Review v. Multnomah County

• Jurisdiction: Oregon
• Parties: STATE ex rel. Dorothy ENGLISH, Deceased, by and through Douglas James SELLERS, Personal Representative of the Estate of Dorothy English, Deceased, Respondent on Review, v. MULTNOMAH COUNTY, a public corporation incorporated in the State of Oregon; Carol Ford, in her capacity as Director of the Department of County Management for Multnomah County; and Mindy Harris, in her capacity as Finance Officer for Multnomah County, Petitioners on Review.
• Citation: 238 P.3d 980,348 Or. 417
• Docket Number: (CC 070708042; CA A137217; SC S057387).
• Court: Oregon Supreme Court
• Decision Date: 17 June 2010

348 Or. 417

238 P.3d 980

STATE ex rel. Dorothy ENGLISH, Deceased, by and through Douglas James SELLERS, Personal Representative of the Estate of Dorothy English, Deceased, Respondent on Review,

v.MULTNOMAH COUNTY, a public corporationincorporated in the State of Oregon; Carol Ford, in her capacity as Director of the Department of County Management for Multnomah County; and Mindy Harris, in her capacity as FinanceOfficer for Multnomah County, Petitioners on Review.

(CC 070708042; CA A137217; SC S057387).

Supreme Court of Oregon.

Argued and Submitted Jan. 6, 2010.

Decided June 17, 2010.

On review from the Court of Appeals.^*

Stephen L. Madkour, Assistant County Attorney, Office of Multnomah County Attorney, Portland, argued the cause and filed the brief for petitioners on review.With him on the brief was Agnes Sowle, County Attorney for Multnomah County.

D. Joe Willis, Schwabe, Williamson & Wyatt, P.C., Portland, argued the cause for respondent on review.With him on the brief were Michael T. Garone and Andrew J. Lee.

Stephanie L. Striffler, Senior Assistant Attorney General, Salem, filed a brief for amicus curiaeState of Oregon.With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Barton C. Bobbitt, Sisters, and Jeannette L. Moore, The Gilroy Law Firm, PC, Tigard, filed a brief for amici curiaeVirginia Louise Bleeg, Darrin Black, Roger J. Miracle, Ann M. Miracle, Harold MacLaughlan, and Rebeca MacLaughlan.

Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, and LINDER, Justices.^**

BALMER, J.

This mandamus action requires us to determine the effect of a final judgment, containing a “money award,” that was entered “pursuant to” Measure 37, a land use statute that applies here but that has now been substantially superseded by later legislation.Dorothy English, an owner of land in Multnomah County, filed a cause of action under Measure 37 against the county, ultimately obtaining a judgment “against [the county] for just compensation pursuant to the provisions of [Measure 37] in the sum of $1,150,000.”Although the county initially appealed that judgment, it later dismissed its appeal.English requested payment of the trial court judgment, and, when the county failed to pay the $1,150,000, she sought mandamus to compel payment.¹The mandamus court dismissed the alternative writ of mandamus, concluding that the trial court judgment was payable only at the county's discretion.English appealed, and the Court of Appeals reversed and remanded with instructions to issue a peremptory writ of mandamus directing the county to pay the judgment for $1,150,000.State ex rel. English v. Multnomah County,227 Or.App. 419, 206 P.3d 224(2009).We allowed the county's petition for review and, for the reasons that follow, now affirm the decision of the Court of Appeals.

I.MEASURE 37

In 2004, the voters approved Ballot Measure 37 (2004), codified atORS 197.352(2005), renumbered asORS 195.305(2007)(Measure 37 ² ), which authorized awards of “just compensation” to landowners if a government entity enforced land use regulations that reduced the fair market value of the landowners' property.In particular, ORS 197.352(1) provided:

“If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to December 2, 2004, that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.”

