Kleikamp v. Board of Commissioners of Yamhill County

• Decision Date: 11 December 2019
• Docket Number: A164255
• Parties: T. J. KLEIKAMP, individually and Friends of Yamhill County, an Oregon nonprofit corporation, Plaintiffs-Respondents Cross-Respondents, and State of Oregon, by and through the Department of Land Conservation and Development, Intervenor-Respondent Cross-Respondent, v. BOARD OF COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation, Defendant-Appellant Cross-Respondent, and Steven Gregg and Thomas Gregg, Defendants Cross-Appellants, and Donald Greggssi, an individual, Intervenor-Appellant Cross-Respondent.
• Court: Oregon Court of Appeals

301 Or.App. 275

455 P.3d 546

T. J. KLEIKAMP, individually and Friends of Yamhill County, an Oregon nonprofit corporation, Plaintiffs-Respondents Cross-Respondents,andState of Oregon, by and through the Department of Land Conservation and Development, Intervenor-Respondent Cross-Respondent,

v. BOARD OF COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation, Defendant-Appellant Cross-Respondent,andSteven Gregg and Thomas Gregg, Defendants Cross-Appellants,andDonald Greggssi, an individual, Intervenor-Appellant Cross-Respondent.

A164255

Court of Appeals of Oregon.

Argued and submitted July 13, 2018.

December 11, 2019

Timothy S. Sadlo, Portland, and T. Beau Ellis argued the cause for appellants-cross-respondents Donald Gregg and Board of Commissioners of Yamhill County. Also on the joint briefs was Vial Fotheringham LLP.

Edward H. Trompke, Lake Oswego, argued the cause for cross-appellants Steven Gregg and Thomas Gregg. Also on the briefs was Jordan Ramis PC.

Ralph O. Bloemers argued the cause and filed the brief for respondents-cross-respondents T. J. Kleikamp and Friends of Yamhill County.

Frederick M. Boss, Deputy Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent-cross-respondent State of Oregon.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

Steven, Thomas, and Donald Gregg and the Board of Commissioners of Yamhill County appeal from a judgment entered in a writ of review proceeding that reversed Yamhill County’s determination that, under Yamhill County Ordinance 823 and section 5(3) of Ballot Measure 49 (2007), Steven, Thomas, and Donald Gregg have a right to complete a subdivision on property that they own in Yamhill County.¹ The circuit court reversed the county’s determination for two independent reasons: First, the court held that none of the relevant parties was an "applicant" for purposes of a vesting decision under Ordinance 823 and, relatedly, that Steven and Thomas are not "claimant[s] that filed a claim under [Ballot Measure 37 (2004) ]," as required by section 5(3) of Measure 49. Second, the court held that ORS 215.130, which requires nonconforming uses to be continuous, and a county ordinance implementing that statute apply to, and extinguish, the claims under section 5(3) of Measure 49. In the judgment, the court also dismissed a complaint for declaratory judgment filed by Friends of Yamhill County (FOYC) and T. J. Kleikamp. That dismissal is not at issue on appeal.

On appeal, Steven, Thomas, and Donald Gregg and the county (jointly, appellants)² first contend that the court should have dismissed the writ of review proceeding for lack of subject matter jurisdiction because Donald Gregg was not timely served. Second, they assert that the court erred in reversing the county’s determination because (1) ORS 215.130 and the county ordinance do not apply to their claims and, (2) contrary to the court’s reasoning, they are "applicants" under the ordinance and "claimant[s] that filed a claim under [Measure 37]," as required by section 5(3) of Measure 49. To obtain reversal based on their second assertion, appellants must demonstrate on appeal that the court erred in both ways they assert because the court based its decision on two independent grounds. See Roop v. Parker Northwest Paving Co. , 194 Or. App. 219, 236, 94 P.3d 885 (2004), rev. den. , 338 Or. 374, 110 P.3d 113 (2005) (explaining that, when a trial court bases a decision on multiple grounds, an appellant must demonstrate error on all of the independent bases supporting the court’s ruling).

First, as explained below, we reject appellants’ jurisdictional challenge. As to their second assertion, we agree with appellants’ argument, in their third assignments of error, that the circuit court erred in determining that ORS 215.130 and the county ordinance applied to, and extinguished, the claims under section 5(3) of Measure 49. See Oregon Shores v. Board of County Commissioners , 297 Or. App. 269, 279-80, 441 P.3d 647 (2019) (explaining that ORS 215.130 and implementing ordinances are immaterial to claims under section 5(3) of Measure 49 if any discontinuance that occurred took place after December 6, 2007, the only date on which section 5(3) required a vested right to exist); Friends of Yamhill County v. Board of Commissioners , 298 Or. App. 241, 247, 446 P.3d 548, rev. den. , 365 Or. 769, 453 P.3d 553 (2019) (same); DLCD v. Yamhill County , 298 Or. App. 260, 262, 445 P.3d 893, rev. den. , 365 Or. 769, 453 P.3d 553 (2019) (same).

