosier, 161 Or App 252, 984 P2d 351 (1999)

 

      Where comprehensive plan or land use regulation does not address situation, local government’s unsupported interpretation of plan or regulation for purpose of resolving situation is not entitled to deference. Foland v. Jackson County, 215 Or App 157, 168 P3d 1238 (2007), Sup Ct review denied

 

      To determine plausibility of local government’s interpretation, LUBA must determine (1) whether local government decision is interpretation and (2) extent to which local government decision comports with express statutory language. Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010)

 

LAW REVIEW CITATIONS: 36 WLR 441 (2000)

 

      197.830

 

NOTES OF DECISIONS

 

      On remand, where petitioners who were entitled to notice of land use decision pursuant to ORS 197.615 did not receive notice from county, time for filing of intent to appeal to LUBA was tolled until they had knowledge of decision. Ludwick v. Yamhill County, 72 Or App 224, 696 P2d 536 (1985), Sup Ct review denied

 

      County ordinance controls in determination as to when land use decision is final, for purposes of this section, where ordinance is not in conflict with LUBA rule or statutory authority. Columbia River Television v. Multnomah County, 299 Or 325, 702 P2d 1065 (1985)

 

      Aggrieved property owners who opposed election to incorporate had standing to challenge vote of county board of commissioners on due process grounds. 1000 Friends of Oregon v. Wasco Co. Court, 304 Or 76, 742 P2d 39 (1987)

 

      Where petitioners contended in appeal to LUBA that county failed to hold hearing and give notice as required by ORS 215.416, petitioners were not required to satisfy appearance provision of this section and are “aggrieved” within meaning of this section for purposes of standing. Flowers v. Klamath County, 98 Or App 384, 780 P2d 227 (1989), Sup Ct review denied; Hugo v. Columbia County, 157 Or App 1, 967 P2d 895 (1998)

 

      Local ordinance requirement for hearing cannot extend time for appealing post-acknowledgment amendment to land use regulation. Orenco Neighborhood v. City of Hillsboro, 135 Or App 428, 899 P2d 720 (1995)

 

      Where petitioner files appeal under ORS 215.416 seeking local review, direct appeal to LUBA is not available. Tarjoto v. Lane County, 137 Or App 305, 904 P2d 641 (1995)

 

      Failure to include payment with appeal accepted by LUBA is not jurisdictional defect. Ray v. Douglas County, 140 Or App 24, 914 P2d 26 (1996)

 

      Party can be prevailing party where case is voluntarily dismissed without final decision on merits. Pfeifer v. City of Silverton, 146 Or App 191, 931 P2d 833 (1997)

 

      Time for filing appeal is not tolled by delay in sending notice of final decision to party. Wicks-Snodgrass v. City of Reedsport, 148 Or App 217, 939 P2d 625 (1997), Sup Ct review denied

 

      There is probable cause for belief that entire position is well founded if reasonable lawyer would conclude that any point asserted is open to doubt or subject to honest discussion. Fechtig v. City of Albany, 150 Or App 10, 946 P2d 280 (1997)

 

      Attorney fees may be awarded only if all arguments comprising position of nonprevailing party on appeal are so meritless as to lack probable cause. Fechtig v. City of Albany, 150 Or App 10, 946 P2d 280 (1997)

 

      Appellate decision need not decide assignment of error on merits for prevailing party to assert in attorney fee petition that assignment lacked probable cause. Spencer Creek Neighbors v. Lane County, 152 Or App 1, 952 P2d 90 (1998)

 

      Assertion of local governing body interpretation that is clearly wrong is not necessarily assertion made without probable cause. Spencer Creek Neighbors v. Lane County, 152 Or App 1, 952 P2d 90 (1998)

 

      Time for filing appeal of plan and land use amendments applies to any person with standing to appeal, not just persons entitled to notice. Department of Transportation v. City of Oregon City, 153 Or App 705, 959 P2d 615 (1998)

 

      Notwithstanding statutory language permitting any person who appeared before local government to intervene in review process, person seeking to intervene must meet constitutional requirement of justiciability by showing that court’s opinion will have practical effect on that party. Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001)

 

      For purposes of determining whether local government made land use decision without providing hearing, “hearing” refers to quasi-judicial proceeding held to gather evidence about application for land use permit or to hear and consider argument on issues of fact or law relevant to application, regardless of scope of evidence considered at proceeding. Friends of Jacksonville v. City of Jacksonville, 189 Or App 283, 76 P3d 121 (2003), Sup Ct review denied

