State ex rel Select Reform Comm. of Jefferson v. City of Jefferson

• Decision Date: 26 August 2020
• Docket Number: A164282
• Citation: 474 P.3d 399,306 Or.App. 239
• Parties: STATE EX REL SELECT REFORM COMMITTEE OF JEFFERSON, Bob Burns, Chief Petitioner; Stan Neal, Chief Petitioner; and Brad Cheney, Chief Petitioner, Relators-Appellants, v. CITY OF JEFFERSON, an Oregon municipal corporation; and Sarah Cook, City's Elections Officer, Defendants-Respondents, and Hamby Family Limited Partnership, an Oregon limited partnership, Intervenor-Respondent.
• Court: Oregon Court of Appeals

306 Or.App. 239

474 P.3d 399

STATE EX REL SELECT REFORM COMMITTEE OF JEFFERSON, Bob Burns, Chief Petitioner; Stan Neal, Chief Petitioner; and Brad Cheney, Chief Petitioner, Relators-Appellants,

v.CITY OF JEFFERSON, an Oregon municipal corporation; and Sarah Cook, City's Elections Officer, Defendants-Respondents,andHamby Family Limited Partnership, an Oregon limited partnership, Intervenor-Respondent.

A164282

Court of Appeals of Oregon.

Argued and submitted May 31, 2018.

August 26, 2020

David E. Coulombe, Corvallis, argued the cause for appellants. Also on the brief was Fewel, Brewer & Coulombe.

Ross M. Williamson argued the cause for respondents City of Jefferson and Sarah Cook. Also on the brief was Speer Hoyt LLC.

No appearance for respondent Hamby Family Limited Partnership.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

The city council of the City of Jefferson enacted an ordinance that annexed property into the city. Relator Select Reform Committee of Jefferson petitioned the city to issue a ballot title for a referendum on the annexation. The city refused, and relator petitioned for a writ of mandamus to compel the city and its elections officer to issue the ballot title.¹ In this appeal from a judgment dismissing the alternative writ of mandamus, relator argues that the trial court erred by granting the city's motion to dismiss. The city asserts that this appeal is moot for two reasons: (1) because the ordinance annexing the property has been repealed; and (2) because the city has amended its charter provision governing annexations. As discussed below, we conclude that this appeal is not moot and that the trial court correctly dismissed the alternative writ. Therefore, we affirm.

BACKGROUND

The facts are procedural and undisputed. Intervenor, the Hamby Family Limited Partnership, applied to have roughly 14 acres of property annexed into the City of Jefferson.² The property was adjacent to the then-existing city boundaries. After a public hearing, the city council approved the application in the form of an ordinance, Ordinance 695. The city did not refer the annexation decision to the voters.

Relator filed a prospective petition to initiate a referendum on the annexation decision. The city rejected the petition, declining to create a ballot title for a referendum because, it concluded, the ordinance "was an administrative action and quasi-judicial land use decision; the ordinance was not a legislative act of the City Council." As a result, in the city's view, the ordinance was not subject to a referendum under Article IV, section 1(5), of the Oregon Constitution, which reserves to "the qualified voters of each municipality and district" certain "initiative and referendum powers" "as to all local, special, and municipal legislation of every character in or for their municipality or district."³ In the city's view, the ordinance was not legislative, so it was not subject to a referendum under Article IV, section 1(5).

Relator then filed a petition for an alternative writ of mandamus in Marion County Circuit Court to direct the city to issue the ballot title and hold a referendum. The court issued the alternative writ. The city and intervenor both moved to dismiss, arguing that the annexation decision was not subject to a referendum because it was not a legislative action.

Before the trial court, the parties agreed that Article IV, section 1(5) was the controlling law and that, under that provision, the city was not required to accept relator's referendum petition if the challenged ordinance was administrative or quasi-judicial rather than legislative. They disagreed, however, about whether the ordinance was legislative. Defendants argued that the ordinance was not legislative because the action that the city took in the ordinance—annexing the property without first holding a referendum—was required by Senate Bill 1573 (2016), which was later codified as ORS 222.127. As relevant here, that statute provides:

"(1) This section applies to a city whose laws require a petition proposing annexation of territory to be submitted to the electors of the city.

