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Oregon Shores Conservation Coalition v. Board of Commissioners of Clatsop County

Court of Appeals of Oregon

April 24, 2019

OREGON SHORES CONSERVATION COALITION, an Oregon non-profit corporation, Petitioner-Appellant,
v.
BOARD OF COMMISSIONERS OF CLATSOP COUNTY, an Oregon municipal corporation, Respondent-Respondent, and Gary S. ASPMO and Beverly J. Aspmo, Trustees, Intervenors-Respondents. STATE OF OREGON, by and through the Department of Land Conservation and Development, Plaintiff-Appellant,
v.
CLATSOP COUNTY; Gary S. Aspmo; and Beverly J. Aspmo, Trustees, Defendants-Respondents.

          Argued and submitted May 3, 2018.

          Clatsop County Circuit Court 16CV09677, 16CV09739. Cindee S. Matyas, Judge.

          Scott N. Hilgenberg argued the cause for appellant Oregon Shores Conservation Coalition. Also on the brief was Courtney B. Johnson.

          Judy C. Lucas, Assistant Attorney General, argued the cause for appellant State of Oregon. Also on the brief were [297 Or.App. 270] Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

          Christopher D. Crean waived appearance for respondent Clatsop County.

          Seth J. King waived appearance for respondents Gary S. Aspmo and Beverly J. Aspmo.

          No appearance for respondent Board of Commissioners of Clatsop County.

          Before DeHoog, Presiding Judge, and James, Judge, and Aoyagi, Judge. [*]

         Case Summary: In this case regarding common law vested rights under Ballot Measure 49 (2007), the Oregon Shores Conservation Coalition and the State of Oregon appeal a judgment entered in a writ-of-review proceeding that affirmed Clatsop County's determination that Gary and Beverly Aspmo (claimants) have a vested right under Measure 49 to complete a 15-lot subdivision on their property. Held: Section 5(3) of Measure 49 provides a right to relief for Measure 37 claimants whose use complies with their Measure 37 waiver and who can show that they had a vested right on December 6, 2007, to complete and continue the use, and it does not make that right subject to ORS 215.130. The text of section 5(3) requires a showing that a claimant's vested right existed on December 6, 2007, and no other date. Consequently, it does not matter whether, sometime after December 6, 2007, claimants' vested rights were extinguished by operation of ORS 215.130 and the implementing ordinance. The circuit court did not err in affirming the county's conclusion that ORS 215.130 did not affect claimants' claim. However, the county erred in determining that claimants had a vested right to complete and continue a 15-lot subdivision that they did not intend, on or before December 6, 2007, to construct, and the trial court erred in affirming the county's determination in that respect. Reversed and remanded.

         [297 Or.App. 271] JAMES, J.

         In this case regarding common law vested rights under Ballot Measure 49 (2007), the Oregon Shores Conservation Coalition (OSCC) and the State of Oregon (jointly, appellants) appeal a judgment entered in a writ-of-review proceeding that affirmed Clatsop County's determination that Gary and Beverly Aspmo (claimants) have a vested right under Measure 49 to complete a 15-lot subdivision on their property. As explained below, we reject appellants' contention that ORS 215.130, and the Clatsop County ordinance implementing that statute, apply to claimants' Measure 49 claim and extinguish it. Thus, the writ-of-review court correctly affirmed the county's determination that ORS 215.130 does not apply. However, we agree with appellants that the county misconstrued the law when it reasoned that, although claimants had no vested right to complete the development that they intended to construct when Measure 49 took effect-a 30-lot subdivision-they nonetheless had a vested right to complete a development that they never intended to construct, namely, a 15-lot subdivision. Consequently, the writ-of-review court erred in affirming the county's order in that regard. Accordingly, we reverse and remand.

