Johnson v. Lane County

Under the policy of finality expressed in ORS 197.805, a local government may not adopt provisions that allow it to revoke final decisions indefinitely, even when it later discovers it made a mistake in its original decision due to fraud by the applicant.

Petitioners appealed the County’s revocation of a legal lot verification (LLV) and the seven land use decisions that relied on it. The original LLV application was approved in 2012 and subsequent property line adjustments and forest template dwelling applications were approved between 2013 and 2018. In 2022, the County became aware the deeds and property description card submitted with the LLV application in 2012 had been fabricated. A provision in the County’s code stated decisions regarding applications may be revoked if the County determined the approval had been secured with false or misleading information. The County sent notice to the original applicant and current property owners (Petitioners) notifying them of the County’s intent to revoke the LLV and the subsequent decisions relying on it. Petitioners appealed the decision and, after the County ultimately affirmed the revocation, Petitioners appealed to LUBA.

On appeal, LUBA’s decision turned Petitioners’ assignment of error that the County’s revocation decision was an impermissible collateral attack on the original LLV decision and was inconsistent with the statutory preference for finality. In response, the County and Intervenor-respondents argued that a) the County’s provision gave it the authority to revoke the decision and was not limited by the doctrine of collateral attack, b) that LUBA’s caselaw supported the proposition that such a revocation was permissible and a direct attack rather than a collateral one, c) even if the revocation were a collateral attack, Oregon Rules of Civil Procedure (ORCP) 71 C allows for collateral attack on a judgement in instances of fraud, d) that the statute of ultimate repose was inapplicable because the revocation did not concern an appeal of an original decision, and e) if the state had wished to limit local abilities to revoke permit decisions, it would have done so.

ORS 197.805 expresses the legislative policy preference for expedience and finality in land use decisions that is carried out in various statutes mandating short deadlines and expedited appeals applicable to local governments, LUBA, and the Court of Appeals. While the “statute is found among those concerning [LUBA], the policy statement there set forth applies to land use matters generally.” 1000 Friends of Oregon v. LCDC (Clatsop Co.), 301 Or. 622, 628 n 4, (1986). “[I]n challenging a development approval that depends upon a prior, unappealed land use decision, LUBA will not review arguments that the prior, unappealed decision was procedurally flawed or substantively incorrect, because such a challenge would constitute an impermissible collateral attack on a decision not before LUBA.” Gansen v. Lane County, __ Or. LUBA __, __ (LUBA No. 2020-074, Feb 22, 2021) (slip op at 11).

LUBA sustained Petitioner’s assignment of error. LUBA first observed that the proceeding was not a civil proceeding, but rather one governed by the specific statutes applicable to LUBA, and thus the ORCP allowance for collateral attacks did not apply. LUBA then reasoned that under the doctrine of finality whether an attack is direct or collateral is immaterial, and there was no authority supporting the County’s provision that allowed them to take actions inconsistent with that policy preference for finality. LUBA pointed out the caselaw cited by Intervenors-respondents involved the revocation of permits for violations of ongoing conditions of approval, not in instances as here where the local government realized it had made a mistake in its original final decision and sought to revoke that decision. LUBA concluded that “[t]he county may not use [this provision] to provide an unlimited time period in which a land use decision may be revoked and, thus, is not ‘final.’” Because the County’s decision was an impermissible collateral attack prohibited by law, LUBA determined the proper disposition was reversal.

Reversed.