 

      10-year limitation on appealing hearing or decision made pursuant to ORS 197.195 or 197.763 applies retroactively. Jones v. Douglas County, 247 Or App 56, 270 P3d 264 (2011)

 

      Express authority of state or local government to withdraw land use decision “subsequent to the filing of notice of intent and prior to the date set for filing the record” necessarily prohibits state or local government from withdrawing decision thereafter. Dexter Lost Valley Community Association v. Lane County, 255 Or App 701, 300 P3d 1243 (2013)

 

      Petitioner, who did not receive notice required by local but not state law of city land use hearing, was not entitled to delayed appeal because without providing hearing means either hearing was not held at all or notice required by state law was not provided. Aleali v. City of Sherwood, 262 Or App 59, 325 P3d 747 (2014)

 

      Where Land Use Board of Appeals extends time county has in which to transmit record of county land use decision to Land Use Board of Appeals, time in which county may reconsider land use decision is also extended. Columbia Riverkeeper v. Clatsop County, 267 Or App 578, 341 P3d 790 (2014)

 

      Where petitioner, who appeared at city hearing by written testimony in opposition to proposed land use plan, did not receive notice of city’s final order, hearing to reconsider final order or affirmation of approval of final order as required by ORS 227.173, or of other petitioners’ intent to appeal final order to Land Use Board of Appeals, and city later corrected error and served notice of intent to appeal on petitioner, notice of intent to appeal was not filed with LUBA for purposes of this section and 21-day time in which to intervene in appeal was not triggered by improper filing. Oakleigh-McClure Neighbors v. City of Eugene, 269 Or App 176, 344 P3d 503 (2015)

 

      Where county granted extension of time to travel stop company to begin implementation of site plan review for company’s proposed development of travel stop, and extension decision was made without public hearing, petitioner is not adversely affected by extension decision, which did not apply to petitioner or directly affect petitioner’s interests in adverse manner, so petitioner does not have standing under this section. Devin Oil Co., Inc. v. Morrow County, 275 Or App 799, 365 P3d 1084 (2015)

 

LAW REVIEW CITATIONS: 65 OLR 186, 192 (1986); 36 WLR 441 (2000)

 

      197.835

 

NOTES OF DECISIONS

 

      Requirement that LUBA decide all issues presented to it when reversing or remanding land use decision is met by statement by LUBA that issue is not relevant under the facts or is subsumed within or rendered immaterial by other issues. Perkins v. City of Rajneeshpuram, 68 Or App 726, 686 P2d 369 (1984), as modified by300 Or 1, 706 P2d 949 (1985)

 

      LUBA must accept local interpretation of ordinance unless interpretation is inconsistent with express language or with apparent purpose or policy. West Hills & Island Neighbors v. Multnomah Co., 68 Or App 782, 683 P2d 1032 (1984), Sup Ct review denied; Reusser v. Washington County, 122 Or App 33, 857 P2d 182 (1993), Sup Ct review denied; Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1993); Langford v. City of Eugene, 126 Or App 52, 867 P2d 535 (1994), Sup Ct review denied

 

      On remand, where county’s actions included amendment to comprehensive plan, fact that plan had been acknowledged did not mean that amendments to plan would also comply with goals. Ludwick v. Yamhill County, 72 Or App 224, 696 P2d 536 (1985), Sup Ct review denied

 

      On remand, provision in Goal 4 that “existing forest land uses shall be protected unless proposed changes are in conformance with the comprehensive plan” does not mean that amendments to plan are tested for compliance with plan rather than goals. Ludwick v. Yamhill County, 72 Or App 224, 696 P2d 536 (1985), Sup Ct review denied

 

      Requirement that LUBA decide all issues does not mean that LUBA must base its disposition of appeal on moot issues. Mason v. Mountain River Estates, 73 Or App 334, 698 P2d 529 (1985), Sup Ct review denied

 

      Claim of ex parte contact and bias was not moot because of reversal of county decision and fact that contested member was no longer on court: LUBA must consider allegation. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)

 

      Though acknowledged status of existing provisions might be relevant to LUBA’s disposition of goal issue on merits, LUBA had authority to consider goal issues in appeals from amendments to comprehensive plans. 1000 Friends of Oregon v. Jackson Co., 79 Or App 93, 718 P2d 753 (1986), Sup Ct review denied

