Lamb v. Lane County

¶1The sole issue presented is whether respondent (Lamb) has standing to maintain an appeal to the Lane County Board of Commissioners (Board) from a quasi-judicial land use decision made by a county hearings officer. The Board, relying on Lane County ordinances, concluded that Lamb did not have standing. LUBA concluded that the Board applied the wrong test to determine standing and reversed. We affirm LUBA’s order.

¶2Petitioner Pickett proposes to develop 300 acres of forest land into 20 acre lots with access roads for residential development and forest management uses. A hearing on the proposal before a county hearings officer was held on December 18, 1981.1 Lamb appeared at that hearing, offering testimony and documentary evidence2 in opposition to the proposal. The hearings officer specifically found that Lamb had standing; he also approved Pickett’s proposal. Lamb appealed to the Board, which held a hearing on March 3,1982. By agreement of the parties, the only issue argued at that hearing was Lamb’s standing to maintain the appeal. The Board dismissed Lamb’s appeal, finding that he did not have standing under a provision of the county code then controlling land use appeals, which provided:

“An appeal may be made to [the Board] by the applicant or any person who is adversely affected or aggrieved by the decision … Lane County Code 14.010(1). (Emphasis supplied.)

¶3ORS 215.422(1)(a) provides, in part:

“A party aggrieved by the actions of a hearings officer may appeal the action to the planning commission or county governing body, or both, however the governing body prescribes. …”3 (Emphasis supplied.)

¶4*367That statute grants a right of review to anyone “aggrieved” by the action of a hearings officer. Because the Board may not define “aggrieved” to mean something more restrictive than what is meant by ORS 215.422, Overton v. Benton County, 61 Or App 667, 672, 658 P2d 574 (1983), it appears that the only question is whether Lamb is a party “aggrieved” by the action of the hearings officer. If he is, then the Board must recognize Lamb’s right to appeal as a person “aggrieved” under ORS 215.422. Overton v. Benton County, supra.

¶5In Jefferson Landfill Comm. v. Marion Co., 297 Or 280, 686 P2d 310 (1984), the Supreme Court explained the test it announced in Benton County v. Friends of Benton County, 294 Or 79, 653 P2d 1249 (1982) for determining when a person is “aggrieved” within the meaning of section 4(3) of Oregon Laws, 1979, chapter 772, amended by Or Laws 1981, ch 748, § 35.4 As relevant here, section 4(3) allows a person whose interests are “adversely affected or who was aggrieved” by a local government’s quasi-judicial land use decision to petition LUBA for review. In that context, a person is aggrieved if:

“1) The person’s interest in the decision was recognized by the local land use decision-making body;

“2) The person asserted a position on the merits; and

“3) The local land use decision-making body reached a decision contrary to the position asserted by the person.” 297 Or at 284.

¶6See also Warren v. Lane County, 297 Or 290, 298-301, 686 P2d 316 (1984).

¶7Although the issue here is not whether Lamb has standing to appeal to LUBA under section 4(3), but is whether Lamb has standing to appeal to the Board under ORS 215.422, we conclude that the test for determining when a person is aggrieved under ORS 215.422 is the same as the test explained in Jefferson Landfill under section 4(3). Both ORS 215.422 *368and section 4(3) address the right to appeal quasi-judicial land use decisions. ORS 215.422 was amended, and section 4(3) was duplicated in substance at ORS 197.830(3) after the first judicial gloss was placed on the term “aggrieved” by Benton County v. Friends of Benton County, supra, and the legislature did not define that term in either statute.5 We do not think the legislature intended the term “aggrieved” to have a meaning in ORS 215.422 different from that in section 4(3). To conclude that different meanings were intended would result in one of two anomalies: either persons without standing before a local land use decision-making body would have standing to appeal that body’s decisions to LUBA, or the local body might preclude LUBA review.

¶8The county hearings officer in this case reached a land use decision contrary to the position on the merits Lamb asserted at the hearing. The remaining question under Jefferson Landfill is whether Lamb’s interest in the decision was recognized by the “local decision-maker.” In that case, we are told:

“… Local decision-makers, by ordinance or otherwise, may determine who will be admitted or excluded as an interested person or limited to the status of a disinterested witness …. If the decision-makers have not made such a determination, by ordinance or otherwise, it will be assumed that when a person appears before the local body and asserts a position on the merits, the person has a recognized interest in the outcome.” 297 Or at 284-85.

¶9The court described that process as the local government’s “gate-keeping function.”6 The court went on to say that

“… absent any limitation of who may appear as an interested person, the mere allowance of a person to appear and assert a position on the merits is sufficient to make a person an ‘interested person,’ … 297 Or at 285.

¶10In this case, by the time the Board considered the relevance of Lamb’s interest to Pickett’s proposal, Lamb was already through the gate, at least part way; he had been recognized by the hearings officer as an interested party, he *369had taken a position on the merits, and the hearings officer had reached a decision contrary to Lamb’s position. However, that would not preclude the Board from deciding that Lamb did not have standing, assuming that it applied the proper criteria. Some of the language in Benton County v. Friends of Benton County, supra, 294 Or at 90-91, suggests that as long as the local body applies the correct test, it may reach a conclusion different from that which a court might reach.7 It is clear that the Board did not apply the correct test, and the question remains whether the proper disposition here would be to remand the case to the Board to reconsider Lamb’s standing, applying the correct test.

¶11As we understand Benton County v. Friends of Benton County, supra, and Jefferson Landfill, read together, the undisputed facts on which Lamb relies for standing are sufficient as a matter of law to qualify him as a person aggrieved within the meaning of ORS 215.422. Accordingly, the Board may not decline to review his appeal for want3 of standing. Therefore, the proper disposition is to affirm LUBA’s order reversing the Board’s order that Lamb does not have standing.

¶12Affirmed.