Cyrus v. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES

202 P.3d 274, 226 Or. App. 1, 2009 Ore. App. LEXIS 82

• Court: Court of Appeals of Oregon
• Decided: February 18, 2009
• Docket: 05CV0511MA, 05CV0560ST; A133381
• Status: Published

Opinions

BREWER, C. J.

This case arises out of consolidated writ of review proceedings involving O. Keith Cyrus and Conida E. Cyrus and The Trail Crossing Trust (petitioners), and Central Electric Cooperative (CEC). Petitioners initiated the writ of review proceedings to challenge an order issued by the Deschutes County Board of Commissioners that approved a claim filed by CEC under Ballot Measure 37, codified as ORS 197.352 (2005). CEC sought just compensation under Measure 37 or a waiver of certain land use regulations that Deschutes County applied to CEC’s utility easements. The board of commissioners waived the land use regulations, and the circuit court affirmed the majority of the board’s order.¹

Petitioners then appealed the circuit court judgment, contending that CEC was not entitled to relief under Measure 37 for a number of reasons, including that CEC did not acquire the easements at issue until 2001 and that the electric cooperative was a public entity not entitled to relief under Measure 37. While petitioners’ appeal was pending in this court, the voters passed Ballot Measure 49, which amended Measure 37 and added provisions that altered the claims and remedies available to landowners whose property values were adversely affected by land use regulations. Or Laws 2007, ch 424, § 4, renumbered as ORS 195.305.

In the aftermath of Measure 49, CEC filed a motion to dismiss petitioners’ appeal on the ground that Measure 49, as construed in Corey v. DLCD, 344 Or 457, 184 P3d 1109 (2008), rendered the appeal moot. Petitioners opposed that motion, arguing that there was a dispute between the parties as to whether CEC had acquired “vested rights” under subsection 5(3) of Measure 49, which provides that a claimant who filed a claim under Measure 37 is entitled to just compensation as provided in

“[a] waiver issued before the effective date of this 2007 Act to the extent that the claim ant’s use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act to complete and continue the use described in the waiver.”

According to petitioners, it is undisputed that CEC has already constructed a power line on the easements at issue; for that reason, a determination of the validity of the Measure 37 waiver will have a practical effect on their rights, because CEC can only have a common-law vested right if its development was done with a valid waiver. For the reasons that follow, we agree with CEC’s contention that the case is moot.

This court has an independent obligation to determine whether a case is “justiciable,” Oregon Medical Association v. Rawls, 281 Or 293, 296, 574 P2d 1103 (1978), and mootness is part of that inquiry. First Commerce of America v. Nimbus Center Assoc., 329 Or 199, 206, 986 P2d 556 (1999) (explaining that mootness is a “species of justiciability”). “If it becomes clear in the course of a judicial proceeding that resolving the merits of a claim will have no practical effect on the rights of the parties, this court will dismiss the claim as moot.” Corey, 344 Or at 465 (citing Yancy v. Shatzer, 337 Or 345, 349, 97 P3d 1161 (2004)). For example, a case no longer has a practical effect on or concerning the rights of the parties when “an event occurs that £render[s] it impossible for the court to grant effectual relief.’ ’’Hamel v. Johnson, 330 Or 180, 184, 99 P2d 661 (2000) (quoting Greyhound Park v. Ore. Racing Com., 215 Or 76, 79, 332 P2d 634 (1958)); see also Kerr v. Bradbury, 340 Or 241, 244, 131 P3d 737 (2006) (the judicial power under Article VII (Amended), section 1, does not extend to advisory opinions).

Here, the parties agree — as do we — that the beginning point for analyzing the question of mootness with respect to a Measure 37 claim is the Supreme Court’s decision in Corey. The issue on review in Corey was whether the Court of Appeals or the circuit court had jurisdiction to review a final order of the Department of Land Conservation and Development (DLCD) respecting the plaintiffs’ Measure 37 claim. As a threshold matter, however, the Supreme Court considered “whether resolution of the jurisdictional question that DLCD brought to us can have any practical effect on the rights of the parties.” 344 Or at 464.

