Message - About the Recent Court Case and Standing/Justiciability
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Posted by  Rob Zako on September 28, 2001 at 10:39:04:

---------------- Begin Forwarded Message ----------------
Date: 9/27/01 8:18 PM
From: Evan Manvel, evan@friends.org
To: Aff-Lead, aff-lead@friends.org

Affiliates and Allies:

We presume you may have heard about the recent court decision that has
cast some doubt on the ability of organizations to participate in certain land
use decisions. While that decision will be appealed, we are analyzing it,
and hope to get more information to you soon.

For now, we advise you represent an adversly affected individual as well
as representing yourself as an organization. Details follow.

Evan Manvel
Director of Education and Research
1000 Friends of Oregon
534 SW Third Ave, Suite 300
Portland, OR 97204
503.223.0073 fax

>From Mike Collmeyer:

In a case decided Wednesday, September 26, 2001 (League of Women Voters of
Coos County v. Coos County, LUBA No. 2000-06, CA A111594), the Oregon
Court of Appeals severely curtailed the rights of citizens and organizations to
seek judicial review of land use decisions. Currently, state law allows
parties who appear before the local governing body to appeal the local
decision to LUBA and all parties to the LUBA appeal to seek review of
LUBA’s decision at the Court of Appeals. In a 5-4 decision, the Court ruled that
the statutory requirements were insufficient to establish the
"justiciability" of the case that is constitutionally required for
judicial review. It dismissed the League’s appeal of a LUBA decision, even though
the League had undeniably satisfied the clear provisions contained in the
statutes that conferred upon it the right to appeal the decision.

The Court of Appeals concluded that in order to establish the
constitutionally required "justiciability," there must be a showing that
the decision in question will have a "practical effect" on the rights of the
parties involved. Activists and activist organizations must, therefore,
submit testimony and evidence demonstrating how they will be "practically
affected" by the decision being considered. The efforts to do so must
begin immediately.

The decision does not establish a clear "practical effect" standard. It
does point out, however, that "...one category of cases that the courts
have most consistently held does not present a justiciable controversy is the
simple assertion that another individual or government agency has violated
the law." (This means we should not rely solely on a general argument
that because the implementation and enforcement of the Oregon Land Use Planning
Program are matters of statewide concern (ORS 197.013) and rely heavily
upon Citizen Participation (Goal 1), that concerned citizens do have a "real
interest" in local land use decisions and do experience a "practical
effect" when those decisions are made.)

The "adversely affected or aggrieved" standard that used to be part of
LUBA standing [and which still applies to land use decisions made under the
provisions of ORS 215.416(11) and ORS 227.175(10)] may be of some help in
determining when a decision in question may have the necessary "practical
effect" to support seeking judicial review. The Oregon Supreme Court has
held that a party demonstrates that it is "aggrieved" when (1) the local
land use decision making body has recognized the party's interest in the
decision; (2) the party has asserted a position on the merits; and (3) the
local governing body's decision was contrary to the position the party
asserted. Jefferson Landfill Comm. v. Marion Co., 297 Or 280, 284, 686
P2d 310 (1984). A party is "adversely affected" if the party asserts that the
decision made impinges on that party's use and enjoyment of its property,
or otherwise detracts from interests personal to the party. Id. at 283.

Since the instant case dealt with a petitioner that satisfied the
Jefferson Landfill definition of "aggrieved," we recommend that attention be focused
more on the "adversely affected" part of this standard. It is interesting
to note that in an earlier case, the Court of Appeals had determined that
the Coos County League of Women Voters' long-standing interest in correct
application of land use laws was sufficient to establish that the League
was aggrieved by a local land use decision and thus had standing to appeal
that decision.

We will provide more information on this case as we have more time to
analyze it. For the time being, addresses are warned that the "standing"
conferred upon parties by ORS 197.830 and ORS 197.850 will not suffice to
satisfy the "justiciability" requirement for judicial review. You should
begin immediately to address the practical impacts upon you and your
organizations that will result from the land use decisions in which you
are involved. Since "representational" and "organizational" standing can be
subject to other requirements and challenges, you should ensure that
individuals appear as individuals as well as representatives of an
organization. Until the real impact of this decision becomes clearer, the
goal concerning this matter should be to have on the record a person that
satisfies the "adversely affected" standard noted above.

It is not immediately clear whether the "justiciability" requirement
expressed in this case will apply to parties before LUBA or only when
those parties seek judicial review of a LUBA decision (or try to defend a
decision that has been appealed by others). The whole theory of the case is based
upon the constitutional requirements concerning the exercise of judicial
power under Article VII (Amended) of the Oregon Constitution. LUBA is
not a Court established by Article VII. Therefore, standing before LUBA should
not have to satisfy a fundamental constitutional requirement based upon
Article VII. But to be really effective, standing before LUBA must be
accompanied by a right to participate in an appeal of the LUBA decision
to a higher court.

Specific questions concerning potential impacts on and actions to be taken
for currently ongoing cases may be directed to Mike Collmeyer, Staff
Attorney at (503) 497-1000. Stay tuned for further information and

> The Internet address for the full opinion:
> http://www.publications.ojd.state.or.us/A111594.htm

One other comment on it, from a planner:

The dissenters (especially #3) did bring up the importance of having the
State comply with its own laws, and how the State's provision of allowing
participants appeal rights was a valid and important part of enforcing the
land-use system. In mandamus I believe there still has to be evidence on
how the decision (or lack of decision) had a clear, direct, and negative
effect on the petitioner (insert equivalent legal language). So I think
the majority would agree on the principle and importance of Mandamus, but that
legislatively determined "standing" is not sufficient. (i.e., those
materially affected must bring suit.) If I read it correctly, the
majority thought having legislation to allow those not directly affected bring suit
was essentially having the legislative branch require the judicial branch
issue advisory opinions (violating constitutional separation of the
branches). If you are not directly effected then there is no remedy,
therefo! re any decision is simply an opinion.) But as was pointed out in
the dissents, a ruling requiring government compliance with its own laws
(brought on by a disagreement with clear monetary impacts) is more than an
opinion and has clear consequences to all parties. Also in this case the
League acted as petitioner for a citizen (a neighbor) who clearly did have
standing as defined by the majority. I don't think the court addressed
the connection in part because the League didn't document it. (And why would
they, given the State rules on who has standing.) In my humble (and
somewhat ignorant) opinion the decision was well-reasoned but there is
enough questions for a Supreme Court reversal. If it stands it means 1000
Friends , etc., will need to find and get support from a clearly defined
affected party. I remember in the early smoking lawsuits the petitioner
had to be clearly affected which usually meant close-to-death! -from-smoking.
When the person died prior to a decision then of course the proceedings
were moot, and the antismoking group had to find another person who was dying
but likely to hang around for a couple of years. Affected neighbors may be an
easier-to-find category.

Karl Mawson

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