Scappoose Sand and Gravel v. Columbia County

• Decision Date: 07 July 1999
• Parties: SCAPPOOSE SAND AND GRAVEL, INC., an Oregon corporation, Appellant, v. COLUMBIA COUNTY, a municipal corporation, Respondent.
• Court: Oregon Court of Appeals

984 P.2d 876

161 Or. App. 325

SCAPPOOSE SAND AND GRAVEL, INC., an Oregon corporation, Appellant, v. COLUMBIA COUNTY, a municipal corporation, Respondent.

(922141; CA A99356)

Court of Appeals of Oregon.

Argued and Submitted January 12, 1999.

Decided July 7, 1999.

Leslie M. Roberts, Portland, argued the cause for appellant. With her on the briefs was Josselson, Potter & Roberts.

Michael J. Lilly, Portland, argued the cause and filed the briefs for respondent.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

De MUNIZ, P.J.

In October 1992, plaintiff brought this action for declaratory and injunctive relief against defendant Columbia County challenging the validity of Ordinance 92-8, which the county enacted in September 1992 to amend the fee provisions of its Surface Mining Ordinance. Plaintiff contends that the two-cent per ton "regulatory fee" that the 1992 ordinance imposes on plaintiff and others engaged in surface mining is a "tax" and that, therefore, the county was required to, but did not, submit it to the voters pursuant to ORS 203.055.¹ Plaintiff also maintains that the ordinance is invalid because the county's surface mining regulations are preempted by state law. The trial court rejected both of plaintiff's contentions and entered judgment for the county. Plaintiff appeals, and we affirm.

In June 1972, the county adopted an eight-page ordinance entitled the 1972 Surface Mining Land Reclamation Ordinance. The previous year, the state legislature had adopted Oregon Laws 1971, chapter 719, which took effect on July 1, 1972, and which contained detailed regulations of surface mining that have been made even more comprehensive through amendments at subsequent legislative sessions. Section 16 of the 1971 act expressly preempted local legislation, subject to a grandfather clause. As later amended and as now codified at ORS 517.780(1), that section provides, in material part:

"The provisions of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder shall not supersede any zoning laws or ordinances in effect on July 1, 1972; however, if such zoning laws or ordinances are repealed on or after July 1, 1972, the provisions of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder shall be controlling."

There is no dispute that the 1972 county ordinance had "grandfathered" status under that statute—although it could be said that the ordinance became a grandfather almost simultaneously with its own birth.

In 1990, the county enacted an ordinance approximately 58 pages in length that "amended" the 1972 ordinance. Although, as we will discuss later, the effect and import of the 1990 enactment contributes to the controversy here, the immediate object of the challenge in this case is Ordinance 92-8. It was enacted by the county's governing body two years later and amendedonlythe fee provision contained in section 5.2 of the 1990 ordinance. As relevant here, the 1992 amendment added the following provisions to section 5.2:

"(2)(a) In addition to the fees stated above, each landowner or operator holding a Limited Exemption Certificate or operating permit shall pay a regulatory fee to Columbia County. The regulatory fees collected in fiscal year 1992-93 shall be deposited into an account within the general fund of Columbia County dedicated to the regulation of surface mining in Columbia County. The regulatory fees collected beginning fiscal year 1993-94 and thereafter shall be deposited into a special fund of Columbia County dedicated to the regulation of surface mining in Columbia County. The regulatory fees shall not be used for any other purpose. Legitimate expenses for the use of such regulatory fees shall include the salary of the Administrator, necessary staff, secretarial and clerical support, and the vehicles, supplies and equipment involved in the regulation of surface mining in Columbia County. Such legitimate expenses shall also include such other expenses incurred by the County in the regulation of surface mining.

"(b) Beginning October 1, 1992, and through June 30, 1993, the regulatory fee shall be in the amount of two cents ($0.02) per ton for all minerals removed from each surface mining site. During the preparation of the County's budget for fiscal year 1993-94, and each fiscal year thereafter, an accounting shall be made of the expenses incurred and revenues received by the County as a result of its regulation of surface mining. If it is determined that the revenues received, and expected to be received, are insufficient to reimburse the County for the expenses incurred, and expected to be incurred, the regulatory fee may be increased accordingly. If it is determined that the revenues received, and expected to be received, exceed the expenses incurred, and expected to be incurred, the regulatory fee shall be decreased accordingly."

