570 August 28, 2024 No. 595

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

THORIN PROPERTIES LIMITED PARTNERSHIP, 

an Oregon Limited Partnership, and 

Jennings Group, Inc., 

an Oregon corporation,

Plaintiffs-Respondents,

v.

CITY OF EUGENE, 

an Oregon municipal corporation,

Defendant-Appellant.

Lane County Circuit Court

22CV37548; A180847

Erin A. Fennerty, Judge.

Argued and submitted June 3, 2024.

Lauren Sommers argued the cause and filed the brief for 

appellant.

Marcel Gesmundo argued the cause for respondents. Also 

on the brief was Andor Law.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins,

Judge.

KAMINS, J.

Reversed and remanded.
Cite as 334 Or App 570 (2024) 571

KAMINS, J.

Defendant City of Eugene appeals a judgment 

enjoining it from enforcing Eugene Code 8.425(14), an ordinance which imposes a $10 cap on applicant screening fees 

charged by landlords. The trial court enjoined enforcement 

of the ordinance because it concluded that it is preempted by 

the Oregon Residential Landlord and Tenant Act (ORLTA).1

On appeal, the city contends that the trial court erred in 

determining that plaintiffs—a group of owners and managers of residential rental properties in Eugene—have standing to pursue the declaratory action, and in ruling that the 

ordinance is preempted. For the reasons discussed below, we 

conclude that the trial court correctly determined that plaintiffs have standing but erred in concluding that the ordinance is preempted. Accordingly, we reverse and remand.

Plaintiffs filed suit, seeking a declaration that the 

ordinance’s imposition of a $10 screening fee cap is invalid 

and an injunction preventing its enforcement. Plaintiffs 

then moved for partial summary judgment, arguing that 

the ordinance was preempted by an ORLTA provision permitting landlords to charge applicants a fee for application 

screening charges. In response, the city argued that plaintiffs had not established standing nor that the ordinance 

was preempted. The trial court agreed with plaintiffs on 

both points, reasoning that ORLTA “operate[s] to secure a 

landlord’s right to collect an applicant screening charge that 

covers the landlord’s actual screening charge,” and because 

the two laws cannot operate concurrently, the state statute 

preempts the city ordinance. The city timely appealed.

In its first assignment of error, the city contends 

that the trial court erred in granting plaintiffs’ motion for 

partial summary judgment because plaintiffs did not establish that they collect application screening charges and, 

therefore, do not have standing to sue.

We “review a trial court’s grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is 

1 Chapter 90 of the ORLTA was amended in 2024; however, because those 

amendments do not affect our analysis, we refer to the current version of the 

relevant statutes in this opinion.
572 Thorin Properties v. City of Eugene

entitled to judgment as a matter of law.” Towner v. Bernardo/

Silverton Health, 304 Or App 397, 400, 467 P3d 17, rev den, 

367 Or 115 (2020). In determining whether the trial court 

erred in granting summary judgment, “we view the facts 

and all reasonable inferences that may be drawn from them 

in the light most favorable to the non-moving party”—here, 

the city. Id. (internal quotation marks omitted). Whether 

plaintiffs had “standing to bring a declaratory judgment 

action is a legal question, which we review for legal error.” 

Oregon Restaurant and Lodging Assn. v. City of Bend, 313 

Or App 772, 777, 497 P3d 306 (2021).

In order “to have standing to seek a declaration with 

respect to a[n] [ordinance], a plaintiff must show that it has 

a legally recognized interest that is adversely affected by” 

that ordinance. MT & M Gaming, Inc. v. City of Portland, 

360 Or 544, 566, 383 P3d 800 (2016). Specifically, plaintiffs 

must satisfy three requirements: (1) they have a legally recognized interest; (2) the ordinance’s impact on plaintiffs’ 

legally recognized interest is not hypothetical or speculative; and (3) a ruling invalidating the ordinance would 

remedy the harm. Morgan v. Sisters School Dist. No. 6, 353 

Or 189, 195-97, 301 P3d 419 (2013) (setting forth standing 

requirements).

