[00:00:09] Speaker 00:
For a minute, I thought our clerks were leaving, but it's OK.

[00:00:14] Speaker 00:
Whenever you're ready, Council.

[00:00:16] Speaker 04:
Good morning, and may it please the court, Daniel Dalton on behalf of the plaintiff, Athee Creek, with me, Mr. Ty Woodham from Dunn-Carney here in Portland, and also our senior pastor, W. Meador, and our executive team as well from the church.

[00:00:33] Speaker 00:
And it's Athee Creek.

[00:00:35] Speaker 04:
Athee Creek.

[00:00:35] Speaker 00:
OK, I've been mispronouncing it.

[00:00:36] Speaker 00:
Thank you.

[00:00:38] Speaker 04:
In 2022, the church went to Clackamas County to secure a building permit to build the second half of its building.

[00:00:46] Speaker 04:
One half has been built, the other half is waiting to be built.

[00:00:49] Speaker 04:
At that point in time, while the county had previously allowed the church to build over time from constructions, the conditional use permit was approved in 2006, construction started in 2013, well past the two years,

[00:01:05] Speaker 04:
And even through 2022, there was additional construction that occurred at the church.

[00:01:11] Speaker 04:
The county allowed permits to move forward.

[00:01:14] Speaker 01:
Let me ask you this as to the initial construction, which is not challenged.

[00:01:18] Speaker 01:
Were all the permits for that construction obtained within the two years?

[00:01:23] Speaker 04:
I know, Your Honor.

[00:01:24] Speaker 04:
Those permits were actually all the way through 2015 on that first half of the building.

[00:01:30] Speaker 03:
No, that's not the question he asked.

[00:01:31] Speaker 03:
The question he asked is when were the permits?

[00:01:33] Speaker 04:
When were the permits issued?

[00:01:35] Speaker 04:
Were permits issued?

[00:01:36] Speaker 04:
There were permits for the entirety of the project?

[00:01:40] Speaker 01:
For phase one, when were those permits issued?

[00:01:44] Speaker 01:
Were they all issued within the initial two-year period?

[00:01:47] Speaker 04:
No, they weren't, your honor.

[00:01:48] Speaker 04:
Most of them were issued in 2013.

[00:01:52] Speaker 04:
In the record, there was a supplement that was provided that showed the listing of all the permits from the county.

[00:01:58] Speaker 04:
There's also permits locally and also from the state.

[00:02:01] Speaker 03:
Let me just make sure we're talking about the same things.

[00:02:05] Speaker 04:
Sure.

[00:02:06] Speaker 03:
The initial conditional use permit said you have to get permits for particular types of constructions, engineering permits, water, whatever.

[00:02:16] Speaker 03:
Sure.

[00:02:16] Speaker 03:
The district court said they were all obtained within the two-year period specified in condition 29, and therefore the construction of phase one, if I can call it that, could go forward.

[00:02:32] Speaker 03:
Would the district court misstate the record in that respect?

[00:02:34] Speaker 04:
I believe so, Your Honor.

[00:02:36] Speaker 03:
Because you don't challenge that on appeal.

[00:02:39] Speaker 04:
No, we don't, Your Honor.

[00:02:41] Speaker 04:
There's just so much we can argue.

[00:02:43] Speaker 03:
But it seems to me what the district court's ruling was in part premised on the notion that with respect to phase one, because you got the permits within the two-year period, everything was fine, and that really the basement was part of phase one, so your permits covered the construction of that.

[00:03:05] Speaker 03:
If you're saying we actually obtained new permits later before the two-year period expired, I'd like to know that.

[00:03:18] Speaker 03:
But I don't think there's anything in the record that shows that.

[00:03:21] Speaker 04:
There is, Your Honor.

[00:03:22] Speaker 04:
If you look at the record, SCR 4,

[00:03:28] Speaker 04:
five, six, and seven.

[00:03:31] Speaker 04:
This is a supplemental report.

[00:03:36] Speaker 04:
It's called Parties Joint Submission Regarding Permits.

[00:03:40] Speaker 04:
It has an outline, a chart, of all the permits that were provided.

[00:03:46] Speaker 04:
It's also the disrecorded stock at 59.

[00:03:49] Speaker 03:
But as I understand condition 29, it required you to obtain permits within two years of the

[00:03:57] Speaker 03:
of the issuance of the conditional use permit, correct?

[00:04:02] Speaker 03:
I believe conditional... I mean, you say they waived it and said other things, but at least on its face it says this lasts for two years, correct?

[00:04:12] Speaker 04:
Condition 29, which is at ER1's... Yeah, and we all have it.

[00:04:16] Speaker 03:
You don't have to tell us where it is.

[00:04:17] Speaker 04:
It says the approval is valid for two years from the date of a final written decision.

[00:04:21] Speaker 04:
It doesn't say you have to secure and complete all your permits, finalize all your permits at that point in time.

[00:04:27] Speaker 03:
But you only had approval to go forward for two years, correct?

[00:04:32] Speaker 04:
The approval is valid for a period of two years.

[00:04:34] Speaker 03:
Okay, so as to that, your argument must be to avoid a statute of limitations problem,

[00:04:42] Speaker 03:
that while it says that, you were led to believe something differently, correct?

[00:04:47] Speaker 04:
That is correct.

[00:04:48] Speaker 04:
And it not just led, but we were encouraged.

[00:04:53] Speaker 03:
I want to get to those issues, but I just want to make sure I understand it.

[00:04:56] Speaker 03:
Because it seems to me that on its face,

[00:04:58] Speaker 03:
You knew back in 2006 when Condition 29 was issued that it was only valid for two years, correct?

