477 P.3d 417
Or. Ct. App.2020Background:
- Relator Larry Kine owns an interest in land formerly held by the BLM and applied to Deschutes County to have that land declared 11 legal lots of record under county code.
- A county hearings officer initially rejected the application; Kine appealed and the county failed to issue a final decision within the 150‑day statutory period.
- Kine filed a land‑use mandamus petition under ORS 215.429 seeking an order compelling county approval; three homeowners’ associations intervened and moved to dismiss.
- The trial court dismissed for lack of subject‑matter jurisdiction, concluding Kine’s lot‑verification request was not a “permit” under ORS 215.429; the court later awarded attorney fees to the HOAs.
- On appeal Kine argued (1) his lot‑of‑record application is a “permit” (thus mandamus‑eligible) and (2) the fee award failed to reflect consideration of ORS 20.075(1) factors; the appellate court affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an application for legal‑lot‑of‑record determination is a “permit” under ORS 215.429 | Kine: Lot verification is a prerequisite to development and thus is effectively approval of a proposed development (a “permit”) | HOAs/County: Lot verification does not approve any proposed use or development and is not a ‘‘permit’’ as defined | Not a permit; does not seek approval of a proposed development of land, so ORS 215.429 mandamus relief unavailable |
| Whether the trial court failed to apply ORS 20.075(1) factors in awarding attorney fees | Kine: The supplemental judgment does not reflect consideration of the required fee‑award factors | HOAs: Kine did not preserve any challenge to the court’s consideration of those factors; the award was within discretion | Not considered on appeal — Kine failed to preserve the argument; fee award affirmed |
Key Cases Cited
- State ex rel Schrodt v. Jackson County, 262 Or App 437 (2014) (explains ORS 215.429 mandamus converts a discretionary county land‑use decision into mandatory approval if the county misses statutory deadline)
- Clark v. City of Albany, 142 Or App 207 (1996) (annexation is not approval of a proposed development of land; preliminary approvals that do not decide permissible uses are distinct from development approvals)