S054995, Opinion — Corey v. DLCD

457
Argued and submitted February 27, petition for review dismissed as moot;
motion to vacate and remand denied May 8, 2008
See 221 Or App 505, 190 P3d 493 (2008)
Virginia COREY,
Bergis Road, LLC,
and Bernita Johnston,
Respondents on Review,
v.
DEPARTMENT OF LAND CONSERVATION
AND DEVELOPMENT,
Petitioner on Review.
(DLCD M 1 19478; CA A129905; SC S054995)
184 P3d 1 109

458 Corey v. DLCD
On petition for review and motion to vacate and remand.*
Denise G. FJordbeck, Senior Assistant Attorney General,
Salem, argued the cause and filed the petition and motion to
vacate and remand for petitioner on review. With her on the
motion were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
Gregory A. Chaimov, of Davis Wright Tremaine LLP,
Portland, argued the cause and filed the reply to the motion
for respondents on review. With him on the reply was Donald
P. Roach, Portland.
Kristian Roggendorf, of O'Donnell Clark & Crew LLP,
Portland, argued the cause and filed the response for amici
curiae Gerald and Roberta Curry, husband and wife, George
Raymond Smith, individually and as controlling member of
The Raymond Smith, LLC, and as trustee for the Raymond
Smith Survivor's Trust, Raymond Smith Qualified Marital
Trust, and Raymond Smith Family Trust, and Shirlee
Lenske, as controlling member of Lenske Properties, LLC .
With her on the response were Stephen F. Crew, and D. Dan
Chandler, Special Counsel for amici.
James Zupancic, Lake Oswego, filed a brief for amici
curiae The Harold V. Olson and Sarajean Olson Revocable
Living Trust, James and Virginia Carlson, and George and
Earlene Hansen.
* On review of the decision of the Court of Appeals. 2 1 0 Or App 542, 152 P3d
933, adh'd to, 2 1 2 Or App 536, 159 P3d 327 (2007).

Cite as 344 Or 457
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Linder, Justices.**
GILLETTE, J.
The petition for review is dismissed as moot. The motion
to vacate and remand is denied.
** Walters, J., did not participate in the consideration or decision of this case.

GILLEITE, J.
This proceeding arises out of a land use case. In that
case, the Department of Land C onservation and Develop
ment (DLCD) sought review of the C ourt of Appeals decision
in Corey v. DLCD, 210 Or App 542, 152 P3d 933, adh'd to, 2 12
Or App 536, 159 P3d 327 (2007), a case decided under Ballot
Measure 37 (2004) (Measure 37). We allowed DLCD's peti
tion for review. However, DLCD now believes that the recent
passage of Ballot Measure 49 (2007) rendered Corey moot. It
therefore asks this court to dismiss its petition and to vacate
the decision of the Court of Appeals. Plaintiffs, who are land
owner parties in Corey, deny that that decision is moot. As we
discuss below, we agree with DLCD that Corey is moot, and
we dismiss DLCD's petition for review on that ground. How
ever, we deny DLCD's request that we vacate the decision of
the Court of Appeals.
Measure 37 was adopted through the initiative proc
ess in the 2004 general election and was codified at ORS
197 .352 (2005), amended by Ballot Measure 49, Oregon Laws
2007, chapter 424, section 4, and renumbered as ORS
1 95.305. It required public entities that enact and enforce
land use regulations to pay a landowner whose property is
affected by any such regulations ''just compensation," which
the statute generally defined as an amount equal to the
"reduction in the fair market value of the affected property
interest" resulting from enforcement of any land use regula
tion enacted after the date of acquisition of the property
by the landowner or a family member of the landowner.
ORS 197.352( 1) - (3) (2005). The provision authorized
affected landowners to m ake a "written demand for compen
sation" to the regulating entity, ORS 197.352(5), and stated
that the compensation "shall be due" when and if the land use
regulations at issue continue to be enforced 180 days after
the landowner made his or her written demand, ORS
197.352(4) (2005).
Plaintiffs in this case are Virginia C orey and Bergis
Road, LLC , a limited liability corporation that is wholly
owned and controlled by Corey's sister, Bernita Johnston.
Plaintiffs own interests in a 23-acre parcel of land in rural
Clackamas County. Early in 2005, they filed a written