[00:05:08] Speaker 04:
We knew the conditional use permit was valid for two years.

[00:05:10] Speaker 03:
Only for two years.

[00:05:10] Speaker 03:
And you also knew, because the ordinance was in effect in those days, that conditional use permits weren't required for governmental recreational use.

[00:05:21] Speaker 03:
So to the extent you're complaining about those two things, you knew about them in 2006, correct?

[00:05:27] Speaker 03:
That is correct.

[00:05:28] Speaker 04:
So tell me why the statute of limitations doesn't run on claims about those.

[00:05:44] Speaker 04:
were received were acted upon were finalized by the church and through the through the county.

[00:05:51] Speaker 04:
We had sought from 2006 asking them can we do this in phases the answer is yes in 2013 well past the.

[00:05:59] Speaker 04:
timeframe, we again petitioned the county in an email saying, can we do this in phases?

[00:06:04] Speaker 04:
And the answer was yes.

[00:06:06] Speaker 04:
If we remember the world back in 2006 and seven as well, that's when we had that huge financial meltdown when you had companies like AIG and General Motors going for bankrupt.

[00:06:16] Speaker 04:
The world kind of just kind of stopped at that point.

[00:06:19] Speaker 04:
So we had to deal with that particular issue with the financial issues.

[00:06:23] Speaker 04:
first before we could start construction.

[00:06:25] Speaker 03:
Well, you were told in 2006 you could proceed in phases.

[00:06:29] Speaker 03:
Yes.

[00:06:29] Speaker 03:
But you weren't told in 2006 that the permit would extend past the two years, the conditional use permit provided in the condition 29.

[00:06:39] Speaker 03:
We were told, well, I disagree with that.

[00:06:41] Speaker 03:
Well, now you have the quote about exactly what you were told.

[00:06:44] Speaker 03:
Nobody said, and don't worry about condition 29.

[00:06:46] Speaker 03:
You can proceed in phases.

[00:06:48] Speaker 03:
You might take two years to go in phases.

[00:06:50] Speaker 03:
You might come back later and get additional permission.

[00:06:54] Speaker 03:
But nobody said condition 29 doesn't apply.

[00:06:57] Speaker 04:
Because we were getting permits at that time.

[00:06:59] Speaker 04:
Why not?

[00:06:59] Speaker 03:
That's not what I'm asking.

[00:07:01] Speaker 03:
Do you have any place where anybody ever said, do you forget about condition 29?

[00:07:06] Speaker 03:
Don't worry about it.

[00:07:07] Speaker 03:
Just go on as if it didn't exist.

[00:07:10] Speaker 04:
We don't have that because of the course of conduct of the county saying you can go ahead and get permits and we'll issue permits so you can continue construction.

[00:07:18] Speaker 03:
What permits did it issue?

[00:07:20] Speaker 04:
Sure.

[00:07:20] Speaker 03:
You see, the fact that it may issue a permit that allows something, and I have to look and see what they are, still doesn't mean that you've been forgiven the application of condition 29, does it?

[00:07:34] Speaker 04:
I believe it does, Your Honor.

[00:07:35] Speaker 04:
So if we start going back to SCR 4.

[00:07:39] Speaker 04:
Yeah, I'm looking at that.

[00:07:41] Speaker 04:
You have the building permit for electrical.

[00:07:45] Speaker 04:
You have for the sprinkler system in 2015, a permit for that.

[00:07:50] Speaker 04:
You need to have that for occupancy permit.

[00:07:52] Speaker 04:
You have the fire water lines as well in 2015.

[00:07:59] Speaker 03:
What you're saying is that the fact that they issued these permits exempts you from the applicable zoning restriction.

[00:08:06] Speaker 04:
That is correct.

[00:08:07] Speaker 03:
In what case do you rely on for that?

[00:08:09] Speaker 04:
I believe, Your Honor, that's what we talk about through the the way case that we submitted our brief.

[00:08:16] Speaker 04:
It's a Ninth Circuit case where it was a period of five years where the county or the city of Santa Ana did the same thing to the way, saying we're not going to enforce this particular provision.

[00:08:29] Speaker 03:
But they said we're not going to enforce this.

[00:08:32] Speaker 03:
That's why I asked the question.

[00:08:34] Speaker 03:
In that case, the city said, don't worry about this provision in your

[00:08:37] Speaker 03:
in your conditional use permit or whatever the equivalent was in San Jose, you can go ahead.

[00:08:43] Speaker 03:
And here, what I don't find is anybody saying, don't worry about that condition.

[00:08:48] Speaker 04:
I believe, Your Honor, you'll not find anything in the record that says conditional 29.

[00:08:55] Speaker 04:
You don't have to worry about condition 29.

[00:08:57] Speaker 04:
That is true.

[00:08:58] Speaker 04:
But what you will find in the record, Your Honor, are those emails from those individuals where the specific question was asked about,

[00:09:07] Speaker 04:
You know, we understand that there's a two-year period of time.

[00:09:11] Speaker 04:
Can we go ahead and do this and phase it?

[00:09:14] Speaker 04:
And that's, again, starting in 2006, the answer from Clay Gaskowood was phasing is fine.

[00:09:23] Speaker 01:
Well, but there's a previous sentence.

[00:09:26] Speaker 01:
He says, I would suggest getting the whole thing approved from the get-go.

[00:09:30] Speaker 01:
Phasing would be fine.

[00:09:32] Speaker 01:
It could very well be interpreted.

[00:09:35] Speaker 01:
Assuming that you've done that, that is to say getting the whole thing approved from the get-go, doing it with phases once that's happened is fine with me.

