Plaintiff, the owner of a mobile home park, filed a declaratory judgment action against the City of Wilsonville (city) to invalidate the city’s ordinances that regulate the conversion of mobile home parks to other uses. Following a trial, the trial court entered a judgment declaring that those ordinances are preempted by state law and violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The city appeals and contends that the controversy is not justiciable, the ordinances are not preempted, and the ordinances are not invalid as a matter of substantive due process. The city also asserts that the trial court erred in awarding attorney fees under 42 USC section 1988.
Plaintiff disputes the city’s contentions and cross-appeals, assigning as error the trial court’s failure to invalidate the ordinances for additional reasons. Plaintiff asserts that the trial court should have found that the operation of the ordinances effects an uncompensated taking of plaintiffs property and money, that the operation of the ordinances unconstitutionally impairs the obligations of lease agreements between defendant and its tenants, and that the operation of the law to affect only mobile home parks within the city boundaries violates uniformity policies in the state and federal constitutions.
We conclude that the issues raised in the city’s appeal are justiciable and that the ordinances are not preempted under state law or facially unconstitutional under the Due Process Clause. We also conclude that the trial court erred in failing to determine whether the ordinances are invalid on their face for the alternative reasons plaintiff advances in its cross-appeal, and we remand for a determination on the justiciability and merits of those claims. In light of those conclusions, the trial court erred in awarding attorney fees to plaintiff. Accordingly, we reverse and remand the general judgment under review and vacate and remand the supplemental judgment for costs and attorney fees.
I. PROCEDURAL HISTORY
This case concerns the legality of the city’s ordinances that regulate the closure of mobile home parks by requiring the park owner to obtain a closure permit from the city and to compensate displaced tenants. At the time of the adoption of the ordinances,
1
ORS 90.630(5) (2005) directed a mobile home park landlord who wished to convert the park to a different use to provide tenants with a one-year notice of termination, or at least 180 days’ notice of termination, together with “space acceptable to the tenant to which the tenant can move” and payment of moving expenses, or $3,500, whichever is less.
2
Then and now, ORS 90.505 to 90.840 regulated a number of aspects of the landlord-tenant relationship for the rental of spaces in mobile home parks, including policies concerning disclosures to tenants, billing methods for utility charges, extensions of the term of a rental agreement, rental increases, termination of tenancies, closure of the facility,
“This chapter applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.”
In the summer of 2005, plaintiff notified affected tenants that it intended to sell the Thunderbird Mobile Club, a 270-space mobile home park. The park had been in operation for 40 years and was inhabited mostly by persons on fixed incomes. A hue and cry ensued that led to hearings before the city council on the potential expulsion of tenants and conversion of the park to other uses. The council determined that mobile home parks provided affordable housing for low and moderate income persons and that closure of a park typically forces the park residents to abandon their dwellings without recovery of the dwelling’s value. After public hearings, the council adopted Ordinance Nos. 600 and 603. The ordinances required:
• A mobile home closure permit prior to closing a mobile home park. “Closure of a mobile home park” was defined to include the termination of “mobile home space rental agreements for all or a portion of the park spaces or [the engagement] in activity to effect termination of rental agreements or leases or to evict tenants.” The ordinances provided that the requirement for a permit was not intended to affect any right to obtain a land use decision for the park use, to “sell, convey or transfer a mobile home park” or to “provide notification under ORS 90.630(5).”
• The filing of a closure impact report as part of an application for a closure permit. That report was required to detail the particulars of the current rental of spaces in the park, provide a list of comparable rentals within 100 miles of the city, set out an analysis of the economic effects of tenant relocation, and offer relocation specialist services to tenants.
• A relocation plan as part of the closure permit application. Under a plan, the owner was required to provide for payment of all reasonable relocation costs for tenants to locate to a comparable space within 100 miles of the city, and, if the dwelling could not be relocated, to purchase the dwelling at its assessed value.
• That the ordinances “be construed as not to conflict with state law, and shall be applied in a manner such that the provisions and state law operate concurrently.”
