City of Woodburn v. Dekabi, Inc.

• Decision Date: 18 February 1975
• Citation: 20 Or.App. 426,531 P.2d 913
• Parties: CITY OF WOODBURN, a Municipal Corporation, Appellant, v. DEKABI, INC., an Oregon Corporation, and National Guarantee Properties, Inc., a Washington Corporation, dba Mall 99 Company, Respondents.
• Court: Oregon Court of Appeals

Page 913

531 P.2d 913

20 Or.App. 426

CITY OF WOODBURN, a Municipal Corporation, Appellant, v. DEKABI, INC., an Oregon Corporation, and National Guarantee Properties, Inc., a Washington Corporation, dba Mall 99 Company, Respondents.

Court of Appeals of Oregon.

Submitted on Record and Briefs Jan. 27, 1975.

Decided Feb. 18, 1975.

Edmund A. Jordan, Jr., Woodburn, for appellant.

Marshall C. Hjelte and Klein & Hjelte, Woodburn, for respondents.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

LANGTRY, Judge.

Plaintiff City of Woodburn appeals in this declaratory proceeding from a judgment of the circuit court which holds that a remonstrance by more than 50 percent of the property owners abutting an area upon which the city had ordered the construction of a sidewalk deprived the city of 'jurisdiction.' The judgment declares that '* * * on the subject matter of the sidewalk concerned * * * that the City may not require the defendants to construct the same.'

The defendants had built a shopping mall on several acres of land adjoining State Highway 99E in Woodburn. Pursuant to Woodburn, Or., City Charter ch. VI, § 36 and City Ordinance No. 778 (February 3, 1942), ¹ the city ordered the defendants to build a sidewalk along State Highway 99E. The defendants owned all the affected property and remonstrated. The city denied the remonstrance and again ordered the sidewalk built. The defendants refused. This declaratory proceeding was then commenced by the city.

At issue is the intended meaning of several sections of the charter of the city of Woodburn, all of which relate to the construction of streets and sidewalks. Chapter VI of the Woodburn city charter consists of 75 consecutively numbered sections divided into eight articles, providing for acquisition of property for, and construction and financing of streets, sidewalks and sewers. Articles IV and V purport to include provisions about street and sidewalk improvements. Although numerous others of the consecutively numbered sections in the chapter also concern streets and street assessments, the sections of the entire chapter most involved in this controversy are:

SECTION 24. 'The term 'street' as used in this chapter, shall be construed to mean any street, avenue, boulevard, alley, or lane which is now, or may hereafter be, opened or dedicated to public use.'

SECTION 25. 'The terms 'improve' and 'improvement' as used in this chapter in reference to streets shall be construed to Include grading, regrading, paving, repaving, planking, replanking, macadamizing, remacadamizing, graveling, regraveling, and all manner of bridge and roadway improvement or repair And all manner of constructing sidewalks, crosswalks, gutters, and curbs Within any street * * *.' (Emphasis supplied.)

SECTION 26. 'Subject to remonstrances of affected property owners as provided in this chapter, The council, whenever it May deem it expedient, is hereby authorized and empowered to Order the whole or any part of the streets of the city to be improved * * * and to levy an assessment upon all lots and parcels of land specially benefited by such improvement * * *.' (Emphasis supplied.)

SECTION 29. '* * * (A) majority of the owners of the property within such assessment district may make and file with the recorder a written objection or remonstrance against Said proposed improvement; and said objection or remonstrance shall be a bar to any further proceedings in the making of said improvement for a period of six months * * *.' (Emphasis supplied.)

SECTION 36. 'It is hereby made the duty of all owners of land adjoining any street in the city of Woodburn, To construct, reconstruct, and maintain in good repair the Sidewalks adjoining their lands. The council shall have power and authority By ordinance to provide for the construction, reconstruction, and repair Of all sidewalks * * *.' (Emphasis supplied.)

SECTION 38. 'The council shall exercise the same general authority and supervision over the construction, reconstruction, and repair of sidewalks that it has in the matter of other street improvements * * *.'

The circuit court concluded in a short letter opinion '* * * that under the provisions of Article IV of the Charter such a remonstrance' as that which was filed in this case 'is a bar for a period of six months to further proceedings * * *.' As previously noted, the formal judgment declared that the city may not require defendants to construct the sidewalk. The sections from which we have quoted above in the Woodburn charter that are in Art. IV (referred to in the court's letter opinion) are only §§ 25, 26 and 29. The circuit court apparently did not give effect to § 36 which is in the next article. In James et al. v. City of Newberg et al., 101 Or. 616, 201 P. 212 (1921), a case interpreting charter provisions having to do with building of streets and sidewalks, the Supreme Court said

'* * * that effect should be given, if possible, to every section, paragraph, sentence, clause, and word.

'In arriving at the meaning to be given to the words 'sidewalk' and 'pavement,' we will not confine ourselves to the language in the proviso quoted above, but, for the purpose of noting their use by the framers of the charter, will consider the charter in its entirety * * *.' 101 Or. at 619, ...