State ex rel. Coastal Management, Inc. v. Washington County

979 P.2d 300, 159 Or. App. 533, 1999 Ore. App. LEXIS 515
CourtCourt of Appeals of Oregon
DecidedApril 14, 1999
DocketC960324CV; CA A95888
StatusPublished
Cited by2 cases

This text of 979 P.2d 300 (State ex rel. Coastal Management, Inc. v. Washington 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
State ex rel. Coastal Management, Inc. v. Washington County, 979 P.2d 300, 159 Or. App. 533, 1999 Ore. App. LEXIS 515 (Or. Ct. App. 1999).

Opinion

DE MUNIZ, P. J.

Defendant Washington County (county) and Intervenor Baker Rock Crushing Co. (intervenor) appeal from the peremptory writ of mandamus and supplemental judgment awarding attorney fees to relators in this mandamus action under ORS 215.428(7). We affirm.

On October 28, 1994, relators applied to the county to subdivide a 9.2-acre lot into nine one-acre parcels, which would eventually be put to residential use. The property is located in a rural residential zone and is also included in a mineral and aggregate overlay district. Intervenor conducts quarry operations to the east and south of the property. On October 19,1995, almost one year after the filing of the completed application, a county hearings officer approved the proposed subdivision, subject to conditions, inter alia, to alleviate the effects of noise from the nearby quarries. Intervenor appealed the hearings officer’s decision to the county governing body. Approximately five months later, on March 16, 1996, the governing body announced its “tentative” oral decision to deny the application.

ORS 215.428(1) requires counties to take final action on permit applications within 120 days after they are “deemed complete.” In the event that a county fails to comply with the requirement, the applicant may seek a writ of mandamus under ORS 215.428(7)(b) to compel the county governing body to approve the application. The writ is to issue “unless the governing body shows that the approval would violate a substantive provision of the county comprehensive plan or land use regulations^]” Id.

Relators filed this mandamus action on March 22, 1996. On April 2, the governing body purported to issue a final decision denying the application, which set forth the particulars in which that body viewed the application as being inconsistent with the county’s Community Development Code (CDC). In the mandamus proceeding, the county and intervenor used the governing body’s interpretation of the code provisions in its April 2 “order” as the pivot of their contention that the granting of the application would violate [536]*536the provisions. Relators took the opposite view of the meaning and effect of the provisions.

CDC 350-6.1, pertaining to lot size in the rural residential district, provides, in relevant part:

“The minimum lot area except for a lot of record shall be:
“A. Five acres; or
* ‡ * *
“C. Through a Type II procedure, a lot less than four (4) acres, but no less than one (1) net acre may be approved upon findings that the lot[ ]”

will satisfy various standards, including the proviso in paragraph (4) that the “intent and purpose of this district is not violated.” CDC 379-1 sets out the “intent and purpose” of the mineral and aggregate overlay district, as distinct from the rural residential district.1 In addition, CDC 379-14 contains development standards within the “District B” portion of the overlay district, where the property is situated.2 That section provides, in relevant part:

[537]*537“In addition to the development standards required by the primary land use district, the establishment of noise sensitive uses and the creation of new parcels that are eligible for a dwelling within Mineral and Aggregate Overlay District B shall be subject to the following.
******

“379-14.2 Noise Reduction Measures:

“Noise reduction measures may be required of the owners of new noise sensitive uses constructed after the establishment of District B when determined by the Review Authority to be necessary to ensure compliance by the District A use with applicable noise regulations. Noise reduction measures may include, but not be limited to, vegetative buffers, berms, walls, insulation and orientation of windows, and shall be determined by the Review Authority.”

The county and intervenor argued below, as they do here, that the approval of relators’ application is subject to the quoted and cited provisions of CDC section 379, as well as the provisions of CDC section 350. Although the latter provisions relate to the rural residential district and CDC 350-6.1(c)(4) requires consistency with the “intent and purpose of this district,” the county and intervenor assert that the emphasized word must include the intent and purpose provisions of the overlay district as well as those for the primary district to which CDC 350-6.1(c)(4) directly relates. They reason that the overlay district, as well as the primary district, is, in fact, part of the same physical location as this particular rural residential area and, further, that the “intent and purpose” provisions of the overlay district would be eviscerated if they were inapplicable to situations such as this one. Intervenor and the county also contend that CDC 379-14.2 is applicable to relators’ application by its terms and that the proposed subdivision cannot comply — or was not shown to be capable of compliance — with its requirements of mitigating noise from the quarry operations. Finally, the county and intervenor assert that the trial court should have deferred to the interpretation of the county provisions in the April 2 order, regardless of how the court itself might have interpreted the provisions independently.

[538]*538The trial court disagreed with the county and intervenor about the applicability of CDC 350-6.1(c)(4) and about the deference issue. It agreed that CDC 379-14.2 was an applicable standard but, after taking evidence from both sides’ experts, concluded that the noise control requirements of that section could be satisfied by the use of hay barriers.3

The county argues in its second assignment of error and intervenor argues in its only assignment that the trial court erred in its interpretation and application of the various code provisions. As summarized above, they maintain that the intent and purpose section of the overlay district, CDC 379-1, is implicitly incorporated by the reference to this district in CDC 350-6.1(c)(4). We find the argument to fail as a matter of law. It is difficult to imagine a term that is less open to the implication that it includes something beyond its specific referent than the word “this.” The provisions in CDC section 350 relate to a particular kind of rural residential district. Like any other kind of zone, it can be subject to overlay zoning. That does not, ipso facto, make all of the local provisions that pertain to the overlay district applicable to all of the uses — or their approval — in the primary zone.

That, of course, is not to say that the provisions pertaining to the primary zone, the overlay zone, or both, cannot [539]*539be reciprocally or mutually applicable or cannot specify whether and to what extent they are. However, nothing in CDC 379-1 suggests that it is applicable as an approval criterion for uses in the primaiy residential zone. Notably, that is in marked contrast to CDC 379-14, which expressly makes its

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Related

Bishop v. KC Development Group, LLC
300 Or. App. 584 (Court of Appeals of Oregon, 2019)
STATE EX REL. COASTAL MGMT. v. Washington Cty.
979 P.2d 300 (Court of Appeals of Oregon, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
979 P.2d 300, 159 Or. App. 533, 1999 Ore. App. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-coastal-management-inc-v-washington-county-orctapp-1999.