ORS 197.835
Scope of review

  • rules

(1)

The Land Use Board of Appeals shall review the land use decision or limited land use decision and prepare a final order affirming, reversing or remanding the land use decision or limited land use decision. The board shall adopt rules defining the circumstances in which it will reverse rather than remand a land use decision or limited land use decision that is not affirmed.

(2)

Intentionally left blank —Ed.

(a)

Review of a decision under ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed) shall be confined to the record.

(b)

In the case of disputed allegations of standing, unconstitutionality of the decision, ex parte contacts, actions described in subsection (10)(a)(B) of this section or other procedural irregularities not shown in the record that, if proved, would warrant reversal or remand, the board may take evidence and make findings of fact on those allegations. The board shall be bound by any finding of fact of the local government, special district or state agency for which there is substantial evidence in the whole record.

(3)

Issues shall be limited to those raised by any participant before the local hearings body as provided by ORS 197.195 (Limited land use decision) or 197.797 (Local quasi-judicial land use hearings), whichever is applicable.

(4)

A petitioner may raise new issues to the board if:

(a)

The local government failed to list the applicable criteria for a decision under ORS 197.195 (Limited land use decision) (3)(c) or 197.797 (Local quasi-judicial land use hearings) (3)(b), in which case a petitioner may raise new issues based upon applicable criteria that were omitted from the notice. However, the board may refuse to allow new issues to be raised if it finds that the issue could have been raised before the local government; or

(b)

The local government made a land use decision or limited land use decision which is different from the proposal described in the notice to such a degree that the notice of the proposed action did not reasonably describe the local government’s final action.

(5)

The board shall reverse or remand a land use decision not subject to an acknowledged comprehensive plan and land use regulations if the decision does not comply with the goals. The board shall reverse or remand a land use decision or limited land use decision subject to an acknowledged comprehensive plan or land use regulation if the decision does not comply with the goals and the Land Conservation and Development Commission has issued an order under ORS 197.320 (Power of commission to order compliance with goals and plans) or adopted a new or amended goal under ORS 197.245 (Commission amendment of initial goals) requiring the local government to apply the goals to the type of decision being challenged.

(6)

The board shall reverse or remand an amendment to a comprehensive plan if the amendment is not in compliance with the goals.

(7)

The board shall reverse or remand an amendment to a land use regulation or the adoption of a new land use regulation if:

(a)

The regulation is not in compliance with the comprehensive plan; or

(b)

The comprehensive plan does not contain specific policies or other provisions which provide the basis for the regulation, and the regulation is not in compliance with the statewide planning goals.

(8)

The board shall reverse or remand a decision involving the application of a plan or land use regulation provision if the decision is not in compliance with applicable provisions of the comprehensive plan or land use regulations.

(9)

In addition to the review under subsections (1) to (8) of this section, the board shall reverse or remand the land use decision under review if the board finds:

(a)

The local government or special district:

(A)

Exceeded its jurisdiction;

(B)

Failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner;

(C)

Made a decision not supported by substantial evidence in the whole record;

(D)

Improperly construed the applicable law; or

(E)

Made an unconstitutional decision; or

(b)

The state agency made a decision that violated the goals.

(10)

Intentionally left blank —Ed.

(a)

The board shall reverse a local government decision and order the local government to grant approval of an application for development denied by the local government if the board finds:

(A)

Based on the evidence in the record, that the local government decision is outside the range of discretion allowed the local government under its comprehensive plan and implementing ordinances; or

(B)

That the local government’s action was for the purpose of avoiding the requirements of ORS 215.427 (Final action on permit or zone change application) or 227.178 (Final action on certain applications required within 120 days).

(b)

If the board does reverse the decision and orders the local government to grant approval of the application, the board shall award attorney fees to the applicant and against the local government.

(11)

Intentionally left blank —Ed.

(a)

Whenever the findings, order and record are sufficient to allow review, and to the extent possible consistent with the time requirements of ORS 197.830 (Review procedures) (14), the board shall decide all issues presented to it when reversing or remanding a land use decision described in subsections (2) to (9) of this section or limited land use decision described in ORS 197.828 (Board review of limited land use decision) and 197.195 (Limited land use decision).

(b)

Whenever the findings are defective because of failure to recite adequate facts or legal conclusions or failure to adequately identify the standards or their relation to the facts, but the parties identify relevant evidence in the record which clearly supports the decision or a part of the decision, the board shall affirm the decision or the part of the decision supported by the record and remand the remainder to the local government, with direction indicating appropriate remedial action.

(12)

The board may reverse or remand a land use decision under review due to ex parte contacts or bias resulting from ex parte contacts with a member of the decision-making body, only if the member of the decision-making body did not comply with ORS 215.422 (Review of decision of hearings officer or other authority) (3) or 227.180 (Review of action on permit application) (3), whichever is applicable.

(13)

Subsection (12) of this section does not apply to reverse or remand of a land use decision due to ex parte contact or bias resulting from ex parte contact with a hearings officer.

