tax court lacked subject matter jurisdiction to consider whether a charge imposed on certain energy resource suppliers under ORS 469.421(8) was a fee or a tax, and whether that charge violated the Oregon Constitution
How later courts described this case
- tax court lacked subject matter jurisdiction to consider whether a charge imposed on certain energy resource suppliers under ORS 469.421(8) was a fee or a tax, and whether that charge violated the Oregon Constitution
- referring to potential judicial review “under the APA”
Written by the judges who cited it.
The opinion
GILLETTE, J.,
dissenting.
As the lead opinion indicates, ORS 358.475 to 358.565, the Oregon Classification of Historic Property Act, comprise a “statutory scheme.” (Slip opinion at 1.) To this, I would add the word, “complete.” That is: the Oregon Classification of Historic Property Act is a complete statutory scheme fully establishing the rights and duties of all parties, public and private, with respect to the identification and designation of property of historical significance.
This complete statutory scheme for the classification of historic property has its own statement of policy, ORS 358.475, its own definitions, ORS 358.480, its own method of application for special tax assessment status, ORS 358.485, its own governmental entity — the “state historic preservation officer” — for handling the process, ORS 358.565, and its own special (and limiting) method of assessment, ORS 358.505, among other provisions. Within this statutory scheme, there is a single, limited right to appeal conferred upon property owners alone by ORS 358.495(3):
* * * *
“(3) Any owner whose application for classification has been denied by the state historic preservation officer may appeal to the circuit court in the county where the land is located, or if located in more than one county, in that county in which the major portion is located.”
In my view, this provision of a limited right of appeal for only one party interested in the classification process excludes appeal by others under this Act or the Administrative Procedures Act (APA).
No one seems to seriously dispute the proposition that the “state historic preservation officer” is a state agency, for APA purposes. ORS 183.310 defines an “agency” as
«* * * any board, commission, department, or division thereof, or officer authorized by law to make rules or to issue orders, except those in the legislative and judicial branches.” (Emphasis supplied.)
*249 The state historic preservation officer is authorized to make rules. ORS 358.545. Because he is an agency for APA purposes, the officer’s classification decision in these cases would, under the APA, be an “order in other than a contested case.” ORS 183.484. See ORS 183.480. Judicial review of such an order would normally lie in either Marion County or the county “* * * in which the petitioner resides or has a principal business office.” ORS 183.484(1). A petition for review of such an order, to have standing, must show that he is “adversely affected or aggrieved.” ORS 183.484(3). The reviewing court may
“* * * affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:
“(A) Set aside or modify the order; or
“(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.
“(b) The court shall remand the order to the agency if it finds the agency’s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the agency by law;
“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or statutory provision.
“(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record.” ORS 183.484(4).
Obviously, a property owner denied classification by the state historic preservation officer is a person “adversely affected or aggrieved” by a final agency order in other than a contested case pursuant to ORS 183.484, if the APA applies to this kind of decision. But, if it does, what is the function of ORS 358.495(3)? What does the right to “appeal” to circuit court, as provided by this latter statute, give a property owner that he did not already have under ORS 183.484? While the language of the two statutes is different, I cannot perceive any way in which a circuit judge proceeding under ORS 358.495(3) would have any greater authority under that statute than if he were instead conducting a standard APA review. In only one sense are *250 the statutes significantly different under the plain language of ORS 358.495(3), only the property owner has standing.
The foregoing descriptive analysis of the pertinent statutes leads me to the conclusion that the APA provisions concerning review of orders in other than contested cases do not apply to classification decisions under the Oregon Classification of Historic Property Act. If they did, ORS 358.495(3) — which grants standing to a much narrower class than does ORS 183.484 — would be a meaningless redundancy.
Having concluded that the APA does not apply to this proceeding, it follows that the parties who brought this petition for judicial review in circuit court had no standing to do so. I would reverse and remand the matter with instructions that it be dismissed.
I respectfully dissent. 1
Joseph, C. J. and Warden, J., join in this dissent.
I agree with much that is said in the separate dissenting opinion of Warren, J., but I would decide this case as a matter of standing rather than jurisdiction. Because of the disposition I would make of this case, I would not reach the question addressed by the separate dissenting opinion of Joseph, C. J., although that opinion may correctly assess the problem it addresses.