City of Portland v. Ristick

945 P.2d 98, 150 Or. App. 1, 1997 Ore. App. LEXIS 1177
CourtCourt of Appeals of Oregon
DecidedSeptember 17, 1997
Docket9211-07632; CA A89329
StatusPublished

This text of 945 P.2d 98 (City of Portland v. Ristick) 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 Portland v. Ristick, 945 P.2d 98, 150 Or. App. 1, 1997 Ore. App. LEXIS 1177 (Or. Ct. App. 1997).

Opinion

DEITS, C. J.

Appellant, the City of Portland, seeks review of a trial court judgment awarding it some, but not all, of the costs that the city sought as a result of rehabilitation efforts undertaken by a receiver pursuant to the Oregon Housing Receivership Act, ORS 105.420 through ORS 105.455, and corollary city ordinances. The city argues that the trial court failed to apply the correct legal standard when it denied the city’s request for reimbursement for what it asserts are its reasonable costs in rehabilitating the property.

The Oregon Housing Receivership Act authorizes “county and municipal governments to adopt and implement receivership programs to allow for the upgrading of subdard and abandoned residential properties.” ORS 105.420(3).1 Under the Act, if a city or county concludes that a house is a threat to the public health, safety or welfare, it may appoint a receiver to perform an abatement. ORS 105.420. Abatement is defined in ORS 105.425(1) as:

“[T]he removal or correction of any condition at a property including demolition that violates the provisions of any duly enacted building or housing code, as well as the making of such other improvements or corrections as are needed to effect the rehabilitation of the property or structure, but not including the closing or physical securing of the structure.”

The Act provides that a receiver may, among other things, “[e]nter into contracts and pay for the performance of any work necessary to complete the abatement.” ORS 105.435(l)(e). Additionally,

“[a]ll moneys expended and all costs and obligations incurred by the receiver in performing the abatement shall be reviewed by the court for reasonableness and their necessity in performing the abatement. To the extent that the court finds the moneys, costs or obligations * * * to be reasonable and necessary, it shall issue an order reciting this fact as well as the amount found to be reasonable and necessary.” ORS 105.440(1).2

[4]*4The city’s ordinance, adopted to implement the Act, provides:

“When the Director finds residential property in violation of any code enforced by the Bureau of Buildings, and believes that violation is a threat to the public’s health, safety or welfare, the Director may apply to a court of competent jurisdiction for the appointment of a receiver to perform an abatement. As used in this Chapter, abatement shall mean the removal or correction of any condition at a property that violates any provision of Titles 18, 24, 25, 26, 27, 28, 29, 31, or 33 of this Code as well as the making of other improvements or corrections as are needed to rehabilitate the property or structure. Abatement may include demolition, but does not include securing a structure against entry.” PCC Section 29.90.020.

Pursuant to PCC Section 29.90.020, the city determined that respondent’s property was a derelict building and a threat to the public’s health, safety or welfare, and the Housing Authority of Portland was appointed receiver of the property. In accordance with ORS 105.440(1), the city then requested the trial court to review and approve the costs that it expected to incur.3 The trial court reviewed the city’s proposed lists of costs, inspected the property and ordered that some of the costs were recoverable from the property owner, but that other costs were not.

The city argues that “[t]he trial court erred in denying reimbursement for the reasonable costs incurred to rehabilitate the property, and allowing only the costs required to correct specific housing code violations [.]” It claims that the trial court applied the wrong standard when it evaluated the city’s request for reimbursement of its costs because it improperly limited reimbursement to repairs involving a code violation.

It is rather difficult to determine from the record what standard the trial court used in deciding whether costs [5]*5were reimbursable. At the initial hearing, where the city asked the court to review its proposed costs, the costs submitted by the city were based on its estimates of what repairs would be necessary to “rehabilitate” the property. At the hearing, the trial court inquired of the city’s representatives whether the court was limited to awarding costs only to those items that were necessary to cure code violations. The city’s attorney responded that she believed that that was correct, but that it did not matter in this case because all of the costs that the city was asking for were necessary to cure code violations.

Later, at the same hearing, during a colloquy between the court and a supervisor of city housing inspectors concerning the amount of work that would be necessary to qualify for a rehabilitation loan from the Portland Development Commission (PDC), the supervisor initially stated that he believed that all of the work that was to be done on this property was “code-related, that it does in fact relate to an existing code violation on the property.” Later in the discussion with the court, the supervisor acknowledged that some items, such as those related to landscaping, did not involve a code violation. The supervisor explained that all of the work was necessary to qualify for a rehabilitation loan through PDC. The court then expressed its view that the applicable statutes did not give the court authority to award more than was necessary to cure code violations. The court reiterated that it did not believe that the statutes permitted it to allow costs that were necessary to get a loan, but were not related to correcting code violations.

Near the end of this hearing, the city’s attorney asserted that the court did have authority to allow costs for items that were not code-related, but were necessary to avoid leaving the house in a damaged state. The city’s attorney asked the court to distinguish between habitability and satisfying code violations. Apparently, the city was questioning whether the court would approve costs that it concluded were necessary to meet a standard of “habitability,” but that were not necessary to correct code violations. The trial court then stated its opinion that the “definition of habitability is failure to meet applicable municipal codes [.]”

[6]*6A few days after the hearing,4 the trial court undertook an item-by-item personal inspection of the house and reviewed all the deficiencies that the city sought to repair and for which it was seeking to recover costs. The court inquired with respect to each item whether it related to a code violation. Some of the items that the court reviewed were not required to fix code violations.

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Related

§ 105.420
Oregon § 105.420
§ 105.455
Oregon § 105.455
§ 105.425
Oregon § 105.425
§ 105.435
Oregon § 105.435
§ 105.440
Oregon § 105.440
§ 105.435-
Oregon § 105.435-

Cite This Page — Counsel Stack

Bluebook (online)
945 P.2d 98, 150 Or. App. 1, 1997 Ore. App. LEXIS 1177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-portland-v-ristick-orctapp-1997.