Advocates v. Board of Commissioners of Jackson County

          Argued and submitted March 8, 2017

         On review from the Court of Appeals.^[*] CC 14CV11829; CA A158485

          Maura C. Fahey, Crag Law Center, Portland, argued the cause and fled the briefs for petitioners on review. Also on the briefs was Ralph O. Bloemers.

          Lynn R. Stafford, Oregonians in Action Legal Center, Tigard, argued the cause and fled the briefs for respondent on review Mountain View Paving, Inc. Also on the brief was David J. Hunnicutt.

          No appearance on behalf of respondent on review Board of Commissioners of Jackson County.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, and Nakamoto, Justices. ^[**]

          The petition for review is dismissed as moot. Walters, J., fled a concurring opinion, in which Balmer, C. J., joined.

         [362 Or. 270] PER CURIAM.

         In this land use dispute, we allowed review to confront the distinction between circuit court jurisdiction to enforce local land use ordinances under ORS 197.825 (3)(a) and the exclusive jurisdiction of the Land Use Board of Appeals (LUBA) to review local land use decisions under ORS 197.825Q).^[1] In 2014, plaintiffs Rogue Advocates and Christine Hudson (together, Rogue Advocates)^[2] brought an action in circuit court premised on that court's jurisdiction to enforce Jackson County's land use ordinances. Rogue Advocates' complaint sought declaratory and injunctive relief in Jackson County Circuit Court against the Board of Commissioners of Jackson County (the county) and Mountain View Paving, Inc. (Mountain View Paving), alleg­ing that Mountain View Paving was operating an asphalt batch plant that was prohibited by the county's land use ordinances if the owner had not first obtained both a flood-plain development permit and formal verification from the county that the plant was a lawful nonconforming use of the property. At the time that Rogue Advocates filed their com­plaint, Mountain View Paving did not have the permit and verification that Rogue Advocates alleged were required.

         [362 Or. 271] The county and Mountain View Paving contested circuit court jurisdiction. They explained that the owners of the plant had applied for the allegedly required verifica­tion and permit, and that the county, initially, had granted their applications.^[3] Although LUBA had reversed the county's decisions and remanded for further consideration, the county and Mountain View Paving contended that the matter could or would be resolved by the county or through the LUBA review process. Therefore, they argued, LUBA had exclusive jurisdiction to decide the issues presented in Rogue Advocates' complaint. The circuit court granted motions filed by the county and Mountain View Paving to dismiss the circuit court action for lack of subject matter jurisdiction. Rogue Advocates appealed that decision to the Court of Appeals.

         In January 2016, while Rogue Advocates' appeal was pending in the Court of Appeals, LUBA issued a final decision holding that Mountain View Paving's asphalt batch plant operation was not permissible under applica­ble Jackson County land use ordinances. Meyer v. Jackson County, ___ Or LUBA ___ (LUBA No. 2015-073, January 11, 2016). Mountain View Paving then ceased asphalt batching on the property and relocated its asphalt batch plant. After LUBA's order became final and, apparently, after Mountain View Paving ceased operating its asphalt batch plant, the Court of Appeals issued its decision in this case, affirming the ruling of the circuit court. Rogue Advocates v. Board of Comm. of Jackson County. 277 Or.App. 651, 372 P.3d 587 (2016). This court then allowed Rogue Advocates' petition for review to consider whether the circuit court had had jurisdiction to consider Rogue Advocates' complaint.

         In light of the fact that Mountain View Paving has ceased the activities that were identified by Rogue Advocates as the bases for its complaint, we asked the parties to brief the issue of whether the case before us is moot and, there­fore, whether the petition for review should be dismissed. [362 Or. 272] Whether a case is moot depends on whether a justiciable controversy exists. Brummet v. PSRB, 315 Or. 402, 405, 848 P.2d 1194 (1993). In a declaratory judgment action like the present one, a justiciable controversy "must involve a dispute based on present facts rather than on contingent or hypo­thetical events." TVKO v. Howland, 335 Or. 527, 534, 73 P.3d 905 (2003). In a similar vein, this court has stated that a case is moot "[i]f, because of changed circumstances, a deci­sion no longer will have a practical effect on or concerning the rights of the parties." State v. Hemenway, 353 Or. 498, 501, 302 P.3d 413 (2013) (internal quotation marks omitted). A case also is moot "when an event occurs that renders it impossible for the court to grant effectual relief." Hamel v. Johnson, 330 Or. 180, 184, 998 P.2d 661 (2000) (internal quo­tation marks and brackets omitted).

         We conclude that the case is moot. In their com­plaint, Rogue Advocates contested Mountain View Paving's operation of an asphalt batch plant. Mountain View Paving is no longer operating that asphalt batch plant, states that it has no intention to do so in the future, and does not contend that it has a legal right to do so. Thus, a decision in this case will not have a practical effect on the parties, and this case is now moot.

         However, this court is not necessarily required to dismiss moot cases, "at least not in 'public actions or cases involving matters of public interest.'" Eastern Oregon Mining Association v. DEQ, 360 Or. 10, 15, 376 P.3d 288 (2016) (quot­ing Couey v. Atkins, 357 Or. 460, 520, 355 P.3d 866 (2015)). Even if moot, such cases may be justiciable if the parties can satisfy the requirements set out in ORS 14.175. That statue allows a court to issue a judgment when the case is moot but the challenged act is capable of repetition yet is likely to evade judicial review and the other terms of the statute are met. That statute does not, however, require a court to issue a judgment in that circumstance. Couey, 357 Or at 522 (court has discretion to decide whether it is appropriate to adjudi­cate an otherwise moot case under the circumstances of the case). In this case, we decline to exercise that authority. The likelihood that a circuit court ruling denying jurisdiction in circumstances similar to these will evade review in this court is not so great as to justify our exercise of discretion to [362 Or. 273] continue to hear this case. We therefore hold that the case is moot and is not justiciable.^[4]

         The petition for review is ...