text:
    STATE of Oregon, Plaintiff-Respondent, v. Thomas Steven SLAGLE, Defendant-Appellant.
    A161733
    Court of Appeals of Oregon.
    Submitted February 21, 2018. May 1, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services filed the opening brief for appellant. Thomas S. Slagle filed the supplemental brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
    GARRETT, J. pro tempore Defendant appeals a judgment of conviction for 10 counts of first-degree encouraging child sexual abuse, ORS 163.684. He raises 13 assignments of error. We reject the first assignment of error without discussion. In his second through fourth assignments of error, defendant argues that the trial court erred in finding that there were multiple victims of defendant's crimes and, as a result, imposing consecutive sentences. In his remaining assignments of error, defendant contends that the trial court erred by failing to merge the 10 guilty verdicts into a single conviction. Reviewing for legal error, see State v. Huffman , 234 Or. App. 177, 183, 227 P.3d 1206 (2010) (reviewing trial court's merger ruling for legal error); State v. Sumerlin , 139 Or. App. 579, 588, 913 P.2d 340 (1996) (reviewing trial court's imposition of consecutive sentences for legal error), we reject defendant's arguments and affirm.
    Defendant was charged by district attorney information. Each of the 10 counts tracked the language of ORS 163.684. Counts two through 10 stated:
    "The defendant, on or about June 11, 2015, in Lane County, Oregon, did unlawfully and knowingly possess a record in visual recording of sexually explicit conduct involving a child, separate and distinct from all others alleged in this Information, with the intent to disseminate the record in visual recording while knowing or being aware of and consciously disregarding the fact that creation of the visual recording of sexually explicitly conduct involved child abuse[.]"
    Count one differed only in that it did not include the phrase "separate and distinct from all others alleged in this Information."
    Defendant did not demur to, or otherwise challenge, the information. See ORS 135.630 (providing for demurrer to charging instrument). He did not move the court either to require the state to elect specific visual recordings to support each count or to otherwise provide more specific information. He waived his right to a preliminary hearing and indictment by grand jury and pleaded guilty to all 10 counts. Defendant's plea petition stated:
    "Defendant knows and understands that this will be an open sentencing where his attorney and the State are both free to argue with no upfront agreement as to the sentence that should be imposed. Defendant knows and understands that he is an 8-D on at least the first Count, and that he may be subject to consecutive counts and potentially different and higher sentencing grid blocks * * *."
    Both parties filed sentencing memorandums. Attached to the state's supplemental sentencing memorandum was an affidavit from the investigating detective asserting that defendant possessed "5000 videos and 5000 images of pornography, the majority of which was child pornography." The affidavit described 10 specific videos that defendant possessed on June 11, 2015, corresponding to the 10 counts in the information. The affidavit asserted that each of the 10 videos depicted a different child victim.
    Defendant moved to strike the affidavit on the ground that its admission would, in effect, improperly amend the charges of the information after his guilty plea by referring to 10 separate victims instead of what defendant described as the single "generic victim" in the charging instrument. Defendant also argued that the trial court was required to merge each of the 10 guilty verdicts into a single conviction under ORS 161.067 or, alternatively, that concurrent sentences were required. The trial court denied defendant's motions, found that each of the 10 convictions involved a different victim, and sentenced defendant consecutively for each conviction. See ORS 137.123(5)(b) (authorizing consecutive sentences where there are multiple victims). On appeal, defendant argues that the trial court erred in both respects.
    We address the merger issue first. ORS 161.067 sets out the circumstances in which trial courts must enter separate convictions for multiple offenses arising out of the same conduct or criminal episode. The state contends that ORS 161.067(2) operates to prohibit merger here because defendant pleaded guilty to criminal conduct against 10 different victims. See ORS 161.067(2) ("When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims."). Defendant argues that that provision does not apply and that the trial court was therefore required to merge defendant's 10 guilty verdicts into a single conviction because the charging instrument did not specify that there were multiple victims and defendant consequently pleaded guilty to committing crimes against just one "generic victim."
    Defendant's argument fails. The district attorney's information broadly alleges that defendant possessed 10 "visual recording[s] of sexually explicit conduct involving a child " (emphasis added) and does not specify whether each recording depicts the same child or different children. Cf. Lake Oswego Preservation Society v. City of Lake Oswego , 360 Or. 115, 126-27, 379 P.3d 462 (2016) (indefinite article "a" can be used both specifically and nonspecifically). We have held that, where a defendant pleads guilty or no contest to committing crimes "on or between" a range of dates as alleged in the charging instrument, the state can prove that the defendant committed the offenses on any of the dates alleged because the defendant, "by failing to limit or qualify his pleas, * * * assent[s] to the broadest construction of his pleas." Hibbard v. Board of Parole , 144 Or. App. 82, 87-88, 925 P.2d 910 (1996), vac'd on other grounds , 327 Or. 594, 965 P.2d 1022 (1998) ; see also United States v. Broce , 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (in pleading guilty, a defendant admits to "the crime charged against him" and the factual predicate underlying the conviction (internal quotation marks omitted)); State v. White , 280 Or. App. 170, 171-72, 380 P.3d 1205 (2016), rev. den. , 360 Or. 752, 388 P.3d 727 (2017) (following Hibbard ); State v. Ostrom , 257 Or. App. 520, 521-22, 306 P.3d 788 (2013) (same). Our reasoning from Hibbard , Ostrom , and White applies here: Because defendant pleaded guilty without qualifying his pleas, he assented to the broader construction that he possessed 10 visual recordings of different children. Consequently, the trial court could enter 10 separate convictions under ORS 161.067(2). We reject defendant's fifth through thirteenth assignments of error.
    We turn to defendant's argument that the trial court erred in denying his motion to strike the detective's affidavit, in finding that there were multiple victims (a finding for which the affidavit was the only supporting evidence), and in imposing consecutive sentences. As to the motion to strike, defendant's central argument, as we understand it, is that the affidavit-which identifies at least 10 different victims to defendant's crimes-relies on a different "factual basis" than the information-which purportedly identifies only a single "generic victim." According to defendant, the trial court should not have relied on the affidavit to impose consecutive sentences because the inconsistent "factual bases" on which defendant's sentence is based retroactively compromises the constitutional notice, double jeopardy, and judicial review functions of the charging instrument. See State v. Wimber , 315 Or. 103, 115, 843 P.2d 424 (1992) (purposes of charging instrument are to (1) ensure that the defendant is informed of the nature and character of the charged offense, (2) ensure that the offense is sufficiently described so that defendant may plead double jeopardy if brought to trial a second time for the same criminal act, and (3) inform the court of the facts alleged so that it may determine whether they are sufficient to support a conviction (citing State v. Smith , 182 Or. 497, 500-01, 188 P.2d 998 (1948) )); see also Or. Const., Art. I, § 11 (guaranteeing criminal defendants the right to demand the nature and cause of accusations against them).
    Even assuming that defendant's "inconsistent factual basis" theory could be cognizable under other circumstances, it fails here because the argument relies on a premise that we rejected above: that the information identifies only one victim of defendant's crimes. As noted, the information can reasonably be read to allege that there were 10 different victims of defendant's crimes. Therefore, defendant's assertion that the affidavit rests on a different "factual basis" than the information is incorrect.
    As to the remaining assignments of error, the sentencing court could rely on the detective's affidavit to find that the counts involved separate victims. See ORS 137.090(1)(c) (in determining aggravation or mitigation at sentencing, "the court shall consider * * * [a]ny other evidence relevant to aggravation or mitigation that the court finds trustworthy and reliable."); OEC 101(4)(d) (the rules of evidence do not apply to sentencing proceedings, except in aggravated murder or death penalty proceedings); cf.
    State v. McNeil , 170 Or. App. 407, 412, 12 P.3d 992 (2000) (sentencing court may consider counsels' representations as evidence). The finding of multiple victims, in turn, was a permissible basis for imposing consecutive sentences. See ORS 137.123(5)(b) (authorizing consecutive sentences for offenses with different victims). Moreover, defendant acknowledged in his plea petition that he understood that the court could sentence him to consecutive sentences. For those reasons, we reject defendant's assignments of error.

