ORS 197.830¹
Review procedures
  • standing
  • fees
  • deadlines
  • rules
  • issues subject to review
  • attorney fees and costs
  • publication of orders
  • mediation

(1) Review of land use decisions or limited land use decisions under ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed) shall be commenced by filing a notice of intent to appeal with the Land Use Board of Appeals.

(2) Except as provided in ORS 197.620 (Who may appeal) (1) and (2), a person may petition the board for review of a land use decision or limited land use decision if the person:

(a) Filed a notice of intent to appeal the decision as provided in subsection (1) of this section; and

(b) Appeared before the local government, special district or state agency orally or in writing.

(3) If a local government makes a land use decision without providing a hearing, except as provided under ORS 215.416 (Permit application) (11) or 227.175 (Application for permit or zone change) (10), or the local government makes a land use decision that is different from the proposal described in the notice of hearing to such a degree that the notice of the proposed action did not reasonably describe the local government’s final actions, a person adversely affected by the decision may appeal the decision to the board under this section:

(a) Within 21 days of actual notice where notice is required; or

(b) Within 21 days of the date a person knew or should have known of the decision where no notice is required.

(4) If a local government makes a land use decision without a hearing pursuant to ORS 215.416 (Permit application) (11) or 227.175 (Application for permit or zone change) (10):

(a) A person who was not provided mailed notice of the decision as required under ORS 215.416 (Permit application) (11)(c) or 227.175 (Application for permit or zone change) (10)(c) may appeal the decision to the board under this section within 21 days of receiving actual notice of the decision.

(b) A person who is not entitled to notice under ORS 215.416 (Permit application) (11)(c) or 227.175 (Application for permit or zone change) (10)(c) but who is adversely affected or aggrieved by the decision may appeal the decision to the board under this section within 21 days after the expiration of the period for filing a local appeal of the decision established by the local government under ORS 215.416 (Permit application) (11)(a) or 227.175 (Application for permit or zone change) (10)(a).

(c) A person who receives mailed notice of a decision made without a hearing under ORS 215.416 (Permit application) (11) or 227.175 (Application for permit or zone change) (10) may appeal the decision to the board under this section within 21 days of receiving actual notice of the nature of the decision, if the mailed notice of the decision did not reasonably describe the nature of the decision.

(d) Except as provided in paragraph (c) of this subsection, a person who receives mailed notice of a decision made without a hearing under ORS 215.416 (Permit application) (11) or 227.175 (Application for permit or zone change) (10) may not appeal the decision to the board under this section.

(5) If a local government makes a 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 actions, a person adversely affected by the decision may appeal the decision to the board under this section:

(a) Within 21 days of actual notice where notice is required; or

(b) Within 21 days of the date a person knew or should have known of the decision where no notice is required.

(6)(a) Except as provided in paragraph (b) of this subsection, the appeal periods described in subsections (3), (4) and (5) of this section shall not exceed three years after the date of the decision.

(b) If notice of a hearing or an administrative decision made pursuant to ORS 197.195 (Limited land use decision) or 197.763 (Conduct of local quasi-judicial land use hearings) is required but has not been provided, the provisions of paragraph (a) of this subsection do not apply.

(7)(a) Within 21 days after a notice of intent to appeal has been filed with the board under subsection (1) of this section, any person may intervene in and be made a party to the review proceeding upon a showing of compliance with subsection (2) of this section.

(b) Notwithstanding the provisions of paragraph (a) of this subsection, persons who may intervene in and be made a party to the review proceedings, as set forth in subsection (1) of this section, are:

(A) The applicant who initiated the action before the local government, special district or state agency; or

(B) Persons who appeared before the local government, special district or state agency, orally or in writing.

(c) Failure to comply with the deadline set forth in paragraph (a) of this subsection shall result in denial of a motion to intervene.

(8) If a state agency whose order, rule, ruling, policy or other action is at issue is not a party to the proceeding, it may file a brief with the board as if it were a party. The brief shall be due on the same date the respondent’s brief is due.

(9) A notice of intent to appeal a land use decision or limited land use decision shall be filed not later than 21 days after the date the decision sought to be reviewed becomes final. A notice of intent to appeal plan and land use regulation amendments processed pursuant to ORS 197.610 (Local government notice of proposed amendment or new regulation) to 197.625 (When amendment or new regulation considered acknowledged) shall be filed not later than 21 days after notice of the decision sought to be reviewed is mailed or otherwise submitted to parties entitled to notice under ORS 197.615 (Local government notice of adopted amendment or new regulation). Failure to include a certificate of mailing with the notice mailed under ORS 197.615 (Local government notice of adopted amendment or new regulation) shall not render the notice defective. Copies of the notice of intent to appeal shall be served upon the local government, special district or state agency and the applicant of record, if any, in the local government, special district or state agency proceeding. The notice shall be served and filed in the form and manner prescribed by rule of the board and shall be accompanied by a filing fee of $175 and a deposit for costs to be established by the board. If a petition for review is not filed with the board as required in subsections (10) and (11) of this section, the filing fee and deposit shall be awarded to the local government, special district or state agency as cost of preparation of the record.

