1000 Friends of Oregon v. Land Conservation and Development Com'n

• Decision Date: 03 September 1986
• Docket Number: ACK-136
• Citation: 301 Or. 622,724 P.2d 805
• Parties: 1000 FRIENDS OF OREGON, Petitioner on Review, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION and Clatsop County, Respondents on Review. 84-; CA A33832; SC S32615.
• Court: Oregon Supreme Court

Page 805

724 P.2d 805

301 Or. 622

1000 FRIENDS OF OREGON, Petitioner on Review, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION and Clatsop

County, Respondents on Review.

84-ACK-136; CA A33832; SC S32615.

Supreme Court of Oregon,

In Banc.

Argued and Submitted July 2, 1986.

Decided Sept. 3, 1986.

Richard P. Benner, Portland, argued the cause and filed briefs for petitioner on review.

Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen. and Kendall M. Barnes, Asst. Atty. Gen., Salem, filed briefs for respondent on review, Land Conservation and Development Com'n.

Kenneth S. Eiler, Seaside, argued the cause and filed a brief for respondent on review, Clatsop County.

PETERSON, Chief Justice.

The issue here is whether a particular administrative body, the Land Conservation and Development Commission (LCDC), by issuing a "corrected acknowledgment order" identical in all material respects to an earlier final acknowledgment order save for the correction of an insignificant typographical error and the date of entry, can extend or renew the period during which judicial review may be requested concerning the substance of the order. We hold that LCDC may not and that such corrected order has no effect on the period in which to seek review.

In October 1983, Clatsop County submitted its comprehensive plan to LCDC for acknowledgment under ORS 197.251. LCDC held two public hearings. Petitioner 1000 Friends of Oregon (1000 Friends) appeared at both hearings and gave written and oral testimony. On May 31, 1984, LCDC announced that if Clatsop County would make certain changes in its plan, LCDC would allow a "segmented acknowledgment." ¹ On June 27, 1984, Clatsop County held a public hearing concerning the changes suggested by LCDC. 1000 Friends received notice of this hearing. Clatsop County approved the changes and forwarded the revisions to LCDC.

On August 3, 1984, LCDC Commissioner Church wrote Clatsop County advising that the County's plan had been acknowledged, and that a continuance order had been issued regarding the segmented areas. Accompanying the LCDC letter were copies of the compliance acknowledgment order (84-ACK-136) and the continuance order (84-CONT-137).

The compliance acknowledgment order provided:

"This matter came before the Commission on May 31, 1984, as a request for acknowledgment of compliance pursuant to ORS 197.251 and the Commission Acknowledgment Rule, OAR 660-03-000 to 660-03-033. The Commission, having fully considered Clatsop County's comprehensive plan and land use regulations, comments and objections of interested parties and the report of the Department of Land Conservation and Development, now enters its:

iFinding of Fact and Conclusions

"1. Clatsop County's request for acknowledgment of compliance was reviewed by the Commission previously on September 25, 1984 pursuant to ORS 197.251 and the Commission Acknowledgment Rule, OAR 660-03-000 to 660-03-033.

" * * * * *

"THEREFORE, IT IS HEREBY ORDERED THAT:

"The Land Conservation and Development Commission acknowledges that Clatsop County's Comprehensive Plan and land use Regulations comply with the Statewide Planning Goals except as provided in its Continuance Order 84-CONT-137.

"DATED THIS 3rd DAY OF AUGUST 1984.

" * * * * *

"NOTICE: You are entitled to Judicial review of this Order. Judicial review may be obtained by filing a petition for review within 60 days from the service of this final Order. Judicial review is pursuant to the provisions of ORS Ch. 183.42 (sic) and ORS 197.650. * * *."

Shortly after receiving the letter and accompanying orders Clatsop County notified LCDC that Finding of Fact Number 1 in the acknowledgment order was incorrect in stating that Clatsop County's acknowledgment request previously had been reviewed by LCDC on September 25, 1984. The correct date of the prior review was September 25, 1981. The August 3 continuance order reflected the correct date. On September 10, 1984, LCDC mailed a corrected acknowledgment order to Clatsop County and petitioner. In an accompanying letter LCDC apologized for the "typographical" error. The corrected acknowledgment order was dated September 7, 1984, and was identical to the original order except for the correction of the earlier review date. The September 7 order also contained a notice of appeal rights identical to that in the August 3 order.

