Jones v. Douglas Cnty.

• Decision Date: 14 December 2011
• Docket Number: 2010098; A148618.
• Citation: 270 P.3d 264,247 Or.App. 56
• Parties: Mark JONES; Katharine Jones; Linda Hellenthal; Erik Hellenthal; Ben Dawson, Jr.; Quinton Quisenberry; and Brook K. Quisenberry, Respondents, v. DOUGLAS COUNTY, Respondent,andPhilip Bowes and Cynthia Bowes, Petitioners.
• Court: Oregon Court of Appeals

247 Or.App. 56

270 P.3d 264

Mark JONES; Katharine Jones; Linda Hellenthal; Erik Hellenthal; Ben Dawson, Jr.; Quinton Quisenberry; and Brook K. Quisenberry, Respondents,

v.DOUGLAS COUNTY, Respondent,andPhilip Bowes and Cynthia Bowes, Petitioners.

2010098; A148618.

Court of Appeals of Oregon.

Argued and Submitted Aug. 11, 2011.Decided Dec. 14, 2011.

William K. Kabeiseman argued the cause for petitioners. With him on the brief were Edward J. Sullivan and Garvey Schubert Barer.

Stephen Mountainspring argued the cause for respondents Linda Hellenthal, Erik Hellenthal, Ben Dawson, Jr., Quinton Quisenberry, and Brook K. Quisenberry. With him on the brief was Dole, Coalwell, Clark, Mountainspring & Mornarich, P.C.

Paul E. Meyer waived appearance for respondent Douglas County.No appearance for respondents Mark Jones and Katharine Jones.

Before HASELTON, Presiding Judge, and DUNCAN, Judge, and WALTERS, Judge pro tempore.

HASELTON, P.J.

In 1995, Douglas County approved the establishment of an “owner of record” dwelling on the property of petitioners Philip and Cynthia Bowes (the Boweses). Respondents, several neighboring property owners (the neighbors), appealed the county's 1995 decision to LUBA in 2010. LUBA remanded that decision because the county had not complied with the applicable notice requirements. The Boweses seek judicial review of LUBA's order.¹

However, while the Boweses' review proceeding was pending in this court, the legislature enacted House Bill (HB) 3166 (2011), which retroactively imposed a 10–year statute of repose on the appeal of certain land use decisions. Thereafter, the Boweses moved to dismiss, contending that, because the new repose period bars the neighbors' appeal of the county's 1995 decision to LUBA, neither LUBA nor this court has jurisdiction. For the reasons that follow, we reject the neighbors' state and federal constitutional challenges to the retroactive application of HB 3166 and conclude that LUBA's order remanding the 1995 decision was unlawful in substance, ORS 197.850(9), because LUBA lacked jurisdiction over the neighbors' appeal of that decision. Accordingly, we remand to LUBA with instructions to vacate the portions of its order concerning the 1995 decision—that is, LUBA Case Number 2010–098—and dismiss the appeal of that decision.²

The material facts, which we state consistently with LUBA's findings, are not contested on review. The Boweses own a 78.43–acre parcel in Douglas County that, as LUBA indicated, is “located in a farm-forest zone, an exclusive farm use (EFU) zone in the county.” Private easements run across neighboring properties and provide access to the parcel.

In May 1995, a prior owner of the Boweses' property applied to the county for the approval of a single-family dwelling—commonly referred to as a “lot-of-record” dwelling—under the pertinent provision of the county's code that implemented ORS 215.705(1).³ Ultimately, on June 21, the county planning director, in what he described as a “[m]inisterial [d]ecision,” approved the application subject to various conditions. Further, the decision stated, in pertinent part, that the lot-of record dwelling

“approval will become invalid without special action if the conditions of approval have not been met within two (2) years from the date of the decision. An extension of up to twelve (12) months may be granted by the Director upon request of the applicant.” ⁴

Significantly, no notice of the application for the lot-of-record dwelling or the decision approving that dwelling was ever sent to the neighboring property owners.

On June 22—the day after the county issued the lot-of-record approval—the prior owners deeded the property to the Boweses. During the next two years, the Boweses did not attempt to satisfy the conditions of approval, because Philip Bowes was serving in the military and the Boweses were apparently away from Oregon.

On June 17, 1997—four days before the June 21 expiration of the 1995 approval—the county sent the Boweses a letter indicating that the approval would soon expire and that they could request a 12–month extension on the attached form by June 27. Ultimately, the Boweses submitted a request for an extension, which was dated June 24. The county extended the approval for a year.

Similarly, each year thereafter from 1998 through 2010, the Boweses submitted a request for, and the county approved, a one-year extension. ⁵ In addition to the 1997 request, the 1998, 1999, 2000, and 2002 requests, were submitted after the annual June 21 expiration date. However, the Boweses timely requested an extension in 2010, which the county approved.

