The opinion
IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
DAVID LEE, )
)
Plaintiff, ) TC-MD 111007N
)
v. )
)
MULTNOMAH COUNTY ASSESSOR, )
)
Defendant. ) DECISION
On September 21, 2011, Plaintiff filed his Complaint appealing Defendant‟s
disqualification of 6.79 acres of property, identified as Account R559208 (subject property),
from forestland special assessment for the 2011-12 tax year. (Ptf‟s Compl at 3.) The parties
filed cross motions for summary judgment and oral argument was held by telephone on May 21,
2012. Plaintiff appeared on his own behalf. Lindsay Kandra (Kandra), Assistant County
Counsel, appeared on behalf of Defendant. The parties filed supplemental arguments on
May 22, 2012, and June 11, 2012.
Plaintiff opposes Defendant‟s disqualification of the subject property. (Ptf‟s Compl at 2.)
Plaintiff raised a second issue relating to Defendant‟s denial of his application for a change in
special assessment (application) to nonexclusive farm use (non-EFU) under ORS 308A.724(2).
(Ptf‟s Ltr at 3-4, May 4, 2012.) Plaintiff focused primarily on the denial of his application during
oral argument and in his response to Defendant‟s Motion for Summary Judgment. Defendant
argues that Plaintiff cannot challenge Defendant‟s denial of his application because he did not
timely appeal that denial or timely amend his Complaint. (Def‟s Opposition to Plaintiff‟s Am
Compl at 2; Def‟s Reply at 2-3.) Defendant argues, in the alternative, that the denial of
Plaintiff‟s application should be upheld because Plaintiff failed to establish farm use on the
subject property at the time of application. (Def‟s Reply at 2.)
DECISION TC-MD 111007N 1
I. STATEMENT OF FACTS
The subject property is located in the “Residential Farming” (RF) zone in Multnomah
County. (Def‟s Mot for Summ J at 4, Ex B.) Defendant states: “Most of the [subject] property
lies within the City [of Portland‟s] (c) or (p) environmental overlay zones.” (Id.) Plaintiff
asserts that “only 3.9 acres of [the subject property] lie in conservation and protected zones,
while [2.9] acres1 do not.” (Ptf‟s Compl at 2; Ptf‟s Ltr at 1, May 4, 2012.) “Within the
City‟s Environmental Protection („(p)‟) and Environmental Conservation („(c)‟) overlay zones,
the removal of vegetation, including the harvesting of trees, and the disturbance of soil is
regulated or prohibited. * * * In the case of existing agricultural uses, PCC 33.430.080.C2 allows
continued agricultural uses if there is evidence of historic and ongoing agricultural activity.
If such evidence cannot be provided, any tree removal from the property must meet the
Environmental Plan Check Standards in PCC 33.430.140 or be approved by the City through a
Type II or Type III Environmental Review.” (Def‟s Mot for Summ J at 2.)
Plaintiff argues that “logging” is allowed on part of the subject property (2.9 acres)
that was disqualified and that he has “logged” the subject property since acquiring it “and
continue[s] to do so.” (Ptf‟s Ltr at 2, May 4, 2012.) Plaintiff stated that his logging activities
include improving the old logging road, cutting down trees for use as firewood, planting trees,
and trading wood for “a farm share” that provides “vegetables and produce.” (Id. at 5; see also
id. at Attachments 12, 15 (photographs).) Plaintiff stated that he disagrees with Defendant‟s
determination that the portions of the property subject to the environmental overlay preclude
logging in the other portions.
1
Plaintiff‟s Complaint and written arguments both state 3.9 acres of the subject property are in the RF
zone. (Ptf‟s Compl at 2; Ltr at 1, May 4, 2012.) That is true but, as clarified during oral argument, 1.0 acre in the
RF zone is Plaintiff‟s homesite and was not included in the portion of the subject property receiving forestland
special assessment. (See Ptf‟s Ltr at Attachment 1.)
DECISION TC-MD 111007N 2
Plaintiff timely filed his application with Defendant in July 2011, following Defendant‟s
disqualification of the subject property from forestland special assessment. Defendant denied
Plaintiff‟s application in a letter dated August 12, 2011. The denial letter stated that Plaintiff
had 90 days to appeal the denial to the Magistrate Division of the Oregon Tax Court. Plaintiff
stated, and Defendant agrees, that the denial letter was not sent to Plaintiff‟s current address and
Plaintiff did not receive the denial letter until August 25, 2011. (See Def‟s Reply.) Plaintiff filed
his Complaint with this court on September 21, 2011. Plaintiff states that he raised the issue of
Defendant‟s denial of his application in his Complaint when he stated “[o]ther neighbors have
been granted RF status.” (Ptf‟s Compl at 2.) As discussed during the oral argument, Plaintiff‟s
reference to “RF” is to the zone and could not have put Defendant on notice that Plaintiff
intended to appeal Defendant‟s denial of Plaintiff‟s application. The parties agree that Plaintiff
raised the issue of Defendant‟s denial of his application during the case management conference
on November 17, 2011, when he “asked if we could discuss all issues regarding this property and
taxes at the court date May 17, 2012.” (Ptf‟s Ltr at 2, May 4, 2012; Def‟s Reply at 2.)