However, as explained below, appellants have not demonstrated any error in the circuit court’s rulings that neither Steven nor Thomas is a "claimant that filed a claim under [Measure 37]" within the meaning of section 5(3) of Measure 49 and that Donald is not an "applicant," as required by Ordinance 823, because he never "obtained Measure 37 relief from the Board [of Commissioners of Yamhill County]." Consequently, we affirm the circuit court’s judgment.³

I. SUBJECT MATTER JURISDICTION

We begin with appellants’ first assignments of error, in which they assert that the circuit court lacked subject matter jurisdiction over the writ of review proceeding.

A. History and Parties’ Arguments

The facts relevant to our discussion of subject matter jurisdiction are procedural, and we provide them here. We set out the facts relevant to our discussion of the merits of the dispute below, 301 Or. App. at 287-89, 455 P.3d at 553–55.

Yamhill County issued the vesting decision at issue in this appeal on August 11, 2014.⁴ Within 60 days of the county’s decision, on October 9, 2014, Kleikamp and FOYC petitioned for a writ of review in Yamhill County Circuit Court.⁵ See ORS 34.010 - 34.100 (establishing writ of review proceedings); ORS 195.318 (providing for judicial review of county decisions under section five of Measure 49 by writ of review). Later in October, the circuit court issued the writ and ordered the Board of Commissioners of Yamhill County to return the writ, together with a certified copy of the record and proceedings before the county, by December 15, 2014. See ORS 34.060 (providing for substance and return of the writ); ORS 34.080 (providing for issuance and service of the writ). A copy of the writ was served on Steven and Thomas at that time, but not on Donald. The Board of Commissioners returned the writ on December 11, 2014, along with a certified copy of the record.

In January 2015, Steven and Thomas moved to dismiss the writ of review proceeding for lack of subject matter jurisdiction. They relied on ORS 34.080, which provides, in part, "A certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least 10 days before the return of the original writ." Steven and Thomas argued that Donald had not been served with the writ and that he was an "opposite party in the suit or proceeding sought to be reviewed" who had to be served as required by ORS 34.080.

In response, Kleikamp and FOYC contended that Donald was not an "applicant" for the challenged county decision, and, thus, that he was not an "opposite party" who had to be served with the writ. Alternatively, they moved the court to extend the time for serving the writ on opposite parties, contending that such an extension is within the court’s discretion and that the court does not lack subject matter jurisdiction under such circumstances. See Holland-Washington Co. v. County Court , 95 Or. 668, 674, 188 P. 199 (1920) ("[W]e are of the opinion that the order enlarging the time within which to make service of a copy of the writ upon [the opposite party] was a legitimate exercise of judicial authority."); Meury v. Jarrell , 16 Or. App. 239, 244, 517 P.2d 1221, aff’d , 269 Or. 606, 525 P.2d 1286 (1974) ("The court for good reason by its action can extend the 10-day period for serving of the writ.").

The court denied Steven and Thomas’s motion to dismiss, concluding that "[t]he Court has jurisdiction over the action because the Petition for Writ of Review was filed within 60 days of Yamhill County’s decision." It granted Kleikamp and FOYC’s motion for leave for additional time to serve opposite parties, extending the time for service to April 30, 2015. Donald was served with a copy of the writ before that date. The court never reissued the writ or amended the date by which the county had to return the writ.

In April 2015, the state intervened. In May 2015, Donald moved to intervene and, at the same time, moved to dismiss, arguing that his participation in the case rendered moot the issues raised in the petition for the writ of review. Shortly thereafter, appellants moved to amend the petition for writ of review to reflect Donald’s participation in the case. The court allowed Donald to intervene, denied his motion to dismiss, and granted the motion to amend. As explained below, after considering the merits, the circuit court entered a general judgment reversing the county’s decision.

In their first assignments of error, appellants argue that the circuit court lacked subject matter jurisdiction over the writ of review proceeding because Donald was not served with a copy of the writ "at least 10 days before the return of the original writ."⁶ ORS 34.080. Steven and Thomas’s argument is predicated exclusively on a lack of subject matter jurisdiction; that is, Steven and Thomas do not contend that, even if the court had subject matter jurisdiction, it nevertheless erred in denying their motion to dismiss. However, Donald and the county do, very briefly, make an alternative argument; they argue that, "even if the petition for writ of review conferred upon the circuit court jurisdiction, the circuit court erred by proceeding forward without each of the ‘opposite parties’ having been properly served."

B. Analysis

Subject matter jurisdiction is "the authority to deal with the general subject...