STATE EX REL. DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT v. Crook County , 244 Or. App. 572 ( 2011 )

261 P.3d 1264 (2011) 244 Or. App. 572

STATE of Oregon, by and through the DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Plaintiff-Appellant,
v.
CROOK COUNTY, a political subdivision of the State of Oregon, Defendant-Respondent, and
Shelley Hudspeth, Intervenor-Respondent.

08CV0045; A142004.

Court of Appeals of Oregon.

On Appellant's Petition for Reconsideration June 14, 2011. Intervenor-Respondent's Response to Appellant's Petition for Reconsideration June 28, 2011. Decided July 27, 2011.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Stephanie L. Striffler, Senior Assistant Attorney General, for petition.

Edward P. Fitch, Lisa DT Klemp, and Bryant, Emerson & Fitch, LLP, for response.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

PER CURIAM.

Appellant, State of Oregon by and through the Department of Land Conservation and Development (DLCD), seeks reconsideration of our decision in DLCD v. Crook County, 242 Or.App. 580, 256 P.3d 178 (2011). We allow DLCD's petition for reconsideration and adhere to our opinion as modified.

Specifically, DLCD seeks reconsideration of the final two sentences of the second paragraph of footnote 5 of our opinion that state:

"On appeal, the parties make different assertions as to whether the numerator in the expenditure ratio is approximately $500,000, as determined by the county, or approximately $900,000, as noted by the circuit court. We need not resolve that issue because it was not assigned as error on appeal. See ORAP 5.45(1) (providing, in part, that `[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule')."

242 Or.App. at 584 n. 5, 256 P.3d 178.

On reconsideration we modify the second paragraph of footnote 5 to state as follows:

"On appeal, the parties make different assertions as to whether the numerator in the expenditure ratio is approximately $500,000, as determined by the county, or approximately $900,000, as noted by the circuit court. Given our analysis and disposition, we need not address and resolve any dispute in that regard."

Reconsideration allowed; former opinion modified and adhered to as modified.