Murphy Citizens Advisory Committee v. Josephine County

860 P.2d 857, 123 Or. App. 539, 1993 Ore. App. LEXIS 1664

• Court: Court of Appeals of Oregon
• Decided: October 6, 1993
• Docket: 93-234; CA A80513
• Status: Published

Opinions

EDMONDS, J.

Petitioner seeks review of the dismissal of its appeal to LUBA on the basis of lack of jurisdiction. LUBA held that there was not an appealable land use decision before it. We reverse.

In January, 1992, Copeland Sand & Gravel, Inc. (Copeland) filed its application for a land use permit to conduct industrial operations on property in Josephine County. The Board of County Commissioners held a final hearing in September, 1992, on the application and continued the proceeding for the sole purpose of making a final decision. Copeland brought a mandamus action one day before the date scheduled for the announcement of the county’s decision but after the 120-day period expired under ORS 215.428(7).¹ The petition for the writ requested that the court command the county to issue its final approval of the permit “according to the terms of the application.” Also, the circuit court granted an exporte order staying further action by the county on the application. Petitioner subsequently intervened in the mandamus proceeding.

In December, 1992, the county and Copeland entered into a settlement of the mandamus proceeding by stipulation. Petitioner was not a party to the settlement agreement. The stipulation provided that “the permit will subsequently issue subject to the conditions in this stipulation.” (Emphasis supplied.) The referenced conditions were the conditions contained in the Josephine County Planning Commission’s previous order on Copeland’s application.² The trial court held that the stipulation rendered the mandamus action moot and dismissed it.³

The issue on appeal is whether the stipulation is an appealable land use decision within the meaning of ORS 197.015(10). It provides that a land use decision includes:

“(A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:

“(i) The goals;

“(ii) A comprehensive plan provision;

“(iii) A land use regulation; or ‘ ‘ (iv) A new land use regulation^] ’ ’

Respondents argue that the stipulation was not an application of such laws, but a settlement of the mandamus proceeding.

In construing statutes, our task is to discern the intent of the legislature. ORS 174.020. In State v. Trenary, 316 Or 172, 175, 850 P2d 356 (1993), the court outlined a template to follow in ascertaining legislative intent. The starting point of the analysis is with the text of the statute, to ascertain what is contained therein, not to insert what has been omitted, or to omit what has been inserted. The plain meaning of ORS 197.015(10) is that the application of land use laws that result in the approval or dismissal of an application for a permit constitutes a land use decision even if that decision is made outside the confines of the land use proceeding.

Our case law supports our interpretation of ORS 197.015(10). In Edney v. Columbia County Board of Commissioners, 119 Or App 6, 849 P2d 1125, rev allowed 317 Or 162 (1993), we held that the circuit court loses jurisdiction under ORS 215.428(7) if, at any time before it renders a final judgment, the county makes a land use decision on the application that is the subject of the action. Our rationale was that review through the LUBA process is the norm and that the mandamus remedy under ORS 215.428(7) is the exception. See also Bigej Enterprises v. Tillamook County, 118 Or App 342, 847 P2d 869, rev den 317 Or 162 (1993); Simon v. Board of Co. Comm. of Marion Co., 91 Or App 487, 755 P2d 741 (1988). Once a county makes the land use decision, the overriding intention of the legislature that the county make the decision has been achieved and resort to the circuit court is not permissible. Here, the mandamus proceeding did not end with a final judgment in favor of Copeland granting the relief that it requested. It ended after the county made a decision to agree to the stipulation.

We hold that the stipulation subjecting approval of the permit to the conditions contained in the planning commission’s previous order is a “land use decision” by the county. It is not merely an acquiescence in the relief requested by Copeland in its application for a writ of mandamus, because the petition asked for the writ to command the county to issue final approval according to the terms of the application. Rather, it imposes specific conditions required by the county planning commission, and says that the permit “will subsequently issue” subject to those conditions. The stipulation ends the county’s deliberation process on the application as well as the mandamus proceeding. In essence, the county and Copeland agreed to adopt the planning commission’s application of land use regulations to Copeland’s application and, therefore, its action became a de facto land use decision as defined under ORS 197.015. In the light of these facts, LUBA erred in dismissing petitioner’s appeal for lack of jurisdiction.

Reversed and remanded.

1 ORS 215.428(7) provides that, if the county governing body fails to take final action on a permit application within 120 days after its completed filing, the applicant is entitled to a writ of mandamus compelling the county to approve the application, unless the county can establish that the “approval would violate a substantive provision of the county comprehensive plan or land use regulations.” Those defenses may also be presented by an intervenor in the mandamus action. Wallace v. Board of Commissioners, 105 Or App 364, 804 P2d 1220 (1991).

2 The eight-page order, approving the permit subject to certain conditions, was issued in May, 1992. Petitioner had appealed that order to the Board of County Commissioners.

3 The judgment of dismissal recites:

“1. Defendants have complied with the terms of the Alternative Writ of Mandamus * * * by virtue of the stipulation * * * wherein Defendants and Relator agreed that the requested development permit would issue subject to the referenced conditions.

“2. Further consideration of this matter is rendered moot because of the Defendants’ compliance to the writ.”

Petitioner has appealed the judgment in the mandamus action to this court, and that appeal is pending.