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State ex rel City of Powers v. Coos County Airport Dist.8/17/2005
En Banc
Argued and submitted January 24, 2005; resubmitted en banc June 15, 2005.
Before Brewer, Chief Judge, and Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Schuman, and Ortega, Judges.
Affirmed.
Edmonds, J., concurring.
Plaintiffs appeal a judgment dismissing their claims for lack of subject matter jurisdiction. We affirm.
Plaintiffs brought this action to challenge the validity of the formation of the Coos County Airport District. Pursuant to ORS 838.010, the city of North Bend passed a resolution calling for the formation of the airport district to finance the operation of its airport. The proposed district was to include all of the territory within Coos County. North Bend filed the resolution with the Coos County Board of Commissioners, which held hearings on the matter as required by ORS 198.805. After those hearings, the county placed the matter on the November 2002 general election ballot, as required by ORS 198.815. In the election, the majority of voters approved the formation of the district; consequently, on December 4, 2002, the county issued an order forming the district.
On February 27, 2003, plaintiffs--three incorporated cities located in Coos County and several taxpayers in the airport district--filed this action against the district and the five individuals elected at the November 2002 election to serve on its governing board. Plaintiffs' amended complaint, filed by the city attorney for the cities of Lakeside and Myrtle Point, contained three claims. The first claim alleged that the formation of the district was flawed because the county had not obtained resolutions from the plaintiff cities supporting the formation of the district, as required by ORS 198.720(1). The second claim alleged that the individual defendants were unlawfully holding office as the airport district's commissioners because the district had not been lawfully formed. Plaintiffs brought both claims under ORS 30.510, which provides the statutory action that replaced the common-law writ of quo warrantor.
The third claim sought a declaration that the airport district's formation violated the Oregon Constitution. After realleging the facts set forth in their first two claims, plaintiffs alleged in their third claim:
"In the event that the first two causes of action are not sustained, the plaintiffs (on their own standing, and not upon the relation of the State of Oregon for this count only) allege that the formation of the Coos County Airport District under ORS Chapter 838 and 198 is unconstitutional in violation of the provisions of Oregon Constitution Art IV ยง2 (home rule provisions)."
Rather than answering plaintiffs' complaint, defendants moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state ultimate facts sufficient to constitute a claim. Defendants argued that actions under ORS 30.510 must be commenced and prosecuted by the appropriate district attorney and that, because the district attorney for Coos County had not commenced and prosecuted the action, the trial court lacked subject matter jurisdiction of plaintiffs' first two claims. With regard to the declaratory judgment claim, defendants argued that it must be dismissed because a writ of review was plaintiffs' exclusive remedy to challenge the formation of the district and that, in any event, the claim was untimely because it was brought more than 60 days after the county had issued the order that plaintiffs challenged. The trial court granted defendants' motion and dismissed plaintiffs' complaint with prejudice.
Before we address plaintiffs' arguments on appeal, we
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