Turner v. Lane County

WARREN, J. Plaintiff appeals the dismissal of her petition for writ of review challenging a decision of a Lane County Infractions Section hearings officer that ordered her to pay $100 to the county because plaintiffs building and her use of her property violated zoning and other provisions of the Lane County Code. We affirm. At the infractions hearing, plaintiff moved to dismiss the complaint on the grounds that she had established a right to continue her nonconforming use of the property for retail sales and a vested right to a nonconforming use to complete construction of a building. The hearings officer found that plaintiff had not established a nonconforming use or a vested right. He applied the county zoning ordinance and assessed the $100 forfeiture. Plaintiff filed a petition for a writ of review in circuit court, alleging that the hearings officer’s decision was not supported by substantial evidence and that he incorrectly construed the law concerning nonconforming uses and vested rights. The court granted defendant’s motion to dismiss the petition on the ground that it lacked jurisdiction over the subject matter. ORS 34.020 defines the subject matter jurisdiction of circuit courts for writs of review: “Except for a proceeding resulting in a land use decision as defined in ORS 197.015, for which review is provided in sections 4 to 6, chapter 772, Oregon Laws, as amended by sections 35 to 36a, chapter 748, Oregon Laws 1981, any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors, as provided in ORS 34.010 to 34.100, and not otherwise.***” In Forman v. Clatsop County, 63 Or App 617, 665 P2d 365 (1983), we held that final decisions by a local government concerning vested rights to a nonconforming use are land use decisions within the meaning of ORS 197.015, reviewable exclusively by the Land Use Board of Appeals (LUBA). For-man is controlling here. The final decision by the Lane County hearings officer that plaintiff failed to establish a vested right and a nonconforming use was reviewable only by LUBA. Therefore, the circuit court lacked subject matter jurisdiction and did not err in dismissing plaintiffs petition. [614] Affirmed.