Posted by: Patricia Salkin | July 3, 2016

OR Appeals Court Affirms Remand of Vested Right Decision to the County

Owners sought and obtained a decision from the Benton County Board of Commissioners, in which the county concluded that the owners had a vested right, under Ballot Measure 49 (2007), to proceed with the subdivision of their land. Petitioners challenged that decision in circuit court through the writ of review process, ORS 34.010 to 34.102. The trial court agreed with petitioners that the county had incorrectly interpreted the applicable law and that substantial evidence did not support the county’s decision. Accordingly, the trial court remanded the decision to the county and instructed it to address those errors.

On appeal, petitioners asserted that the trial court erred in remanding, because, as a matter of law, the county could not have concluded that the property owners had a vested right to subdivide their property. Specifically, Petitioners argued that, “as a matter of law, the Larsons cannot count any expenditures as being made in objective good faith when an appeal of the land use authorizations was pending,” and, therefore, the trial court erred in remanding to the county for further findings about that factual issue.

The court, however, declined to consider whether the trial court erred in remanding the vested right determination to the county, because the claim of error is unpreserved. Here, petitioners affirmatively invited the error that they asserted, as petitioners expressly requested that the trial court “reverse the County’s decision, or in the alternative, remand the decision for a determination consistent with the applicable law and supported by substantial evidence.” Accordingly, the trial court’s determination was affirmed.

Hansen v Board of Commissioners of Benton County, 2016 WL 3342237 (OR App. 6./15/2016)

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