City of Portland v. Smith , 314 Or. 178 ( 1992 )

PETERSON, J.

In November 1990, as the result of an initiative, Oregon voters passed a constitutional amendment relating to property taxation and public school financing, commonly referred to, then and now, as Measure 5. Or Const, Art XI, § lib. Measure 5 “limits the taxes that may be imposed on any property by limiting tax rates.” Coalition for Equit. School Fund. v. State of Oregon, 311 Or 300, 310, 811 P2d 116 (1991). Measure 5 also provided that certain property taxes be exempt from its limitations:

“(3) The [property tax rate] limitations of subsection (1) of this section apply to all taxes imposed on property or property ownership except[:]

‘ ‘ (a) Taxes imposed to pay the principal and interest on bonded indebtedness authorized by a specific provision of this Constitution.

“(b) Taxes imposed to pay the principal and interest on bonded indebtedness incurred or to be incurred for capital construction or improvements, provided the bonds are offered as general obligations of the issuing governmental unit and provided further that either the bonds were issued not later than November 6, 1990, or the question of the issuance of the specific bonds has been approved by the electors of the issuing governmental unit.” Or Const, Art XI, § llb(3).

The City of Portland (City), acting by and through the Portland Development Commission, petitioned for a declaratory judgment in the Tax Court. ORS 305.589. City sought a declaration that the tax rate limitations in Measure 5 do not apply to property tax revenues that are used by City to pay off bonded indebtedness incurred by City to finance urban renewal projects. City asserts that those tax revenues are exempt under subsection (3)(a), quoted above, because they are taxes imposed to pay off “bonded indebtedness authorized by a specific provision of this Constitution.” City claims that another provision of the constitution, Article IX, section lc, does indeed authorize the urban renewal revenue bonded indebtedness.

Four intervening respondents opposed City’s declaratory judgment action. On cross motions for summary judgment, the Tax Court granted summary judgment to respondents, declaring that the Measure 5 tax rate limitations included property tax revenues dedicated to the repayment of urban renewal bonds, because urban renewal revenue bonds were not “bonded indebtedness authorized by a specific provision of [the Oregon] Constitution.” In re City of Portland, 12 OTR 208 (1992). City filed a direct appeal in this court. ORS 305.445. We affirm the judgment of the Tax Court.

Article IX, section lc, of the Oregon Constitution does set forth a procedure for paying urban renewal indebtedness. It provides:

“The Legislative Assembly may provide that the ad val-orem taxes levied by any taxing unit, in which is located all or part of an area included in a redevelopment or urban renewal project, may be divided so that the taxes levied against any increase in the true cash value, as defined by law, of property in such area obtaining after the effective date of the ordinance or resolution approving the redevelopment or urban renewal plan for such area, shall be used to pay any indebtedness incurred for the redevelopment or urban renewal project. The legislature may enact such laws as may be necessary to carry out the purposes of this section.”

Obviously, the quoted provision makes no mention of bonded indebtedness. It contains no express authorization for incurring indebtedness. Its apparent purpose is to authorize procedures for property tax increment financing of urban renewal projects. The Tax Court opinion described how urban renewal increment financing works:

“In simplified terms, a local government adopts an urban renewal plan to improve a blighted area. Typically, the local government sells bonds to redevelop the blighted area. When the area has been redeveloped, it should have a higher value for property taxation than prior to redevelopment.

“When an urban renewal plan is adopted, the assessor determines and certifies the assessed value of all the taxable property in the urban renewal area as of the assessment date immediately prior to approval of the urban renewal plan. ORS 457.430. This amount becomes the certified or ‘frozen value’ from which the units of local government continue to collect property taxes. Taxes derived from any increase in value over the ‘frozen value’ are dedicated to paying for redevelopment of the area. ORS 457.440(6).^[1]

“Taxes for urban renewal are not levied by an urban renewal agency. Rather, they result from operation of the statutes. ORS 457.440(5)(a) directs the assessor to divide only the frozen value into the total amount of taxes levied by the taxing units to derive a tax rate. Thus, the tax rate is based on a total assessed value which is less than is actually subject to tax. The tax rate is then applied to the entire taxable value, including the value in excess of the frozen value, producing revenues in excess of the amounts levied by the taxing units. The excess is the amount, within certain limitations, dedicated to payment of urban renewal development.” 12 OTR at 211 (footnote omitted).

