Nicoll v. City of Eugene, 16-80-08132

• Decision Date: 25 June 1981
• Docket Number: No. 16-80-08132,16-80-08132
• Citation: 632 P.2d 502,53 Or.App. 528
• Parties: Burton NICOLL, Appellant, v. The CITY OF EUGENE, a municipal corporation, acting by and through the Eugene Water & Electric Board, Respondent. ; CA 19745. . On Respondent's Petition for Reconsideration
• Court: Oregon Court of Appeals

Page 502

632 P.2d 502

53 Or.App. 528

Burton NICOLL, Appellant, v. The CITY OF EUGENE, a municipal corporation, acting by and through the Eugene Water & Electric Board, Respondent.

No. 16-80-08132; CA 19745.

Court of Appeals of Oregon.

On Respondent's Petition for Reconsideration June 25, 1981.

Decided Aug. 17, 1981.

Windsor Calkins, and Calkins & Calkins, Eugene, for petition.

Before RICHARDSON, P. J., and THORNTON and VAN HOOMISSEN, JJ.

RICHARDSON, Presiding Judge.

Defendant City of Eugene petitions for reconsideration of our opinion at 52 Or.App. 379, 628 P.2d 1213 (1981), and contends that the following footnote in the opinion is inaccurate and misleading:

"EWEB also appears to argue that the plan does not violate (Or. Const., Art. XI, § 9) because its beneficiaries will be private persons rather than companies, corporations or associations. See Miles v. City of Eugene, 252 Or. 528, 451 P.2d 59 (1969). The definition of 'eligible customer' in the plan includes a 'person who owns or occupies a residential building * * *.' It is not clear whether benefits would be available to incorporated owners of residential properties." 52 Or.App. at 383, n. 1, 628 P.2d 1213.

The city argues that benefits under its residential energy conservation plan are available to corporations and other nonnatural entities as well as to natural persons who own or occupy residential buildings. The city is concerned that the last sentence in our footnote suggests otherwise and could lead to subsequent confusion and litigation. We agree with the city that the footnote is confusingly worded and could be misread in the way the city indicates.

We did not intend to imply that the plan does not benefit incorporated owners of residential property, or that the plan is not clear in that regard. The only point the footnote was intended to make is that, if the plan does benefit companies, corporations or associations as well as natural persons, the holding in Miles v. City of Eugene, 252 Or. 528, 451 P.2d 59 (1969), does not in itself make Art. XI, § 9 inapplicable to the plan. Because we held for other reasons that the plan does not violate Art. XI, § 9, footnote 1 is superfluous and we modify our opinion by deleting it.

Reconsideration allowed; former opinion adhered to as modified.