Davis v. Jefferson County
239 Or. App. 564
Or. Ct. App.2010Background
- Claimant sought Measure 49 vested rights for a 67.78-acre Jefferson County parcel after exclusive farm use zoning precluded subdivision/development.
- Claimant had 31-lot subdivision plat approved under Measure 37 waivers, with infrastructure built or bonded and final plat recorded before/around December 2007.
- Claimant spent substantial funds ($300,655.70) on subdivision-related engineering, planning, bonding, and construction costs by December 6, 2007.
- County determined claimant’s rights to a 31-lot subdivision vested, applying Holmes factors and excluding homes from project costs where appropriate.
- Petitioner sought judicial review; the circuit court affirmed the vesting, and petitioner appealed, challenging the county’s legal interpretation of Measure 49 §5(3) and related factors.
- The appellate court remanded to address evidentiary support for a challenged finding and reassessed the weighting of the Holmes factors in light of §5(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What constitutes a valid ‘use of the property’ under §5(3) of Measure 49? | Shown contends the county misdefined use by treating residential development as use without permits. | County correctly defined use as residential development consistent with waivers and vested under common law. | Yes; use includes residential development consistent with waivers, not merely contemplated infrastructure. |
| Can post-referral expenditures be counted toward vesting under §5(3)? | Petitioner argues post-referral expenditures should be excluded. | Friends holds post-referral expenditures may be considered if they further vesting use. | Post-referral expenditures can be considered; timing aligns with vesting on the effective date of 2007 Act. |
| Did the county properly apply the Holmes factors, including expenditure ratio, when determining vesting? | County erred by not defining total project costs including homes to assess expenditure ratio. | Holmes factors are properly applied; ratio and other factors determine vesting. | Court remands to require definition of total project costs and proper weighting of the expenditure ratio. |
| Was the county’s finding that expenditures were in good faith and adaptable to lawful uses supported by substantial evidence? | Good faith and adaptability findings were not adequately supported. | Findings supported by the record and consistent with Friends, but require remand for evidentiary sufficiency. | Remand required to review evidentiary basis for the good faith/adaptability determinations. |
Key Cases Cited
- Friends of Yamhill County v. Board of Commissioners, 237 Or.App. 149 (2010) (interprets §5(3) requirements and use, and post-referral expenditures under Measure 49)
- Clackamas County v. Holmes, 265 Or. 193 (1973) (Holmes factors for common-law vested rights)
- Union Oil Co. v. Board of Co. Comm. of Clack. Co., 81 Or.App. 1 (1986) (expenditure ratio and other factors—weighting impacts vested rights)
- Salosha, Inc. v. Lane County, 201 Or.App. 138 (2005) (standards for reviewing LUBA-like decisions on substantial evidence)
- Cook v. Clackamas County, 50 Or.App. 75 (1981) (review of vested rights factors and their application)
- Younger v. City of Portland, 305 Or. 346 (1988) (substantial evidence standard in review of administrative decisions)