Beck v. City of Portland

• Decision Date: 26 October 2005
• Docket Number: 0209-09048; A120474.
• Citation: 202 Or. App. 360,122 P.3d 131
• Parties: Lawrence BECK; Barbara Hutchinson; Thomas S. Brennan; Gayle I. Tokumoto; Alice Sayre; Mark Gould; Rose-Marie Barbeau-Quinn; Abby Gail Layton; Kathleen Root; Craig Rowland; A.P. Di Benedetto; Deborah Wheeler; Brian Dettling; Joseph P. Sonderleiter; and Carol A. Sonderleiter, Appellants, v. CITY OF PORTLAND, Respondent.
• Court: Oregon Supreme Court

122 P.3d 131

202 Or. App. 360

Lawrence BECK; Barbara Hutchinson; Thomas S. Brennan; Gayle I. Tokumoto; Alice Sayre; Mark Gould; Rose-Marie Barbeau-Quinn; Abby Gail Layton; Kathleen Root; Craig Rowland; A.P. Di Benedetto; Deborah Wheeler; Brian Dettling; Joseph P. Sonderleiter; and Carol A. Sonderleiter, Appellants, v. CITY OF PORTLAND, Respondent.

0209-09048; A120474.

COURT OF APPEALS OF OREGON.

Argued and Submitted February 11, 2004.

Decided October 26, 2005.

William C. Cox, Portland, argued the cause for appellants. With him on the briefs was Gary P. Shepherd.

Tracy P. Reeve, Portland, argued the cause and filed the brief for respondent.

Bruce H. Cahn, Portland, argued the cause for amicus curiae Oregon Health & Science University. With him on the brief were Stephen T. Janik and Ball Janik LLP.

Before LANDAU, Presiding Judge, and ARMSTRONG, Judge, and BARRON, Judge pro tempore.

ARMSTRONG, J.

Plaintiffs appeal from a judgment dismissing their claim for declaratory relief. ORS 28.010; ORCP 21 A.¹ Defendant filed a motion to dismiss plaintiffs' claim for lack of subject matter jurisdiction and for failure to state a claim. The trial court granted the motion. We affirm.

The case concerns defendant City of Portland's development plans for Marquam Hill and the North Macadam District of Portland. Plaintiffs own property on Gibbs Street in Portland. In September 2002, plaintiffs brought an action for a declaratory judgment, alleging, in part, that,

"[t]hrough Ordinance 176742 and related planning documents, the City of Portland has set the framework to permit an aerial tram to be located above Gibbs Street. The aerial tram is to connect the North Macadam District with Oregon Health Sciences University (OHSU)."

Plaintiffs requested a declaration "that (1) they own the real property over Gibbs Street in the City of Portland and (2) permitting an aerial tram to be located above Gibbs Street and on plaintiffs' property would require the payment of just compensation" under the state and federal constitutions.

Ordinance 176742 adopts and implements the "Marquam Hill Plan." The ordinance states that the Marquam Hill Plan "includes policies and regulations that allow institutional expansion on Marquam Hill, policies that support additional institutional expansion in the North Macadam District and a policy that establishes a Science and Technology Quarter encompassing both locations[.]" The ordinance also states that "a suspended cable transportation system is needed and appropriate to connect Marquam Hill with North Macadam." However, it contains this caveat:

"[T]he Council expressly notes that the Marquam Hill Plan does not identify what kind of suspended cable transportation system, if any, is most appropriate to connect Marquam Hill with the North Macadam District or other areas of the City. While the Marquam Hill Plan and the implementing Comprehensive Plan policies and Zoning Code amendments encourage a suspended cable transportation system to be considered as a transportation option, they reserve for the future the determination of what kind of system, if any, should actually be developed."

(Emphasis in original.)

Defendant moved to dismiss plaintiffs' claim for declaratory relief arguing that: (1) the trial court lacked jurisdiction to hear the complaint, because it concerned a "land use decision" as defined in ORS 197.015(10) and, therefore, the Land Use Board of Appeals (LUBA) had either exclusive or primary jurisdiction of the case; and (2) the complaint did not state a justiciable controversy, because it was not yet ripe.² The trial court granted defendant's motion and dismissed plaintiffs' complaint for declaratory relief.

On appeal, plaintiffs assign error to the court's dismissal of their complaint. They argue that their action is not intended to review a land use decision and, therefore, that LUBA does not have exclusive or primary jurisdiction of their case. Moreover, they argue that their case presents a justiciable controversy because it asks the court to declare the rights between competing property interests along Gibbs Street.

We need not decide whether LUBA had exclusive or primary jurisdiction of this matter because we conclude that the trial court lacked jurisdiction of plaintiffs' claim for declaratory relief on the ground that it was not ripe and, hence, was not justiciable.

