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On July 18 the Portland Golf Club filed a mandamus action in Washington County Circuit Court. This action seeks to terminate the appeal based on Development Review/Current Planning’s failure to take final action on the application, including resolution of any local appeals, before the May 23 statutory 120-day deadline.
By electing to file a mandamus action, Portland Golf Club opted to terminate the local appeal process and to finalize the conditional land use approval.
Background
On Jan. 23, 2023, Development Review/Current Planning staff accepted a Type II land use application from Portland Golf Club for a flood plain alteration for dredging and maintenance of an irrigation pond on Woods Creek, a Fanno Creek tributary.
On May 26 staff issued a conditional land use decision approving this application – after the May 23 statutory 120-day deadline. Staff approved the proposed development activity with conditions requiring Portland Golf Club to obtain required permits for the proposed dredging and maintenance work from other agencies with regulatory authority for work in environmentally sensitive areas.
On June 7 Community Participation Organization (CPO) 3 filed an appeal of the county’s conditional land use decision. An independent Hearings Officer was to conduct a hearing on the appeal and issue a decision.
The mandamus action seeks to terminate this appeal and finalize conditional land use appeal.
Deadline challenges
The workload for Development Review/Current Planning staff is significant. Staff works as fast possible to review applications, but consistently finds it challenging to complete all reviews within 120 days. Depending on workload, and the nature and complexity of the application, 120 days is barely sufficient to finish a responsible review.
The Portland Golf Club application was highly complicated. The County planner responsible for the application received about 100 community member comments opposing the application. People were concerned about placement of fill in the wetland, the potential for pollutants in the fill, impacts to wildlife and disruption to Fanno Creek Trail users.
In addition to the usual work associated with a complex development review process, the planner suggested possible alternatives for the Portland Golf Club to alleviate community concerns, such as encouraging the club to transport dredged material to another location. Staff asked the Portland Golf Club for an extension of the 120-day statutory deadline to provide more time to consider alternatives to address community concerns. Many developers are willing to do so, but the club did not agree to an extension.
As a result, with the Portland Golf Club's failure to agree to an extension or to accept possible alternatives, the application approval decision exceeded the statutory timeline for both approval and appeals.
About the statutory 120-day timeframe
The 120-day rule contained in Oregon Revised Statutes (ORS) 215.429 assures developers that applications subject to the 120-day rule will be acted on within that timeframe. The timeframe begins when the local jurisdiction determines the application is complete and includes resolution of all local appeals.
If a local jurisdiction fails to both act on the application and to resolve all local appeals within 120 days, developers can file mandamus actions in circuit court. These actions require jurisdictions to issue final approvals and cuts off any local land use appeal processes.
If a jurisdiction issues an approval by the deadline, but has not completed the local appeal, developers can still file mandamus actions circumventing the local appeal processes. Washington County staff believes this to be an unintended consequence of law, as it allows developers to cut off local appeals in instances where approvals have already occurred.
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