Oregon Court of Appeals: LUBA May Not Grant Voluntary Remands

A recent decision from the Oregon Court of Appeals, Dexter Lost Valley Community Association v. Lane County, limits the abilities of Oregon cities to withdraw a decision that a party has appealed to the Oregon Land Use Board of Appeals. Background

Anyone who has worked on behalf of an Oregon city for even a modest amount of time is likely familiar with Oregon’s unique land use system, which has many characteristics that are foreign to other states.  One of these is the Land Use Board of Appeals (“LUBA”).  In virtually all other states, if a party wants to challenge a local zoning or development decision it must initiate a lawsuit.  Lawsuits are expensive and trial court judges generally are not well versed in land use law.

The Oregon Legislature created LUBA to reduce the expense and time associated with seeking review of land use decisions and to ensure a panel of experts in land use law reviewed land use decisions.  This has produced a body of generally consistent land use case law and has permitted Oregon’s circuit courts to focus their resources in other areas.

A LUBA appeal is a relatively straightforward process.  The local government files a record of the decision (i.e. the materials the decision maker considered at the local level).  The parties then submit written briefs urging LUBA to overturn or uphold the decision based on the relevant law and facts.  LUBA permits the parties to present oral argument, and then subsequently issues an order either upholding or rejecting the local government’s decision.

While the state retains significant control over land use issues in Oregon, the system aspires to have as many decisions made – and by extension as many disputes resolved – at the local level.  In that spirit, Oregon cities do not have to proceed with defending a decision if they believe it is vulnerable to a reversal or a remand from LUBA.  Historically, a local government could “take back” its decision at one of two times during the LUBA appeal process:  at any time and for any reason prior to the filing of the record; or  by filing a request for a “voluntary remand” after a petitioner filed its brief.

The Court’s Decision

An Oregon statute, ORS 197.830(13)(b), expressly permits a city to unilaterally withdraw a decision for reconsideration prior to the deadline for filing the record.  However, Oregon law is silent on a jurisdiction’s right to ask LUBA for a voluntary remand after the record is submitted and the petitioner has filed its brief.  LUBA has historically granted requests for voluntary remands because they promote judicial economy and potentially allow parties to resolve disputes at the local level.

In this case, Lane County asked for a voluntary remand after the petitioner filed its brief with LUBA.  Over the petitioner’s objection, LUBA granted Lane County’s request after the county agreed to address on remand all of the assignments of error petitioner raised in its brief. The petitioner then appealed LUBA’s order granting the voluntary remand to the Oregon Court of Appeals.

The petitioner argued that ORS 197.830(13)(b) is the exclusive means by which a city may reconsider its decision and not be compelled to defend it at LUBA.  Because the Legislature expressly permitted local governments to withdraw land use decisions prior to the filing of the local record with LUBA, the petitioner argued that the Legislature implicitly prohibited a withdrawal afterward.  The county argued that LUBA’s policy to allow voluntary remands after a local government submits a record does not conflict with the express statutory authority to seek reconsideration before the record is filed.  In essence, the county asserted that LUBA’s authority to permit voluntary remands is consistent with its statutory duty to render decisions consistent with “sound principles governing judicial review” (ORS 197.805).

After reviewing the legislative history of ORS 197.830(13)(b), the court agreed with the petitioners that LUBA does not have the authority to allow a local government to “take back” a land use decision after it has filed the record in the appeal.  The court noted that the original language of the bill codifying ORS 197.830(13)(b) permitted a local government to withdraw a decision for reconsideration prior to oral argument.  The Legislature amended the bill to require a withdrawal prior to the filing of a record after 1000 Friends of Oregon objected to the original language.  1000 Friends argued that a petitioner could end up spending a lot of time (and money if it hired an attorney) briefing the case and preparing for oral argument, only to have the local government decide to withdraw the decision late in the appeal process.  Based on the legislative history and the fact that Oregon law was otherwise silent about LUBA’s authority to permit voluntary remands, the court held that LUBA erred in allowing Lane County to take its decision back after it filed the record.

The Impact

It is not clear whether Lane County will appeal the court’s decision to the Oregon Supreme Court.  For now, if a city faced with a LUBA appeal believes it has a good chance of losing, it must decide to withdraw the decision prior to the date it must file the record with LUBA.  This is unfortunate, because in many instances a city only realizes after it understands a petitioner’s arguments how vulnerable its decision may be to a LUBA reversal or remand.