City of Pendleton v. Kerns

• Jurisdiction: Oregon
• Parties: CITY OF PENDLETON, Frederick S. Hill and Mary Ann Hill, Petitioners on Review, v. F. Carter KERNS, Jean H. Kerns, Lou Levy and Clare Wagner, Respondents on Review. LUBA 80-138; CA A20422; SC 28659.
• Citation: City of Pendleton v. Kerns, 653 P.2d 992, 294 Or. 126 (Or. 1982)
• Court: Oregon Supreme Court
• Decision Date: 23 November 1982

Page 992

653 P.2d 992

294 Or. 126

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

LUBA 80-138; CA A20422; SC 28659.

Supreme Court of Oregon.

Argued and Submitted Sept. 9, 1982.

Decided Nov. 23, 1982.

Rudy M. Murgo, Pendleton, filed the brief and argued the cause for petitioner, City of Pendleton. With him on the brief was William J. Storie, Pendleton, who argued the cause for City of Pendleton; William J. Storie argued the cause of petitioners Hill.

Thomas R. Page, Portland, argued the cause and filed the brief for respondents.

Richard D. Rodeman, Corvallis, Michael Huston, Salem, Howard Rankin, Ruth M. Spetter and Kathryn S. Beaumont, Portland, filed a brief of amicus curiae for the City of Corvallis, League of Oregon Cities, and the City of Portland.

Before LENT, C.J., and PETERSON, LINDE, TANZER, CAMPBELL and CARSON, JJ.

CAMPBELL, Justice.

The issue presented is whether the Land Use Board of Appeals (LUBA) has jurisdiction to review a city ordinance that authorizes the improvement of an already dedicated street and sets up a local improvement district (LID) to finance the construction.

North Main Street in the City of Pendleton was first dedicated as a city street in 1915. The portion of the street at issue here, however, has never been improved. In 1958, the city rejected a request to vacate the unimproved segment, but it did permit property owners in the area to barricade the end of the improved street and use the remainder as a neighborhood park. The comprehensive plan for the city, adopted by the Pendleton City Council in 1965, designates this segment of North Main as a city street. This plan has yet to be acknowledged by the Land Conservation and Development Commission (LCDC).

In September 1980, the city council, after notice to affected property owners and a public hearing, adopted Ordinance No. 3141; the ordinance authorizes improvement of the segment and creates a LID to finance the construction. ¹ The improvement will involve extending the present street about 360 feet, grading and paving the segment, and the installation of storm sewers, drains, curbs, and sidewalks. The construction will necessitate removal of the barricade and destruction of the park. It will not, however, physically affect any property other than that already dedicated for city street purposes. Neither the ordinance nor any supplemental report contains any factual findings or legal conclusions regarding the street improvement's compliance with the city's comprehensive plan or with LCDC's statewide planning goals.

The portion of North Main at issue is in a residential area near the Pendleton city limits. The area has recently been experiencing growth pressures and two large residential developments have been proposed which would abut the street as improved. One, a subdivision of about 75 to 85 lots, is within the city limits but cannot be developed due to lack of adequate access. The other, a tract which adjoins the city limits, has been the subject of annexation proceedings. See City of Pendleton v. Kerns, 58 Or.App. 641, 650 P.2d 101, rev. den., 293 Or. 653, 648 P.2d 852 (1982). The proposed improvement of North Main will facilitate development of both these areas. The street as improved, moreover, will be a major access route into the city for future residents of the developments.

Respondents herein are property owners near the proposed improvement. They objected to the street improvement before the city council and, after passage of the ordinance authorizing construction, they petitioned LUBA for review of the decision. Their challenge to the ordinance is based on their contention that the city council violated state statutory land use planning requirements by failing to address the issue of whether the street improvement is in compliance with the city's plan and the statewide goals. LUBA held, inter alia, that it had jurisdiction over the dispute and that the city council erred in not reviewing and discussing the compliance issue; LUBA remanded the ordinance to the council with instructions that it adopt adequate findings and conclusions on compliance. The Court of Appeals affirmed. 56 Or.App. 818, 642 P.2d 658 (1982). We accepted review to determine whether LUBA acted properly in exercising jurisdiction to review the ordinance.

The statutory provisions governing administrative review of local government actions affecting land use have undergone significant change in the past several years. Particularly relevant here have been the shift of initial review authority for certain such actions from LCDC to LUBA and changes in the operative statutory language governing which actions are reviewable. See State Housing Council v. City of Lake Oswego, 291 Or. 878, 882-885, 635 P.2d 647 (1981). We have not yet addressed the extent of LUBA's jurisdiction.

