2017 ORS 197.835¹
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)(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 197.763 (Conduct of 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 197.763 (Conduct of 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)(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)(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]

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 (Board to affirm certain local government interpretations) 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 (Final action on permit or zone change application). Columbia Riverkeeper v. Clatsop County, 267 Or App 578, 341 P3d 790 (2014)

Law Review Cita­tions

77 OLR 845 (1998)

Notes of Decisions

To bring inverse condemna­tion ac­tion in state court, landowner must exhaust available local administrative remedies, but is not re­quired to ap­peal local administrative determina­tions to Land Use Board of Appeals. West Linn Corporate Park, L.L.C. v. City of West Linn, 349 Or 58, 240 P3d 29 (2010)

Law Review Cita­tions

19 WLR 109 (1983); 65 OLR 185, 186 (1986); 19 EL 67 (1988)

Chapter 197

Notes of Decisions

A comprehensive plan, although denominated a “resolu­tion,” is the controlling land use planning instru­ment for a city; upon its passage, the city assumes responsibility to effectuate the plan and conform zoning ordinances, including prior existing zoning ordinances, to it. Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975)

Procedural require­ments of the state-wide planning goals adopted by the Land Conserva­tion and Develop­ment Commission are not applicable to ordinances adopted before the effective date of the goals. Schmidt v. Land Conserva­tion and Develop­ment Comm., 29 Or App 665, 564 P2d 1090 (1977)

This chapter, es­tab­lishing LCDC and granting it authority to es­tab­lish state-wide land use planning goals, does not unconstitu­tionally delegate legislative power where both standards (ORS chapter 215) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county’s comprehensive plan and land use regula­tions had not been acknowledged by LCDC, it was proper for county to apply state-wide planning standards directly to individual request for parti­tion. Alexanderson v. Polk County Commissioners, 289 Or 427, 616 P2d 459 (1980)

Issuance of a building permit was a “land conserva­tion and develop­ment ac­tion” where county had no acknowledged comprehensive plan, land was not zoned and no pre­vi­ous land use decision had been made re­gard­ing the land. Columbia Hills v. LCDC, 50 Or App 483, 624 P2d 157 (1981), Sup Ct review denied

Nothing in this chapter grants the Land Conserva­tion and Develop­ment Depart­ment authority to challenge local land use decisions made after comprehensive plan acknowledg­ment. Ochoco Const. v. LCDC, 295 Or 422, 667 P2d 499 (1983)

LCDC has authority in periodic review process to require local govern­ment to add specific language or pro­vi­sions to its land use legisla­tion to assure compliance with statewide goals and LCDC rules. Oregonians in Ac­tion v. LCDC, 121 Or App 497, 854 P2d 1010 (1993), Sup Ct review denied

Atty. Gen. Opinions

Authority of a land conserva­tion and develop­ment com­mis­sion to bind the state in an interstate compact or agree­ment, (1973) Vol 36, p 361; applica­tion of Fasano v. Bd. of County Commrs., (1974) Vol 36, p 960; state-wide planning goal in conjunc­tion with interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; binding effect on govern­mental agencies of the adop­tion of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894; applica­tion to state agencies, (1976) Vol 37, p 1129; preexisting ordinances during the interim imple­menting stage, (1976) Vol 37, p 1329; constitu­tionality of delega­tion to LCDC of authority to prescribe and enforce statewide planning goals, (1977) Vol 38, p 1130; effect of situa­tion where similar peti­tion is filed before both com­mis­sion and a court, (1977) Vol 38, p 1268; considera­tion of availability of public school facilities in determina­tion of whether to approve subdivision, (1978) Vol 38, p 1956

Law Review Cita­tions

10 WLJ 99 (1973); 53 OLR 129 (1974); 5 EL 673 (1975); 54 OLR 203-223 (1975); 56 OLR 444 (1977); 18 WLR 49 (1982); 61 OLR 351 (1982); 20 WLR 764 (1984); 14 EL 661, 693, 713, 779, 843 (1984); 25 WLR 259 (1989); 31 WLR 147, 449, 817 (1995); 36 EL 25 (2006); 49 WLR 411 (2013)

1 Legislative Counsel Committee, CHAPTER 197—Comprehensive Land Use Planning, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors197.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 197, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano197.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.