dissenting.
I do not agree that we have statutory authority to award attorney fees here and, therefore, I respectfully dissent.1
*153The majority’s thesis is that all writ of mandamus actions are pretty much the same; consequently, it concludes that the general mandamus provisions of ORS chapter 34, including the provision for attorney fees in ORS 34.210(2), are applicable to this action under ORS 227.178(7). I do not share the majority’s premise that ORS 227.178(7) is materially indistinguishable from the general mandamus statutes, or that the differences between them are inconsequential. In fact, ORS 227.178(7) differs from the general statutes in the most fundamental of respects: The “mandamus” label it uses notwithstanding, ORS 227.178(7) provides for a totally different remedy than the one obtainable under ORS chapter 34.
The Supreme Court said in Riesland v. Bailey, 146 Or 574, 577, 31 P2d 183 (1934), that, under the general mandamus statutes:
“The general rule, which is well recognized, is that where the performance of an official duty or act involves the exercise of judgment or discretion, the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter; he can only be directed to act, leaving the matter as to what particular action he will take to his determination^] ”
(Citation omitted.) See also State ex rel Ricco v. Biggs, 198 Or 413, 422-23, 255 P2d 1055 (1953), and authorities there cited (stating same principle).
By contrast, the remedy provided in ORS 227.178(7) is exactly the relief that may not be allowed in mandamus actions under ORS chapter 34. Decisions on local permit applications can and generally do entail the exercise of judgment or discretion, ORS 197.015(10); Doughton v. Douglas County, 82 Or App 444, 728 P2d 887 (1986), rev den 303 Or 74 (1987), and the kinds of permits to which ORS 227.178 applies are defined to include a “discretionary approval of a proposed development of land.” ORS 227.160(2). (Emphasis supplied.) However, the remedy that ORS 227.178(7) establishes is not, like that of ORS chapter 34, to compel a recalcitrant public body to make a decision; rather, ORS 227.178(7) requires the court to tell the body what decision it must make, i.e., to approve the application. In other words, ORS 227.178(7) eliminates the city governing body’s discretion, if it has failed to exercise that discretion in a timely *154manner; conversely, the general statutes would allow nothing more than a judicial direction that the discretion be exercised. Because of that graphic difference between the two statutes, I do not agree with the majority’s understanding that ORS 227.178(7) should be treated as a transplanted version of the ORS chapter 34 provisions in their entirety, or that the general statutes rather than ORS 227.178(7) should be the focus of our analysis in this case that was brought pursuant to the latter.
I do not disagree with the majority that some of the procedural provisions in ORS chapter 34 are applicable in actions under ORS 227.178(7). As the legislature’s definition of the remedies under the two statutory schemes demonstrates, however, that does not mean that it intended to incorporate everything in the general statutes into ORS 227.178(7).
The answer to the specific question here, whether ORS 227.178(7) was intended to incorporate the attorney fee provision of ORS 34.210(2), is clear. ORS 227.178(7) was enacted through Oregon Laws 1983, chapter 827, section 27. ORS 34.210(2) was enacted six years later through Oregon Laws 1989, chapter 702, section 5. At the time ORS 227.178(7) was enacted, attorney fees were not recoverable in any mandamus action in Oregon. State ex rel Oregon Television, Inc. v. Prophet, 97 Or App 525, 526, 776 P2d 592 (1989). In my view, they remain unrecoverable in actions under that statute.
Accordingly, I dissent.
Richardson, C. J., and Riggs, J., join in this dissent.Our decision on the merits in this appeal followed the Supreme Court’s remand. In its opinion, State ex rel Compass Corp. v. City of Lake Oswego, 319 Or 537, 540 n 2, 878 P2d 403 (1994), the Supreme Court noted that “the propriety” of the trial court’s award of attorney fees under ORS 34.210(2) was not before it.