441 P.3d 647
Or. Ct. App.2019Background
- Gary and Beverly Aspmo obtained Measure 37 waivers and spent about $244,772 toward a planned 30‑lot subdivision before December 6, 2007 (Measure 49 effective date); preliminary approval for 30 lots was granted in Aug 2007.
- Measure 49 extinguished Measure 37 waivers but created relief pathways; Aspmos sought relief under Measure 49 §5(3) (the vested‑rights pathway) claiming a common‑law vested right on Dec 6, 2007.
- Clatsop County found Aspmos had no vested right to complete the 30‑lot plan (expenditure ratio ≈ 3%), but concluded they had a vested right to complete a 15‑lot subdivision (expenditure ratio ≈ 5.61%) and granted relief accordingly.
- Oregon Shores Conservation Coalition and the State challenged the county decision by writ of review; the circuit court upheld the county; appellants appealed to the Oregon Court of Appeals.
- Appellants argued (1) ORS 215.130 and the county ordinance extinguished any §5(3) claim because Aspmos paused prosecution of their claim for over a year (Sept 2012–July 2014), and (2) the county erred in recognizing a vested right to a 15‑lot plan that Aspmos did not intend before Dec 6, 2007.
- The Court of Appeals held ORS 215.130 does not bar a §5(3) Measure 49 claim premised on a vested right existing on Dec 6, 2007, but reversed the county’s grant of a vested right to an unintended 15‑lot subdivision and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 215.130 (and county ordinance) can extinguish a §5(3) Measure 49 claim when alleged discontinuation occurred after Dec 6, 2007 | ORS 215.130/ordinance extinguished any vested right because Aspmos interrupted pursuit >1 year after remand | §5(3) creates a statutory entitlement tied to whether a vested right existed on Dec 6, 2007; post‑Dec 6 events irrelevant | ORS 215.130 does not bar a §5(3) claim based on whether the vested right existed on Dec 6, 2007; post‑Dec 6 discontinuation is immaterial to §5(3) entitlement |
| Whether Aspmos had a common‑law vested right on Dec 6, 2007 to complete the 30‑lot subdivision | Aspmos argued their expenditures and permits supported a vested right to the 30‑lot plan | County concluded expenditure ratio (~3%) insufficient for a vested right to complete 30 lots | Court affirmed that the county correctly found no vested right to complete the 30‑lot subdivision |
| Whether the county could recognize a vested right to a 15‑lot subdivision that Aspmos did not plan before Dec 6, 2007 | Appellants: cannot vest in a project the claimant did not plan before Dec 6, 2007 | County: Aspmos could have a vested right to complete part of the planned development (15 lots) | Court held county erred: vested right limited to the development the claimant planned on or before Dec 6, 2007; can't vest in an unplanned 15‑lot project |
| Proper scope of §5(3) relief and relationship to common‑law vested‑rights doctrine | Appellants: §5(3) should be treated like common‑law vested rights and subject to extinguishment doctrines | County/claimant: §5(3) creates a statutory entitlement (relief under Measure 49) contingent only on having had a vested right on Dec 6, 2007 | Court held §5(3) creates a statutory right to relief if the two conditions are met (use complies with waiver and vested right existed on Dec 6, 2007) and is not made subject to ORS 215.130 |
Key Cases Cited
- Friends of Yamhill County v. Board of Comm’rs, 351 Or. 219 (Or. 2011) (supreme court framed Measure 49 vested‑rights pathway and expenditure‑ratio analysis)
- Fountain Village Development Co. v. Multnomah County, 176 Or. App. 213 (Or. Ct. App. 2001) (common‑law vested rights characterized as inchoate nonconforming uses)
- Clackamas County v. Holmes, 265 Or. 193 (Or. 1973) (equitable vested‑rights doctrine explanation)
- Friends of Polk County v. Oliver, 245 Or. App. 680 (Or. Ct. App. 2011) (vested right to a phased portion of a planned development where the claimant intended that phase and expenditures were allocable)
- Milcrest Corp. v. Clackamas County, 59 Or. App. 177 (Or. Ct. App. 1982) (vested right to originally planned portion of development where expenditures were largely exclusive to that portion)