State ex rel. Holland v. City of Cannon Beach

956 P.2d 1039, 153 Or. App. 176, 1998 Ore. App. LEXIS 420
CourtCourt of Appeals of Oregon
DecidedApril 1, 1998
Docket97-2034; CA A97846
StatusPublished

This text of 956 P.2d 1039 (State ex rel. Holland v. City of Cannon Beach) 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. Holland v. City of Cannon Beach, 956 P.2d 1039, 153 Or. App. 176, 1998 Ore. App. LEXIS 420 (Or. Ct. App. 1998).

Opinions

DEITS, C. J.

Plaintiff-relator (plaintiff) appeals from the trial court’s dismissal for lack of jurisdiction of his mandamus action under ORS 227.178(7). We affirm.

On March 3, 1995, the governing body of the City of Cannon Beach made a final decision denying plaintiffs application for a subdivision. Plaintiff appealed the decision to LUBA and a series of decisions by that body, this court and the Supreme Court ensued. The appellate process culminated in a remand by LUBA to the city, pursuant to our instructions in Holland v. City of Cannon Beach, 142 Or App 5, 920 P2d 562, rev den 324 Or 229 (1996). The city did not make a new decision on the application within 120 days following LUBA’s remand, and petitioner brought this action.

ORS 227.178(1) provides:

“Except as provided in subsections (3) and (4) of this section, the governing body of a city or its designee shall take final action on an application for a permit, limited land use decision or zone change, including resolution of all appeals under ORS 227.180, within 120 days after the application is deemed complete.” (Emphasis supplied.)

ORS 227.178(7)(b) provides, in material part, that if the city fails to “take final action * * * 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 designee to issue the approval.”

The city moved to dismiss the action, asserting that the time limit of ORS 227.178(1) and the mandamus remedy of ORS 227.178(7) apply only to a city’s original processing of a land use application and, concomitantly, that they have no application to a city’s proceedings after the remand of a land use decision by LUBA. The trial court agreed and dismissed the action. Its order explains:

“The City’s March 3, 1995 final decision denying [the] subdivision application was the ‘final action’ required by [179]*179ORS 227.178(7). The City discharged its sole obligation under this statute when it rendered that decision.
"*****
“The 120-day mandamus statute in ORS 227.178(7) has no applicability or relevance once the local government has discharged its obligation under the statute to ‘take final action,’ and more specifically, the 120-day mandamus statute does not apply to proceedings on remand from LUBA.”

Plaintiff argues on appeal that the trial court erred in so concluding and that the statutory time limit and remedy should be construed as applying to city proceedings that follow from a remand by LUBA as much as to the original city proceedings that occur immediately after the filing of a completed application.1

The plain language of the statute is inconsistent with plaintiff’s argument. Both ORS 227.178(1) and (7) clearly provide that the 120-day period runs from the time that the “application is deemed complete.” Plaintiff argues that that language in the statute does not preclude an interpretation that it also can encompass and apply anew to the period following a LUBA remand of the final decision that the city made in its initial consideration of the application. We do not find that argument persuasive. The statute specifies only one time and one event from which the running of the 120-day period is to be measured, which is the time the application is deemed complete. Although the statute does not expressly say that the period does not run from any other time or event, such as the date of LUBA’s remand, the legislature is not required to specify that a statute that clearly states that it applies to one thing does not also apply to other things.

Plaintiff relies for his next argument on Smith v. Douglas County, 308 Or 191, 777 P2d 1377 (1989). The petitioner in that case contended that the policy of expedition in the decision of land use matters, as reflected in ORS 215.428 (the county analog of ORS 227.178), was contrary to a LUBA [180]*180remand that allowed the county to address issues that it had not disposed of in its original decision, in which it had denied the petitioner’s permit application and which was the decision being reviewed by LUBA and the Supreme Court. The petitioner sought, in effect, for the county’s denial of his application to be reversed outright rather than remanded to the county. The Supreme Court rejected his argument. Here, plaintiff relies on passing references to ORS 215.428 in the court’s opinion in Smith. However, to the extent that Smith says anything relevant to this question, it is not helpful to plaintiff. The court noted that “[pjetitioner’s argument is not that the comity board did not issue a final order within 120 days, as of course it did when it denied the permit,” i.e., when it made the original decision on the petitioner’s application. Id. at 195. Smith has no consequential bearing on the question about the meaning of ORS 215.428 and ORS 227.178 that is presented in this case.

Plaintiff also looks to general statutory policy to support his reading of this statute. He notes that ORS 197.805 declares the legislative policy that “time is of the essence in reaching final decisions in matters involving land use.” However, the legislature has implemented that policy through various provisions setting time limits for the review procedures and decisions by LUBA and this court. E.g., ORS 197.830(13); ORS 197.855. ORS 215.428(1) and ORS

Related

State Ex Rel. Fraley v. Deschutes County Board of Commissioners
948 P.2d 1249 (Court of Appeals of Oregon, 1997)
Department of Land Conservation & Development v. Jackson County
948 P.2d 731 (Court of Appeals of Oregon, 1997)
Smith v. Douglas County
777 P.2d 1377 (Oregon Supreme Court, 1989)
Holland v. City of Cannon Beach
920 P.2d 562 (Court of Appeals of Oregon, 1996)
Grijalva v. Safeco Insurance Co. of America
956 P.2d 995 (Court of Appeals of Oregon, 1998)
Blatt v. City of Portland
819 P.2d 309 (Court of Appeals of Oregon, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
956 P.2d 1039, 153 Or. App. 176, 1998 Ore. App. LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-holland-v-city-of-cannon-beach-orctapp-1998.