Murphy Citizens Advisory Committee v. Josephine County , 123 Or. App. 539 ( 1993 )

WARREN, P. J.,

dissenting.

In Edney v. Columbia County Board of Commissioners, 119 Or App 6, 849 P2d 1125, rev allowed 317 Or 162 (1993), and the cases cited there, we analyzed the relationship between the mandamus procedure under ORS 215.428(7) and the land use decision and review scheme under other land use statutes. We concluded that the two are difficult to harmonize: The other statutes require counties to make land use decisions on the merits of permit applications, while ORS 215.428(7) enables counties to avoid that duty by delay and to allow the approval of permits to be judicially compelled without a local decision or LUBA review on the merits. We reconciled the statutes in Edney by holding that the mandamus procedure ceases to be available if a county makes a land use decision on the application at any time before a final judgment is rendered in a mandamus action brought to compel its approval.

The difference between this case and Edney is that, there, the county made a decision on the merits and denied the application while the action was pending. Here, the county entered into an agreement to settle the action, without reference to or any consideration of the merits of the application.¹ The majority concludes that the settlement agreement was nevertheless a “land use decision” as defined in ORS 197.015(10), because it involved the application of the county’s land use regulations. The majority reasons that the settlement was not simply an agreement by the county to the outright approval of the permit that the applicant sought in the mandamus proceeding; rather, it entailed an application of land use regulations because the settlement document incorporated the conditions of approval that the county planning commission had attached to its earlier approval of the permit.

In my view, the majority’s reasoning is flawed for two interrelated reasons: It contorts the settlement document to make it fit the ORS 197.015(10) definition, and it completely disregards the bearing that ORS 215.428(7) has on the question. At the relevant time, the planning commission’s decision was not final or authoritative; it had been appealed to the governing body and was pending before that body at the time that the mandamus action was brought. The governing body’s acquiescence in the settlement did not purport to apply any land use standards but, like any other settlement, was simply a consensual means of ending the litigation on terms that both parties contracted to accept. The fact that the settlement did not give the applicant all that it originally sought does not mean that it was any the less a settlement— or any the more a land use decision; it is hardly novel for litigation to be settled on terms less favorable to the plaintiff than those it initially sought to obtain.

By the majority’s reasoning, even after a peremptory writ has issued in an ORS 215.428(7) proceeding, a county’s action that formalizes its compliance with the court’s order would be a land use decision, reviewable by LUBA. No less than the settlement here, a county order in that situation would come within the linguistic contours of ORS 197.015 (10). In both instances, however, no decision concerning land use or land use regulations would have been made. See Gearhart v. Klamath County, 22 Or LUBA 377 (1991). In the hypothetical, the “decision” would simply be one to comply with the court’s order and, here, the “decision” was simply one to allow the permit to issue through the mandamus action rather than through the county’s own decisional process. The settlement of an action is as much a part of the litigation process as is the satisfaction of a compulsory judgment.

The effect of the majority’s holding falls little short of a judicial repeal of ORS 215.428(7). There is little left of that statute if the dispositional event in an action under it is treated as a land use decision, and the relief that was obtained in the action is thus made subject to LUBA’s review and reversal. Implicit in petitioner’s argument and the majority’s reasoning is that any other result would undermine the statutory land use scheme and enable counties to circumvent it. That is true, but that is also precisely what ORS 215.428(7) allows. It is up to the legislature to decide whether to repeal or retain the statute.

I dissent.

1 As the majority notes, a direct appeal from the judgment in the mandamus action is pending before this court. Nothing in this opinion implies a view on the merits of that action or that appeal.