ORS 197.850
Judicial review of board order

procedures
scope of review
attorney fees
undertaking

Text
Annotations 13

(1)

Any party to a proceeding before the Land Use Board of Appeals under ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed) may seek judicial review of a final order issued in those proceedings.

(2)

Notwithstanding the provisions of ORS 183.480 (Judicial review of agency orders) to 183.540 (Reduction of economic impact on small business), judicial review of orders issued under ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed) is solely as provided in this section.

(3)

Intentionally left blank —Ed.

(a)

Jurisdiction for judicial review of proceedings under ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed) is conferred upon the Court of Appeals. Proceedings for judicial review are instituted by filing a petition in the Court of Appeals. The petition must 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 must state the nature of the order the petitioner desires reviewed. Copies of the petition must be served by first class, registered or certified mail on 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. The court may tax a party that unreasonably refuses to stipulate to limit the record 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 court may not tax the cost of the record 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 must be filed within time periods and in a manner established by the Court of Appeals by rule.

(7)

Intentionally left blank —Ed.

(a)

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 may 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 (Review procedures) to 197.845 (Stay of decision being reviewed) must be confined to the record. The court may 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 is not cause for reversal or remand unless the court finds 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 (Scope of review) (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 appellate judgment within 30 days.

(12)

A party must 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 (Review procedures) (15)(b) or (c).

(13)

Upon entry of its final order, the court shall award attorney fees and expenses to a party who:

(a)

Prevails on a claim that an approval condition imposed by a local government on an application for a permit pursuant to ORS 215.416 (Permit application) or 227.175 (Application for permit or zone change) is unconstitutional under section 18, Article I, Oregon Constitution, or the Fifth Amendment to the United States Constitution; or

(b)

Is entitled to attorney fees under ORS 197.843 (Attorney fees for applicant developing affordable housing).

(14)

The undertaking required in subsection (12) of this section must 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. [1983 c.827 §35; 1989 c.515 §1; 1989 c.761 §26; 1995 c.595 §19; 1997 c.733 §1; 1999 c.575 §1; 1999 c.621 §10; 2009 c.25 §1; 2019 c.221 §2; 2021 c.385 §3a]

Source: Section 197.850 — Judicial review of board order; procedures; scope of review; attorney fees; undertaking, https://www.oregonlegislature.gov/bills_laws/ors/ors197.html.

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)

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 197.850 Judicial review of board order

(1)

(2)

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(7)

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(c)

(d)

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