446 P.3d 548
Or. Ct. App.2019Background
- Ralph and Norma Johnson obtained Measure 37 waivers and preliminary county approval in 2006 to subdivide their farm-zoned property into 41 residential lots and recorded a final plat before Measure 49 took effect; they spent ~ $1M and built tiny structures on some lots and sold four lots in 2007.
- Measure 49 (effective Dec. 6, 2007) extinguished Measure 37 waivers but §5(3) allowed a claimant who had filed under Measure 37 to seek compensation if the claimant’s use complied with the waiver and the claimant had a common-law vested right on Dec. 6, 2007 to complete the use described in the waiver.
- The county twice determined the Johnsons had a vested right under §5(3) to complete the 41-lot subdivision (including building houses); circuit court affirmed; appellants (neighbors, FOYC, State) sought review.
- Disputes centered on (1) whether ORS 215.130 (continuity/nonconforming-use statute) extinguished any vested right, (2) whether subdivision-and-sell-lots (with buyers to build dwellings) was a use authorized by the Measure 37 waivers and thus eligible for §5(3) protection, and (3) whether the denominator of the expenditure-ratio (cost to complete project) may include buyers’ estimated home-construction costs.
- The court analyzed Holmes vested-rights factors and Friends II guidance on the expenditure ratio, but concluded that §5(3) relief is limited to the relief allowed by the Measure 37 waiver and that Measure 37 waivers did not allow sale of buildable lots to third parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 215.130 (continuity/nonconforming-use rule) extinguishes a §5(3) vested right | Biggerstaff/FOYC: statute/ordinance extinguish claim because nonconforming uses must be continuous | Johnsons/County: §5(3) asks whether vested right existed on Dec. 6, 2007; discontinuance after that date is irrelevant | Court: ORS 215.130 inapplicable — §5(3) requires vesting existence only on Dec. 6, 2007, so discontinuance later is immaterial |
| Whether a Measure 37 waiver can protect a landowner who subdivided and intended to sell lots (with buyers building homes) so buyers get the right to build | Johnsons/County: waiver permitted subdivision and house-building; even if Johnsons planned to sell lots, buyers’ construction costs may be included and the vested right runs with the land | Appellants: Measure 37 relief applies only to the present owner; waivers did not allow sale of buildable lots that confer a right to buyers | Court: §5(3) relief is limited to uses allowed by the Measure 37 waiver; Measure 37 waivers granted relief only to the present owner and did not allow sale of buildable lots — no §5(3) relief for this plan |
| Whether the expenditure-ratio denominator may include the cost buyers would incur to build houses (when owner did not intend to build them) | Johnsons: evidence of likely buyer home-construction costs is proper to calculate total project cost | Appellants: builder testimony shows buyers’ costs, not costs claimant would incur; if claimant never intended to build homes, those costs shouldn’t be included | Court: Even if Friends II might allow such a calculation, claimant still loses because Measure 37 did not authorize the sale-of-buildable-lots use — question of denominator moot for relief here |
| Whether a claimant’s preparatory acts (subdivision and site work, without owner building houses) create a vested right that runs with the land | Johnsons: their expenditures and subdivision created a vested right that transfers to buyers | Appellants: vested-rights doctrine does not convert an owner-only Measure 37 waiver into a transferable property right | Court: In the Measure 37 context, vested-rights doctrine does not create transferable rights where owner never intended to complete the permitted use — equity does not support a vested right that runs to buyers |
Key Cases Cited
- Friends of Yamhill County v. Board of County Commissioners, 351 Or. 219 (Or. 2011) (supreme court guidance on vested-rights factors and expenditure-ratio methodology under Measure 49)
- Friends of Yamhill County v. Board of County Commissioners, 237 Or. App. 149 (Or. Ct. App. 2010) (interpretation of "use of the property" and preliminary Measure 49 issues)
- Biggerstaff v. Board of County Commissioners, 240 Or. App. 46 (Or. Ct. App. 2010) (prior appellate opinion addressing county's initial vesting determination)
- Clackamas County v. Holmes, 265 Or. 193 (Or. 1973) (establishes multi-factor vested-rights analysis)
- Oregon Shores v. Board of County Commissioners, 297 Or. App. 269 (Or. Ct. App. 2019) (holds §5(3) requires vesting on Dec. 6, 2007 and rejects post-vesting discontinuance argument)
- Campbell v. Clackamas County, 247 Or. App. 467 (Or. Ct. App. 2011) (supports that platted but undeveloped land is not normally a "use")
- Columbia Hills v. LCDC, 50 Or. App. 483 (Or. Ct. App. 1981) (platted but undeveloped land is not a use for nonconforming-use purposes)