Robson v. Polk County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 05-10-2017
  • Case #: 2017-012
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Under ORS 197.015(10), a final decision does not include a preliminary decision that is not binding on the parties.

Petitioners filed a complaint with Polk County, claiming their neighbor was improperly using a residence as a log processing business, and that the neighbor had erected a fence that was in violation of fence height restrictions in the Polk County Code (PCC). Upon filing the complaints, petitioners received a letter from the Polk County Code Enforcement Officer informing them that the neighbor had corrected the violation concerning the improper business, but that the fence in question was not in violation of the PCC. Petitioners filed their notice of intent to appeal with LUBA, identifying the Code Enforcement Officer’s letter as the final land use decision.

Respondent moves to dismiss the appeal, arguing that the letter does not qualify as a “land use decision,” which means it is not a “final” decision, and therefore is not subject to appeal or review by LUBA under ORS 197.015(10)(a). LUBA agreed with respondent, stating that the county’s initial determination of whether the fence violated the PCC was merely a preliminary determination by a local official, rather than a final decision. More specifically, it is a preliminary determination, because petitioners are not bound by the previous determination of the Code Enforcement Officer’s letter and may still try to convince the county that their neighbor is in violation of Polk County land use laws or take action under the PCC in circuit court against their neighbors. Therefore, because the letter is not a final decision, it is not reviewable by LUBA. DISMISSED.