*1 12, 1987 Argued August June and submitted reversed DENNEHY, Petitioner, v. PORTLAND, OF
CITY Respondent.
(LUBA A44018) 86-098; No. CA
Kathryn Imperati, Portland, argued Beaumont the cause respondent. her With on the brief was M. Jeannette Launer, Legal Development Counsel for Portland Commis- sion. Richardson,
Before Presiding Judge, Newman and Deits, Judges.
NEWMAN, J.
Deits, J., dissenting.
NEWMAN, J.
Petitioner seeks review of LUBA’s affirmance City of Portland’s Tenth Amendment to its Downtown Waterfront Urban Renewal Plan.1 The area affected entirely within both the and Multnomah amendment, County. approved council but has it. county commission not acted on The sole issue is by concluding whether LUBA erred body unnecessary governing alone action is sufficient for the amendment to take effect. 457.010(6) provides:
“ ‘Municipality’ any county any city in means this municipality’ municipality state. ‘The means the for which a particular agency is created.” municipality” “The is the in this case. ORS an requires “presented to be to the govern- ing body of each taxing district affected” 457.085(6) provides:
“No urban renewal
shall be carried out until the
approved by
body
municipality
has been
of each
*3
any portion
in
plan
which
of the area of the urban renewal
is
pursuant
situated
to ORS 457.095 and 457.105.”
provides,
ORS 457.095
as pertinent:
governing body
municipality, upon receipt
“The
of the
of a
proposed
plan
report
urban renewal
and
from the munici-
pality’s
agency
public
urban renewal
and after
notice and
hearing
public testimony
and
planning
consideration of
recommendations,
any, may approve
commission
if
the urban
plan.
approval
by nonemergency
shall be
ordi-
incorporate
by
plan
nance which shall
reference.”
procedural
requirements
ORS 457.095 then sets out
for the
of “the
approval
municipality.”
provides:
ORS 457.105
approval
plan by
“In
governing
addition to the
of a
457.095,
body
municipality
governing
of the
under ORS
body
municipality
any portion
in
of each other
which
of the
may
proposed
plan
area of a
is situated
plan by proper
resolution.”
Portland,
City
Gold v.
Or
is also at issue Estate
in
The same amendment
(1987).
App
ORS 457.125 copy approving plan “A of the ordinance an urban renewal body governing under ORS 457.095 shall be sent of the municipality copy A agency. to the urban renewal of the reso- approving plan lution under ORS 457.105 governing body municipality shall be sent of a receipt agency. Upon necessary approval of the municipality[’s] governing body, of each the urban renewal plan agency shall be recorded the urban renewal with the recording any portion officer of each which of an situated,”2 plan urban renewal area within the argues foregoing provisions
Petitioner are require body’s unambiguous governing city’s, plan as well as the for a approval, affecting territory jurisdiction within the of both. The contends are are ambiguous, the statutes inconsistent with the and, literally, scheme of the urban renewal statutes if read are that, It argues conducive to absurd or unreasonable results. plan approval when the statutes are read in the context of the statutory light legislative history, scheme and in the they county approval should be construed as of a requiring city plan only unincorporated or an amendment to a if in the are affected. with the agreed areas LUBA interpretation. face, provide
On their the statutes that a if it approved by amendment can take effect each which municipality territory subject plan. contains 457.010(6), provision, definitional ORS differentiates between municipality” agency “the for which the urban renewal created, city here, municipalities. and other any approval municipality makes of each which prerequisite carrying area of the is situated a out the provides plan by 475.095 body municipality.” pro- of “the ORS 457.105 then governing that, body’s approval, in addition to that vides area of the body municipality of each other which *4 may makes the urban is located it. ORS 457.125 457.095 agency’s receipt approvals of under both ORS 2 correctly, applicable parties agree, the cited statutes are as to this The that 457.220(2). plan adoption plan. See amendment as of a We “substantial” “plan” interchangeably in discussion. will use the terms and “amendment” our
37 record- necessary agency’s to the precursors and ORS 457.105 ing support arguments four city advances is that ORS adopt. us to first urges that referring in to the mandatory term “shall” uses the
457.095 per- ORS 457.105 uses the plan, while city’s approval plan.” reasons “may approve expression missive former, statute, to the latter unlike the approval pursuant plan of a or amend- a to the effectiveness prerequisite is not however, city’s with the distinction agree, ment. do not We expression uses the the two statutes. ORS 475.095 between plan” referring “may approve the urban renewal option. language That is mate- governing body’s decisional in ORS 457.105 on which the rially phrase identical to the used The word “shall” in ORS 457.095 is bases its distinction. i.e., action, the form of the only in connection with ordinance enacted in accordance with certain nonemergency containing required findings certain procedures determinations. “may approve” surmised that the term
LUBA “appears permission grant ORS 457.105 to be rather than formal ordinance as in” ORS by resolution explanation legislature’s A for the possible 457.095. second “may implicit in LUBA’s approve” choice of the words conclusion, City Gold v. agreed with which we Estate Portland, process Chapter note that the under ORS supra decision,” Strawberry Hill not to result in a 457 is “bound Comm., 591, 602, 601 287 Or P2d v. Benton Co. Bd. Wheelers (1979), postpone council is free “to or and that Given that of a or amendment.”3 drop consideration and in conclusion, “may in ORS 457.095 approve” the words are not appear governing to mean that the bodies ORS 457.105 proposed the other on a way make a decision one or required to plan or amendment.
