City of Pendleton v. Kerns

• Decision Date: 13 May 1982
• Docket Number: No. 80-138,80-138
• Citation: 643 P.2d 658,56 Or.App. 818
• Parties: CITY OF PENDLETON, Fredrick S. Hill and Mary Ann Hill, Petitioners, v. F. Carter KERNS, Jean H. Kerns, Lou Levy and Clare Wagner, Respondents. ; CA A20422.
• Court: Oregon Court of Appeals

Page 658

643 P.2d 658

56 Or.App. 818

CITY OF PENDLETON, Fredrick S. Hill and Mary Ann Hill, Petitioners, v. F. Carter KERNS, Jean H. Kerns, Lou Levy and Clare Wagner Respondents.

No. 80-138; CA A20422.

Court of Appeals of Oregon.

Argued and Submitted Sept. 21, 1981.

Decided April 12, 1982.

Reconsideration Denied May 13, 1982.

Rudy M. Murgo, City Atty., Pendleton, argued the cause for petitioner City of Pendleton. With him on the brief were William J. Storie and Storie & Gallaher, Pendleton, attorneys for petitioners Fredrick S. and Mary Ann Hill.

William J. Storie, Pendleton, argued the cause for petitioners Fredrick S. Hill and Mary Ann Hill. With him on the brief were Storie & Gallaher, and Rudy M. Murgo, City Atty., Pendleton, attorney for petitioner City of Pendleton.

Thomas R. Page, Portland, argued the cause for respondents. With him on the brief were Stephen T. Janik and Stoel, Rives, Boley, Fraser & Wyse, Portland.

Before GILLETTE, P. J., YOUNG, J., and ROBERTS, J. Pro Tem.

GILLETTE, Presiding Judge.

Petitioners appeal from a final opinion and order issued by the Land Use Board of Appeals (LUBA) that remanded Pendleton City Ordinance No. 3141 (the ordinance) to the city and directed the city to adopt appropriate findings. Petitioners argue that LUBA lacked jurisdiction over the ordinance in that the ordinance is not a "land use decision," that the respondents did not have standing to appeal to LUBA, and that certain aspects of Oregon land use law are unconstitutional. We affirm.

On September 16, 1980, the City of Pendleton passed Ordinance No. 3141, titled: "An ordinance creating street and water local improvement district number 393, authorizing call for bids, providing for liens, and declaring an emergency." The ordinance stated that certain designated lots within the City of Pendleton, in Improvement District Number 393:

"Shall be and (are) hereby ordained to be improved by construction of a street with curbs, gutter, sidewalks, storm sewer and water in accordance with preliminary plans and outline specifications thereof * * *."

The ordinance also states:

"Section 9. The cost of making the improvement shall be a lien and a charge upon all lots specifically benefitted by the improvement proportionally * * *."

In essence, the ordinance authorizes the extension of North Main Steet for a distance of approximately 310 feet. North Main Street, including the proposed extension, has been dedicated as a street since at least March 4, 1915, although the segment of the street designated for extension has never been improved. Since 1958, that segment has been used as a neighborhood park.

On October 14, 1980, all of the respondents filed a notice of intent to appeal the enactment of the ordinance to LUBA. Their petition for review to LUBA, dated November 21, 1980, alleges that the ordinance authorizes construction of a street and water main through their neighborhood, that passage of the ordinance violates LCDC Goals 1, 2, 3, 5, 11, 12 and 14, and that the city failed to consider those goals in its decision to pass the ordinance. Respondent Wagner also filed an action for declaratory relief in the Umatilla County Circuit Court challenging the local improvement district method of financing the improvements.

LUBA held that respondents Jean H. Kerns and Levy lacked standing to appeal this matter, but that respondents F. Carter Kerns and Wagner did have standing to appeal. LUBA also found that it had jurisdiction over the appeal. It concluded that:

"Ordinance No. 3141 contains no findings addressing the City's Comprehensive Plan or the applicable state-wide Planning Goals. Ordinance No. 3141 must be remanded to the City in order that appropriate findings be adopted."

Petitioners first assign error to LUBA's denial of their motion to dismiss for lack of jurisdiction. Or.Laws 1979, ch. 772, § 4, then in effect, provided that LUBA " * * * shall have exclusive jurisdiction to review any land use decision of a city * * *." ¹ Or.Laws 1979, ch. 772, § 3, stated that, for the purposes of section 4:

"(1) 'Land use decision' means

"(a) A final decision or determination made by a city * * * that concerns the adoption, amendment or application of:

"(A) The state-wide planning goals;

"(B) A comprehensive plan provision; * * *."

