and submitted September 13, 2016, St. Mary's Academy,
Conservation and Development Commission 15EO001863
T. Malone argued the cause and fled the briefs for
Patrick M. Ebbett, Assistant Attorney General, argued the
cause for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
DeHoog, Presiding Judge, and Hadlock, Judge, and Sercombe,
Senior Judge. [*]
Summary: This case concerns whether the Land Conservation and
Development Commission (LCDC) erred in determining that there
was not "good cause to proceed" to an enforcement
hearing that petitioner had demanded against Lane County. See
ORS 197.324(2)(b). The question on review is whether
petitioner presented evidence of a "pattern of decision
making" sufficient to obligate the commission to
determine that there was "good cause to proceed" to
an enforcement hearing. See OAR 660-045-0020(9), (10).
Held: LCDC's order was not unlawful in substance
and was supported by substantial evidence in the whole
Or.App. 695] SERCOMBE, S. J.
case concerns whether the Land Conservation and Development
Commission (LCDC) erred in determining that there was not
"good cause to proceed" to an enforcement hearing
that petitioner had demanded against Lane County.
See ORS 197.324(2)(b) (before proceeding to a
hearing on a privately initiated enforcement petition, LCDC
must "determine if there is good cause to proceed on the
petition"). Petitioner asked LCDC to conduct that
enforcement hearing and order the county to adhere to
particular procedural requirements in Lane Code (LC) 14.050.
After a preliminary hearing, LCDC entered an order in which
it determined that petitioner failed to prove that the county
had engaged in a pattern of noncompliance with LC 14.050,
and, accordingly, that there was not good cause to proceed to
an enforcement order hearing. On appeal, petitioner argues
that the number of proven violations of LC 14.050 shows a
substantial pattern of noncompliance and "good cause to
proceed" as a matter of law. We conclude that LCDC's
order was not unlawful in substance and that it was supported
by substantial evidence in the whole record. ORS 197.335
(2)(a), (d) (standard of review for final enforcement
orders). Accordingly, we affirm.
first set out the legal context of the LCDC order. LCDC is
authorized to adopt statewide land use policies that govern
the content of local land use comprehensive plans. ORS
197.040. It is also authorized to approve comprehensive plans
as consistent with those policies, and undertake enforcement
actions against local governments for failure to comply with
the statewide policies, the plans, or regulations that
implement a plan. ORS 197.320. ORS 197.320 empowers the
commission to order a local government to bring its land use
policies and decisions into compliance with the statewide
planning goals, the provisions of a comprehensive plan, or
local land use regulations. One of the bases for a compliance
order is when "[a] local government has engaged in a
pattern or practice of decision making that violates an
acknowledged comprehensive plan or land use regulation."
ORS 197.320(6). As we explained in Schoonover v.
LCDC, 104 Or.App. 155, 158-59, 799 P.2d 679 (1990),
"ORS 197.320 applies when there is a generalized failure
by a planning [290 Or.App. 696] jurisdiction to comply with
various requirements of the land use laws, over and above any
errors in a particular land use decision."
proceedings may be initiated by LCDC or by a private party.
ORS 197.324. ORS 197.319 to ORS 197.335 prescribe the
procedures by which a citizen may seek LCDC enforcement of
local land use planning requirements. Pursuant to ORS
197.319(1), a citizen must present the reasons for an
enforcement order to the affected local government and
request modifications to particular land use policies or an
action by the local government to effect existing policy. If
the local government "does not act in a manner which the
requestor believes is adequate to address the issues raised
in the request * * * a petition may be presented to [LCDC]
under ORS 197.324." ORS 197.319(2)(c).
ORS 197.324(2), when that petition is presented, "(b)
The commission shall determine if there is good cause to
proceed on the petition.
If the commission determines that there is not good cause to
proceed on the petition, the commission shall issue a final
order dismissing the petition, stating the reasons therefor.
If the commission determines that there is good cause to
proceed on the petition, the commission shall proceed as set
forth in ORS 107.328 [describing the hearing procedures for
an enforcement proceeding]."
660-045-0040-one of a series of rules adopted by the
commission to implement ORS 197.319 to 197.335- sets out the
content of an enforcement demand presented to a local
government under ORS 197.319. When a requestor seeks
enforcement based on allegations of a pattern of
non-compliant decisions, the requestor must describe (1)
"the mode, method, or instance of decision making that
constitutes the pattern, " (2) "an estimate of the
total number of decisions making up the pattern, " and
(3) "[t]he period within which the decisions
constituting the pattern were made." OAR
660-045-0040(4). After the local government [290 Or.App. 697]
response, see OAR 660-045-0050, if the requestor
wishes to commence compliance proceedings with the
commission, it must file a petition with LCDC that contains,
"(a) A request for the commission to adopt an
enforcement order to secure the corrective action sought in
the citizen's initial request to the affected local
government or district;
An explanation of why the affected local government or
district's response to the request is not adequate, or a
statement that the affected local government or district
failed to respond; and
A statement of the consequences likely to result from the
affected local government or district's refusal to take
adequate corrective action."
petition is then reviewed by the Department of Land
Conservation and Development which recommends a course of
action to the commission. OAR 660-045-0090 provides, in part:
The commission shall conduct a public hearing to determine
whether there is good cause to proceed ...