455 P.3d 546
Or. Ct. App.2019Background:
- The Gregg family acquired the subject property in 1966; Glenn and Diane (and apparently Donald) obtained Measure 37 waivers that authorized subdivision and development, and the Greggs expended substantial sums and recorded a final plat before Measure 49 took effect on December 6, 2007.
- Measure 49 §5(3) created a statutory vested-rights pathway for persons who "filed a claim under [Measure 37]" and had a common-law vested right on December 6, 2007, to complete uses allowed by earlier waivers.
- After prior litigation and a remand (Kleikamp v. Board of County Commissioners), Steven and Thomas applied in 2014 for a new county vesting determination; Yamhill County issued a 2014 decision saying the "applicants" (naming Steven and Thomas and referencing original applicants) had a §5(3) right to complete a 15-lot subdivision.
- Kleikamp and Friends of Yamhill County (FOYC) timely sought a writ of review; initial service did not include Donald, and the Greggs/County challenged jurisdiction based on service defects; the circuit court denied dismissal and extended service time.
- The circuit court reversed the county's vesting decision on two independent grounds: (1) Steven and Thomas were not "claimants that filed a claim under Measure 37," and Donald was not an "applicant" under Ordinance 823 (he never obtained county Measure 37 relief); and (2) ORS 215.130 and Yamhill ordinance implementing it applied to and extinguished the §5(3) claims. The court of appeals affirmed in part and reversed in part.
Issues:
| Issue | Kleikamp/FOYC (Petitioners) Argument | Greggs/County (Respondents) Argument | Held |
|---|---|---|---|
| Whether the circuit court lacked subject-matter jurisdiction because Donald was not served with the writ at least 10 days before return | Filing the petition within 60 days vests the court with subject-matter jurisdiction; Donald was not an "opposite party" requiring pre-return service | Failure to serve Donald deprived the court of jurisdiction and required dismissal | Petition filed within 60 days suffices; lack of timely service affects authority to proceed but not subject-matter jurisdiction; court had jurisdiction |
| Whether ORS 215.130 and the county ordinance extinguish §5(3) Measure 49 claims | ORS 215.130/implementing ordinance are immaterial to §5(3) claims when any discontinuance occurred after Dec 6, 2007 | ORS 215.130 and the implementing county ordinance apply and extinguish the claimed vested rights | Court erred to apply ORS 215.130; those laws do not extinguish §5(3) claims where discontinuance post-dates Dec 6, 2007 |
| Whether Steven and Thomas qualify as §5(3) "claimant[s] that filed a claim under Measure 37" even though predecessors filed claims | Successors in interest (Steven, Thomas) should qualify where predecessors filed Measure 37 claims and vested rights transferred | §5(3) text requires the claimant to be a person who actually filed a Measure 37 claim on or before the cutoff | Text is unambiguous: only persons who filed Measure 37 claims qualify; Steven and Thomas do not qualify |
| Whether Donald is an "applicant" under Ordinance 823 (i.e., "obtained Measure 37 relief from the Board") | Donald had previously been treated as a waiver-holder; his status was established and should not be relitigated | Donald never obtained the county Measure 37 waiver (operative county waiver named Glenn and Diane); thus he is not an "applicant" | Circuit court correctly concluded Donald was not an applicant under Ordinance 823 because he never obtained Measure 37 relief from the Board |
Key Cases Cited:
- Kleikamp v. Board of County Commissioners, 240 Or App 57 (prior appeal remanding for identification of total project cost and expenditure ratio)
- Friends of Yamhill County v. Board of Commissioners, 351 Or 219 (discussing Measure 49's effect on prior Measure 37 waivers)
- Shipp v. Multnomah County, 133 Or App 583 (petition filed within 60 days vests court with jurisdiction over writ of review)
- Spivak v. Marriott, 213 Or App 1 (failure to serve opposite parties bars proceeding until service but does not deprive court of subject-matter jurisdiction)
- N.W. Env. Def. Ctr. v. City Council, 20 Or App 234 (service defect is remedial; court may extend time rather than lose subject-matter jurisdiction)
- Beck v. City of Tillamook, 313 Or 148 (scope-of-review and preclusion of re-litigating resolved LUBA issues on remand)
- Maizels v. Kozer, 129 Or 100 (early precedent on writ service and jurisdiction)
- Williams v. Henry, 70 Or 466 (early precedent on writ service and jurisdiction)
- Oregon Shores v. Bd. of County Comm’rs, 297 Or App 269 (ORS 215.130 and implementing ordinances immaterial to §5(3) when discontinuance occurred after Dec 6, 2007)