Foeller v. Housing Authority of Portland

Citation256 P.2d 752,198 Or. 205
Decision Date29 April 1953
CourtSupreme Court of Oregon

Thomas H. Ryan, of Portland, argued the cause and filed a brief for appellants.

Verne Dusenbery and William C. Martin, of Portland, argued the cause for respondent Housing Authority of Portland. On the brief were Dusenbery, Teiser, Martin & Schwab, of Portland.

Helen F. Althaus, Deputy City Atty., of Portland, argued the cause for respondent City of Portland. With her on the brief were Alexander G. Brown, City Atty., and Marian M. C. Rushing, Chief Deputy City Atty., all of Portland.


ROSSMAN, Justice.

This is an appeal by the plaintiffs from a decree in favor of the defendants, which the circuit court entered after it had sustained a motion made by them for judgment in their favor upon the pleadings. The proceeding was instituted pursuant to the provisions of our Declaratory Judgments Act, O.C.L.A. § 6-601 et seq. Its main purpose was to secure a ruling as to the validity of Oregon Laws 1951, ch. 373, which the parties term the Urban Redevelopment Law. The attacked decree sustained that statute as valid.

The plaintiffs (appellants) are the owners of an item of real property which is situated in a part of the city of Portland known as the Vaughn Street or Northwest Area. We will term it the Vaughn Street Area and will later describe it. The defendants are the City of Portland and the Portland Housing Authority. The latter is a public agency which was created under § 99-2004, O.C.L.A., as amended by Oregon Laws 1941, ch. 336, and a resolution adopted by the city's council complementary thereto. The agency possesses the authority specified in the aforementioned Urban Redevelopment Law and in (a) Housing Authorities Law, §§ 99-2001 to and including 99-2023, O.C.L.A., as amended by Oregon Laws 1941, ch. 336, Oregon Laws 1949, ch. 130, and Oregon Laws 1951, ch. 118; and (b) the Housing Cooperation Law, §§ 99-2024 to and including 99-2030, O.C.L.A. The complaint incorporates within itself a resolution which was adopted by the city's council January 23, 1951, and one which was adopted by the Housing Authority September 20, 1951, both as preludes to the city's eventual engagement in urban redevelopment and for the additional purpose of securing federal financial assistance under Titles I, VI of the Housing Act of 1949, 42 U.S.C.A. §§ 1441-1460. The first of the resolutions expressed a finding that it was 'necessary and in the public interest' that Portland should undertake 'an effective program of slum clearance and urban redevelopment' and that preparatory work be entered upon with reference to areas mentioned in the resolution. Continuing, the resolution petitioned the administrator of the Housing and Home Finance Agency of the Federal Government to reserve capital-grant funds of $1,412,880 for use in the contemplated redevelopment work. The resolution adopted by the Housing Authority, after noting that the Urban Redevelopment staff of the Housing Authority and the Urban Redevelopment Advisory Board had found that the Vaughn Street Area called for redevelopment work, resolved that 'the Vaughn Street Area be and the same is hereby adopted as the area in which an 'Urban Redevelopment' project should be located.'

It will suffice for present purposes to state that the Vaughn Street Area, 44 blocks in extent, lies northwesterly from the central business section of Portland. As we shall presently show, it is deemed by the Housing Authority a blighted area, as that term is defined in § 2(1) of the Urban Redevelopment Law. The plaintiffs' property, which is a dwelling house, is not dilapidated nor substandard. The complaint, after averring that the city 'obtained a reservation of funds in the amount of $1,412,880 by the Federal Housing and Home Finance Agency', states:

'Pursuant to said statutes and pursuant to the said resolution of the defendant City, the defendant Housing Authority proposes to and will, unless restrained by this court, carry out a slum clearance and urban redevelopment project within'

the Vaughn Street Area. The prayer of the complaint seeks a declaratory judgment, holding 'unconstitutional and void' the Urban Redevelopment Law, the Housing Authorities Law, the Housing Cooperation Law and the two aforementioned resolutions

'insofar as said Statutes and Resolutions purport to authorize the actions and things which have been set forth herein, and insofar as they purport to authorize the acquisition of property in the said northwest area by the exercise of the power of eminent domain, * * * the expenditure of tax revenues of the City of Portland as a cash grant-in-aid of the redevelopment of said area, the disposition by sale or lease of the property located in said area after the acquisition and improvement thereof * * *.'