See generally Dennehy v. Dept. of Rev., 305 Or 595, 598-99, 756 P2d 13 (1988) (describing tax increment financing in similar terms).

A. INTERPRETATION OF SUBSECTION (3) (a) EXEMPTION

We first consider the subsection (3)(a) exemption, which provides that the tax rate limitations ‘ ‘apply to all taxes imposed on property or property ownership except [tjaxes imposed to pay the principal and interest on bonded indebtedness authorized by a specific provision of this Constitution.” The Tax Court concluded that for the urban renewal provision to be “specific” within the terms of the exemption, “it must at least mention bonds or bonded indebtedness.” 12 OTR at 214. Because it concluded that the urban renewal provision did not do so, the Tax Court held that property tax increment revenues were subject to Measure 5’s tax rate limitations. Ibid.

The (3) (a) phrase “authorized by a specific provision of this Constitution” clearly refers to its immediate antecedent, “bonded indebtedness.” Subsection (3)(a) thereby exempts taxes imposed to pay bonded indebtedness only if that bonded indebtedness is “authorized by a specific provision of [the Oregon] Constitution.”

The dissent disagrees on this point and concludes that the phrase “authorized by a specific provision of this Constitution” modifies the words “all taxes imposed.” That conclusion is, however, bebed by the grammar of subsection (3)(a), wherein “authorized” ordinarily would modify its closest noun or noun phrase, “bonded indebtedness.” Moreover, if “authorized” were intended to refer to “taxes,” the provision could have more clearly stated its meaning, by stating, for example: “taxes imposed to pay * * * bonded indebtedness and authorized by a specific provision of this Constitution”; or “taxes authorized by a specific provision of this Constitution and imposed to pay * * * bonded indebtedness.” Finally, reference to the other Measure 5 exception, stated in subsection (3)(b), 314 Or at 182, reveals that it is construed in an exactly parallel manner to the exemption in subsection (3)(a), and that its substitute for the word “authorized” is the word “incurred,” which clearly relates in context to “bonded indebtedness” and not to “taxes.”

In the final analysis, we are convinced that the most usual grammatical reading of subsection (3)(a) and the identical structure of the exemptions in subsections (3) (a) and (3)(b) are the strongest indicators of the voters’ intent. Consequently, we interpret subsection (3) (a) to exempt a tax imposed to pay bonded indebtedness if that bonded indebtedness is authorized by another specific provision of the Oregon Constitution.

Respondents assert that the term “specific provision’ ’ must mean something more than any discrete or identifiable provision, because such a definition would render the word “specific” merely redundant. The something more that they suggest is that a specific authorizing provision means one that expressly authorizes bonded indebtedness. Respondents further assert that the “authorization” required by subsection (3) (a) is a constitutional provision that expressly creates the authority for the bonded indebtedness, such as the provisions in Article XI of the Oregon Constitution that expressly authorize the state to issue bonds for various purposes. Or Const, Art XI-A, XI-E through XI-J.

City asserts that the term “specific provision” means a constitutional provision that expressly or implicitly authorizes bonded indebtedness. City further asserts that “authorized” means “explicitly or implicitly allowed or particularly limited or regulated by the constitution.”

As the positions of the parties demonstrate, the key phrase, “authorized by a specific provision of this Constitution,” contains two separate but related terms that require interpretation, “authorized” and “specific provision.” For the reasons set out below, we interpret the phrase “authorized by a specific provision of this Constitution” to mean that the constitutional provision must explicitly empower or sanction the incurring of bonded indebtedness.

Measure 5 did not use either the phrase “authorized by a provision of this Constitution” or the phrase “authorized by any provision of this Constitution. ’ ’ It used the phrase “authorized by a specific provision of this Constitution.” (Emphasis added.) The adjective “specific” has several common meanings. One is something “specifying, explicit,” The Random House Dictionary of the English Language 1832 (unabridged 1987), or something that is “characterized by precise formulation or accurate restriction,” Webster’s Third New International Dictionary 2187 (unabridged 1976). Another common meaning for “specific” is something “having a special application, bearing, or reference” or “peculiar or proper to * * * something, as qualities, characteristics, effects, etc.” Random House, supra at. 1832.

