Benton County v. Friends of Benton County

• Decision Date: 23 November 1982
• Docket Number: No. 81-024,81-024
• Citation: 653 P.2d 1249,294 Or. 79
• Parties: BENTON COUNTY, a political subdivision of the State of Oregon, Petitioner for review, v. FRIENDS OF BENTON COUNTY, Respondent on review. LUBA Case; CA A21709 and SC 28628.
• Court: Oregon Supreme Court

Page 1249

653 P.2d 1249

294 Or. 79

BENTON COUNTY, a political subdivision of the State of Oregon, Petitioner for review, v. FRIENDS OF BENTON COUNTY, Respondent on review.

LUBA Case No. 81-024; CA A21709 and SC 28628.

Supreme Court of Oregon.

Argued and Submitted June 7, 1982.

Decided Nov. 23, 1982.

Richard T. Ligon, Benton County Counsel, Corvallis, argued the cause and filed a brief for petitioner on review.

Richard C. Stein, Salem, argued the cause and filed a brief for respondent on review. With him on the brief was Ramsay, Stein, Feibleman & Myers, Salem.

Before DENECKE, ^* C.J., and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ.

LINDE, Justice.

Benton County granted a conditional use permit to Morse Bros., Inc., to expand a gravel extraction operation on the east bank of the Willamette River on land designated for exclusive farm use in the county's comprehensive plan. Upon a petition by Friends of Benton County, a private association organized as a nonprofit corporation, the Land Use Board of Appeals (LUBA) found certain errors in the county's action and remanded the matter to the county for further proceedings. The county appealed LUBA's order on the grounds that LUBA had employed an erroneous test in allowing Friends of Benton County to challenge the conditional use permit and that the organization did not have standing to do so under the correct test. The Court of Appeals affirmed LUBA's order, 56 Or.App. 567, 642 P.2d 358 (1982), and we allowed review because of doubts about the court's premises. We affirm for reasons stated below.

I. "Standing" as statutory law.

We begin by noting what is and what is not presented by the appeal. Friends of Benton County petitioned and LUBA allowed it to appear in a "representational" capacity on the basis that one of its members, Clif Kenagy, is a landowner who had appeared in the county's proceeding and who would be aggrieved or adversely affected by the county's decision. The county resisted the petition on the ground that Mr. Kenagy did not have a sufficient interest to qualify as a petitioner before LUBA. It did not question that the organization would qualify if he did. The county made the same concession in the Court of Appeals and in this court. The Court of Appeals accepted this assumption on the strength of its decision in 1000 Friends of Oregon v. Multnomah County, 39 Or.App. 917, 593 P.2d 1171 (1979).

This court has not examined or approved the concept of "representational standing." If we were to do so, a number of questions would have to be briefed and considered. ¹ They were not made an issue in this case, and we do not decide them. We mention only that this issue and the issue of the individual rights of the member from which Friends of Benton County derives its standing before LUBA both illustrate a common problem in judicial review of governmental action. The problem arises from the inveterate practice of seeking and citing statements of rules in judicial opinions, even when the rules have their sources not in common law but in statutes that differ from one agency to another, from one form of judicial review to another, and often from one legislative session to the next.

This is notably true of "standing." "Standing" is not common law. Some statutes expressly provide who may seek review of specific governmental actions. Other statutes prescribe more generally who may invoke one or another form of relief against various governmental actions. The statutory criteria are by no means uniform or consistent. Nevertheless, a decision accepting or declining review to a party in a certain position often is said to hold that such a party has "standing," and this proposition thereafter is cited for or against such "standing" to obtain relief under different statutes. Also, because the literature of administrative law deals largely with federal law, much "standing" doctrine is argued and "adopted" from federal decisions, although these often focus on the "case or controversy" requirement of federal jurisdiction under Article III of the United States Constitution.

