State ex rel Coastal Management v. Washington County

• Decision Date: 05 December 2001
• Citation: 36 P.3d 993,178 Or. App. 280
• Parties: STATE ex rel COASTAL MANAGEMENT, INC.; Peter Bartell; and Linda Bartell, Respondents, v. WASHINGTON COUNTY, a municipal corporation of the State of Oregon, Appellant.
• Court: Oregon Court of Appeals

36 P.3d 993

178 Or. App. 280

STATE ex rel COASTAL MANAGEMENT, INC.; Peter Bartell; and Linda Bartell, Respondents, v. WASHINGTON COUNTY, a municipal corporation of the State of Oregon, Appellant.

C990108CV; A111565

Court of Appeals of Oregon.

Argued and Submitted August 2, 2001.

Decided December 5, 2001.

Alan A. Rappleyea, Sr., Assistant County Counsel, argued the cause for appellant. With him on the briefs was Washington County Counsel.

Duane A. Bosworth argued the cause for respondents. With him on the brief was Davis Wright Tremaine LLP.

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

BREWER, J.

Washington County (the county) appeals from a trial court judgment issuing a peremptory writ of mandamus. The writ required the county to extend the duration of relators'¹ preliminary subdivision plat approval beyond the two-year limit specified in the county's development ordinance.² The county asserts that the trial court erred in denying its motion to dismiss relators' petition for a writ of mandamus on the ground that the county's rejection of relators' request for an extension of the preliminary approval was a land use decision subject to review exclusively by the Land Use Board of Appeals (LUBA). The issue on appeal, then, is whether the trial court or LUBA had jurisdiction to review the county's rejection of relators' request for an extension of time. We review that issue for errors of law. Kirschbaum v. Abraham, 267 Or. 353, 355, 517 P.2d 272 (1973); Haas v. Hathaway, 144 Or.App. 478, 480, 928 P.2d 331 (1996). We reverse and remand.

In 1996, relators brought a mandamus action against the county pursuant to ORS 215.428(7)(b) (1995).³ Under that statute, an applicant whose completed application for a development permit or other approval was not acted on by the county government within 120 days could apply to the circuit court in that judicial district for a writ of mandamus to compel the county to issue the requested permit. The statute required the issuance of a writ of mandamus unless the local government could show that approval of the permit would result in violation of a substantive provision of the county's comprehensive plan or land use regulations. Relators alleged that the county had exceeded the 120 day time limit allowed under ORS 215.428(1) (1995) to approve or deny the permit request.⁴ The trial court agreed and, in December 1996, entered a judgment, including a peremptory writ of mandamus, commanding the county to issue the approval permit. On January 28, 1997, the county issued the preliminary plat approval permit in compliance with the court's mandate but appealed the judgment to this court. In State ex rel Coastal Management v. Washington Cty., 159 Or.App. 533, 979 P.2d 300 (1999), we affirmed.

Relators did not pursue final plat approval or commence development after initially receiving the preliminary plat approval but, instead, relied on what they understood to be the county's undocumented practice of automatically tolling the time to accomplish those steps until the conclusion of all appeals. They did so notwithstanding the county's CDC section 201-3.3, which provides that, if an approval is appealed, the development permit shall issue and it is the responsibility of the person appealing to "seek appropriate judicial remedies [to halt] action on the permit." That provision also states that the permit holder "shall proceed at the Permit holder's own risk and shall be deemed to have expressly assumed all risk of proceeding and shall save and hold harmless [the county] from any responsibility or liability for proceeding with development."

In December 1998, almost two years after the preliminary plat approval in this case was issued, the county's Board of Commissioners issued a "non-binding" interpretation of CDC section 201-3.3, determining that, under that provision, the two-year time limit for preliminary plat approvals continues to run during the pendency of an appeal. Although an assistant county counsel orally advised relators' attorney that the approval permit would soon expire, relators testified that they were not informed of the county's new interpretation until more than three weeks after the board adopted it. On January 7, 1999, relators' counsel requested that the county either confirm that the two-year period was tolled during the course of the county's appeal or extend the duration of the preliminary plat approval until the conclusion of the appeal.