Cite as 344 Or 457 461
demand under Ballot Measure 37, seeking compensation
from DLCD for reduction in the fair market value ofthat land
caused by application of, among other things, Statewide
Planning Goals 3 (Agricultural Lands) and 14 (Urbaniza
tion). In the demand, plaintiffs asserted that Corey and
Johnston had inherited their interests in the land from their
mother in 1978. They further asserted that their demand for
compensation properly extended to all regulations enacted
after 1973-the year that Corey's and Johnston's mother first
acquired the property.1
DLCD issued a final order resolving plaintiffs'
demand in July 2005. In the order, DLCD chose to waive
enforcement of certain of the land use regulations to which
plaintiffs objected, rather than to compensate plaintiffs for
the effects of those regulations on the value of their property. 2
However, the waiver that DLCD granted did not extend to all
of the regulations that plaintiffs had targeted in their claim:
For plaintiff Corey, DLCD waived land use regulations and
statutes enacted after December 11, 1978, which it found to
be the date when Corey inherited her interest in the property
from her mother; and for plaintiff Bergis Road LLC, DLCD
waived regulations and statutes enacted after August 12,
2004, when that entity acquired its interest in the property
from Virginia Johnston. In announcing those waiver dates,
DLCD implicitly rej ected plaintiffs' contention that, because
Bernita Johnston is the sole creator, member, and manager
of Bergis Road LLC, her transfer of her interest in the prop
erty to that entity should be ignored for purposes of Measure
37.3
Plaintiffs sought judicial review of DLCD's final
order in the Court of Appeals. However, before the case was
1 Under ORS 197.352(3)( E) (2005), compensation is not due for any diminution
in the value of the property resulting from a land use regulation "[e]nacted prior to
the date of acquisition of the property by the owner or a family member ofthe owner
who owned the subject property prior to acquisition or inheritance by the owner,
whichever occurred first." ( Emphasis added.)
2 Under ORS 197.352(8) (2005), public entities may choose to waive (i.e. "mod
ify, remove, or not [ ] apply") a land use regulation "in lieu of payment of just
compensation."
3 DLCD apparently also rejected plaintiffs' contention that the land was not
"agricultural land" and, thus, was not subject to Statewide Planning Goal 3 at the
time that they acquired their interests in it.

briefed or argued, DLCD filed a "Motion to Determine Juris
diction." In its motion, DLCD explained that plaintiffs had
filed a parallel petition for judicial review in the circuit court
and that it was necessary to determine which court had juris
diction to review DLCD's final order. DLCD's position was
that, because no statutory or constitutional provision con
ferred a right to a contested case hearing in Ballot Measure
37 cases, plaintiffs were not seeking judicial review of a final
order in a "contested case" under ORS 183.482 and, there
fore, they could not proceed in the Court of Appeals. Instead,
DLCD argued, review of the DLCD order must proceed under
provisions of the Administrative Procedures Act pertaining
to review of "orders other than contested cases," ORS
183.484, which would be in "the Circuit Court for Marion
County [or] the circuit court for the county in which the peti
tioner resides or has a principal business office."
The Court of Appeals granted DLCD's motion to
determine jurisdiction and then announced that, contrary to
DLCD's position, the order at issue should have been an
order in a contested case and, therefore, was subject to judi
cial review in the Court of Appeals. Corey, 2 10 Or App at 552.
The court reasoned that, although Measure 37 did not itself
provide for a contested case hearing, once DLCD accepted
plaintiffs' claim as valid, the Due Process Clause of the Four
teenth Amendment required it to offer plaintiffs a contested
case-type hearing to determine the appropriate extent of the
waiver. And, the Court of Appeals concluded, because DLCD
should have employed contested case procedures, j udicial
review was available in the Court of Appeals under the pro
vision of the Administrative Procedures Act pertaining to
review of orders in contested cases (ORS 183.482). 2 10 Or
App at 549-52.4
DLCD sought review of that decision in this court,
challenging the ultimate j urisdictional holding and the
underlying proposition that a contested case hearing is
required to determine the scope of compensation (or waiver)
whenever a public agency accepts a Measure 37 claim as
4 The Court of Appeals relied on this court's analysis in Koskela v. Willamette
Industries, Inc., 331 Or 362, 15 P3d 548 (2000), to reach that conclusion. We
express no opinion as to the correctness of that reliance.

