concurring.
The petitioner is not entitled to attorney fees because it cannot be said that LCDC “acted without a reasonable basis in fact or in law.” ORS 183.497(1).
In Willamette University v. LCDC, 45 Or App 355, 608 P2d 1178 (1980), the Court of Appeals stated:
“LCDC, rather than this court, is the primary policymaker in this field. Norvell v. Portland Area LGBC, 43 Or App 849, 604 P2d 896 (1979). LCDC thus is entitled to amend the statewide planning goals to embody the policy choice stated in OAR 660-01-305 * * 45 Or App at 373.
LCDC responded to that suggestion by enacting a rule amending State Wide Planning Goal 14. The Court of Appeals held that the amendment to Goal 14 was valid. 1000 Friends of Oregon v. LCDC, 52 Or App 703, 629 P2d 831 (1981). We reversed. 1000 Friends of Oregon v. LCDC, 292 Or 735, 642 P2d 1158 (1982).
The ORS 183.497 standard, “reasonable basis in fact or in law,” is a standard which, until now, has not been construed or applied by this court. The majority does not interpret the statute and create a more definite, objective standard. The majority states that there was no “reasonable basis in fact or in law” for the LCDC order because “[t]here is no reasonable way to read the statutes to authorize that action * * I am of the opinion that it cannot be said that an agency was acting “without a reasonable basis in fact or in law” when (1) it responded to a suggestion of an appellate court that such an amendment may be proper, and (2) when the amendment in question was subsequently upheld by an appellate court.
Roberts, J., joins in this opinion.