State ex rel. Moore v. City of Fairview

13 P.3d 1031, 170 Or. App. 771
CourtCourt of Appeals of Oregon
DecidedNovember 8, 2000
Docket9805-03699; CA A106399
StatusPublished
Cited by1 cases

This text of 13 P.3d 1031 (State ex rel. Moore v. City of Fairview) 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. Moore v. City of Fairview, 13 P.3d 1031, 170 Or. App. 771 (Or. Ct. App. 2000).

Opinion

BREWER, J.

In this mandamus action, the City of Fairview (the city) appeals from the peremptory writ ordering it to return $13,345.88 that plaintiff-relator (plaintiff) paid “under protest” as a sewer and water connection fee for a residential subdivision. Plaintiff cross-appeals from the court’s refusal to award him attorney fees. We reverse on the appeal and affirm on the cross-appeal.

The relevant facts are undisputed. In June 1997, the city approved plaintiffs application for approval of the preliminary subdivision plan and a related conditional use permit. The approval was subject to several conditions, including the payment of “water [and] sanitary sewer” fees and “condition c,” which states that “a reimbursable[1] agreement with downstream developers (Silent Creek and Creekside) may be required, but is not yet available.” The city’s decision was not appealed to the Land Use Board of Appeals (LUBA).

The Silent Creek development to which condition c refers is a subdivision that is adjacent to and substantially larger than plaintiffs. It was approved by the city more than a year before the decision approving plaintiffs application, and sewer and water facilities capable of serving plaintiffs and a number of other developments were installed in the public right-of-way as part of the Silent Creek development. However, at the time that plaintiffs application was approved, the city had not yet adopted general legislation authorizing the establishment of “reimbursement districts,” nor had it adopted specific legislation to provide for the reimbursement of Silent Creek. Such general and specific legislation were adopted by the city in July 1997 and March 1998 respectively.

Shortly after the city’s adoption of the resolution creating the “Silent Creek reimbursement district,” plaintiff was informed by city personnel that he would not be permitted to [774]*774make necessary sewer and water connections for his subdivision unless he paid the required amount to the reimbursement district.2 Plaintiff paid the fee under protest and then brought this mandamus action. His only theory as to why the city has a mandatory duty that the courts may compel it to perform is that requiring him to pay the connection fees finalized after his subdivision was approved is a violation of ORS 92.040(2). That statute provides:

“After September 9, 1995, when a local government makes a decision on a land use application for a subdivision inside an urban growth'boundary, only those local government laws implemented under an acknowledged comprehensive plan that are in effect at the time of-application, shall govern subsequent construction on the property unless the applicant elects otherwise.”

The trial court evidently agreed.3 It granted plaintiffs motion for summary judgment and ordered the issuance of the peremptory writ.

The city makes several assignments of error, but its threshold contention is that the court lacked mandamus jurisdiction because plaintiff had a “plain, speedy, and adequate remedy” at law in the form of a writ of review or a declaratory judgment action. The city also contends that, by not appealing to LUBA from the decision approving his application and challenging condition c in that manner, plaintiff “waived his right to challenge the legality of [the] fees” in the present action. Although not styled as such, we think that the city’s second contention presents a more basic jurisdictional problem than its first. The second contention gives rise to the question of whether the controversy is subject to LUBA’s exclusive jurisdiction and cannot be brought in circuit court at all, while the first contention pertains only to the availability of mandamus relief as opposed to some other form of judicial remedy.

[775]*775The parties do not appear to question — nor can it be seriously questioned — that the city’s approval of plaintiffs subdivision was a “land use decision” that could have been appealed to LUBA pursuant to ORS 197.825. Given that fact, this case bears a marked similarity to State ex rel J.C. Reeves Corp. v. City of Portland, 131 Or App 578, 886 P2d 1095 (1994), rev den 320 Or 569 (1995). This court explained the facts there:

“In 1991, the City of Portland granted the application of plaintiffs’ predecessor in title for a planned unit development (PUD). The approval was made subject to a number of conditions, including condition H. The City’s decision was not appealed to LUBA. In 1993, plaintiffs brought this mandamus action, seeking to compel the city to issue permits and in other ways implement the 1991 decision with condition H deleted from it. Plaintiffs contend that the underlying standards and criteria that the condition embodies were not in effect when the PUD application was submitted; therefore, plaintiffs reason, the city’s imposition of the condition was contrary to ORS 227.178(3), which generally requires the approval or denial of permit applications to be based on standards and criteria that existed at the time of submission.” Id. at 580.

In rejecting the plaintiffs argument that the case came within the narrow exceptions set forth in ORS 197.825(3)(a) to LUBA’s exclusive jurisdiction over land use decisions, the court said:

“[W]e have repeatedly held that circuit court jurisdiction under ORS 197.825(3)(a) is very limited in nature, and the clearest of the situations in which it does not arise is where the essence of the claim is that there was error in a land use decision that was or could have been reviewed through the LUBA process. See City of Oregon City v. Mill-Maple Properties, Inc., 98 Or App 238, 779 P2d 172 (1989).
“There is no doubt that the city’s 1991 decision was appealable to LUBA or that, had it been appealed, any asserted error about condition H could have been reviewed. Plaintiffs argue that, notwithstanding that, condition H is void and invalid and that ORS 197.825(3)(a) is available as a means of‘enforcing5 state and city land use laws by having [776]*776the invalidity of the condition declared. Plaintiffs argument depends on a radical — and maybe ingenious — misreading of our cases construing ORS 197.825(3)(a). We reiterate that recourse to circuit court under that statute is not permissible in order to obtain what amounts to a holding that a land use decision that was appealable to LUBA is erroneous. That is precisely the relief that plaintiffs seek here, and the trial court correctly held that it lacked jurisdiction to provide it.” Id. at 580-81 (emphasis in original; footnote omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
13 P.3d 1031, 170 Or. App. 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-moore-v-city-of-fairview-orctapp-2000.