and submitted November 20, 2018.
of Talent Hearings Referee (Expedited Land Division)
A. Brooks argued the cause for petitioners. Also on the brief
was Cable Huston LLP.
Rebekah Dohrman argued the cause for respondent. Also on the
brief was Local Government Law Group PC.
Christian E. Hearn and Davis Hearn Anderson & Turner PC
fled the brief for intervenors-respondents.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Petitioners seek review of a referee's decision
affirming the city's denial of their application for an
expedited land division (ELD) and remanding the matter to be
processed as a land use decision or limited land use
decision. ORS 197.375. In their first two assignments of
error, petitioners argue that the referee exceeded his
statutory powers. In their third assignment of error,
petitioners assert that the referee's decision is
unconstitutional under the Takings Clause of the Fifth
Amendment to the United States Constitution. Held:
The referee acted within his statutorily defined authority in
affirming the city's denial of ELD review and remanding
petitioner's application for processing [295 Or.App. 626]
as a land use decision or limited land use decision. Any
constitutional challenges regarding conditions of approval
remain to be decided through that process.
Or.App. 627] DEVORE, J.
seek review of a referee's decision affirming a
city's denial of their application for an expedited land
division (ELD) and remanding the matter to be processed as a
land use decision or limited land use decision. See
ORS 197.375 (setting forth the ELD process of review before a
referee and authorizing judicial review of the referee's
decision). In their first two assignments of error,
petitioners argue that the referee exceeded his powers. In
their third assignment, petitioners assert that the
referee's decision is unconstitutional under the Takings
Clause of the Fifth Amendment to the United States
Constitution. We reject each of those arguments and,
relevant facts, which we take from the referee's order,
are undisputed. Petitioners filed an application with the
Community Development Department of the City of Talent
seeking ELD approval to create 49 lots for single-family
development from an existing 26.58 acre parcel. The
application proposed an ELD pursuant to ORS 197.360, which
would require quicker processing under ORS 197.365. The city
determined that the application was ineligible for ELD
review, primarily because it failed to meet street and other
right-of-way requirements. It noted that the access issues
required resolution prior to the subdivision's approval,
but set no specific requirements on how that would be
accomplished. The request for ELD review was denied.
appealed the city's decision to a referee appointed to
hear and decide ELD appeals in accordance with ORS 197.375.
The referee denied petitioners' appeal, ruling that the
application did not qualify for ELD review. The referee
remanded the subdivision application to the city for
consideration through ordinary proceedings for a land use
decision or limited land use decision.
seek judicial review of the referee's final order,
raising three assignments of error. First, they [295 Or.App.
628] challenge the referee's statutory analysis in
determining that the proposed development was not within an
"area subject to an acknowledged refinement plan"
under ORS 197.200, which, had the referee found otherwise,
would have permitted ELD review. Second, petitioners contend
that the standards upon which the referee relied in applying
ORS 197.360 in remanding the application to the city violated
other applicable statutes. Finally, petitioners assert that
the referee erred in rejecting their argument that the city
had imposed conditions amounting to an unconstitutional
scope of review in this proceeding is unusually narrow, as
circumscribed by ORS 197.375(8). That statute authorizes this
court to review a referee's ELD decision, but we can