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HomeMy WebLinkAboutHannan AppealDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.otg AGENDA REQUEST & STAFF REPORT For Board Business Meeting of July 7, 2008 Please see directions for completing this document on the next page. DATE: July 2, 2008 FROM: Ruth Herzer Community Development Department x3555 TITLE OF AGENDA ITEM: Board consideration to hear or not to hear an appeal (A-08-12) of a Hearings Officer decision in a Measure 49 vested right determination (DR -07-13). PUBLIC HEARING ON THIS DATE? No. BACKGROUND AND POLICY IMPLICATIONS: Pursuant to state and county Measure 37 waivers, the applicant submitted an application for a 3-l0 partition (MP -07-8). A public hearing on the 3 lot partition was held on May 22, 2007. The Hearings Officer approved the 3 lot partition in a decision dated June 22, 2007, with the decision becoming tmal on July 5, 2007. The applicant submitted the Final Plat Application (FPA -07-31) which was approved on November 26, 2007 and recorded the final plat on December 10, 2007. Subsequently, the applicant applied for a Measure 49 vested right determination (DR -07-13). A public hearing was held on April 7, 2008. The Hearings Officer issued a decision which was mailed on June 20, 2008. The Hearings Officer concluded the following: 1) The "cut-off' date for determining "good faith" expenditures was June 15, 2007 (the date M49 was referred to the voters); 2) The cost of a house should be included in the cost ratio analysis; and 3) The goal post statute (ORS 215.427(3)) applies only to the land use application, and not to the development subsequent to the land use approval. Based on these decisions, the Hearings Officer determined that a ratio of 1:50 of qualified expenditures ($4,098.75) to total project cost ($219,777.75) was not sufficient to demonstrate a vested right to subdivide the property or continue development. The appellant requests a partial de novo hearing to: 1) Confirm that expenses were incurred and when; 2) Provide factual support that the goalpost statute should be applied to the development approved under the land use permit; 3) Place into the record evidence of improper ex parte contact. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Staff recommends that the Board not hear the appeal. Staff agrees with the Hearings Officer decis on and does not believe the decision presents a policy issue requiring consideration by the Board. ATTENDANCE: Ruth Herzer DISTRIBUTION OF DOCUMENTS: Ed Fitch Bryant, Emerson, & Fitch, LLP 888 SW Evergreen Avenue Redmond, OR 97756-0103 Ernest and Arletta Hannan 4178 SW 58th Redmond, OR 97756 Legal Counsel Ruth Herzer DECISION OF THE DESCHUTES COUNTY HEARINGS FILE NUMBER: DR -07-13 APPLICANT/OWNER: ATTORNEY: REQUEST: Ernest and Arletta Hannan 4178 SW 58th Redmond, OR 97756 Ed Fitch P.O. Box 457 Redmond, OR 97756 O M,r,,W22 A 40. JUN 2008 ps GHkqES GpUN SVEZI'� An application for a declaratory ruling to determine whether the applicant has a common law vested right to continue the development of their three -lot partition approved under file no. MP -07-8. HEARING HELD: April 8, 2008 RECORD CLOSED: April 8, 2008 STAFF CONTACT: Ruth Wahl, Associate Planner I. STANDARDS AND APPLICABLE CRITERIA: A. Ballot Measure 49 (House Bill 3540), Oregon Revised Statutes Chapters 195, 197 B. Title 18, Deschutes County Zoning Ordinance, of the Deschutes County Code II. BASIC FINDINGS: A. LOCATION: The subject property consists of three platted parcels identified on County Assessor's Map 15-12-25 as tax lot 900. Note: The plat for the three -lot partition has been filed with the County Surveyor (PP2007-79 and recorded on 12-10-07). According to the staff report, the Cartographer had not updated the Assessor's Maps at the time of the writing of the staff report. B. ZONING: The subject property is zoned Exclusive Farm Use — Tumalo/ Redmond/Bend subzone (EFU-TRB) and Airport Safety (AS) Combining Zone. The property is designated agriculture by the Deschutes County Comprehensive Plan. C. PROPOSAL: The application submitted is for a determination under Ballot Measure 49 whether this development is vested. The applicant submitted a burden of proof statement, and 14 exhibits attached to it, as part of the application. The purpose of the partition was to create two lots for the applicant's children to build homes on. The applicant has not applied for any building permits at this time. D. SITE DESCRIPTION: The subject property includes three parcels, all of which according to the Assessor's Office are under the ownership of Ernest and Arletta Hannan ("the applicant"). These parcels were created under a waiver of land use regulations under Ballot Measure 37 (State Claim # M118516) and County Waiver (Order No. 2005- 095). The applicant then proceeded with these waivers to apply for the partition of the property (see MP -07-8) and final plat approved (see FPA -07-1). The subject property is generally level and is used for irrigated pasture to graze cattle. There is an irrigation canal that crosses the southwest comer of parcel 1 and a private irrigation easement, which bisects parcel 1 and crosses the southwestern comer of parcel 2. Parcel 1 is developed with two legally established single-family dwellings and parcels 2 and 3 are vacant. E. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the proposed declaratory ruling application (hearing) to 12 public agencies, including DLCD. Staff received no responses. F. PUBLIC COMMENTS: The Planning Division sent notice of the proposed declaratory ruling application (hearing) to all property owners within 750 feet of the subject property on March 4, 2008. Staff received no comments prior to the hearing. At the hearing on April 8, 2008, no other parties appeared to testify on the proposal other than the applicant. G. COMMUNITY DEVELOPMENT DEPARTMENT PERMITS: The applicant submitted land use applications and permit applications with CDD, including costs, as follows: Planning Fees: Application No. (Submittal Date) Application Description Application Fee Final Approval Date MP -07-8 (3-1-07) Application for partition a 3 lot $1,605.00 June 22, 2007 FPA -07-31 (10-9-07) Final Plat Review $235.00 November 26, 2007 Total Fees $1,840.00 Development Permit Fees: Staff prepared the tabular material above based upon receipts and invoices submitted by the applicant. Costs were also briefly summarized in the applicant's Burden of Proof (at page 7). Copies of receipts and invoices without further explanation were attached to the Burden of Proof statement. Indeed, most of the explanatory text on the 3 -page invoice for legal services was simply `whited-out." The total amount asserted by applicant in the text of its Burden of Proof for all expenses was $18,623.00. That differs somewhat from the total figures above summarized by staff ($21,570.85). Moreover, the allocation of those costs, particularly the amount attributable to legal (professional) fees differs substantially between the Burden of Proof ($9,066.00) and amounts as calculated by Staff ($6,067.95). DR -07-13 (Hannan) Hearings Officer's Decision Page 2 of 14 Parcel Number Permit Nos. (Submittal Date) Fees Total Fees SW 8421 (driveway access permit) $55.00 2 (11-19-07) F 23530 (site evaluation) $515.00 $570 SW 8422 (driveway access permit) $27.50 (11-19-07) 3 F 23531 (site evaluation) $515.00 $542.50 Tax Penalty for removal from deferral $1,605.60 Recording fee for Farm and Forest Management $41.00 Easement Central Oregon District Irrigation Plan $150.00 Central Oregon Irrigation District, Record $46.00 Irrigation Contract Povey and Associates, Land Surveying $4,003.90 Povey and Associates, Land Surveying $1,040.00 Povey and Associates, Land Surveying $40.00 GENERAL TO ALL Povey and Associates, Land Surveying $555.00 PARCELS Povey and Associates, Land Surveying $720.00 Povey and Associates, Land Surveying $2,603.90 Deschutes County, Surveyors plat check $560.00 Central Oregon Irrigation, Signature Fee $750.00 Deschutes County Road Department $175.00 Bryant, Emerson & Fitch, Professional Services $6.067.95 Deschutes County Recording Total $18,618.35 Fees: DR -07-13 (Hannan) Hearings Officer's Decision Page 3of14 Pursuant to a staff request for additional information concerning project expenditures, the applicant submitted a supplemental explanation with additional supporting documentation by letter dated April 7, 2008. 11. LOT OF RECORD: The subject property was platted into 3 parcels. The partition plat was recorded with the County Clerk's Office on December 10, 2007. The validity of that partition and the plat is at issue in this proceeding. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. Introduction This application for a vested rights determination requires ruling on three aspects of this development: (1) Confirmation that the 3 lots created by the partition plat recorded on December 10, 2007 pursuant to Measure 37 waivers are legally created parcels; (2) A determination whether the parcels (developed or undeveloped) may be conveyed to third persons; and (3) A determination that dwellings may be constructed on two of the three parcels.3 These issues are implicit, if not always explicit, in the applicant's burden of proof statement and additional materials submitted in support of their application. The applicant advances two primary arguments on behalf of the applicant's request for a Declaratory Ruling that they have the right to partition and develop the property. First, the applicant argues that the development is already "grandfathered in" by virtue of being a lawful use under ORS 215.427(3) (the "goalpost" rule) that can be continued under ORS 215.130(5) .4 2 In that letter, the applicant's attorney used and appears to accept the figure previously utilized by staff for Professional Services ($6,067.95), although he attached additional invoices for legal services (apparently for three different client billing files) without explanation as to which legal fees in those statements specifically related to this matter. The Hearings Officer notes that the total fees for professional services on those invoices substantially exceed the amount identified as "legal costs" in the "Summary of Costs" at Page 9 of the letter dated April 7, 2008. The only legal expenses specifically asserted by applicant as relevant to determining expenses incurred on behalf of this application are all associated with the civil litigation against the State of Oregon in connection with the Measure 37 waiver. For reasons explained more fully in the text of this decision, the Hearings Officer rejects those fees attributable to obtaining the applicant's Measure 37- waiver, including those fees related to litigation with the state of Oregon over the date of property acquisition, because they are not directly connected to applicant's current request to partition property into three parcels. Although the Hearings Officer, as indicated above, rejects those expenses as appropriate costs here, the Hearings Officer reviewed the two. other statements submitted with the Letter of April 7, 2008, for appropriate expenditures. Those legal expenses deemed appropriate are included m the analysis elsewhere in this Decision. 3 Two existing dwellings will remain on Parcel 1. The proposal calls for construction of an additional dwelling to be constructed on each of Parcels 2 and 3. a Applicant's argument in the Burden of Proof is organized into three sections, the last of which seems to simply repeat the argument for grandfathering under ORS 215.427(3) and ORS 215.130(5), providing DR -07-13 (Hannan) Hearings Officer's Decision Page 4 of 14 Second, the applicant argues that the development approved by Deschutes County pursuant to Measure 37 waivers (codified as ORS 197.352 in 2005) issued by Deschutes County and the State of Oregon has had sufficient investment to vest under the common law principles in Oregon law. The applicant asserts that development rights have vested even if Section 5(c) of Measure 49 (2007) has an impact on land use applications based on Measure 37 waivers. My analysis of these arguments begins with a brief summary of the factual background and a synopsis of legal and equitable principles at issue. Following the review of legal and equitable principles, I apply the facts to each of the legal principles and explain why I conclude that the applicant does not have a vested right to develop this property under the Measure 37 waivers. B. Factual Background The applicant applied for Measure 37 waivers in May 2005 to allow a 17.53 -acre property near Redmond, Oregon to be partitioned into three parcels. Those waivers were granted by Deschutes County in early 2006 and by the State of Oregon on January 19, 2007. Upon receipt of the waiver from the State of Oregon, applicant proceeded to file an application for a minor partition (MP -07-8) with Deschutes County. That application was submitted on March 1, 2007. Under the application, the largest parcel (Parcel 1 - approximately 7.53 acres) would contain the two existing residences, while two 5 -acre parcels (Parcel 2 and Parcel 3) were proposed to be developed with one additional residence each. A hearing was held on May 22, 2007 and written approval was issued on June 12, 2007 (approval was final after expiration of the appeal period on or about June 24, 2007). The final plat was recorded on or about December 10, 2007, after being approved by Deschutes County on November 26, 2007. C. Legal Background — Measure 49 and Vested Rights Recently Hearings Office Anne Corcoran Briggs issued decisions in several declaratory rulings applying the provisions of Measure 49 and common law vested rights. In these decisions, the Hearings Officer described the legal context for determining vested rights under Measure 49 and gave careful consideration to the application of ORS 215.427(3), ORS 215.130(5) and Measure 37 (ORS 197.352). I agree with this legal analysis and quote it verbatim here:5 "Legal Principles 1. Measure 37. Oregon voters approved Measure 37 in 2004. Measure 37, which is codified in state law at ORS 197.352(2005), created a cause of action whereby property owners could obtain compensation or waivers from land use regulations that were adopted after the claimants acquired their property if the regulations reduced their property values. Claims were some limited additional information on specific costs incurred by the applicant. I regard these three sections as essentially stating two arguments as identified above. 5 See, decisions by Hearings Officer Anne Corcoran Briggs in DR -07-12 (Harry)(2008) and DR -07-14 (Miles)(2008). See also, the decision by Hearings Officer Kenneth D. Helm in DR -07 —11 (Bolken)(2008), which quotes verbatim and with approval the legal analysis in the Briggs decisions. DR -07-13 (Hannan) Hearings Officer's Decision Page 5 of 14 submitted to local governments and to the state, which evaluated the claims and, for the most part, approved waivers to the devaluing regulations. Once property owners received waivers from the county and/or state, the property owners applied for land development approvals that effectuated developments permitted under the waivers. Between December 2004 (the date Measure 37 became effective) and December 2007 (the date Measure 49 became effective), processing of the Measure 37 claims was interrupted by appeals. As a result, many Measure 37 claims lapsed, or were not finalized in a land use decision on the Measure 37 land use application.6 2. Measure 49. In Spring 2007, the Oregon legislature referred Measure 49 to the voters. Measure 49 was billed as a "modification" to Measure 37, but in fact severely circumscribes both the nature and extent of development that can be approved under Measure 37 waivers. For instance, Measure 49 allows only limited residential development on land that was otherwise available for any number of lots and activities. In addition, Measure 49 requires that the waivers granted under Measure 37 be re-evaluated by the Oregon Department of Land Conservation and Development ("DLCD" or "Department.") The Department must decide whether the estimated loss in value asserted in the initial Measure 37 claims is supported by a uniform methodology for calculating loss in value. In addition, the Department must work with property owners to determine whether the claimants will receive an "express" waiver, which permits the development of up to three parcels and three new dwelling units on property held by the claimants, or whether the claimants are entitled to develop up to ten dwelling units on ten new lots. It is generally understood that few, if any, of the claimants will be entitled to develop ten dwelling units. For those property owners who received Measure 37 waivers and who have a "common law vested right" to develop as of December 6, 2007, development may continue under the Measure 37 waivers and the claimants need not receive a supplemental approval under Measure 49. See Measure 49, Section 5(3). 3. ORS 215.130(5). This statute allows property owners to continue nonconforming uses and structures on properties, so long as the uses and structures are not altered or abandoned. Further, ORS 215.130(5) permits changes in ownership and occupancy without forfeiting the right to the nonconforming use._-- __--- 4. ORS 215.427 (Goalpost Rule). 6 Measure 37 claims that were pending or on appeal as of the effective date of Measure 49 are now moot. Frank v. Department of Land Conservation and Development, _ Or App _ (CA A134704, January 23, 2008). 7 ORS 215.130(5) provides, in relevant part: The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued. * * * A change of ownership or occupancy shall be permitted." DR -07-13 (Hannan) Hearings Officer's Decision Page 6 of 14 ORS 215.427(3)(a) provides: "If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the county has a comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial shall be based upon the standards and criteria that were applicable at the time the application was first submitted." The type of vesting provided for in ORS 215.427(3)(a) is known as "an early vesting rule." Its purpose is to establish a bright line standard from the onset, so that the parties to a land use application understand which applicable approval standards will govern the review of the application. In DLCD v. Jefferson County (Burk), _ Or LUBA _ (LUBA No. 2007-177, January 24, 2008), appeal pending _ Or App _ (2008), LUBA held that the provisions and limitations of Measures 37 and 49 supersede ORS 215.427(3)(a), where an applicant dies prior to a decision on a Measure 37 land use application. Under the reasoning in Burk, only the claimant/applicant has the right to proceed with a Measure 37 land use application, because Measure 37 rights are personal to the claimant. 5. Common Law Vested Rights. "Vested rights" refers to the equitable principle that a party has the right to develop property notwithstanding the adoption of more restrictive land use regulations, if the party demonstrates that it has commenced the development in good faith.8 In Clackamas County v. Holmes, 265 Or 193, 508 P2d 190 (1973)(Holmes), the Oregon Supreme Court identified factors to be considered when analyzing expenditures made in reliance on an assumed development approval to decide (after the fact) whether a project has vested. The Court adopted a requirement that includes consideration of the ration of expenditures incurred to the total costs of the project, but also included consideration of other factors. The Court held: "We believe that the ratio test should be only one of the factors to be considered. Other factors which should be taken into consideration are the good faith of the landowner, whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements, the types of expenditures, i.e., whether the expenditures have any relation to the completed project or could apply tov_arousother_uses_of the _land, the kind of project, the location and ultimate cost. Also, the acts of the landowner should rise beyond mere contemplated use or preparation * * *." Holmes, 265 Or at 198-99. Over the years, the Holmes analysis has been refined somewhat. In Union Oil Co. v. Board of Co. Comm. of Clack. Co., 81 Or App 1, 724 P2d 341 (1986), the Oregon Court 8 The Oregon Court of Appeals has described "vested rights" as "inchoate nonconforming uses." See Fountain Village Dev. Co. v. Multnomah County, 176 Or App 213, 221, 31 P3d 458 (2001). DR -07-13 (Hannan) Hearings Officer's Decision Page 7 of 14 of Appeals held that not all Holmes factors will come into play in all cases, and that when they do, different weight may be accorded to those factors. In addition: a. Where a development includes both a land division and the development of dwellings, the ratio test must include costs related to both. Webber v. Clackamas County, 42 Or App 151, 155 n 2, 600 P2d 448 (1979). b. The ratio test should not include the property purchase price unless there is evidence that the buyer/developer paid a premium to develop the site for the particular use it now seeks to vest. Union Oil Co. v. Board of Co. Comm. of Clack Co., 81 Or App at 7. c. Costs must be incurred based on lawful permits. DLCD v. Curry County, 19 Or LUBA 237 (1990) (holding that costs incurred after Supreme Court overturned county approval are not to be considered in vesting analysis); Lung v. Marion County, 21 Or LUBA 302 (1991)(expenditures incurred to develop landscaping business cannot be included because they were incurred without land use approvals); Crone v. Clackamas County, 21 Or LUBA 1992 (1991)(expenses incurred to partition parcel could not be considered where applicant had not applied for partition approval.) d. Site preparation, engineering fees, and attorney fees incurred in obtaining development approvals are allowable expenses to consider under the ratio test. Cook v. Clackamas County, 50 Or App 75, 84, 622 P2d 1107 (1981). e. By themselves, land use approval and building permits for a development do not create a vested right to develop that particular use. Twin Rocks Watseco Defense Committee v. Sheets, 15 Or App 445 (1973); Columbia Hills Development Co. v. Land Conservation and Development Commission, 50 Or App 483, 624 P2d 157 (1981); and Mason v. Mountain River Estates, Inc., 73 Or App 334, 698 P2d 529 (1985).9 f. Expenditures that commit the property to the particular use contemplated by the developer may be included in the ratio analysis. Conversely, expenditures that can be applied to other allowed uses may not be considered to be directed toward the purported vested right. Eklund v. Clackamas County, 36 Or App 73, 583 P2d 567 (1978)(developer allowed to include costs to develop water system on site, because the watersystem was directly related to residential subdivision, 9 Twin Rocks and Columbia Hills were decided prior to the adoption prior to ORS 215.427 or its predecessor statute, ORS 215.428. Mason was based on local code provisions that were adopted in 1980, also prior to the adoption of the goalpost statute. Therefore, it is not clear whether those holdings have the same precedential value in light of the goalpost statutes. See Kirpal Light Santsang v. Douglas County, 18 Or LUBA 651 (1990) on remand from Court of Appeals, 96 Or App 207, 772 P2d 944 (1989)(based on ORS 215.428, an application to construct a boarding school and associated buildings submitted seven days before the standards changed must be reviewed against the standards in place at the time the application was submitted, and not against the later -adopted conditional use standards.) DR -07-13 (Hannan) Hearings Officer's Decision Page 8 of 14 and not to the agricultural uses of the property allowed by the zoning); Webber v. Clackamas County, 42 Or App at 155 (where water system could be used to serve 5 -acre parcels, applicant could not include costs incurred to install the water system to serve one-half acre lots.)" D. Application of Vested Rights rules to the Facts of this Application 1. Oregon Revised Statutes 215.427 and 215.130 In a letter dated April 7, 2008, the applicant argues that "[t]he waivers issued by Deschutes County and the State of Oregon provided to Mr. And Mrs. Hannan a protected property interest in the waiver." The applicant cites to a recent Court of Appeals decision in support of that proposition. Corey v. Department of Land Conservation and Development, 212 Or App 536, 159 P3d 327 (2008) citing Board of Regency of State Colleges v. Robb, 408 US 564, 577, 92 S. Ct. 2701, 33 L.Ed.2nd 548 (1972). Based on this assertion, the applicant further argues that ORS 215.427(3) vests the right to complete the proposed partition under the "standards and criteria" that were "applicable at the time the application was first submitted," including the Measure 37 waivers issued by the State of Oregon and by Deschutes County. The applicant's reliance on the Court of Appeals decision in Corey is misplaced, due to the subsequent Oregon Supreme Court decision in Corey v. DLCD, _ Or (S0554995, May 8, 2008). In that decision, the Supreme Court stated: In the end, we hold only that plaintiffs' contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers—and all orders disposing of Measure 37 claims—of any continuing viability, with a single exception that does not apply to plaintiffs' claim. Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. The Oregon Supreme Court's decision in Corey v. DLCD clearly rejects the argument that a measure 37 waiver provides land use applicants with a protected property interest that is unaffected by Measure 49.10 As the court stated, Measure 49 deprives Measure 37 waivers of "any continuing viability, with a single exception." The "single exception" referred to by the court is when the applicant has a "common law vested right" to proceed." Based on all of the foregoing, I find that the applicant's Measure 37 waivers from DLCD and the Deschutes County Board of Commissioners have no legal effect,exceptto the extent, if any, that 10 Deschutes County Hearings Officer Kenneth D. Helm recently reached the same conclusion concerning the continuing validity of Measure 37 waivers in DR 07-11 (Bolken), noting that "the Oregon Supreme Court conclusively dismissed this same argument in Corey v. DLCD, Or _ (S0554995, May 8, 2008)." 11 See also, the decision by the Land Use Board of Appeals in Department of Land Conservation and Development v. Jefferson County, LUBA No. 2007-177, issued on January 24, 2008) rejecting the application of ORS 215.427(3) subsequent to the adoption of Measure 49 based on the "later controls the earlier" maxim of statutory construction. DR -07-13 (Hannan) Hearings Officer's Decision Page 9 of 14 the applicant has a common law vested right to proceed. I also find that these waivers themselves cannot constitute "standards and criteria" under ORS 215.427(3) and that ORS 215.130 is not directly applicable in this case since any direct application of the statute would presume what is to be established here, i.e., a "lawful use.s12 Therefore, I find that the applicant does not have the right after December 6, 2007 to complete the proposed partition or further develop the property by application of ORS 215.427(3) and ORS 215.130(5). 