      ORS 163.684 provides:
      "(1) A person commits the crime of encouraging child sexual abuse in the first degree if the person:
      "(a)(A) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance or sells a visual recording of sexually explicit conduct involving a child or knowingly possesses, accesses or views such a visual recording with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell it; or
      "(B) Knowingly brings into this state, or causes to be brought or sent into this state, for sale or distribution, a visual recording of sexually explicit conduct involving a child; and
      "(b) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse."

      Defendant does not challenge the sufficiency of the information by itself.

      Defendant has not cited authority for his view that the constitutional "purposes" of a charging instrument may be later compromised by the introduction of evidence at sentencing that rests on a different "factual basis" than the charging instrument. We express no view as to whether that theory could succeed under different circumstances than those here.

      Defendant has not argued that he failed to understand the nature of the charges against him. In all events, we have held that the burden is on a defendant to seek clarification before pleading guilty. See, e.g. , State v. Antoine , 269 Or. App. 66, 78, 344 P.3d 69, rev. den. , 357 Or. 324, 354 P.3d 696 (2015) (burden is on defendant to attempt to procure adequate notice of the charges against him).

      Defendant also filed a pro se supplemental brief in which he separately contends that the admission of the affidavit was an "unconstitutional amendment" to the charged offenses because it introduced new evidence, without going through the grand jury, after he entered his plea in violation of both the United States and Oregon constitutions. Defendant, however, waived his right to grand jury indictment under the Oregon Constitution and does not argue that that waiver was invalid. Further, the indictment clause of the Fifth Amendment does not apply to state prosecutions. See Hurtado v. California , 110 U.S. 516, 521, 4 S.Ct. 111, 28 L.Ed. 232 (1884).

   Affirmed.


source: Caselaw Access Project

author: JAMES, J.

license: Public Domain

text:
    OREGON SHORES CONSERVATION COALITION, an Oregon non-profit corporation, Petitioner-Appellant, v. BOARD OF COMMISSIONERS OF CLATSOP COUNTY, an Oregon municipal corporation, Respondent-Respondent, and Gary S. Aspmo and Beverly J. Aspmo, Trustees, Intervenors-Respondents.
    State of Oregon, by and through the Department of Land Conservation and Development, Plaintiff-Appellant, v. Clatsop County; Gary S. Aspmo; and Beverly J. Aspmo, Trustees, Defendants-Respondents.
    A164621
    Court of Appeals of Oregon.
    Argued and submitted May 3, 2018. April 24, 2019
    Scott N. Hilgenberg argued the cause for appellant Oregon Shores Conservation Coalition. Also on the brief was Courtney B. Johnson.
    Judy C. Lucas, Assistant Attorney General, argued the cause for appellant State of Oregon. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.
    Christopher D. Crean waived appearance for respondent Clatsop County.
    Seth J. King waived appearance for respondents Gary S. Aspmo and Beverly J. Aspmo.
    No appearance for respondent Board of Commissioners of Clatsop County.
    Before DeHoog, Presiding Judge, and James, Judge, and Aoyagi, Judge.

      James, J., vice Hadlock, P. J.

   JAMES, J.

In this case regarding common law vested rights under Ballot Measure 49 (2007), the Oregon Shores Conservation Coalition (OSCC) and the State of Oregon (jointly, appellants) appeal a judgment entered in a writ-of-review proceeding that affirmed Clatsop County's determination that Gary and Beverly Aspmo (claimants) have a vested right under Measure 49 to complete a 15-lot subdivision on their property. As explained below, we reject appellants' contention that ORS 215.130, and the Clatsop County ordinance implementing that statute, apply to claimants' Measure 49 claim and extinguish it. Thus, the writ-of-review court correctly affirmed the county's determination that ORS 215.130 does not apply. However, we agree with appellants that the county misconstrued the law when it reasoned that, although claimants had no vested right to complete the development that they intended to construct when Measure 49 took effect-a 30-lot subdivision-they nonetheless had a vested right to complete a development that they never intended to construct, namely, a 15-lot subdivision. Consequently, the writ-of-review court erred in affirming the county's order in that regard. Accordingly, we reverse and remand.

We state the facts consistently with the uncontested explicit and implicit factual findings in the county's vesting determination. Friends of Yamhill County v. Board of Commissioners , 237 Or. App. 149, 153, 238 P.3d 1016 (2010), aff'd , 351 Or. 219, 264 P.3d 1265 (2011) ( Friends I ). In 2005, pursuant to Ballot Measure 37 (2004), claimants sought waivers of land use regulations from Clatsop County and from the state. In their applications for the waivers, they stated that they intended to build a 20-lot subdivision on their property. The county and the state issued waivers agreeing not to apply regulations preventing claimants from subdividing and building dwellings on their property. Neither waiver stated the number of lots into which the property could be divided or the number of dwellings that claimants could build.

In February 2007, claimants applied to the county for approval for a 30-lot subdivision on their property. In August 2007, the county granted preliminary approval of that subdivision. Before December 6, 2007, the effective date of Measure 49, claimants spent $ 244,772.89 toward construction of the planned 30-lot subdivision. They cleared and graded the property, installed rock base for the roads, bored test holes for septic systems, and drilled wells to provide water for several homes in the first phase of the project, which was to include five lots. They obtained all necessary permits for that work. By December 6, 2007, claimants had stopped all work on the property.

As discussed further below, Measure 49 extinguished all Measure 37 waivers, including claimants'. Under Measure 49, landowners "who had been proceeding with a development under the authorization of a Measure 37 waiver could no longer automatically continue to do so. Instead, they had to choose among three pathways: the express pathway, the conditional pathway, and the vested rights pathway." Friends of Yamhill County v. Board of Commissioners , 351 Or. 219, 228, 264 P.3d 1265 (2011) ( Friends II ). Claimants chose the vested rights pathway established in section 5(3) of Measure 49, which is set out below, 297 Or. App. at ----, 441 P.3d at ----, and Clatsop County Ordinance 08-06, which provides procedures and standards for a vested rights determination under section 5(3) of Measure 49. In March 2008, they applied to Clatsop County for a determination that they had a vested right to complete and continue their 30-lot subdivision.

The county hearings officer determined that claimants did not have a vested right to complete the 30-lot subdivision, but that they did have a vested right to complete the five lots and homes that made up the first phase of the development. However, the county disagreed; it decided that claimants had a vested right to complete the whole 30-lot subdivision. OSCC, which had appeared before the county, sought review of that determination by writ of review in circuit court. The circuit court affirmed the county's determination, and OSCC appealed to this court. Ultimately, we reversed and remanded for reconsideration by the county. Oregon Shores v. Board of County Commissioners , 249 Or. App. 531, 536, 277 P.3d 639 (2012). The circuit court remanded the case to the county on September 13, 2012.

On July 29, 2014, claimants submitted materials to the county for a new determination of whether they had a vested right to complete and continue their 30-lot subdivision. The state and OSCC both appeared before the county, contending that claimants did not have a vested right to complete the development of their property. Among other arguments, appellants contended that any vested right that claimants had was subject to ORS 215.130, which provides that nonconforming uses of land "may not be resumed after a period of interruption or abandonment." ORS 215.130(5), (7). A Clatsop County ordinance implementing that statute provides, "If a non-conforming use is discontinued for a period of one year, subsequent use of the property shall conform to" current land use regulations. Clatsop County Land and Water Development and Use Ordinance § 5.618. Our case law establishes that common law vested rights to develop property are "inchoate nonconforming uses" that can be subject to ORS 215.130. Fountain Village Development Co. v. Multnomah Co. , 176 Or. App. 213, 221, 31 P.3d 458 (2001), rev. den. , 334 Or. 411, 52 P.3d 436 (2002) ( Fountain Village ).