On appeal, the city’s argument focuses on the first 

prong of the standing framework—whether plaintiffs hold 

a legally recognizable interest that is affected by the ordinance. The city contends that plaintiffs do not have a recognizable interest because plaintiffs do not collect an applicant 

screening fee directly from applicants entering into rental 

agreements; rather, a third party collects the fee. See ORS 

90.100(3) (defining “applicant screening charge” as “any payment of money required by a landlord of an applicant prior 

to entering into a rental agreement * * *”). However, plaintiffs produced undisputed evidence—including declarations 

and depositions—to demonstrate that they suffered financial harm due to the screening cap. Specifically, plaintiffs 

Thorin and Jennings Group produced evidence that, since 

the ordinance has gone into effect, they pay their management companies $35 and $50 more, respectively, per applicant screening charge. That financial impact—regardless of 
Cite as 334 Or App 570 (2024) 573

whether it results from a direct collection of funds or through 

a third party’s collection of those funds—is a legally recognized interest. See Oregon Restaurant and Lodging Assn., 

313 Or App at 778-80 (no dispute that the plaintiffs satisfied the first standing prong where an ordinance decreased 

the percentage of total tax revenues that are expended to 

promote tourism, thus financially impacting plaintiffs 

whose businesses depend on tourism). Accordingly, the trial 

court did not err in concluding that plaintiffs had standing 

because they demonstrated a recognized legal interest.

In its second assignment of error, the city contends 

that the trial court erred in ruling that ORLTA preempts 

the ordinance. We review whether the city’s “ordinance is 

a valid exercise of its home rule authority [and] not preempted by state law” for errors of law. City of Corvallis v. 

Pi Kappa Phi, 293 Or App 319, 320-21, 428 P3d 905 (2018). 

Plaintiffs agree that the city had authority to pass the ordinance under principles of home rule, but they contend that 

the ordinance is preempted by ORS 90.295.

ORLTA does not, by its terms, expressly preempt 

local ordinances, so the question is whether it does so by 

implication. Qwest Corp. v. City of Portland, 275 Or App 874, 

883, 365 P3d 1157 (2015), rev den, 275 Or App 874 (2016) (“A 

state law can preempt a municipal law in two ways,” either by 

express preemption or implied preemption.). A state law will 

preempt a municipal law by implication if the two “cannot 

operate concurrently.” Id. (internal quotations marks omitted). To determine whether a state law impliedly preempts a 

local ordinance, we “interpret both [state law] and the [ordinance] to determine if they can function concurrently or if 

they necessarily conflict.” Id. We examine the state statute’s 

“text and context, as well as any legislative history that is 

helpful” to that analysis. Id. And “[w]hen conducting that 

conflict analysis, we must construe the local law, if possible, 

to be intended to function consistently with state laws.” Id.

(internal quotation marks omitted). We begin by discussing 

the ordinance and then the relevant ORLTA provisions.

The Eugene ordinance is part of the “City Rental 

Housing Code,” which, according to the city code, “is to supplement rather than conflict with [ORLTA].” Eugene Code 
574 Thorin Properties v. City of Eugene

8.405. The ordinance provides that “the amount of any applicant screening charge may not exceed the amount of an 

applicant screening charge allowed by ORS 90.295 or $10, 

whichever is less.” The ordinance defines “application screening charge” as “[a]ny payment of money required by a landlord of an applicant prior to entering into a rental agreement 

with that applicant for rental housing, the purpose of which 

is to pay the cost of processing an application for a rental 

agreement for rental housing.” Eugene Code 8.415.

Turning to state law, ORLTA is a comprehensive 

statutory scheme that “regulates and determines rights, 

obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.” 

ORS 90.115. Overall, “the purpose of the ORLTA * ** is to 

protect the public.” Stanton v. Medellin, 308 Or App 376, 387, 

481 P3d 1004 (2021).

ORS 90.140 specifies the types of payments a landlord may require, which, like the Eugene ordinance, include 

an application screening charge. And, as in the Eugene ordinance, an application screening charge is defined as “any 

payment of money required by a landlord of an applicant 

prior to entering into a rental agreement with that applicant for a residential dwelling unit, the purpose of which is 

to pay for the processing of an application for a rental agreement for a residential dwelling unit.” ORS 90.100(3). That 

payment is “solely to cover the costs of obtaining information about an applicant as the landlord processes the application for a rental agreement.” ORS 90.295(1)(a).

