The relеvant 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 thаt 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 aрproval, 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
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 or rеmand only if we find one of the circumstances listed:
"(a) That the decision does not concern an expedited land division as described in ORS 197.360 and the appellant raised this issue in proceedings beforе the referee;
"(b) That there is a basis to vacate the decision as described in ORS 36.705 (1)(a) to (d) , or a basis for modification or correction of an award as described in ORS 36.710 ; or
"(c) That the decision is unconstitutional."
ORS 197.375(8) (emphasis added).
Paragraph (b) cross-references ORS 36.705(1), a provision of the Uniform Arbitration
"Upon petition to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:
"(a) The award was procured by corruption, fraud or other undue means;
"(b) There was:
"(A) Evident partiality by an arbitrator appointed as a neutral arbitrаtor;
"(B) Corruption by an arbitrator; or"(C) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
"(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy or otherwise conducted the hearing contrary to ORS 36.665 so as to prejudice substantially the rights of a party to the arbitration proceeding;
"(d) An arbitrator exceeded the arbitrator's powers[.] "
(Emphasis added.)
We have explained that "the grounds for obtaining the vacation of an [arbitration] award are extremely narrow in comparison with the scope of review available tо litigants in court." Vasquez-Lopez v. Beneficial Oregon, Inc. ,
When a statute empowers an arbitrator to deсide a legal issue, "[t]he arbitrator acts within the bounds of his authority not only when he decides [that] question of law correctly according to judicial standards, but also when he applies the law in a manner which a court would regard as erroneous. * * * Neither a mistake of fact or law vitiates the award." Brewer v. Allstate Insurance Co. ,
In petitioners' first two assignments of error, they urge the court to vacate the referee's decision on the ground that he engaged in an improper statutory analysis resulting
The text of ORS 197.375 itself outlines the legal questions under the referee's purview. That law authorizes a referee to decide appeals of ELD applications based on allegations
"(A) Of violation of the substantive provisions of the applicable land use regulations;
"(B) Of unconstitutionality of the decision;
"(C) That the application is not eligible for review under ORS 197.360 to 197.380 and should be reviewed as a land use decision or limited land use decision; or"(D) That the parties' substantive rights have been substantially prejudiced by an error in procedure by the local government."
ORS 197.375(1)(c) ; see also ORS 197.375(2) (requiring the appointment of a referee to decide such appeals). The statute places only a few restrictions on this authority, none of which are alleged tо apply here.
Based on the plain text of ORS 197.375, we conclude that the referee did not exceed his powers. He had broad discretion to construe the substantive provisions of land use regulations, to determine eligibility for ELD review, and to remand for land use decision or limited land use decision
In petitioners' third assignment of error, they posit another theory for vacating the referee's decision under ORS 197.375(8)(c), arguing that the decision was unconstitutional. They assert that the city's initial decision sought to impose offsite improvements that are unconstitutional exactions and that "[t]he Referee erred when he concluded that the City did not impose any conditions on the Applicant that amounted to an unconstitutional taking."
The predicate for that assignment of error-that the referee determined any constitutional issues with finality-is mistaken. The referee rejected petitioners' arguments but explained that "any constitutional issues arе now moot, because the City Decision is no longer in place as a final decision of the City, and the Application is being remanded by this Final Decision and Order to the City for processing as a land use dеcision or limited land use decision pursuant to ORS 197.375(4)(a)." In other words, the import of the referee's decision is that any constitutional issues remain to be litigated when the matter is processed as a land use decision or limited land use decision rather than through the ELD process. Consequently, we reject petitioners' third assignment of error.
In the end, we conclude that the referee acted within his authority in affirming the city's denial of ELD review and remanding petitioners' application for processing as a land use decision or limited land use decision, and we conclude that any constitutional challenges regаrding conditions of approval remain to be decided through that process.
Affirmed.
Notes
The Fifth Amendment to the United States Constitution provides, in part: "No person shall be * * * deprived of life, liberty, or property, withоut due process of law; nor shall private property be taken for public use, without just compensation." This provision has been incorporated into the Due Process Clause of the Fourteеnth Amendment and is binding on the states. Palazzolo v. Rhode Island ,
Petitioners also suggest that the referee "refus[ed] to consider material evidence," which would constitute separate grounds for reversal under ORS 167.375(b) and ORS 36.705(1). However, we understand this argument to be, again, fundamentally about the referee's choice and application of legal standards. Petitioners challenge the referee's reliance on, and then subsequent interpretation of ORS 197.200(1) to (2), arguing these errors amounted to a "collateral attack" on their evidence. Thus, petitioners' evidentiary argument turns on our rejection of the referee's statutory analysis, whiсh, as we discuss, is beyond our scope of review.
The referee may not remand the application for reasons other than those set forth in ORS 197.375(4). ORS 197.375(4)(b). The same paragraph also prohibits the referee from reducing the density of the land division application. Other paragraphs provide procedural requirements that the referee must follow. ORS 197.375(3) - (6).