Appellants contended that claimants discontinued their use by not submitting materials for a new county vesting determination between September 13, 2012, when the circuit court remanded the matter to the county, and July 29, 2014. Noting that that period of time was more than one year, appellants contended that any vested right that claimants might have had was extinguished by operation of the statute and the ordinance.

The county rejected that argument, holding that the statute and the ordinance did not apply. The county implicitly found that claimants intended to construct a 30-lot subdivision, but determined that they had no vested right to complete and continue that use because they had spent only three percent of the total cost of construction of the project before Measure 49 became effective. See Friends II , 351 Or. at 242-43, 264 P.3d 1265 (explaining the role of the expenditure ratio-the ratio between the costs incurred toward completion of the project before a change in the law and the total cost of construction of the project-in vested rights analysis).

After making that determination, the county decided that claimants nevertheless had a vested right to construct a 15-lot subdivision. Appellants both sought writs of review in the Clatsop County circuit court, and the circuit court consolidated the proceedings. The circuit court entered a general judgment upholding the county's decision.

On appeal of that judgment, appellants contend that the county and the circuit court misconstrued the law in several ways, including by failing to apply ORS 215.130(7) and the ordinance implementing it and in determining that claimants had a vested right to complete a 15-lot subdivision that they never intended to construct. Claimants, Clatsop County, and the Clatsop County Board of Commissioners have not submitted responding briefs.

In an appeal from a writ of review where the parties' arguments raise only questions of law, as they do here, we review for errors of law. See Friends II , 351 Or. at 244, 264 P.3d 1265 (explaining standard of review on appeal of a writ of review from a Measure 49 vested rights determination); Or. Laws 2007, ch. 424, § 16, codified at ORS 195.318 (allowing challenges to county vested rights decisions under Measure 49 by way of writ of review); ORS 34.040(1)(d) (in a writ-of-review proceeding, the circuit court must determine, among other things, whether the county "[i]mproperly construed the applicable law"). We begin by addressing appellants' contention that ORS 215.130 and the ordinance implementing it extinguished claimants' claim under section 5(3) of Measure 49. When the meaning of a statute is at issue, we are responsible for identifying the correct interpretation regardless of whether it has been asserted by the parties. Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997). In interpreting statutes, our goal is to discern the intention of the legislature or, in the case of ballot measures, the voters, by examining the text, context, and any pertinent legislative history of the statute. Friends I , 237 Or. App. at 166-67, 238 P.3d 1016 (citing State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) ).

The question before us turns on the meaning of section 5 of Measure 49, which provides as follows:

"A claimant that filed a claim under [Measure 37] on or before [June 28, 2007] is entitled to just compensation as provided in:
"(1) Section 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 if the 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 [ (December 6, 2007) ] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act [ (December 6, 2007) ] to complete and continue the use described in the waiver."

For claims, like those at issue here, based on land use regulations enacted before 2007, Measure 49 defines "just compensation" as "[r]elief under sections 5 to 11 of this 2007 Act." Measure 49, § 2(13)(a), codified as ORS 195.300(13)(a) (2007), amended by Or. Laws 2009, ch. 464, § 1.

As noted above, appellants point out that we have held that common law vested rights are "inchoate nonconforming uses" and, consequently, that an ordinance implementing ORS 215.130 can operate to extinguish a vested right "after a period of interruption or abandonment." Fountain Village , 176 Or. App. at 221, 31 P.3d 458 ; ORS 215.130(7).

Based on that holding, appellants reason that ORS 215.130 and the implementing ordinance extinguished claimants' claim under section 5(3) of Measure 49 because, between September 2012 and July 2014, claimants interrupted their pursuit of the determination that they had a vested right to complete construction of their subdivision. Appellants' arguments contain an unspoken assumption-that a claim under section 5(3) is identical to a common law vested rights claim. That assumption is flawed.

A claim described in section 5(3) of Measure 49 is not identical to equitable claims raised on purely common law grounds-for example, the claims at issue in Fountain Village and Clackamas County v. Holmes , 265 Or. 193, 508 P.2d 190 (1973). In that kind of vested rights claim, the common law vested right is the only basis for the claim, so its extinction by operation of ORS 215.130 necessarily disposes of the claim. See Fountain Village , 176 Or. App. at 218, 224, 31 P.3d 458 (when any vested right that previously existed has been extinguished by an ordinance implementing ORS 215.130, the landowner is not entitled to relief).

However, a claim under section 5(3) of Measure 49 is fundamentally different from the type of claim addressed in Holmes . When a landowner brings a vested rights claim under the common law, the question is whether, as an equitable matter under the common law, the landowner should be allowed to finish a partially completed use. See Holmes , 265 Or. at 197, 201, 508 P.2d 190 (citing "[t]he courts and the text writers" as the source of vested rights doctrine). By contrast, section 5(3) creates an independent statutory right to a particular remedy-just compensation-under certain enumerated conditions. Cf. Deckard v. Bunch , 358 Or. 754, 760, 370 P.3d 478 (2016) ("Because the issue is one of legislative intent, the determination of whether an enactment created statutory liability is a matter of statutory interpretation[.]").

As set out above, section 5(3) of Measure 49 provides as follows:

"A claimant that filed a claim under [Measure 37] on or before [June 28, 2007] is entitled to just compensation as provided in * * * [a] waiver issued before the effective date of this 2007 Act [ (December 6, 2007) ] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act [ (December 6, 2007) ] to complete and continue the use described in the waiver."

(Emphasis added.) Critically, "just compensation" is defined as "[r]elief under sections 5 to 11 of this 2007 Act." Measure 49, § 2(13)(a). Thus, to the extent that a claimant shows the two required conditions-(1) the use of the property complies with the waiver and (2) the claimant had a common law vested right on December 6, 2007, to complete and continue the use described in the waiver-the claimant "is entitled to" "[r]elief under sections 5 to 11 of this 2007 Act" "as provided in" the waiver. Measure 49, § 5(3).

That text is written in the language of entitlement under the statute; it does not merely note the existence of a vested rights claim under the common law. That is, the claimant "is entitled to" "relief under" "this 2007 Act," and the terms of that relief mirror the terms of the waiver.

The Supreme Court's opinion in Friends II supports that understanding of section 5(3) of Measure 49. There, the court explained that "Measure 49 retroactively invalidated Measure 37 waivers of land use regulations, and landowners, such as [the claimant in that case], who had been proceeding with a development under the authorization of a Measure 37 waiver, could no longer automatically continue to do so. Instead, they had to choose among three pathways," one of which was the vested rights pathway, section 5(3). 351 Or. at 228, 264 P.3d 1265. If section 5(3) merely noted the potential existence of common law claims based on vested rights rather than creating a new statutory right to relief, Measure 49 would not have the effect of invalidating Measure 37 waivers in which there were vested rights. As the opinion in Friends II acknowledges, however, Measure 49 does extinguish all Measure 37 waivers. It replaces them with, among other options, a statutory right under section 5(3). See also Friends II , 351 Or. at 235, 264 P.3d 1265 (noting that "the voters who approved Measure 49 intended to adopt Oregon common law as the standard for identifying a vested right" of the kind required by section 5(3) (emphasis added)).

Thus, section 5(3) of Measure 49 provides a statutory right to relief for Measure 37 claimants to the extent that they meet the two statutory conditions. Unlike a common law claim, which turns on whether the landowner can currently-at the time of the claim-show a vested right to complete the development, a statutory claim under section 5(3) does not inherently require the claimant to show that, at the time of the claim, he or she still has a vested right. Instead, the statute sets out the elements of the claim.

The elements of the statutory claim created by section 5(3) are that (1) the claimant filed a Measure 37 claim before June 28, 2007, (2) the use complies with a waiver issued before December 6, 2007, and (3) on December 6, 2007, the claimant had a common law vested right to complete the use described in the waiver. Thus, if a claimant had established a vested right and then discontinued construction for more than a year before December 6, 2007, we assume, without deciding, that ORS 215.130 and the implementing ordinance could extinguish the vested right and prevent the claimant from showing that he or she had a vested right on December 6, 2007. However, appellants do not explain, and we do not perceive, why a claim under section 5(3) would be affected by ORS 215.130 in a case like this one, where the purported discontinuation of the vested right occurred after December 6, 2007.

