State ex rel Kine v. Deschutes County

"Under our reasoning in Clark, which separated the proposed decision to extend boundaries from any subsequent potential decision about the use of land in question, a request for determination of lot-of-record status, even if a necessary antecedent to the approval of subsequently proposed development, does not constitute a request for the approval of a proposed development of land."

Kine appeals dismissal of a petition in a land-use mandamus action initiated under ORS 215.429. Kine argued that the trial court erred in concluding that it lacked subject matter jurisdiction over the case. Further, Kine contends that the court should treat an “application for a legal-lot-of-record determination” as if it were an application for the “proposed development of land.” ORS 215.402(4) defines “permit” for application in ORS 215.429(1) as “discretionary approval of a proposed development of land.” ORS 215.402(4). In order for Kine’s application to qualify “as an application for a permit, two elements must be existent. One, approval must be “discretionary. I.e. an application’s determination must require “some exercise of judgment.” ORS 215.402(4). State ex rel Schrodt v. Jackson County, 262 Or App 437, 446, 324 P3d 615 (2014). Two, the application submitted must be for a “proposed development of land” under ORS 215.402(4). Id. at 446-47. The court used its determination in Clark v. City of Albany to conclude that “a request for a determination of a lot-of-record status . . . does not constitute a request for the approval of a proposed development of land.” Kine’s submission did not constitute an “application for approval of a proposed development of land.” Thus, the court’s dismissal of Kine’s petition was correct. Affirmed.