Century Properties v. City of Corvallis

• Decision Date: 19 July 2006
• Docket Number: 2005-015.,A132090.,2005-006.,2005-014.,2005-007.,2005-012.,2005-004.,2005-016.,2005-011.,2005-010.,2005-013.,2005-008.,2005-009.,2005-017.
• Citation: 139 P.3d 990,207 Or. App. 8
• Parties: CENTURY PROPERTIES, LLC, Petitioner, v. CITY OF CORVALLIS, Respondent.
• Court: Oregon Court of Appeals

139 P.3d 990

207 Or. App. 8

CENTURY PROPERTIES, LLC, Petitioner, v. CITY OF CORVALLIS, Respondent.

2005-004.

2005-006.

2005-007.

2005-008.

2005-009.

2005-010.

2005-011.

2005-012.

2005-013.

2005-014.

2005-015.

2005-016.

2005-017.

A132090.

Court of Appeals of Oregon.

Argued and Submitted June 20, 2006.

Decided July 19, 2006.

Bill Kloos, Eugene, argued the cause for petitioner. With him on the brief were Dan Terrell and Law Office of Bill Kloos, PC.

James K. Brewer, Corvallis, argued the cause for respondent. With him on the brief was Fewel, Brewer & Coulombe, Corvallis City Attorneys.

Before LANDAU, Presiding Judge, and SCHUMAN^* and ORTEGA, Judges.

LANDAU, P.J.

Petitioner seeks judicial review of a final opinion and order of the Land Use Board of Appeals (LUBA), which concluded that petitioner lacked statutory standing to appeal certain ordinances that the City of Corvallis (city) had adopted as part of its periodic review process. The city moves to dismiss the judicial review for want of constitutional standing. We deny the motion to dismiss and affirm.

The relevant facts are few and undisputed. The city began its periodic review of its comprehensive plan and land use amendments in 1996. In 2000, the Department of Land Conservation and Development approved a series of completed work tasks and added several others to the city's work program. Among those new work tasks were those referred to as the "Natural Features Project."

From early 2001 to mid-2004, the city held approximately 50 public meetings, work sessions, and workshops as part of the Natural Features Project. The city then proposed a number of ordinances and, beginning in September 2004, began holding public hearings on those proposed ordinances.

On November 4, 2004, petitioner's counsel sent a letter to the city that read, in its entirety:

"Please accept this letter as an appearance by my client, Century Properties LLC, in each of these proceedings, including in the proceeding related to any ordinance or order that emerges from these proceedings.

"I would also like to be put on the notice list for any notice of adoption of any ordinance, resolution or order that results from these proceedings, as well as any individual notices of further related proceedings that may be sent by the City.

"Thank you for your consideration."

Petitioner did not submit any other documents to the proceedings. Petitioner did not testify. Nor did petitioner take any position for or against any of the ordinances that were the subject of the public hearings.

On December 13, 2004, the city adopted 14 ordinances, each addressing a different portion of the Natural Features Project. Shortly thereafter, petitioner appealed to LUBA each of the 14 ordinances.

The city responded with a motion to dismiss for lack of statutory standing to appeal to LUBA. The city relied on ORS 197.620(1), which permits only "persons who participated either orally or in writing in the local government proceedings" to appeal a post-acknowledgment plan amendment to LUBA. According to the city, petitioner had not "participated" in any of the public proceedings that had occurred in the years leading up to the adoption of the 14 challenged ordinances.

Petitioner responded that it had "participated" in the city's Natural Features Project proceedings by filing an "appearance." According to petitioner, the statute does not require more to constitute "participat[ion]" sufficient to confer statutory standing to appeal to LUBA.

LUBA rejected petitioner's argument and dismissed the appeal. In a detailed and carefully reasoned opinion, LUBA concluded that, in authorizing persons who "participated" in the local government proceeding to appeal, the legislature intended to limit such appeals to persons who asserted a position on the merits of the issues before the local government.

On review, petitioner contends that LUBA erred in concluding that the statutory term "participated" refers to anything more than making an appearance. Petitioner argues that a close examination of the history of changes in the statute makes clear that the legislature intended to "lower the bar" and permit any person who merely filed an appearance before the local government to appeal to LUBA the local government's post-acknowledgment plan amendments.