• An “owner relief’ process, allowing the park owner to apply for relief from the requirements of the ordinances if the “application of the ordinance^ are] unduly oppressive under the circumstances then and there existing]!]” In allowing or denying an application for relief, the council was required to consider “the amount and percentage of value loss, the extent of remaining uses, past, present and future, the seriousness of the public problem caused by the owner’s acts of closure, the degree to which these provisions mitigate the problem!,] * * * the feasibility of less oppressive solutions[,] * * * [and] other factors as may be relevant or necessary to achieve a lawful application of these provisions.” The ordinances mandated the adoption of findings on the relief application after a public hearing and provided for judicial review of the decision.
After adoption of the ordinances, but before it applied for any permit or owner’s relief under the ordinances, plaintiff filed its first amended complaint, seeking declaratory and injunctive relief. It sought declarations that the ordinances were preempted by the Oregon Residential Landlord and Tenant Act and otherwise effected uncompensated takings of real property and money under the state and federal constitutions; uncompensated taking of services under Article I, section 18, of the Oregon Constitution; deprivation of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution; deprivation of property without remedy in violation of Article I, section 10, of the Oregon Constitution;
“The adoption and threatened enforcement of the Ordinancefs] by the City of Wilsonville acting under color of law and ordinance, deprives the Plaintiff of its rights, privileges and immunities secured by the Constitution of the United States in violation of Section 1983, Title 42, United States Code. Plaintiff is entitled to its costs and reasonable attorney fees incurred herein by reason of Section 1988 of Title 42, United States Code, and by reason of ORS 20.085.”
The prayer sought a “declaration that the Ordinance[s are] unlawful,” an injunction against their enforcement, and reasonable costs and attorney fees.
Following a trial, the trial court entered the judgment under review. The judgment contained specific findings that plaintiffs costs to comply with the ordinances, if a conversion permit were sought, would be substantial. The court found that there were 765 mobile home parks within 100 miles of Wilsonville, with over 38,000 mobile home spaces, so that the costs of preparation of an impact report assessing those spaces would be “substantial.” The court further determined that the costs of relocating a mobile home ranges from $3,000 to $27,000, depending on whether the home is a “single wide” or “double wide” mobile home and that approximately two-thirds of the 184 tenant-owned mobile homes in plaintiffs park were larger, double-wide homes. According to the trial court’s findings, if the mobile homes could not be relocated, the costs to purchase the homes under the ordinance would be $2,485,570, and the costs of dismantling and disposing of the purchased mobile homes would exceed $3,000 for each dwelling. The court concluded:
“Assuming Thunderbird closed the park with the current tenant population and received no relief from Ordinance requirements under Sections 6.380 or 6.340(l)(c) the reasonable relocation costs of all of the homes in Thunderbird will range from $3,494,000 to $4,968,000. If all of the tenants were able to have or use the full State tax credit, the reasonable relocation costs imposed by Ordinance No. 600 as a condition of obtaining a closure permit will range from $1,656,000 to $3,128,000. It is probable that not all of the tenants of Thunderbird will be able to have or use the Oregon tax credit.”
The trial court found that plaintiff had listed the property for sale and provided notice of that listing to the tenants as required by state law. Plaintiff had not, however, taken steps to convert the park by giving notice of termination under ORS 90.630(5) or sought to avoid the requirements of the city’s ordinances under the “owner relief’ provisions. The court nonetheless concluded that there was an “actual, present conflict between the parties,” that determination of plaintiffs claims “will have a practical effect upon the parties,” that the “issues are not academic or speculative,” and that plaintiff “cannot sell its property, or close the park without either complying with Ordinance No. 600, as amended, or violating its provisions.”
On the basis of those and other adopted findings, the trial court concluded that the ordinances were preempted by state law and that “Ordinance No. 600, as amended by Ordinance No. 603, conflicts with ORS 90.630. It prohibits what State law permits.” The court also granted plaintiff relief on the substantive due process claim, finding that the “conditions of the Ordinances are unduly oppressive, and in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution.” With respect to the other claims, the trial court determined that “[i]t is not necessary to decide those claims in order to grant complete relief to Plaintiff, and all claims of Plaintiff not hereinbefore sustained are dismissed.” The trial court declared that the ordinances “are
ultra vires,
preempted, and displaced by the law of Oregon,
On appeal, the city contends that the court erred in concluding that the declaratory judgment action was justiciable, in determining that the ordinances were preempted by state law, in deciding that the ordinances violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution, in granting injunctive relief, and in awarding attorney fees and costs to plaintiff and denying costs to the city. Plaintiff cross-appeals and contends that the court erred in declining to award plaintiff the full amount of its attorney fees and that the court improperly dismissed its takings, impairment of contract, and uniformity claims under the state and federal constitutions.
