melcliff associates v city of portland - plaintiffs motion for summary judgment
TRANSCRIPT
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7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment
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IN
THE CIRCUIT
COURT
FOR
THE STATE
OF
OREGON
FOR
THE
COLTNTY
OF
MULTNOMAH
MELCLIFF
ASSOCIATES,
LLC,
Plaintift
V
Case
No.
l5CV3
1078
PLAINTIFF'S
MOTION
FOR
SUMMARY
JUDGMENT
ORAL
ARGUMENT
REQUESTED
CITY
OF
PORTLAND,
an
Oregon
Municipal
Corporation,
Defendant.
UTCR 5.050
Pursuant
to UTCR
5.050,
plaintiffs
request
oral
argument
on this
motion.
Plaintiffs
estimate
that
60 minutes
are
required
for
oral
argument.
Official
coufi reporting
services
are
requested.
MOTION
Pursuant
to
ORCP
47,
plaintiffs respectfully
move
for summary
judgment:
(1)
Declaring
that
Portland City
Code
Section
30.01.085
( Ordinance )
is
invalid
and
unenforceable
because
it
is
preempted
by
ORS
91
'225;
and
(2)
Permanently
enjoining
Defendant
City
of Portland
( City )
from
taking any
action
to
enforce
the
Ordinance.
This motion
is supported
by the
following
Memorandum
of
Points
and
Authorities,
the
Declaration
of
Timothy
Gray
in
Support
of
Plaintiffls
Motion
for
Summary
Judgment
and the
records
and
files of this
case
Page
1
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PLAINTIFF'S
MOTION
FOR SUMMARY
JUDGMENT
DAVIS
WRIGHT
TREMAINE
LI,P
DWT
28472413v3
0105706-000001
1300 S
w
Fifth Avenre,
Suite
2400
Portland,
Oregon
97201-510
(s03)
24 I
-2300
rnain
'
(503)
778-5299
lax
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POINTS
AND
AUTHORITIES
I.
INTRODUCTION
This
action challenges
Portland
City Code
Section 30.01.085
( Ordinance ),
which
flouts
an unambiguous
and express
preemption provision duly enacted
by the
Oregon
legislature.
The
Ordinance
is
irreconcilable with
the
preemption
statute
and does
not
fall
within
any
of the
limited
exceptions
contained
in
that
statute.
Accordingly,
this
Courl
should
declare
the
Ordinance
preempted
and
enjoin
its enforcement.
In
1985,
the
Legislative
Assembly
enacted
ORS 91
.225,whichpreempted
all
local
rent
control
enactments
and reserved
to the
state
the exclusive
right to
regulate
residential
rental
prices.
ORS
91
.225
notonly
ensures
uniform
statewide rent regulations,
it
prevents
the
imposition of
general
restrictions
on housing
rents
ORS 91
.225(1)'
Despite
thirty
years
of exclusive
state
control
of
rent
regulation,
the City
of
Portland
has
adopted
an Ordinance
attempting
to do
just
what
ORS
9l
.225
proscribes-impose
restrictions
on
rent
price
adjustments.
The Ordinance
prohibits residential
property
lessors
from adjusting
rent
prices
more than
five
percent over a 12-month
period
without
providing a full
90
days'
notice'
By
tripling
the
notice
period
specified
by
ORS 90.220,
the
Ordinance
conflicts
with Oregon
state
law and
constricts
property
owners'
ability
to
respond
efficiently
to changes
in
the
rental
market.
For the duration
of this
extended
notice
period,
the
Ordinance
controls the
rent
that
may
be
charged
for
the
rental
of
any
dwelling,
in violation
of
ORS
91.225.
Therefore,
the Ordinance
is
invalid and
unenforceable.
U.
BACKGROUND
A.
State
law
prohibits
local
regulation
of
residential
property rental
prices.
Responding
to decades
of
research
showing
the devastating
consequences
of
rent
control
policies,
Oregon's
Legislative
Assembly
passed
emergency
legislation
in
1985 that
preempted
local
rent regulation.
