288 P.3d 1024
Or. Ct. App.2012Background
- Pipeline applied for land use approval to construct a natural gas pipeline; application deemed complete February 16, 2010.
- County issued a written decision approving the application on November 8, 2010 with findings of fact.
- Columbia Riverkeeper appealed the decision to LUBA; during the appeal, the county sought withdrawal for reconsideration under ORS 197.830(13)(b).
- Pipeline objected to withdrawal; LUBA allowed withdrawal and set a deadline for reconsideration; county later sought to complete reconsideration.
- Pipeline filed a mandamus petition in March 2011 seeking circuit court to compel approval; circuit court dismissed for lack of jurisdiction; issue appealed.
- Record shows, in a separate proceeding, the Supreme Court stayed county proceedings on reconsideration pending adjudication here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether county's final action occurred within ORS 215.429 period | Pipeline argues final action occurred November 8, 2010 and withdrawal did not affect finality. | Clatsop County argues LUBA exclusive review and withdrawal for reconsideration preserves LUBA jurisdiction; final action occurred and mandamus not available. | Yes; final action occurred before withdrawal; mandamus jurisdiction not available. |
| Effect of ORS 197.830(13)(b) withdrawal on LUBA jurisdiction | Withdrawal destroys finality, could defeat LUBA review and permit circuit court relief. | Withdrawal does not divest LUBA; reconsideration process remains within LUBA’s review. | Withdrawal does not divest LUBA; LUBA retains exclusive jurisdiction over the appeal. |
| Relation of Compass and LUBA review to mandamus under ORS 215.429 | Compass requires harmonizing mandamus with LUBA review; mandamus rights persist alongside reconsideration. | Compass supports keeping mandamus jurisdiction aligned with LUBA review; belated denial does not moot mandamus where final action occurred within time. | Compass does not support bypassing LUBA; LUBA retains exclusive jurisdiction here. |
Key Cases Cited
- Simon v. Board of Comm. of Marion Co., 91 Or App 487 (Or. App. 1988) (mandamus not for review; timeliness matters)
- Bigej Enterprises v. Tillamook Co., 118 Or App 342 (Or. App. 1993) (final action defined when application complete and decision made)
- State ex rel Fraley v. Deschutes Co. Bd. of Comm., 151 Or App 201 (Or. App. 1997) (mandamus and LUBA interplay; final action concept)
- Murphy Citizens Advisory Comm. v. Josephine County, 325 Or 101 (Or. 1997) (mandamus remedy not divested by belated local denial)
- Compass Corp. v. City of Lake Oswego, 319 Or 537 (Or. 1994) (mandamus aligns with LUBA process; exclusivity of LUBA review)
- League of Oregon Women Voters v. Coos Co., 82 Or App 673 (Or. App. 1986) (timing for final action and LUBA review context)