Dennehy v. City of Portland

DEITS, J.,

dissenting.

I would affirm, because I believe that LUBA correctly concluded that Multnomah County’s approval was not necessary for the adoption of the Tenth Amendment to the City’s Urban Renewal Plan. As the majority points out, the key question concerns the interpretation of the requirement of ORS 457.085(6) that an urban renewal plan is not effective until it has been

*42“ [AJpproved by the governing body of each municipality in which any portion of the area of the urban renewal plan is situated pursuant to ORS 457.095 and 457.105.”

The majority construes that provision to require county approval any time that a city’s plan includes any territory within the county. I would interpret it to require county approval only when the plan includes unincorporated areas of the county.

The majority holds that the language of the statute is unambiguous and concludes that it is compelled to apply the plain language of the statute. I agree that the statute is unambiguous on its face, but I believe that the application of the literal language achieves an unreasonable result and is clearly inconsistent with the legislative history and purpose of the law.

The general rule of statutory construction that a court must follow the plain meaning of unambiguous words is not totally inflexible and without exceptions. In State ex rel Cox v. Wilson, 277 Or 747, 562 P2d 172 (1977), the court approved the explanation by the United States Supreme Court of an exception to the general rule:

“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination’ * * *. (Footnotes omitted.)” 277 Or at 750, quoting U.S. v. Amer. Trucking Assns., 310 US 534, 542, 60 S Ct 1059, 84 L Ed 2d 1345 (1940).

The adoption of the majority’s interpretation would achieve an unreasonable result, plainly at variance with legislative intent. The urban renewal statutes were designed to *43allow local governments to take actions to improve the economic and social conditions of blighted areas within their jurisdictions. The general urban renewal statutes provide that, when a city adopts an urban renewal plan which is completely within city boundaries, the county plays a very limited role. The county does not participate in the preparation and administration of the plan or participate in any way in the acquisition or development of property. The only function of the county occurs if the city decides to use tax increment funds to finance all or part of the plan. In that case, the county performs the ministerial function of certifying the true cash value of properties in the area, computing the tax levy for taxing bodies in the area and collecting taxes.

Under the majority’s interpretation of ORS 457.085(6), even though no unincorporated land of the county is included in the plan, the county is given the authority to veto a city’s urban renewal plan. That is unreasonable, because it takes away from the city the ultimate decision-making authority regarding he habilitation of land within its jurisdiction and gives it to the county.1 That is wholly inconsistent with the general statutory scheme and with the legislative history of the law.

The legislative history supports the conclusion that the legislature intended to require county approval only when unincorporated areas of the county are included in a plan. The predecessor statutes to the current urban renewal and redevelopment statutes, Or Laws 1957, ch 456, §§ 1-20, required approval only by a city’s governing body when an urban renewal plan did not include areas outside the city. The urban renewal statutes were amended in 1979. Or Laws 1979, ch 621, §§ 1-28. There is no indication in the legislative history that the sufficiency of only city approval when a plan included only territory within the city was meant to be changed. The 1979 session added the requirement that county approval is required when areas of the county are included in a city’s urban renewal plan, but it is clear from the legislative record *44that the requirement of county approval was limited to situations involving unincorporated areas of the county.2

In my view, the more reasonable interpretation of the statute consistent with the legislative history and the purpose of the law is that approval of a county is required only when a city adopts an urban renewal plan which includes unincorporated areas of the county. I would affirm LUBA.

No county has asserted in this case or, to my knowledge, in any previous case involving land located entirely within the boundaries of a city, that it is required to approve the plan. Although certainly not determinative of the issue, the city’s and the county’s historical interpretation should be given some weight. See Hay v. Oregon Dept. of Transportation, 301 Or 129, 719 P2d 860 (1986).

The legislative history is outlined in the city’s brief:

“The Senate Committee on Local Government took up consideration of House Bill 2083 on May 24, 1979. Oliver Norville, attorney for the Portland Development Commission and the Beaverton Urban Renewal Agency, explained the allocation of responsibility under the 1957 statute as follows:
“ ‘Any [urban renewal] plan must be approved by the governing body of any municipality in which it is located. If it goes outside the city’s boundaries it has to be approved by the county. The only one I know of in Oregon, it seems to me, that exists is Beaverton. In that case both the City and County created an agency. Both the planning commissions reviewed every amendment and the project was carried out by the City of Beaverton and the Beaverton Urban Renewal Agency under agreement with the County.’
“(Senate Committee on Local Government, May 24,1979, tape 30, side 1.)
“The Senate Committee heard testimony from a number of individuals on May 24 and May 29, 1979, and on June 4, 1979 the Committee administrator presented the Committee with a list of options for amendments drawn from testimony heard on the prior meeting dates. Item 7(b) on the amendment list was:
“ ‘Include requirement that county approve any plan outside of incorporated area but in county jurisdiction.’
“Legislative counsel explained item 7(b) as follows:
“ ‘There is one thing that is in the current law that I don’t believe is in the bill and that is Item (b) in number 7 and that’s a requirement that the county approve any plan outside of the incorporated area that’s under county jurisdiction.’
“(Senate Committee on Local Government, June 7,1979, tape 33, side 1.) Legislative counsel further explained:
“ ‘This is the first of several different places in the bill where we now create authority for municipalities in a neighboring area that have a portion of the urban plan in their area to approve that by resolution. And we wanted to make that clear.’
“(Senate Committee on Local Government, June 11, 1979, tape 33, side 2.) The concept embodied in Item 7(b) was incorporated into the bill as sections 2 and 3a (which now appear as ORS 457.085(6) and 457.105). The Senate Committee on Local Government unanimously adopted these amendments and passed the bill out of committee on June 11,1979.”