luba analysis in Oregon

2026“A LUBA order is unlawful in substance if it rep- resents a mistaken interpretation of the applicable law,” Redside Restoration v. Deschutes County, 344 Or App 383 , 391, 581 P3d 501 (2025) (internal quotation marks omit- ted), or if it misapplies LUBA’s standard of review in deter- mining whether a local government’s decision is supported by substantial evidence in the whole record, Citizens for Responsibility v. Lane County, 218 Or App 339, 345 , 180 P3d 35 (2008); see also ORS 197.835(9)(a)(C) (providing for LUBA’s substantial evidence review of land use decisions); ORS 197.732(6)(a) (provi

2026“A LUBA order is unlawful in substance if it rep- resents a mistaken interpretation of the applicable law,” Redside Restoration v. Deschutes County, 344 Or App 383 , 391, 581 P3d 501 (2025) (internal quotation marks omit- ted), or if it misapplies LUBA’s standard of review in deter- mining whether a local government’s decision is supported by substantial evidence in the whole record, Citizens for Responsibility v. Lane County, 218 Or App 339, 345 , 180 P3d 35 (2008); see also ORS 197.835(9)(a)(C) (providing for LUBA’s substantial evidence review of land use decisions); ORS 197.732(6)(a) (provi

2026“A LUBA order is unlawful in substance if it rep- resents a mistaken interpretation of the applicable law,” Redside Restoration v. Deschutes County, 344 Or App 383 , 391, 581 P3d 501 (2025) (internal quotation marks omit- ted), or if it misapplies LUBA’s standard of review in deter- mining whether a local government’s decision is supported by substantial evidence in the whole record, Citizens for Responsibility v. Lane County, 218 Or App 339, 345 , 180 P3d 35 (2008); see also ORS 197.835(9)(a)(C) (providing for LUBA’s substantial evidence review of land use decisions); ORS 197.732(6)(a) (provi

2026“A LUBA order is unlawful in substance if it represents a mistaken interpretation of the applicable law,” Redside Restoration v. Deschutes County, 344 Or App 383 , 391, 581 P3d 501 (2025) (internal quotation marks omitted), or if it misapplies LUBA’s standard of review in determin- ing whether a local government’s decision is supported by substantial evidence in the whole record, Citizens for Responsibility v. Lane County, 218 Or App 339, 345 , 180 P3d 35 (2008); see also ORS 197.835(9)(a)(C) (providing for LUBA’s substantial evidence review of land use decisions); ORS 197.732(6)(a) (providing

2026As to the latter, “[o]ur task is not to Cite as 347 Or App 454 (2026) 457 assess whether the local government erred in making a finding, but to determine whether LUBA properly exercised its review authority.” Citizens for Responsibility, 218 Or App at 345 . “[W]e do not substitute our judgment for LUBA’s on whether a reasonable person could make a finding of fact based upon the entire local government record.

2026As to the latter, “[o]ur task is not to Cite as 347 Or App 454 (2026) 457 assess whether the local government erred in making a finding, but to determine whether LUBA properly exercised its review authority.” Citizens for Responsibility, 218 Or App at 345 . “[W]e do not substitute our judgment for LUBA’s on whether a reasonable person could make a finding of fact based upon the entire local government record.

2025Cite as 341 Or App 674 (2025) 683 The conditional use provision provides that the factors, including adequacy of transportation access, are to be used to determine whether the site is “suitable for the proposed use.” DCC 18.128.015(A).

2025Cite as 341 Or App 674 (2025) 683 The conditional use provision provides that the factors, including adequacy of transportation access, are to be used to determine whether the site is “suitable for the proposed use.” DCC 18.128.015(A).

2011We review LUBA’s decision — more specifically, its construction of the administrative rule at issue, OAR 660-009-0005(11) — to determine whether the decision is “unlawful in substance.” ORS 197.850(9)(a); Stewart v. City of Salem, 231 Or App 356, 358 , 219 P3d 46 (2009), rev den, 348 Or 415 (2010).

2011We review LUBA's decision—more specifically, its construction of the administrative rule at issue, OAR XXX-XXX-XXXX(11)—to determine whether the decision is "unlawful in substance." ORS 197.850(9)(a); Stewart v. City of Salem, 231 Or.App. 356, 358 , 219 P.3d 46 (2009), rev. den., 348 Or. 415 , 233 P.3d 818 (2010).

2011We review LUBA’s decision — more specifically, its construction of the administrative rule at issue, OAR 660-009-0005(11) — to determine whether the decision is “unlawful in substance.” ORS 197.850(9)(a); Stewart v. City of Salem, 231 Or App 356, 358 , 219 P3d 46 (2009), rev den, 348 Or 415 (2010).