"(2) Notwithstanding a contrary provision of the city charter or a city ordinance, upon receipt of a petition proposing annexation of territory submitted by all owners of land in the territory, the legislative body of the city shall annex the territory without submitting the proposal to the electors of the city if:

"(a) The territory is included within an urban growth boundary adopted by the city or Metro, as defined in ORS 197.015 ;

"(b) The territory is, or upon annexation of the territory into the city will be, subject to the acknowledged comprehensive plan of the city;

"(c) At least one lot or parcel within the territory is contiguous to the city limits or is separated from the city limits only by a public right of way or a body of water; and

"(d) The proposal conforms to all other requirements of the city's ordinances."

"* * * * *

"(4) When the legislative body of the city determines that the criteria described in subsection (2) of this section apply to territory proposed for annexation, the legislative body may declare that the territory described in subsections (2) and (3) of this section is annexed to the city by an ordinance that contains a description of the territory annexed."

Defendants contended that, under that statute, the city's role in approving the annexation had two parts, and neither was legislative. First, the city's role was quasi-judicial, as it had to determine whether the statute's requirements, which incorporate the "requirements of the city's ordinances," were satisfied. ORS 222.127(2)(d). Second, its role was administrative, because the statute required the city, after determining that the requirements were satisfied, to "annex the territory without submitting the proposal to the electors of the city." ORS 222.127(2) ("[T]he legislative body of the city shall annex the territory without submitting the proposal to the electors of the city."). Defendants contended that the city's actions were not legislative because the legislature had already made all the necessary legislative judgments; all that remained for the city to do was to apply the statutory requirements to ascertain whether annexation was the single legally correct outcome and, if it was, to annex the property.

Defendants also pointed out that the Jefferson City Charter appeared to allow for annexation without a vote of the electors when the annexation is "mandated by state law." Jefferson City Charter, ch. I, § 3 ("Unless mandated by state law, annexation * * * to the City of Jefferson, may only be approved by a prior majority vote among the electorate."). Thus, they contended, there was no conflict between ORS 222.127 and city law; once the requirements of ORS 222.127(2) were met, ORS 222.127 mandated annexation, and the city code allowed for annexation without a vote in that circumstance.

Relator responded that, by enacting the ordinance annexing property without sending the decision to the voters, the city had done more than simply implement ORS 222.127. It argued that, by complying with that state statute, the city had effectively amended its charter and its development code, both of which, in relator's view, required voters’ approval of annexation decisions. Relator contended that those "amendments" meant that the ordinance was a legislative action, because it changed the law of the city.

Relator also argued that the city's decision to comply with ORS 222.127 was, itself, a legislative decision that was embodied in the ordinance, because, before applying the statute, the city had debated whether to refuse to apply ORS 222.127 and, instead, join a legal challenge to its constitutionality.

Relator expressly did not challenge the constitutionality of ORS 222.127. Relator's counsel told the court that "the constitutionality of Senate Bill 1573" was "not what we're here for today." Instead, "[w]hat we're about today is do the people—do the electorate have a right, a constitutional right [under Article IV, section 1(5) ], to refer for a referendum to challenge that ordinance." That is, as we understand it, relator's position was that, even assuming that ORS 222.127 is constitutional and otherwise valid, the city's action was nevertheless legislative under Article IV, section 1(5), because its decision to follow valid state law was a legislative amendment of local law.

The trial court rejected all of relator's arguments. It concluded that the city's action was administrative because ORS 222.127 required the city to annex the property without a vote and the charter expressly excepted such a situation from the voting requirement. The court entered a general judgment of dismissal on January 27, 2017. In June 2017, the court entered a supplemental judgment in which it determined that defendants were the prevailing parties and, based on that conclusion, awarded attorney fees. See ORS 34.210(2) (providing that, in a mandamus action, a "court in its discretion may designate a prevailing party and award attorney fees, costs and disbursements to the prevailing party"). Relator appeals from the general judgment; it has not filed a notice of appeal as to the supplemental judgment.

While this mandamus action was pending in the trial court, relator also appealed the city's land use decision to the Land Use Board of Appeals (LUBA). In an opinion issued in February 2017, LUBA concluded that the city had not adequately explained how the proposed annexation satisfied several requirements of the city's ordinances and, consequently, remanded the city's decision. On remand from LUBA, in September 2017, the city repealed Ordinance 695. It reenacted a similar provision in Ordinance 702.

MOOTNESS

The city then moved to dismiss this appeal as moot, contending that, after the repeal of Ordinance 695, any decision of this court would have no practical effect on the rights of the...