Rogue Advocates v. Jackson County

Under ORS 197.835(2), LUBA may exercise its discretion to grant a motion to take additional evidence, unless the party had an opportunity to present evidence during a first appeal, but failed to present it, which would make LUBA’s grant inconsistent with ORS 197.805, which states that “time is of the essence” in reaching final land use decisions.

     Petitioners appealed a county decision that stipulates to alterations to a guest ranch that is a nonconforming use. On appeal from a LUBA decision, the Court of Appeals found that there was not substantial evidence in LUBA’s record regarding the date when petitioners first learned of the proposed development, and the date when petitioners first had actual knowledge that the stipulation authorized the disputed development. The Court of Appeals reversed and remanded the decision to LUBA to dismiss the appeal, unless LUBA exercises its discretion to entertain a motion to take additional evidence.

     Prior to the proceedings before the Court of Appeals, petitioners filed a motion to take evidence, which LUBA granted. Following the Court of Appeals’ judgment, petitioners filed a second motion to take evidence, requesting that LUBA exercise its discretion to consider the declarations of five others. Intervenors opposed the motion and argued that petitioners had an opportunity to present evidence during the first appeal and did not. Intervenors specifically argued that granting the motion would be inconsistent with ORS 197.805, which states that “time is of the essence” in final land use decisions.

     LUBA agreed with intervenors, holding that giving petitioners another opportunity to present evidence would significantly extend the already lengthy proceedings. LUBA further explained that it would have to grant intervenors’ contingent motion for discovery and deposition, which would entail delay and expense to the parties. LUBA determined this would lead to another round of pleadings arguing the significance of the additional evidence, and LUBA would issue an order resolving the evidentiary conflicts and a final opinion dismissing the appeal or remanding the decision to the county. Since there is a potential for significant further delay in reaching finality in this proceeding, petitioners’ second motion to take evidence is denied. DISMISSED.