Seida v. City of Lincoln City

• Decision Date: 19 May 1999
• Citation: Seida v. City of Lincoln City, 982 P.2d 31, 160 Or.App. 499 (Or. App. 1999)
• Court: Oregon Court of Appeals
• Parties: Kent SEIDA and Coast Drafting & Design, Appellants, v. CITY OF LINCOLN CITY, Respondent, and Nelscott Neighborhood Association and Eagles Auxiliary, Intervenors—Respondents.

982 P.2d 31

160 Or. App. 499

Kent SEIDA and Coast Drafting & Design, Appellants, v. CITY OF LINCOLN CITY, Respondent, and Nelscott Neighborhood Association and Eagles Auxiliary, Intervenors—Respondents.

(974508; CA A102681)

Court of Appeals of Oregon.

Argued and Submitted February 1, 1999.

Decided May 19, 1999.

Joan M. Chambers, Lincoln, argued the cause for appellants. With her on the briefs was Kulla, Ronnau, Schaub & Chambers, P.C.

Christopher P. Thomas, Portland, argued the cause and filed the brief for respondent City of Lincoln City.

No appearance for intervenors—respondents Nelscott Neighborhood Association and Eagles Auxiliary.

Before LANDAU, Presiding Judge, and WOLLHEIM and BREWER, Judges.

LANDAU, P. J.

Plaintiffs-Relators (relators) appeal the trial court's judgment in favor of defendant City of Lincoln City (the city) in this mandamus action under ORS 227.178(7)(b). We reverse and remand.

The relevant facts are undisputed. Relators applied to the city for site review approval in connection with a planned commercial building. After an initial decision by the city planning staff, relators and others sought review by the city planning commission. More than 120 days after the completed application had been filed, the matter still was pending before the planning commission. On August 29, 1997, relators filed a petition for a writ of mandamus, pursuant to ORS 227.178(7)(b), which provides that—subject to exceptions not pertinent to this case—if the governing body of a city or its designee fails to take final action on an application for a permit, limited land use decision, or zone change within 120 days, as required by ORS 227.178(1):

"The applicant may apply in the circuit court of the county where the application was filed for a writ of mandamus to compel the governing body or its designee to issue the approval. The writ shall be issued unless the governing body shows that the approval would violate a substantive provision of the city comprehensive plan or land use regulations as defined in ORS 197.015. The writ may specify conditions of approval that would otherwise be allowed by the city comprehensive plan or land use regulations."

ORS 227.178(7)(b).

On September 2, the planning commission approved relators' application subject to conditions. On September 4, the circuit court ordered the issuance of an alternative writ of mandamus, and the clerk issued the writ on September 8. On September 11, relators appealed the planning commission's imposition of the conditions to the city council, as the review provisions of the city's zoning ordinance allow. Insofar as we are advised, the city council has never acted on that appeal. On September 18, the petition, order, and alternative writ in the mandamus proceeding were served on the city.

The city moved to dismiss the mandamus action, arguing that the planning commission's decision constituted final city action for purposes of ORS 227.178, notwithstanding the pending appeal to the city council. The city acknowledged that relators filed their mandamus petition before the planning commission made its decision, but it argued that the commission's decision nevertheless preceded the institution of the action because the alternative writ was neither issued nor served until after the commission acted. The trial court agreed in essence with the city's argument and dismissed the mandamus petition. On appeal, relators contend, among other things, that the trial court erred in concluding it was foreclosed from granting relief under ORS 227.178(7)(b) because the planning commission rendered its decision before relators had served the mandamus papers. Arguing in support of the trial court's ruling, the city relies on State ex rel. Fraley v. Deschutes Cty. Bd. of Comm., 151 Or.App. 201, 208, 948 P.2d 1249 (1997), rev. den. 327 Or. 305, 966 P.2d 219 (1998), where we held that, even when a local government's final action is taken after the 120-day period has run, "a mandamus action under [ORS 227.178(7)(b) or its county analog, ORS 215.428(7)(b)] must have been brought before the belated local decision was made in order for the mandamus remedy to be available." The city reasons that, "[u]nder the logic of Fraley, a petitioner must obtain service of process on the city or county, before the city or county takes final action, in order to have the right to a mandamus remedy."