[00:09:43] Speaker 04:
That's correct, because at that time, in April of 2006, they were going through the conditional use process.

[00:09:50] Speaker 01:
But I don't read this thing when I read both sentences as saying phasing is fine and don't worry about exceeding the two years.

[00:09:58] Speaker 04:
I think, though, if you couple that with the email from October 2013, where the specific question was asked in those emails, starting on ER 185,

[00:10:12] Speaker 04:
about the permits even after two years of the decision.

[00:10:15] Speaker 04:
And that's from Dina Mulder to Sadie Inglis.

[00:10:19] Speaker 04:
This is an internal email question.

[00:10:22] Speaker 04:
And the answer from Mike McAllister to the county said, there are no additional lane use review is required at that point in time.

[00:10:30] Speaker 04:
So they were waiving this two-year period.

[00:10:33] Speaker 03:
You never saw that until discovery.

[00:10:34] Speaker 03:
So you can't rely on that for a stop pull, can you?

[00:10:37] Speaker 04:
One more time.

[00:10:38] Speaker 03:
You didn't get that email.

[00:10:41] Speaker 04:
We got the email of Mike McAllister to Terry Boggs.

[00:10:45] Speaker 03:
Yeah, part of your argument is that you didn't discover your cause of action till you got that email, right?

[00:10:51] Speaker 04:
Our argument is we didn't discover the cause of action until we were denied in 2022.

[00:10:55] Speaker 04:
OK, I understand that argument.

[00:10:57] Speaker 03:
But I'm again stuck with this problem.

[00:11:00] Speaker 03:
It seems to me that to the extent you wanted to complete phase one and build out the basement and everything,

[00:11:07] Speaker 03:
you had obtained all the relevant permits during the first two years.

[00:11:11] Speaker 03:
You could have obtained the relevant permits to do the entire project during the first two years, even if you had decided not to go forward with phase two.

[00:11:20] Speaker 03:
And the county's position seems to be

[00:11:23] Speaker 03:
That's what you should have done.

[00:11:25] Speaker 03:
Condition 29 required you to get all the relevant permits during those first two years.

[00:11:30] Speaker 03:
You could phase your construction over a long period of time.

[00:11:36] Speaker 03:
But to the extent you didn't get the relevant permits in those first two years, condition 29 applies.

[00:11:42] Speaker 03:
So tell me why that position is wrong.

[00:11:44] Speaker 04:
That position is wrong because those permits applied to both sides of the church.

[00:11:48] Speaker 04:
So if you can imagine, we have one side that's being built.

[00:11:51] Speaker 04:
You have a center pathway where sidewalk is right now.

[00:11:54] Speaker 04:
That was built.

[00:11:55] Speaker 04:
The other side hasn't been built yet.

[00:11:57] Speaker 04:
The permits that we received applied to both, to the entirety of the building.

[00:12:01] Speaker 03:
During the first two years?

[00:12:04] Speaker 04:
During the entirety from... During the first two years?

[00:12:07] Speaker 04:
During the first three years, yeah.

[00:12:08] Speaker 04:
So for example, we had to put in traffic lights off the freeway, two sets of traffic lights.

[00:12:14] Speaker 04:
That applied to both sides.

[00:12:15] Speaker 04:
We had to put a 900

[00:12:18] Speaker 04:
space parking lot.

[00:12:20] Speaker 03:
See, I'm reviewing this case.

[00:12:22] Speaker 03:
I don't see that that argument was made to the district court.

[00:12:27] Speaker 03:
Now you're making an argument.

[00:12:28] Speaker 03:
I don't see it in your briefs.

[00:12:30] Speaker 03:
Now what you're saying is, oh, this is just a mistake of fact.

[00:12:34] Speaker 03:
We had obtained all the relevant permits to conduct phase two during the first two years, and everybody has just got this wrong.

[00:12:42] Speaker 03:
Where do I find that argument in your briefs?

[00:12:44] Speaker 04:
Well, we have that argument in the statement of facts, but this goes to the point of the district court's decision.

[00:12:53] Speaker 03:
Did you make that argument to the district court?

[00:12:55] Speaker 04:
The argument we made to the district court was a more substantive argument.

[00:12:58] Speaker 04:
Well, I understand.

[00:12:59] Speaker 03:
But now you're saying something new, and I'm trying to figure it out.

[00:13:02] Speaker 03:
I'm hearing it for the first time, which is your contention is... So what's your answer?

[00:13:08] Speaker 04:
Yeah, herein lies the problem with that is that...

[00:13:12] Speaker 04:
In this particular case, what we had is the district court making a decision on an argument.

[00:13:17] Speaker 04:
So we're never even raised by the county before.

[00:13:19] Speaker 04:
The statute of limitations, where the county says the statute of limitations expired, the RLUPA statute of limitations expired in 2008, or I'm sorry, in 2010.

[00:13:29] Speaker 04:
That was not an affirmative defense.

[00:13:31] Speaker 04:
They didn't raise it in a reply brief.

[00:13:33] Speaker 04:
We have the Ninth Circuit case law that we put in here.

[00:13:35] Speaker 04:
That issue that the district court kind of held on to in this case was never argued before.

[00:13:41] Speaker 03:
No, I understand your argument on that.

[00:13:42] Speaker 03:
You've briefed it and we'll have to reach it.

[00:13:43] Speaker 03:
Sure.

[00:13:44] Speaker 03:
I'm asking a very different question.

[00:13:46] Speaker 03:
I think what you're telling me today, and maybe I'm misinterpreting it, is that everybody's got this wrong.

[00:13:52] Speaker 03:
You got all the relevant permits to complete all the phases within the first two years.