II. JUSTICIABILITY
In its first assignment of error, the city argues that the trial court erred in determining that any of plaintiffs claims presented a justiciable controversy that was ripe for adjudication. As noted, the trial court found that: (1) “[djetermination of the claims of [plaintiff] will have a practical effect upon the parties”; (2) “[plaintiff] cannot sell its property, or close the park without either complying with Ordinance No. 600, as amended, or violating its provisions”; and (3) “[t]his matter is justiciable, and ripe for adjudication.” The city contends that those determinations are factually and legally unsound because: (1) the ordinances have yet to be applied to plaintiff; plaintiff has not provided notice of termination of the park, sought to avoid ordinance requirements, or pursued owner relief under the ordinance’s provisions; and (2) plaintiff has not entered into a sale contract conditioned on compliance with the ordinance. Thus, the city argues that the controversy about the effects of the ordinances depends on contingent or hypothetical events. Plaintiff responds that the enactment of the ordinances has impaired the marketability of its property.
The facts are undisputed, and we review for legal error.
See Ken Leahy Construction, Inc. v. Cascade General, Inc.,
“Any person * * * whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such * * * constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.”
(Emphasis added.)
“ ‘Standing under [Oregon’s declaratory judgment statutes] has been denied when the showing of the required effect has been too speculative or entirely missing.’ ”
Vannatta v. Oregon Government Ethics Comm.,
To determine whether plaintiff satisfied the statutory requirements in ORS 28.020, and whether the claims are ripe for adjudication,
Those facts bring to mind a hypothetical we posed in
Beck v. City of Portland,
“[The plaintiffs’] status as property owners was not affected by [the ordinance or resolution] because those enactments made clear that the construction of an aerial tram above Gibbs Street, although more than a fleeting idea in the mind of a city planner, remained only a possibility. * * * [P]laintiffs neither alleged nor presented facts that would establish that merely considering Gibbs Street as the alignment for a potential tram affected any of their rights, statuses, or other legal relations. For example, none of the plaintiffs alleged that potential buyers of their property had been deterred from purchasing Gibbs Street property because of defendant’s enactments. Whether even that would have been sufficient to establish the existence of a justiciable controversy under ORS 28.020 for the declaration that plaintiffs sought, we reserve for another day. We simply use that hypothetical to illustrate that the point at which a claim becomes ripe depends on the relationship among the defendant’s enactments, the rights, status, or other legal relations of the plaintiff that are at issue, and the nature of the declaratory relief that is sought.”
Id. (emphasis added).
Here, although the ordinance, as amended, provides that it is not intended to limit a person’s ability to sell, convey, or transfer a mobile home park, see Ordinance No. 603, section 2, this case is nonetheless about plaintiffs ability to sell its mobile home park property. The fact that plaintiff cannot sell its property to any of the potential purchasers without first closing the park and removing the mobile homes gives rise to the inference that the ordinance has deterred the potential purchasers from buying the property as is. Put another way, the ordinance presently affects the marketability and value of plaintiffs property. Plaintiffs requested relief for a declaration that the ordinance is unlawful would, if granted, appear to have an immediate effect on plaintiffs legal interests.
It is true, as the city points out, that plaintiff has not sought to close the park, avoid the ordinance requirements, or gain relief under the ordinance’s provisions. Nor has plaintiff entered into a sale contract conditioned on compliance with the ordinance. But none of those are steps that plaintiff is required to take to pursue his challenges to the lawfulness of the ordinance on preemption or substantive due process grounds, so long as the facts otherwise indicate that the mere enactment of the ordinance has affected plaintiffs legal interests. Because the facts in this case demonstrate that plaintiff has already reached the point at which his legal interests “are affected” by the ordinance, we conclude that the trial court did not err in holding plaintiffs preemption claim to be justiciable and that jurisdiction exists
III. PREEMPTION AND MUNICIPAL AUTHORITY ISSUES
The city contends that the trial court erred in concluding that the mobile home park conversion ordinances were preempted by portions of the Residential Landlord Tenant Act. It argues that no preemption occurred because the state law does not expressly preempt local legislation and because the local law can operate concurrently with state law. Plaintiff asserts, however, that the municipal ordinances cannot prohibit what state law expressly permits— the conversion of mobile home parks on the payment of certain benefits and without obtaining a local permit. Plaintiff alternatively claims that the city’s exercise of this kind of legislative authority is beyond its home rule powers under the state constitution. We conclude that the adoption of the ordinances was within the city’s authority under Article XI, section 2, of the Oregon Constitution and that the ordinances are not preempted by state statutes.
