Summary
In Mills v. City of Yachats, 134 Or. App. 581, 896 P.2d 13, rev den 321 Or. 512 (1995), we addressed issues related to those here and arising out of the same dispute.
Summary of this case from St. John v. Yachats Planning CommissionOpinion
94-161; CA A87762
Argued and submitted May 8, 1995
Affirmed May 31, 1995 Petition for review denied August 22, 1995 ( 321 Or. 512)
Judicial Review from Land Use Board of Appeals.
John Dumas argued the cause and filed the brief for petitioner.
Richard W. Scholl argued the cause and filed the brief for respondent.
Before Deits, Presiding Judge, and De Muniz and Haselton, Judges.
DEITS, P.J.
Affirmed.
Respondent Mills appealed to LUBA from the City of Yachats planning commission's issuance of a building permit to petitioner Forrester. Mills contended that the city council erred in holding that, under the applicable provision of the city's zoning ordinance, she had no right to appeal the commission's action to the council. LUBA agreed, and remanded the decision for appropriate proceedings before the city council. Forrester petitions for review and argues, inter alia, that LUBA erred in its conclusion that the ordinance provision allows for an appeal to the council. We agree with LUBA's conclusion and reasoning, and we reject Forrester's argument without further discussion.
LUBA noted that, after the council had made its decision concerning appeal rights, Mills and others "filed an action in circuit court to enjoin construction of the dwelling" authorized by the building permit. Although Forrester had advised LUBA that that case had been decided in favor of the defendants, LUBA did not agree with Forrester's argument that the circuit court action or disposition divested LUBA of jurisdiction over the present appeal, because the record before LUBA did not contain sufficient information about the circuit court proceeding to make possible a determination of its effects, jurisdictional or otherwise. Again, we agree with LUBA. This opinion does not decide anything about the circuit court proceeding or any effects that it may or may not have on the proceedings on remand before the city council.
The case is now pending before us on appeal, but, as of the date of this decision, has not been argued, St. John, et al v. Yachats Planning Commission, et al, Lincoln County Circuit Court No. 94-3070, CA A86763.
LUBA also concluded that it could not consider Mills' arguments that the applicable ordinance criteria for allowing or disallowing the permit involved
"sufficient discretion to make the exception to LUBA's review jurisdiction for building permits issued under 'clear an[d] objective standards' inapplicable. ORS 197.015(10)(b)(B). These arguments may be raised if the city's ultimate decision concerning the building permit, following this remand, is again appealed to LUBA."
Once more, we agree. On its face, the council's order that Mills had no right of appeal to it from the issuance of the permit was an appealable land use decision under ORS 197.015(10). The appealability of the council's decision on the merits of the permit application is a question that cannot be resolved before the council makes a final decision on the merits.
Affirmed.