No. 846 September 2, 2026 701
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE STATE OF OREGON
LINCOLN COUNTY, Plaintiff-Respondent,
v.
LINDA S. HETZLER and Thomas Larry Smith,
Defendants-Appellants. Lincoln County Circuit Court 23CV38822; A186811
Marcia L. Buckley, Judge. Argued and submitted May 6, 2026. Russell L. Baldwin argued the cause and filed the briefs for appellants. Also on the reply brief was Baldwin Attorney LLC.
George W. Kelly argued the cause and filed the brief for respondent.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge, and Egan, Judge.* AOYAGI, P. J. Affirmed.
______________
* Lagesen, Chief Judge, vice Pagán, Judge.
702 Lincoln County v. Hetzler
AOYAGI, P. J. Plaintiff Lincoln County (County) brought this action against defendants for declaratory and injunctive relief relating to four yurts and two recreational vehicles (RVs) located on defendants’ 35-acre property that is zoned for timber conservation. The trial court granted summary judgment for the County on all claims. Defendants appeal. For the reasons explained below, we affirm.
Trial court proceedings. In September 2023, the County filed a complaint against defendants alleging that the yurts and RVs on their property were “dwelling units” under the county code and not a “temporary forest labor camp1” as it anticipated defendants would assert; that there were consequently an unlawful number of dwelling units on the property; and that the units had unpermitted electrical and septic connections. The County asked, as relevant here, for declarations that the yurts and RVs were dwelling units, not a temporary forest labor camp; that only one dwelling was legally allowed on the property; that the septic and electrical connections to the yurts and RVs were illegal; and that the foregoing conditions constituted a nuisance. The County also sought injunctive relief, including an injunction requiring the yurts and RVs to be removed and the septic and electrical connections to be disconnected and decommissioned.
Defendants, pro se, filed an answer in October 2023, which they amended in November 2023. Defendants admitted to owning the real property, yurts, and RVs and otherwise denied the allegations, including denying that the yurts and RVs were dwelling units under the code. They raised several counterclaims against the County, the essence of which was that the County lacked authority to regulate temporary forest labor camps and was “misrepresenting other state agency regulations,” particularly those of the Oregon Department of Forestry (ODF) regarding temporary forest labor camps and those of the Oregon Department of Environmental Quality (DEQ) regarding septic standards.
1 The parties have used “temporary forest labor camp,” “temporary forest logging camp,” and “temporary forest camp” interchangeably. For consistency, we use “temporary forest labor camp” throughout this opinion, but it should be noted that the actual declaration uses “temporary forest logging camp.”
Nonprecedential Memo Op: 352 Or App 701 (2026) 703
See Lincoln County Code 1.1375(1)(h) (“[t]emporary forest labor camps limited to the duration of the forest operation requiring the use” are an outright permitted use in the timber -conservation zone).
In December 2023, the County moved for summary judgment on its own claims, filing a legal memorandum and three declarations in support. Defendants filed a legal memorandum in opposition in January 2024, which the court expressly accepted despite its lateness. The County filed a reply in which they pointed out that defendants did not submit any declarations or affidavits with their opposition and again argued that the County was entitled to summary judgment. On February 6, 2024, defendants filed a sur-reply with two affidavits attached, as well as a second amended answer, both without leave of the court. See ORCP 47 C (providing only for a summary judgment motion, opposition, and reply); ORCP 23 A (requiring leave of the court or the consent of the adverse party to file an amended pleading, except that the first amendment is of right if within a certain timeframe).
The trial court held a hearing on the County’s motion on February 13, 2024. It appears that the court was unaware of the unauthorized sur-reply, as it did not mention it when listing the summary judgment filings and later noted that defendants had filed “no declarations or affidavits ” in response to the motion. The court was aware of the second amended answer and declined to consider it, given the lack of leave under ORCP 23 A. After hearing argument, the court granted summary judgment for the County on the County’s claims, concluding that there was no genuine dispute of material fact and that the County was entitled to judgment as a matter of law. It granted all relief requested in the complaint. Two weeks later, the court issued a written order on summary judgment, which lists the filings considered and does not mention the sur-reply.
