Petition for Writ of Certiorari — Black v. Metro

(1) SuUpi ery U.S.

No. 10- 191241 MAR 8- 2019

twee OFFICE OF THE CLERK

Supreme Court of the United States

=

DARRIN BLACK,

etitroner

METRO, a political subdivision of the State of Oregon,

Respondent

ROGER J. MIRACLE and ANN M. MIRACLE,

Petationers.

METRO, a political subdivision of the State of Oregon,

, al

Respondent

On PETITION FOR A WRIT OF CERTIORARI TO THE

Court OF APPEALS OF OREGON

PETITION FOR A WRIT OF CERTIORARI

RoBERT ROBERTSON WILLIAM L. BERNARD

1175 East Main Street, #F Counsel of Record

Medford, Oregon 97504 646 S. Main Street,

(541) 772-3442 Suite 165

Cedar City, Utah 84720

(435) 691-2346

federalawyer@aol.com

Attorneys for Petituoners Darrin Black,

and Roger J. and Ann M. Miracle

235610 ce

COUNSEL PRESS

(800) 274-3221 + (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

QUESTION 1: Does the Constitution recognize the

retroactive mooting of a judgment as the taking of

property rights through the Takings Clause and/or as

arbitrary and capricious conduct prohibited by the Due

Process Clause, and has a judicial taking occurred when

an appellate court moots the judgment of the trial court

when such judgment was effectuated by stipulation of the

parties?

QUESTION 2: Whether the U.S. Supreme Court’s

holding in Plaut requires modification as it pertains to

matters where the law was changed after the trial court

determination has resulted in a final judgment to require

an appellate court to reach the merits of the appeal and

apply a law retroactively only where there is reversible

error in the entry of the judgment in order to avoid an

unconstitutional result.

QUESTION 3: Whether the Oregon Court of Appeals

erred in applying the mootness doctrine to the trial

court determination when it was inequitable to the

parties in violation of this Court’s direction under U.S. v.

Munsingwear, Inc.

QUESTION 4: Whether Plaut and similar Oregon state

cases authorize a violation of the Due Process Clause to

allow an appellate court to moot a trial court Judgment on

issues that are not adequately preserved before that trial

court with respect to a change in law occurring subsequent

to entry of a trial court judgment.

QUESTION 5: Is the application of a retroactive change

in law to moot a trial repugnant to the Constitution where

the matter was submitted to the trial court entirely on the

factual stipulations of the parties, including the parties’

stipulation that a valid and compensable claim existed

under the prior law, leaving the amount of damages as the

only issue remaining for the trial court’s determination?

And should Plaut be applied only in accordance with this

Court’s recent determination in Christian Legal Soc.

Chapter of the University of California, Hastings College

of the Law v. Martinez. and, Jideonwo v I.N.S. (7th Cir)

citing Bradley v. School Bd. Of City of Richmond?

QUESTION 6: Whether a “claim” and “a cause of

action” within the context of Measure 49 as reconciled

with Measure 37 are distinct and independent processes

such that a Measure 37 cause of action is not subject to

extinguishment by section 5 of Measure 49; and/or whether

the Oregon Court of Appeals misinterpreted or misapplied

Measure 49 retroactively to moot the underlying cause

of action where no language in Measure 49 expressed

an intent to retroactively extinguish an existing cause

of action

IST OF PARTIE

In addition to the Respondent, the Petitioners a

also serving Virginia L. Bleeg and Harold and Rebecc:

MacLauglan who may also be affected by any decison

Table of Contents

THIS DECISION PLACES THE OWNERS

OF EVERY JUDGMENT RENDERED

BY ANY COURT OF THE STATE OF

OREGON IN DANGER OF HAVING

THEIR PROPERTY, IN THE FORM

OF JUDGMENTS, TAKEN AT THE

WHIM OF OREGON’S JUDICIARY IN

VIOLATION OF THE TAKINGS CLAUSE

AND THE DUE PROCESS CLAUSE AS

ENUNCIATED IN STOP THE BEACH

RENOURISHMENT INC. V. FLORIDA

DEPARTMENT OF ENVIRONMENTAL

PROTECTION, 130 S. Ct. p. 2592 (2010)

STAUTORY INTERPRETATION

OF MEASURE 49 AND HOW IT

APPLIES TO CAUSES OF ACTION .

MEASURE 49 FAILS TO

SUPPORT THE RETROACTIVE

ABOLISHMENT OF A “CAUSE OF

ACTION” UNDER MEASURE 37

RETROACTIVE APPLICATION

OF MEASURE 49 TO

PETITIONERS’ JUDGMENTS

RAISES CONSTITUTIONAI

ISSUES

THE VACATING OF THE

JUDGMENT IN THIS MATTER

IS A TAKING OF PROPERTY

RIGHTS ...

RECONCILIATION OF THIS

COURT’S HOLDINGS ON

CONCLUSIVENESS OF

STIPULATIONS IN RELATION

TO THE APPLICATION OF

MOOTNESS DOCTRINE TO

RETROACTIVE CHANGES OF

LAW.....

NEED FOR ADOPTION OF

MANIFEST INJUSTICE

EXCEPTION TO APPLICATION

OF MOOTNESS DOCTRINE TO

RETROACTIVE CHANGES OF

LAW. .

CLARIFICATION OF THE

APPLICATION OF THE MOOTNESS

DOCTRINE AS IT PERTAINS

TO THIS COURT’S POSITION

WITH RESPECT TO THE

DISCRETIONARY APPLICATION

OF EQUITABLE POWERS

ATS VT FITC a

NCLUSION

TABLE OF APPENDICES

APPENDIX A — DECISON OF THE COURT

OF APPEALS OF OREGON, DATED

J UNE 24, 2009

APPENDIX B — GENERAL JUDGMENT

AND MONEY AWARD IN THE CIRCUIT

COURT OF THE STATE OF OREGON

FOR THE COUNTY OF CLACKAMAS,

DATED DECEMBER 5, 2007

APPENDIX C — LETTER ORDER OF THE

CIRCUIT COURT OF OREGON, DATED

OCTOBER 12, 2007

APPENDIX D — STIPULATED FACTS IN

THE CIRCUIT COURT OF THE STATE

OF OREGON, COUNTY OF CLACKAMAS,

DATED AUGUST 31, 2007

APPENDIX E — ORDER DENYING REVIEW

IN THE SUPREME COURT OF OREGON,

DATED SEPTEMBER 17, 2010

APPENDIX F — ORDER DENYING

PETITION FOR RECONSIDERATION IN

THE SUPREME COURT OF OREGON,

DATED DECEMBER 9, 2010

APPENDIX G — OREGON LAWS 2005,

RELEVANT PORTIONS OF BALLOT

MEASURE 37

APPENDIX H — OREGON LAWS 2007,

RELEVANT PORTION OF BALLOT

MEASURE 49...

TABLE OF CITED AUTHORITIES

ASES

Barnes v. City of Portland,

120 Or. App. 24, 852 P.2d 265, Petition f

Review Denied, 317 Or. 583 (1993) .

Bradley v. School Bd. of City of Richmon

416 U.S. 696, 94S. Ct. 2006,

40 L. Ed. 2d 476 (1974) .

srown v. Vogt,

272 Or. 482, 538 P.2d 362 (197:

‘aldwell v. Wunderlich,

26 Or. App. 407, 552 P.2d 1321 (1976

Christian Legal Soc. Chapter of the University

of California, Hastings College of the Law v

Martinez,

130 S. Ct. 2971, 177 L. Ed. 2d 838

(U.S. (Cal.) 2010) .

orey v. Department of Land Conservation ana

Development,

344 Or. 457, 184 P.3d 1109 (2008)

Cyrus v. Board of County Commissione?

226 Or. App. 1, 202 P.3d 274 (2009).

Hastern Enterprises v. Apfel,

524 U.S. 498, 118 S. Ct. 2131, 213%

(U.S.Mass. 1998) .

English i

Ettor v. City of Tacoma,

228 U.S. 148, 33 S. Ct. 4

Fisk v. Leith et al.,

137 Or. 459, 299 P 1013

Fromme v. Fred Meyer, Inc.,

306 Or. 558, 761 P.2d 515 (198

General Motors Corp. v. Romei

503 U.S. 181, 112 S. Ct. 1105,

117 L. Ed. 2d 328 (U.S. Mich. 199

Hall v. Northwest Outward Bound §

280 Or. 655, 572 P.2d 1007 (1977)

In re Fontainebleau Las Vegas H

434 B. 716 (S.D. Fla. 2010)

In re Motors Liquidation Ci

428 B.R. 43 (S.D.N.Y. 2011

Jideonwo v. I.LN.S.,

224 F.3d 692 (C.A.7 20

Landgraf v. USI Film Produci

511 U.S. 244, 1148S. Ct. 1483

128 L. Ed. 2d 229 (1994)

Vahana v. Miller.

281 Or. 77, 573 P.2d 1

ewsom v. Greenwood,

1 Or. 119. 1871 WL 1122 (¢(

rregon Natural Desert Ass'n v. L

572 F.3d 610 (C.A.9 (Or.) 2009)

GE v. Bureau of Labor and Indust

317 Or. 606, 859 P.2d 1143 (1993)

laut v. Spendthrift Farm, Inc.,

514 U.S. 211, 1158S. Ct. 1447 (1

Republic of Austria v. Altmann,

541 U.S. 677, 124 S. Ct. 2240, 11

tate ex. rel. English v. Multn

(English D),

227 Or. App: 419, 2!

tate v. Duggan,

290 Or. 369, 622 |

ate v. Gaines,

346 Or. 160, 206 |

tate v. LaFollett.

132 Or. 257. 284 }

tate v. Meyers,

153 Or. App. 551, 958 P.2d 187

Stop The Beach Renourishment Inc. v. Flor

Department of Environmental Protection

130 S. Ct. 2592 (2010) .

Thomas v. City of Portland

40 Or. 50, 66 P 439 (1901)

LS. v. City of Memphis,

97 U.S. 284, 1877 WL 186

United States v. Meade,

175 F.3d 215 (1st Cir. 199

United States v. Munsingwea

340 U.S. 36 (1950)

nited States v. Schooner Peggy,

1 Cranch 103, 2 L. Ed. 49 (1801

United States v. Silva,

554 F.3d 13 (1st Cir. 201

Whipple v. Hoswer,

291 Or. 475, 682 P

PINIONS AND ORDERS |!

