Cyrus v. Board of County Commissioners

• Decision Date: 18 February 2009
• Docket Number: A133381.,05CV0511MA.,05CV0560ST.
• Citation: 226 Or. App. 1,202 P.3d 274
• Court: Oregon Court of Appeals
• Parties: O. Keith CYRUS and Conida E. Cyrus, husband and wife, Petitioners-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, Respondent-Respondent, and Central Electric Cooperative, Inc., an active Oregon cooperative, Intervenor-Respondent. The Trail Crossing Trust, Petitioner-Appellant, v. Board Of County Commissioners Of Deschutes County, Respondent-Respondent, and Central Electric Cooperative, Inc., an active Oregon cooperative, Intervenor-Respondent.

202 P.3d 274

226 Or. App. 1

O. Keith CYRUS and Conida E. Cyrus, husband and wife, Petitioners-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, Respondent-Respondent, and Central Electric Cooperative, Inc., an active Oregon cooperative, Intervenor-Respondent.

The Trail Crossing Trust, Petitioner-Appellant, v. Board Of County Commissioners Of Deschutes County, Respondent-Respondent, and Central Electric Cooperative, Inc., an active Oregon cooperative, Intervenor-Respondent.

05CV0511MA.

05CV0560ST.

A133381.

Court of Appeals of Oregon.

Argued and Submitted August 13, 2008.

Decided February 18, 2009.

Michael T. Garone, Portland, argued the cause for appellants. With him on the joint opening brief were Donald Joe Willis, Bend, Sara Kobak, Portland, and Schwabe, Williamson & Wyatt, and Michael W. Peterkin, Bend, Brian C. Hickman, and Peterkin & Associates. With him on the joint reply brief were Donald Joe Willis and Schwabe, Williamson & Wyatt, and Michael W. Peterkin, Brian C. Hickman, and Peterkin & Associates.

Martin E. Hansen, Bend, argued the cause for intervenor-respondent. On the brief were Gerald A. Martin, Michael H. McGean, Bend, and Francis Hansen & Martin LLP.

No appearance for respondent.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.

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 P.3d 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 claimant'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 P.2d 1103 (1978), and mootness is part of that inquiry. First Commerce of America v. Nimbus Center Assoc., 329 Or. 199, 206, 986 P.2d 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, 184 P.3d 1109 (citing Yancy v. Shatzer, 337 Or. 345, 349, 97 P.3d 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, 998 P.2d 661 (2000) (quoting Greyhound Park v. Ore. Racing Com., 215 Or. 76, 79, 332 P.2d 634 (1958)); see also Kerr v. Bradbury, 340 Or. 241, 244, 131 P.3d 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, 184 P.3d 1109.

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 `claim[s]' 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, 184 P.3d 1109 (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, 184 P.3d 1109. 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 P.2d 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...