2. Common Law Vested Right (Section 5 of Ballot Measure 49) Section 5 of Measure 49 provides the exclusive means for completing development pursuant to waivers granted under Measure 37. Section 5(3) of Measure 49 states: A claimant that filed a claim under [Measure 37]***is entitled to just compensation as provided in***a waiver issued before [December 6, 2007] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right [as of December 6, 2007] to complete and continue the use described in the waiver.13 The determination of a vested right requires the application of the method identified in Clackamas County v. Holmes and subsequent vested rights cases as discussed above.14 The most critical issues that need to be addressed are the ratio of qualifying expenditures to total project cost, the good faith of the property owner, and whether the property owner had notice of the proposed change in law before beginning development. These issues are closely intertwined. Calculating qualifying expenditures ultimately requires determination of the cut-off date for good faith expenditures, which in turn is based upon the actual, imputed or presumed knowledge of the property owner about the possible prospective adoption of Measure 49. a. The good faith of the property owner and notice of the proposed change in law 12 Staff expressed the view in the Staff Report that "ORS 215.130 is not directly applicable in this case." I concur in that analysis. 13 Staff summarizes this provision as requiring the following to be met: (1) the claimant under Measure 37 must still have an interest in the property; (2) the use of the property must comply with state and county waivers, and therefore, the County Measure 37 -related land use permit; and (3) the applicant must demonsSt-rate a common law vested right to complete and continue the use. To the extent thatit maybe necessary to make a finding with regard to these matters, the Hearings Officer concurs with staff and finds that the first two criteria above are satisfied, subject to the vested rights analysis below. 14 That method involves consideration of the following six factors: (1) the amount of money spent on developing the use in relation to the total cost of establishing the use; (2) the good faith of the property owner; (3) whether the property owner had notice for the proposed change in law before beginning development; (4) whether the improvements could be used for other uses that are allowed under the new law; (5) the kind of use, location and cost of the development; and (6) whether the owner's acts rise beyond preparation (exclude activities/expenses such as land clearing, planning, architectural drawings, site evaluations). DR -07-13 (Hannan) Hearings Officer's Decision Page 10 of 14 On the question of good faith, the applicant asserts that at the earliest, the county should establish December 6, 2007, the date Measure 49 became effective, as the good faith "cut off' date. In support of that position, the applicant makes three basic arguments. First, he states "the statute referred by the legislature noted that an applicant had until December 5th to make expenditures to establish a common law vesting." Second, he points out that the legislature could have selected a different date. Third, he notes that local governments continued to process land use applications and permits through the effective date of Measure 49. He concludes as follows: "The issue in this case is not whether December 6th is absolutely the correct date. The issue here is, in light of all these indicators, could the claimant have believed she was proceeding in good faith up to December 6th. The answer is unequivocally "Yes." I concur with the Hearings Officers' decisions in DR -07-12 (Harry), Dr -07-14 (Miles) and DR - 07 -11 (Bolken) that June 15, 2007, the date the legislative assembly adopted HB 3540 referring Measure 49 to the voters, is the appropriate "cut off' date for the reasons set forth by Hearings Officer Anne Corcoran Briggs in DR -07-12 on this point.15 I would simply add that the language of Measure 49 does not specifically state that an applicant has until December 5th to make expenditures, but rather that the claimant must have "a common law vested right on the effective date of this Act" (which is December 6, 2007). That language leaves open the question of when that vested right must have attached, and by its terms only requires that it must exist on the date that Measure 49 became effective. I also note that there can be a difference between acting in good faith, and "believing" that one is acting in good faith as that term is defined in the common law of vested rights. For the foregoing reasons, I find that the cut-off date for "good faith" is June 15, 2007. A closely related issue concerns when the applicant had notice of a proposed change in law. While I do not believe that actual notice is required, I address it here for completeness of the record.16 The applicant's Burden of Proof does not directly address the question of when the applicant became aware of the possible change in law under Measure 49. Staff subsequently 15 DR -07-12, at note 9 — "The legislative assembly adopted HB 3540, which referred Measure 49 to the voters on June 15, 2007. The referral was widely known, and was sufficient to put the holders of waivers on notice that a decision to proceed with development was at the claimants' own risk. I reject the applicants' assertion that at the earliest, the county should establish December 6, 2007 (the date Measure 49 became effective) as the cut-off date, because the applicant reasonably expected the measure to be challenged during the interim between voter approval and its effective date, and the applicants reasonably relied on advice from their attorney, Oregonians in Action and others that December 6, 2007 was the good faith "cut off' date. The case law on this, while relatively scant, leads to the conclusion that a -- — developer does -not have a good faith belief that a use is lawful if a court or legislative action, such as a referendum, has concluded otherwise. DLCD v. Curry County, 19 Or LUBA 237 (1990); see also County of Kauai v. Pacific Standard Life Insurance Company, 65 Haw 318, 653 P2d 766 (1982)(filing of petition to refer a development proposal to the voters is sufficient notice to the developer that further development is not in good faith.)" 16 As stated by Hearings Officer Anne Corcoran Briggs in a prior decision, the referral of Measure 49 to the voters on June 15, 2007 was "widely known, and was sufficient to put the holders of waivers on notice that a decision to proceed with development was at the claimants' own risk." See DR -07-12, at note 9. DR -07-13 (Hannan) Hearings Officer's Decision Page 11 of 14 asked the applicant for more detailed information concerning when the applicant became aware of Measure 49 (letter re Incomplete Application dated January 29, 2008), but no precise answer was received. However, in addressing good faith, the applicant's attorney noted in a reply letter dated January 31, 2008 "[a]fter receiving partition approval, the Hannan's continued to work with the surveyor to prepare the final plat. They understood that even if Measure 49 passed, they would have until December 56 to get vested." This statement certainly implies knowledge of Measure 47 by mid-June, 2007, when tentative partition approval was granted. At the public hearing, applicant Arletta Hannan, in response to questioning, indicated that she was aware of Measure 47 for an unspecified period of time, but was uncertain both as to its importance and the likelihood of its being passed by voters. I have no reason to doubt the applicant's testimony or her belief that she was proceeding reasonably and in good faith. However, I find it is reasonable to conclude that she had at least some general knowledge of Measure 47 throughout all or most of the period subsequent to June 15, 2007. I also find that even limited awareness means that the applicant's conduct is not proceeding in good faith, but rather an example of proceeding to take action on the basis of a risk calculation. b. The amount of money spent on developing the use in relation to the total cost of establishing the use. The applicant asserts that expenditures through December 6, 2007 must be considered for the ratio test. However, consistent with the Hearings Officers' decisions in DR -07-11, DR -07-12, DR -07-14 and DR -07-15, I find that only qualifying expenditures made prior to June 15, 2007 may be considered in comparing the ratio of expenditures to total costs of the project under the test described in Holmes. The rationale for this finding is developed more fully under the good faith discussion above. In considering qualifying expenditures, staff has recommended, and I agree, that costs associated with the applicant's Measure 37 filing, including litigation costs incurred to get a corrected property acquisition date, should not be included because those costs are not directly related to the application for a minor partition." Based on the foregoing criteria, I find that the following expenses totaling $4,098.75 are reasonably attributable to the applicant's minor partition and were incurred prior to June 15, 2007.18 Application Fee for 3 -lot partition (MP -07 —8) (March 1, 2007) Povey & Associates19 $1,605.00 $ 725.00 - In doing su I recognize the arguments advanced by counsel for the applicant, principally that a Measure 37 Waiver was essential to being able to proceed with the partition at all, but do not find that argument persuasive. In this regard, see also recent Hearings Officer decisions reaching the same conclusion in DR -07-11 (Bolken) and DR -07-14 (Miles)(note 10 — "...legal costs incurred to prosecute the applicant's Measure 37 claim are not to be included in the vested rights analysis"). 18 The expenses are drawn from applicant's Burden of Proof, the receipts attached thereto, and the supplemental documentation provided by the applicant's attorney by letter dated April 7, 2008. 19 Povey & Associates Invoice #0701-14 (dated 1/25/2007) for $40.00 and invoice #0702-18 (dated 2/25/2007) for $685.00. A review of additional invoices submitted shows them to be duplicates or for services/reimbursable expenses after June 15, 2007. DR -07-13 (Hannan) Hearings Officer's Decision Page 12 of 14 Professional Services (Bryant, Emerson & Fitch)20 $1.768.25 TOTAL $4,098.75 I also find that these qualifying expenditures go beyond mere preparation and would not be transferable to other uses. These are the only incurred costs that may be considered in the ratio analysis. On the issue of total development costs, the applicant argues that the costs of houses to be built on two of the parcels should not be included in determining the ratio of incurred expenditures to total project costs.21 The applicant cites Cook v. Clackamas County, 50 Or App 75 (1981) for the proposition that the cost of proposed homes should not be included. However, I concur with the Hearings Officer's decision in DR -07-11 (Bolken) that Cook is distinguishable because the development there was a mobile home park, not a subdivision or partition in which separate, permanent residences would be placed on individually owned lots or parcels. Staff believes and the hearing officer concurs that the use established under the Measure 37 waiver and subsequent partition is a three -lot partition with a dwelling on each vacant parcel. The Measure 37 waiver from the State of Oregon states in part, "In lieu of compensation under ORS 197.352, the State of Oregon will not apply the following laws to Ernest and Arletta Hannan's division of the 17.53 -acre property into three parcels or to their development of a dwelling on each parcel.... " As staff indicated, the costs of the dwellings as well as septics and wells for each new dwelling will be relevant to this determination. There is also legal opinion, including County Legal Counsel, that the cost of the dwellings constructed on the parcels needs to be factored into the determination of a common law vested right. For these reasons, I disagree 20 The following amounts are drawn from three invoices for professional services from Bryant, Emerson & Fitch submitted with applicant's response to the staff report dated April 7, 2008. The applicant's original Burden of Proof was accompanied by only one of those invoices (Re: 06 —598 Civil Litigation — State of Oregon), and asserted without clarifying documentation an amount for legal services of $9,066 "to attain entitlement for this partition" (see Burden of Proof at Page 7). The indicated sum did not correspond to the total charges on the invoice. In the applicant's response to the staff report, a different amount was claimed for legal services ($6.067.95), without explanation other than the attachment of the indicated invoices for three billing files. The claimed amount could not be clearly identified by reference to all or any of those invoices. An argument could be made to ignore all of the submitted legal expenses on the basis that they fail to meet applicant's burden of proof. However, the Hearings Officer reviewed the more detailed invoices submitted on April 7, 2008 and finds that some specific items from the litigation billing file and a second (land use) file appear to be directly related to the application to partition the property. Allowed expenses from the litigation file are two entries labeled "Draft burden of proof' dated 2/14/007 and 2/15/2007 in the amounts of $218.75 and $700.00, respectively. Allowed expenses from the land use file are dated 2/10/2007 ($90.00), 2/13/2007 ($70.00), 2/20/2007 ($175.00), 4/26/2007 ($33.75), 5/17/2007 ($262.50) and 5/22/2007 ($218.75). The total of these invoice entries is $1768.75. All other legal expenses are specifically rejected on the basis that they are related to obtaining Measure 37 waivers, unclear as to whether they relate to the application for partition (and therefore fail to meet the applicant's burden of proof), or are for services provided after June 15, 2007. 21 From the applicant's perspective, the only costs that should be considered are those in connection with obtaining approval of the application to partition the property and securing final plat approval of the partition plan. On that basis, the applicant asserts that all of the project costs have been incurred, and that, therefore, the ratio of expenditures to project costs is 100%. DR -07-13 (Hannan) Hearings Officer's Decision Page 13 of 14 with the applicant and see no reason to depart from the general rule identified in Webber v. Clackamas County, 441OR App 151, 155 n2, 600 P2d 448 (1979) that the cost of future dwellings should be included in the ratio test. This leaves one remaining cost issue: what cost to place on new dwellings to be located on the property. As the applicant points out, there is some difficulty in determining the cost of homes that might be built on the property. The applicant never provides specific information on the costs of constructing residences on two of the parcels created by the partition. Instead, the applicant's attorney simply asserts that "if one were to assume two double -wide manufactured homes were to be included on this site," the combined cost of those homes would be $200,000 ($100,000 each). Based upon this hypothetical figure, and utilizing an estimate of incurred costs of $19,755.55, the applicant's attomey concludes that the ratio of the amount already expended ($19,755.5) to total project cost ($219,777.75) establishes a ratio of 9%, somewhat better than the 7% (1:14 ratio) in Holmes. If necessary, I would find the costs of construction assumed by the applicant, and thus the total project cost, to be unreasonably low. It is not necessary to do so, however, because the record above shows actual qualified expenditures of only $4,098.75. For present purposes, I compare those qualified expenditures to the project costs assumed by the applicant ($219,777.75) and find the ratio of expenditures is approximately 1.86% (1:50). A ratio of 1:50 is not sufficient to demonstrate a vested right to partition the property or continue to develop it. IV. DECISION: For the reasons set out above, I conclude that the applicant does not have either a vested right at common law or a right by virtue of ORS 215.427(3) and ORS 215.130(5) to finalize the partition of this property. Because the applicant has not demonstrated a vested right to final partition plat approval, the applicant did not have a right to record the partition plat on December 10, 2007. Moreover, the applicant does not have the right to develop the property with two additional dwelling units or the right to convey any inchoate Measure 37 interests the applicanf'may have to third parties. Gerald G. Watson Hearings Officer THIS DECISION IS FINAL WITHIN 1-2 DAYS -OF-MAILING -UNLESS -APPEALED -TO-THE -- BOARD OF COUNTY COMMISSIONERS. DATED this lay of June, 2008 MAILED this day of June, 2008 DR -07-13 (Hannan) Hearings Officer's Decision Page 14 of 14 BRYANT EMERSON & FITCH, LLP Attorneys at Law June 26, 2008 Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97701-1925 rpyAt,t) JUN 2 6 Z008 DELIVERED BY: Ronald L. Bryant * Craig P. Emerson Edward P. Fitch Steven D. Bryant Michael R. McLane Michael W. Flinn Lisa D.T. Klemp Alison M. Trimble Tony E De Alicante * * Also admitted in Washington Re: Appeal Application of Ernest and Arletta Hannan - DR -07-13 Ladies/Gentlemen: Enclosed please find the Appeal Application filed on behalf of Ernest and Arletta Hannan as referenced above, as well as a Notice of Appeal and Request for Partial De Novo Hearing, and our check in the amount of $1,821.00 to cover the required fee. Appellant is obtaining the CD containing the hearing and will have it transcribed. Appellant anticipates they will be able to file the transcript within ten (10) days. If you have any questions, please advise. Thank you. (9,601 2, Ed h EPF/ Enclosures cc: Ernest and Arletta Hannan (w/encl.) G:\Clients\EPF\Hannan, Emest and Arletta\Hannan, Ernest & Arletta - LU\Deschutes County Appeal Ltr.6.25.08.WPD(mcm) SCANNED JUN 2 6 2008 888 S.W. Evergreen Ave. P.O. Box 457 Redmond, OR 97756-0103 (541) 548-2151 Fax (541) 548-1895 E-mail bef@redmond-lawyers.com w Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 http://www.deschi.ites.org/cdd APPEAL APPLICATION FEE: (222k EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. It is the responsibility of the Appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Appellant's Name (print): ERNEST AND ARLETTA HANNAN Phone: (541) 548-3293 Mailing Address: 4178 SW 58th, City/State/Zip: REDMOND,.: AOR • 97756 Land Use Application Being Appealed: Hearings Officer decision dated ,Tune 2n , 7ClOR cn Deri aratory Property Description: Township 15 Range 12 Section 25 Tax Lot 900uling Application :=V - Appellant's Signature --4 ' (DAA. EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 1/07 BEFORE THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY In re: Vesting Application of: ERNEST and ARLETTA HANNAN DR -07-13 NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING NOTICE OF APPEAL Comes now, ERNEST HANNAN and ARLETTA HANNAN and appeals the hearings officer's decision dated June 20, 2008, and mailed June 20, 2008, a copy of which is attached hereto as Exhibit A. The hearings officer erred in the following respects: 1. The hearings officers for Deschutes County adopted a "herd" mentality and all followed the same errors found in the original Briggs decisions. Some of the legal analysis in the Briggs decision has been superseded by later court cases, particularly the Court of Appeals opinion in the Burk case and Judge Alexander's decision in Clackamas County. Further, there is evidence that the Briggs decision was the result of ex parte contact and a request by the Planning Department to change her legal reasoning. That in and of itself calls into question the validity of the Briggs decision. 2. This 3 -lot partition is vested pursuant to the goalpost statute described in ORS 215.427(3). The hearings officer concluded that the goalpost statute only applies to approval of a land use application based upon the criteria in effect at the time the application was filed and does not extend to the development pursuant to that approval. The hearings officer is clearly wrong by the statutory language, the case law and in light of the interpretation and practice of local jurisdictions ofthe goalpost statute. The hearings officer's interpretation ofthe goalpost statute, and Page 1 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, UP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 his interpretation ofDLCD v. Corey is also in error. The hearings officer failed to take into account the decision of the Court of Appeals in the Burk case. 3. This partition is vested under common law as provided for in subsection 5(3) of Measure 49. The hearings officer erred by concluding that any expenses incurred after June 15, 2007, were noneligible. The statute is clear that vesting activity could occur up through December 6, 2007. Moreover, that interpretation, not only reasonable given the language of Measure 49, but has been interpreted that way by numerous jurisdictions, other hearings officers (Yamhill) and at least one circuit court (Clackamas). The issue here is not whether the applicant is absolutely correct in their interpretation that they had until December 6th to engage in vesting activity. The question here is whether or not it was reasonable for the applicant to conclude that they had until December 6, 2007, to engage in vesting activity. The hearings officer also erred in his analysis of the criteria of the common law vesting particularly in light of its reintroduction into the land use arena by reason of Measure 49 in the analysis of the factual basis of this case. 3. Ernest and Arletta Hannan further request that the Board allow a partial de novo hearing. The purpose of that de novo hearing would be as follows. The first is to allow confirmation that these expenses were, in fact, incurred and when. The second is to provide factual support that the conclusion that the goalpost statute applied not only to approval of an application based upon the criteria in effect at the time the application is filed, but also the development thereunder. This factual basis will be in the form of affidavits from various planning directors and counsel based upon conversations with the Deschutes County Planning staff. Finally, the applicant seeks to place into the record evidence of improper ex parte contacts. Page 2 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, UP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 I. STATUTORY VESTING The waivers issued by Deschutes County and the State of Oregon provided to the applicants a protected property interest in the waiver. Corey v. Department of Land Conservation and Development, 212 Or App 536, 159 P3d 327 (2008) citing Board of Regency of State Colleges v. Robb, 408 US 564, 577, 92 S. Ct. 2701, 33 L.Ed. 2nd 548 (1972). The decision in Corey did not clearly define the scope of interest a Measure 37 claimant had in a waiver. A claimant's property interest in a Measure 37 waiver is akin to an inchoate interest or a statutory license. An inchoate interest is defined in Blacks Law Dictionary as "an interest in real estate which is not a present interest, but which may ripen into a vested estate, if not barred, extinguished, or divested." This inchoate property interest was not transferable nor was it vested. However, this interest became a vested property right that was transferable upon the preparation and filing of a specific land use application consistent with all relevant land use standards; standards which took into account waivers of regulations as evidenced by orders issued by the State of Oregon and Deschutes County pursuant to ORS 197.352. The waiver right established by ORS 197.352(8) can also be described as a statutory license to proceed with a certain activity. For example, statutory licenses for the constructions of wharfs on navigable rivers has been described in a number of court cases. In Montgomery v. Shafer, 40 Or 245, 66 P 923 (1901), the Oregon Supreme Court noted that the right to construct a wharf pursuant to the statute (now ORS Chapter 780) constituted a license revocable at the pleasure of the legislature until acted upon. Once acted upon, however, the right for that license becomes vested. This propriety of this analysis was confirmed by the court in Port of Portland v. Reeder, et al, 203 Or 369, 288 P2d Page 3 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Emest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, us ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 324 (1965) and also cited in Brusco Towboat v. State Land Bd. , 284 Or 627, 589 P2d 712 (1978). By way of analogy, once the statutory license evidenced by waivers issued pursuant to ORS 197.352(8) has been exercised by the filing of a land use application, that statutory license which was permissive at first now becomes irrevocable and vested. The State of Oregon has maintained since the passage of Measure 37 that waivers are personal to the Measure 37 claimant. See, Opinion of theAttorney General, dated February24, 2005 (Rec. 273-280). However, the State has also recognized that once the property interest under a Measure 37 waiver becomes vested, it is transferable. See, Attorney General Opinion; See, Comments from the Attorney General to the Circuit Court in the case of Crook County v. All Electors, Crook County Circuit Court Case No. 08CV0015. In the Crook County case, the State made the following representation to the Circuit Court: It is not really the State's position that a waiver is never transferable, but under existing law there are existing statutes governing nonconforming uses and under the Court's decision under the vested rights principle when the development of a nonconforming use has reached a certain stage, the property owner is said to have acquired a vested right to continue the development and subsequently put the use to its intended function. (APP -5) In that case, Judge Neilson agreed that once a waiver became vested, it was transferable. Prior to 1983, common law was the only avenue in which land use development could be vested to withstand subsequent changes in the law. To establish a vested interest in a nonconforming use under common law, a person must cause either substantial construction to be made thereon or