[he unpublished denial of the petition

econsideration to the Oregon Supreme Court dated

October 1, 2010 was denied on December 9, 2010. (App. F

[he unpublished denial of the petition for review

the Oregon Supreme Court dated September 17, 2010

‘odified at 240 P.3d 1097. (App D)

“he published decision of the Oregon Court of Appe:

ted June 24, 2009 is codified at 211 P.3d 302. (App. A

The unpublished general judgment of the Orego!

ircuit Court Clackamas County dated December 5, 200°

warding the petitioners’ just compensation. (App. B)

The Letter Order of the Oregon Circuit Cou:

4

‘lackamas County, dated October 12, 2007 tf

n Appendix

[his Court has jurisdiction to review the deni

f certiorari by the Oregon State Supreme C ourt on

Petition for Writ of Certiorari pursuant to 28 U.S

1257. The denial of certiorari was entered by the a

State Supreme Court on September 17, 2010. A Petition

for Reconsideration was filed on October 1, 2010, and was

denied bv the Oregon State Supreme Court on Decembe

), 2010. This Petition for Writ of Certiorari is timely filed

within ninety (90) days from the denial of the petition

for reconsideration by the Oregon State Supreme Court

and within the thirty (80) day extension granted by the

Honorable Anthony M. Kennedy, Justice of the United

States Supreme Court for the Ninth Circuit which

-xtended the time to file to and including April 8, 2011

STATUTORY PROVISIONS

‘he pertinent provisions of the applicable

yntained in Appendices G and H

INTRODUCTION

The State of Oregon unconstitutionally applied a

tatute retroactively to vacate otherwise valid court

judgments. The decision rendered, if allowed to stand, and

further applied would jeopradize any judgment entered by

an Oregon Court to being the subject of a judicial taking

n violation of Stop The Beach Renourishment Inc. v

Florida Department of Environmental Protection, 130

Ct. p. 2592 (2010)

STATEMENT OF THE CASI

Pursuant to Measure 37, codified as ORS 197.352

ereinafter (Measure 37), each petitioner submitted a

Measure 37 claim prior to December 4, 2006, by filing a

written demand for compensation to the respective public

entities responsible for enacting the regulations which had

restricted the use of their property, resulting in a loss of

air market value. All public entities, except Metro, either

waived the restrictive land use regulations or determine

none applied. Metro denied each of the petitioner’s claims

Pursuant to 197.352(6), after more than 180 day:

had passed from submission of their claims, petitioners

individually commenced an action for compensation in

Clackamas County Circuit Court as provided for under

ORS 197.352(6). Their two cases were consolidated wit}

two others at the trial court

Subsequent to a stipulated facts trial, the trial cour

held each petitioner had suffered a loss in fair market

value as a result of Metro’s land use regulations. A money

judgment reflecting the trial court’s final determination

was entered for petitioners on December 5, 2007, prior to

the December 6, 2007, effective date of chapter 424 Oregon

Laws (2007) hereinafter referred to as Measure 49. (To

allow separate recording as to the individual judgments,

the judgment of December 5, 2007 was supplemented by}

individual judgments on December 7, 2007 which wer

entered nunc pro tunc December 5, 2007

On June 24, 2009, after bnefing and oral argumen

the Oregon Court of Appeals filed its written opinio1

mooting petitioners’ cases and remanding them to the

trial court with an order to the trial court to vacate the

judgments. The Court of Appeals held petitioners’ case:

were moot and no longer justiciable because the passag«

of Measure 49 deprived the trial court judgments of a1

continuing viability

4a) => . sy. . . laixr hf aonmr wT. a.

lhe ruling was solely based upon th

TY)

, * a °

irt’s decision in Corey v. Departm

and Development, 344 Or. 457, 184 P.38d 1109 (2008),

which ruled that “Measure 49 by its terms retroactively

deprives Measure 37 waivers and all orders disposing of

Measure 37 claims of any continuing viability...” In so

ruling the Oregon Court of Appeals extended the holding

in Corey to include retroactive application to circuit court

civil causes of actions for compensation and judgments on

appeal which were docketed prior to the effective date

of Measure 49. The ruling did not address the fact that

Measure 49 amended, but did not repeal, Measure 37. Nor

did the Court of Appeals perform any analysis of existing

case law as to the application of retroactive legislation.

Petitioners filed a Petition for Review to the Oregon

State Supreme Court within the time allowed pursuant to

an Order granting an extension to file. Such Petition was

denied by the Oregon State Supreme Court on September

17, 2010. A Petition for Reconsideration was filed with the

Oregon State Supreme Court on October 1, 2010, and was

lenied on December 9, 2010

REASONS FOR GRANTING THE PETITION

THIS DECISION PLACES THE OWNERS OF

EVERY JUDGMENT RENDERED BY ANY

COURT OF THE STATE OF OREGON IN

DANGER OF HAVING THEIR PROPERTY,

IN THE FORM OF JUDGMENTS, TAKEN AT

THE WHIM OF OREGON’S JUDICIARY IN

VIOLATION OF THE TAKINGS CLAUSE AND

THE DUE PROCESS CLAUSE AS ENUNCIATED

IN STOP THE BEACH RENOURISHMENT INC. V.

FLORIDA DEPARTMENT OF ENVIRONMENTAL

PROTECTION, 130 S. Ct. p. 2592 (2010).

Il. STAUTORY INTERPRETATION OF MEASURE

49 AND HOW IT APPLIES TO CAUSES OF

ACTION.

Parnes

DULTYCSS

‘Statutory definitions control the meaning «

statutory words ... in the usual case.” Lawson

v. Suwannee Fruit & S.S. Co., 336 U.S. 198,

201, 69S. Ct. 503, 93 L. Ed. 611 (1949). See also

Stenberg v. Carhart, 530 U.S. 914, 942,1208

Ct. 2597, 147 L. Ed. 2d 743 (2000) (“When a

statute includes an explicit definition, we must

follow that definition ....”); 2A N. Singer & J

Singer, Sutherland on Statutory Constructio1

§ 47:7, pp. 298-299, and nn. 2-3 (7th ed.2007

(hereinafter Singer)

’ a sé. | > 911 1 a rs) i ¢ ’ an 7 un}

furthermore, “[a]s a rule, [a] de tion wh

leclares what a t ]

any meaning that is not stated.” Colautti v

Franklin, 439 U.S. 37 9, 392-393, n. 10, 99 S.

Ct. 675, 58 L. Ed. 2d 596 (1979) (some internal

quotation marks omitted).

Black’s Law Dictionary defines “cause of action” as

“the fact or facts which give a person a right to judicial

redress or relief against another.” /bzd., 6th Edition, West

Publishing, St. Paul Minnesota, 1991, p. 152. Furthermore

Black’s Law Dictionary defines “claim” as “to demand as

one’s own or as one’s right to assert; to urge; to insist.”

Id. at p. 169.

In this matter, the first and potentially dispositive

issue is the proper interpretation of Measure 49; that it

amended, not repealed, former ORS 197.352 (Measure 37)

renumbered as ORS 195.305 by Measure 49. The “cause

of action” was not specifically eliminated by Measure

49, it simply was not preserved for future claimants.

The disparate meanings for a “claim” and a “cause of

action” were not considered by the Court of Appeals. The

definition for a “cause of action” is found in ORS 197.352(6)

which specifically provides:

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 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 shall be entitled

to reasonable attorney fees, costs, and other

disbursements reasonably incurred to collect

the compensation.

This written demand for compensation is referred to as

a “claim” in ORS 197.352. Not only is a “claim” not the

equivalent of a “cause of action,” a “claim” must first be

filed before a “cause of action” could accrue under ORS

197.352(6).

The cause of action for compensation under ORS

197.352 (6) continues to be available for existing actions

since the text of Measure 49 does not specify that it is

to be abolished retroactively. Petitioners argued at both

the trial court and appellate court level that Measure 49

has no effect on a “cause of action” for compensation that

concluded with entry of a judgment prior to the effective

date of Measure 49, and that their cases remain justiciable.

The Court of Appeals, however, avoided any statutory

interpretation, ignoring the methodology for statutory

construction set forth by PGE v. Bureau of Labor and

Industries, 317 Or. 606, 610, 859 P. 2d 1143 (1993), ORS

174.020, and this Court’s recent decision in State v. Gaines,

346 Or. 160, 206 P.3d 1042 (2009). Specifically, the Court of

Appeals summarily held that the petitioners’ cases were

not justiciable because the “ongoing dispute” involved

“Measure 37 claims for just compensation” and “Measure

49 supersedes those Measure 37 claims and deprives

trial court’s judgments in this case of continuing viability

(emphasis added) Slip Op. at 5.

The Court of Appeals erred in mischaracterizing

the Oregon Supreme Court’s holding in Corey v

Department of Land Conservation and Development,

sunra by extending the interpretation of Measure 49’s

effect on Measure 37’s claims to include extinguishment

of judgments and “causes of action” for compensation

under ORS 197.352(6). The Court of Appeals reached that

conclusion without review and without applying any of the

well-established principles of statutory interpretation.

In holding that “Measure 49 by its terms deprives

Measure 37 waivers-and all orders disposing of Measure 37

claims-of any continued viability...” Corey v. Department

of Land Conservation and Development, 344 Or. 457,

466-67, 184 P.3d 1109 (2008), the Oregon Court of Appeal’s

interpretation was limited to Measure 49 effect on

“claims” when it explained the language in section 5 of

Measure 49’s:

A claimant that filed a claim under ORS 197.352

[Ballot Measure 37 (2004)] on or before that

date or adjournment sine die of the 2007 regular

session of the Seventy-fourth Assembly is

entitled to just compensation as provided in...”

Id. at 463.

The holding in Corey, supra, is erroneously being

expanded by the Oregon Court of Appeals to include

judgments entered upon causes of action, on appeal, under

the premise that the heart of such actions are Measure 37

claims for relief. That interpretation is unsupported by

the text of Measure 49.

MEASURE 49 FAILS TO SUPPORT THE

RETROACTIVE ABOLISHMENT OF A

“CAUSE OF ACTION” UNDER MEASURE 37

In Fromme v. Fred Meyer, Inc. the Oregon Supreme

Court discussed retroactive application of legislation

and stated, “[a]ls a general rule, the court construes

legislation to operate prospectively unless it appears that

the legislature intended to enact retroactive legislation.”

E.g., Mahana v. Miller, 281 Or. 77, 80, 573 P.2d 1238 (1978).

Tbid., 306 Or. 558, 561, 761 P.2d 515 (1988.) To read into

section 5 that claims include causes of action would be to

add words and meaning that the Legislature itself did not

use and the voters did not approve or even contemplate.

This is impermissible. Measure 37 was a referendum put

on the ballot by the voters, but Measure 49 was legislation

that was referred to the voters for their approval. If the

language of Measure 49 does not refer to causes of action

or judgments, then the voters certainly could not be said

to have voted on that. In Republic of Austria v. Altmann

this Court indicated as follows:

In describing the general presumption against

retroactive application of a statute, the Court

there declared, inter alia, that, if a federal

law enacted after the events in suit does not

expressly prescribe its own proper reach but

does operate retroactively- i.e., would impair

rights a party possessed when he acted,

increase his liability for past conduct, or

impose new duties with respect to transactions

already completed-it does not govern absent

clear congressional intent favoring that result.

(Landgraf v. USI Film Products 511 U.S. 244,)

280, 114 S. Ct. 1483, (128 L. Ed. 2d 229).