The text of section 5(3) unambiguously requires the vested right to have existed "on the effective date of this 2007 Act," that is, on December 6, 2007. Nothing in the text or context suggests that what happens to a claimant's common law vested right after December 6, 2007-including whether it is extinguished after a period of interruption or abandonment-is material to the claim under section 5(3).

We conclude that, if the voters had intended a claim under section 5(3) to require the vested right to exist at some later point-for example, as appellants appear to contend, when the claimant applies for a vesting determination-they would not have specified December 6, 2007, as the single date on which the vested right must exist.

Finally, once a claimant satisfies the conditions stated in the text of section 5(3), nothing suggests that the claimant's statutory right to relief is subject to ORS 215.130. As noted above, that statute provides that a "use" that was lawful "at the time of the enactment or amendment of any zoning ordinance or regulation" "may not be resumed after a period of interruption or abandonment" unless it conforms with the requirements of applicable zoning ordinances or regulations. ORS 215.130(5), (7). In Fountain Village , we held that common law vested rights were subject to an ordinance implementing that statute because they were "inchoate nonconforming uses." 176 Or. App. at 221, 31 P.3d 458.

Unlike the right at issue in Fountain Village , however, a successful claim under section 5(3) yields not an inchoate nonconforming use under the common law but, rather, a development right expressly allowed by statute. Moreover, nothing in the text, context, or legislative history of Measure 49 suggests that the legislature or the voters intended to subject statutory rights under section 5(3) to the strictures of ORS 215.130. Compare Measure 49 § 5 (including no mention of ORS 215.130 ) with Measure 49 § 12(6), codified as ORS 195.310(6) (2007), amended by Or. Laws 2009, ch. 464, § 2 ("A use authorized by this section [ (regarding prospective Measure 37 claims) ] has the legal status of a lawful nonconforming use in the same manner as provided by ORS 215.130. * * * When a use authorized by this section is lawfully established, the use may be continued lawfully in the same manner as provided by ORS 215.130.").

Thus, section 5(3) provides a right to relief under Measure 49 for Measure 37 claimants whose use complies with the waiver and who can show that they had a vested right on December 6, 2007, and it does not make that right subject to ORS 215.130. The text of section 5(3) requires a showing that a claimant's vested right existed on December 6, 2007, and no other date. Consequently, it does not matter whether, sometime after December 6, 2007, claimants' vested rights were extinguished by operation of ORS 215.130 and the implementing ordinance. The circuit court did not err in affirming the county's conclusion that ORS 215.130 did not affect claimants' claim.

We turn to appellants' contention that the circuit court erred in affirming the county's determination that claimants had a vested right to complete and continue a 15-lot subdivision. For our purposes here, the relevant factor in the county's vested rights analysis is the expenditure ratio, which is the ratio between the costs that the landowner incurred to construct the planned development and the estimated cost of constructing the whole planned development. Friends II , 351 Or. at 246, 264 P.3d 1265. That factor "provides an objective measure of how far the landowner has proceeded towards completion of construction and thus serves as an initial gauge of whether the landowner has proceeded far enough that he or she has a vested right to complete construction." Id. at 245, 264 P.3d 1265. To determine the ratio, the county must find "two historical facts: (1) the costs that [the claimant] incurred to construct the planned development and (2) the estimated cost of the planned development." Id. at 246, 264 P.3d 1265.

As explained above, in the vesting determination proceeding that is the subject of this appeal, claimants sought a determination that they had a vested right to complete and continue the 30-lot subdivision that they had pursued since February 2007. The parties did not dispute, and the county implicitly found, that, at least from February 2007 through December 6, 2007, the effective date of Measure 49, claimants planned to construct a 30-lot subdivision. The county found that the total cost of constructing that subdivision-the denominator in the expenditure ratio-would have been $ 8,017,100. The county found that claimants' expenditures toward building the 30-lot subdivision-the numerator in the expenditure ratio-totaled $ 240,422.89. Dividing the numerator by the denominator, the county determined that "the applicants have constructed only three percent (3%) of the total project for a 30-lot subdivision." Considering the relevant case law, the county concluded that that expenditure ratio "is not sufficient under the common law to establish a vested right to complete and continue a 30-lot subdivision."

However, after reaching that conclusion, the county held that claimants "have acquired a vested right to complete and continue 15 lots, each with a dwelling, in the subdivision." The county found that that development would cost approximately half as much as a 30-lot subdivision-$ 4,284,200-and that claimants' expenditures were equally applicable to a 15-lot project. Dividing the numerator by the smaller denominator, the county concluded that claimants had spent 5.61 percent of the total cost of the 15-lot subdivision. Considering that ratio along with the other relevant factors, the county determined that claimants had a vested right to complete and continue a 15-lot subdivision. The circuit court affirmed that determination.

Appellants contend that the county's approach misconstrued the law, and we agree. In Friends II , the Supreme Court explained that the expenditure ratio factor turns on findings of historical fact about the development that a claimant planned, on or before December 6, 2007, to construct. 351 Or. at 246, 264 P.3d 1265. The numerator of the expenditure ratio includes only those expenses "incurred to construct" that development, that is, "the planned development." Id. Consequently, that development-the one that the claimant planned, on or before December 6, 2007, to construct-is the only development that a claimant can have a vested right to complete.

The Supreme Court explained that concept in detail with regard to the type of homes that the claimant intended to construct: "In deciding the cost of building the homes [planned for the development], the county must find what type of homes [the claimant] planned to build." Id. at 246 n. 20, 264 P.3d 1265. If the claimant's plans changed between the time when the claimant "began planning the development" and the relevant date for the ratio factor, namely, December 6, 2007, "then the county must decide whether the change in plans was a bad-faith attempt to thwart Measure 49 or a good-faith response to shifting economic or other conditions." Id. In other words, the county must find, as a matter of historical fact, the details of the development that the claimant had in mind before Measure 49 took effect. That is the development toward which the claimant made expenditures before the change in the law and, consequently, that is the only development that the claimant can have a vested right to complete.

Thus, under the circumstances presented here, to determine what "the planned development" entails, the county had to find how many homes claimants planned, on or before December 6, 2007, to build. In this case, in accordance with the evidence in the record, the county understood that, at all relevant times, claimants intended to build 30 homes. Consequently, under Friends II , a 30-lot subdivision-or, as explained below, perhaps a planned phase of that subdivision-is the project that claimants could have a vested right to complete and continue. The county erred in determining that claimants had a vested right to complete and continue a 15-lot subdivision that they did not intend, on or before December 6, 2007, to construct.

Below, in response to arguments by OSCC and the state that its analysis in that respect was flawed, the county held that, in considering a 15-lot subdivision, it was considering the same proposed development as the 30-lot subdivision in which claimants had sought a vested right, but that claimants had a vested right to complete only part of the development. In support of that reasoning, it cited Friends of Polk County v. Oliver , 245 Or. App. 680, 264 P.3d 165 (2011), rev. den. , 351 Or. 586, 274 P.3d 857 (2012), and Milcrest Corp. v. Clackamas County , 59 Or. App. 177, 650 P.2d 963 (1982), in which we held that landowners had vested rights to complete parts of planned developments.

In each of those cases, however, the landowner intended from the outset to develop the relevant part of the planned development as the first phase of the project, and, consistently with that intention, the vast majority of each landowner's expenditures before the change in the law were allocable to that first phase. Friends of Polk County , 245 Or. App. at 685, 264 P.3d 165 (the claimant showed a vested right to complete development of a 30-acre subarea where the "claimant planned to develop the 137-acre property in phases," "[t]he first phase was [the] approximately 30-acre subarea," and the vast majority of the claimant's expenditures were "allocable to the first phase"); Milcrest Corp. , 59 Or. App. at 182, 183, 650 P.2d 963 (the plaintiff showed a vested right to complete a 440-acre portion of a 660-acre planned development where it initially planned and obtained approval for the 440-acre development and "[t]he vast preponderance" of its expenditures "were exclusively referable to the original 440 acres").