incur substantial liabilities relating directly thereto prior to the effective date of the regulation making such use nonconforming. Yokley Zoning Law in Practice, 4th Edition, pg. 15. In 1983, however, the Oregon Legislature passed House Bill 2295, which included the Page 4 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Emest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, up ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 provisions now codified under ORS 215.427(3), otherwise known as the "goalpost statute." The statute was intended to overturn the ruling in Gearhart v. Klamath County, 7 Or LUBA 27 (1982). Under this legislation, a person no longer has to cause either substantial construction or incur substantial liabilities in order to establish a vested interest in a particular use for that use to become nonconforming. To establish a vested use now, a person need only prepare and file an application for land use approval and meet all the substantive standards and criteria in effect at the time that application is filed. Since 1983, therefore, there have been two avenues to establish a vested property right in a particular use of property, one at common law and the other by statute. The Oregon State Bar Continuing Legal Education treatise on land use notes on page 12-18, the following: It must be noted that the rules of the vested rights game have been changed somewhat by the enactment of ORS 215.428(3) (now 215.427(3)) and 227.178(3). These statutes provide that approval or denial of a land use application `shall be based upon the standards and criteria that were applicable at the time the application was first submitted.' An applicant now has a form of vested right to a particular use solely because an application has been made assuming, of course, the standards in effect at the time of the application can be met. See Kirpal Light Satsang v. Douglas County, 96 Or App 207, 772 P2d 944 on recon., 97 Or App 614, rev.denied 308 Or 382 (1989) The standards and criteria in effect at the time the land use application for a 3 -lot partition was applied for by the applicants included State regulations and County regulations not specifically waived. The regulations not waived included those types of partition requirements which addressed health and safety issues, such as access, road widths, pavement, utilities, fire hydrants and clear vision, etc. The standards and criteria in effect at the time of this application also included the waiver of certain land use regulations effected since 1969 at both the State and local levels. As this Page 5 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, LLP V ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 court noted in Davenport, supra the term "standards and criteria" in ORS 215.427(3) is not limited to provisions that may be characterized as approval criteria in a local comprehensive plan or land use regulation. The court noted, the role that the terms play in the two statutes (ORS 227.178(3) and ORS 215.427(3)) is to assure both proponents and opponents of an application that the substantive factors that are actually applied and that have a meaningful impact on the decision, permitting or denying an application would remain constant throughout the proceedings. In the present instance, the standards and criteria included the waivers that were issued by the State of Oregon and by Deschutes County. To be consistent with ORS 215.427(3), therefore, the application of those standards and criteria, including those waived, must remain constant throughout the proceeding and subsequent development. This constancy was even acknowledged by the Department of Land Conservation and Development (DLCD) before the Land Use Board of Appeals wherein Richard Whitman on behalf of the DLCD noted "215.427(3) protects against changes in law." The basic premise of ORS 215.427(3), however, even as acknowledged by the State before LUBA, is that there must remain a constancy of application of the standards and criteria once a land use application is filed despite subsequent changes in the law. That constancy can only be maintained if this property right is deemed vested once an application is filed (assuming the application meets those standards). By operation of law, therefore, the applicants' protected property interest in his waiver, while perhaps at first an inchoate personal right or revocable license until exercised, became a vested property right or irrevocable license upon submittal of the application for land use approval. As a vested property right, that interest was transferable and could not be defeated by subsequent Page 6 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, us ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 legislative amendments to any of the standards and criteria that were in effect at the time the application was submitted. (See DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002) citing Phillips v. Washington Legal Foundation, 524 US 156, 118 S.Ct 1925, 141 L.Ed 2nd 174 (1998) wherein the court noted: "the evidence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law" Phillips at 164). In other words, a Measure 37 claimant has the same rights in a land use application as do non -Measure 37 claimants under ORS 215.427(3). A Measure 37 claimant cannot be treated any differently. Once the application is filed, it is vested by operation of law and cannot be divested as that inchoate property interest has now been transformed into a vested property right'. The hearings officer in the present case committed error by concluding that the goalpost statute only requires a City or County to approve an application based upon the criteria in effect as of the date the application is filed. He concluded that the goalpost statute does not require a City or County to allow development pursuant to that approval. The hearings officer's decision on this point is in error for four basic reasons. First, it is inconsistent with the statutory scheme. Indeed, in ORS 197.835, the goalpost statute is reinforced. In subsection 10(a), LUBA is required to reverse a local government decision if the Board finds the local government avoided the requirements of the goalpost statute. Second, it is inconsistent with the case law. In Gagnier v. City of Gladstone, 38 LUBA 858, 2000 WL 33288036 (2000), the Land Use Board of Appeals held that the City of Gladstone was 1 It seems clear that a zoning ordinance which seeks summarily to terminate an existing use is unlikely to accomplish that end. The probable result in any state will be that the intended affect will be nullified by narrow construction or that the ordinance will be declared invalid because it is retroactive and because it destroys a vested right." Andersons American Law of Zoning, 4th Edition, pg. 499. Page 7 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, UP p ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 required to issue a building permit under the goalpost statute and apply the same standards and criteria that were applicable at the time the underlying variance application was submitted. Third, the practice of both Deschutes County and other jurisdictions in Central Oregon has been consistent with the Gagnier, supra, case. That is, if a person applies for a land use application, even if it is just the day before a change in the land use ordinances is enacted, that application is grandfathered in under the goalpost statute and, assuming it is approved consistent with those criteria, development is allowed to occur consistent with that application and approval. Fourth, the hearings officer's position does not make any sense. Why would anyone spend the time, energy and money to obtain a land use approval that could not be used. That is the result of his reasoning that the goalpost statute only follows through to the point of approval, and that approval cannot be used for any development. That position just does not make any sense. The hearings officer found that the wavier is not the basis for the standards and criteria set forth in ORS 215.427(3). The hearings officer is in error. In MacPherson, supra, the Supreme Court noted that "an action by a governing body to modify, remove, or not ...apply certain such regulations in specific situations ... Measure 37 is in effect an amendment of the land use regulations in those particulars. See MacPherson, supra, page 132. The hearings officer appeared to claim that Measure 49 either amends or impliedly repeals ORS 215.427(3) insofar as the Measure appears to require a common law vesting. Such an interpretation would permit a subsequent legislative amendment to affect a current land use application that has already vested. Subsequent legislative amendments, however, cannot act as a defeasance of a vested property right or irrevocable license. (See DeMendoza, supra) Otherwise the government, at any time, could adopt legislation defeating vested rights whether established by Page 8 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPRI-lannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, us ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 operation of statute or by common law. Opponents may also argue that OAR 660-401-0060 (DLCD's temporary administrative rule for Measure 49) also negates this statutory vesting. In that rule, the DLCD attempts to "expire" all Measure 37 waivers as of December 6, 2007. This rule suffers the same fate as Measure 49. That is, the statutory rights of an applicant in a land use application pursuant to ORS 215.427(3) cannot be extinguished by subsequent legislation. This principle was affirmed by Judge Richardson of the Court of Appeals in Sunburst II Homeowners Assoc. v. City of West Linn, 101 Or App 458, 720 P2d 1213 (1990). Therein, he noted that Persons who file application before more restrictive legislation is adopted are entitled to have the earlier law applied to their applications. Otherwise, their rights under the pre-existing standards would be permanently nullified. Sunburst, supra at 461. The hearings officer relied upon two cases, one of which has been overturned insofar as the legal reasoning is concerned. The second did not even address the issue of statutory vesting. The first case is DLCD v. Jefferson County (the Burk case). LUBA overturned the Jefferson County Board of Commissioners finding that Mr. Burk' s death negated the application of the goalpost statute in Measure 37 cases in finding that there was a conflict between Measure 37 and the goalpost statute and that Measure 37 trumped it. The Court of Appeals reversed that reasoning. The Court of Appeals found that there was no conflict between Measure 37 and the goalpost statute and the two statutes could work in tandem. In the Burk case the court specifically found that Mr. Burk's death affected the legal underpinning of the goalpost statute. By inference, the court found that those people who remain alive will derive the benefits of the goalpost statute. The hearings officer failed Page 9 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, LLP p ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 to take into account the Court of Appeal's decision, presumably because it was issued only a couple of days before the hearings officer issued his decision. The hearings officer erred in concluding that Corey v. DLCD, a case dismissed by the Supreme Court, adjudicated the issue of statutory vesting. It did nothing of the sort. The question of statutory vesting under ORS 215.427 was not even an issue in the Corey case. The only court that has addressed the statutory vesting is the Court of Appeals in the Burk case and the reasoning in that case clearly supports a finding that statutory vesting is applicable in the present case. Moreover, the hearings officer fails to understand the issue regarding the goalpost statute. The issue is not the continuing viability of the Measure 37 waivers. The applicant agrees that the waivers in and of themselves, lost any continuing viability after Measure 49 was enacted. Those waivers, however, became part of the substantive criteria in the present case once the land use application was filed. This filing triggered independent statutory rights for the applicant pursuant to ORS 215.427. Those independent statutory rights of requiring the county to adjudicate the land use application and the development thereunder based upon the substantive criteria at the time the application was filed has nothing to do with the continuing viability of the waivers. It has to do with the independent statutory right of having those standards remain in effect. This is no different than the legal zoning standards which have changed from time to time by local jurisdictions. The continuing viability of a zoning standard will cease once it is changed. However, if a land use application is filed prior to that change, that land use application must be based upon the prior law, not the new law. Finally, there is a comprehensive statutory framework that supports reliance upon pre- existing substantive criteria for land use applications as well as approvals issued thereunder. For Page 10 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, LLP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 example, as a general rule, tentative plans are binding upon the counties for the purposes of preparation and review of final plats. (See Deschutes County Code, Section 17.16.090(B)) This binding effect for applicants in the substantive criteria and approvals continues not only through the approval process but also through the development of the property. Such is the case here. The applicant's vested statutory rights in that application and the substantive criteria continue not only through the approval but also through development. B. Common Law Vesting The factor or guidelines relevant to a vested right analysis are: (1) The good faith of the property owner in making expenditures to lawfully develop his property in a given manner; (2) The amount of notice of any proposed re -zoning; (3) The amount of reliance on the prior zoning classification in purchasing the property and making expenditures to develop the property; (4) The extent to which the expenditures relate more to the nonconforming use than to the conforming use; (5) The extent of the nonconformity of the proposed use as compared to the uses allowed in the subsequent zoning ordinances; (6) Whether the expenditures made prior to the subsequent zoning regulation show that the property owner has gone beyond mere contemplated use and has committed the property to an actual use which would in fact have been made but for the passage of the new zoning regulation; (7) The ratio of the prior expenditures to the total cost of the proposed use. Polk County v. Martin, 292 Or 69 at 81, citing Cable & Hauck, "The Property Owner's Shield, supra. Page 11 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, up ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 1. Good Faith. In Polk County, supra the Supreme Court, in citing the Willamette Law Journal article noted that the good faith factor focuses on whether or not the owner made expenditures in good faith to lawfully develop the property. In the present case there was never any notice of rezoning. The statute referred by the legislature noted that an applicant had until December 5th to make expenditures to establish a common law vesting. Many local jurisdictions, as well as persons in the development community, interpreted Measure 49 in that respect (e.g., Crook County, Jefferson County). Deschutes County staff, for example, facilitated expenditures and permits up through December 5th. Indeed, the legislature could have picked an earlier date as a cutoff date for consideration of investment activity which would contribute to the conclusion that a use has become vested. The legislature could have chosen the date of adjournment for the 2007 legislative session. The legislature could have picked the election date of November 6, 2007. Instead, the legislature affirmatively picked the effective date, i.e., December 6, 2007. The applicant certainly acted in good faith in relying upon that legislative choice in determining when investment in the use for purposes of determining a vested right would be cutoff. In reaction to this unusual language, many if not most, local jurisdictions determined that they would continue to process land use applications, permits, etc., up through the effective date of Measure 49. Indeed, many local governments specifically relied upon the December 6, 2007 date in which to determine the level of vesting. The State of Oregon has even weighed in and apparently has indicated the same. In the Measure 49 notices that were issued by the State, the State noted in its instruction sheet under Page 12 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Emest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, LLP p ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 vesting that Claimants who received a waiver prior to December 6, 2007, and begun development of the use described in the waiver may be able to continue and complete the use described in the waiver if they had done enough to create a common law vested right as of December 6, 2007. This language came from the Department which authored Measure 49. Attached to this memorandum is a copy of a hearings officer' s decision from Yamhill County concerning a 50 -lot subdivision that that hearings officer deemed vested. In that decision, the hearings officer noted: As noted, Section 5(3) of Ballot Measure 49 allows development of sues, when the right to "complete" or "continue" development of those uses "vested" prior to December 6, 2007. This and other text and context in the measure supports a conclusion that the "good faith" of the applicant in attempting to "complete" or "vest" her use prior to that date was encouraged by the measure itself. As complex as the rest of M49 is, the "common law vested right * * * to complete and continue" is contained in a single sentence that twice refers to the effective date of the act. This reading supports a conclusion that applicant was given until December 6, 2007 to continue her efforts to complete, or at least "vest" her uses. The legislature could just as easily have used June 15 or some other date if it meant to discourage or prevent property owners from continuing expenditures and efforts to "vest" their sues up to and including the effective date of the Act. This hearings officer's conclusion is certainly much more reasonable in light of the language in Measure 49. Similarly„ Judge Alexander in the case of Campbell v. State of Oergon and Clackamas County, CV 07120049 noted: Plaintiffs have acted in good faith. Anyone who claims to be able to predict the outcome of a vote on a ballot measure in Oregon should buy a Megabucks ticket. It was reasonable for plaintiffs to continue with development until Measure 49 actually became law If anything, the statement attributed to a key member of the Page 13 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Emest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, UP p ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 legislature would have induced plaintiffs to continue preliminary work on the site even if measure 49 should pass. The hearings officer in the present case concluded that any expenditures after June 15th were inappropriate. The hearings officer's conclusion in the Deschutes County case was clearly in error. The issue in this case is not whether December 6th is absolutely the correct date. The issue here is, in light of all these indicators, could the claimant have believed they were proceeding in good faith up to December 6th. The answer is unequivocally "Yes." 2. Mere Preparation The factors or guidelines to determine a vested right are very broad, very flexible with the goal of determining whether or not an owner had taken appropriate steps to dedicate the property to a lawful use and has expended considerable monies toward that end. Further, the reference in the form "guidelines" to "mere preparation of the land" refers to a 1972 Washington County case wherein without any land use application or approval an owner merely went out and cleared some brush and trees and then later claimed he had built an airport. The case as we have here is 180 degrees removed from that fact scenario. 3. All Expenditures are Attributable to the Development. Under current zoning the applicants could not partition this property. Under Measure 49, they could potentially get 1 additional parcel with a home. Neither of these potentially allowable uses would involve 99.9% of the expenditures incurred by applicant. These partitions would not require the road system. In fact, under Measure 49, the two parcels would have to be less than 2 acres in size and clustered adjacent to the road. These partitions would not involve the re -work of the irrigation system. None of these partitions would require the extensive survey work, engineering Page 14 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Emest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, up ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 work, laying out the 3 -lot partition. None of these partitions would require the level of work done for the land use applications in conjunction with this partition. There must be some element of common sense in this proceeding. No one would ask an engineer to draft up plans for a road system to serve 5 homes when all they could do is one parcel. No one in their right mind would engineer utility systems for 5 lots to achieve a partition for only one parcel. No one would drill wells and have septic system tests for 5 lots to achieve a partition of 1 more lot. 4. The Development as a Use of Land . When Measure 37 was adopted, the voters of Oregon approved a plan by which owners would either receive compensation or a waiver. The waiver is described in subsection 8 of ORS 197.352. Therein, governmental agencies are authorized to remove, modify or not apply offending land use regulations to allow the owner to use the land as they could have as of the date of their acquisition. This waiver would have been given as a form of compensation, rather than a cash amount. The State of Oregon has interpreted ORS 197.352(8) as allowing the State to authorize a use of the property such as described in the waivers in the present case. Those waivers authorize the claimants to develop the property into a 3 -lot partition for residential purposes. This use was then evidenced in the form of the land use application for the 3 -lot partition. It is a use allowed under current law, together with the amendments to those land use regulations exhibited in the waivers issued by Deschutes County and the State of Oregon. This use, then, that is a planned unit development, is a use authorized by both Deschutes County and the State of Oregon. Page 15 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, us ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 This use then can be preserved by vesting either under the statute (ORS 215.427(3)) or by reason of subsection (5)(3) of Measure 49, that is, establishing a common law vesting as of December 6, 2007. The claimants have satisfied this use and the vesting thereof under both avenues. This use of the property as a partition with streets, utilities, and residential parcels is, therefore, a use that can be vested by reason of either the statute or under common law. The cases cited by Central Oregon Land Watch are not particularly relevant. They concern subdivisions that were platted and not developed for decades. Platted but undeveloped subdivisions were under the court rulings in the 1970's deemed not to be continuing uses. In this case, the scope of the uses allowed under ORS 197.352(8) and preserved through 215.427(3) (which did not exist when the cases of Parks v. Tillamook Co. Comm./Spliid, 11 Or App 177, 501 P2d 85 (1972), or Columbia Hills v. LCDC, 50 Or App 483, 624 P2d 157 ((1981), is clear: it is the subdivision of 9 residential parcels with a road and utilities is vested. 