[bid., 541 U.S. 677, 678, 124 S. Ct. 2240, 159 L. Ed. 2d 1

The Court of Appeals also failed to address the

continued viability of ORS 197.352 until Measure 49

became effective. Any changes to Measure 37 causes

of actions were prospective, rather than retroactive. In

multiple sections, Measure 49 plainly provides for the

ongoing viability of the cause of action for compensation

in subsection (6) of ORS 197.352 “as immediately in effect

before the effective date of this 2007 Act [Measure 49].”

For example, Section 11(7) of Measure 49 specifically

provides:

When relief has |

f this 2007 Act:

a) Additional relief is not

b) An additional claim may not be files

compensation is not due and a waiver may

not be issued with regard to the property

under sections 5 to 22 of this 2007 Act or

ORS 197.352 as in effect immediately befor

the effective date of this 2007 Act.

The continuing viability of ORS 197.352 as immediately in

effect prior to the effective date of this 2007 Act [Measure

49] is also found in subsection (2)(2)(a) of Measure 49.

The plain language in section 11(7) supra, provides

that when relief is not claimed under Measure 49,

compensation is still due under Measure 37. Measure 37

was not repealed, only prospectively amended. “[A] repeal

of an element of a civil cause of action may not be done

through innuendo, but may be done only through explicit

legislation.” Brown v. Vogt, 272 Or. 482, 483-95, 538 P.2d

362 (1975).

Further support for the determination that Measure

49 elimination of the “cause of action” in ORS 197.352(6)

is only prospective is found within the text of Measure

49. In section 4, the amendments to ORS 197.352 are not

effective until the effective date of Measure 49:

ORS 197.352 is amended to read

(1) If a public entity enacts one or more land

use regulations that restrict the residential use

of private real property or a farming or forest

practice and that reduce the fair market value

of the property, then the owner of the property

shall be entitled to just compensation from the

entity that enacted the land use regulation or

regulations as provided in sections 12 to 14 «

this 2007 Act.

jee also subsections 4(2), 4(5), and 4(¢

With clear, unambiguous language, the amendments

in ORS 197.352 providing for the repeal of subsection (6)

apply only to new claims under section 12 to 14 of Measure

49. “[A] party seeking to overcome seemingly plain and

unambiguous text with legislative history has a difficult

task before it,” State v. Gaines, 346 Or. 160, 206 P.3d

1042 (2009), as the courts ordinarily presume that the

legislature intended terms to have their plain, natural

and ordinary meanings. Jd.

In this instance, the Court of Appeals failed to do any

analysis to determine if Measure 49 expressed an intent

to abolish causes of action. Conspicuously absent is any

language retroactively applying the amendments in ORS

197.352 to repeal a pre-existing “cause of action.”

“Unless the legislature expressly provides that a

statute applies retroactively, the general rule is that the

rights and liabilities of a person who is affected by an

event are defined and measured by the statutes in effect

at the time of the event.” Barnes v. City of Portland, 120

Or. App. 24, 852 P.2d 265, Petition for Review Denied, 317

Or. 583 (1993), citing Whipple v. Hoswer 291 Or. 475, 632

P.2d 782 (1981). The judgments on appeal, then, should be

reviewed based on the law in effect at the time they were

entered (Measure 37), and not Measure 49. “In the face

of competing constructions of an enactment, we generally

are required to “choose the interpretation which will avoid

any serious constitutional difficulties.” State v. Lanig, 154

Or. at 674 (citing State v. Duggan 290 Or. 369, 373, 622

P.2d 316 (1981)); State v. Meyers, 153 Or. App. 551, 560,

958 P.2d 187 (1998).

Furthermore, insertion of a provision to abolish a

judgment entered pursuant to a Measure 37 cause of

action would be the same as judicial legislation and would

amount to a judicial amendment of the statute ex post

facto. See, Caldwell v. Wunderlich, 26 Or. App. 407, 552

P.2d 1321 (1976) (citing State v. LaFollett, 132 Or. 257,

284 P.283 (1930)).

Oregon courts have not directly addressed what the

needed criteria is for retroactive legislation. In Measure

49, there is no express intent to abolish a cause of action

and no expressed rational basis to support stripping

petitioners of all relief.

Measure 49’s stated goals (1.e., to ensure that Oregon

Law provides just compensation for unfair burdens while

retaining Oregon’s protections for farm and forest uses

and the state’s water resources (ORS 195.301(2)) de

not address causes of action. The goals do not espouse

a basis for abolishing all remedies for petitioners,

nor is the elimination of a cause of action a means to

achieve the stated goals. The Oregon Court of Appeals

interpretation of Measure 49, however, has had just that

effect and has prevented the petitioners from receiving

“just compensation for unfair burdens” as promised. /bid.

Consequently, no relief is available to the petitioners

under Measure 49 because it excludes all claims arising

from restrictive land use regulations enacted prior to

and contemporaneously with the property being brought

into the urban growth boundary (“UGB”). Measure 49

(9) (h-j). Because the petitioners here all have property)

inside the UGB, they fail to qualify for any remedy und:

Measure 49.

Absent an expressed intent by the Legislature |

apply Measure 49 retroactively to eliminate a “cause of

action”, distinct from a “claim”, Measure 49 should only b«

given prospective application. The petitioners’ judgments

should remain justiciable and be reviewed, on appeal

under the law in effect at the time they were entered

RETROACTIVE APPLICATION OI

MEASURE 49 TO PETITIONERS

JUDGMENTS RAISES CONSTITUTIONAI

ISSUES

lhe retroactive application of a statutory amendme!

that abolishes all remedies has constitutional ramification:

If the Court finds Measure 49 affected the petitioners

judgments in their circuit court cause of action suit

then the Court must determine if such legislation

constitutionally valid as applied to the petitioners. The

Oregon courts have long recognized that a petitioner

has a vested right in a judgment that cannot be taken

away by legislation except under specific circumstances.

See Newsom v. Greenwood, 4 Or. 119, 121-122, 1871 WL

1122 (Or) (1871); Thomas v. City of Portland, 40 Or. 50,

2 66 P 439 (1901); Fisk v. Leith et al, 137 Or. 459, 299 P

1013 (1931); Hall v. Northwest Outward Bound School,

Inc., 280 Or. 655, 572 P.2d 1007 (1977); Barnes v. City of

Portland, 120 Or. App. 24, 852 P2d 265 (1993); Ettor v. City

of Tacoma, 228 U.S. 148, 33 S. Ct. 428 (1913); Landgraf v.

USI Film Products, 511 U.S. 244, 114 S. Ct. 1483 (1994).

In Bradley v. School Bd. of City of Richmond this

Court indicated as follows:

We anchor our holding in this case on the

principle that a court is to apply the law in effect

at the time it renders its decision, unless doing

so would result in manifest injustice or there

is statutory direction or legislative history t

the contrary.

Under existing opinions of the Oregon Supreme Court,

there exists a question as to whether it is constitutional

under the 14th amendment for the legislature to deprive a

landowner of a remedy for damages to property fixed under

an existing statute. In Hall v. Northwest Outward Bound

School, Inc. 280 Or. 655, at 661-662, 572 P.2d 1007 (1977),

referencing Ettor v. City of Tacoma, 228 U.S.148, 33 S. Ct.

428 (1913), the Oregon Supreme Court stated, [t]he [United

States Supreme] Court held that retroactive application

of the repeal deprived the landowner of a remedy for a

liability of the city ful'y fixed under the prior statute

The right to damages in Ettor, supra, closely parallels the

petitioners’ causes of action. The remedy given was for

damages resulting from the city or government’s action.

Measure 37 gave the landowners a remedy for damages

if Metro did not waive their regulations. The Oregon

Supreme Court’s opinion in Hall v. Northwest Outward

Bound School, supra, acknowledged the validity of Ettor,

supra. This issue was not addressed by the Oregon courts

and must be addressed by this Court if it is found that

Measure 49 abolished causes of action under Measure 37.

THE VACATING OF THE JUDGMENT IN

THIS MATTER IS A TAKING OF PROPERTY

RIGHTS

UNITED STATES

part, as follows:

“No person shall... be deprived of life, libert)

or property, without due process of law; no

shall private property be taken for public u

without just compensation.”

In Stop the Beach Renourishment,

Dept. of Environmental Protection this Ci

follows regarding the takings clause

[T]Jhough the classic taking is a transfer

property to the State or to another privat

party by eminent domain, the Takings Claus:

applies to other state actions that achieve t

same thing.”

[This court continued on to identify various

circumstances where it had found there has

been a taking. Here, like in Webb’s Fabulous

Pharmacies, Inc. v. Beckman, 449 US 155,

163-165, there has been a “recharacterization

as public property what was previously private

property”. Here, petitioners private property,

money judgments against Metro, were taken

by judicial action and handed back to Metro by

relieving it of the financial obligation .

RECONCILIATION OF THIS COURT’S

HOLDINGS ON CONCLUSIVENESS OF

STIPULATIONS IN RELATION TO THE

APPLICATION OF MOOTNESS DOCTRINE

TO RETROACTIVE CHANGES OF LAW.

UNITED STATES Const. AMEND. XIV

rtinent part as follows:

[njor shall any State deprive any person of life

liberty, or property, without due process of law;

nor deny to any person within its jurisdictior

the equal protection of the laws.

in Plaut, this Court stated that, “[w]hen a new law makes

clear that it is retroactive, an appellate court must apply

that law in reviewing judgments still on appeal that were

rendered before the law was enacted, and must alter the

outcome accordingly.” Jbid., 514 U.S. 211, 226, 115 S. Ct.

1447, 1457 (U.S. Ky. 1995); see, Landgraf v. USI Film

Products, 511 U.S. 244, 273-280, 114 S. Ct. 1483, 1501-

1505, 128 L. Ed. 2d 229 (1994). This Court distinguished

herein “between judgments from which all appeais have

peen forgone or Compie ted, and juagments that ren

on appeal (or subject to being appealed)” stating that it

“is implicit in what [U.S. Const.] Article III creates: not

a batch of unconnected courts, but a judicial department

composed of ‘inferior Courts’ and ‘one supreme Court.’

Id., 514 U.S. at 227

Within that hierarchy, the decision of an inferi

court is not (unless the time for appeal has

expired) the final word of the department as a

whole. It is the obligation of the last court in the

hierarchy that rules on the case to give effect

to Congress's latest enactment, even when that

has the effect of overturning the judgment of

an inferior court, since each court, at ever’

level, must decide according to existing laws

Having achieved finality, however, a judicia

decision becomes the last word of the judicia

department with regard to a particular cas¢

wr controversy, and Congress may not declars

retroactive legislation that the law applicable 1

mat very case was something other than wl

e courts said it wa

in Christian Legal .

alifornia, Hastings Coll

Yourt opined as follov

itigant on

ntitled to have [their] case tried upon

issumption that ... facts, stipulated into t

cord, were established.” H. eon & |

United States, 197 U.S. 442 , 447, 25S

the bookend to a party’s undertaking to be

bound by the factual stipulations it submits. See

post, at 3005 (ALITO, J. dissenting)(agreeing

that “the parties must be held to their Joint

Stipulation”). As a leading legal reference

summarizes:

“{ Factual stipulations are] binding and

conclusive ..., and the facts stated are

not subject to subsequent variation.

