Albrecht v. Emmert ( 2023 )

465
Argued and submitted October 25, 2022, affirmed August 16, 2023
Gene ALBRECHT,
an individual;
James Dunn, an individual;
and Eastmoreland Racquet Club Estates Homeowners’
Association, Inc.,
an Oregon domestic non-profit corporation,
Plaintiffs-Respondents,
v.
Terry W. EMMERT,
an individual,
and Courts Connection, LLC,
an Oregon domestic limited liability company,
Defendants-Appellants,
and
DELTA DEVELOPMENT COMPANY,
an Oregon domestic limited liability company et al.,
Defendants.
Multnomah County Circuit Court
18CV31745; A173594
535 P3d 785
This appeal concerns a decade-long dispute between property owners on a
cul-de-sac in a residential neighborhood in Portland about the use of the prop-
erty at the end of the cul-de-sac as a multisport facility known as Eastmoreland
Sports Club. The neighbors of the sports club obtained a declaratory judgment
and injunction in the circuit court that, among other things, declared that the
legal nonconforming use of Emmert’s property as a private tennis club had been
lost, enjoined them from operating the multisport club on that property, and
ordered them to use and develop the property in conformity with applicable res-
idential zoning regulations. The City of Portland was enjoined from using the
Portland City Code to approve past, present, or future changes in the property’s
nonconforming use, and it was to regulate the use and development of the prop-
erty using applicable residential zoning regulations. The city is not a party to
this appeal. Emmert appealed and assigns error to the trial court (1) finding sub-
ject matter jurisdiction to decide land use matters, (2) finding that the plaintiffs
have standing to file this declaratory judgment action, and (3) declaring that the
nonconforming use had been lost and that the city’s approval of a change in use
was not valid. Held: The Court of Appeals rejected the first assignment of error
because although ORS 197.825(1) gives LUBA exclusive jurisdiction to review
land use decisions, the circuit courts retain jurisdiction to “grant declaratory
[and] injunctive relief in proceedings arising from” final land use decisions. ORS
197.825(3)(a). It likewise rejected the second assignment of error because the
individual plaintiffs alleged and offered evidence of (1) an interest in property
466 Albrecht v. Emmert
in close proximity to Emmert’s property (the HOA plaintiff relied upon ORS
94.630(1)(e)(C) for its authority to seek declaratory relief for neighboring property
owners in its representative capacity), (2) that the use of Emmert’s property as a
multisport club impacted plaintiffs’ ability to use their own property, and (3) that
the court’s decision would have a practical effect on plaintiffs’ use of their prop-
erty. Thus, the trial court did not err in concluding that plaintiffs had standing to
file this declaratory judgment action. And, finally, the Court of Appeals rejected
the third assignment of error concluding that the trial court did not abuse its
discretion in granting declaratory relief on the record in this case.
Affirmed.
Katharine von Ter Stegge, Judge.
Geoffrey B. Silverman argued the cause for appel-
lants. Also on the briefs was The Law Office of Geoffrey B.
Silverman, LLC.
Christopher P. Koback argued the cause for respondents.
Also on the brief was Hathaway Larson LLP.
Before Mooney, Presiding Judge, and Lagesen, Chief
Judge, and Pagán, Judge.*
MOONEY, P. J.
Affirmed.
______________
*Lagesen, C. J., vice James, J. pro tempore.
Cite as 327 Or App 465 (2023) 467
MOONEY, P. J.
Defendants Terry W. Emmert and Courts
Connection, LLC, (Emmert)1 appeal from a Declaratory
Judgment and Injunction that, among other things, declared
that the legal nonconforming use of their Southeast Portland
property (the property) as a private tennis club had been
lost, enjoined them from operating the Eastmoreland Sports
Club on that property, and ordered them to use and develop
the property in conformity with applicable residential zon-
ing regulations. That Judgment and Injunction also enjoined
the City of Portland (the city) from using the Portland City
Code (PCC) to approve past, present, or future changes in
the property’s nonconforming use, and it ordered the city
to regulate the use and development of the property using
applicable residential zoning regulations. The city is not
a party to this appeal. Emmert assigns error to the trial
court (1) finding subject matter jurisdiction to decide land
use matters, (2) finding that the plaintiffs have standing
to file this declaratory judgment action, and (3) declaring
that the nonconforming use had been lost and that the city’s
approval of a change in use was not valid. We affirm.
This appeal concerns a decade-long dispute between
neighboring property owners. Although a thorough review of
the specific details of this dispute would not benefit the bench,
the bar, or the public, we include enough background infor-
mation to provide context for our analysis and disposition.