By contrast, here, claimants never planned a 15-lot first or subsequent phase of the project or made expenditures toward that goal. As a result, this case is not like Friends of Polk County or Milcrest Corp. Those cases show that, under some circumstances, a claimant may be able to show a vested right in a planned phase of "the planned development." Friends II , 351 Or. at 246, 264 P.3d 1265. However, a claimant cannot show a vested right in a development or a phase of a development that, on or before December 6, 2007, the claimant did not plan. See id. ; accord. Friends of Polk County , 245 Or. App. at 685, 264 P.3d 165 ; Milcrest Corp. , 59 Or. App. at 182, 183, 650 P.2d 963. Accordingly, the circuit court erred in affirming the county's contrary holding.

Reversed and remanded.

      Measure 37 was codified as former ORS 197.352 (2005) and was subsequently amended twice and renumbered as ORS 195.305, all in 2007. Or. Laws 2007, ch. 354, § 28; Or. Laws 2007, ch. 424, § 4.

      For a complete description of the complex legal context in which this dispute arose, see Friends of Yamhill County v. Board of Commissioners , 351 Or. 219, 222-25, 264 P.3d 1265 (2011) (Friends II ).

      The parts of Measure 49 that address previously filed Measure 37 claims, including section 5, were not codified. Friends I , 237 Or. App. at 153 n. 3, 238 P.3d 1016.

      After we issued an opinion in OSCC's appeal, the Supreme Court decided Friends II , in which it explained the legal framework for deciding whether a claimant under section 5(3) of Measure 49 has a common law vested right to complete and continue the use. The court vacated our opinion in this case and remanded for reconsideration in light of Friends II . See Oregon Shores v. Board of County Commissioners , 243 Or. App. 298, 258 P.3d 1269 (2011), vac'd , 351 Or. 541, 273 P.3d 135 (2012). On reconsideration, we reversed and remanded for the circuit court to remand to the county to apply the legal analysis set out in Friends II . Oregon Shores v. Board of County Commissioners , 249 Or. App. 531, 536, 277 P.3d 639 (2012).

      The legal test for whether a vested right exists at a given time is the same under section 5(3) of Measure 49 and common law cases like Holmes . Friends II , 351 Or. at 235, 264 P.3d 1265. What is important for our analysis here, however, is that the sources of the claims are different, and Oregon voters merely adopted the existing common law test as one element of the new statutory claim. See id. (noting that "the voters who approved Measure 49 intended to adopt Oregon common law as the standard for identifying a vested right").

      Neither sections 6 to 11 nor sections 5(1) or 5(2) of Measure 49 refer to vested rights claims at all, so, for a vested rights claim, "[r]elief under sections 5 to 11 of this 2007 Act" can refer only to the relief provided in section 5(3).

      Claimants asserted that they planned and incurred expenses for a 30-lot subdivision; the county understood claimants to argue that they had spent money "to obtain permits in furtherance of a 30-lot subdivision, cleared and graded the Property to support a 30-lot subdivision, drilled wells of sufficient size to support the first phase [ (5 lots) ] of a 30-lot subdivision, and installed internal roads of sufficient size and location to support a 30-lot subdivision." The county agreed.

      As explained above, 297 Or. App. at ----, 441 P.3d at ----, claimants planned to complete five lots and dwellings in the first phase of their project. Some of their expenditures were specifically allocable to that phase.


author: AOYAGI, J.

text:
    In the MATTER OF the COMPENSATION OF Kevin J. SIEGRIST, Claimant.
    SAIF Corporation and CAF Enterprises, Inc., Petitioners, v. Kevin J. Siegrist, Respondent.
    A164226
    Court of Appeals of Oregon.
    Argued and submitted August 7, 2018. April 24, 2019
    David L. Runner, Salem, argued the cause and filed the briefs for petitioners.
    Julene M. Quinn argued the cause and filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Under ORS 656.386(2)(d), if a workers' compensation claimant finally prevails against the denial of a claim as provided in ORS 656.386(1), the court, board, or administrative law judge (ALJ) may order the workers' compensation insurer to pay the claimant's "reasonable expenses and costs for records, expert opinions and witness fees." However, ordered payments "may not exceed $ 1,500 unless the claimant demonstrates extraordinary circumstances justifying the payment of a greater amount." In this case, the board concluded that claimant had demonstrated extraordinary circumstances and ordered payment of expenses and costs in excess of $ 1,500. Insurer and employer (collectively, "insurer") seek review. For the reasons that follow, we reverse and remand.

I. FACTS

We state the facts in accordance with the board's unchallenged findings of fact, which are the facts for purposes of judicial review. Multnomah County Sheriff's Office v. Edwards , 361 Or. 761, 776, 399 P.3d 969 (2017).

Claimant, an auto parts worker, filed an occupational disease claim for bilateral carpal tunnel syndrome (CTS). He received treatment from Dr. Lowe, a general practitioner, and Dr. Taylor, a neurologist, both of whom opined that his condition was work-related. At insurer's request, Dr. Nolan, a plastic/hand surgeon, examined claimant. After Nolan opined that the condition was not work-related, insurer denied the claim.

Claimant requested a hearing. At the hearing, claimant submitted concurrence reports from Lowe and Taylor, each of whom opined that claimant's condition was work-related. Claimant also submitted a report from Dr. Woolley, a hand and upper extremity surgeon who had recently examined claimant, who also opined that claimant's condition was work-related. After the hearing but before the record closed, Taylor became unsure whether the condition was work-related and effectively withdrew his earlier opinion.

The ALJ set aside the denial of the claim. The ALJ found Lowe's and Woolley's opinions more persuasive than Nolan's opinion, in part because Woolley had rebutted a key piece of Nolan's reasoning.

As part of his order on compensability, the ALJ ordered insurer to pay claimant's "reasonable expenses and costs," pursuant to ORS 656.386(2), without specifying an amount. Claimant thereafter submitted a cost bill to insurer for $ 1,550, which reflected his payments to Lowe ($ 150), Taylor ($ 200), and Woolley ($ 1,200). Insurer promptly paid $ 1,500. Claimant requested a hearing on the remaining $ 50.

At the hearing on costs, claimant argued to the ALJ that extraordinary circumstances existed, under ORS 656.386(2)(d), so as to allow an order to pay costs in excess of $ 1,500. In response, insurer did not contest that claimant's costs were reasonable, but it disputed that claimant had demonstrated extraordinary circumstances.

Relying on a common definition of "extraordinary"-that is, "more than ordinary : not of the ordinary order or pattern < ordinary and [extraordinary] expenses> : going beyond what is usual, regular, common or customary," Webster's Third New International Dictionary 807 (unabridged ed. 2002)-the ALJ concluded "that this record does not establish extraordinary circumstances justifying reimbursement of costs beyond the limit." The ALJ explained his conclusion:

"Turning to the merits, I agree with [insurer's] contention that claimant has not demonstrated extraordinary circumstances justifying reimbursement of costs beyond the $ 1,500 limit. The compensability of the occupational disease claim for bilateral CTS presented an issue of average complexity when compared to other issues decided in this forum, and there was only one carrier-arranged examination (by Dr. Nolan). Further, contrary to claimant's contention, the need to obtain an expert opinion from a specialist-in this case, hand and upper extremity surgeon Dr. Woolley-does not make this case extraordinary. Expert opinions from specialists (e.g., orthopedic surgeons, neurosurgeons) are fairly common in this forum . Because these circumstances are ordinary and common when compared to other cases in this forum, I conclude that claimant is not entitled to reimbursement of costs beyond the $ 1,500 limit in ORS 656.386(2)(d). Accordingly, his request for full reimbursement must be denied."

