W. Hills Dev. Co. v. Doughman
| Decision Date | 03 October 2018 |
| Docket Number | A163391 |
| Citation | 294 Or.App. 274,432 P.3d 292 |
| Parties | WEST HILLS DEVELOPMENT CO., an Oregon corporation, Plaintiff-Appellant, v. David F. DOUGHMAN, Washington County Land Use Hearings Officer, in his official capacity, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Edward Choi, Portland, argued the cause for appellant. Also on the briefs were Michael C. Robinson, Cody M. Weston, and Perkins Coie LLP.
Courtney D. Duke-Driessen argued the cause and filed the brief for respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
Plaintiff West Hills Development Co. (West Hills) completed certain road improvements in the North Bethany area of Washington County in connection with a residential development. West Hills thereafter applied to Washington County for Washington County Transportation Development Tax (TDT) credits and North Bethany Transportation System Development Charge (NBTSDC) credits. The county awarded some, but not all, of the requested credits. West Hills appealed the decision, and defendant, a county hearings officer, upheld it. West Hills then petitioned for a writ of review in the trial court, but the trial court rejected West Hills' claims of error. West Hills appeals the trial court's decision. For the reasons that follow, we affirm.
As preliminary context for our discussion, the TDT is charged against new development in Washington County based on the development's projected impact on the transportation system. See Washington County Code (WCC) 3.17.010–3.17.190. The NBTSDC is an additional charge that applies solely to projects in North Bethany and is used to fund local transportation infrastructure in North Bethany. See Washington County Resolution and Order 2010-098 (WCRO 2010-098). When a developer constructs "qualified public improvements" as part of a development project in North Bethany, the county awards TDT and NBTSDC credits to offset the amounts due as provided in the county code and WCRO 2010-098. See WCC 3.17.070 (); WCRO 2010-098, Attachment A, § 070 (); see also ORS 223.304(4) (defining "qualified public improvement").
The facts relevant to this appeal are undisputed. As conditions of approval for an 85-lot residential subdivision in North Bethany, Washington County required West Hills to make certain improvements to NW Springville Road and NW Brugger Road. Both streets run adjacent to, but not through, the subdivision. After completing the improvements, West Hills applied to the county for TDT and NBTSDC credits based on the cost of the improvements. West Hills originally requested total credits of $580,645 for the improvements to NW Springville Road and NW Brugger Road. It later reduced its request to $388,104. The county ultimately awarded total credits of $238,215. West Hills appealed the credit determination, contesting the county's methodology for calculating the credits. The county maintained that its calculations were correct.
The matter was referred to defendant, a county hearings officer. In addition to challenging the county's methodology for calculating the credits, West Hills argued to the hearings officer that local governments are allowed to provide greater credits to developers than strictly required, citing ORS 223.304(5)(c). West Hills asserted that it and "other Bethany developers" had "understood" that the county would reimburse the total cost of street improvements in North Bethany—which the parties refer to as "whole street improvements"—through TDT and NBTSDC credits, but that the county was now limiting the credits to the cost of improvements that provided capacity beyond that needed for the development and was not reimbursing storm-water improvements. According to West Hills, "the County reached an oral agreement with West Hills" and "assur[ed]" West Hills that the county would give a "100 percent" credit for whole street improvements.
Defendant issued his decision in 2015, rejecting West Hills' arguments. Defendant concluded that the county's credit determinations were consistent with the applicable rules. As for an alleged oral agreement to award greater credits, defendant "[a]ssum[ed] for the sake of discussion that County staff and North Bethany developers ‘agreed’ that street improvements would be fully reimbursable," but he stated that "it is axiomatic that those staff persons must have had the authority to bind the County to that agreement," and he concluded that there was "no evidence in the record to demonstrate that the County staff possessed the authority to bind the County in the manner [West Hills] suggests." In defendant's view, only the Board of County Commissioners could potentially bind the county to an oral contract, and it was unclear whether even the board could do so. Finally, defendant concluded that, although ORS 223.304(5)(c)"does appear to grant local governments latitude to provide a credit that is larger or different than what an applicant would otherwise be entitled to receive," the statute "places no affirmative duty on County staff to deviate from the express language governing credits in the TDT and NBTSDC regulations." (Emphasis in original.)