Emmert purchased the tennis club and related real
property that is the subject of this case in 1995. The prop-
erty is in a residential neighborhood in Southeast Portland,
at the end of a cul-de-sac. The tennis club was built in 1976
after being authorized under the city’s then-existing zoning
code. The city code changed in 1991 and, among other things,
no longer permitted athletic clubs in residential zones. The
tennis club was grandfathered into the new zoning struc-
ture as a “legal nonconforming use” under PCC 33.258.035.2
1
For ease of reference, we refer to defendants as “Emmert” unless the con-
text requires otherwise.
2
PCC 33.258.035 provides:
“The nonconforming situation regulations apply only to those noncon-
forming situations which were allowed when established or which were
approved through a land use review. Additionally, they must have been
468 Albrecht v. Emmert
Its use as a tennis club was determined to fit within the
Retail Sales and Service category under PCC 33.920.250.
Emmert operated the property and facilities as a
tennis club until 2012, when he closed the club, redevel-
oped the property, and opened a multi-sport athletic facility
there. Tennis stopped altogether at the end of 2013 when
the remaining tennis courts were repurposed for parking.
The change in use has resulted in an increase in the use of
the property and a corresponding increase in traffic, park-
ing, and related issues for the neighborhood. The plaintiffs
are neighbors living along the cul-de-sac that ends at the
property and which provides the only vehicular access to the
property.
A rancorous dispute concerning the changed use
of the property and the impact on neighbors developed
between Emmert and plaintiffs over the course of the next
three to four years. We will not detail the events of that time
period other than to note that the city became involved, and
it opened an enforcement case, CC 12-175966, in 2013, citing
Emmert for expanding on-site parking onto outdoor tennis
courts. The neighboring property owners later filed a man-
damus proceeding related to the city’s enforcement of the
zoning code after which, in June 2016, the city issued a new
citation to Emmert for zoning code violations.
The new citation was issued to Emmert for violat-
ing PCC 33.258.050(B),3 using the same enforcement case
file that it had opened in 2013. Specifically, the city cited
him for changing to a different use within the Retail Sales
and Service category, from “private tennis club for use
by neighborhood residents to multi-sport athletic facility
maintained over time. These situations have legal nonconforming status.
Nonconforming situations which were not allowed when established or have
not been maintained over time have no legal right to continue (often referred
to as ‘grandfather rights’) and must be removed.”
3
PCC 33.258.050(B) provides:
“A change to a different use in the same use category * * * is allowed by
right, provided that the off-site impact standards of Chapter 33.262, Off-
Site Impacts, are met. The applicant must document in advance that the
nonconforming use will meet the off-site impact standards. For changes
of use within the same use category which do not meet the off-site impact
standards, the change may be allowed through a nonconforming situation
review.”
Cite as 327 Or App 465 (2023) 469
attracting non-neighborhood participants,” without docu-
menting in advance that the change in use would meet off-
site impact standards or receiving approval of the change
through a nonconforming situation review. To correct the
violation, Emmert was given three options: (1) discontinue
all non-tennis club use of the property, (2) proceed with an
off-site impact standards approval process, or (3) if the off-
site impact standards could not be met, then seek approval
through a Type II nonconforming situation review. Emmert
sought administrative review of the citation which was con-
firmed as properly cited in December 2016. Emmert appealed
that decision, and in March 2017, the hearings officer sus-
tained the citation and confirmed that the use had, in fact,
changed as alleged in the citation.
Emmert opted to pursue an off-site impacts standard
review, which the city clarified would need to be processed
as part of the existing enforcement case. Approximately one
year later, in April 2018, Emmert submitted off-site impact
documents and requested a change in use to multi-sport
athletic club. That review was conducted on the basis of the
documentation supplied by Emmert, without public notice
or comment, pursuant to PCC 33.258.038.4 Another year
after that, in March 2019, a Supervising Planner from the
city’s Bureau of Development Services issued a case closure
decision (CCD) confirming that off-site impact standards
had been met, authorizing the change in use to multi-sport
athletic facility, and closing code enforcement case number
CC 12-175966 as “corrected” and “resolved.” Within the next
month, the neighboring property owners and homeowners’
association (plaintiffs) filed a petition for writ of review of
the CCD in Multnomah County Circuit Court case number
19CV17237. The city was the only named respondent, and
no persons or entities sought intervention in that case.
4
PCC 33.258.038 provides, in part:
“The applicant must provide evidence to show that the situation was
allowed when established and was maintained over time. If the applicant
provides standard evidence from the list below, the Director of [the city’s
Bureau of Development Services] BDS will determine if the evidence is satis-
factory. The Director of BDS will also determine, based on the evidence, what
the current legal use is, using the definitions in Chapter 33.910 and the use
categories in Chapter 33.920. If the applicant provides evidence other than
the standard evidence listed below, a Determination of Legal Nonconforming
Status is required.”