(Emphases added.)

Claimant appealed to the board. The board adopted the ALJ's findings of fact but disagreed with his ultimate conclusion regarding extraordinary circumstances. Applying the same dictionary definition as the ALJ had, the board concluded that the circumstances of this case were not "usual, regular, common or customary in the forum," i.e. , that they were extraordinary. Specifically, the board identified the following circumstances as relevant: (1) claimant lacked private health insurance at the time of his injury, had lost his job shortly after the injury, and needed surgery that, realistically, he would only be able to obtain if he prevailed on his workers' compensation claim; (2) insurer had procured the report of a "highly credentialed hand surgeon [Nolan] to support its denial"; (3) Lowe lacked the specialized knowledge of the other physicians, and Taylor's opinion ultimately did not support compensability, so claimant needed a report from a specialist to bolster his position; and (4) Woolley was a "well-qualified hand and upper extremity surgeon" whose report "tipped the scale" in favor of compensability.

The board concluded:

"Based on our experience in deciding contested cases in this forum, we recognize that costs associated with presenting claimants' cases vary. In this case, the preparation of claimant's case required the acquisition of an additional medical report from a specialist to establish the compensability of his claim, and the cost of securing that report brought claimant's costs beyond the customary $ 1,500 limit of ORS 656.386(2)(d). We do not consider the circumstances that required claimant to procure Dr. Woolley's report, in addition to the reports of Drs. Lowe and Taylor, to have been usual, regular, common, or customary in this forum . Therefore, we find 'extraordinary circumstances' justifying payment of an amount greater than $ 1,500 for witness fees, expenses, and costs."

(Emphasis added.)

Insurer requested reconsideration. In its order on reconsideration, which supplemented and modified the order on review, the board discussed the legislative history of ORS 656.386(2). The board reaffirmed its view that whether "extraordinary circumstances" exist is to be evaluated "by examining whether the circumstances of the case were of the type that were usual, regular, common, or customary in this forum." Citing the legislative history-which includes a senator's statement that extraordinary circumstances "is more than just a dollar amount" and that "it has to be demonstrated that those extra expenses were warranted and necessary" -the board stated that it also "look[s] to whether the additional expense was warranted and necessary."

As for applying the standard, the board clarified that, of the circumstances identified in its order on review, it gave "the most weight" to the fact that "claimant would not have been able to prove his claim" without obtaining Woolley's opinion to rebut Nolan's opinion. Thus, "[c]laimant's expenditure of more than $ 1,500 was necessitated by the circumstances of the case, and was decisive to its outcome." The board viewed that fact "alone" as sufficient to establish extraordinary circumstances. The additional circumstances-regarding claimant's lack of private health insurance, job loss, and need for surgery-just "further reinforce[d]," in the board's view, its conclusion that extraordinary circumstances existed "to support a payment of more than $ 1,500." The board ordered insurer to pay the additional $ 50 of costs.

Insurer seeks judicial review, raising three assignments of error.

II. ANALYSIS

All issues presented on review relate to the statutory cap on cost awards in ORS 656.386(2), so we set forth the full text of that statutory provision:

"(2)(a) If a claimant finally prevails against a denial as provided in subsection (1) of this section, the court, board or Administrative Law Judge may order payment of the claimant's reasonable expenses and costs for records, expert opinions and witness fees.
"(b) The court, board or Administrative Law Judge shall determine the reasonableness of witness fees, expenses and costs for the purpose of paragraph (a) of this subsection.
"(c) Payments for witness fees, expenses and costs ordered under this subsection shall be made by the insurer or self-insured employer and are in addition to compensation payable to the claimant.
"(d) Payments for witness fees, expenses and costs ordered under this subsection may not exceed $ 1,500 unless the claimant demonstrates extraordinary circumstances justifying payment of a greater amount."

See also OAR 438-015-0019(2) (providing that the ALJ or board "may award reasonable expenses and costs * * *, not to exceed $ 1,500, unless the claimant demonstrates extraordinary circumstances justifying payment of a greater amount").

A. First Assignment of Error

Insurer first argues that, because claimant failed to demonstrate extraordinary circumstances in his cost bill , the board should not have even considered ordering an award of costs in excess of $ 1,500.

"The court, board or [ALJ] shall determine the reasonableness of witness fees, expenses and costs for the purpose of [ ORS 656.386(2)(a) ]." ORS 656.386(2)(b). By necessity, the court, board, or ALJ must also determine whether extraordinary circumstances exist, if the court, board, or ALJ is considering ordering payment of costs in excess of $ 1,500. See ORS 656.386(2)(d). By administrative rule, however, the board has adopted a procedure under which the insurer handles the initial processing of cost claims without ALJ or board involvement, based on a cost bill submitted by the claimant to the insurer. See OAR 438-015-0019.

Thus, at least initially, the insurer is put in the position of having to assess both reasonableness and extraordinary circumstances.

Insurer's first assignment of error raises a significant question about how an insurer is supposed to evaluate the existence of "extraordinary circumstances," which it is the claimant's burden to demonstrate, if no such circumstances are identified in the claimant's cost bill. That issue is particularly significant in light of the addition of subsection (6) to OAR 438-015-0019 in 2016. Under OAR 438-015-0019(6), if a claimant prevails on a disputed claim for "any increase of costs," the ALJ or the board "shall" award a reasonable assessed attorney fee to the claimant's attorney.

Ultimately, however, we do not reach the procedural issue, because we agree with claimant that it is not properly before us. In the proceeding before the ALJ, insurer pointed out that claimant had not identified any extraordinary circumstances in his cost bill. Insurer did so, however, in the context of arguing generally that claimant had failed to demonstrate extraordinary circumstances. Insurer never argued that, even if claimant had demonstrated extraordinary circumstances to the ALJ, the ALJ could not order payment of costs in excess of $ 1,500, because claimant was required to make that demonstration in the cost bill itself. When insurer made the latter argument to the board, the board declined to address it because it had not been raised to the ALJ.

"It is generally recognized that the Board has discretion on whether to reach issues not raised before the ALJ." Fred Meyer, Inc. v. Hofstetter , 151 Or. App. 21, 26, 950 P.2d 322 (1997). Here, the board expressly declined to address the alleged procedural deficiency in the cost bill, and insurer has not assigned error to that decision, instead arguing only the merits of the issue. But we will not review the merits of that issue when the board did not decide it. See Stevenson v. Blue Cross of Oregon , 108 Or. App. 247, 252, 814 P.2d 185 (1991). We also reject insurer's request for plain-error review. Even assuming that we could apply that doctrine in this procedural posture, the correct interpretation of OAR 438-015-0019 is not something that is "obvious" and "not reasonably in dispute," as required for plain-error review. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381, 823 P.2d 956 (1991).

B. Second and Third Assignments of Error

In its second assignment of error, insurer contends that the board misconstrued ORS 656.386(2)(d). Specifically, insurer argues that the board conflated "extraordinary" and "reasonable" when it concluded that claimant's need for a specialist's opinion to establish the compensability of his claim was alone sufficient to demonstrate extraordinary circumstances. In its third assignment of error, insurer challenges the board's order as not supported by substantial evidence and reason. Those two assignments are closely related and might better be characterized as a single assignment, so we discuss them together. See Simonsen v. Ford Motor Co. , 196 Or. App. 460, 465 n. 7, 102 P.3d 710 (2004), rev. den. , 338 Or. 681, 115 P.3d 246 (2005) ("As we have endeavored to explain, assignments of error are to be directed against rulings by the tribunal and not against components of the tribunal's reasoning or analysis that underlie that ruling.").