[00:13:57] Speaker 03:
And that even if the county's position is right that you had to do so, you did so.

[00:14:03] Speaker 00:
Is that your argument?

[00:14:04] Speaker 03:
And I don't find that argument in your briefs or being made to the district court.

[00:14:08] Speaker 00:
I don't think that's the argument you're making, but you're just about out of time.

[00:14:10] Speaker 00:
So could you please restate your position on this point?

[00:14:13] Speaker 04:
Sure.

[00:14:13] Speaker 04:
On this particular point, there was a number of permits that applied to both sides of the building, to both phase one and two, if you want to call them that.

[00:14:20] Speaker 00:
But some permits for the phase two part of the building.

[00:14:23] Speaker 04:
That's exactly right.

[00:14:24] Speaker 00:
OK.

[00:14:24] Speaker 00:
So you've been calling our attention to the list of permits at SCR 45, and these run from 2006 to

[00:14:32] Speaker 00:
2015.

[00:14:33] Speaker 00:
Are these permits for the Phase 1?

[00:14:37] Speaker 04:
For both Phase 1 and Phase 2.

[00:14:41] Speaker 03:
Let me ask the question slightly differently because now, as you can tell by my questions, I'm not sure I understand.

[00:14:46] Speaker 00:
I think we're a little lost now.

[00:14:48] Speaker 03:
Had by 2008, two years, when condition 29 would have kicked in, had you obtained all the permits necessary to construct Phase 2?

[00:15:02] Speaker 04:
No.

[00:15:02] Speaker 03:
Okay.

[00:15:03] Speaker 03:
Thank you.

[00:15:04] Speaker 03:
So you had to obtain some permits that might have applied to Phase 2, but you hadn't yet obtained all the permits that would have allowed you to proceed with Phase 2.

[00:15:15] Speaker 03:
Correct.

[00:15:16] Speaker 03:
And really, that's why we're here today.

[00:15:17] Speaker 00:
I have a slightly different argument or a question.

[00:15:21] Speaker 00:
Sure.

[00:15:21] Speaker 00:
You answered that some of these permits on SER 456 apply to both phases.

[00:15:29] Speaker 00:
Is there any permit that you received that only applies to Phase 2?

[00:15:34] Speaker 04:
No.

[00:15:35] Speaker 04:
Again, and I believe that's why in 2022 we went to the county to say, give us the permits just for this.

[00:15:42] Speaker 00:
That aligns the case with the briefing, I understand.

[00:15:45] Speaker 01:
Here's something I don't understand as just a general proposition or your approach to this, I'll say, problem rather than this case.

[00:15:55] Speaker 01:
Why don't you or why didn't you simply go back to the county and ask for a new permit rather than pursue this litigation?

[00:16:02] Speaker 04:
Sure.

[00:16:03] Speaker 04:
Well, Your Honor, there's a number of reasons why we did that.

[00:16:11] Speaker 04:
Going back to permit 29 in 2006, we didn't go back to the county at that point in time to amend the conditions because we were getting permits.

[00:16:20] Speaker 04:
We were getting the permission to do that.

[00:16:22] Speaker 01:
No, I mean, in the very recent past,

[00:16:24] Speaker 01:
When it's clear that you've got some problems under the existing permit, you think the problems don't exist or that they can be overcome, but when it's clear you have this problem, why didn't you just apply for a new permit?

[00:16:35] Speaker 01:
The legal landscape has changed.

[00:16:38] Speaker 01:
The permitting process is now clearly in compliance with our lupa.

[00:16:42] Speaker 01:
It should have seemed to me that the easiest way to go forward is just, hey, here's a new permit application.

[00:16:47] Speaker 01:
Why not?

[00:16:48] Speaker 04:
Well, there's several reasons.

[00:16:50] Speaker 04:
One is that we don't have to, Your Honor.

[00:16:52] Speaker 01:
Well, I understand your argument is you don't have to.

[00:16:55] Speaker 04:
That's not my question.

[00:16:56] Speaker 04:
Sure.

[00:16:56] Speaker 04:
The second reason is we have a damages claim that's still out there as well.

[00:17:01] Speaker 03:
So the damages from 2022... Well, shouldn't you mitigate your damages by obtaining a new permit and moving forward?

[00:17:07] Speaker 03:
I mean, or do you want to keep your damages running forever while you litigate it?

[00:17:10] Speaker 04:
No, and here's the third part going to Judge Fletcher's question.

[00:17:16] Speaker 04:
This Type 2 discretionary permit issue where they changed the ordinance to right now is nearly identical to the conditional use permit.

[00:17:24] Speaker 04:
It's not like we can go and get a building permit today.

[00:17:27] Speaker 04:
We can't walk into the office and say, hey, you changed your ordinance.

[00:17:30] Speaker 04:
We're now a permitted use.

[00:17:31] Speaker 04:
Give us a building permit.

[00:17:33] Speaker 04:
You still have to go through this discretionary process.

[00:17:35] Speaker 03:
But the county has said, apply.

[00:17:39] Speaker 03:
If you apply, A, they may approve it, or B, the county said, we may even waive it.

[00:17:45] Speaker 03:
And maybe you're all working for free, so it doesn't matter.

[00:17:48] Speaker 03:
But it does seem to me a lot more money has been spent on this litigation than if you just had applied.

[00:17:55] Speaker 03:
And it seems to me quite probable the county would approve your application.

[00:17:59] Speaker 04:
I think we're making a number of assumptions that, through time, we know that won't happen.

[00:18:05] Speaker 04:
So for example,

[00:18:06] Speaker 04:
When Athe Creek first started as a church, it was in a middle school.

