Brooks v. Dierker
| Decision Date | 29 July 1976 |
| Citation | 552 P.2d 533,275 Or. 619 |
| Parties | Joe E. BROOKS, Respondent, v. Hugh E. DIERKER, Medical Director for Jackson County Health Department, et al., Petitioners. |
| Court | Oregon Supreme Court |
Thomas J. Owens, Medford, argued the cause and filed briefs for petitioners.
Robert A. Boyer, of Boyer & Putney, Medford, argued the cause and filed a brief for respondent.
Frank McKinney, Marion County Counsel, Salem, filed an amicus curiae brief for Association of Oregon Counties et al., in support of petitioners.
Before O'CONNELL, C.J.,* and DENECKE**, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
This is a declaratory judgment proceeding involving a dispute between the parties as to whether the plaintiff is entitled to a sewage disposal permit. The trial court upheld the county's revocation of the sewage disposal permit, but the Court of Appeals reversed, 23 Or.App. 90, 541 P.2d 502 (1975), On reconsideration 23 Or.App. 697, 544 P.2d 598 (1975). We granted review principally to decide whether declaratory judgment proceedings are a proper avenue for judicial review of the actions of the county governments and their agencies and, if so, what statutes of limitations would be applicable. The record on appeal in this case is completely inadequate. No evidence was introduced in the circuit court; the only facts before us are those admitted in the pleadings and those contained in a stipulation of the parties.
On June 5, 1972, plaintiff, the owner of four acres of land in Medford, was granted a permit by the county health officer to construct a sewage disposal system on the property. Under the Jackson County Sewage Disposal ordinance of 1970, which was in effect at that time, the county health officer was responsible for the evaluation of the proposed facilities and the issuance of permits. Interested persons who were dissatisfied with the actions of the health officer could, within 30 days, appeal to the county planning commission. Apparently someone appealed the issuance of plaintiff's permit to the Jackson County Planning Commission, and a public hearing was held which resulted in a 'stay' of the permit. On August 9, 1972, the planning commission in effect 'remanded' the matter to the health officer for further study and tests. After this re-evaluation the health officer notified plaintiff that his permit was 'reinstated.'
On August 9, 1972, Jackson County adopted a new sewage disposal ordinance which gave the health officer the same duties as before but provided for a different appeals procedure. An 'Appeals Committee' was established, and the ordinance provided that any interested person could appeal any action of the health officer to the committee within 30 days. Provision was also made for appropriate notice and for a public hearing before the appeals committee.
After the 'reinstatement' of plaintiff's permit, a second appeal of the health officer's action was filed on August 22, 1972. Again we do not know by whom. The appeal was taken under the new ordinance but was 'addressed to and received by the Jackson County Board of Commissioners.' At some point, the appeal was apparently transferred to the appeals committee, which held a public hearing on December 14 and revoked the permit on December 26. The record does not indicate whether plaintiff appeared at the hearing.
In August of 1973, plaintiff sought review of this revocation by means of a petition for a writ of mandamus in the circuit court. A demurrer to the writ was sustained, but plaintiff was granted leave to plead further. In January, 1974, plaintiff transformed the proceeding to its present form by filing an amended complaint seeking a declaratory judgment. Defendants again demurred and contended that declaratory relief was improper. The demurrer was overruled.
On January 7, 1975, the circuit court, after specifically finding that the county appeals committee had acquired jurisdiction, upheld the appeals committee's revocation of plaintiff's permit. The Court of Appeals reversed, with Schwab, C.J., dissenting. The majority held that since the permit had been granted under the 1970 ordinance, it could only be revoked in review proceedings under that ordinance, and the appeals committee established by the 1972 ordinance thus had no jurisdiction to revoke. The court remanded so that the appeal could be re-brought under the 1970 ordinance. The dissent disagreed with the majority's holding that the 1972 ordinance's appeal procedures were inapplicable to the appeal of plaintiff's permit, and argued that in any event the 60-day limitation period for bringing a writ of review should have been applied by implication to this declaratory judgment action to bar review by the circuit court. The dissent also argued that review should be barred on the grounds that there was no record of the proceedings below.
The Court of Appeals then undertook reconsideration of the case pursuant to Rule 9.15. The majority reaffirmed its holding on the inapplicability of the 1972 ordinance and went on to dispute the dissent's contention that declaratory relief was improper and/or should be subject to a 60-day limitation for filing. Apparently, the majority held that declaratory suits are subject only to the residual 10-year statute of limitations contained in ORS 12.140. This holding is clearly in error, and we feel obliged to correct it. As the dissent pointed out, the conclusion reached by the Court of Appeals is contrary to the general rule that when declaratory relief is sought as an alternative to other appropriate and otherwise available relief, the relevant limitations period for the declaratory judgment suit should be based on that of the underlying grounds for relief. See, e.g., Maguire v. Hibernia Savings & Loan Soc., 23 Cal.2d 719, 146 P.2d 673, 151 A.L.R. 1062 (1944); Goldman v. Planning Board of Burlington, 347 Mass. 320, 197 N.E.2d 789 (1964); Finlayson v. West Bloomfield Tp., 320 Mich. 350, 31 N.W.2d 80 (1948); Taylor v. Lovelace Clinic, 78 N.M. 460, 432 P.2d 816 (1967).
Applying that rule to this case, we find that the underlying basis for relief is the writ of review procedure which has been codified in ORS 34.010 Et seq. This is now the normal vehicle for obtaining judicial review of the judicial and quasi-judicial actions of local governments. See ORS 34.040....
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