MGP X Properties LLC v. Washington County & City of Sherwood

Under ORS 197.830(3), when a local government makes a land use decision without providing a hearing, in order to challenge the decision, a petitioner must show that it was adversely affected by the decision.

     MGP X Properties, LLC (petitioner), appealed an intergovernmental agreement (IGA) between the City of Sherwood and Washington County (collectively respondents), that established a procedure for obtaining road improvement approval. Per the IGA, the city and county agreed to cooperate in planning, designing, and constructing improvements to the affected roads. Both city council and the county board of commissioners approved the IGA without a hearing. The petitioner appealed.

     Respondents first argued that LUBA did not have jurisdiction because this was not a land use decision, since the IGA did not apply the comprehensive plan or a land use regulation, and the IGA was also not a “final” decision under ORS 197.015(10)(a)(A) because it only initiated a proceeding that will lead to a later land use decision. LUBA determined that this was a land use decision because the city and county had to apply the city’s land use regulations and comprehensive plan, and this was also a “final” decision because the IGA is the city’s sole decision to rely on the county to process the project.

     ORS 197.830(3) mandates that if no hearing is held prior to adopting a land use decision, a petitioner must demonstrate that it is “adversely affected” by the decision. Petitioner asserted that it is adversely affected since the project may require the city to acquire a portion of the petitioner’s property, via eminent domain. Respondents countered that petitioner’s argument failed to explain how it was adversely affected by the decision to enter into the IGA. LUBA agreed, finding the IGA did not approve the road project and only allocated responsibility between the city and county for planning.

     Petitioner also moved to transfer pursuant to OAR 661-010-0075(11). LUBA denied the motion because petitioner failed to establish that it is adversely affected by the decision per ORS 197.830(3). DISMISSED.