State ex rel. Currier v. Clatsop County

• Decision Date: 23 July 1997
• Citation: 149 Or.App. 285,942 P.2d 847
• Parties: STATE ex rel. Allen CURRIER, Appellant--Cross-Respondent, v. CLATSOP COUNTY, a political subdivision of the State of Oregon, Respondent--Cross-Appellant, and Robert Foster, Respondent--Cross-Respondent. 95-2024; CA A92017.
• Court: Oregon Court of Appeals

Page 847

942 P.2d 847

149 Or.App. 285

STATE ex rel. Allen CURRIER, Appellant--Cross-Respondent, v. CLATSOP COUNTY, a political subdivision of the State of Oregon, Respondent--Cross-Appellant and Robert Foster, Respondent--Cross-Respondent.

95-2024; CA A92017.

Court of Appeals of Oregon.

Argued and Submitted March 7, 1997.

Decided July 23, 1997.

Michael C. Robinson, Portland, argued the cause and filed the briefs for appellant--cross-respondent.

Kenneth S. Eiler, Seaside, argued the cause and filed the briefs for respondent--cross-appellant.

No appearance by respondent-cross-respondent.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Relator brought this action under ORS 215.428(7), seeking a writ of mandamus to require defendant Clatsop County to approve relator's application for a proposed bed and breakfast on land overlooking Cannon Beach. The trial court granted summary judgment to the county on the grounds that relator was barred by laches because of delays in bringing the petition for the writ and that the proposed use violated the applicable county ordinance in one respect. It thereafter denied the county's request for attorney fees. Relator appeals and the county cross-appeals; we affirm.

On July 22, 1994, relator filed his application for a conditional use permit for a three-unit bed and breakfast on land that is zoned rural residential; on August 16 he modified the proposal to provide for a five-unit establishment. After hearings, the county planning commission denied the application by an order that became final on December 15. Relator appealed to the Board of County Commissioners, which scheduled a hearing for March 8, 1995. On March 6, relator filed this case, asking the court to compel the Board to approve the application on the ground that it had not issued a final decision within the 120 days that ORS 215:428 requires. The county defended on a number of grounds. The trial court found that there were issues of fact on some of the grounds that the county raised but that it was entitled to summary judgment on two of them, relator's alleged laches and the failure of the application to comply with a county requirement that access to the establishment be by a public rather than private road.

At the relevant times, ¹ ORS 215.428(7) provided:

"If the governing body of the county or its designate does not take final action on an application for a permit, limited land use decision or zone change within 120 days after the application is deemed complete, 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 designate to issue the approval. The writ shall be issued unless the governing body shows that the approval would violate a substantive provision of the county comprehensive plan or land use regulations as defined in ORS 197.015."

In their briefs, the parties assume that the procedures and general criteria for obtaining the writ of mandamus described in this statute are the same as those that apply to the writ of mandamus described in ORS chapter 34. ² That assumption was not unreasonable based on the case law as it then existed. However, in Murphy Citizens Advisory Com. v. Josephine County, 325 Or. 101, 934 P.2d 415 (1997), the Supreme Court recently reexamined the relationship between the writ of mandamus in chapter 34 and the writ provided in ORS 215.428(7). After discussing some variations between the ORS 215.428(7) writ and traditional mandamus practice, the court concluded that 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 a unique nomenclature." 325 Or. at 110, 934 P.2d 415.

As relator points out in a memorandum of additional authorities, Murphy Citizens may affect two of the three issues on this appeal: the applicability of laches and the county's right to attorney fees. When the Supreme Court held that laches applied to an application for a writ of mandamus, it did so in the context of a writ issued under chapter 34. See State ex rel. Fidanque v. Paulus, 297 Or. 711, 688 P.2d 1303 (1984). Although that court has since applied similar reasoning to require that other kinds of proceedings against governmental bodies be filed within a reasonable time, see, e.g., Ellis v. Roberts, 302 Or. 6, 725 P.2d 886 (1986), it has never held that those principles lead to a similar requirement for a chapter 215 mandamus. We also relied on ORS 34.210 in holding that a trial court has discretion to award attorney fees to a prevailing party in a mandamus action under ORS 227.178(7), which is analogous to ORS 215.428(7). State ex rel. Compass Corp. v. City of Lake Oswego, 135 Or.App. 148, 898 [149 Or.App. 289] P.2d 198 (1995). After Murphy Citizens it may be questionable whether that reliance remains correct.

Because of our view of the merits of this case, we do not need to resolve the effect of Murphy Citizens on these issues. Rather, we hold that the trial court properly granted summary judgment to the county on the ground that the county's land use ordinances required that access to the proposed bed and breakfast be by a public rather than private road and that the trial court acted within its discretion in denying the county's request for attorney fees.

Under the county's zoning ordinances, the proposed bed and breakfast is a commercial use that would be located in a rural residential zone. Relator's application provided that he would serve the bed and breakfast by a private road. The relevant ordinance provides:

"Private roads shall not be approved if the road is presently needed, or is likely to be needed, for development of adjacent property, or to be utilized for public road purposes in the normal development of the area, or if the private road is intended to serve commercial or industrial district ³ uses. Private roads shall not be approved for commercial or industrial land divisions." (Emphasis supplied.)

The parties argue primarily about the emphasized portion of the ordinance. Relator asserts that the ordinance prohibits private roads only if the use is in a commercial or industrial district. The county asserts that the ordinance applies to any commercial or industrial use, wherever the use may be located.

Although these are the parties' positions, their actual arguments only incidentally deal with issues of substance. Rather than discussing the meaning of the ordinance, they spend almost all of the limited attention that they give this issue disputing whether the trial court did or should have deferred to the varying interpretations that the county Planning Commission and Board of County Commissioners gave to the ordinance. See Gage v. City of Portland, 319 Or. 308, 877 P.2d 1187 (1994); Clark v. Jackson County, 313 Or. 508, 836 P.2d 710 (1992). Because we review the trial court's decision as a matter of law, the weight that the trial court gave to the local interpretations has no effect on the weight that we give those decisions. As we explain below, we do not give any deference to the local interpretations.

The deference requirements of Clark and Gage are limited to LUBA's review of land use decisions and our judicial review of LUBA's actions. As the Supreme Court has noted, "different standards control the determination, by LUBA and the circuit court, of whether an approval of a land use application complies with the comprehensive plan and land use regulations." State ex rel. Compass Corp. v. City of Lake Oswego, 319 Or. 537, 544, 878 P.2d 403 (1994). The...