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«NOTE: This edition of the Citizen's Guide to Land Use Appeals was revised in December 2009, and is based upon state law, administrative rules and the ...»

-- [ Page 1 ] --

The Citizen’s Guide

to

Land Use Appeals

1000 Friends of Oregon

December 2009

NOTE: This edition of the Citizen's Guide to Land Use Appeals was revised in

December 2009, and is based upon state law, administrative rules and the written

decisions of LUBA and the courts effective at that time. All are subject to change.

1

The Citizen’s Guide to Land Use Appeals

1000 Friends of Oregon

December 2009

Table of Contents

Introduction 3 Part I – Deciding Whether to Appeal Section I – Am I Eligible 5 Section II – How Much Will it Cost? 7 Section III – Is my Case Eligible? 9 Section IV – What are my Chances of Success? 12 Part II – The Appeals Process Section I – Notice of Intent to Appeal 17 Section II – Motions to Intervene 22 Section III – The Record 23 Section IV – The Petition for Review 28 Section V – The Respondent’s Brief 32 Section VI – Intervenor’s Brief 33 Section VII – Reply Brief 33 Section VIII – Oral Argument 34 Section IX – Final Opinion and Order 35 Section X – Miscellaneous Provisions 37 Part III – How to do Legal Research Section I – Introduction 41 Section II – Steps to Researching an Issue 41 Section III – Developing Arguments 44 Section IV – Sources of Legal Authority 46 Section V – Locating and Citing Case Law 49 Section VI – Additional Notes on Case Citations 51 Section VII – Reference Tools To Help You Find Cases 53 Appendices A. Sample Notice of Intent to Appeal 56 B. Sample Certificate of Filing and Service 59 C. Sample Motion to Intervene 60 D. Sample Objection to the Record 62 E. Sample Cost Bill 63 F. Sample Petition for Review 64 Glossary of Terms 75 2 Introduction Land use decisions made by local governments in Oregon may be appealed to the state Land Use Board of Appeals (LUBA). 1 LUBA was created solely for the purpose of reviewing these decisions when there are no more opportunities to challenge them at the local level. 2 Rulings by LUBA may be appealed to the Oregon Court of Appeals. 3 Though its legal rulings are binding, LUBA is not a traditional court. It is composed of three attorneys — known as board members 4 — appointed by the governor and confirmed by the Oregon Senate. 5 Individuals, appearing before LUBA on their own behalf, need not be represented by attorneys. 6 However, corporations, organizations, and individuals who do not wish to represent themselves are required to be represented by attorneys (members of the Oregon State Bar) before LUBA. 7 Remember that you cannot win a land use appeal just because you are unhappy with the decision made by the local government. 8 Because of the broad latitude afforded to local governments under Oregon law, many of their decisions can be challenged successfully only through the political — not the legal — process. LUBA is only allowed to review land use decisions for certain specific errors and is not intended as a substitute forum for good land use planning.

NOTE: The great majority of LUBA appeals involve decisions made by local governments. Therefore, the balance of the text will often refer to local governments as examples. Keep in mind, however, that some special district and state agency decisions can also be appealed to LUBA.

A LUBA appeal proceeds along a schedule (summarized below) that is designed to resolve land use appeals in roughly four months, barring any objections to the local government's record of the case or other extraordinary extensions of the appeal schedule. This four month period required for a LUBA decision may seem intimidating, but it is actually a much faster means of resolving land use disputes than occurs in California and Washington, where challenges to permit applications often drag on for two to four years.

Here is a quick overview of the LUBA process:

• A party 9 bringing an appeal is called the “Petitioner” and the local government is the “Respondent.” Anyone else who is allowed to participate is called an “Intervenor.” 1 ORS 197.820(1); ORS 197.825(1).

2 ORS 197.805 3 ORS 197.850(1) and (3).

4 Currently LUBA attorneys are known as “Board Members;“ in the past they have been known as “Referees. For statutory reference, see ORS 197.810 and OAR 661-010-0010(2).

5 ORS 197.810(1).

6 OAR 661-010-0075(6).

7 OAR 661-010-0075(6). A party can also choose not to appear before LUBA even though they are named on the appeal. Activists will often pool their resources for the appeal fees, collaborate on the written filings, and then have a single spokesperson before LUBA that technically only represents themselves.