The first of these definitions fits more naturally into the context of subsection (3)(a), although the second definition is not inconsistent with the first. By requiring that the authorizing provision be explicit, the first definition of “specific” is consistent with the function that subsection (3) (a) performs, which is to identify a category of constitutional provisions that are exempt from the limitations of Measure 5. An explicit provision is one whose meaning and effect are clear and unambiguous, express and not implied. Thus, to the extent that “specific” furthers the categorizing function of subsection (3)(a), it does so by requiring that an exempt provision be clearly identifiable as one that explicitly authorizes bonded indebtedness.

We next consider the word “authorized” in subsection (3)(a). As with the term “specific,” our interpretation of the term “authorized” is more closely in accord with the position taken by respondents. “Authorized” means to give authority or official power, to empower, to formally or duly sanction. See Random House, supra at 139, and Webster, supra at 146, for definitions of “authorized” and “authorize.” The City’s proposed definition — that “authorized” means “explicitly or implicitly allowed or particularly limited or regulated by the constitution” — is a strained definition untethered to the common meaning of the word. We conclude that, in order to qualify as exempt from the limitations of Measure 5 pursuant to subsection (3)(a), an “authorizing” provision must explicitly empower or sanction the incurring of bonded indebtedness.

Earlier in this opinion we stated that one purpose of subsection (3) (a) is to exempt from Measure 5 limitations an identifiable category of constitutional provisions related to bonded indebtedness. A number of such identifiable provisions are in the Oregon Constitution. Although they are not presently financed by property tax revenues (which are the target of Measure 5), there are a variety of state-financed bonds explicitly authorized by provisions of Article XI of the Oregon Constitution. E.g., Article XI-A, and XI-E through XI-J (dealing with veteran loans and higher education, as examples). Those provisions contain explicit language (such as ‘ ‘Bonds issued pursuant to this article * * *,” Or Const, Art XI-F(l), § 4; or “Bonds of the State of Oregon * * * may be issued,” Or Const, ArtXI-F(2), § 1) authorizing the incurring of debt and the issuing of state-financed bonds, that constitutional authorization being necessary to avoid the general prohibition of Article XI, section 7, of the Oregon Constitution, that the “Legislative Assembly shall not lend the credit of the state nor in any manner create any debt or liabilities * * Provisions such as these are “specific provisions” that “authorize” bonded indebtedness within the meaning of subsection (3)(a).

This dovetailing of the common meaning of “authorized” with an explicitly identified range of constitutionally authorized bonded indebtedness for which taxes imposed for repayment would be exempt, leads us to conclude that subsection (3) (a) exempts from Measure 5 limitations taxes imposed to pay for bonded indebtedness if another provision of the constitution explicitly empowers or sanctions the incurring of the bonded indebtedness.²

B. THE MEANING AND EFFECT OF THE URBAN RENEWAL PROVISION

That brings us to the urban renewal provision, Article IX, section lc. The legislature first passed laws in 1957, materially unchanged to the present, authorizing the creation of local urban renewal agencies and generally authorizing them to incur debt and issue bonds. See ORS 457.130 (1957), renumbered ORS 457.035 (creating urban renewal agencies); ORS 457.190(1) (1957) (authorizing an urban renewal agency to “borrow money * * * from any sources, public or private, for the purposes of undertaking and carrying out urban renewal projects”). The 1957 legislature also referred a constitutional amendment to the voters, which failed at the polls in 1958. The identical measure was referred by the 1959 legislature and was enacted at the general election in 1960, Article IX, section lc (the urban renewal provision). Tax increment. financing legislation was enacted in 1961, ORS 457.420 etseq.

The urban renewal provision states that the legislature “may provide” that -property taxes may be divided so that revenues from increases in property values generated in redevelopment or urban renewal projects “shall be used to pay any indebtedness incurred for the redevelopment or urban renewal project.” The provision concludes: “The legislature may enact such laws as may be necessary to carry out the purposes of this section.”

