State ex rel. Compass Corp. v. City of Lake Oswego

878 P.2d 403, 319 Or. 537, 1994 Ore. LEXIS 79
Oregon Supreme Court·Decided August 11, 1994·No. CC 92-1-134; CA A76227; SC S40507·Published·Cited by 22 cases

Opinion

DURHAM, J.

Relator Compass Corporation seeks review of a decision of the Court of Appeals that ordered dismissal, for lack of jurisdiction, of its mandamus action under ORS 227.178(7). State ex rel Compass Corp. v. City of Lake Oswego, 121 Or App 486, 856 P2d 319 (1993). The issue is whether the defendant City of Lake Oswego’s (City) denial of relator’s partition application deprived the circuit court of authority under ORS 227.178(7) to issue a writ of mandamus to City’s governing body to compel approval of the application. Our answer to that question is “no.” Accordingly, we reverse the decision of the Court of Appeals.

On March 22,1991, relator filed an application for a land use permit to create three parcels on a 1.2-acre site. Pursuant to ORS 227.178(2),1 City deemed the application2 complete on April 5, 1991. On June 3, 1991, City’s Development Review Board conducted a hearing on the application. On August 5, 1991, the Board voted to deny the application and, on October 7,1991, voted to deny reconsideration of its decision. On October 22, 1991, relator filed an appeal to the city council.

On January 14, 1992, relator filed a petition for an alternative writ of mandamus under ORS 227.178, which provides, in part:

“(1) Except as provided in subsections (3) and (4) of this section, the governingbody of a city or its designate shall take final action on an application for a permit, limited land use decision or zone change, including resolution of all appeals [540] under ORS 227.180, within 120 days after the application is deemed complete.
a* * * * *
“(7) If the governing body of the city or its designate does not take final action on an application for a permit, limited land use decision or zone change within 120 days after the application is deemed complete, the applicant may apply in the circuit court of the county where the application was filed for a writ of mandamus to compel the governing body or its designate to issue the approval. The writ shall be issued unless the governing body shows that the approval would violate a substantive provision of the city comprehensive plan or land use regulations as defined in ORS 197.015.”

The court issued the alternative writ and scheduled a show cause hearing for February 12, 1992. On February 11, 1992, the city council took final action to deny relator’s application.

At the show cause hearing on February 12, 1992, City moved to dismiss the proceeding on the ground that the city council’s action on February 11,1992, deprived the court of authority to issue the writ. The court denied the motion. In its answer, City admitted that it had not taken final action on relator’s application within 120 days of April 5, 1991, and alleged that approval of the application would violate City’s comprehensive plan and land use regulations.

Following a hearing, the court issued a peremptory writ of mandamus requiring City to approve the application.3 The court concluded:

“The defendant [City] did not sustain its burden of proof that approval of the application would violate a substantive provision of defendants [sic] Comprehensive Plan or land use regulations as defined in ORS 197.015.”

City appealed the judgment to the Court of Appeals. Relying on the rationale of Edney v. Columbia County Board of Commissioners, 119 Or App 6, 849 P2d 1125, aff’d on other grounds, 318 Or 138, 863 P2d 1259 (1993),4 the Court of [541] Appeals reversed, holding that the circuit court lost mandamus jurisdiction when the city denied the application before the mandamus proceeding finally was adjudicated. State ex rel Compass Corp. v. City of Lake Oswego, supra, 121 Or App at 488. According to the Court of Appeals, its interpretation of ORS 227.178(7) resolved an inherent conflict between the mandamus statute and the LUBA review statutes in a manner that supported the legislature’s preference for LUBA review of land use issues. Id.

Whether the belated decision by City to deny petitioner’s application deprives the circuit court of authority to compel approval through a writ of mandamus is a question that is controlled by the legislature’s intention in adopting ORS 227.178(7). To discern the legislature’s intention, we begin by examining the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). Context includes “other provisions of the same statute and other related statutes.” Id. at 611.

ORS 227.178(7). provides that, if the city’s governing body fails to take action within the 120-day period specified in ORS 227.178(1), the applicant may seek a writ of mandamus “to compel the governing body or its designate to issue the approval.” That wording creates a right to a judicially compelled approval of an application, not merely a right to a prompt decision by the governing body to approve or disapprove the application. Nothing in the statutory text suggests that the legislature intended to permit a local government to foreclose an applicant’s access to the mandamus remedy by denying the application after expiration of the 120-day deadline.

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State ex rel. Compass Corp. v. City of Lake Oswego, 878 P.2d 403, 319 Or. 537, 1994 Ore. LEXIS 79 (Or. 1994).

878 P.2d 403 (State ex rel. Compass Corp. v. City of Lake Oswego) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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