Cascade Aggregates, Inc. v. Scappoose Drainage District
Cascade Aggregates, Inc. v. Scappoose Drainage District
Opinion of the Court
After the filing of petitioner’s brief, the Land Use Board of Appeals, purporting to act under ORS 183.482(6),
Oregon Laws 1979, chapter 772, section 6a, subsection 2, provides:
"Notwithstanding the provisions of ORS 183.480 to 183.500, judicial review of orders issued under sections 4 to 6 of this 1979 Act shall be solely as provided in this section.”
Although the rest of section 6a for the most part tracks the language of ORS 183.482, it does not include language identical, or even similar, to that contained in ORS 183.482(6). That omission is consistent with the provision in section 4(8) of chapter 772 requiring LUBA to "issue a final order within 90 days after the date of filing of the petition.” To permit the withdrawal of an order would permit the evasion of that limitation.
Motion allowed.
ORS 183.482(6):
"(6) At any time subsequent to the filing of the petition for review and prior to the date set for hearing the agency may withdraw its order for purposes of reconsideration. If an agency withdraws an order for purposes of reconsideration, it shall, within such time as the court may allow, affirm, modify or reverse its order. If the petitioner is dissatisfied with the agency action after withdrawal for purposes of reconsideration, he may file an amended petition for review and the review shall proceed upon the revised order.”
The dissent in citing Jakob v. Dunes City, 51 Or App 505, 626 P2d 376 (1981), anticipates a possible result if we were to get to the merits.
Dissenting Opinion
dissenting.
The order of LUBA purporting to overrule the county’s zoning decision without first referring the matter to LCDC was completely null and void.
The majority now holds that LUBA is powerless to withdraw this order for reconsideration. This disposition does not square with our holding in Jakob v. Dunes City, 51 Or App 505, 626 P2d 376 (1981). In Jakob, as in the case at
In my view, Jakob is dispositive. This proceeding should also be reversed and remanded with instructions to issue a proper order within 35 days ("the balance of the 90-day period which remained at the time of its earlier order together with any extentions of time which may be agreed to by the parties * * *.”) Jakob at 511.
As to LUBA’s motion to withdraw its order, contrary to the majority, it is my view that ORS 183.482(6)
The Attorney General argues that LUBA’s motion to withdraw does not constitute a part of "Judicial Review” of LUBA’s order within the meaning of section 6a(2) of Ch 772, Or Laws 1979.
ORS 183.482(6) provides:
"At any time subsequent to the filing of the petition for review and prior to the date set for the hearing the agency may withdraw its order for purposes of reconsideration. If an agency withdraws an order for purposes of reconsideration, it shall, within such time as the court may allow, affirm, modify or reverse its order. If the petitioner is dissatisfied with the agency action after withdrawal for purposes of reconsideration, he may file an amended petition for review and the review shall proceed upon the revised order.”
Oregon Laws 1979, ch 772, § 6a, p 1021 states:
"Notwithstanding the provisions of ORS 183.480 to 183.500, judicial review of orders issued under sections 4 to 6 of this 1979 Act shall be solely as provided in this section.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.