-BUTLER 

LOONEY. P.C.
PO BOX 430
OR 979I8
(541)473-3l ll

 

 

1/16/2020 4:27 PM
2OCVO3130

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MALHEUR

 

THE NICHOLS ACCOUNTING GROUP, Case No.
RC, and NORTH OREGON PROPERTIES, 
LLC, an Oregon Limited Liability Company, COMPLAINT FOR DECLARATORY
JUDGMENT

Plaintiffs, 
ORS Fee: $281.00
vs. 
CLAIM NOT SUBJECT TO MANDATORY
CITY OF ONTARIO, a Municipal ARBITRATION
Corporation of the State of Oregon, 
ORIGINS FAITH COMMUNITY and 
HMCAA Hamey-Malheur Community in 
Action Agency 
Defendants. 


 

Plaintiff, The Nichols Accounting Group, RC, is a professional corporation organized
under the laws of the State of Oregon and Plaintiff North Oregon Properties, LLC is an Oregon
Limited Liability Company and both appear by and through their attorney of record, Dustin A.
Martinsen. to bring suit against the Defendants.

l.

Plaintiffs are entities properly formed under the laws of the State of Oregon and have

standing to sue.
2.

The City of Ontario is an incorporated municipality within the State of Oregon.


Page 1 COMPLAINT FOR DECLARATORY JUDGMENT

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BUTLER 

LOONEY. P.C.

VALEOR9WH8


 

 

3.

Origins Faith Community is a religious non-profit entity formed under the laws of the
State of Oregon.

4.

HMCAA Harney-Malheur Community Action Agency is a public bene?t with members
entity registered under the laws of the state of Oregon.

5.

Upon information and belief, one or all of Defendants have or are receiving funds from
the State of Oregon to build dwelling/residential units for the use of homeless people located in
and around the City of Ontario.

FIRST CAUSE OF ACTION
(Declaratory Judgment)
Violation of Municipal Building Code
6.

Plaintiffs hereby allege and incorporates paragraphs 1 through 5 as though fully set forth
herein.

7.

Upon information and belief, the City of Ontario has permitted the placement of
dwellings/residences on tax lots 5600 and 5700, property owned by the City of Ontario, by one
or more of the Defendants and such is located near Plaintiffs' business.

8.

The City of Ontario has enacted certain building codes for the safety of persons located in
the City of Ontario.

9.

Section of the City of Ontario Municipal Code requires every
dwelling/residential unit to contain:

Page 2 COMPLAINT FOR DECLARATORY JUDGMENT

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DAMzrt7lh

 

BUTLER 

LOONEY. P.C.
PO BOX 430
VALE OR 97918
(541)473-3111

 

 

A room which affords privacy to a person within said room, a water closet and a

lavatory in good working condition. Every dwelling unit shall contain within a

room which affords privacy to a person within said room, a bathtub or shower in

good working condition. Every dwelling unit shall contain a kitchen sink.

10.

The City of Ontario municipal code, Section further requires

all plumbing fixtures shall be connected to a sanitary sewer or an approved private

sewage disposal system. All required plumbing fixtures shall be connected to the

municipal water supply or potable private system.
11.

Upon information and belief, the dwelling/residential units proposed to be located on
land immediately adjacent to Plaintiffs' business do not comply with Chapter 4-5-6 of the City of
Ontario Municipal Building code.

12.
Said chapter of the building code is subtitled ?Sanitation and Health.?
13.

Upon information and belief, the City intends to provide one or more portable lavatories
rather than comply with the building code.

14.

Upon information and belief, the City intends to locate the dwelling/residential units on
said property in the immediate future, and thus no written notice to the City to cease and desist
such activities has been given.

15.

Pursuant to Defendant, City of Ontario's own code, this action will cause a sanitation and
health issue.

16.

The sanitation and health issue will be immediate upon the habitation ofthese dwellings.


Page 3 - COMPLAINT FOR DECLARATORY JUDGMENT

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BUTLER 

LOONEY. P.C.
PO BOX 430
VALE OR 97918
(541)473-3111

 

 

17.

The sanitation and health problem that will likely arise from improperly treated human
sewage, may cause irreparable health issues to Plaintiffs' employees, clients, and all others
within the vicinity of the Defendants? project. This sanitation and health issue will likely cause
irreparable harm to the Plaintiffs' business reputation.

18.

Because immediate and irreparable harm is likely to ensue in this case, an injunction is
sought to enjoin the Defendants from pursuing placement of these dwellings/residences in
violation of the Municipal Building Code.

SECOND CAUSE OF ACTION
(Declaratory Judgment)
Violation of Municipal Zoning Code
19.

Plaintiffs hereby reallege and incorporate paragraphs 1 through 18 as though fully set
forth herein.

