Burke v. State Ex Rel. Department of Land Conservation & Development
251 P.3d 796
Or. Ct. App.2011Background
- Burke and Educative, LLC filed a Measure 37/49 claim for 18 acres in Clackamas County outside an urban growth boundary.
- Burke owns fee title; Educative is the purchaser under a land sale contract that remained in force after the purchase.
- Measure 49 altered remedies and procedures for certain Measure 37 claims, including those filed before/after June 28, 2007; this case involves claims filed after that date outside an urban growth boundary.
- The issue is whether the seller under a recorded land sale contract is also a qualifying owner for Measure 49 purposes under ORS 195.300(18).
- The trial court held Educative, not Burke, is the owner for purposes of Measure 49, so the plaintiffs were not entitled to a remedy; the Court of Appeals affirms.
- The court concludes the purchaser under a continuing land sale contract is the owner, not the seller, for Measure 49 purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who qualifies as owner under ORS 195.300(18) for a live land sale contract | Burke and Educative both qualify as owners under disjunctive categories | When a land sale contract is in force, the purchaser under the contract is the owner | Purchaser under a live land sale contract is the owner; seller is not. |
| Does ORS 195.328(3) support the seller’s ownership date | Acquisition date should reflect Burke’s earlier ownership under ORS 195.328(1) | Acquisition date with multiple owners favors the purchaser when contract in force | Acquisition date governs multiple-owner scenarios; purchaser's date controls here. |
| Does Measure 49 require only one qualifying owner for section 6(a) | Or in subsection (18) allows multiple owners to qualify | Paragraphs (18)(a)-(c) are disjunctive and determine single owner when applicable | When a land sale contract exists, only the purchaser is the owner for purposes of section 6(a). |
Key Cases Cited
- Lommasson v. School Dist. No. 1, 201 Or. 71, 261 P.2d 860 (1953) (Or. 1953) (court rejects reading 'or' as 'and' absent ambiguity)
- McCabe v. State of Oregon, 314 Or. 605, 841 P.2d 635 (1992) (Or. 1992) (context matters; 'or' generally disjunctive, not conjunctive)
- Bedortha v. Sunridge Land Co., Inc., 312 Or. 307, 822 P.2d 694 (1991) (Or. 1991) (legal title vs. equity in land sale context)