Eugene and Viola Glender (the owners) purchased 24.8 acres of property in Linn County, Oregon, for which they signed an option contract to sell to David and Lois Irvine (the developers) in 2005. In accordance with the contract, the Glenders pursued the necessary Measure 37 waivers and permissions that would have allowed them to subdivide the property into 16 lots for a residential subdivision. Expenditures incurred were borne by the Irvines.
The subdivision plat was recorded by Linn County the day before Oregon’s Ballot Measure 49 (2007) went into effect. After the passage of Measure 49, but before it took effect, the Glenders dedicated a portion of their property to Linn County for construction of a roadway for the subdivision. The value of the dedicated property was $53,040. Then the owners and developers approached the county requesting a determination that they had a vested right to continue development of the subdivision under Measure 37 waivers they had obtained in 2005. The county Planning and Building Department determined that there was no vested right to complete the subdivision, and the owners and developers appealed to the Linn County Board of Commissioners (the County Board).
The Oregon Department of Land Conservation and Development (the State) submitted evidence to the County Board that the Glenders, owners of the property, had not incurred the substantial costs necessary to give them a vested right to develop the property because all of the costs had been borne by the developers, the Irvines. In doing its expenditure analysis, the County Board included, among other expenses, the $53,000 value of land dedicated to the County for construction of the road. Thus, the County Board determined that the Glenders did maintain a vested right to develop the 16-lot residential subdivision.
The State appealed the County Board’s decision to a circuit court via a writ of review. The circuit court held that the County Board had incorrectly applied the expenditure analysis because it had included the Glenders’ land dedication, which it felt had been made in a bad faith attempt to circumvent the new Measure 49 rules, and because the costs of the development were hypothetically projected at $100,000 for purposes of the expenditure calculation, whereas the expenditure ratio should have been calculated using the actual costs of the development. For all of those reasons, the circuit court overturned the County Board’s vested rights determination.
Both the State and the Glenders appealed the judgment, for a variety of reasons, most of which the Court of Appeals declined to address. First, the court held that the case should be remanded and analyzed consistent with the recent decision in Friends of Yamhill County v. Board of Commissioners, 351 Or. 219 (2011)(Friends II), which stated in relevant part that the cost of completing a residence or development could not be assumed but must have been established for the record for purposes of determining whether “substantial costs” have been expended, giving rise to vested rights. The court further held that the costs incurred by the Glenders related to the land dedication were includable in the expenditure calculation. The question of whether that expenditure was made in good faith was one that must be made by a trier of fact, not the reviewing court, and since the circuit court had reviewed the case on a writ and not as a trial court, it was not the proper arbiter of that issue.
For all of those reasons, the Court reversed and remanded, issued instructions to reverse the county’s decision, and ordered a full reconsideration of the case in light of the decision in Friends II.
Oregon Department of Land Conservation and Development v. Linn County, 249 Or.App. 537 (Or. Ct. App. 5/2/12)
The opinion can be accessed at: http://www.publications.ojd.state.or.us/Publications/A144528.pdf