20.

The applicable real property where the dwellings/residences shall be located is zoned 1-2
Heavy Industrial Zone.

21.

Chapter 10A-41-05 lists the principal permitted uses for an Heavy Industrial Zone
within the city of Ontario, Oregon.

22.

The principal permitted uses in a heavy industrial zone do not include dwelling units or
residences except that "one dwelling unit, which may be a manufactured home, for a caretaker or
watchman when located on the same site as the principal permitted or conditional use" is

allowed.

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LOONEY. 
po BOX 430
VALE OR 979l8
(541)473-3111

 

 

23.

Chapter lOA-4l-09 of the Ontario, Oregon Municipal Zoning Regulations contains the
expressly prohibited uses within an 1-2 Heavy Industrial Zone within the city of Ontario, Oregon.
24.

Subsection 2 of Chapter 10A-41-09 specifically prohibits "dwellings, manufactured
home, and recreation vehicle parks, except watchman's quarters as provided herein."
25.
Subpart 6 of Chapter 10A-41-09 expressly prohibits "Commercial and residential uses
not speci?cally authorized."
26.
Chapter 10A-41-IO lists commercial conditional uses for Chapter 10A-41-I-2 Heavy
Industrial Zone and Chapter 10A-41-13 lists industrial conditional uses for Chapter 10A-41-I-2.
27.
Neither 10A-41-10 nor include conditional uses for dwellings or residential
purposes.
28.
Chapter 10A-41-I-2 Heavy Industrial Zone regulations do not allow for dwellings or
residential buildings to be located in a Heavy Industrial Zone.
29.
Chapter 10A?O3-45-Building of the Planning and Zoning Code de?nes a building as:
Any structure having a roof or partial roof supported by columns, posts, or walls
for the enclosure of persons, animals, equipment or chattels of any kind. A
residential building, within the meaning of this Title, includes a building enclosed
by a continuous wall, regardless of the existence of un-pierced party walls within
such continuous walls or the existence ofplatted lot line through the area occupied
by such building. A commercial or industrial building may, within the meaning of
this Title, consist of separate buildings where party walls or ownership lines exist
in such a manner as to indicate intent that they be separate buildings. A tent or an
air supported structure is a building for the purpose of this Title.


Page 5 COMPLAINT FOR DECLARATORY JUDGMENT

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BUTLER 

P.C.
PO BOX 430
VALE OR 979l8
(540473-31 ll

 

 

30.

The dwelling/residential structures that Defendants intend to place on the property falls

within the zoning code de?nition of a building.
31.

Chapter - Development Site to be Designated requires:

Every building hereafter erected or modi?ed, or every use established, shall be

located on a development site which has been declared on the application for a

building permit as the site for the proposed use. Such site shall meet the area,

dimension and street frontage requirements of this Title and be adequate in size

and shape to accommodate all proposed structures, yard spaces, off-street parking

and loading, and corner visibility. Only one principal structure may be built upon a

single development site, except as may be otherwise specified in this Title.

32.

Upon information and belief the dwellings/residential structures are buildings for which
no development site has been declared and Defendants intend to place more than one structure
upon the relevant location.

33.

Chapter 10A-05-60 states:

No development site shall be used for a building unless it is served by municipal

water and sewer, unless the Director of Public Works ?nds that providing one or

both such services is impractical at the time of application for a building permit.
34.

Upon information and belief the development site and dwellings/residential buildings are
not served by municipal water and sewer.

35.

Upon information and belief the city of Ontario has granted to the other Defendants some
sort of permit to construct these dwellings/residential buildings in an 1-2 Heavy Industrial Zone
contrary to the municipal zoning requirements.

36.

The Defendants failed to send any written notice concerning this departure from the

Page 6 COMPLAINT FOR DBCLARATORY JUDGMENT

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26
Ill 
P.C.
430
OR 97918
I541H73-31H

 

 

municipal building and zoning codes to Plaintiffs.
the following remedies are prayed for:
I.
An injunction enjoining the Defendants from placing these dwelling/residential buildings

in violation of municipal building and zoning codes:

2.

A declaration that the Defendants will, in fact. be in violation of the municipal building
and zoning codes in the event these dwellings/residential buildings are placed and inhabited as

planned;


3

A declaration that Defendants must cease their efforts to place said dwelling/residential
buildings within the city ofOntario as currently planned; and
4.
For attorney?s fees and costs. along with any other remedies the Court sees fit.
DATED this 4% day ofJanuary, 2020.
BUTLER 8.: LOONEY. PL




.
?:B/stin A. Martinserf 
Of Attorneys for Plaintiffs
PO. Box 430. 292 Main Street South
Vale, OR 97918
Phone: (541) 473?31 11 Fax: (541) 473?3731


 

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