Thrive Hood River v. Hood River County

Where a petitioner does not dismiss a suspended precautionary LUBA appeal when their right to a local appeal is affirmed, LUBA will dismiss the precautionary appeal. Broderson v. City of Ashland, 66 Or LUBA 369, 376 (2012).

At issue is a conditional use permit (CUP) for Meadows North, LLC (Meadows) to build a bed and breakfast in an existing structure on property zoned Forest (F-1). The planning director (director) approved the CUP and Petitioner appealed. The planning commission (commission) held a de novo hearing. The commission’s bylaws require that any action of the commission will be valid only with an affirmative vote of four or more commissioners. A commissioner moved to reverse the director’s approval at the end of the second hearing but the motion failed because only three commissioners voted in its favor. After asking for, and not receiving, a motion to affirm the director’s decision, and discussing it with the other commissioners in the hearing, the commission chair signed an order affirming the director’s approval (the Order). Petitioner appealed the Order to the board of commissioners (the board) then filed a precautionary appeal to LUBA while the board was still reviewing its appeal. The parties stipulated to suspend the LUBA appeal but the board ultimately approved the CUP. Petitioner filed a second notice of intent to appeal the Order to LUBA.  

“A [land use] decision becomes final when it is reduced to writing and bears the necessary signatures of the decision maker(s)[.]” OAR 661-010-0010(3). LUBA's jurisdiction over land use decisions is limited to “those cases in which the petitioner has exhausted all remedies available by right before petitioning [LUBA] for review[.]” ORS 197.825(2)(a). Finality is statutorily regulated by the form of the decision and whether all local appeals of the matter are exhausted. Curl v. City of Bend, 48 Or LUBA 530, 543, aff’d, 113 P3d 990 (2005). Local appeals are exhausted only if there are no more available local methods to challenge the local decision. Lyke v. Lane County, 688 P2d 411 (1984).

The County moved to dismiss the appeal and argued that LUBA did not have jurisdiction over the matter because the Order was not the County’s final decision and Petitioner did not exhaust local appeals. Petitioner argued that LUBA had jurisdiction over the matter because the Order was not valid as it was the product of the chair, not the body of the commission, and because the commission did not vote to affirm the director’s decision. LUBA rejected Petitioner’s arguments and reasoned that the record showed the Order was not the product of only the commission chair and the board had reviewability of the Order even if it was not valid. HRCZO 61.10(G)(1). Further, LUBA reasoned that the Order was not the County’s final decision because of the board’s decision and therefore LUBA did not have jurisdiction over the matter.