Chapter 221

 

      221.040

 

NOTES OF DECISIONS

 

      In determining the boundaries of a city the county commissioners should exercise an independent legislative judgment under the guidelines of this section. Millersburg Dev. Corp. v. Mullen, 14 Or App 614, 514 P2d 367 (1973), Sup Ct review denied

 

      County act of fixing date for incorporation election under this section is final decision for purposes of land use review procedure. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)

 

      221.160

 

ATTY. GEN. OPINIONS: Application of Ore. Const. Art. II, §14a to election of city officers of all cities, (1973) Vol 36, p 697

 

      221.200

 

ATTY. GEN. OPINIONS: Application of Ore. Const. Art. II, §14a to election of city officers of all cities, (1973) Vol 36, p 697

 

      221.315

 

NOTES OF DECISIONS

 

      Where county population exceeds 300,000, provisions of ORS 8.650 make agreement between city and county unnecessary. City of Portland v. Smith, 75 Or App 38, 705 P2d 205 (1985), Sup Ct review denied

 

      221.333

(formerly 221.340)

 

ATTY. GEN. OPINIONS: City establishment of own procedure for collection of fines for violation of city parking ordinances, (1984) Vol 44, p 67

 

      221.336 to 221.390

 

NOTES OF DECISIONS

 

      Person who is convicted in municipal court and appeals that conviction to circuit court, pursuant to these sections, may appeal adverse decision of circuit court to Court of Appeals only if case involves constitutionality of ordinance under which defendant was convicted. City of Lincoln City v. Pennington, 91 Or App 713, 756 P2d 75 (1988)

 

      221.339

 

NOTES OF DECISIONS

 

      Where municipal court that is not court of record prosecutes misdemeanor offense, court is functioning as justice court. City of Milton-Freewater v. Ashley, 214 Or App 526, 166 P3d 587 (2007)

 

      Where city attorney in home-rule city chooses under this section to prosecute certain violations, authority of city attorney is equivalent to that of district attorney. City attorney’s jurisdiction to prosecute under this section is not subordinate to district attorney’s authority. Clatsop County District Attorney v. City of Astoria, 266 Or App 769, 340 P3d 71 (2014)

 

      221.340

 

      See annotations under ORS 221.333.

 

      221.349

 

      See annotations under ORS 221.354.

 

      221.350

 

      See annotations under ORS 221.359.

 

      221.354

(formerly 221.349)

 

NOTES OF DECISIONS

 

      Defendant who was charged with keeping a vicious dog in violation of a city ordinance was held not entitled to a jury trial. Behnke v. Jordan, 275 Or 199, 550 P2d 736 (1976)

 

      221.359

(formerly 221.350)

 

NOTES OF DECISIONS

 

      On appeal to circuit court from municipal court’s contempt order under [former] ORS 33.030, defendant was entitled to trial on contested findings contained in order. City of Klamath Falls v. Bailey, 43 Or App 331, 602 P2d 1107 (1979)

 

      221.360

 

NOTES OF DECISIONS

 

      Scope of appellate court review of district court convictions of ordinance violations is equivalent to that available to persons appealing from district court convictions of state offenses. City of Portland v. Poindexter, 38 Or App 551, 590 P2d 781 (1979)

 

      Provisions of this section, which limit appeals from circuit review of municipal court convictions to questions of constitutionality of ordinances or charter provisions, do not violate United States or Oregon Constitutions. City of Klamath Falls v. Winters, 289 Or 757, 619 P2d 217 (1980)

 

      Court of Appeals has jurisdiction where defendant challenges provision that is inseparable from provision under which defendant was convicted. City of Eugene v. Miller, 119 Or App 293, 851 P2d 1142 (1993), aff’d on other grounds, 318 Or 480, 871 P2d 454 (1994)

 

      For purposes of right to appeal, issue as to constitutionality of charter provision or ordinance may be raised as either facial or as-applied challenge. City of Eugene v. Lincoln, 183 Or App 36, 50 P3d 1253 (2002)

 

      Limitation on scope of decision by appellate court regarding constitutional issue applies only to municipal court conviction for which city ordinance otherwise prohibits appeal. City of Eugene v. Lincoln, 183 Or App 36, 50 P3d 1253 (2002)

 

      Once appellant meets prerequisite of raising cognizable facial or as-applied challenge to constitutionality of ordinance, appellate court may address both constitutional and nonconstitutional contentions. City of Lowell v. Wilson, 197 Or App 291, 105 P3d 856 (2005), Sup Ct review denied

 

COMPLETED CITATIONS: Portland v. Olson, 4 Or App 380, 481 P2d 641 (1971), Sup Ct review denied

 

      221.390

 

NOTES OF DECISIONS

 

      In de novo appeals in circuit court arising from traffic offense convictions in municipal court in which arrest or complaint was made by a city policeman, the county clerk shall remit one-half of the fine to the city. City of St. Helens v. Columbia County, 21 Or App 128, 533 P2d 1401 (1975), Sup Ct review denied

 

      221.410

 

NOTES OF DECISIONS

 

