Mattson v. Lane County

Where a local code provides that (1) all applications must be submitted on “a form provided by the [Planning] Department”; (2) that certain applications must be reviewed pursuant to Type II procedures, but that those applications “may be reviewed” pursuant to Type I procedures in certain circumstances; and (3) that applications “shall not be considered accepted solely because of having been received,” the local government has discretion to reject an application filed on an incorrect form.

Under Lane Code (LC) 13.140(1)(a)(i), legal lot verifications must be reviewed pursuant to Type II procedures. However, under LC 13.140(1)(a)(ii), if a property were created prior to April 7, 1949, and has not changed configuration since that time, a verification “may” be reviewed pursuant to Type I procedures. Type II procedures are more onerous, and the application fee is higher. Petitioner submitted a Type I application for a legal lot verification. Eventually, the planning director sent petitioner a letter stating that the Type I application was rejected, and that a Type II application was required due to uncertainty about whether the property had changed configuration since 1949. Petitioner appealed the letter to the hearings officer, who concluded that the planning director had authority to reject applications and had properly done so here. The hearings officer reasoned that the word “may” in LC 13.140(1)(a)(ii) gives the planning director discretion to reject applications. The hearings officer also reasoned that, because, under LC 140.040(1), applications must be submitted on “a form provided by the [Planning] Director,” the planning director determines the correct form and therefore must be able to reject incorrect forms or else applicants could simply file applications on the least expensive form and demand that the county process it. In addition, the hearings officer reasoned that the language of LC 14.050(1)(a), that applications “shall not be considered accepted solely because of having been received,” provides the planning director with authority to reject applications filed on incorrect forms. This appeal followed.

In its assignment of error, petitioner argues the hearings officer erred in concluding that LC 13.140(1) allows the planning director to reject applications. Specifically, petitioner argues that LC 13.140(1)(a)(ii) requires the planning director to either approve an application, deny it, or elevate it to a Type II process, and that nothing in that provision authorizes the planning director to reject applications. Petitioner also argues that the word “may” in LC 13.140(1)(a)(ii) establishes the right of the applicant to choose between a Type I and Type II procedure, not the planning director. In addition, petitioner argues that, because LC 14.080(2) specifically authorizes the planning director to reject “an appeal,” but because similar explicit language does not appear in LC 13.140(1) with respect to “an application,” the hearings officer’s interpretation was incorrect. LUBA agrees with the hearings officer that use of the word “may” in LC 13.140(1)(a)(ii) implies discretion. However, LUBA rejects petitioner’s argument that use of the word “may” allows the applicant to choose the appropriate procedures. Instead, because LC 13.140(1)(a)(ii) provides that applications “may be reviewed” pursuant to Type I procedures, and because it is the county that reviews applications, LUBA concludes it is the county that determines the appropriate procedures. Finally, LUBA agrees with the hearings officer’s conclusion that the context provided by other LC sections implicitly gives the planning director discretion to reject applications filed on incorrect forms. Petitioner’s assignment of error is therefore denied, and the county’s decision is AFFIRMED.