5. Scope of Project The facts of this case shows that the owner articulated a defined and lawful use, to -wit: a 3 - lot partition with water wells and septic systems. The owner expended over $18,000 which represents approximately 100% of the total project cost for the partition. All of these costs were made in reliance upon a final decision by Deschutes County which authorized this use as lawful. There is no question that even under a vested rights analysis, this owner is entitled to proceed with the development to its fruition. Opponents in these vesting applications have argued that the costs of homes should be included. The construction of homes is not part of this partition application. This partition is to create lots which have the capability of having homes constructed on them. This concept of Page 16 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, LLP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 including the unknown price of homes comes from some discussion by Judge Tanzer in the case of Webber v. Clackamas County, 42 Or App 151, 600 P2d 448 (1979). However, in a subsequent case the Court of Appeals did not consider homes to be part of the ratio test. For example, in Cook v. Clackamas County, 50 Or App 75, 622 P2d 1107 (1981), the court evaluated the common law test in relation to some work done toward establishment of a mobile home park. In the Cook case, the court did not consider the cost of the mobile homes as part of the evaluation for the ratio test in establishing a vested right. Also, inclusion of cost of homes does not make sense in light of the history of Measure 37/Measure 49. Measure 37 was passed by the voters in November, 2004. A number of persons, including the claimants have filed written demands with the applicable governmental entities in 2005. However, there was an approximate 8 to 9 month period in which very little transpired under Measure 37 because of MacPherson, supra. As the Board knows, the Circuit Court in Marion County originally ruled Measure 37 to be unconstitutional. The State of Oregon did not process any claims during the time that was on appeal. Finally, in 2006, the Supreme Court overruled the Circuit Court and found Measure 37 to be constitutional. Because of that delay, there were very few, if any, subdivision in the State of Oregon that were approved under Measure 37 and under construction when the legislature considered Measure 49. By June, 2007, there were very few, if any, subdivisions in the State of Oregon where homes were under construction. It would be illogical to think that the legislature would provide a relief that was a sham. In other words, it would not be anticipated that the legislature could consider the cost of homes to be included in the common law vesting under Measure 37. One must remember that this vesting avenue under Section 5(3) of Measure 49 is an unusual mixture of both statutory and common law principles. The statute was Page 17 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, us ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 written in a form that if a person had done enough to obtain a form of common law vesting by the effective date, the Measure 37 claimant would be entitled to that relief for compensation. It would not be appropriate to find that the legislature wrote this with the intent that no one could qualify for this relief. Based upon the circumstances "on the ground" in Oregon in June, 2007, it would be an appropriate conclusion to find that those persons who in reliance and in compliance with the law had expended a considerable amount of money to pursue a qualified development under Measure 37 would be entitled to retain the benefit of that right as opposed to those who merely received waivers and did not take any action to pursue development thereunder. Finally, what cost is used? Opponents set one figure. The cost of homes could be as low as $100,000 (double wide manufactured homes). This practical element undermines a blanket figure for inclusion of the cost of homes. However, even with the inclusion of the cost of homes, this development is vested as the investment to December 6th was $218,618. $18,618 of the project cost were incurred. This results in an 11.74% ratio. Note: DATED this 'f day of June, 2008. Respectfully submitted, EDWARD P. FITCH, OSB 78202 Of Attorneys for Applicant Bryant, Emerson & Fitch, LLP P.O. Box 457, Redmond, OR 97756 Telephone: (541) 548-2151;Facsimile: (541) 548-1895 Efitch@redmond-lawyers.com Page 18 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, LLP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 Attachments (1) Hearings Officer decision (2) Court of Appeals Decision (3) Petitioner's Petition for Reconsideration (4) Deschutes County Code Section 17.16.090 (5) Affidavit of Edward P. Fitch (6) Affidavit of Jim Hendryx (7) Shown Decision (8) Hudspeth Decision (9) Judge Alexander's Decision Page 19 - NOTICE OF APPEAL AND REQUEST FOR PARTIAL DE NOVO HEARING G:\Clients\EPF\Hannan, Ernest and Arletta\Hannan, Ernest & Arletta - LU\Appeal to BOC.6.23.08.wpd(mcm) BRYANT, EMERSON & FITCH, LLP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 DECISION OF THE DESCHUTES COUNTY HEARINGS 0 X41` b. FILE NUMBER: APPLICANT/OWNE ATTORNEY: REQUEST: HEARING HELD: RECORD CLOSED: STAFF CONTACT: DR -07-13 Ernest and Arletta Hannan 4178 SW 58' Redmond, OR 97756 Ed Fitch P.O. Box 457 Redmond, OR 97756 An application for a declaratory ruling to determine whether the applicant has a common law vested right to continue the development of their three -lot . partition approved . under file no. MP -07-8. April 8, 2008 April 8, 2008 Ruth Wahl, Associate Planner L STANDARDS AND APPLICABLE CRITERIA: A. • Ballot Measure 49 (House Bill 3540), Oregon Revised Statutes Chapters 195, 197 B. Title 18, Deschutes County Zoning Ordinance, of the Deschutes County Code II. BASIC FINDINGS: A. LOCATION: The subject property consists of three platted parcels identified on County Assessor's Map 15-12-25 as tax lot 900. Note: The plat for the three -lot partition has been filed with the County Surveyor (PP2007-79 and recorded on 12-10-07). According to the staff report, the Cartographer had. not :updated -the -Assessor's Maps -at -the -time -of -the writing- of the staff report. S, ZONING: The subject property is zoned Exclusive Farm Use — Tumalo/ Redmond/Bend subzone (EFU-TRB) and Airport Safety (AS) Combining Zone. The property is designated agriculture by. the Deschutes County Comprehensive Plan. C. PROPOSAL: The application submitted is for a determination under Ballot Measure 49 whether this development is vested. The applicant submitted a burden of proof statement, and 14 exhibits attached to it, as part of the application. The purpose of the partition was to create two lots for the applicant's children to build homes on. The applicant has not applied for any building permits at this time. SITE DESCRIPTION: The subject property includes three parcels, all of which according to the Assessor's Office are under the ownership of Ernest and Arletta Hannan ("the applicant"). These parcels were created under a waiver of land use regulations under Ballot Measure 37 (State Claim # Mi 18516) and. County Waiver (Order No. 2005- 095). The applicant then proceeded with these waivers to apply for the partition of' the property (see MP -07-8) and final plat approved (see FPA -07-1). The subject property is generally level and is used for irrigated pasture to graze cattle. There is an irrigation canal that crosses the southwest corner of parcel 1 and a private irrigation easement, which bisects parcel .1 and crosses the southwestern corner of parcel 2. Parcel 1 is developed with two legally established single-family dwellings and parcels 2 and 3 are vacant. E. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the proposed declaratory ruling application (hearing) to12 public agencies, including DLCD. Staff received no responses. F. PUBLIC COMMENTS: The Planning. Division sent notice of the proposed declaratory. ruling application (hearing) to all property owners within 750 feet of the subject property on March 4, 2008. Staff received no comments prior to the hearing. At the hearing on April 8, 2008, no other parties appeared . to testify on the proposal other than the applicant. G. COMMUNITY DEVELOPMENT DEPARTMENT PERMITS: The applicant submitted land use applications and permit applications with .CDD, including costs, as follows: i Planning Fees: Application No. (Submittal Date) Application Description Application Fee Final Approval Date MP -07-8 (3-1-07) Application for partition • • a 3 lot $1,605.00 • June 22, 2007 FPA -07-31 (10-9-07) Final Plat Review $235.00 November 26, 2007 Total Fees $1,840.00 . —Development -Permit Fees: 1 Staff prepared the tabular material' above based upon receipts and invoices submitted by the applicant. Costs were also briefly summarized in the applicant's Burden of Proof (at page 7). Copies of receipts and invoices without further explanation were attached to the Burden of Proof statement. Indeed, most of the explanatory text on the 3 -page invoice for legal services was simply "whited-out." . The total amount asserted by applicant in the text of its Burden of Proof for all expenses was $18,623.00. That differs somewhat. from the total figures above summarized by staff ($21,570.85). •Moreover, the allocation of those costs, particularly the amount attributable to legal (professional) fees differs substantially between the Burden of Proof ($9,066.00) and amounts as calculated by Staff ($6,067.95). DR -07-13 (Hannan) Hearings Officer's Decision :Page 2 of 14 Parcel Number .. Permit Nos. (Submittal Date) Fees Total Fees SW 8421 (driveway access permit) $55.00 2 (11-19-07) F 23530 (site evaluation) $515.00. $570 SW 8422 (driveway access permit) • $27.50 (11-19-07). 3 F 23531 (site evaluation) ' $515.00 $54250 Tax Penalty for removal from deferral . $1,605.60 Recording fee for Farm and Forest Management $41.00 Easement Central Oregon District Irrigation Plan $150.00' Central Oregon Irrigation District, _ Record $46.00 Irrigation Contract Povey and Associates, Land Surveying $4,003.90 Povey and Associates, Land Surveying $1,040.00 Povey and Associates, Land Surveying $40.00 GENERAL TO ALL Povey and Associates, Land Surveying $555.00 PARCELS Povey and Associates, Land Surveying $720.00 Povey and Associates, Land Surveying $2,603.90 Deschutes County, Surveyors plat check $560.00 Central Oregon Irrigation, Signature Fee $750.00 Deschutes County Road Department $175.00 Bryant, Emerson & Fitch, Professional Services $6.067.95 Deschutes County Recording ...... $260.00 Total $18,618.35 Fees: . DR -07-13 (Hannan) Hearings Officer's Decision Page.3 of 14 Pursuant to a staff request for additional information concerning project expenditures, the applicant submitted a supplemental explanation with additional supporting documentation by letter dated April 7, 2008! H. LOT OF RECORD: The subject property was platted into 3 parcels. The partition plat was recorded with the County Clerk's Office on December 10, 2007. The validity.of that partition and the plat is at issue in this proceeding. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. Introduction This applicationfor a vested rights determination requires ruling on three aspects of this development: (1) Confirmation that the 3 lots created by the partition plat recorded on December 10, 2007 pursuant to Measure 37 waivers are legally created parcels; (2) A determination whether the parcels (developed or undeveloped) may be conveyed to third persons; and (3) A determinationthat dwellings maybe constructed on two of the three:parcels.3 These issues are implicit, if not always explicit, in the applicant's burden of proof statement and additional materials submitted in support of their application. The applicant advances two primary arguments on behalf of the applicant's request for a Declaratory Ruling that they have the right to partition and develop the property. First, the applicant argues that the development is already "grandfathered in" by virtue of being a lawful use under ORS 215.427(3) (the "goalpost" rule) that can. be continued under ORS 215.130(5)4 2 In that letter, the applicant's attorney used and appears to accept the figure previously utilized by staff for Professional Services ($6,067.95), although he attached additional invoices for legal services (apparently for three different client billing files) without explanation asto which legal fees in those statements specifically related to this matter. The Hearings Officer notes that the total fees for professional services on those invoices substantially exceed the amount identified as "legal costs" in the "Summary of Costs" at Page 9 of the letter dated April 7, 2008.. The only legal expenses specifically asserted by applicant as relevant to determining expenses incurred on behalf of this application are all associated with the civil litigation against the State of Oregon in connection with the Measure 37 waiver. -For -reasons explained more fully -in -the text of this -decision, 'the -Hearings Officer- rejects those -fees- att 'but ble to ob1auung the applicant's Measure 37waiver, mcluding those fees related to litigation 'with the state of Oregon over the date of property acquisition, because they are not directly connected to applicant's current request to partition property into three parcels. Although the Hearings Officer, as indicated above, rejects those expenses as appropriate costs here, the Hearings Officer reviewed the two, other statements submitted with the Letter of April 7, 2008, for appropriate expenditures. Those legal expenses deemed appropriate are included in the analysis elsewhere in this Decision. s Two existing dwellings will remain on Parcel 1. The proposal calls for construction of an additional dwelling to be constructed on each of Parcels 2 and 3. 4 Applicant's argument in the Burden of Proof is organized into three sections, the lastof which seeins to simply repeat the argument for grandfathering under ORS 215.427(3) . and ORS 215.130(5), providing DR -07-13 (Hannan) Hearings Officer's Decision Page 4 of 14 Second, the applicant argues that the development approved by Deschutes County pursuant to Measure 37 waivers (codified as ORS 197.352 in .2005) issued by Deschutes County and the State of Oregon has had sufficient investment to vestunder the common law principles in Oregon law. The applicant asserts that development rights have vested even if Section 5(c) of Measure 49 (2007) has an impact on land use applications based on Measure 37 waivers. My analysis of these arguments begins with a brief summary of the factual background and a synopsis of legal and equitable principles at issue. Following the review of legal and equitable principles, I apply the facts to each of the legal principles and explain why I conclude that the applicant does not have a vested right to develop this property under the Measure 37 waivers. B. Factual Background The applicant applied for Measure 37 waivers in May 2005 to allow a 17.53 -acre property near Redmond, Oregon to be partitioned into three parcels. Those waivers were granted byDeschutes County in early 2006 and by the State of Oregon on January 19, 2007.. Upon receipt of the waiver from the State of Oregon, applicant proceeded to file an application for a minor partition. (MP -07-8) with Deschutes County. That . application was submitted on March 1, 2007. Under the application, the largest parcel (Parcel 1 - approximately '7.53 acres) would contain the two existing residences, while two .5 -acre parcels :(Parcel 2 and Parcel 3) were proposed. to be developed .with one additional residence each. A hearing was held on May 22; 2007 and written approval was issued on June 12, 2007 (approval was final after expiration of the appeal period on or about June 24, 2007). The final plat was recorded on or about December 10, 2007, after being approved by Deschutes County on November 26, 2007. C. Legal Background — Measure 49 and Vested Rights Recently Hearings Office Anne Corcoran Briggs issued decisions in several declaratory rulings applying the provisions of Measure 49 and common lawvested rights. In these decisions, the Hearings Officer described the legal context for determining vested rights under Measure 49 and gave careful consideration to the application of ORS 215.427(3), ORS 215.130(5) and Measure 37 (ORS 197.352). I agree with this legal analysis and quote it verbatim here:5 "Legal Principles 1. Measure 37. Oregon voters approved Measure 37 in 2004. Measure 37, which is codified in state law at ORS 197.352(2005), created a cause of action whereby property owners could obtain compensation or waivers from land use regulations that were adopted after the claimants acquired their property if the regulations reduced their property values. Claims were some limited additional information on specific costs incurred by the applicant. I regard these three sections as essentially stating twoarguments as identified above. 5 See, decisions by Hearings Officer Anne Corcoran Briggs in DR -07-12 (Harry)(2008) and DR -07-14 (Miles)(2008). See also, the decision by Hearings Officer Kenneth D. Helm in DR -07 —11 (Bolken)(2008), which quotes verbatim and with approval the legal analysis in the Briggs decisions. DR -07-13 (Hannan) Hearings Officer's Decision Page 5 of 14 submitted to local governments and to the state, which evaluated the claims and, for the most part, approved waivers to the. devaluing regulations. Once property owners received waivers from the county .and/or state, the property owners applied for land development approvals that effectuated developments permitted under the waivers. Between December 2004 (the date Measure 37 became effective) and December 2007 (the date Measure 49 became effective), processing of the Measure 37 claims was interrupted by appeals. As a result, . many Measure 37 claims lapsed, or were not finalized in a land use decision on the Measure 37 land use application.6 2. Measure 49. In Spring 2007, the Oregon legislature referred Measure 49 to the voters. Measure 49 was billed as a "modification" to Measure 37, butin fact severely circumscribes both the nature and extent of development that can be approved under Measure 37 waivers. For instance, Measure49 allows only limited residential development on land that was otherwise available for any number of lots and activities. In addition, Measure 49 requires that the. waivers granted under Measure 37 be re-evaluated by the. Oregon Department of Land Conservation and Development ("DLCD" or "Department.") The Department must decide whether the estimated loss in value asserted in the initial Measure 37 claims is supported by a uniform methodology for calculating loss in. value. In addition, the Department must work with property owners to determine whether the claimants will receive an "express" waiver, which permits the development of up to three parcels and three new dwelling units on property held by the claimants, or whether the claimants are entitled to develop up to ten dwelling units on ten new lots. It is generally understood that few, if any, of the claimants will be entitled to develop ten dwelling units. Por those property owners who received Measure 37 waivers and who have a "common • law vested right" to develop as of December 6, 2007, development may continue under the Measure 37 waivers and the claimants need not receive a supplemental approval under Measure 49. See Measure 49, Section 5(3). 3. .ORS 215.130(5). This statute allows property owners to continue nonconforming uses and structures on properties, so long as the uses and structures are not altered or abandoned. Further, ORS 215.130(5) permits changes in ownership and occupancy without forfeiting the right to the nonconforming use.7 4. ORS 215A27 (Goalpost Rule). 6 Measure 37 claims that were pending or on appeal as of the effective date of Measure 49 are now moot. Frank v. Department of Land Conservation and Development, Or App (CA A134704, January 23, 2008). . 7ORS 215.130(5) provides, in relevant part: The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued. * * * A change of ownership or occupancy shall be permitted." DR -07-13 (Hannan) Hearings Officer's Decision Page 6 of 14 ORS 215.427(3)(a) provides: "If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the county has a comprehensive plan and land use regulations acknowledged under ORS .197.251,. approval or denial shall be based upon the standards and criteria that were applicable at the time the application was first submitted." . The type of vesting provided for in ORS 215.427(3)(a) is known as "an early vesting rule:" Its purpose is to establish a bright line standard from the onset, so that the parties to a land use application understand which applicable approval standards will govern the review of the application. In DLCD v. Jefferson County (Burk), Or LUBA _ (LUBA No. 2007-177, January 24, 2008), appeal pending _ Or App (2008), LUBA held that - the provisions and limitations of Measures. 37 and 49 supersede ORS 215.427(3)(a), where an applicant dies prior to a decision on a Measure 37 land use application. Under, the reasoning in Burk, only the claimant/applicant has the right to proceed with a Measure 37 land use application, because Measure 37 rights are personal to the claimant. 5. Common Law Vested Rights. "Vested rights" refers to the equitable principle that .a party has the right to develop property notwithstanding the adoption of more restrictive land use regulations, if the party demonstrates that it has commenced the development in good faith.8 In Clackamas County v. Holmes, 265 Or. 193, 508 P2d 190 (1973)(Holmes), the Oregon Supreme Court identified factors to be considered when analyzing expenditures made in reliance on an assumed development approval to decide (after the fact) whether a project has vested.. The Court adopted a requirement that includes consideration of the ration of expenditures incurred to the total costs of the project, but also included consideration of other factors. The Court held: "We believethat the ratio test should be only one of the factors to be considered. Other factors which should be taken into consideration are the good faith of the landowner, whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements, the types of expenditures, i.e., whether the expenditures have any relation to the completed project or could apply to various other uses of the land, the kind of project, the location and ultimate cost. Also, the acts of the landowner should rise beyond mere contemplated use or preparation * * *." Holmes, 265 Or at 198-99. Over the years, the Holmes analysis has been refined somewhat. In Union Oil Co. Board of Co. Comm. of Clack. Co.,- 81 Or App 1, 724 P2d 341 (1986), the Oregon Court 8 The Oregon Court of Appeals has described "vested rights" as "inchoate nonconforming uses." See Fountain Village Dev. Co. v. Multnomah County, 176 Or App 213, 221, 31 P3d 458 (2001). DR -07-13 (Hannan) Hearings Officer's Decision Page.7 of 14 of Appeals held that not all Holmes factors will come into play in all cases, and that when they do, different weight maybe accorded to those factors. In addition: a. Where a _development includes both a land division and the development. of dwellings, the ratio test must include costs related to both. Webber v. Clackamas County, 42 Or App 151, 155.n 2, 600 P2d 448 (1979). b. The ratio test should not include the property purchase price unless there is evidence that the buyer/developer paid a premium to develop the site for the particular use it now seeks to vest. Union Oil Co. v. Board of Co. Comm. of Clack. Co., 81 Or App at 7. c. Costs. must be incurred based on lawful permits. DLCD v. Curry County, 19 Or LUBA 237 (1990) (holding that costs incurred after Supreme Court Overturned county approval are not to be considered in vesting analysis); Lung v. Marion County, 21. Or LUBA 302 (1991)(expenditures incurred to develop landscaping business cannot be included because they were incurred without land use approvals); Crone v. Clackamas County, 21 Or LUBA 1992 (1991)(expenses incurred to partition parcel could not be considered where applicant had not applied for partition approval.). d. Site preparation, engineering fees,. and attorney fees incurred_ in obtaining development approvals are allowable expenses to consider under the ratio test. Cook v. Clackamas County, 50 Or App 75,84, 622 P2d 1107 (1981). e... • By themselves, land use approval and building permits for a: development do not create a vested right to develop that particular, use. Twin Rocks Watseco Defense Committee' v. Sheets, 15 Or ..App 445 (1973); Columbia Hills Development Co. v.. Land Conservation and Development Commission, 50 Or App 483, 624.. P2d 157 (1981); and Mason v. Mountain River Estates, Inc., 73 Or . App 334, 698 P2d 529 (1985).9 • f. Expenditures that commit the property to the particular use contemplated by the developer may be included in the ratio analysis. Conversely, expenditures that can be applied to other allowed uses may not be considered to be directed toward the purported vested right. Eklund. v. Clackamas County, 36.Or App 73, 583 P2d 567 (1978)(developer allowed to include costs to develop water system . on site, because the water system was .directly related to residential subdivision, 9 Twin Rocks and Columbia Hills were decided prior to the adoption prior to ORS 215.427 or its predecessor statute, ORS 215.428. Mason was based on local code provisions that were adopted in 1980, also prior to the adoption of the goalpost statute. Therefore, it is not clear whether those holdings have the same precedential value in light of the goalpost statutes. See Kirpal Light Santsang:v. Douglas County, 18 Or LUBA 651 (1990) on remand from Court of Appeals, 96 Or App 207, 772 P2d 944 (1989)(based on ORS 215.428, an application to construct a boarding school and associated buildings" submitted seven days before the standards changed must be reviewed against the standards in place at the. time the application was submitted, and not against the later -adopted conditional use standards.) . DR -07-13 (Hannan) Hearings Officer's. Decision Page 8 of 14 and not to the agricultural uses of the property allowed by the zoning); Webber v. Clackamas County, 42 Or App at 155 (where water system could be used to serve 5 -acre parcels, applicant could not include costs incurred to install the water system to:serve one-half acre lots.)" D. . Application of Vested Rights rules to the Facts of this Application • 1. Oregon Revised Statutes 215.427 and 215.130 In a letter dated April 7, 2008, the applicant argues that "[t]he waivers issued by Deschutes -County and the State of Oregon provided to Mr. And Mrs. Hannan a protected property interest in the waiver." The applicant cites to a recent Court of Appeals decision in support. of that proposition. Corey V. Department of Land Conservation and Development, 212 Or App 536, 159 P3d 327 (2008) citing Board of Regency of State 'Colleges v. Robb, 408 US 564, 577, 92 S. Ct. 27.01, 33 L.Ed.2nd 548 (1972). Based on this assertion, .the applicant further argues :that ORS 215.427(3) vests the right to complete the proposed partition under the "standards and criteria" that were "applicable at the time the application was first submitted, including the Measure 37. waivers issued by the State of Oregon and by Deschutes County. The applicant's reliance on the Court of Appeals decision in Corey is misplaced; dueto the subsequent Oregon Supreme Court decision in Corey v. DLCD, _ Or _ (S0554995, May 8, 2008). In that decision, the Supreme Court stated: In the end, we hold only that plaintiffs' . contention that Measure '49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers—and all orders disposing of Measure 37 claims—of any continuing viability, with a single exception that does not. apply to plaintiffs' claim. Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. The Oregon Supreme Court's decision in Corey v. DLCD clearly rejects the argument that a measure 37 waiver provides land use applicants with a protected property .interest that is unaffected by. Measure 49.10 As the court stated, Measure 49 deprives Measure 37 waivers of "any continuing viability, with'. a single _ exception." The "single exception" referred to by the court is when the applicant has a "common law vested right" to proceed." Based on all of the foregoing, I find that the applicant's Measure 37 waivers from DLCD and the Deschutes County Board. of Commissioners have no legal effect, except to the extent, if any, that to Deschutes County Hearings Officer Kenneth D. Helm recently reached the same conclusion concerning the continuing validity of Measure 37 waivers in DR 07-11 (Bolken), noting that "the Oregon Supreme Court conclusively dismissed this same argument in Corey v. DLCD, Or (S0554995, May 8, 2008)." 11 See also, the decision by the Land Use Board of Appeals in Department of Land Conservation and Development v. Jefferson County, LUBA No. 2007-177, issued on January 24, 2008) rejecting the application of ORS 215.427(3) subsequent to the adoption of Measure 49 based on the "later controls the. earlier" maxim of statutory construction. DR -07-13 (Hannan) Hearings Officer's Decision Page 9 of 14 the applicant has a common law vested right to proceed. I also find that these waivers themselves cannot constitute "standards ..and criteria" under ORS 215.427(3) and that ORS 215.130 is not directly applicable in this case since any direct application of the statute would presume what is to be established here; i.e., a "lawful use."12 Therefore, I find that the applicant does not have the right after December 6; 2007 to .complete the proposed partition or further develop the property by application. of ORS 215.427(3) and ORS 215.130(5). 