We find the city's reasoning unpersuasive. Assuming without deciding that the city is correct in its assertion that the planning commission's decision was "final action," we nevertheless conclude that the action was "brought," within the meaning of Fraley, at the time that the mandamus petition was filed four days before the commission made its decision.

The city offers little explanation for its thesis that service rather than filing is the relevant event. As a general proposition about the time actions are deemed to have been brought, the city's thesis is contrary to ORCP 3 (action "commenced" by filing a complaint). Insofar as service is relevant to the question, if service is accomplished within 60 days thereafter, the action is "deemed to have been commenced upon the date on which the complaint * * * was filed." ORS 12.020(2). Service of the papers was effected here well within that time frame.

The city suggests, however, that the court does not obtain subject matter jurisdiction in a mandamus action until the alternative writ is issued and served. There might be some merit to that suggestion if this were a "traditional" mandamus proceeding under ORS chapter 34. In such cases, the alternative writ serves as the "foundation for all subsequent proceedings," Johnson v. Craddock et al, 228 Or. 308, 322, 365 P.2d 89 (1961), and "a petition for mandamus is no part of the pleadings." State ex rel Venn v. Reid, 207 Or. 617, 622, 298 P.2d 990 (1956).

That "traditional" role of the alternative writ, however, does not obtain in actions under ORS 227.178(7)(b) and ORS 215.428(7). In Murphy Citizens Advisory Com. v. Josephine County, 325 Or. 101, 934 P.2d 415 (1997), the Supreme Court addressed the differences between those statutes and the general ORS chapter 34 provisions:

"The * * * traditional distinction between [alternative and peremptory] writs of mandamus is not echoed in the statutes at issue here. As noted, the reference to `[t]he writ' in ORS 215.428(7)(b) describes `a' writ that `compel[s] the governing body' and that `shall be issued unless the governing body shows that the approval would violate [particular specified land use laws or regulations].' (Emphasis added.) That is, there is only one `writ' contemplated by that statute, and it is one that issues only after there has been an opportunity for the governing body to remonstrate. Under traditional Oregon mandamus procedure, a writ to that effect that issues after such an opportunity to remonstrate is a peremptory writ. ORS 34.150.

"The foregoing brings us to the second striking thing about ORS 215.428(7): The statute does not appear in other respects to contemplate that traditional mandamus procedures will be followed; it instead contains its own truncated procedure that is described in unique nomenclature. For example, there is no provision for a `petition' to be filed by a `relator,' as is the practice under ORS 34.130(1). By contrast, the process at issue under ORS 215.428(7)(b) begins when the `applicant' (for the local land use action) chooses to `apply' for the writ. No particular form of document is prescribed. All that is necessary under the special procedure in ORS 215.428(7) is that the governing body be given an opportunity to respond, if it wishes to do so. That procedure is a `show cause' approach. It thus appears that, both by virtue of the specific description of the writ in the statute and the special procedure contemplated by the statute, the legislature did not contemplate that an `alternative' writ would be used in proceedings under ORS 215.428(7).8

"8. In fact, the present proceeding did begin with the issuance of what was labeled an `Alternative Writ of Mandamus' to the County. But the labeling of that procedural device says nothing about whether the label was correct. As we explain in text, any form of proceeding that would have given the governing body notice and an opportunity to make the showing contemplated by the statute would have sufficed."

325 Or. at 110-11, 934 P.2d 415 (emphasis in original).

Given the court's dichotomy in Murphy Citizens, any reliance that the city places on the "traditional" role of the alternative writ is misplaced. We conclude that actions under ORS 227.178(7)(b), like actions of other kinds for which no different specific time or triggering event is provided, are "deemed commenced" when they are filed. Consequently, the remedy under ORS 227.178(7)(b) that relators seek is not precluded under the Fraley rationale.

The city argues alternatively that the circuit court lacked jurisdiction, because ORS 227.178(7)(b) violates Article III, section 1, the separation of powers provision of the Oregon Constitution. That section states:

"The powers of the Government shall be divided into three seperate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."

The city asserts that, by authorizing the courts to compel the approval of discretionary city permits and to determine whether applications for permits comply with city land use legislation, the statute gives the judiciary authority to perform an executive function.¹ The city reasons that Article III, section 1, includes the administrative department in the executive; that Article VI of the constitution pertains to the administrative department, and sections 6 through 9 of that article deal with some matters...