So, the parties will not be permitted

to deny the truth of the facts stated, ..

or to maintain a contention contrary

to the agreed statement, ... or to

suggest, on appeal, that the facts were

other than as stipulated or that any

material fact was omitted. The burden

is on the party seeking to recover to

show his or her right from the facts

actually stated.” 83 C.J.S. Stipulations

§ 93 (2000)(footnotes omitted).

[his Court has accordingly refused to conside1

a party’s argument that contradicted a joint

“stipulation [entered] at the outset of th[e]

litigation.” Board of Regents of Univ. of Wis.

System v. Southworth, 529 U.S. 217, 120 S

Ct. 1346, 146 L. Ed. 2d 193 (2000). ...[F Jactual

stipulations are “formal concessions ... that

have the effect of withdrawing a fact from issue

and dispensing wholly with the need for proof

of the fact. Thus, a judicial admission ...

conclusive in the case.” 2 K. Broun McCormick

on Evidence § 254, p. 181 (6th ed. 2006)(footnot

mitted)

Tbid., 130 S. Ct. 2971, 2983, 177 L. Ed. 2d 838 (U.S. (Cal.)

2010). The Ist Circuit Court of Appeals has stated that, “[a]}

stipulation as to facts also functions as a waiver of legal

defenses to the establishment of the particular element

to which the parties have stipulated, and therefore is not

reviewable on appeal.” United States v. Silva, 554 F.3d 13,

23-24 (Ist Cir. 2009), citing United States v. Meade, 175

F.3d 215, 223 (1st Cir. 1999). Under 83 C.J.S. § 86, it states

that submission of a matter on stipulated facts is akin to

the parties requesting a directed verdict. /bid. (citations

omitted). This Court has held that, “[a] party cannot

complain of a judgment or order entered in accordance

with his request.” U.S. v. City of Memphis, 97 U.S. 284,

1877 WL 18624 (U.S. 1877).

Pursuant to Measure 37 each petitioner owned

property in the form of a money judgment reflecting the

trial court’s final determination which was entered for

petitioners on December 5, 2007, prior to the enactment

of the amendments contained in Measure 49.

In its determination of this ma*ter, the Oregon Court

of Appeals applied the precepts dictated by this Court in

Plaut, but did so through the Oregon Court of Appeals’

case of State ex. rel. English v. Multnomah County, 227

Or.App. 419, 206 P.3d 224 (2009)(“English I” as referenced

therein). The Oregon Court of Appeals analyzed its own

prior cases of Corey v. DLCD, 344 Or. 457, 464, 184 P.3d

1109 (2008) and Cyrus v. Board of County Commissioners,

226 Or.App. 1, 202 P.3d 274 (2009), specifically finding that

Measure 49 was retroactive and applied “to all Measure

37 claims, successful or not, regardless of where they

[were] in the Measure 37 process.” /d., citing English I

at 426-427 (quoting Corey at 465) (emphasis in original)

eos)

yAU

Corey stated “Measure 49 by its terms deprives Measure

37 waivers—and all orders disposing of Measure 37

claims—of any continuing viability.” Jd., citing English I

(quoting Corey at 466-467)(emphasis in original). E’'nglish

I went on to explain the court’s mootness determination

in Cyrus as supported by the availability of litigation of

their issues under Measure 49. However, in English I the

matter was differentiated since the claim was considered

“merged” into the judgment because of the voluntary

dismissal of that matter during the appellate process

by the State, resultant of a final determination of the

judicial department. /d. This differentiation was found

to not apply to the instant matter The Oregon Court of

Appeals explained it as “English had a judgment that (1)

adjudicated her Measure 37 claim for just compensation

long before the effective date of Measure 49 and (2) was

not subject to judicial revision.” /d., citing English I at 428.

While the Oregon Court of Appeals acknowledged

that the appeal in E’nglish I arose from enforcement

activities regarding English’s efforts to compel the

county to satisfy the judgment for compensation through

mandamus proceedings, it ultimately distinguished it from

the current matter where a valid stipulation to all facts,

including those pertaining directly to whether a valid claim

existed under Measure 37, left only Metro’s challenge to

the valuation of such claim to which the parties had not

entered a stipulation. In a later case in the English matter,

the Oregon Court of Appeals mimicked Plaut by stating

that, “[w]Jhen the dispute involving a predicate Measure

37 claim for just compensation is ongoing (whether in

another forum or on appeal), Measure 49 supersedes the

Measure 37 claim and requires the parties to proceed

under the new standards in Measure 49 to determine their

rights.” Id., citing English I]. In determining this matter,

the Oregon Court of Appeals erroneously engaged in a

judicial taking by adopting an automatic reversal of the

trial court judgments in any and all cases pertaining to

Measures 37 (Chapter 1 Oregon Laws 2005), regardless

of individual circumstances such as a valid and binding

stipulation between the parties or the pre-dating of the

entry of judgment on said stipulated facts, and absent any

review whatsoever of the merits of the appeal to determine

whether affirmance was appropriate to render the trial

court judgment final.

Resolution of the questions at issue herein requires

clarification of the conflicting decisions rendered by

this Court under Plaut and Martinez, supra. While the

Oregon Court of Appeals adopted a procedure similar

to Plaut by applying Measure 49 retroactively to moot

petitioners’ claims since the matter was still pending final

determination by the judicial department, petitioners

believe such matters remain subject to any viable, binding

stipulation of the parties before the trial court, as this

Court very recently said in it’s analysis in Martinez. The

only exceptions to the binding effects of stipulations were

not argued by Metro nor found by the Oregon Court of

Appeals, which simply erred by entering a determination

mooting the appeal which was directly contrary to the

parties’ stipulation.

The parties herein stipulated as to all of the facts of

the case, including that the petitioners herein maintained

viable claims against Metro under Measure 37 for which

they were entitled to just compensation. The issue at hand

was by what method the damages should be calculated.

Under Metro’s method, the claimed damages were zero

The damages under the petitioners’ theory were extensive.

Both petitioners submitted stipulated facts to the trial

court and the Petitioners won the legal argument, which

allowed them to be awarded their damages.

As this Court indicated in Martinez, petitioners

herein were entitled to rely upon the binding nature

of the stipulations of the parties before the trial court,

and this is true even if the law changed. The application

of a change of law retroactively under Plaut to defeat

the stipulated facts of the parties would overturn this

Court’s long-standing precedent under H. Hackfeld & Co.,

supra, as acknowledged in Martinez. Plaut is silent as to

whether the merits of an appeal should be addressed or

whether the matter can be considered automatic, without

reaching the individual circumstances and merits of

an appeal, as the Oregon Court of Appeals did in this

matter. It is the petitioners’ contention that Plaut did not

authorize automatic reversals based on changes of law

that may moot an inferior court’s determination when

applied retroactively since it would not account for various

circumstances that could exist such as (1) stipulations

between the parties as to all of the issues foreclosing

further judicial review of those stipulated facts, thereby

binding the parties to such matter as a final determination

of the judicial department under Plaut; (2) where

affirmance on appeal may resort back to the trial court’s

valid judgment date predating the change of law at issue;

or (83) where the change of law cannot apply to overturn

a trial court judgment under the trial court’s equitable

powers since no valid claim would remain contrary to the

reasoning of United States v. Munsingwear, Inc., 340 U.S.

36 (1950) and it’s prodigy.

toes f 7

Plaut and the concept of application of a retroactive

change of law to any determination pending judicial

review at any stage in the judicial department was not

without exceptions, but require review by this Court for

specifications on those exceptions whether it be through

review of the merits or more specific to the circumstances

raised herein. This Court’s long-standing precedent

respecting reliance upon stipulated facts should not

be disturbed or excepted since such would disrupt the

confidence in reliance thereon and thus overwhelm the

entire judicial system into trying each and every fact

in each and every case. The Oregon Court of Appeals

failed to take this anomaly of conflicting positions into

consideration in reliance on Oregon Supreme Court case

law that was subject to differentiation from the instant

matter, and the Oregon Supreme Court subsequently

denied certiorari on the same basis.

A concession by stipulation to the liability for

compensation for a specified claim should not be reachable

as moot by application of a retroactive change of law,

but should be an exception in the form of a waiver of

such challenge by virtue of the stipulation itself. This

Court should grant certiorari to reconcile the conflicting

applicable law in this matter to determine whether the

Oregon Court of Appeals erred in adopting an automatic

mootness doctrine overturning a trial court judgment

absent review of individual circumstances and merits of

each case.

NEED FOR ADOPTION OF MANIFEST

INJUSTICE EXCEPTION TO APPLICATION

OF MOOTNESS DOCTRINE TO

RETROACTIVE CHANGES OF LAW.

U.S. Const. AMEND. XVI § 1 states, “...nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.” Plaut v.

Spendthrift Farm, Inc. states “[wJhen a new law makes

clear that it is retroactive, an appellate court must apply

that law in reviewing judgments still on appeal that were

rendered before the law was enacted, and must alter

the outcome accordingly.” Jbid., 514 U.S. 211, 226-227,

115 S. Ct. 1447, 1457 (U.S. Ky.,1995); see United States

v. Schooner Peggy, 1 Cranch 108, 2 L. Ed. 49 (1801);

Landgraf v. USI Film Products, 511 U.S. 244, 273-280, 114

S. Ct. 1483, 1501-1505, 128 L. Ed. 2d 229 (1994). The 7th

Circuit has acknowledged this Court’s previous holding

that applying a law retroactively such that it results in

“manifest injustice” violates the Due Process Clause.

Jideonwo v. I.N.S., 224 F.3d 692, 697 (C.A.7 2000), citing

Bradley v. School Bd. of City of Richmond, 416 U.S.

696, 716, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). As the

7th Circuit explained, “[mJanifest injustice may occur

where a new law changes existing rights or imposes

unanticipated obligations on a party without providing

appropriate notice.” /d., see Bradley, 416 U.S. at 720; see

also Landgraf, 511 U.S. at 266.

Under Eastern Enterprises v. Apfel, this Court foun

that, “[rjetroactive legislation is generally disfavored ..

because it can deprive citizens of legitimate expectatior

and upset settled transactions.” /bid., 524 U.S. 498, 501

118 S. Ct. 2131, 2136 (U.S.Mass. 1998), citing General

Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S. Ct. 110

1112, 117 L. Ed. 2d 328 (U.S. Mich. 1992).

In Bradley v. School Bd. of C

Court said:

We anchor our holding in this case on th:

principle that a court is to apply the law in effect

at the time it renders its decision, unless doing

so would result in manifest injustice or there

is statutory direction or legislative history t

the contrary.

