Emmel v. Dlcd
| Decision Date | 05 July 2007 |
| Docket Number | A135136.,M129856. |
| Citation | 213 Or. App. 681,162 P.3d 354 |
| Parties | Wayne EMMEL, Romayne Emmel, and Emmel Brothers Ranch, Petitioners, v. DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT and Department of Administrative Services, Respondents. |
| Court | Oregon Court of Appeals |
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Denise G. Fjordbeck, Senior Assistant Attorney General, FOR MOTIONS.
Daniel L. Cronin, John Day, contra.
Before WOLLHEIM, Presiding Judge, and SCHUMAN and ROSENBLUM, Judges.
Claimants sought $5,505,500 from the state pursuant to ORS 197.352, commonly known as Measure 37, contending that land use regulations reduced the value of their property in Grant County by that amount. The Department of Land Conservation and Development (DLCD) denied their claim on the ground that two of the three claimants are not the owners of the property and that, as to the third claimant, "no state laws enacted or adopted since [that claimant] acquired the subject property restrict the use of the property." Claimants have sought judicial review in the Circuit Court of Grant County and in this court. DLCD, in response, has filed in this court a "Motion to Determine Jurisdiction." We hold that jurisdiction lies in the circuit court of Grant County.
As we explained in Corey v. DLCD, 210 Or.App. 542, 545, 152 P.3d 933 (2007), this court has jurisdiction if the final order resulted from a proceeding "[i]n which the individual legal rights, duties or privileges of specific parties are required by statute or Constitution to be determined only after an agency hearing at which such specific parties are entitled to appear and be heard." ORS 183.310(2)(a)(A). As we also explained in Corey, the principles guiding the determination of whether the Due Process Clause of the Fourteenth Amendment of the United States Constitution required notice and a hearing derive from American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999), as construed by the Oregon Supreme Court in Koskela v. Willamette Industries, Inc., 331 Or. 362, 15 P.3d 548 (2000). Corey, 210 Or.App. at 548-49, 152 P.3d 933. Those principles are summarized as follows.
A person has no constitutionally protected property interest in a government benefit for which the person is making a claim of entitlement; the interest arises only when the entitlement is established. Consequently, the person has no right to a hearing as to the determination of entitlement itself. Once initial entitlement is established, however, a person has a constitutionally protected...
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Bowers v. Whitman
...See Corey v. Dep't of Land Conservation & Dev., 210 Or.App. 542, 152 P.3d 933 (Or.Ct.App.2007); Emmel v. Dep't of Land Conservation & Dev., 213 Or.App. 681, 162 P.3d 354 (Or.Ct.App.2007). However, these cases merely determined whether Plaintiffs were entitled to procedural due process. See ......
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Charles Wiper Inc v. City of Eugene
...merely in the application for Measure 37 benefits, but in the acceptance of the claim for benefits.. Id. at 551; Emmel v. Dept. of Land Conserv. & Dev., 213 Or. App. 681> 682 (2007). Thus, plaintiff's mere application for Measure 37 benefits isinsufficient to create a protectible property i......
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Hood River Valley Residents' Commit. v. Das
... ... Court of a final order issued by respondents Department of Administrative Services (DAS) and Department of Land Conservation and Development (DLCD) that approved a claim by property owners submitted pursuant to ORS 197.352 (Ballot Measure 37). On cross-motions for summary judgment, the circuit ... here concerns questions of both entitlement and the extent of entitlement under Measure 37, this case is distinguishable from our decision in Emmel v. DLCD, 213 Or.App. 681, 683, 162 P.3d 354 (2007) (holding that, where the decision of which judicial review is sought is DLCD's determination ... ...
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