197.850
Judicial review of board order; procedures; scope of review; attorney fees; undertaking. (1) Any party to a proceeding
before the Land Use Board of Appeals under ORS 197.830 to 197.845 may seek
judicial review of a final order issued in those proceedings.
(2)
Notwithstanding the provisions of ORS 183.480 to 183.540, judicial review of
orders issued under ORS 197.830 to 197.845 is solely as provided in this
section.
(3)(a)
Jurisdiction for judicial review of proceedings under ORS 197.830 to 197.845 is
conferred upon the Court of Appeals. Proceedings for judicial review are
instituted by filing a petition in the Court of Appeals. The petition must be
filed within 21 days following the date the board delivered or mailed the order
upon which the petition is based.
(b) Filing of the
petition, as set forth in paragraph (a) of this subsection, and service of a
petition on all persons identified in the petition as adverse parties of record
in the board proceeding is jurisdictional and may not be waived or extended.
(4) The petition
must state the nature of the order the petitioner desires reviewed. Copies of
the petition must be served by first class, registered or certified mail on the
board and all other parties of record in the board proceeding.
(5) Within seven
days after service of the petition, the board shall transmit to the court the
original or a certified copy of the entire record of the proceeding under
review, but, by stipulation of all parties to the review proceeding, the record
may be shortened. The court may tax a party that unreasonably refuses to
stipulate to limit the record for the additional costs. The court may require
or permit subsequent corrections or additions to the record when deemed
desirable. Except as specifically provided in this subsection, the court may
not tax the cost of the record to the petitioner or any intervening party.
However, the court may tax such costs and the cost of transcription of record
to a party filing a frivolous petition for judicial review.
(6) Petitions and
briefs must be filed within time periods and in a manner established by the
Court of Appeals by rule.
(7)(a) The court
shall hear oral argument within 49 days of the date of transmittal of the
record.
(b) The court may
hear oral argument more than 49 days from the date of transmittal of the record
provided the court determines that the ends of justice served by holding oral
argument on a later day outweigh the best interests of the public and the parties.
The court may not hold oral argument more than 49 days from the date of
transmittal of the record because of general congestion of the court calendar
or lack of diligent preparation or attention to the case by any member of the
court or any party.
(c) The court
shall set forth in writing a determination to hear oral argument more than 49
days from the date the record is transmitted, together with the reasons for its
determination, and shall provide a copy to the parties. The court shall
schedule oral argument as soon as practicable thereafter.
(d) In making a
determination under paragraph (b) of this subsection, the court shall consider:
(A) Whether the
case is so unusual or complex, due to the number of parties or the existence of
novel questions of law, that 49 days is an unreasonable amount of time for the
parties to brief the case and for the court to prepare for oral argument; and
(B) Whether the
failure to hold oral argument at a later date likely would result in a
miscarriage of justice.
(8) Judicial
review of an order issued under ORS 197.830 to 197.845 must be confined to the
record. The court may not substitute its judgment for that of the board as to
any issue of fact.
(9) The court may
affirm, reverse or remand the order. The court shall reverse or remand the
order only if it finds:
(a) The order to
be unlawful in substance or procedure, but error in procedure is not cause for
reversal or remand unless the court finds that substantial rights of the
petitioner were prejudiced thereby;
(b) The order to
be unconstitutional; or
(c) The order is
not supported by substantial evidence in the whole record as to facts found by
the board under ORS 197.835 (2).
(10) The Court of
Appeals shall issue a final order on the petition for judicial review with the
greatest possible expediency.
(11) If the order
of the board is remanded by the Court of Appeals or the Supreme Court, the
board shall respond to the court’s appellate judgment within 30 days.
(12) A party must
file with the board an undertaking with one or more sureties insuring that the
party will pay all costs, disbursements and attorney fees awarded against the
party by the Court of Appeals if:
(a) The party
appealed a decision of the board to the Court of Appeals; and
(b) In making the
decision being appealed to the Court of Appeals, the board awarded attorney
fees and expenses against that party under ORS 197.830 (15)(b) or (c).
(13) Upon entry
of its final order, the court shall award attorney fees and expenses to a party
who:
(a) Prevails on a
claim that an approval condition imposed by a local government on an
application for a permit pursuant to ORS 215.416 or 227.175 is unconstitutional
under section 18, Article I, Oregon Constitution, or the Fifth Amendment to the
United States Constitution; or
(b) Is entitled
to attorney fees under ORS 197.843.
