Luethe v. Multnomah County

• Decision Date: 29 December 2010
• Docket Number: 060909466; A138836.
• Citation: 246 P.3d 487,240 Or.App. 263
• Parties: Larry L. LUETHE and Laura B. Luethe, husband and wife, Plaintiffs–Appellants,v.MULTNOMAH COUNTY, a political subdivision of the State of Oregon; Department of Land Conservation and Development, an agency of the State of Oregon; Land Conservation and Development Commission, an agency of the State of Oregon; Department of Environmental Quality, an agency of the State of Oregon; Department of Forestry, an agency of the State of Oregon; and Department of Administrative Services, an agency of the State of Oregon, Defendants–Respondents.
• Court: Oregon Court of Appeals

240 Or.App. 263

246 P.3d 487

Larry L. LUETHE and Laura B. Luethe, husband and wife, Plaintiffs–Appellants,

v.MULTNOMAH COUNTY, a political subdivision of the State of Oregon; Department of Land Conservation and Development, an agency of the State of Oregon; Land Conservation and Development Commission, an agency of the State of Oregon; Department of Environmental Quality, an agency of the State of Oregon; Department of Forestry, an agency of the State of Oregon; and Department of Administrative Services, an agency of the State of Oregon, Defendants–Respondents.

060909466; A138836.

Court of Appeals of Oregon.

Argued and Submitted Sept. 7, 2010.Decided Dec. 29, 2010.

Stephen F. Crew, Portland, argued the cause for appellants. With him on the briefs were Kristian Roggendorf, Peter B. Janci, and O'Donnell Clark & Crew LLP.Stephen L. Madkour, Assistant County Attorney, argued the cause for Respondent Multnomah County, Oregon. With him on the brief was Agnes Sowle, County Attorney for Multnomah County, Oregon.Stephanie L. Striffler, Senior Assistant Attorney General, argued the cause for Respondents State of Oregon. With her on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.SERCOMBE, J.

This is another case requiring us to consider the meaning and application of Measure 49, the referendum that replaced Measure 37 and altered its remedies for reduction in property value caused by a land use regulation. Plaintiffs, who filed suit seeking compensation under Measure 37, appeal the subsequent dismissal of that suit on mootness grounds precipitated by the enactment of Measure 49. On appeal, they advance two general arguments: (1) they have a “vested right” in their “cause of action for compensation” under Measure 37 and, if Measure 49 operates retroactively to abolish that right, then application of Measure 49 to plaintiffs' suit violates the Fifth and Fourteenth Amendments to the United States Constitution; ¹ and (2) the trial court had discretion to enter judgment nunc pro tunc in favor of plaintiffs on their Measure 37 claims, and plaintiffs' situation warranted such a ruling.

In other cases, we have already considered and rejected arguments substantially similar to those raised by plaintiffs. See, e.g., Powell v. DLCD, 238 Or.App. 678, 682, 690, 243 P.3d 798 (2010) (rejecting the plaintiff's contention that retroactive application of Measure 49 to her pending Measure 37 litigation violated her right to substantive due process under the Due Process Clause of the Fourteenth Amendment by depriving her of a “vested right in her Measure 37 litigation”); Bleeg v. Metro, 229 Or.App. 210, 213, 217–18, 211 P.3d 302 (2009), rev. den., 349 Or. 56, 240 P.3d 1097 (2010) (concluding that, because the plaintiffs' Measure 37 claims for just compensation were ongoing at the time Measure 49 became effective, Measure 49 superseded those claims, deprived the trial court's corrected judgments, which were entered nunc pro tunc, of continuing viability, and rendered the plaintiffs' cases nonjusticiable). In this case, we write to address only those aspects of plaintiffs' arguments that were not considered in those prior cases and, for the reasons that follow, affirm.²

Plaintiffs own approximately 19 acres of property in Multnomah County, which they purchased in 1973 from a family member. In June 2005, pursuant to Measure 37, former ORS 197.352 (2005), amended by Or. Laws 2007, ch. 424, § 4, renumbered as ORS 195.305 (2007), plaintiffs submitted a “written demand for compensation” to each of defendants based on the reduction in value of their property as a result of state and county land use regulations that restricted the use of their property.³ Plaintiffs obtained a state waiver of some, but not all, of the state land use regulations that plaintiffs alleged reduced the value of their property. The county did not act on plaintiffs' demand because it determined that plaintiffs' claim was not complete. In September 2006, pursuant to section 6 of Measure 37, former ORS 197.352(6), plaintiffs filed suit against defendants seeking monetary compensation for the reduction in value of their property; ⁴ plaintiffs also sought a declaration that any waivers issued by defendants under Measure 37 would be transferable to a subsequent owner.