 

      LUBA’s review for goal compliance in appeal from amendment to acknowledged comprehensive plan extends only to provisions of plan directly changed and does not reach provisions which are not directly or indirectly affected by amendment. Urquhart v. Lane Council of Governments, 80 Or App 176, 721 P2d 870 (1986)

 

      Where owner seeks to have land use decision set aside on constitutional grounds, owner must take that appeal to LUBA. Dunn v. City of Redmond, 303 Or 201, 735 P2d 609 (1987)

 

      Where validity of land use decision was contingent on validity of earlier decision remanded to local government, proper disposition was to remand, rather than reverse, later decision. Standard Insurance Company v. Washington County, 93 Or App 276, 761 P2d 1348 (1988)

 

      Where LUBA has properly understood and applied “substantial evidence test” of this section, reviewing court should affirm LUBA’s conclusion regarding substantiality of supporting evidence notwithstanding court’s disagreement with LUBA as to whether supporting evidence in specific case under review is “substantial.” Younger v. City of Portland, 305 Or 346, 752 P2d 262 (1988)

 

      Where there is some evidence that supports finding, it is parties’ burden to attack or defend finding by identifying the supporting or countervailing evidence on which they rely and LUBA is not required to search record looking for evidence with which parties are presumably already familiar. Eckis v. Linn County, 110 Or App 309, 821 P2d 1127 (1991)

 

      Announcement of result without accompanying identification and interpretation of law was omission of necessary findings by county. Larson v. Wallowa County, 116 Or App 96, 540 P2d 1350 (1992); O’Neal v. Deschutes County, 126 Or App 47, 867 P2d 532 (1994)

 

      Whether party has sufficiently identified portion of record containing supporting evidence depends inter alia on length of record, amount of supporting and contrary evidence and sequence of evidence presentation. Friends of Bryant Woods Park v. City of Lake Oswego, 126 Or App 205, 868 P2d 24 (1994)

 

      Deference given to governing body as interpreter of its own ordinances does not apply to interpretation applied by hearings officer. Gage v. City of Portland, 319 Or 308, 877 P2d 1187 (1994)

 

      Planning commission interpretation of ordinance was not entitled to deference because commissioners were not elected officials authorized to adopt ordinance being interpreted. Derry v. Douglas County, 132 Or App 386, 888 P2d 588 (1995)

 

      Where memorandum decision is issued, assignments of error for purposes of court review are duplicates of assignments of error in local proceedings asserted to board. Petrie v. City of Lake Oswego, 139 Or App 8, 911 P2d 346 (1996)

 

      Except where opinion is required by statute, authority to issue memorandum decision includes ability to decide case without opinion. Petrie v. City of Lake Oswego, 139 Or App 8, 911 P2d 346 (1996)

 

      Goal or rule compliance challenge to interpretation that complies with acknowledged plan may not be brought under ORS 197.829 if direct goal or rule compliance challenge to acknowledged plan is unavailable. Friends of Neabeack Hill v. City of Philomath, 139 Or App 39, 911 P2d 350 (1996), Sup Ct review denied

 

      Local determination requiring conditional use permit is reviewable land use decision appealable by recipient of permit. Recovery House VI v. City of Eugene, 150 Or App 382, 946 P2d 342 (1997)

 

      Action “for purpose of avoiding requirements of [former] ORS 215.428” must be action taken in bad faith and with deliberate objective of avoidance. Miller v. Multnomah County, 153 Or App 30, 956 P2d 209 (1998)

 

      In reviewing county decision, Land Use Board of Appeals has authority to consider whether existing provisions of county plan or land use ordinances that are unchanged by county decision comply with state rule. Dept. of Transportation v. Douglas County, 157 Or App 18, 967 P2d 901 (1998)

 

      Availability of full evidentiary hearing upon request satisfies element of full and fair litigation opportunity under federal version of issue preclusion doctrine. Dodd v. Hood River County, 136 F3d 1219 (9th Cir. 1998)

 

      Except where local government has made defective findings, Land Use Board of Appeals review of local government decision is limited to application of same local or state standard that local government used to support decision. West Coast Media, LLC v. City of Gladstone, 192 Or App 102, 84 P3d 213 (2004)

 

