270 P.3d 299
Or. Ct. App.2011Background
- Plaintiffs owned a 62-acre rural tract in Clackamas County with historical 1-acre residential zoning.
- Measure 37 waivers (state and county) allowed subdivision and residential development despite restrictive zoning.
- A development services agreement with Root Holdings planned a 41-lot subdivision; preliminary approval obtained, then remanded after LUBA challenge.
- Before Measure 49, plaintiffs and the developer incurred substantial site preparation and infrastructure costs for the subdivision.
- Measure 49 (as of Dec. 6, 2007) altered remedies; plaintiffs sought declaratory relief that they had vested rights under §5(3), arguing expenditures and good faith under Holmes factors.
- Trial court denied declaratory relief, finding either lack of expenditures by plaintiffs or insufficient expenditures relative to total project cost; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs have common-law vested rights under Measure 49 §5(3). | Campbell contends expenditures and good faith establish vesting. | Clackamas County argues expenditures were insubstantial and not in good faith against Holmes factors. | No vested rights; expenditures insubstantial under Holmes factors. |
| Whether the developer's expenditures count toward the expenditure ratio for vesting. | Expenditures by the developer should count toward total project cost and ratio. | Expenditures were not incurred by plaintiffs and/or not attributable to vesting use. | Developer expenditures count only to extent they relate to the vested use; overall ratio still insubstantial. |
| Whether the expenditure ratio by December 6, 2007 was substantial enough when weighed with other Holmes factors. | Ratio around 4.7% is substantial given project scope and good faith. | Ratio is too low; other factors undermine vesting (good faith, project size, location). | 4.7% ratio insufficient to vest rights when combined with Holmes factors. |
Key Cases Cited
- Friends of Yamhill County v. Board of County Commissioners, 351 Or. 219 (Or. 2011) (establishes Holmes factors and expenditure ratio framework; ratio starts analysis but not dispositive)
- Kleikamp v. Board of County Commissioners, 240 Or.App. 57 (Or. App. 2010) (expounds expenditure ratio and the effect of ultimate project cost on vesting)
- Clackamas County v. Holmes, 265 Or. 193 (Or. 1973) (establishes Holmes factors for common-law vested rights)
- Fischer v. Benton County, 244 Or.App. 166 (Or. App. 2011) (role of use and total project cost in Measure 49 vesting analysis)
- Damman v. Board of Commissioners of Yamhill County, 241 Or.App. 321 (Or. App. 2011) (measures total project cost and December 6, 2007 baseline for vesting)
- Curry v. Clackamas County, 240 Or.App. 531 (Or. App. 2011) (dismissal/remand context for declaratory judgment on vested rights)