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Kleikamp v. Board of Commissioners of Yamhill County

Court of Appeals of Oregon

December 11, 2019

T. J. KLEIKAMP, individually and Friends of Yamhill County, an Oregon nonproft corporation, Plaintiffs-Respondents Cross-Respondents,
v.
BOARD OF COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation, Defendant-Appellant Cross-Respondent, and STATE OF OREGON, by and through the Department of Land Conservation and Development, Intervenor-Respondent Cross-Respondent, and Steven GREGG and Thomas Gregg, Defendants Cross-Appellants, and Donald GREGG, an individual, Intervenor-Appellant Cross-Respondent.

          Argued and submitted July 13, 2018.

          Yamhill County Circuit Court 14CV14861 Ronald W. Stone, Judge.

          [301 Or.App. 276] Timothy S. Sadlo and T. Beau Ellis argued the cause for appellants-cross-respondents Donald Gregg and Board of Commissioners of Yamhill County. Also on the joint briefs was Vial Fotheringham LLP.

          Edward H. Trompke argued the cause for cross-appellants Steven Gregg and Thomas Gregg. Also on the briefs was Jordan Ramis PC.

          Ralph O. Bloemers argued the cause and fled the brief for respondents-cross-respondents T. J. Kleikamp and Friends of Yamhill County.

          Frederick M. Boss, Deputy Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for respondent-cross-respondent State of Oregon.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         Case Summary: Steven, Thomas, and Donald Gregg and the Board of Commissioners of Yamhill County appeal from a judgment entered in a writ of review proceeding that reversed Yamhill County's determination that, under Yamhill County Ordinance 823 and section 5(3) of Ballot Measure 49 (2007), Steven, Thomas, and Donald Gregg have a right to complete a subdivision on property that they own in Yamhill County. Held: The circuit court had subject matter jurisdiction. The circuit court erred in determining that ORS 215.130 and a county ordinance implementing that statute applied to, and extinguished, the claims under section 5(3) of Measure 49. However, appellants have not demonstrated any error in the circuit court's rulings that neither Steven nor Thomas is a "claimant that fled a claim under [Measure 37]" within the meaning of section 5(3) of Measure 49 and that Donald is not an "applicant," as required by Ordinance 823, because he never "obtained Measure 37 relief from the Board [of Commissioners of Yamhill County]."

         Affirmed on appeal and cross-appeal.

          [301 Or.App. 277] POWERS, J.

         Steven, Thomas, and Donald Gregg and the Board of Commissioners of Yamhill County appeal from a judgment entered in a writ of review proceeding that reversed Yamhill County's determination that, under Yamhill County Ordinance 823 and section 5(3) of Ballot Measure 49 (2007), Steven, Thomas, and Donald Gregg have a right to complete a subdivision on property that they own in Yamhill County.[1]The circuit court reversed the county's determination for two independent reasons: First, the court held that none of the relevant parties was an "applicant" for purposes of a vesting decision under Ordinance 823 and, relatedly, that Steven and Thomas are not "claimant[s] that filed a claim under [Ballot Measure 37 (2004)]," as required by section 5(3) of Measure 49. Second, the court held that ORS 215.130, which requires nonconforming uses to be continuous, and a county ordinance implementing that statute apply to, and extinguish, the claims under section 5(3) of Measure 49. In the judgment, the court also dismissed a complaint for declaratory judgment filed by Friends of Yamhill County (FOYC) and T J. Kleikamp. That dismissal is not at issue on appeal.

         On appeal, Steven, Thomas, and Donald Gregg and the county (jointly, appellants)[2] first contend that the court should have dismissed the writ of review proceeding for lack of subject matter jurisdiction because Donald Gregg was not timely served. Second, they assert that the [301 Or.App. 278] court erred in reversing the county's determination because (1) ORS 215.130 and the county ordinance do not apply to their claims and, (2) contrary to the court's reasoning, they are "applicants" under the ordinance and "claimant[s] that filed a claim under [Measure 37]," as required by section 5(3) of Measure 49. To obtain reversal based on their second assertion, appellants must demonstrate on appeal that the court erred in both ways they assert because the court based its decision on two independent grounds. See Roop v. Parker Northwest Paving Co., 194 Or.App. 219, 236, 94 P.3d 885 (2004), rev den, 338 Or. 374 (2005) (explaining that, when a trial court bases a decision on multiple grounds, an appellant must demonstrate error on all of the independent bases supporting the court's ruling).