To answer the predicate question of justiciability, the court first examined the scope and effect of Measure 49:

“An examination of the text and context of Measure 49 conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners. As noted, section 5 of Measure 49, set out above, provides that claimants who filed ‘claimfs]’ under ORS 197.352 before Measure 49 became effective (i.e., Measure 37 claimants), are entitled to ‘just compensation’ as provided in designated provisions of Measure 49. Subsection 2(2) of Measure 49 defines ‘claim’ to include any ‘written demand for compensation filed under * * * ORS 197.352,’ including those filed under the version of the statute that was ‘in effect immediately before the effective date of [Measure 49].’ That definition establishes that Measure 49 pertains to all Measure 37 claims, successful or not, and regardless of where they are in the Measure 37 process. Subsection 2(13) then defines ‘just compensation’ purely in terms of Measure 49 remedies, i.e., ‘[r]elief under sections 5 to 11 of this 2007 Act for land use regulations enacted on or before January 1, 2007,’ and ‘[r]elief under sections 12 to 14 of this 2007 Act for land use regulations enacted after January 1, 2007.’ At the same time, section 4 of Measure 49 extensively amends ORS 197.352 (2005) (Measure 37) in a way that wholly supersedes the provisions of Measure 37 pertaining to monetary compensation for and waivers from the burdens of certain land use regulations under that earlier measure.

“A statement of legislative policy at section 3 of Measure 49 confirms that the legislature intended to create new forms of relief in place of the ones available under Measure 37: ‘The purpose of sections 4 to 22 of this 2007 Act and the amendments to Ballot Measure 37 (2004) is to modify Ballot Measure 37 (2004) to ensure that Oregon law provides just compensation for unfair burdens while retaining Oregon’s protections for farm and forest uses and the state’s water resources.’ ”

Id. at 465 (emphasis added; original emphasis omitted).

Despite the legislature’s intent to displace Measure 37 remedies, the plaintiffs in Corey contended that, under subsection 5(3) of Measure 49, they were entitled to “just compensation.” In their view, “once DLCD concluded that post-acquisition land use regulations had reduced the fair market value of their property and granted relief in the form of a waiver, they had a constitutionally protected ‘property right’ in that waiver * * * — i.e., a vested right.” Id. at 466. The plaintiffs further argued that “the waiver that DLCD granted under Measure 37 is the equivalent of rights obtained under a judgment granting a monetary award, and is vested in the sense that it cannot be diminished by legislative action.” Id.

The Supreme Court expressed doubt as to the Corey plaintiffs’ “vested rights” argument on a number of scores:

“[P]laintiffs fail to confront the entire wording of subsection 5(3). The ‘vested right’ that that subsection requires is a ‘common law vested right * * * to complete and continue the use described in the waiver.’ It is clear from text and context alone that that phrase is referring to broadly applicable legal precedents describing a property owner’s rights when land use laws are enacted that make a partially finished project unlawful. See, e.g., Clackamas Co. v. Holmes, 265 Or 193, 197, 508 P2d 190 (1973) (describing ‘vested rights’ in those terms). But plaintiffs have made no claims that they have partially completed any ‘use described in the waiver’ that they received.

“To the extent that plaintiffs wish to assert that the scope of subsection 5(3) is any broader, then Measure 49 provides plaintiffs with an opportunity to assert that claim, and a forum in which they may assert it. The same is true of any other objections that plaintiffs have to the effects of Measure 49. In short, this is a Measure 37 case, and we confine our substantive discussion to that legislation.”

Id. (emphasis in original).

The court then clarified the scope of its holding:

“In the end, we hold only that plaintiffs’ contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers — all orders disposing of Measure 37 claims — of any continuing viability, with a single exception that does not apply to plaintiffs’ claim. Thus, after December 6,2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. It follows that resolution of the issue that the Court of Appeals decided in Corey and as to which we allowed review — whether the Court of Appeals or the circuit court has jurisdiction to review DLCD’s final order respecting plaintiffs’ Measure 37 claim — can have no practical effect upon the parties: If the order at issue has no continuing legal effect, then neither party can gain anything from review in either forum. The case is moot.”

Id. at 466-67 (emphasis in original).

According to petitioners, this case is distinguishable from Corey — and, therefore, justiciable — because CEC has partially completed construction of a transmission line, the use described in its Measure 37 waiver. In petitioners’ view, a determination by this court regarding the validity of the underlying Measure 37 waiver will have a practical effect on the rights of the parties, because a valid Measure 37 waiver is a prerequisite to any “vested right” under subsection 5(3) of Measure 49.

