Argued and Submitted: February 12, 2014.
Jackson County Circuit Court. 111620Z3. Daniel Leon Harris, Judge.
Eugene V. Anderson argued the cause for appellant. With him on the briefs was Davis, Hearn, Bridges & Anderson.
Mark S. Bartholomew argued the cause for respondent. With him on the brief were Ryan J. Vanderhoof and Hornecker, Cowling, Hassen & Heysell, L.L.P.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[262 Or.App. 438] LAGESEN, J.
The trial court entered a judgment granting mandamus relief to respondent Gary Schrodt under ORS 215.429. The
judgment ordered Jackson County (the county) to approve Schrodt's land use application, which requested that the county broaden the categories of commercial uses permitted on Schrodt's residentially zoned property. Schrodt's neighbor, appellant Harold Hardesty, who intervened below, appeals that judgment, raising two primary issues: (a) whether Schrodt's application is the type of application for which ORS 215.429 authorizes mandamus relief, and (b) if so, whether the trial court erred when it concluded that the approval of the application would not violate any substantive provision of the Jackson County Land Development [262 Or.App. 439] Ordinance (JCLDO). We affirm, concluding that (a) Schrodt's application qualifies as an " application for a permit" within the meaning of ORS 215.429 and, thus, is subject to the mandamus procedures authorized by that statute; and (b) Hardesty's failure to provide this court with the transcript of the trial court's evidentiary hearing on the petition precludes review of whether the trial court erred in determining that Hardesty had not proved that approval of Schrodt's application would violate substantive provisions of the JCLDO.
Schrodt owns 2.39 acres of land in Jackson County. The land is zoned Rural Residential-5 (RR-5) and is located just outside the urban growth boundary of Ashland. In 1990, Schrodt obtained a Conditional Use Permit (CUP), issued under the county's previous land development ordinance. The CUP authorized Schrodt to manufacture and sell bird feeders on his property, notwithstanding its residential zoning. Pursuant to the CUP, Schrodt constructed a 21,000-square-foot warehouse in which to conduct his bird-feeder business. He sold the business in 2005, and the new owner transferred the business out of state, leaving Schrodt with an empty warehouse.
Schrodt wanted to lease the warehouse for other commercial uses, so he consulted with the county planning department to determine what other commercial uses would be authorized on the property under the 1990 CUP and the JCLDO. The then-planning manager suggested that Schrodt submit an application for a written interpretation of the JCLDO under JCLDO 3.9. Specifically, the planning [262 Or.App. 440] manager recommended that Schrodt request a written interpretation of JCLDO 6.2.3 and JCLDO 6.3.3, the provisions governing the approval of " unlisted uses" in a zoning district.
In January 2006, Schrodt, 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." Rather than completing the form, Schrodt attached a 19-page typewritten document explaining what he was asking the planning director to
decide. In that document, Schrodt explained that his objective was " to establish an administrative procedure whereby * * * new uses can be evaluated." The application noted that the existing CUP was specific to Schrodt's bird-feeder business, and that Schrodt's goal was to broaden that approval to encompass other uses similar in scope to the bird-feeder operations " to make it possible for new tenants to assume occupancy in a timely manner by contacting the County, providing a brief description of their business, obtaining agreement that their use is no more 'intense' than the current use, and agreeing to comply with conditions of this interpretation and previous approvals." The application identified a number of categorical uses that, in Schrodt's view, were similar enough in scope to the bird-feeder business that the county should interpret the JCLDO and the existing CUP to authorize those uses, subject only to a ministerial review by the county of a specific proposed use.
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 [262 Or.App. 441] conditions. In that decision, the planning manager observed that, in requesting an interpretation of the unlisted uses provisions of the JCLDO, Schrodt (and, evidently, the previous planning manager) had " misconstrued" that provision " and applied [it] in a way not intended by the code." The planning manager concluded that " the nature of the review is more appropriately oriented toward a Land Use Interpretation of how similar (not unlisted) uses can be accommodated on the site," and that, as a result, " the application [was] best reviewed under the Non-Conforming Use provisions of the code," namely, JCLDO chapter 11 (eff 2/13/2005). Viewing the application in that manner, the planning manager concluded that Schrodt could use the warehouse for some, but not all, of the commercial purposes identified in the land use application, subject only to a ministerial review by the county. Specifically, the planning manager concluded:
" The applicant is approved for uses similar to those which have already been approved for the warehouse and historical abattoir building and are otherwise considered low impact activities associated with the zoning district as defined in the following conditions:
" 1. The following uses are allowed in the Warehouse through a Type 1 (LUI or SPR) Review, subject to other conditions ...