Rogue Advocates v. Board of Comm. of Jackson County

No. 66 December 14, 2017 269

66

Rogue Advocates v. Board of Comm. of Jackson County 362

December 14, Or

2017

IN THE SUPREME COURT OF THE

STATE OF OREGON

ROGUE ADVOCATES

and Christine Hudson,

Petitioners on Review,

v.

BOARD OF COMMISSIONERS

OF JACKSON COUNTY

and Mountain View Paving, Inc.,

Respondents on Review.

(CC 14CV11829; CA A158485; SC S064105)

On review from the Court of Appeals.*

Argued and submitted March 8, 2017.

Maura C. Fahey, Crag Law Center, Portland, argued the

cause and filed 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 filed 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.**

PER CURIAM

The petition for review is dismissed as moot.

Walters, J., filed a concurring opinion, in which Balmer,

C. J., joined.

______________

** On appeal from Jackson County Circuit Court, Timothy C. Gerking,

Judge. 277 Or App 651, 372 P3d 587 (2016).

**  Baldwin, J., retired March 31, 2017, and did not participate in the decision

of this case. Brewer, J., retired June 30, 2017, and did not participate in the deci-

sion of this case. Flynn and Duncan, JJ., did not participate in the consideration

or decision of this case.

270 Rogue Advocates v. Board of Comm. of Jackson County

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 197.825(1).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), alleg-

ing 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 com-

plaint, Mountain View Paving did not have the permit and

verification that Rogue Advocates alleged were required.

1

ORS 197.825 provides:

“(1) Except as provided in ORS 197.320 and subsections (2) and (3) of

this section, the Land Use Board of Appeals shall have exclusive jurisdiction

to review any land use decision or limited land use decision of a local gov-

ernment, special district or a state agency in the manner provided in ORS

197.830 to 197.845.

“* * * * *

“(3)  Notwithstanding subsection (1) of this section, the circuit courts of

this state retain jurisdiction:

“(a) To grant declaratory, injunctive or mandatory relief in proceed-

ings arising from decisions described in ORS 197.015(10)(b) or proceedings

brought to enforce the provisions of an adopted comprehensive plan or land

use regulations; and

“(b)  To enforce orders of the board in appropriate proceedings brought by

the board or a party to the board proceeding resulting in the order.”

2

Christine Hudson owns and manages Mountain View Estates, a residen-

tial community for seniors adjacent to Mountain View Paving’s asphalt batch

plant site. Rogue Advocates is a nonprofit corporation that seeks to preserve pro-

ductive rural lands and to promote urban centers in southern Oregon’s Rogue

Valley region. Rogue Advocates’ members own homes and live in Mountain View

Estates.

Cite as 362 Or 269 (2017) 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 verifica-

tion 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 applica-

ble 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 P3d 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, there-

fore, whether the petition for review should be dismissed.

3

Paul and Kristen Meyer, the owners of Mountain View Paving, were the

applicants for the permits. Rogue Advocates filed petitions for review of the

county’s decisions granting those permits with LUBA. Paul and Kristen Meyer

intervened in those proceedings as respondents.

272 Rogue Advocates v. Board of Comm. of Jackson County

Whether a case is moot depends on whether a justiciable

controversy exists. Brummet v. PSRB, 315 Or 402, 405, 848

P2d 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 hypo-

thetical events.” TVKO v. Howland, 335 Or 527, 534, 73 P3d

905 (2003). In a similar vein, this court has stated that a

case is moot “[i]f, because of changed circumstances, a deci-

sion no longer will have a practical effect on or concerning

the rights of the parties.” State v. Hemenway, 353 Or 498,

501, 302 P3d 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 P2d 661 (2000) (internal quo-

tation marks and brackets omitted).

We conclude that the case is moot. In their com-

plaint, 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 P3d 288 (2016) (quot-

ing Couey v. Atkins, 357 Or 460, 520, 355 P3d 866 (2015)).