Certain land use regulations were exempt from the compensation provision, including those “[r]estricting or prohibiting activities for the protection of public health and safety.”ORS 197.352(3)(B).³The statute authorized a landowner whose property had been affected by a nonexempt regulation to submit a “written demand for compensation * * * to the public entity enacting or enforcing the land use regulation.”ORS 197.352(4), (5).If the public entity continued to apply the regulation to the property more than 180 days after the landowner made that written demand, the landowner was permitted to file an action in the circuit court:

“If a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation under this section, the present owner of the property, or any interest therein, shall have a cause of action for compensation under this section in the circuit court in which the real property is located, and the present owner of the real property shall be entitled to reasonable attorney fees, expenses, costs, and other disbursements reasonably incurred to collect the compensation.”

ORS 197.352(6).

Measure 37 also contained a provision that permitted the public entity to waive the relevant land use regulation or land use regulations instead of paying just compensation:

“Notwithstanding any other state statute or the availability of funds under subsection (10) of this section, in lieu of payment of just compensation under this section, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply [ sic ] the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.”

ORS 197.352(8).Finally, the statute contained a provision addressing both payment of claims and waiver of regulations:

“Claims made under this section shall be paid from funds, if any, specifically allocated by the legislature, city, county, or metropolitan service district for payment of claims under this section.Notwithstanding the availability of funds under this subsection, a metropolitan service district, city, county, or state agency shall have discretion to use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to subsection (6) of this section[providing landowner with a cause of action for compensation].If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property.”

ORS 197.352(10).The government's option, based on those sections of Measure 37, to pay compensation or to waive applicable land use regulations, is sometimes referred to as “pay or waive.”

II.FACTUAL BACKGROUND AND TRIAL COURT PROCEEDING

On December 2, 2004, the day that Measure 37 became effective, English filed a written demand for compensation with Multnomah County in the amount of $1,150,000.She argued that, when she purchased her property in 1953, she lawfully could have used the property by partitioning it to create two separate parcels per year and constructing single-family homes on those parcels.Ultimately, she argued, she could have created at least eight separate parcels.She listed various regulations that were being enforced against her property that she claimed prevented or restricted that originally permissible use.In response, the Board of County Commissioners issued an order (the 2005order), in which it waived some of the 61 regulations listed in English's written demand.It refused to waive the other listed regulations, asserting that those regulations either were exempt from Measure 37 or did not prevent English from partitioning her land into two parcels per year for a total of eight parcels, the intended use that she had described in her written demand.

English was unsatisfied with the board's order, and, on May 16, 2006, she filed an action for just compensation in the Multnomah County Circuit Court.The complaint alleged that various land use regulations restricted English's intended use of the property-“partitioning it into two parcels per year and then selling the partitioned parcels for construction of single family homes and appropriate amenities”-and that, as a result, she was entitled to just compensation “in the amount of $1,150,000 (and probably an even higher figure based on information learned after submitting the written demand for Just Compensation).”The complaint alleged that that figure “represents the amount equal to the reduction in value of the fair market value of the Property on or about December 2, 2004, resulting from enactment or enforcement of the land use regulations complained of.”

Two days after English filed her complaint, the board issued another order (the 2006order), in which it waived additional regulations.The county then filed an answer to English's complaint, asserting, as an affirmative defense, that it had waived all regulations affecting the proposed development of English's property, except “1) regulations restricting or prohibiting activities for protection of public health and safety, and 2) regulations which provide for the procedure for land divisions and development of real property in Multnomah County.”The county explained that health and safety regulations are expressly exempt from Measure 37 and argued that the procedural regulations “are not within the purview of Measure 37 because they do not restrict the use of private real property.”

On August 2, 2006, English moved for summary judgment, arguing that she had demonstrated that she was entitled to just compensation as a matter of law in the amount of $1,150,000 and that there was no genuine dispute as to any fact material to her claim.In the alternative, she argued that, if any factual dispute existed as to the amount of compensation due, she was entitled at least to summary judgment “on all liability issues.”Again, the county responded that it had waived all nonexempt regulations and that English was therefore not entitled to any compensation.On September 22, 2006, the trial court held a hearing on English's motion for summary judgment.English argued that the waivers in the ...