We acknowledge that this case presents a different issue from Corey, for the reason that petitioners cite. In Corey, the plaintiffs “made no claims that they ha[d] partially completed any ‘use described in the waiver’ that they received.”Id. at 466. Here, by contrast, there appears to be no dispute that CEC has at least partially completed a use described in the waiver. That distinction notwithstanding, in our view, dismissal of this case as moot is compelled by the Supreme Court’s construction of Measure 49 in Corey.

Corey, as set out above, held that Measure 49 was intended “to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.” 344 Or at 465. In short, a decision under Measure 37 — valid or not — no longer governed the rights and obligations of the parties in Corey because the plaintiffs’ entitlement to “just compensation,” if any, was governed by Measure 49. 344 Or at 467 (“Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in [Corey] had no legal effect. * * * If the order at issue has no continuing legal effect, then neither party can gain anything from review in either forum. The case is moot.” (Emphasis in original.)).

Thus, Corey turned on the proposition that “Measure 49 by its terms deprives Measure 37 waivers — and all orders disposing of Measure 37 claims — of any continuing viability, with a single exception that does not apply to plaintiffs’ claims.” 344 Or at 466-67 (emphasis in original). The “single exception” identified in Corey, of course, is subsection 5(3) of Measure 49; that is, the only circumstance in which a Measure 37 waiver has “continuing viability,” is when a claimant has vested rights under subsection 5(3) of Measure 49.

Even so, Corey indicates that any entitlement to “just compensation” under Measure 49 — including under subsection 5(3), the “vested rights” provision — must be decided under Measure 49 rather than on appeal of a Measure 37 claim. Although the Corey court initially rejected the plaintiffs’ contention that they had acquired a “vested right” under subsection 5(3),² the court expressly declined to address any additional arguments that the plaintiffs were entitled to “just compensation” under Measure 49 by way of a broader reading of subsection 5(3). Instead, the court reasoned that Measure 49 “provides plaintiffs with an opportunity to assert that claim [regarding the scope of subsection 5(3)], and a forum in which they may assert it.” 344 Or at 466. For that reason, the court expressly confined its “substantive discussion” to Measure 37.³

The fact that the Supreme Court expressly declined to resolve plaintiffs’ entitlement to just compensation under subsection 5(3) — the “vested rights” provision — is significant. In effect, the Corey court recognized that, regardless of whether it agreed with the plaintiffs’ broad “vested rights” theories under subsection 5(3), the Measure 37 waiver at issue had “no continuing legal effect,” in part because any relief under that subsection of Measure 49 would need to be litigated under that statute in another forum. 344 Or at 466. In fact, the court specifically recognized that the plaintiffs had another “opportunity” and “forum” to assert claims to “just compensation” under subsection 5(3) of Measure 49, despite the court’s earlier, general discussion of the meaning of that subsection. Id.

Although it is not entirely clear from Corey — or, frankly, from the text of Measure 49 itself — in what “forum” the voters intended the subsection 5(3) “vested rights” determination to take place,⁴ CEC and petitioners would appear to have, at the very least, the ability to seek declaratory or injunctive relief concerning CEC’s rights under Measure 49. See ORS 28.010 to 28.160; see also ORS 215.185(1) (providing that a person whose interest is or may be affected by an unlawful structure or land use may “in addition to other remedies provided by law, institute injunction, mandamus, abatement, or other appropriate proceedings to prevent, temporarily or permanently enjoin, abate, or remove the unlawful location, construction, maintenance, repair, alteration, or use”).⁵

Moreover, we are not aware of anything in Measure 49 that would prevent CEC or petitioners from litigating the validity of the Measure 37 waiver as part of a separate proceeding to determine CEC’s rights under Measure 49, whether that proceeding is at the local level or in a circuit court. Likewise, because this case became moot before the parties had an opportunity to conclusively litigate the merits of the waiver, the parties would not be precluded from again litigating its validity in a subsequent proceeding to establish CEC’s rights under Measure 49, to the extent that the issue arises. See Drews v. EBI Companies, 310 Or 134, 139-40, 795 P2d 531 (1990) (claim and issue preclusion require that the initial action or issue be “finally” adjudicated). Thus, whether the validity of the Measure 37 waiver is litigated at the local level, in a declaratory relief action, or otherwise, it is our understanding that the parties have an opportunity in another forum to make the same arguments that they have made in this case — as well as additional arguments — under Measure 49, the statute that now governs CEC’s rights.

