Petitioner sought to construct a 40 lot development on 52 acres of land. This development was allowed through Measure 37 waivers from the state and county. Petitioner obtained final plat approval for the first phase, consisting of 7 lots, before Measure 49 became effective. Measure 49 provides that parties that had filed Measure 37 claims before a certain date had a common law vested right to complete and continue the use described in the Measure 37 waiver. Petitioner applied for a determination from the county that he had a vested right to complete his development. The county hearings officer explained the test laid out in Clackamas Co. v. Holmes that, in determining whether there is a common law vested right, one should take into account the ratio of expenditures incurred to the total cost of the project in addition to the good faith of the landowner, whether or not he had notice of any proposed zoning before starting his improvements, the type of expenditures, the kind of project, the location and ultimate cost. Also, the hearing officer noted that the acts of the landowner should rise beyond mere contemplated use or preparation. After laying out this test, the hearings officer, in her analysis, focused heavily on the ratio between the petitioner’s expenditures and ultimate cost and ultimately determined that while there was a vested right to complete phase one of the development, there was no vested right to complete the last three stages.
Petitioner sought review of the hearing officer’s decision in circuit court. The Circuit Court vacated the hearing officer’s decision, holding that the officer had erred in strictly relying on a ratio assessment rather than utilizing all of the factors required under the common law vesting test described above.
The County then appealed, contending that the review court erred when it determined that the hearing’s officer misconstrued the law respecting common law vested rights.
While the case was pending, the Supreme Court clarified in its decision in Friends of Yamhill County v. Board of Commissioners the proper analysis for determining whether a landowner has a vested right to complete and continue development in compliance with a Measure 37 waiver. The Court held that, although the other Holmes factors will bear on whether the costs incurred are substantial enough to establish a vested right, the ratio provides an objective measure of how far the landowner has proceeded towards completion of the construction and was is a necessary starting point in analysis even though it may not prove to be the dispositive factor. They reiterated that focusing solely on the expenditure ratio is improper.
In light of the decision in Friends, the court determined that the hearing’s officer misconstrued the applicable law in evaluating the petitioner’s application for a vested rights determination and the review court did not err in its determination.
However, the court noted that here, the review court issued its own findings of fact and that reviewing courts are not supposed to decide what the facts are but merely must decide the legal question whether the evidence is sufficient to support the decision. This being said, the court vacated and remanded with instructions to enter judgment vacating the County’s decision and for reconsideration in light of the Friends decision.
Johnson v. Deschutes County ex rel. Bd. of County Com’rs, 249 Or. App. 60, 274 P.3d 884 (2012)
The opinion can be accessed at: http://www.publications.ojd.state.or.us/Publications/A144929.pdf
