285 P.3d 722
Or. Ct. App.2012Background
- Petitioners appealed a DLCD denial of Measure 49 section 6 homesite approvals for two rural Washington County lots that had Measure 37 waivers.
- Measure 49 replaced Measure 37 waivers with limited homesite approvals; DLCD denied for both lots, finding no compliance with 6(6)(f)’s “lawfully was permitted” standard.
- Petitioners acquired Lot 101 (120 acres, EFC zoning) in 1986 and built a dwelling; Lot 200 (10 acres, AF-10) was acquired in 1990 and also housed a dwelling.
- DLCD concluded that only potential, not actual, post-acquisition permissions existed under acquisition zoning; petitioners sought judicial review under ORS 195.318(1) and (3).
- The circuit court affirmed; petitioners challenge interpretation of “lawfully was permitted,” evidentiary rulings, and related issues; the Oregon Court of Appeals affirmed, resolving the construction of §6(6)(f) and related matters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of 'lawfully was permitted' in §6(6)(f). | petitioners: lawfully permitted means potentially allowed under past zoning. | DLCD: must show actual permission under acquisition zoning at time of acquisition. | Meaning requires actual, lawful permission under acquisition zoning at acquisition time. |
| Whether petitioners proved they were lawfully permitted to establish additional lots/dwellings. | Lot 101 could be partitioned and Lot 200 could undergo zone change under the pre-Measure 49 laws. | Acquisition zoning prohibited additional lots/dwellings; no proof of actual permits. | No evidence showed actual permission to establish additional lots/dwellings under the acquisition zoning. |
| Whether evidence outside the administrative record was properly excluded. | Additional DLCD orders and related materials should be considered; due process issues raised. | Evidence outside the record was not properly raised before the agency; admissibility limited. | Exclusion of outside evidence upheld; not cognizable on appeal under ORS 195.318(3). |
| Adequacy of the judicial-review record under ORS 195.318. | Petitioners claim due process requires a fuller record. | Record limitations and preservation rules limit review to the agency record. | Record limitation upheld; no reversible error. |
Key Cases Cited
- State v. Gaines, 346 Or 160 (2009) (interpreting statutory text using text, context and history)
- PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (textual interpretation and administrative record relevance)
- Lane County v. LCDC, 325 Or 569 (1997) (harmonious reading of statute portions; contextual interpretation)
- Norden v. Water Resources Dept., 329 Or 641 (2000) (record supplementation in judicial review under ORS 183.484)
- Corey v. DLCD, 344 Or 457 (2008) (explanation of Measure 37/49 relationship and purposes)
- Hoekstre v. DLCD, 249 Or App 626 (2012) (standard of review for Measure 49 decisions)