With the resolution of the County’s claims, only defendants’ counterclaims remained. The County had moved for the counterclaims to be made more definite and certain or, alternatively, stricken. The trial court held a hearing on that motion in May 2024. At the hearing, the court noted 704 Lincoln County v. Hetzler
that only the counterclaims remained at issue and that there would be no further litigation of the County’s claims or any defenses thereto. After the hearing, the court struck some of the counterclaims and ordered the remainder to be made more definite and certain within 30 days.
Defendants then retained counsel, who, in June 2024, filed a “Third Amended Answer with Affirmative Defense and Counterclaims.” The answer purported to raise a new “affirmative defense” of “illegality pursuant to ORCP 19 B.” See ORCP 19 B (requiring certain defenses, including “illegality,” to be pleaded affirmatively in the responsive pleading). The premise of the affirmative defense was that defendants “enjoy statutory immunity” for forest practices and operations and that the County’s “complaint implicitly urges the court to violate” various laws governing their property, including the outright permitted uses on property zoned for timber conservation. Immediately after the affirmative defense were two “counterclaims.” The first “counterclaim ,” titled “Statutory Immunity,” alleged that the County lacked authority to regulate temporary forest labor camps and was misrepresenting ODF and DEQ regulations; that “[o]wners and operators of forest land enjoy statutory immunity from suit for alleged nuisance by local governments”; and that the County was violating various laws by claiming nuisance. The second “counterclaim,” titled “Outright Permitted Use,” alleged that defendants were engaged in “forest practices and operation,” an outright permitted use of their property, and that the yurts were “temporary auxiliary structures” incidental to that use, not “dwellings,” and therefore also permitted outright. In their prayer, as relevant here, defendants asked that the court dismiss the County’s claims with prejudice based on “its want of standing and defendants’ statutory immunity” and declare the yurts and improvements to be an outright permitted use.
The County filed a reply denying the new allegations . It then moved for summary judgment on the affirmative defense and counterclaims, arguing that defendants were trying to relitigate the County’s claims. Defendants opposed the County’s motion and cross-moved for summary judgment. After a hearing, the court granted summary
Nonprecedential Memo Op: 352 Or App 701 (2026) 705
judgment for the County in October 2024. It explained in its letter opinion that defendants’ arguments were contrary to the first summary judgment ruling and the relief already granted to the County, that they appeared to be trying to relitigate the County’s claims, that the court would not change its prior summary judgment ruling, and that the County was therefore “entitled to summary judgment on the affirmative defense and counterclaims made in Defendants’ Third Amended Answer.”
Defendants objected to the ruling, arguing that the first summary judgment ruling was in error because the court failed to consider defendants’ sur-reply and that the court “compounded its error” by granting plaintiff’s second summary judgment motion based on the first ruling “without considering the merits” of defendants’ arguments.
The trial court entered a general judgment for the County in February 2025, attaching its February 2024 order on the first summary judgment motion and its October 2024 letter opinion on the second summary judgment motion. The court also attached, at their request, defendants’ objection to the latter, which it noted was denied by operation of law in December 2024. The court detailed the proceedings leading up to the entry of judgment, including its “refus[al] to reach the merits of defendants’ affirmative defenses and counterclaims” in the third amended answer given the earlier summary judgment ruling. The letter opinion attached to the judgment sets forth the declarations and injunctions requested in the complaint and granted in the first summary judgment order.
First summary judgment ruling. In their first assignment of error, defendants contend that the trial court erred in granting summary judgment for the County, because the County “lacks standing under ORS 30.934 to regulate or litigate defendants’ outright permitted uses as a nuisance.” Defendants confirmed at oral argument that this assignment of error is directed to the first summary judgment ruling , i.e., the grant of summary judgment to the County on the County’s own claims. See ORAP 5.45(3) (“Each assignment of error must identify precisely the legal, procedural, factual, or other ruling that is being challenged.”).
