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Portland Metropolitan Association of Realtors v. City of Portland

Court of Appeals of Oregon

May 31, 2018

PORTLAND METROPOLITAN ASSOCIATION OF REALTORS, a domestic nonproft corporation; Home Builders Association of Metropolitan Portland, a domestic nonproft corporation; Building Owners and Managers Association of Oregon, a domestic nonproft corporation; NAIOP Oregon Chapter, a domestic nonproft corporation; Portland Business Alliance, a domestic nonproft corporation; Commercial Association of Brokers Oregon Southwest Washington, a domestic nonproft corporation; and Oregon Association of Realtors, a domestic nonproft corporation, Plaintiffs-Appellants,
v.
CITY OF PORTLAND, Defendant-Respondent.

          Argued and submitted December 11, 2017

          Multnomah County Circuit Court 15CV19696; Cheryl A. Albrecht, Judge.

          Paul Conable argued the cause for appellants. With him on the opening brief were Robyn Ridler Aoyagi, Steven D. Olson, and Tonkon Torp LLP. With him on the reply brief were Steven D. Olson and Tonkon Torp LLP.

          Denis M. Vannier argued the cause for respondent. On the brief was Harry Auerbach.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         [292 Or. 164] Case Summary: Petitioners appeal a judgment granting their writ of review challenging aspects of the Portland City Council's decision to approve Portland City Ordinance 187150. Petitioners argue, in part, that the trial court did not have the authority to remand, for greater specificity, a portion of the city ordinance that was under review. Respondent contends that this case is moot, because Ordinance 187150 never took effect nor were fees collected pursuant to that ordinance. Ordinance 187150 was replaced before its effective date with Ordinance 187770. Petitioners' writ of review challenging Ordinance 187770 was stayed pending this appeal. Held: The Court of Appeals determined this case is moot. The heart of petitioners' writ of review challenge questioned aspects of the city council's decision making process. Those questions can be answered in the challenge to Ordinance 187770. This case, which asked those questions with respect to an ordinance that was not in effect, never took effect, under which fees were never collected, nor would ever be collected, is not the proper vehicle.

         Dismissed.

         [292 Or. 165] JAMES, J.

         Petitioners appeal a judgment granting their writ of review challenging aspects of the Portland City Council's decision to approve Portland City Ordinance 187150. ORS 34.100. Petitioners assign numerous counts of error to the trial court's ruling; chief among them, petitioners argue that the trial court did not have the authority to remand, for greater specificity, a portion of the city ordinance that was under review. Rather, petitioners argue that the trial court only had the authority, under ORS 34.100, to annul or reverse the ordinance. Respondent contends that this case is moot, because Ordinance 187150 never took effect nor were fees collected pursuant to that ordinance. Before the effective date, the city council held a meeting, modified, and voted to replace Ordinance 187150 with Ordinance 187770- petitioners' writ of review challenge to Ordinance 187770 has been stayed pending this appeal. We conclude that this case is moot and, having so concluded, we dismiss.

         Before turning to the specific ordinance at issue in this case, it may be helpful to briefly lay out the general framework involved. ORS 223.309 requires a local government, here the Portland City Council, to prepare a plan for capital improvements (CIP) financed by a system development charge (SDC):

"(1) Prior to the establishment of a system development charge by ordinance or resolution, a local government shall prepare a capital improvement plan, public facilities plan, master plan or comparable plan that includes a list of the capital improvements that the local government intends to fund, in whole or in part, with revenues from an improvement fee and the estimated cost, timing and percentage of costs eligible to be funded with revenues from the improvement fee for each improvement.
"(2) A local government that has prepared a plan and the list described in subsection (1) of this section may modify the plan and list at any time."
The 2015 Parks SDC at issue here is governed by statute. ORS 223.299(4)(a) and (b) defines "System development charge" as [292 Or. 166] "a reimbursement fee, an improvement fee or a combination thereof assessed or collected at the time of increased usage of a capital improvement or issuance of a development permit, building permit or connection to the capital improvement.
"(b) 'System development charge' does not include any fees assessed or collected as part of a local improvement district or a charge in lieu of a local improvement district assessment, or the cost of complying with requirements or conditions imposed upon a land use decision, expedited land division or limited land use decision."

         Particularly, the Parks SDC at issue here is an "improvement fee, " which is "a fee for costs associated with capital improvements to be constructed." ORS ...


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