Hansen v. Board of Commissioners

377 P.3d 653, 278 Or. App. 794, 2016 Ore. App. LEXIS 752
CourtBenton County Circuit Court, Oregon
DecidedJune 15, 2016
Docket1010702; A157101
StatusPublished

This text of 377 P.3d 653 (Hansen v. Board of Commissioners) is published on Counsel Stack Legal Research, covering Benton County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hansen v. Board of Commissioners, 377 P.3d 653, 278 Or. App. 794, 2016 Ore. App. LEXIS 752 (Or. Super. Ct. 2016).

Opinion

DEHOOG, J.

This case involves a single parcel of land in Benton County, which the property owners sought to subdivide into nine lots in a manner prohibited by the state and county land use laws then in effect. To facilitate that subdivision, the owners sought and obtained a decision from the Benton County Board of Commissioners, in which the county concluded that the owners had a vested right, under Ballot Measure 49 (2007), to proceed with the subdivision. Petitioners challenged that decision in circuit court through the writ of review process, ORS 34.010 to 34.102. The trial court agreed with petitioners that the county had incorrectly interpreted the applicable law and that substantial evidence did not support the county’s decision. Accordingly, the trial court remanded the decision to the county and instructed it to address those errors. On appeal, petitioners assert that the trial court erred in remanding, because, as a matter of law, the county could not have concluded that the property owners had a vested right to subdivide their property. Because we conclude that petitioners invited the error that they now assert, we affirm.

The historical and procedural facts in this case are undisputed. In 2007, Milton and Wilma Larson sought to subdivide their 22.4-acre Benton County property into nine lots of varying sizes. When the Larsons acquired their property in 1963, the state legislature had not yet enacted Oregon’s statewide land use planning scheme, and the property was not yet subject to any zoning provisions. By 2007, however, the county had zoned the Larsons’ property as “RR-5,” or “Rural Residential” with a five-acre minimum lot size requirement. See Benton County Development Code 63.305(c) (defining “RR-5”); see also OAR 660-004-0040 (imposing building density limits on rural residential properties). Thus, in 2007, if the state and county land use laws then in effect were to apply to the Larsons’ property, the Larsons would have been permitted to subdivide their property into, at most, four lots.

In an effort to proceed with their proposed subdivision, the Larsons applied for and obtained waivers of the otherwise applicable state and county land use laws, as [797]*797authorized by Ballot Measure 37 (2004). See Or Laws 2005, ch 1. Measure 37, which was approved in 2004, gave property owners an avenue to seek “just compensation” from the government when the application of land use regulations reduced the value of their property. Former ORS 197.352(1) (2005), renumbered as ORS 195.305(1) (2007). See generally Friends of Yamhill County v. Board of Commissioners, 278 Or App 472, 474-75, 377 P3d 670 (2016) (summarizing Measure 37 regulatory scheme). If, as happened in this case, the government did not wish to pay an owner for the reduction in value, it could, instead, exempt the property from land use laws enacted after the owner acquired the property and allow a “use” of the property that would otherwise be prohibited. Former ORS 197.352(8) (2005); Friends of Yamhill County, 278 Or App at 474. This option became known as a “Measure 37 waiver.” Friends of Yamhill County, 278 Or App at 475. In their application for a Measure 37 waiver from the state, the Larsons described their intended “use” of the property as follows:

“We wish to subdivide this property into 9 building sites with average area of about 2.2 acres. There is presently a 5 acre minimum zone on the property, but neighboring properties [are zoned rural residential with a two-acre minimum lot size]. When we bought, there was no zoning—a one acre lot would have been allowed. One or two of the building sites we wish to plat may turn out to be less than 2 acres in area. Our purchase in 1963 should allow plats under 2 acres under M37! Hence we ask for a one acre minimum.”

