Schaefer v. Oregon Aviation Board

Under ORS 197.850(9)(a), the court may reverse or remand LUBA’s decision if it finds the order is “unlawful in substance or procedure, but error in procedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced” by that error. In the event that the record is missing an item necessary for LUBA to perform its review function, remanding the decision is the appropriate remedy. Andrews v. City of Prineville, 28 Or LUBA 653, 661-62 (1995). When LUBA reverses or remands a land use decision, LUBA must “decide all issues presented to it” when “the findings, order and record are sufficient to allow review[.]” ORS 197.835(11)(a).

Petitioner appealed the Oregon Aviation Board’s (OAB) adoption of findings in support of an update to an airport master plan. LUBA dismissed the appeal after concluding it was not a “land use decision” under ORS 197.015(10)(a)(B), which defines “land use decision” as including “a final decision or determination by a state agency . . . with respect to which the agency is required to apply the [statewide land use planning] goals.” Petitioner then appealed LUBA’s dismissal to the Court of Appeals, which reversed and remanded to LUBA without instructions to resolve the jurisdictional question.

On remand, LUBA assumed that it had jurisdiction under ORS 197.015(10)(a)(B), and that OAB was required to apply statewide planning goals to their decision. LUBA noted the Court of Appeals had reversed and remanded in part because it concluded the record before LUBA was incomplete and needed to include the master plan and other items used by OAB in making their decision. When LUBA ordered OAB to produce these materials, OAB reported it had searched its records and could not produce the exact materials considered, including the master plan. 

Under ORS 197.850(9)(a), the court may reverse or remand LUBA’s decision if it finds the order is “unlawful in substance or procedure, but error in procedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced” by that error. LUBA found that, where the Court of Appeals had reversed in part because LUBA’s denial of Petitioner’s objection to the missing master plan was an unlawful procedure, Petitioner’s substantial rights had been prejudiced by that error. However, as OAB diligently searched for the master plan and was unable to produce it or other materials necessary to complete the record, LUBA concluded it was unable to review or resolve the assignments of error.

In the event that the record is missing an item necessary for LUBA to perform its review function, remanding the decision is the appropriate remedy. Andrews v. City of Prineville, 28 Or. LUBA 653, 661-62 (1995). When LUBA reverses or remands a land use decision, LUBA must “decide all issues presented to it” when “the findings, order and record are sufficient to allow review[.]” ORS 197.835(11)(a). Because the record before LUBA in this case was not complete, LUBA concluded remand of the decision was appropriate. Further, as the record before LUBA was not sufficient to allow review, LUBA concluded it was not required to “decide all issues” in this case as normally required when remanding under ORS 197.835(11)(a). Remanded.