(14) The
undertaking required in subsection (12) of this section must be filed with the
board and served on the opposing parties within 10 days after the date the
petition was filed with the Court of Appeals. [1983 c.827 §35; 1989 c.515 §1;
1989 c.761 §26; 1995 c.595 §19; 1997 c.733 §1; 1999 c.575 §1; 1999 c.621 §10;
2009 c.25 §1; 2019 c.221 §2; 2021 c.385 §3a]
Notes of Decisions
Utsey v. Coos County (2001)
orctapp · cites it 24×
“830 and ORS 197.850. They nevertheless contend that statutory standing does not necessarily establish that a claim is constitutionally justiciable and that, in this case, because the League has no concrete interest in the outcome of the case, its claim is nonjusticiable as a…”
Wal-Mart Stores, Inc. v. City of Central Point (2006)
or · cites it 21×
“Any party who is dissatisfied with an order of the Land Use Board of Appeals (LUBA) may seek judicial review of that order in the Court of Appeals pursuant to ORS 197.850. That statute sets forth the filing and service requirements that a petitioner must satisfy to invoke the…”
Younger v. City of Portland (1988)
or · cites it 8×
“Nevertheless, judicial review under ORS 197.850 is of LUBA's order, not the decision of the local government.”
Rogue Advocates v. Jackson County (2016)
orctapp · cites it 5×
“Petitioners timely petitioned us for review of LUBA’s final order under ORS 197.850. On review, they reiterate many of the arguments they made to LUBA.”
City of Damascus v. Brown (2014)
orctapp · cites it 10×
“§ 3(2)(a) (“Except as provided in paragraph (b) of this subsection, ORS 197.850, 197.855 and 197.860 apply to judicial review under this section.”
Schaefer v. Oregon Aviation Board (2021)
orctapp · cites it 5×
“ORS 197.850 (9)(a). To the extent that we are called on to review LUBA’s factual determinations in this case, it suffices to note that, as to the few disputed facts at issue, there is no evidence in the record to support LUBA’s erroneous findings.”
Siporen v. City of Medford (2010)
or · cites it 2×
“Petitioners observe that the relevant statutory standard, ORS 197.850(9), does not confer authority on the Court of Appeals to review local government decisions directly but, instead, instructs the court to review LUBA’s orders to determine if they are “unlawful in substance or…”
Just v. City of Lebanon (2004)
orctapp · cites it 3×
“830 (concerning standing before LUBA) and ORS 197.850 (concerning statutory standing in this court) is sufficient to afford him standing to seek review in this court.”
Clark v. Jackson County (1994)
or · cites it 2×
“ords, may the land area, for which a surface mining conditional use permit is sought, be isolated from the surrounding land when the “generally unsuitable” criterion of the local nonconforming use ordinance is being applied? Before turning to consideration of whether LUBA is…”
Tarr v. Multnomah County (2020)
orctapp · cites it 3×
“Cite as 306 Or App 26 (2020) 33 predicated on the theory that the compatibility standard applies to intervenors’ application—provide a basis for dis- placing LUBA’s ultimate decision to affirm the hearings officer’s order.”
— Or. Rev. Stat. § 197.850(1) — 17 cases
Utsey v. Coos County (2001)
orctapp
“830 and ORS 197.850. They nevertheless contend that statutory standing does not necessarily establish that a claim is constitutionally justiciable and that, in this case, because the League has no concrete interest in the outcome of the case, its claim is nonjusticiable as a…”
Wal-Mart Stores, Inc. v. City of Central Point (2006)
or
“Any party who is dissatisfied with an order of the Land Use Board of Appeals (LUBA) may seek judicial review of that order in the Court of Appeals pursuant to ORS 197.850. That statute sets forth the filing and service requirements that a petitioner must satisfy to invoke the…”
Just v. City of Lebanon (2004)
orctapp
“830 (concerning standing before LUBA) and ORS 197.850 (concerning statutory standing in this court) is sufficient to afford him standing to seek review in this court.”
— Or. Rev. Stat. § 197.850(10) — 3 cases
— Or. Rev. Stat. § 197.850(12) — 2 cases
— Or. Rev. Stat. § 197.850(15)(b) — 2 cases
— Or. Rev. Stat. § 197.850(2) — 2 cases
Wal-Mart Stores, Inc. v. City of Central Point (2006)
or
“Any party who is dissatisfied with an order of the Land Use Board of Appeals (LUBA) may seek judicial review of that order in the Court of Appeals pursuant to ORS 197.850. That statute sets forth the filing and service requirements that a petitioner must satisfy to invoke the…”
— Or. Rev. Stat. § 197.850(3) — 14 cases
City of Damascus v. Brown (2014)
orctapp
“§ 3(2)(a) (“Except as provided in paragraph (b) of this subsection, ORS 197.850, 197.855 and 197.860 apply to judicial review under this section.”
