When allowed
Source:
Section 34.040 — When allowed, https://www.oregonlegislature.gov/bills_laws/ors/ors034.html.
Notes of Decisions
In general
Party who remonstrated before inferior tribunal has prima facie standing to initiate writ of review proceeding to challenge decision of the inferior tribunal; respondents then have burden of raising objection of insufficient standing. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)
Once raised, resolution of objection of insufficient standing requires evidentiary hearing by circuit court in which petitioner bears burden of proving standing. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)
Property owner in reasonably close proximity, such as within sight or sound of proposed use of land, should ordinarily have standing to challenge a zoning decision. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)
Under this section and ORS 215.422, community organization lacked standing to obtain review under representational theory where it had shown no particular injury to interests of members or itself, except in respect to one member who could not establish injury of some substantial right, nor could organization obtain standing under a de jure theory where organization was an unofficially formed group without defined membership. Clark v. Dagg, 38 Or App 71, 588 P2d 1298 (1979), Sup Ct review denied
Review for substantial evidence based on whole record pursuant to writ is identical in manner and effect to review applicable in Administrative Procedures Act and Land Use Board of Appeals settings. Johnson v. Civil Service Board of Portland, 161 Or App 489, 985 P2d 854 (1999), modified 162 Or App 527, 986 P2d 666 (1999)
In assessing whether hearsay evidence constitutes substantial evidence, case-specific inquiry is necessary to determine circumstances that include: 1) alternatives to relying on hearsay; 2) importance of hearsay to outcome; 3) existence of supporting or opposing evidence; 4) impact of inability to cross-examine; and 5) consequences of decision. Johnson v. Civil Service Board of Portland, 161 Or App 489, 985 P2d 854 (1999), modified 162 Or App 527, 986 P2d 666 (1999)
Denial of statutory right affecting legal status of petitioner’s own property constitutes cognizable injury or practical effect creating justiciable controversy. Orr v. East Valley Water District, 203 Or App 430, 125 P3d 834 (2005), Sup Ct review denied
Final decision by inferior tribunal precludes related claim if: 1) claimant was party to tribunal proceeding that adjudicated effect of facts common to related claim; and 2) related claim would involve reviewing correctness of tribunal decision under review standards of this section. Spivak v. Marriott, 213 Or App 1, 159 P3d 1192 (2007)
Reviewable decisions and proceedings
The writ of review procedure is normally the proper method for securing judicial review of the quasi-judicial decision of the local governing body. Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976)
Provisions authorizing appeal of boundary change order under writ of review were impliedly repealed by subsequent statutory amendment excluding state agencies from writ of review procedures. League of Women Voters v. Lane County Boundary Commission, 32 Or App 53, 573 P2d 1255 (1978), Sup Ct review denied
City council’s alleged failure to hold quasi-judicial due process hearing before discharging police chief was not cognizable in writ of review proceeding. Graziano v. City Council of Canby, 35 Or App 271, 581 P2d 552 (1978), Sup Ct review denied
Distinction between whether a decision is judicial/quasi-judicial, and thus cognizable in writ of review proceedings, or whether such decision is legislative and administrative, and thus subject to judicial review by some other means (such as declaratory judgment, suit in equity or action at law) is whether party seeks limited judicial appellate review of record before the inferior tribunal, or instead seeks aid of a record making and fact finding court. Graziano v. City Council of Canby, 35 Or App 271, 581 P2d 552 (1978), Sup Ct review denied
Board of county commissioners’ action on application for comprehensive plan change was deemed denial for purposes of review where two of five county commissioners abstained, and vote of remaining commissioners was 2 to 1 in favor of application, but county charter required affirmative vote by three commissioners for any action. Eastgate Theater v. Bd. of County Comm’rs, 37 Or App 745, 588 P2d 640 (1978)
Since statutory scheme relating to road vacation ([former] ORS 368.565 to 368.580) sufficiently channels discretion through fact-finding procedures and broadly stated criteria, decisions under it qualify as quasi-judicial functions and may be examined under writ of review procedures. Strawberry Hill 4-Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979)
