260 P.3d 575
Or. Ct. App.2011Background
- Carlsons owned 75.65 acres in rural Clatsop County and obtained Measure 37 waivers in 2006 allowing 43 parcels and dwelling on each; they applied for preliminary plat to create a 31-lot subdivision and spent about $244,000, with roughly $163,000 incurred before December 6, 2007 (Measure 49’s effective date).
- Carlsons sought a vested-right determination to continue and complete development under Measure 37 waivers, which the county director and board granted after considering expenditure ratio and other factors.
- Petitioners OSCC and Rowlands challenged the vested-right determination, arguing the Carlsons failed to meet the ratio or to comply with Measure 37 waivers, and that the decision misapplied Measure 49 standards.
- DLCD participated and commented; the circuit court affirmed the board’s vested-right finding, and petitioners appealed.
- The court held that the proper total project cost and denominator for the expenditure ratio were not correctly calculated, and that post–2007 costs and certain interpretive choices were improper, requiring reversal and remand for proper application of the legal standard.
- The decision also addressed whether DLCD had standing and other procedural questions, but ultimately reversed and remanded on the vested-right calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vested-right determination validity under Measure 49 | Carlsons had substantial pre‑2007 expenditures and a common-law vested right | Board’s decision properly applied factors and established vesting | Remand required; misapplication of expenditure ratio necessitates reevaluation |
| Expenditure ratio denominator inclusion of housing costs | Housing costs must be included in the denominator | Board relied on prior precedent excluding building costs in some scenarios | Remand required; denominator miscalculated |
| Compliance with Measure 37 waivers as a prerequisite | Use must comply with Measure 37 waivers per §5(3) | Issue was adjudicated earlier and not properly before current review | Remand; unresolved given third assignment and need for correct framework |
| Use of 2008 costs vs. 2007 costs in ratio | Carlsons’ expenditures based on August 2008 appraisals; inappropriate | Board accepted expert costs as indicia of substantial expenditures | Remand; use of post‑07 costs improper under controlling standards |
Key Cases Cited
- Friends of Yamhill County v. Board of Commissioners, 237 Or.App. 149 (2010) (establishes expenditure ratio and total project cost principles for vesting under Measure 49)
- Biggerstaff v. Board of County Commissioners, 240 Or.App. 46 (2010) (summarizes Friends and Kleikamp; substantial expenditures essential to vesting)
- Kleikamp v. Board of County Commissioners, 240 Or.App. 57 (2010) (reiterates total project cost and expenditure ratio requirements for vesting)
- Crook County v. DLCD, 242 Or.App. 580 (2011) (standing and 과정-related considerations in writs review under DLCD interplay)
- Davis v. Jefferson County, 239 Or.App. 564 (2010) (trusts in vesting context; expenditure ratio considerations)
- Webber v. Clackamas County, 42 Or.App. 151 (1979) (precedent on inclusion of building costs in ratio (legacy standard))