The case went to trial on November 5, 2007, the day before Measure 49 was adopted by the voters in a special election. On November 14, 2007, while Measure 49 was not yet in effect, the trial court orally ruled in favor of plaintiffs, finding that certain state and county land use regulations reduced the fair market value of their property in the amount of $750,000. The court also orally ruled that defendants were not obliged to pay plaintiffs compensation in the liquidated amount, but, rather, that defendants could elect to do so. Plaintiffs submitted a proposed judgment with findings of fact and conclusions of law to defendants, who thereafter filed objections to that judgment.

On December 6, 2007, while those objections were pending before the trial court, Measure 49 became effective. “Measure 49 set out a different compensation allowance for a reduction in fair market value caused by a post-acquisition land use regulation, and reduced the degree of residential development allowed under a previously requested Measure 37 waiver.” Norwood v. Washington County, 239 Or.App. 542, 545, 245 P.3d 659 (2010). Specifically, for Measure 37 claims filed on or before June 28, 2007, section 5 of Measure 49 allowed three types of relief for property owners-none of which recognized an entitlement to monetary compensation. See Or. Laws 2007, ch. 424, § 5.⁵

Defendants subsequently filed motions to dismiss plaintiffs' suit under ORCP 21 A on the grounds that plaintiffs' Measure 37 claims were moot and did not state facts on which relief could be granted.⁶ In response to those motions, plaintiffs argued, among other things, that (1) Measure 49 did not retroactively apply to “causes of action” brought under Measure 37; and (2) plaintiffs had a “vested right” to relief under Measure 37 that was protected by the Fifth and Fourteenth Amendments. The trial court agreed with defendants and issued a letter opinion concluding that Measure 49 applied to all of plaintiffs' Measure 37 claims, that no constitutional impediment prevented the retroactive application of Measure 49, and that the litigation was moot.

Plaintiffs then filed a motion that alleged that the trial court had “rendered a judgment” in plaintiffs' favor on November 14, 2007, and that the trial court should enter that judgment nunc pro tunc. At the hearing on the motion, the trial court denied plaintiffs' request, concluding that it lacked the necessary discretion to do what plaintiffs wanted, although it agreed with plaintiffs that the equities weighed in their favor. The trial court subsequently entered orders granting defendants' motions to dismiss and denying plaintiffs' motion for entry of judgment nunc pro tunc. Plaintiffs now appeal from the resulting general judgment, which dismissed their claims and awarded defendants costs and disbursements.

We review for errors of law and, as noted above, write only to address those aspects of plaintiffs' arguments on appeal that have not been addressed in preceding cases. We begin with plaintiffs' argument that they have a “vested right” in their “cause of action for compensation” under Measure 37 that is protected by the Fifth and Fourteenth Amendments and cannot be destroyed by the retroactive application of Measure 49. In support of their argument, plaintiffs place heavy reliance on a case decided by the Oregon Supreme Court more than 75 years ago: Fisk v. Leith, 137 Or. 459, 299 P. 1013, on reh'g, 137 Or. 459, 3 P.2d 535 (1931). Plaintiffs contend that “ Fisk stands for the proposition that a statutory right to damages can become vested simply by accrual, and that the injured party has an inviolable right to secure judgment on those damages.” We did not address the implications of Fisk in our analysis in Powell under the Due Process Clause of the Fourteenth Amendment. In Powell, we ultimately rejected the plaintiff's contention that retroactive application of Measure 49 unconstitutionally deprived her of a “vested right in her Measure 37 litigation.” 238 Or.App. at 682, 690, 243 P.3d 798. Thus, we now consider the reasoning in Fisk and whether it is controlling in this case.

The core issue presented to the court in Fisk was whether the prevailing plaintiffs' suit for an injunction and damages survived the repeal of a certain statute. At the time that the plaintiffs commenced their suit, the statute was in effect and provided in part:

“ ‘No public utility * * * shall henceforth begin the construction of a line, plant or system, or any part thereof, in or into any territory already served by a similar utility without having first obtained from the public service commission of Oregon * * * a certificate that the present or future public convenience and necessity require, or will require such construction[.]’ ”

Fisk, 137 Or. at 461, 299 P. 1013 (quoting Oregon Code, title LXI, ch. 3, § 61–301 (1930)). The plaintiffs in Fisk included the first public utility company to serve the territory of Gold Beach. The defendants included a competing public utility company that had applied for, and been denied, the statutorily required certificate, but which had constructed improvements and served customers in the plaintiffs' territory. As a result of the defendants' allegedly unlawful competition, the plaintiffs sued and alleged that the defendants' conduct deprived them of numerous customers, resulting in $4,000 in damages. Id. at 461, 464, 299 P. 1013. The trial court ultimately issued an order of injunction against the defendants and awarded the plaintiffs $2,000 in damages caused by the allegedly...