2. Common Law Vested Right (Section 5 of Ballot Measure 49) Section 5 of Measure 49 provides the exclusive means for completing development pursuant to waivers granted under Measure 37. Section 5(3) of Measure 49 states: A claimant that filed a claim under [Measure 37]***is entitled to just compensation as provided in***a waiver issued before [December 6; 2007] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right [as of December 6, 2007] to complete and continue the use described in .. the waiver.13 The determination of a vested . right requires the application of the method identified in Clackamas County v. Holmes and subsequent vested rights cases as discussed above?' The most critical issues that need to be addressed are the ratio of qualifying expenditures to total project cost, the good faith of the property owner, and' whether -the property owner had notice of the .proposed change in law before beginning development. These issues are closely intertwined. Calculating qualifying expenditures ultimately requires :determination of the cut-off .date for good faith expenditures, which in turn is based upon the actual, imputed or presumed knowledge of the property owner about the possible prospective adoption of Measure 49. a. The good faith of the property owner and notice of the proposed change in law 12 Staff expressed the view in the: Staff Report that "ORS 215.130 is not directly applicable in this case." I concur in that analysis. 13 Staff summarizes this provision as requiring the following to be met: (1) the claimant under Measure 37 must still have an interest in the property; (2) the use of the property must comply with state and county waivers, and therefore, the County Measure 37 -related land use permit; and (3) the applicant must demonic rate a common law vested right to complete and continue the use. To the extent that it may be necessary to make a finding with regard to these matters, the Hearings Officer concurs with staff and fords that the first two criteria above are satisfied, subject to the vested rights analysis below. 14 That method involves consideration of the following six factors: (1) the amount of money spent on developing the use in relation to the total cost of establishing the use; (2) the good faith of the property owner; (3) whether the property owner had notice for the proposed change in law before beginning development;. (4) whether the improvements could be used for other uses that are allowed under the new law; (5) the kind of use, location and cost of the development; and (6) whether the owner's acts rise beyond preparation (exclude activities/expenses-such as land clearing, planning, architectural drawings, site evaluations). DR -07-13 (Hannan) Hearings Officer's Decision . � Page 10 of 14 On the question of good faith, the applicant asserts that at the earliest, the county should establish December 6, 2007, the date Measure 49 became effective, as the good faith"cut off' date. In support of that position, the applicant makes three basic. arguments. First, he states "the statute referred by the legislature noted that an applicant had until December 5th to make expenditures to establish a common law vesting." Second, he points out that the legislature could have selected a different date, Third, he notes that local governments continued to. process land use applications and permits through the effective date of Measure 49. He concludes as follows: "The issue in this case is not whether December 6th is absolutely the correct date. The issue here is, in light of all. these indicators; "could the claimant have believed she was proceeding in good faith up to December 6th. The answer is unequivocally "Yes." I concur with the Hearings Officers' decisions in DR -07-12 (Harry), Dr -07-14 (Miles) and DR- 07-11 (Bolken) that June 15, 2007, the date the legislative assembly adopted HB 3540 referring. Measure 49 to the voters, is the appropriate "cut off' date for the reasons set forth by Hearings Officer Anne Corcoran Briggs in .DR -07-12 on this point.15 I would simply add that the language of Measure 49 does not specifically state that an applicant has until December 5th to. make expenditures, but rather that the claimant must have "a common law vested right on the effective date of this Act" (which is December 6, 2007). That language leaves open the question of when that vested right must have attached, and by its terms only requires that it must exist on the date that Measure 49 became effective. I also note that there can be a difference between acting in good faith, and "believing" that one is acting in good faith as that term is defined in the common law of vested rights. For the foregoing reasons, I find that the cut-off date for "good faith"" is June 15; 2007. A. closely related issue concerns when the applicant had notice of a proposed change in law. While..I do not believe that actual notice is required, I address it here for completeness of the record.16 The applicant's Burden of Proof does not directly address the question of when the applicant became aware of the possible change in law under Measure 49. Staff subsequently 15 DR -07-12, at note 9 "The legislative assembly adopted HB 3540, which referred Measure 49 to the voters on June 15, 2007. The referral was widely known, and was sufficient to put the holders of waivers on notice that a decision to proceed with development was at the claimants' own risk. I reject the applicants' assertion that at the earliest, the county should establish December 6, 2007 (the date Measure 49 became effective) as the cut-off date, because the applicant reasonably expectedthe measure to be challenged during the interim between voter approval and its effective date, and the applicants reasonably relied on advice from their attorney, Oregonians in Action and others that December 6, 2007 was the good faith "cut off" date. The case law on this, while relatively scant, leads to the conclusion that a developer does not have a good faith belief that a use is lawful if a court oflegis ahvtion, such as a referendum, has concluded otherwise..DLCD v.. Curry County, 19 Or LUBA237 (1990); see also County of Kauai v. Pacific Standard Life Insurance Company, 65 Haw 318, 653 P2d 766 (1982)(filing of petition torefer a development proposal to the voters is sufficient notice to the developer that further development is not in good faith)" 16 As stated by Hearings Officer Anne Corcoran Briggs in a prior decision, the referral of Measure 49 to the voters on June 15, 2007. was "widely known, and was sufficient to put the holders of waivers on notice that a decision to proceed with development was at the claimants' own risk." See DR -07-12, at note 9. DR -07-13 (Hannan) Hearings Officer's Decision Page 11 of 14 asked the applicant for more detailed information concerning when the applicant became aware of Measure 49 (letter re Incomplete Application dated January 29, 2008), butno precise answer was received. However, in addressing good faith, the applicant's attorney noted in a reply letter dated January 31, 2008 " [a]fter receiving partition approval; the Harman's continued to work with the surveyor to prepare the final plat. ' They understood that even if Measure 49 passed, they would have until December 5th to get vested." This statement certainly implies knowledge of Measure 47 by mid-June, 2007, when tentative partition approval was granted. At the public hearing, applicant Arletta Hannan, in response to 'questioning, indicated that she was aware of Measure 47 for an unspecified period of time, but was uncertain both as to its importance and the likelihood of its being passed by voters. I have no reason to doubt the applicant's testimony or her belief that she was proceeding reasonably and in good faith. However, I find it is reasonable to conclude that she had at least some general knowledge of Measure 47 throughout all or most of the period subsequent to June 15, 2007. I also find that even limited awareness means that the applicant's conduct is not proceeding in good faith, but rather an example of proceeding to take. action on the basis of a risk calculation. b. The amount of money spent on developing .the use in relation to the . total cost of establishing the use. The applicant asserts that expenditures through December 6, 2007 must be considered for the ratio test. However, consistent with the Hearings Officers' decisions in DR -07-11, DR -07-12, DR -07-14 and DR -07-15, I find that only qualifying expenditures made prior to June 15, 2007 may be considered in comparing the ratio of expenditures to total costs of the project under the test described in Holmes. The rationale for this finding is developed more fully under thegood faith discussion above In considering qualifying expenditures, staff has recommended, and I agree, that costs associated with the applicant's Measure 37 filing, including litigation costs incurred to get a corrected property acquisition date, should not be included because those costs are not directly related to the application for a minor partition.17 . Based on the foregoing criteria; I find that the following expenses totaling $4,098.75 are reasonably. attributable to the applicant's minor partition and were incurred prior to June 15, 2007.18 Application Fee for 3 -lot partition (MP -07 —8) (March 1, 2007) Povey & Associates19 $1,605.00 $ 725.00 17 In doing -so, I recogni the arguments advanced by counsel for the applicant, pnncipally that a Measure 37 Waiver was essential to being able to proceed with the partition at all, but do not find that argument persuasive. In this regard, see also recent Hearings Officer decisions reaching the same conclusion in DR -07-11 (Bolken) and DR -07-14 (Miles)(note 10 — "...legal costs incurred to prosecute the applicant's Measure 37 claim are not to be included in the vested rights analysis"). 18 The expenses are drawn from applicant's Burden of Proof, the receipts attached thereto, and .the supplemental documentation provided by the applicant's attorney by letter dated April 7, 2008. 19 Povey & Associates Invoice #0701-14 (dated 1/25/2007) for $40.00 and invoice #0702-18 (dated 2/25/2007) for $685.00. A review of additional invoices submitted shows them to be duplicates or for services/reimbursable expenses after June 15, 2007. DR -07-13 (Hannan) Hearings Officer's Decision . . Page 12 of 14 Professional Services (Bryant, Emerson & Fitch)2° $1,768.25 TOTAL $4,098.75 I also find that these qualifying expenditures go beyond mere preparation and would not be transferable to other uses. These are the .only incurred costs that may be considered in the ratio analysis.. On the issue of total development costs, the applicant argues that the costs of housesto be built on two of the parcels should not be included in determining the ratio. of incurred expenditures to total project costs.21 The applicant cites Cooky: Clackamas County, 50 Or App 75 (1981) for the proposition that the cost of proposed homes should not be included. However, I concur with the Hearings Officer's decision in DR -07-11.. (Bolken) that Cook is distinguishable because the development there was . a mobile home park, nota subdivision or partition in which separate, permanent residences would be placed on individually owned lots or parcels. Staff . believes and .the hearing officer concurs that the use established under the Measure 37 waiver and subsequent partition is a three -lot partition with a dwelling on each vacant parcel. • The Measure 37 waiver froth the State of Oregon states in part, "In lieu of compensation under ORS 197.352, the State of Oregon will not apply the following laws to Ernest and Arletta Hannan's division of the 17.53 -acre property into three parcels or to their development of a dwelling on each parcel...." As staff indicated, the costs of the dwellings as well as septics and wells for each new dwelling will be relevant to this determination. There is also legal opinion, including County Legal Counsel, that the cost of the dwellings constructed on the parcels needs to be factored into the determination of a common law vested right. For these reasons, I disagree 20 The following amounts are drawn from three invoices for professional services from Bryant, Emerson & Fitch submitted with applicant's response to the staff report dated April 7, 2008. The applicant's original Burden of Proof was accompanied by onlyone of those invoices (Re: 06 —598 Civil Litigation — State of Oregon), and asserted without clarifying documentation an amount for legal services of $9,066 "to attain entitlement for this partition" (see Burden of Proof at Page 7). The indicated sum did not correspond to the total charges on the invoice. In the applicant's response to the staff report, a different amount was claimed for legal services ($6.067.95), without explanation other than the attachment of the indicated invoices for three billing files. The claimed amount could not be clearly identified by reference to all or anyof those invoices. An argument could be made to ignore all of the submitted legal • expenses on the basis that they fail to meet applicant's burden of proof. However, the Hearings Officer reviewed the more detailed invoices submitted on April 7, 2008 and finds that some specific items from the litigation billing file and a second (land use) file appear to be directly related to the application to partition the property. Allowed expenses from the litigation file are two entries labeled "Draft burden of proof' date�ic /14/007 a3T2/15/2007 In the amounts of $218.75 and170-0.00, respectively. •Allowed expenses from the land use file are dated 2/10/2007 ($90.00), 2/13/2007 ($70.00), 2/20/2007 ($175.00), 4/26/2007 ($33.75), 5/17/2007 ($262.50) and 5/22/2007 ($218.75). The total of these invoice entries is $1768.75. All other legal expenses are specifically rejected on the basis that they are related to obtaining Measure 37 waivers, unclear as to whether they relate to the application for partition (and therefore fail to meet the applicant's burden of proof), or are for services provided after June 15, 2007. 21 From the applicant's perspective, the only costs that should be considered are those in connection with obtaining approval of the application to partition the property and securing final plat approval of the. partition plan. On that basis, the applicant asserts that all of the project costs have been incurred, and that, therefore, the ratio of expenditures to project costs is 100%.. DR -07-13 (Hannan) Hearings Officer's Decision Page 13 of 14 with the applicant and see no reason to depart from the general rule identified in Webber v. Clackamas County, 441OR App 151, 155 n2, 600 P2d 448 (1979) that the cost of future dwellings should be included in the ratio test. This leaves one remaining cost issue: what cost to place on new dwellings to be located on the property. As the applicant points out, there is some difficulty in determining the cost of homes that might be built on the property. The applicant never provides specific informationon the costs of constructing residences on two of the parcels . created by the partition. Instead, the applicant's attorney simply asserts that "if one were to assume two double -wide manufactured homes were to be included on this site," the combined cost of those homes would be $200,000 ($100,000 each). Based upon this hypothetical figure, and utilizing an estimate of incurred costs of $19,755.55, the applicant's attorney concludes that the ratio of the amount already expended ($19,755.5) to total project cost ($219,777.75) establishes a ratio of 9%, somewhat better than the 7% (1:14 ratio) in Holmes. If necessary, I would find the costs of construction assumed by the applicant, and thus the total project cost, to be unreasonably low. It is not necessary to do so, however, because the record above shows actual qualified expenditures of only $4,098.75. For present purposes, I compare those qualified expenditures to the project costs assumed by the applicant ($219,777:75) and find the ratio of expenditures is approximately 1.86% (1:50). 'A ratio of 1:50 is not sufficient todemonstrate a vested right to partition the property or continue to develop it. IV. DECISION: For the reasons set out above, I conclude that the applicant does not have either a vested right at common law or a right by virtue of ORS 215.427(3) and ORS 215.130(5) to finalize the partition of this property. Because the. applicant has not demonstrated a vested right to final partition plat approval, the applicant did not have a right to record the partition plat on December 10, 2007. Moreover, the applicant does not have the right to develop the property with two additional dwelling units or the right to convey any inchoate Measure 37 interests the applicantInay have to third parties. GC%q.7 Gerald G. Watson Hearings Officer. THIS DECISION IS- I L--WITHIN-11DAY-S OF MAILING UNLESS APPEALED TO THE BOARD OF COUNTY COMMISSIONERS. DATED this ay of June, 2008 MAILED this day of June, 2008 DR -07-13 (Hannan) Hearings Officer's Decision Page 14 of 14 FILED: June 18, 2008 IN THE COURT OF APPEALS OF THE STATE OF OREGON DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Respondent, v. JEFFERSON COUNTY, Respondent, and JERRY BURK, Petitioner. Land Use Board of Appeals 2007177 A138022 Argued and submitted on March 26, 2008. Edward P. Fitch argued the cause for petitioner. With him on the brief was Bryant, Emerson & Fitch, LLP. Denise G. Fjordbeck, Senior Assistant Attorney General, argued the cause for respondent Department of Land Conservation and Development. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. No appearance for respondent Jefferson County. Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge. LANDAU, P. J. Affirmed. DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: Respondents [X] No costs allowed as to Respondent Jefferson County. [X] Costs allowed, payable by Petitioner as to Respondent Department of Land Conservation and Development. [ ] Costs allowed, to abide the outcome on remand, payable by 1 LANDAU, P. J. 2 In this land use case, a property owner obtained Ballot Measure 37 (2004) 3 "waivers" of applicable state and local land use regulations that had restricted the 4 development of his property. ORS 197.352 (2005). He then filed an application with 5 Jefferson County to develop the property. While the application was pending, he died. 6 Petitioner was appointed the personal representative of the estate and pursued the 7 Jefferson County development application, which the county granted. The Department of 8 Land Conservation and Development (DLCD) then appealed the application to the Land 9 Use Board of Appeals (LUBA), arguing that petitioner cannot claim the benefit of the 10 Measure 37 waivers, because he was not the owner of the property at the time the waivers 11 were obtained. LUBA agreed, and petitioner seeks review of that decision. We affirm. 12 The relevant facts are undisputed. William Burk acquired a 160 -acre parcel 13 of property in 1947. The property has 80 acres of irrigation rights and has long been used 14 for hay production and other agricultural uses. In the years following the purchase of the 15 land, various restrictions on its use were adopted, including local zoning for exclusive 16 farm use and state laws that restrict the uses of land so zoned. See, e.g., ORS 215.203(1) 17 (land zoned exclusively for farm use must be used exclusively for farm use, subject to 18 statutory exceptions); ORS 215.780(1)(a) (imposing minimum lot size of 80 acres for 19 land zoned for exclusive farm use, subject to certain exceptions). 20 In 2004, the voters enacted Measure 37, which permitted an "owner" of 21 property that is subject to land use restrictions that went into effect after the time the 1 1 owner purchased the property to bring a claim either for the diminution in value resulting 2 from those land use restrictions or for a waiver of the restrictions in lieu of compensation. 3 ORS 197.352(1), (8) (2005). Burk filed Measure 37 claims for compensation with both 4 the county and the state, asserting that the land use regulations enacted since 1947 5 prevented him from subdividing the property. The county and the state approved his 6 claims and elected, in lieu of paying compensation, to "waive" the offending land use 7 regulations. 8 Burk then filed an application with the county for a residential subdivision 9 and planned unit development (PUD). The application included two tentative plans, one 10 that proposed a 100 -lot PUD and the other a 60 -lot PUD. On July 1, 2007, while the 11 application was pending, Burk died. Petitioner was appointed the personal representative. 12 of Burk's estate. In that capacity, he pursued the development application with the 13 county. County planning staff recommended denial of the application on the ground that 14 the Measure 37 waivers were personal to Burk and were not transferrable to Burk's estate 15 or to petitioner. DLCD weighed in on the application as well, asserting that petitioner 16 cannot claim the benefit of Burk's Measure 37 waivers. The board of county 17 commissioners, however, issued a fmal decision approving the 60 -lot PUD proposal. 18 DLCD appealed the county's decision to LUBA, arguing that the county 19 erred in approving the development application because development was foreclosed by a 20 number of land use regulations. DLCD argued that, although Burk had obtained waivers 21 of those regulations, the waivers were personal to him and did not survive his death. 1 Petitioner intervened. He agreed that Measure 37 waivers are not transferrable. He 2 nevertheless argued that he was entitled to the full benefit of Burk's waivers by virtue of 3 ORS 215.427(3)(a), commonly referred to as a "goal -post statute." Petitioner reasoned 4 that, under that statute, all approval and denial criteria are frozen as of the time of the 5 application. Thus, he contended, when Burk submitted his development application to 6 the county, that "vested" a right to have the application decided under the approval and 7 denial criteria that existed at that time, including the waiver of otherwise applicable land 8 use regulations. DLCD rejoined that nothing in the statute remotely supports the effect 9 that petitioner claims from it. According to DLCD, all the statute requires is that the state 10 legislature and the local government not alter the laws applicable to the property; it does 11 not create a separate, transferrable species of property rights. 12 LUBA reversed the decision of the county. LUBA reasoned that Measure 13 37 and the goal -post statute stood in irreconcilable conflict. On the one hand, LUBA 14 held, Measure 37 rights are not transferrable, while, on the other hand, the goal -post 15 statute creates vested rights that are transferrable. Under the circumstances, LUBA 16 concluded, Measure 37 must control, because it is the more particular and the later 17 enacted statute. 18 Petitioner now seeks review of LUBA's decision, again arguing that, when 19 Burk submitted his development application with the county, ORS 215.427(3)(a) 20 effectively created a vested right in the applicability of existing approval and denial 21 criteria, including Burk's Measure 37 waivers. When Burk died, petitioner contends, 3 1 those waivers were transferred to him, not by virtue of Measure 37--which he concedes 2 does not itself create transferrable rights--but by virtue of the goal-post statute. 3 DLCD responds that LUBA correctly reversed the county's decision, but 4 disputes that Measure 37 and ORS 215.427(3)(a) conflict in this case. According to 5 DLCD, the goal-post statute protects against changes in the applicable law that occur 6 after a development application is filed. In this case, DLCD argues, there has been no 7 change in applicable law, only a change infacts--that is, Burk's death and the expiration 8 of his Measure 37 waivers. DLCD contends that all of the land use regulations applied to 9 the property when Burk filed his application; his Measure 37 waivers simply prevented 10 those regulations from applying to him. In the event that this court determines that the 11 statutes conflict, DLCD urges us to conclude, as did LUBA, that Measure 37 controls. 12 For the reasons that follow, we agree with DLCD that there is no conflict between 13 Measure 37 and the goal-post statute in the first place. 14 The parties' dispute presents a question of statutory construction, which we 15 resolve by application of the interpretive principles set out in PGE v. Bureau of Labor 16 and Industries, 317 Or 606, 859 P2d 1143 (1993). We are to ascertain, if possible, the 17 meaning of statutes that was intended by the legislature or the people who enacted them 18 in the exercise of their initiative powers. Id. at 610. In undertaking such an inquiry, we 19 examine the statutory text in context and, if necessary, legislative history and canons of 20 statutory construction. Id. at 610-12. In examining the text, we are constrained "not to 21 insert what has been omitted, or to omit what has been inserted." ORS 174.010. 4 1 Before turning to the resolution of the parties' dispute, it is important to 2 emphasize the narrowness of the issue before us. Neither party to this case asserts that 3 Measure 37 itself permitted the transfer of a waiver from Burk to petitioner. Both parties 4 agree that, in the absence of some other applicable source of law, such a waiver would 5 dissolve upon the death of the person who originally obtained it, given that the statute 6 provides that only the owner who "acquired the property" may obtain a waiver of land use 7 regulations that went into effect after the acquisition. ORS 197.352(8) (2005). The sole 8 issue in this case is whether ORS 215.427(3)(a) is such a source of law that, independent 9 of Measure 37, creates a vested, transferrable right in the continued viability of a waiver, 10 even after the death of the person who originally obtained it. With that narrow focus in 11 mind, we turn to the question whether the legislature intended ORS 215.427(3)(a) to have 12 that effect. 13 ORS 215.427(3)(a) provides, in part: 14 "If the application was complete when first submitted or the 15 applicant submits additional information, as described in subsection (2) of 16 this section, within 180 days of the date the application was first submitted 17 * * *, approval or denial of the application shall be based upon the 18 standards and criteria that were applicable at the time the application was 19 first submitted." 