278 P.3d 123
Or. Ct. App.2012Background
- Petitioner Hoekstre appealed a DLCD final order authorizing three existing parcels and the establishment of two additional dwellings under Measure 49 §6(2), but denying an additional fourth parcel under §6(3).
- Hoekstre owns about 12.75 acres in Polk County with three parcels and one dwelling and previously obtained Measure 37 waivers allowing three parcels and a dwelling per waiver.
- DLCD preliminarily concluded Hoekstre qualified for up to three home sites and two additional dwellings; final order mirrored this, denying any extra parcel under §6(3).
- Measure 49 governs the express pathway (three home-site approvals) and, via §6(2) and §6(3), the total number of lots/parcels/dwellings and any additional allowances; the enactment history emphasizes limits on high-value lands and conditional qualifications.
- Petitioner sought judicial review under ORS 183.484; the trial court dismissed the petition, and the Court of Appeals vacated and remanded for entry of a judgment affirming DLCD's order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §6(3) permits an additional lot irrespective of §6(2) relief. | Hoekstre argues §6(3)'s 'notwithstanding' clause grants one more lot regardless of §6(2) outcomes. | DLCD contends §6(3) does not create cumulative relief beyond the three home-site cap and requires otherwise qualifying under §6(2). | No; §6(3) does not provide four total sites when §6(2) rules apply. |
| Whether DLCD's construction of §6(3) aligns with Measure 49 text and enactment history. | Textual 'notwithstanding' supports cumulative relief. | Construction must track text, context, and voter intent to avoid enabling development on protected lands. | DLCD's interpretation consistent with §6(1) cap, land protections, and enactment history. |
| Whether the reviewing court erred by dismissing, rather than affirming, DLCD's order. | Trial court improperly dismissed the petition. | Order should be affirmed if law correctly interpreted. | Appellate court correctly vacated and remanded to affirm DLCD's order. |
Key Cases Cited
- Friends of Yamhill County v. Board of Commissioners, 351 Or. 219 (Or. 2011) (describes Measure 49 pathways and purposes; interpretation context)
- Corey v. DLCD, 344 Or. 457 (Or. 2008) (Measure 49 extinguishes Measure 37 waivers; pathways framework)
- Oregon State Denturist Assn. v. Bd. of Dentistry, 172 Or. App. 693 (Or. App. 2001) (textual/contextual approach to legislative intent)
- Shilo Inn v. Multnomah County, 333 Or. 101 (Or. 2001) (consideration of voters' pamphlet and context in statutory interpretation)
- G.A.S.P. v. Environmental Quality Comm., 198 Or. App. 182 (Or. App. 2005) (pragmatic review of agency interpretations under ORS 183.484(5))