dissenting.
Plaintiffs allege that in 1978 defendants IFM Associates applied for, and defendant Deschutes County approved, a “designation” of “Planned Development” on real property in the recreational development known as Indian Ford Ranch. In 1979, the county, as part of the enabling ordinances enacted to *753effectuate its comprehensive plan, re-zoned the property to RR-10, which requires a minimum of ten acres for each residential unit. In 1980, the county approved IFM’s site plan review, which provided for 175 condominium units, or three units per acre.
Because the proposed use violates the existing county zoning ordinance, plaintiffs brought this proceeding pursuant to ORS 215.185, which expressly authorizes them to do so. The majority’s response is that the county’s approval of the site plan was a land use decision that could only have been reviewed by LUBA. That response is flawed, because IFM’s proposed use violates the zoning ordinance unless IFM had acquired a vested right to that use prior to the 1979 re-zoning that prohibited it. Until our recent decision in Forman v. Clatsop County, 63 Or App 617, 665 P2d 365, rev allowed 296 Or 56 (1983), LUBA has held that it does not have jurisdiction to decide whether any person has a vested right to make a particular use of property.
Although in Forman a majority of this court, in banc, held that LUBA has exclusive jurisdiction to review a local governmental body’s determination of a person’s vested right to continue a preexisting non-conforming use, and overruled Eagle Creek Rock Prod. v. Clackamas County, 27 Or App 371, 556 P2d 150 (1976), rev den (1977); 1000 Friends of Oregon v. Clackamas Co. Comm., 29 Or App 617, 564 P2d 1080 (1977), and Eklund v. Clackamas County, 36 Or App 73, 583 P2d 567 (1978), the Supreme Court has granted the petition for review. Until that court has disposed of that case, I adhere to my view that jurisdiction to determine the existence or non-existence of a vested right in real property rests with the circuit court and not with the local governing body or LUBA.
More importantly, the posture of this case is such that we do not know whether the county made a determination of IFM’s vested rights. Plaintiffs allege that no public notice was given of the county’s site plan review and approval and that they did not have actual notice. Thére is no allegation that the county made a vested rights determination or that the issue was raised before the local body. On defendants’ motion to dismiss, all we know is that the defendant county approved a site plan that violates its zoning ordinances and that IFM’s *754proposed use violates “an ordinance or regulation to implement a comprehensive plan” within the meaning of ORS 215.185. On these facts, even the majority in Forman recognized that these plaintiffs are entitled to maintain this action. The majority opinion said:
“Nothing in the legislation creating LUBA expressly or impliedly precludes the circuit courts from exercising original jurisdiction over declaratory judgment actions to decide vested rights issues raised initially in that forum. The circuit courts’ decisions are reviewable by this court. However, when a vested rights issue is submitted to and finally decided by a local government, LUBA has exclusive jurisdiction to review that issue arising in that forum. The original vested right determination can be made by either the local government in the context of determining the application of a zoning ordinance or by the circuit court but not both.” 63 Or App at 621.
If the majority here and in Forman are correct, and if LUBA’s review of the site plan approval had been sought, LUBA could not have affirmed the local action, because the proposed use clearly violates the county zoning ordinance. LUBA has no authority to conduct an evidentiary hearing to determine whether IFM had acquired a vested right to proceed with the proposed use. See Or Laws 1979, ch 772, § 4(7) (iamended by Or Laws 1981, ch 748, § 61). Accordingly, LUBA could have reversed outright or remanded for further proceedings. In either case, these plaintiffs would be free, even under Forman, to bring and maintain this action. Until it has been established that the county decided the vested rights question, Forman is not applicable.
The majority, acting in a vacuum, holds that these plaintiffs have no remedy. For all that appears here, this proceeding under ORS 215.185 in the circuit court is an attempt to have that court exercise its “original jurisdiction” over a declaratory judgment action “to decide vested rights issues raised initially in that forum.”
Because I think the motion to dismiss should not have been granted, I would reverse and, therefore, dissent.