In its entirety,
the
resulting
statute
now
provides:
il
Page2
- PLAINTIFF'S
MOTION
FOR SUMMARY
JUDGMENT
DAVIS WRIGHT
TREMAINE LLP
1300
S.W.
Fifth
Avenue, Suite
2400
Portland, Oregon
97201-5610
(503)
241-2300 rnain
'
(503)
778-5299
fax
Dv,/T 2847 24 13v3
0
1 05706-00000
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7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment
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(1)
The
Legislative
Assembly
finds
that
there
is
a
social
and
economic
need
to
insure an
adequate
supply
of
affordable
housing
for Oregonians.
The
Legislative
Assembly
also
finds
that
the
imposition
of
general
restrictions
on housing
rents
will
disrupt
an
orderly
housing market,
increase
deferred
maintenance
of existing
housing
stock,
lead
to
abandonment
of existing
rental
units
and
create
a
property
tax
shift
from
rental-owned
to owner-occupied
housing.
Therefore,
the
Legislative
Assembly
declares
that
the
imposition
of
rent
control
on
housing
in the State
of
Oregon
is
a
matter
of
statewide
concern.
(2)
Except
as
provided
in subsections
(3)
to
(5)
of
this
section,
a
city
or
county
shall
not
enact
any
ordinance
or
resolution
which
controls
the
rent
that
may
be
charged
r
the
rent(tl
of any
dwelling
unit.
(3)
This
section
does
not
impair the
right
of
any
state
agency,
cit ,
county
or
urban
renewal
agency
as defined
by
ORS
457
'035
to
reserve
to
itselfthe
right
to
approve
rent increases,
establish
base
rents
or establish
limitations
on
rents
on
any
residential
property
for
which
it has
entered
into a contract
under
which
certain
benefits
are applied
to the
property for the
expressed
putpose
of
providing
reduced
rents
for
low
income
tenants.
Such
benefits
include,
but
are
not
limited
to,
properly tax
exemptions,
long-tetm
financing,
rent subsidies,
code
enforcement
procedures and
zoning
density
bonuses.
(4)
Cities
and
counties
are
not
prohibited
from
including
in
condominium
conversion
ordinances
a
requirement
that,
during
the
notification
period
specified
in
ORS
100.305,
the owner
or
developer
may
not
raise
the
rents
of
any
affected
tenant
except
by
an
amount
established
by
ordinance
that
does
not exceed
the
limit
imposed
by
ORS
90.493.
(5)
Cities,
counties
and
state
agencies
may
impose
temporary
rent
controls
when
a
natural
or
man-made
disaster
that
materially
eliminates
a
significant
portion
of
the
rental
housing
supply
occurs,
but
must
remove
the
controls
when
the
rental
housing
supply
is
restored
to
substantially
normal
levels.
(6)
As used
in this
section,
"dwelling
unit"
and
"rent"
have
the
meaning
given
those
terms
in ORS
90.100.
Page 3
-
PLAINTIFF'S
MOTION
FOR
SUMMARY
JUDGMENT
DAVIS
WRIGHT
TREMAINE
LLP
1300 S.W.
Fifth Avenue,
Suite
2400
Portland,
Oregon
9720
-5610
(503) 241-2300
main'
(503)
178-5299
fax
DWT
284724
l3v3 01
05706-00000
I
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7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment
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(7)
This
section
is applicable
throughout
this
state
and
in all cities
and counties
therein.
The electors
ot the
governing
body
of a city
or county
shall
not
enact,
and
the
governing body
shall
not
enforce,
any ordinance,
resolulion
or
other
regulation
that is
inconsistent
with
this section.
ORS
91 .225
(emphasis
added).
By
its
plain
text,
ORS
9l .225
unambiguously
preempts any
local
enactment
that
controls
the
rent that
may
be charged
for the
rental
of
any
dwelling
unit,
subject
to
several
nalrow
exceptions
not implicated
in this
case.