      State substantive policy may be phrased as prohibition against local regulation without further elaboration or direction. deParrie v. State of Oregon, 133 Or App 613, 893 P2d 541 (1995), Sup Ct review denied

 

      221.420

 

NOTES OF DECISIONS

 

      The scope of review in disputes between parties to a franchise is the same as for any contract, and is not limited to a determination that the municipality acted reasonably and in good faith for the public interest. Rose City Transit Co. v. Portland, 18 Or App 369, 525 P2d 325 (1974), aff’d as modified 271 Or 588, 533 P2d 339 (1975)

 

      A franchise is not a mere license, but a contract between a municipality and franchisee. Rose City Transit Co. v. Portland, 18 Or App 369, 525 P2d 325 (1974), aff’d as modified 271 Or 588, 533 P2d 339 (1975)

 

      City may provide utility services in territory allocated to another provider pursuant to ORS 758.400 to 758.475 if it exercises authority under this section to exclude or eject provider from territory, however, city’s mere placement of utility facilities and provision of services in territory is not exercise of that authority and is violation of allocation statutes in absence of formal action by city to eject or exclude provider. PacifiCorp v. City of Ashland, 89 Or App 366, 749 P2d 1189 (1988), Sup Ct review denied

 

      City’s statutory authority to exclude or eject public utility from public property applies only to privately owned public utilities. Springfield Utility Board v. Emerald People’s Utility District, 191 Or App 536, 84 P3d 167 (2004), aff’d 339 Or 631, 125 P3d 740 (2005)

 

      “Public utility” does not include utility owned by city, municipal corporation or quasi-municipal corporation. Springfield Utility Board v. Emerald People’s Utility District, 191 Or App 536, 84 P3d 167 (2004), aff’d 339 Or 631, 125 P3d 740 (2005)

 

      Read with ORS 221.450, under home rule analysis, where city ordinance charging franchise fee is not specifically preempted by state law, city has authority to enact and enforce ordinance. Rogue Valley Sewer Services v. City of Phoenix, 262 Or App 183, 329 P3d 1 (2014), aff’d 357 Or 437, 353 P3d 581 (2015)

 

      221.450

 

NOTES OF DECISIONS

 

      Read with ORS 221.420, under home rule analysis, where city ordinance charging franchise fee is not specifically preempted by state law, city has authority to enact and enforce ordinance. Rogue Valley Sewer Services v. City of Phoenix, 262 Or App 183, 329 P3d 1 (2014), aff’d 357 Or 437, 353 P3d 581 (2015)

 

      “Privilege tax” as used in this section encompasses license fee established by respondent city where that fee is intended to raise revenue to fund city-wide services such as police and fire departments. Northwest Natural Gas Co. v. City of Gresham, 359 Or 309, 374 P3d 829 (2016)

 

      “Franchise” as used in this section means negotiated agreement between city and utility that functions as contract, and does not mean city licensing scheme that involves unilateral imposition of fees. Northwest Natural Gas Co. v. City of Gresham, 359 Or 309, 374 P3d 829 (2016)

 

      221.480 to 221.500

 

ATTY. GEN. OPINIONS: City’s authority to spend more than $10,000 in any given year for advertising, publicity or tourist promotion, (1979) Vol 40, p 40

 

      221.515

 

NOTES OF DECISIONS

 

      Authorization for municipal privilege tax on telecommunications carriers using rights of way does not prohibit municipality from imposing similar tax on entities exempt from definition of telecommunications carrier. AT&T Communications v. City of Eugene, 177 Or App 379, 35 P3d 1029 (2001), Sup Ct review denied

 

      Municipality may impose tax for use of public streets, alleys and highways on telecommunications carrier revenues generated from services other than exchange access services. US West Communications v. City of Eugene, 336 Or 181, 81 P3d 702 (2003)

 

      Where city charges utility fee on plaintiff telecommunications company and privilege tax on utilities that use or occupy city’s rights-of-way, this section places limit on rate of privilege tax that city can collect from utility that uses city’s streets, alleys or highways but does not prohibit city from charging other taxes and fees for privilege of doing business within city, so city can collect privilege tax and utility licensing fee concurrently from telecommunications company. Qwest Corporation v. City of Portland, 275 Or App 874, 365 P3d 1157 (2015), Sup Ct review denied

 

      221.770

 

ATTY. GEN. OPINIONS: Apportionment and quarterly payment of liquor revenues to cities, (1977) Vol 38, p 1025; effect of inadvertent omission of brackets on mathematical formula of this section, (1977) Vol 38, p 1525; distribution formula for Oregon Liquor Control Commission Account moneys, (1978) Vol 38, p 2138; distribution of state moneys when all land within city is owned by private party, (1983) Vol 44, p 20

 

      221.905

 

ATTY. GEN. OPINIONS: Contract providing that city will pay police chief amount equal to fines and bail forfeitures collected by municipal court, (1980) Vol 40, p 247

 

      221.924

 

ATTY. GEN. OPINIONS: City authority to construct speed bumps to control vehicle speed, (1975) Vol 37, p 653

 

      221.926

 

ATTY. GEN. OPINIONS: Local government authority to force evacuation of fire-threatened areas, (1996) Vol 48, p 27