The 9th Circuit has recently reiterated the Bradley

test for retroactivity under Oregon Natural Desert Ass’n

v. Locke, stating that, “(t]he Bradley test for whether

a newly passed law should be given retroactive effect

examines (1) whether the new law imposes new lega!

consequences for past conduct, (2) whether manifest

injustice would occur by applying the new law, and (3)

whether any contrary legislative history exists.” /bid.,

572 F.3d 610, 617 (C.A.9 (Or.) 2009), citing Bradley, 41

U.S. at 711-12, 94 S. Ct. 2006.

In the instant matter pursuant to Measure 37, a mone

judgment reflecting the trial court’s final determination

was entered for petitioners on December 5, 2007, prior to

the December 6, 2007, effective date of Measure 49 at issur

herein. Although Metro had stipulated to the facts of th:

case and the petitioners’ entitlement to just compensatio

it filed an appeal

On June 24, 2009, after briefing and oral argument,

the Court of Appeals filed its written opinion vacating

petitioners’ judgments and remanding them back to the

trial court for a judgment of dismissal. In its determination

of this matter, the Oregon Court of Appeals erroneously

adopted an automatic reversal of the trial court judgments

in any and all cases pertaining to Measures 37 (Chapter 1

Oregon Laws 2005), regardless of individual circumstances

such as a valid and binding stipulation between the parties

and absent any review whatsoever of the merits of the

appeal to determine whether affirmance was appropriate

to render the trial court judgment final.

Automatically applying the precepts of Plaut

through the English I and English IJ Oregon cases

has constitutional ramifications in this matter. Under

existing opinions of the Court, there exists a question as

to whether it is constitutional under the 14th amendment.

for the Legislature to deprive a landowner of a remedy

for damages to property to be fixed under the existing

statute. Applying a law retroactively such that it results

in “manifest injustice,” which “may occur where a new

law changes existing rights or imposes unanticipated

obligations on a party without providing appropriate

notice” violates the Due Process Clause. Jideonwo at

697. It can also work to “deprive citizens of legitimate

expectations and upset settled transactions” and is thus

disfavored. Apfel, 524 U.S. at 501

Petitioners were not placed on appropriate notice that

the law affecting their rights under Measure 37 would

be changing, nor that Measure 49’s intent would be to

deprive them altogether of any rights to just compensation

for the restrictions placed upon their land by Metr

in the adoption into the urban growth boundaries :

required by law. Jideonwo at 697. Petitioners maintained

a legitimate expectation not only in Measure 37, but in

Metro’s concession and stipulation that the petitioners

were entitled to just compensation therein, which

petitioners considered a “settled transaction.” Apfel,

supra. Petitioners maintain no claim under the new

Measure 49, unlike the claimants in Corey and Cyrus,

upon which the Oregon Court of Appeals relied heavily in

mooting the current matter. Thus, application of Measure

49 to moot the trial court judgment of just compensation

to the petitioners in this matter evidences a “manifest

injustice” requiring review by this Court.

Plaut and the Oregon cases of English I and English

appear to authorize actions taken in violation of a person’s

Due Process rights and resultant of a manifest injustice

through a change of law affecting and extinguishing

altogether their existing rights to just compensation

Neither Plaut nor English I or II discuss exceptions t

such a rule, but their language also does not appear t«

prohibit the application of exceptions on individual case

by-case bases. The more stringent criteria of Bradley,

however, seems to apply a “manifest injustice” exception

that has not previously been addressed in Plaut or any

other similar cases, although the 7th Circuit has opined a:

such in its retroactivity analysis contained in Jideonu

SUPT U

This Court should grant certiorari in this matt

to address the application of the Bradley factors in thi

case and for those similarly situated, who as Petitione:

maintained a legitimate expectation in stipulation

n the application of existing lav

LARIFICATION OF THE APPLICATIO

OF THE MOOTNESS DOCTRINE AS IT

PERTAINS TO THIS COURT’S POSITION

WITH RESPECT TO THE DISCRETIONARY

APPLICATION OF EQUITABLE POWERS

Mootness doctrine” is a principle of judicial proced

ereby courts will not decide moot cases — that is, ca

: }

which there is no longer any actual controver

iowever, the mootness doctrine is inapposite hi

nder U.S. Const. AMEND. V citizens are protected fro

private property be[ing] taken for public use without just

ompensation.” Application of the mootness doctrine ir

he instant case completely eliminates petitioners abilit)

» receive just compensation, contrary to the holding «

nited States v. Munsinqwear, Inc., 340 U.S. 36 (1950

i Munsingwear, and it’s prodigy, the Supreme Cx

is held that, where intervening mootness prevent

ppellate review of the underlying decision, the decisio

7 7 y | | .

ow should be vacated only where vacatur is equital

/QUuITADIC moouness aocurine coraliny

hich courts dismiss appeals as “moot,” is

ragmatic principle, grounded in the noti

hat, with the passage of time after a judgmer

n equity and implementation of that judgmen

ffective relief on appeal becomes impract

dont and thoaratner

ri Civ

icates a case, thereby rendering relief impractical

inobtainable when vacatur is in equitable, it is an abu

if that court’s equitable powers. The very fact that tl

Oregon Court of Appeals declared moot the appeal a1

rdered the trial court to vacate it’s judgment — witho

ver reaching the merits of the case — represent:

ignificant abuse of power and violates the ec:

sponsibility in exercising its equitable authorit

i Mu nStNGguU Cul ivi » a i i 5 vl VQl} y

; addressed circumstances in which a case becom

noot while it is pending review by a higher court. A cou

‘an only overturn a case by reason of mootness due to

hange in law and order vacatur in the event that fin

judgment is still pending zf there is finding that vacatu

is equitable. Thus, the Oregon Court of Appeals shoul

have reached the merits of the appeal to determine

Metro raised any meritorious issues, because if it wa

letermined that Metro’s claims lacked merit, then t}

trial court judgment would be the final judgment of t!

judicial department, and the trial court judgment shoul

be upheld. As such, petitioners herein would have a vest

right in the judgment protected fron

Se wag

legislative law

tition

igments, eX1St

.

¢

| ng, repugna

inciples of justice to completely extinguish the right:

nd claims of the petitioners to their judgments without

nsidering the issues at hand. The fact that Metro was able

o dismiss years of time and resources spent by petitioners

1) affronting their constitutionally protected property

ights when it filed its notice of appeal is repugnant to the

ustice system because Respondent Metro had already

tipulated to the facts and the viability of petitioners

laims. It is undisputedly inequitable to vacate the cass

vithout consideration to the years of resources and time

nvested developing substantive arguments — arguments

hat included facts to which Metro had stipulated before

he trial court. Nevertheless, the Oregon Court of Appeals

‘fused to even review whether the claims made in t

irt ire required | un mparviallvy

rcising discretion and in reviewing the substance

rzuments, there are also procedural requirements t

vhich they must adhere. Proper procedure with a chang

f law to uphold the preservation requirement would

ictate that a post-judgment motion first be brought

efore the trial court. Instead, Metro was allowed to file

nly a notice of appeal which the Oregon Court of Appeals

tilized to implement its erroneous automatic mootness

bsent specific inquiry into this case. Had Metro followed

he proper procedure, the trial court would have had the

pportunity to rule on the matter and petitioners would

ive been able to be heard on whether Measure 49 wa

stITULIONLY apple to extinguish their clain

Restos Connie,

ases referenced as precedent

Appeais, c

alid

rnea

‘

an be distinguished by a subtle, yet substant

lifference. In the cases of Cyrus and Corey the appellan

‘laims could still be remedied under Measure 49, and 1

«

*

ppellants thereby retained their respective rights

this case, however, Measure 49 annulled the possib

f petitioners refiling their claims und

he hearing before the Oregyx

ym Court

Mm Wou

ase Richard Brenner, . >| for nt

1 tne record. that

nder Measure 49. Again,

oa 1 #4 oO TI ee th Ion «) > 1

Onincal b rt waice av:

® ‘

t wy

East Mai

ford, Orep

known as Measure 37).’ On appeal, Metro raises thre

assignments of error concerning (1) the trial court’s

entry of its corrected general Judgments nunc pro tunc

to December 5, 2007-the day before Measure 49 became

effective-to avoid the effect of the measure; (2) the trial

court’s conclusion that ORS 197.352 did not authorize

Metro’s “ methods for determining whether its regulations

reduced the fair market values of [plaintiffs’] properties”;

and (3) the trial court’s determination that Metro’s

“regulations had the effect of reducing the fair market

values of [plaintiffs’] properties” and its corresponding

awards of just compensation. Because we conclude that

plaintiffs’ cases were not justiciable after the enactment of

Measure 49, we do not reach the merits of the assignments

of error raised by Metro on appeal. Accordingly, we

vacate the trial court’s judgments and remand for entr.

of judgments dismissing plaintiffs’ claims as moot.

The operative procedural facts are undisputec

Plaintiffs own properties that are subject to a Metr«

ordinance that (1) brought the properties into the regiona

1. To provide context for our discussion, Ballot Measure 3

(2004), which was codified as former ORS 197.352 (2005), amended

by Oregon Laws 2007, chapter 424, section 4, renumbered as

ORS 195.305 (2007), provided, generally, that public entities that

enacted or enforced land use regulations that adversely affected

the fair market value of a claimant’s property either had to pay

just compensation or waive the offending regulations. In 2007, the

voters passed Ballot Measure 49, Oregon Laws 2007, chapter 424,

which “ extinguish[ed] and replace[d] the benefits and procedures

that Measure 37 granted to landowners.” Corey v. DLCD, 344

Or. 457, 465, 184 P.38d 1109 (2008). Throughout this opinion, all

references to ORS 197.352 are to the 2005 version of that statu

urban growth boundary, (2) designated the properties

for industrial or urban residential development, and (8)

applied a temporary 20-acre minimum lot size that would

remain in place until the responsible local governments

adopted comprehensive plan provisions governing urban

development. Because of the effect of those regulations,

plaintiffs, pursuant to [211 P.3d 304] ORS 197.352, filed

written demands for just compensation witl

¢ = é> ‘

i'->™ FO i»

Metro. After Metro denied OSE

compensation, plaintiffs filed actions

pursuant to ORS 197.352¢6).?

Ultimately, on December 5, 2007, the trial court

entered a general judgment that awarded plaintiffs just

compensation in the amount of $14,818,158. The next day,

on December 6, Measure 49 became effective. Then, on

December 7, the trial court entered corrected general

judgments that added a money award to the judgment

[fa land use regulation continues to apply to the subject propert)

nore 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 circiiii

court in which the real property is located, and the present owner

»f the real property shall be entitled to reasonable attorney fees,

expenses, costs, and other disbursements reasonably incurred t

llect the compensation.”

or each plaintiff. Those judgments included a notatic

that they were nunc pro tunc to December 5.’ Thereafte

Metro appealed.