valid. As noted, we allowed DLCD's petition for review in
October 2007.
One month later, in the November 2007 general
election, the voters adopted Ballot Measure 49 (2007) (Meas
ure 49), which amended Measure 37 and added provisions
that altered the claims and remedies available to landowners
whose property values are adversely affected by land use reg
ulations. Of particular relevance here, Measure 49 directly
addresses Measure 37 claims filed before the end of the 2007
legislative session. Section 5 of Measure 49 provides:
"A claimant that filed a claim under ORS 197.352 (, i.e. ,
Measure 37 ,] on or before the date of adjournment sine die
of the 2007 regular session of the Seventy-fourth Legisla
tive A'lSembly is entitled to just compensation as provided
in:
"(1) Sections 6 or 7 of this 2007 Act, at the claimant's
election, if the property described in the claim is located
entirely outside any urban growth boundary and entirely
outside the boundaries of any city;
"(2) Section 9 of this 2007 Act ifthe property described
in the claim is located, in whole or in part, within an urban
growth boundary; or
"(3) A waiver issued before the effective date of this
2007 Act to the extent that the claimant's use of the prop
erty complies with the waiver and the claimant has a com
mon law vested right on the effective date of this 2007 Act to
complete and continue the use described in the waiver."
Sections 6 and 7, referenced in subsection 5(1), generally pro
vide that claimants whose claims relate to land outside any
urban growth boundary are limited to three home site
approvals, unless their land is not high value farm or forest
land, in which case they may be eligible for up to ten home
site approvals, if certain requirements are met. Section 9,
referenced in subsection 5(2), sets out a different remedy for
claims relating to land within an urban growth boundary.
Soon after Measure 49 was adopted, DLCD filed a
"Notice of Potential Mootness" in this court respecting the
impending review of Corey. Later, DLCD filed the present
motion to "vacate and remand," arguing that Measure 49 has

464 Corey v. DLCD
rendered the controversy in Corey moot. In the motion,
DLCD relies on the provisions quoted and summarized above
and on section 8 of Measure 49, which provides procedures
and deadlines for refiling Measure 37 claims under Measure
49.5 In essence, DLCD argues that Measure 49 extinguishes
all claims and orders under Measure 37 and directs Measure
37 claimants-successful or not-to proceed instead under
section 6 or 7 of Measure 49, if their property lies outside an
urban growth boundary, and under section 9, if their prop
erty lies inside an urban growth boundary.6 Consequently (in
DLCD's view), any controversy regarding the correctness of
an order issued under Measure 37-including the proper
forum for reviewing the order-is moot.
If it becomes clear in the course of a judicial proceed
ing 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. Yancy v. Shatzer, 337 Or 345, 349, 97 P3d
1 161 (2004). Our task, then, is to determine whether resolu
tion of the jurisdictional question that DLCD brought to us
can have any practical effect on the rights of the parties .
Subsection 8( 1 ) directs DLCD to send a notice, within 120 days of Measure
49's effective date, to virtually all Measure 37 claimants whose claims (like the
present one) pertain to land outside an urban growth boundary. It specifically men
tions three classes of claimants who must receive the notice: any "claimant whose
claim was denied by the state before the effective date oftbis 2007 act"; any "claim
ant whose claim was approved by the state before the effective date of this 2007
act"; and any "claimant whose claim has not been approved or denied by the state
before the effective date of this 2007 act."
Subsection 8(2) requires the notice to explain to Measure 37 claimants the
options that are available to them, i.e. , proceeding under either section 6 or 7 by fil
ing a certain form within 90 days.
Subsection 8(3) sets out the consequences of failing to make the required
election:
"A claimant must choose whether to proceed under section 6 or 7 of this
2007 Act by filing the form provided by [DLCD] within 90 days after the date
the department mails the notice and form required under subsection ( 1) of this
section. * * If the claimant fails to file the form within 90 davs after the date
the department mails the notice, the claimant is not entitled to relief under
section 6 or 7 of this 2007 Act."
DLCD acknowledges one exception-that subsection 5(3) of Measure 49 per
mits a Measure 3 7 claimant who has been granted a waiver to complete and con
tinue the particular use permitted by the waiver, to the extent that the claimant
has "a common law vested right on the effective date of this 2007 Act." As discussed
below, DLCD argues that subsection 5(3) is inapplicable to plaintiffs' claim.

