Biggerstaff v. Board of County Commissioners
240 Or. App. 46
Or. Ct. App.2010Background
- Measure 37 waivers allowed a 41-lot subdivision on the Johnson property and were followed by Measure 49, which became effective December 6, 2007.
- The Johnsons expended over $1 million to develop the property, including constructing several very small structures treated as dwellings.
- The Johnsons recorded the final subdivision plat before Measure 49’s effective date; their total budget was $2,082,406.50 with $665,280 allocated to the dwellings.
- Petitioners argued the expenditures were not properly tied to the final project cost and that the dwellings should not count toward the expenditure ratio.
- The vesting officer concluded the expenditures were in good faith and that the Johnsons had a vested right, later affirmed by the trial court, but the trial court avoided identifying a denominator for the expenditure ratio.
- On appeal, the court reversed and remanded to require a proper determination of total project cost and proper weight to the expenditure ratio, noting the dwellings should be excluded from the ratio as not part of the completed residential use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Good faith of expenditures | Biggerstaffs: expenditures were not made in good faith. | Johnsons: expenditures were in good faith, given their defense under Measure 49. | Good faith rejected; expenditures deemed not strategically deficient for purposes of vesting implementation. |
| Need for denominator in expenditure ratio | Biggerstaffs: denominator essential to ratio; total cost must be identified. | Johnsons: no fixed denominator required; substantial expenditures suffice. | Denominator required; total project cost must be identified and weighed. |
| Remand for total project cost and ratio weighting | Remand to determine extent and general cost of the project and proper weight to ratio. | Remand not necessary; vested rights already established. | Remand required to determine total project cost and proper ratio weighting. |
Key Cases Cited
- Friends of Yamhill County v. Board of Commissioners, 237 Or.App. 149 (2010) (necessity of considering the expenditure ratio and total project cost in vesting)
- Kleikamp v. Board of County Commissioners, 240 Or.App. 57 (2010) (total project cost and expenditure ratio must be weighed; December 6, 2007 reference)
- Bruner v. Josephine County, 240 Or.App. 276 (2010) (rejection of certain retroactivity/constitutional challenges to Measure 49)
- Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634 (2001) (prudential limits on when to affirm on alternative grounds)