The statute which created and governs LUBA (Oregon Laws, 1979, chapter 772, as amended by Oregon Laws 1981, chapter 748) ² provides in § 4(1) that, subject to the right of judicial review and except as otherwise provided by ORS 197.605 et seq., ³ LUBA has "exclusive jurisdiction to review any land use decision of a local government * * *."

A "land use decision" was defined by former § 3(1)(a) ⁴ as:

"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; or

"(C) A zoning, subdivision or other ordinance that implements a comprehensive plan; * * *."

The issue presented is whether Ordinance No. 3141 authorizing the street improvement work and setting up a LID is a "land use decision" within the contemplation of the statute, i.e., whether it is a final decision that concerns "adoption, amendment or application" of the goals, the city's plan, or an ordinance implementing the plan.

As an initial matter, petitioners argue that the ordinance merely "improves" an already dedicated street and that it is essentially a taxation or financial decision of the city beyond LUBA's power to review. In support of their argument, petitioners rely on the Court of Appeals case of State Housing Council v. City of Lake Oswego, 48 Or.App. 525, 617 P.2d 655 (1980), pet dis 291 Or. 878, 635 P.2d [294 Or. 131] 647 (1981). There the court held that a city ordinance imposing a general "systems development charge" on all new construction throughout the city was not a "land use decision" within LUBA's jurisdiction, notwithstanding the significant effect it might have on land use. The court concluded that local taxation, budget, and fiscal decisions were not intended by the legislature to be within the ambit of the state land use planning laws and regulations. 48 Or.App. at 537-538. See also Westside Neighborhood Quality Project, Inc. v. School District 4J, 58 Or.App. 154, 647 P.2d 962, rev. den. 294 Or. 78, 653 P.2d 999 (1982) (school district's decision to close school not a "land use decision" reviewable by LUBA).

Without reaching here the issue of whether those cases were rightly decided, we simply note that petitioners' reliance on them is misplaced. Respondents do not by this action challenge the validity of the fiscal aspect of the ordinance, i.e., that part imposing the LID; their challenge here is only with regard to the decision to construct the street. Even assuming arguendo that the decision to create the LID is not a "land use decision" reviewable by LUBA, it does not necessarily follow that other aspects of the ordinance are non-reviewable. A local government does not immunize a land use decision from LUBA review merely through the expedience of attaching financing provisions. To the extent the various aspects of an ordinance are severable, those which fall within the definition of "land use decision" are subject to LUBA review even though other aspects are not. Accordingly, the fact that Ordinance No. 3141 authorizing the street construction work has a concomitant LID financing provision does not, of itself, operate to divest LUBA of jurisdiction to review the decision to undertake the street construction.

Petitioners, in addition, find it significant that the portion of North Main Street at issue was first dedicated and platted years ago and that it is designated as a city street on the city's comprehensive plan. Prior to the passage of Ordinance No. 3141 authorizing construction of the street, however, there had been no final and binding determination as to the use to which the land was to be put. The fact that the land had already been the subject of preliminary planning does not mean that the final determination years later to permanently commit the land to a particular use is necessarily exempt from LUBA review. See Columbia Hills Development Co. v. LCDC, 50 Or.App. 483, 490-491, 624 P.2d 157, rev. den. 291 Or. 9, 631 P.2d 340 (1981). The factual and legal environment may have so changed in the intervening years that even though it may have been a wise and proper action to have improved the street years ago, it may be improvident and improper now. Thus, the city council's decision to improve the street is not one which is exempt from LUBA review.

The City of Pendleton's comprehensive planning duties are set out in ORS 197.175, ⁵ which provides in pertinent part:

"(1) Cities * * * shall exercise their planning and zoning responsibilities * * * in accordance with ORS 197.005 to 197.430 and 197.605 to 197.650 and the goals approved under ORS 197.005 to 197.430 and 197.605 to 197.650.

"(2) Pursuant to ORS 197.005 to 197.430 and 197.605 to 197.650, each city * * * in this state shall:

"(a) Prepare, adopt, amend and revise comprehensive plans in compliance with goals approved by the commission [LCDC];

"(b) Enact land use regulations to implement their comprehensive plans; [and]

"(c) except as provided in ORS 197.605(6), if its...