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.
(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]
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.