Strome v. Lane County Bd. of Com'Rs

Decision Date05 August 2009
Docket Number160621813.,A136520.
Citation213 P.3d 1269,230 Or. App. 190
PartiesLela STROME, Plaintiff-Appellant, v. LANE COUNTY BOARD OF COMMISSIONERS, Defendant-Respondent.
CourtOregon Court of Appeals

George B. Heilig argued the cause for appellant. With him on the reply brief was Heilig Misfeldt & Armstrong, LLP.

Marc Kardell argued the cause for respondent. With him on the brief was Lane County Office of Legal Counsel.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.


Plaintiff appeals from a judgment in a writ of review proceeding brought under ORS 34.010 to 34.102. The judgment sustained a final order by the Lane County Board of County Commissioners (county) that legalized a county road and denied plaintiff compensation under ORS 368.211. Plaintiff asserts that the reviewing court erred in concluding that the county's order was supported by substantial evidence and that the order properly construed the applicable law. We review the reviewing court's determinations for errors of law, Crainic v. Multnomah Cty. Adult Care Home Program, 190 Or.App. 134, 141, 78 P.3d 979 (2003), and affirm.

Plaintiff owns and resides on land in Lane County. The property is traversed by Hulbert Lake Road. The county records suggest that Hulbert Lake Road was originally laid out in 1855 as County Road (CR) 160. Plaintiff disputes that suggestion, and historical information about the road is not conclusive as to its establishment, location, and ownership. In order to formalize the location and width of the road, the county initiated a road legalization process in 2006.

That process is governed by ORS 368.201 to 368.221. ORS 368.201 provides:

"A county governing body may initiate proceedings to legalize a county road under ORS 368.201 to 368.221 if any of the following conditions exist:

"(1) If, through omission or defect, doubt exists as to the legal establishment or evidence of establishment of a public road.

"(2) If the location of the road cannot be accurately determined due to:

"(a) Numerous alterations of the road;

"(b) A defective survey of the road or adjacent property; or

"(c) Loss or destruction of the original survey of the road.

"(3) If the road as traveled and used for 10 years or more does not conform to the location of a road described in the county records."

We recently described the statutory road legalization process:

"Once a county decides to initiate the legalization process, it must authorize a survey `to determine the location of the road.' ORS 368.206(1)(a). The survey is then filed with the county governing body, which, after notice, holds a legalization proceeding. ORS 368.206(1)(c). The proceeding is conducted by the county's governing body, and, although that body must allow `any person' to present relevant information, ORS 368.206(2), and that information must be `considered,' the governing body can decide either to abandon or complete the legalization, guided only by `whether legalization of the road is in the public interest.' ORS 368.216(1). If the governing body chooses to complete the legalization, it must `enter an order' to that effect and cause the order to be recorded. ORS 368.216(1), (2); see also ORS 368.106(1). That order establishes that the road `exists as shown on the order legalizing' it. ORS 368.216(4)(b). The county governing body, however, must compensate the owner of any structure that is encroached upon by the legalized road, if that owner meets certain requirements. ORS 368.211. In short, the legalization process begins with uncertainty as to the establishment or location (or both) of a county road, then moves to a statutory process involving surveys and public hearings, and ends with either a decision not to legalize or a definitive order declaring the existence and location of the county road."

Shotgun Creek Ranch, LLC v. Crook County, 219 Or.App. 375, 378, 182 P.3d 312 (2008). The purpose of road legalization is to resolve uncertainty as to where or whether a particular county road exists.

Shortly after the county started the road legalization process, plaintiff filed a complaint in circuit court seeking a declaratory judgment and an injunction to enjoin the process. Plaintiff contended that the existing Hulbert Lake Road and the established CR 160 were not the same, that Hulbert Lake Road was a private road, and that the county lacked authority to legalize that private road. The trial court dismissed plaintiff's complaint, and plaintiff appealed. In the meantime, the county proceeded with the road legalization process.

In October 2006, before the appeal was decided, the county held a hearing and issued a final order legalizing Hulbert Lake Road as CR 160. Plaintiff's attorney appeared at the hearing and argued that the present Hulbert Lake Road was not established as CR 160, but was a private way, and that the county could not confiscate the private way by means of a road legalization order. She presented an affidavit of plaintiff at the hearing attesting that plaintiff has lived near the road since 1920 and that the portions of the road on her property and adjacent land were constructed as private driveways and field access roads. According to plaintiff, the county constructed Hulbert Lake Road in the 1960s. The county presented older aerial photographs, surveys, and traffic maps showing the road or referring to the existence of the road.

