Cascade Aggregates, Inc. v. Scappoose Drainage District

633 P.2d 854, 53 Or. App. 954, 1981 Ore. App. LEXIS 3248

• Court: Court of Appeals of Oregon
• Decided: September 8, 1981
• Docket: LUBA No. 80-152, CA A20286
• Status: Published

Opinions

PER CURIAM

After the filing of petitioner’s brief, the Land Use Board of Appeals, purporting to act under ORS 183.482(6),¹ filed in this court a document captioned "Withdrawal of Order for Purposes of Reconsideration.” Petitioner filed a motion to strike the withdrawal. The motion is allowed.

Oregon Laws 1979, chapter 772, section 6a, subsection 2, provides:

"Notwithstanding the provisions of ORS 183.480 to 183.500, judicial review of orders issued under sections 4 to 6 of this 1979 Act shall be solely as provided in this section.”

Although the rest of section 6a for the most part tracks the language of ORS 183.482, it does not include language identical, or even similar, to that contained in ORS 183.482(6). That omission is consistent with the provision in section 4(8) of chapter 772 requiring LUBA to "issue a final order within 90 days after the date of filing of the petition.” To permit the withdrawal of an order would permit the evasion of that limitation.²

Motion allowed.

1 ORS 183.482(6):

"(6) At any time subsequent to the filing of the petition for review and prior to the date set for hearing the agency may withdraw its order for purposes of reconsideration. If an agency withdraws an order for purposes of reconsideration, it shall, within such time as the court may allow, affirm, modify or reverse its order. If the petitioner is dissatisfied with the agency action after withdrawal for purposes of reconsideration, he may file an amended petition for review and the review shall proceed upon the revised order.”

2 The dissent in citing Jakob v. Dunes City, 51 Or App 505, 626 P2d 376 (1981), anticipates a possible result if we were to get to the merits.