Clackamas County v. Gay

934 P.2d 551, 146 Or. App. 706, 1997 Ore. App. LEXIS 220, 1997 WL 97377

• Court: Court of Appeals of Oregon
• Decided: March 5, 1997
• Docket: 91-11-217; CA A92660
• Status: Published

Opinions

LEESON, J.

Plaintiff Clackamas County (county) brought this action to enjoin defendants from operating an airport and conducting a commercial skydiving business in an area of the county zoned for exclusive farm use. Intervenors,¹ who are neighboring landowners, joined in the county’s lawsuit. Defendants contended that their activities constituted a lawful nonconforming use. The trial court determined that defendants were correct only as to a narrow strip of land and entered a judgment enjoining defendants from operating their airport and conducting the skydiving business beyond the limited scope of the nonconforming use that the court recognized. Defendants appealed and filed a bond to stay the effect of the judgment. The trial court entered an order staying the judgment in all respects, except a restriction limiting the number of takeoffs and landings and a requirement that defendants log all flights to and from the property. We affirmed the trial court, except for a minor provision that allowed limited airport parking. Clackamas County v. Gay, 133 Or App 131, 890 P2d 444, rev den 321 Or 137 (1995).

Meanwhile, the legislature enacted ORS 836.625(1), which provides:

“The limitations on uses made of land in exclusive farm use zones described in ORS 215.213 and 215.283 and limitations imposed by or adopted pursuant to ORS 197.040 do not apply to the provisions of this chapter regarding airport zones.”

That statute went into effect on passage. Defendants immediately moved to vacate the judgment, arguing that ORS 836.625(1) effectively repealed all local government regulations of airport uses in exclusive farm use zones. The county and intervenors contended that the statute merely establishes a timetable and process by which local governments must amend their comprehensive plans and land use regulations to create airport zones in the future and has no present effect on the county’s existing comprehensive plan and land use regulations. The trial court agreed with the county and intervenors and denied defendants’ motion to vacate. Defendants appeal, and we affirm.

On appeal, the parties repeat the arguments that they made below. The sole issue before us is construction of ORS 836.625(1). Our task is to determine the intent of the legislature by examining the text and context of the statute. We resort to legislative history only if the intent of the legislature is not clear from the text and context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). We are “not to insert what has been omitted, or to omit what has been inserted.” ORS 174.010.

Defendants concede that, by its terms, ORS 836.625(1) does not repeal existing local land use regulations. Nonetheless, they contend, we should read such language into the statute, because the legislative history indicates that, in adopting ORS 836.625(1), the legislature intended to repeal existing local land use regulations. According to defendants, Oregon appellate courts will “ignore or add to portions of legislation as necessary if that is the only way to avoid an unreasonable or unintended result.” The lead example of that practice, according to defendants, is Johnson v. Star Machinery Co., 270 Or 694, 530 P2d 53 (1974). In that case, the Supreme Court applied “the rule of the equity of the statute” and held that ORS 12.115 (1), the statute of limitations for negligent injury to person or property, also applies to products liability actions. Justice Holman explained:

“[T]he rule requiring the court to follow the plain meaning of seemingly unambiguous language is not inflexible and not without exceptions. Hence, if the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result, the literal interpretation must give way and the court must look beyond the words of the act.” Johnson, 270 Or at 703-04.

See also State ex rel Kirsch v. Curnutt, 317 Or 92, 98, 853 P2d 1312 (1993) (citing Johnson rule with approval, notwithstanding rule against inserting what has been omitted or omitting what has been inserted).

In resolving this case, we need not decide whether the rule of Johnson is still viable in the wake of the interpretive template announced in PGE, because Johnson does not aid defendants. If the rule applies at all, it is where the literal interpretation of the words of a statute is so at variance with the apparent policy of the statute as to bring about an unreasonable result.² Johnson, 270 Or at 704. As written, ORS 836.625(1) brings about no unreasonable result by leaving existing land use regulations in effect. As intervenors point out, under chapter 836, which provides the relevant context for ORS 836.625(1), “a process is put in place, rather than an immediate effect ordered.” (Emphasis in original.)

The trial court did not err in denying defendants’ motion to vacate the judgment previously entered in this case.

Affirmed.

1 Intervenors Gidley, Kunze and Linn are parties to this appeal. Intervenor Aronson is not.

2 Defendants misstate the rule of Johnson, claiming that it applies as well when a party has evidence that the language of a statute leads to an “unintended result.” It is well established that courts “cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature’s intent.” Monaco v. U.S. Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976).