City of Rajneeshpuram v. Land Conservation & Development Commission

RICHARDSON, P. J. The city of Rajneeshpuram and a companion petitioner (collectively, the city) seek review of the same LCDC continuance order that we considered in 1000 Friends of Oregon v. LCDC, 76 Or App 46, 708 P2d 1147 (1985). Our opinion in that case resolves four of the city’s five assignments. The remaining assignment is that LCDC erred by including the following statement in its order: “The staff report under Goal 14 clearly indicates that the acknowledgment review is predicated upon the basic assumption that Rajneeshpuram is a lawfully created city. Although the issue is being contested before LUBA and in the court system, the Commission has decided to complete its review responsibility under ORS 197.251. Therefore, this order is based upon the assumption that the city is lawfully created. If LUBA or a court of competent jurisdiction decides that the city is not lawfully created, this order is without effect because the Commission’s review authority under ORS 197.251 is limited to local government requests.” LCDC has the authority and the duty to review the comprehensive plans and land use regulations of incorporated cities pursuant to ORS 197.251. It is implicit in that authority that LCDC may satisfy itself that an entity seeking compliance review is a formally incorporated city at the time it requests review and at the time LCDC acts on the request. However, LCDC does not have the authority to decide in an acknowledgment proceeding how a city may subsequently lose its corporate status or what the consequences of that loss would be. See note 1, infra; 1000 Friends of Oregon v. LCDC, supra. Those matters are for the legislature. See ORS 221.610 to 221.650; 221.785. LCDC cites, and we find, nothing to suggest that the legislature has delegated authority over those matters to LCDC.1 Moreover, the very detailed options ORS 197.251 gives LCDC in acknowledgment proceedings do not include the authority to make an acknowledgment or continuance order subject to defeasance by a condition subsequent. We therefore agree with the city’s view: [58] “When and if any forum again declares the incorporation to have been invalid, that will be the time to determine, using the appropriate principles, the effect of that decision upon the city, its plan * * *, and the acknowledgment [sic] order under review.” The effect of the city’s loss of its incorporated status, if that occurs, will be governed by applicable law rather than by caveats in LCDC’s orders. However, it is difficult to understand what comfort the city takes from that fact. Inexplicably, the parties and LCDC have focused their arguments in this case on the fact that a city must be incorporated in order to seek acknowledgment. They have given little if any attention to whether a city must remain incorporated in order to have a comprehensive plan and implementing ordinances. See, e.g., ORS 197.010(1), 197.010(5), 197.015(5), 197.015(11), 197.015(12). Order modified to delete conclusion 5; otherwise affirmed. Footnotes [1] LCDC states in its brief, in connection with a different issue: “Whether a city incorporation complies with the goals is not a matter that ORS chapter 197 contemplates be reviewed in an acknowledgment proceeding.”