Also, by 2010, the Boweses had moved to Oregon and, at some point, began to make improvements within the access easements on some of the neighbors' properties. As LUBA explained,

“[t]he parties dispute the content and timing of conversations between [the Boweses] and some of the [neighbors] regarding the purpose of the road improvements and whether [the Boweses] already possessed county approval for a lot-of-record dwelling. According to the affidavit of [neighbor] Katharine Jones (Jones), by September 2010 she had heard enough to inquire with the county planning department regarding existing approvals. According to her affidavit, a planning official spoke with Jones on September 28, 2010, and informed her that she could get copies of the documents in the file on [the Boweses'] lot-of-record dwelling approval. Jones states that on October 6, 2010, she went to the planning department and received a copy of the county's 1995 lot-of-record approval and of the subsequent annual decisions approving extensions of that approval.”

Ultimately, on October 25, 2010—19 days after Jones obtained a copy of the 1995 approval and the corresponding annual extensions—the neighbors filed six separate appeals with LUBA, which LUBA consolidated by order. The first concerned the 1995 lot-of-record approval. Each of the remaining five appeals concerned a particular extension that was requested after the approval's annual June 21 expiration date— viz., the 1997, 1998, 1999, 2000, and 2002 extensions. ⁶

Before LUBA, the neighbors raised myriad assignments of error. As pertinent to the issues in this review proceeding, the neighbors' primary contention was that the county erred in processing the 1995 application for a lot-of-record dwelling because the county failed to provide them with statutorily required notice.

In response, the Boweses raised several nuanced and intricate procedural and merits-based challenges—many of which were interrelated. For our purposes, a detailed recitation of the Boweses' challenges is unnecessary. However, in general terms and as pertinent to the issues raised in this review proceeding, the Boweses contended that LUBA lacked jurisdiction because (1) the 1995 approval is not a “land use decision”; (2) the neighbors failed to timely appeal under ORS 197.830; and (3) the appeal was moot.⁷ Further, the Boweses contended that, because the appeal concerned a county decision that was more than 15 years old, LUBA was required to dismiss the appeal either under the equitable doctrine of laches or under ORS 12.140, a catch-all provision which provides that “[a]n action for any cause not otherwise provided for shall be commenced within 10 years.”

LUBA rejected the Boweses' contentions concerning mootness, the doctrine of laches, and ORS 12.140. LUBA also rejected the Boweses' remaining interrelated contentions that the approval was not a land use decision and that the neighbors' appeal was untimely.

In so holding, LUBA addressed whether the 1995 lot-of-record approval was a land use decision subject to its jurisdiction. LUBA concluded that a lot-of-record approval requires a county to make discretionary determinations. ⁸ Because of its discretionary nature, the 1995 approval at issue here was not only a land use decision but was also a permit decision. For that reason, LUBA determined that the county had been statutorily required to provide notice to those persons entitled to notice-something the county had not done.⁹

That determination— viz., that notice had been required but had not been given—necessarily framed LUBA's analysis concerning whether the appeal had been timely filed pursuant to ORS 197.830.¹⁰ In analyzing that issue, LUBA noted that one of the neighbors, Dawson, owned adjoining property in 1995 and was entitled to notice, thus, “as to him[,] the appeal deadline [was] set by ORS 197.830(3)(a).” In other words, according to LUBA, because notice concerning the lot-of-record approval had been required but had not been given, Dawson could appeal the approval to LUBA within 21 days of obtaining “actual notice,” see ORS 197.830(3)(a) (2009), even though the approval itself was approximately 15 years old, see ORS 197.830(6)(b) (2009).

For its part, LUBA had previously defined “actual notice” in Frymark v. Tillamook County, 45 Or LUBA 685 (2003). Adhering to its holding in Frymark, LUBA explained that

“ ‘actual notice’ of the decision where notice is required for purposes of ORS 197.830(3)(a) refers to (1) the legally required written notice of the decision, or (2) a copy of the decision itself, and that the ‘actual notice’ standard of ORS 197.830[3](a) is not satisfied by a petitioner's receipt of information from other sources, such as casual conversations with a neighbor.”

(Internal quotation marks omitted.) Accordingly, LUBA concluded that the appeal of the 1995 lot-of-record approval had been timely filed because “Dawson did not receive written notice of the 1995 decision or a copy of the decision or equivalent information more than 21 days prior to the date the appeal was filed.” ¹¹

Having rejected the Boweses' jurisdictional challenges, LUBA turned to the neighbors' contention that “the county erred in processing the 1995 application by failing to provide the notice and hearing required by ORS 215.416 * * *.” As LUBA explained, its ...