20 (Emphasis added.) By its terms, the statute ensures that an applicant who has otherwise 21 fulfilled the statutory requirements will be subject to the "standards and criteria that were 22 applicable at the time the application was first submitted." See Davenport v. City of 23 Tigard, 121 Or App 135, 141, 854 P2d 483 (1993) (concluding that the role of those 24 terms "is to assure both proponents and opponents of an application that the substantive 5 1 factors that are actually applied and that have a meaningful impact on the decision 2 permitting or denying an application will remain constant throughout the proceedings"). 3 Thus, the upshot of the legislation --and the source of its moniker, the "goal -post statute" -- 4 is that, once an application has been completed in a timely fashion, state and local 5 governments may not enact new legislation that alters the criteria by which the 6 application may be approved or denied. Sunburst II Homeowners Assn. v. City of West 7 Linn, 101 Or App 458, 461, 790 P2d 1213, rev den, 310 Or 243 (1990) (stating that the 8 effect of the goal -post statute is that "persons who file applications before more restrictive 9 legislation is adopted are entitled to have the earlier law applied to their applications"). 10 It is important to emphasize that the statute requires that the applicable 11 approval or denial criteria not change with respect to the application as filed, or as 12 supplemented within a limited period of time. If, after that time, the substance of an 13 application changes in a material way, the goal -post statute does not apply. That only 14 makes sense. If, for example, a property owner filed an application for a PUD that was 15 consistent with existing minimum lot size restrictions, but the owner later amended the 16 application to include smaller lots than existing laws require, the goal -post statute would 17 not prevent the application of the minimum lot size restrictions. That is because a change 18 in the facts altered the nature of the application in a way that changed the manner in 19 which existing law applies to it. 20 In this case, once Burk completed his application, no new state or local land 21 use legislation was enacted --at least none that anyone seeks to have applied to the 6 1 application. What occurred was a change in the underlying facts pertaining to the 2 application, facts that caused existing law to have a different effect. When Burk filed the 3 initial application, he --as the owner who "acquired the property" --possessed Measure 37 4 waivers of land use regulations that otherwise would have restricted the use of his 5 property. His death while the application was pending altered the factual underpinning of 6 the application in a significant way. At that point, the applicant was no longer Burk, but 7 petitioner. And petitioner --who was not the owner who "acquired the property" --did not 8 possess Measure 37 waivers. That fact caused existing laws to operate differently than 9 they would have had Burk remained the applicant. ORS 215.427(3)(a) did not apply to 10 prevent the operation of those existing laws on petitioner's development application. 11 Petitioner insists that, once Burk completed the development application, 12 Burk's Measure 37 waivers, in effect, "vested." Once that vesting occurred, he argues, the 13 waivers became transferrable and inheritable like any other vested property right. 14 Petitioner cites nothing in the wording of ORS 215.427(3)(a) in support of that 15 contention, however. Nor does he cite any case law in support of it. Nor does he cite any 16 provision of the Jefferson County Zoning Ordinance that might support it. He does cite a 17 comment in a state bar continuing legal education handbook that states that, once a 18 property owner completes a development application, that applicant has "a form of vested 19 right" by virtue of the application, "assuming, of course, the standards in effect at the time 20 of application can be met." Land Use § 12.22 (OSB CLE 1994). The problem with 21 petitioner's reliance on that comment is that it amounts to question -begging, in that it 7 1 relies on a premise that is the very matter in contention, namely that Burk's Measure 37 2 waivers were part of the standards of approval or denial in the first place. 3 There is, in short, no support for petitioner's contention that, when Burk 4 filed his development application, ORS 215.427(3)(a) "vested" Burk's Measure 37 5 waivers so that, when he died, they passed to his estate. We therefore agree with LUBA 6 that the goal -post statute did not operate to preserve Burk's waivers, although we arrive at 7 that conclusion for a different reason than did LUBA. 8 Affirmed. 8 IN THE COURT OF APPEALS OF THE STATE OF OREGON DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Respondent, v. JEFrt✓RSON COUNTY, Respondent, and JERRY BURK, Petitioner. Land Use Board of Appeals 2007177 A138022 PETITIONER'S PETITION FOR RECONSIDERATION Edward P. Fitch, OSB No. 782026 Bryant, Emerson & Fitch, LLP 888 W. Evergreen P.O. Box 457 Redmond, OR 97756 Telephone: (541) 548-2151 Fax: (541) 548-1895 e-mail: efitch@axedmond-lawyers.com Of Attorneys for Petitioner Jefferson County Counsel 66 SE D Street, Suite.A Madras OR 97741 Telephone: (541) 475-2449 Of Attorneys for Respondent Jefferson County Mary H. Williams, Solicitor General Appellate Division Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Telephone: (503) 378-4402 Fax: (503) 378-6306 Of Attorneys for Respondent. BRYANT, EMERSON & FITCH, ul ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 Petitioner petitions the court for reconsideration of its opinion issued on June 18, 2008 in the above -captioned matter. Petitioner believes that the Court of Appeals erred in construing or applying the law. Specifically, the Court disagreed that there was any authority upon which the legal principle that a land use applicant has a statutory vested "interest or right" in a land use application once it is filed and complies with ORS 215.427. There is, however, both regulatory and decisional support for the conclusion that the applicant gains an independent statutory right or vested interest in the application once it is filed. I. THE BURK MEASURE 37 WAIVERS WERE. PART OF THE SUBSTANTIVE STANDARDS OF APPROVAL OR DENIAL FOR HIS LAND USE APPLICATION In its opinion, the Court of Appeals questioned whether or not the Burk Measure 37 waivers were part of the standards of approval or denial in the first place. The court appeared to reject that proposition. That rejection, however, directly contradicts the opinion of the Oregon Supreme Court in the case ofMacPherson v. DAS, 340 Or 117,130 P3d 308 (2006). In that case, the Supreme Court stated that (under Measure 37) "an action by a governing body to modify, remove or not apply certain regulations in specific situations ... Measure 37 is, in effect, an amendment of the land use regulations in those particulars". See MacPherson, supra, pg. 132 (emphasis added). As this Court noted in the present case, ORS 215.427(3)(a) provides in part: "If the application was complete when first submitted or the applicant submits additional information, as described in subsection (2) of this section, within 180 days of the date the application was first submitted ***, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was filed submitted. (Emphasis added) Page 2 - PETITIONER'S PETITION FOR RECONSIDERATION G:\Clients\EPF\Burk, Jeny\Burk, Jeny Appeal\Petitioner's Petition for Reconsideration.WPD(mcm) BRYANT, EMERSON & FITCH, us ATTORNEYS AT LAW 688 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 This language was interpreted by Judge Richardson in SunburstllHomeownersAssn. v. City of West Linn, 101 Or App 458, 720 P2d 1213 (1990) to mean: "Persons who file application before more restrictive legislation is adopted are entitled to have the earlier law applied to their applications. Otherwise, their rights under the pre-existing standards would be permanently nullified. (Emphasis added). Sunburst, supra at 461. Thus, an applicant does have an independent statutory right to insist and require the government to judge his land use application and the development thereunder based upon the criteria in effect (including waivers) at the time the application was filed. ORS 215.427 does not make any distinction between non -Measure 37 land use applicants and Measure 37 land use applicants. Both are assured of the same treatment under that statute, and that the local government's review of their development will be based upon those criteria in effect as of the date the application was filed. If a non -Measure 37 claimant dies, their statutory rights in that application will vest in their heirs or estate. If a Measure 37 claimant dies, their statutory (or vested) rights in that application will inure to the benefit of their heirs. or estate. There is nothing in ORS 215.427 which would lead one to a different conclusion. This independent right, therefore, is not subject to extinguishment because of the death of the applicant. Once the waivers have been granted and the application filed, this right survives that death and inures to the benefit of the heirs and estate. - This independent statutory right under ORS 215.427 as opposed to "waiver rights" under ORS 197.352 is, therefore, transferrable. The Court noted that there was no regulatory authority cited for the proposition that these land use decisions are binding. Section 7.04.4 (attached as Appendix A) is a section from the Jefferson County Zoning Ordinance. Therein, Jefferson County regulations require that the County is bound by approval of a tentative plan through recordation of a final plat. There is, therefore, a Page 3 - PETITIONER'S PETITION FOR RECONSIDERATION G:\Clients\EPF\Burk, Jerry\Burk, Jerry Appeal\Petitioner's Petition for Reconsideration.WPD(mcm) BRYANT, EMERSON & FITCH,up ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 vesting of rights in a tentative plan for an applicant through recordation of a final plat. II. LICENSURE ANALOGY As noted in the additional authorities provided to the court on March 25, 2008, specifically the case of Montgomery v. Shaver, 40 Or 244, 66 Pac. 923 (1901) there is authority in Oregon that a statute which provides for a use of property has been construed to constitute a right for a license. That right is inchoate until it is exercised. See, Montgomery v. Shaver, supra. In Corey v. DLCD, 210 Or App 542,152 P3d 933, adhered to 212 Or App 536,159 P3d 327 (2007) this court found that the Measure 37 claimant had a property interest in the waiver. Once a claim was accepted, the claimant was also entitled to constitutional due process protections. The property interest in the Measure 37 waivers is similar to the inchoate property interest in a: statutory license granted by the Legislature. If the license is not exercised, it is revocable until acted upon. Once acted upon, however, the license does become vested and is not subject to extinguishment or revocation. Montgomery v. Shaver, supra at 248. In the present case, a statutory license described as a waiver order under Measure 37 was revocable or extinguishable unless acted upon. Measure 49, for example, had the effect ofmodifying waivers that had not been acted upon. However, once that waiver was acted upon by compliance with ORS 215.427, the rights of the owner did become vested in that application and development. This vested right in the application and development, a right independent of Measure 37, is transferable. III. TRANSFERABILITY The transferability of a vested property right has been acknowledged by the State of Oregon through the office of the Attorney General. In the case of Crook County v. All Electors, Crook Page 4 - PETITIONER'S PETITION FOR RECONSIDERATION G:\Clients\EPF\Burk, Jeny\Burk, Jerry Appeal\Petitioner's Petition for Reconsideration.WPD(mcm) BRYANT, EMERSON 8a FITCH, up ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 County Circuit Case No. 05CV0015, the Assistant Attorney General noted before the Circuit Court that It is not really the State's position that a waiver is never transferable, but under existing law there are existing statutes governing nonconforming uses and under the Court's decision under the vested rights principle when the development of a nonconforming use has reached a certain stage, the property owner is said to have acquired a vested right to continue the development and subsequentlyput the use to its intended function. In that case, Judge Neilson agreed that once a waiver became vested, it was transferable. IV. SUMMARY The Supreme Court has already determined that waivers are in effect an amendment of land use regulations and, therefore, are part of the substantive criteria by which a subsequent land use application is to be evaluated. As part of the substantive criteria, these legal standards will govern the processing of an application and, if approved, the development thereunder pursuant to ORS 215.427. A land use applicant does have an independent statutory right to insist that the government apply those standards throughout the course of the application and development assuming they meet the requirements of ORS 215.427. In the present case, Mr. Burk did meet the requirements of ORS 215.427. That is not at issue. The waivers were part of the legal standards. Mr. Burk's subsequent death did not change that legal standard. They became fixed as of the date he filed his application and met the requirements of ORS 215.427. His subsequent death cannot change that. The fundamental issue in this case is at what point does a Measure 37 claimant pass the finish line in terms of having a vested right to develop property. Measure 49 provided one answer, that is a common law standard. ORS 215.427 establishes a different standard, one that has been followed Page 5 - PETITIONER'S PETITION FOR RECONSIDERATION G:\Clients\EPF'Burk, Jeny\Burk, Jerry Appeal\Petitioner's Petition for Reconsideration.WPD(mcm) BRYANT, EMERSON & FITCH, us ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 in Oregon since 1983. Compliance with that statute and the legal standards and criteria in effect at that time does give a person an independent statutory right to vest his development in an application that meets the requirements of ORS 215.427. Mr. Burk did pass the finish line for statutory vesting. Mr. Burk and his estate are both entitled to have the legal standards, including the waiver, applied to this application and the development thereunder. DATED this 23RD day of June, 2008. Respectfully submitted, EDWARD P. FITCH, OSB 78202 Of Attorneys for Petitioner Bryant, .Emerson & Fitch, LLP P.O. Box 457 Redmond, OR 97756 Telephone: (541) 548-2151 Facsimile: (541) 548-1895 Efitch@redmond-lawyers.com Page 6 - PETITIONER'S PETITION FOR RECONSIDERATION G:\Clients\EPF\Burk, Jerry\Burk, Jerry Appeal\Petitioner's Petition for Reconsideration.WPD(mcm) BRYANT, EMERSON & FITCH, LLP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 JEFFERSON COUNTY ZONING ORDINANCE Adopted December 27, 2006 By Ordinance #0-02-07 and #0-04-07 Amended January 2, 2008 by Ordinance 0-01-08 • 2007 Jefferson County Zoning Ordinance APP—A . TABLE OF CONTENTS Chapter 1 General Provisions Section 101 - Code Adoption and Authority 1 • Section 102 - Purposes 1 Section 103 - Repealer 1 Section 104 - Short Title And Revision Policy 1 Section 105 - Definitions 1 Section 106 Compliance With Ordinance Provisions 22 Section 107 - Zoning Permit 22 Section 108 - Scope of Land Use Decisions 22 Section 109 - Conflict with Private Agreements 23 Section 110 - Severability 23 Chapter 2 Establishment of Zones and Maps Section 201 - Establishment Of Zones Section 202 - Location of Zones 24 25 Section 203 - Zoning Map 25 Section 204 - Zone Boundaries 25 Chapter 3 Land Use Section 301 - Section 303 - Section 304 - Section 305 - Section 306 - Section 309. - Section 311 Section 312 - Section 313 - Section 314 - Section 315 - Section 316 - Section 317 - Section 318 - Section 319 - Section 320 - Section 321 - Section 322 - Section 341 - Section 342 - Section 343 - Section 345 - Zones Exclusive Farm Use Zones (EFU A-1; EFU A-2 and RL) 26 Forest Management (FM) 58 76 Service Community (SC) 78 Existing Rural Development (ERD) 80 County Commercial (CC) 82 County Industrial (CI) 84 Industrial Reserve (IR) : 85 Airport Management (AM) 86 Park Management (PM) 90 Limited Use Overlay Zone (LU) • . 92 Flood Plain Overlay Zone (FP) 93 Crooked River Ranch Commercial Zone (CRRC) 103 Crooked River Ranch Residential Zone (CRRR) .106 Three Rivers Recreation Area Zone (TRRA) 108 Three Rivers Recreation Area Waterfront Zone (TRRAW) . 110 Wildlife Area Overlay Zone (WA) ...112 Sensitive Bird Habitat Overlay Zone (BH) 115 Camp Sherman Rural Center Zone (CSRC) ,117 Camp Sherman Vacation Rentals Zones. (CSVR) .120 Camp Sherman Rural Residential Zone (CSRR-3, CSRR-5) 123 Blue Lake Zone (BL) 125 Rural Residential (RR -2, RR 5, RR -10, RR -20) • 2007 Jefferson County Zoning Ordinance Chapter 4 Supple Section 401 Section 402 Section 403 Section 404 Section 405 Section 406 Section 407 Section 408 Section 409 Section 410 Section 411 Section 412 Section 413 Section 414 Section 415 Section 416 Section 417 Section 418 Section 419 Section 420 Section 421 Section 422 Section 423 Section 424 Section 425 Section 426 Section 427 Section 428 Section 429 Section 430 mentary Provisions - Access • 128 -Transportation Improvements 130 - Clear Vision Areas 139 -Fences 140 - Outdoor Lighting 140 - Sign Regulations 141 - Livestock Restrictions 143 - Manufactured Dwellings 144 - Sewage Disposal 146 - Home Occupations 148 - Mining Regulations 151 - Scenic 'and Natural Hazard Rim Set Back 156 - Improvement Guarantees and Bonding Requirements ...158 - Site Plan Review- 160 - Soil or Rapid Moving Landslide Hazard Procedures 165 - Grading, Fill and Removal 166 - Historic Resource Protection 168 - Airport Protection . 170 - Riparian Protection 181 - Endangered Species 186 - Traffic Impact Studies 186 - Temporary Uses 187 - Off -Street Parking Requirements ..193 - Off -Street Loading Requirements 197 - Dock Design and Review Requirements 199 - Fire Safety Standards 200 - Wireless Communication Towers 206 - Burial of Human Remains on Private Property 209. - Archaeological Preservation 210 - Destination Resorts 212 Chapter 5 Exceptions Section 501 - Nonconforming Uses I 225 Section 502 - General Exceptions to Lot Size Requirements 228 Section 503 General Exceptions to Setback Requirements 228 Section 504 - General Exceptions to Height Requirements 228 Section 505 - Goal Exceptions .229 Section 506 - Exceptions for Public Projects 229 Section 507 - Authorization of Similar Uses in Non -Resource Zones 229 Section 508 - Variances .. 230 Chapter 6 Conditional Uses Section 601 Authorization To Grant Or Deny Conditional Uses •. 232 Section 602 - Approval Criteria 232 Section 603 - Conditions• of Approval 233 2007 Jefferson County Zoning Ordinance Chapter 7 Land Divisions Section 701 - General Provisions 235 Section 702 - Lawful Creation of Lots and Parcels 236 Section 703 - Land Division Application Requirements 239 Section 704 - Land Division Procedures 241 Section 705 - Standards and Criteria for Approval 242 Section 706 - Dedication Requirements " . 246 Section 707 - Final Plats 248 Section 708 - Improvement Guarantees and Bonding Requirements 252 Section 709 - Replats 253 Section 710 - Planned Unit Development (PUD) 254 Section 711 - Division of Manufactured Dwelling Park 256 Section 712 - Reapproval of Expired Tentative Plan 257 Section 713 - Property Line Adjustments • 258 Chapter 8 Amendments Section 800 - Types of Amendments 261 Section 801 - Authorization to Initiate Amendments 261 Section 802 = Authorization to Approve or Deny Proposed Amendments 261 Section 803 - Approval Criteria 261 Chapter 9 Administration and Application Review Provisions Section 901 _ Administration 264 Section 902 - Application Procedures 264 Section 903 - Decision Process 266 Section 904 - Public Hearings 269 Section 905 - Conditions of Approval 272 Section 906 - Notice Requirements 272 Section 907 - Appeals • 275 Section 908 - Remands 276 Section 909- Revocation 276 Section 910 - Expiration and Extension of Permits 277 Chapter 10 Violations and Enforcement Section 1001 - Violations 278 Section 1002 - General Enforcement Provisions 278 Section 1003 - Enforcement Procedures 278 Section 1004 - Repeal Of Ordinances As Affecting Existing Liabilities 278 I i j 2007 Jefferson County Zoning Ordinance Subdivision Committee will review the. application for compliance with the requirements of this Ordinance, and may recommend that the application be approved, approved with conditions, modified, or denied, taking into consideration comments and recommendations received from affected agencies. 704.4 Approval of Tentative Plan • Approval of a tentative plan shall not constitute final acceptance of the final plat .for recording, but.shall be binding upon the County for the purposes of the preparation of the final plat. The County may require only such changes in the final plat as are necessary for compliance with the conditions of approval of the'tentative plan. 704.5 Expiration of Tentative Plan Approval A. Approval of a tentative plan is valid for two years, within which time the final plat must be prepared and submitted to the Community Development Department for review. An extension may be granted by the Planning Director, for good cause, based upon a written request from the applicant made prior to the expiration of the • original two year approval period. Notice of a decision to grant an extension shall be provided in accordance with Section 906.4. After two years, or at the end of any extension that has been granted, the tentative plan approval will be void if the final plat has not been submitted. B. When approval has been granted to develop a subdivision in phases, the final plat for the first phase shall be submitted in accordance with the time limitations outlined in (A). The final plat for each subsequent phase shall be submitted within two years of the date the final plat for the previous phase was recorded. An extension may be granted by the Planning Director, for good cause, based upon a written request from the. applicant made prior to the expiration of the two year period. The total time period for submittal of the final plats for all phases of the subdivision shall not exceed ten years • from the date of final approval of the tentative plan. 704.6 Expedited Land Divisions An applicant for a partition of residentially zoned land inside an urban growth boundary may request that the application be processed according to the standards and procedures for expedited land divisions in ORS 197.360 through 197.380 rather than the procedures in this Section. Section 705 - Standards and Criteria for Approval ' 705.1 Tentative Plan Approval Criteria The County 'may approve a tentative plan for a subdivision, partition or replat upon finding that it complies with the following: A. The tentative plan complies with all applicable standards of the Comprehensive Plan and this Section, meets the minimum lot size, setback and other requirements Amended 2007 Jefferson County Zoning Ordinance 242 - CERTIFICATE OF FILING I hereby certify that on June 23, 2008, I filed the original and 4 copies of this PETITIONER'S PETITION FOR RECONSIDERATION with the State Court Administrator, Appellate Court Records Section, Supreme Court Building, 1163 State Street, Salem, OR 97301-2563, by certified mail, return receipt requested. DATED this 23rd day of June, 2008. EDWARD P. FITCH, OSB 78202 of Attorneys for Petitioner CERII ICATE OF SERVICE - I hereby certify that I served the foregoing PETITIONER'S PETITION FOR RECONSIDERATION on the 23rd day of June, 2008, by mailing to said parties or their attorney as true copy thereof contained in a sealed envelope with postage prepaid addressed to said parties or their attorney as follows: Mary H. Williams, Solicitor General Appellate Division Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Of Attomeys for Respondent DATED this 23rd day of June, 2008. Jefferson County Counsel 66 SE D Street Suite A Madras, OR 97741 Of Attorneys for Respondent Jefferson County EDWARD P. ti CH, OSB 78202 of Attorneys for Petitioner I hereby certify that the foregoing is a true and correct copy of the original. DATED this 23rd day of June, 2008. BRYANT, EMERSON & FITCH, LLP EDWARD P. FITCH, OSB 78202 Of Attorneys for Petitioner CERTIFICATE OF SERVICE G:\Clients\EPF\Burk, Jerry\Burk, Jerry Appeal\Petitioner's Petition for Reconsideration.WPD BRYANT, EMERSON & FITCH, LIP ATTORNEYS AT LAW 888 S.W. EVERGREEN AVENUE P.O. BOX 457 REDMOND, OREGON 97756-0103 TELEPHONE (541) 548-2151 FAX (541) 548-1895 r , • . : • A. The Hearings Body shall, review the •' application and any comments submitted by .other appropriate County, state, or federal agencies and shall render a decision in- :accordance n:accordance with DCC 17.1.6.100, setting •' forth findings supporting its.decision. . B. Approval of the tentative plan shall not. . : constitute final acceptance of the plat of the .: proposed subdivision for purposes of recording• however, approval of such • tentative plan. shall be bindiiau en the ..r......_.._._.........._::::- _.._. ounty_fox_the_.puiposes._of._preparation. and- ____.___ review 6f -the finalpla Upon review of the final plat, the County may require • compliance with the terms .of .its tentative plan, approval of the proposed. subdivision . • and the terns of DCC Title 17. • ' (Ord. 90-003 §1, Exhibit A, 1990; Ord. 81-043 §1, Exhibit A, §3.055(1), 1981) . 17.16.100. Required Findings for ApprovaL 17.16.090. Tentative Plan Approval. . A: •tentative plan for a proposed subdivision shall (— • =not .be approved unless the Planning.Director or , 'Hearings Body finds that the subdivision • as :tproposed or modified will meet the requirements . •of,DCC Title 17 and DCC Title 18 through 21, ' • and is in compliance with the comprehensive plan. Such findings shall include, but not be . limited to, the following: • •A:.. The._ _-subdivision;-•contrihte ,_ _to -:_orderly.:... . development and land use patterns in the area, and provides for .the preservation . of natural features and resources such as . streams, lakes, natural • vegetation, special terrain features, agricultural and forest lands • and other natural resources. B. The subdivision will not create excessive demand oil public facilities and services, and. utilities required to serve the development. C. The • tentative plait for . the proposed subdivision meets the requirements of ORS 92.090. D. For subdivision or p▪ ortions thereof proposed Within • a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust sensitive uses can be sited consistent with the requirements , of DCC 18.56, as amended, as demonstrated by. the site plan - • and accompanying information required : under DCC 17.16.030. • •• • E. The subdivision name has been approved by- . the County Surveyor: • • (Ord 93-012 §19, 1993; .Ord. 90-003 .