(10)(a) Within 21 days after service of the notice of intent to appeal, the local government, special district or state agency shall transmit to the board the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceeding the record may be shortened. The board may require or permit subsequent corrections to the record; however, the board shall issue an order on a motion objecting to the record within 60 days of receiving the motion.

(b) Within 10 days after service of a notice of intent to appeal, the board shall provide notice to the petitioner and the respondent of their option to enter into mediation pursuant to ORS 197.860 (Stay of proceedings to allow mediation). Any person moving to intervene shall be provided such notice within seven days after a motion to intervene is filed. The notice required by this paragraph shall be accompanied by a statement that mediation information or assistance may be obtained from the Department of Land Conservation and Development.

(11) A petition for review of the land use decision or limited land use decision and supporting brief shall be filed with the board as required by the board under subsection (13) of this section.

(12) The petition shall include a copy of the decision sought to be reviewed and shall state:

(a) The facts that establish that the petitioner has standing.

(b) The date of the decision.

(c) The issues the petitioner seeks to have reviewed.

(13)(a) The board shall adopt rules establishing deadlines for filing petitions and briefs and for oral argument.

(b) At any time subsequent to the filing of a notice of intent and prior to the date set for filing the record, or, on appeal of a decision under ORS 197.610 (Local government notice of proposed amendment or new regulation) to 197.625 (When amendment or new regulation considered acknowledged), prior to the filing of the respondent’s brief, the local government or state agency may withdraw its decision for purposes of reconsideration. If a local government or state agency withdraws an order for purposes of reconsideration, it shall, within such time as the board may allow, affirm, modify or reverse its decision. If the petitioner is dissatisfied with the local government or agency action after withdrawal for purposes of reconsideration, the petitioner may refile the notice of intent and the review shall proceed upon the revised order. An amended notice of intent shall not be required if the local government or state agency, on reconsideration, affirms the order or modifies the order with only minor changes.

(14) The board shall issue a final order within 77 days after the date of transmittal of the record. If the order is not issued within 77 days the applicant may apply in Marion County or the circuit court of the county where the application was filed for a writ of mandamus to compel the board to issue a final order.

(15)(a) Upon entry of its final order the board may, in its discretion, award costs to the prevailing party including the cost of preparation of the record if the prevailing party is the local government, special district or state agency whose decision is under review. The deposit required by subsection (9) of this section shall be applied to any costs charged against the petitioner.

(b) The board shall also award reasonable attorney fees and expenses to the prevailing party against any other party who the board finds presented a position without probable cause to believe the position was well-founded in law or on factually supported information.

(16) Orders issued under this section may be enforced in appropriate judicial proceedings.

(17)(a) The board shall provide for the publication of its orders that are of general public interest in the form it deems best adapted for public convenience. The publications shall constitute the official reports of the board.

(b) Any moneys collected or received from sales by the board shall be paid into the Board Publications Account established by ORS 197.832 (Board Publications Account).

(18) Except for any sums collected for publication of board opinions, all fees collected by the board under this section that are not awarded as costs shall be paid over to the State Treasurer to be credited to the General Fund. [1983 c.827 §31; 1985 c.119 §3; 1987 c.278 §1; 1987 c.729 §16; 1989 c.761 §12; 1991 c.817 §7; 1993 c.143 §1; 1993 c.310 §1; 1995 c.160 §1; 1995 c.595 §3; 1997 c.187 §1; 1997 c.452 §1; 1999 c.255 §2; 1999 c.348 §17; 1999 c.621 §3; 2003 c.791 §28; 2003 c.793 §6]

Notes of Decisions

Under Former Similar Statute

In context, "adversely affected" means that local land use decision impinges upon peti­tioner's use and enjoy­ment of prop­erty or otherwise detracts from interests per­sonal to peti­tioner. Jefferson Landfill Comm. v. Marion County, 297 Or 280, 686 P2d 310 (1984)

To have standing to peti­tion LUBA for review in quasi-judicial pro­ceed­ing as per­son "aggrieved," per­son must meet two-part test: (1) per­son filed notice of intent to ap­peal and appeared orally or in writing before local land use decision-making body; (2) per­son's interest in decision was recognized by local land use decision-making body, per­son asserted posi­tion on merits and local land use decision-making body reached decision contrary to posi­tion asserted by per­son. Jefferson Landfill Comm. v. Marion County, 297 Or 280, 686 P2d 310 (1984)