[00:18:10] Speaker 04:
The county refused the church to be in this middle school, charging, finding them up to $3,500 a day, claiming that this middle school was only approved for a school, but not for a church.

[00:18:21] Speaker 04:
The church then went out and bought land.

[00:18:24] Speaker 04:
It went through, in another area, went through a conditional use permit process.

[00:18:28] Speaker 04:
It was denied at that point in time.

[00:18:30] Speaker 04:
Then we go through this 2006 period where this is just a long, hard process, expensive process, where it wasn't an automatic approval.

[00:18:38] Speaker 04:
So we have a history here with the county.

[00:18:40] Speaker 04:
where it's not like they're going to, we know from working with the county, it's not as simple as here's an application, you'll give us a permit, because we know through this history, it's not like that.

[00:18:51] Speaker 04:
Can I ask one more question?

[00:18:52] Speaker 00:
Yes, because he's severely over time.

[00:18:53] Speaker 00:
Oh, I apologize.

[00:18:55] Speaker 03:
This is an easy question to answer.

[00:18:58] Speaker 03:
It requires a four number answer.

[00:19:01] Speaker 01:
All right.

[00:19:01] Speaker 03:
What year did you first learn that the county took the position that you had to get a new permit?

[00:19:07] Speaker 04:
2022.

[00:19:09] Speaker 03:
Thank you.

[00:19:10] Speaker 00:
Excellent discipline.

[00:19:12] Speaker 00:
Thank you.

[00:19:13] Speaker 00:
Please take your seat, and we'll give you a minute to come back.

[00:19:23] Speaker 02:
Good morning.

[00:19:24] Speaker 02:
May it please the court, Caleb Hugel for Clackamas County.

[00:19:29] Speaker 02:
I think the court knows what's going on here.

[00:19:32] Speaker 02:
RLIPA was enacted to prohibit discrimination and zoning laws.

[00:19:37] Speaker 02:
Appellant doesn't just want to be treated equally here.

[00:19:40] Speaker 02:
It wants something no other land use applicant gets.

[00:19:43] Speaker 00:
This record is frustrating to me because it seems like a miscommunication, maybe on both sides.

[00:19:51] Speaker 00:
And I kind of share Judge Fletcher's concern.

[00:19:55] Speaker 00:
In 2022, why wasn't there just a new application?

[00:19:59] Speaker 00:
And why are we here?

[00:20:01] Speaker 00:
It's not just money.

[00:20:02] Speaker 00:
It's not just damages.

[00:20:03] Speaker 00:
It's also the church has been really delayed in building the second half of its, you know, phase two.

[00:20:08] Speaker 00:
And so it's really a shame.

[00:20:11] Speaker 00:
Can you enlighten me?

[00:20:13] Speaker 02:
I agree with your honor that it is a shame.

[00:20:14] Speaker 02:
What I can say is that in August of 2022, the county emailed counsel for appellant and explained the legal landscape and that a new permit was required for the reasons that we argue in our brief.

[00:20:29] Speaker 02:
Rather than apply for a new permit, this litigation was brought.

[00:20:32] Speaker 02:
I can't answer why appellant did not apply for a new permit.

[00:20:36] Speaker 03:
Could the county legally deny an application for a new permit?

[00:20:41] Speaker 02:
Yes, yes.

[00:20:43] Speaker 02:
Why?

[00:20:43] Speaker 03:
I mean you approved, the original permit approved the entire project if all the permit or if all the relevant

[00:20:53] Speaker 03:
Other permits were obtained within the first two years.

[00:20:56] Speaker 03:
They weren't.

[00:20:57] Speaker 03:
But you were fine with the project back then.

[00:21:00] Speaker 03:
And their only problem from your perspective is that they didn't obtain all the relevant permits to complete the whole project within two years.

[00:21:09] Speaker 03:
So we're now 20 years later, and they've obtained them.

[00:21:12] Speaker 03:
Why don't you just let them finish the project?

[00:21:15] Speaker 02:
Because they, under the Clackamas County Zoning and Development Ordinance, they require land use approval to build the second phase of their church.

[00:21:21] Speaker 03:
I understand.

[00:21:21] Speaker 03:
Why don't you just approve it?

[00:21:23] Speaker 03:
You know what the second phase is.

[00:21:24] Speaker 02:
There is... There has been no application.

[00:21:28] Speaker 02:
At this point, there is nothing for us to approve.

[00:21:30] Speaker 03:
I understand.

[00:21:30] Speaker 03:
But if you called up these guys tomorrow and said, we have all your plans because you submitted them back in 2002,

[00:21:38] Speaker 03:
If you now have all the relevant permits, God bless the wrong thing to use when talking about a church.

[00:21:43] Speaker 03:
Go ahead and do it.

[00:21:45] Speaker 03:
I don't understand from your perspective why you're fighting this.

[00:21:48] Speaker 03:
I don't understand from their perspective why they haven't applied.

[00:21:51] Speaker 03:
So I'm asking Judge Fletcher's question of you all.

[00:21:54] Speaker 03:
Is it just because I can?

[00:21:56] Speaker 03:
I mean, that's what the other side's position seems to be.

[00:21:58] Speaker 03:
We're litigating this because we can.

[00:22:00] Speaker 03:
We haven't chosen the easy way to resolve it.

[00:22:03] Speaker 03:
That seems to be your position too.

[00:22:06] Speaker 02:
Respectfully, no, Your Honor.

[00:22:08] Speaker 02:
It is not the county's policy when someone wants to redo a permit that was previously approved and has expired for us to go back through our records.

[00:22:15] Speaker 03:
It may not be your policy.