The urban renewal provision relates directly and expressly, by its terms, to the subject of segregating and utilizing property tax increment revenues to pay for “any indebtedness incurred for the redevelopment or urban renewal project. ’ ’ The urban renewal provision states that the legislature “may provide” and “may enact” laws so that any urban renewal debt shall be paid from property tax increment revenues. The provision does not expressly or explicitly state that urban renewal agencies may issue or incur bonded indebtedness.³ Authority to incur the indebtedness arises from ORS 457.190(1).

The 1960 Voters’ Pamphlet is an important resource in establishing the voters’ intent in adopting the urban renewal provision. The ballot title for the measure states:

“FINANCING URBAN REDEVELOPMENT PROJECTS — Purpose: To amend Constitution to permit payment of cost of urban renewal projects from the additional tax revenues resulting from increased valuation of the areas redeveloped.” 1960 Voters’ Pamphlet at 9 (emphasis added).

The statutory citizens’ committee Explanation of the measure states:

“As the ballot title shows, this measure, while it relates to taxation, does not create or authorize the creation of any new or additional taxes. If the measure is approved by the voters, it would permit the legislature to enact a statute authorizing municipalities to set aside the increase in property taxes resulting from the additional value created by an urban renewal redevelopment project. The portion of taxes thus set aside could be used to pay the indebtedness the municipality incurred in undertaking the project.

(C* * * * *

“The proposed constitutional amendment is not self executing. It is a ‘permissive’ measure, not a ‘mandatory’ one. The voters by approving the measure will simply give the state legislature authority to pass such a law. After its passage municipalities would not be required to take advantage of it, but would have the right to do so.” Id. at 9-10 (emphasis added).

The citizens’ committee Explanation makes it clear that the amendment would permit the legislature to enact a law authorizing localities both to engage in tax increment allocation of revenues and to set aside that revenue for the repayment of urban renewal debt. The citizens’ committee Explanation also makes it clear that, if the amendment was approved, the legislature could enact tax increment debt financing laws to retire debt secured by property tax increment revenues.

The legislative committee Explanation of the measure makes the same points, even more forcefully. After stating that the measure “will provide the tools to help municipalities to raise their one-third of the cost” of urban redevelopment projects (with the other two-thirds borne by the federal government), the Explanation states:

“With the plan that is proposed, the amount of money presently received from taxing the property would still be used by the various taxing bodies that receive them. The constitutional amendment only provides that any increase in taxable value — and just the amount of the increase — would be applied toward paying off any indebtedness incurred in the development of the project. * * *

“This is not a self-enacting amendment but will permit the Legislature to pass enabling legislation.” Id. at 10 (emphasis added).

Although neither the measure itself, the ballot title, nor the Voters’ Pamphlet explanations of the measure include the word “bond,” the legislative history of the urban renewal provision establishes that its advocates, the legislature that referred the measure, and the media reporting on the measure understood that the measure related to the use of property tax increment revenues to pay for any urban renewal debt, including urban renewal bonds. See State v. Wagner, 305 Or 115, 131-34, 752 P2d 1136 (1988) (re: sources of legislative history for a referendum); Comment, Tax Increment Financing for Development and Redevelopment, 61 Or L Rev 123, 136-39 (1982) (summarizing the legislative history) .⁴ Bonds secured by project-specific tax revenues pledged as security are commonly referred to as ‘ ‘revenue bonds. ’ ’ See note 4, supra; Black’s Law Dictionary 1319 (6th ed 1990).⁵

Three conclusions follow. First, unlike the explicit state bond authorizing provisions found in Article XI of the Oregon Constitution, the urban renewal provision does not explicitly state that urban renewal agencies are authorized to incur or issue bonded indebtedness. (In fact, the general authority for urban renewal agencies to issue bonds first existed by statute in 1957, three years before the urban renewal provision was enacted.) Second, the urban renewal provision expressly authorizes legislation permitting local governments to set aside and utilize property tax increment revenues to pay for any urban renewal indebtedness. Third, further action by the Legislative Assembly was required. Passage of the urban renewal provision would permit the legislature to enact laws authorizing localities to engage in tax increment allocation of property tax revenues and to incur debt, including bonded debt, for urban renewal projects secured by tax increment property tax revenues set aside for the repayment of the debt. Based on the information available to them, the voters would have been entitled to conclude that, if the amendment were approved, then there would be legislative authority to enact tax increment debt financing laws.