Together
with
the
Residential
Landlord
and
Tenant
Act,
ORS
chapter
90,
the
purpose of
ORS
91
.225
was to
avoid
a
patchwork of
harmful
and
conflicting
local laws,
As
part
of
this
system,
the
legislature
adopted
a statewide
rent
increase
notice
period. ORS
90.220
provides:
(7)
except
as
otherwise
provided
by
this
chapter: (a)
*
* *
Rent may not
be increased
without
a
30-day
written
notice
thereof
in
the
case
of a
month-to-month
tenancy
*
tr'
*'
This
3O-day
notice
period reflects
the
legislature's
careful
balancing
of
the
interests
of tenants,
the
rights
of
landlords,
and
the
risks of
interfering
with
the
efficient
functioning
of the
residential
rental
market.
B.
The Ordinance
regulates
residential
property
rental
price
increases.
Despite the
state
legislature's
deliberate
choice
of a
3O-day
notice
period, the
Portland
City
Council
decided
that
Portland
renters
need
more advance
notice
of
rental
increases
than
the
state
law
minimum
notice
of
30 days,
due
to [r]ecord
high
rents.
Ordinance
No.
187380'
Accordingly,
on
October
14,2015,the
Portland
City
Council
added
the
Ordinance
to the
Portland
City
Code.
Id. The Ordinance
states,
in
relevant
part:
A.
In
addition
to
the
protections
set
forth
in
the
Residential
Landlord
and
Tenant
Act,
the
following
additional
protections apply
to
Tenants
that
have
a
Rental
Agreement
for
Premises
covered by
the
Act.
*****
Page
4
-
PLAINTIFF'S
MOTION
FOR
SUMMARY
JUDGMENT
DAVIS
WRIGHT
TREMAINE
LLP
DWT
28472413v3
0105706-000001
1300 S W
Fifth
Avenue,
Suite 2400
Portland,
Oregon
97201-5610
(503)
241
-2300
main
'
(503) 778'5299
fax
-
7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment
5/28
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C.
A
Landlord
may
not increase
a
Tenant's
Rent or
Associated
Housing
Costs
by
5
percent or more over
a
12
month
period
unless
the
Landlord
gives
notice
in
writing
to each
affected
Tenant:
(a)
at
least
90
days
prior
to the
effective
date
of the
rent
increase;
or
(b)
the
time
period
designated
in the
Rental
Agreement,
whichever
is
longer.
Such
notice must specify the amount
of
the increase'
the
amount
of the
new
Rent or
Associated
Housing
Costs and
the
date,
as
calculated
under
the
Act,
when
the
increase
becomes
effective.
Portland
City
Code Section
30.01.085.
Subsection
D. of
the
Ordinance
imposes
stringent
penalties for
violation
of
the
notice
requirement,
including
fines
of
up
to
three
months
Rent
as
well
as
actual
damages,
reasonable
attorney
fees and
costs
for each
affected
tenant.
On
November
13, 2015,
only 30
days
after
its enactment,
the 90-day
notice
period
took
effect.
C.
Plaintiff
challenges
the
Ordinance's
regulation
of
rental
price
increases
Plaintift
Melcliff
Associates,
LLC,
is
an
Oregon
Limited
Liability Company.
Declaration
of
Timothy
Gray
in
Support
of
Plaintifls
Motion
for
Summary
Judgment
( Gray
Decl. ),
fl3.
Plaintiff
owns
multi-family
residential
property
within
the
City of
Portland,
which
it
leases
out
under
Rental
Agreements
governed
by
the
Residential
Landlord
and
Tenant
Act, ORS
chapter
90.
Gray
Decl.,
tj4.
Plaintiff
has entered
Rental
Agreements
that
allow
rent increases
with
30
days'notice
in accordance
with
ORS 90.220.
Gray
Decl.,
fl5.
Plaintiff
is adversely
affected
by
the enactment
and
enforcement
of the
Ordinance,
which
prevents
plaintiff
from
adjusting
rent
prices
in accordance
with
its Rental
Agreements
and
ORS
chapter
90.