         First, as explained below, we reject appellants' jurisdictional challenge. As to their second assertion, we agree with appellants' argument, in their third assignments of error, that the circuit court erred in determining that ORS 215.130 and the county ordinance applied to, and extinguished, the claims under section 5(3) of Measure 49. See Oregon Shores v. Board of County Commissioners, 297 Or.App. 269, 279-80, 441 P.3d 647 (2019) (explaining that ORS 215.130 and implementing ordinances are immaterial to claims under section 5(3) of Measure 49 if any discontinuance that occurred took place after December 6, 2007, the only date on which section 5(3) required a vested right to exist); Friends of Yamhill County v. Board of Commissioners, 298 Or.App. 241, 247, 446 P.3d 548, rev den, 365 Or. 769 (2019) (same); DLCD v. Yamhill County, 298 Or.App. 260, 262, 445 P.3d 893, rev den, 365 Or. 769 (2019) (same).

         However, as explained below, appellants have not demonstrated any error in the circuit court's rulings that neither Steven nor Thomas is a "claimant that filed a claim under [Measure 37]" within the meaning of section 5(3) of Measure 49 and that Donald is not an "applicant," as required by Ordinance 823, because he never "obtained Measure 37 relief from the Board [of Commissioners of Yamhill County]." Consequently, we affirm the circuit court's judgment.[3]

          [301 Or.App. 279] I. SUBJECT MATTER JURISDICTION

         We begin with appellants' first assignments of error, in which they assert that the circuit court lacked subject matter jurisdiction over the writ of review proceeding.

         A. History and Parties' Arguments

         The facts relevant to our discussion of subject matter jurisdiction are procedural, and we provide them here. We set out the facts relevant to our discussion of the merits of the dispute below, 301 Or.App. at 287-89.

         Yamhill County issued the vesting decision at issue in this appeal on August 11, 2014.[4] Within 60 days of the county's decision, on October 9, 2014, Kleikamp and FOYC petitioned for a writ of review in Yamhill County Circuit Court.[5] See ORS 34.010 - 34.100 (establishing writ of review proceedings); ORS 195.318 (providing for judicial review of county decisions under section five of Measure 49 by writ of review). Later in October, the circuit court issued the writ and ordered the Board of Commissioners of Yamhill County to return the writ, together with a certified copy of the record and proceedings before the county, by December 15, 2014. See ORS 34.060 (providing for substance and return of the writ); ORS 34.080 (providing for issuance and service of the [301 Or.App. 280] writ). A copy of the writ was served on Steven and Thomas at that time, but not on Donald. The Board of Commissioners returned the writ on December 11, 2014, along with a certified copy of the record.

         In January 2015, Steven and Thomas moved to dismiss the writ of review proceeding for lack of subject matter jurisdiction. They relied on ORS 34.080, which provides, in part, "A certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least 10 days before the return of the original writ." Steven and Thomas argued that Donald had not been served with the writ and that he was an "opposite party in the suit or proceeding sought to be reviewed" who had to be served as required by ORS 34.080.

         In response, Kleikamp and FOYC contended that Donald was not an "applicant" for the challenged county decision, and, thus, that he was not an "opposite party" who had to be served with the writ. Alternatively, they moved the court to extend the time for serving the writ on opposite parties, contending that such an extension is within the court's discretion and that the court does not lack subject matter jurisdiction under such circumstances. See Holland-Washington Co. v. County Court, 95 Or. 668, 674, 188 P 199 (1920) ("[W]e are of the opinion that the order enlarging the time within which to make service of a copy of the writ upon [the opposite party] was a legitimate exercise of judicial authority."); Meury v. Jarrell, 16 Or.App. 239, 244, 517 P.2d 1221, affd, 269 Or. 606, 525 P.2d 1286 (1974) ("The court for good reason by its action can extend the 10-day period for serving of the writ.").

