260 P.3d 647
Or. Ct. App.2011Background
- Fischers obtained state and county waivers in spring 2007 to develop a seven-lot subdivision.
- They expended over $66,000 to develop the property before December 6, 2007 (Measure 49 effective date).
- Fischers sought a vested right to continue and complete the use described in the Measure 37 waivers; Board found a vested right to platting but not to dwellings.
- Circuit court affirmed the Board’s determination; Fischers appealed via writ of review.
- Board’s approach to “total project cost” and the expenditure ratio relied on unclear use and speculative housing costs; court held remand was required.
- The court concluded Friends of Yamhill County governs proper weighting of the expenditure ratio and total project cost, requiring remand to recalculate for the actual intended use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the expenditure ratio was correctly applied given the use description. | Fischers—ratio should reflect dwelling costs, not speculative total costs. | County—ratio based on total project cost including dwellings as contemplated. | Remand to determine total project cost and weight expenditure ratio. |
| Whether total project cost was properly determined for the proposed use. | Fischers contend costs must reflect December 6, 2007 costs for the vested use. | County used broader regional costs to estimate total project cost. | Remand to fix total project cost consistent with the actual use. |
| Whether using regional housing costs invalidly skewed the ratio. | Reliance on regional costs is inappropriate for the specific project. | Regional costs provide a valid comparative basis for total cost. | Remand to apply cost data tied to the specific project as of 2007. |
| Whether the court properly treated the use as subdividing with residences. | Use includes subdivision and dwelling construction. | Use limited to platting; no vested right to dwellings. | Remand required to assess use consistent with Measure 49 and case law. |
Key Cases Cited
- Friends of Yamhill County v. Board of Commissioners, 237 Or.App. 149 (2010) (defines use and total project cost; requires weighing expenditure ratio against total cost)
- Kleikamp v. Board of County Commissioners, 240 Or.App. 57 (2010) (emphasizes ratio of expenditures to total project cost and date-based costing)
- Corey v. DLCD, 344 Or. 457 (2008) (vested-right doctrine context and Measure 49 interaction)
- Damman v. Board of Commissioners of Yamhill County, 241 Or.App. 321 (2011) (Measure 49 effects on vested rights and previous waivers)
- Pete's Mountain Homeowners Assn. v. Clackamas Cty., 227 Or.App. 140 (2009) (vested rights and regulatory takings considerations in land use)