Brooks v. Dierker , 23 Or. App. 90 ( 1975 )

LEE, J.

Plaintiff appeals from the decree in a declaratory judgment proceeding which tested the validity of a sewage disposal permit. The permit was “granted” June 5, 1972 by the Jackson County health officer who is one of the defendants. Issuance of the permit was first appealed pursuant to the then governing “Sewage Disposal Ordinance of 1970” (hereinafter the “1970 ordinance”). This appeal was heard July 12, 1972 by the Jackson County Planning Commission which ordered the county health officer to “stay” the permit. On August 9,1972, that commission found “no error” and referred the appeal back to the health officer who thereafter notified plaintiff that his design was satisfactory and his permit was “reinstated.”

The stipulated facts are that “by Order entered October 18, 1972, nunc pro tunc August 9, 1972” the “Jackson County Sewage Disposal Ordinance of 1972” (hereinafter the “1972 ordinance”) was adopted. Section 22 thereof contained a savings clause as follows:

“A sewage disposal permit obtained from the health officer under the provisions of the Jachson County Sewage Disposal Ordinance of 1970 shall continue in effect following the adoption date of this ordinance.” (Emphasis supplied.)

On August 22, 1972, the county undertook a second appeal, this time to appeal the reinstatement of the permit. The second appeal was purportedly taken pursuant to the appeal provisions of the 1972 ordinance. On December 26, 1972, plaintiff was notified that the permit issued June 5,1972, was revoked.

Between the date of the reinstatement of the permit and the receipt of notice of the further appeal on August 22,1972, the plaintiff invested substantial time and money in reliance on the permit. Estoppel, however, is not the basis for our decision.

Plaintiff contends, inter alia, that the permit issued under the 1970 ordinance remained valid under the savings clause of the 1972 ordinance and the attempted further appeal was a nullity.

Defendants contend that the results of the second appeal are controlling and that the appeal was fully authorized by the terms of the 1972 ordinance, which was made retroactive nunc pro tunc. We cannot agree with the county’s contentions for the following reasons.

Under the terms of the 1970 ordinance the Planning Commission in considering the first appeal was “limited to interpretations of the ordinance.” By the stipulated facts defendants admitted that on the first appeal the Planning Commission “found no error” in the defendant county health officer’s interpretation of the ordinance. Nevertheless, the county health officer did make certain “additional tests” then gave both oral and written notice to plaintiff that his permit was “reinstated.”

Regarding the nunc pro tunc aspect of the 1972 ordinance, in Morgan v. Morgan, 13 Or App 14, 20, 507 P2d 409, Sup Ct review denied (1973), we dealt with a similar question as to the possible retroactivity of the “no-fault” divorce law. The plaintiff filed his divorce complaint prior to the effective date of the new law. The court said:

“Thus, by filing his complaint prior to October 1,1971, plaintiff obtained the right to have his case tried and determined under the old law, notwithstanding the amendment or repeal of those provisions by the new law, effective October 1, 1971. Likewise the defendant was entitled to the same right. * * *”

Accordingly, we conclude that the appeal provisions of the 1972 ordinance have no application to the present case; and the savings clause of the 1972 ordinance makes the appeal provisions of the 1970 ordinance controlling.

In other words, we interpret the savings clause to mean that inasmuch as plaintiff’s permit was “granted” on June 5, 1972 under the 1970 ordinance, his permit would continue in effect unless and until modified or revoked in review proceedings under the 1970 ordinance. The effect of the savings clause was to make it unnecessary for plaintiff to start ab initio under the 1972 ordinance.

In our view, this savings clause shows an unmistakable legislative intent to provide that all permits which were processed, or are being processed, under the 1970 ordinance must continue to be processed thereunder notwithstanding its repeal by the 1972 ordinance.

We cannot agree, however, with plaintiff’s argument that the savings clause necessarily caused the vesting of his permit. This is so because plaintiff’s permit was still in the governmental process by reason of the county’s second appeal.

Even though plaintiff’s permit was reinstated by the health officer, the county was entitled to a further appeal to the Planning Commission pursuant to the 1970 ordinance to ascertain whether the health officer correctly interpreted the 1970 ordinance in the process of reconsidering and reinstating plaintiff’s permit.

Thus, the review by the Planning Commission on the second appeal must be confined to any interpretation of new matter made by the health officer in reinstating the permit. This follows from the fact that the defendants admitted in their answer that the Planning Commission, in considering the first appeal, concluded that the health officer had made “no error” in interpreting the ordinance.

Reversed and remanded for further proceedings not inconsistent with this opinion.