8 See e.g., Reed v. Benton County, 23 Or LUBA 486 (1992).

9 OAR 661-010-0010(11).

–  –  –

Each step in the appeal process is described in more detail in Part II. However, you should carefully review Part I, which discusses factors that could greatly influence prospects for a successful appeal, before assuming that a LUBA appeal is justified and worthwhile.

NOTE: State law and state administrative rules mandate the process by which LUBA makes its decisions. Anyone participating in a LUBA appeal should become familiar with the rules governing LUBA decisions (see Oregon Administrative Rules (OAR) Chapter 661, Division 10, available in most public libraries or from LUBA and at the LUBA Homepage: http://luba.state.or.us).





10 ORS 197.830(3), (4), (8), (9); OAR 661-10-0015(1).

11 ORS 197.830(7)(a), (b); OAR 661-010-0050(2).

12 OAR 661-010-0050(1).

13 ORS 197.830(10)(a); OAR 661-010-0025(2)-(4).

14 OAR 661-010-0026(2).

15 OAR 661-010-0026(4).

16 ORS 197.830(12), (13); OAR 661-010-0030(1).

17 OAR 661-010-0026(6).

18 OAR 661-010-0050(3)(a).

19 OAR 661-010-0035(1); OAR 661-010-0050(3)(b).

20 OAR 661-010-0026(6).

21 OAR 661-010-0040(3).

22 ORS 197.830(14).

23 OAR 661-010-0026(6).

–  –  –

I. Am I Eligible?

Individual Standing Normally, to qualify to bring an appeal before LUBA (to have "standing"), a Petitioner must: 1) submit a Notice of Intent to Appeal by the deadline for appealing (discussed in Part II), and 2) have "appeared" before the local government. 24 A person "appears" by testifying orally at a hearing or submitting written testimony to the decision-making body. 25 It is not sufficient to have only attended a hearing. 26 Sending a letter of testimony to the decision-making body may be sufficient to have "appeared" in writing. 27 The letter must clearly indicate that it concerns the land use decision and it must be mailed during the time period allowed for public comment. 28 You should confirm that the letter was entered into the "record" of the proceedings or specifically request in your letter that it be entered into the record. 29 Remember that because decisions often pass through a number of stages before different decision-making bodies, you have to be sure that: (1) you actually appeared orally or in writing before the final local government decision-maker, or (2) your comments from an earlier proceeding were made a part of the final proceeding's record.

EXAMPLE: If you testified on a decision before the planning commission but not again before the city council, you will not be able to appeal the city council's decision unless your earlier comments were made a part of the city council's final record of decision. Likewise, if you submitted opposition to a proposed development before an application had actually been filed, you will have to state your opposition again during proceedings on the formal application.

Individuals may appear on behalf of other individuals or artificial entities in local land use proceedings provided they adequately identify the person they are appearing for. 30 If an attorney appears before the local governing body on behalf of individuals, she must indicate whom she is representing in order for those persons to later have standing on their own before LUBA. 31 NOTE: In very rare circumstances, a person who did not appear before the governing body may still have standing to appeal the decision if he or she is adversely affected 24 ORS 197.830(2).

25 See gen., ORS 197.830(2)(b).

26 See e.g., Cecil v. City of Jacksonville, 19 Or LUBA 446, 448-49 (1990).

27 Cecil v. City of Jacksonville, 19 Or LUBA at 453; Wolverton v. Crook County, 34 Or LUBA 515 (1998).

28 Wolverton v. Crook County, 34 Or LUBA at 518-19.

29 Cf., Cecil v. City of Jacksonville, 19 Or LUBA 446, n.8.

30 Neighbors for Responsible Growth v. City of Veneta, 50 Or LUBA 745 (2005).

31 Dowrie v. Benton County, 37 Or LUBA 998 (1999).

–  –  –

NOTE: Persons (other than the applicant) may "intervene" in an appeal before LUBA only if they appeared before the local government. 37 Being adversely affected may provide standing to bring an appeal but never provides standing to intervene in an existing one. If a local government refuses to allow a person to testify, that person has "appeared" and has standing to intervene, at least for the purpose of challenging the decision to refuse testimony. 38 Organizational Standing An organization may have standing to bring a LUBA appeal in its own interest just like any

individual. 39 For an organization to have standing:

• its members must have standing in their own right;

• neither the claim asserted nor the relief sought requires the participation of individual members; and

• the interests the organization seeks to protect are germane to the organization's purpose. 40 An organization must appear at local hearings to have standing to appeal or intervene before LUBA on its own behalf. 41 For an organization to appear, persons testifying on behalf of an organization should clearly indicate to the governing body that they are doing so. 42 Anyone representing an organization should also indicate that she is also testifying on her own behalf. 43 If you state to the local government that you are appearing for yourself and on behalf of an 32 ORS 197.830(3), (4).