The city’s power to adopt the ordinances and any preemptive effect of state law on those ordinances are regulated by provisions of the Oregon Constitution that provide “home rule” for cities and towns that adopt municipal charters. Those provisions were adopted in 1906 by an initiative amendment to the constitution. Article XI, section 2, provides, in part:
“The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * *.”
A companion amendment amended Article IV, section 1, of the Oregon Constitution that “reserved” the initiative and referendum powers of voters for state laws to “further reserve[ ] to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district.” Or Const, Art IV, § 1(5).
The primary purpose of the home rule amendments was “to allow the people of the locality to decide upon the organization of their government and the scope of its powers under its charter without having to obtain statutory authorization from the legislature,
“Outside the context of laws prescribing the modes of local government, both municipalities and the state legislature in many cases have enacted laws in pursuit of substantive objectives, each well within its respective authority, that were arguably inconsistent with one another. In such cases, the first inquiry must be whether the local rule in truth is incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive. It is reasonable to interpret local enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the legislature does not mean to displace local civil or administrative regulation of local conditions by statewide law unless that intention is apparent.”
Id. at 148-49 (footnote omitted). LaGrande/Astoria sets out principles for resolving conflicts between a state statute and a municipal law:
“When a statute is addressed to a concern of the state with the structure and procedures of local agencies, the statute impinges on the powers reserved by the amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government.
“Conversely, 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. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organization.”
Id. at 156 (footnote omitted).
Within the area of civil regulation, then, a chartered city can enact substantive policies in an area also regulated by state statute unless the local regulation is “incompatible” with state law either in the sense of being “clearly” preempted by express state law or because “both [state law and local law] cannot operate concurrently.” Incompatible state and city laws are then assessed under the conflict resolution principles in LaGrande / Astoria. But it is presumed that the legislature did not mean to impliedly repeal the provisions of a city’s civil or administrative law, and courts should seek to reconcile the operation of both state and local laws if possible.
Applying those principles, plaintiff first argues that the city’s ordinances are expressly preempted by ORS 90.115, which sets out the scope of the Oregon Residential Landlord and Tenant Act. ORS 90.115, however, declares only the intended operation of state law. It does not explicitly limit the applicability of municipal law.
LaGrande/Astoria
and its progeny require an expressly stated intent to preempt particular municipal enactments in order for a state statute to have that effect. Thus, in
State ex rel Haley v. City of Troutdale,
“The state building code shall be applicable and uniform throughout this state and in all municipalities therein, and no municipality shall enact or enforce any ordinance, rule or regulation in conflict therewith.”
The court stated that it was “reluctant to assume that the legislature meant to confine the protection of Oregon residents exclusively” to the state code requirements “and to place these beyond the power of local communities to provide additional safeguards[.]”
Id.
“Certainly, that intention is not unambiguously expressed. Until it is, we conclude that local requirements compatible with compliance with the state’s standards are not preempted[.]”
Id.
This court decided an analogous preemption issue in
AT&T Communications v. City of Eugene,
Tested by those standards, the city’s ordinances are not expressly preempted by ORS 90.115. The statute contains neither text stating an express preemption
(e.g.,
“the
Plaintiff next contends that the city’s ordinances are implicitly preempted by state law because the ordinances supplement the requirements of the Residential Landlord and Tenant Act. Plaintiff argues that the additional requirements of the city’s ordinances — beyond the one-year notice of termination, or at least 180 days’ notice of termination together with “space acceptable to the tenant to which the tenant can move” and payment of moving expenses, or $3,500, whichever is less, required by ORS 90.630(5) (2005)— prohibit conversions of mobile home parks that were otherwise unrestricted under state law and are therefore “incompatible” with state law. Under LaGrande /Astoria, however, the occupation of a field of regulation by the state has no necessary preemptive effect on the civil or administrative laws of a chartered city. Instead, a local law is preempted only to the extent that it “cannot operate concurrently” with state law, 1. e., the operation of local law makes it impossible to comply with a state statute. Here, the provision of any tenant displacement benefits required by the city ordinances still allows compliance with the less-generous requirements of the Residential Landlord and Tenant Act and both policies can operate concurrently.
