Bora Architects, Inc. v. Tillamook Cnty.

422 P.3d 412, 291 Or. App. 537
CourtCourt of Appeals of Oregon
DecidedMay 2, 2018
DocketA166548
StatusPublished

This text of 422 P.3d 412 (Bora Architects, Inc. v. Tillamook Cnty.) 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
Bora Architects, Inc. v. Tillamook Cnty., 422 P.3d 412, 291 Or. App. 537 (Or. Ct. App. 2018).

Opinion

ARMSTRONG, P.J.

*539In this land use case, petitioner Seabreeze Associates Limited Partnership seeks review of a Land Use Board of Appeals (LUBA) order that reversed Tillamook County's decision to approve Seabreeze's application for preliminary subdivision plat approval for its property. LUBA determined that Seabreeze's application was void under ORS 215.427(4) because Seabreeze did not take one of the listed actions in that subsection within 180 days of the date that Seabreeze first submitted its application. On review, Seabreeze argues that LUBA erred in its understanding of ORS 215.427. Seabreeze contends that, because the county did not give Seabreeze notice within 30 days of the county's receipt of Seabreeze's application that information was missing from the application, as required by ORS 215.427(2), Seabreeze's application must be "deemed complete" 30 days after the date that Seabreeze submitted it, and, thus, ORS 215.427(4) has no bearing on the case. We review LUBA's order to determine if it is "unlawful in substance," ORS 197.850 (9)(a), and, because we conclude that Seabreeze's application was void under ORS 215.427(4), we affirm.

Before turning to the facts in this case, we first briefly describe the provisions in ORS 215.427 that bear on the case.1 Under subsection *414(1) of that statute, a county has 150 days from the date that an application is "deemed *540complete" to take final action on the application. That timing is important because, after the 150 days elapse, an applicant can bring a mandamus proceeding against the county to compel it to approve the application. See ORS 215.429.

Under subsection (2), the county is to provide notice to the applicant of any missing information in an incomplete application within 30 days of the date that the county receives the application. Also under that subsection, an application is "deemed complete" for purposes of subsection (1) when the county receives the missing information, it receives some of the missing information and written notice that no other information will be provided, or it receives written notice that none of the missing information will be provided. ORS 215.427(2).

Finally, under subsection (4), the application is void on the 181st day after being first submitted to the county if the applicant has been notified of missing information "as required under subsection (2)" and has not done one of the following: provided the missing information, provided some of the missing information and written notice that no other information will be provided, or provided written notice that none of the missing information will be provided. ORS 215.427(4).

With that statutory background in place, we turn to the facts pertinent to our review, which are undisputed. On July 15, 2015, Seabreeze submitted to the county a one-page form requesting to subdivide its property into nine *541lots. The one-page form did not include any information or maps from which the county could have determined what the proposed subdivision was. On August 18, 2015, thirty-four days after Seabreeze submitted the one-page form, the county sent Seabreeze a letter advising it that its application was incomplete and setting out several sections from the county's ordinances with which Seabreeze would need to comply to have a complete application.2 Seabreeze responded that it intended to provide the missing information that the county had identified in its letter. The county later advised Seabreeze, in error, that the 180-day deadline to provide the missing information was January 16, 2016. In fact, the last date for Seabreeze to submit the missing information and avoid the voiding provision in ORS 215.427(4) was January 11, 2016.

On January 5, 2016, Seabreeze's attorney requested that the county "deem complete" Seabreeze's application. However, later that same day, Seabreeze's representative requested information from the county so that the representative could start sending the county the information that was missing from the application. On January 8, 2016, Seabreeze's representative told the county that the attorney's request was in error and that Seabreeze intended to supply the missing information for its application, and specifically requested that the county not deem the application complete until it provided that information. Seabreeze provided additional documents and information to the county on January 14 and 15, 2016, and requested that the application be deemed complete on January 15, 2016. The county responded that the application was deemed complete as of January 15. The county later approved Seabreeze's proposed subdivision of its property. Respondent Bora Architects, Inc., and respondents Charles and Elizabeth Allgood petitioned LUBA to review the county's decision.

As relevant to our review, LUBA determined that Seabreeze had first submitted its application on July 15, *5422015, and, thus, the 181st day from the submission date was January 12, 2016. Because Seabreeze did not take any of the actions listed in ORS 215.427(4) before January 12, 2016, LUBA determined that Seabreeze's application was void under that statute as of that date. LUBA reasoned that, when the county approved Seabreeze's void application, it either " 'exceeded its jurisdiction,' or violated ORS 215.427(4) and adopted a decision that is *415'prohibited as a matter of law.' " (Quoting OAR 661-010-0071(1)(a) and (c).) Accordingly, LUBA reversed the county's decision.

On review, Seabreeze argues that LUBA legally erred in its application of ORS 215.427.

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Cite This Page — Counsel Stack

Bluebook (online)
422 P.3d 412, 291 Or. App. 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bora-architects-inc-v-tillamook-cnty-orctapp-2018.