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Smith v. Department of Land Conservation and Development

Court of Appeals of Oregon

November 21, 2018

Steven SMITH, Petitioner-Appellant Cross-Respondent,
v.
DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Respondent-Respondent Cross-Appellant, and DOUGLAS COUNTY, Respondent-Respondent Cross-Respondent.

          Submitted February 2, 2018

          Douglas County Circuit Court 13CV4817CC; George William Ambrosini, Judge.

          Steven Smith fled the briefs pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, fled the briefs for respondent-cross-appellant.

          No appearance for respondent-cross-respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Petitioner appeals and the Department of Land Conservation and Development (DLCD) cross-appeals a circuit court judgment remanding with instructions to proceed on the merits DLCD's order rejecting petitioner's petition for enforcement. DLCD had previously concluded that the petition was materially deficient because there was no land use decision alleged from which the commission could determine whether the local government engaged in a pattern or practice of decision making that did not comply with local land use regulations [295 Or.App. 45] ORS 197.320(6). On cross-appeal, DLCD argues that the circuit court erred in remanding the order with instructions to proceed on the merits because the petition was materially deficient. Significantly, DLCD contends that the petition did not properly allege a “land use decision” as defined under ORS 197.015(10), nor did it properly allege that the “local government ha[d] engaged in a pattern or practice of decision making that violate[d] an acknowledged comprehensive plan or land use regulation” under ORS 197.320(6). Petitioner responds that the local government's decision to take no action in response to his numerous letters and requests was a land use decision that amounted to a violation of local land use regulations. Held: The local government's determination that no action was required in response to petitioner's numerous requests was not a land use decision for which petitioner is able to seek relief from DLCD and the Land Conservation and Development Commission. The local government's determination was not a land use decision under ORS 197.015(10)(b)(A) because the local government was not required to interpret or engage in the exercise of policy or legal judgment. Moreover, petitioner's numerous letters, requests, and complaints do not, solely because of the number of inquiries, amount to a pattern or practice of noncompliant decision making by the local government. Accordingly, DLCD properly rejected petitioner's petition after it determined that it was materially deficient.

          [295 Or.App. 46] JAMES, J.

         Petitioner submitted a petition to the Department of Land Conservation and Development (DLCD) for an order of enforcement. DLCD rejected the petition as materially deficient. Petitioner sought judicial review of that decision in circuit court under ORS 183.484 as an order in other than a contested case. On judicial review, the court entered judgment remanding DLCD's order to the agency for further proceedings on the merits of the petition. ORS 183.484(5). Both petitioner and DLCD challenge that judgment. We reject petitioner's assignments of error on appeal without discussion and write solely to address DLCD's cross-appeal. DLCD argues that the circuit court erred in remanding for further proceedings on the merits. We agree and, therefore, reverse on the cross-appeal.

         "We review the circuit court's judgment to determine whether the court correctly reviewed the agency's decision under the standards of ORS 183.484(5)." Papworth v. DLCD, 255 Or.App. 258, 265, 296 P.3d 632 (2013). "In practical effect, that means that we directly review the agency's order for compliance with the standards set out in ORS 183.484(5)." G.A.S.P. v. Environmental Quality Commission, 198 Or.App. 182, 187, 108 P.3d 95, rev den, 339 Or. 230 (2005). Therefore, we-like the circuit court-review DLCD's order rejecting the petition for enforcement as materially deficient for legal error. Papworth, 255 Or.App. at 265; see Ericsson v. DLCD, 251 Or.App. 610, 620, 285 P.3d 722, rev den, 353 Or. 127 (2012) ("For the most part, that means that the court directly reviews the agency's order under the standards set out in ORS 183.484(5)."). The factual and procedural background follows below.

         A landslide damaged a private road in petitioner's residential subdivision. Petitioner sent numerous letters to Douglas County officials warning of the hazardous condition on the road due to the landslide. Douglas County advised petitioner that the damaged road was a private road and that the matter was, therefore, a civil matter between petitioner, his private road association, and the developer of his subdivision. It stated that it would take no action. Petitioner notified Douglas County of his intent to submit a petition [295 Or.App. 47] for an enforcement order from the Land Conservation and Development Commission (the commission) under ORS 197.320(6).[1]

         Petitioner subsequently submitted a petition to DLCD for an enforcement order. Petitioner alleged in the petition notice that Douglas County had failed to take action in response to his numerous contacts concerning the deterioration of the road. He specifically alleged:

"I informed the [Douglas County] Planning Department and the District Attorney about the hazard and requested code enforcement, these notifications were at first ignored and then met with a blanket denial that any code violations were present although *** such code violations are readily apparent upon visual inspection and upon review of the County's file yet no code enforcement action has been taken and apparently none is intended. The abovementioned acts, events and facts constitute both a pattern and a practice of decision making that violates an acknowledged comprehensive plan or land use regulation pursuant to ORS 197.320(6)."

         Petitioner identified ORS 197.320(6) as the basis for his petition for enforcement. DLCD rejected the petition as materially deficient because it failed to allege a pattern or practice of noncompliant land use decisions by the local government. In its letter, DLCD explained:

"The department finds that the petition is materially deficient and the petition is rejected pursuant to OAR 660-045-0070(3).
''*****
"State statute empowers the Land Conservation and Development Commission to enforce compliance with the statewide planning goals, acknowledged comprehensive plan provisions and land use regulations in local land use decision-making You petitioned the commission to use this authority to order Douglas County to enforce conditions placed on road construction within a subdivision as [295 Or.App. 48] required by the Douglas County Land Use and Development Ordinance.
''*****
"In this case, the materials contained in the petition claim that Douglas County has engaged in a pattern and practice of decision making that do not comply with local land use regulations; there is no claim that the local land use regulations fail to comply with applicable planning goals.
"In its analysis, the department noted a difference between a land use decision and the implementation of that decision. A 'land use decision' is denned in state statute. In this case, the petition does not allege the county made a land use decision that fails to comply with applicable regulations. The only land use decision involved is the approval of the subdivision (Douglas County Planning Department File No. 01-074), which the petition does not accuse of being noncompliant. Instead, subsequent actions (or inactions, if you will) by the county led to your request for enforcement.
"The definition of 'pattern of decision making' is 'a mode, method, or instance of decision making representative of a group of decisions,' while the definition of a 'practice of decision making' is 'a series or succession of decisions.' (See OAR 660-045-0020). Non-enforcement of a condition placed on ...

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