250 P.3d 933
Or. Ct. App.2011Background
- McClures obtained Measure 37 waivers allowing residential/commercial development on two adjacent parcels near Newberg; McClures engaged in preliminary subdivision, developing 36 residential lots plus open space, with a development agreement and a county irrevocable letter of credit securing public improvements; by December 6, 2007 expenditures consisted of street/utility costs and substantial soft costs; Measure 49 replaced Measure 37, limiting waivers and introducing vested-right analysis under ORS 195.305(5)(3); the county granted final plat approval and a vested-right certification to complete the residential subdivision, which the circuit court upheld; petitioners contend the county erred by not applying the expenditure ratio in evaluating substantial expenditures and by misapplying Measure 49, requiring remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expenditure ratio must be used to vest under Measure 49 | Damman argues ratio is necessary to show substantial expenditures | McClure argues ratio not required or must be determined later | Remand required to compute expenditure ratio |
| Whether the letter of credit constitutes an expenditure for ratio purposes | Expenditures should include the letter of credit obligation | Letter of credit may not count as expenditure | Remand to decide if LC qualifies as expenditure |
| Whether final plat approval under Measure 37 vested rights despite Measure 49 | Rights vested on final plat under prior regime | Measure 49 extinguishes Measure 37 waivers except potential vested rights under §5(3) | Retroactivity precludes vesting except as remanded for ratio assessment |
| What is the proper total project cost and numerator for the expenditure ratio | Record insufficient to establish denominator; ratio may be 11% or 4% | Expenditure ratio cannot be determined without total costs | Remand to determine numerator and denominator with focused findings |
Key Cases Cited
- Clackamas Co. v. Holmes, 265 Or. 193 (1973) (established Holmes factors for vested rights)
- Friends of Yamhill County v. Bd. of Commissioners, 237 Or.App. 149, 238 P.3d 1016 (2010) (vested rights factors; ratio of expenditures required; equity-based inquiry)
- Kleikamp v. Bd. of County Commissioners, 240 Or.App. 57, 246 P.3d 56 (2010) (reiterated expenditure ratio importance; substantial expenditures sufficient for vesting in most cases)
- Biggerstaff v. Bd. of County Commissioners, 240 Or.App. 46, 245 P.3d 688 (2010) (discussed necessity of expenditure ratio and equities in vested rights analysis)
- Corey v. DLCD, 344 Or. 457, 184 P.3d 1109 (2008) (Measure 49 retroactivity and extinguishment of Measure 37 waivers; vested rights exception)