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,
CITY OF PORTLAND, Defendant-Respondent.
and submitted December 11, 2017
Multnomah County Circuit Court 15CV19696; Cheryl A. Albrecht,
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.
M. Vannier argued the cause for respondent. On the brief was
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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
Or. 165] JAMES, J.
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.
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
"(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
the Parks SDC at issue here is an "improvement fee,
" which is "a fee for costs associated with capital
improvements to be constructed." ORS ...