Gray
Decl',
T6.
Plaintiff
filed this
lawsuit
on
Novemb
er
17
,2015,
seeking
a
declaration
that
the
Ordinance
is
invalid
and
unenforceable
and
seeking
a mandatory
injunction
petmanently
enjoining
the
City
from
enforcing
the
Ordinance.
rfl.
STANDARI)
Summary
judgment
is appropriate
where
the
pleadings,
depositions,
affidavits,
declarations
and
admissions
on
file
show
that
there
is no
genuine
issue as
to
any
material
fact
Page 5
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PLAINTIFF'S
MOTION
FOR
SUMMARY
JUDGMENT
t)w'r
2s4iz4t3v3 0r05706-00000r
J'3
#ill;i,?y*ll:ii '
Potland,
Oregon
97201-561
0
(503)
241'2300
main '
(503)
'778-5299
fax
-
7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment
6/28
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and
that
the
moving
party
is entitled
to
prevail
as
a matter
of
law.
ORCP
47 C.
No
genuine
issue
as to a
material
fact
exists
if,
based
upon the
record
before
the
court viewed
in
a
manner
most
favorable
to the
adverse
party, no objectively
reasonable
juror
could
retum
a
verdict
for the
adverse
party.
ORCP
47
C;Jones
v. General
Motors
Corp.,325 Or
404,407
(1997).
If
the
party
moving
for summary
judgment
has
produced enough
evidence
to
establish
the absence
of
a
genuine issue as
to
any
material
fact, the
adverse
parly
must
demonstrate
that
it has
sufficient
evidence
to entitle
it
to
a
jury
determination.
Estes
v.
Lewis
and
Clark
College,l52
Ot
App 372,
383
(1ee8).
IV.
ARGUMENT
A.
Plaintiff
has
standing
to
seek
declaratory
and
injunctive relief
As
an initial
matter,
plaintiff has standing
to challenge
the validity
of
the
Ordinance'
1.
Plaintiff
has
standing
to
pursue
declaratory
relief
pursuant
to
the
.
uniform
Declaratory
Judgments
Act
( DJA ),
ORS
28.010
to
28.160.
Plaintiff
has standing
because
its
legal rights
are
currently
affected
by the
Ordinance.
Standing
is
a
concept
that
identifies
whether
a
party
to
a
legal
proceeding
possesses a
status
or
qualification necessary
for
the
assertion,
enforcement,
or
adjudication
of
legal
rights
or
duties'
Kellas
v. Dept.
of Corrections,34I
Or
471,476-77
(2006).
Whether
a
particular
plaintiff
has
standing
depends
on
the
particular requirements
of
the statute
under
which
he or
she
is seeking
relief.
Morganv.
Sisters
School
Dist. No.
6,353
Or
189,
194
(2013).
Accordingly,
because
plaintiff
seeks
declaratory
relief
under
the
DJA,
the
statutory
provisions of
the
DJA
govern
whether
plaintiff has standing.
The
DJA
provides:
Any
person interested
under a
deed,
will,
written
contract
or
other
wriiig
constituting
a
contract, or whose
rights,
status
or other
legal
rlations
are
ffected
by
a
constitution,
statute,
municipal
ch-arter,
ordinance,
contract
or
franchise
may
have
determined
any
question
of construction
or
validity
alislng
under
any
such
instrument,
constitution,
statute,
municipal
charter,
ordinance,
contract
or
franchise
and obtain
a
declaration
ofrights,
status
or
other
legal
relations
thereunder.
Page6
-
PLAINTIFF'S
MOTION
FOR SUMMARY
ruDGMENT
DAVIS
WRIGHT
TREMAINE
LLP
DWT
28472413v3
0105706-000001
1300 S.W
Fifth
Avenue, Suite
2400
Potland,
Oregon
97201-5610
(503)
241
-2300
rrain
'
(503)
7'8-5299 fax
-
7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment
7/28
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7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment
8/28
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contingent
or hypothetical
events
.
