Forman v. Clatsop County

681 P.2d 786, 297 Or. 129

• Court: Oregon Supreme Court
• Decided: May 22, 1984
• Docket: TC CC82-156; CA A24527; SC 29833
• Status: Published

Opinions

LINDE, J.

Plaintiffs ask us to reverse decisions of the Circuit Court for Clatsop County and of the Court of Appeals that the Land Use Board of Appeals (LUBA) rather than the circuit court had jurisdiction to review Clatsop County’s determination that a proposed land development could continue as a nonconforming use.

The Court of Appeals summarized the facts as follows:

“In 1978, defendants purchased Sports Acres, a 50-acre complex consisting of a swimming pool, tennis courts, tracks and athletic fields. Shortly thereafter, defendants acquired an option to purchase 228 additional acres to develop for recreational vehicle and tent camping sites. After the Clatsop County Planning Commission determined that defendants’ intended use was permitted under the then existing zoning ordinance, defendants purchased and began developing the property. In 1980, the County adopted a new zoning ordinance that prohibited defendants’ intended use of the property. Defendants sought a resolution from the County that they had a vested right to their nonconforming use of the property. Plaintiffs, owners of property across the river from Sports Acres, opposed the resolution. After a public hearing, at which the County Commission heard arguments and received exhibits, it issued findings of fact and conclusions of law and determined that defendants had a vested right to continue their nonconforming use.”

63 Or App 617, 619, 665 P2d 365 (1983) (footnote omitted).

Plaintiffs appealed the county’s resolution to LUBA and also began a declaratory judgment action in circuit court. LUBA believed that it lacked jurisdiction and dismissed the appeal. Plaintiffs failed to appeal LUBA’s decision. The circuit court, to the contrary, concluded that LUBA was the proper forum for review and dismissed the complaint for declaratory judgment. The Court of Appeals affirmed this dismissal in banc, four judges dissenting. 63 Or App 617, 665 P2d 365 (1983). We allowed review to settle the procedural question. We agree with the circuit court and the Court of Appeals and affirm the judgment of dismissal.

The issue is whether the determination of a “vested right” for purposes of allowing a land use not in conformity with a current land use regulation is a “land use decision of a local government,” because if it is, LUBA’s exclusive jurisdiction to review it is beyond doubt.¹ The law defines “Land use decision” to mean a “final decision or determination made by a local government or special district that concerns the adoption, amendment, or application of’ a land use regulation, among other things. ORS 197.015(10)(a)(A)(iii). “Land use regulation” includes a zoning ordinance. ORS 197.015(10), (11). The Court of Appeals followed these definitions. It concluded that when the county determined that its 1980 zoning ordinance did not prevent continuation of the previously begun development, the county had made a “final decision or determination” concerning the application of the ordinance, that is to say, a land use decision within the exclusive jurisdiction of LUBA.

Plaintiffs do not offer an alternative analysis of the statute. They attach to their petition a copy of LUBA’s opinion dismissing their appeal to that tribunal, but that opinion cites decisions of the Court of Appeals which antedated the creation of LUBA and which the court correctly held to be superseded by the 1979 act. Beyond this, plaintiffs point to the practical shortcomings of a “dual system of jurisdiction” and the resulting confusion illustrated by their case. We are mindful of that concern, but we believe that the legislature chose LUBA, not the circuit courts, as the single forum.

An amicus brief, and the dissenters in the Court of Appeals, maintain that the exclusion of a substantially advanced development from later land use regulations, under the rubric of “vested rights,” concerns a “property right.” Such a decision certainly concerns the right to use property, as does any decision that limits an owner’s previous right to use property in a particular way, “vested” or not. This does not preclude that local governments or agencies may have authority to determine the facts on which application of a rule or exemption from the rule depends.

The statute placing exclusive jurisdiction in LUBA cannot be avoided by arguing that the court only decides on the existence of the asserted property right, not on the application of the land use regulation. So-called “vested rights” do not exist in a vacuum, to be determined by a court abstractly without relation to the regulation against which the right is claimed. The term is relevant only as a shorthand phrase for one element of the applicable land use laws that may require a factual determination like other elements. Under the present legislative scheme, local governments necessarily determine many such facts in deciding on the “application” of their “land use regulations,” as those terms are defined in the act. If the facts are disputed, the determination must rest on substantial evidence in the whole record. Or Laws 1979, ch 772, § 4(7); see ORS 197.835(8)(a)(c). If the facts are not disputed, they may give rise to a question of law. In either case, the decision on the application of the regulation, if final, is a “land use decision” for which the channel of review is through LUBA. There is no “dual jurisdiction.”

In dicta, the Court of Appeals implied that the circuit court might declare a person’s “vested right” not to conform to a land use regulation if the person initiated a court proceeding before the local government decided that question. That proposition was not necessary to the court’s decision.

The decision is affirmed.

1 Under Or Laws 1979, ch 772, § 4(1) (as amended), LUBA has “exclusive jurisdiction to review any land use decision of a local government . . . .” See ORS 197.825 (1983).