# State Housing Council v. City of Lake Oswego > Oregon Supreme Court · November 3, 1981 · 291 Or. 878 URL: https://www.frixlaw.com/law-library/cases/9552872 ## Case - **Full name:** STATE HOUSING COUNCIL Et Al, Petitioners, v. CITY OF LAKE OSWEGO Et Al, Respondents - **Court:** Oregon Supreme Court - **Decided:** November 3, 1981 - **Citations:** 291 Or. 878; 635 P.2d 647; 1981 Ore. LEXIS 1128 - **Precedential status:** Published - **Opinion:** Dissent by Tongue - **Judges:** Tongue - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9552872 ## How later opinions describe it (automated extraction) - holding that decision to impose a system development charge was a fiscal decision not reviewable by the Land Conservation and Development Commission for compliance with statewide planning goals - holding in different procedural contexts that certain types of tax-related actions are not reviewable for compliance with statewide planning goals ## Opinion text TONGUE, J., dissenting. I cannot in good conscience concur in the per curiam opinion which dismisses the petition for review in this case. On February 3, 1981, this case was submitted for decision by this court. At that time this case presented for decision questions of considerable public importance: (1) whether, as was held by the Court of Appeals, LCDC lacked statutory jurisdiction to review local taxation or budget ordinances for compliance with statewide planning goals and, (2) if LCDC had such jurisdiction, whether a city ordinance which subjects various kinds of land development to certain “system development charges” for the cost of streets, sewers, parks and water systems was invalid as contrary to certain “goals” for land use planning as adopted by the state Land Conservation and Development Commission under the provisions of state statutes. Because these questions were of public importance not only to the City of Lake Oswego and to LCDC, but also to other cities and to others interested in land use planning, *887 it follows that the original granting by this court of the petition for review of the decision by the Court of Appeals, which had held in favor of the city by holding that LCDC had no such jurisdiction, was proper and that the petition was not then “improvidently granted.” For the same reasons, a reasonably prompt decision by this court of that question was 'of importance not only to the City of Lake Oswego, but also to other cities considering the adoption of similar ordinances, 1 to LCDC in the discharge of its responsibility to enforce planning “goals” throughout the state, and to the home building industry. A prompt decision by this court of that question was of further importance because the Oregon legislature was then in session and remained in session for more than five months after this case was submitted for decision by this court. Thus, if this case had been decided promptly and within 60 days (the average time for decisions by appellate courts, according to ABA Standards for Appellate Courts), 2 there would have been time for either the cities, LCDC, The 1000 Friends of Oregon, the home building industry or other interested persons or organizations to seek changes by legislation in the event that such a decision by this court was unfavorable to them. A vehicle for such changes was provided by HB 2225, which had already been introduced in the legislature prior to oral argument of this case and which was subsequently used to include many changes in laws relating to land use planning. HB 2225, after numerous public hearings, was enacted by the legislature as 1981 Oregon Laws, chapter 748. Indeed, another case involving important, but different, problems of land use planning, was submitted to this court for decision on March 3, 1981. The opinion in that case was written by a different member of this court, who expedited its preparation so as to make it possible for that case to be decided by this court on March 31, 1981. See Oregon Business Planning Council v. LCDC, 290 Or 741 , 626 P2d 350 (1981). In my view, this court, by failing to *888 decide this case until long after completion of that legislative session, failed to properly discharge its responsibility both to the parties and to the public. To compound the problem, this court, after adjournment of the legislature, requested the parties to submit additional briefs in response to further questions raised by the court by letter addressed to all parties and to amicus curiae. In response to that request, lengthy briefs were filed by most of them. These included briefs filed by or on behalf of the State Housing Council and 1000 Friends of Oregon, the City of Lake Oswego, the Land Conservation and Development Commission and by the Home Builders Association of Metropolitan Portland. Yet this court now dismisses the petition for review without deciding either the questions raised by the original petition or the questions raised later by this court with its request for further briefs. This court would justify the dismissal of this case by noting that since this case was submitted to it. for decision on February 3, 1981, the legislature has enacted changes in the statutes which change the law on the issue presented for decision in this case. This rationale for dismissal of this case is reminiscent of the story of the old-time small-town lawyer who made it a practice never to answer letters which raised difficult problems, on the theory that if he waited long enough most of the problems would “go away,” making answers unnecessary. Such a lawyer would now be subject to discipline by this court for neglect of the affairs of his clients. See DR 6-101(A)(3); In re Kraus, 289 Or 661 , 616 P2d 1173 (1980), and In re English, 290 Or 113 , 618 P2d 1275 (1980). In my view, the dismissal of this case on these grounds is improper and in view of the trouble, expense and delay to which the parties to this case, including the intervening parties, have been subjected by this court, the parties áre entitled to a decision by it on the merits of the issue upon which it granted the petition for review and, at the least, upon the merits of the questions raised later by the court with its request for further briefs. For these reasons, I cannot subscribe to the dismissal of this case by this court, particularly when the *889 dismissal is by an anonymous “per curiam” opinion. The effect of the dismissal of the petition for review in this case is the same as the dismissal of a petition for review on the ground that it was “improvidently granted,” as has previously been done by this court. 3 The petition for review in this case was not “improvidently granted.” Instead, a decision by this court in this case was “improvidently delayed.” As has been said before: “This is (no) way to run a railroad.” 4 The City of Beaverton, the City of Milwaukee and the City of Gresham were permitted to intervene as parties in proceedings before LCDC. See Burlington Northern v. Dept. of Revenue, 291 Or 729 , 635 P2d 347 (1981), and cases cited therein. See State v. Season, 289 Or 215 , 611 P2d 1150 (1980), including dissenting opinion. See dissenting opinion in McPherson v. Employment Division, 285 Or 541, 557 , 591 P2d 1381 (1979). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9552872. Public record. Not legal advice.