Advocates v. Bd. of Comm'rs of Jackson Cnty.

362 Or 269

ROGUE ADVOCATES and Christine Hudson, Petitioners on Review, v. BOARD OF COMMISSIONERS OF JACKSON COUNTYand Mountain View Paving, Inc.,Respondents on Review.

No. 66

CC 14CV11829

CA A158485

SC S064105

SUPREME COURT OF THE STATE OF OREGON

Argued and submitted March 8, 2017

December 14, 2017

On review from the Court of Appeals.^*

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.

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), alleging 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 floodplain 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 complaint, Mountain View Paving did not have the permit and verification that Rogue Advocates alleged were required.

The county and Mountain View Paving contested circuit court jurisdiction. They explained that the owners of the plant had applied for the allegedly required verification 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 applicable 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, therefore, whether the petition for review should be dismissed.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 hypothetical 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 decision 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 quotation marks and brackets omitted).

We conclude that the case is moot. In their complaint, 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) (quoting 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 adjudicate 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 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 petition 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 prohibiting 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 jurisdiction, 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 following 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.

ORS 197.825(1) grants LUBA exclusive jurisdiction to review land use decisions:

"(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 government, special district or a state agency in the manner provided in ORS 197.830 to 197.845."

(Emphasis added.) ORS 197.825(3) provides that, notwithstanding 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 proceedings brought by the board or a party to the board proceeding 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 exclusive—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 reasons that I will explain, I do not agree. I read ORS 197.825 to allocate jurisdiction between LUBA...