308 P.3d 356
Or. Ct. App.2013Background
- Plaintiffs allege violations of SRC provisions stemming from excavation and construction on Vogts' property downhill from plaintiffs' property.
- Stone excavated ~1200 cubic yards on Vogts' property before a building permit and without notifying the city of excavation.
- The original Vogts slope is described as 30–40%; subsequent survey measured much steeper slopes (up to ~96%).
- City issued a building permit for a dwelling and later a permit for a four-foot retaining wall without a landslide hazard analysis.
- City did not conduct a landslide hazard assessment under SRC chapter 69 before issuing the permits; plaintiffs sought declaratory relief, writ of review, mandamus, negligence, and injunction.
- Trial court dismissed claims against Vogts and granted summary judgment for the city on writ of review; fees were awarded to defendants; plaintiffs appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the writ of review the exclusive remedy against the city? | Plaintiffs contend city actions were quasi-judicial and subject to review. | City argues writ of review is exclusive per ORS 34.102 and related statutes. | Writ of review is the exclusive remedy against the city. |
| Did the trial court err in dismissing Vogts from the case for lack of justiciable controversy? | Plaintiffs challenge the adequacy of the court's reasoning on controversy with Vogts. | Vogts argue no cognizable injury and claims fail to state a claim. | Court affirmed dismissal of Vogts; no justiciable controversy shown. |
| Did the trial court err in granting summary judgment for the City on writ of review? | Plaintiffs contend improper evaluation of landslide risk and procedures. | City followed SRC 69 procedures and the Graduated Response Table supported low risk. | Summary judgment for city upheld; records supported low risk assessment. |
| Were plaintiffs' challenges to the city’s actions preserved and properly argued on appeal? | Arguments on process and code compliance were raised below. | Appellants failed to preserve arguments or discuss summary judgment rulings on appeal. | Arguments not preserved; appellate review limited. |
| Were attorney-fee and prevailing-party-fee awards proper? | Appeal attacks fee awards as improper after partial dismissal. | Fees awarded due to unreasonable negligence claim and successful defense. | Supplemental fee awards upheld as proper. |
Key Cases Cited
- Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or 591 (1979) (factors for quasi-judicial vs ministerial decisions)
- Koch v. City of Portland, 306 Or 444 (1988) (weighing evidence and applying rule to facts; discretion indicates quasi-judicial act)
- Oregon City v. Clackamas County, 118 Or 546 (1926) (investigation and inquiry; discretion and judgment indicate judicial function)
- Valsetz School Dist. No. 62 v. Polk Co., 53 Or App 18 (1981) (not ministerial when more than mathematical computation is required)
- Interstate Roofing, Inc. v. Springville Corp., 217 Or App 412 (2009) (supplemental judgments before general judgment are not appealable)