[00:22:17] Speaker 03:
You have litigation pending that could easily be settled by saying to them, we have your old application.

[00:22:25] Speaker 03:
We have all the permits that have been obtained outside the two-year period.

[00:22:30] Speaker 03:
They all seem to be in order.

[00:22:34] Speaker 03:
Go ahead now and finish it.

[00:22:35] Speaker 03:
This is a settlement of the litigation.

[00:22:37] Speaker 02:
Your Honor, I believe the county is entitled to employ administrative practices and systems for how... Your answer is the same as his.

[00:22:45] Speaker 02:
...for how an application is filed.

[00:22:46] Speaker 03:
Your answer is the same as his.

[00:22:47] Speaker 03:
We're litigating this because we want to.

[00:22:49] Speaker 02:
We do not want to.

[00:22:51] Speaker 03:
A pox on both your houses, then, and we'll decide the legal issues.

[00:22:55] Speaker 03:
But I just don't understand why you don't get in a room with a mediator and solve this case.

[00:23:00] Speaker 02:
Your Honor, we advised Appellant to file a new application, and they did not do that.

[00:23:07] Speaker 02:
The county has a process for accepting applications.

[00:23:10] Speaker 02:
The former application was for a former land use permit.

[00:23:14] Speaker 03:
No, I understand your answer.

[00:23:16] Speaker 03:
And you're not required to settle or be reasonable.

[00:23:19] Speaker 03:
I'm just trying to figure out why you're both here.

[00:23:22] Speaker 03:
So go on to the merits.

[00:23:23] Speaker 03:
Explain for us this permits issue.

[00:23:27] Speaker 03:
I think we've now clarified that they hadn't obtained during the first two years

[00:23:31] Speaker 03:
all the permits necessary for the construction of phase two.

[00:23:34] Speaker 00:
And we clarified, I think, so you can correct us if we're wrong, that of the permits they obtained that do apply to phase two, all of them apply to phase one and two.

[00:23:46] Speaker 00:
That is, no permits that were solely aimed at phase two have been issued.

[00:23:51] Speaker 03:
That is correct.

[00:23:53] Speaker 03:
So that leads me to my question.

[00:23:56] Speaker 03:
So why was the county issuing additional permits

[00:24:01] Speaker 03:
after, why were additional permits being issued after 2008?

[00:24:05] Speaker 02:
I feel like I'm answering two people's questions.

[00:24:08] Speaker 03:
Which ER 45 seems to demonstrate that they obtained additional permits after the two year period ended.

[00:24:18] Speaker 03:
Why didn't the county simply say to them, hey, you know, we're not going to issue the permits because they're not going to help you.

[00:24:25] Speaker 03:
You still have to be, they had to be obtained during the two year period.

[00:24:28] Speaker 02:
Our position before the district court was that they obtained all the permits that they needed for phase one in 2007, between 2006 and 2008.

[00:24:36] Speaker 02:
While some of those permits applied to phase two, for example, the parking lot would have been used for both phases.

[00:24:42] Speaker 03:
My question wasn't precise enough.

[00:24:44] Speaker 03:
You're answering a different question.

[00:24:46] Speaker 03:
Your friend says, and we continue to get permits well after 2008.

[00:24:51] Speaker 03:
And that's what SER-45 seems to show.

[00:24:58] Speaker 03:
Did the county issue those permits?

[00:25:00] Speaker 02:
My understanding was that SER-45 said all of those permits were obtained during the first two years.

[00:25:08] Speaker 03:
Well, that's my question.

[00:25:09] Speaker 03:
Yes.

[00:25:10] Speaker 03:
He says they were obtained later.

[00:25:11] Speaker 02:
So I'm trying to figure out what the facts are.

[00:25:16] Speaker 02:
that some of the permits for phase one were not obtained between 2006 and 2008 and were obtained later was not before the district court.

[00:25:23] Speaker 02:
It did not appear in appellant's briefing in this appeal.

[00:25:26] Speaker 02:
Our position has always been that they obtained all the permits that were necessary for phase one before the condition was expired.

[00:25:31] Speaker 03:
Again, you're answering a different question than what I'm asking.

[00:25:35] Speaker 03:
The record seems to show that whatever their legal effect, some permits were issued to the church after 2008.

[00:25:45] Speaker 03:
Is that true?

[00:25:45] Speaker 03:
Am I wrong in reading the record that way?

[00:25:48] Speaker 02:
The only permit that I know of that was issued after 2008 would have been a building permit for the modified basement to phase one.

[00:25:56] Speaker 03:
Forget the basement.

[00:25:57] Speaker 03:
So putting the basement aside, your position is there weren't any permits issued after 2008.

[00:26:04] Speaker 02:
This record does not show any.

[00:26:06] Speaker 00:
Now I'm really confused because council just called our attention to SCR 45.

[00:26:12] Speaker 00:
and he is correct that it's the party's joint submission regarding permits and it's an Excel, it's a table, sort of an Excel spreadsheet that runs from 2015 back to 2007 as a list of building permits.

[00:26:26] Speaker 00:
And I asked a minute ago and I thought I understood opposing counsel told me that these either pertain to phase one or some of them pertain to phase one and two but none of them pertain to just phase two.

[00:26:39] Speaker 02:
That's correct.

[00:26:40] Speaker 00:
Well, how do you reconcile that answer with the one you just gave to Judge Hurwitz?

[00:26:43] Speaker 00:
What am I missing?

[00:26:44] Speaker 02:
All of the permits that were necessary to proceed with the construction of phase one were obtained between 2007, or excuse me, were obtained in 2007.

[00:26:55] Speaker 02:
Enough of the permits for us to conclude that condition 29 was satisfied as to phase one were obtained before 2008.

