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Culver v. Sheets

May 14, 1973

CULVER, APPELLANT,
v.
SHEETS ET AL, RESPONDENTS



Appeal from Circuit Court, Tillamook County. J. S. Bohannon, Judge.

Warren A. McMinimee, Tillamook, argued the cause for appellant. With him on the briefs were McMinimee & Kaufman, Tillamook.

Lee S. Werdell, District Attorney, Tillamook, argued the cause for respondents. With him on the brief was William H. Bowyer, Deputy District Attorney, Tillamook.

Schwab, Chief Judge, and Fort and Thornton, Judges.

Schwab

Petitioner seeks a writ of mandamus requiring the Board of County Commissioners for Tillamook County, its planning directors and building permit officer to issue a permit authorizing petitioner to construct a motel and restaurant on his oceanfront property in Twin Rocks.

Petitioner's application for a conditional use permit was approved by the Tillamook County Planning Commission.*fn1 Persons living in the area adjacent to petitioner's property appealed that decision to the board of county commissioners, which reversed the planning commission. Petitioner was denied a writ of mandamus by the circuit court.

Petitioner contends that no proper appeal was ever filed with the board of county commissioners, and hence it was without jurisdiction to review the decision of the planning commission. He further contends that even assuming that it had jurisdiction, the board of county commissioners acted arbitrarily and capriciously in revoking the conditional use permit previously authorized by the planning commission.

I

Petitioner applied for the conditional use permit April 1, 1971. Public hearings were conducted April

22, May 13 and August 26, 1971. The minutes of the May 13 meeting reflect that a motion was passed that "'the conditional use be granted, however, final location of the motel and design must be submitted to the Planning Commission for approval.'" The people in attendance were advised that no further public hearings on the matter were required, and the appeal procedure was explained to them.

Mr. Kerrigan, the attorney for those opposed to the granting of the conditional use, wrote to each of the county commissioners the day after the May 13 meeting. The letter said, in pertinent part: "* * * I am herewith filing notice of appeal from the decision of the Planning Commission * * *." The board replied that it did not consider the planning commission's action to be a final decision, and consequently rejected the appeal as untimely. At the meeting on August 26, 1971, the planning commission gave its final approval to petitioner's conditional use application.

Thereafter, Mr. Kerrigan engaged in correspondence with both the planning commission and the board of county commissioners, requesting copies of pertinent motions, and advising both commissions:

"This is also notice of the intention of my clients to file an appeal concerning the decision of the Tillamook County Planning Commission's allowance of the building of the Twin Rocks Motel complex."

The Tillamook County Zoning Ordinance makes the following provisions for appeals from decisions ...


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