(14)

The board shall reverse or remand a land use decision or limited land use decision which violates a commission order issued under ORS 197.328 (Procedures to consider order to comply with goals).

(15)

In cases in which a local government provides a quasi-judicial land use hearing on a limited land use decision, the requirements of subsections (12) and (13) of this section apply.

(16)

The board may decide cases before it by means of memorandum decisions and shall prepare full opinions only in such cases as it deems proper. [1983 c.827 §§32,32a; 1985 c.811 §15; 1987 c.729 §2; 1989 c.648 §57; 1989 c.761 §13; 1991 c.817 §13; 1995 c.595 §§3a,5; 1995 c.812 §5; 1997 c.844 §3; 1999 c.621 §7]

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

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)

197.005
Legislative findings
197.010
Policy
197.012
Compact urban development
197.013
Implementation and enforcement are of statewide concern
197.015
Definitions for ORS chapters 195, 196, 197 and ORS 197A.300 to 197A.325
197.020
Land use decision considerations
197.022
Policy regarding ORS 215.433 and 227.184
197.030
Land Conservation and Development Commission
197.035
Officers
197.040
Duties of commission
197.045
Powers of commission
197.047
Notice to local governments and property owners of changes to commission rules or certain statutes
197.050
Interstate agreements and compacts
197.060
Biennial report
197.065
Biennial report analyzing uses of certain land
197.070
Public inspection of assessments prepared by commission
197.075
Department of Land Conservation and Development
197.085
Director
197.090
Duties and authority of director
197.095
Land Conservation and Development Account
197.158
Policy-neutral review and audit of statewide land use program
197.160
State Citizen Involvement Advisory Committee
197.165
Local Officials Advisory Committee
197.173
Findings regarding coordination between state agencies and local governments
197.175
Cities’ and counties’ planning responsibilities
197.178
Development applications
197.180
State agency planning responsibilities
197.183
Local government to notify Department of Aviation of applications received for certain water impoundments
197.186
Removal from buildable lands inventory of land subject to open space tax assessment
197.195
Limited land use decision
197.200
Refinement plan
197.225
Preparation
197.230
Considerations
197.235
Public hearings
197.240
Commission action
197.245
Commission amendment of initial goals
197.250
Compliance with goals required
197.251
Compliance acknowledgment
197.253
Participation in local proceedings required for submitting comments and objections
197.254
Bar to contesting acknowledgment, appealing or seeking amendment
197.256
Acknowledgment deadline for newly incorporated cities
197.265
State compensation for costs of defending compliance actions
197.270
Copies of comprehensive plan and land use regulations
197.274
Review of Metro regional framework plan
197.277
Oregon Forest Practices Act
197.279
Approved wetland conservation plans comply with goals
197.283
Commission to assure protection of ground water resources
197.286
Definitions for ORS 197.286 to 197.314 and 197.475 to 197.490
197.290
Housing production strategy
197.291
Review of housing production strategy
197.293
Identification of cities with unmet housing needs
197.296
Analysis of housing capacity and needed housing by Metro, cities outside of Metro and smaller cities
197.297
Analysis of housing capacity and needed housing in Metro cities
197.298
Priority of land to be included within urban growth boundary
197.299
Metro accommodation of needed housing and school lands
197.301
Metro report of performance measures
197.302
Metro determination of buildable land supply
197.303
“Needed housing” defined
197.304
Lane County accommodation of needed housing
197.307
Needed housing policy
197.308
Affordable housing allowed outright
197.309
Local requirements to develop affordable housing
197.311
Final action on affordable housing application
197.312
Limitation on city and county prohibitions
197.313
Interpretation of ORS 197.312
197.314
Required siting of manufactured homes
197.319
Procedures prior to request of an enforcement order
197.320
Power of commission to order compliance with goals and plans
197.324
Proceedings prior to order of compliance with goals
197.328
Procedures to consider order to comply with goals
197.335
Order for compliance with goals
197.340
Weight given to goals in planning practice
197.350
Burden of persuasion or proof in appeal to board or commission
197.353
Measure 37 timelines
197.360
“Expedited land division” defined
197.365
Application
197.370
Failure of local government to timely act on application
197.375
Appeal of local government to referee
197.380
Application fees
197.390
Activities on federal land
197.395
Application for permit
197.405
Designation of areas of critical state concern
197.410
Use and activities regulated
197.416
Metolius Area of Critical State Concern
197.430
Enforcement powers
197.431
Expansion of speedway destination site
197.432
Definitions for ORS 197.431 to 197.434
197.433
Development of major motor speedway
197.434
Traffic impacts of speedway destination
197.435
Definitions for ORS 197.435 to 197.467
197.440
Legislative findings
197.445
Destination resort criteria
197.450
Siting without taking goal exception
197.455
Siting of destination resorts
197.460
Compatibility with adjacent land uses
197.462
Use of land excluded from destination resort
197.465
Comprehensive plan implementing measures
197.467
Conservation easement to protect resource site
197.475
Policy
197.480
Planning for parks
197.485
