Scope of review
- rules
Source:
Section 197.835 — Scope of review; rules, https://www.oregonlegislature.gov/bills_laws/ors/ors197.html
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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)