Phillips v. City of Corvallis

Under ORS 197.825(2)(a), LUBA’s jurisdiction is limited to “those cases in which petitioner has exhausted all remedies available by right before petitioning the board for review[.]” However, under ORS 197.830(3), “[i]f a local government makes a land use decision without providing a hearing . . . a person adversely affected by the decision may appeal the decision to the board[.]” These appeals are not subject to the exhaustion requirement under ORS 197.825(2)(a) unless the local government voluntarily grants a local appeal, then the local remedy must be exhausted before appealing to LUBA. Comrie v. City of Pendleton, 45 Or. LUBA 758, 772 (2003).

Petitioner appealed a city planner’s decision to issue a land use compatibility statement (LUCS). Intervenor operates a glass fiber production facility, and after testing revealed the facility produced air contaminants in excess of its current permits, DEQ required Intervenor to obtain an Air Contaminant Discharge Permit (ACDP). The ACDP required Intervenor to first obtain a LUCS from the City, and a LUCS was approved by a city planner. Petitioner filed a notice of intent to appeal (NITA) the LUCS decision with LUBA. In response, Intervenor and the City filed motions to dismiss on multiple grounds, including that LUBA lacked jurisdiction because Petitioner had failed to exhaust local remedies before appealing to LUBA.

Under ORS 197.825(2)(a), LUBA’s jurisdiction is limited to “those cases in which petitioner has exhausted all remedies available by right before petitioning the board for review[.]” However, under ORS 197.830(3), “[i]f a local government makes a land use decision without providing a hearing . . . a person adversely affected by the decision may appeal the decision to the board[.]” These appeals are not subject to the exhaustion requirement under ORS 197.825(2)(a) unless the local government voluntarily grants a local appeal, then the local remedy must be exhausted before appealing to LUBA. Comrie v. City of Pendleton, 45 Or. LUBA 758, 772 (2003).

LUBA granted Intervenor’s and the City’s motions to dismiss after evaluating the City’s development and municipal codes and finding they provided two potential options to appeal decisions by city officials, and that Petitioner had not pursued either. LUBA noted that, though the local appeal period had expired, the City had voluntarily chosen to take an appeal of this same LUCS decision in Monroe v. City of Corvallis, __ Or. LUBA __ (LUBA No. 2022-036, Aug. 2, 2022). As Petitioner had not exhausted their local remedies, LUBA concluded it lacked jurisdiction to hear Petitioner’s appeal. Dismissed.