The dispositive issue is whether plaintiffs’ case

emain justiciable. As the Supreme Court stated in Corey

v. DLCD, 344 Or. 457, 464, 184 P.3d 1109 (2008), “ {i]f it

becomes clear in the course of a judicial proceeding that

resolving the merits of a claim will have no practical effect

on the rights of the parties, this court will dismiss the claim

as moot.” In this court, the parties filed memoranda of

additional authorities addressing the issue of justiciability-

namely, whether the cases are moot. Plaintiffs cite State

ex rel English v. Multnomah County, 227 Or.App. 419, 206

P.3d 224 (2009)( English I ), in support of their argument

that this matter is not moot. Specifically, plaintiffs contend

that, asin English J, plaintiffs’ Measure 37 claims for just

compensation merged into the trial court’s judgments;

thus, this appeal does not concern pending Measure 37

claims, and we should resolve the merits of the issue

raised on appeal. Metro counters that

English | I | says a Measure 37 claim is extinguishe

‘merged’ into the circuit court judgment) and not affecte:

by Measure 49 after any right to appellate review has

3. Because we conclude that the trial court’s judgments lacke

yntinuing viability, we need not address the parties’ arguments

ncerning the effect of the trial court’s

nunc pro tunc notatio

expired. That is what happened in the English [ J ] cas

Multnomah County voluntarily dismissed its appeal of

a circuit court compensation judgment. In this case,

* * * Metro filed a timely appeal of the circuit court

compensation judgment, and that appeal is now befor:

this court. There is no final judgment in this case

* * * Because there is no final judgment in this case

the circuit court judgment before the court zs affected

by passage of Measure 49. This court should remand this

case to the circuit court with instructions to dismiss it as

moot by passage of Measure 49.”

(Footnote omitted; emphasis in original.) We understand

Metro to contend that, because the corrected genera!

judgments that are the subject of this appeal lacked

continuing viability after the enactment of Measure 49,

plaintiffs’ cases are no longer justiciable and we should

exercise our jurisdiction to make that determination and

vacate the trial court’s judgments and direct that court

to dismiss plaintiffs’ Measure 37 claims. We agree with

Metro that, under the Supreme Court’s and our case lav

plaintiffs’ cases are no longer justiciable

Because it is the basis for the parties’ contention:

concerning justiciability, we begin by addressing the

application of English I to this case. In English 1

a landowner, English, obtained a judgment for just

compensation against the defendant county. 227 Or.App

at 423, 206 P.3d 224. Although the county appeale

YDCTIULL

tee

that compensation judgment, it ultimately dismissed i

appeal. /d. Thereafter, the county refused to satisfy the

compensation judgment, and English sought a writ of

mandamus to compel payment. /d. at 424, 206 P.3d 224

After the trial court dismissed the alternative writ o

mandamus, English appealed. /d. at 425, 206 P.3d 224

(211 P.3d 305] In rejecting the county’s contention tha

the appeal was moot in light of the passage of Measure

49, we summarized the case law addressing the effect

Measure 49 on the justiciability of pending appeals:

“In Corey, the Supreme Court examined the text an

context of Measure 49 and determined that ‘Measure 49

pertains to all Measure 37 claims, successful or not, and

regardless of where they are in the Measure 37 proces

Page 216

344 Or. at 465, 184 P.3d 1109 (emphasis in origina

The court ultimately held that ‘Measure 49 by its terms

deprives Measure 37 waivers-and all orders disposing of

Measure 37 claims-of any continuing viability.’ /d. at 466

67, 184 P.3d 1109 (emphasis in original). Thus, because

DLCD’s order in that case had no continuing viability, 2

decision by the Supreme Court as to whether this court or

a circuit court had jurisdiction to review the order could

have had no practical effect on the parties and the ca

was moot

‘We recently applied Corey in Cyrus v. Board of Cour

ommissioners, 226 Or.App 202 P.3d 274 (2009)

yrus, the petitioners appealed a circuit court judgme!

essentially affirming an order of the Deschutes County

Board of Commissioners that waived particular land use

regulations. While the appeal was pending, Measure 49

became effective, and, like the Supreme Court in Corey,

we were faced with determining whether the appeal

was moot. The petitioners in Cyrus argued that our

determination of the validity of the Measure 37 waiver

would have a practical effect on the parties because it

was a predicate to the argument that the waiver had

vested under Measure 49. 226 Or.App. at 8, 202 P.3d 274.

However, we concluded that the appeal was moot because,

as the Supreme Court held in Corey Measure 49 deprived

all orders disposing of Measure 37 claims of continued

viability, and the validity of the waiver could be litigated

in a Measure 49 proceeding. Cyrus, 226 Or.App. at 13

202 P.3d 274.”

Based on those cases, we reasoned in English

hat, when the county dismissed its appeal from the

compensation judgment, resulting in the issuance of the

appellate judgment several months before the effective

date of Measure 49, the county had exhausted any

opportunity for appellate review. 227 Or. App. at 428, 206

P.3d 224. Accordingly, English had a judgment that (1)

adjudicated her Measure 37 claim for just compensation

long before the effective date of Measure 49 and (2) was not

subject to judicial revision. /d. Under those circumstances

English’s claim for just compensation merged into that

udgment and was extinguished; thus, “ English was left

final judgment and the right to «

ittand) eat

AALID AYP _

Livities- that is, E nptie h’ 8 atte mpts to compel the count

o satisfy the compensation judgment by seeking a writ

mandamus. This is not an appeal concerning an existin;

Measure 37 claim. For that reason, our determinatio

whether the county must pay the compens: en Ty rme

vill have a practical effect on the rights of tl

lv the anneal }

8

ecently applied o1 ' Engl

ntete ase, English v. Malmomohe ‘ounty 229 Or. Ay

», 209 P.3d 831 (2009)( English I] ). in English I, t

county appealed the supplemental judgment that awarde

English attorney fees, expenses, and costs under Measur

37. We noted that the county appeared to contend that

‘because Measure 49 applies to all Measure 37 claims, th

supplemental judgment that awarded English attorne

fees and costs under Measure 37 is 8 deprive cd of continuin

viability” and rendered the appeal moot. #7 Lor

r.App. at 24, 209 P.3d 831

reyect

peal was not moot

e foundation of our holding in English I: “When the

dispute involving a predicate Measure 37 claim for just

compensation is ongoing (whether in another {211 P.3d

306] forum or on appeal), Measure 49 supersedes the

Measure 37 claim and requires the parties to proceed

under the new standards in Measure 49 to determine

1eir rights.” English IT, 229 Or.App. at 26, 209 P.3d 831

Applying that principle to this case, we conclude that

plaintiffs’ cases are not justiciable. Here, unlike in English

f and English II, the dispute involving plaintiffs’ Measure

37 claims for just compensation was ongoing as of the time

that Measure 49 became effective-indeed that ongoing

dispute about plaintiffs’ Measure 37 claims for just

compensation is the subject of this appeal. Thus, Measure

49 supersedes those Measure 37 claims and deprives the

trial court’s judgments in this case of continuing viability.

See Corey, 344 Or. at 466-67, 184 P.3d 1109 (so holding).

For that reason, any resolution by this court of the issues

raised on appeal will have no practical effect on th

arties. Accordingly, we conclude that plaintiffs’

re no longer justiciable. Olson v. DLCV, 220 Or.App

184 P.3d 1220 (2008) (vacating trial court’s saleuabhs

and remanding case to trial court to enter a judgment

lismissing the plaintiff's Measure 37 claim because the

case was no longer justiciable after the enactment

le; AsuTre 49)

judgments vacated

en

. issing’ nliaint iff ~

.PPENDIX B — GENERAL JUDGMENT AN

MONEY AWARD IN THE CIRCUIT COURT OI

THE STATE OF OREGON FOR THE COUNTY

9F CLACKAMAS, DATED DECEMBER 5, 20

THE CIRCUIT COURT OF T

TATE OF OREGON FOR THI

OUNTY OF CLACKAMA

AcAULLALI 4 Aad — Me

all parties after the parties had filed their cross Moti

wr Partial Summary Judgment, and after the Court ha

ssued its opinion on November 2, 2007 granting Plaintif

Black, Miracle, Bleeg, Saxon and MacLaughlan’s Motio!

for Partial Summary Judgment as to the legal basis f

letermination of the reduction in fair market value; 1

therefore, based upon the Motion for Partial Sum1

Judgment and the attached stipula

eet wt a ee 4

hof Plaintiffs’ property | to the U ran Grow rth Boundar

UGB”) and imposed 20 acre minim ar ae

bari iffs acquired their properti

rt icGlTILiilis | £ii295.5i' i ATA AN chili A1icgail

(as commonly 7 used in condemnation cases) basex

pon values of comparable properties, both with and

vithout the METRO restriction and factoring in the

yning at the time of acquisition, is consistent !

he plain lancuage of ORS 197.352

Ji cs

Dasea up Stipulati¢ ns a { 1O]

+ ’ a4 -_ P L. syict AAmnNnaNc:.

parties, the Court finds that the just compensati

Vliarz pee oF . a . 7

e | laintiffs under

<> a '

» 7 16 S 0

ry

é 44 s i?

; oe CON

amount of $1,58

4

¥

Aa +1 + Oe >lalar:

LJUC yié

i@ amou

nt of $10,540,6

N . eale’ y oF Onn

>

4 \4 447

in tne amount

1Q) >

OWERMAN

P.O. Box 100

Oregon City, OR 9704

Phone: (503) 650-0700

Facsimile: (503) 650-06

AA nal- dantaMhn

.PPENDIX C — LETTER ORDER (

THE CIRCUIT COURT OF OREGO

DATED OCTOBER 12, 2007

FIFTH JUDICIAL DISTRIC1

\CKAMAS COUNTY COURTHO

807 MAIN STREET, ROOM 304

MIREGON CITY, OREGON 9704

HOMAS J. RASTETTE!

VNTR

Donald B. Bowern

Bowerman & Bouti1

P.O. Box 100

a

regon City, |

Barton Bobbitt

Ambrose Law Group,

222 SW Columbia Str

Portland, OR 97201

Richard Benn«s

Office of Metro Atte

600 NE Grand Aven

Portland. OR 9723

eannette L. Moore

Law Offices of Ivan Karm:

1023 SW Yamhill Street, Su

Portland, OR 97205

Re: Black v. Metro, No. CV06080473; Miracle v. Metro,

No. CV06110417; Saxon v. Metro, No. CV07050090; Bleeg

v. Metro, No. CV07050101; MacLaughlan v. Metro, No

CV06120406

‘his matter came before the court on October 1, 2007 o

the parties’ cross motions for summary judgment. At that

time the court heard the arguments of counsel and took

the matter under advisement. This letter sets forth ths

-ourt’s findings and conclusion:

sackground

[hese Measure 37 cases have been consolidated by)

stipulation of the parties and involve five separate parcels

of land located in Clackamas County. All five of the

claimants acquired their properties when the land was

zoned Residential-Agricultural (RA-1), which allowed

the creation of one-acre lots. On December 5, 2002 the

Portland Area Metropolitan Service District (“Metro”)

adopted Ordinance No. 02-969B which added each of

the five parcels to the Urban Growth Boundary (“UGB”)

and imposed a temporary 20-acre minimum parcel

ize. Claimants Darrin Black (“Black”), Roger and An:

Ve eas 4 y

BS § ALF ORE

is

Miracle (“Miracle”), Virginia Bleeg (“Bleeg”), and Harold

and Rebeca MacLaughlan (“MacLaughlan”) acquired

their properties prior to their inclusion within the UGB

and have maintained ownership of the properties since

acquisition. Lila Saxon (“Saxon”), the fifth claimant, also

acquired her property prior to Metro’s ordinance, but

then sold her property on a land sale contract on March

25, 1986. Saxon later re-acquired the property on April

18, 1988 by Estoppel Deed.