In a January 11, 1999, letter to relators' attorney, the county counsel's office confirmed its earlier oral notice that the preliminary plat approval permit would expire on January 28, 1999, citing CDC section 201-4. The letter also mentioned the possibility of an extension under CDC section 201-5 (allowing an extension of the duration of a permit for a maximum of two years).⁵ In a letter dated January 20, the assistant county counsel again advised relators' attorney that the permit would expire on January 28, 1999. The letter acknowledged that relators could request an extension of time but referred again to CDC section 201-5, a process with which relators believed it was impossible to comply. The parties do not refer us to any further correspondence or document identified as a decision or order on the extension request.

Relators did not appeal the county's failure to grant their extension request to LUBA pursuant to ORS 197.825 through ORS 197.835. Instead, relators filed the present action for a peremptory writ of mandamus to compel the county to treat their preliminary plat approval as extending for two years following the conclusion of the county's appeal of the prior mandamus judgment. The trial court granted the requested relief, rejecting the county's assertion that its failure to grant the extension was a land use decision subject to LUBA's exclusive review jurisdiction under ORS 197.015(10) and ORS 197.825. This appeal followed.

ORS 197.825(1) provides that "the Land Use Board of Appeals shall have exclusive jurisdiction to review any land use decision or limited land use decision of a local government, special district or a state agency in the manner provided in ORS 197.830 to 197.845." ORS 197.015(10) defines "land use decision" to include final decisions or determinations of a local government that concern the adoption, amendment or application of a local government land use regulation. A "land use regulation," in turn, "means any local government zoning ordinance, land division ordinance adopted under ORS 92.044 or ORS 92.046 or similar general ordinance establishing standards for implementing a comprehensive plan." ORS 197.015(11). It is undisputed that the CDC is a land use regulation within the meaning of ORS 197.015(11). The CDC not only governs the approval of preliminary and final subdivision plat requests, it also sets out procedures for approvals, including time limits on the duration of approvals, extensions of time limits, and other related matters. Accordingly, a decision under the CDC concerning the expiration of a permit approval, such as a preliminary plat approval, is a "land use decision" under ORS 197.015(10).

The scope of LUBA's review also extends to matters involving compliance with state and local land use standards, procedure and evidentiary support for a decision, and to other legal issues such as jurisdiction, construction of law, and the constitutionality of a decision. ORS 197.835(5); ORS 197.835(9)(a)(B). Therefore, procedural issues, such as whether a local government effectively made a reviewable decision on a land use matter, also are within the scope of LUBA's review. See Weeks v. City of Tillamook, 113 Or.App. 285, 289, 832 P.2d 1246 (1992) (holding that any procedural defects in a land use decision are reviewable exclusively through the land use appeal process).

LUBA's jurisdiction is subject to certain limitations. Under ORS 197.825(3)(a), for example, a circuit court retains jurisdiction to "grant declaratory, injunctive or mandatory relief in proceedings arising from decisions described in ORS 197.015(10)(b) or proceedings brought to enforce the provisions of an adopted comprehensive plan or land use regulations." However, in State ex rel J.C. Reeves Corp. v. City of Portland, 131 Or.App. 578, 580, 886 P.2d 1095 (1994), rev. den. 320 Or. 569, 889 P.2d 1300 (1995), we reiterated that

"[w]e have repeatedly held that circuit court jurisdiction under ORS 197.825(3)(a) is very limited in nature, and the clearest of the situations in which it does not arise is where the essence of the claim is that there was an error in a land use decision that was or could have been reviewed through the LUBA process." (Emphasis in original.)

Relators do not contend that the trial court had jurisdiction to review the county's decision under ORS 197.825(3)(a). Instead, relators argue that the county's failure to grant the requested extension amounted to a procedurally flawed attempt to subvert the prior mandamus judgment requiring the county to issue the preliminary plat approval. According to relators, the county's decision was not a land use decision subject to LUBA's review but, rather, was an act in defiance of that judgment and therefore was subject to judicial review pursuant to the court's inherent authority to uphold its judgments and its statutory authority to enforce its judgments pending an appeal. ORS 19.270(1)(b).

Relators initially observe that, if the county's decision had been made a few months later, it would have been governed by the versions of ORS 197.015(10)(e)(B) and ORS 215.429(2) that were enacted in 1999. ORS 197.015(10)(e)(B) excludes from the definition of a "land use decision" subject to LUBA's review, "[a]ny local decision or action taken on an application subject to ORS 215.427 or 227.178 after a petition for a writ of mandamus has been filed under ORS 215.429 or 227.179."⁶ ORS 215.429(2) provides that the local governing body retains...