Setniker v. Polk County

LUBA does not have jurisdiction to review a non-final land use decision, and where a local zoning ordinance requires additional procedures on remand for a decision to become a "final" decision, LUBA must assess whether the decision is final for the purposes of the local zoning ordinance and whether the decision is a "land use decision" under ORS 197.015(10)(a) for purposes of appeal to LUBA.

The petitioners appealed a June 15, 2015, hearings officer’s decision on remand from LUBA. This appeal is related to another appeal (LUBA No. 2016-072) from a board of commissioners’ decision from June 15, 2016, that ratifies and adopts the June 15, 2015 decision. Polk County and CPM Development Corporation (collectively, respondents) argued that LUBA No. 2016-068 be dismissed, alleging that the hearings officer’s 2015 decision is a “non-final, or interlocutory, decision,” and the 2016 decision is the final decision for purposes of a LUBA appeal.

The County and intervenor moved to dismiss this appeal on the grounds that the hearings officer’s June 15, 2015 decision was a non-final decision. Polk County Zoning Ordinance (PCZO) 111.280 states that “a hearings officer’s decision on remand shall constitute the county’s ‘final’ decision, but the county board of commissioners must nonetheless ‘ratify’ the hearings officer’s decision.” Through PCZO 111.280(C), the board of commissioners chose to give up its power to alter the hearings officer’s decision, and has assumed “a merely executive role in issuing the county’s final decision.” However, LUBA held that even if this were true, it does not equate to a board of commissioners’ intention that its decision ratifying and adopting the hearings officer’s decision not be the county’s final decision for purposes of an appeal to LUBA. LUBA agreed with respondents, refused to consolidate the appeals, and dismissed LUBA No. 2016-068.

LUBA concluded that the 2016 decision adopting and ratifying the hearings officer’s 2015 decision is the county’s final land use decision for purposes of appeal to LUBA, and that the 2015 decision is best viewed as an interlocutory decision that may not be directly appealed to LUBA. LUBA held that it lacked jurisdiction over the 2015 decision. DISMISSED.