         The court denied Steven and Thomas's motion to dismiss, concluding that "[t]he Court has jurisdiction over the action because the Petition for Writ of Review was filed within 60 days of Yamhill County's decision." It granted Kleikamp and FOYC's motion for leave for additional time to serve opposite parties, extending the time for service to April 30, 2015. Donald was served with a copy of the writ before that date. The court never reissued the writ or amended the date by which the county had to return the writ.

          [301 Or.App. 281] In April 2015, the state intervened. In May 2015, Donald moved to intervene and, at the same time, moved to dismiss, arguing that his participation in the case rendered moot the issues raised in the petition for the writ of review. Shortly thereafter, appellants moved to amend the petition for writ of review to reflect Donald's participation in the case. The court allowed Donald to intervene, denied his motion to dismiss, and granted the motion to amend. As explained below, after considering the merits, the circuit court entered a general judgment reversing the county's decision.

         In their first assignments of error, appellants argue that the circuit court lacked subject matter jurisdiction over the writ of review proceeding because Donald was not served with a copy of the writ "at least 10 days before the return of the original writ."[6] ORS 34.080. Steven and Thomas's argument is predicated exclusively on a lack of subject matter jurisdiction; that is, Steven and Thomas do not contend that, even if the court had subject matter jurisdiction, it nevertheless erred in denying their motion to dismiss. However, Donald and the county do, very briefly, make an alternative argument; they argue that, "even if the petition for writ of review conferred upon the circuit court jurisdiction, the circuit court erred by proceeding forward without each of the 'opposite parties' having been properly served."

         B. Analysis

         Subject matter jurisdiction is "the authority to deal with the general subject involved." State v. Murga, 291 Or.App. 462, 466, 422 P.3d 417 (2018) (citing Garner v. Alexander, 167 Or. 670, 675, 120 P.2d 238 (1941), cert den, 316 U.S. 690 (1942)). It exists "when the constitution, the legislature, or the common law has directed a specific court to do something about a specific kind of dispute." Id. (citing School Dist. No. 1, Mult. Co. v. Nilsen, 262 Or. 559, 566, 499 P.2d 1309 (1972)). A lack of subject matter jurisdiction can be raised at any time. [301 Or.App. 282] Id. at 465; see also Waddill v. Anchor Hocking, Inc., 330 Or. 376, 384, 8 P.3d 200 (2000), adh'd to on recons, 331 Or. 395, 8 P.3d 200 (2001). If a court lacks subject matter jurisdiction over a claim brought before it, it must dismiss the proceeding. See, e.g., Alto v. State Fire Marshal, 319 Or. 382, 396, 876 P.2d 774 (1994) (remanding to the circuit court "with instructions to dismiss plaintiffs' complaint" after concluding that the circuit court lacked subject matter jurisdiction); Butchart v. Baker County, 214 Or.App. 61, 79, 166 P.3d 537 (2007) (vacating circuit court judgment and remanding for entry of a judgment dismissing the claims over which the circuit court lacked subject matter jurisdiction).

         Appellants acknowledge that the petition for writ of review at issue here was filed within 60 days of the county's decision, and Donald and the county acknowledge that we have held in numerous cases regarding writ of review proceedings that "[t]he circuit court acquires jurisdiction when, and only when, the petition for the writ is filed with the court within 60 days from the date of the decision sought to be reviewed, and does not depend on when the petition is allowed or when the writ is issued or when it is served." Shipp v. Multnomah County, 133 Or.App. 583, 589, 891 P.2d 1345, rev den, 321 Or. 246 (1995); see Clinkscales v. City of Lake Oswego, 47 Or.App. 1117, 1120, 615 P.2d 1164 (1980) ("[T]he court is vested with jurisdiction over the subject matter when the petitioner, within 60 days of the decision sought to be reviewed, files a verified petition containing the requisite allegations. The court is then authorized to order the writ issued by the clerk, and the court obtains [personal] jurisdiction over the parties served with a copy of the writ."); see also, e.g., Spivak v. Marriott, 213 Or.App. 1, 8-9, 159 P.3d 1192 (2007) ("Although the statutes contain a number of procedural requirements, the only jurisdictional requirement is that the plaintiff file the petition within 60 days from the date of the challenged decision."); id. at 9 n 6 ("[L]ack of service prevents the court from proceeding further until service occurs; it does not deprive the court of jurisdiction over the petition for a writ of review or over the challenged decision."); Magar v. City of Portland, 179 Or.App. 104, 109, 39 P.3d 234 (2002) ("The circuit court here had subject matter jurisdiction because plaintiff satisfied the conditions