Based on the November 17, 2011, case management conference, Plaintiff was under the
impression that Defendant “suggested [he] file an amendment to [his] original appeal” and, based
on that understanding, he sent a letter to Defendant on December 30, 2011, stating that he
“contest[s]” the denial of his “application for a rollover for [his] land to non-[EFU] tax
exemption.” (Ptf‟s Ltr at 2, 10, May 4, 2012.) Defendant filed an Opposition to Plaintiff‟s
Amended Complaint with the court on January 6, 2012; however, Plaintiff did not receive
Defendant‟s Opposition until on or about March 1, 2012, because Defendant sent the original
Opposition to an incorrect address. (See Def‟s Ltr, Mar 1, 2012.)
///
///
DECISION TC-MD 111007N 3
II. ANALYSIS
The issues before the court are: (1) whether the disqualification of the subject property
from forest special assessment was in error; (2) whether Plaintiff may amend his Complaint to
challenge Defendant‟s denial of his application under ORS 308A.724(2); and (3) if Plaintiff may
amend his Complaint to challenge Defendant‟s denial of his application, whether Defendant‟s
denial of Plaintiff‟s application was in error.
This matter is before the court on cross motions for summary judgment.
“The court shall grant the motion if the pleadings, depositions, affidavits,
declarations, and admissions on file show that there is no genuine issue as to any
material fact and that the moving party is entitled to prevail as a matter of law.
No genuine issue as to a material fact exists if, based upon the record before the
court viewed in a manner most favorable to the adverse party, no objectively
reasonable juror could return a verdict for the adverse party on the matter that is
the subject of the motion for summary judgment.”
Tax Court Rule (TCR) 47 C.2
A. Forestland special assessment disqualification
ORS 321.257(2)3 provides the applicable definition of western Oregon “forestland”:
“ „Forestland‟ means land in western Oregon that is being held or used for the
predominant purpose of growing and harvesting trees of a marketable species and
has been designated as forestland or land in western Oregon, the highest and best
use of which is the growing and harvesting of such trees.”
Plaintiff argues that his activities on the subject property, including improving the old logging
road, cutting down trees for use as firewood, planting trees, and trading wood for “a farm share”
that provides “vegetables and produce” are sufficient to qualify the subject property for
forestland special assessment.
2
TCR 47 is made applicable through the Preface to the Magistrate Division Rules, which states in pertinent
part, that “[i]f circumstances arise that are not covered by a Magistrate Division rule, rules of the Regular Division
of the Tax Court may be used as a guide to the extent relevant.”
3
All references to the Oregon Revised Statutes (ORS) are to 2009.
DECISION TC-MD 111007N 4
Defendant responds: “Cutting down trees for personal or bartering use as firewood does
not turn wooded property into „forestland,‟ as that term is defined in ORS 321.257, and chopping
firewood is not the equivalent of using land for the predominant purpose of „harvesting trees of a
marketable species.‟ ” (Def‟s Reply at 3.) Defendant argues that Plaintiff‟s activities on the
subject property were all “residential use[s].” (See Def‟s Mot for Summ J.) Defendant notes
that “Plaintiff has not taken any of the steps necessary to obtain approval of tree harvesting
activity on his property. There is nothing in the record that indicates that Plaintiff has a forest
management plan in place or is in the process of developing a forest management plan.” (Id.
at 6-7.)
In a recent decision, this court considered whether 3.75 acres of property located in
the RF zone in Multnomah County qualified for forestland special assessment. Hughes v.
Multnomah County Assessor (Hughes), TC-MD No 110903N (Jul 10, 2012). As here, the
property at issue in Hughes was subject to both “c” and “p” environmental overlays. Relying
in part on the reasoning in Tucker v. Lane County Assessor (Tucker),4 TC-MD No 080902D,
WL 88120 (Jan 14, 2009), the court stated that “[t]he environmental overlays greatly restrict
the harvest of trees on the subject property” and, absent any evidence that the plaintiffs had
taken steps to ensure that they could harvest trees despite those restrictions, the court was not
persuaded that the plaintiffs‟ “predominant purpose [was] „the growing and harvesting of trees of
a marketable species.‟ ” Hughes, TC-MD No 110903N at 8-10.
