City of Damascus v. Brown

• Decision Date: 22 October 2014
• Docket Number: A157455,A156922,A156964,A156982,A157037,A157045,A157457.,A157130,A157167,A157456,A157046,A157043,A156923,A157166,A156963,A157345,A156983,A156920 Control,A157042,A157047,A156921,A156984,A157044
• Citation: 337 P.3d 1019,266 Or.App. 416
• Parties: CITY OF DAMASCUS ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Henry R. BROWN, Jr.; and Valerie E. Brown, Respondents. City of Damascus and Gene Green, in his capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Jeffry Kent Olson and Ardith Elane Olson, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners Cross–Respondents, v. GDI New Horizons, LLC, an Oregon limited liability company, Respondent Cross–Respondent, and Patricia A. De Young, a citizen of the City of Damascus, Cross–Petitioner. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners Cross–Respondents, v. Lowell E. Patton; Oregon Lumber Export Company Pension Trust ; and Deborah L. Francis, Respondents Cross–Respondents, and Patricia A. De Young, citizen of the City of Damascus, Cross–Petitioner. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Jerry G. Schofield and Kimberly J. Schofield, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Kayser Family, LLC, an Oregon limited liability company; and Cozzetto Family, LLC, an Oregon limited liability company, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Ioan Vacariu and Emilia Vacariu, Respondents. City Of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Marilyn J. Brundidge, Respondent. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Willy Kissinger and Hulta Kissinger, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Alfred G. Wetzel and Joyce D. Wetzel, Trustees of the Wetzel Family Trust, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Robert Shannon and Patricia Shannon, Trustee of the Family Trust of Robert E. Shannon and Patricia L. Shannon, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Michael S. Desousa, Respondent. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Vivian F. Meyer, Trustee of the Vivian Meyer Revocable Living Trust, Respondent. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Sharon E. Huffman, Respondent. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. George Quentin Hamilton and Vivian Kaye Hamilton, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Gerhard Schafer and Wanda Schafer, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Fred L. Siri and Rachel Siri, Trustees of the Fred L. Siri and Rachel Siri Revocable Living Trust U/D/T June 19, 2007, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Harold Johnson and Lisa Johnson, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Donald J. Hanna, Jr.; and Russme Properties, LLC, an Oregon limited liability company, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Ronald D. McMurry; and Adele Richey McMurry, trustees or the successors in Trust of the McMurry Living Trust dated August 10, 1998, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Theodore J. Holboke; and Jean A. Holboke, individually and as Trustees of the Holboke Family Living Trust dated August 6, 2010, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. Fred C. Anderegg; and Beulah Anderegg, individually and as Co–Trustees of the Anderegg Joint Living Trust, Respondents. City of Damascus ; and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners, v. George D. Vass; and Loretta A. Vass, Respondents.
• Court: Oregon Court of Appeals

266 Or.App. 416

337 P.3d 1019

CITY OF DAMASCUS ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Henry R. BROWN, Jr.; and Valerie E. Brown, Respondents.

City of Damascus and Gene Green, in his capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Jeffry Kent Olson and Ardith Elane Olson, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners Cross–Respondents

v.GDI New Horizons, LLC, an Oregon limited liability company, Respondent Cross–RespondentandPatricia A. De Young, a citizen of the City of Damascus, Cross–Petitioner.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners Cross–Respondents

v.Lowell E. Patton;

Oregon Lumber Export Company Pension Trust ;

and Deborah L. Francis, Respondents Cross–Respondents

and

Patricia A. De Young, citizen of the City of Damascus, Cross–Petitioner.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Jerry G. Schofield and Kimberly J. Schofield, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Kayser Family, LLC, an Oregon limited liability company; and Cozzetto Family, LLC, an Oregon limited liability company, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Ioan Vacariu and Emilia Vacariu, Respondents.

City Of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Marilyn J. Brundidge, Respondent.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Willy Kissinger and Hulta Kissinger, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Alfred G. Wetzel and Joyce D. Wetzel, Trustees of the Wetzel Family Trust, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Robert Shannon and Patricia Shannon, Trustee of the Family Trust of Robert E. Shannon and Patricia L. Shannon, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Michael S. Desousa, Respondent.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Vivian F. Meyer, Trustee of the Vivian Meyer Revocable Living Trust, Respondent.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Sharon E. Huffman, Respondent.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.George Quentin Hamilton and Vivian Kaye Hamilton, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Gerhard Schafer and Wanda Schafer, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Fred L. Siri and Rachel Siri, Trustees of the Fred L. Siri and Rachel Siri Revocable Living Trust U/D/T June 19, 2007, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Harold Johnson and Lisa Johnson, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Donald J. Hanna, Jr.; and Russme Properties, LLC, an Oregon limited liability company, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Ronald D. McMurry; and Adele Richey McMurry, trustees or the successors in Trust of the McMurry Living Trust dated August 10, 1998, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Theodore J. Holboke; and Jean A. Holboke, individually and as Trustees of the Holboke Family Living Trust dated August 6, 2010, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.Fred C. Anderegg; and Beulah Anderegg, individually and as Co–Trustees of the Anderegg Joint Living Trust, Respondents.