2011We review LUBA’s decision — more specifically, its construction of the administrative rule at issue, OAR 660-009-0005(11) — to determine whether the decision is “unlawful in substance.” ORS 197.850(9)(a); Stewart v. City of Salem, 231 Or App 356, 358 , 219 P3d 46 (2009), rev den, 348 Or 415 (2010).

1992Although Clark v. Jackson County, 313 Or 508 , 836 P2d 710 (1992), was decided shortly before LUBA’s decision here, the parties’ written arguments to LUBA predated Clark and it played no role in LUBA’s analysis.

1992Although Clark v. Jackson County, 313 Or 508 , 836 P2d 710 (1992), was decided shortly before LUBA’s decision here, the parties’ written arguments to LUBA predated Clark and it played no role in LUBA’s analysis.

2024Sols. v. Lane Cty., 274 Or App 545, 553 , 361 P3d 613 (2015); see also ORS 215.422(1) (providing that the county may prescribe the procedure and type of hearing for review of a hearings officer’s decision by the governing body and that the governing body may provide that the hearings officer’s decision is the final determination of the county); OAR 661-10-010(3) (LUBA rule defining “final decision”).1 Here the county has done so.

2024Sols. v. Lane Cty., 274 Or App 545, 553 , 361 P3d 613 (2015); see also ORS 215.422(1) (providing that the county may prescribe the procedure and type of hearing for review of a hearings officer’s decision by the governing body and that the governing body may provide that the hearings officer’s decision is the final determination of the county); OAR 661-10-010(3) (LUBA rule defining “final decision”).1 Here the county has done so.

2021In a published opinion, we affirmed LUBA’s decision with regard to ORS 215.448(1) and, without further elabo- ration, expressly adopted LUBA’s analysis of the meaning of the word “employ.” See Green v. Douglas County, 245 Or App 430, 442 , 263 P3d 355 (2011) (Green II) (“For the reasons set forth in LUBA’s opinion, Green v. Douglas County, 63 Or LUBA 200, 216-25 (2011), we agree with its conclusions on the meaning of ‘substantially’ and ‘employ’ under ORS 215.448(1).”).

2021In a published opinion, we affirmed LUBA’s decision with regard to ORS 215.448(1) and, without further elabo- ration, expressly adopted LUBA’s analysis of the meaning of the word “employ.” See Green v. Douglas County, 245 Or App 430, 442 , 263 P3d 355 (2011) (Green II) (“For the reasons set forth in LUBA’s opinion, Green v. Douglas County, 63 Or LUBA 200, 216-25 (2011), we agree with its conclusions on the meaning of ‘substantially’ and ‘employ’ under ORS 215.448(1).”).

2020Cite as 301 Or App 769 (2020) 795 conclusion of greater economic impact to those properties than if the ESEE used different assumptions that were applied in other areas of the central eastside.” OSB argues that LUBA’s analysis is flawed because it was the city’s burden to justify using a different method- ology for the Southern Triangle, OSB showed that the base height numbers used by the city were inaccurate and based on flawed assumptions, and the ESEE assumptions were not more conservative than other districts.

2011LUBA further explained that, although petitioner was correct that the county could not properly rely on a planning commissioner’s statements as legislative history in support of its interpretation of CCC 1.060, any such reliance was harmless. *506 On judicial review, the parties acknowledge that our standard of review of the county’s interpretation of the zoning ordinance is, like LUBA’s standard, described in Siporen, 349 Or at 259 : whether the county’s interpretation is “plausible.” In Siporen , the Supreme Court explained that, when a local government plausibly interprets its own land use

2011LUBA further explained that, although petitioner was correct that the county could not properly rely on a planning commissioner’s statements as legislative history in support of its interpretation of CCC 1.060, any such reliance was harmless. *506 On judicial review, the parties acknowledge that our standard of review of the county’s interpretation of the zoning ordinance is, like LUBA’s standard, described in Siporen, 349 Or at 259 : whether the county’s interpretation is “plausible.” In Siporen , the Supreme Court explained that, when a local government plausibly interprets its own land use

2008The hospital and amicus League of Oregon Cities contended that LUBA’s analysis would require that transportation facilities be constructed concurrently with new developments rather than be completed at the end of the planning period, resulting in “piece-meal decision-making” and “the construction of projects that provide fewer benefits to the transportation system as a whole prior to more beneficial projects, thereby preventing the governmental entities from carrying out those transportation improvements in the most cost effective and efficient manner.” 193 Or App at 593 .

2006Petitioners cite ORS 197.829(1) 1 Clark v. Jackson *364 County, 313 Or 508 , 836 P2d 710 (1992), and Gage v. City of Portland, 319 Or 308 , 877 P2d 1187 (1994).

2006Petitioners cite ORS 197.829(1) 1 Clark v. Jackson *364 County, 313 Or 508 , 836 P2d 710 (1992), and Gage v. City of Portland, 319 Or 308 , 877 P2d 1187 (1994).

