Title 197 · ORS Chapter 197

197.845. �� (d) Any reasonable period of delay resulting from a continuance granted by a member of the board on the member�s own motion or at the request of one of the parties, if the member grant

Citation: ORS 197.845

Section: 197.845

197.845.

�� (d) Any reasonable period of delay resulting from a continuance granted by a member of the board on the member�s own motion or at the request of one of the parties, if the member granted the continuance on the basis of findings that the ends of justice served by granting the continuance outweigh the best interest of the public and the parties in having a decision within 77 days.

�� (2) No period of delay resulting from a continuance granted by the board under subsection (1)(d) of this section shall be excludable under this section unless the board sets forth in the record, either orally or in writing, its reasons for finding that the ends of justice served by granting the continuance outweigh the best interests of the public and the other parties in a decision within the 77 days. The factors the board shall consider in determining whether to grant a continuance under subsection (1)(d) of this section in any case are as follows:

�� (a) Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice; or

�� (b) Whether the case is so unusual or so complex, due to the number of parties or the existence of novel questions of fact or law, that it is unreasonable to expect adequate consideration of the issues within the 77-day time limit.

�� (3) No continuance under subsection (1)(d) of this section shall be granted because of general congestion of the board calendar or lack of diligent preparation or attention to the case by any member of the board or any party.

�� (4) The board may defer all or part of its consideration of a land use decision or limited land use decision described in subsection (1)(a) of this section until the Land Conservation and Development Commission has disposed of the acknowledgment proceeding described in subsection (1)(a) of this section. If the board deferred all or part of its consideration of a decision under this subsection, the board may grant a stay of the comprehensive plan provision, land use regulation, limited land use decision or land use decision under ORS 197.845. [1983 c.827 �33; 1989 c.761 �25; 1991 c.612 �19; 1991 c.817 �27; 1995 c.595 �18; 1999 c.348 �18; 1999 c.621 �8]

�� 197.843 Attorney fees for development of housing. (1) The Land Use Board of Appeals shall award attorney fees to:

�� (a) An applicant whose application is only for the development of affordable housing, if the board reverses a quasi-judicial land use decision denying the application;

�� (b) An applicant whose application is only for the development of housing and was approved by the local government, if the board affirms the decision; and

�� (c) The local government that approved a quasi-judicial land use decision described in paragraph (b) of this subsection.

�� (2) For housing other than affordable housing, the attorney fees specified in subsection (1)(b) and (c) of this section apply only within urban growth boundaries.

�� (3) A party who was awarded attorney fees under this section or ORS 197.850 shall repay the fees plus any interest from the time of the judgment if the property upon which the fees are based is developed for a use other than the proposed housing.

�� (4) As used in this section:

�� (a) �Affordable housing� means affordable housing, as defined in ORS 197A.445, or publicly supported housing, as defined in ORS 456.766.

�� (b) �Attorney fees� includes prelitigation legal expenses, including preparing and processing the application and supporting the application in local land use hearings or proceedings. [2021 c.385 �2; 2024 c.110 �10]

�� 197.845 Stay of decision being reviewed; criteria; undertaking; conditions; limitations. (1) Upon application of the petitioner, the board may grant a stay of a land use decision or limited land use decision under review if the petitioner demonstrates:

�� (a) A colorable claim of error in the land use decision or limited land use decision under review; and

�� (b) That the petitioner will suffer irreparable injury if the stay is not granted.

�� (2) If the board grants a stay of a quasi-judicial land use decision or limited land use decision approving a specific development of land, it shall require the petitioner requesting the stay to give an undertaking in the amount of $5,000 in addition to the filing fee under ORS 197.830 (9). The board may impose other reasonable conditions such as requiring the petitioner to file all documents necessary to bring the matter to issue within specified reasonable periods of time.

�� (3) If the board affirms a quasi-judicial land use decision or limited land use decision for which a stay was granted under subsections (1) and (2) of this section, the board shall award reasonable attorney fees and actual damages resulting from the stay to the person who requested the land use decision or limited land use decision from the local government, special district or state agency, against the person requesting the stay in an amount not to exceed the amount of the undertaking.

�� (4) The board shall limit the effect of a stay of a legislative land use decision to the geographic area or to particular provisions of the legislative decision for which the petitioner has demonstrated a colorable claim of error and irreparable injury under subsection (1) of this section. The board may impose reasonable conditions on a stay of a legislative decision, such as the giving of a bond or other undertaking or a requirement that the petitioner file all documents necessary to bring the matter to issue within a specified reasonable time period. [1983 c.827 �34; 1989 c.761 �22; 1991 c.817 �28; 1999 c.621 �9; 2021 c.61 �2]

�� 197.850 Judicial review of board order; procedures; scope of review; attorney fees; undertaking. (1) Any party to a proceeding before the Land Use Board of Appeals under ORS 197.830 to 197.845 may seek judicial review of a final order issued in those proceedings.

�� (2) Notwithstanding the provisions of ORS 183.480 to 183.540, judicial review of orders issued under ORS 197.830 to 197.845 is solely as provided in this section.

�� (3)(a) Jurisdiction for judicial review of proceedings under ORS 197.830 to 197.845 is conferred upon the Court of Appeals. Proceedings for judicial review are instituted by filing a petition in the Court of Appeals. The petition must be filed within 21 days following the date the board delivered or mailed the order upon which the petition is based.

�� (b) Filing of the petition, as set forth in paragraph (a) of this subsection, and service of a petition on all persons identified in the petition as adverse parties of record in the board proceeding is jurisdictional and may not be waived or extended.