West Hills petitioned for a writ of review under ORS 34.020. In its petition, among other things, West Hills asserted that it had relied on "oral agreements with County Staff" and that "County staff" had "actual and/or apparent authority to bind the County." Defendant, who filed the opening merits brief in the trial court, asserted that he had not erred in his decision because TDT and NBTSDC credit eligibility was to be determined by the director of the Washington County Department of Land Use and Transportation, because the county used the correct methodology for calculating West Hills' credits, and because there was no evidence that anyone with authority had bound the county to awarding a greater credit to West Hills. In response, West Hills argued, among other things, that it would be "unreasonable and unrealistic" for the director to make all credit determinations himself, that the director was "presumptively permitted to subdelegate certain tasks and duties to [his] subordinates and employees," that delegation to "County staff" was the "practice and understanding of all persons involved," and that county staff had agreed to award credits for whole street improvements on NW Springville Road and NW Brugger Road to West Hills. Alternatively, West Hills argued, if the county staff did not have actual authority to enter into the alleged oral agreement, they had apparent authority to do so.
The trial court affirmed defendant's decision. The court concluded that county staff lacked authority to bind the director with respect to credit determinations and that it therefore was irrelevant whether any putative oral agreement existed.
West Hills appeals the trial court's judgment, raising three assignments of error. First, it asserts that the trial court erred in "affirming [defendant's] finding that the TDT and NBTSDC do not allow credits for the total costs of roadway improvements." Second, it asserts that the trial court erred in "affirming [defendant's] finding that County staff did not have authority under the TDT and NBTSDC to award credits for the total cost of roadway improvements." Third, it asserts that the trial court erroneously "failed to consider [West Hills'] argument that County staff had apparent authority to enter into a binding, enforceable agreement and should be estopped from denying credits to West Hills for the total cost of roadway improvements."
In a writ of review proceeding, the trial court's task is to determine whether an inferior court, officer, or tribunal subject to writ of review has:
ORS 34.040(1). We review a trial court's judgment on a writ of review for legal error. Johnson v. Civil Service Board , 161 Or. App. 489, 498, 985 P.2d 854, modified on recons , 162 Or. App. 527, 986 P.2d 666 (1999). "In reviewing the trial court's determination, we consider the record that was before the [inferior court, officer, or tribunal]." Constant Velocity Corp. v. City of Aurora , 136 Or. App. 81, 85, 901 P.2d 258 (1995).
The premise of West Hills' first assignment of error is that both defendant and the trial court erroneously concluded that the county code and WCRO 2010-098 "do not allow" the county to award a developer any greater credits than those required under the code and order. West Hills asserts that, in actuality, under ORS 223.304(5), the county does have discretion to award greater credits.
West Hills does not identify when or where defendant or the trial court made the alleged ruling that it challenges. See ORAP 5.45(4)(a) (). In fact, in his order, defendant expressly agreed with West Hills that ORS 223.304(5)(c)"does appear to grant local governments latitude to provide a credit that is larger or different than what an applicant would be entitled to receive." See ORS 223.304(5)(c) ().1 The trial court reiterated that statement in its own written opinion: "The Hearings Officer specifically noted that while ORS 223.304(5)(c)allows local governments the latitude to grant a credit larger than what an applicant would otherwise be entitled to received, the statute does not place an affirmative duty on County Staff to deviate from the express terms of the TDT...
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... ... State v. Taylor, 323 ... Or.App. 422, 426-27, 427 n 3, 523 P.3d 696 (2022); West ... Hills Development Co. v. Doughman, 294 Or.App. 274, 282 ... n 3, 432 P.3d 292 (2018); Harrison v. Hall, ... ...