" * * *." ²

The central issue in this assignment of error is whether the city's decision to extend the street is a "land use decision."

In their petition for review to LUBA, respondents alleged that the decision to extend the street violated both the state-wide planning goals and the city's comprehensive plan. ³ They also alleged that the proposed extension would occupy vacant land that nearby residents had used as a neighborhood park and recreational area since at least 1958. LUBA summarized additional jurisdictional facts in its final order as follows:

"The extension of the street will open up for development lots within the city which presently have no access available. In addition, a major purpose of the road extension is to facilitate development of an area which adjoins the city limits and which was the subject of an annexation proceeding to the City of Pendleton reviewed by this Board in Kerns v. City of Pendleton, 1 Or. LUBA 1 (1980). Extension of North Main Street as authorized by this ordinance will not only facilitate development of the Hill property which adjoins the city but also development of the proposed Owens Addition, a subdivision of some 75 to 85 lots which is presently within the city limits but cannot be developed due to a lack of access to the city. That access will be provided if North Main Street is extended as authorized by this ordinance and if the Hill property is developed. Development of the Hill property will result in an extension of North Main Street through the Hill property to the Owens Addition.

"Thus, as can be seen from the above, this ordinance not only authorizes construction of a street and the immediate development of lots bordering on the street but goes a long way toward the future development of many additional lots."

The proposed extension affects land being used for recreational purposes and further development of nearby land. An examination of the state-wide goals leads us to agree with LUBA that the proposed street extension therefore involves application of those goals. Goal 2 concerns such site and area specific implementation measures as "The construction of public facilities (* * * roads, water lines, etc)." See Goal 2, Guideline 6. Goal 11 deals with "planning, zoning and subdivision control" and with "recreational facilities." The guidelines to Goal 14 direct consideration of "the type, location and phasing of public facilities and services." See Goal 14, Guideline B(1). The decision to extend the street in this case involved application of the state-wide planning goals; LUBA therefore had jurisdiction over the decision. ⁴

The city argues alternatively that LUBA does not have jurisdiction in this case because the ordinance is a local taxation or budget ordinance that need not comply with the state-wide goals. In Housing Counsel v. City of Lake Oswego, 48 Or.App. 528, 617 P.2d 655 (1980), 291 Or. 878, 635 P.2d 647 (1981), we held that an ordinance that imposed a "system development charge" was not subject to compliance with the state-wide goals because it was a taxation ordinance. The ordinance involved here, however, is not intended as a general taxation ordinance which secondarily affects land use. This ordinance provides both for the extension of a street and for formation of a local improvement district (LID) to finance that extension. Respondents' petition to LUBA contested only the decision to extend the street without questioning the accompanying financing provision. The Housing Counsel rationale does not defeat LUBA's jurisdiction over decisions directly involving the use of land merely because the enabling ordinance happens to include a provision to finance the proposed improvement. If that were the case, a city could insulate any land use decision from LUBA's review merely by attaching a financing provision to the decision.

The city also argues that LUBA did not have jurisdiction under Or.Laws 1979, ch. 772, because Pendleton did not have an acknowledged comprehensive plan when this case was before LUBA, citing Fisher v. Colwell, 51 Or.App. 301, 625 P.2d 1333 (1981). In that case, we held that LUBA did not have jurisdiction to review a city's decision to grant a zoning permit. We pointed out that, when a city did not have an acknowledged comprehensive plan, it is required to apply the state-wide goals. ORS 197.275. Because the petition for review to LUBA did not contain any allegations of violations of the state-wide goals, we held that LUBA had no jurisdiction under the statute. This case is different. Here, respondents' petition alleged violations of the state-wide goals sufficient to confer jurisdiction under the statute.

Petitioners next argue that LUBA should have granted their motion to dismiss because one of the respondents, Wagner, also had a lawsuit pending in circuit court challenging the local improvement district method chosen by the city to fund the street extension. Petitioners characterize this situation as "split jurisdiction," citing Jarvill v. City of Eugene, 289 Or. 157, 613 P.2d 1 (1980), and contend that it eliminates Wagner's "standing" to appeal to LUBA. ⁵

In Jarvill, the plaintiff challenged in circuit court the validity of an ad valorem real property tax levied by the City of Eugene on property within a downtown development district. Plaintiffs contended that the taxes were unlawful or beyond the city's power to enact and that the taxes violated several provisions of the Oregon and United States Constitutions. The circuit court upheld the taxes. This court affirmed the trial court but sua sponte held that the Tax Court, rather than the circuit court, had jurisdiction over ...