and Submitted February 12, 2018
Use Board of Appeals 2017034, 2017038
G. Seidman argued the cause for petitioner. With him on the
brief were Megan K. Houlihan and Tonkon Torp LLP.
William K. Kabeiseman argued the cause for respondent Bora
Architects, Inc. With him on the brief was Bateman Seidel
Miner Blomgren Chellis & Gram, P.C.
P. Mittge argued the cause for respondents Charles and
Elizabeth Allgood. With him on the brief was Hutchinson Cox.
Or.App. 538] Before Armstrong, Presiding Judge, and Tookey,
Judge, and Shorr, Judge.
Summary: Petitioner seeks review of a Land Use Board of
Appeals (LUBA) order that reversed Tillamook County's
decision to approve petitioner's application for
preliminary subdivision plat approval. LUBA determined that
petitioner's application was void because, after
receiving notice from the county that the application was
incomplete, petitioner did not take one of the listed actions
in ORS 215.427(4) within 180 days of when petitioner first
submitted the application. Petitioner argues that ORS
215.427(4) does not apply because the county failed to give
its notice within 30 days of receiving petitioner's
application, as provided in ORS 215.427(2). Held:
The deadline for an applicant to act, under ORS 215.427(4),
is not affected by the date on which a county gives notice to
the applicant that an application is incomplete. Because
petitioner was notified of the information missing in its
application, and because petitioner failed to act as provided
in ORS 215.427(4) within 180 days of when petitioner
submitted its application, the application was void.
ARMSTRONG, P. J.
land use case, petitioner Seabreeze Associates Limited
Partnership seeks review of a Land Use Board of Appeals
(LUBA) order that reversed Tillamook County's decision to
approve Seabreeze's application for preliminary
subdivision plat approval for its property. LUBA determined
that Seabreeze's application was void under ORS
215.427(4) because Seabreeze did not take one of the listed
actions in that subsection within 180 days of the date that
Seabreeze first submitted its application. On review,
Seabreeze argues that LUBA erred in its understanding of ORS
215.427. Seabreeze contends that, because the county did not
give Seabreeze notice within 30 days of the county's
receipt of Seabreeze's application that information was
missing from the application, as required by ORS 215.427(2),
Seabreeze's application must be "deemed
complete" 30 days after the date that Seabreeze
submitted it, and, thus, ORS 215.427(4) has no bearing on the
case. We review LUBA's order to determine if it is
"unlawful in substance, " ORS 197.850 (9)(a), and,
because we conclude that Seabreeze's application was void
under ORS 215.427(4), we affirm.
turning to the facts in this case, we first briefly describe
the provisions in ORS 215.427 that bear on the
case. Under subsection (1) of that statute, a
county has 150 days from the date that an application is
"deemed [291 Or.App. 540] complete" to take final
action on the application. That timing is important because,
after the 150 days elapse, an applicant can bring a mandamus
proceeding against the county to compel it to approve the
application. See ORS 215.429.
subsection (2), the county is to provide notice to the
applicant of any missing information in an incomplete
application within 30 days of the date that the county
receives the application. Also under that subsection, an
application is "deemed complete" for purposes of
subsection (1) when the county receives the missing
information, it receives some of the missing information and
written notice that no other information will be provided, or
it receives written notice that none of the missing
information will be provided. ORS 215.427(2).
under subsection (4), the application is void on the 181st
day after being first submitted to the county if the
applicant has been notified of missing information "as
required under subsection (2)" and has not done one of
the following: provided the missing information, provided
some of the missing information and written notice that no
other information will be provided, or provided written
notice that none of the missing information will be provided.
that statutory background in place, we turn to the facts
pertinent to our review, which are undisputed. On July 15,
2015, Seabreeze submitted to the county a one-page form
requesting to subdivide its property into nine [291 Or.App.
541] lots. The one-page form did not include any information
or maps from which the county could have determined what the
proposed subdivision was. On August 18, 2015, thirty-four
days after Seabreeze submitted the one-page form, the county
sent Seabreeze a letter advising it that its application was
incomplete and setting out several sections from the
county's ordinances with which Seabreeze would need to
comply to have a complete application. Seabreeze
responded that it intended to provide the missing information
that the county had identified in its letter. The county
later advised Seabreeze, in error, ...