445 P.3d 893
Or. Ct. App.2019Background
- Claimant Gordon Cook sought to complete a 10-lot subdivision based on a vested right claimed under section 5(3) of Ballot Measure 49 (2007).
- Yamhill County determined Cook had a vested right; Friends of Yamhill County and the State of Oregon appealed via writ of review.
- The county and circuit court decisions were made on remand after the Oregon Supreme Court's opinion in Friends II.
- A county ordinance and ORS 215.130 (requiring continuity of nonconforming uses) were asserted to extinguish Measure 49 claims if discontinuance occurred after Dec. 6, 2007.
- Cook conceded that, before Dec. 6, 2007, his plan was to subdivide and sell buildable lots (not to build houses himself).
- The central legal question became whether Measure 49 §5(3) relief is broader than the Measure 37 waivers to which a claimant was previously entitled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 215.130 and county ordinance extinguish a Measure 49 §5(3) vested right when any discontinuance occurred after Dec. 6, 2007 | Statute/ordinance can extinguish the claimed vested right | Statute/ordinance do not apply because the only relevant date is Dec. 6, 2007 | Rejected statute/ordinance; discontinuances after Dec. 6, 2007 are immaterial under §5(3) (per Oregon Shores) |
| Whether a claimant who planned to subdivide and sell buildable lots before Dec. 6, 2007 has a vested right under Measure 49 §5(3) to subdivide and build houses | Cook: vested right under §5(3) includes completing subdivision and building houses | Appellants: §5(3) relief limited by what Measure 37 waivers allowed; selling buildable lots was not allowed under Measure 37 waivers | Held for appellants: §5(3) relief is no broader than Measure 37 waivers; because Measure 37 did not allow sale of buildable lots, Cook has no vested right to subdivide and build houses |
Key Cases Cited
- Friends of Yamhill County v. Board of Commissioners, 351 Or. 219 (2011) (explains Measure 49 litigation context and remand)
- Oregon Shores v. Board of County Commissioners, 297 Or. App. 269 (2019) (holds discontinuances after Dec. 6, 2007 are immaterial to §5(3) vested-right analysis)
- Friends of Yamhill County v. Board of Commissioners, 298 Or. App. 241 (2019) (Biggerstaff II) (holds §5(3) relief is limited to what Measure 37 waivers allowed; selling buildable lots was not allowed)