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

856 P.2d 319, 121 Or. App. 486, 1993 Ore. App. LEXIS 1125

Opinion

DEITS, P. J.

Defendant City of Lake Oswego appeals from a judgment directing it to grant plaintiffs partition application in this mandamus action under ORS 227.178(7).¹ We reverse.

The city took final action to deny the application after plaintiff brought the mandamus action, but before the action was finally adjudicated. In Edney v. Columbia County Board of Commissioners, 119 Or App 6, 849 P2d 1125, rev allowed 317 Or 162 (1993), decided after the parties filed their briefs here, we construed ORS 215.428(7), the provision that is applicable to counties and that parallels ORS 227.178(7), and held that mandamus jurisdiction is lost and the LUBA appeal process becomes exclusive if “a county’s belated land use decision is made after a mandamus action has been brought but before it has been finally adjudicated.” 119 Or App at 12.

At oral argument, plaintiff acknowledged that Edney is controlling, but contended that it was wrongly decided. We recognized in Edney that there was an inherent conflict between the mandamus statutes and the LUBA review statutes, and that full literal effect cannot be given to both. We acknowledged in that decision that there are persuasive arguments on both sides of this issue. However, it was our conclusion that the legislature intended that the LUBA process, in which land use issues can be reviewed on their merits by the body to whom the legislature has assigned that task, is preferred over compulsory circuit court relief. We adhere to that view and to our decision in Edney.

Reversed and remanded with instructions to dismiss action.

Footnotes

1

ORS 227.178(7) provides:

“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.”