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Nieto v. City of Talent

Court of Appeals of Oregon

January 9, 2019

Tony NIETO and Tory Nieto, Petitioners,
v.
CITY OF TALENT, Respondent, and Vernon J. DAVIS, Trustee of the Rose Marie Davis Revocable Trust; Mary A. Tsui; and Laura E. Cuddy, Intervenors-Respondents.

          Argued and submitted November 20, 2018.

          City of Talent Hearings Referee (Expedited Land Division) SUB2018001

          Thommy 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.

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

         Case 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.

         Affirmed.

         [295 Or.App. 627] DEVORE, J.

         Petitioners 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.[1] We reject each of those arguments and, therefore, affirm.

         The 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.

         Petitioners 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.

         Petitioners 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 taking.

         Our 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 reverse ...


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