The fragmentation and perhaps needless complexity of Oregon's statutes on judicial review appear in recent decisions in which we have had to examine standing to seek review under the administrative procedure act, under the declaratory judgment act, by writ of review, by writ of mandamus, and under other statutes. Marbet v. Portland General Electric, supra n. 1, held that a person who had been admitted as a party to a contested case under the administrative procedure act was entitled by the terms of that act to pursue judicial review without further proof of injury. We noted that "[n]either the issue of standing under the administrative procedure act nor the issue of intervention under the energy facility siting act depends on generalizations of administrative law. Both issues have been resolved by the legislature." 277 Or. at 453, 561 P.2d 154. In Gruber v. Lincoln Hospital District, 285 Or. 3, 588 P.2d 1281 (1979), a person seeking to invalidate acts of the district as a "resident and taxpayer" was barred because his complaint failed to show the impact of the challenged acts on his "rights, status, or other legal relations" required by the declaratory judgment act, ORS 28.020. Such a showing, however, sometimes has not been required when a writ of mandamus is sought to enforce a "public right" ² on the relation of a party "beneficially interested." ORS 34.130. In Strawberry Hill 4 Wheelers v. Board of Comm'rs for County of Benton, 287 Or. 591, 601 P.2d 769 (1979), we reviewed the century-old conundrum of challenges to the conduct of "county business" by a writ of review expressly limited to "judicial or quasijudicial functions" exercised "to the injury of some substantial right of the plaintiff, and not otherwise." Former ORS 203.200; former ORS 34.040. There we wrote:

"References to 'standing,' without more, risk treating this term as a generic concept whose contours may be drawn indiscriminately from decisions interpreting diverse statutes or U.S. Const. art. III, § 2, or from the academic literature. But statutes often provide differentiated requirements for 'standing' before an agency or to obtain different judicial remedies."

287 Or. at 609 n. 8, 601 P.2d 769. And we repeated an observation made in Gruber, supra, that courts can do little to formulate coherent rules of standing or other aspects of judicial review in the absence of a systematic statutory framework. Id. at 608 n. 7, 601 P.2d 769.

In this case, the Court of Appeals rested respondents' "representational standing" on its earlier decision in 1000 Friends of Oregon v. Multnomah Co., 39 Or.App. 917, 593 P.2d 1171 (1979). That decision, in turn, cited cases in the Supreme Court of the United States without explaining how those cases, or the laws under which they were decided, related to the jurisdictional basis of the case before the Court of Appeals. Moreover, the present case comes to court under different statutory provisions for review from those in 1000 Friends of Oregon v. Multnomah County or in two other cases also cited by the Court of Appeals. ³ These provisions were extensively considered and revised when the Land Use Board of Appeals was created in 1979. Therefore, insofar as Friends of Benton County made no effort to claim standing before LUBA except as a "representative" of its member Kenagy, the latter's qualification as a petitioner before LUBA must be examined under the 1979 law.

II. The 1979 statutes.

Unlike prior land use cases initiated in circuit courts by writ of review, the present case involves two distinct provisions for review, the first governing review by the Land Use Board of Appeals and the second judicial review by the Court of Appeals. Or.Law 1979, ch. 772, prescribed procedure before the board in section 4 and judicial review in section 6a. Section 4, provided:

"(2) Except as provided in subsection (3) of this section, any person whose interests are adversely affected or who is aggrieved by a land use decision and who has filed a notice of intent to appeal as provided in subsection (4) of this section may petition the board for review of that decision ....

"(3) Any person who has filed a notice of intent to appeal as provided in subsection (4) of this section may petition the board for review of a quasi-judicial land use decision if the person:

"(a) Appeared before the city, county or special district governing body or state agency orally or in writing; and

"(b) Was a person entitled as of right to notice and hearing prior to the decision to be reviewed or was a person whose interests are adversely affected or who was aggrieved by the decision."

A further relevant provision states that the petition for review shall state "[t]he facts that establish that the petitioner has standing." Or.Laws 1979, ch. 772, § 4(6)(a).

Review by LUBA thus is not limited to persons who can show "injury of some substantial right," as it was under the writ of review, or "whose interests are substantially affected," as ORS 197.300 prescribed at the time of 1000 Friends of Oregon v. Multnomah County, supra n. 3. Instead, the 1979 statute allowed a petition to the board by any person who fits within the foregoing provisions. ⁴ The provisions differ depending on whether the land use decision qualifies as "quasi-judicial." Subsection (2) allows a petition to LUBA, after a notice of intent to appeal, by any person "whose interests are adversely affected" or, in the alternative, "who is aggrieved by the decision," except when the decision is quasijudicial. In such a case, the petitioner must have appeared orally or in writing before the body making the decision to be reviewed but need not be either affected or aggrieved if the petitioner was entitled to notice and to be heard before the decision was made.

An examination of the legislative history of the 1979 law, helpfully collected in the county's...