///
4
In Tucker, the county assessor disqualified the property at issue based on “deed restrictions that prohibit
and/or restrict the harvesting of trees, prohibit any commercial or industrial use to the land and is restricted to
a residential use.” WL 88120 at *1 (internal quotations omitted). The court held that the deed restrictions
“interfere[d] with the legislative purpose of the forestland special assessment program” and did “not permit [the
taxpayers] to hold or use the [property at issue] „for the predominant purpose of growing and harvesting trees.‟ ” Id.
at *3
DECISION TC-MD 111007N 5
Viewing the facts in the light most favorable to Plaintiff and following Tucker and
Hughes, the court finds that Plaintiff‟s “predominant purpose” was not “the growing and
harvesting of trees of a marketable species.” Thus, Defendant‟s disqualification of the subject
property from forestland special assessment was not in error.
B. Rollover application for non-EFU special assessment
Plaintiff seeks to amend his Complaint to challenge Defendant‟s denial of his application.
Although the denial letter was sent on August 12, 2011, the parties agree that Plaintiff did not
receive it until August 25, 2011. (See Def‟s Reply at 2.) The parties further agree that Plaintiff
verbally raised the issue of Defendant‟s denial of Plaintiff‟s application during the initial case
management conference on November 17, 2011. (See id.; Ptf‟s Ltr at 2, May 4, 2012.)
Defendant “objected to [that] discussion, as the rollover denial had not been appealed” and filed
an Opposition to Plaintiff‟s Amended Complaint with the court on January 6, 2012, although
Plaintiff did not receive the Opposition until on or about March 1, 2012, because Defendant sent
the Opposition to an incorrect address. (Id.; Def‟s Ltr, Mar 1, 2012.)
1. Motion to amend complaint
The first question is whether Plaintiff sought leave to amend his Complaint despite
the fact that, as of the date of this Decision, Plaintiff has not filed a written motion to amend
his Complaint. “After the filing of a complaint, any request for an order of the court is a
motion. Every motion, except those made during a case management conference or trial, shall
be in writing and shall state the reasons and authorities for the motion and the relief requested.”
TCR-MD 6 A. (Emphasis added.) Although Plaintiff did not file a written motion to amend
his Complaint, he verbally raised the issue during the November 17, 2011, case management
conference. Defendant, evidently, understood that Plaintiff requested to amend his Complaint
///
DECISION TC-MD 111007N 6
because Defendant verbally objected and subsequently filed its written opposition. The court
next considers whether Plaintiff‟s verbal motion to amend his Complaint should be granted.
The Preface to the Magistrate Division rules states: “All pleadings shall be liberally
construed with a view of substantial justice between the parties.” “[A] party may amend the
pleading only by leave of court or by written consent of the adverse party, and leave shall be
freely given when justice so requires.” TCR 23 A. “Whenever the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading the amendment relates back to the date of the original
pleading.” TCR 23 C. The Oregon Supreme Court has stated:
“Not always clearly stated, but clearly implied in our decisions, is the rationale
that an amended pleading should be permitted to relate back if the defendant is
not prejudiced. In those cases in which we held the amended complaint could
relate back, the original complaint apprised defendant that the plaintiff was
claiming relief because of defendant‟s conduct at a certain time and place. If the
amended pleading continues to claim relief because of that same conduct of
defendant but upon a different theory, the defendant is not prejudiced because of a
change in theory or a change in the cause of action. The defendant is alerted to
plaintiff‟s claim and has the opportunity to investigate and do whatever is
believed necessary to protect itself. The claim does not become stale because the
legal theory or cause of action was changed in the amended complaint.”
Brackhahn v. Nordling, 269 Or 667, 672, 526 P2d 221 (1974).
Plaintiff‟s Complaint was filed September 21, 2011, which was within the time allowed
for Plaintiff to appeal Defendant‟s denial of his application. Arguably, Plaintiff sought leave
to amend his Complaint to challenge Defendant‟s denial of his application before the time to
appeal that denial had passed because Defendant mailed the notice of denial to an incorrect
address and Plaintiff did not actually receive notice until August 25, 2011. Even if Plaintiff‟s
time to appeal the denial had passed as of November 17, 2011, the court finds that Plaintiff‟s
amended Complaint relates back to the date of Plaintiff‟s Complaint because the claim “arose out
of the conduct, transaction, or occurrence set forth * * * in the original pleading.” TCR 23 C.
DECISION TC-MD 111007N 7
Plaintiff appealed Defendant‟s notice of disqualification, which triggered his right to apply for a
change to non-EFU special assessment and notified him of such right:
“Change in Special Assessment. When land is disqualified Under ORS
308A.706(1)(d), an application may be submitted for another special assessment
program under ORS 308A.724, within 30 days after the date on the notice of
disqualification or by August 1 of the year in which the notice is mailed
whichever date is later.”