Prohibition on restrictions of manufactured dwelling
197.488
Replacement of park destroyed by natural disaster
197.490
Restriction on establishment of park
197.492
Definitions for ORS 197.492 and 197.493
197.493
Placement and occupancy of recreational vehicle
197.505
Definitions for ORS 197.505 to 197.540
197.510
Legislative findings
197.520
Manner of declaring moratorium
197.522
Local government to approve subdivision, partition or construction
197.524
Local government to adopt moratorium or public facilities strategy following pattern or practice of delaying or stopping issuance of permits
197.530
Correction program
197.540
Review by Land Use Board of Appeals
197.610
Submission of proposed comprehensive plan or land use regulation changes to Department of Land Conservation and Development
197.612
Comprehensive plan or land use regulation changes to conform plan or regulations to new requirement in statute, goal or rule
197.615
Submission of adopted comprehensive plan or land use regulation changes to Department of Land Conservation and Development
197.620
Appeal of certain comprehensive plan or land use regulation decision-making
197.625
Acknowledgment of comprehensive plan or land use regulation changes
197.626
Submission of land use decisions that expand urban growth boundary or designate urban or rural reserves
197.627
Meaning of “compliance with the goals” for certain purposes
197.628
Periodic review
197.629
Schedule for periodic review
197.631
Commission to amend regulations to facilitate periodic review
197.633
Two phases of periodic review
197.636
Procedures and actions for failure to meet periodic review deadlines
197.637
Department of Land Conservation and Development may request review by Housing and Community Services Department of certain local housing measures
197.638
Department of Land Conservation and Development may request review by Oregon Business Development Department of local inventory and analysis of industrial and commercial land
197.639
State assistance teams
197.644
Modification of work program
197.646
Implementation of new requirement in goal, rule or statute
197.649
Fees for notice
197.650
Appeal to Court of Appeals
197.651
Appeal to Court of Appeals for judicial review of final order of Land Conservation and Development Commission
197.652
Regional problem-solving process
197.654
Regional problem-solving goals, actions and agreements
197.656
Commission approval of comprehensive plans not in compliance with goals
197.658
Modifying local work plan
197.659
Commission approval of certain changes in comprehensive plans or land use regulations
197.660
Definitions
197.663
Legislative findings
197.665
Locations of residential homes
197.667
Location of residential facility
197.670
Zoning requirements and prohibitions for residential homes and residential facilities
197.677
Policy
197.680
Legislative findings
197.685
Location of farmworker housing
197.707
Legislative intent
197.712
Commission duties
197.713
Industrial development on industrial lands outside urban growth boundaries
197.714
Cooperation of county and city concerning industrial development
197.716
Industrial and employment uses in listed counties
197.717
Technical assistance by state agencies
197.719
Industrial use of abandoned or diminished mill sites
197.722
Definitions for ORS 197.722 to 197.728
197.723
Designation of regionally significant industrial areas
197.724
Review of application for land use permit within regionally significant industrial area
197.726
Jurisdiction on appeal
197.727
Fee for review
197.728
Rules
197.732
Goal exceptions
197.734
Exceptions to certain statewide planning goal criteria
197.736
Commission implementation of ORS 197.340 and 197.732
197.746
Transitional housing accommodations
197.748
Conversion of hotel or motel to emergency shelter or affordable housing
197.752
Lands available for urban development
197.754
Land identified for urban services
197.756
Farm use assessment in area identified for urban services
197.758
Development of middle housing
197.761
Development of residential platted lot
197.764
Application to remove property from within urban growth boundary
197.766
Laws applicable to certain local decisions regarding urban growth boundary
197.768
Local government or special district adoption of public facilities strategy
197.770
Firearms training facilities
197.772
Consent for designation as historic property
197.782
Emergency shelters developed under temporary authorization
197.791
Inventory of local government surplus real property
197.794
Notice to railroad company upon certain applications for land use decision, limited land use decision or expedited land use decision
197.796
Applicant for certain land use decisions may accept and appeal condition imposed on application
197.797
Local quasi-judicial land use hearings
197.798
Rules regulating transportation improvements by city or county
197.805
Policy on review of land use decisions
197.810
Land Use Board of Appeals
197.815
Office location
197.820
Duty to conduct review proceedings
197.825
Jurisdiction of board
197.828
Board review of limited land use decision
197.829
Board to affirm certain local government interpretations
197.830
Review procedures
197.831
Appellate review of clear and objective approval standards, conditions and procedures for needed housing
197.832
Board Publications Account
197.835
Scope of review
197.840
Exceptions to deadline for final decision
197.843
Attorney fees for applicant developing affordable housing
197.845
Stay of decision being reviewed
197.850
Judicial review of board order
197.855
Deadline for final court order
197.860
Stay of proceedings to allow mediation
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