State law prescribes that all land use permits, limited land use permits and zone change decisions in Oregon must be made within 120 or 150 days, depending on if the decision affects land inside or outside the urban growth boundary, from the date that the application is deemed complete.
The likelihood that the scope of a development proposal or the studies submitted in support of a proposal will need to be modified after the application is deemed complete appears more likely as time goes on, given that more sophisticated transportation, utility and environmental regulatory requirements are emerging, local governments are becoming more adept at scrutinizing applications, and the profitability bubble is flatting. What is a local government to do when an applicant submits a modified proposal when the decision deadline has nearly expired? The answer comes from an unlikely source; a Clackamas County Circuit Court decision in the summer of 2000. In State ex rel Baltazar F. Ortiz v. City of Sandy, Judge Maurer concluded that the submittal of a “substantially changed” grading plan had the effect of restarting the 120 decision-making clock. This restarting occurred by virtue of a discussion of the timeline at a subsequent hearing; although the court did note that much of this controversy could have been avoided had the City issued a written proclamation upon receiving the application amendment that the clock was restarted. After noting a policy favoring protection of the applicant from protracted decision-making , the court explained: “The obvious balance to be struck is to allow submission of a substantially changed component of the application, that does not constitute a new application, and simply start the 120 day from that date.” The court also found compelling the applicant’s deliberate attempt to obfuscate the facts and lead the City into violating the rule.
The Ortiz decision should be contrasted with the Oregon Court of Appeals recent decision in Stewart v. City of Salem, 241 Or App 528 (2011). In this case, the applicant sought a partition approval. After the partition was deemed complete, the applicant submitted a modified proposal with the lot lines in different locations asking that the City consider both proposals. The City responded with a letter explaining that it could not consider both requests and asking whether the applicant wanted to proceed with the original application or to withdraw it and have the alternative plan considered. The applicant responded that he wanted the original application considered. The City Council denied the application but upon the expiration of the 120th day, had not issued a final written decision. The applicant filed an alternative writ of mandamus. The City argued before the lower and appellate courts that the writ of mandamus was premature because the submittal of the alternative partition plan had the effect of restarting the 120-day clock. The court found that nothing in the text of context of the statutory deadline allowed for an automatic extension of the deadline. Once it was clear that the applicant wished to proceed under the original application, the City had an obligation to review it within the required deadlines. Click to here read the Ortiz decision.
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