Edney v. Columbia County Board of Commissioners
Edney v. Columbia County Board of Commissioners
Opinion of the Court
Plaintiffs in this mandamus proceeding seek review of the Court of Appeals’ decision reversing the trial court’s peremptory writ of mandamus and remanding the case with instructions to dismiss. Edney v. Columbia County Board of Commissioners, 117 Or App 385, 844 P2d 251 (1992), modified on reconsideration 119 Or App 6, 849 P2d 1125 (1993). For the reasons that follow, we affirm the decision of the Court of Appeals on reconsideration, on different grounds.
In June 1990, plaintiffs applied to Columbia County (county) for a zone change and amendment to Comprehensive Plan Map 1. The amendment would have resulted in a change in the zoning of their 80-acre parcel from Primary Forest (PF-76) to Forest Agricultural (FA-19). Under the county’s zoning ordinances, reclassification of PF-76 land to FA-19 land requires an amendment to the Columbia County Comprehensive Plan. The county therefore treated plaintiffs’ application as one for a comprehensive plan amendment and a zone change. Because the application involved an amendment to an acknowledged comprehensive plan that requires the application of statewide land use planning goals, the county was required to submit the proposed amendment to the Department of Land Conservation and Development (DLCD) at least 45 days before a final hearing on the matter. ORS 197.610.
On November 14, 1990, the county held a public hearing on plaintiffs’ application. The Columbia County Planning Commission recommended approval of the application. DLCD recommended denial of the application, because
On April 1, 1991, plaintiffs filed a petition for an alternative writ of mandamus in circuit court alleging that, because the Board had failed to take final action on their application within 120 days, ORS 215.428(7)
The Court of Appeals initially held that, because plaintiffs’ application involved an amendment to a comprehensive plan, the 120-day limitation contained in ORS 215.428(7) did not apply to the application. Therefore, the court reversed the circuit court and remanded the case with instructions to dismiss. Edney v. Columbia County Board of Commissioners, supra, 117 Or App at 389. On reconsideration, the Court of Appeals modified its earlier opinion, basing its reversal on the ground that the circuit court lost subject matter jurisdiction over the action at the time the Board issued its final order denying plaintiffs’ application. Edney v. Columbia County Board of Commissioners, supra, 119 Or App at 12.
Before this court, plaintiffs argue that the Court of Appeals’ interpretation of ORS 215.428(7) renders the statute meaningless and that the Board’s unilateral action in issuing a final order on plaintiffs’ application should not deprive the circuit court of mandamus jurisdiction.
Like ORS 215.428(1), ORS 215.428(7) applies to applications “for a permit, limited land use decision or zone change.” In their petition for an alternative writ of mandamus, plaintiffs described their application pending before the Board as a “request for a zone change.” The relief sought was that the circuit court should direct the Board to approve plaintiffs’ “request for re-zoning.” Plaintiffs did not mention in their petition that an amendment to the comprehensive plan was necessary to effect their requested zone change. The Board’s motion to dismiss was accompanied by the Board’s final order, which states at the outset:
“This matter came before the Board * * * for hearing on November 14, 1990 pursuant to a recommendation by the Columbia County Planning Commission to approve the application of Dr. Stephen and Sally Edney for a Comprehensive Plan Amendment and Zone Change * * (Emphasis added.)
As noted, the zone change at issue here was not permissible under the county’s comprehensive plan without a plan amendment. Thus, under the county’s comprehensive plan, it was not possible for the Board to grant plaintiffs’ zone change separately from their requested plan amendment.
An application for a zone change appears to fall within the 120-day rule set forth in ORS 215.428(1) and (7), based on the use of the phrase “zone change” in those provisions. However, subsections (1) and (7) must be read in context. That context includes the exceptions to the 120-day rule contained in the other parts of ORS 215.428. ORS
Plaintiffs argue, however, that there is no reason not to apply the 120-day rule here. They argue that the reason for the exception contained in subsection (6) is to give DLCD time to respond but that, in this case, DLCD responded within 120 days. Whatever may be the reason for the inclusion of subsection (6) in the statute, the fact that DLCD did not need the time to respond in this particular case cannot serve to enlarge the limited mandamus remedy available under ORS 215.428(7).
Plaintiffs advance other reasons why their requested zone change should not be considered an “amendment” to the comprehensive plan. Those arguments, however, ignore the plain words of the plan, which state that a plan amendment is required to rezone PF-76 land to FA-19 land. Rezoning plaintiffs ’ property from PF- 76 to FA-19 would require an amendment to the county’s comprehensive plan.
Finally, plaintiffs argue that applying the limitation of ORS 215.428(6) to facts such as these might lead governing bodies to amend their comprehensive plans to require plan amendments for all rezoning, thus defeating the purpose of the 120-day time limitation. However, our task is to announce what the statute means. Whether such a state of
ORS 215.428(7) allows circuit courts to issue writs of mandamus under limited circumstances. Those circumstances are not present here, because plaintiffs’ application required an amendment to the comprehensive plan, thus triggering the exceptions to the 120-day rule contained in ORS 215.428(6). Accordingly, the appropriate disposition here is dismissal of the action for want of subject matter jurisdiction.
The decision of the Court of Appeals on reconsideration is affirmed, on different grounds. The case is remanded to the circuit court, with instructions to vacate the peremptory writ of mandamus and dismiss the proceeding.
ORS 197.610(1) provides:
“Aproposal to amend alocal government acknowledged comprehensive plan or land use regulation or to adopt a new land use regulation shall be forwarded to the director at least 45 days before the final hearing on adoption. The proposal forwarded shall contain the text and any supplemental information that the local government believes is necessary to inform the director as to the effect of the proposal. The director shall notify persons who have requested notice that the proposal is pending.”
ORS 215.428 provides in part:
“(1) Except as provided in subsection (3) [standards applicable at time of application] and (4) [extensions at request of applicant] of this section, the governing body of a county 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 under ORS 215.422, within 120 days after the application is deemed complete.
“(6) Notwithstanding subsection (5) [120-day period does not apply to decision not wholly within control of governing body or where parties have agreed to mediation] of this section, the 120-day period set in subsection (1) of this section does not apply to an amendment to an acknowledged comprehensive plan or land use regulation or adoption of a new land use regulation that was forwarded to the director under ORS 197.610(1).
“(7) If the governing body of the county 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 county comprehensive plan or land use regulations as defined in ORS 197.015.” (Emphasis added.)
Plaintiffs also make constitutional arguments that are based on asserted errors in the Court of Appeals’ modified opinion in this case. Those arguments rest on the premise that plaintiffs have a mandamus remedy under ORS 215.428(7). Because we hold that that statute does not entitle plaintiffs to a mandamus remedy, those arguments are not relevant.
Reference
- Full Case Name
- Stephen M. and Sally W. EDNEY, on Review v. COLUMBIA COUNTY BOARD OF COMMISSIONERS, comprised of Michael Sykes, Jack Peterson and Dale Heimuller, on Review
- Cited By
- 3 cases
- Status
- Published