Cite as 344 Or 457 465
We already have summarized DLCD's position
that Measure 49 has rendered the waiver order at the center
of the jurisdictional dispute wholly ineffective and, thus, any
further judicial consideration of the order, including the
question of the proper forum for review, is inherently mean
ingless. As we shall explain, we generally agree with DLCD's
analysis.
An examination of the text and context of Measure
49 conveys a clear intent to extinguish and replace the bene
fits and procedures that Measure 37 granted to landowners.
As noted, section 5 of Measure 49, set out above, provides
that claimants who filed "claim[s] " under ORS 1 97.352 before
Measure 49 became effective (i.e. , Measure 37 claimants), are
entitled to ')ust compensation" as provided in designated pro
visions of Measure 49. Subsection 2(2) of Measure 49 defines
"claim" to include any "written demand for compensation
filed under * * * ORS 197.352," including those filed under
the version of the statute that was "in effect immediately
before the effective date of [Measure 49] . " That definition
establishes that Measure 49 pertains to all Measure 37
claims, successful or not, and regardless of where they are in
the Measure 3 7 process. Subsection 2( 13) then defines "just
compensation" purely in terms of Measure 49 remedies, i.e. ,
" [r]elief under sections 5 to 1 1 of this 2007 Act for land use
regulations enacted on or before January 1, 2007," and
" [r]elief under sections 12 to 14 of this 2007 Act for land use
regulations enacted after January 1, 2007 ." At the same time,
section 4 of Measure 49 extensively amends ORS 197.352
(2005) (Measure 37) in a way that wholly supercedes the pro
visions of Measure 37 pertaining to monetary compensation
for and waivers from the burdens of certain land use regula
tions under that earlier measure.
A statement oflegislative policy at section 3 of Meas
ure 49 confirms that the legislature intended to create new
forms of relief in place of the ones available under Measure
37: "The purpose of sections 4 to 22 of this 2007 Act and the
amendments to Ballot Measure 3 7 (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." (Emphases added. )

466 Corey v. DLCD
Plaintiffs argue that, whatever the theoretical mer
its of DLCD's arguments, subsection 5(3) of Measure 49
applies to their claim (subsection 5(3) provides that Measure
37 claimants are entitled to "just compensation" as provided
in a waiver issued before Measure 49 became effective). Plain
tiffs acknowledge that subsection 5(3) of Measure 49 speaks
of a "common law vested right" in the waiver. But that is no
obstacle, in their view, because, once DLCD concluded that
post-acquisition land use regulations had reduced the fair
market value of their property and granted relief in the form
of a waiver, they had a constitutionally protected "property
right" in that waiver that cannot be taken away without just
compensation-i.e. , a vested right. In a related vein, plain
tiffs argue that the waiver that DLCD granted under Meas
ure 37 is the equivalent of rights obtained under a judgment
granting a monetary award, and is vested in the sense that it
cannot be diminished by legislative action.
However, in so arguing, plaintiffs fail to confront the
entire wording of subsection 5(3). The "vested right" that that
subsection requires is a "common law vested right * * * to
complete and continue the use described in the waiver." It is
clear from text and context alone that that phrase is referring
to broadly applicable legal precedents describing a property
owner's rights when land use laws are enacted that make a
partially finished project unlawful. See, e.g. , Clackamas Co.
v. Holmes, 265 Or 193, 197, 508 P2d 190 ( 1973) (describing
"vested rights" in those terms). But plaintiffs have made no
claims that they have partially completed any "use described
in the waiver" that they received.
To the extent that plaintiffs wish to assert that the
scope of subsection 5(3) is any broader, then Measure 49 pro
vides plaintiffs with an opportunity to assert that claim, and
a forum in which they may assert it. The same is true of any
other obj ections that plaintiffs have to the effects of Measure
49. In short, this is a Measure 37 case, and we confine our
substantive discussion to that legislation.
In the end, we hold only that plaintiffs' contention
that Measure 49 does not affect the rights of persons who
already have obtained Measure 37 waivers is incorrect. In
fact, Measure 49 by its terms deprives Measure 37 waivers-

Cite as 344 Or 457 467
and all orders disposing of Measure 37 claims-of any contin
uing viability, with a single exception that does not apply to
plaintiffs' claim. Thus, after December 6, 2007 (the effective
date of Measure 49), the final order at issue in the present
case had no legal effect. It follows that resolution of the issue
that the Court ofAppeals decided in Corey and as to which we
allowed review-whether the Court of Appeals or the circuit
court has jurisdiction to review DLCD's final order respecting
plaintiffs' Measure 37 claim-can have no practical effect
upon the parties : If the order at issue has no continuing legal
effect, then neither party can gain anything from review in
either forum. The case is moot.
Plaintiffs suggest that, in any event, the case is jus-
ticiable under ORS 14. 175, which provides:
"In any action in which a party alleges that an act, pol
icy or practice of a public body, as defined in ORS 174. 109,
or of any officer, employee or agent of a public body, as
defined in ORS 174.109, is unconstitutional or is otherwise
contrary to law, the party may continue to prosecute the
action and the court may issue a j udgment on the validity of
the challenged act, policy or practice even though the spe
cific act, policy or practice giving rise to the action no longer
has a practical effect on the party, if the court determines
that:
"(l) The party had standing to commence the action;
"(2) The act challenged by the party is capable of rep
etition, or the policy or practice challenged by the party con
tinues in effect; and
"(3) The challenged policy or practice, or similar acts,
are likely to evade judicial review in the future."
(Emphasis added.) Plaintiffs suggest that that provision
applies because the "Legislative Assembly's practice of
changing constitutionally protected rights will necessarily
evade review if a claimant * * * cannot try to protect those
rights." However, ORS 14. 175 does not present a basis for
review in this case, because, as we already have observed,
plaintiffs can pursue their claim pursuant to the procedure
set out in Measure 49, including any assertion that Measure
49 acts on them in an unconstitutional way.

