Jackson County Circuit Court 111620Z3. Daniel Leon Harris, Judge.
On respondent's amended petition for attorney fees and costs and disbursements filed May 7, 2014; appellant's response filed May 22, 2014; and respondent's reply filed June 2, 2014. Opinion filed April 23, 2014. 262 Or.App. 437, 324 P.3d 615.
Eric B. Mitton and Hornecker Cowling LLP, for petition and reply.
Eugene V. Anderson and Davis, Hearn, Anderson & Turner, PC, for response.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[265 Or.App. 521] LAGESEN, J.
Respondent Gary Schrodt, who prevailed in State ex rel Schrodt v. Jackson County, 262 Or.App. 437, 324 P.3d 615 (2014), petitions this court for an award of attorney fees and costs and disbursements on appeal under ORS 34.210(2) against appellant Harold Hardesty. That statute authorizes a discretionary award of attorney fees in mandamus proceedings, including proceedings--such as the instant case--to compel local governments to act on land use applications. See State ex rel Aspen Group v. Washington County, 166 Or.App. 217, 996 P.2d 1032 (2000). Respondent seeks attorney fees in the amount of $15,328. For the reasons that follow, we exercise our discretion to award respondent attorney fees in the amount of $9,630.80.
This petition arises out of an appeal of a trial court judgment granting mandamus relief to respondent under ORS 215.429, requiring Jackson County (the county) to approve respondent's land use application. Appellant, who is respondent's neighbor and intervened below, brought the appeal; the county did not participate in the appeal. In
five assignments of error, appellant raised two primary issues on appeal: (1) " whether [respondent's] application is the type of application for which ORS 215.429 authorizes mandamus relief" ; and (2) 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 Ordinance." Schrodt, 262 Or.App. at 438-39. We affirmed the trial court's decision to grant mandamus relief. Id. at 450. In so doing, we resolved the first assignment of error on the merits, we rejected the second and third assignments of error for the procedural reason that appellant had not provided an adequate record for appellate review (specifically, appellant had not provided the transcript of the trial court's evidentiary hearing on the mandamus petition), and we summarily rejected the fourth and fifth assignments of error, which challenged only the wisdom of the legislature's decision to enact ORS 215.429.
[265 Or.App. 522] As noted above, ORS 34.210 authorizes us to designate a prevailing party in a mandamus proceeding and to award attorney fees to that party. ORS 34.210(2); see Aspen Group, 166 Or.App. 217, 996 P.2d 1032; see also ORS 19.440 (authorizing fees on appeal if fees are authorized by another statute that neither expressly authorizes nor expressly prohibits fees on appeal). ORS 20.075, in turn, governs our discretionary determination whether to award attorney fees and, if so, how much. ORS 20.075(1)-(2); see Aspen Group, 166 Or.App. at 219-20. Where, as here, the party against whom fees are sought is an intervenor in the proceeding, we have concluded that ordinarily an award of fees will be outside the permissible range of a court's discretion, " absent some finding of 'meritlessness or unreasonableness' on the part of the intervenor." Niman and Niman, 206 Or.App. 400, 423, 136 P.3d 1186 (2006) (quoting Aspen Group, 166 Or.App. at 226). Thus, in Aspen Group, we concluded that the trial court " acted beyond the permissible scope of its discretion" when it awarded attorney fees against the intervenor in a land use mandamus case under former ORS 215.428 (1995), repealed by Or Laws 1999, ch 393, § 2, because (1) in such a case, the need for litigation arises from the local government's dereliction, not the intervenor's conduct; (2) the intervenor's defenses in the matter were objectively reasonable; and (3) an award of attorney fees against an intervenor in such a case " would serve to deter other citizens from participating in good faith in mandamus actions that are necessitated by the failure of local governmental authorities to perform their statutory land use decisionmaking responsibilities." 166 Or.App. at 227.
Applying those considerations here, we conclude that an award of a portion of the attorney fees requested on appeal is appropriate under the circumstances of this case. As in Aspen Group, this litigation arose not from appellant's conduct, but from Jackson County's dereliction. In addition, we cannot say that appellant's pursuit of this appeal, as a whole, was objectively unreasonable, and are mindful, as [265 Or.App. 523] in Aspen Group, that an award of attorney fees could deter other citizens from participating in a mandamus action resulting from a local government's dereliction.
Nonetheless, four of the five assignments of error raised by appellant on this appeal were not objectively reasonable under the circumstances. Again, two of the assignments of error simply contested the fairness of the procedure that the legislature indisputably authorized when it enacted ORS 215.429. And another two assignments of error--which may or may not have been meritorious--were not presented to us in a reasonable way, because appellant did not provide us with a sufficient record of the proceedings in the trial court to permit review of the assigned errors. In ...