Posted by: Patricia Salkin | April 27, 2019

OR Court of Appeals Reverses Finding of Vested Rights for Subdivision

This post was authored by Matthew Loeser, Esq.


Claimants Gary and Beverly Aspmo applied to the county for approval for a 30-lot subdivision on their property. The county granted preliminary approval of that subdivision. Prior to December 6, 2007, the effective date of Measure 49, claimants spent $244,772.89 toward construction of the planned 30-lot subdivision. Pursuant to Measure 49, landowners “who had been proceeding with a development under the authorization of a Measure 37 waiver could no longer automatically continue to do so. Instead, they had to choose among three pathways: the express pathway, the conditional pathway, and the vested rights pathway.” The county decided that claimants had a vested right to complete the whole 30-lot subdivision. In this case, the Oregon Shores Conservation Coalition (“OSCC”) and the State of Oregon appealed a judgment entered in a writ-of review proceeding that affirmed Clatsop County’s determination that Gary and Beverly Aspmo had a vested right under Measure 49 to complete a 15-lot subdivision on their property.


The record reflected that the relevant factor in the county’s vested rights analysis was the expenditure ratio, which was the ratio between the costs that the landowner incurred to construct the planned development and the estimated cost of constructing the whole planned development. To determine the ratio, the county was required find “two historical facts: the costs that the claimant incurred to construct the planned development, and the estimated cost of the planned development.” The county found that the total cost of constructing that subdivision, the denominator in the expenditure ratio, would have been $ 8,017,100. The county further found that claimants’ expenditures toward building the 30-lot subdivision, the numerator in the expenditure ratio, totaled $ 240,422.89 (approximately 3% of the total project). Accordingly, the county held that claimants had acquired a vested right to complete and continue 15 lots, each with a dwelling, in the subdivision. Thus, the county held that that development would cost approximately half as much as a 30-lot subdivision—$ 4,284,200 (5.61% of the total project).


On appeal, the court found that the county’s approach misconstrued the law; it determined the expenditure ratio factor turned on findings of historical fact about the development that a claimant planned to construct, on or before December 6, 2007. The numerator of the expenditure ratio therefore should have included only those expenses “incurred to construct” that development. Consequently, the development that the claimant planned, on or before December 6, 2007, to construct was the only development that a claimant could have a vested right to complete. Here, claimants never planned a 15-lot first or subsequent phase of the project or made expenditures toward that goal. Accordingly, the court reversed and remanded, and held the circuit court erred in affirming the county’s contrary holding.


Oregon Shores Conservation Coalition v Board of Commissions of Clatsop County, 297 Or.App. 269 (OR App. 4/24/2019)

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