[00:27:00] Speaker 03:
So some of these permits that were issued after 2008?

[00:27:03] Speaker 02:
Were not necessary to construct phase one.

[00:27:06] Speaker 03:
Phase one, they relate to phase two.

[00:27:09] Speaker 02:
No, I think some of these permits were for phase one.

[00:27:12] Speaker 02:
They were just not necessary for us to conclude that condition 29 was satisfied.

[00:27:17] Speaker 01:
So what do you mean a permit?

[00:27:18] Speaker 01:
Sounds as though the permits were not required then if you say they weren't necessary.

[00:27:22] Speaker 02:
I'm sure some of these permits were not required for them to have satisfied condition 29 as to phase one.

[00:27:29] Speaker 03:
So why were you issuing them?

[00:27:32] Speaker 02:
We received applications and they met the criteria.

[00:27:35] Speaker 02:
The county understood that because they obtained all the permits that were

[00:27:39] Speaker 02:
necessary for the construction of phase one before 2008.

[00:27:42] Speaker 02:
It could continue to approve permits related to that phase under the land use approval going forward, which is why in 2013, when they asked to modify the basement, we said that was allowed.

[00:27:54] Speaker 03:
One other question on this factual issue.

[00:27:57] Speaker 03:
Are any of these permits issued after 2008 only applicable to phase two?

[00:28:03] Speaker 02:
Not that I know of, Your Honor, and I don't think that was ever argued.

[00:28:05] Speaker 03:
And there's nothing in this record about that.

[00:28:08] Speaker 02:
Correct.

[00:28:09] Speaker 02:
That's my understanding.

[00:28:10] Speaker 01:
In a way, we've gone over this ground, but let me try again.

[00:28:13] Speaker 01:
Have you been through our mediation program in the circuit?

[00:28:17] Speaker 02:
We did, Your Honor.

[00:28:18] Speaker 01:
That means, in other words, it failed?

[00:28:21] Speaker 02:
It did, Your Honor.

[00:28:22] Speaker 01:
No, I'm not allowed to ask why.

[00:28:24] Speaker 01:
I just want to know whether you went through the program.

[00:28:27] Speaker 02:
We did.

[00:28:29] Speaker 00:
Anything further?

[00:28:31] Speaker 02:
Yes, Your Honor.

[00:28:32] Speaker 02:
I guess at this point, I should proceed through the

[00:28:38] Speaker 02:
Arguments that are specific to provisions of RLPA and the federal and state constitutions.

[00:28:44] Speaker 02:
Appellant faults the district court for having dismissed a portion of its substantial burden claim as not ripe.

[00:28:51] Speaker 02:
That argument is frustrating because over the course of this proceeding, it has been difficult to decide what the allegedly substantial burden is.

[00:29:00] Speaker 02:
There are a few options.

[00:29:02] Speaker 02:
Maybe it's something related to the 2006 conditional use permit.

[00:29:04] Speaker 02:
Maybe it's the requirement to apply for new land use approval.

[00:29:07] Speaker 02:
Maybe it is the potential future decision the county would issue if they did apply for new land use approval.

[00:29:13] Speaker 02:
But at various points in its briefing, Appellant says none of those are our argument.

[00:29:19] Speaker 02:
At one point in its briefing, Appellant argues that the allegedly substantial burden is the fact that it constructed all of the very expensive transportation improvements that were acquired under the 2006 conditional use permit, and then it was concluded

[00:29:35] Speaker 02:
that the 2006 conditional use permit had expired and they needed new land use approval.

[00:29:42] Speaker 02:
To the extent that their argument is that it is not the requirement to apply for new land use approval and it is not the county's future decision on an as yet unfiled land use application that is the substantial burden, but it is the discretionary nature of the process that the county would use to review such an application, that argument is not right

[00:30:03] Speaker 02:
for the same reason that a challenge to the county's potential future decision on an unfiled application is not right.

[00:30:09] Speaker 00:
Because they haven't filed a new application?

[00:30:11] Speaker 02:
It is not right because if they did file a new application and if they argued during the application process that some of the review procedures or criteria were substantially burdensome and if the county agreed then under RLIPA it could waive those.

[00:30:25] Speaker 00:
Do you talk to them like you're talking to us?

[00:30:28] Speaker 00:
I can imagine it just doesn't feel like there's any effort to read.

[00:30:31] Speaker 00:
We're all public servants.

[00:30:33] Speaker 02:
This argument that we could waive provisions that we believed violated RLIPA was presented to appellants in 2022.

[00:30:39] Speaker 02:
We tried to explain.

[00:30:42] Speaker 02:
The question is not whether RLIPA prevents us from applying the zoning and development ordinance in some cases.

[00:30:51] Speaker 02:
The question is, when can we conclude that?

[00:30:53] Speaker 02:
And based on this circuit's case law, residential neighborhood advocates, we said this has to happen within the process

[00:30:59] Speaker 02:
for making a decision on a land use permit application.

[00:31:04] Speaker 00:
What was the discussion?

[00:31:06] Speaker 00:
Perhaps, you know, this spanned many years.

[00:31:09] Speaker 00:
I fully appreciate that.

[00:31:10] Speaker 00:
And I think the email that they considered to be sort of a smoking gun email is one that they didn't have until discovery.

[00:31:18] Speaker 00:
But it is concerning to me that there may have been some communication slippage here about the extent to which they were

[00:31:28] Speaker 00:
going to be allowed to build in phases.

[00:31:30] Speaker 00:
Could you respond to that, please?

[00:31:32] Speaker 02:
I think Judge Hurwitz's line of questioning was spot on.

