FRIENDS OF YAMHILL COUNTY, an Oregon non-proft corporation; Carr Biggerstaff, individually; and Jeanne Biggerstaff, individually, Petitioners-Respondents,
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,
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.
and submitted November 21, 2017
Yamhill County Circuit Court 14CV08963; John L. Collins,
O. Bloemers argued the cause and fled the briefs for
appellants Friends of Yamhill County, Carr Biggerstaff, and
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.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
Or.App. 242] JAMES, J.
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. 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.
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),  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.
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.
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.
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.
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
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.
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. 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.
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.
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.
Or.App. 246] II. ANALYSIS
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 §
5(3) (emphasis added), because ...