State ex rel O'Connor v. Helm / Clackamas County

Where a party files a petition for a writ of mandamus to compel a final order, ORS 34.740 does not require a court grant a motion to amend that effectively converts the petition for a writ of mandamus into a declaratory judgment action.

O'Connor operated a construction and excavation company and was a member of an LLC that owned property along the Sandy River. In 2009, the Sandy River reached flood stage, so O'Connor applied for, and received emergency authorization from the Oregon Department of State Lands to repair and stabilize the riverbank by installing a revetment. The authorization stated O'Connor should contact the city or county planning office to ensure compliance with local land use plans and programs. O'Connor completed the work and afterward applied to Clackamas County (the County) for a Floodplain Development Permit for both the revetment and to build a home on one of the properties along the river. The County notified O’Connor that the site was within the Regulatory Floodway, and that O’Connor would have to file a Letter of Map Amendment (LOMA) with the Federal Emergency Management Agency (FEMA) requesting the site be removed from the Regulatory Floodway. O’Connor submitted the LOMA to FEMA, but it was returned because the County refused to sign off on the application. During this time, the County initiated enforcement action because O’Connor had not obtained permits for the revetment work. It also deemed O’Connor’s application for the Floodplain Development Permit complete but issued a preliminary denial and set a hearing. O’Connor filed a petition for a writ of mandamus pursuant to ORS 215.429, alleging more than 150 days had passed without a final decision from the County. The County moved for summary judgment, which the circuit court granted because, inter alia, approval of the permit would violate substantive provisions of the county code. The court ruled that O’Connor had improperly sought a peremptory writ rather than an alternative writ. On appeal, O’Connor argued that he should have been allowed to amend the peremptory writ under ORS 34.740. The Court disagreed, stating that the purpose of that statute was to correct the mistaken filing of the wrong type of action or in the wrong place, not to convert the mandamus action seeking a final order into a declaratory judgment action seeking a substantive decision regarding the code violations. General judgment affirmed; supplemental judgment for attorney fees vacated and remanded.