State ex rel Amarok, LLC v. City of Gresham

Summary

The Oregon Court of Appeals held that ORS 195.870(3) does not preempt Gresham Revised Code 7.15.040(7)(d), which prohibits battery-charged fences outside industrial land use districts. The court interpreted property “zoned for residential use” to include zones where any residential use is permitted, rather than only zones primarily intended for residential use. The court vacated the judgment and remanded for entry of a declaratory judgment stating the parties’ rights, rather than dismissal of the declaratory judgment claim.

Holdings

1. ORS 195.870(3) does not preempt Gresham Revised Code 7.15.040(7)(d) because the ordinance prohibits battery-charged fences only in areas that are zoned for some residential use, while ORS 195.870(3) prohibits local governments from banning such fences on property not zoned or used for residential use.
2. Gresham's home-rule authority permits local regulation in an area also regulated by state law unless the local law is incompatible with state law; the City's ordinance was not incompatible with ORS 195.870(3).
3. The trial court erred by dismissing the declaratory judgment claim; the proper disposition was to enter a judgment declaring the parties' rights.

Questions Presented

1. Whether ORS 195.870(3) preempts Gresham Revised Code 7.15.040(7)(d).
2. Whether the phrase "zoned ... for residential use" refers to zones permitting any residential use or only zones whose primary purpose is residential use.
3. Whether dismissal, rather than entry of a declaration of the parties' rights, was the proper disposition of Amarok's declaratory judgment claim.

Disposition

vacated