§1, Exhibit A, -1990; Ord. 81-043• §1, Exhibit A, §3.060, 1981) . • . ' 17.16.105.• Access to Subdivisions.:. .: No proposed subdivision shall be approved unless • it would be accessed by roads constructed to County standards *and by roads accepted for - maintenance responsibility by a unit' of local or state government. This standard .is ..met: if ..the . '.....::.. . _..sub division. ••-would-have---direct •--access--to.--an-_.._.-._-._..:._._.•._.._ improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the ro ad accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. ' ( Ord. 93-012 §19(A),1993). • 17.16.110. Resubmission of Denied Tentative Plan. • A. If the tentative plan. for a subdivision. is denied, resubmittal thereof shall not be accepted for a.period of six months after the date of the final action denying such plan. Upon resubmission,. the applicant shall consider all items upon which the prior denial was based, and, the resubmission shall be accompanied-b_3� .... - a.new�ling.fee:-:-::�: �w:•W •::... . A tentative plan resubmitted 'in accordance with DCC 17.16:110 shall bereviewed in the same manner as any other tentative plan: . . Ord. 90-003 §1, Exhibit A, 1990; Ord. .81-043 1, Exhibit A, §3.035, 1981) • • 7.16.115: Traffic Impact Studies. . • B 1 A • B C . For purposes of • DCC. 17.16.115, the transportation system includes public. and private roads, intersections, sidewalks, bike facilities, trails, and tranait systems. . The applicant shall meet with County staff in . a pre -application conference to discuss study requirements, then generate the traffic study and submit it concurrently • with' the land use application. ▪ Guidelines for Traffic Impact Studies. 1. All traffic impact studies shall be Chapter 17.16 • 4 • !20061 • AFFIDAVIT OF EDWARD P. FITCH • STATE OF OREGON ) )ss: County of Deschutes . ) • • :1, EDWARD P. FITCH, being first duly sworn, do depose and say: •. 1. It has been my experience underthe goalpost statute that when an application is filed, and that application meets the requirements of the goalpost statute, -not only does the criteria in effect • • . at the time the application governed the processing and approval of that application, it governs the . • development pursuant to that approval. This practice was confirmed by the Oregon Land Use Board of Appeals in the case of Gagner v City of Gladstone, 38 Or LUBA 858, 2000 WL 33288036 •.(2000). This practice was also recently confirmed with Paul B1ikstad,..Senior Planner for the ' Deschutes County Community Development Department. Attachedis a copy of my e-mails with ' Mr.:Blikstad concerning that question. DATED this / day of May, 2008. • • Edward P. Fitch . • • This instrument was acknowledged before me this / day of May, 2008, by. Edward P. Fitch and acknowledged.the foregoing instrument to be his voluntary act and•deed. ' .OPPXC A SEAL • MARY C MATTIVE NOTARY PUBLIC- OREGON COMMISSION NO. 422343 MY•COHMISSION EXPIRES DEC 08 2011 0 f NOTAR • •UBLI FOR OREGON . Page 1 - AFFIDAVIT OF EDWARD P. FITCH G:\Clients\EPFFAmett, John C\Arnett,Jo1m\Fitch affidavit.5.1.08.WPD(mcm) • BRYAN% EMERSON & FITCH, t • ATTORNEYS AT LAW • ^_..----------•------•-••----.—__._.—_....�__._..�.----.-••---•----_._.._._-•-----._ _—.__..--888.5.W EVERGREEN -AVENUE-- • P.O. BOX 457 -REDMOND, OREGON 97758:0103 TELEPHONE (541i 548-2151 Ed Fitch RE Paul : if th .tun changes their zonin • code and a • ers_ _ .ap • lies for a use under the existiri . From:. • • ' • ' "Paul Blikstad" <Paul_Blikstad@co.deschutes.or.us> . . •TO: "Ed Fitch" <Lzr1/.�...A......-.f !_...._rs _ : . •■ ..�■■ - c+Lw,�cuuwuu-►awyC�s.cvm� • • ( .` Date: • ` ' 4/29/2008 7:39 AM • • Subject •. • . • • : RE: Paul : if the county changes their zoning code and apersonapplies for a. use . • : under the existing • .• . Thatis myunderstanding. • -- • Original Message — • From: Ed Fitch {mailto:ED@redmond-lawyers.com] Sent Tuesday, April 29, 2008 7:36 AM • . To: Paul Blikstad . Subject RE: Paul : if the county changes their zoning code and : • apersortapplies for a use under the existing . • • • It-is'avested-rights-•question and comes up every the a county or state . . _......__chanr es -its -code -if -an= —• • • • 9 app9ic�tian-was-f�led=before= he-charrge•,-that �-- - - _ _� .�.�.,.___.____•,�_____ application is reviewed and approved (if it•can be) under the old law not the new law, Further once a person gets the approval (under the old law) they are allowed to. build in accord with that approval.- correct? »> "Paul Blikstad" <Paui Blikstad@co.deschutes.or.us> 4/29/20b8 7:26 AM • >» »> . . • • , • This sounds like• a vested rights question. As far as goal post rule, my :understanding is that the code that applies is the one that is in place • When the application was submitted. That to me is different than an • .-actual zone change for a parcel (from commercial to residential as you ' _mentioned).• I am not the expert on that kind of situation, and it has never come up in my 22.5 years here. ---Original Message • From: Ed Fitch [mailto:ED@redmond-lawyers.cbm] Sent: Tuesday, April 29, 2008 7:09 AM To: Paul Blikstad Subject: Paul : if the county changes their zoning code and.a ••personapplies-fora-use-under-t-he-existinlg-cod- :,::...••-•----•••-•••••• •-• ............... Paul : if the county changes theirzoning code and a person applies for a use under the existing code (eg a commercial use and the code is changing the parcel to residential) will that application and development (assuming it is approved) be allowed under the code as it existed when the -application -was filed. My understanding from working with ail of the jurisdictions in central oregon is that the goalpost statute controls the approval and development. Otherwise what value is there to an approval that cannot be implemented - its just a waste of money and time otherwise. Please get back to me as soon as possible. • • . • " • • . . . . . STATE OF OREGON, County. of Deschutes • . ) • ) ss . • • AFFIDAVIT OF JIMIIE]NDRYX • . • . „ • . . • • . . • • . • • •• • 1, JIM HENDRYX, being duly sworn, say that 1 amthe Assistant City Manager' of • • • ommuWDevelopmenirEffie City of Redmond, Oregon. It iindirifalding Goal Post Statute applies not only in the application phane to lock in the standards and *criteria that apply to the application, but once approved, the same standards and criteria that applied throughthe application phase apply through the development phase even if the land use. .• regulations subsequently change after the application is fled. It would not •make sense,. and be confrary.tothe purpose and intent of the Goal Post Statute, to have the land use regulations.that • apply to the development phase be subject to change. . • • • P . • • STATE OF OREGON Comity of . • . • Personally appeared before me this day of • 2008 JIM RENDRY)C who, being first duly sworn, did say that he is the Assistant City Manager of Community Development for the City of Redmond, and acknowledged -the foregoing instrument to be his voluntary act and deed. . '• GACliefls\IK\MSdaytJIend.d Notary Public • • • • • IN THE MATTER OF a Vested Rights • ' Application for Final County Vesting Decision . • RE: Bitterbrii'sh Estates (06 -SD -01), ' Owner and Applicant Gordon Shown • FEWINGS OF FACT:`• ) CONCLUSIONS 01? LAW • •) and FINAL DECISION ).Order #l- 43..0.8: . • Applicant/ Property Owner: Gordon Shown 9040 NE 31't Street Terrebonne, OR 97760 . Land Use Application 06 -SD -•01: A request by Gordon Shown for Tentative Plan approval for. :a3 1. lot subdivision ("Bitterbrush.BstatesEstates") on a 67,78 -acre parcel, in an Exclusive Farm :use zone (EFU A-1 ) which•was approved by the County Board of Commissioners (the "Board") *ion November 8, 2006. (Order No. 0-184-06). The approval was granted pursuant to State and County Ballot Measure 37 Waivers. . . . On November 2, 2007, the final plat of Bitterbrush EstatesEstates• was recorded with the -Jefferson County Clerk. ' On December 6; 2007, Ballot Measure 49, which modified. Bai1o#.Measlua_37,hecame effective. • The applicant is seeking a vested right determination to allow completion ofthe subdivision. The application for the vested right determination was received on February 8, 2008. • .. LOCATION: The property is located at the Northeast intersection of Hilltop Lane and Clark • Drive, tax assessor's map 10-14-32-700 and 10-14-32CB-100. . NOTICE: The hearing on the.application for vested right determination was noticed prior to the hearing date. COMMENTS: A comment letter signed by 14 neighbors was received on March 4, 2008: • • Page 1—FINAL COUNTY VESTING DECISION Casef a 0e 08=VEST 01 ... DECISION: The Jefferson County Board of Commissioners finds that 06 -SD -01 a 31 -lot .. subdivision (Bitterbrush Estates) is sufficiently vested under the Oregon Common Law to allow . • completion and continuation of the Bitterbrush Estates as platted and recorded. • . •. I. PROCEDURAL FINDINGS • • • • .the Board finds that the applicant submitted the application for a vested rights determination on February 8, 2008 and the hearing for this Vested Rights Determination was ..• duly noticed. A public hearing was held on March 5, 2008. .The record was closed March 5, • 2408. • • .• II. APPLICABLE LAW FINDINGS • A. Measure 49 • ...................... On November 6, 2007, the voters approved. Ballot Measure 49. Ballot Measure 49 modifies Ballot Measure 37 (2004) and took effect December 6, 2007. Ballot Measure 49§ 5(3) provides in part that: . • A claimant that filed a claire under ORS 197.352 on or before the date of adjournment sine die of the 2007 regular session of the Seventy-fourth Legislative Assembly is entitled to just . compensation as provided in:. . ... • .• '(3) A waiver issued before the effective date of this 2007 Act to the extent that the - clairnant's use of the properly complies with the waiver and the claimant has a common law vested:right on the effective date of this 2.007 Act to complete and continue the use described in the waiver. • . ' • • [emphasis added] • B. Jefferson County Vesting Ordinance 0-23-08 On February 6, 2008 the Jefferson County Board of Commissioners adopted Ordinance No. 0-23-08 which established a local procedure for making vested rights determinations under - House Bill 3540 ("Measure 49") following the criteria set forth in Oregon common law. The.. Board finds this development is vested under the common law. Such a determination is subject to review by the circuit court on a writ of review. • . .• • • C. Statutory Vesting ("Goalpost Rule") This decision does not approve and does not address the arguments made by the applicant - • - regarding statutory vesting (the "goalpost rule"). Page 2 — FINAL COUNTY VESTING DECISION Casefile 08 -VEST -01 • •••• . • • ;_ • • • • *. • - - . ' • • • *D. • : National La* .•.. • • .6.. 43-08 • • . . • •• . • • • . . •• • • • • . • • . . The comment letter received from the neighbors indicates that the County should • . "consider "national law" or case law outside the State of Oregon in making a Vested Rights. .* ,•• • • • • • • . Determinafion under the common law doctrine of vesting. The Board finds that while case law • • . • • from otherjurisdictions may provide assistance, they are nOt binding precedent on the decision of: •• the County. •• • • nt VESTED RIGHTS FINDINGS. . . Jefferson County Ordinance 0-23-08, Section 4 sets forth the Factors Considered to • • Determine Cominon Law Vested Right. Follows are Findings related to each specific factor: •• • •••,•••-••,-.2r--''.::::::—...2Factoilr==-1Pritiiiiiiii-propoi;d-use of the property complies :With' orders from the State and Board.granting Measure 37 relief: • . . : • A. The Board finds that there is no evidence property ovvner relied on Measure 37 in purchasing the property. • • • B. 'There is evidence in the record, and the Board fmds, the property owner followed • Measure 37 by filing written demands with the State and County. . • .. C. • There is evidence in the record, and the Board finds, the property owner relied on . • the waiVersissued by the State of Oregon and Jefferson County, D. The Board nd§ the Application's proposed use of a 31 -lot subdivision comi5lies • with the waivers issued by iefferson County and the State of Oregon. • , Fac. . . . . tor2: • • Th e amount of MiMey speni on de!..ise irEisiaikttia_the-totalOostof. • • • • • • .• ••"-W4511Ming-the-use.------ . Factor 2.1: Allowcu t Expenditures A. "Allowed expenditures" are those expenditures that can be considered when determining the amount of money spent on developing the use. The Board finds that the. following expenditures are "allowed" as they were spent in good faith on developing the proposed use. The explanation of their inclusion is listed below. .Page 3 —FINAL COUNTY 'VESTING DECISION Casefile 08 -:VEST -01 ' ..... ... • .. • • •• . • • •• • . • ( • • • CASCAOIAN BUILDERS LLC • .•( • 43-.08 . . JOB # OS: BITTERBRUSH ESTATES . .** : • • JOB COSTS - • DATE • • • • . . • . . • • DOCUMENT • • • • • • PAID TO . • . • • DESCRIPTION - • • • • - . • • TOTAL ' • PROJECT - COSTS TO DATE • — • .. . . ... . • . • • 11/20/2008 Inv# 119746 BRYANT EMERSON A FITCH . . • • 3120/2007 Inv* 12386 BRYANT EMERSONAEIICH • •• • --4/20/2007-- 24 -36-B 'Y EMERSON F C • •-- -8-UXTOT_A 8 . • . . .• • • • 11/2/2007. 1 ,ATTORNEY FEES ATTORNEY FEES A . . • 1 363 52* 1. 118.25 3.486.70 • BREM BONDING INS. SUBDIVISION BOND .1 10 813 001 • 8/18/2008 Iriv# 38295 BULLET RENTAL AND SALES RENTAL EQUIPMENT • • • 1 . '1 023.00 120 00 382 08 918 .8/21/2008 . Inv# 38384 Inv# 39088 Inv# 408442_ BULLET RENTAL AND SALES BULLET RENTAL AND SALES BULLET RENTAL AND SALES RENTAL_ EQUIPMENT RENTAL EQUIPMENT RENTAL EQUIPMENT 9/7/2008, 10/30/2006 1/2/2007 Inv# FC' ' BULLET RENTAL AND SALES RENTAL EQUIPMENT 42 37.82 2/112007 Inv# FC BULLET RENTALAND BALES RENTALEQUIPMENT • • .3/1/2007 Inv# FC • BULLET RENTAL AND SALES RENTAL EQUIPMENT ' 37.62 37.82 . .. • ' • - SUB -TOTALS. 3.558,36 •1.• 1Y17/2007 Check#2405 COLUMBIA RIVER BANK. COLUMBIA RIVER BANK ' • 2 192.80 1 799 00 APPRAISAL APPRAISAL . • ' 6 000 00 2 00 00 39918 5/23/2007 Check# 11.70 - . - . • SUB -TOTALS • •- 4.000.00 -• • • • • •••••••• • • - • •• 2/28/2007 9/20/2007 Check# 2458 2126/2007 2/26/2007 EFFERSON=C-0-UNTY----SUBDIVISIOVAPP-- 850.00 . \JEFFERSON COUNTY ' PLANNING FEE 1 100.00 JEFFERSON COUNTY.(row Inspection)PERMITS. 12,624.30 • • ..2/28/2007 . Check# 2458 Check# 2455 Check# 2457 . • JEFFERSON COUNTY SURVEYOR SURVEY REC FILING • 130.00 . JEFFERSON COUNNSURVEYOR PLAT REVIEW FEE. 2,120.00 JEFFERSON COUNTY SURVEYOR POST MONUMENT. BOND . 3,500.00 . . . • SUB -TOTALS I • I 5 0 .1 9/21/2006 Inv# 356617 Inv# 362260 KLEINFELDER INC. KLEINFELDER INC. SOILS ENGINEERING SOILS ENGINEERING • 2 192.80 1 799 00 10/12/2008 , • . • . . . . . . • • • • • . SUB -TOTALS 39918 • . , . Page 4-FINALCOUNTY VESTING DECISION Casefile 08 -VEST -01 9/1812006 In of. + c; ota In ota + ota +� 06•oa • 2 68 .64 2 850.3 208. 18 •00 999.00 • 35 085.20 9/1/2q00 06 Env# 393 PRECISION LAND SURVEYING PLAT PRE A ON 2.337.50• 12/1/2006 Env# 442 PRECISION LANE) SURVEY ING S RUEYING 12 -t0� 1 r; C - _CSO LAND SU -V4 G SURVE G • 1.231.08 •11 ij2007 Inv#fC PRECISION-LANDSSURVEYING • 31.58 2728/2007 lnv#494 PRECISION LAND SURVEYING SURVEYING 3/30/2007 inv# FC P CISION LANDS VEY NG S RVEYING 578 00 4/30/2007 inv# FC 168 PRECISION LAND SURVEYING SURVEY' 4 5 + I ; C 3' P-ECISIO LAND SU G SUR EYING olAAlwwia.. Inv# FC PRECISION LANDSURVEYI G SURVEYING 115.$5 • 1121.2 7137/2007 Inv# FC--E6E.CISlON-LAND-SURa/1=PING—SURVEYING----- _-9/28/20.0 =--az, .---P-REGISION=L�A{�ID I:)E - IINGS if.17EYINC �-SURVEY �2_ _ _�_r:�::._::.: -::: -- REC1SIOi LAND URV4 kGSU-V INC 1555 00 --------7" PRECISION LAND SURVEY NG SURVEYING 1 555 00 • 1 C+It _ 'Itr 1/21/2007 • 8/31/2006 9/30/2006 L 2.78000 95 11/30/2006 12/31/200 1/31/2007 2/28/20Q7 2 TAGGART, BRADLEY W. CONSULT INC TAGGART.BRAD1EYW.CONSU TING . 2.000.00 2.000.00 T • GG • -T B • D CO SUL- ING TAGGARTLBRAD1EY W.CONSULTING 2 000.00- TAGGART. BRADLEY W.CONSULTING 2 00 00 2.000.00 'TAGGART. BRADLEY W.CONSU L N TAGGART. BRADLEY W.CONSULTING . 2.000 n TAGG ' - B: DL .CON ULTI G 2.000.0 • GA -a R - • n+ ULTI G 2 00+:0 •531240 '•6/3072007 - TAGGART; BRADLEY W. CONS LTING 'x/31/2007 • TAG GART,_BRADLEY W. CONSULTING GGART B - DL . CONSULT! k G AG A-. B- 'DLEY .CON L I G 2 000 0 2,000.00 • TOTAL 1+. 0 Page 5 —:FINAL. COUNTY VESTING DECISION Ca.sefile 08 -VEST -01 • . B. The Board is aware that the nature of land use applications has changed . • . dramatically in the past 30 years. Back in the early and mid -1970's, when the fust • ▪ common law cases. were decided, most land use applications required:Very little detail or . expense on the part of the applicant up front. Now much of the 'work that is to be done- f• or a. land use development has to be done up front so that all of the relevant information • .. is included with an. application or submitted shortly thereafter. The land.use environment' •• today requires much more legal; engineering and consultant work up front compared to .. • the state of affairs in the early and mid -1970's. Legalrwork, engineering work, design • work; consulting work are all necessary components to any complex land usa application . • • in Oregon. The expenses incurred by Mr. Shown were appropriate, necessary and • • attributable to this development. They were substantial and done in reliance on and in ; • • complianeeof the law. • :------.__-__ _._..---._.._._..---- _.-.C.,__—e_asts- 71-by-the-applicant-to-develop-thesubdiviston exceed $3Q OQi; _..�F:_:1—te::�.s:l'J...F.ILViP15YaaraF •_... r ... the development were appropriate and necessary. The expenditures made•bythe applicant, including but not limited to, entitlement costs, subgrade ofroad, water and service lines, utility trenching and conduit, combined with engineering, surveying and . legal work take this use from a mere contemplated use to a vested Use. • • • D.. • The Board finds that applicant has spent over $300,000 in "allowed expenditures' to get to this stage. This is beyond a contemplated use and Imo committed the use of the propertyto a use which,is'inconsistent with either the ether alternatives under Measure 49 orate current EFU A-1 zoning. . Factor 2.2: 'Project Cost A. The Board thids: that the total project cost based on incurred allowed expenditures . ($300,000) plus estimated completion costs ($250,000) to be approximately $550,000. •B. For the reasons .allocated by the applicant, the Board findsthat the cost of • • ..-individual-residen -should-`not br nuiirdiedi f-tt3project qt r complamilf5r to project. • C. The Board finds that the subdivision is 54% complete or is complete as follows: Costs expended to date Approximate cost to finish subdivision • TOTAL PROJECTED COSTS $550,000:40 $300;000 $250,000 R.atio,ofcosts expended to projected • Page 6 —.FINAL COUNTY VESTING DECISION Casefile 08 -VEST -01 54% •i • • D. The Board does further find however that even if homes were to be includedthat .... • ., • : there is sufficient investment in this project to vest it under Oregon common law; *The . ... • • ' ...Board finds that the ratio of expenses to be approximately 4%. Although this is less than • the 7% found in Clackamas County v. Holmes, the 7% is not a hard and fast rule.. . • 3 • E. • The Board finds the applicant's development efforts have been ongoing for over 2. ' ; •• rAyears, a substantial period of time. •'• F. The Board finds the investment by the applicant in this project was substantial. . . . ' G. • The Board finds the investment ..dedicated su • H. • The applicant received a final plat which is now recorded and the subdivision lots • . already exist. .. • L . • The Board finds that the ratio of allowed expenditures to total project cost is . sufficient to be deemed "vested" under Oregon common law. Factor 3: , The goodfaith of the property owner. Expenditures made prior to December 6, • ' 2007shall be presumed to ham been made in good, faith. • A. The Board finds that although voters may have been aware.of BallotMeasure 49 • • and its effect as early' as June 15, 2007, and that Ballot Measure:49 was approved by the voters on November 6, 2007, that Ballot Measure 49 §5(3) provides that lawful development to obtain common law vested right was permissible up to and including the effective date of Ballot Measure 49; that is December 6, 2007. The Board finds that • "lawful,development" and "allowed expenditures" prior toDecember 6, 2007 are • presumed to have been made in good faith. Nothing in the record before the Board rebuts • • .. �'s--presurnpton:--Aceording yralln0ailowedex endirures" routohave been made ,by the property owner in good faith. . B:: Gordon Shown (Shown) began hi5.process not under the threat of a change in • zoning or even a change in Measure 37. Shown began this process soon after Measure 37 . . was Passed by the voters. In reliance on, and compliance with, the law,•he filed written Measure 37 claims with both the State of Oregon and Jefferson County. In compliance. : • • : with the law, Jefferson County and the State of Oregon issued waivers ofregulations. In . • compliance with the law, and in reliance on it, Gordon Shown hired consultants 'and engineers to begin drafting a plan for a 31 -lot subdivision back in 2006: Much of the • • planning work and design work for the subdivision was done in 2006. • • Page 7 —...FINAL COUNTY VESTING DECISION , Casefle 48 -VEST -01 • • • 4 • 'C. • The Board finds Shown made sure that his application and design of the' 1** subdivision was in compliance with all requirements of Jefferson County. He and his consultants continually met with the Jefferson County officials to make sure that they • • . Were in compliance. The subdivision itself was.approved in November, 2006... • . • taerea#ter, Shown took the appropriate steps to initiate work on the subdivision in. conformance with the approved plan. He obtained a bond to'ensure the improvements were completed. The final plat was prepared by the engineers and•recorded: Substantial . work was done on the road and utilities for the subdivision. This project was not done in 'a rush, it was done over a two and one-halfyear period of time. • .D. The Board finds the property owner reasonably believed he was proceeding in good faith prior to December 6 . • .�.__:._ :v ke m..R toLA = N ether thepr-operty owner=had-iw c of t e rnpnse c i ige'h he vre .". �`3`: -- beginning development A. The Board finds that Shown commenced development of the subdivision long before Measure 49 was formulated. The evidence shows, and the Board finds, that much of the work was done even before the 2007 Legislative Assembly convened. Measure 49 was enacted by the Legislature and referred to the voters for the election on November 6, • 2007. Measure 49 was, at best, apossibility until the election of November 2007: Alniost all of the Work associated with the subdivision was completed before the election date. Measure 49, in and of itself did not constitute sufficient notice that expenses incurred up . ' {_ to December.6, 2007 would not be eligible. In fact, the statute and the interpretation of . thatostatute by many persons, including local governments, concluded that the Measure would allow expenses incurred prior to. December 6, 2007, to be deemed eligible for consideration of a common law vesting: • . B. The Board finds that although voters may have been aware of Ballot Measure 49 and its effect as early as Tune 15, 2007, and that Ballot Measure 49was approved by the ..�vote =en -Nov ber4 2007,-that=Ballot easure-49 $-6(3)-provide htt'lawfur.'.' ..' development to obtain common law vested right was permissible prior to the effective date of Ballot Measure 49, that is December 6, 2007. Factor 5: Whether the improvements could be used for other uses that are allowed under . the new law. . A: The Board finds that prior to the subdivision approval this property was vacant.. • Under current law, the entire 67.78 acre parcel could not be divided into additional faun - parcels because of the.niinimum lot size requirement of the Jefferson County Zoning Ordinance as well as State regulations. . Page 8 — FINAL COUNTY VESTING DECISION Casefile 08 -VEST -01 • • • • 43-08_ B. • ' Although the property could be used for other uses allowed in the EFU A-1 zone . • either as outright or conditional uses, very little of the activity or expenses incurred by the : • applicant in developing this 31 -lot subdivision would be pertinent to either the existing :.' use or other uses allowed outright or conditionally in the EFU A-1 zone. The road, water_ , .. and service lines, utilitytrench and conduit are all consistent with.a 31 -lot subdivision. There is no question that these improvements can only be attributable to a 31 -lot . subdivision. They cannot be considered expenditures that would be consistent with farm use or With a 3 -lot partition under Measure 49. • • •• C.. ' The Board finds that there are generally two possible types of uses allowed under • current land use law.' One is the current EFU All zoning which, with few exceptions, • would allow a variety of general farm and agricultural•uses. The use contemplated here is disparate_from those_types_of uses._It-isalso-disparate-from other -Uses -that -could -be - • ._......-.tt.....,...._................_..._._... acres in size and must be clustered. The engineering work, legal work and improvements are incoihsistent with either the allowed uses under the EFU A-1 zone or the two parcels that would be allowed under Measure 49. This applicant would be ineligible fora 10 -lot subdivision because this parcel lies within the boundaries of an irrigation district and is • considered high value farm land under Measure 49. . . -Factor 6: The kind of use; location and cost ofthe the development The Board finds the use is a 31 -lot residential, subdivision located at the Northeast intersection of Hilltop Latae and Clark Drive, Jefferson County, Oregon, more particularly. . described at tax assessor's map..10-14-32-700 and 10-14-32CB-100. The. cost of the development is discussed in Faetor2 findings above. • • .Factor 7: Whether the owner's acts rise beyond mere contemplated use or preparation, • • • such as'the. leveling Oland, boring test holes, or preliminary negotiations with contractors or architect • .. ...... .. G...w._.w....w.r•...r.+•..pn...•nttY 1 Y/ 111 :.tAq_ :.: :.::___l:: .::.. �:»'r»: . .... ..