We have consistently held that a civil regulation of a chartered city will not be displaced under Article XI, section 2, merely because state law regulates less extensively in the same area. Thus, in
Oregon Restaurant Assn. v. City of Corvallis,
“A local ordinance is not incompatible with state law simply because it imposes greater requirements than does the state, nor because the ordinance and the state law deal with different aspects of the same subject. Rather, we generally assume that the legislature did not mean to displace local regulation of a local condition unless its intent to do so is apparent.”
(Citations omitted.) Thus, we conclude that the city’s ordinances are not implicitly preempted as incompatible with state law because the ordinances impose greater requirements on owners of mobile home parks than mandated by the Residential Landlord and Tenant Act.
Plaintiff nonetheless asserts that the ordinances “conflict” with state law because they prohibit, without a permit and the provision of tenant benefits, what state law allows — the conversion of a mobile home park after one years’ notice to tenants. Plaintiff relies on
Ashland Drilling, Inc.,
where, in analyzing the preemption of a county civil regulation by state law, we stated that the “relevant question is whether the ordinances ‘conflict’ with state law,
i.e.,
that the local legislation prohibits what the state legislation permits or permits what the state legislation prohibits.”
The preemption test referenced
in Ashland Drilling, Inc.,
and relied on by plaintiff is one that applies to the preemption of local
criminal
laws by a state criminal statute. The preemptive effect of a state criminal
“Under a hyper-literal interpretation, one might conclude that only charter provisions, and not municipal ordinances, need conform to the constitution and criminal laws of Oregon. This argument is perhaps so self-evidently absurd that it has not been seriously argued. Additionally, one might conclude that charter provisions must conform only to the state’s constitution and its criminal laws, but not to the state’s civil laws. While this argument has also never been seriously pressed, the amendment’s specific mention of ‘criminal laws’ — and the absence of any specific mention of‘civil laws’ — has led to an important distinction in Oregon local government law: the amendment establishes a rebuttable presumption that municipal criminal ordinances are invalid, whereas civil ordinances are presumed valid.”
Paul A. Diller, The Partly Fulfilled Promise of Home Rule in Oregon, 87 Or L Rev 939, 945 (2009) (footnotes omitted).
The presumptive invalidity of municipal criminal laws that are inconsistent with state criminal laws was established in
City of Portland v. Dollarhide,
“The present decision limits only the cities’ use of‘criminal laws’ within the meaning of Article XI, section 2. As long as a city ordinance employs civil or administrative procedures and sanctions lacking punitive significance, the validity of the ordinance must meet only the tests stated in LaGrande /Astoria * * *, for substantive city policies generally, rather than the more stringent constraints of the phrase in Article XI, section 2, that expresses the dominance of state criminal laws over the creation and punishment of local criminal offenses.”
Id. at 503 (citation and footnote omitted).
In
Jackson,
the court refined the meaning of circumstances where a state law permits what a local criminal ordinance prohibits, concluding that, “[w]hen a local criminal ordinance prohibits conduct, unless the legislature has permitted that same conduct, either expressly or under circumstances in which the legislative intent to permit that conduct is otherwise apparent, the ordinance is not in conflict with state criminal law and is valid under Article XI, section 2, of the Oregon Constitution.”
Plaintiff alternatively contends that the city lacks authority to regulate the conversion of mobile home parks because that authority is not municipal in character as reserved by the home rule amendments, but instead conflicts with “substantive areas of private law which are the sole domain of the state legislature.” Plaintiff reasons that regulation
The decision in
Li
is not analogous in a number of respects. First, the authority of a chartered county to regulate in the face of competing state law under the county home-rule provision in the state constitution, Article VI, section 10, may be different than the balance struck in
LaGrande /Astoria
under the city home-rule provision of Article XI, section 2.
