reasoning that to allow duplicative processes would “defeat the legislature’s obvious intent to funnel review of land use decisions through LUBA”
How later courts described this case
- reasoning that to allow duplicative processes would “defeat the legislature’s obvious intent to funnel review of land use decisions through LUBA”
- so holding with regard to former ORS 215.428, a statute substantially identical to ORS 215.429
Written by the judges who cited it.
The opinion
BUTTLER, P. J.,
specially concurring.
On March 2,1984, plaintiffs filed the application for minor partitioning to which this proceeding relates. It was denied on October 24, 1984, more than 120 days after their application was complete. They sought no relief from that denial. Instead, they filed another application with defendant on November 14,1985, asking for approval of the same minor partition of the same land. That application was denied, and plaintiffs filed a petition for writ of mandamus under ORS *492 215.428(7) to compel defendant to approve the second application, contending that defendant had not taken final action within 120 days. The trial court concluded that the mandamus proceeding was premature, because the application was “deemed completed,” ORS 215.422, fewer than 120 days before the petition for the writ was filed. We affirmed on appeal. Simon v. Bd of Co. Comm. of Marion Co., 84 Or App 311 , 733 P2d 901 (1987).
About two weeks before the trial court entered judgment dismissing the first petition (relating to plaintiffs’ second application), plaintiffs filed this petition to compel defendant to approve plaintiffs’ first application. I believe that plaintiffs’ filing and pursuing their second application superseded any rights that they may have had under the first one; therefore, they no longer have any rights to assert with respect to the first one.
Accordingly, I would not reach the question decided by the trial court and the majority, but would affirm the dismissal of the petition.