Opinion
82-054; CA A26638
Argued and submitted April 22, 1983
Reversed and remanded October 12, 1983 Reconsideration denied November 25, 1983 Petition for review denied December 28, 1983 ( 296 Or. 237)
Judicial Review from Land Use Board of Appeals.
Edward J. Sullivan, Salem, argued the cause for petitioners. On the brief were Corinne C. Sherton, and O'Donnell, Sullivan Ramis, Salem.
Robert C. Cannon, County Counsel, Salem, argued the cause and filed the brief for respondent Marion County.
David A. Rhoten, and Rhoten, Rhoten Speerstra, Salem, filed the brief for respondent Trans Energy Systems, Inc.
Before Richardson, Presiding Judge, and Van Hoomissen and Newman, Judges.
RICHARDSON, P. J.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Petitioners appeal from an order of the Land Use Board of Appeals (LUBA) affirming a land use decision by Marion County. At the time of LUBA's decision, appeals were pending before this court from orders of the Land Conservation and Development Commission (LCDC) that acknowledged the comprehensive plans and implementing ordinances of the county and of the city of Salem. We subsequently reversed both acknowledgment orders and remanded them to LCDC. 1000 Friends of Oregon v. Marion County, 64 Or. App. 218, 668 P.2d 412 (1983); Marion County v. Federation for Sound Planning, 64 Or. App. 226, 668 P.2d 406 (1983); City of Salem v. Families for Responsible Govt, 64 Or. App. 238, 668 P.2d 395 (1983).
The plans of both jurisdictions are relevant to the merits of this appeal. We do not reach the merits.
LUBA concluded that some of petitioners' allegations that the county decision violated statewide land use planning goals were "rendered moot" by the acknowledgment orders. LUBA then concluded that petitioners' other allegations, which were to the effect that the decision was contrary to the comprehensive plans and to the county's implementing legislation, were unmeritorious. Petitioners assign error to both conclusions.
LUBA was correct, at the time it so concluded, that the goal violation allegations were outside the scope of its review. Land use decisions by a local government with an acknowledged comprehensive plan are reviewable for compliance with the plan and with local rules but are generally not reviewable for compliance with the statewide goals. Byrd v. Stringer, 295 Or. 311, 666 P.2d 1332 (1983); Fujimoto v. Land Use Board, 52 Or. App. 875, 630 P.2d 364, rev den 291 Or. 662 (1981). Here, however, our reversal of the acknowledgment orders means that petitioners' goal violation allegations are now reviewable, and petitioners are entitled to the remand they seek. But see Or Laws 1979, ch 772, §§ 4(9) (a) and 6(5) as amended by Or Laws 1981, ch 748, §§ 35, 36a; see also Or Laws 1983, ch 827, § 33(1)(a).
The county's decision in this case was made before the plans were acknowledged, but after they had been submitted for LCDC's review in the form which later received acknowledgment.
We do not reach petitioners' assignments directed at LUBA's rejection of their contentions that the county's decision was inconsistent with applicable plan and ordinance provisions. Any ruling LUBA might make on the goal allegations, as well as events in the acknowledgment proceedings, may have an impact on the disposition of the other issues.
Reversed and remanded for further proceedings not inconsistent with this opinion.