Even if moot, such cases may be justiciable if the parties can

satisfy the requirements set out in ORS 14.175. That statute

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 adjudi-

cate 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

Cite as 362 Or 269 (2017) 273

continue to hear this case. We therefore hold that the case is

moot and is not justiciable.4

The petition for review is dismissed as moot.

WALTERS, J., concurring.

I concur in the court’s decision to dismiss the peti-

tion for review in this case as moot and nonjusticiable, but

write to call attention to the importance of the issue raised

in this case and the need for its correct resolution. In my

view, when a landowner uses land in violation of a local land

use regulation or Land Use Board of Appeals (LUBA) order,

a circuit court has jurisdiction to issue an injunction pro-

hibiting that illegal use. The fact that the landowner may

be entitled to seek, or may in fact be seeking, permission to

engage in that use may affect the court’s exercise of its juris-

diction, but it does not operate as a jurisdictional bar. As

I will explain, LUBA’s exclusive jurisdiction to review local

land use decisions may counsel against, but does not always

foreclose, circuit court jurisdiction to enforce existing law.

In this case, the Court of Appeals relied on the fol-

lowing rule to conclude that the circuit court did not have

subject matter jurisdiction to enjoin Mountain View Paving’s

asphalt batch plant operation: “ ‘At both ends of the spectrum

and all points along it, if local or LUBA jurisdiction exists

or has been exercised, there is no circuit court jurisdiction

to render a decision on matters that were or could have

been resolved through the local or LUBA process.’ ” Rogue

Advocates v. Board of Comm. of Jackson County, 277 Or App

651, 659-60, 372 P3d 587 (2016) (quoting Doney v. Clatsop

Co., 142 Or App 497, 502, 921 P2d 1346 (1996)). That rule

is not found in the controlling statute, ORS 197.825, and it

wrongly precludes circuit courts from determining whether

to exercise, and in the certain cases, from exercising, their

statutory authority to enforce local land use ordinances and

LUBA orders.

4

The case already may have been moot when the Court of Appeals issued its

decision. If so, then the question arises whether it would be appropriate for this

court to vacate the Court of Appeals’ decision. Vacatur is an extraordinary, discre-

tionary remedy, to be granted only when a party shows an “equitable entitlement.”

Kerr v. Bradbury, 340 Or 241, 250, 131 P3d 737 (2006). Neither party has requested

vacatur in this case and we decline to exercise our discretion to require it.

274 Rogue Advocates v. Board of Comm. of Jackson County

ORS 197.825(1) grants LUBA exclusive jurisdiction

to review land use decisions:

“(1)  Except as provided in ORS 197.320 and subsec-

tions (2) and (3) of this section, the Land Use Board of

Appeals shall have exclusive jurisdiction to review any land

use decision or limited land use decision of a local govern-

ment, special district or a state agency in the manner pro-

vided in ORS 197.830 to 197.845.”

(Emphasis added.) ORS 197.825(3) provides that, notwith-

standing subsection (1), circuit courts retain jurisdiction to

enforce land use regulations and LUBA orders:

“(3)  Notwithstanding subsection (1) of this section, the

circuit courts of this state retain jurisdiction:

“(a)  To grant declaratory, injunctive or mandatory

relief in proceedings arising from decisions described in

ORS 197.015(10)(b) or proceedings brought to enforce the

provisions of an adopted comprehensive plan or land use

regulations; and

“(b) To enforce orders of the board in appropriate pro-

ceedings brought by the board or a party to the board pro-

ceeding resulting in the order.”

(Emphasis added.)

The rule stated by the Court of Appeals reflects a

view that LUBA jurisdiction under subsection (1) and circuit

court jurisdiction under subsection (3) are mutually exclu-

sive—that is, that circuit court jurisdiction does not exist

when a local government has made or could make a land use

decision that is or could be subject to LUBA review. For rea-

sons that I will explain, I do not agree. I read ORS 197.825

to allocate jurisdiction between LUBA and the courts, but

not to preclude its contemporaneous exercise.

