Maguire v. Clackamas County

279 P.3d 314, 250 Or. App. 146, 2012 WL 1950145, 2012 Ore. App. LEXIS 702
CourtCourt of Appeals of Oregon
DecidedMay 31, 2012
Docket2011040; A150183
StatusPublished
Cited by3 cases

This text of 279 P.3d 314 (Maguire v. Clackamas County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maguire v. Clackamas County, 279 P.3d 314, 250 Or. App. 146, 2012 WL 1950145, 2012 Ore. App. LEXIS 702 (Or. Ct. App. 2012).

Opinion

WOLLHEIM, J.

The owners of a 21.35-acre parcel zoned for exclusive farm use (EFU) in Clackamas County, applied for and received a Measure 37 waiver of land use regulations and sought to partition the property and develop it for 23 home sites. After the passage of Measure 49, they elected supplemental review of their Measure 37 claim under section 6 of Measure 49 and sought approval for three additional home sites. The Department of Land Conservation and Development (DLCD) partially approved the Measure 49 claim, and authorized the owners to seek partition of the property to create one additional parcel and to construct one additional dwelling.

The owners filed an application with Clackamas County to partition the property pursuant to the DLCD authorization, that is, they sought a single partition to construct a single additional dwelling. Petitioner objected to the proposed partition for the reasons that the proposed home site was located on property that is classified as high-value farmland and the proposal did not adequately cluster the proposed home site with existing homes on the property and in the area so as to preserve suitable land for farm use. Petitioner suggested an alternative home site that, in petitioner’s view, better clustered the proposed home site with existing homes and did not use high-value farmland.

After a hearing, the county hearings officer approved the proposed partition. Petitioner appealed the matter to LUBA. LUBA concluded that the county’s decision to partition the land pursuant to Measure 49 is not a land use decision subject to LUBA’s jurisdiction and dismissed the appeal. For that reason, LUBA did not consider the merits of petitioner’s appeal to LUBA. Petitioner seeks review, contending that the county’s decision is a land use decision and that LUBA erred in dismissing the appeal. In the alternative, petitioner asserts that LUBA erred in not transferring the appeal to circuit court pursuant to ORS 34.102(4). The county agreed with petitioner’s jurisdictional argument before LUBA, but did not appear before this court.1 This court may [148]*148reverse or remand LUBA’s decision if we determine that LUBA’s order is unlawful in substance or procedure. However, procedural error shall not be cause for reversal or remand “unless the court shall find that substantial rights of the petitioner were prejudiced thereby.” ORS 197.850(9)(a). We conclude that LUBÁ did not err, and affirm.

Generally, LUBA has exclusive jurisdiction over “land use decisions.” ORS 197.015(10)(a)(A) defines a “land use decision” as a final decision or determination made by a local government that concerns the application of a land use regulation. The challenged partition decision involved the application of one or more county land use regulations and therefore, barring some exception, would be a land use decision. Measure 49, section 16, now codified at ORS 195.318(1), provides that a determination by a public entity under Measure 49, sections 5 to 11, is not a land use decision; therefore, such a determination is not subject to LUBA’s jurisdiction. A resolution of this petition turns on the legal question whether the county’s decision under review, approving the partition of the subject property, is an exception to the general rule because the county’s determination is a decision “under” Measure 49, sections 5 to 11.

Some historical context is helpful. Measure 37, adopted through the initiative process in the 2004 general election, limited the ability of public entities to restrict development based on regulations adopted after the owner acquired the property. Measure 37 allowed local governments to waive or choose not to apply certain land use regulations to allow the owner to use property for a use permitted when the owner acquired the property.

In 2007, the legislature enacted Oregon Laws 2007, chapter 424, subsequently referred to the voters as Measure 49 and adopted in November 2007. Measure 49 superseded Measure 37. Corey v. DLCD, 344 Or 457, 466-67, 184 P3d 1109 (2008). Measure 49 extinguished Measure 37 waivers and allowed a Measure 37 claimant to pursue one of three alternative “pathways.” Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 225, 264 P3d 1265 (2011). Under Measure 49, a Measure 37 claimant could elect to seek a limited number of dwellings on newly created lots or could [149]*149pursue a “vested rights” claim for full Measure 37 relief. Or Laws 2007, ch 424, §§ 5-9.

As noted, the property owners in this case elected to pursue a claim under section 6 of Measure 49 for a limited number of parcels and dwellings, and obtained approval from DLCD to apply for one additional parcel and one additional dwelling. Section 11 of Measure 49 provides development standards for local governments to apply when considering whether to approve a partition or subdivision under Measure 49. Section 11(1) of Measure 49 authorizes governmental entities to apply certain land use regulations in reviewing an application for a subdivision or partition of property, or the establishment of one or more dwellings authorized under sections 5 to 11 of Measure 49.2 Sections 11(2) to (5) set out additional criteria that governmental entities must apply in creating a new parcel or approving one or more dwellings under Measure 49.

[150]*150Measure 49 describes how an adversely affected person obtains judicial review. Section 16 of Measure 49, now codified at ORS 195.318(1), provides, in part:

“A person that is adversely affected by a final determination of a public entity under * * * sections 5 to 11 [of Measure 49] * * * may obtain judicial review of that determination under ORS 34.010 to 34.100, if the determination is made by * * * a county[.] * * * A determination by a public entity under * * * sections 5 to 11 [of Measure 49] * * * is not a land use decision.”

At oral argument and on its own motion, LUBA raised the issue of whether the county’s determination was under sections 5 to 11 of Measure 49 and, therefore, not a land use decision. In addition, LUBA requested briefing from the parties on that issue. After considering the parties’ arguments and briefs, LUBA concluded that the county’s decision was not a land use decision. LUBA reasoned that the county’s partition approval was a final determination “under” section 11 of Measure 49, because the county’s determination was a partition that was subject to the substantive standards set forth in that section. LUBA concluded that, pursuant to ORS 195.318(1), the partition approval was not a land use decision; that exclusive jurisdiction for review of the county’s decision lies with the circuit court, pursuant to ORS 34.010

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Cite This Page — Counsel Stack

Bluebook (online)
279 P.3d 314, 250 Or. App. 146, 2012 WL 1950145, 2012 Ore. App. LEXIS 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maguire-v-clackamas-county-orctapp-2012.