Decision Violates Law & Is Prohibited As A Matter Of Law

LUBA will reverse a decision when the decision of local government violates a provision of applicable law.1 Additionally, for a decision to be reversed, it must be "prohibited as a matter of law."2 This means the decision is illegal and there is no way for the local government to cure the illegality by modifying the decision or supporting it with additional information.

LUBA may, for example, reverse a decision that violates a local comprehensive plan provision or an applicable land use regulation.3 Quite often, however, there is a possibility that a decision could be made legal after some modifications by the local government. Thus, it is much more common for LUBA to "remand" a decision than to reverse it. LUBA may also reverse decisions that violate statewide law,4 including statutes, land use goals, administrative agency rules,5 or Oregon’s constitution.6

This brochure is one of several in the "findings" series.7

Government Exceeded Jurisdiction Or Decision Unconstitutional

LUBA will also reverse a decision in which the local government exceeded its scope of authority (jurisdiction) in making the decision.8 A local government may exceed its jurisdiction, for example, by passing a regulation affecting land outside its geographic boundaries or impose restrictions which are sole responsibility of the state or federal government. Additionally, LUBA will reverse a decision in which the local government acted "outside it range of discretion" in denying an application.9 This would occur if the local government considered factors it was not supposed to take into account when deciding to deny an application.

Reversal - More Information

When a local government creates a new land use regulation or amends an existing one, that decision may be reversed if it violates a provision of the local comprehensive plan,10 or if the local plan or the state-wide planning goals provide no basis for creating the regulation or amendment in the first place.11 Amendments to the comprehensive plans themselves must comply with the state-wide goals12 and state statutes.13 State agency and special district land use decisions are also reviewed for goal compliance.

In practice, a significant number of LUBA decisions are remands, rather than reversals, which are comparatively rare.

Would you like to learn more about citizen involvement in land use planning? Contact a member of the Land Use Committee of the Hugo Neighborhood.

Land Use Advisor

Jim Just, Executive Director

Goal One Coalition

39625 Almen Drive

Lebanon OR 97355

541-258-6074

Footnotes

1. OAR 661-010-0071(1)(c).

2. OAR 661-010-0071(1)(c); OAR 661-010-0073(1)(c); ORS 197.835(5), (6), (7); ORS 197.828(2)(b).

3. ORS 197.835(5) - (7).

4. OAR 661-010-0071(1)(c); OAR 661-010-0073(1)(c); ORS 197.835(5),(7).

5. Id.

6. OAR 661-010-0071(1)(b); OAR 661-010-0073(1)(b); ORS 197.835(9)(a); ORS 197.828(2)(c)(B).

7. Hugo Neighborhood Association & Historical Society. 2003. Land Use Decisions: What Are Findings?. Brochure 1 in Findings Series. Grants Pass, OR.

8. OAR 661-010-0071(1)(a); OAR 661-010-0073(1)(a); ORS 197.835(9)(a)(A); ORS 197.828(2)(c)(A).

9. ORS 197.828(10)(a)(A).

10. ORS 197.835(7)(a).

11. ORS 197.835(5).

12. ORS 197.835(6).