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Bora Architects, Inc. v. Tillamook County

Court of Appeals of Oregon

May 2, 2018

BORA ARCHITECTS, INC., Respondent,
v.
TILLAMOOK COUNTY, Respondent below, and SEABREEZE ASSOCIATES LIMITED PARTNERSHIP, Petitioner. Charles and Elizabeth ALLGOOD, Respondents,
v.
TILLAMOOK COUNTY, Respondent below, and SEABREEZE ASSOCIATES LIMITED PARTNERSHIP, Petitioner.

          Argued and Submitted February 12, 2018

          Land Use Board of Appeals 2017034, 2017038

          Scott 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.

          Zack P. Mittge argued the cause for respondents Charles and Elizabeth Allgood. With him on the brief was Hutchinson Cox.

         [291 Or.App. 538] Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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.

         Affirmed.

          [291 Or.App 539]

          ARMSTRONG, P. J.

         In this 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.

         Before turning to the facts in this case, we first briefly describe the provisions in ORS 215.427 that bear on the case.[1] 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.

         Under 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).

         Finally, 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. ORS 215.427(4).

         With 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.[2] 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, ...


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