City of Cornelius v. Department of Land Conservation and Development

“Whether a notice of proposed rulemaking substantially complies with…ORS 193.335 must be measured against the purpose of the notice.” Oregon Funeral Directors v. Mortuary and Cemetary Bd, 132 Or App 318, 323 (1995). Additionally, an agency exceeds statutory authority if the rule "departs from a legal standard expressed or implied in the particular law being administered, or contravenes some other applicable statute." Planned Parenthood v. Dept. of Human Res., 297 Or 562, 565 (1984). 

Petitioners challenge the validity of the Climate-Friendly and Equitable Community rules, arguing that the LCDC did not comply with rulemaking procedures and that LCDC exceeded its statutory authority when enacting the CFEC rules. 

Petitioners first argue that the LCDC needed to issue a new notice prior to repealing the temporary rules and adopting the current permanent CFEC rules under ORS 183.335. Specifically, they argue that ORS 183.335 applies to the repeal or adoption of rules and LCDC was required to issue a notice for the current rules. The court disagreed, holding that the rules were adopted under ORS 183.335(5), not under ORS 183.335(1), as the petitioners assert. Further, the court found that the LCDC substantially complied with the requirements of ORS 183.335 in its reliance on its notice for the permanent CFEC rules, even though they differed from the draft rules. 

Petitioners then argue in their fourth assignment of error that a "substantial departure in the CFEC rules from the draft rules required LCDC to issue a new notice." The city petitioners specifically focus on OAR 660-012-0830(1)(c), arguing that that specific part of the rule was a change in subject matter that required a new notice and comment period. “Whether a notice of proposed rulemaking substantially complies with…ORS 193.335 must be measured against the purpose of the notice.” Oregon Funeral Directors v. Mortuary and Cemetary Bd, 132 Or App 318, 323 (1995). The court found that subparagraph (1)(c) was not part of the original draft rules and was only included in the final packet presented to CFEC for adoption, and thus, it was not contemplated in the draft. Therefore, the final rule did not substantially comply with the notice requirements and is invalid. 

Petitioners specifically challenge OAR 66-012-0920(7)(c) as beyond LCDC's statutory authority. An agency exceeds statutory authority if the rule "departs from a legal standard expressed or implied in the particular law being administered, or contravenes some other applicable statute." Planned Parenthood v. Dept. of Human Res., 297 Or 562, 565 (1984). The court agreed with petitioners, finding that the statutes governing LCDC’s enforcement powers are very specific and this rule is not consistent with them. 

OAR 660-012-0830(1)(c) and OAR 660-012-0920(7)(c) held invalid; otherwise, CFEC rules held valid.