# Simon v. Board of County Commissioners

> Court of Appeals of Oregon · June 15, 1988 · 91 Or. App. 487

URL: https://www.frixlaw.com/law-library/cases/9550439

## Case

- **Full name:** SIMON Et Ux, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF MARION COUNTY, Respondent
- **Court:** Court of Appeals of Oregon
- **Decided:** June 15, 1988
- **Citations:** 91 Or. App. 487; 755 P.2d 741
- **Precedential status:** Published
- **Opinion:** Concurrence by Buttler
- **Judges:** Buttler, P.J., and Warren and Rossman
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9550439

## How later opinions describe it (automated extraction)

- reasoning that to allow duplicative processes would “defeat the legislature’s obvious intent to funnel review of land use decisions through LUBA”

## Opinion text

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 I believe that plaintiffs’ filing and pursuing their second application superseded any rights that they may have had under the first one; therefore, they no longer have any rights to assert with respect to the first one.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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9550439. Public record. Not legal advice.