324 P.3d 615
Or. Ct. App.2014Background
- Schrodt owns 2.39 acres in Jackson County zoned RR-5 with a 21,000 sq ft warehouse originally authorized by a 1990 conditional use permit (CUP) for bird‑feeder manufacturing; the business moved out and the warehouse sat vacant.
- Schrodt sought a written interpretation under JCLDO 3.9 (Type 2 review) to broaden the range of commercial uses allowable under the existing nonconforming use framework, proposing a ministerial/administrative process to approve similar low‑impact tenants.
- The Jackson County Planning Division issued a preliminary partial approval treating the request under nonconforming use rules (JCLDO ch. 11), allowing certain low‑impact uses and requiring Alteration of Non‑Conforming Use review for others; Hardesty (neighbor) appealed.
- Procedural delay: the county failed to render a final decision within statutory timelines (over four years delay in forwarding the appeal), so Schrodt filed a petition for mandamus under ORS 215.429; Hardesty intervened and opposed.
- The trial court granted mandamus, concluding Schrodt’s application was an “application for a permit” under ORS 215.429 and that Hardesty failed to prove approval would violate substantive JCLDO provisions.
- On appeal, the court affirmed: it held the application fell within ORS 215.429’s definition of “permit,” and declined to review the trial court’s factual findings about substantive violations because Hardesty failed to provide the evidentiary transcript on appeal.
Issues
| Issue | Plaintiff's Argument (Hardesty) | Defendant's Argument (Schrodt) | Held |
|---|---|---|---|
| Whether Schrodt’s application is an “application for a permit” under ORS 215.429 | Not a "development" permit under ORS 215.402(4); JCLDO distinguishes "use" and "development," so mandamus inapplicable | Application seeks discretionary approval of change in use (a proposed development) and thus qualifies as a permit | Application is a permit under ORS 215.402(4)/215.429; mandamus available when county fails to timely act |
| Whether approval would violate substantive JCLDO provisions (trial court factual finding) | Approval would violate JCLDO (e.g., nonconforming use standards) | Approval would not have greater adverse impact; county delay forfeited discretion | Court declined to review merits — Hardesty failed to provide trial transcript, so factual determinations are unreviewable on appeal |
| Whether LUBA exclusivity or other procedure bars mandamus | LUBA has exclusive review of land use decisions; mandamus inappropriate | Mandamus addresses government delay — no final decision occurred for LUBA to review | LUBA exclusivity irrelevant where county failed to issue a timely final decision; mandamus remains available |
| Whether ORS 215.429 applies only to ministerial actions | Statute applies only to ministerial approvals; discretionary permits not subject | Statute and ORS 215.402 expressly cover discretionary approvals; legislative scheme converts delay into mandatory approval unless substantive violations proved | ORS 215.429 applies to discretionary permits; delay converts discretion into an obligation to approve unless showing of substantive violation |
Key Cases Cited
- State v. Spainhower, 251 Or. App. 25 (interpretation of statute reviewed for legal error)
- Buckman Community Assn. v. City of Portland, 168 Or. App. 243 (definition of "discretion" in land use context)
- Doughton v. Douglas County, 88 Or. App. 198 (nonministerial change of use can be a "permit")
- Clark v. City of Albany, 142 Or. App. 207 (annexation not necessarily a "development" involving permissible uses)
- State ex rel. Oregon Pipeline v. Clatsop County, 253 Or. App. 138 (mandamus remedial function for government delay in land use approvals)
- State ex rel. Compass Corp. v. City of Lake Oswego, 319 Or. 537 (delay converts local discretion into mandatory approval absent demonstration of substantive violation)
- Ferguson v. Nelson, 216 Or. App. 541 (appellant bears burden to provide adequate record for appellate review)