Central Oregon Landwatch v. Deschutes County

LUBA does not have jurisdiction over an application that the circuit court has reviewed for a petition for a writ of mandamus.

The Intervenor-Applicant (Intervenor) submitted to the County an application for a conditional use permit and an application for a site plan review for a guest ranch and property line adjustments (the applications). On March 28, 2023, the County determined the applications were complete. The County was required to make a final decision, including resolution of local appeals, on or before August 25th. That deadline was extended to September 15th at Intervenor’s request. The hearings officer approved the applications on September 5th (the decision). On September 15th, the Petitioner appealed the decision to the board of commissioners. The Intervenor filed a petition for writ of mandamus in the Deschutes County Circuit Court on September 18th at 12:07 p.m. On that same day and during its 1:00 p.m. meeting, the board of commissioners declined review of the decision. On September 22nd, the court issued a writ of mandamus directing the board of commissioners to either approve the applications or show cause why it did not. Petitioner filed its Notice of Intent to Appeal on October 13th. On October 17th, the court issued a preemptory writ of mandamus directing the board of commissioners to approve the applications by adopting the hearings officer’s decision and a general judgment of dismissal. The board of commissioners approved the applications on October 23rd.

The Intervenor moved for LUBA to dismiss the appeal for lack of jurisdiction and to take evidence not in the record in support of its motion to dismiss. LUBA granted Intervenor’s motion to take evidence not in the record. Under ORS 197.015(10)(a), LUBA has jurisdiction to review a land use decision including certain local government or special district final decisions. ORS 197.015(10)(b)-(e) itemizes what local government land use decisions do not qualify as land use decisions under LUBA’s jurisdiction. ORS 197.015(10)(e)(B) provides that a land use decision does not include “[a]ny local decision or action taken on an application subject to ORS 215.427… after a petition for a writ of mandamus has been filed under ORS 215.429.” ORS 215.427(1) provides for an applicant’s filing of a petition for a writ of mandamus to direct the local government to take final action on an application if that local government does not take final action within the statutory deadline “[e]xcept when an applicant requests an extension under ORS 215.427”. That local government retains “jurisdiction to make a land use decision on the application until a petition for a writ of mandamus is filed” then “jurisdiction for all decisions regarding the application, including settlement, shall be with the circuit court.” ORS 215.427(2). The circuit court must “issue a peremptory writ unless the governing body or any intervenor shows that the approval would violate a substantive provision of the county comprehensive plan or land use regulations as those terms are defined in ORS 197.015...” ORS 215.427(3).

Intervenor argued that LUBA did not have jurisdiction because Intervenor filed its petition for writ of mandamus before the board of commissioners issued its final decision  and therefore it was the circuit court who had jurisdiction under ORS 215.429. Petitioner argued that the Intervenor filed a petition for an alternative rather than a peremptory writ of mandamus and accordingly ORS 197.015(1)(e)(B) did not apply. The party seeking review in LUBA has the burden of establishing a decision is a land use decision. LUBA previously held that it lacks jurisdiction over a local government’s post-writ decision when a statute expressly gives the circuit court exclusive jurisdiction over all decisions related to an application. Stewart v. City of Salem, 60 Or LUBA 77, aff’d, 236 Or App 268, 236 P3d 851 (2010). LUBA thus rejected Petitioner’s argument because it determined that Intervenor had filed a petition for writ of mandamus and had moved the court to approve the preemptory writ, which the court did. Accordingly, LUBA held it lacked jurisdiction over Petitioner’s appeal of the County’s decision.

Petitioner moved to transfer the case to the circuit court under ORS 34.102(4) (a notice of intent to review a local government’s decision that is not reviewable as a land use decision must be transferred to circuit court as a petition for writ of review). OAR 661-010-0075(9)(c) implements ORS 34.102(4) and provides that LUBA must dismiss an appealed decision that is not reviewable as a land use decision “unless a motion to transfer to circuit court is filed… in which case [LUBA must] transfer the appeal to the circuit court…” Intervenor argued that the correct disposition was dismissal and that transfer would be moot, citing Grabhorn v. Washington County, 46 Or LUBA 672, 678 (2004) (LUBA must dismiss where it determines the appealed decision is a non-final decision), because the court issued a writ of mandamus and entered a general judgment of dismissal, and the board of commissioners issued a final decision after. LUBA determined that Grabhorn was not dispositive because it did not involve an application that the court already had jurisdiction over. LUBA held that it was for the circuit court to decide whether the decision is moot or otherwise unreviewable.