State ex rel Stewart v. City of Salem, 09C13661

• Decision Date: 22 January 2015
• Docket Number: 09C13661,A151153.
• Citation: 343 P.3d 264,268 Or.App. 491
• Parties: STATE ex rel Mel STEWART, Relator–Appellant, v. CITY OF SALEM, an Oregon municipal corporation, Defendant–Respondent.
• Court: Oregon Court of Appeals

268 Or.App. 491

343 P.3d 264

STATE ex rel Mel STEWART, Relator–Appellant

v.CITY OF SALEM, an Oregon municipal corporation, Defendant–Respondent.

09C13661

A151153.

Court of Appeals of Oregon.

Argued and Submitted March 6, 2014.

Decided Jan. 22, 2015.

John W. Shonkwiler, Tigard, argued the cause for appellant. On the briefs was William F. Hoelscher.

Kenneth S. Montoya argued the cause for respondent. On the brief was Daniel B. Atchison, Assistant City Attorney.

Before DUNCAN, Presiding Judge, and HASELTON, Chief Judge, and LAGESEN, Judge.^*

Opinion

HASELTON, C.J.

This matter is before us for a second time. See State ex rel Stewart v. City of Salem, 241 Or.App. 528, 251 P.3d 783 (2011) (Stewart I ). Relator, in a mandamus proceeding, appeals from a judgment that, in pertinent part, denied his request for attorney fees incurred in ultimately, successfully obtaining a peremptory writ. ORS 34.210(2). We affirm.¹

As recounted in Stewart I, 241 Or.App. at 531–32, 251 P.3d 783, this litigation arose from defendant City of Salem's (the city) failure to take “final action” on relator's partition application “within 120 days after the application is deemed complete.” ORS 227.178(1).

Relator filed his partition application in October 2008. In response, the city sent relator a letter asking him to provide certain missing information. Relator replied by providing some of the requested information, stating that no other information would be forthcoming and declaring that the city should consider his application “complete.” The city received that letter on December 2, 2008. On December 4, 2008, relator sent the city a second, alternative partition plan. The city responded by telling relator that it could not process both plans at the same time and asking which of the two plans relator would like the city to consider; the city also informed relator that it would proceed to consider the original proposal if he did not respond in writing by December 11. In a December 8 voicemail, relator told the city to proceed on the original proposal. The city's planning division subsequently approved the proposal, but that decision was overturned by a March 30, 2009, city council vote.

Despite the vote denying the application, the city had not issued a final written decision memorializing that decision as of April 1. On April 2, relator petitioned the trial court for an alternative writ of mandamus that would direct the city to approve his application pursuant to ORS 227.179, which provides, in part:

“Except when an applicant requests an extension * * *, if the governing body of a city or its designee 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 file a petition for a writ of mandamus under ORS 34.130 in the circuit court of the county where the application was submitted to compel the governing body or its designee to issue the approval.”

Relator asserted that the 120–day deadline for the city to take a “final action” had passed because, under ORS 227.178(2),² his application was “deemed complete” for purposes of ORS 227.178(1) and ORS 227.179 when the city received his December 2, 2008, response to its request for more information and that his subsequent submission and retraction of an alternative proposal had no effect on the 120–day clock. On April 2, 2009, the trial court ordered the court clerk to issue the alternative writ, which directed the city to either grant relator's application or to show cause to the court for not doing so. On April 6, 2009—125 days from December 2, 2008—the city issued a final written order denying the application. Stewart I, 241 Or.App. at 532, 251 P.3d 783.

In May 2009, the city responded to the writ by filing a “Motion to Dismiss Order for Writ of Mandamus and Motion to Dismiss Petition for Writ of Mandamus.” That motion was predicated on the city's contention that “[t]he 120 day state mandated deadline for the challenged decision had not expired when the order was issued.” In the city's view, the 120–day time limit had not expired at the time that relator petitioned for the writ—and would not do so until at least April 7, 2009 (i.e., 120 days from the date that relator had told the city to proceed with his original proposal and to disregard the second one). Thus, the city asserted, relator's petition had been filed prematurely and should be dismissed. The trial court agreed with the city and dismissed both the mandamus petition and the writ for the reason urged by the city. Id. at 532–33, 251 P.3d 783.

