Ericsson v. Lane County

An application under section 11 of Measure 49 is not a permit within the meaning of ORS 215.402(4), and a local government does not err in refusing to issue a refund to a Measure 49 applicant for approval of an application outside the final action time requirement of ORS 215.427(8).

Petitioner appealed the County’s refusal to issue a refund of the fees Petitioner expended for their Measure 49 application. The County had processed the application outside the required timeframe under ORS 215.427(8). ORS 215.427(8) mandates that a county refund a permit applicant at least some of their fees where the county fails to take final action on the permit application within a set number of days after the application is deemed complete. On appeal to LUBA, Petitioner claimed the County erred in refusing to issue the refund. In response, the County argued Petitioner’s Measure 49 application was not a permit application within the meaning of ORS 215.402(4), and thus did not fall under ORS 215.427(8)’s final action requirement.

Under ORS 215.402(4), a “permit” is a "discretionary approval of a proposed development of land under ORS 215.010 to 215.311, 215.317, 215.327 and 215.402 to 215.438 and 215.700 to 215.780 or county legislation or regulation adopted pursuant thereto."

LUBA rejected Petitioner’s claim for two reasons. First, LUBA concluded approval of Petitioner’s Measure 49 application was not issued under one of the statutes listed in ORS 215.402(4). LUBA reasoned that ORS 215.327, which Petitioner claimed their application fell under, prohibited lots of the size that Petitioner had applied and been approved for under Measure 49, and thus the County’s decision had been made under Measure 49 “notwithstanding” ORS 215.327, not “under” ORS 215.327. Second, LUBA rejected Petitioner’s contention that the County’s use of a procedure akin to a permit review made Petitioner’s application a “permit.” LUBA pointed out the County’s code utilizes the same procedures for both discretionary and nondiscretionary decisions and that local governments can utilize the process of permit review and approval for other procedures aside from permits. LUBA expressed doubt that the legislature intended ORS 215.402(4) to convert all decisions that utilized permit procedures into statutory permits. Because Petitioner’s application was not a “permit” within the meaning of ORS 215.402(4), LUBA concluded the County had not erred in refusing to issue Petitioner a refund for being outside the timeline for permit decisions under ORS 215.427(8).

Affirmed.