Morgan,
353
Or at
196.
Third,
declaring
the
Ordinance
invalid
will
redress
the
injury
that
is the subject
of the
declaratory
judgment
action,
as
plaintiff
will
be able
to
avoid
further financial
impediments
by
modifying
rent
prices
in accordance
with
state
law.
Morgan,353
Or
at
191.
Because
the
Ordinance
directly
affects
plaintiffls
rights,
status
or
other
legal
relations,
a
declaration
in
plaintiff
s favor
would
have an
immediate
effect
on
plaintiff
s
legal
interests,
and
plaintiff has
standing
to
seek
declaratory
relief
pursuant to
ORS
28.020.
2.
Plaintiff also
has standing
to
seek
injunctive
relief.
Because
plaintiff has
standing
to
pursue a claim
for
declaratory
relief,
it
follows
that
plaintiff
also has
standing
to
seek
injunctive
relief.
Although
no
statute govelrrs
the
issue
of
standing
to seek
injunctive
relief,
the
Oregon
Supreme
Court
has
long
applied
essentially
the
same
standing
requirements
that
ordinarily
apply
in
declaratory
judgment
actions.
Nordbye
v.
BRCP/GM
Ellington,2Tl
Or
App
168,
177
(2015). In
fact,
as
the
Oregon
Supreme
Court
has
noted,
in a
number
of
cases
addressing
the
standing
requirements
under
the
DJA
where
plaintif
sought
both
declaratory
and
injunctive
relief,
the
court
did
not distinguish
between
the forms
of
relief
in assessing
the
issue
of standing
.
Morgou 353
Or
at20l
(citing
Hazell
v.
Brown,352
Or
455
,
467
-6g (2012);
League
of oregon
cities
v. state,
334
Or 645
,
657
-62
(2002);
Barcik
v.
Kubiaczyk,32l
Or ll4,l7g
(1995)).
Thus,
in
light
of
the
fact
that
the same
standing
standards
apply
to
fplaintiff
s]
request
for declaratory
relief
and
injunctive
relief,
plaintiff has
standing
to
seek
injunctive
relief
for
the
same
reasons
that
plaintiff
has
standing
to
seek
declaratory
relief'
Morgan,
353
Or at
201-02.
B.
The
Ordinance
is
a
rent
control
on
housing
preempted
by ORS
91.225.
Plaintiff
is
entitled
to
a
declaration
that the Ordinance is
invalid
and
unenforceable
because
ORS
91
.225
pteempts
the
Ordinance
as
a
matter
of
law.
il
il
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,t)wr
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0r05706-00000r
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Portland,
Oregon
97201-510
(503)
241-2300
nrain'(503)
778-5299 fax
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l. Substantive
state statutes
preempt incompatible
local enactments.
When
a
local
enactment
is found incompatible
with
a state
law
in
an
aea
of substantive
policy,
the
state
law
will
displace
the
local
rule. City of
La Grande
v. Public
Employees
Retirement
Bd.,28I Or
137,I49
(1978).
Although
courts
should interpret
local
enactments,
if
possible,
to be
intended to
function
consistently
with
state
laws,
local enactments
must
yield
to
legislative
policy
where
both
cannot
operate
concurrently
or where
the legislature
meant
its
law to be
exclusive.
Id. at
148.
Thus,
a
statute
expressly
preempts
a
local
rule where
the
text,
context,
and
legislative
history
of
the
statute
unambiguously
expresses
an
intention
to
preclude
local
govemments from regulating
in
the
same
area as
that
govemed
by
the
statute.
Rogue
Valley
Sewer Servs.
v.
City
of
Phoenix,357
Or
437
,
450-51
(2015).
The legislature may
express
its unambiguous
intent
without
using the
word
'preempt'
itself
if
it
uses
equally
clear
terms,
such
as
no local
authority
shall
enact
any
ordinances,
rules or
regulations
in conflict
with
the
provisions
hereof.
1d
(quoting
ORS
461.030(l)).
