2007 ORS 197.825¹
Jurisdiction of board
  • limitations
  • effect on circuit court jurisdiction

(1) Except as provided in ORS 197.320 (Power of commission to order compliance with goals and plans) and subsections (2) and (3) of this section, the Land Use Board of Appeals shall have exclusive jurisdiction to review any land use decision or limited land use decision of a local government, special district or a state agency in the manner provided in ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed).

(2) The jurisdiction of the board:

(a) Is limited to those cases in which the petitioner has exhausted all remedies available by right before petitioning the board for review;

(b) Is subject to the provisions of ORS 197.850 (Judicial review of board order) relating to judicial review by the Court of Appeals;

(c) Does not include a local government decision that is:

(A) Submitted to the Department of Land Conservation and Development for acknowledgment under ORS 197.251 (Compliance acknowledgment), 197.626 (Expanding urban growth boundary or designating urban or rural reserves subject to periodic review) or 197.628 (Periodic review) to 197.650 (Appeal to Court of Appeals) or a matter arising out of a local government decision submitted to the department for acknowledgment, unless the Director of the Department of Land Conservation and Development, in the director’s sole discretion, transfers the matter to the board; or

(B) Subject to the review authority of the department under ORS 197.430 (Enforcement powers), 197.445 (Destination resort criteria), 197.450 (Siting without taking goal exception) or 197.455 (Siting of destination resorts) or a matter related to a local government decision subject to the review authority of the department under ORS 197.430 (Enforcement powers), 197.445 (Destination resort criteria), 197.450 (Siting without taking goal exception) or 197.455 (Siting of destination resorts);

(d) Does not include those land use decisions of a state agency over which the Court of Appeals has jurisdiction for initial judicial review under ORS 183.400 (Judicial determination of validity of rule), 183.482 (Jurisdiction for review of contested cases) or other statutory provisions;

(e) Does not include any rules, programs, decisions, determinations or activities carried out under ORS 527.610 (Short title) to 527.770 (Good faith compliance with best management practices not violation of water quality standards), 527.990 (Criminal penalties) (1) and 527.992 (Civil penalties);

(f) Is subject to ORS 196.115 (Appeal from decision of Columbia River Gorge Commission or county) for any county land use decision that may be reviewed by the Columbia River Gorge Commission pursuant to sections 10(c) or 15(a)(2) of the Columbia River Gorge National Scenic Area Act, P.L. 99-663; and

(g) Does not include review of expedited land divisions under ORS 197.360 ("Expedited land division" defined).

(3) Notwithstanding subsection (1) of this section, the circuit courts of this state retain jurisdiction:

(a) To grant declaratory, injunctive or mandatory relief in proceedings arising from decisions described in ORS 197.015 (Definitions for ORS chapters 195, 196 and 197) (10)(b) or proceedings brought to enforce the provisions of an adopted comprehensive plan or land use regulations; and

(b) To enforce orders of the board in appropriate proceedings brought by the board or a party to the board proceeding resulting in the order. [1983 c.827 §30; 1987 c.729 §14; 1987 c.856 §9; 1987 c.919 §4; 1989 c.761 §11; 1991 c.817 §4; 1995 c.595 §26; 1999 c.348 §16; 2005 c.22 §146; 2005 c.245 §1; 2005 c.829 §10; 2007 c.354 §30]

Notes of Decisions

Where right to ask for review is uncondi­tionally granted by county, although county Board of Commissioners may elect not to hear ap­peal, there is remedy available by right which must be exhausted before LUBA has jurisdic­tion under this sec­tion. Lyke v. Lane County, 70 Or App 82, 688 P2d 411 (1984)

Lane County ordinance purporting to permit peti­tioner to elect whether or not to use local ap­peal right before ap­pealing to LUBA conflicts with this sec­tion. Lyke v. Lane County, 70 Or App 82, 688 P2d 411 (1984)

Voter rejec­tion of annexa­tion proposal was not land use decision ap­pealable to court of ap­peals; if annexa­tion were ap­pealable, it would be on ac­tion by governing body rather than elec­tion. Heritage Enterprises v. City of Corvallis, 71 Or App 581, 693 P2d 651 (1984), aff'd 300 Or 168, 708 P2d 601 (1985)

Where defendant's ac­tions are taken in compliance with land use decision by local govern­ment, subject matter of ac­tion is within LUBA's exclusive jurisdic­tion. Wright v. KECH-TV, 71 Or App 662, 694 P2d 545 (1984), aff'd 300 Or 139, 707 P2d 1232 (1985)

Exhaus­tion of remedies require­ment is merely excep­tion to and limita­tion on general grant of jurisdic­tion and does not extend LUBA jurisdic­tion to review anything that is not land use decision. Heritage Enterprises v. City of Corvallis, 300 Or 168, 708 P2d 601 (1985)