One further fact that is relevant both to the substance of our discussion and to the background that may aid our readers' understanding is that this action was consolidated at the trial court level with one that was also brought shortly after the passage of Ordinance 92-8 by another business involved in surface mining activities in Columbia County. However, unlike plaintiff here, the plaintiff in the consolidated action also appealed the enactment of the ordinance to the Land Use Board of Appeals (LUBA). The LUBA proceeding culminated in two decisions by that body, each of which was reviewed in turn by this court. Oregon City Leasing, Inc. v. Columbia County, 25 Or LUBA 129, rev'd 121 Or.App. 173, 854 P.2d 495, on remand 26 Or LUBA 203 (1993), aff'd 126 Or.App. 314, 868 P.2d 1372, rev. den. 318 Or. 661, 873 P.2d 322 (1994).² The ultimate result of that appeal was an affirmance of the enactment in all respects except one that is not material here.

In this appeal, plaintiff advances two assignments of error that, respectively, challenge the trial court's rejection of its two contentions that we have summarized. The threshold question, however, is presented by the county's cross-assignment of error that the circuit court lacked subject matter jurisdiction over the action. According to the county, its Surface Mining Ordinance is a "land use regulation"; an amendment to a land use regulation, as Ordinance 92-8 is, is a "land use decision" by statutory definition; and, therefore, any dispute concerning the 1992 ordinance comes within LUBA's exclusive jurisdiction to review land use decisions. ORS 197.015(10)(a)(A)(iii), (11); ORS 197.825(1). In its first consideration of the appeal in Oregon City Leasing, LUBA held that the enactment of the ordinance was a land use decision over which it had jurisdiction for essentially the same reasons that the county offers here for contending that the circuit court lacked jurisdiction. See 25 Or LUBA at 131-32. Although we did not specifically address that issue in our review of LUBA's decision, the issueisjurisdictional, and LUBA's entire decision was before us. It is implicit that we agreed at least with the conclusion that LUBA had jurisdiction.³ As the parties appear to agree, however, plaintiff was not a party to the LUBA proceeding, and the jurisdictional holding in Oregon City Leasing is neither the law of this case nor preclusive. We nevertheless conclude that LUBA was correct in its holding that it had jurisdiction, for the reasons it stated.

In our view, however, that is not the end of the jurisdictional inquiry here. Although Ordinance 92-8 is an amendment to a land use regulation, it is also an ordinance that, in practical effect, does nothing except impose the fees that plaintiff challenges and contends constitute a tax.⁴ The declaratory judgment process has traditionally been available as a vehicle for determining the validity of local legislation, including local tax measures. ORS 28.020; see Budget Rent-A-Car v. Multnomah Co., 287 Or. 93, 597 P.2d 1232 (1979); Advance Resorts of America, Inc. v. City of Wheeler, 141 Or.App. 166, 917 P.2d 61,rev. den. 324 Or. 322, 927 P.2d 598 (1996). There is no question that this action comes within the circuit court's jurisdiction under ORS chapter 28 if the subject matter is not confined to LUBA's exclusive jurisdiction under ORS 197.825.

In far more instances than not, it is not difficult to discern whether a local enactment is a land use regulation or something else. Where that is not the case, the reason is usually not that it is hard to tell whether the legislation deals with land use or something else but that it affects land use and something else. In Fence v. Jackson County, 135 Or.App. 574, 900 P.2d 524 (1995), we adverted to the jurisdictional problem that can arise in identifying the proper forum for adjudicating the validity of local legislation that has some attributes of a "land use regulation" and some that relate to a different regulatory objective. We said, in holding that LUBA had jurisdiction to review the county's "outdoor mass gathering" ordinance for consistency with ORS 433.735 et seq.:

"The threshold issue that the parties dispute is whether LUBA had jurisdiction over the appeal. The county maintains that LUBA did not have jurisdiction over some of the issues, at least, because they pertain to regulation of matters unrelated to land use, and are therefore not `land use decisions.' We agree with the county that the fact that a regulation is embodied in something called a land use ordinance does not convert it into a land use regulation, subject to LUBA's review, if the substance of the regulation clearly pertains to something other than land use. However, that is not the case here. Under ORS 433.763, permits for gatherings of more than 120 hours duration are to be issued by county planning commissions, upon determinations, inter alia, that the proposed gathering `[i]s compatible with existing land uses' and `[d]oes not materially alter the stability of the overall land use pattern of the area.' It is

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