         We state the facts consistently with the uncontested explicit and implicit factual findings in the county's vesting determination. Friends of Yamhill County v. Board of Commissioners, 237 Or.App. 149, 153, 238 P.3d 1016 (2010), affd, 351 Or. 219, 264 P.3d 1265 (2011) (Friends I). In 2005, pursuant to Ballot Measure 37 (2004), [1] claimants sought waivers of land use regulations from Clatsop County and from the state.[2] In their applications for the waivers, they stated that they intended to build a 20-lot subdivision on their property. The county and the state issued waivers agreeing not to apply regulations preventing claimants from subdividing and building dwellings on their property. [297 Or.App. 272] Neither waiver stated the number of lots into which the property could be divided or the number of dwellings that claimants could build.

         In February 2007, claimants applied to the county for approval for a 30-lot subdivision on their property. In August 2007, the county granted preliminary approval of that subdivision. Before December 6, 2007, the effective date of Measure 49, claimants spent $244, 772.89 toward construction of the planned 30-lot subdivision. They cleared and graded the property, installed rock base for the roads, bored test holes for septic systems, and drilled wells to provide water for several homes in the first phase of the project, which was to include five lots. They obtained all necessary permits for that work. By December 6, 2007, claimants had stopped all work on the property.

         As discussed further below, Measure 49 extinguished all Measure 37 waivers, including claimants'. Under Measure 49, landowners "who had been proceeding with a development under the authorization of a Measure 37 waiver could no longer automatically continue to do so. Instead, they had to choose among three pathways: the express pathway, the conditional pathway, and the vested rights pathway." Friends of Yamhill County v. Board of Commissioners, 351 Or. 219, 228, 264 P.3d 1265 (2011) (Friends II). Claimants chose the vested rights pathway established in section 5(3) of Measure 49, which is set out below, 297 Or.App. at ___, and Clatsop County Ordinance 08-06, which provides procedures and standards for a vested rights determination under section 5(3) of Measure 49.[3] In March 2008, they applied to Clatsop County for a determination that they had a vested right to complete and continue their 30-lot subdivision.

         The county hearings officer determined that claimants did not have a vested right to complete the 30-lot subdivision, but that they did have a vested right to complete the five lots and homes that made up the first phase of the development. However, the county disagreed; it decided that claimants had a vested right to complete the whole 30-lot subdivision. OSCC, which had appeared before the county, [297 Or.App. 273] sought review of that determination by writ of review in circuit court. The circuit court affirmed the county's determination, and OSCC appealed to this court. Ultimately, we reversed and remanded for reconsideration by the county[4] Oregon Shores v. Board of County Commissioners, 249 Or.App. 531, 536, 277 P.3d 639 (2012). The circuit court remanded the case to the county on September 13, 2012.

         On July 29, 2014, claimants submitted materials to the county for a new determination of whether they had a vested right to complete and continue their 30-lot subdivision. The state and OSCC both appeared before the county, contending that claimants did not have a vested right to complete the development of their property. Among other arguments, appellants contended that any vested right that claimants had was subject to ORS 215.130, which provides that nonconforming uses of land "may not be resumed after a period of interruption or abandonment." ORS 215.130(5), (7). A Clatsop County ordinance implementing that statute provides, "If a non-conforming use is discontinued for a period of one year, subsequent use of the property shall conform to" current land use regulations. Clatsop County Land and Water Development and Use Ordinance § 5.618. Our case law establishes that common law vested rights to develop property are "inchoate nonconforming uses" that can be subject to ORS 215.130. Fountain Village Development Co. v. Multnomah Co., 176 Or.App. 213, 221, 31 P.3d 458 (2001), rev den, 334 Or. 411 (2002) (Fountain Village).

         Appellants contended that claimants discontinued their use by not submitting materials for a new county vesting determination between September 13, 2012, when the circuit court remanded the matter to the county, and July 29, 2014. Noting that that period of time was more than [297 Or.App. 274] one year, appellants contended that any vested right that claimants might have had was extinguished by operation of the statute and the ordinance.

         The county rejected that argument, holding that the statute and the ordinance did not apply. The county implicitly found that claimants intended to construct a 30-lot subdivision, but determined that they had no vested right to complete and continue that use because they had spent only three percent of the total cost of construction of the project before Measure 49 became effective. See Friends II, 351 Or at 242-43 (explaining the role of the expenditure ratio-the ratio between the costs incurred ...


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