C. THE URBAN RENEWAL PROVISION IS NOT A SPECIFIC AUTHORIZING PROVISION

Having assayed the text of the provision and its history, we turn to the dispositive question: Does the urban renewal provision explicitly empower or sanction the incurring of bonded indebtedness? We hold that it does not. The 1960 amendment empowers or sanctions a particular form of repayment for debt, even including by implication bonded debt, but does not explicitly empower or sanction the incurring of debt or bonded debt itself. Taxes imposed to pay off urban renewal bonded debt do not, therefore, qualify for the exemption from Measure 5 limitations provided by subsection (3) (a).

In reaching this conclusion, we rely significantly on the fact that the urban renewal provision, unlike the exempt state bond authorizing provisions in Article XI, does not state either that “urban renewal agencies may issue bonds and incur bonded debt” or that “urban renewal agencies may issue bonds and incur bonded debt secured by tax increment financing revenues.” The term “bonded indebtedness” does not appear in the urban renewal provision. The term “bonded indebtedness” does not appear in either the 1960 Ballot Title or in any of the statements in the 1960 Voters’ Pamphlet. We also deem it significant that general statutory authority for urban renewal agencies to issue bonds and to incur bonded debt preceded the constitutional amendment by three years. In order to qualify for the exemption provided by subsection (3)(a), a constitutional provision needs to do more than recognize a financing mechanism for the repayment of any debt.

The office of the urban renewal provision was not to authorize indebtedness. It was passed to provide a means of paying for indebtedness, bonded or otherwise, authority for which already existed under ORS 457.190.

The urban renewal provision itself only authorizes legislation. Before any revenue bonds can be issued thereunder, implementing legislation is required. Unlike other Article XI constitutional provisions referred to above, Article IX, section lc, expressly conditions incurring indebtedness on the enactment of laws “to carry out the purposes of this section.” It may be that Article IX, section lc, is the constitutional basis for urban renewal increment financing; but the authority for local governments to incur urban renewal bonded indebtedness is found in a statute, ORS 457.190.

Subsection (3)(b) of Measure 5 also provides direction in interpreting subsection (3)(a). Subsection (3)(b) lists an exemption for taxes imposed to pay for general obligation bonds for capital construction or improvements, provided that the bonds were issued before the passage of Measure 5, or thereafter, but only with specific voter approval. That exemption demonstrates that the drafters knew how to exempt a particular class of local bonds in a focused provision. More significantly, subsection (3)(b) exempts only general obligation bonds, not revenue bonds, and then only those already issued or those issued later with voter approval. Measure 5 did not intend that futuré general obligation bonds be exempt only with voter approval, and that revenue bonds be exempt without voter approval.

One last point. Taking a step back from the wording of the exemption itself, and looking at the entire measure, it would be inconsistent with the overall purpose of Measure 5 to limit property taxes for the entire range of municipal services within its orbit, but then to exclude property taxes for repayment of urban renewal bonds from its coverage. It seems unlikely that Measure 5 intended to limit funding for police, fire, jails, roads, parks, and human services, but to place no limits on spending for urban renewal.

For the foregoing reasons, we agree with the Tax Court that Article IX, section lc, of the Oregon Constitution is not a specific provision authorizing bonded indebtedness and therefore does not qualify for the exemption stated in Article XI, section lib(3)(a), of the Oregon Constitution. Accordingly, the judgment of the Tax Court is affirmed.⁶

[1] 1 City asserts that “[t]he bonds evidence the debt and irrevocably pledge the new property taxes generated by the urban renewal area to pay the debt.”

