Thank you for the opportunity to testify on SB 359. First, I want to stress that not every local government charges exorbitant appeal fees on quasi-judicial decisions. However, some do and the number is growing. By exorbitant, we are referring to appeal fees in the thousands up to the tens of thousands of dollars. These are on local land use appeals of quasi-judicial decisions. Let me unpack that “local land use appeals of quasi-judicial decisions.”

First, they are local land use appeals. This means that a decision has already been made by the local government. All legal due diligence should be done, and there should be a record of the decision. The staff has done their work; the issues have been raised. Continuing to unpack “local land use appeals of quasi-judicial decisions,” they are appeals of quasi-judicial land use decisions. Typically, this means only a single property or project is involved: Someone has approached the local government and requested a permit. These are much simpler decisions than local government legislative land use decisions, and typically, only a few provisions of the comprehensive plan apply. So we are talking about a local government reviewing a decision where the legal and staff work should largely be done. I mean, the local government is not going to make a decision without doing legal due diligence, right? So why is the appeal so expensive? In some cases, it is, perversely, the local government requiring the appellant to bear the cost of the local government burnishing its case.

As part of the appeal fee, some local governments require the appellant to bear the costs of the local governments attorney fees, even if the appellant wins the appeal. So the time the local governments attorney spends burnishing the findings is charged to the appellant, even though this work is directly opposed to their best interests. This is perfectly legal under the current law. In fact, this law requires that the local appeal fee must be reasonable and no more than the actual or average costs of the appeal. However, LUBA has declined to rule on the reasonableness prong of this test including when appeal fees have ranged up to many thousands of dollars and instead has relied on an analysis of the actual or average costs of the appeal. This has failed to rein in large appeal fees. SB 359 caps local appeal fees of quasi-judicial decisions at a reasonable level so that the doors to the courthouse are open to all.

This may sound like a burden to cash-strapped local governments, but we are not proposing capping appeal fees for decisions that allow political considerations by the local government (also known as local government legislative decisions). We are only talking about decisions where the local government is acting in a quasi-judicial capacity, like a court does, merely applying the facts to the law. In these cases, the local government is not even required to take appeals under current law or under SB 359. They can already allow appeals from the planning commission, the development director, or the hearings officer to go directly to LUBA. They can even craft their local codes so that they have discretion to catch important cases and rule on them before they become final and are susceptible to review at LUBA.

Again, to be clear, local governments are not required to take appeals of quasi-judicial decisions. If they take these appeals then, unlike legislative land use decisions, politics are not supposed to be a factor in the decision.

The political body is not required to get involved at all – if it does, they are supposed sit in the seat of a judge, not a politician. If, despite these facts, local governments choose to take appeals when they are executing a judge-like role, it only follows that appeal fees should be capped at reasonable levels. This ensures the courthouse doors are open to all.

Thank you,

Jason Miner
Executive Director, 1000 Friends of Oregon