468 v. DLCD
That leaves the question of vacatur. DLCD asks this
court to vacate the C ourt of Appeals decision if we find that
the case is moot. DLCD argues that vacatur is warranted,
because the Court of Appeals decision in Corey is wrong and,
when similar procedural and jurisdictional disputes arise in
the future, the state "will be placed in the position of either
violating the law as announced by [the Court of Appeals in
Corey] or granting contested cases that are, in its view,
legally unnecessary."
In Kerr u. Bradbury, 340 Or 241, 250, 131 P3d 737
(2006), we described vacatur as an " 'extraordinary remedy'
to which a party must show an 'equitable entitlement' " (cit
ing U.S. Bancorp Mortgage Co. u. Bonner Mall Partnership,
513 US 18, 26, 1 15 S Ct 386, 130 L Ed 2d 233 ( 1994)). We
identified a number of considerations that may inform the
court's decision as to whether any party has demonstrated
such an equitable entitlement. We noted, first, that courts
must consider the public interest, and remain mindful of the
fact that judicial precedents are " 'presumptively correct and
valuable to the legal community.' " Id. (quoting U.S. Bancorp,
513 US at 26). We also observed that it was important to con
sider when and how the case in question became moot. The
case for vacatur may be stronger if the lower court decision at
issue was rendered when the case already had become moot
and, by contrast, the case for vacatur may be weaker ifmoot
ness resulted from voluntary action by the party seeking
vacatur. See Kerr, 340 Or at 249 (quoting U.S. Bancorp , 513
US at 24-25, to that effect).
DLCD does not argue, and we do not find, that any of
those considerations plays a significant role in the equitable
decision before us. DLCD does rely, however, on another con
sideration that we identified in Kerr-whether, in the
absence of vacatur, the decision at issue will interfere with
public officials' execution of their official duties. Kerr, 340 Or
at 251. DLCD contends that, if Corey stands, DLCD (and all
state agencies) unnecessarily and erroneously will be
required to treat an initial decision that a person qualifies for
a benefit as a property interest, and to grant such persons
contested case hearings to determine the extent of the
benefit.

Cite as 344 Or 457 469
In Kerr, we considered, and rejected, a similar argu
ment by the Secretary of State, viz. , that we should vacate a
Court of Appeals decision interpreting the "full-text" provi
sion of Article IV, section 1(2)(d), of the Oregon Constitution,
because that decision would continue to have a practical
effect on the Secretary of State. We stated:
"[T]he unreviewed decision of the Court of Appeals does not
preclude the Secretary of State from prospectively execut
ing his official duties in accordance with the views he
espoused here regarding the 'full text' provision of Article
IV, section 1(2)(d). In the future, the Secretary of State may
do so and may elect either to defend that view in response to
litigation that other parties might file, as he did here, or he
may initiate a proceeding, such as a request for a declara
tory judgment under ORS 28.020, seeking clarification of
his duties under the constitution. A denial of vacatur in this
instance will neither inhibit the Secretary of State from
administering his office as he sees fit nor require him to
acquiescence in a constitutional interpretation with which
he does not agree."
Kerr, 340 Or at 2 5 1 . We think, moreover, that the question
before us today is, if anything, easier than that presented in
Kerr. The decision of the Court of Appeals in Corey was a
decision under Measure 37. The fact that such a decision
remains on the books does not require DLCD to treat it as
binding precedent in future proceedings, because any such
future proceedings will be under Measure 49. Therefore, no
inequity will result from denying DLCD's request for
vacatur.
The petition for review is dismissed as moot. The
motion to vacate and remand is denied.