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Friends of Yamhill County v. Board of County Commissioners of Yamhill County

Court of Appeals of Oregon

June 19, 2019

FRIENDS OF YAMHILL COUNTY, an Oregon non-proft corporation; Carr Biggerstaff, individually; and Jeanne Biggerstaff, individually, Petitioners-Respondents,
v.
BOARD OF COUNTY COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation, Respondent-Respondent, and STATE OF OREGON, by and through the Department of Land Conservation and Development, Intervenor-Appellant, and Ralph JOHNSON, individually and Norma Johnson, individually, Intervenors-Respondents. FRIENDS OF YAMHILL COUNTY, an Oregon non-proft corporation; Carr Biggerstaff, individually;andJeanne Biggerstaff, individually, Petitioners-Appellants, and STATE OF OREGON, by and through the Department of Land Conservation and Development, Intervenor-Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation, Respondent-Respondent, and Ralph E. JOHNSON, individually and Norma J. Johnson, individually, Intervenors-Respondents.

          Argued and submitted November 21, 2017

          Yamhill County Circuit Court 14CV08963; John L. Collins, Judge.

          Ralph O. Bloemers argued the cause and fled the briefs for appellants Friends of Yamhill County, Carr Biggerstaff, and Jeanne Biggerstaff.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for intervenor-appellant.

          Gregory S. Hathaway argued the cause for respondent and intervenors-respondents. Also on the briefs were Hathaway Koback Connors LLP and Timothy S. Sadlo.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Carr and Jeanne Biggerstaff, Friends of Yamhill County, and the State of Oregon appeal a judgment entered in a writ-of-review proceeding that affirmed Yamhill County's determination that Ralph and Norma Johnson (claimants) have a vested right under section 5(3) of Ballot Measure 49 (2007) to complete a 41-lot subdivision on their property. Held: Because (1) relief under section 5(3) of Measure 49 is limited to the same relief that was allowed under a claimant's Measure 37 waiver, and (2) claimants' Measure 37 waivers did not allow them to sell buildable lots, they cannot obtain relief under section 5(3) of Measure 49.

         Reversed and remanded.

         [298 Or.App. 242] JAMES, J.

         Carr and Jeanne Biggerstaff, Friends of Yamhill County (FOYC), and the State of Oregon (jointly, appellants) appeal a judgment entered in a writ-of-review proceeding that affirmed Yamhill County's determination that Ralph and Norma Johnson (claimants) have a vested right under section 5(3) of Ballot Measure 49 (2007) to complete a 41-lot subdivision on their property.[1] Appellants contend, among other things, that the writ-of-review court erred in affirming the county's determination that claimants had a vested right to complete the subdivision. For the reasons explained below, we agree. Accordingly, we reverse and remand.

         I. BACKGROUND

         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 County Commissioners, 237 Or.App. 149, 153, 238 P.3d 1016 (2010), affd, 351 Or. 219, 264 P.3d 1265 (2011) (Friends /), and with the undisputed facts set out in our previous opinion in this case. Claimants own property in Yamhill County that is currently zoned for farm use. In 2005, pursuant to Ballot Measure 37 (2004), [2] claimants sought, and received, waivers of land use regulations from Yamhill County and from the state. In the waivers, the county and the state agreed not to apply regulations preventing claimants from subdividing and building dwellings on their property.

         Pursuant to the waivers, in 2006, claimants obtained preliminary approval from the county to subdivide [298 Or.App. 243] their property into 41 residential lots. Claimants spent "over $1 million to develop the property and recorded the final subdivision plat for the development before Measure 49 became effective on December 6, 2007." Biggerstaffv. Board of County Commissioners, 240 Or.App. 46, 49, 245 P.3d 688 (2010). Claimants' expenditures included, along with costs of preparing the land for development, the cost of constructing "several extremely small 'dwellings'" of approximately ten by twelve feet in size, just before Measure 49 took effect. Id. However, as claimants' counsel acknowledged at oral argument in this case, claimants never planned to construct, or hire anyone else to construct, houses for buyers to actually live in; they intended only to sell lots, on which third parties would construct houses. In the fall of 2007, claimants sold four of the lots.

         When Measure 49 took effect, extinguishing claimants' Measure 37 waivers, claimants applied to the county for a determination that, under section 5(3) of Measure 49, they had a vested right to complete and continue the subdivision. See Friends of Yamhill County v. Board of Commissioners, 351 Or. 219, 228, 264 P.3d 1265 (2011) (Friends II) (explaining that Measure 49 extinguished Measure 37 waivers and required claimants to "choose among three pathways: the express pathway, the conditional pathway, and the vested rights pathway"). The county determined that claimants had a vested right to complete the subdivision, and the circuit court affirmed that determination on a writ of review.