— Or. Rev. Stat. § 197.850(3)(a) — 13 cases
Wal-Mart Stores, Inc. v. City of Central Point (2006)
or
“Any party who is dissatisfied with an order of the Land Use Board of Appeals (LUBA) may seek judicial review of that order in the Court of Appeals pursuant to ORS 197.850. That statute sets forth the filing and service requirements that a petitioner must satisfy to invoke the…”
— Or. Rev. Stat. § 197.850(3)(b) — 5 cases
Wal-Mart Stores, Inc. v. City of Central Point (2006)
or
“Any party who is dissatisfied with an order of the Land Use Board of Appeals (LUBA) may seek judicial review of that order in the Court of Appeals pursuant to ORS 197.850. That statute sets forth the filing and service requirements that a petitioner must satisfy to invoke the…”
— Or. Rev. Stat. § 197.850(4) — 9 cases
Wal-Mart Stores, Inc. v. City of Central Point (2006)
or
“Any party who is dissatisfied with an order of the Land Use Board of Appeals (LUBA) may seek judicial review of that order in the Court of Appeals pursuant to ORS 197.850. That statute sets forth the filing and service requirements that a petitioner must satisfy to invoke the…”
City of Damascus v. Brown (2014)
orctapp
“§ 3(2)(a) (“Except as provided in paragraph (b) of this subsection, ORS 197.850, 197.855 and 197.860 apply to judicial review under this section.”
— Or. Rev. Stat. § 197.850(5) — 1 case
— Or. Rev. Stat. § 197.850(6) — 3 cases
— Or. Rev. Stat. § 197.850(8) — 29 cases
Tarr v. Multnomah County (2020)
orctapp
“Cite as 306 Or App 26 (2020) 33 predicated on the theory that the compatibility standard applies to intervenors’ application—provide a basis for dis- placing LUBA’s ultimate decision to affirm the hearings officer’s order.”
— Or. Rev. Stat. § 197.850(9) — 57 cases
Younger v. City of Portland (1988)
or
“Nevertheless, judicial review under ORS 197.850 is of LUBA's order, not the decision of the local government.”
Siporen v. City of Medford (2010)
or
“Petitioners observe that the relevant statutory standard, ORS 197.850(9), does not confer authority on the Court of Appeals to review local government decisions directly but, instead, instructs the court to review LUBA’s orders to determine if they are “unlawful in substance or…”
Clark v. Jackson County (1994)
or
“ords, may the land area, for which a surface mining conditional use permit is sought, be isolated from the surrounding land when the “generally unsuitable” criterion of the local nonconforming use ordinance is being applied? Before turning to consideration of whether LUBA is…”
— Or. Rev. Stat. § 197.850(9)(a) — 195 cases
Tarr v. Multnomah County (2020)
orctapp
“Cite as 306 Or App 26 (2020) 33 predicated on the theory that the compatibility standard applies to intervenors’ application—provide a basis for dis- placing LUBA’s ultimate decision to affirm the hearings officer’s order.”
— Or. Rev. Stat. § 197.850(9)(b) — 5 cases
— Or. Rev. Stat. § 197.850(9)(c) — 15 cases
Younger v. City of Portland (1988)
or
“Nevertheless, judicial review under ORS 197.850 is of LUBA's order, not the decision of the local government.”
Schaefer v. Oregon Aviation Board (2021)
orctapp
“ORS 197.850 (9)(a). To the extent that we are called on to review LUBA’s factual determinations in this case, it suffices to note that, as to the few disputed facts at issue, there is no evidence in the record to support LUBA’s erroneous findings.”
Rogue Advocates v. Jackson County (2016)
orctapp
“Petitioners timely petitioned us for review of LUBA’s final order under ORS 197.850. On review, they reiterate many of the arguments they made to LUBA.”
— Or. Rev. Stat. § 197.850(a) — 1 case
Rogue Advocates v. Jackson County (2016)
orctapp
“Petitioners timely petitioned us for review of LUBA’s final order under ORS 197.850. On review, they reiterate many of the arguments they made to LUBA.”
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