Discre­tionary rehearing was not one of "remedies available by right" re­quired to be exhausted before seeking LUBA review of local govern­ment ac­tion. Portland Audubon Society v. Clackamas County, 77 Or App 277, 712 P2d 839 (1986)

Peti­tioner's failure to adequately pursue county pro­ce­dures in ap­pealing small-tract plan amend­ment from planning com­mis­sion to governing body did not constitute failure to exhaust local remedies or preclude obtaining LUBA's review of amend­ment. Colwell v. Washington Co., 79 Or App 82, 718 P2d 747 (1986), Sup Ct review denied

Although circuit court could not give mandamus relief under this sec­tion to compel county to rescind parti­tion approval because county had no mandatory duty to rescind as distinct from enforcing its land use regula­tions in other ways, subject matter was within court's jurisdic­tion as well as or instead of LUBA's. Doughton v. Douglas County, 90 Or App 49, 750 P2d 1174 (1988)

County's purported decision not to revoke parti­tion approval did not divest circuit court of jurisdic­tion under this sec­tion where peti­tioner alleged that there was ongoing pattern of non-en­force­­ment, of which refusal to revoke approval was merely incident. Doughton v. Douglas County, 90 Or App 49, 750 P2d 1174 (1988)

Mandamus remedy of ORS 215.428 is not available once local governing body has issued land use decision even if decision is issued after 120 day dead­line; once land use decision is issued, LUBA has exclusive jurisdic­tion to review that decision pursuant to this sec­tion. Simon v. Bd. of Co. Comm. of Marion Co., 91 Or App 487, 755 P2d 741 (1988)

Where opposed ac­tion takes form of or is permitted by land use decision, exclusive avenue of review is to LUBA, then to Court of Appeals and this sec­tion does not es­tab­lish circuit court jurisdic­tion to render sec­ond decision on same subject in guise of en­force­­ment. City of Oregon City v. Mill-Maple Properties, Inc., 98 Or App 238, 779 P2d 172 (1989)

Where Metro's recommenda­tion for freeway corridor in its Regional Transporta­tion Plan was contingent on sub­se­quent decisions aimed at determining or achieving compliance with statewide land use planning goals, it was not final ap­pealable land use decision. Sensible Transporta­tion v. Metro Service Dist., 100 Or App 564, 787 P2d 498 (1990), Sup Ct review denied

Circuit court had no jurisdic­tion to review county's determina­tion whether condi­tional use permit had expired where determina­tion was land use decision, based upon substantial progress of develop­ment. Sauvie Island Agricultural v. GGS (Hawaii), Inc., 107 Or App 1, 810 P2d 856 (1991)

Under this statute and ORS 197.015 (Definitions for ORS chapters 195, 196 and 197), circuit court authority ends and exclusive land use decisional process begins where granting or denial of permit involves exercise of judg­ment or interpreta­tion of ordinance, rather than mere ministerial applica­tion of ordinance that requires no interpreta­tion or judg­ment. Campbell v. Bd. of County Commissioners, 107 Or App 611, 813 P2d 1074 (1991)

Local govern­ment's decision to bring en­force­­ment pro­ceed­ing under this sec­tion is not reviewable by LUBA because it is not land use decision. Wygant v. Curry County, 110 Or App 189, 821 P2d 1109 (1991)

Although damages for inverse condemna­tion are available only through judicial ac­tion, inverse condemna­tion issues can be raised either before LUBA or in judicial forum. Springer v. City of Bend, 111 Or App 136, 826 P2d 1, Sup Ct review denied; Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994)

Landowner is not re­quired to exhaust all available local ap­peals where scope of what local regula­tion permits or prohibits can be determined from particular decision ap­pealed, distinguishing Fifth Avenue Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978). Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994)

Circuit court authority to decide land use issues is dependent on nature of pro­ceed­ing, not nature of issue. Clackamas County v. Marson, 128 Or App 18, 874 P2d 110 (1994), Sup Ct review denied

In marginal cases where enact­ment could fairly be characterized either as land use regula­tion or other type of regula­tion, Land Use Board of Appeals and courts have concurrent jurisdic­tion to hear challenge. Scappoose Sand and Gravel, Inc. v. Columbia County, 161 Or App 325, 984 P2d 876 (1999), Sup Ct review denied

Where hearing process was terminated before adjudica­tion on merits, per­son who did not file own ap­peal but appeared at hearing satisfied exhaus­tion of remedies require­ment for ap­pealing resulting decision. Dead Indian Memorial Road Neighbors v. Jackson County, 188 Or App 503, 72 P3d 648 (2003)

Party may not raise issue before Land Use Board of Appeals if party could have specified issue as ground for ap­peal before local body, but did not do so. Miles v. City of Florence, 190 Or App 500, 79 P3d 382 (2003), Sup Ct review denied

Law Review Cita­tions

68 OLR 987 (1989)

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 (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)

1 Legislative Counsel Committee, CHAPTER 197—Comprehensive Land Use Planning Coordination, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­197.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 197, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­197ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
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.