OR Appeals Court Holds Person Claiming Vested-Right Relief from Land Use Restrictions Based on Waiver was Required to be the Same Person Who Obtained the Waiver

This post was authored by Matthew Loeser, Esq.

In April 2005, Yamhill County issued a Measure 37 waiver that allowed Glenn and Diane Gregg to “make application to subdivide the subject property into 12 lots.” In 2006, the County issued another waiver allowing Glenn and Diane to divide the property into 13 lots. In this case, Steven, Thomas, and Donald Gregg and the Board of Commissioners of Yamhill County appeal from a judgment entered in a writ of review proceeding that reversed Yamhill County’s determination that Steven, Thomas, and Donald Gregg had a right to complete a subdivision to their property. The circuit court reversed the county’s determination, finding that none of the relevant parties was an “applicant” for purposes of a vesting decision under Ordinance 823 and that Steven and Thomas were not “claimants that filed a claim under Ballot Measure 37,” as required by section 5(3) of Measure 49. The court further found that ORS 215.130, which required nonconforming uses to be continuous, extinguished the claims under section 5(3) of Measure 49.

On appeal, Steven and Thomas first argued that the text quoted above should not be read as requiring a Measure 49 claimant to be the same person “that filed a claim under Measure 37 on or before June 28, 2007.” In support of that contention, Steven and Thomas cited a provision enacted in 2007 that applied to Measure 37 claims during a special extension of the claims review process, ORS 197.353(3), and a provision of Measure 49 regarding calculation of a claimant’s acquisition date, ORS 195.328(1). The court found, however, that their argument was defeated by the text of section 5(3) itself. Pursuant to that section, to obtain relief under section 5(3), a claimant must be a person “that filed a claim under Measure 37.” Given that express requirement, the circuit court’s determination was upheld.

Donald and the County’s argued that Donald’s “status as a Measure 37 waiver holder and qualified applicant under Ordinance 823 for a vested rights determination” was unquestionably established earlier in the proceedings and could not be relitigated now. The court rejected this contention, finding the court’s holding in Beck v. City of Tillamook, 313 Or. 148, 831 P.2d 678 (1992), upon which Donald and the county relied, was specific to Land Use Board of Appeals (“LUBA”) and based on the statutes governing LUBA’s review of land use decisions. As such, those statutes did not apply to writ of review proceedings. Accordingly, because Beck has no application in the writ of review context the circuit court’s holding on this claim was affirmed.

Kleikamp v. Board of Commissioners of Yamhill County, 301 Or.App. 275 (2019)