However, simply is not aided because to make bodies 457.095 and ORS 457.105 allow requiring rather than a decision on a necessity concerning Although agreed the lack of we with LUBA’s conclusion procedures decision, holding quasi-judicial agree were not its we did not with required. *5 457.085(6) they plan do so. ORS makes it clear that a or bodies do cannot take effect unless the amendment “may in approve approve” make a decision and it. If the words county governing body 457.105 mean that the need not ORS action, inaction the take the result of its would be 457.085(6) by would be absent. approval required ORS next, offered, city’s forcefully argu- The and most relating approval by to munici- provisions ment is that the plan the one whose is involved “cannot be palities other than must be viewed in context with the entire read in isolation and viewed, according When so to the Urban Renewal Statute.” the stat- city, provisions the are inconsistent with are, therefore, they literally if are read and utory scheme in its brief: ambiguous. city explains city agency adopts creates an urban renewal and “When a city’s plan for an area within the bound- an urban renewal aries, county gives the in which the the urban renewal statute very play. county city limited role to does not is located a plan, acquire properties subject prepare the to or administer plan, develop redevelop properties in accordance with the or development plan the to secure funds for activi- or issue bonds by city ties. These are all activities carried out and its agency. urban renewal role, bodies, county’s taxing
“The like that of other a passive receipt proposed urban one and is limited to accompanying plan plan amendment and the renewal or 457.085(5). county only report pursuant to ORS becomes participant process in a the urban renewal when development financing to fund chooses to use tax increment then, plan. county’s is lim- activities under the Even role certify- County to ministerial tasks of the Assessor ited properties plan ing pre-plan value of all true cash area, levy taxing computing the tax for all bodies within 457.430-457.450.)3 (See plan collecting area and taxes. scheme, statutory of this “When viewed the context petitioner’s interpretation the Urban Renewal Statute contrary purpose interpretation nonsensical. This encourages cities and other the Urban Renewal Statute which improve governments economic and social conditions local to jurisdic- redevelopment blighted areas within their 457.020.) finally (See power places It to tions. city’s plan with a approve disapprove a or (the entity county) responsibility no to governmental that has effect, create, implement plan. gives In a or fund the power city’s development. veto over a It allows a preclude rehabilitating city’s from areas critical to the well-being refusing approve economic urban “Petitioner’s of ORS sense, recognized, 457.125 makes as LUBA when the area plan plan affected or amendment unincorporated territory. includes Since a agency may powers beyond exercise its the territorial limits of city pursuant 457.035(2), to ORS it is reasonable to require both the or if amendment incorpo- includes both unincorporated territory rated and within the area. This reading of the Urban Renewal Statute harmonizes the defini- *6 municipality’ 457.010(6), tion of ‘the language and the of ORS and 457.125 in a manner that is consistent regulatory with the Chapter scheme established legislative history chapter. the of that “3. page brief, At [petitioner’s] [petitioner] asserts that approval (or the of an case, in this a
substantial amendment plan) to an urban renewal has the raising paid effect of the by county amount of taxes cit necessarily izens. This is important not true. It is to note plans that not all urban provide renewal need for the (‘tax division of taxes under ORS 457.420 increment financing’). agency must choose such funding a agency adopts mechanism. If an financing, approval
without tax increment the would have county taxpayers. no effect whatsoever on In addition, paid by county the amount citizens is set itself, county upon county’s based determination of money operate county amount of needed to services. could, county A lowering levy, keep its overall tax paid by amount of taxes its citizens constant or reduce amount, that notwithstanding approval of an urban Therefore, adoption it does not follow that of an county raises the taxes of cit izens.”