We begin with the statutory construction question. By definition, statutes are law, and, as such, "their interpretation always is a question of law." Karjalainen v. Curtis Johnston & Pennywise, Inc. , 208 Or. App. 674, 681, 146 P.3d 336 (2006). At the same time, an administrative agency may have a "role * * * in the construction and application of statutes enacted by the legislature," depending "on the precise nature of the statutory wording in dispute." Id . at 679, 146 P.3d 336. " 'Exact' terms are those that impart precise meaning and, in effect, require no interpretation at all." Id . at 680, 146 P.3d 336. " 'Inexact' terms are less precise" and open to different interpretations. Id . However, they are still complete expressions of legislative intent, Springfield Education Assn. v. School Dist. , 290 Or. 217, 224-25, 621 P.2d 547 (1980), which intent is to be discerned by applying the ordinary rules of statutory construction. Karjalainen , 208 Or. App. at 681, 146 P.3d 336. Finally, " '[d]elegative' terms are those that express 'non-completed legislation which the agency is given delegated authority to complete.' " Id . at 680, 146 P.3d 336 (quoting Springfield Education Assn. , 290 Or. at 228, 621 P.2d 547 ). "Whether legislation is exact, inexact, or delegative is itself a question of statutory construction * * *." Matter of Comp. of Muliro , 359 Or. 736, 742, 380 P.3d 270 (2016).

In this case, we conclude that "extraordinary circumstances" in ORS 656.386(2)(d) is an inexact term. That is, it is a complete expression of legislative intent but is less precise than an exact term and therefore requires the application of ordinary rules of statutory construction to discern the legislative intent. Cf. J. R. Simplot Co. v. Dept. of Agriculture , 340 Or. 188, 197-98, 131 P.3d 162 (2006) (the phrase "reasonably necessary to cover the cost of inspection and administration" in ORS 632.940 is an inexact term that expresses a complete legislative policy, specifically the funding of an inspection program by setting fees that bear a defined relationship with the likely range of costs for the program, and "we review the department's action to determine whether it effectuated that policy");

Schoch v. Leupold & Stevens , 325 Or. 112, 117-18, 934 P.2d 410 (1997) (the phrase "reasonable attorney fee" in ORS 656.382 is an inexact term, and the board must determine, on a case-by-case basis, what constitutes a "reasonable" fee, taking into account "the facts of the case, the interests of the parties appearing before the agency, and the policy or policies of the law").

With that in mind, we apply the ordinary rule of statutory construction that, when the legislature has not defined a word or phrase, and it is not a technical term, we assume that the legislature intended the word or phrase to have its "plain, natural, and ordinary" meaning. PGE v. Bureau of Labor and Industries , 317 Or. 606, 611, 859 P.2d 1143 (1993). That leads us to agree with the board that "extraordinary circumstances," as used in ORS 656.386 (2)(d), means circumstances that are not usual, regular, common, or customary for workers' compensation matters. See Webster's at 807. To the extent that "extraordinary circumstances" may be considered a legal term of art, the common legal definition is similar. See Black's Law Dictionary 296 (10th ed. 2014) (defining "extraordinary circumstances" as "[a] highly unusual set of facts that are not commonly associated with a particular thing or event").

At the same time, we agree with insurer that, in practice, the board conflated "extraordinary" and "reasonable" when it applied ORS 656.386(2)(d) in this case-at least as the board's reasoning is described in its order on review, as supplemented and modified on reconsideration. The board's ultimate conclusion that it "d[id] not consider the circumstances that required claimant to procure Dr. Woolley's report, in addition to the reports of Drs. Lowe and Taylor, to have been usual, regular, common, or customary in this forum" appears to flow from its prior statements regarding claimant's need for Woolley's report to establish compensability. However, as discussed further later, those prior statements do more to explain why it was reasonable for claimant to incur the cost of obtaining Woolley's report than to explain why the circumstances of this case were extraordinary. The board's order fails to adequately explain why the circumstances were extraordinary, beyond the undisputed fact that it was reasonable for claimant to incur the costs that he did.

The distinction between "reasonable" and "extraordinary" is important. Under ORS 656.386(2)(a), the board may only order an insurer to pay "reasonable expenses and costs for records, expert opinions and witness fees." (Emphasis added.) As such, the legislature assumed that any costs that the board ordered an insurer to pay would be reasonable, and it nonetheless imposed a cap of $ 1,500 in all but "extraordinary circumstances." ORS 656.386(2)(d).

According to the legislative history, the $ 1,500 cap was carefully negotiated. Martin Alvey, testifying on behalf of the Oregon Trial Lawyers Association (OTLA), a proponent of the bill, explained to the Senate Committee on Commerce that the impetus for the bill had been that injured workers were increasingly having to spend substantial amounts of money to obtain expert opinions to establish their claims. Audio Recording, Senate Committee on Commerce, SB 404, Apr. 23, 2007, at 26:30, http://records.sos.state.or.us/ORSOSWebDrawer/RecordHtml/4220008 (accessed Apr. 8, 2019). The bill created a mechanism to obtain reimbursement of those costs. Id. at 27:00. However, the bill proponents had agreed to a $ 1,500 limit on cost awards, absent extraordinary circumstances, as a compromise with employers and insurers. Id . at 27:30.

According to Alvey, the $ 1,500 amount was "a very much hotly debated and compromised limit." Id . at 32:32. During one committee hearing, three senators questioned whether $ 1,500 was sufficient. Id. at 30:45 (comment by Sen. Brad Avakian); id . at 34:00 (comment by Chair Floyd Prozanski); id . at 39:00 (comment by Sen. Rod Monroe). In that context, Alvey stated, "I agree with you that a lot of times you can certainly spend $ 1,500, or maybe more, on just a run-of-the-mill case. But, in order to obtain, frankly, [the Management-Labor Advisory Committee's] approval, we had to agree to a cap." Id . at 33:42. Senator Avakian raised the possibility of increasing the amount, or even eliminating the limit altogether. Id . at 46:10. However, the committee ultimately sent the bill to the full senate with the negotiated limit, see id. at 49:45, and the law was enacted with that limit.

The fact that the limit was part of the same bill that created the right to reimbursement of costs in the first place is significant. In SAIF v. Traner , 273 Or. App. 310, 365 P.3d 1078 (2015), we awarded attorney fees under ORS 656.262(11) (2013), which limited an award to $ 3,000, "absent a showing of extraordinary circumstances." It was undisputed that the claimant had reasonably incurred over $ 16,000 in attorney fees, but we awarded $ 3,000, explaining:

"Although the novelty of the questions is demonstrated by the principal opinion and this opinion on fees, this matter was not extraordinary, all in all. Legal issues were routine, claimant was not deprived of receiving any compensation, and the insurer's disagreement was reasoned and in good faith. The presumptive limit on a fee award was a risk to claimant that was apparent at the outset, and it represents the same legislative policy expressed in the provision creating the right to fees ."

Traner , 273 Or. App. at 322, 365 P.3d 1078 (emphasis added).

The carefully negotiated $ 1,500 cap in ORS 656.386(2)(d) would be meaningless if all that was required to overcome it was for a claimant to show that he reasonably incurred costs in excess of $ 1,500. When the legislature enacted the statute, it could not have meant by "extraordinary circumstances" that claimants typically only need to spend $ 1,500 or less to successfully prevail over a claim denial but that an insurer may be ordered to pay more any time that a claimant reasonably needs to spend more. Paragraph (a) already limits ordered payments to reasonable costs. Construing paragraph (d) to refer only to the frequency with which expenditures over $ 1,500 are necessary would render the cap superfluous and deprive paragraph (d) of all practical effect. See ORS 174.010 (in construing a statute with several particulars, we are to construe the statute, if possible, in a manner that "will give effect to all"); State v. Mayes , 220 Or. App. 385, 389, 186 P.3d 293 (2008) ("We are obliged to construe the statute so as to give effect to all relevant provisions" and therefore assume "that the legislature did not intend any portion of its enactments * * * to be meaningless surplusage.").