A landlord’s ability to collect an application screening charge under ORLTA is not unrestricted. ORS 90.295(2) 

imposes a cap on such charges: “The amount of any applicant 

screening charge must not be greater than the landlord’s 

average actual cost of screening applicants[.]” That statute limits the amount a landlord may charge an applicant 

for a screening, but does not set a specific dollar amount. 

Id.; see also Testimony, House Business Subcommittee on 

Commerce, HB 2968, Apr 12, 1993, at 57:45 (statement of 

John Vanlandingham, Multi-Family Housing Council) (noting that ORS 90.295 does not “set a flat maximum dollar 

figure, because [that] amount varies by regions of the state”).
Cite as 334 Or App 570 (2024) 575

With that context in mind, we conclude that the 

trial court erred in determining that the ordinance is preempted by ORS 90.295(2). ORS 90.295(2) authorizes landlords to charge a screening fee, and the ordinance limits 

that screening fee to $10. A landlord can comply with both 

the state law and the ordinance by not charging more than 

$10 per screening. To be sure, the ordinance implements a 

tight restriction; however, “we are reluctant to assume that 

the legislature, in adopting statewide standards, intended 

to prohibit a locality from requiring more stringent limitations within its particular jurisdiction.” Oregon Restaurant 

Assn. v. City of Corvallis, 166 Or App 506, 511, 99 P2d 518 

(2000). Indeed, we have consistently determined that a local 

ordinance may impose greater restrictions or requirements 

than a state statute without being preempted by it. See 

Schwartz v. Washington County, 332 Or App 342, 359, 550 

P3d 20 (2024) (holding that “[b]ecause a retailer can comply 

with both Oregon’s scheme for [tobacco retail licensure] and 

[Washington County Ordinance] 878’s prohibition on the 

sale and distribution of flavored tobacco and flavored synthetic nicotine products in Washington County by not selling those products in Washington County, compliance with 

both [the county ordinance] and [the state tobacco retail 

licensure statutes] is not ‘impossible.’”); Thunderbird Mobile 

Club, LLC v. City of Wilsonville, 234 Or App 457, 460, 228 

P3d 650, rev den, 348 Or 524 (2010) (concluding that ordinances requiring owners of mobile home parks to obtain a 

closure permit from the city and compensate displaced tenants were not preempted by ORLTA, even though “the ordinances impose[d] greater requirements on owners of mobile 

home parks than mandated by the” state statutes); Oregon 

Restaurant Assn., 166 Or App at 508-09 (concluding that 

a prohibition on smoking in all enclosed public places was 

upheld, notwithstanding the less extensive regulations of 

the Oregon Indoor Clean Air Act). Because compliance with 

both the city ordinance and state law is not impossible, ORS 

90.295(2) does not preempt the ordinance.

Plaintiffs contend that ORLTA contains a “right” for 

landlords to recover the actual cost of applicant screening 

that the ordinance infringes upon. Because ORS 90.295(2) 

“places a limitation” on a landlord’s right to recover “no 
576 Thorin Properties v. City of Eugene

more” than the screening costs, plaintiffs argue that the 

statute “only serves to reinforce the existence” of that right. 

However, nothing in the plain text of ORS 90.295(2) or its 

context or legislative history provided by the parties indicates that a landlord has a right to charge an applicant up 

to the average actual cost of the screening charge; ORS 

90.295(2) only provides that a charge is not permitted to 

exceed the average actual cost. We will not read a right into 

a statute if the text does not support it. Dymock v. Norwest 

Safety Protective Equipment, 334 Or 55, 60, 45 P3d 114 

(2002) (“We decline to read into [the statute] a right that the 

legislature has not chosen to create.” (Citing ORS 174.010.)). 

The legislature can make the policy choice that plaintiffs 

desire—that landlords must be entitled to recoup the entire 

cost of applicant screening—however, the text of the statute 

does not reflect that choice.

In sum, we conclude that the trial court correctly 

determined that plaintiffs had standing, but that it erred in 

concluding that Eugene Code 8.425(14) is preempted by ORS 

90.295(2).

Reversed and remanded.