The essence of that argument that, county is if the city must plan, the statutes that conferring authority county on the are at statutory odds with the overall scheme, under city major which the is the actor and the is a problem minor actor at most. The argument with the is ambiguity in the confer demonstrates no statutes which
that it body; authority county governing on the what argument that, liter- shows instead is if the statutes are read city ally, they are inconsistent with what the understands to be overriding policy of the Urban Renewal Act. inconsistency circumstances, some between Under subject ambiguity. relating to the same can create an statutes part statutory However, the of this scheme to which the subject specific points pertain the same as the does not ambiguous: asks us to find the former statutes which operation program of an urban renewal after the relates to procedures by plan plan approved effect; the latter relate to the which city acknowledges that, and takes effect. The city’splan though might be, can have some effect minimal county government including citizens, those on unincorporated city’s view, In the who reside in areas. magnitude great enough effect are not likelihood and of that body given in the to be a voice for the approval — city’s plan. legislature However, the could — policy a different view from the on that and did take question. argues construing lit- next the statutes
erally agreed produce result. would an absurd or unreasonable LUBA argument. do not. The basis for the
with We supposed inconsistency argument is the same with the stat- support previous utory posited of its scheme as arguments argument. that, The difference between the two *7 literally interpret a statute other than under the “absurd or to rationale, a need not first deter- unreasonable results” court ambiguous. mine that the statute is See Johnson v. Star (1975), Machinery Co., 694, 703, P2d 53 and cases 270 Or explained The court in Johnson: there cited. import the literal of the words is so at variance with “[I]f bring apparent policy legislation as a whole as to of result, interpretation about an unreasonable the literal must beyond
give way
the words of the
and the court must
look
act.”
That doctrine must be with appar- judicial recognition of a statute’s that the line between legislation policy judicial not amendment of the ent city given might agree that, and LUBA crossed. We with respect city county play and the with the relative roles that city the most sense for the plan, it would make approved to the authority about whether to decision-making final to have the authority approve have to county it and for the approve unincorpo- materially if it affect approve not would however, is not appropriate question, rated areas. legislature’s than the literal words something whether other sense, it did use but whether the words would have made decision in legislative make sense or reflect a rational cannot the latter statutory scheme. The answer to context of for a here is no. It is not absurd or unreasonable question county body ability prevent to have the governing a have effect on the implementation which can noted, city county’s government public. or its As we have can have no such effect. It argue plans does not an argues only always present effect will not be and will great magnitude. not often be of and the dissent consider it and unreasonable for the to have the absurd which, if ability approval approved, to withhold county. would be far more relevant to the than the All the however, city’s brief and the dissent succeed in demonstrating, they is that their authors would have enacted a different law if had legislature. legislature been the The statute which the did adopt authority unambiguously gives governing bodies approve nothing or not and there is absurd plans, about the legislative policy to allow bodies to an effect prevent unilateral action which can have on county’s affairs and citizens. argument legislative final is that his- city’s interpretation. favors the Because
tory of the statutes necessarily lead to ambiguous the statutes are not and do not results, legislative history. need not look to the absurd we
Reversed.
DEITS, J., dissenting. affirm, correctly
I because I believe that LUBA would County’s was not neces- concluded that Multnomah City’s sary adoption of the Tenth Amendment out, key majority points Plan. As the Urban Renewal requirement question concerns plan is not effective that an urban renewal until it has been
“[AJpprovedby governingbody municipality of each any portion which of the area of the urban renewal pursuant situated to ORS 457.095and 457.105.” The construes majority provision require county approval any city’s plan any territory time that a includes county. within the I interpret require county would it to approval only when the plan unincorporated includes areas of county. majority
The holds that language of the statute is unambiguous and concludes that it is compelled apply I plain language agree of statute. that the statute is unam- face, on biguous application its but I believe that of the literal achieves an result and language clearly unreasonable legislative history purpose inconsistent with the of the law. general rule of statutory construction that a plain meaning unambiguous
court must follow the
of
words is
totally
exceptions.
not
inflexible and without
In State ex rel
Wilson,
747,
(1977),
Cox v.
