City of Eugene v. Nalven

955 P.2d 263, 152 Or. App. 720, 1998 Ore. App. LEXIS 258
CourtCourt of Appeals of Oregon
DecidedFebruary 25, 1998
Docket16-95-06123; CA A93715
StatusPublished
Cited by12 cases

This text of 955 P.2d 263 (City of Eugene v. Nalven) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Eugene v. Nalven, 955 P.2d 263, 152 Or. App. 720, 1998 Ore. App. LEXIS 258 (Or. Ct. App. 1998).

Opinions

[722]*722LANDAU, J.

In this action for declaratory and injunctive relief, the City of Eugene (City) seeks to compel defendant to connect her residence, located outside the City’s corporate limits, to the City’s sanitary sewer system. Defendant contends that the City cannot compel an extraterritorial connection without providing notice to the affected property owner, holding hearings and establishing the inadequacy of her current system. The City contends that state statutes either expressly or impliedly authorize it to compel connection on demand. Both parties moved for summary judgment. The trial court granted the City’s motion, denied defendant’s motion and entered judgment requiring defendant to connect to the City’s sewer system. On appeal, defendant contends that the trial court erred in granting the City’s motion and in denying hers. We agree and reverse and remand for entry of judgment in favor of defendant.

The relevant facts are not in dispute. Defendant owns real property in Lane County in what is known as the “River Road” area. Although the area around the property is bordered on three sides by property within the City, defendant’s property is located approximately one-half mile outside the City’s corporate limits. There is a house on defendant’s property, which contains plumbing fixtures that discharge wastewater. The City created a local improvement district for the purposes of installation and operation of sanitary sewers. Defendant’s property is located within the local improvement district and is within 160 feet of a City sanitary sewer line that apparently is located on a right-of-way in the unincorporated area. The City demanded that defendant connect her house to the City system. Defendant declined.

In its complaint, the City claimed authority to compel individuals outside the City limits to connect to the City system under Eugene Municipal Code section 6.471(1), which provides:

“[W]ithin the city or within a local improvement district for wastewater sewers created by the council, all structures in which plumbing fixtures are installed or which discharge wastewater and are located within 160 feet of the city [723]*723wastewater system or of a public right-of-way containing the city wastewater system shall be connected to the city wastewater system in a manner prescribed by this code and shall discharge all wastewater into such system.”

In her answer, defendant alleged that, among other things, the City lacks authority to compel owners of property located outside the City’s municipal boundaries to connect to the City system. Eugene Code section 6.471(1), she contended, is invalid because it is inconsistent with state law and Lane County ordinances that limit the extent to which cities may exercise authority beyond their corporate boundaries.

In her motion for summary judgment, defendant contended that, although other statutes and ordinances may authorize cities to compel extraterritorial sewer connections, the City did not comply with the requirements of any of them. Specifically, defendant noted that Lane County Code section 9.410 et seq permits cities to compel extraterritorial connections only after notice to affected property owners and express findings “that the property is serviced by an inadequate sewerage disposal system.”

In its motion for summary judgment, the City conceded that Lane County Code section 9.410 provides authority to compel extraterritorial sewer connections only on specified conditions and further conceded that it had not complied with any of those conditions. The City nevertheless contended that it derives its authority to compel extraterritorial connections from ORS 224.020, which provides authority to do “all things * * * which may be deemed necessary or essential for the proper disposal of sewerage and drainage from the city and adjacent territory.”

Defendant replied that, among other things, the City reads too much into ORS 224.020. According to defendant, the statute speaks to the authority of the City to acquire extraterritorial property, by purchase or condemnation, to construct and maintain a sewerage system, and — in that context — to do whatever is necessary to dispose of sewage and drainage from the adjacent territory. Alternatively, defendant argued that, even if ORS 224.020 applies, the authority it creates is limited to “adjacent” territory, and her property is not adjacent to any City boundary. The City replied that [724]*724her property is located in “adjacent territory” to the City, and that is all the statute requires.

On appeal, the parties reassert essentially the same arguments. Defendant argues that the City lacks authority to compel extraterritorial sewerage system connection simply on demand and without proof of need as required in Lane County Code section 9.410 et seq. The City contends that either ORS 224.020 expressly grants it the authority to demand connection without any proof of need or that that statute and others on the general subject of sewerage system construction impliedly create such authority.1

A city generally may exercise authority only within its corporate limits. Eugene McQuillin, 11 The Law of Municipal Corporations § 31.16, 226-27 (3d ed 1991) (cities generally do not have authority to construct sewer systems beyond city limits). The sole exception to that general rule is that a city may exercise authority outside its boundaries when a jurisdiction from which it draws its power to act — a county or the state — grants it that authority. See, e.g., State v. Port of Astoria, 79 Or 1, 19, 154 P 399 (1916) (“permission to employ extramural authority must be granted to cities and towns before the privilege can be exercised”). Thus, for example, a city cannot levy a special assessment district that includes land outside the city limits, unless a statute confers on that city the authority to do so. City of Klamath Falls v. Lewis, 24 Or App 703, 705, 546 P2d 1113 (1976). See also generally McQuillin, 14 The Law of Municipal Corporations § 38.52, 200 (3d ed 1987).

That exception to the general rule has been qualified further by a requirement that any grant of extramural authority be “clearly expressed.” As the Supreme Court explained in Richards et al v. City of Portland et al, 121 Or 340, 345, 255 P 326 (1927):

[725]*725“It is elementary that a municipality, acting either in its governmental or proprietary capacity, can do so only by virtue of express or implied authority conferred upon it. Ordinarily, the jurisdiction of a municipality ceases at its boundaries and for it to exercise extraterritorial jurisdiction its powers to do so must be clearly expressed[.]”

In other words, although municipal authority generally may derive from express or implied grants from the state, the power to act beyond municipal boundaries may not be implied and instead must be based on an expressed — indeed, on a “clearly expressed” — conferral of authority.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hazell v. Brown
242 P.3d 743 (Court of Appeals of Oregon, 2010)
Waxman v. Waxman & Associates, Inc.
198 P.3d 445 (Court of Appeals of Oregon, 2008)
State v. Mayes
186 P.3d 293 (Court of Appeals of Oregon, 2008)
City of Riverview v. Sibley Limestone
716 N.W.2d 615 (Michigan Court of Appeals, 2006)
Piburn v. SAIF Corp.
112 P.3d 367 (Court of Appeals of Oregon, 2005)
State v. Stamper
106 P.3d 172 (Court of Appeals of Oregon, 2005)
GTE Northwest Inc. v. Oregon Public Utility Commission
39 P.3d 201 (Court of Appeals of Oregon, 2002)
Sunflower v. Bladorn
1 P.3d 513 (Court of Appeals of Oregon, 2000)
City of Eugene v. Nalven
955 P.2d 263 (Court of Appeals of Oregon, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
955 P.2d 263, 152 Or. App. 720, 1998 Ore. App. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-eugene-v-nalven-orctapp-1998.