Menges v. BOARD OF COUNTY COM'RS OF JACKSON

Court of Appeals of Oregon

Menges v. BOARD OF COUNTY COM'RS OF JACKSON

609 P.2d 847, 45 Or. App. 797, 1980 Ore. App. LEXIS 2568

CourtCourt of Appeals of Oregon

DecidedApril 14, 1980

Docket78-3111, CA 14406

StatusPublished

Cited by3 cases

This text of 609 P.2d 847 (Menges v. BOARD OF COUNTY COM'RS OF JACKSON) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Menges v. BOARD OF COUNTY COM'RS OF JACKSON, 609 P.2d 847, 45 Or. App. 797, 1980 Ore. App. LEXIS 2568 (Or. Ct. App. 1980).

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Opinion

*799 JOSEPH, P.J.

In our former opinion, in dealing with the appellants’ fourth argument (relating to the homeowners’ evidence of diminished market value of their properties), 44 Or App at 607, 606 P2d at 684 (1980), we relied on appellants’ assertions in their brief about what the Hearings Council did and said. Those assertions were not challenged in respondent’s brief, and we failed to check the record sufficiently to determine whether they were accurate. The respondent city has now filed a Petition for Review, which we treat as a Petition for Reconsideration, in which a conflicting version of "what actually occurred” is presented.

We have now determined that appellants’ assertions and our conclusions based thereon were in error. During the Hearings Council proceeding the appellants had a full opportunity to present whatever evidence and argument they had on the question of the impact of the proposed sewage treatment plant on property values in the area. After the hearing was closed, remarks were made in discussion by one or more members of the council indicating the appellants’ evidence was insufficient. There was no ruling at any time that limited appellants’ presentation.

We therefore withdraw that part of our opinion which dealt with the fourth argument. Appellants did have an unrestricted opportunity for a plenary hearing. What they did not do was persuade the Hearings Council that their evidence proved a diminution of value. No evidence was rejected or excluded, and appellants made no effort to have the hearing continued so that they could obtain more or better evidence.

Because our former opinion reversed the trial court on the point which has now been reviewed to a different conclusion, it follows that the trial court must be affirmed.

Former opinion modified; affirmed.

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*799 JOSEPH, P.J.

In our former opinion, in dealing with the appellants’ fourth argument (relating to the homeowners’ evidence of diminished market value of their properties), 44 Or App at 607, 606 P2d at 684 (1980), we relied on appellants’ assertions in their brief about what the Hearings Council did and said. Those assertions were not challenged in respondent’s brief, and we failed to check the record sufficiently to determine whether they were accurate. The respondent city has now filed a Petition for Review, which we treat as a Petition for Reconsideration, in which a conflicting version of "what actually occurred” is presented.

We have now determined that appellants’ assertions and our conclusions based thereon were in error. During the Hearings Council proceeding the appellants had a full opportunity to present whatever evidence and argument they had on the question of the impact of the proposed sewage treatment plant on property values in the area. After the hearing was closed, remarks were made in discussion by one or more members of the council indicating the appellants’ evidence was insufficient. There was no ruling at any time that limited appellants’ presentation.

We therefore withdraw that part of our opinion which dealt with the fourth argument. Appellants did have an unrestricted opportunity for a plenary hearing. What they did not do was persuade the Hearings Council that their evidence proved a diminution of value. No evidence was rejected or excluded, and appellants made no effort to have the hearing continued so that they could obtain more or better evidence.

Because our former opinion reversed the trial court on the point which has now been reviewed to a different conclusion, it follows that the trial court must be affirmed.

Former opinion modified; affirmed.

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609 P.2d 847, 45 Or. App. 797, 1980 Ore. App. LEXIS 2568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/menges-v-board-of-county-comrs-of-jackson-orctapp-1980.

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