277 Or
this Court has looked the words to however, purpose Frequently, of the act. even when the plain meaning produce merely did not absurd results but an ‘plainly policy unreasonable one at variance with the legislation rather than the literal words. When purpose, aas whole’ this Court has followedthat
aid to construction of words, statute, available, meaning of as used there use, certainly can be no ‘ruleof law’which forbids its however * * may appear ‘superficial clear the words on examination’ *. (Footnotes omitted.)” 750, quoting 277 Or at U.S. v. Amer. Assns., 534, 542, Trucking 310 US 60 S Ct 84 L Ed 2d (1940). adoption would majority’s result, an plainly legis- achieve unreasonable at variance with lative intent. The renewal statutes were designed urban governments improve allow local to take actions to the eco- blighted nomic and conditions areas within their social provide statutes jurisdictions. general that, city adopts when a which is com- *9 boundaries, county very the limited pletely plays within role. The does not in the county participate preparation any way of the or in in the plan participate administration The function of acquisition development property. only of county the occurs if the use tax increment decides to part plan. case, county funds to finance all or of the In that performs certifying the ministerial function of the true cash properties area, levy value of in the the tax computing taxing collecting bodies the area and taxes. the majority’s interpretation
Under of ORS 457.085(6), though unincorporated county even no land of the plan, county authority is included in the is given city’s unreasonable, veto a That is plan. away because it takes from the the ultimate decision- authority he making regarding habilitation of land within its jurisdiction gives county.1 wholly it to the That is general statutory inconsistent with the scheme and with the legislative history of the law.
The legislative history supports the conclusion that
legislature
require county
intended to
approval only when
areas
unincorporated
county
are included in a
predecessor statutes to the current urban renewal and redevel-
statutes,
1957,
opment
456,
1-20,
Or Laws
ch
required
§§
approval only by a city’s governing body when an urban
did not include
city.
areas outside the
The urban
1979,
621,
renewal statutes were amended in 1979. Or Laws
ch
There
no
in the legislative history
1-28.
indication
§§
sufficiency
only city approval
of
when a
included
territory
changed.
within
was meant to be
1979
requirement
county approval
session added the
required
city’s
when areas of the
are included in a
it is clear from the
plan,
legislative
but
record
or, my knowledge,
any previous
case
No
has asserted
this case
entirely
city,
required
involving
of a
that it is
land located
within
boundaries
issue,
certainly
city’s
plan. Although
and the
not determinative of
Hay Oregon
county’s
weight. See
v.
interpretation
given
historical
should be
some
(1986).
Dept. Transportation, 301 Or
129,
that the county.2 areas of the involving unincorporated tions view, more reasonable my In history purpose and the legislative statute consistent with the required only of a when of the law is that unincorpo- which includes city adopts county. I would affirm LUBA. rated areas of the history legislative in the is outlined brief: up consideration of “The Senate Committee on Local Government took Norville, attorney May for the Portland House Bill 2083 on 1979. Oliver Agency, explained Development Renewal Commission and the Beaverton Urban responsibility under the 1957 as follows: the allocation of statute “ approved by governing body ‘Any must be [urban renewal] *10 municipality goes If it in which it is located. outside the boundaries county. Oregon, approved one I know of it seems has to be me, City County created is Beaverton. In that case both the and that exists every planning agency. commissions reviewed an Both City project and the Beaverton Urban was carried out of Beaverton County.’ agreement Agency under with the Renewal 30, 1.) Government, 24,1979, “(Senate May tape side Committee on Local testimony heard from a number of individuals on “The Senate Committee 1979, 4, 29, May May 1979 the Committee administrator 24 and and on June presented options with a list of for amendments drawn from the Committee 7(b) testimony prior meeting the amendment list was: heard dates. Item on on “ incorporated requirement county approve outside of ‘Include county jurisdiction.’ area but 7(b) “Legislative explained item as follows: counsel “ thing I believe is in the bill ‘There is one that is the current law that don’t (b) requirement that the that is Item in number 7 and that’s a and approve any plan incorporated juris- area that’s under outside of diction.’ Government, 7,1979, 33, 1.) “(Senate tape Legisla- side Committee on Local June explained: tive counsel further “ places different in the bill where we now create ‘This is the first of several portion authority municipalities neighboring urban in a area that have a And we wanted to make that in their area to resolution. clear.’ 2.) Government, 11, 1979, “(Senate tape June side Committee on Local 7(b) incorporated concept bill sections 2 and 3a in Item was into the as embodied 457.105). (which appear The Senate on Committee now as ORS passed unanimously adopted the bill these amendments and Local Government 11,1979.” on June out of committee