706 Lincoln County v. Hetzler
The plaintiff in a civil action may move for summary judgment “as to all or any part of any claim or defense,” ORCP 47 A, and is entitled to summary judgment if “the pleadings, depositions, affidavits, declarations, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law[,]” ORCP 47 C. “No genuine issue as to a material fact exists if, based on the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” Id.
Here, based on the summary judgment record—
which consisted of the parties’ pleadings and the declarations submitted by the County—the trial court concluded that no genuine dispute of material fact existed and that the County was entitled as a matter of law to the declarations that it was requesting, including that the yurts and RVs were dwelling units, not a temporary forest labor camp, and exceeded the number of dwellings allowed on the property. On appeal, defendants claim that that ruling was in error, making a variety of arguments as to why the yurts and RVs should be considered a temporary forest labor camp, rather than dwellings, and thus an outright permitted use with which the County cannot interfere.
As a preliminary matter, we disagree with defendants ’ assertion that they are free to make arguments to us that were not made to the trial court in opposing the first summary judgment motion because “standing” issues may be raised at any time. See Yancy v. Shatzer, 337 Or 345, 349, 97 P3d 1161 (2004) (standing is an issue of justiciability); Beck v. City of Portland, 202 Or App 360, 366, 122 P3d 131 (2005) (questions of justiciability may be raised at any time). The crux of the parties’ dispute has always been a disagreement as to whether the yurts and RVs are “dwelling units,” which the County has authority to regulate, or, conversely, a “temporary forest labor camp,” which is an outright permitted use. The County has never claimed a right to regulate outright permitted uses. Although defendants frame their arguments in terms of “standing,” that is a misnomer, as
Nonprecedential Memo Op: 352 Or App 701 (2026) 707
they are really arguments about the merits of the County’s claims, not justiciability. As we have explained:
“The term [‘standing’] is sometimes used (imprecisely) to refer to the question whether a particular plaintiff falls within the ambit of a statutory, constitutional, or contractual provision. Such situations raise issues of interpretation , not issues of justiciability. More properly, ‘standing’ as an aspect of justiciability refers to the question whether the plaintiff will be substantially and practically affected by a decision in the case; if not, then the plaintiff has no ‘standing ,’ that is, no right to ask the court to decide the issue in the first instance. A case will be nonjusticiable due to lack of standing if the plaintiff has merely an abstract interest in the correct application of the law.”
Advanced Drainage Systems, Inc. v. City of Portland, 214 Or App 534, 538, 166 P3d 580 (2007) (citation omitted).
The County clearly has standing, because there is no question that a decision on the merits—that is, a decision that the yurts and RVs are or are not “dwelling units” and do or do not exceed the number of dwelling units permitted on the property—has a practical effect on its legal rights and duties, precisely because the County has authority to regulate dwelling units. See id. (“[B]ecause a decision in the case would have a direct and practical effect on plaintiff ’s legal rights and duties, plaintiff clearly has ‘standing’ for purposes of justiciability.”). It follows that the normal rules of preservation apply, notwithstanding defendants’ use of the term “standing” in their arguments. See id. at 538-39 (concluding that we could not consider for the first time on appeal a constitutional argument that was not a true “standing” argument). Under those rules, defendants are incorrect to assert that issues raised in connection with different motions are preserved for purposes of challenging the ruling on the first summary judgment motion.2 With that in mind, we reject the first assignment of error. Based on the evidence presented and arguments 2 In their reply brief, defendants assert that “[d]efendants’ immunity and plaintiff’s lack of standing were fully litigated below by their motion for judgment on the pleadings, cross motion for summary judgment, and in opposition to plaintiff ’s second motion for summary judgment”—and that those issues are therefore preserved as relevant to the ruling on the first motion for summary judgment, even if not raised in opposing the first motion for summary judgment.