2001LUBA first noted that criterion 3 is a regulation that falls into the “third category” of State v. Robertson, 293 Or 402 , 649 P2d 569 (1982).

2001LUBA first noted that criterion 3 is a regulation that falls into the “third category” of State v. Robertson, 293 Or 402 , 649 P2d 569 (1982).

1998In Friends of Bryant Woods Park v. City of Lake Oswego, 126 Or App 205 , 868 P2d 24 (1994), andAlex anderson v. Clackamas County, 126 Or App 549 , 869 P2d 873 , rev den 319 Or 150 (1994), arguments were presented to us that, notwithstanding the deferential review standard of ORS 197.829 and Clark , inconsistent or arbitrary local interpretations, which result in unjustified selective or conflicting applications of local provisions to different applicants, should be treated as reversible per se.

1998In Friends of Bryant Woods Park v. City of Lake Oswego, 126 Or App 205 , 868 P2d 24 (1994), andAlex anderson v. Clackamas County, 126 Or App 549 , 869 P2d 873 , rev den 319 Or 150 (1994), arguments were presented to us that, notwithstanding the deferential review standard of ORS 197.829 and Clark , inconsistent or arbitrary local interpretations, which result in unjustified selective or conflicting applications of local provisions to different applicants, should be treated as reversible per se.

1998In Friends of Bryant Woods Park v. City of Lake Oswego, 126 Or App 205 , 868 P2d 24 (1994), andAlex anderson v. Clackamas County, 126 Or App 549 , 869 P2d 873 , rev den 319 Or 150 (1994), arguments were presented to us that, notwithstanding the deferential review standard of ORS 197.829 and Clark , inconsistent or arbitrary local interpretations, which result in unjustified selective or conflicting applications of local provisions to different applicants, should be treated as reversible per se.

1998In Friends of Bryant Woods Park v. City of Lake Oswego, 126 Or App 205 , 868 P2d 24 (1994), andAlex anderson v. Clackamas County, 126 Or App 549 , 869 P2d 873 , rev den 319 Or 150 (1994), arguments were presented to us that, notwithstanding the deferential review standard of ORS 197.829 and Clark , inconsistent or arbitrary local interpretations, which result in unjustified selective or conflicting applications of local provisions to different applicants, should be treated as reversible per se.

1994LUBA’s rule, codified at OAR 661-10-010(3), provides: “ ‘Final decision’: A decision becomes final when it is reduced to writing and bears the necessary signatures of the decision maker(s), unless a local rule or ordinance specifies that the decision becomes final at a later time, in which case the decision is considered final as provided in the local rule or ordinance.” See also Columbia River Television v. Multnomah Co., 299 Or 325 , 702 P2d 1065 (1985).

1994LUBA’s rule, codified at OAR 661-10-010(3), provides: “ ‘Final decision’: A decision becomes final when it is reduced to writing and bears the necessary signatures of the decision maker(s), unless a local rule or ordinance specifies that the decision becomes final at a later time, in which case the decision is considered final as provided in the local rule or ordinance.” See also Columbia River Television v. Multnomah Co., 299 Or 325 , 702 P2d 1065 (1985).

1992Before the decision in Clark , it seems clear that LUBA could have remanded the case to the county to resolve the ambiguity, see Schatz v. City of Jacksonville, 113 Or App 675 , 835 P2d 923 (1992); and, because the county had already had the initial interpretive opportunity, LUBA could also have proceeded to interpret the plan on its own, rather than remanding the decision.

1992Before the decision in Clark , it seems clear that LUBA could have remanded the case to the county to resolve the ambiguity, see Schatz v. City of Jacksonville, 113 Or App 675 , 835 P2d 923 (1992); and, because the county had already had the initial interpretive opportunity, LUBA could also have proceeded to interpret the plan on its own, rather than remanding the decision.

1985The majority states that a local body may not alter LUBA’s jurisdiction by the enactment of ordinances that purport to expand or limit LUBA’s authority, citing Lyke v. Lane County, 70 Or App 82 , 688 P2d 411 (1984), (70 Or at 451).

1985The majority states that a local body may not alter LUBA’s jurisdiction by the enactment of ordinances that purport to expand or limit LUBA’s authority, citing Lyke v. Lane County, 70 Or App 82 , 688 P2d 411 (1984), (70 Or at 451).

1982In Miller v. City of Portland, 55 Or App 633, 639 P2d 680 (1982), the petitioner argued that she should have been afforded quasi-judicial procedures in connection with changes she sought in the zoning of her property under the city’s proposed comprehensive plan.

1982In Miller v. City of Portland, 55 Or App 633, 639 P2d 680 (1982), the petitioner argued that she should have been afforded quasi-judicial procedures in connection with changes she sought in the zoning of her property under the city’s proposed comprehensive plan.