470 Albrecht v. Emmert
Eight months before the CCD was issued, plaintiffs
had filed this declaratory judgment action in Multnomah
County Circuit Court, Case No. 18CV31745, claiming that
increased traffic associated with the change in use had
negatively impacted the quiet enjoyment of their proper-
ties. They sought a declaration that, among other things,
the nonconforming use as a tennis club had been lost and
that PCC 33.258 concerning “non-conforming situations” no
longer applied to the property. They also sought an order
enjoining Emmert from developing and operating, and the
city from approving, the property for any use not in confor-
mity with the applicable residential zoning requirements.
The trial court consolidated the two cases for pur-
poses of trial as a matter of judicial economy because there
was overlap in a number of factual and legal issues and
much of the evidence and testimony would be the same. They
remained separate legal cases for all other purposes and the
decisions in the cases were reflected in separate judgments.
The trial court first issued an order in Case No.
19CV17237, reversing the city’s CCD and finding, among
other things, that “[t]he nonconforming use of the property
changed in August 2012,” that tennis “ceased completely
at the property by 2013,” that Emmert “did not seek legal
approval for the change in nonconforming use until 2018,
more than five years after the nonconforming use had
changed,” and that at the time he sought approval “the orig-
inal nonconforming use had been lost as discontinued for
more than five years, and the property had reverted to its
base zoning.” That order was not appealed. It is not before
us.
Two days later, the trial court signed a declaratory
judgment and injunction in Case No. 18CV31745. The court
declared, essentially, that the original nonconforming use
was discontinued in 2012, that the nonconforming use desig-
nation “was lost in 2018 due to a five-year discontinuation in
that use,” that PCC 33.258 concerning nonconforming situ-
ations no longer applies to the property and “cannot be rein-
stated or revived,” and that the property reverted to its base
zoning “and is restricted to uses permitted under” applica-
ble residential and overlay zones. The court also enjoined
Cite as 327 Or App 465 (2023) 471
Emmert from using the property for any use not permitted
under the applicable residential and overlay zones, and it
enjoined the city from “approving past, present, or future
nonconforming use or development at the subject property.”
Emmert appealed that judgment, and it is that case that is
before us. The city did not appeal and does not appear before
us.
Jurisdiction: Emmert argues first that “[t]his court
does not have jurisdiction over the Case Closure Decision[.]”
We review such matters for legal error. Campbell v. Tardio,
261 Or App 78, 80, 323 P3d 317 (2014). The difficulty with
Emmert’s jurisdictional argument is that it refers repeat-
edly to the CCD which was the final decision that closed the
city’s code enforcement case. Review of that decision was the
subject of the petition for writ of review in circuit court Case
No. 19CV17237. There was no appeal filed in that case, and
the circuit court’s reversal of the CCD is not before us.
This is an appeal from the declaratory relief action
that was tried in the circuit court. Emmert’s focus on the
CCD in his argument in support of his first assignment of
error concerning jurisdiction detracts from the precision
that ORAP 5.45(3) requires of that assignment. Whether
the circuit court had jurisdiction to hear the writ of review
case is not relevant to our review of this case. We never-
theless understand that at the base of Emmert’s jurisdic-
tional argument in this case is his contention that this is a
land use matter that should have been appealed to LUBA.
Regardless of the adequacy of his assignment of error, it
raises jurisdiction as an issue, and we have “an indepen-
dent obligation to acknowledge a defect in jurisdiction” as
well as “the existence of jurisdiction,” whichever our review
reveals. State v. Ainsworth, 346 Or 524, 538 n 16, 213 P3d
1225 (2009).
The question is whether the trial court had jurisdic-
tion to issue declaratory relief in this case. To do so, it “must
also have [had] jurisdiction over the subject matter of the
controversy.” Brown v. Oregon State Bar, 293 Or 446, 449,
648 P2d 1289 (1982). Article VII (Original), section 9, of the
Oregon Constitution vests “all judicial power, authority, and
jurisdiction” not otherwise constitutionally vested in some
472 Albrecht v. Emmert
other court, in the circuit courts. That the circuit courts
have jurisdiction to determine the respective rights of prop-
erty owners in real property goes back at least as far as the
day Oregon entered the Union as a state. See, e.g., Groslouis
v. Northcut, 3 Or 394 (1872) (discussing the role of the court
in adjudicating the rights of married persons to real prop-
erty in a divorce proceeding). And while ORS 197.825(1)
gives LUBA exclusive jurisdiction to review land use deci-
sions, the circuit courts retain jurisdiction to “grant declar-
atory [and] injunctive [ ] relief in proceedings arising from”
final land use decisions. ORS 197.825(3)(a).
