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Hill v. City of Portland

Court of Appeals of Oregon

March 6, 2019

Daniel HILL, Plaintiff-Appellant,
v.
CITY OF PORTLAND, Defendant-Respondent.

          Argued and submitted September 28, 2018

          Multnomah County Circuit Court 16CV29163; Karin Johana Immergut, Judge.

          Christopher P. Koback argued the cause for appellant. Also on the briefs was Hathaway Larson LLP.

          Denis M. Vannier argued the cause for respondent. On the brief was Julia Glick.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Plaintiff appeals a judgment dismissing his petition for a writ of review and quashing the writ. Plaintiff utilized the City of Portland's Early Assistance Program to obtain advice regarding likely requirements if he divided his property. Unhappy with the response, plaintiff pursued the matter through the city's appeal processes, culminating in the Public Works Appeals Board denying his appeal. Plaintiff petitioned for a writ of review in the circuit court. On the city's motion, the court dismissed the petition and quashed the writ for lack of jurisdiction because the dispute was not ripe for review. Plaintiff appeals, arguing that the city imposed "requirements" in its Early Assistance response and that the Appeals Board's decision is a binding determination of conditions for a land division. Held: The circuit court did not err in dismissing the petition and quashing the writ for lack of jurisdiction. Plaintiff failed to establish that he had "a substantial interest" that had "been injured," ORS 34.040, as required to create a justifiable matter under the writ of review statute. The city's Early Assistance advice was based on a hypothetical scenario, not a land division application, and only identified potential requirements, and the appeals process did not change the fundamental nature of the challenged advice.

         [296 Or.App. 471] AOYAGI, J.

         Plaintiff utilized the City of Portland's Early Assistance program to obtain advice regarding likely requirements for a possible development. Displeased with the response, plaintiff pursued the matter further with the city, culminating in the Public Works Appeals Board denying plaintiff's appeal. Plaintiff then petitioned for a writ of review in the circuit court. The circuit court dismissed the petition and quashed the writ for lack of jurisdiction. Plaintiff appeals. For the reasons that follow, we affirm.

         The relevant facts are undisputed. In 2014, plaintiff purchased real property on NE Prescott Street in Portland. He planned to eventually divide it into multiple lots. In February 2016, plaintiff filed an application with the Early Assistance program, an informal program through which the City of Portland assists landowners in identifying potential land use issues for development projects, prior to submittal of formal land use review or permit applications. The program is voluntary and is not addressed in the Portland City Code.[1] Plaintiff sought advice regarding the possible division of his property into four or six lots. He completed an Early Assistance application in which he provided the address of the property, briefly described the proposed land division, and identified "[q]uestions to be discussed." Specifically, his description stated,

"The proposal is to divide the site into 4 (Option 1) to 6 (Option 2) lots. Under Option 2, a Property Line Adjustment will be accomplished with the adjacent property to the west [to] increase the size of the site. The existing house is proposed to be retained on Lot 1. The existing garage with finished living space is proposed to be retained on Lot 2, with an addition to increase the size. Stormwater disposal for the homes is proposed via drywells on each lot. Stormwater for the public street is proposed to match [other] improvements."

         [296 Or.App. 472] He then listed his questions, including, "What street improvements will be required?"

         City staff met with plaintiff on or about March 16. On April 1, the city provided a written response to plaintiff's Early Assistance application, titled "Early Assistance Appointment Response." It began, "Portland Transportation/ Development Review (PBOT) staff has reviewed the early assistance materials to identify potential issues and requirements." It then addressed various potential issues and requirements. As to frontage improvements on NE Prescott, the response stated:

"The applicant will be required to construct frontage improvements on NE Prescott to consist of a curb 19-ft from centerline and the 16-ft wide sidewalk corridor. An approximate 5-ft dedication of property for ROW purposes is necessary to accommodate standard improvements. The exact amount of property dedication required to accommodate these improvements to be determined during the Public Works process and will depend upon stormwater needs and site specifics."

(Emphases omitted.) The response further stated that, "[i]f the applicant wishes to propose an alternative to the required frontage improvements identified herein, they may apply ...


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