On November 5, 1984, petitioner filed in the Court of Appeals a petition for judicial review of the September 7 corrected order. Clatsop County filed a motion to dismiss the petition as untimely as it was not filed within 60 days of the August 3 order. See ORS 197.650, 183.482(1). ²

The county argued that the correction compliance acknowledgment order of September 7 did not alter the rights or obligations determined by the original order, nor could the correction order act to extend or renew the period within which judicial review of the matters determined in the original order might be requested. The Court of Appeals granted Clatsop County's motion and dismissed 1000 Friends' petition for judicial review. 77 Or.App. 502, 713 P.2d 684 (1986).

The Court of Appeals relied upon our decision in Mullinax v. Mullinax, 292 Or. 416, 430, 639 P.2d 628 (1982), where we held as regards minor corrections of judgments:

" * * * If the amendment of a final judgment or decree for the purpose of correcting a 'clerical error' either materially alters rights or obligations determined by the prior judgment or creates a right of appeal where one did not exist before, the time for appeal should be measured from the entry of the amended judgment. If, however, the amendment has neither of these results, but instead makes changes in the prior judgment which have no adverse effect upon those rights or obligations or the parties' right to appeal, the entry of the amended judgment will not postpone the time within which an appeal must be taken from the original decree."

1000 Friends petitioned for review in this court asserting that the Court of Appeals' application of the Mullinax rule was "[a]n unwarranted extension * * * of a principle of trial court practice * * * to a state agency contested case order that unfairly deprived petitioner of its right to judicial review."

1000 Friends' argument is two-pronged. First, that LCDC's corrected order, which on its face complied with the requirements related to the form of a final order (ORS 183.310(5)(b), 183.470(4), 197.251(5)), superseded the original final order. Second, that LCDC should be estopped from denying that its corrected order was a final order for the purposes of computing the appropriate review period.

The Mullinax Rule and LCDC Orders

Although the issue in Mullinax is in some ways similar to that in this case, the effect and reviewability of judicial orders are governed by principles and provisions of law distinct from those applicable to administrative bodies generally and LCDC in particular. Trial courts have inherent authority to correct the record to speak the truth, even after jurisdiction over the cause has otherwise been acquired by a reviewing court. See e.g., Mullinax v. Mullinax, supra, 292 Or. at 423, 639 P.2d 628. ³

Administrative agencies on the other hand, absent a constitutional provision concerning their function and authority, derive their authority from (1) the enabling legislation that mandates that particular agency's function and grants powers, and (2) from general laws affecting administrative bodies. Some agencies are given express authority to reconsider, amend, correct or modify orders that would otherwise be final or to monitor conditions over time to best implement a particular statutory scheme. The Workers' Compensation Board is one such agency. See ORS 656.278(1); see also ORS 657.290; 657.676.

In another context we have held that "an order correcting some minor clerical mistake in reciting a fact that need never have been recited in the first place and that all parties must have recognized as an obvious immaterial error" would not extend the period of review from the original order. Chisholm v. SAIF, 277 Or. 51, 559 P.2d 511 (1977), adopting 26 Or.App. 627, 631, 553 P.2d 1083 (1976) (Schwab, C.J., dissenting). So far as the type of correction is concerned, the error corrected in Chisholm is identical to that in this case, an immaterial date recited in the order. Chisholm is distinguishable from the present case because it involved a different agency and because the corrected order there did not contain required notice of appeal rights.

Parallels between the judicial powers of courts and the quasi-judicial or administrative powers of agencies are useful only to the extent that similarities between the two systems may aid the appropriate decisionmaker to determine whether authority to affect an otherwise final order should be implied where the statutes governing the agency's authority do not expressly so provide. When the question is one of an agency's authority to act in a certain way, the first resort is to the legislation and rules governing that agency. See, e.g., Yamada v. Natural Disaster Claims Commission, 54 Haw. 621, 626, 513 P.2d 1001 (1973). Although common principles may apply to diverse agencies, neither agency officials nor those affected by agency action should assume uncritically that all agencies or officials have the same or similar authority regarding their respective final orders.

So far as compliance acknowledgment orders are concerned, LCDC has at least two distinct duties. First, LCDC must review proposed comprehensive plans for compliance with the land use laws. ORS 197.251. "Time is of the essence" in making final decisions concerning land use matters and those decisions should "be made consistently with sound principles governing judicial review." ORS 197.805. ⁴ Where, as here, the acknowledgment request comes subsequent to a continuance order, LCDC, by its own rule, must expedite reconsideration of...