2015 ORS 197.850¹
Judicial review of board order
  • procedures
  • scope of review
  • attorney fees
  • undertaking

(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)(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)(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 shall 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) shall be confined to the record. The court shall 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 courts 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).

(13) Upon entry of its final order, the court shall award attorney fees and expenses to a party who 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.

(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]

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 citys land use decision does not control citys decision on remand and does not affect LUBAs 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 govern­ments 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), affd 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 courts 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)

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 countys 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 I, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors197.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 197, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano197.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.