Warren v. Lane County

RICHARDSON, J. Petitioners seek Supreme Court review of our opinion holding that they do not have standing to appeal a land use decision to the Land Use Board of Appeals (LUBA) under Oregon Laws 1979, chapter 772, § 4(3) as amended by Oregon Laws 1981, chapter 748.1 They thereby petition this court for reconsideration. ORAP 10.10. We allow reconsideration and adhere to our opinion. Petitioners contend, inter alia, that they “* * * appeared in opposition to [the land use decision] at the West Lane Planning Commission proceedings. They appeared as interested persons. Under Benton County [v. Friends of Benton County, 294 Or 79, 653 P2d 1249 (1982)] they are ‘aggrieved.’ ” That contention is identical in substance to the one we rejected in Jefferson Landfill Comm. v. Marion Co., 65 Or App 319, 671 P2d 763 (1983). The remaining points we consider it necessary to address are either raised by the dissenting opinion or are amplifications in that opinion of points made by petitioners. The dissent states: “* * * [I]t is clear from * * * subsection [4] (3) that it applies only to petitions for LUBA review of local quasi-judicial land use decisions. Assuming that the Coles’ standing is controlled by that section, they appeared as interested persons opposing the changes, and the decision went against them. They were, therefore, ‘aggrieved’ as that term is discussed in Benton County v. Friends of Benton County, supra. See Jefferson Landfill Comm. v. Marion Co., supra, Buttler, J., dissenting.” 65 Or App at 13. (Emphasis in original; footnote omitted.) That statement reiterates the view of the dissenting members of this court in Jefferson Landfill regarding the relationship between an appearance and aggrievement under section 4(3), and the statement is contrary to the majority’s reasoning and holding in that case. The statement therefore implicitly acknowledges that, if petitioners are subject to the standing [10] criteria of section 4(3) for appeals from quasi-judicial land use decisions, the court’s opinion in Jefferson Landfill is conclusive against petitioners. However, the dissent also states that, if the local decision petitioners seek to appeal was legislative rather than quasi-judicial, “there appears to be no standing requirement similar to that required for reviewing quasi-judicial land use decisions.” The difficulty with that proposition is that petitioners state in their petition for review, and have maintained throughout this appeal, that “[sjtanding for [their appeal to LUBA] is governed by Oregon Laws 1979, Ch. 772, Section 4(3), as amended by Oregon Laws, 1981, Ch. 748.” As the dissent notes, section 4(3) by its terms pertains only to appeals to LUBA from quasi-judicial decisions. It is immaterial whether petitioners could have made an argument that their standing comes from a source other than section 4(3); the argument and the supporting factual showing were for petitioners, not this court, to make. The dissent concludes: “Given that LUBA has exclusive jurisdiction to review the legislative decision here involved, someone must have standing to seek that review. I would hold that anyone who resides in the subarea affected by the proposed plan amendment has standing before LUBA, at least if that person appeared in some stage of the local proceedings as an interested person, as the Coles did here. If we do not so hold, then no one, apparently, would have standing even to challenge the defective notice under ORS 215.060, even though the failure to comply with that statutory requirement renders the action of the local body of no effect. That makes no sense, and the legislature could not have intended that result.” 65 Or App at 14. Those points were considered and properly rejected in our original opinion. We stated there that petitioners «* * * do not contest LUBA’s statement that ‘[petitioners, for purposes of claiming standing, do not assert they were entitled as of right to notice and hearing.’ They argue that they are aggrieved because they were not given adequate notice, but that proposition is circular: if they were entitled to notice, they have standing, whether or not notice was given; if they were not entitled to notice, it is difficult to see how their not receiving notice in itself makes them aggrieved and [11] thereby gives them standing.” 62 Or App at 686. (Emphasis in original.) We also stated: “Petitioners conclude that, if residency is insufficient to provide standing, there may be no possibility of an appeal from significant land use decisions and the legislature therefore must have intended residency to provide standing. “In our view, that argument turns the inquiry inside out. It is manifest that, where the legislature makes the standing of the objector a condition precedent to review of a decision, it does not intend for review to occur if no one has standing. That point is emphasized by the fact that, elsewhere in the land use statutes, the legislature has provided for review proceedings that are not contingent on objection or the objector’s standing, e.g., comprehensive plan compliance acknowledgment pursuant to ORS 197.251. * * *” 62 Or App at 688-89. (Emphasis in original.) Stated otherwise, the legislature established both a method for appealing local land use decisions and standing limitations on the exercise of appeal rights. The LUBA statutes do not differ in that regard from many other statutes which create a remedy and impose limitations on its invocation. See, e.g., ORS chapter 28 (governing declaratory judgment actions). By establishing the standing criteria in section 4(3), the legislature manifested its intent that land use decisions that are opposed only by persons with abstract interests, like those of the petitioners here, should not be appealed. The wisdom of the legislative policy is not before us and, if it were, it would be difficult to assail. Reconsideration allowed; former opinion adhered to. Footnotes [1] This section was repealed by Oregon Laws 1983, ch 827, § 59. Effective October 1, 1983, § 31(3) of the 1983 Act establishes standing criteria for appeals to LUBA from quasi-judicial land use decisions.