See
Finally, to whatever extent
Li
suggests that there are inherent limits to city home-rule authority to regulate transactions or relationships that are traditionally and exclusively regulated under state law, such as laws relating to marriage, the city’s ordinances do not fit that category of laws. Unlike marriage legalization, the city’s regulation of plaintiffs land uses in general, and preservation of low-income housing in particular, are well within the city’s longstanding delegated authority under state statutes and administrative rules.
See, e.g.,
ORS 227.090(l)(a)(C) (authority of city planning commission to establish zoning districts); ORS 227.215(1) (authority of city to adopt development ordinances that regulate “making a material change in the use * * * of* * * land”); ORS 197.175(1) (obligation of city to exercise planning and zoning responsibilities in accordance with statewide planning goals), ORS 197.175(2)(a) (city duty to adopt comprehensive plan consistent with statewide planning goals), and OAR 660-15-0000(10) (statewide planning goal 10, requiring that cities “encourage the availability of adequate numbers of needed housing units” and defining “needed housing units” to include “manufactured homes,
whether occupied by owners or renters”); ORS 197.295 - 197.314 (statutory policies on city provision of “needed housing” in urban areas); ORS 197.475 - 197.490 (statutory policies on placement and restrictions on mobile home or manufactured dwelling parks
We conclude that the trial court erred in determining that the city’s ordinances were preempted or otherwise displaced by state law.
IV. SUBSTANTIVE DUE PROCESS
In the city’s third assignment of error, it argues that the trial court erred in concluding that the ordinances violated the substantive due process component of the Fourteenth Amendment. Specifically, the trial court concluded:
“[Mlaintaining affordable housing for those who need it, but cannot afford it, is a legitimate government concern. The conditions of obtaining a park closure permit as provided by Ordinance No. 600, however, require the Plaintiff — not the government or the public — to pay tenant relocation expenses, or to pay the assessed values and dismantling costs of the mobile homes of the tenants. Because the required payments are extraordinary and unduly burdensome the Ordinances prohibit termination rights as defined by State statute. The conditions of the Ordinances are unduly oppressive, and in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution.”
The city contends that plaintiff has no property interest at stake so as to raise a cognizable due process claim and that, even assuming plaintiff had such an interest at stake, the ordinances would withstand rational basis review — the proper test of the ordinance’s constitutionality — because a “rational legislator could believe that * * * legitimate governmental purposes are advanced by the Ordinance[s].”
In response, we understand plaintiff to argue that the ordinances deprive it of the right to terminate tenancies and exclude others from its property and that the ordinances deprive it of a substantial sum of money in order to regain that right. Although plaintiff does not contest that the ordinances advance a legitimate governmental purpose, plaintiff does contend that the ordinances nonetheless unnecessarily imposed a public burden on a single property owner, were unduly oppressive, and created a retroactive burden that could not have been anticipated and cannot be avoided. Plaintiffs contentions rely heavily on Justice Kennedys concurrence in
Eastern Enterprises v. Apfel,
Assuming without deciding that plaintiff has identified a protected property interest, we conclude that the ordinances in no sense are arbitrary or irrational so as to violate substantive due process.
See City of Cuyahoga Falls v. Buckeye Community Hope Found.,
“[L]egislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and * * * the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.”
Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal.,
The governmental action at issue in this case is legislative; we therefore test the constitutionality of the ordinances under rational basis review to determine whether they bear a reasonable relation to a legitimate governmental interest of the city. Plaintiff concedes that the ordinances are aimed at a legitimate governmental interest — that of providing assistance to those seeking affordable housing. We agree with plaintiffs concession and also conclude that the requirements of the ordinances — the filing of a closure impact report and preparation of a relocation plan — bear a reasonable relation to that legitimate governmental interest. The ordinances, on their face, do not violate the Due Process Clause.
Plaintiff, however, would have us test the constitutionality of the ordinances under the rubric used by the Washington Supreme Court in Guimont and, in particular, under that court’s use of a “third prong” of due process analysis, “undue oppression.” See 121 Wash 2d at 608-10. Without deciding whether an “undue oppression” inquiry is properly part of a substantive due process challenge of legislation, we conclude that plaintiffs argument is unavailing. Here, the ordinances afford owners relief if they demonstrate “how application of the ordinance is unduly oppressive under the circumstances then and there existing!.]” That relief provision is sufficient for the ordinances to withstand a facial challenge on the grounds of “undue oppression.”