Peti­tioners satisfied statutory require­ment of appearance before local governing body where they appeared and testified orally before West Lane Planning Commission and county com­mis­sioners relied in whole or in part on record made by planning com­mis­sion. Warren v. Lane Co., 297 Or 290, 686 P2d 316 (1984)

In General

On remand, where peti­tioners who were entitled to notice of land use decision pursuant to ORS 197.615 (Local government notice of adopted amendment or new regulation) did not receive notice from county, time for filing of intent to ap­peal to LUBA was tolled until they had knowledge of decision. Ludwick v. Yamhill County, 72 Or App 224, 696 P2d 536 (1985), Sup Ct review denied

County ordinance controls in determina­tion as to when land use decision is final, for purposes of this sec­tion, where ordinance is not in conflict with LUBA rule or statutory authority. Columbia River Television v. Multnomah County, 299 Or 325, 702 P2d 1065 (1985)

Aggrieved prop­erty owners who opposed elec­tion to incorporate had standing to challenge vote of county board of com­mis­sioners on due process grounds. 1000 Friends of Oregon v. Wasco Co. Court, 304 Or 76, 742 P2d 39 (1987)

Where peti­tioners contended in ap­peal to LUBA that county failed to hold hearing and give notice as re­quired by ORS 215.416 (Permit application), peti­tioners were not re­quired to satisfy appearance pro­vi­sion of this sec­tion and are "aggrieved" within meaning of this sec­tion for purposes of standing. Flowers v. Klamath County, 98 Or App 384, 780 P2d 227 (1989), Sup Ct review denied; Hugo v. Columbia County, 157 Or App 1, 967 P2d 895 (1998)

Local ordinance require­ment for hearing cannot extend time for ap­pealing post-acknowledg­ment amend­ment to land use regula­tion. Orenco Neighborhood v. City of Hillsboro, 135 Or App 428, 899 P2d 720 (1995)

Where peti­tioner files ap­peal under ORS 215.416 (Permit application) seeking local review, direct ap­peal to LUBA is not available. Tarjoto v. Lane County, 137 Or App 305, 904 P2d 641 (1995)

Failure to include pay­ment with ap­peal accepted by LUBA is not jurisdic­tional defect. Ray v. Douglas County, 140 Or App 24, 914 P2d 26 (1996)

Party can be prevailing party where case is voluntarily dismissed without final decision on merits. Pfeifer v. City of Silverton, 146 Or App 191, 931 P2d 833 (1997)

Time for filing ap­peal is not tolled by delay in sending notice of final decision to party. Wicks-Snodgrass v. City of Reedsport, 148 Or App 217, 939 P2d 625 (1997), Sup Ct review denied

There is probable cause for belief that entire posi­tion is well founded if reasonable lawyer would conclude that any point asserted is open to doubt or subject to honest discussion. Fechtig v. City of Albany, 150 Or App 10, 946 P2d 280 (1997)

Attorney fees may be awarded only if all argu­ments comprising posi­tion of nonprevailing party on ap­peal are so meritless as to lack probable cause. Fechtig v. City of Albany, 150 Or App 10, 946 P2d 280 (1997)

Appellate decision need not decide assign­ment of error on merits for prevailing party to assert in attorney fee peti­tion that assign­ment lacked probable cause. Spencer Creek Neighbors v. Lane County, 152 Or App 1, 952 P2d 90 (1998)

Asser­tion of local governing body interpreta­tion that is clearly wrong is not necessarily asser­tion made without probable cause. Spencer Creek Neighbors v. Lane County, 152 Or App 1, 952 P2d 90 (1998)

Time for filing ap­peal of plan and land use amend­ments applies to any per­son with standing to ap­peal, not just per­sons entitled to notice. Depart­ment of Transporta­tion v. City of Oregon City, 153 Or App 705, 959 P2d 615 (1998)

Notwithstanding statutory language permitting any per­son who appeared before local govern­ment to intervene in review process, per­son seeking to intervene must meet constitu­tional require­ment of justiciability by showing that court's opinion will have practical effect on that party. Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001)

For purposes of determining whether local govern­ment made land use decision without providing hearing, "hearing" refers to quasi-judicial pro­ceed­ing held to gather evidence about applica­tion for land use permit or to hear and consider argu­ment on issues of fact or law relevant to applica­tion, regardless of scope of evidence considered at pro­ceed­ing. Friends of Jacksonville v. City of Jacksonville, 189 Or App 283, 76 P3d 121 (2003), Sup Ct review denied

Law Review Cita­tions

In General

65 OLR 186, 192 (1986); 36 WLR 441 (2000)

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. Currency Information