Oregon Statutes 197.651 – Appeal to Court of Appeals for judicial review of final order of Land Conservation and Development Commission
(1) Judicial review of a final order of the Land Conservation and Development Commission under ORS § 197.626 concerning the designation of urban reserves under ORS § 197A.245 (1)(b) or rural reserves under ORS § 197A.235 is as provided in subsections (3) to (12) of this section.
Terms Used In Oregon Statutes 197.651
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Oral argument: An opportunity for lawyers to summarize their position before the court and also to answer the judges' questions.
- Remand: When an appellate court sends a case back to a lower court for further proceedings.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(2) Judicial review of any other final order of the commission under ORS § 197.626 or of a final order of the commission under 197.180, 197.251, 197.628 to 197.651, 197.652 to 197.658, 197.659, 215.780 or 215.788 to 215.794 is as provided in subsections (3) to (7), (9), (10) and (12) of this section.
(3) A proceeding for judicial review under this section may be instituted by filing a petition in the Court of Appeals. The petition must be filed within 21 days after the date the commission delivered or mailed the order upon which the petition is based.
(4) The filing of the petition, as set forth in subsection (3) of this section, and service of a petition on the persons who submitted oral or written testimony in the proceeding before the commission are jurisdictional and may not be waived or extended.
(5) The petition must state the nature of the order the petitioner seeks to have reviewed. Copies of the petition must be served by registered or certified mail upon the commission and the persons who submitted oral or written testimony in the proceeding before the commission.
(6) Within 21 days after service of the petition, the commission shall transmit to the Court of Appeals the original or a certified copy of the entire record of the proceeding under review. However, by stipulation of the parties to the review proceeding, the record may be shortened. The Court of Appeals may tax a party that unreasonably refuses to stipulate to limit the record for the additional costs. The Court of Appeals may require or permit subsequent corrections or additions to the record. Except as specifically provided in this subsection, the Court of Appeals may not tax the cost of the record to the petitioner or an intervening party. However, the Court of Appeals may tax the costs to a party that files a frivolous petition for judicial review.
(7) Petitions and briefs must be filed within time periods and in a manner established by the Court of Appeals by rule.
(8) The Court of Appeals shall:
(a) Hear oral argument within 49 days of the date of transmittal of the record unless the Court of Appeals determines that the ends of justice served by holding oral argument on a later day outweigh the best interests of the public and the parties. However, the Court of Appeals may not hold oral argument more than 49 days after the date of transmittal of the record because of general congestion of the court calendar or lack of diligent preparation or attention to the case by a member of the court or a party.
(b) Set forth in writing and provide to the parties a determination to hear oral argument more than 49 days from the date the record is transmitted, together with the reasons for the determination. The Court of Appeals shall schedule oral argument as soon as is practicable.
(c) Consider, in making a determination under paragraph (b) of this subsection:
(A) Whether the case is so unusual or complex, due to the number of parties or the existence of novel questions of law, that 49 days is an unreasonable amount of time for the parties to brief the case and for the Court of Appeals to prepare for oral argument; and
(B) Whether the failure to hold oral argument at a later date likely would result in a miscarriage of justice.
(9) The court:
(a) Shall limit judicial review of an order reviewed under this section to the record.
(b) May not substitute its judgment for that of the Land Conservation and Development Commission as to an issue of fact.
(10) The Court of Appeals may affirm, reverse or remand an order reviewed under this section. The Court of Appeals shall reverse or remand the order only if the court finds the order is:
(a) Unlawful in substance or procedure. However, error in procedure is not cause for reversal or remand unless the Court of Appeals determines that substantial rights of the petitioner were prejudiced.
(b) Unconstitutional.
(c) Not supported by substantial evidence in the whole record as to facts found by the commission.
(11) The Court of Appeals shall issue a final order on the petition for judicial review with the greatest possible expediency.
(12) If the order of the commission is remanded by the Court of Appeals or the Supreme Court, the commission shall respond to the court’s appellate judgment within 30 days. [2007 c.723 § 9; 2011 c.469 § 6]
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