City of Damascus ;

and Gene Green, in his official capacity as Pro Tem City Manager for the City of Damascus, Petitioners

v.George D. Vass; and Loretta A. Vass, Respondents.

A156920 Control

A156921

A156922

A156923

A156963

A156964

A156982

A156983

A156984

A157037

A157042

A157043

A157044

A157045

A157046

A157047

A157130

A157166

A157167

A157345

A157455

A157456

A157457.

Court of Appeals of Oregon.

Argued and Submitted Aug. 6, 2014.

Decided Oct. 22, 2014.

Timothy V. Ramis and Peter O. Watts, Lake Oswego, argued the cause for petitioners-cross-respondents. On the brief were Edward H. Trompke, Timothy V. Ramis, and Jordan Ramis PC.

Gregory A. Chaimov, Portland, argued the cause for respondents Henry R. Brown, Jr., and Valerie E. Brown. With him on the brief was Davis Wright Tremaine LLP.

Michael B. Merchant, Portland, argued the cause for respondent-cross-respondent GDI New Horizons, LLC. With him on the brief were Margaret E. Schroeder and Black Helterline LLP.

William C. Cox, Portland, argued the cause and filed the brief for respondents-cross-respondents Lowell E. Patton, Oregon Lumber Export Company Pension Trust, and Deborah L. Francis.

Denise G. Fjordbeck, Attorney–in–Charge, argued the cause for amicus curiae Department of Land Conservation and Development. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

J. Michael Harris and Reeves, Kahn, Hennessy & Elkins filed the brief for cross-petitioner.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

ARMSTRONG, P.J.

This case concerns the constitutionality of a bill passed by the 2014 Oregon Legislative Assembly, House Bill (HB) 4029, which permits landowners with property located on the boundary of the City of Damascus to withdraw that property from the jurisdiction of the city. Under the legislation, the city is required to approve all applications to withdraw property from the city, and, if the city refuses to issue the required approval, the withdrawal of the property is “deemed complete” on the 30th day after the city received the application. Petitioners, the City of Damascus and the City of Damascus Pro Tern City Manager, Gene Green (collectively, city petitioners), filed petitions for judicial review of 23 withdrawal applications that have been deemed complete under HB 4029. Petitioner De Young, a resident of Damascus, also filed timely petitions for judicial review in two of those cases. Respondents on the petitions are the landowners who submitted the withdrawal applications to the city. We consolidated all of the petitions for review and, pursuant to the stipulation of the parties, designated three lead cases to address in this opinion—City of Damascus v. Brown (A156920); City of Damascus v. GDI New Horizons, LLC (A156922); and City of Damascus v. Patton (A156923). The city petitioned for judicial review in all three cases, and De Young petitioned for judicial review in the GDI New Horizons (GDI) and Patton cases. All of the remaining petitions were held in abeyance to abide the outcome of the three lead cases. Accordingly, we are disposing of the balance of the petitions in accordance with our disposition of the three lead cases.

Petitioners assert that HB 4029 is an unconstitutional delegation of governmental authority to private individuals and violates the city's and its residents' constitutionally protected home-rule authority. Additionally, petitioners argue that the Patton property does not meet the criteria under HB 4029 for withdrawal and, thus, that the withdrawal was clearly in error. After consolidating the cases, we requested that the parties also address whether the petitions present us with a justiciable controversy, including whether petitioners have standing, whether the petitions are moot, and whether the parties are adverse.

We conclude that the city petitioners do not have standing under HB 4029 to petition for judicial review because the city and city manager are not part of “the public” that is permitted to appear and be heard at a public hearing on property withdrawals. See Or. Laws 2014, ch. 75, §§ 2(3), 3(1). Accordingly, we dismiss the city petitioners' petitions for judicial review.¹ De Young, however, does have standing under HB 4029, and her petitions for judicial review in GDI and Patton are not moot and establish the required adversity. On the merits of the petitions in GDI and Patton, we conclude that HB 4029 is an unconstitutional delegation of legislative authority to private individuals because the legislation delegates to interested landowners the authority to determine the city's boundary and to find the facts necessary to make that determination without imposing any meaningful procedural safeguards on the landowners' fact-finding function. Accordingly, we reverse the GDI and Patton withdrawals.

I. BACKGROUND

The City of Damascus incorporated in 2004 and adopted its city charter in 2005. As a new city, Damascus was required to adopt and have acknowledged by the Land Conversation and Development Commission (LCDC) a comprehensive plan and implementing land use regulations within four years of its incorporation. See ORS 197.757. It is undisputed that the city did not meet that deadline and, as of the preparation of this opinion, had not yet adopted a comprehensive plan and implementing...