Rogue Advocates v. Board of Comm. of Jackson County ( 2017 )

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.