The following is the procedure Clatsop County Counsel Jeff Bennett, of Jordan Schrader Ramis PC, has advised the County to follow in light of LUBA's remand of the Bradwood Landing decision in LUBA No. 2008-052:

1.  The parties have 21 days from January 27, 2009, to file an appeal of LUBA's decision to the Court of Appeals.  ORS 197.850(3)(a).  The 21 days is measured from the date LUBA transmits the decision.  It looks like that happened January 27, 2009.  The county has nothing to do on remand until February 17, 2009, the filing deadline for a judicial appeal, unless the County itself decides to appeal, in which case the County must file a Petition for Review with the Court of Appeals by February 17, 2009.

 

2.  If no appeal is filed, then the County is required to take final action on the remand within 90 days after the "effective date" of LUBA's final order.  ORS 215.435(1).    

 At this point, according to counsel, procedures become somewhat ambiguous. 

     (i) Subsection (1) of the statute defines "effective date" to be the last day a party may file a Petition for Review with the Court of Appeals, so, the 90 days would start to run on February 17, 2009; this makes the 90-day period lapse on Monday May 18, 2009.   

 

     (ii) But, ORS 215.435(2)(a) clearly says the 90-day period "shall not begin until the applicant requests in writing that the County proceed with the application on remand."  This appears to put the applicant in the driver's seat as to when the 90-day processing period starts to run. 

Based on the above, Mr. Bennett believes that until the County receives the applicant's "request to proceed" under 215.435(2)(a), the County is to do nothing on the remand.  Once that notice is received, the County then has 90 days within which to make a final decision.  However, if the applicant gives a notice to proceed before the 21-day appeal period has run, he reads ORS 215.435(1) and 215.435(1) together to mean the County cannot start the 90-day clock on remand until that 21-day appeal period has lapsed.     

3.  The statute also allows the applicant to ask that the 90 days be extended for a "reasonable period of time."  ORS 215.435(2)(b).  Mr. Bennett reads this to be available to the applicant only after the 90-day period has started to tick down.  Whether to grant the extension is up to the County's discretion.