Jurisdiction of board
- limitations
- effect on circuit court jurisdiction
Source:
Section 197.825 — Jurisdiction of board; limitations; effect on circuit court jurisdiction, https://www.oregonlegislature.gov/bills_laws/ors/ors197.html.
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)
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