ORS 28.010 provides, in part, that “[c]ourts of
record within their respective jurisdictions shall have power
to declare rights, status, and other legal relations, whether
or not further relief is or could be claimed.” ORS 28.020 pro-
vides, more specifically that:
“[a]ny person interested under a deed, will, written
contract or other writing constituting a contract, or whose
rights, status or other legal relations are affected by a con-
stitution, statute, municipal charter, ordinance, contract or
franchise may have determined any question of construc-
tion or validity arising under any such instrument, consti-
tution, statute, municipal charter, ordinance, contract or
franchise and obtain a declaration of rights, status or other
legal relations thereunder.”
The purpose of a declaratory relief action “is to settle and to
afford relief from uncertainty and insecurity with respect to
rights, status and other legal relations, and is to be liberally
construed and administered.” ORS 28.120.
Plaintiffs sought a declaration of rights based upon
their ownership interests in property through deed, contract
or otherwise, the existing zoning code, and zoning decisions
that had already been made with respect to Emmert’s prop-
erty that affected plaintiffs’ ability to enjoy the use of their
own properties. Emmert argues that plaintiffs were not enti-
tled to file the declaratory relief case because the process
of reviewing Emmert’s documents to determine any off-site
impacts had not yet been concluded. He describes the city
planner’s ultimate decision to close the enforcement case as
a land use decision that required the planner to exercise
Cite as 327 Or App 465 (2023) 473
his judgment and discretion. But, again, the problem with
that argument is that the CCD was reviewed by the circuit
court in the writ of review case, 19CV17237, and there was
no appeal. The CCD and its reversal are not before us.
Plaintiffs sought a declaration of the rights of the
parties regarding the use of Emmert’s property as that use
impacts plaintiffs’ use and enjoyment of their own property.
The dispute between the parties caused uncertainty regard-
ing their respective rights even after the city sustained the
citation against Emmert for violating the zoning code. The
dispute and uncertainty had developed and been ongoing
for a number of years. To be sure, Emmert sought to correct
the violation, but by the time he submitted his documents,
another year had passed. Emmert points us to no case or
other authority that bars plaintiffs from seeking certainty
of existing property rights through a declaratory relief
action under the circumstances presented here. We reject
Emmert’s first assignment of error.
Standing: Standing is also reviewed for legal error.
See Kellas v. Dept. of Corrections, 341 Or 471, 476-86, 145 P3d
139 (2006) (applying standard). Standing, like jurisdiction,
“is not a generic concept but largely depends on the statute
under which the plaintiff seeks relief.” MT & M Gaming, Inc.
v. City of Portland, 360 Or 544, 553, 383 P3d 800 (2016). As
we recently explained, “standing means the right to obtain
an adjudication.” Andlovec v. Spoto, 326 Or App 525, 535-36,
532 P3d 531 (2023). To seek declaratory relief under ORS
28.010 to 28.160, plaintiffs must establish that their “rights,
status or other legal relations” are “affected by” Emmert’s
use of his property and the application of the zoning code
and decisions made under that code to his property. ORS
28.020.
Three considerations are relevant to the question
of standing on this record: (1) there must be some injury or
impact to a legally recognized interest beyond an abstract
interest in the correct application or the validity of a law;
(2) the injury or impact must be probable, not speculative;
and (3) the court’s decision must have a practical effect on
plaintiffs’ rights. Morgan v. Sisters School District #6, 353
Or 189, 195-97, 301 P3d 419 (2013) (internal quotations
474 Albrecht v. Emmert
omitted). The individual plaintiffs alleged and offered evi-
dence of an interest in their property in close proximity to
Emmert’s property, and the HOA relies upon ORS 94.630
(1)(e)(C) for its authority to seek declaratory relief for neigh-
boring property owners in its representative capacity. The
allegations and record also support a determination that the
new use on Emmert’s property impacts the plaintiffs’ abil-
ity to use their own property, and that the court’s decision
would have a practical effect on their use of that property.
Emmert’s arguments notwithstanding, we agree with the
trial court and conclude that the plaintiffs had standing.
Grant of Declaratory Relief: Finally, we review the
trial court’s decision to grant declaratory relief for abuse
of discretion. See Brown, 293 Or at 450-51. The trial court
reversed the CCD in the writ of review case that was con-
solidated with the declaratory relief case for trial. But as
we have already established, the trial court’s decision in the
writ of review case was not appealed. Given that, we cannot
say that the trial court abused its discretion in declaring
the parties’ rights in this case in alignment with that other
judgment. To have done the opposite was not in the range of
permissible outcomes once the CCD was reversed.
Affirmed.