As we have said, the attacked judgment was entered after the court had sustained a motion made by the defendants for the entry of judgment upon the pleadings. The latter, apart from the complaint, consisted of answers filed by the city and the Housing Authority. The answers admitted virtually all of the averments of the complaint with the exception of those which construed the statutes and ordinances which we have mentioned and which pled that they are unconstitutional. The answers contained affirmative averments which we will presently review.

The six assignments of error challenge the validity of the Urban Redevelopment Law by submitting these contentions: (1) The act contains more than one subject in violation of Art. IV, § 20, Constitution of Oregon; (2) it constitutes class legislation in violation of Art. I, § 20, Constitution of Oregon; (3) in disregard of Art. I, § 18, it permits the taking of property for purposes that do not constitute 'public use'; (4) it attempts a delegation of legislative powers contrary to Art. III, § 1, and Art. IV, § 1, Constitution of Oregon; (5) in violation of Art. XI, § 9, it aids private individuals with public funds and credit; and (6) it violates Art. I, § 20, by favoring one class over others.

The facts are free from dispute and we shall now note those which we have not already mentioned.

After the city had adopted its aforementioned resolution, the Portland Planning Commission studied the several areas mentioned in that resolution and found that three of them called for redevelopment. One of the three was the Vaughn Street Area. Still later, the Housing Authority and a public body entitled the Portland Redevelopment Advisory Board made a survey of the three areas. The Portland Redevelopment Advisory Board was organized under Oregon Laws 1951, ch. 373, § 8, and consists of 39 residents of the city having the qualifications demanded by that statute. After it had completed its work, the advisory board reported to the Housing Authority that the Vaughn Street Area was a blighted area within the contemplation of the Oregon and federal redevelopment statutes. It recommended that the area be selected for redevelopment. Thereupon the Housing Authority adopted the resolution which chose the Vaughn Street Area for redevelopment. Further, it directed its staff to make a detailed study and survey of the area 'for the purpose of defining and locating an Urban Redevelopment project therein.' At the conclusion of that investigation, the Housing Authority, on June 19, 1952, adopted a resolution, the material parts of which are:

'(a) The Vaughn Street Area was developed as a residential district more than fifty years ago. It was platted with streets 60 feet in width, and with lots varying in width from 20 feet to 50 feet, and substantial portions of the area were built up without reference to any requirements or standards relating to main access to structures; front, rear or side yards; minimum lot areas or maximum building coverage. The district reached its peak as a residential area about 1910 and has been in continuous decline since that time. The average age of the dwelling structures is 52 years, and only nineteen new dwelling structures have been built in the area within the past thirty years.

'(b) For the past forty years, and particularly during the past twenty-five years, the area has been undergoing a change from residential to industrial and commercial uses, and all of the area except a narrow strip south of Thurman Street is zoned as industrial property. The filling of Guilds Lake which was located northwesterly of the project area, * * * stimulated an intensive industrial development in the vicinity of the area extending along the west bank of the Willamette River. The industrial growth has proceeded continuously, with the result that the area is now completely surrounded on three sides by industrial and commercial establishments, and during the past twenty-five years has existed only as a residential peninsula jutting into an exclusively industrial district.

'(c) The area itself, in addition to being surrounded on three sides by industrial enterprises, has been penetrated by industry and commerce to such an extent that at this time only 53.8% of the area is used for residential purposes, 18.7% is vacant, and the remaining 27.5% is occupied by various industrial and commercial establishments. * * *

'The non-residential establishments are scattered promiscuously throughout the area. Of the 44 blocks comprising the project area, 9% are exclusively residential, 5% are exclusively non-residential, and the remaining 86% are occupied by dwelling structures intermingled with commercial and industrial establishments. Because of the mixed pattern of use the residential structures are in close proximity to industrial and commercial activities with resulting exposure to the noise, dust, smoke, fumes, vibration and general bustle and confusion incident to such activities. * * *

'(d) The industrial...

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