      Where local government decision is outside range of discretion allowed local government, or where local government action is for purpose of avoiding statutory requirements, Land Use Board of Appeals must reverse decision or action, and it may not remand matter to local government to make additional findings. Stewart v. City of Salem, 231 Or App 356, 219 P3d 46 (2009), Sup Ct review denied

      “Attorney fees” means reasonable value of legal services provided by attorney and related to applicant’s appeal of local government decision to Land Use Board of Appeals. Stewart v. City of Salem, 240 Or App 466, 247 P3d 763 (2011)

 

      Where county board of commissioners approves permit for natural gas pipeline, then withdraws permit approval before providing permit record to Land Use Board of Appeals for appeals procedures, approval of permit was final decision so actions taken by board after approval were not for purpose of avoiding requirements of ORS 215.427. Columbia Riverkeeper v. Clatsop County, 267 Or App 578, 341 P3d 790 (2014)

 

LAW REVIEW CITATIONS: 77 OLR 845 (1998)

 

      197.845

 

NOTES OF DECISIONS

 

      Provision mandating attorney fee award when quasi-judicial decision is upheld is inapplicable to person obtaining stay from legislative land use decision. Dames v. City of Medford, 69 Or App 675, 687 P2d 1111 (1984)

 

      197.850

 

NOTES OF DECISIONS

 

      In determining whether order is unlawful in substance, court must defer to LCDC interpretation of land use goal if interpretation and underlying reasoning are consistent with intent and policy of goal. 1000 Friends of Oregon v. Wasco County Court, 68 Or App 765, 686 P2d 375 (1984), result modified, 299 Or 344, 703 P2d 207 (1985)

 

      Where dicta in Land Use Board of Appeals opinion remanding city’s land use decision does not control city’s decision on remand and does not affect LUBA’s disposition, it provides no basis for reversal by Court of Appeals. Sokol v. City of Lake Oswego, 100 Or App 594, 786 P2d 1324 (1990)

 

      Comprehensive plan and zoning map amendments were unlawful in substance where city and LUBA incorrectly concluded rule permitted decisions for specific locations to be based on characteristics of much larger geographic area, with no particular attention to conflicts or other consequences peculiar to specific locations. Columbia Steel Castings v. City of Portland, 104 Or App 244, 799 P2d 1142 (1990), as modified by 314 Or 424, 840 P2d 71 (1992)

 

      Court of Appeals affirmed local government’s interpretation of local ordinance that proscribed short term rentals because local government found ordinance consistent with language and policy of comprehensive plan. Cope v. City of Cannon Beach, 115 Or App 11, 836 P2d 775 (1992), aff’d on other grounds, 317 Or 339, 855 P2d 1083 (1993)

 

      Any LUBA order that is “final order” is subject to judicial review under this section, without regard to whether it orders remand on some or all issues. Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992)

 

      Court of Appeals is authorized under this section to adopt rules allowing cross-petition for review of LUBA order to be filed within seven days after filing of petition for judicial review and rule allowing any party of record to file cross-petition and brief. State ex rel Dodd v. Joseph, 313 Or 333, 833 P2d 1273 (1992)

 

      Failure to make service by registered or certified mail did not constitute jurisdictional defect where actual service was timely made. Choban v. Washington County, 124 Or App 213, 862 P2d 536 (1993)

 

      Where order was sent to and received by petitioners, subsequent delivery of duplicate order to petitioners did not create new period for filing petition. Ray v. Douglas County, 148 Or App 511, 941 P2d 558 (1997)

 

      Notwithstanding statutory language permitting any party to seek judicial review, party seeking review must meet constitutional requirement of justiciability by showing that court’s opinion will have practical effect on that party. Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001)

 

      Where party does not place evidence of constitutional standing into record before local decision maker, party may submit evidence of constitutional standing for first time on judicial review. Friends of Eugene v. City of Eugene, 195 Or App 20, 96 P3d 1256 (2004)

 

      Issuance of order correcting clerical error in earlier order does not alter deadline for filing petition for review. Friends of Bull Mountain v. City of Tigard, 208 Or App 189, 144 P3d 965 (2006)

 

      Requirement that copy of petition for judicial review be served on adverse parties by certified or registered mail is jurisdictional. Wal-Mart Stores, Inc. v. City of Central Point, 341 Or 393, 144 P3d 914 (2006)

 

LAW REVIEW CITATIONS: 36 WLR 431 (2000)