No. 415 August 16, 2023 465

IN THE COURT OF APPEALS OF THE

 STATE OF OREGON

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

Katharine von Ter Stegge, Judge.

Argued and submitted October 25, 2022.

Geoffrey B. Silverman argued the cause for appellants. 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.
466 Albrecht v. Emmert
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 zoning 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 information 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 property 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 structure as a “legal nonconforming use” under PCC 33.258.035.2

1 For ease of reference, we refer to defendants as “Emmert” unless the context requires otherwise.

2 PCC 33.258.035 provides:

“The nonconforming situation regulations apply only to those nonconforming 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, redeveloped 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, parking, 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 mandamus 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 violating 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, OffSite 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 documenting in advance that the change in use would meet offsite impact standards or receiving approval of the change 

through a non-conforming 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 offsite impact standards could not be met, then seek approval 

through a Type II non-conforming situation review. Emmert 

sought administrative review of the citation which was confirmed as properly cited in December 2016. Emmert appealed 

that decision, and in March 2017, the hearings officer sustained 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 satisfactory. 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 properties. They sought a declaration that, among other things, 

the non-conforming 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 conformity with the applicable residential zoning requirements.

The trial court consolidated the two cases for purposes 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 original 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 designation “was lost in 2018 due to a five-year discontinuation in 

that use,” that PCC 33.258 concerning nonconforming situations no longer applies to the property and “cannot be reinstated or revived,” and that the property reverted to its base 

zoning “and is restricted to uses permitted under” applicable 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 repeatedly 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 nevertheless understand that at the base of Emmert’s jurisdictional 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 independent 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 jurisdiction 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 property 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 property in a divorce proceeding). And while 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).

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 provides 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 constitution, statute, municipal charter, ordinance, contract or 

franchise may have determined any question of construction or validity arising under any such instrument, constitution, 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 property that affected plaintiffs’ ability to enjoy the use of their 

own properties. Emmert argues that plaintiffs were not entitled 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 regarding 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 ORS 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 omitted). 
474 Albrecht v. Emmert

The individual plaintiffs alleged and offered evidence 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 neighboring 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’ ability 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 consolidated 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.