Tower Action Committee v. Willamette Subscription Television, Ltd.

PER CURIAM The facts and procedural history of this case are adequately set out in Wright v. KECH-TV, 300 Or 139, 707 P2d 1232 (1985), cert den _ US _ 106 S Ct 1974, _ L Ed 2d _ (1986), and McCoy v. Marion County, 69 Or App 522, 686 P2d 1059, rev den 298 Or 334 (1984), and need not be repeated here. This appeal is from the dismissal of this injunction action on the ground that exclusive jurisdiction lies in LUBA. At oral argument plaintiff agreed that, after Wright v. KECH-TV, supra, the only viable issue on appeal is whether, as plaintiff alleged in the first count of its amended complaint, the building permit was improperly issued to Willamette to construct its TV tower because the lease to it for construction purposes was a major partition for which the required county approval was not sought or obtained. There was no partition sought pursuant to the procedures outlined in the county ordinances; the only decision made by the county was to grant a building permit. Because the partition, if there was one, which we do not decide, resulted from the issuance of the building permit, plaintiffs current claim states only an additional reason why the building permit should not have issued and could be raised only before LUBA. Wright v. KECH-TV, supra, 300 Or at 142. The trial court was correct in determining that it lacked subject matter jurisdiction. Affirméd.