2 We conclude that tax increment financing revenues are “taxes” within the meaning of subsection (3)(a). 12 OTR at 213. Article XI, section llb(2)(b) defines a “tax” for purposes of Measure 5 to mean “any charge imposed by a governmental unit upon property or upon a property owner as a direct consequence of ownership of that property except incurred charges and assessments for locad improvements.” Property taxes on urban renewal properly clearly are a tax upon property and just as clearly do not fall within the exceptions for incurred charges and assessments for local improvements.

3 Even though the urban renewal provision does not explicitly provide for bonded indebtedness, the term “any indebtedness incurred for the redevelopment or urban renewal project” permits or includes urban renewal bonded indebtedness. See footnote 4, infra, with respect to awareness by the legislature and the voters that the term ‘ ‘any indebtedness incurred for the redevelopment or urban renewal project’ ’ in the urban renewal provision included urban renewal bonded indebtedness.

4 Some of the pertinent legislative history is summarized in Comment, Tax Increment Financing for Development and Redevelopment, 61 Or L Rev 123, 137-39 (1982). Pertinent aspects of the 1960 legislative history include: (1) first and foremost, the 1960 Voters’ Pamphlet, discussed in text at pages 11-12, infra; (2) 1959 legislative consideration of the referendum, which demonstrates that the legislature was aware that “revenue bonds” and the repayment of bonds were contemplated by the measure; (3) media coverage of the measure, which refers to the financing of urban renewal projects and, in an editorial just before the 1960 election, the Oregonian reiterated its support stated on “several past occasions” for the measure which would permit legislation to provide for “the retirement of urban renewal bonds.” SJR 32: Minutes, Senate Committee on Taxation, March 20, 1959; House Committee on Taxation, April 10,1959. The Oregonian, March 23,1959, November 4 and 7,1960; The Statesman, November 6,1960.

Also pertinent, but of more attenuated significance, are the deliberations of the legislature and the voters on the identical measure in 1957 and 1958, respectively. The 1957 legislative process, like the process in 1959, had the same focus on repayment of bonds; the 1958 Voters’ Pamphlet was not materially different from 1960, with the Explanation also stating that “the increase in taxes would be earmarked to retire urban renewalbonds.” 1958 General Election Voters’Pamphlet at 19-20. HJK 36: Minutes, House Committee on Taxation, May 3, 1957; Senate Committee on Taxation, May 18,1957. The media coverage was also similar to two years later, but more pointed, with the Oregonian making the clearest statement just before the election that the measure would “permit Oregon cities to finance redevelopment projects by sale of revenue bonds to be retired out of property tax increments realized as the result of such projects.” The Oregonian, May 14 and 21, 1957, November 3,1958. After the 1958 election, the Oregonian reported that “the self-liquidating proposal for urban renewal revenue bonds * * * received its death blow in Multnomah.” The Oregonian, November 7,1958.

5 Before the publication of the 1960 Voters’ Pamphlet, there is only one direct reference in the legislative history to the need for a constitutional amendment to accomplish the legislative purpose. A representative of the Portland Development Commission testified on the predecessor measure in 1957 that “[i]t seemed advisable to amend [the constitution] to make the bonds which are sold to provide the one-third amount provided locally, more attractive to the bonding companies.” Hearings on HJR 36, House Committee on Taxation, May 3,1957, Minutes at 1.

6 Intervenors Dorothy M. Smith and Peter M. Smith cross-appealed, assigning as error the Tax Court’s denial of their request for attorney fees. Attorney fees are not recoverable in cases such as this. See Dennehy v. Dept. of Rev., 308 Or 423, 427, 781 P2d 346 (1989) (“[T]he Tax Court * * * may, under appropriate circumstances, award attorney fees to taxpayers in personal income tax, gift, and inheritance cases. There is no similar provision concerning appeals involving property tax assessments. Where the legislature has chosen to make attorney fees available in a limited number of situations, it is inappropriate for this court to expand on the legislative decision. The Tax Court had no statutory authority to award attorney fees.” (citations and footnote omitted)).

Moreover, intervenors did not bring this proceeding. True, they intervened. Factually, this case differs from Deras v. Myers, 272 Or 47, 535 P2d 541 (1975), our seminal case in this area.