33 Flowers v. Klamath County, 98 Or App 384, 389, 780 P.2d 227, rev. den. 308 Or 592 (1989)(decided under former ORS 197.830(3) standard of "aggrieved" rather than "adversely affected").

34 ORS 197.830(3) 35 ORS 197.830(3).

36 See Kamppi v. City of Salem, 21 Or LUBA 498, 501 (1991); Schatz v. City of Jacksonville, 21 Or LUBA 149 (1991); Goddard v. Jackson County, 34 Or LUBA 402, 408-09 (1998).

37 ORS 197.830(7); OAR 661-010-050(1).

38 Sorte v. City of Newport, 25 Or LUBA 828 (1993); McKenzie v. Multnomah County, 26 Or LUBA 619 (1993).

39 Tuality Lands Coalition v. Washington County, 21 Or LUBA 611, 618 (1991); citing 1000 Friends of Oregon v.

Multnomah County, 39 Or App 917, 924, 593 P.2d 1171 (1979).

40 Tuality Lands Coalition v. Washington County, 21 Or LUBA at 618.

41 ORS 197.830(2); See e.g., Faye Wright Neighborhood Planning Council v. City of Salem, 3 Or LUBA 17, 18-19 (1981).

42 See East McAndrews Neighborhood Assoc. v. City of Medford, 19 Or LUBA 390, aff’d 104 Or App 280, 800 P.2d 308 (1990), rev. den. 311 Or 150 (1991); Friends of Douglas County v. Douglas County, 39 Or LUBA 156 (2000).

43 But see Terra v. City of Newport, 24 Or LUBA 579 (1992) (member of organization with interests identical to organization afforded standing as individual despite not clearly indicating she was testifying on her own behalf, rather than the organization's).

–  –  –

Remember also that when an organization such as a neighborhood association or a citizen participation organization wants to support or oppose a land use decision, it must be very careful to follow its own procedural requirements before it can speak on behalf of its members.

Otherwise, any member of the organization can seek to invalidate the organization's actions.

EXAMPLE: A formal vote conducted during a neighborhood meeting and recorded in the minutes may be required before the organization can act in an appeal. 45 The organization's bylaws usually set forth its procedural requirements.

II. How Much Will it Cost?

Filing Fees The initial cost of an appeal (as of 2009) 46 is $350 for each Notice of Intent to Appeal filed with LUBA. 47 This amount includes a $200 filing fee and a $150 deposit for costs. 48 (See Part II (Fees) for details on filing.) If the appeal results in a reversal or remand, the Petitioner should file a cost bill requesting award of the $200 filing fee and return of the $150 deposit for costs, and serve a copy on all parties to the appeal. 49 The cost bill must be filed within 14 days of the date of LUBA's final order in the appeal. 50 44 See e.g., Dames v. City of Medford, 9 Or LUBA 433, 436-37 (1983).

45 But See, Clark v. Dagg, 38 Or. App. 71, 82-83, 588 P.2d 1298 (1979).

46 As of late 2009, LUBA has proposed increasing the deposit for costs to $200. Before filing a NITA with LUBA verify that the filing fee and deposit for costs have not changed.

47 OAR 661-010-0015(4).

48 Id.

49 OAR 661-010-0075(1).

50 Id.

–  –  –

Attorney's Fees If a Petitioner brings an appeal before LUBA without a valid reason for doing so, LUBA may charge him or her with the opposing party's attorney's fees. 57 Although such an award has rarely been made, reasonable attorney's fees are provided for if the appeal was brought "without probable cause to believe the position was well-founded in law or on factually supported information" by LUBA. 58 Attorney fees will not be awarded just because a party presented a losing argument. 59 Even poorly-founded arguments will not be penalized unless LUBA believes an improper motive was involved. 60 Moreover, attorney fees are recoverable only if the presentation of the nonprevailing party from whom they are sought is devoid of merit in its entirety. 61 LUBA would be most likely to grant attorney fees if an appeal were brought only to harass the other party or to stall progress on a proposal that had been approved.



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