�� (4) The petition must state the nature of the order the petitioner desires reviewed. Copies of the petition must be served by first class, registered or certified mail on the board and all other parties of record in the board proceeding.

�� (5) Within seven days after service of the petition, the board shall transmit to the court the original or a certified copy of the entire record of the proceeding under review, but, by stipulation of all parties to the review proceeding, the record may be shortened. The court may tax a party that unreasonably refuses to stipulate to limit the record for the additional costs. The court may require or permit subsequent corrections or additions to the record when deemed desirable. Except as specifically provided in this subsection, the court may not tax the cost of the record to the petitioner or any intervening party. However, the court may tax such costs and the cost of transcription of record to a party filing a frivolous petition for judicial review.

�� (6) Petitions and briefs must be filed within time periods and in a manner established by the Court of Appeals by rule.

�� (7)(a) The court shall hear oral argument within 49 days of the date of transmittal of the record.

�� (b) The court may hear oral argument more than 49 days from the date of transmittal of the record provided the court determines that the ends of justice served by holding oral argument on a later day outweigh the best interests of the public and the parties. The court may not hold oral argument more than 49 days from the date of transmittal of the record because of general congestion of the court calendar or lack of diligent preparation or attention to the case by any member of the court or any party.

�� (c) The court shall set forth in writing a determination to hear oral argument more than 49 days from the date the record is transmitted, together with the reasons for its determination, and shall provide a copy to the parties. The court shall schedule oral argument as soon as practicable thereafter.

�� (d) In making a determination under paragraph (b) of this subsection, the court shall consider:

�� (A) Whether the case is so unusual or complex, due to the number of parties or the existence of novel questions of law, that 49 days is an unreasonable amount of time for the parties to brief the case and for the court to prepare for oral argument; and

�� (B) Whether the failure to hold oral argument at a later date likely would result in a miscarriage of justice.

�� (8) Judicial review of an order issued under ORS 197.830 to 197.845 must be confined to the record. The court may not substitute its judgment for that of the board as to any issue of fact.

�� (9) The court may affirm, reverse or remand the order. The court shall reverse or remand the order only if it finds:

�� (a) The order to be unlawful in substance or procedure, but error in procedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby;

�� (b) The order to be unconstitutional; or

�� (c) The order is not supported by substantial evidence in the whole record as to facts found by the board under ORS 197.835 (2).

�� (10) The Court of Appeals shall issue a final order on the petition for judicial review with the greatest possible expediency.

�� (11) If the order of the board is remanded by the Court of Appeals or the Supreme Court, the board shall respond to the court�s appellate judgment within 30 days.

�� (12) A party must file with the board an undertaking with one or more sureties insuring that the party will pay all costs, disbursements and attorney fees awarded against the party by the Court of Appeals if:

�� (a) The party appealed a decision of the board to the Court of Appeals; and

�� (b) In making the decision being appealed to the Court of Appeals, the board awarded attorney fees and expenses against that party under ORS 197.830 (15)(b) or (c).

�� (13) Upon entry of its final order, the court shall award attorney fees and expenses to a party who:

�� (a) Prevails on a claim that an approval condition imposed by a local government on an application for a permit pursuant to ORS 215.416 or 227.175 is unconstitutional under section 18, Article I, Oregon Constitution, or the Fifth Amendment to the United States Constitution; or

�� (b) Is entitled to attorney fees under ORS 197.843.

�� (14) The undertaking required in subsection (12) of this section must be filed with the board and served on the opposing parties within 10 days after the date the petition was filed with the Court of Appeals. [1983 c.827 �35; 1989 c.515 �1; 1989 c.761 �26; 1995 c.595 �19; 1997 c.733 �1; 1999 c.575 �1; 1999 c.621 �10; 2009 c.25 �1; 2019 c.221 �2; 2021 c.385 �3a]

�� 197.855 Deadline for final court order; exceptions. (1) The Court of Appeals shall issue a final order on a petition for review filed under ORS 197.850 within 91 days after oral argument on the petition.

�� (2) The following periods of delay shall be excluded from the 91-day period within which the court must issue a final order on a petition:

�� (a) Any period of delay resulting from a motion properly before the court; or

�� (b) Any reasonable period of delay resulting from a continuance granted by the court on the court�s own motion or at the request of one of the parties, if the court granted the continuance on the basis of findings that the ends of justice served by granting the continuance outweigh the best interest of the public and the parties in having a decision within 91 days.

�� (3) No period of delay resulting from a continuance granted by the court under subsection (2)(b) of this section shall be excludable under this section unless the court sets forth, in the record, either orally or in writing, its reasons for finding that the ends of justice served by granting the continuance outweigh the best interests of the public and the other parties in a decision within the 91 days. The factors the court shall consider in determining whether to grant a continuance under subsection (2)(b) of this section in any case are as follows:

�� (a) Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice; or

�� (4) No continuance under subsection (2)(b) of this section shall be granted because of general congestion of the court calendar or lack of diligent preparation or attention to the case by any member of the court or any party. [1983 c.827 �35a]

�� 197.860 Stay of proceedings to allow mediation.

All parties to an appeal may at any time prior to a final decision by the Court of Appeals under ORS 197.855 stipulate that the appeal proceeding be stayed for any period of time agreeable to the parties and the board or court to allow the parties to enter mediation. Following mediation, the board or the court may, at the request of the parties, dismiss the appeal or remand the decision to the board or the local government with specific instructions for entry of a final decision on remand. If the parties fail to agree to a stipulation for remand or dismissal through mediation within the time the appeal is stayed, the appeal shall proceed with such reasonable extension of appeal deadlines as the board or Court of Appeals considers appropriate. [1989 c.761 �14]

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