LUBA rules parties cannot be excluded from local appeal hearings
December 8th, 2011 by Jim JustIn a Lane County case, the Land Use Board of Appeals (LUBA) has held that a local government may not prevent other parties from participating in a local on-the-record appeal by an applicant. LUBA’s reasoning in Families for a Quarry Free Neighborhood v. Lane County goes even farther, suggesting that participation by parties may not be restricted, even where the appellant is not the applicant.
Lane Code 14.600(4) sets forth who may participate in an appeal:
Participation Criteria. Persons who may participate in a Board on-the-record hearing for an appeal are:
(a) The applicant and the applicant’s representative.
(b) The Director.
(c) The appellant and the appellant’s representative.”
LUBA held that even if Lane Code can be interpreted to prohibit participation by other parties, such a result would contravene state law:
[I]t is not consistent with ORS 197.763 to authorize an applicant that does not prevail in that final legal argument at the conclusion of the quasi-judicial evidentiary hearing a second chance to present legal argument to another local decision maker in an on-the-record appeal, with all other parties forced to the sidelines and denied any right to present written or oral legal argument to the second decision maker. * * * ORS 215.422, unlike LC 14.400 and 14.600, does not include any language that even arguably authorizes a procedure that would (1) permit an applicant to appeal a land use decision that is the product of a quasi-judicial evidentiary hearing and (2) prohibit any other party to the quasi-judicial evidentiary hearing from presenting any legal argument in the applicant’s on-the-record appeal.
* * *
Given the above code and statutory context, although it is a reasonably close question, we conclude that LC 14.400 and 14.600 are not correctly interpreted to bar non-applicant parties in the evidentiary phase of a proceeding from participating in an on-the-record appeal filed by the applicant. However, even if we are wrong and the text of LC 14.400(9)(b) and 14.600(4) is not overcome by the above-noted context, we do not believe ORS 197.763 and 215.422 can be interpreted to permit such a procedure, and the county cannot do away with rights that are protected by those statutes. As we explained in a case with some similarities to this one, a county commits a procedural error that prejudices a party’s substantial rights where it denies them a right to participate in land use proceedings that is guaranteed by statute. (Citati0n omitted).)
While LUBA’s holding in this case is limited to the circumstance where the local appeal is filed by the applicant, LUBA’s reasoning would apply equally to a circumstance where an appeal is filed by a party other than an applicant. In both situations, the reasoning that other parties must have a right to rebut the substance of any ex parte contact or respond to new evidence that might be introduced would still apply. Similarly, LUBA’s reasoning that ORS 197.763 does not authorize an applicant a second chance to present legal argument while denying all other parties the same opportunity would apply as well to other parties.
LUBA also held that a person could not be forced to appeal an initial decision in order to preserve his or her right to appeal to LUBA, explaining a person could be satisfied with an initial decision and thus have no reason to appeal but then not be satisfied with a subsequent decision should another party appeal. LUBA’s reasoning here would support the more expansive reading of its holding on standing: people have a right to participate in local appeal hearings regardless of who files the appeal, at a minimum to have the opportunity to protect their positions taken in prior hearings.
LUBA held that LC 14.600(4) could be interpreted to allow parties other than an applicant/appellant to appear in an on-the-record appeal hearing. However, LUBA in relying on statutes seems to concede that this holding is a stretch; besides, LUBA’s limited holding fails to directly address the situation where an appellant is not the applicant. The results of this case demand that LC 14.600(4) be amended to provide that all parties may participate and provide legal argument in an on-the-record appeal.