Given that any entitlement to just compensation based on a “vested rights” theory must be finally adjudicated under Measure 49, Corey, 344 Or at 466, it becomes apparent that this court’s determination regarding the validity of CEC’s Measure 37 waiver — the issue presented in this appeal — would not affect the rights and obligations of the parties. See Hamel, 330 Or at 184 (case must be dismissed as moot if it is impossible for the court to grant “effectual relief’). A decision by this court would not give CEC any effectual relief, because even a valid Measure 37 waiver does not, by itself, have any “continuing viability.” That is, a Measure 37 waiver has continuing legal effect only to the extent that a property owner can establish a “common law vested right on the effective date of [Measure 49] to complete and continue the use described in the waiver.” Thus, our determination regarding the validity of the Measure 37 waiver, standing alone, is not sufficient to give CEC any rights to complete or continue the use of the transmission line under Measure 49.

Conversely, even if this court were to conclude that CEC’s waiver was somehow defective, nothing would prevent CEC from seeking “just compensation” under a “broader” construction of subsection 5(3) of Measure 49 in a separate proceeding. Corey, 344 Or at 466 (explaining that, in a separate proceeding, Measure 37 claimants could pursue a broader construction of “vested rights” as used in subsection 5(3) of Measure 49). That is not to say that a Measure 37 claimant would prevail under such a theory; it is simply to say that this court’s decision regarding the validity of a Measure 37 waiver does not resolve the parties’ respective rights and obligations under Measure 49, the statute that now governs them.⁶

We recognize that the question before us is a close one, complicated by the unique nature of Measure 49 and the fact that it does not set out an explicit procedural path for claimants seeking to establish a vested right under subsection 5(3). We also appreciate petitioners’ desire to obtain answers in this case that could resolve issues likely to arise (or that have already arisen) in other litigation under Measure 49. Although the issue is not free from doubt,⁷ we simply are not convinced that those potential collateral effects are sufficient to allow this court to issue what is, at its core, an advisory opinion regarding an issue that is to be properly decided under another statute in another forum. See PGE v. Int’l Brotherhood of Electrical Workers, 206 Or App 662, 667, 138 P3d 857, adh’d to as modified on recons, 209 Or App 77, 146 P3d 333 (2006) (fact that leaving the trial court’s judgment in place “may prevent defendant from arbitrating future grievances similar to the ones at issue here” is not a “practical effect” that saves the case from mootness) (citing Kerr, 340 Or 241). In light of Measure 49, the trial court’s judgment regarding the validity of the Measure 37 waiver is not, strictly speaking, the source of any practical effects on the rights of the parties. See Houston v. Brown, 221 Or App 208, 211, 190 P3d 427 (2008) (recognizing that an “implicit predicate” to any exception to the mootness doctrine for “collateral consequences” is that “the gravamen of the underlying action that results in the judgment or order on appeal must be the source of the collateral consequences”). Said another way, if the trial court’s judgment regarding the validity of CEC’s Measure 37 waiver is left undisturbed by this court, the parties’ rights will not be prejudiced; rather, the parties will be left to argue in another forum whether CEC is entitled to “just compensation” under Measure 49.

In sum, Corey teaches, first, that a Measure 37 order has “continuing viability” only where a Measure 37 claimant can establish “vested rights” under subsection 5(3) of Measure 49, and, second, that a final determination as to whether a Measure 37 claimant has established those rights must occur in a separate proceeding under Measure 49. Consequently, a determination by this court as to the validity of the underlying waiver will not conclusively resolve the merits of any claim to just compensation under Measure 49, and an opinion by this court concerning the validity of CEC’s Measure 37 claim is nothing more than an advisory opinion regarding CEC’s rights under Measure 49. For those reasons, we conclude that, despite any differences between this case and Corey, the same result obtains in both. The issue before this court arises under Measure 37; CEC’s entitlement to “just compensation,” if any, now depends entirely on Measure 49. Because CEC’s development rights no longer derive from Measure 37 but, rather, from Measure 49, a decision regarding the validity of the Measure 37 waiver in this case will have no practical effect on the rights and obligations of the parties; rather, those rights and obligations must be adjudicated under a different statute in a separate proceeding.

