Thomas v. Wasco County

Under ORS 197.015(10)(a), while a county Notification of Non-violation may “concern” land use regulation, it does not necessarily constitute an “application” of land use regulation giving LUBA jurisdiction over its appeal.

Petitioner appeals a Notification of Non-violation from the county that no violations of the Wasco County Land Use and Development Ordinance (LUDO) are occurring on intervenor’s property. Intervenor applied to the county for an outdoor mass gathering permit. While intervenor’s application was pending, intervenor made improvements on the property as shown in the application. During this time, petitioner filed complaints with the county, arguing that the improvements sought in the application were already being made and would result in permanent physical alterations to the property in violation of state law and the LUDO. The county subsequently approved intervenor’s application and issued a Notification of Non-Violation to petitioner (2013 NNV).

Petitioner sought a declaratory judgment in circuit court that the improvements made on the property violated the LUDO. The circuit court dismissed the action, citing lack of subject matter jurisdiction over “land use decisions” as defined in ORS 197.015(10)(a). Petitioner appealed the circuit court’s decision to the Court of Appeals and filed another complaint with the county, arguing that the improvements on the property occurred without the necessary approvals required by the LUDO. The county issued another Notification of Non-Violation to intervenor (2014 NNV). This appeal followed. After holding oral argument, LUBA extended the deadline for issuing a final opinion and order until after the Court of Appeals had resolved petitioner’s challenge to the circuit court’s decision.

The Court of Appeals determined that the circuit court erred in dismissing the declaratory judgment action since, although the 2013 NNV “concern[ed]” the LUDO, it did not constitute an “application” of land use regulations for the purposes of ORS 197.015(10)(a) and therefore was “not a land use decision reviewable by LUBA.” The Court of Appeals therefore remanded the declaratory judgment action to the circuit court. Intervenor then moved to reactivate petitioner’s appeal of the 2014 NNV. Petitioner opposes the reactivation, arguing that, since the 2013 NNV was not a “land use decision” reviewable by LUBA, neither is the 2014 NNV. LUBA agrees with petitioner that the 2014 NNV is not a land use decision over which LUBA has jurisdiction and the appeal is therefore TRANSFERRED.