dissenting.
Because I do not think we may pass off as mere commentary the studied analysis contained in Benton County v. Friends of Benton County, 294 Or 79, 653 P2d 1249 (1982), of the requirement for standing under section 4(3), I dissent. The question is not whether we agree or disagree; rather, it is what the Supreme Court meant to accomplish by its extended discussion and analysis of the problem and its interpretation of the statute in question.
Concededly, there are instances where an appellate court makes an incidental comment that is unnecessary to its decision in the case. In such cases, we, or other courts, may give little weight to the comment, because it is dictum or, perhaps, obiter dictum. I cannot read Benton County that way. The issue was whether Friends of Benton County were “adversely affected” or “aggrieved” within the meaning of the statute. Accordingly, the court’s interpretation of the statute was not only relevant, but it was material, to its disposition of the case.
The court held that the interpretation of the statutory words “adversely affected” or “aggrieved” in section 4(3) is a question of law to be decided by the court, citing McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979). It went on to discuss the two terms, stating that “aggrieved” means something more than being dissatisfied with the agency’s order, yet distinct from being “adversely affected” by it. The court pointed out that the statute does not limit either adverse affect or aggrievement to property interests which must be in physical “proximity” to the disputed land use; it stated that it understood “aggrieved” to mean something distinct from an adverse affect on some personal self-interest. It went on to state that
*325«* * * pjn generai rulemaking there ordinarily are no ‘parties’ to the proceeding who can assert that they ‘lost’ the decision, but persons who were not parties to the proceeding may be adversely affected by the rule and be allowed by an applicable law to challenge its legality. A quasi-judicial proceeding, on the other hand, implies that the decision involves application of preexisting criteria or the determination of particular facts or both, and that some persons are entitled to be heard before a decision is reached. Cf. Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979), reh den 288 Or 585, 607 P2d 722 (1980); Strawberry Hill 4 Wheelers [v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979)]. 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 88-89. (Emphasis supplied.)
To say, as the majority do, that the court’s use of the phrase “can be aggrieved,” rather than “is aggrieved,” means that one fitting the profile described in the quotation above does not necessarily have standing is to render the court’s language nothing more than a truism. I cannot believe that the court intentionally said nothing. It is true that the court did not decide Benton County solely on the basis of the quoted language interpreting the statute, and for that reason, the majority conclude that we may ignore the court’s discussion and interpretation of the statutory language in question. I do not believe we can; we should take it at face value.
Here, Fahey fulfilled the first requirement of section 4(3), in that he appeared at the hearing in opposition to the proposed action. LUBA’s finding that he was not entitled to notice as of right is supported by the record, leaving as the dispositive issue whether he was “adversely affected” or “aggrieved” by the county’s decision.
Given the Supreme Court’s interpretation of “aggrieved,” the benefit of which LUBA did not have, it appears that Fahey qualifies. Although the record does not *326expressly indicate whether he appeared before the County Commission as an interested person, the only reasonable inference from the record is that it was for that reason that he appeared. That is, he did not appear only “as a source of information or expertise,” but did so because his residence is about two and one-half miles from the proposed landfill. The record indicates that he is a member of the committee and that the committee was formed to oppose the landfill in question. Accordingly, it is reasonable to infer that he appeared in opposition to the commission’s decision.
On the assumption that the court meant what it said in Benton County, even though its broad interpretation of “aggrieved” appears to require less for standing than the statutory language mandates, I would reverse and remand to LUBA.
Rossman and Newman, JJ, join in this dissent.