708 Lincoln County v. Hetzler
made by the parties in litigating the first summary judgment motion, the trial court did not err in granting summary judgment for the County on the County’s claims—or at least not in any way identified by defendants. That is, on the record before it, the trial court did not err in concluding that there was no genuine dispute of material fact, that the undisputed facts proved the County’s claims, and that the County was therefore entitled to judgment as a matter of law, including declarations that the yurts and RVs are dwelling units, not a temporary forest labor camp; that only one dwelling is legally allowed on the property; that the septic and electrical connections to the yurts and RVs are illegal ; and that the foregoing conditions constitute a nuisance.
Not considering the unauthorized sur-reply. In their second assignment of error, defendants argue that the trial court erred in granting the County’s first summary judgment motion without considering the affidavits attached to defendants’ sur-reply. That argument is unavailing. ORCP 47 C provides only for a motion, opposition, and reply. A party has no right to file a sur-reply in connection with a summary judgment motion. Although the trial court may have had authority to specially authorize a sur-reply, defendants never sought leave to file one, nor did the court grant it. It appears that the court may not have even been aware of the unauthorized sur-reply until long after it ruled on the first summary judgment motion. In any event, if and when the sur-reply did come to the court’s attention, the court was entitled to disregard it, just as it disregarded the unauthorized second amended answer that defendants filed at the same time. We reject any suggestion that the court had to formally strike an unauthorized filing from the docket to be allowed to disregard it. The trial court did not err by considering only the permitted filings in ruling on the first summary judgment motion.
Not reconsidering the first summary judgment ruling . In their third assignment of error, defendants assign error to the trial court “failing to consider whether it had previously erred” in determining that the yurts are dwellings . We understand this assignment of error to be directed to the second summary judgment ruling, in which the trial
Nonprecedential Memo Op: 352 Or App 701 (2026) 709
court declined to reconsider its first summary judgment ruling . The problem for defendants is that the court was under no obligation to reconsider its prior ruling. See Dew v. City of Scappoose, 208 Or App 121, 130, 145 P3d 198 (2006), rev den, 342 Or 416 (2007) (recognizing the discretionary nature of reconsideration); Citizens Valley Bank v. Mueller, 63 Or App 152, 156, 662 P2d 792 (1983) (similar). The court cannot be said to have committed reversible error in refusing to effectively set aside its prior summary judgment ruling and relitigate the County’s claims.
Second summary judgment ruling. In their fourth assignment of error, defendants argue that the trial court “erred by failing to address defendants’ affirmative defense (illegality) and counterclaim” in granting the County’s second summary judgment motion. We disagree. As explained in the October 2024 letter opinion, defendants’ new affirmative defense and so-called “counterclaims” were directly at odds with the first summary judgment ruling and would require relitigation of the County’s claims, which had already been resolved. The court did not have to allow relitigation of decided claims, as already discussed, and therefore did not err in granting summary judgment to the County on the new affirmative defense and repleaded “counterclaims.” In the judgment, the court described itself as “refusing to reach the merits of defendants’ affirmative defenses and counterclaims” given its earlier summary judgment decision . In context, we understand that to mean only that the court had already ruled on the merits of the County’s claims and that it would not revisit the merits of those claims to address a new affirmative defense or purported “counterclaims .” That was not error.3 Denying defendants’ objection. Defendants’ final assignment of error challenges the trial court’s “failing and refusing to enter special findings of fact and conclusions of law consistent with those proposed by defendants on the court’s failure to apply statutory immunity granted by the legislature under the Oregon Forestry Practices Act.” This
3 The trial court potentially could have dismissed the new affirmative defense and repleaded counterclaims on procedural grounds, instead of granting summary judgment, but it is a distinction without a difference in this case.
710 Lincoln County v. Hetzler
assignment of error pertains to the objection filed by defendants regarding the October 2024 letter opinion. That objection was akin to another request for reconsideration of the first summary judgment ruling. Again, the court was not required to reconsider its first summary judgment ruling. We reject the fifth assignment of error.
Affirmed.