WEST HILLS DEVELOPMENT CO., an Oregon corporation, Plaintiff-Appellant,
David F. DOUGHMAN, Washington County Land Use Hearings Officer, in his official capacity, Defendant-Respondent.
and Submitted November 7, 2017
Washington County Circuit Court C160059CV; James Lee Fun,
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
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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
Or.App. 276]AOYAGI, J.
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.
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").
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.
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.
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