Bleeg v. Metro

Citations: 211 P.3d 302; 229 Or. App. 210; 2009 Ore. App. LEXIS 947Docket: CV07050101 A137601 (Control) CV06080473 A137602 CV06110417 A137603 CV06120406 A137604

Court: Court of Appeals of Oregon; June 24, 2009; Oregon; State Appellate Court

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Defendant Metro appeals corrected general judgments that awarded just compensation to several plaintiffs under ORS 197.352 (2005), related to Measure 37. Metro raises three errors: (1) the trial court's entry of corrected judgments nunc pro tunc to December 5, 2007, to avoid the impact of Measure 49, which became effective on December 6; (2) the trial court's ruling that Metro's methods for assessing property value reductions were unauthorized by ORS 197.352; and (3) the court's conclusion that Metro's regulations diminished the fair market values of the plaintiffs' properties, leading to compensation awards. The court determines that the plaintiffs' cases are not justiciable following Measure 49's enactment, hence the merits of Metro's arguments are not addressed. The previous judgments are vacated, and the cases are remanded for dismissal as moot. The plaintiffs' properties were affected by a Metro ordinance that included them in the urban growth boundary, designated them for specific developments, and imposed a temporary lot size requirement. After Metro denied their compensation claims, the plaintiffs initiated court actions, resulting in a judgment for $14,818,158 on December 5, 2007, followed by corrected judgments on December 7. The key issue is the justiciability of the cases, which the court ultimately finds moot.

Plaintiffs reference *State ex rel English v. Multnomah County* to argue that their Measure 37 claims for just compensation are not moot, asserting that these claims merged into the trial court's judgments, allowing the appeal to proceed on its merits. Metro counters, citing *English I*, that a Measure 37 claim is extinguished when merged into a judgment and is unaffected by Measure 49 once the right to appeal has lapsed. In *English I*, the county dismissed its appeal after obtaining a compensation judgment, which led to a refusal to pay, prompting English to seek a writ of mandamus. The court ruled the appeal was not moot despite Measure 49's enactment. 

Metro claims that, since the corrected judgments in this case lack viability post-Measure 49, the plaintiffs' claims are no longer justiciable, and the court should vacate the trial court's judgments and dismiss the claims. The court agrees with Metro, noting that under relevant case law, the plaintiffs' cases lack justiciability. It cites *Corey*, where the Supreme Court determined that Measure 49 affects all Measure 37 claims regardless of their status, rendering them devoid of continuing viability. This principle was subsequently applied in *Cyrus*, where the court had to assess the mootness of an appeal after Measure 49 became effective, highlighting the practical implications of the waiver's validity.

The appeal was deemed moot based on the Supreme Court's ruling in Corey, which established that Measure 49 nullified the viability of any orders related to Measure 37 claims, allowing for the validity of waivers to be contested in Measure 49 proceedings. In the case of English I, it was determined that the county's dismissal of its appeal from a compensation judgment before Measure 49's effective date exhausted its appellate review options. Consequently, English held a final judgment on her Measure 37 claim for just compensation that was not subject to revision, leading to the merger and extinguishment of her claim, leaving her with the right to enforce that judgment.

English's actions in seeking a writ of mandamus to compel the county to fulfill the compensation judgment were not moot, as the appeal's outcome would practically impact the parties' rights. This principle was reiterated in English II, where the county's claim that a supplemental judgment awarding English attorney fees was moot due to Measure 49 was rejected. The court affirmed that ongoing disputes under Measure 37 must transition to Measure 49 standards, leading to the conclusion that the plaintiffs' claims, unlike those in prior cases, were ongoing at the time Measure 49 took effect. Thus, Measure 49 superseded their Measure 37 claims and voided the trial court's judgments, rendering the case non-justiciable. The judgments were vacated, and the case was remanded for dismissal of the plaintiffs' claims. Contextually, Measure 37 allowed compensation for land use regulation impacts, while Measure 49 replaced its benefits and procedures.