Relator appealed that dismissal and, in Stewart I, we reversed and remanded. Our disposition turned on when relator's application was deemed complete within the meaning of ORS 227.182(2). After analyzing the relevant statutes, we concluded that relator was correct:

“[R]elator submitted an application for a partition in October 2008, after which the city, pursuant to ORS 227.178(2), informed him that additional information was needed. On December 2, 2008, the city received a letter from relator that included the information required to deem his application complete under ORS 227.178(2)(b), including a written request by relator that the city ‘consider my application complete by operation of law.’ Relator did not, at any time, request an extension of the 120–day deadline pursuant to ORS 227.178(5). Relator's voicemail response to the city's December 4 letter clarified that he wished to proceed with his first proposed plan, which already had a ‘deemed complete’ date of December 2. Relator's application was thus complete on December 2, setting the 120–day deadline for April 1, 2009. Because the city had not yet taken final action on relator's application by April 1, relator's mandamus petition was properly filed pursuant to ORS 227.179(1). The trial court erred in dismissing relator's petition for writ of mandamus.”

Stewart I, 241 Or.App. at 535–36, 251 P.3d 783.

Accordingly, we reversed the judgment dismissing the petition and remanded the case for the trial court to issue the writ. After our opinion in Stewart I issued, relator petitioned for an award of his appellate attorney fees, which we granted without amplification.

Following our remand, the city asserted, as an affirmative defense, that approval of relator's application would result in a substantive violation of the Salem City Code and that the writ should not issue for that reason. The parties also sparred over which conditions of approval should be specified in the peremptory writ. See ORS 227.179(5) (“The court shall issue a peremptory writ unless the governing body * * * shows that the approval would violate a substantive provision of the local comprehensive plan or land use regulations * * *. The writ may specify conditions of approval that would otherwise be allowed by the local comprehensive plan or land use regulations.”). The trial court ultimately issued a peremptory writ directing the city to approve relator's partition plan, subject to certain conditions.

In that context, relator moved in the trial court for an award of attorney fees incurred in litigating the issuance of the peremptory writ and the conditions that would attach thereto. Relator invoked ORS 34.210(2), which authorizes a prevailing party in a mandamus proceeding to recover attorney fees under certain conditions.

The trial court, without expressly designating a prevailing party, awarded relator all of his requested costs, with the exception of expert witness fees, but denied relator's request for attorney fees. In so ruling, the trial court explained that both parties “had legitimate issues to present and professionally presented them” and that there was an absence of “groundless * * * inappropriate or invalid arguments” during the litigation—and, indeed, found that “all the lawyers involved in this case in front of me [were] responsive, professional, and did an excellent job,” “did try to resolve this, * * * were diligent and reasonable in their activities in this courtroom,” and “were helpful in reducing some of the issues for hearing.” The trial court further observed that, although the city ultimately lost on appeal, it had prevailed before the circuit court, and the dispute involved a good faith disagreement over an issue that had not been litigated previously and was not directly addressed in the statutory scheme. Thus, the court “certainly didn't see any basis * * * [to find that the city] was reckless or willful,” nor was there any evidence of a pattern of inappropriate, reckless, or illegal conduct.

The trial court subsequently entered an order that expressly adopted the city's arguments in its opposition to the fee petition and determined that (1) “the conduct of [the city] that gave rise to the litigation was not reckless, willful, illegal or in bad faith,” (2) the city's conduct during the litigation was “objectively reasonable and diligent,” and (3) the city's claims and defenses were “objectively reasonable, valid and appropriate.”

On appeal, relator contends that the trial court erred in denying his request for attorney fees pursuant to ORS 34.210(2). That statute provides, in part:

“The court in its discretion may designate a prevailing party and award attorney fees, costs and disbursements to the prevailing party * * *. Attorney fees, costs and disbursements may only be awarded against adverse parties who have been served with the petition and writ.”³

(Emphasis added.)

As we understand it, relator advances three overarching challenges to the denial of fees:⁴ (1) The trial court was obligated to designate relator as the “prevailing party” and its failure to do so impermissibly skewed its determination not to award attorney fees; (2) our disposition of the petition for appellate attorney fees in Stewart I precluded the trial court from denying entitlement to fees incurred in the proceedings before that court; and (3) the trial court erroneously construed and...