dissenting.
I
The final county decision on plaintiff’s septic tank permit application was made in December 1972. Not until over eight months later, in August 1973, was any judicial review of that decision sought. At that time, plaintiff filed a petition for a writ of mandamus. Then in January 1974, the proceeding was somehow transformed to its present nature ydien plaintiff filed an “Amended Complaint for Declaratory Judgment.”
Had plaintiff’s initial application to the circuit court been for a writ of review, it would have been much too late under the applicable 60-day limitations period, ORS 34.030, which has been held to be jurisdictional. Meury v. Jarrell, 269 Or 606, 525 P2d 1286, aff’g 16 Or App 239, 517 P2d 1221 (1974).
Since the county decision here reviewed was quasi-judicial in nature, plaintiff could have sought a writ of review. ORS 34.040. When a writ of review is a possible remedy, it has been argued it should be the exclusive remedy. Sullivan, From Kroner to Fasano: An Analysis of Judicial Review of Land Use Regulation in Oregon, 10 Will L J 358, 370-75 (1974). The arguments advanced are not insubstantial, including the claim that where, as here, quasi-judicial decisions *95affect property interests, both local officials and property owners should be able to know after 60 days that a decision is final.
However, Oregon statutes provide that declaratory relief is available “whether or not further relief is or could be claimed,” ORS 28.010, and Oregon cases hold “declaratory relief was not intended to be exclusive or extraordinary, but alternative and optional,” Schmitt et ux v. Culhane et al, 223 Or 130, 134, 354 P2d 75 (1960).
I suggest it is possible to achieve both the desirable goals argued for in 10 Will L J, supra, and at the same time do no violence to existing declaratory judgment law: we need only hold that the 60-day limitations period stated in ORS 34.030 is applicable in all situations where the writ of review was an available remedy.
The leading case in this regard is Maguire v. Hibernia S. & L. Soc., 23 Cal2d 719, 146 P2d 673, 151 ALR 1062 (1944). Other cases are collected in Annotation, 151 ALR 1076 (1944). These cases generally reason that the declaratory judgments statutes contain no limitations period, but it is ludicrous to conclude the legislature intended none to be applicable, and therefore the relevant limitations period in a declaratory judgment case has to be based on the underlying cause of action. For example, in a declaratory judgment case involving a claimed breach of contract, the limitations period for an action at law for breach of contract would be applicable.
Applying that analysis here, I think plaintiff’s underlying cause of action is for review of a quasi-judicial decision. A writ of review is clearly available here, ORS 34.040, regardless of whether it is exclusive. We should hold that the 60-day limitations period is applicable and that plaintiff came to court too late.
*96II
Moreover, I do not think we should undertake to review a qüasi-judieial decision of a local government without having the record that was before the local government before us, as would happen in a writ of review case, but as did not happen in this proceeding.
The only facts before us are those admitted in the pleadings and contained in a six-page written stipulation, which mostly repeats the facts admitted in the pleadings. No witnesses were called; no exhibits were introduced. The trial court’s opinion noted that the record that was before the local government was not before the court and stated “it is difficult for the court to determine what occurred.” I agree.
As I understand the situation, the Health Officer’s initial approval of plaintiff’s disposal permit was appealed to the Planning Commission. On August 9, 1972, the Planning Commission “referred” the matter back to the Health Officer — apparently this was tantamount to a remand for further proceedings. The Health Officer then apparently conducted further proceedings and then notified plaintiff his disposal permit was “reinstated.” The date of this action is not in the record, but it must have been after the August 9 remand to the Health Officer and before the August 22 appeal of the “reinstatement.” About this same time, the Jackson County Sewage Disposal Ordinance of 1972 was, according to the complaint, “adopted by Order entered October 18, 1972, nunc pro tunc August 9,1972.”
The majority finds more in this record than I do. It refers to the various appeals being initiated “by the county.” As best I can determine, they were initiated by a contiguous landowner who claimed plaintiff’s contemplated septic tank system would create a health hazard. The majority seems to think the 1972 ordi*97nance was applied to plaintiff “retroactively.” There is a large body of law governing adoption of ordinances; I do not recognize adoption by “nunc pro tunc order.” I am not sure what this means to the majority; it conveys no meaning at all to me.
My point is not to quibble with the majority. My objection is to plaintiff’s chosen procedures — asking the courts to review a quasi-judicial decision without furnishing the record that was the basis of that decision. Rather than having to speculate about what the facts are, I would hold review is impossible without the record.
Ill
The majority holds, as best I understand, that the procedures established by the 1970 ordinance must be applied to plaintiff, notwithstanding the fact that the 1970 ordinance was repealed and replaced by the 1972 ordinance while the question of whether plaintiff would receive a permit was unsettled.
I simply disagree with the majority’s analysis of Section 22 of the 1972 ordinance, which provides that previously obtained permits “shall continue in effect following the adoption date of this ordinance.” This language does not indicate any legislative intent on the question of whether permit applications then “in the pipeline” have to be processed under repealed procedures.
Morgan v. Morgan, 13 Or App 14, 507 P2d 409, Sup Ct review denied (1973), is not applicable for several reasons: (1) the language relied upon by the majority is the view of a single judge, expressly not joined by the other members of the panel, 13 Or App at 24, and is not precedent for anything; (2) Morgan involved interpretation of Oregon Laws 1971, ch 280, § 29, which is radically different from Section 22 of the *98ordinance now before us; and (3) most importantly, the Morgan language involved whether statutory changes can affect substantive rights asserted in pending cases, not the very different question of whether statutory changes can affect the procedures applicable to pending cases. That question is not answered by Morgan, but by cases like Libby v. Southern Pac. Co., 109 Or 449, 219 P 604, 220 P 1017 (1923), which is contrary to the majority’s disposition here.
For the foregoing reasons I would affirm, and therefore respectfully dissent.