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West Hills Development Co. v. Doughman

Court of Appeals of Oregon

October 3, 2018

WEST HILLS DEVELOPMENT CO., an Oregon corporation, Plaintiff-Appellant,
v.
David F. DOUGHMAN, Washington County Land Use Hearings Officer, in his official capacity, Defendant-Respondent.

          Argued and Submitted November 7, 2017

          Washington County Circuit Court C160059CV; James Lee Fun, Jr., Judge.

          Edward Choi argued the cause for appellant. Also on the briefs were Michael C. Robinson, Cody M. Weston, and Perkins Coie LLP.

          Courtney D. Duke-Driessen argued the cause and fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Plaintiff appeals the trial court's judgment in a writ of review proceeding, in which plaintiff challenged the decision of defendant, a Washington County land use hearings officer. Plaintiff had applied for Washington County Transportation Development Tax credits and North Bethany Transportation System Development Charge credits in connection with a new residential subdivision. The county awarded some, but not all, of the requested credits. Plaintiff appealed at the county level, asserting that "county staff" had orally agreed to provide greater credits. Defendant upheld the county's decision. Plaintiff then petitioned for a writ of review. The trial court affirmed. On appeal, plaintiff raises issues on appeal. First, it asserts that defendant and the court misconstrued applicable law. Second, it argues that the court erred in affirming defendant's determination that county staff lacked authority to enter into the alleged oral argument. Third, it contends that the court failed to address plaintiff's alternative argument regarding county staff's apparent authority. Held: The trial court did not err. On the first issue, plaintiff challenges a ruling that was not made. On [294 Or.App. 275] the second issue, the director of the Washington County Department of Land Use and Transportation determines credit eligibility, and there was no evidence that he had delegated that authority to the county staff who allegedly entered into an oral agreement with plaintiff. On the third issue, the trial court properly rejected the apparent-authority argument, because plaintiff did not establish that it had no reason to know that county staff lacked actual authority to enter into the alleged oral agreement.

         Affirmed.

         [294 Or.App. 276]AOYAGI, J.

         Plaintiff West Hills Development Co. (West Hills) completed certain road improvements in the North Bethany area of Washington County in connection with a residential development. West Hills thereafter applied to Washington County for Washington County Transportation Development Tax (TDT) credits and North Bethany Transportation System Development Charge (NBTSDC) credits. The county awarded some, but not all, of the requested credits. West Hills appealed the decision, and defendant, a county hearings officer, upheld it. West Hills then petitioned for a writ of review in the trial court, but the trial court rejected West Hills' claims of error. West Hills appeals the trial court's decision. For the reasons that follow, we affirm.

         As preliminary context for our discussion, the TDT is charged against new development in Washington County based on the development's projected impact on the transportation system. See Washington County Code (WCC) 3.17.010 - 3.17.190. The NBTSDC is an additional charge that applies solely to projects in North Bethany and is used to fund local transportation infrastructure in North Bethany. See Washington County Resolution and Order 2010-098 (WCRO 2010-098). When a developer constructs "qualified public improvements" as part of a development project in North Bethany, the county awards TDT and NBTSDC credits to offset the amounts due as provided in the county code and WCRO 2010-098. See WCC 3.17.070 (regarding TDT credits for qualified public improvements); WCRO 2010-098, Attachment A, § 070 (regarding NBTSDC credits for qualified public improvements); see also ORS 223.304(4) (defining "qualified public improvement").

         The facts relevant to this appeal are undisputed. As conditions of approval for an 85-lot residential subdivision in North Bethany, Washington County required West Hills to make certain improvements to N.W. Springville Road and N.W. Brugger Road. Both streets run adjacent to, but not through, the subdivision. After completing the improvements, West Hills applied to the county for TDT and NBTSDC credits based on the cost of the improvements. West Hills originally requested total credits of $580, 645 for [294 Or.App. 277] the improvements to N.W. Springville Road and N.W. Brugger Road. It later reduced its request to $388, 104. The county ultimately awarded total credits of $238, 215. West Hills appealed the credit determination, contesting the county's methodology for calculating the credits. The county maintained that its calculations were correct.

         The matter was referred to defendant, a county hearings officer. In addition to challenging the county's methodology for calculating the credits, West Hills argued to the hearings officer that local governments are allowed to provide greater credits to developers than strictly required, citing ORS 223.304(5)(c). West Hills asserted that it and "other Bethany developers" had "understood" that the county would reimburse the total cost of street improvements in North Bethany-which the parties refer to as "whole street improvements"-through TDT and NBTSDC credits, but that the county was now limiting the credits to the cost of improvements that provided capacity beyond that needed for the development and was not reimbursing storm-water improvements. According to West Hills, "the County reached an oral agreement with West Hills" and "assur[ed]" West Hills that the county would give a "100 percent" credit for whole street improvements.

         Defendant issued his decision in 2015, rejecting West Hills' arguments. Defendant concluded that the county's credit determinations were consistent with the applicable rules. As for an alleged oral agreement to award greater credits, defendant "[a]ssum[ed] for the sake of discussion that County staff and North Bethany developers 'agreed' that street improvements would be fully reimbursable," but he stated that "it is axiomatic that those staff persons must have had the authority to bind the County to that agreement," and he concluded that there was "no evidence in the record to demonstrate that the County staff possessed the authority to bind the County in the manner [West Hills] suggests." In defendant's view, only the Board of County Commissioners could potentially bind the county to an oral contract, and it was unclear whether even the board could do so. Finally, defendant concluded that, although ORS 223.304(5)(c) "does appear to grant local governments [294 Or.App. 278] latitude to provide a credit that is larger or different ...


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