The city responds first by moving to dismiss this review for want of constitutional standing. The city argues that nothing in the record demonstrates that a decision by this court will have a practical effect on petitioner. Petitioner responds that it has established the requisite practical effect by way of an affidavit from one of its representatives stating that petitioner owns approximately 9.5 acres of commercial property located within the city limits and that the city's ordinances will adversely affect petitioner's ability to develop that property.

As for the merits of petitioner's argument, the city responds that there is nothing in the text, context, or legislative history of ORS 197.620(1) that suggests that the legislature intended the term "participate[ ]" to mean anything other than what it ordinarily means, which requires more than merely filing an appearance.

We begin with the city's motion to dismiss, because it concerns the justiciability of the petition. See Strunk v. PERB, 338 Or. 145, 153, 108 P.3d 1058 (2005) (standing "is an aspect of justiciability"). To invoke the authority of the courts, a party must establish that a decision of the court will have a "practical effect" on the rights of that party. Id. In this case, petitioner has averred that it owns commercial property within the city limits and that its ability to develop that property will be adversely affected by the challenged ordinances. That is sufficient to establish the requisite practical effects. See Hood River Valley v. Board of Cty. Commissioners, 193 Or.App. 485, 91 P.3d 748 (2004) (allegation that petitioners own land that will be adversely affected by challenged land exchange is sufficient to establish practical effects). We deny the city's motion without further discussion and turn to the merits.

The crux of the dispute between the parties is the meaning of the term "participate[ ]" as it is employed in ORS 197.620(1). Resolution of that dispute is governed by application of the interpretive principles set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). We begin with an examination of the text in context and, if necessary, proceed to an examination of the legislative history and application of relevant canons of statutory construction. Id.

ORS 197.620(1) provides:

"Notwithstanding the requirements of ORS 197.830(2), persons who participated either orally or in writing in the local government proceedings leading to the adoption of an amendment to an acknowledged comprehensive plan or land use regulation or a new land use regulation may appeal the decision to the Land Use Board of Appeals[.]"

The cross-referenced statute, ORS 197.830(2), provides that,

"[e]xcept as provided in ORS 197.620(1) * * *, a person may petition the board for review of a land use decision or limited land use decision if the person:

"(a) Filed a notice of intent to appeal the decision * * *; and

"(b) Appeared before the local government, special district or state agency orally or in writing."

The statutes together describe the requirements for appealing certain decisions to LUBA. ORS 197.830(2) describes the requirements for appealing land use decisions and limited land use decisions. To appeal those decisions, a person must have "[a]ppeared" before the agency that made the challenged decision. In contrast, ORS 197.620(1) describes the requirements for appealing a particular type of decision, namely, an amendment to an acknowledged comprehensive plan or land use regulation or a new land use regulation. To appeal that kind of decision, a person must have "participated" in the proceedings leading up to it.

The distinction is significant. Ordinarily, we assume that, when the legislature employs different terms in a statute, the legislature intended those terms to have independent significance. See, e.g., State v. Glaspey, 337 Or. 558, 564-65, 100 P.3d 730 (2004) (legislative's use of different terms in same statute suggested terms have different meaning). In this case, the legislature appears to have drawn a distinction between "appearing" before an agency and actually "participating" in the agency's proceedings.

That assumption appears to be supported by the ordinary meaning of each of the two terms. To "appear" ordinarily means, at least in the sense that is relevant here, "to come formally before an authoritative body * * * to present oneself formally as plaintiff, defendant, or counsel." Webster's Third New Int'l Dictionary 103 (unabridged ed. 2002). Consistent with that ordinary meaning, in legal terminology, to make an "appearance" means merely "coming into court[.]" Black's Law Dictionary 89 (5th ed. 1979). To "participate," on the other hand, ordinarily means "to take part in something (as an enterprise or activity) usu. in common with others[.]" Webster's at 1646. Likewise, in legal terminology, it has a more active connotation, meaning "[t]o receive or have a part or share of; to partake of; experience in common with others; to have or enjoy a part or share in common with others. To partake, as to `participate' in a discussion, or in a pension or profit sharing plan." Black's at 1007. Thus, the ordinary meanings of the terms suggest that a person could "appear" in an action without actually "participating" in it.

That the legislature intended there to be a distinction between merely "appearing" and actually "participating" may be confirmed by reference to previous versions of the same statutes. See Krieger v. Just, 319 Or. 328, 336, 876 P.2d 754 (1994) ("[W]ording changes adopted from session to session are a part of context of the present version...