Jefferson Landfill Committee v. Marion County

RICHARDSON, J.

Petitioners appeal from a Land Use Board of Appeals (LUBA) order dismissing their appeal to LUBA from a land use decision by Marion County. The issue is whether LUBA erred in concluding that petitioners lack standing to appeal under section 4(3) of Oregon Laws 1979, chapter 772, as amended by Oregon Laws 1981, chapter 748.1 Section 4(3) provides:

“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.”

Petitioner Fahey is a member of petitioner Jefferson Landfill Committee. The committee contends that it has “representational standing.” To have representational standing, an organization must show, inter alia, that “ ‘its members would otherwise have standing to sue in their own right.’ ” 1000 Friends of Oregon v. Multnomah Co., 39 Or App 917, 923, 593 P2d 1171 (1979), quoting Hunt v. Washington Apple Advertising Comm’n, 432 US 333, 343, 97 S Ct 2434, 53 L Ed 2d 383 (1977); but see Benton County v. Friends of Benton County, 294 Or 79, 81-82, 653 P2d 1249 (1982). The only member of the committee who petitioners argue has standing to appeal to LUBA in his own right is Fahey; if he does not have standing, the committee does not.

Fahey appeared before the county commissioners to oppose the land use decision he now challenges, and he therefore satisfied the threshold standing requirement of section 4(3)(a). However, LUBA concluded that Fahey’s allegation that “he was entitled as of right to notice of the county’s decision” was not supported by the record and that *322 Fahey had not alleged “any facts which show how his interests are adversely affected or how he is aggrieved by the decision.” LUBA therefore ruled that Fahey did not meet any of the standing criteria of section 4(3) (b). Petitioners appeal from the resulting order of dismissal.

The only question that requires discussion is whether the Supreme Court concluded in Benton County v. Friends of Benton County, supra, decided after LUBA dismissed petitioners’ appeal, that a person like Fahey, who appeared before the governing body as an interested person and asserted a position on the merits, necessarily has standing to appeal to LUBA as an “aggrieved” person, if the governing body’s decision is contrary to the position he asserted. The following language in Benton County may so suggest:

“* * * A person whose interest in the decision has been recognized by the body making a quasi-judicial decision and who has appeared and asserted a position on the merits as an interested person, rather than only as a source of information or expertise, can be ‘aggrieved’ by an adverse decision within the meaning of section 4(3). As in Marbet [v. Portland Gen. Elect., 277 Or 447, 561 P2d 154 (1977)], to be ‘aggrieved’ a person must be more than abstractly dissatisfied with the outcome after the fact. The decision must be contrary to the request or other position that the person espoused during the proceeding.” 294 Or at 89.

For a number of reasons, we do not understand the quoted language as mandating the conclusion that Fahey’s appearance before the governing body is enough in itself to give him standing as a person aggrieved by that body’s decision.

The court emphasized at the outset in Benton County that being “adversely affected” and being “aggrieved” are separate and different bases for standing under section 4(3). The court ultimately held, in effect, that there was sufficient evidence to support LUBA’s finding that a member of Friends of Benton County was adversely affected by the challenged land use decision and had standing for that reason. It follows that everything the court said about the “aggrieved” basis for standing is dictum.

Standing alone, the quoted dictum may or may not mean that any person “who has appeared and asserted a *323 position on the merits as an interested person” necessarily is “aggrieved” by an adverse decision. It is noteworthy that the Supreme Court’s word choice in the dictum was “can be ‘aggrieved’ ” rather than “is ‘aggrieved’ indeed, the entire discussion of the “aggrieved” concept in Benton County is replete with words such as “can,” “may” and others suggesting that the discussion was aimed at outlining general considerations rather than articulating decisional principles.

More significantly, the quoted dictum does not stand alone in Benton County. Another dictum states:

“* * * Who is ‘aggrieved’ also may vary with the land use goal or other governing criteria that is said to be violated by the challenged decision. * * *” 294 Or at 88. (Footnote omitted.)

That dictum is not consistent with the implication in the first that anyone who has appeared and unsuccessfully asserted a position is ipso facto “aggrieved.” There can be no such general rule, if being “aggrieved” can depend on the issues involved in the land use decision.

Section 4(3) confers standing on any person who (a) appeared before the local governing body and (b) was entitled to notice and hearing or was adversely affected or was aggrieved. If any person who appears before the local governing body as an interested person and asserts a position on the merits which the governing body does not adopt is automatically aggrieved and, without more, has standing, being entitled to notice and hearing or being adversely affected could never be relevant to standing, and being aggrieved could be relevant only insofar as it is a necessary concomitant of an unsuccessful appearance before the governing body. Stated otherwise, all of subsection (b) of the standing statute would be meaningless or extraneous. We do not think the Supreme Court intended to construe the statute in that manner.

In sum, there are dicta in Benton County which can be read as supporting the conclusion that petitioner Fahey is aggrieved and therefore has standing simply because he appeared before the governing body as an interested person to assert a position that was not adopted. There are also dicta in the same opinion which seem inconsistent with that conclusion. In our view, a conclusion that Fahey has standing would be contrary to the statute that the Supreme Court construed *324 in Benton County and we construe here. The language in Benton County we find compatible with the statute is no less binding on us than the language which may not be compatible with it, but we are not required to misconstrue the statute here. Petitioner Fahey was not aggrieved by the county’s decision, and petitioners’ arguments do not persuade us that LUBA’s order was erroneous on any other ground.

Affirmed.

This section was repealed, Or Laws 1983, ch 827, § 59, effective October 1,1983. Section 31(3) of the 1983 act establishes standing criteria for appeals to LUBA from quasi-judicial land use decisions.