Where
statutes
unambiguously
preempt local
enactments,
a naffowing
construction
of
state
law to
avoid
preemptive
effect
is
not
permissible .
Homebuilders
Ass'n of
Metropolitan
Portland
v.
Metro,250
Or
App 437,
443
(2012).
Instead,
the
application
of
the
statute
to
a
particular local
enactment
is
a
question
of
statutory
construction
resolved
by
resort
to the
familiar
methodology
set
forth
in State
v.
Gaines,346
Ot
160,
771
(2009).
1d
When
interpreting
a statute
under
this
methodology,
courts begin
by
examining
the
text
and context
of
the
statute
and
then
consider
any
legislative
history
proffered by
the
parties.
State
v.
Gaines,346
Or 160,
171-72
(2009).
If
the
legislature's
intent
remains unclear
after
examining
text,
context,
and
legislative
history,
the
court
may
resort to
general
maxims
of
statutory
construction
to
aid
in
resolving
the
remaining
uncertainty.
Id.
2.
The
plain
text
of
ORS
91.225
shows
that
it preempts the
Ordinance.
ORS
91
.225
unambiguously
preempts local enactments
like
Portland's
ordinance.
The
statute
begins
by
listing
the dangers
posed
by
the imposition
of
general restrictions
on
housing
Page 9
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are we here?
We
are
here because
of a
financial emergency.
And
therefore,
we ought
to
focus
on the
financial
question. And we're trying
to
avoid
harm
to
our citizens
by
extraordinary
rent
increases,
at
a
time
where they
have
few
other choices,
so
I
am
pleased
to
hear that
we
think that
that's both a
sound
policy
basis
and
focusing
on
the
heart of
problem. Id.
However,
the
purporled
reasonableness
of a
local
enactment
that controls
rent
increases,
even
for
90 days,
cannot
save
it
from
preemption.
ORS
91 .225
is not
limited
by
subjective
reasonableness
of
an ordinance
(e.g.
only
a little
rent
control);
it
expressly
preempts
any
ordinance
or
resolution
which
controls
the
rent that
may
be
charged
* * *.'r
ORS 91.225
(emphasis
added).
Reading a
reasonableness
safe
harbor into
the
statute
would
impermissibly
adopt
a narrowing
construction
of
state
law
to
avoid preemptive
effect
and
would
subvert
the
intent
of the
legislature.
Homebuilders
Ass'n,250
Or
App at
443
.
Defying
the
will
of
the
legislature
is not defensible
and
potentially
legal.
The
plain
text
of
ORS
91.225
establishes
that
local
govemments have
no
power
to
regulate
rent
increases-there
is
simply
no
needle
for
the
Council
to
thread
here.
3.
The
legislative
history
of
ORS
91.225
further shows
that
the
legislaiure
intended
to
preempt local
enactments
like
the
Ordinance.
If
the
statue's
text
left any
conceivable
doubt
as
to
the
legislature's
intent, the
legislative
history dispels
it. ORS 91.225
was adopted
by
the
1985
legislative
assembly
as
Chapter
335,
Oregon
Laws
1985
(Enrolled
H.B.
2505).
See
Exhibit
1.
ORS
91.225(2)
is identical
to
that
which
was contained
in the
enrolled
House
Bill and
the
Bill
as
originally
introduced,
which
is
attached
as Exhibit
2. The
amendment,
ultimately
adopted
by the
House
is attached
as
Exhibit
3
On
April 30,
1985, the
House
Committee
on the Judiciary
held
a
hearing
on the
bill
as
introduced.
Among
those
testiffing
as
proponents was Charlie
Hales,
who, at
the
time
represented
the
Home
Builders
Association
Metropolitan
Portland.
During
that
hearing,
Mr.
Hales
spoke
of
the
need for total
statewide
permanent
preemption
with
respect
to
rent regulation
il
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TREMAINE
LLP
DWT
28472413v3
0105706-000001
1300 S W
Fifth
Avenue,
Suite 2400
Portland,
Oregon
97201-5610
(503)
241-2300
nrain
'
(503)
'778-5299
fax
l0
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Because
the
Ordinance
is
invalid
and
unenforceable,
plaintiff
is entitled
to
a
permanent
injunction.