School board’s nonrenewal of probationary teacher under ORS 342.835 was “quasi-judicial” function subject to writ of review. Henthorn v. Grand Prairie School Dist., 287 Or 683, 601 P2d 1243 (1979)
City council’s decision to rezone parcel from lower to higher density single-family residential was quasi-judicial and thus reviewable by writ of review. Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)
City council’s removal of plaintiff as city attorney was quasi-judicial proceeding, so appeal to circuit court was by way of writ of review and not declaratory judgment. Jordan v. City Council of Lake Oswego, 49 Or App 31, 618 P2d 1298 (1980), Sup Ct review denied
City council’s decision to sell publicly owned property pursuant to ORS 271.310 was legislative, as it did not entail an adjudicatory application of pre-existing criteria to concrete facts and therefore was not judicially reviewable by writ of review. Lane v. City of Prineville, 49 Or App 385, 619 P2d 940 (1980)
Decision by county sewerage agency to charge sewer connection fee to school district for expansion of its existing maintenance facility was quasi-judicial determination and reviewable exclusively by writ of review. School Dist. No. 48, Wash. Co. v. Unified Sewerage Agency, 51 Or App 795, 627 P2d 485 (1981)
Final decision by director of port district to deny relocation expenses made pursuant to [former] ORS 281.080 was reviewable under this section and trial court had no jurisdiction to hear action in contract. Spada v. Port of Portland, 55 Or App 148, 637 P2d 229 (1981)
County’s act of retaining interest on mineral lease income is ministerial rather that quasi-judicial and therefore, declaratory relief was proper remedy. State ex rel School Dist. 13 v. Columbia County, 66 Or App 237, 674 P2d 608 (1983), Sup Ct review denied
On remand, Court of Appeals held that substantial evidence, for purpose of this section, means such evidence as reasonable minds might accept as adequate to support conclusion. Caffey v. Lane County, 75 Or App 399, 706 P2d 590 (1985)
Judicial or quasi-judicial function involves or requires adjudicatory process which typically results in decision, applies pre-existing criteria to concrete facts and is directed at closely circumscribed factual situation or relatively small number of persons. Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988)
Mayor’s imposition of sanction on police officer for violating police bureau order was quasi-judicial act, and trial court had writ of review jurisdiction. Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988)
In addition to considering presence or absence of procedural requirements, determination of whether policymaking process is quasi-judicial or legislative in nature must at least include balancing factors of: 1) whether process, once begun, calls for reaching decision confined by preexisting criteria rather than discretion; 2) extent to which decision maker applies preexisting criteria to concrete facts; and 3) extent to which decision is directed at closely circumscribed factual situation or relatively small number of persons. Hood River Valley Residents’ Committee, Inc. v. Board of County Commissioners of Hood River County, 193 Or App 485, 91 P3d 748 (2004)
Procedure for writ of review
The writ should issue only if the district court error is disclosed on the record properly before the circuit court. Myers v. Carter, and Marquam Inv. Corp., 27 Or App 351, 556 P2d 703 (1976), Sup Ct review denied
Questions of fact
Where substantial conflicts of evidence were present in zone change case before city council and council findings, adopted after issuance of order, did not suggest deliberate ratification of order, these findings were inadequate. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)
Findings which address only one goal of comprehensive plan are adequate to support denial of zone change if goal provides substantial reason for denial. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)
City council is not bound by decision of planning commission even when it is supported by substantial evidence. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)
Board of county commissioner’s order granting minor partition of agricultural land based upon finding that land was unsuitable for production of farm crops was not supported by substantial evidence when evidence consisted of six photographs unaccompanied by testimony and two soil maps of insufficient detail to distinguish property at issue. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 618 P2d 986 (1980)
Law Review Citations
10 WLJ 371 (1974); 6 EL 173 (1975); 55 OLR 123 (1976)
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