The board of commissioners determined that road legalization was authorized under alternative statutory grounds, ORS 368.201(1) and (3). The board found:

"WHEREAS, Hulbert Lake Road as described above has been in existence as a public road since it was originally laid out in road proceedings for County Road Number 160 in 1855, and although doubts exist as to the legal establishment or evidence of establishment of the road at that time, there is evidence that the road has been in the same location that it is today since the mid 1800's, and that it has been traveled and used for more than 30 years by the public in its present location. A packet of public records supporting this is attached hereto, marked Attachment `B', and made a part hereof by this Order; and

"* * * * *

"WHEREAS, the Board hereby finds that alternate grounds for legalization exist in this case, and that 1) through omission or defect, doubt exists as to the legal establishment or evidence of establishment of a public road; or 2) the road used or traveled for 10 or more years, does not conform to the location of the road described in the county road records and each of these grounds independently is sufficient to support this decision[.]"

(Boldface in original.) The board denied plaintiff's claim for compensation because "the legalization will not require the removal of any structure." The board ordered the surveying and legalization of Hulbert Lake Road.

Plaintiff filed a petition for writ of review of the county order under ORS 34.010 to 34.102. She claimed that (1) the county's findings and order were not supported by substantial evidence in the whole record, (2) the county improperly construed ORS 368.201, (3) the county's decision was unconstitutional because it deprives plaintiff of property without due process of law, and (4) the county erred in not awarding her compensation. ORS 34.040.1 Plaintiff sought reversal of the order on those bases under ORS 34.100.

The trial court affirmed, concluding that the county had properly construed the law, that the county decision was constitutional, and that there was substantial evidence in the whole record to support the county's legalization findings and order. The trial court concluded that, under ORS 368.201(1), the statute "requires only doubt as to whether a public road was legally established or was, in fact, established. Doubt may arise through either omission or defect." The court continued:

"Under subsection (1), there must also exist doubt as to whether a public road was legally or, in fact, established.

"The county presented evidence that a road approximately congruent with Hulbert Lake Road was viewed in 1855 as revealed in the county records, that the same road appeared on a 1915 plat designated as County Road 160 that a 1915 survey referred to `the County Road' in the location of the viewed road, that a 1922 USGS map showed a road in the same location, and that a 1936 Oregon State Traffic Map also showed a road in that location.

"In an affidavit, the [Plaintiff] states that in 1920, when her family purchased a farm on what is now Hulbert Lake Road, a road did not exist from what is now the northern end of Hulbert Lake Road to their farm or south from their farm to `the Zumwalt House.' A road did exist from the Zumwalt house south to the present southern end of Hulbert Lake Road, but, according to the [plaintiff], this was originally a `driveway.' She also acknowledges that there was access between her family's house and the Zumwalt house, which she characterizes as `field access.' It is not clear in her affidavit how her family traveled between their house and the Benton county road to the north before her father constructed a `driveway' connecting the two.

"This conflicting evidence and the very fact of this litigation shows that the requisite doubt exists. Accordingly, given the plain language of subsection (1), the [board of commissioners] had authority to initiate legalization proceedings."

Thus, the trial court found that the county had not misconstrued the statute in finding grounds for legalization under subsection (1).2 The trial court concluded that the county's findings were supported by substantial evidence and affirmed the final order.

Plaintiff appealed the judgment dismissing her petition for writ of review. In her assignments of error, plaintiff claims that (1) the reviewing court made factual errors in its description of the local government record; (2) the court erred in concluding that there...

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  • § 17.5 The "law of the Case" Doctrine
    • United States
    • Oregon Civil Pleading and Litigation (OSBar) Chapter 17 Claim Preclusion, Issue Preclusion, and Related Doctrines
    • Invalid date
    ...applied the law of the case to its own review of administrative proceedings. Strome v. Lane Cty. Bd. of Comm'rs, 230 Or App 190, 198-99, 213 P3d 1269, rev den, 347 Or 349 (2009). It has further applied the doctrine to rulings of the Land Use Board of Appeals, an administrative forum that ma......
    • United States
    • Oregon State Bar Appeal and Review: The Basics (OSBar) Chapter 5 Issue Selection
    • Invalid date binding and conclusive in that case before that court or any inferior court. Strome v. Lane County Bd. of Comm'rs, 230 Or App 190, 199, 213 P3d 1269, rev. denied, 347 Or 349 (2009). Similarly, in criminal and postconviction appeals, the defendant's attorney must keep in mind exhaustion p......

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