Before the legislature created LUBA in 1979,5 cir-

cuit courts had had broad jurisdiction to decide land use

disputes, including authority to review local land use deter-

minations. See Edward J. Sullivan, From Kroner to Fasano:

An Analysis of Judicial Review of Land Use Regulation in

Oregon, 10 Willamette L J 358 (1974) (discussing evolution

5

Or Laws 1979, ch 772, § 2.

Cite as 362 Or 269 (2017) 275

of standards and form of circuit court review of local agency

land use decisions from 1925 to 1974); Edward J. Sullivan,

Reviewing the Reviewer: The Impact of the Land Use Board

of Appeals on the Oregon Land Use Program, 1979-1999, 36

Willamette L Rev 441, 445 (2000) (review of local land use

decisions was once the province of trial courts). In 1983, the

legislature enacted ORS 197.825, which endowed LUBA

with “exclusive” jurisdiction to “review” land use decisions.

Or Laws 1983, ch 827, § 30. However, as described in greater

detail below, when it did so, it provided that circuit courts

continue to “retain” jurisdiction to “enforce” land use reg-

ulations by granting declaratory, injunctive, or manda-

tory relief. Id. Thus, the legislature transferred to LUBA

a part of the authority that circuit courts previously had

exercised—the role of reviewing land use decisions—but

specifically provided that circuit courts retain other aspects

of its preexisting authority—authority to grant declaratory,

injunctive, or mandatory relief in three categories of pro-

ceedings.

The first category of proceedings in which the cir-

cuit courts retain jurisdiction is described in the first prong

of ORS 197.825(3)(a): “proceedings arising from decisions

described in ORS 197.015(10)(b).” The proceedings in that

category do not involve “land use decisions” as that term is

defined in the statute. ORS 197.015(10) defines the phrase

“land use decision.” Paragraph (10)(b) lists various types of

nondiscretionary local government land use determinations

that are specifically excluded from the definition of “land

use decision.” Thus, the first category of proceedings in

which the circuit court retains jurisdiction involves deter-

minations that are not subject to LUBA review. Only the cir-

cuit courts have jurisdiction to review “decisions described

in ORS 197.015(10)(b).”

But that is not the only instance in which cir-

cuit courts retain jurisdiction. The second prong of ORS

197.825(3)(a) describes a second category of proceedings

over which circuit courts retain jurisdiction: proceedings

brought to “enforce the provisions of an adopted compre-

hensive plan or land use regulations.” A third category of

proceedings over which circuit courts retain jurisdiction is

276 Rogue Advocates v. Board of Comm. of Jackson County

described in ORS 197.825(3)(b). Like the second prong of

ORS 197.825(3)(a), ORS 197.825(3)(b) also provides that

circuit courts retain enforcement jurisdiction—in proceed-

ings brought “[t]o enforce orders of [LUBA].”

In dividing responsibility for “review” and “enforce-

ment” as I have just described, the legislature allocated

between the courts and LUBA the jurisdiction that previ-

ously had belonged solely to the courts. Nothing in the statu-

tory scheme, however, suggests that the legislature intended

to provide that LUBA’s exercise of its review jurisdiction (or

the potential for its exercise) bars circuit courts from exer-

cising their enforcement jurisdiction. LUBA has exclusive

jurisdiction to “review” land use decisions, but the exercise

of that jurisdiction (or the potential for its exercise) does not

give it exclusive jurisdiction over all matters related to the

use of land.

