# STATE, BY & THROUGH HALEY v. City of Troutdale

> Oregon Supreme Court · January 31, 1978 · 281 Or. 203

URL: https://www.frixlaw.com/law-library/cases/9789539

## Case

- **Full name:** STATE Ex Rel HALEY, Respondent, v. CITY OF TROUTDALE Et Al, Petitioners
- **Court:** Oregon Supreme Court
- **Decided:** January 31, 1978
- **Citations:** 281 Or. 203; 576 P.2d 1238; 1978 Ore. LEXIS 726
- **Precedential status:** Published
- **Opinion:** Concurrence by Tongue
- **Judges:** Linde, Tongue, Howell, Bryson
- **Cited by:** 32 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/9789539

## How later opinions describe it (automated extraction)

- finding no manifest legislative intent to exclude local provisions which `supplemented' the state building code

## Opinion text

TONGUE, J.,
specially concurring.
I agree with the result reached by the majority opinion, but strongly disagree with its reasoning in reaching that result. More specifically, I agree with the holding by the majority that there is no "conflict” between the state building code and the city building code, but I disagree with the implicit, if not express, holding by the majority that this result can only be reached because the state did not "unambiguously express” an intention that the construction standards provided by the state building code be "exclusive” construction standards (rather than "minimum” standards), and that if such an intent had been "unambiguously expressed” it would have been "beyond the power of local communities to provide additional safeguards for themselves.”
This result follows, according to the majority, from its opinion in City of LaGrande/Astoria v. PERB, 281 Or 137 , 576 P2d 1204 (1978), decided today, in which the majority held that the "home rule” amendments of the Oregon Constitution, Art XI, § 2 and Art IV, § 1(5), "do not purport to allocate areas of substantive policy [such as building codes] between the levels of government.” The majority also holds that this result is *212 consistent with the test as stated in the prior decision of this court in State ex rel Heinig v. City of Milwaukie et al, 231 Or 473 , 373 P2d 680 (1962), which (according to the majority) was a test which "expressly related to the validity of a state law concerning local modes of government, not to the validity of state and local regulations addressed to private persons” involving matters of "substantive policy” such as standards for building construction.
In City of LaGrande/Astoria v. PERB, supra, the majority of this court held that:
«* * * [A] general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community’s freedom to choose its own political form. * * *”
For reasons stated in my dissenting opinion in that case, such a holding is not consistent with, but is contrary, to the previous holding by this court in State ex rel Heinig v. City of Milwaukie et al, supra. Such a rule, as now applied by the majority to hold that "standards for building construction are within the state’s plenary power to legislate,” means that the Oregon legislature has power to require that all new homes in Oregon must have single wall construction even though the voters of a home-rule city in an area exposed to extreme cold or high winds may prefer to require double wall construction or to permit one who builds a home to decide for himself to use double wall construction. To me, it also follows that the Oregon legislature has power to require all new homes to be painted green, despite the fact that the citizens in a home-rule city may vote to permit a free choice of colors for all new homes and that cities can enforce local building codes with different requirements only by the grace of the Oregon legislature.
Once it is recognized that the reasoning adopted by the majority opinion compels such a result, it appears *213 to me such reasoning must fall from its own weight and that such a result is directly contrary to the purpose of the home-rule amendments. As stated in Heinig (at 481-82):
“That purpose, stated broadly, was to make operative the concept that the closer those who make and execute the laws are to the citizens they represent the better are those citizens represented and governed in accordance with democratic ideals. That objective would not be served if we should decide that the legislative assembly pre-empts the field each time it makes a statute applicable to all cities alike.”
As also held in Heinig (at 488):
«* * * Each case requires a weighing of the state’s interest against the interest of the municipality. In some instances the need for uniformity, or the benefit of a widespread application of the law, or the recognition that the matter dealt with is interrelated with other functions of the state and similar considerations will require that the statute have preference over the charter; on the other hand the charter will prevail when the advantages of local autonomy are paramount.”
In my opinion, to hold, as the majority would hold, that the Oregon legislature has the power to require that all new homes must have single wall construction, or be painted green, is to hold that the Oregon legislature can intrude into areas of "substantive policy” in which the interests of the state are clearly outweighed by "the advantages of local autonomy” and that the Oregon courts are powerless to protect against such intrusions.
For these reasons I cannot agree with the basic reasoning upon which the majority would rest its decision, despite the fact that I agree that in this case there is no conflict between the city ordinance and the state statute in its present form and that, as a result, the city ordinance is a valid ordinance at the present time.
Howell and Bryson, JJ, join in this specially concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9789539. Public record. Not legal advice.