Miller v. Multnomah County

956 P.2d 209, 153 Or. App. 30, 1998 Ore. App. LEXIS 377
CourtCourt of Appeals of Oregon
DecidedMarch 18, 1998
DocketLUBA No. 97-105; CA A100110
StatusPublished
Cited by1 cases

This text of 956 P.2d 209 (Miller v. Multnomah 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
Miller v. Multnomah County, 956 P.2d 209, 153 Or. App. 30, 1998 Ore. App. LEXIS 377 (Or. Ct. App. 1998).

Opinion

DEITS, C. J.

Petitioner seeks review of LUBA’s decision that effectively affirmed in part and remanded in part Multno-mah County’s denial of petitioner’s application for a conditional use permit to build a dwelling in a forest zone. We affirm.

Petitioner’s application was deemed complete on January 2, 1997. A hearings officer denied the application, and petitioner appealed to the county governing body (board). On April 1, less than 120 days after the application was filed, the board announced orally after a hearing that it affirmed the hearings officer’s decision. It nevertheless remanded the order to the hearings officer to amend certain findings. After the hearings officer complied, the board entered a written decision, which was dated May 8, 1997, “nunc pro tunc April 1, 1997.” More than 120 days had elapsed between the filing of the application and May 8. On the merits of the application, the board applied the county’s own land use regulations which, in relevant part, are more restrictive than ORS 215.750 and related state regulations, with respect to the permissibility of dwellings of the kind in question. Although the dwelling might have been allowable under the state provisions, it could not be permitted under the county’s.

Petitioner contended at the May 8 hearing that the board’s final decision on the application had been made on that date and, therefore, that the county had not taken “final action” on his application within the 120-day period allowed by ORS 215.428(1). Consequently, petitioner maintained that he was entitled to a refund of one-half of his application fee pursuant to ORS 215.428(7)(a).1 The board disagreed, [33]*33taking the view that the April 1 oral announcement embodied its final action on the application. The board agreed with the county counsel’s explanation to it about the finality of the April 1 action and, relatedly, the reason why the May 8 order was dated nunc pro tunc to April 1. The county counsel stated, as quoted in LUBA’s opinion:

“It is the procedure that the County uses to make sure that a decision is made by the [county board] within the 120 days, which you did do. * * * [W]hen you make the oral decision that is the act [sic] the final action of the [county board] that needs to happen. * * * Then it is simply ministerial when you send the planning department off to create the final document which is what you are approving today. You are indicating that this order now comports with the decision that you made on April 1st. * * *.”

The county counsel advised that, since the “decision took place in the 120 days * * * we don’t have liability for returning half of the fee.”

Petitioner appealed to LUBA. He argued first that the May 8 written order, rather than the April 1 announcement, constituted the county’s “final action” for purposes of ORS 215.428(1), and that the county was therefore required by ORS 215.428(7)(a) to refund part of petitioner’s application fees. Second, petitioner contended that the county’s “backdating” of the May 8 order to April 1 was an action [34]*34taken “for the purpose of avoiding the requirements of ORS 215.428” — in particular, the refund requirement of subsection (7)(a) — and, consequently, LUBA was required by ORS 197.835(10)(a)(B) to reverse the county’s denial of the application. Finally, petitioner asserted that the county was required to apply the state provisions and erred by denying his application on the basis of its own more restrictive regulations. LUBA agreed with petitioner’s first contention but disagreed with the others. Petitioner now seeks our review and assigns error, respectively, to LUBA’s rejection of his second and third arguments.2

ORS 197.835(10)(a) provides:

“[LUBA] shall reverse a local government decision and order the local government to grant approval of an application for development denied by the local government if [LUBA] finds:
“(A) Based on the evidence in the record, that the local government decision is outside the range of discretion allowed the local government under its comprehensive plan and implementing ordinances; or
“(B) That the local government’s action was for the purpose of avoiding the requirements of ORS 215.428 or 227.178.” (Emphasis supplied.)

The emphasized language, which is the focus of petitioner’s first assignment of error here, was enacted through Oregon Laws 1995, chapter 812, section 5. The other language of the subsection preexisted the 1995 legislation and was, in substance, unchanged by it. Other provisions relating to the “120-day rule” and the mandamus procedure were also enacted through or amended by the 1995 act — most notably the amendment of ORS 215.428 and the addition of subsection (7)(a) to it. Or Laws 1995, ch 812, § 2. See n 1.

In rejecting petitioner’s argument that it was required to reverse the county’s decision pursuant to ORS [35]*35197.835(10)(a)(B), LUBA construed the statute as applying “only when [a] petitioner demonstrates that the local government denies an application in bad faith in a deliberate attempt to avoid the 120-day requirement.” (Emphasis in original.) LUBA concluded that the April 1 oral decision to deny the application “was made on the merits, without consideration of the 120-day rule” and that the “record indicates that the county board issued the order nunc pro tunc in the good faith belief that it had already complied with ORS 215.428” through the April 1 oral decision. LUBA also noted that “[n]othing in the record cited to us indicates that the county was motivated at any time to deny the application to avoid violating the 120-day rule or to avoid refunding fees.” (Emphasis in original.)

Petitioner contends that LUBA misconstrued ORS 197.835(10)(a)(B) as applying “only when [the] local government denies an application, not on the merits, but in an attempt to avoid the 120-day rule.” (Emphasis petitioner’s.) Petitioner asserts that LUBA’s interpretation was incorrect, first, because LUBA equated the term “action” in the statute as being synonymous with and limited to a local government’s decision to deny an application.

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Related

West v. Multnomah County
350 P.3d 203 (Court of Appeals of Oregon, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
956 P.2d 209, 153 Or. App. 30, 1998 Ore. App. LEXIS 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-multnomah-county-orctapp-1998.