Posted by: Patricia Salkin | April 29, 2014

Oregon Court of Appeals Finds that Mandamus Relief May be Sought When a County Fails to Render a Final Decision on that Application within the Statutory Time Frame

Plaintiff Schrodt owned 2.39 acres of land in Jackson County. Through an agent, submitted the application suggested by the planning manager. In accordance with the planning manager’s suggestion, Schrodt denominated the application as an “Application for Written Interpretation of Unlisted Uses LDO Sections 3.9, 6.2.3 and 6.3.3” and used the planning department’s designated form for “Type 2 Review: Written Interpretation, Unlisted Uses.” In May 2006, the Jackson County Planning Division (planning division), through its planning manager—a different planning manager than the one who had advised Schrodt as to what type of application to submit—issued a preliminary partial approval of the application, with certain conditions. The trial court entered a judgment granting mandamus relief to respondent Gary Schrodt under ORS 215.429.1 The judgment ordered Jackson County (the county) to approve Schrodf’s land use application, which requested that the county broaden the categories of commercial uses permitted on Schrodf’s residentially zoned property. Schrodf’s neighbor, appellant Harold Hardesty, appealed that judgment.

Hardesty asserted that because the JCLDO defines “development” differently from “use,” a request for the discretionary approval of a proposed use of land does not qualify as a request for “discretionary approval of a proposed development of land” under ORS 215.429. The court discussed that Hardesty’s argument fails because we do not look to the JCLDO to determine what the legislature meant by the word “development” in ORS 215.429. Looking at the text and context of ORS 215.429 the court found that this demonstrated that the legislature intended the term “proposed development of land” to encompass a proposed change in use of the land. Hardesty further argued that ORS 215.429 authorizes a trial court to order a county to take ministerial actions only, and because the approval of Schrodt’s permit application requires the exercise of discretion, it is not subject to the statutory mandamus procedures. The court found that argument also failed because it is contrary to the terms of ORS 215.402 and ORS 215.429, which plainly authorize a trial court to order a county to approve an application for a “discretionary approval of a proposed development of land.” ORS 215.429.
Accordingly, the court found that Schrodt’s application for approval to change the commercial uses in which his warehouse can be employed constitutes an “application for a permit” within the meaning of ORS 215.429. Therefore, because the county failed to render a final decision on that application within the statutory time frame, Schrodt was entitled to seek mandamus relief under ORS 215.429

State ex rel. Schrodt v. Jackson County, 262 Or. App. 437 (Or. App. 2014)

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