Maguire v. Clackamas County

Procedural error by LUBA is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby and LUBA review is preempted by ORS 195.318(1) which states a county's determination under Measure 49 is not a land use decision.

Owners of a parcel zoned for exclusive farm use in Clackamas County received a Measure 37 waiver. After passage of Measure 49, they sought approval for three additional home sites. The Department of Land Conservation and Development (DLCD) partially approved the claim, authorizing one additional parcel and construction of one additional dwelling. The owners filed with the county to partition the property pursuant to the authorization. Maguire objected because the proposed home site was located on property classified as high value farm land. The County approved the partition. Maguire appealed to LUBA, which concluded that the county's decision was not a land use decision subject to LUBA's jurisdiction and dismissed the appeal. Maguire sought review, arguing that the county's decision was a land use decision. The Court of Appeals concluded that LUBA did not err because a county land use determination under Measure 49 is not a land use decision and a procedural error is not cause for reversal or remand "unless the court shall find that substantial rights of the petitioner were prejudiced thereby." Affirmed.