dissenting.
Through a process more akin to alchemy than to analysis, the majority concludes that the creation of LUBA somehow constituted an affirmative grant of primary jurisdiction to local governments to determine the existence of a nonconforming use. That conclusion overrules a series of decisions by this court that local governments have no such power and creates an unnecessary dual system of jurisdiction that I am convinced the legislature did not intend. In my opinion, the majority missed the boat at the outset and still waits at the wrong pier. Accordingly, I dissent.
For the reasons set out below, I believe that the majority’s decision in this case is plainly wrong.
A nonconforming use is a property right, the existence of which is to be adjudicated in the circuit courts.
The right to continue a nonconforming use is a property right established by statute. ORS 215.130(5). Primary jurisdiction to determine the existence of the right lies in the circuit courts, and the courts’ primary jurisdiction may not be ousted by any local government proceeding. See 1000 Friends of Oregon v. Clackamas Co. Comm., 29 Or App 617, 564 P2d *6251080 (1977); Eagle Creek Rock Prod. v. Clackamas Co., 27 Or App 371, 556 P2d 150 (1976), rev den 278 Or 157 (1977).
Thus, just as the courts have primary jurisdiction to adjudicate the existence and extent of other interests in real property, they have that authority in cases like this one. Furthermore, because of the uniqueness of real property, the importance of real property interests and the complex issues often arising when those interests are in dispute, the courts have traditionally provided the forum for the final resolution of such questions. See generally Polk County v. Martin, 292 Or 69, 636 P2d 952 (1981). The majority’s ruling that a different approach is to be taken in nonconforming use cases is unconvincing and not supported by authority.
LUBA has jurisdiction to review only those decisions local governments have the authority to make.
The creation of LUBA established a forum for the review of certain local government decisions that previously had been subject to the writ of review process. See ORS 34.020 and Or Laws 1979, ch 772, §§ 4 to 6, as amended by Or Laws 1981, ch 748, §§ 35 to 36a. The majority has identified no provision in the statutory scheme establishing LUBA that either divests circuit courts of their power to adjudicate nonconforming use cases or confers on local governments the primary jurisdiction to make those decisions. The creation of LUBA per se does not have that effect. Nevertheless, the majority holds that the creation of LUBA, through some unstated and obviously mysterious process, somehow “infused” local governments with authority they clearly did not have before.
The majority’s assertion that the county’s nonconforming use decision in this case is a “land use decision” and, therefore, is reviewable by LUBA, simply begs the question it is offered to prove, i.e., that local governments can make a “final decision” on this question. If the majority is correct, a person who lives in a garage is a car.
In my opinion, ORS 197.015(10), defining “land use decision,” simply provides that local government “land use decisionfs]” that were previously subject to writ of review are now reviewable only by LUBA. ORS 197.015(10) does not *626expand the authority of local government to make those decisions. LUBA cannot review a final decision a local government has no authority to make. Indeed, in this case, LUBA recognized that limitation, stating that “[t]he proper place to appeal Clatsop County’s ‘voidable’ decision that a vested right exists is to the Circuit Court, not to this Board.” Furthermore, the majority’s summary treatment of the question whether this matter comes under one of the exceptions in ORS 197.015(11), which includes “conditional use permits * * * and similar administrative-type decisions,” states the issue but in no way resolves it.
Here, a local government made a specific finding of vested rights. It clearly had no legal authority to do so. It has never had such authority. To this day, the legislature has not conferred such authority — regardless of the majority’s contortions to infer something to the contrary. Perhaps the future will bring us the law that the majority would like to see, but we must be mindful that it is only the legislature that operates such a delivery service. It is not the function of this court to redefine the jurisdiction of the circuit courts of this state.
Finally, it should be noted that application of the majority’s new rule in this case achieves a strange result. Plaintiffs initiated this action for declaratory judgment and also appealed the county’s resolution to LUBA. Approximately one month after the court dismissed the declaratory judgment action, LUBA dismissed the appeal on the ground that it lacked jurisdiction. Thus, plaintiffs are left stuck in the middle of a road that deadends in both directions.
For all these reasons, I believe that the circuit court is and should be the proper forum in which to adjudicate the question presented in this case and would decide the appeal on that basis.
Richardson, Buttler and Young, J.J., join in this dissent.