Devin Oil Co. v. Morrow County

A petitioner is “adversely affected” when a local land use decision impinges upon the petitioner’s use and enjoyment of his or her property, or otherwise detracts from interests personal to the petitioner (adverse affects may include noise, odors, increased traffic, and potential flooding).

In January 2014, the county approved an application for site plan review for a travel center for Love’s Travel Stops and County Stores, Inc. (intervenor-respondent). That approval was appealed in LUBA No. 2014-012, and affirmed. In 2015, the county planning director approved a 12-month extension of the site plan review approval (extension decision). The county made the extension decision without a public hearing, and without notice to any persons other than intervenor-respondent. On April 21, 2015, Devin Oil Co., Inc. (Devin Oil) filed a notice of intent to appeal the extension decision.

On appeal, LUBA determined that a decision to extend the site plan review approval necessarily required interpretation and the exercise of legal judgment, and that, therefore, the decision did not fall within the exception to LUBA’s jurisdiction at ORS 197.015(10)(b)(A). LUBA agreed with Devin Oil’s argument that the planning director was required to interpret all of the potentially applicable provisions of the Morrow County Zoning Ordinance (MCZO) and exercise legal judgment in determining that MCZO 1.050, rather than MCZO 4.165(C), applied to Love's request to extend the site plan review approval and zoning permit. LUBA noted that Devin Oil did not allege any adverse physical effect to its properties from the county’s decision to extend the site plan review approval, but instead based its argument on economic harm which does not amount to a sufficient pleading of “adverse effect” within the meaning of ORS 197.830(3). In reviewing Devin Oil's further arguments, LUBA held that nothing in the language of ORS 197.830(3) supported a conclusion that a party who is entitled to notice of the decision and who does not receive notice is thereby “adversely affected” by the decision. DISMISSED.