Porter v. Lane County

No. 778 August 19, 2026 265 IN THE COURT OF APPEALS OF THE STATE OF OREGON Larry PORTER, an individual, Plaintiff-Appellant, v. LANE COUNTY, a Municipal corporation of the State of Oregon, Defendant-Respondent. Lane County Circuit Court 24CV02211; A184463 Karrie K. McIntyre, Judge. Argued and submitted August 13, 2025. Gregory S. Hathaway argued the cause for appellant. Also on the briefs was Hathaway Larson LLP. Anne C. Davies argued the cause for respondent. Also on the brief was Lane County Office of Legal Counsel. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. SHORR, P. J. Affirmed. 266 Porter v. Lane County SHORR, P. J. Plaintiff appeals from a general judgment dismiss- ing his complaint for declaratory and injunctive relief for lack of jurisdiction. Plaintiff asserts that his complaint presented a justiciable controversy involving present facts and a current controversy between him and defendant (the county), regarding the interpretation of the Lane Code and the county’s Rural Comprehensive Plan. We conclude that the trial court did not err in dismissing the action for lack of a justiciable controversy and therefore affirm.1 The facts of this matter are undisputed. Plaintiff owns property within Lane County and applied for and was granted a special use permit to construct a commer- cial building on his property that was roughly 4,000 square feet. Plaintiff subsequently obtained a building permit to construct the building. The building permit expired in July 2023. During discussions regarding plaintiff’s attempts to obtain a final occupancy permit, plaintiff engaged in discus- sions with county personnel regarding building out the sec- ond floor of the building, to expand the total square footage to roughly 6,000 square feet. Plaintiff was advised that the Lane Code and Rural Comprehensive Plan did not allow for a building greater than 4,000 square feet. Plaintiff never applied for a permit to allow for the additional construction, and the county never denied any application. Instead, plaintiff filed a complaint for declaratory and injunctive relief pursuant to the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160, seeking a declaration that the Lane Code and Rural Comprehensive Plan did not limit his building to 4,000 square feet and per- mitted him to construct an additional 2,000 square feet of floor area on the second floor. He also sought an injunction ordering the county to immediately process his request for a special use permit for the additional construction. The county filed a motion to dismiss for lack of jurisdiction, asserting that the complaint failed to state a justiciable 1 Because we affirm based on a lack of a justiciable controversy, we need not reach plaintiff’s second assignment of error in which he challenges the trial court’s determination that jurisdiction over the matter was with the Land Use Board of Appeals (LUBA). Cite as 352 Or App 265 (2026) 267 controversy and that the circuit court lacked jurisdiction over the subject matter, which was the exclusive jurisdiction of LUBA. The circuit court agreed with the county on both bases, granted the county’s motion, and entered a general judgment of dismissal. Plaintiff now seeks review of that decision. The issue of justiciability is a question of law that we review for legal error. Board of Cty. Comm. of Columbia Cty. v. Rosenblum, 324 Or App 221, 231, 526 P3d 798 (2023). The Uniform Declaratory Judgments Act confers on Oregon courts of record the power to “declare rights, sta- tus, and other legal relations, whether or not further relief is or could be claimed.” ORS 28.010. In order for a court to entertain a declaratory action, “the complaint must present a justiciable controversy.” Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982). “A controversy is justiciable, as opposed to abstract, where there is an actual and substantial controversy between par- ties having adverse legal interests. The controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue. A justiciable con- troversy results in specific relief through a binding decree as opposed to an advisory opinion which is binding on no one. The court cannot exercise jurisdiction over a nonjusti- ciable controversy because in the absence of constitutional authority, the court cannot render advisory opinions.” Id. (internal citations omitted). Plaintiff maintains that his complaint presented a justiciable controversy because he and the county had com- peting interpretations of local laws regarding whether he should be permitted to expand his building, and the coun- ty’s interpretation was interfering with his use of his prop- erty. We disagree. A difference of opinion regarding the interpretation of a statute or regulation does not create a justiciable controversy, absent some “existing state of facts” that impacts the legal rights of a party. Cummings Constr. v. School Dist. No. 9, 242 Or 106, 110, 408 P2d 80 (1965). It is undisputed that plaintiff could have applied for a permit for the proposed work, and had he been denied, he could have sought review of that decision. Plaintiff did not do so. 268 Porter v. Lane County Plaintiff’s complaint alleged only that during discussions with the county about his building, he was “advised” that the additional construction would not be allowed. Absent an actual request and denial, this particular controversy is merely hypothetical, and any interpretation of the Lane Code via a declaratory judgment would be an improper advi- sory opinion. See Petix v. Gillingham, 325 Or App 157, 164, 528 P3d 1152 (2023) (The Uniform Declaratory Judgments Act “prohibits courts from giving purely advisory opinions.”). The circuit court did not err in dismissing the action for lack of a justiciable controversy. Affirmed.