Plaintiff has also argued under
Eastern Enterprises
that, because the ordinances have a retroactive effect, this is one of those rare cases where an economic regulation should be found unconstitutional.
See
Justice Kennedy, however, concurred and would have held the Act unconstitutional on substantive due process grounds. The concurrence noted that “the Court has given careful consideration to due process challenges to legislation with retroactive effects,” that “due process protection for property must be understood to incorporate our settled tradition against retroactive laws of great severity,” and that, “[a]s the plurality explains today, in creating liability for events which occurred 35 years ago the Coal Act has a retroactive effect of unprecedented scope.” Id. at 547-50 (Kennedy, J., concurring in the judgment and dissenting in part). Thus, the concurrence concluded that “[application of the Coal Act to Eastern would violate the proper bounds of settled due process principles!.]” Id. at 550.
Unlike in Eastern Enterprises, however, the ordinances do not, on their face, have any retroactive active effect, let alone a retroactive effect of unprecedented scope. Plaintiffs statement to the contrary — that the ordinances imposed a multi-million dollar “retroactive” obligation — does not make it so. The ordinances took effect on the dates of their passage and do not include any provision for retroactive application. Put simply, the ordinances do not affect the closures of mobile home parks that had already occurred or transactions that were believed to be long settled. Plaintiffs retroactivity argument is without merit. 9
For those reasons, we conclude that the trial court erred in determining that the ordinances violate the Due Process Clause of the Fourteenth Amendment.
V. CROSS-APPEALS
The judgment concluded that the ordinances conflicted with ORS 90.630, were preempted by state law, and were “unduly oppressive” and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. It then provided:
“Plaintiff has pleaded other claims for relief, including a claim that the subject matter of Ordinances No. 600 and 603 is within the exclusive jurisdiction of the Oregon Legislature, as well as claims that the Ordinances violate the takings clauses, the equal protection clauses [sic], and the impairment of contract clauses of the State and Federal Constitutions. It is not necessary to decide those claims in order to grant complete relief to Plaintiff, and all claims of Plaintiff not hereinbefore sustained are dismissed.”
Plaintiff cross-appeals that part of the judgment, contending that the court erred in dismissing its takings, impairment of the obligation of contract, and equal protection claims for relief. 10 Plaintiff asks us to reach the merits of those claims and declare the ordinances are unconstitutional and void on those bases. The city would likewise have us reach the merits, but with an opposite result.
On appeal, we decline the parties’ invitations to decide plaintiffs takings, impairment of contract, and equal protection claims on their merits in the first instance. The only reason the trial court dismissed those claims was because of its determination on the merits of the preemption and substantive due process claims. Given the trial court’s errors in its adjudication of the preemption and due process claims, the reasoning underlying its dismissal of plaintiffs takings, impairment of contract, and equal protection claims is no longer sound. We therefore conclude that the trial court erred in dismissing
General judgment reversed on appeal and on cross-appeal and remanded; supplemental judgment for costs and attorney fees vacated and remanded.
Notes
State statutes regulating the conversion of mobile home parks were changed in 2007 and 2009. Or Laws 2007, ch 906; Or Laws 2009, ch 575. The nature of those changes and their effect on the issues in this appeal are discussed later in this opinion.
ORS 90.630(5) (2005), amended by Or Laws 2007, ch 906, provided:
“The landlord of a facility may terminate a rental agreement that is a month-to-month or fixed term tenancy for a facility space if the facility or a portion of it that includes the space is to be closed and the land or leasehold converted to a different use, which is not required by the exercise of eminent domain or by order of state or local agencies, by:
“(a) Not less than 365 days’ notice in writing before the date designated in the notice for termination; or
“(b) Not less than 180 days’ notice in writing before the date designated in the notice for termination, if the landlord finds space acceptable to the tenant to which the tenant can move the manufactured dwelling or floating home and the landlord pays the cost of moving and set-up expenses or $3,500, whichever is less.”
We also conclude that the preemption and due process claims have not been mooted by legislation enacted after adoption of the ordinances. The 2007 Legislative Assembly changed the statutes on mobile home park conversions to require more generous tenant benefits. Those increased benefits, however, would be less costly to an owner than the full payment of moving expenses or the forced purchase of the manufactured dwelling required by the ordinances as a precondition to conversion. See Or Laws 2007, ch 906, § 2. The 2007 law, as amended in 2009, directly regulates the authority of local governments to enforce local regulations of mobile home park conversions “adopted by the local government on or after July 1, 2007, or amended on or after January 1, 2010.” ORS 90.660. The 2007 law, as originally enacted, allowed amendments to local laws on mobile home park closures until September 27,2007, if the law was adopted before July 1,2007, and the amendment increased the rights of tenants under the local law. Or Laws 2007, ch 906, § 5(1).