Each plaintiff has made Measure 37 claims to various

governmental entities, including Metro. While some of

the entities have waived their regulations, Metro has

denied all of plaintiffs’ claims. Plaintiffs have moved for

summary judgment and asked for declaratory relief for

Plaintiff Saxon. The defendant has made a cross motior

for partial summary judgment

Analysis

Method for f ¥

Measure 37

Both parties have moved for summary judgment 01

the issue of the proper method for determining “just

compensation” under ORS 197.352 (2005). Plaintiffs

believe the proper method compares the sales of similar

properties both with and without the land restriction,

keeping in mind the applicable zoning at the time of

acquisition of the property. For example, if current

regulations require a 20-acre minimum parcel size, and

a property was zoned to allow one-acre lots at the tim

ALF E

the owner acquired it, plaintiffs base their valuations o

the current difference in value between the 20-acre parce

as a whole and its value if divided into one-acre parcels

Defendant has used different methods for its valuation

For the Black property defendant has based its valuation

of the properties on the so-called “Plantinga-Jaeger

Method”, which is based on the economic Theory of Land

Rent. In essence, this method takes the original sales price

of a property and adjusts it to current value by using an

appropriate price index. That value is then compared to

the market worth of the property with the new regulation

in place. In the other cases defendant has used the “time

series variation of the Plantinga-Jaeger method”, which

dispenses with the need to apply an index to the original

purchase price because of the availability of recent actual

valuation data. That analysis looks at the “time series

data” before and after the regulation to see if the property

value was actually affected by Metro’s regulation. See

Conder memos in Appendices C, D, E, F and G. Under

these analyses Metro has concluded that there was no

reduction in the value of plaintiffs’ properties. For the

reasons outlined below, plaintiffs’ motion for summary

judgment on the determination of just compensation i

granted and defendant’s motion for partial summar‘

judgment is denied.

Voters adopted Measure 37 by ballot initiative, so thi

court must look at the voters’ intent to understand what

is meant by “just compensation.” The first step in this

analysis is to refer to the text and context of the statute

tself. Roseburg School Dist. v. City of Roseburg, 316 O1

374 (1993). Generally, we assume that voters intended t!

words in a statute to have their plain and ordinary meaning

PGE v. Bureau of Labor and Indus., 317 Or 606, 610-12

(1993). If however, well-defined legal terms are used in the

statute, then those words are given their legal meaning.

Ester v. City of Monmouth, 322 Or 1, 9 (1995) (citing King

v. City of Portland, 2 Or 146, 154-55 (1865)). Finally, if

the voters’ intent is still unclear the court may consider

the measure’s history. Ecumenical Ministries of Oregon

v. Oregon State Lottery Commission, 318 Or 551 (1994

(The history includes sources of information available to

voters at the time of the adoption of the measure, which

may include information in the voter’s pamphlet, such a:

the ballot title, the explanatory statement, arguments fi

and against the measure. /d at 559, n. 8.).

Measure 37 allows the owner to be paid just compensati

if a land use regulation enforced by a public entity)

restricts the use of and reduces the fair market value o

real property. ORS 197.352(1). Section (2) of that statut

tates that:

Just compensation shall be equal 1

reduction in the fair market value of th

affected property interest resulting fror

enactment or enforcement of the land us

regulation as of the date the owner make

written demand for compensation under tl

ection. ORS 197.352(2) (emphasis added)

soth of the phrases “just compensation” ani

ilue” are well-defined legal terms and a1

Vi

‘Li

to assess damages in condemnation cases. Typically, jus

compensation is measured by calculating the difference

between the fair market value of the property before the

taking and the fair market value of the property after the

taking. La Grande v. Rumelhart, 118 Or 166, 176 (1926).

“Fair market value” is further defined as the amount of

money that a property would bring if offered for sale by

an owner who was willing, but not obliged to sell, and

purchased by a buyer who was willing, but not obliged to

buy. Dept. of Transportation v. Lundberg, 312 Or 568, 574

cert. denied, 506 US 975 (1992). Since these terms are both

well-defined and are ordinarily used for condemnation

cases, it can be reasonably inferred that voters intended

the language of the statute to have the same meaning that

the terms have in condemnation cases.

Further analysis of the history of the provision support:

the notion that the voters intended “just compensation”

under Measure 37 to be evaluated in a manner similar

to condemnation cases. Voters in the general election

received a voter’s pamphlet, outlining Measure 37, and

it contained the ballot title, the text of the measure,

an explanatory statement, arguments in favor, and

arguments in opposition. In the “Summary” section of

the ballot title of Measure 37, it informs voters that the

Oregon Constitution requires the government to provide

real property owners with ‘just compensation” when it

condemns or takes private property. It continues to state

that Measure 37 will require local governments to either

pay the owner the reduction in the fair market value of

the affected property interest or forego enforcement «

iat voters contemplated a compar!

ympensation under Measure 37 a

¥ q

+ «| ings 1 } one emnati

ak f Ap PO

etitioners of Measure 37 wrote

ttempting to clarify the compen

x ire "Th, Ariel rit , «7

:

upn tne normal conademna nN |

tate government and local governments h:

n efficient statutory procedure already uss

determine just compensation. The procs

quick, clean, and extremely efficient and w

» the basis for determining just

ler Ballot Measure 37

cactement plalniy

ive understood Measure 37 !

ramework as condemnation cases in evaluating “ju

ompensation.” Accordingly, the court will grant parti

ummary judgment to plaintif fend

im for partial sum)

N ecretary } state, YQ

ceral Klection, Measure 37

us/electio! ov22004/p2

lie ec t will deny plaintiffs’ moti 5 L

judgment on the amount of compensation due to ‘the

claimants. Plaintiffs have argued that an affirmation of

their methodology for just compensation necessitates an

entry of judgment for plaintiffs in the amount of their

Measure 37 claims. However, even though the court has

ruled on a proper method of valuation, there still remains

a genuine issue of material fact because there is evidence

before this court of property values from both parties

Plaintiffs have made claims for specific sums of money

and defendant has countered that the values of plaintiffs’

claims are zero. Because there is a genuine issue of

material fact, plaintiffs’ motion f

rion) r s1mmarv ndagms

il j at’ JuUQs i]

~ denied

ttorney f

is not appropriate at this 1

a Visi Lit LA naqaress f st Wu

r attorney fees or c

-osts because we "rs not oii e a fina

uutecome in each of these cases. Plaintiffs’

1mmary judgment on attorney

motion fo!

Psy } ° ’ >) :

fees and COSts IS dé

laintiff Saxon’s Motion

laintiff Saxon has made an

motion f yr declar ator) it

2sking the court to make a determination that she h: 1d

‘continuous ownership interest” since June 8, 1965. T}

tion is denied for the reasons explained bel

iCaSure oi appiles

any interest therein.

ubtedlv Saxon

Lime OI tne iand Saie contract, it Was n an intere

that Measure 37 has sought to protect. Section (1) of ORS

Eeiwh)] <4) - . mam 3 MMMWMoetinn «unith Cap a ) ’

197.352 must be read in conjunction with Secti i

rovides:

A&

ue of the

us ompensation shall be equ

reduction in the fair market val

iffected property interest resulting fron

enactment or enforcement of the land us:

regulation .... ORS 197.352(2) (emphasis added

When Saxon sold her property by land sale contract

March 25, 1986, she became a contract vendor with t!

right to receive payments under the contract. At tha

point Saxon was no longer an “owner” of the real property)

Under her contract vendor status, her property interest

would have been unaffected by the land use regulations

imposed on the property because it would not have affected

her right to receive the payments under the contract

Saxon remained a contract vendor until she re-acquired

the property on April 18, 1988 by Estoppel Deed from the

purchaser. At this point of acquisition Saxon becam«

wner of her property once again.*

because Saxon Was a contract Ve!

-

.

= rQ a a) r Ta 1TO13 cco (* tiy

e was not a continuous owns

3. Since the doctrine of equitable conversion transf

. contract vendor’s interest in a land sale contract to persona

property, it is arguable that such an interest might not qualify

as an interest in “real property” as required in ORS 197.352 (1

Panushka v. Panushka, 221 Or 145, 149 (1960). Because of n

i eel

; ; 5

1sion on other prounds. | do not need to decide

PPENDIX I SLIFPULAIED f ey

IRCUIT COURT OF THE STATE C \F OR

YOUNTY OF CLACKAMAS

DATED AUGUST 31, 2007

{

| \OTerié

Fe Tees Ld ; & a ree iit

irtial Summary Judgment and s

O materia! iss} ‘ a»

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aa Noxvel 1g] FIOVUTIN

On December 5, 2002, by Ordinance No. 02-969B

effective date, Metro added the subject properties to

the Urban Growth Boundary (“UGB”) and imposed

a temporary 20-acre minimum parcel size on all land

added to the UGB, including subject properties (expires

upon adoption by the City of Damascus or Clackamas

County of new comprehensive plan provisions and land

use regulations) under Metro Code 3.07.1110

Neither the City of Damascus nor Clackamas Count)

has yet adopted new comprehensive plan provisions or land

use regulations to allow urban development of plaintiffs’

properties.

Plaintiffs Black, Miracle, Bleeg and Saxon submitted

claims under ORS 197.352 to the City of Damascus or

Clackamas County (MacLaughlan only) and obtained

“waivers” of the respective city and county regulations

from those local governments. The State of Oregon

entered orders denying plaintiffs’ Black, Bleeg, and

MacLaughlin claims for the reason that the properties

are no longer subject to the state regulations that were

the basis of the claims, having been added to the UGB

The state approved the claim filed by Plaintiff Miracl

iaintiliIs supbmitté Ul Ciailfir ti ULIC LULIUY

the following dates, all of which wer

RA ‘-~ j

“ | . 4 1 : r-< € —< ~

iewed and denied bv the Me

Richard P. Benner, OSB #7!

OFFICE OF METRO ATTORN

100 NE Grand Avenue

ortland, Oregon 97232-2

Att, rneyvyoc fry daofond

PENDIX E — ORDER DENYING REVII

THE SUPREME COURT OF OREGON

DATED SEPTEMBER 17, 2010

IN THE SUPREME COUR!