As a final matter, we emphasize the limited nature of our holding. We are not adjudicating any of CEC’s rights under Measure 37 or Measure 49. Rather, we hold only that CEC’s right to “just compensation” under Measure 49, which may include issues regarding the validity of the Measure 37 waiver, must be decided under Measure 49 in the first instance, in a forum in which effectual relief can actually be granted under the governing statute.

Appeal dismissed as moot.

1 The circuit court remanded a portion of the order for a correction of the legal description of the property at issue.

2 In doing so, the court concluded from the “text and context alone” that “vested rights” under Measure 49 refers to Holmes and other “broadly applicable legal precedents * * 344 Or at 466.

3 Later in the opinion, the court returned to the notion that the Corey plaintiffs’ rights under Measure 49 could be asserted in a different forum. The plaintiffs in Corey contended that the case was justiciable under ORS 14.175 because it was “likely to evade judicial review in the future.” The court rejected that argument on the ground that “ORS 14.175 does not present a basis for review in this case, because, as we already have observed, plaintiffs can pursue their claim pursuant to the procedure set out in Measure 49, including any assertion that Measure 49 acts on them in an unconstitutional way.” 344 Or at 467 (emphasis added).

4 Sections 6, 7, and 9 of Measure 49 provide a forum and procedural path for those claimants who elect remedies under those sections of Measure 49. As far as we can tell, subsection 5(3) does not specify a particular procedural path for a “vested rights” determination. Presumably, regardless of what “forum” the voters and the Corey court envisioned, Measure 49 provides CEC with that same “forum” and “opportunity” to challenge the effects of that measure and to assert a broader understanding of the relief available under subsection 5(3).

5 ORS 215.185(1) provides:

“In case a building or other structure is, or is proposed to be, located, constructed, maintained, repaired, altered, or used, or any land is, or is proposed to be, used, in violation of an ordinance or regulation designed to implement a comprehensive plan, the governing body of the county or a person whose interest in real property in the county is or may be affected by the violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement, or other appropriate proceedings to prevent, temporarily or permanently enjoin, abate, or remove the unlawful location, construction, maintenance, repair, alteration, or use. When a temporary restraining order is granted in a suit instituted by a person who is not exempt from furnishing bonds or undertakings under ORS 22.010, the person shall furnish undertaking as provided in ORCP 82 A(l).”

6 We express no opinion on whether a “valid” Measure 37 waiver is a prerequisite to the acquisition of “vested rights” under Measure 49, as petitioners contend. We simply note that, although Measure 49 does not specifically refer to a “valid” waiver, Holmes and other Oregon cases concerning “vested rights” appear to presume that development was “lawful” when it was undertaken — an issue that the concurrence explores in more detail. 226 Or App at 15-17 (Sercombe, J., concurring). See Holmes, 265 Or at 196-97 (explaining that “vested rights” permit a property owner to complete construction on a nonconforming use, and describing a nonconforming use as “one which lawfully existed prior to the enactment of a zoning ordinance and which may be maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area”).

7 Compare State v. Snyder, 337 Or 410, 419, 97 P3d 1181 (2004) (concluding that, even though the defendant was no longer challenging his conviction, the Court of Appeals “construction and application of the DUII statutes will be controlling on trial courts, the state, and future defendants!,]” thereby having a “practical effect” on the state); and id. (citing Hart v. Paulus, 296 Or 352, 357-58, 676 P2d 1384 (1984), for the proposition that the “ ‘possibility’ that [a] court decision ‘may affect respondent’s future action’ meant case was justiciable despite argument that decision would have no ‘practical consequence’ ”), with Brumnett v. PSRB, 315 Or 402, 407, 848 P2d 1194 (1993) (the “mere possibility that the state might seek such an order [requiring the petitioner to pay for the cost of his care] at some future date is not sufficient to make dismissal inappropriate,” where the state had “not said that it intendfed] to seek any reimbursement from petitioner”), and State v. Smith, 223 Or App 250, 252, 195 P3d 467, 468 (2008) (“[T]he mere possibility of [a future criminal proceeding] occurring is not enough to cause a decision in this case [involving a probation violation that could affect a future criminal history score] to have any practical effect on defendant’s rights.”).