         The Biggerstaffs, who are neighbors of claimants, appealed. We concluded that the county had misconstrued the law and, accordingly, we reversed the writ-of-review judgment and remanded for reconsideration. Biggerstaff 240 Or.App. at 56. On remand, claimants applied to the county for a vested rights determination for a second time, and, in 2011, the county again determined that they had a vested right to complete and continue the subdivision. While that decision was before the circuit court on a writ of review, the Supreme Court decided Friends II, in which it provided guidance about how to apply the factors that the court had previously established in Clackamas County v. Holmes, 265 [298 Or.App. 244] Or 193, 508 P.2d 190 (1973), as the guideposts for vested rights analysis.

         One of those factors is the expenditure ratio, which is the ratio between the costs that the landowner incurred toward construction of the planned development before the change in the law and the estimated cost of constructing the whole planned development. Friends II, 351 Or at 246; see also id. at 235-43 (explaining vested rights analysis). To determine the ratio, the county must find "two historical facts: (1) the costs that [the claimant] incurred to construct the planned development and (2) the estimated cost of the planned development." Id. at 246. Dividing the claimant's costs incurred by the total estimated cost of the planned development yields a percentage, which "provides an objective measure of how far the landowner has proceeded towards completion of construction and thus serves as an initial gauge of whether the landowner has proceeded far enough that he or she has a vested right to complete construction." Id. at 245.

         After the Supreme Court decided Friends II, claimants requested another remand to allow the county to conduct the vesting analysis consistently with that opinion. On remand, claimants again sought a vested rights determination from the county. In support of their contention that their expenditures represented a sufficient percentage of the total project cost to support a vested right, they relied on a purchase agreement submitted by a builder, which estimated that the cost to build the type of home that was likely to be built on the lots in the subdivision, as of December 2007, would have been $344, 018.69. The county accepted that testimony and, multiplying that amount by 40 and adding other development costs, determined that the total project cost, the denominator of the expenditure ratio, was $15, 017, 937.50. Applying a numerator of $1, 257, 190.74, which represented claimants', the county determined that claimants had spent 8.32 percent of the total project cost. After considering the other Holmes factors, the county determined that claimants had a vested right to complete and continue the subdivision.

         The Biggerstaffs and FOYC sought writs of review in the circuit court, the proceedings were consolidated, and [298 Or.App. 245] the state and claimants intervened.[3] As relevant to this opinion, appellants raised two arguments. First, they contended that ORS 215.130, which requires nonconforming uses to be continuous, and a county ordinance implementing that statute applied to, and extinguished, claimants' claim under section 5(3) of Measure 49. Second, they argued that the county had misconstrued the law when it relied on the builder's testimony about the likely cost of building the homes in the subdivision. In their view, that evidence showed the amounts that buyers of lots would have spent building homes and not the cost of houses that claimants themselves planned to build. They asserted that the fact that claimants never planned to build houses themselves was fatal to their claim under section 5(3) of Measure 49, and the builder's testimony could not assist them.

         The circuit court rejected those arguments. As to the first argument, it reasoned that ORS 215.130 did not apply in this vested rights proceeding. As to the second argument, it held that that claimants had shown the denominator of the expenditure ratio through the builder's testimony about the likely cost of building homes in the subdivision, regardless of "whether [claimants] personally constructed the buildings, did so in conjunction with third parties[, ] or third parties undertook the construction on their own after purchase of a lot with a vested interest to complete construction that ran with the land." Based on that reasoning, the court concluded that the county had not erred in determining that claimants had a vested right to complete and continue the development.

         The Biggerstaffs and FOYC, on one hand, and the state, on the other, appealed, and we consolidated the appeals. Appellants renew their arguments from below, and claimants and the county defend the circuit court's reasoning.

         [298 Or.App. 246] II. ANALYSIS

         In an appeal from a writ of review where the parties' arguments raise only questions of law, as they do here, we review for errors of law. ORS 195.318 (allowing challenges to county vested rights decisions under Measure 49 by way of writ of review); ORS 34.040(1)(d) (in a writ-of-review proceeding, the circuit court must determine whether the county "[improperly construed the applicable law"). As explained below, we conclude that ORS 215.130 does not affect claimants' claim. However, we conclude that claimants did not show a "vested right to complete and continue the use described in the waiver? Measure 49 ยง 5(3) (emphasis added), because ...


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