Estremado v. Jackson County, 96-059

• Decision Date: 20 May 1997
• Docket Number: No. 96-059,96-059
• Citation: 146 Or.App. 529,934 P.2d 515
• Parties: Joseph ESTREMADO and Joyce Estremado, Petitioners, v. JACKSON COUNTY and Thomas Lowell, Respondents. LUBA; CA A95538.
• Court: Oregon Court of Appeals

Page 515

934 P.2d 515

146 Or.App. 529

Joseph ESTREMADO and Joyce Estremado, Petitioners, v. JACKSON COUNTY and Thomas Lowell, Respondents.

LUBA No. 96-059; CA A95538.

Court of Appeals of Oregon.

Argued and Submitted Jan. 31, 1997.

Decided Feb. 26, 1997.

Review Denied May 20, 1997.

Richard H. Berman, Medford, argued the cause for petitioners. With him on the brief was Blackhurst, Hornecker, Hassen & Ervin B. Hogan.

James R. Dole, Grants Pass, argued the cause for respondent Thomas Lowell. With him on the brief was Schultz, Salisbury, Cauble, Versteeg & Dole.

No appearance for respondent Jackson County.

Before DEITS, P.J., and RICHARDSON, C.J., and De MUNIZ, JJ.

DEITS, Presiding Judge.

Petitioners seek review of LUBA's dismissal of their appeal from what they denominate "land use decisions" of Jackson County approving respondent Lowell's (respondent) site plan and related applications for dwellings in a resource zone. LUBA held that the county's approvals were issued "in response to a writ of mandamus" under ORS 215.428(7) and, therefore, were not "land use decisions" subject to LUBA's jurisdiction. ORS 197.015(10)(d)(B). We affirm.

Respondent filed his applications in late 1992. After substantially more than 120 days had elapsed and no final county action had been taken, respondent brought a mandamus action, pursuant to ORS 215.428(7), to compel the county to approve the applications. The circuit court issued an alternative writ of mandamus. It also issued a stay order, pursuant to ORS 34.130(5), prohibiting further county proceedings on the applications during the pendency of the action. Then, as explained in LUBA's opinion:

"As required by the alternative writ, the county appeared at a show cause hearing on March 27, 1995 and contested issuance of a peremptory writ of mandamus. On April 27, 1995, the circuit court issued an order allowing the hearings officer to prepare a draft decision regarding the applications without violating the previously imposed stay on proceedings. The court ordered that any decision of the hearings officer would not be binding or final, 'nor shall it be deemed or considered any proceeding, or portion thereof, before Jackson County on or relating to [defendant's] applications.' In its April 27, 1995 order, the court also provided that the stay on proceedings would 'otherwise remain in full force and effect.' According to the affidavit submitted by petitioners, in May 1995 the hearings officer drafted a decision approving the three site plan review applications and the one lot line adjustment which are the subject of this appeal.

"On October 18, 1995, the circuit court issued an order granting [respondent] partial summary judgment and ordering the issuance of a peremptory writ of mandamus commanding approval of the three site plan review applications that are at issue in this appeal."

Thereafter, in response to motions by the respective parties, the circuit court first vacated the peremptory writ and granted relief to petitioners, and then, on January 16, 1996, reversed that decision and effectively ruled again in favor of respondent. ¹ As LUBA described the later ruling and the events that followed from it:

"On January 16, 1996, the circuit court issued an order granting [respondent's] motion * * *, and ordering that 'Jackson County shall issue approvals of the applications designated in the first, third, fourth and seventh claims of the writ not later than February 29, 1996.' The court also dismissed those four claims with prejudice. On February 26, 1996, the county issued the four approvals, and on February 28, 1996, the county planning director sent copies of the approvals to the parties with a cover letter stating that '[i]n accordance with the Order of Circuit Court Judge Karaman dated January 16, 1996, Jackson County issues the attached approvals.' This appeal followed."

Although petitioners' appeal to LUBA purported to be from county actions approving the applications, i.e., the hearings officer's "order" and the later county writing signifying that it granted the applications in order to comply with the court's January 16, 1996, order, respondent moved to dismiss the appeal on the ground that those actions were part of and responsive to the circuit court mandamus proceeding. LUBA agreed and granted the motion. Petitioners assign error to LUBA's ruling on the motion.

ORS 197.015(10)(d)(B) excludes from the definition of "land use decision" and, thereby, from LUBA's jurisdiction, a "local land use approval in response to a writ of mandamus." The statute was enacted after the Supreme Court's decision in Murphy Citizens Advisory Com. v. Josephine County, 319 Or. 477, 878 P.2d 414 (1994) (Murphy I). In our subsequent decision in Murphy Citizens Advisory Com. v. Josephine County, 138 Or.App. 334, 909 P.2d 180 (1995), rev. allowed 324 Or. 18, 920 P.2d 550 (1996) (Murphy II), we held that the statute divested LUBA of jurisdiction over local approvals made in response to alternative writs of mandamus, as well as those that are responsive to peremptory writs. We also indicated in Murphy II that the 1995 enactment of ORS 197.015(10)(d) legislatively overruled Murphy I in two respects: first, insofar as it holds that county or city actions that are taken as part of mandamus proceedings under ORS 215.428(7) or ORS 227.178(7)--such as the stipulation settling the mandamus case in Murphy I--can be "land use decisions" subject to LUBA's review; and second, insofar as Murphy I is inconsistent with the Supreme Court's decision in State ex rel. Compass Corp. v. City of Lake Oswego, 319 Or. 537, 878 P.2d 403 (1994), which the court issued on the same day as it did Murphy I. ²

Petitioners argue, inter alia, that Murphy II was wrongly decided. Pending the Supreme Court's decision on review, we adhere to it. However, the main thrust of petitioner's argument, to both LUBA and us, is something as follows: The hearings officer's writing that was tendered to the court in the mandamus proceeding was a "land use decision" approving the applications, and was therefore reviewable by LUBA; and, although the county represented that its ultimate approval was made in accordance with the court's order of January 16, 1996, the court's order was not a peremptory writ and it in fact dismissed the relevant claims. Petitioners reason that, independently of the adjudication of the mandamus action, the county made a land use decision (the hearings officer's approval); and/or the final county approval was not made pursuant to a writ of mandamus because, rather than issuing a peremptory writ, the court merely ordered the county to approve the applications and it simultaneously dismissed the pertinent claims in the mandamus action (apparently as a means of bringing the claims to finality). Petitioners assert that the county actions were akin to the stipulated settlement of a mandamus action that was held to be a "land use decision" in Murphy I.

LUBA rejected petitioners' argument, explaining:

"Although petitioners are correct that the court's January 16, 1996 order is not itself a writ of mandamus, this argument elevates form over substance. The order represents the court's final action on four claims in a mandamus proceeding, directs the county to issue the described approvals, and has the practical effect of reinstating the court's peremptory writ of mandamus that was previously issued on October 18, 1995.

"We are also unpersuaded by petitioners' argument that the county retained jurisdiction to make a land use decision approving the applications after the inception of the mandamus action. In paragraph nine of the alternative writ of mandamus dated January 20, 1995, the court specifically exercised its authority under ORS 34.130(5) to impose a stay upon all further proceedings by the county on the applications at issue. Although the court issued a subsequent order allowing the hearings officer to prepare a draft decision regarding the applications without violating the stay [of] proceedings, that order...