As for what types of circumstances might qualify as extraordinary, the legislative history is not especially helpful. The only two specific circumstances that were discussed in committee hearings were an "extraordinarily complex" case, see Audio Recording, House Committee on Business and Labor, SB 404A, May 23, 2007, at 1:35:15 (testimony of attorney Martin Alvey), http://oregon.granicus.com/MediaPlayer.php?clip_id=16241 (accessed Apr. 8, 2019), or a case in which the claimant had to retain a more expensive out-of-region expert because no regional expert was available, see Audio Recording, Senate Committee on Commerce, SB 404, Apr. 23, 2007, at 42:08, http://records.sos.state.or.us/ORSOSWebDrawer/RecordHtml/4220008 (accessed Apr. 8, 2019) (comments by Chair Prozanski and testimony of Alvey). We need not analyze those particular examples, because it is uncontested that neither of those circumstances existed here. The ALJ stated, and the board does not seem to have disagreed, that "the compensability of the occupational disease claim for bilateral CTS presented an issue of average complexity when compared to other issues decided in [the workers' compensation] forum." And it appears that Woolley was practicing in Oregon when he gave his opinion in this case.

So what, if anything, made the circumstances of this case extraordinary? According to the board, it was claimant's need for Woolley's opinion in order to prevail.

Specifically, the board noted that insurer had procured the report of a "highly credentialed" hand surgeon (Nolan), that Lowe was not a specialist, that Taylor's opinion ultimately did not support compensability, and that Woolley was a "well-qualified hand and upper extremity surgeon" whose report "tipped the scale" in favor of compensability.

Yet, the ALJ stated that "[e]xpert opinions from specialists (e.g. , orthopedic surgeons, neurosurgeons) are fairly common in this forum," and the board did not indicate any disagreement with that statement. If that is so, it is not apparent how the fact that both sides obtained expert opinions from specialists, who were each well-qualified, was an extraordinary circumstance. Further, it is not obvious that obtaining an opinion from a general practitioner before obtaining an opinion from a specialist was an uncommon circumstance. As for Taylor, it is unclear how his belated change of opinion, which occurred after claimant obtained Woolley's opinion, contributes to extraordinariness. Finally, when compensability comes down to a dispute between medical experts, and the claimant prevails, it presumably will often be the case that the claimant's expert proved more persuasive and thus "tipped the scale" in favor of compensability, so the extraordinariness of that circumstance is also not obvious. For those reasons, we conclude that the board's order lacks substantial reason.

Lastly, with respect to the board's statement on reconsideration that part of its evaluation of "extraordinary circumstances" was to determine whether the costs over $ 1,500 were "warranted and necessary," insurer and claimant both recognize that the express language of ORS 656.386(2)(d) is controlling and that the board should not have replaced or supplemented that language with one senator's phrasing. Although costs must be reasonable-which would seem to encompass being warranted and necessary (as opposed to unwarranted and unnecessary)-that is of little assistance in determining when "extraordinary circumstances" exist within the meaning of ORS 656.386 (2)(d).

In sum, we conclude that the board's order on review, as supplemented and modified on reconsideration, lacks substantial reason. That is because it fails to explain why the circumstances of this case were extraordinary-relative to other cases in which a claimant successfully proves the compensability of a denied claim (which are the basic circumstances of all cases in which a claimant would be awarded costs under ORS 656.386(2)(d) )-beyond the mere fact that claimant reasonably incurred more than $ 1,500 in costs. The entire purpose of the statutory cap is to limit reimbursable costs to $ 1,500, even if a claimant reasonably incurred costs in excess of that amount, except in extraordinary circumstances. We therefore remand to the board for reconsideration.

Reversed and remanded.

      The board had previously relied on the same definition in Donna K. Barnett , 67 Van Natta 181, 182 (2015), and Ken L. Circle , 67 Van Natta 61, 62 (2015).

      See Audio Recording, Senate Committee on Commerce, SB 404, Apr. 23, 2007, at 45:10 (statement of Chair Floyd Prozanski), http://records.sos.state.or.us/ORSOSWebDrawer/RecordHtml/4220008 (accessed Apr. 8, 2019).

      Throughout this opinion, we use "costs" as shorthand for both costs and expenses, as the parties have done on review, and as the ALJ and the board also did at times.

      Under the rule, if the parties stipulate to the amount of costs, the ALJ or board will include the stipulated amount in the compensability order. OAR 438-015-0019(2). Otherwise, the ALJ or board may award "reasonable expenses and costs," without specifying the dollar amount, but "not to exceed $ 1,500, unless the claimant demonstrates extraordinary circumstances justifying payment of a greater amount." Id. The claimant then may "claim" his expenses and costs "by submitting a cost bill" to the insurer or self-insured employer within 30 days after the order becomes final. OAR 438-015-0019(2) - (3). If the parties disagree whether a claimed cost is "reasonable," either party may request a hearing. OAR 438-015-0019(4). If the insurer or self-insured employer requests a hearing, it may delay payment of costs pending resolution; otherwise, it has 30 days after receiving the cost bill to make payments for costs. OAR 438-015-0019(5).

      Because we agree with claimant's primary argument regarding the first assignment of error, we do not reach his other arguments regarding that assignment.

      In a footnote in its order on reconsideration, the board indicated that, had it reached the merits of insurer's procedural argument, it would "not be inclined" to agree that the cost bill itself must demonstrate extraordinary circumstances. To the extent that insurer is challenging that statement as part of its first assignment of error, that statement is not a ruling-the board's ruling was that it would not decide the procedural issue because it had not been raised to the ALJ.

      We note that we reach that conclusion largely without the benefit of briefing by the parties. Claimant suggests that "extraordinary circumstances" in ORS 656.386(2)(d)"may" be a delegative term but never develops that argument. Insurer simply states, without elaboration, that statutory construction is a matter of law. In the end, we must resolve this issue, even without the parties' help, because each class of statutory terms "conveys a different responsibility for the agency in its initial application of the statute and for the court on review of that application." Springfield Educ Assn. , 290 Or. at 223, 621 P.2d 547.

      The legislative history contains some support for viewing "extraordinary circumstances" as a legal term of art. See Audio Recording, Senate Committee on Commerce, SB 404, Apr. 23, 2007, at 45:00 (comment by Chair Prozanski that the term "extraordinary circumstances" was "not unique" and appeared in other statutes and case law, and statement of agreement by Senator Avakian), http://records.sos.state.or.us/ORSOSWebDrawer/RecordHtml/4220008 (accessed Apr. 8, 2019).

      That is, to the extent it is uncommon for claimants to reasonably incur more than $ 1,500 in costs to successfully challenge a claim denial (or was in 2007), needing to do so may always be considered "extraordinary" in that sense. However, given that ORS 656.386(2)(a) already limits ordered payments to reasonable costs, the legislature must have intended "extraordinary" to refer to circumstances that are extraordinary in some way beyond the mere fact that a claimant reasonably incurred more than $ 1,500 in costs, even if that fact alone makes the situation uncommon.

      Insurer asserts, and claimant disputes, that the ALJ's statements about the "average complexity" of this case and the "fairly common" circumstance of parties obtaining expert opinions from specialists are "findings" that the board adopted. The ALJ made those statements in the "conclusions of law" section of his order, and they appear to be based on the ALJ's own experience as an ALJ, rather than evidence. Whether the board adopted or merely did not disagree with those statements does not affect our disposition.

      On reconsideration, the board minimized its reliance on claimant's lack of private health insurance, job loss, and inability to afford surgery as factors in its decision. Insurer has not directly challenged the board's nominal reliance on those circumstances, and claimant mentions it only in passing. Under the circumstances, we do not address those additional circumstances, except to note that it is at least not obvious how they are appropriate considerations under ORS 656.386(2)(d).

      As previously discussed, in 2007, the legislature was told that the $ 1,500 limit was a "hotly debated" issue and a "compromise" with employers and insurers. 297 Or. App. at ----, 441 P.3d ----. Twelve years later, the cap remains the same as it was in 2007. To the extent that the cap is or has become unreasonably low and impedes access to justice, as claimant argues, those arguments must be directed to the legislature.