Posted by: Patricia Salkin | August 12, 2016

OR Appeals Court Did Not Err in Dismissing the Declaratory Judgment Complaint Over Alleged Nonconforming Use Discontinuance Policy

Plaintiffs Friends of Yamhill County and Carr and Jeanne Biggerstaff appealed a judgment that dismissed their complaint, which sought declaratory and injunctive relief against defendants Board of County Commissioners of Yamhill County and Ralph and Norma Johnson. The Plaintiffs asked for declaratory relief to correct a county determination that the Johnsons had vested rights to develop their property under Ballot Measure 49, and for a petition for writ of review to obtain review of the county’s vesting decision, as allowed by ORS 195.318(1). The trial court dismissed the declaratory judgment proceeding, because it concluded that the relief requested (overturning the county authorization decision that the Johnsons continued to have vested rights to develop) was exclusively available through the writ of review process under ORS 34.020.

According to plaintiffs, they sought a declaration regarding an issue that was not decided in the Measure 49 proceeding and that required a different record to determine whether the Johnsons discontinued their nonconforming use under YCZO section 1205.06 and ORS 215.130(7)(a). Plaintiffs characterized the county’s reference to their nonconforming use discontinuance claim in the Measure 49 decision as a “failure to apply applicable state and local statutory law.” Thus, plaintiffs argued, the question of the application of those laws to the Johnsons’ nonconforming use is justiciable under the Uniform Declaratory Judgments Act, ORS 28.010–28.160, and the court erred in dismissing their declaratory judgment complaint as non-justiciable.

Here, the court found that whether the county’s determination on the nonconforming use discontinuance policy was correct was immaterial; instead, the salient point was that the county made a determination, which it did. Since ORS 34.020 allowed a party to a proceeding to “have the decision or determination thereof reviewed for errors, as provided in ORS 34.010 to 34.100 [the writ of review statutes], and not otherwise”, the court found a request to correct an alleged error in a quasi-judicial decision was justiciable only by writ of review and “not otherwise” by means of a declaratory judgment proceeding. Because Plaintiffs filed a petition for writ of review seeking a determination that the county misconstrued YCZO section 1205.06 when it issued its vested rights determination, and since plaintiffs’ declaratory judgment complaint sought “substantially the same relief” as that petition, and since the writ of review was the exclusive remedy for that relief under ORS 34.020, ORS 195.318(1), and Ordinance No. 823 section 7.02, the trial court did not err in dismissing the declaratory judgment complaint.

Friends of Yamill County v Board of County Commissioners, 278 Or. App. 472 (OR App 5/25/2016)

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