The 2007 legislative changes neither expressly preempt nor affirmatively ratify the ordinances under review, because none of the changes is directly applicable to those ordinances. The ordinances were adopted in 2005 and 2006, respectively, and have not been amended since; however, we note that, in June 2007, in Ordinance No. 634, the city reenacted substantially similar provisions to Ordinance Nos. 600 and 603. Ordinance No. 634 is not under review.
Moreover, the 2007 law did not amend ORS 90.115, the basis of plaintiffs claimed express preemption of the ordinances, or change the dynamic of plaintiffs implied preemption analysis — that the city was disabled from providing greater tenant displacement benefits than required by state law. This appeal differs from cases where the constitutionality of a statute is adjudicated by a trial court and the statute is amended or repealed during an appeal. In those cases, “[a]s a general — if not universal' — rule, the amendment or repeal of a statute moots pending cases in which the controversy turns on the constitutionality of the unamended or existing statute.”
Miller Brands, Inc. v. OLCC,
As examples of clear preemption of local government regulations, we cited ORS 731.840(4) (“The State of Oregon hereby preempts the field of regulating or imposing” various types of taxes.); ORS 203.090 (providing that various statutes “preempt any laws of the political subdivisions of this state relating to the regulation of private security officers, employers and security services”); ORS 288.610(2) (“ORS 268.605 to 288.695 preempts all statutory or charter authority to issue advance refunding bonds or to effect a forward current refunding.”); and ORS 462.100(1) (“The State of Oregon hereby preempts the imposition of taxes on or measured by income on, and the regulation of, race meets.”).
The cited examples of an explicit displacement of local regulations were ORS 461.030(1) (“no local authority shall enact any ordinances, rules or regulations in conflict with the provisions hereof’ relating to the state lottery); ORS 455.040(1) (“no municipality shall enact or enforce any ordinance, rule or regulation relating to the same matters encompassed by the state building code”); ORS 467.136 (“[a]ny local government * * * ordinance or regulation now in effect or subsequently adopted” with a particular effect “is invalid”); and ORS 634.057 (“No city, town, county or other political subdivision of this state shall adopt or enforce any ordinance, rule or regulation regarding pesticide sale or use * * *.”).
The regulation at issue in
Ashland Drilling
was of a county, whose home rule authority is regulated by a different provision of the Oregon Constitution than the city home rule provisions adopted in 1906. Article VI, section 10, empowering county voters to adopt home rule charters, was adopted in 1958. The court has assumed that the
LaGrande/Astoria
framework applies to county home rule issues as well.
E.g., Pacific N.W. Bell v. Multnomah Co.,
The ease law does recognize that home-rule cities lack the power under Article XI, section 2, to limit or expand the official authority of another government’s agent.
See City of Eugene v. Roberts,
The parties also dispute whether plaintiff has brought a “facial” or an “as-applied” due process constitutional claim. In this case, where there has been
no
executive action against plaintiff and where the only government action to have occurred was enactment of the ordinances by the city council, we construe plaintiffs claim as a facial challenge.
See City of Eugene v. Lincoln,
By so construing plaintiffs claim as a facial challenge, we do not intend to offer any opinion as to the merit of pursuing an “as-applied” substantive due process challenge to economic regulation. As we stated over 35 years ago in
American Can Co. v. OLCC,
In the absence of any violation of federal law, the trial court erred in awarding attorney fees under 42 USC section 1988 for causing plaintiff to be subjected to the deprivation of rights secured by the constitution.
Plaintiff also cross-appeals on the ground that the court erred in not allowing greater attorney fees under 42 USC section 1988. That argument is without merit, given our reversal of the court’s allowance of attorney fees.
Plaintiffs failure to assign error to the trial court’s dismissal of its claims for taking of services and separation of powers leaves the trial court’s dismissal of those claims undisturbed. We assume that plaintiffs first amended complaint states no further claims under 42 USC section 1983.