(Ptf‟s Compl at 4 (emphasis in original).) Defendant is not prejudiced by Plaintiff‟s amended
complaint. The original Complaint apprised Defendant that Plaintiff challenged its notice
disqualifying the subject property from special assessment and that same notice set forth
Plaintiff‟s right to apply for a change to a different special assessment program.
2. Application for change in special assessment
ORS 308A.724(2) states in pertinent part that:
“If an owner of land disqualified under one of the special assessment laws listed
in ORS 308A.706(1)(d) seeks to qualify for farm use special assessment of
nonexclusive farm use zone farmland under ORS 308A.068, the owner shall have
five years, beginning with the first year in which application is made under this
section, to qualify for the two-year farm use requirement of ORS 308A.068 and
the income requirement under ORS 308A.071.”
The subject property was disqualified from western Oregon forestland special assessment, which
is “one of the special assessment laws listed in ORS 308A.706(1)(d).” Plaintiff timely filed an
application for a change to non-EFU special assessment under ORS 308A.068 following
disqualification of the subject property. Defendant denied Plaintiff‟s application because
Plaintiff failed to demonstrate “farm use” of the subject property.
Ordinarily, an applicant for non-EFU special assessment under ORS 308A.068 must
demonstrate that the property “has been used for the preceding two years, exclusively for farm
use[.]” Defendant argues that an applicant under ORS 308A.724(2) must be in “exclusive farm
use” at the time of the application. (Def‟s Supp Legal Arguments at 2.) In support, Defendant
DECISION TC-MD 111007N 8
states that “farm use special assessment is intended to benefit „bona fide‟ farms” and “[i]t is
contrary to this stated purpose to allow residential properties with no proven history of bona fide
farm use to obtain the benefits of the assessment.” (Id. at 2, 3.)
“In interpreting a statute, the court‟s task is to discern the intent of the legislature.” PGE
v. Bureau of Labor and Industries (PGE), 317 Or 606, 610, 859 P2d 1143 (1993); see also
ORS 174.020 (the court may not “insert what has been omitted”). The legislative intent is to be
determined first from the text and context of the statute. PGE, 317 Or at 611; State v. Gaines,
346 Or 160, 171, 206 P3d 1042 (2009). Additionally, “words of common usage typically should
be given their plain, natural, and ordinary meaning.” PGE, 317 Or at 611. “ „Shall‟ is a
command: it is used in laws, regulations, or directives to express what is mandatory.” Preble v.
Department of Revenue, 331 Or 320, 324, 14 P3d 613 (2000) (citations omitted).
ORS 308A.724(2) states that a property owner who “seeks to qualify for farm use special
assessment of nonexclusive farm use zone farmland under ORS 308A.068 * * * shall have five
years, beginning with the first year in which application is made under this section, to qualify
for the two-year farm use requirement of ORS 308A.068[.]” (Emphasis added.) The language
of ORS 308A.724(2) is mandatory and clearly states that taxpayers seeking to qualify under
that statute are allowed five years to qualify for the two-year farm use requirement. See also
Hodel v. Multnomah County Assessor, TC-MD No 110996D (Jul 18, 2012) (interpreting
ORS 308A.724(2). Thus, Defendant‟s denial of Plaintiff‟s application was in error.
III. CONCLUSION
After careful consideration and viewing the facts in the light most favorable to Plaintiff,
the court finds that Plaintiff‟s “predominant purpose” was not “the growing and harvesting
of trees of a marketable species.” Thus, Defendant‟s disqualification of the subject property
from forestland special assessment was not in error. The court further finds that Plaintiff
DECISION TC-MD 111007N 9
verbally sought leave to amend his Complaint during the November 17, 2011, case
management conference and that Plaintiff‟s verbal motion to amend should be granted.
Under ORS 308A.724(2), Plaintiff is allowed five years to qualify for the two-year farm use
requirement under ORS 308A.068. Thus, Defendant‟s denial of Plaintiff‟s application for a
change in special assessment to non-EFU special assessment was in error. Now, therefore,
IT IS THE DECISION OF THIS COURT that property identified as Account R559208
does not qualify for forestland special assessment for the 2011-12 tax year.
IT IS FURTHER DECIDED that Plaintiff‟s verbal motion to amend his Complaint to
challenge Defendant‟s denial of his application under ORS 308A.724 for a change in special
assessment to non-EFU special assessment is granted.
IT IS FURTHER DECIDED that property identified as Account R559208 qualifies for
non-EFU special assessment under ORS 308A.724.
Dated this day of August 2012.
ALLISON R. BOOMER
MAGISTRATE
If you want to appeal this Decision, file a Complaint in the Regular Division of
the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563;
or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your Complaint must be submitted within 60 days after the date of the Decision
or this Decision becomes final and cannot be changed.
This Decision was signed by Magistrate Allison R. Boomer on August 31, 2012.
The Court filed and entered this Decision on August 31, 2012.
DECISION TC-MD 111007N 10