In April 2007, both the state—through the Department of Land Conservation and Development (DLCD)— and the county—through the Benton County Board of Commissioners—granted the Measure 37 waivers. The DLCD order waived the application of Statewide Planning Goal 14 and its corresponding administrative rules1 to the Larsons’ “division of the 22.43-acre subject property into nine 1- to 3-acre parcels for residential development.” The [798]*798county’s order waived the application of relevant provisions of the Benton County Development Code “to the [Larsons’] division of the subject property.” Thus, the Measure 37 waivers authorized the Larsons to pursue their proposed subdivision. In June 2007, petitioner Oakwood Heights Special Road District (OHRD), an association of neighboring property owners, filed petitions in state and county courts challenging those waivers.

After the Larsons received the Measure 37 waivers, but before OHRD filed its petitions challenging those waivers, the Larsons began the subdivision application process. The Larsons began preliminary work toward the subdivision and incurred expenses for preparatory work including surveying and well drilling. In a June 2007 preapplication meeting, the county informed the Larsons that some legislative changes affecting Measure 37 might be on the horizon. That reference was to Measure 49, which the legislature had recently referred to the voters to consider later that year in the general election. Measure 49, which limited the effect of Measure 37, was passed by the voters in November 2007 and went into effect on December 6, 2007. See Or Laws 2007, ch 424. For landowners like the Larsons, Measure 49’s immediate effect was to repeal their Measure 37 waivers and, as a result, those landowners could not continue development pursuant to those waivers. See Friends of Yamhill County, 278 Or App at 475. The Larsons continued to incur expenses toward the subdivision while Measure 49 was on the ballot, but ceased to incur expenses toward their proposed subdivision after Measure 49 passed. The county subsequently sent the Larsons written notice, directing them to stop work on the subdivision.

Among other provisions, Measure 49 gave landowners such as the Larsons the opportunity to seek “vested right” determinations that would enable them to continue land uses previously permitted under Measure 37. Or Laws 2007, ch 424, § 5(3). Upon obtaining a vested right determination, an owner’s Measure 37 waiver would continue to be effective “to the extent that the claimant’s use of the property complie[d] with the waiver and the claimant ha[d] a common law vested right on the effective date of [Measure 49] to complete and continue the use described in the waiver.” Id.

[799]*799Following the passage of Measure 49, the Larsons pursued a vested right determination by the county. The board of commissioners concluded that the Larsons had “established a vested right to subdivide the property into nine lots.” In making that determination, the board applied the common law vested right test articulated by the Supreme Court in Clackamas Co. v. Holmes, 265 Or 193, 198-99, 508 P2d 190 (1973). That test requires the application of “four essential factors”:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Clackamas County v. Holmes
508 P.2d 190 (Oregon Supreme Court, 1973)
Eklund v. Clackamas County
583 P.2d 567 (Court of Appeals of Oregon, 1978)
Forman v. Clatsop County
665 P.2d 365 (Court of Appeals of Oregon, 1983)
Forman v. Clatsop County
681 P.2d 786 (Oregon Supreme Court, 1984)
Crawford v. Jackson
451 P.2d 115 (Oregon Supreme Court, 1969)
State v. Kammeyer
214 P.3d 822 (Oregon Supreme Court, 2009)
State v. Kammeyer
203 P.3d 274 (Court of Appeals of Oregon, 2009)
Anderson v. Oregon Railroad
77 P. 119 (Oregon Supreme Court, 1904)
Constant Velocity Corp. v. City of Aurora
901 P.2d 258 (Court of Appeals of Oregon, 1995)
Home Builders Ass'n of Metropolitan Portland v. City of West Linn
131 P.3d 805 (Court of Appeals of Oregon, 2006)
Friends of Yamhill County v. Board of County Commissioners
377 P.3d 670 (Yamhill County Circuit Court, Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
377 P.3d 653, 278 Or. App. 794, 2016 Ore. App. LEXIS 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hansen-v-board-of-commissioners-orccbenton-2016.