OAR 661-010-0069: Transfers

(1) Motion to Transfer to Circuit Court: (a) Any party may request, pursuant to ORS 34.102, that an appeal be transferred to the circuit court of the county in which the appealed decision was made, in the event the Board determines the appealed decision is not reviewable as a land use decision or limited land use decision as defined in 197.015(10) or (12). (b) A request for a transfer pursuant to ORS 34.102 shall be initiated by filing a motion to transfer to circuit court not later than 14 days after the date a respondent’s brief or motion that challenges the Board’s jurisdiction is filed. If the Board raises a jurisdictional issue on its own motion, a motion to transfer to circuit court shall be filed not later than 14 days after the date the moving party learns the Board has raised a jurisdictional issue. (c) If the Board determines the appealed decision is not reviewable as a land use decision or limited land use decision as defined in ORS 197.015(10) or (12), the Board shall dismiss the appeal unless a motion to transfer to circuit court is filed as provided in subsection (1)(b) of this rule, in which case the Board shall transfer the appeal to the circuit court of the county in which the appealed decision was made. (2) Transfer from Circuit Court: When any appeal of a land use or limited land use decision is transferred to LUBA from circuit court, the petition for writ of review filed in the circuit court shall be treated as the notice of intent to appeal, and the case shall proceed as provided in LUBA’s rules, subject to the following: (a) No additional filing fee shall be required; (b) The petitioner(s) in the transferred circuit court proceeding shall file with the Board a Notice of Transfer that contains the information required by OAR 661-010-0015(3), and shall serve the Notice of Transfer upon all persons required to be named in the Notice of Intent to Appeal pursuant to OAR 661-010-0015(2) and (3). The Notice of Transfer shall be filed within the time set by the Board. The date of the Notice of Transfer is served shall begin the running of the 21-day period within which a motion to intervene in the appeal may be filed. (c) After an appeal is transferred to LUBA and the Notice of Transfer is received by the Board, the Board, by letter, will establish a deadline for the respondent to transmit the record. (3) Transfer from the Oregon Department of Land Conservation and Development: Where the Director of the Oregon Department of Land Conservation and Development transfers a matter to LUBA pursuant to ORS 197.825(2)(c)(A), the case shall proceed as provided in LUBA’s rules, subject to the following: (a) The date of the notice from the Director making the transfer shall begin the running of a 21-day period within which one or more parties in the proceedings before the department may file a notice of intent to appeal with LUBA. A notice filed thereafter shall not be deemed timely filed, and the appeal shall be dismissed. (b) Except as provided in this section, the notice of intent to appeal shall conform to the requirements of OAR 661-010-0015, including payment of the filing fee. The notice of intent to appeal shall identify the local government as the respondent, rather than the Oregon Department of Land Conservation and Development or the Land Conservation and Development Commission. (c) On receipt of a notice of intent to appeal, the Board shall, by letter, establish a deadline for the respondent to file the portion of the local record necessary to review the transferred matter. In all other respects, an appeal of a transferred matter shall proceed according to LUBA’s rules.