As I read ORS 197.825, a circuit court would have

jurisdiction to declare that a landowner’s use of property

is in violation of a land use regulation or a LUBA order

and to enjoin that use, even if the landowner could, in the

future, obtain a land use decision from a local government

or LUBA that would permit that use. The commencement of

an action in circuit court would not preclude the landowner

from seeking such permission. Nothing in ORS 197.825

limits LUBA review jurisdiction to instances in which there

is no pending or potential enforcement proceeding before a

circuit court. And the obverse is also true: nothing in ORS

197.825 limits the circuit court’s enforcement jurisdiction to

situations in which there is no pending or potential land use

proceeding before a local governmental body or LUBA. Nor

does the wording of the statute in any way suggest that par-

ties must exhaust their rights or take advantage of oppor-

tunities to obtain local governmental land use decisions or

review of such decisions by LUBA before bringing circuit

court enforcement actions.

That does not mean, however, that the existence of

LUBA review jurisdiction does not affect a court’s exercise

its enforcement jurisdiction. As I will explain, three related

principles, derived from this court’s decisions and the

structure of Oregon land use statutes, impose significant

Cite as 362 Or 269 (2017) 277

limitations on the exercise of circuit court authority: the

principle that a party cannot, in the guise of enforcement,

seek “review” of a land use decision; the doctrine of primary

jurisdiction; and the principle that a local government’s

interpretation of its own regulations must be given effect.

This court’s decision Wright v. KECH-TV, 300 Or

139, 707 P2d 1232 (1985), is illustrative of the first principle.

In Wright, the plaintiffs brought an action in circuit court

to compel the removal of a television station’s transmission

tower on the ground, among others, that the county’s issu-

ance of permits to the station violated statewide planning

goals. The circuit court dismissed the complaint for lack of

subject matter jurisdiction on the ground that the complaint

presented land use questions within LUBA’s exclusive juris-

diction. The Court of Appeals affirmed. This court affirmed

the decision of the Court of Appeals and the ruling of the

circuit court, holding that LUBA had exclusive jurisdiction

over the matter, because the “thrust of the complaint” was a

challenge to the issuance of the permits. Id. at 147. In other

words, this court determined that, in the guise of enforce-

ment, what plaintiffs really sought was judicial review of

the county’s land use decision. LUBA, not the court, has

exclusive jurisdiction in that instance.

The second principle—the doctrine of primary

jurisdiction—comes into play “when a court decides that an

administrative agency, rather than a court of law, initially

should determine the outcome of a dispute or one or more

issues within that dispute that fall within the agency’s stat-

utory authority.” Boise Cascade Corp. v. Board of Forestry

(S42159), 325 Or 185, 192, 935 P2d 411 (1997). Courts

invoke primary jurisdiction when it appears that an agency’s

disposition of one or more issues before the court will assist

the court in resolving the case before it. Id. As this court

explained in Boise Cascade, there are two types of primary

jurisdiction: statutory primary jurisdiction, in which a stat-

ute requires courts to apply primary jurisdiction to a class

of cases, and judge-made primary jurisdiction, in which

the scope and effect are determined through judicial rea-

soning. Id. at 191-92. Neither ORS 197.825 nor any other

statute requires courts to await LUBA review before exer-

cising their enforcement authority. Thus, in exercising its

278 Rogue Advocates v. Board of Comm. of Jackson County

enforcement jurisdiction, a circuit court would be required

to determine the extent to which primary jurisdiction comes

into play by considering the nature of the parties’ dispute

and the scope of the agency’s authority. Id. at 193.

As this court explained in Boise Cascade, invoca-

tion of the doctrine of primary jurisdiction does not require

dismissal of a circuit court complaint unless the court deter-

mines that an agency has primary jurisdiction over an entire

dispute. Id. In other circumstances, a court has discretion

whether to invoke primary jurisdiction and defer decision in

the action until the agency has addressed a particular issue.