          [301 Or.App. 283] listed in ORS 34.040 by filing his petition in the appropriate court within 60 days of the decision sought to be reviewed."); Shevchynski v. City of Eugene, 157 Or.App. 355, 360-61, 970 P.2d 237 (1998) (concluding that the court's procedural error in failing to issue the writ is "jurisdictional" only in the sense that it deprives the court of authority to proceed with the review process until the error is remedied, but that it does not deprive the court of subject matter jurisdiction over the petition).

         However, relying on two Supreme Court cases from the early twentieth century, Williams v. Henry, 70 Or. 466, 142 P 337 (1914), and Maizels v. Kozer, 129 Or. 100, 276 P 277 (1929), appellant argue that failure to timely serve the opposite party deprives the court of subject matter jurisdiction, such that the circuit court's judgment should "be reversed and the County's vesting determination should be reinstated." Consequently, they assert, our prior cases cited above are wrongly decided, and we should overrule them. They contend that, after we overrule those cases, we should conclude that Donald was an opposite party and that the failure to serve him with a copy of the writ within 10 days before its return means that the circuit court lacked subject matter jurisdiction over the petition for writ of review.

         We are not convinced that the cases cited above are wrong, let alone "plainly wrong," and, accordingly, we decline to overrule our prior cases. See State v. Civil, 283 Or.App. 395, 415-17, 388 P.3d 1185 (2017) (discussing stare decisis and concluding that we will overrule a prior decision only if it is "plainly wrong," which is a "rigorous standard" that is "satisfied only in exceptional circumstances"). Given that conclusion, we need not, and do not, decide whether the court's extension of time to serve opposite parties or the filing of the amended petition affected the proceedings or whether Donald is an opposite party.

         In several of the cases that appellants ask us to overrule, we have explained that the word "jurisdiction" has multiple meanings. See, e.g., Shevchynski, 157 Or.App. at 360 (explaining that, in previous cases, we used the word "jurisdiction" to refer "simply to the trial court's authority to proceed with the review process"); cf. Arbaugh v. Y&H [301 Or.App. 284] Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("Jurisdiction, this Court has observed, is a word of many, too many, meanings. This Court, no less than other courts, has sometimes been profligate in its use of the term." (Internal quotation marks and citation omitted.)). In Spivak, we explained that, when we said in earlier cases that service on opposite parties is a "jurisdictional" requirement, we were referring to the court's power to proceed with its review, not to its subject matter jurisdiction over the petition or the challenged decision:

"Before Shipp, we had suggested that failing to serve the writ is jurisdictional. See Thompson v. Columbia County Comm'rs, 29 Or.App. 813, 564 P.2d 1376 (1977); N.W. Env. Def. Center v. City Council, 20 Or.App. 234, 531 P.2d 284 (1975). However, as we later explained, we used 'jurisdiction' in those cases to refer to the trial court's authority to review the challenged decision, not to its jurisdiction over the petition for a writ. Shevchynski, 157 Or.App. at 360. Thus, lack of service prevents the court from proceeding further until service occurs; it does not deprive the court of jurisdiction over the petition for a writ of review or over the challenged decision."

213 Or.App. at 9 n 6.

         Consistently with that explanation, a close read of our case law reveals that we have already concluded that, when the Supreme Court referred to "jurisdiction" in Maizels and Williams, it did not refer to subject matter jurisdiction. In N.W. Env. Def. Center, 20 Or.App. at 236, the petitioners sought a writ of review of a decision of the Portland City Council. Portland General Electric (PGE) was an opposite party within the meaning of ORS 34.080, but it was not served at least 10 days before the return of the writ. Id.; id. at 238. The city council moved to quash the writ, and the circuit court granted the motion. Id. at 237. The petitioners filed an amended petition and ...


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