A
party
is entitled
to
injunctive
relief
where
there
is
an appreciable
threat
of continuing
harm,
Eagles
Five,
LLC
v.
Lawton,250
Or
App
413,
422
(2012),
and
the
harm
is
irreparable,
i.e.,thercmust
be
no
adequate
remedy
at
law,
Levasseur
v.
Armon,240
Or
pp250,259
(2010).
Further,
aparty
has
standing
to enjoin
a
goverrmental
action
where,
as here,
the
challenged
action
injures
the
plaintiff in
some
special
sense
that
goes
beyond
the
injury
the
plaintiff
would
expect
as
a
member
of
the
general
public. Eckles
v.
State,306
Or
380,
386
(1988).
Finally,
pursuant to
ORS
28.080,
a
court
may
grant
othet
forms
of
coercive
relief,
including
injunctive
relief'
when
based
on
a declaratory
judgment
and
when necessary
and
proper.
Ken Leahy
Constr.,
Inc.
v.
Cascade
Gen.,
Lnc.,329
Or
566,575
(1999).
Here,
plaintifls entitlement
to
injunctive
relief
is beyond
dispute.
Plaintiff
has
a
right
to
the
possession,
use, and
enjoyment
of its
property.
Hall
v. State
ex
rel
Oregon
Dep't
of
Transp',
355
Or
503,
51
|
(2014)
(property
owner
has
right
of
possession,
enjoyment,
and
use );
Nearing
v,
l4/eaver,295
Or
702,707
(19S3)
(property
owner
has
legally
protected
interest in
the
use and
enjoyment
of
their
land).
Plaintiff
seeks
the
ability
to
manage
its own
property in
response
to
market
forces
and
subject
to
state
law.
That is unquestionably
a
lawful
pursuit,
but for
the
Ordinance
Even
though
the
Ordinance
is
invalid,
the threat
of
its
enforcement
interferes
with
plaintiff
s use
of
its
property,
constitutingper
se
irreparable
harm.
Indeed,
the
principle
that
an
injunction
is
a
property
remedy
against
enforcement
of an
invalid
law
goes
back
at least
a
century
and
remains
well-established.
Northwestern
Title
Loans,
LLC
v,
Division
of
Finance
and
Corporate
Securities,lS0
Or
App
I
,8
(2002)
(citing
Alum.
IJtensil
Co.
v. City
of
North
Bend,
210
Or
472,419
(1957)
and
the
cases
collected
therein
dating
back to
1905
(if
the threatened
DAVIS
WRIGHT
TREMAINE
LLP
1300
S.W.
Fifth
Avenue, Suite
2400
Portland, Oregon
97201-5610
(503)
241-2300
rnain'(503)
7'78-5299
fax
C
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enforcement
of
an allegedly
invalid
ordinance
or
statute
may
harm
the
property
rights
of
a
party,
the court
has authority
to
issue
an
injunction
to
prevent the
threatened
harm
from
occurring.) )'
Moreover,
under
ORS
23.080,
further
relief
may
be
granted
whenever
necessary
or
proper, and
such
further
relief'
may
include
injunctive
relief.
See
Ken
Leahy
Constr.,
Inc.,
329
Or
at
575.
Here,
injunctive
relief
is
necessary
and
propet because
an
injunction
is
necessary
to
effectuate
the
declaration
that
Ordinance
is invalid
and
to
give
plaintiff complete
relief.
see
id.
at
572,
57
5-7
6
( We
need
not
decide
whether
proof
of
all
the
equitable
elements
of
an
injunction
is
a
prerequisite
in
every
case
seeking
injunctive
relief
under
ORS
28.080
*
* *
fbecause
the
injunction]
here
was
designed
to
provide the
kind
of
complete
relief
to
plaintiff
in
the manner contemplated
by
ORS 28.080
*
{