Id. at 192. There, the court must balance considerations in

favor of allocating initial decision-making authority to the

agency against the likelihood that application of agency def-

erence will unduly delay resolution of the dispute before the

court. Id. Thus, in a land use proceeding, the doctrine of

primary jurisdiction may counsel that a court refrain from

exercising its enforcement jurisdiction until local and LUBA

review are complete. In appropriate circumstances, how-

ever, a court may decide to exercise its discretion to impose

a remedy pending the completion of local or LUBA review.

The third applicable principle that limits a circuit

court’s exercise of enforcement jurisdiction is that a court

does not have unfettered authority to reach its own conclu-

sions about the meaning of applicable land use regulations.

If LUBA has interpreted such regulations, a court’s author-

ity to reach a different conclusion is limited. See Don’t Waste

Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881

P2d 119 (1994) (courts cannot overrule agency’s interpre-

tation of its own rule unless agency’s plausible interpreta-

tion is shown to be inconsistent with wording of the rule,

its context, or other source of law). The same is true when

a county has interpreted its own regulations or ordinances.

Siporen v. City of Medford, 349 Or 247, 257-58, 243 P3d 776

(2010) (when governing body is responsible for enacting

ordinance, it may be assumed to have better understand-

ing than LUBA or the courts of its intended meaning); see

also, Clark v. Jackson County, 313 Or 508, 515, 836 P2d 710

(1992) (LUBA must affirm county’s interpretation of its own

ordinances unless LUBA determines that county’s interpre-

tation is inconsistent with express language of ordinance or

Cite as 362 Or 269 (2017) 279

its apparent purpose or policy.). In other words, the courts do

not have carte blanche authority to interpret local land use

regulations or ordinances; they must give effect to interpre-

tations of such laws provided by LUBA or local governments.

Those principles place significant limits on a cir-

cuit court’s enforcement jurisdiction, but they do not bar

its exercise. In this case, the proper question for the circuit

court and the Court of Appeals was not whether “local or

LUBA jurisdiction exists or has been exercised,” but rather,

as this court indicated in Wright, 300 Or at 147, whether

the “thrust of” Rogue Advocates’ complaint was to obtain

enforcement of the county’s land use ordinances that pro-

hibited Mountain View Paving from conducting an asphalt

batch operation without the permits and approvals required

to lawfully engage in that operation.

Here, Rogue Advocates alleged in their complaint

that Mountain View Paving operated an asphalt batch plant

on property that is located in an area in which such a use is

prohibited absent both county verification as a lawful non-

conforming use and a floodplain development permit. Rogue

Advocates further alleged that, at the time the complaint

was filed, Mountain View Paving did not have the required

verification or permit and that its use therefore violated

county ordinances. Rogue Advocates sought a declaration

of the violation and an injunction ordering Mountain View

Paving to cease the asphalt batch plant operation unless

and until the required verifications and permit were issued.

Thus, the complaint sought to enforce existing Jackson

County land use regulations and not to foreclose either a

decision by the county granting those approvals or LUBA’s

review of the county’s action. The circuit court could have

resolved the issue actually presented in Rogue Advocates’

complaint—whether Mountain View Paving could operate

the asphalt batch plant without the nonconforming use ver-

ification and floodplain development permit—without con-

sidering whether Mountain View Paving eventually would

obtain the allegedly required verification and permit. Rogue

Advocates did not ask the circuit court to determine whether

the county should issue the required approvals. The county

had authority to make that decision as an initial matter,

and LUBA had exclusive jurisdiction to review the decision

280 Rogue Advocates v. Board of Comm. of Jackson County

that the county made. But, in my view, the existence of that

review authority did not deprive the circuit court of subject

matter jurisdiction to consider whether to enjoin Mountain

View Paving’s operation of the asphalt batch plant during

the completion of those proceedings.

I understand that circuit court enforcement juris-

diction is narrow and that its exercise is subject to limita-

tion. Nonetheless, that judicial authority permits a court to

require adherence to the rule of law, and I urge an interpre-

tation of ORS 197.825 that recognizes its significance.

Balmer, C. J., joins in this concurring opinion.