Friends of Oregon v. LCDC (Clatsop Co.)

724 P.2d 805, 301 Or. 622
CourtOregon Supreme Court
DecidedSeptember 3, 1986
Docket84-ACK-136 CA A33832 SC S32615
StatusPublished
Cited by22 cases

This text of 724 P.2d 805 (Friends of Oregon v. LCDC (Clatsop Co.)) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friends of Oregon v. LCDC (Clatsop Co.), 724 P.2d 805, 301 Or. 622 (Or. 1986).

Opinion

724 P.2d 805 (1986)
301 Or. 622

1000 FRIENDS OF OREGON, Petitioner on Review,
v.
LAND CONSERVATION AND DEVELOPMENT COMMISSION and Clatsop County, Respondents on Review.

84-ACK-136; CA A33832; SC S32615.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 2, 1986.
Decided September 3, 1986.

Richard P. Benner, Portland, argued the cause and filed briefs for petitioner on review.

Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen. and Kendall M. Barnes, Asst. Atty. Gen., Salem, filed briefs for respondent on review, Land Conservation and Development Com'n.

Kenneth S. Eiler, Seaside, argued the cause and filed a brief for respondent on review, Clatsop County.

PETERSON, Chief Justice.

The issue here is whether a particular administrative body, the Land Conservation and Development Commission (LCDC), by issuing a "corrected acknowledgment order" *806 identical in all material respects to an earlier final acknowledgment order save for the correction of an insignificant typographical error and the date of entry, can extend or renew the period during which judicial review may be requested concerning the substance of the order. We hold that LCDC may not and that such corrected order has no effect on the period in which to seek review.

In October 1983, Clatsop County submitted its comprehensive plan to LCDC for acknowledgment under ORS 197.251. LCDC held two public hearings. Petitioner 1000 Friends of Oregon (1000 Friends) appeared at both hearings and gave written and oral testimony. On May 31, 1984, LCDC announced that if Clatsop County would make certain changes in its plan, LCDC would allow a "segmented acknowledgment."[1] On June 27, 1984, Clatsop County held a public hearing concerning the changes suggested by LCDC. 1000 Friends received notice of this hearing. Clatsop County approved the changes and forwarded the revisions to LCDC.

On August 3, 1984, LCDC Commissioner Church wrote Clatsop County advising that the County's plan had been acknowledged, and that a continuance order had been issued regarding the segmented areas. Accompanying the LCDC letter were copies of the compliance acknowledgment order (84-ACK-136) and the continuance order (84-CONT-137).

The compliance acknowledgment order provided:

"This matter came before the Commission on May 31, 1984, as a request for acknowledgment of compliance pursuant to ORS 197.251 and the Commission Acknowledgment Rule, OAR 660-03-000 to XXX-XX-XXX. The Commission, having fully considered Clatsop County's comprehensive plan and land use regulations, comments and objections of interested parties and the report of the Department of Land Conservation and Development, now enters its:

Finding of Fact and Conclusions

"1. Clatsop County's request for acknowledgment of compliance was reviewed by the Commission previously on September 25, 1984 pursuant to ORS 197.251 and the Commission Acknowledgment Rule, OAR 660-03-000 to XXX-XX-XXX.

"* * * * *

"THEREFORE, IT IS HEREBY ORDERED THAT:
"The Land Conservation and Development Commission acknowledges that Clatsop County's Comprehensive Plan and land use Regulations comply with the Statewide Planning Goals except as provided in its Continuance Order 84-CONT-137.

"DATED THIS 3rd DAY OF AUGUST 1984.

"* * * * * *

"NOTICE: You are entitled to Judicial review of this Order. Judicial review may be obtained by filing a petition for review within 60 days from the service of this final Order. Judicial review is pursuant to the provisions of ORS Ch. 183.42 (sic) and ORS 197.650. * * *."

Shortly after receiving the letter and accompanying orders Clatsop County notified LCDC that Finding of Fact Number 1 in the acknowledgment order was incorrect in stating that Clatsop County's acknowledgment request previously had been reviewed by LCDC on September 25, 1984. The correct date of the prior review was September 25, 1981. The August 3 continuance order reflected the correct date. On September 10, 1984, LCDC mailed a corrected acknowledgment order to Clatsop County and petitioner. In an accompanying letter LCDC apologized for the "typographical" error. The corrected acknowledgment order was dated September 7, 1984, and was identical to the original order except for the correction of the earlier review date. The *807 September 7 order also contained a notice of appeal rights identical to that in the August 3 order.

On November 5, 1984, petitioner filed in the Court of Appeals a petition for judicial review of the September 7 corrected order. Clatsop County filed a motion to dismiss the petition as untimely as it was not filed within 60 days of the August 3 order. See ORS 197.650, 183.482(1).[2]

The county argued that the correction compliance acknowledgment order of September 7 did not alter the rights or obligations determined by the original order, nor could the correction order act to extend or renew the period within which judicial review of the matters determined in the original order might be requested. The Court of Appeals granted Clatsop County's motion and dismissed 1000 Friends' petition for judicial review. 77 Or.App. 502, 713 P.2d 684 (1986).

The Court of Appeals relied upon our decision in Mullinax v. Mullinax, 292 Or. 416, 430, 639 P.2d 628 (1982), where we held as regards minor corrections of judgments:

"* * * If the amendment of a final judgment or decree for the purpose of correcting a `clerical error' either materially alters rights or obligations determined by the prior judgment or creates a right of appeal where one did not exist before, the time for appeal should be measured from the entry of the amended judgment. If, however, the amendment has neither of these results, but instead makes changes in the prior judgment which have no adverse effect upon those rights or obligations or the parties' right to appeal, the entry of the amended judgment will not postpone the time within which an appeal must be taken from the original decree."

1000 Friends petitioned for review in this court asserting that the Court of Appeals' application of the Mullinax rule was "[a]n unwarranted extension * * * of a principle of trial court practice * * * to a state agency contested case order that unfairly deprived petitioner of its right to judicial review."

1000 Friends' argument is two-pronged. First, that LCDC's corrected order, which on its face complied with the requirements related to the form of a final order (ORS 183.310(5)(b), 183.470(4), 197.251(5)), superseded the original final order.

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Cite This Page — Counsel Stack

Bluebook (online)
724 P.2d 805, 301 Or. 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friends-of-oregon-v-lcdc-clatsop-co-or-1986.