Bigej Enterprises v. Tillamook County

838 P.2d 1095, 115 Or. App. 425, 1992 Ore. App. LEXIS 1817
CourtCourt of Appeals of Oregon
DecidedOctober 7, 1992
Docket91-2027, 91-2035; CA A71688
StatusPublished
Cited by1 cases

This text of 838 P.2d 1095 (Bigej Enterprises v. Tillamook County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bigej Enterprises v. Tillamook County, 838 P.2d 1095, 115 Or. App. 425, 1992 Ore. App. LEXIS 1817 (Or. Ct. App. 1992).

Opinion

EDMONDS, J.

Plaintiffs appeal from a judgment denying their request for a writ of mandamus to compel defendant Tillamook County (county) to approve their application for a conditional use permit in accordance with ORS 215.428(7).1 We affirm.

In August, 1990, plaintiffs applied to the County Board of Commissioners for a conditional use permit to construct a fishing lodge on their property. The application was completed on September 4,1990. As a result of continuances granted by the Board, the 120-day period in which the Board had to act on the application under ORS 215.428(1) was to expire on April 10, 1991. On that date, the Board granted plaintiffs’ request that the proceedings be set over until April 17,1991. The Board held a hearing on April 17, at which plaintiffs agreed to “waive the period between April 17 and May 1” to enable the Board to deliberate and prepare its disposition of the case. The Board made its findings of fact, conclusions and order on May 1 and sent them to plaintiffs, postmarked May 3.

Plaintiffs filed two petitions for alternative writs of mandamus, the first on April 17,1991, and the second on May 1. Both petitions allege that the Board failed to take final action on plaintiffs’ conditional use permit application within 120 days, as required by ORS 215.428(7), and that approval of their application would not violate any provisions of county’s comprehensive plan or land use regulations. They requested relief under ORS 215.428(7). The court issued an alternative writ of mandamus commanding county to approve plaintiffs’ conditional use permit or, alternatively, to show cause why it should not be granted.

[428]*428County moved to dismiss the petitions but did not return the writ or file an answer before trial. At tried, the court denied county’s motion to dismiss and proceeded to hear the case on the merits. After plaintiffs had put on their case, they objected to county’s failure to return the writ and file an answer before trial and moved for judgment on the pleadings. The court ruled that it would allow county ten days to file its answer and another 10 days to return the writ. It then denied the motion for judgment on the pleadings and proceeded with the trial.

Six days later, county filed its answer along with a return. Plaintiffs objected to that filing. Thereafter, the court issued a letter opinion on the merits of the case, concluding that county had acted within the 120-day period prescribed by ORS 215.428(7). It also said:

“Plaintiff [sic] relies on technical pleading requirements. In a matter as significant as this planning case, the decision ought not be based in [sic] technicalities unless the technicality [sic] affects the merits. In this matter, they do not. Any amendment necessary to bring the pleadings into technical compliance is hereby allowed.”

Plaintiffs assert that the trial court acted without authority or that it abused its discretion when it granted defendant leave to return the writ and to answer after the trial had commenced. County argues that the actions of the court were authorized by ORS 34.150 and ORS 34.170 and were within its discretion.

ORS 34.150 provides, in part, that an alternative writ of mandamus

“shall state concisely the facts, according to the petition, showing the obligation of the defendant to perform the act and the omission of the defendant to perform it, and command the defendant, that immediately after the receipt of the writ, or at some other specified time, the defendant do the act required to be performed, or show cause before the court or judge thereof, by whom the writ was allowed, at the time and place therein specified, why the defendant has not done so; and that the defendant then and there return the writ with the certificate of the defendant annexed, of having done as the defendant is commanded, or the cause of the omission thereof.” (Emphasis supplied.)

[429]*429ORS 34.170 provides:

“On the return day of the alternative writ, or such further day as the court orjudge thereof may allow, the defendant on whom the writ was served may show cause by motion to dismiss or answer the writ, in the same manner as to a complaint in an action.” (Emphasis supplied.)

The statutes give the court discretion to order when the writ is to be returned and the answer to be filed. Plaintiffs did not move for judgment on the pleadings until after they had offered evidence in their case-in-chief. They point to no prejudice because of the court’s ruling. In the circumstances, we hold that the trial court did not abuse its discretion by allowing county leave to return the writ after the trial commenced.

Plaintiffs next assert that the trial court erred when it concluded that county took final action on its application within the 120-day period mandated by ORS 215.428(7). The parties agree that plaintiffs’ application was completed on September 5, 1990, and that the 120-day period began running the next day. They also agree that February 15, 1991, was the 66th day of that period, because of certain intervening events not relevant here.2 Their dispute arises because of plaintiffs’ April 10 and April 17 requests for continuance. Plaintiffs argue that, under ORCP 10A, the 120th day was either April 10 or April 17. County argues that, under ORS 215.428, the 120-day period did not expire until May 1.

ORS 215.428 provides, in pertinent part:

“(1) Except as provided in subsections (3) and (4) of this section, the governing body of a county or its designate shall take final action on an application for a permit, limited land use decision or zone change, including resolution of all appeals under ORS 214.422, within 120 days after the application is deemed complete.
“(2) If an application for a permit, limited land use decision or zone change is incomplete, the governing body or its designate shall notify the applicant of exactly what information is missing within 30 days of receipt of the application and allow the applicant to submit the missing information. [430]

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Related

Bigej Enterprises v. Tillamook County
847 P.2d 869 (Court of Appeals of Oregon, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
838 P.2d 1095, 115 Or. App. 425, 1992 Ore. App. LEXIS 1817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bigej-enterprises-v-tillamook-county-orctapp-1992.