[00:31:35] Speaker 02:
I don't think that we ever indicated that they would be allowed to build in phases regardless of condition 29.

[00:31:41] Speaker 02:
They had three that were under the 2006 conditional use permit.

[00:31:44] Speaker 00:
There's room for miscommunication there, isn't there?

[00:31:47] Speaker 00:
Or misunderstanding, isn't there room for it?

[00:31:49] Speaker 02:
I don't know how, no, I don't believe so, Your Honor.

[00:31:52] Speaker 02:
I don't know how someone would believe that a plan or email from before a land use decision is issued could

[00:31:58] Speaker 02:
override conditions of approval contained in the land use permit.

[00:32:00] Speaker 00:
Do you have any more questions?

[00:32:01] Speaker 00:
I don't think we have any more questions.

[00:32:06] Speaker 02:
Your Honors, the District Court got it right here.

[00:32:10] Speaker 02:
Thank you for your time.

[00:32:11] Speaker 00:
Thank you.

[00:32:22] Speaker 00:
Just two minutes.

[00:32:24] Speaker 04:
Thank you, Your Honor.

[00:32:25] Speaker 04:
I think there's an important point, hearing the questions, I think really there's an important point that we need to discuss.

[00:32:32] Speaker 04:
Prior to 2022, prior to the filing of this lawsuit, we contacted the county and asked them about the specific issue.

[00:32:40] Speaker 00:
But you didn't file a new application.

[00:32:42] Speaker 04:
We didn't file an application because their response, again, looking at ER 196 through 203, we asked them about the specific problem that they had with their ordinance.

[00:32:54] Speaker 04:
Their response on ER 205 through 211 was basically go pound sand.

[00:32:59] Speaker 00:
Well, sir, he does have a procedure that he's got to put in place.

[00:33:03] Speaker 00:
His position is that your client doesn't get special dispensation.

[00:33:09] Speaker 00:
And it does seem to be pretty clear, at least on the face of what we're dealing here with, that there was a two-year period, and you exceeded the period.

[00:33:19] Speaker 00:
I'm just one.

[00:33:21] Speaker 00:
but it sure seems like this all happened in good faith.

[00:33:24] Speaker 00:
I don't understand why you didn't just file a new permit.

[00:33:26] Speaker 00:
A new application, forgive me.

[00:33:29] Speaker 04:
Sure.

[00:33:30] Speaker 04:
I think the big thing here that we need to kind of circle back to, which we hadn't discussed yet, is a conditional use vest upon the implementation of that conditional use permit.

[00:33:42] Speaker 04:
So under Oregon law, and again, we can look to the deposition of testimony of Jennifer Hughes at ER 71,

[00:33:50] Speaker 04:
page 41, as well as the zoning development ordinances that we talked about, development authorized by an approved land use permit is completed pursuant to the specific ordinance that granted a conditional use permit.

[00:34:05] Speaker 04:
And once the municipality determines that compliance is permitted, that permitted use is vested against and until expiration.

[00:34:14] Speaker 04:
And upon investing in the municipality, we terminate the intelligence only by revoking the underlying permit.

[00:34:19] Speaker 04:
And it was never revoked.

[00:34:20] Speaker 04:
That permit is still valid under Oregon law.

[00:34:23] Speaker 01:
But that doesn't respond to the question as to why you didn't do a belt and suspenders.

[00:34:28] Speaker 01:
That is, OK, pursue this or at least threaten this litigation, the one that we're in.

[00:34:32] Speaker 01:
But at the same time, apply for a new permit.

[00:34:34] Speaker 01:
And if they issued the new permit, that's awfully easy.

[00:34:38] Speaker 01:
Game's over.

[00:34:40] Speaker 01:
You win.

[00:34:41] Speaker 01:
Why didn't you do that?

[00:34:42] Speaker 04:
because of the experience that we've had with the county in the past along with our belief in under Oregon law that that conditional use permit is still valid.

[00:34:53] Speaker 04:
But again experiences the lesson here when we when we know over and over and over again that the county's just gonna say no then you know Why should I guess I don't understand as a question of law?

[00:35:04] Speaker 01:
That it doesn't make a lot of sense it especially when the law But they did but they did say yes at one point to exactly what you're now trying to do You're saying that they're gonna change their mind and say no.

[00:35:14] Speaker 01:
This is something they've already said yes to That's correct.

[00:35:18] Speaker 03:
Okay, but they did approve the whole project in 2003

[00:35:21] Speaker 04:
They approved the project in 2006, which we were entitled to rely on to complete the entire book.

[00:35:26] Speaker 03:
No, I understand.

[00:35:27] Speaker 03:
But I just want to make sure that the premise of Judge Fletcher's question is clear.

[00:35:31] Speaker 03:
When you came to them with the whole project, they said fine.

[00:35:35] Speaker 03:
They did put a condition on it, and that's what we're fighting about.

[00:35:38] Speaker 03:
So my question is, why would you think they wouldn't approve the whole project if you applied again?

[00:35:44] Speaker 04:
Again, through the history that we had, along with the response to our letter in 2022.

[00:35:50] Speaker 00:
We're going to take a thank you for your argument.

[00:35:52] Speaker 00:
You're well over time.

[00:35:53] Speaker 00:
We appreciate advocacy from both parties.

[00:35:55] Speaker 00:
We're going to take this case under advisement, and we're going to take a five minute break before we go forward.

[00:35:59] Speaker 04:
Thank you, Your Honor.

[00:36:05] Speaker 01:
All rise.

[00:36:12] Speaker 00:
The court stands in recess until about 10-15.

[00:36:15] Speaker 00:
Thank you.