In addition to the justiciability requirements imposed by Article VII (Amended), section 1, of the Oregon Constitution, the legislature may impose statutory justiciability requirements. For example, it may impose statutory standing requirements, as it has done in numerous statutes, including ORS 183.480 and ORS 536.075. See generally WaterWatch v. Water Resources Commission, 193 Or.App. 87, 91-92, 88 P.3d 327 (2004), vac'd and rem'd on other grounds, 339 Or. 275, 119 P.3d 221 (2005) (discussing the statutory standing requirements of those statutes). A court should address the statutory justiciability requirements, if any, before reaching the question of constitutional justiciability. US West Communications v. City of Eugene, 336 Or. 181, 191, 81 P.3d 702 (2003).

In US West Communications, the Oregon Supreme Court explained that the declaratory judgment statutes, ORS 28.010 to 28.160, have statutory justiciability requirements. Id. at 191 n. 12, 81 P.3d 702. Specifically, the court construed ORS 28.020. That provision authorizes those "whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise" to seek a declaratory judgment. ORS 28.020 (emphasis added). The Supreme Court concluded that "the legislature's use of the present tense phrase `are affected' implies [that] the controversy must involve a dispute based on present facts rather than on contingent or hypothetical events." US West Communications, 336 Or. at 191, 81 P.3d 702. Hence, ORS 28.020 codifies a ripeness requirement within the declaratory judgment statute, independent of the constitutional requirement. Therefore, just as the court did in US West Communications, we address the nonconstitutional ripeness question before the constitutional question.

However, before we reach that question, we must determine whether the justiciability requirement in ORS 28.020 is a jurisdictional requirement or a requirement that must be met to state a declaratory judgment claim. We must do so because the answer to that question determines the scope of our review. This case was dismissed in response to defendant's motion to dismiss. Defendant made arguments under both ORCP 21 A(1), questioning the court's subject matter jurisdiction, and ORCP 21 A(8), asserting that the complaint fails to state ultimate facts that constitute a claim. Our review of a ruling under ORCP 21 A(8) is based solely on the allegations in the complaint. Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 357 n. 1, 974 P.2d 716, rev. den., 329 Or. 479, 994 P.2d 127 (1999).

However, on a motion to dismiss for lack of subject matter jurisdiction under ORCP 21 A(1), if

"the facts constituting such [a] defense[] do not appear on the face of the pleading and matters outside the pleading, including affidavits, declarations and other evidence, are presented to the court, all parties shall be given a reasonable opportunity to present affidavits, declarations and other evidence, and the court may determine the existence or nonexistence of the facts supporting such defense or may defer such determination until further discovery or until trial on the merits."

Consequently, a court may consider evidence beyond the allegations in the pleadings to determine whether it has subject matter jurisdiction of a case. In many cases, subject matter jurisdiction may not turn on factual determinations. But in some cases the question turns on extant facts, such as the determination as to whether a case is ripe for adjudication. Thus, if the statutory justiciability question presented by this case is jurisdictional, then we may consider the evidence and affidavits that were submitted to the court by the parties. If not, then our review is limited to the complaint.

We conclude that the justiciability requirement in ORS 28.020 is a jurisdictional requirement for four reasons. First, in US West Communications, the Supreme Court raised the statutory ripeness issue on its own, feeling obliged to do so. 336 Or. at 190, 81 P.3d 702 (citing Oregon Medical Association v. Rawls, 281 Or. 293, 296, 574 P.2d 1103 (1978), for the proposition that courts have an independent obligation to determine whether an issue is justiciable). Only a jurisdictional question would have triggered such an obligation on the facts of US West Communications.

Second, the Supreme Court's analysis of the ripeness question in US West Communications applied the test for ripeness set out in Brown v. Oregon State Bar, 293 Or. 446, 648 P.2d 1289 (1982), and Cummings Constr. v. School Dist. No. 9, 242 Or. 106, 408 P.2d 80 (1965), two cases in which the court explicitly identified ripeness as a jurisdictional issue. See Brown, 293 Or. at 449-50, 648 P.2d 1289 (describing justiciability as a jurisdictional requisite); Cummings Constr., 242 Or. at 109, 408 P.2d 80 (explaining that "courts do not have jurisdiction to entertain a declaratory judgment action requesting the interpretation of a statute or a declaration of one's rights thereunder unless there is a `justiciable controversy' between the parties"). Admittedly, the court in Brown based its conclusion that justiciability is jurisdictional in part on constitutional grounds, 293 Or. at 449, 648 P.2d 1289, and Cummings Constr. cited Oregon Cry. Mfgs. Ass'n v. White, 159 Or. 99, 78 P.2d 572 (1938)—a case based in part on the constitutional limits on judicial power—as authority for its similar conclusion. See also Utsey v. Coos County, 176 Or.App. 524, 536-37, 547, 32 P.3d 933 (2001), rev dismissed as moot, 335 Or. 217, 65...