Oregon Business Planning Council v. Department of Land Conservation, & Development

619 P.2d 1291, 49 Or. App. 153, 1980 Ore. App. LEXIS 3688
Court of Appeals of Oregon·Decided November 17, 1980·No. CA 16617; CA 17091; CA 17093·Published·Cited by 3 cases

Opinion

SCHWAB, C. J.

We have consolidated several cases on our own motion which have the following common denominators: (1) the petitioners have filed appeals from orders of the Land Conservation and Development Commission acknowledging various local land use plans to be in compliance with the statewide planning goals; (2) petitioners’ appeals are premised on LCDC’s acknowledgment orders being contested case orders subject to judicial review pursuant to ORS 183.482;1 (3) LCDC has moved to dismiss the appeals; and (4) LCDC contends that its review of the comprehensive plans and implementing ordinances of local governments for compliance with the state goals is a form of rulemaking subject to judicial review pursuant to ORS 183.400.2

Under either theory this case is properly in this court. The real dispute is over the scope of this court’s review and the nature of the record upon which that review is based. If LCDC’s acknowledgment decision is reviewed as a contested case order, LCDC must forward to us the record developed before it, ORS 183.482(4), which we can examine to determine if the decision is supported by substantial evidence, ORS 183.482(8)(c). If, instead, LCDC’s acknowledgment decision is reviewed as a rule, no eviden-tiary record is forwarded to us, ORS 183.335(12), 183.400(3), and there is thus no possibility of review for substantial evidence.3

We conclude that acknowledgment orders are subject to judicial review as contested case orders and, therefore, deny LCDC’s motions to dismiss.

[156] I

The Administrative Procedures Act distinguishes between "rules” and "contested cases” as follows:

" 'Contested case’ means a proceeding before an agency:
"(A) In which the individual legal rights, duties or privileges of specific parties are required by statute or Constitution to be determined only after an agency hearing at which such specific parties are entitled to appear and be heard;
"(B) Where the agency has discretion to suspend or revoke a right or privilege of a person;
"(C) For the suspension, revocation or refusal to renew or issue a license where the licensee or applicant for a license demands such hearing; or
"(D) Where the agency by rule or order provides for hearings substantially of the character required by ORS 183.415, 183.425, 183.450, 183.460 and 183.470.” ORS 183.310(2)(a).
" 'Rule’ means any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior rule * * ORS 183.310(7).

The APA creates different procedures in these two contexts. Rulemaking begins with notice to the public at large that is published in the Administrative Rules Bulletin published by the Secretary of State.4 Certain detail is required in this notice, such as a "statement of fiscal impact,” ORS 183.335(2)(a)(D), and a "statement of the need for the rule and a statement of how the rule is intended to meet the need,” ORS 183.335(2)(a)(B). Agencies [157] considering adopting rules must always consider written material submitted by interested persons but need not always hold a rulemaking hearing. "Opportunity for oral hearing shall be granted upon request received from 10 persons or from an association having not less than 10 members within 15 days after agency notice.” ORS 183.335(3). If a rulemaking hearing is held, there is no formal presentation of evidence, cross-examination, etc.; instead, interested persons are only afforded an opportunity to make a "speech” type of presentation to the agency. If the agency then adopts a rule, it must file a copy with the Secretary of State.5 The agency must also submit a copy of the rule to the Legislative Counsel Committee for review. ORS 183.710 to 183.725.

By contrast, contested case procedures contemplate adversary proceedings between "parties” that culminate in an adjudication called an "order.”6 Parties are entitled to personal, registered mail or certified mail notice of a contested case hearing. ORS 183.415(1). The detail required in the notice includes things like: "A short and plain statement of the matters asserted or charged.” ORS [158]*158183.415(2)(d). Parties may take depositions7 and subpena witnesses.8 At a contested case hearing:

"Testimony shall be taken upon oath or affirmation of the witness from whom received. The officer presiding at the hearing shall administer oaths or affirmations to the witnesses.” ORS 183.415(7).
"Every party shall have the right of cross examination of witnesses who testify and shall have the right to submit rebuttal evidence. * * *” ORS 183.450(3).

Contested cases are resolved by final orders:

"A final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of concise statements of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency’s order.” ORS 183.470(2).

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Oregon Business Planning Council v. Department of Land Conservation, & Development, 619 P.2d 1291, 49 Or. App. 153, 1980 Ore. App. LEXIS 3688 (Or. Ct. App. 1980).

619 P.2d 1291 (Oregon Business Planning Council v. Department of Land Conservation, & Development) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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