EF THE STATE OF OREGO

¢

ialntvlil AVC Di ’ 4

eptember

MATE

\PPENDIX F — ORDER DENYING PETITION

FOR RECONSIDERATION IN THE SUPREME

OURT OF OREGON, DATED DECEMBER 9, 20

IN THE SUPREME COURT

FY THE STATE OF OREG(

laintiff-Respont

tHitioner

R DENYING PETITI

RECONSIDERATION

——

Fale

1cCnard

PENDIX G — OREGON LAWS

ELEVANT PORTIONS OF BALLOT

MEASURE 37

&

. ry +

Bi a public entity en ACLS OI

gulation or enforces a land use regulation enacted prior

he

» the effective date of this amendment that restricts tl

e of private real property or any interest therein and

fair market value of the

has the effect of reducing the f

or any interes: therein, then t the owner

,

roperty,

— ; ws > nan: — _ 9

rm pert) shall DE paid just compen sat

| ~ ~ ~Oe?y 5 > x ) } * ~ | : _ +s

LOI DE equai to tne reauctk

.) JUST CC mpensatior Snail

tf, ~

ffected property interes

the fair market value of the a ty

cement of the land usé

written dem:

esulting from enactment or enfor

“egulation as of the date the owner makes v al

r ¢ > ompen satic be bbel a er + hy 1S a

a

<s

.

.$ poy ‘

CA LAY ibd

+ rest! iclIng OF POONIDILITIP

. .

> *

storically recognized as public nuisanc

LW. bes subsection shall be construed narrow

es dey

S unde

Te . .+ \TT? ¥ smc atTIAN 375 > a th ~ :

ding compensation u de LnisS a

jan cing Nothing in

affect o or alter rig

a

- t$ataa f wk s sa¢9

LAtTeS ' stituti

nactet

ro - b -

wc rty Vy the

no OW ned the

eee.

ie tne owner of the property

Puiation continues to

<

180 days after the owner of

smand for compensation un

FOr Cilaill

nacted prior to the effective

jemand for compensation under

made within two years of the e = e date

the date the public entity applies

approval criteria to an eaiacand

arising from land use regulations enacted after the

effective date of this act, written demand for compensation

under subsection (4) shall be made within two years of

the enactment of the land use regulation, or the date the

owner of the property submits a land use application in

which the land use regulation is an approval criteria

whichever is later.

(6) 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 act, the present owner of the

property, or any interest therein, shall have a cause of

action for compensation under this act 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.

(7) A metropolitan service district, city, or county,

or state agency may adopt or apply procedures for the

processing of claims under this act, but in no event shall

these procedures act as a prerequisite to the filing of

a compensation claim under subsection (6) of this act,

nor shall the failure of an owner of property to file an

application for a land use permit with the local government

serve as grounds for dismissal, abatement, or delay of a

compensation claim under subsection (6) of this act.

(8) Notwithstanding any other state statute or the

availability of funds under subsection (10) of this act,

lieu of payment of just compensation under this act,

governing body responsible for enacting the land us

regulation may modify, remove, or not to apply the land

use regulation or land use regulations to allow the owner

to use the property for a use permitted at the time th

owner acquired the property.

(9) A decision by a governing body under this act shal

not be considered a land use decision as defined in ORS

197.015(10).

(10) Claims made under this section shall be paid fron

funds, if any, specifically allocated by the legislature, city,

county, or metropolitan service district for payment of

claims under this act. 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 act. 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

i %

. mrrAcaac + ea merece

purposes OI tnis Sectlor

(A) “Family member” shall include the wife, husban

son, daughter, mother, father, brother, brother-in

law, sister, sister-in-law, son-in-law, daughter-in-law,

mother-in-law, father-in-law, aunt, uncle, niece, nephew,

stepparent, stepchild, grandparent, or grandchild of the

owner of the property, an estate of any of the foregoing

family members, or a legal entity owned by any one or

A Swap & we © & is

+} . 25) 1.

otner Ir emed)y

onstl

tutions, and

v

‘

hor

(13) If any portion or portions of this act are declare:

invalid by a court of competent jurisdiction, the remaining

portions of this act shall remain in full force and effect

The Act set forth above (Ballot Measure No

was proposed by initiative petition and was approved by

the voters at the regular general election on Nov ember

2, 2004. By the proclamation of the Governor dated

December 2, 2004, the Act was declared to have received

an affirmative majority of the total number of votes cast

thereon and to be in full force and effect as provided in

section 1, Article IV, Oregon Constitution. Effective dat

December 2, 2004

40a

APPENDIX H — OREGON LAWS 2007,

RELEVANT PORTION OF BALLOT MEASURE 49

LEGISLATIVE POLICY

ON FAIRNESS TO PROPERTY OWNERS

SECTION 3. (1) The Legislative Assembly finds

that:

(a) In some situations, land use regulations unfairly

burden particular property owners.

(b) To address these situations, it is necessary

to amend Oregon’s land use statutes to provide just

compensation for unfair burdens caused by land use

regulations.

(2) The purpose of sections 5 to 22 of this 2007 Act

and the amendments to Ballot Measure 37 (2004) is to

modify Ballot Measure 37 (2004) to ensure that Oregon

law provides just compensation for unfair burdens

while retaining Oregon’s protections for farm and

forest uses and the state’s water resources.

BALLOT MEASURE 37

SECTION 4, ORS 197.352 is amended to read:

197.352. [The following provisions are added to and

made a part of ORS chapter 197:]

(1) If a public entity enacts [or enforces a new land

use reguiation or enforces a land use regulation enacted

prior to December 2, 2004, that restricts] one or more

Appendix H

land use regulations that restrict the residential use of

private real property or [any interest therein] a farming

or forest practice and [has the effect of reducing] that

reduce the fair market value of the property, [or any

interest therein,] then the owner of the property shall be

[paid just compensation] entitled to just compensation

from the public entity that enacted the land use

regulation or regulations as provided in sections 12 to

14 of this 2007 Act.

(2) Just compensation under sections 12 to 14 of this

2007 Act shall be [equal to] based on the reduction in

the fair market value of the [affected] property [interest]

resulting from [enactment or enforcement of] the land

use regulation [as of the date the owner makes written

demand for compensation under this section].

(3) Subsection (1) of this section shall not apply to land

use regulations that were enacted prior to the claimant’s

acquisition date or to land use regulations:

[(A)] (a) Restricting or prohibiting activities commonly

and historically recognized as public nuisances under

common law{. This subsection shall be construed narrowly

in favor of a finding of compensation under this section];

[(B)] (b) Restricting or prohibiting activities for the

protection of public health and safety[, such as fire and

building codes, health and sanitation regulations, solid

or hazardous waste regulations, and pollution control

regulations);

Appendix :

[(C)] (c) To the extent the land u

required to comply with federal law; or

{(D)] (d) Restricting or prohibiting the use of a

property for the purpose of selling pornography or

performing nude dancing. [Nothing in this subsection,

however, is intended to affect or alter rights provided by

the Oregon or United States Constitutions; or]

((E) Enacted prior to the date of acquisition of the

property by the owner or a family member of the owner

who owned the subject property prior to acquisition or

inheritance by the owner, whichever occurred first.]

(4) Just compensation under subsection (1) of this

section shall be due the owner of the property vf the

land use regulation continues to be enforced against the

property 180 days after the owner of the property makes

written demand for compensation under this section

to the public entity enacting or enforcing the land us:

regulation.]

(5) For claims arising from land use regulations

enacted prior to December 2, 2004, written demand for

compensation under subsection (4) shall be made within

two years of December 2, 2004, or the date the public entity

applies the land use regulation as an approval criteria

to an application submitted by the owner of the property,

whichever is later. For claims arising from land use

regulations enacted after December 2, 2004, written

demand for compensation under subsection (4) shall be

made within two years of the enactment of the land us.

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regulation, or the date the owner of the property submit:

a land use application in which the land use regulation

is an approval criteria, whichever is later.]

[(@ Ifaland 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. |

(4)(a) Subsection (3)(a) of this section shall

be construed narrowly in favor of granting just

compensation under this section. Nothing in subsection

(3) of this section is intended to affect or alter rights

provided by the Oregon or United States Constitution.

(b) Subsection (3)(b) of this section does not apply

to any farming or forest practice regulation that is

enacted after January 1, 2007, unless the primary

purpose of the regulation is the protection of human

health and safety.

(c) Subsection (3)(c) of this section does not apply

to any farming or forest practice regulation that is

enacted after January 1, 2007, unless the public entity

enacting the regulation has no discretion under federal

law to decline to enact the regulation.

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[((7)] (5) A [metropolitan service district, city, o7

county, or state agency] public entity may adopt or

apply procedures for the processing of claims under [ths

section, but in no event shall these procedures act as a

prerequisite to the filing of a compensation claim under

subsection (6) of this section, nor shall the failure of an

owner of property to file an application for a land use

permit with the local government serve as grounds for

dismissal, abatement, or delay of a compensation claim

under subsection (6) of this section] sections 12 to 24 of

this 2007 Act.

[(8)] (6) [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 public entity that enacted the land use regulation

[may modify, remove, or not to apply 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| that gives rise to a claim

under subsection (1) of this section shall provide just

compensation as required under sections 12 to 24 of

this 2007 Act.

[((9)1 (7D A decision by a [governing body under this

section shall not be considered aj public entity that an

owner qualifies for just compensation under sections 5

to 22 of this 2007 Act and a decision by a public entity on

the nature and extent of that compensation are not land

use [decision as defined in ORS 197.015 (11)| decisions

Appendix H

[((10) 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. If a claam has not been paid

within two years from the date on which ut accrues, the

owner shali be allowed to use the property as permitted

at the time the owner acquired the property.|

11) Definitions - for purposes of this section

\(A) “Family member” shali include the wif

husband, son, daughter, mother, father, brother, brother

in-law, sister, sister-in-law, son-in-law, daughter-in-law,

mother-in-law, father-in-law, aunt, uncle, niece, nephew,

stepparent, stepchild, grandparent, or grandchild of the

owner of the property, an estate of any of the foregoing

family members, or a legal entity owned by any one or

combination of these family members or the owner

he property.|

\(y) Any statu

erest therein

Appendix H

[(2722) Local government comprehensive plans,

zoning ordinances, land division ordinances, and

transportation ordinances; |

[(tv) Metropolitan service district regional framework

plans, functional plans, planning goals and objectives;

and |

l\(vy) Statutes and administrative rules regulating

farming and forest practices.|

[((C) “Owner” is the present owner of the property, 01

any interest therein.]

[((D) “Public entity” shall include the state,

metropolitan service district, a city, or a county.]

[((12)] (8) The [remedy] remedies created by [this

section 18] sections 5 to 22 of this 2007 Act are in addition

to any other remedy under the Oregon or United States

[Constitutions] Constitution, and [2s] are not intended

to modify or replace any [other] constitutional remedy.

[(13)] (9) If any portion or portions of this section are

declared invalid by a court of competent jurisdiction, the

remaining portions of this section shall remain in full

force and effect