�:.. � . A. . The Board finds the owner's acts were not mere contemplated use. Owner contemplated the proposed use when the written demand was made under Measure 37 • With the State of Oregon and with Jefferson County for a potential subdivision. Once the waivers were issued, this contemplated use was transformed into a clearly defiiaed • proposal for a 31 -lot subdivision. B. • The Board finds that to subinit a proposal to the local government for • • consideration, considerable work had to be effected by the applicant to take it beyond a mere contemplation to an actually defined use with specific engineering, traffic analysis, • feasibilfor all utilities including water r wells, septic and utility extensions.. A : • • Page 9 — FINAL COUNTY VESTING DECISION • Casefile 08 -VEST -01 .. . • • . • . 0 " • : • .••• .., • . ,.. •. . • .. •-• • •• • .:: '.. ••••• :- • considerable amount of work was done even before this application was being considered . • -. . • •., • . . . -....• by Jefferson County. The application also had to go under rigorous review' under the . - • • • • *: county level before both the &main' g Staff and the Planning Commission. , The use,. once . - . •• • - • ... • • • -. . approved, authorized the applicant to move forward. - . - . IV. DECISION .. • .• • • .• The Jefferson County Board of Corriniksioners finds that property owner has a • • ' Vested right in 06 -SD -01 a 31 -lot residential subdivision (Bitterhnish Estates). Property • vested is sufficiently vested imder the Oregon Common Law to allow completion and . coWnuation of the Bitterbrush Estates, including but not limited to development of • • • • . infrastructure and dwellings, as. platted and recorded. . • • . . • • •--2: .-This-Pin-al CVjeCiOn sh-alI_vptvT6s, mature ... ----• . . , 3. • This decision is not a land use decision. • • 4.* The CorrnrtisSion finds that this Vested Right Determination shall allow the Jefferson County C•oramunityDeyelopraent Department to issue subsequent landuse site • plan approval and building permits in the usual and customary marzer. • Attest: Dated this adaL day OfMarch, 2008 P BOARD OFCOMMISSI -"••• I • WS "ill SS104 . . • Page 1.0 — FINAL COUNTY VESTING DECISION Casefile 08 -VEST -01 A APPEAL INFORMATION Thi's decision maybe appealed to.the Jefferson County Circuit Court in a Writ of Review proceeding :• filed under Oregon Revised Statutes, Chapter 34 by any person Who .is adversely.affected. A person is adversely affected if the person submitted written evidence, arguments or comments .before: the •• Board made and signed this Final Decision. A petition for Writ. of Review (appeal) must be fled • within sixty (60) calendar. days of the date written notice of the decision is provided (date mailed). . Judicial Review of a Final County Vesting Decision is limited to the evidence in the record before . , the Board at the,time it made and signed a Final County Vesting Decision and available only for issues that are raised before the Board with sufficient specificity to afford the Board and Applicant • an opportunity to respond. • APPEAL PERIOD: Date M_ai J . The complete file is .available at the Jefferson County.Comrnunity Development Department for review. For further information on filing an appeal, contact the Jefferson County Community Planning Department at (541) 475-4462. . •• • • • Page 11 -FINAL COUNTY VESTING. DECISION Casefile 08 -VEST -01 slitiLEY.EUDSPETH 8 CROOK COUNTY COURT • • ORDtR . •• • WHERtAS, this matter came before the Crook County Court ori April 16, 2008, on appeal from the 'vesting determination issued by the Planning Director file No. C -LS (M) 145-07; - • • ''W1lEREAS, the Court having reviewed the record and after hearing argument from the paries, and . the Court being fully apprised, • • NOW'JJIEREFORE THYS COURT FINDS AS FOLLOWS: • -"--1.: ' " '°'The record be of re tfie tourt consists of the record of the public entity pursuant to. • Measure 49, Section 16, which includes the Measure 37 file, and the Land Use • Application file, applicable to this property and this vesting determination, • 2. The Court finds there is evidence in the record regarding the total completion .• .• • costs of the project, inclucdiing, but not limited to the Record at pages 131-136. • 3. " The total cost of the project need not include the costs of the homes which is • determined by this Court to be too speculative and there is no direct authority on { • point requiring this Court to include the costs of the homes for this project, however; the Couit also fords that eveh with the cost of homes included in the calculation, with a minimum cost of $100,000 per -dwelling, there is a sufficient substantial investment directly related•to the establishment of the residential. *subdivision, which was made in good faith, to vest this development, • 4. This Court affirms and incorporates herein by this reference the. findings and con. usians.in-the,decision afth r-Grook - .... ,.......,...,.r ...�......._...:_�. Ceunt3r-Gommunit-y-Develeprenti. • Planning Director case number C -LS (M) 145-07. • BASED upon the foregoing, the Crook County Court hereby orders that the tentative subdivision plan for a 59 lot residential planned unit development with. buildable lots, a clubhouse and stables is vested. • . . DATED this day of April 200.8. • Scott R. Cooper, Judge . Mike McCabe, Commissioner . • Lynn Lundquist, Commissioner C:\DOCUM&-r ED\LOCALS-1\TEMPIXPGRPW1sE\CROOK COUNTY. ORDER 1 DOC Crook County Community.Develo ment *- P . PLANNING DEPARTMENT :: • - . . 300 N.B. 3rd Street • Prineville, Oregon 9 754 • Phone (541).447--8156 • PAX (541) 416-3905. • •VESTED RICHT DETERMINATION •. • • . APPLICANT/OWNER: Shelley Hudspeth . • _.=T�-9- ,-�w���.•_�•-_ . � A�t��Y/ACEI�iT-Sp.�-.�--��warrl�T'Tifcli==-.�_�______.•_... Bryant, Emerson & Fitch _......__... 888 W. Evergreen Ave. • • P.O. Box 457 • Redmond, OR 97756-0103 • ,BE: C -LSM 145-07: A request by Shelley Hudspeth for Tentative Plan approval • :for a 59 -lot subdivision (Hudspeth Ranch) on a 295,18 acre parcel in an Exclusive Fann Use zone EFU-2 was approved by the Crook County Planning Commission on September :26, 2007. The approval was granted pursuant to State and County Ballot Measure 37. Waivers. On December 6, 2007 Ballot Measure 49, which modified Ballot Measure 37, • became effective. The applicant is seeking a vested right determination to allow completion of the subdivision. An application for vested right determination was received on November 30, 2007. LOCATION: The property is located at T 14 5 R 16 EWM Sec 27. TL 202; Sec ' • —28 -TL- :02; 5-334'TI`103: NOTICE: Notice of the Application for a Vested Right Determination was sent on • - • January 22, 2008 to applicable parties. An addendum with a minor correction was•sent on January 29, 2008. . . COMMENTS; • • Comments were received from Central Oregon Landwatch,100 • Friends or Oregon, DLCD, Bill and Trudy Martin, Torn Deward and Donald James: • DECISION:. The Planning-Direeto ids -that C-LS(M)145-07: A request by Shelley Hudspeth for Tentative Plan app:Fat fir a 59 lot subdivision (Hudspeth Ranch) ' • is VESTED •: A �j1 e'idx j.7 ti •' 1 1.+ �3 'tx r.• • ,4k bye•key • • f w •i ;i3j.3 `�'7r-�i �R•l"�pNt :tfiy++ p.. ° •7 •rFkitird rk a,'e �4s1J ro• . v� • .: • ffrnfspeth, Vested Right Determination Page 2 . . . • • .• • • • The abo$ request for a vested right determination has been reviewed by Crook County • Planning Director ("Director). . L PROCEDURAL FINDINGS Late &Mince Receivedfrom DLCD and from 1000 Friends of Oregon - • • .. • The Director folds that the Notice for tbis Vested Rights Determination was sent on. . January 22 and January 29, 2008 and.required •cOmments to be'received by the Planning• . Department before 5:00 PM on February 4, 2008. The Director finds that the comments o_f_Oregon of this_VestedRighti..D.etermination..Parthermaka,%tbe,a pplicant-has-_. ... had a chance to respond to the late submission, there Is no prejudice to the applicant -in accepting the late evidence. IL APPLICABLE LAW FINDINGS • • Comments received from Central Oregon Landwatch indicate that the County should :considir "national law" or case law outside the State of Oregon in making a Vested . • :Rights Determination wader the common law doctrine of vesting. The Director finds that -yvhile case law from other jurisdittions may provide persuasive authority, they are not • "binding precedent on the decision of the County. . rfL. VESTED RIGHT FINDINGS . • A. The good faith of the propert, owner in making expenditures to lawfully • develop the NoNr0. in r giVen manner; • • • .•• • • . . - • . . . • . • • • . . • ' On November 6,2007, the voters approved Ballot Measure 49. B:allotlVIpasure 49 • modifies Ballot 1;i1b.asurer37 (2004) and took effect on Deoeniber 6, 2007. • Ballot Measure 49 § 5(3) [emphasis added] provides that: • . • • SECTION 5. A claimant that filed a claim under ORS 197.352 on or before the date of adjournment sine die of the 2007 regular session of the • . Seventy-fourthtegislative Assembly is entitled to just compensation as• • provided in: (1) Section 6 or 7 of this 2007 Act, at the claimant's election, ifthe property deperibed in the claim is located entirely outside any urban • growth boundary and entirely outside the boundaries of any city; • (2) Section 9 of this 2007 Act lithe prop6rty described in the claim, is • located, in whole or in part, within an urban growth boundary; or (3) A waiver issued before the effective date of this 2007 Act to the extent that the elabtant's use of the property compiles with the . • • • •; •ITudspeth, Vested RighiDetermination • • • "Page 3 • waiver and the claimant has a common law vested right on the . • effective date of this 2007 Act to complete and continue the use • described in the waiver . • • The Director finds that although voters may have been aware of Ballot Measure 49 and • " its effect as early as June 15, 2007, and that Ballot Measure 49 was approved by the' • • voters on November 6, 20Q7, that Ballot Measure 49 §5(3) provides that lawful : •. ' development to obtain common law.vested right maXoccur up to and includiing the • • " • . effective date of Ballot Measure 49; that is December 6, 2007. The Director finds that . "lawful development" aid "allowed expenditures" .up io and including December 6, 2007 . .•are deemed to have been in good faith. . • . B. The amount of notice of any proposed change in law before beginning development; The Director finds that Measure 49 was. enacted by the Legislature and referred.to the voters for the election on November 6, 2007. That Measure, in and of itself did not • •-constitute sufficient notice that expenses incurred up to December 6, 2007 would .not be 'eligible. In fact, the statute and the interpretation of that statute by many persons, :ancliviiing local governments, concluded that the Measure would allow expenses incurred -up through December 6, 2007; to be deemed eligible for consideration of a. cowmen law ' vesting. C. The amount of reliance on the prior land use law fe.g. Measure 37J in making expenditures to develop the property; • The Director finds .that there is no evidence -of reliance on Measure 37 in purchasing the property. There is evidence of reliance onthe waivers issued by the State of Oregon and . Crook County, as well as the land use approval provided by Crook County in approving . this 59 -lot subdivision. The applicant followed the law by filing written demands with . the State and in making an application that fit in with the waivers issued by Crook ' ..County and the State of Oregon. The work done was in reliance upon those waivers and " upon the approval issued by Crook County, an approval which was not appealed'byy any • party. D. The extent to which the expenditures relate more to the nonconforming use than to the conforming uses; (whether the improvements could be used for other uses that are allowed under existing law .[e g. existing zoning laws and Measure 49J); • • Huieth, Vested RightDetermination ' • Page 4. •• . • The Director finds that prior to the subdivision, this property was a single farming unit: ' • comprised of approximately 295 acres. Under current law, it could be divided into • • approximatety three parcels. The property could also be used for other uses allowed in' '-• '. the EFU zone either as outright or conditional uses. Very little of the activity or expenses incurred by the applicant in developing this 59 -lot subdivision would be pertinent to • • either the existing use, a 3 -lot partition or other uses allowed outright or conditionally in. • the EFU Zone. The septic systems; water systems,.and.fencing, are all consistent with a 59 -lot subdivision and inconsistent with the existing use or uses'allowed under current -law. However; the Director finds that mobilization and grubbing might be consistent .with &use or uses allowed under • current law and as such those Costs ...:n _� b- included _ ' --- .. -.._ - _-_ T ,,.�,...- ....., ru wallet be .. ' in. "allowed expenditures". The Director also finds that the costs associated with the • ... • Glu -blouse might be consistent with a use car rues towed undear_current..law.(c t_as;a:.�:_:� :.:�: _� .:.._:::_�_-_, community center, se oo i church) and as such those costs will not be included -1i - "allowed expenditures". The Director further finds that the pivot removal might be • consistent with uses allowed under current law and as such those costs will not be . included iii "allowed expenditures". • • E. The extent of the nonconformity of the proposed use as compared to the . Ries allowed in the subsequent land use law fe g. Measure 49J; . The Director funds that there are generally two possible types of uses allowed under the . -subsequent land use law. One is the current EFU zoning which with few exceptions . would allow a variety of general farm and agricultural uses. The use contemplated here is • :disparate from those types of uses. It is also disparate from other uses that could be allowed under Measure 49, to -wit: two parcels, each of which cannot be larger than 2 nacres in size and be clustered. The engineering work; legal work andmost improvements are inconsistent with either the allowed uses under the EFU zone or the two parcels that . would be allowed under Measure 49: This applicant wouldbe ineligible for a 10 -lot • subdivision because it ilea:withinth&boundaries ofan ir*riatatiort-disttiet an high value faun land under Measure 49. • F. ' Whether the expenditures made prior to the effective date afMeasure 49. . • show that the property owner has gone beyond mere contemplated use and ha. • committed the property to an actual use which would in facthavebeen made . • But for thepassage of Leasure 49; . • This use was at one stage a mere contemplated use. That is when the written. demand .was made under Measure 37 with the State of Oregon and with Crook County for a potential subdivision: Once the waivers were issued, this contemplated use was transformed into a clearly defined proposal for a 59 -lot subdivision. To submit a proposal to the local • • government for consideration, considerable work had to be effected by the applicant to - take it beyond a mere contemplation to an actually defined use with specific engineering; traffic analysis, feasibility for, all utilities, including water wells, septic and utility . ' '. Hudspeth, Vested Right i etermination • ' . Page 5 - , . .• { extensions. A considerable amount of work was .done even before This application was • • • being considered by Crook County. The application also had to go under rigorous review - .under the county level before both the Planning Staff and the Planning Commission. ' The • ▪ • use; once approved, authorized the applicant to move forward: The expenditures made. • by the•applicant, including but not limited to, septic evaluation, grading work, and . construction of improvements, combined with engineering, surveying aud'legal work done to take this use from a mere contemplated use to a vested.use has. been considerable. • The applicant has spent over.$500,000 in "allowed expenditures" to get to this stage. The - Director finds this is beyond a contemplated use and bas committed the use of the property to a use which is inconsistent with either the other altenzatives under Measure 49 . • or the current EFU zoning. • • • ' ' . • ' •• • • : • ,a,z - ra.'aAtikallaiierLexpenditur-esr-to-tha-totat cost ortheproposed =--------=---=-->-- --- =—: _==:: • development as has been interpreted in Oregon case law. • �. Allowed 14 xpenditures The Director finds that the following expenditures are "allowed" and the explalration for their inclusion is listed below. ' `��i µ.'' �t�=. �j� tv.�f�-ic7. 'ii: t�lS ''o'ls a, ;,. -� E a 'a :' ` W47=k. w0: �_.-.-^- '-,s-i� R_.� -��; '•- = r,.a� �i • cmc L zGz assn �'i;-� p..'�'.v � ^, �a�`� ".�"'�f, a .i s-_ F1-.. ��T-=F"re_P:=-'�G;�. �^aa-.}�,..:..ar -...t - = . 3 � -.. ..k 1-9 4' - ti _ , =ri�- -'':"54 J(.!,-.'11.-.1, - R �_....LE.,..,,:_...�. c..,. _i.• 1 •:Clint Woodward • , . • Excavation, trench . digging, road digging, Invoice 593, Dated 11/16/07 Check 1047 • • $123,830.00 . Clint Woodward • • • • • • Excavation Invoice 591, • Dated 11/08/07 Check .. 1034 (Mobilization and . grubbing excluded) $15,430.00 . . • : • • Clint Woodward __..._..._. .. . ' • -....----Dated-11-12-7/0-7 Exeavation'Invoice 595; ' - • $7,000.00' ' :..........._ _. • Clint Woodward - . . Silt Fencing, Invoice.. 597, Dated 12/05/07 $1,850.00 Clint Woodward 'Septic; Invoice 595, .Dated 11/27/07 $4,350.00 .. .• . Crook County . . - . Septic • Check 1039 Dated • 11/20/07 • . . • $25,025.00 . . . _ ' • Maphet Well • , Drilling and Pump Service . Invoice Dated 11/14/07, Chec111O5 - . • $15,126.59 . - Kleinfelder . - . • • Invoice Dated 11/13/2007 and Water • Supply Well report Dated 11/13/2007 . • • $3,500.00 ' • • • • • • Hudspeth, Vested light Determination ' Fage 6 • • �•t-31 - l (fO3Jr1�rrrz+^ rrIyiT—T� —�Ti.C_y'`�- �= E• S� i-;�a�--=_ u� tF7F.•'v-� .:'.? w `—am" f�r —;;;.7.7::- c .�. 4 • C�u�t c �.r �-.�?�fi�f 1knJF_a HCcG•... —. �, L�TiSL'7 I�11` �r,r ' 3E=�'��y}'�'--t '"�-�r s�'-..5, - , •5+ Clint WoodwardInvoice Number 597 ' 12/5/07 __ $3,767:50 " •• •.. Dunn Brothers • • Fencing Invoice 112807, Fencing Complete on 12/06/07 • $17,834.00. • Clint Woodward Construction " . Enfry Gate Site Prep, . Invoice 595, Dated . • 11/27/07 • $2,515.00 • •. . • • • Clint Woodward • •' Construction ' Entry Gate, Invoice 597, • Dated 12/05/07 • $7,897.50 • . • - T--OT-ALIN -- ----- -------- -------- ---....---- ...._..__.._...----_.__.....__ $231,125.59 = • --- -- -- -- ---...------- • -GROG —' EXPENDITURES ' l.. . 1 a?.C'�. -t La- [ O L�F"g � - 77.-. :.'--. lft.' --.g.- -Ix . _: - C,(.r -. ...:=F•-•77'W-----'z:1L - -eiE.m1 a6Z.Ta JF.,i_^."xr%aJ�61.d axw05 " - ;:, • .-bB"6n '��E -"`�w k T(pwr Anxistrong . . • . Engineering . • Invoke 5488 Dated 10/29/07 Check 1041 Survey/Monument cA . $3;674.70 • • • • • .• Tye Engineering . Invoice 5920 Dated 11/14/2007 Check 1037 $23,888.75 . . . Tye Engineering . Invoice 5920•Dated • 11/14/2007 Check 1037. • $2,101:25 ' • • • Tye Engineering . Invoice , 5616 Dated 5/2/2007 Check 1003 . • . $2,110.00 " • rage Engineering .Check• Invoice 111 Dated 5/.14/2007 , 1011 Traffic Study . $2,600.00 • Tye Engineering Invoice 5668 Dated 6/4/2007, Check Number 1012 " $10,170.00 . •'Tye Engineering , .... - ... Invoice 5717 Dated 7/3/2007 �_-•............. -Choc uni. e- r 1-03'x' -__. $8 49.68....' - - .... _.. Tye Engineering • invoice 5769 Dated 8/2/2007, Check 1037 $4,429.86 Tye EngineeringInvoice 5899 Dated •10/2./2007, .Check 1037 " :: • • . • . ." $57625 ' . - Armstrong Engineering • - • Invoice 5525 Dated `' • .. 11/26/2007, Check 1044 ••. ' $14,445.00 - • Armstrong engineering Invoice 5539 Dated 11/28/2007 Check 1052 • $2,320.00:.' - Tye Engineering- . Invoice 5972, Dated• 12/4/2007, Check 1037 $26,723.30 • . - -• Tye Engineering . Iiivoice 6001, Dated - 12/06/2007. $6,726.25 • • Armstrong Engineering Invoice Dated 12/16/07 (Work performed 11/28/07) • $210.00. • . ' •' •' Hudspeth, Vested Right Determination Page 7 • . AIi_0a L 'vr"=`_.�,�-'."a._:- - _.�uC ' G�F'C.-^•._..',:,-��i h��iST�._ !-i6 -tl1_}�a:,.�_r"��TP.41.T.:Vu.,. v�E'M' ,.=-=,:..•w 1 ` IFT_� M_'- BryantEmerson& Fitch Attorneys Fees From September 26, 2007 to December 6, .2007. - • ... . • • . Invoices, 118353, 119573,. 120420, 1213232, 122225, . 123230, 124006, 124007, 125202, 126301,126858, 128011028975, 129724, 130487,1311222,131259, .131977, Checks 1000,1.03 0, . •• 1045 • . • ..._. . • . $38,304.36 . ' . •• •Sisters . • . ' • Log Home • • ' • Entry Gate $34,278.00 • : • —� �.—.-- .-'_'--- • • :�_:_Invaice.-Sister"sLo.g Ll ated— -._ _.,:,_„__.--- ___-_. 11/15/2007 Check 1038 Sisters Log Howie •• Entry Gate . invoice 36 Dated • . 11/19/2007. Check 1042 • $22,722.00 • . • - . Sisters Log Home • • Entry Gate Invoice 41 •Dated .• 11/19/2007, Check 1051 .. •• $60,860.00 • • Handcrafted Log Homes . ' Entry Gate ' • . - . Inyoice:1l2$07,Dated... 11/28/07 ' • t' •••. • $6,785.00. • • • • ' . 'TOM OTIdER '• .EXPENDITURES • • . • $271,174.44 . - • .TOTAL ALL$502,300.03 'EX['ENDTTURES . • . a. .In -ground expenditures ©re -p is ose lawirelea that =groom-dleVelapriei t eosfsfate "allowed-=. - ' . expenditures". Furthermore the Director finds that the in -ground improvements indicated aboveivere made lawfully on or before December 6,2007. b. Surveying Fees . Oregon case law is clear that surveying costs are "allowed expenditures". c. • Engineering Oregon case law is clear that engineering costs are "allowed expenditures". d. Entry gate • Oregon case law b clear that hi -ground expenditures are "allowed expenditures".. Although the entry gate was not wholly constructed prior to December 6, 2007; • Iludspeth, Vested Right f etermhzuiiori • . . Page # . .• •• the Director.finds that the expenditure for the entry gate was incurred prior to . • - December 6, 2007 and that this expenditure was committed to'and paid for prior,. to this date. The Director also finds that the entry gate is fairly elaborate and • • . specifically designed to serve the subdivision and could not be used for another • allowed use under current law . 2. Excluded Expenditures The following costs were not included as "allowed expenditures" and the reason . for doing so listed.below. _Mobilization and grubbing_..-----_---.— • As indicated in Section ULD, the Mobilization and grubbing is not included in • "allovied,expenditures" as this work relates to.other uses which maybe allowed under the current I FU zoning and Measure 49. • • b. Attorney's• fees prior to Land Use approval 'The Director finds that while attorneys' fees have previously been included in the • • ratio of "allowed expenditdres", the extent to which they have been included is • ambiguous in Oregon case law. Where attorneys' fees have been included the -• rase law does notclearly specify that attorneys' fees occurring prior to land use perinits being issued or prior to the change in law are validly included in the ratio. °Therefore, as the matter is imprecise, the Director finds that attorneys' fees after . .Mand use approval may be included in allowed expenditures, and finds that attorneys fees prior to land use approval. may be not be included as allowed expenditures. • • c. . Crook County Application Fees ' Oregon case law provides no clear indication that application fees should be considered "allowed expenditures Therefore, the Director finds that application fees are not included as allowed expenditures. • d. Administrative Fees Oregon case law provides no clear indication that administrative fees should.be • considered "allowed. expenditures". Therefore, the Director finds that administrative fees are not included as ailovued expenditures. . e. Clubhouse r • .• . • • .• ••-- • . • • . Hitifspeth,VestedRightDetermination . • • •• • • As indicated in Section DID. the clubhouse is not included in "allowed . : • expenditures" as this work relates to other uses which may be allowed under the • . • • current EFU zoning and Measure 49. : ••• L Pivot RemOval • ." . . • . • As indicated in Section BLD the Director finds that the irrigation work pertaining • • to the pivot removal relates to other uses which may be allowed umler the current • • 1.. • EFU zoning and Measure 49. . • . • g. . Interest .a.m.•1.-.4 I I/ 141lt Mal 4,1,4f • . Oregon case law provides no clear indication that interest expenses • ' considered "allowed expenditures". Therefore, the•DireCtor finds that interest expenses are not included as allowed. expenditures. • • • • k. Costs not incurred by the applicant • The Director finds that Costs incurred by persons other than the applicant (e.g. Jim • .:Oarziner) are not "allowed expenditures." While these costs. could have ultimately . "leen paid for by the applicant there is -no evidence in the record to support that 3. Project Cost • -The•Director finds the total project cost based on the projected budget of the• applicant is approximately $5,081,946.00. The Director finds that the cot of individual residences shall not be included in total project costs for completion for . • ••••• ..-thezubdivisionand:thatthose cfas_zr aasimprovals-for • • • .• • site plan review and building permits. The Director finds that the subdivision. is • 938% complete or is a complete at a ratio of approximately 1:10 of edlowed expenditures to total project cost . • * • • • I • • • • : TOTAL • PROJECT COST • Project Cost Summary $5,081,946.00 . • ' • . • PERCENTAGE COMPLETE. •9.88% • .. • • . The Director finds that the ratio of allowed expenditures to total project cost is sufficient -ander Oregon case law. • . •• ' H irdspeth, Vested Right Determination .•. .rage 14 . • • N. CONCLUSION . The Director funds that the above Tentative subdivision approval 0:LS(M)-145-07 is VESTED, based upon the above analysis and findings. The Director finds that this ' • . Vested Right Determination shall allow the completion of the subdivision and that once = • • completed, subsequent land use site plan approval and building permits may be applied .: for and issued in the usual and customary manner. PLEASENQTE THAT THE LAW AFTER TIM ADOPTION OF MEASURE 49 IS • UNCERTAIN AND TIDE APPLICANT(S) SHOULD NOT PLACE UNDUE . ' • RELIANCE UPON THIS VESTED RIGHT.DETERMINATXON. APPLI.GANT(S) • . PROCEED AT THEIR OWN RISK.. • . • . Dated this• 11th day of February 2008". William P. 4e1 . Crook County ° : „ g Director co: File .• Applicant Attorney Agent . Carmel Bender, DLCD Richard Whitman, DLCD O1D Carol Mcbeth, 1000 Friends of Oregon • • • Pam Hardy,�C�nixal Qxegon Landvvatcki .... •....... Bill and Trudy Martin _ . Tom Deward • . Donald James Crook County Departments Jun 06 08 01:19p Cl camas County Counsel (51 742-5397 p.2 Timothy P. Alexander Senior Judge State of Oregon IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF CLACKAMAS W. LEIGH CAMPBELL, CEILLE W. CAMPBELL, AND DONALD B BOWERMAN, No. CV07120048 Plaintiffs, v. STATE OF OREGON, Defendant. W. LEIGH CAMPBELL, CEILLE W. CAMPBELL, AND DONALD B. BOWERMAN, CLACKAMAS COUNTY, RECEIVED JUN 0 5 2008 COUNTY COUNSEL OPINION OF THE COURT Plaintiffs, No. CV07120049 v. Defendant. P.O. Box 6237 Aloha, OR 97007 This comes before the court for trial on Count One, Declaratory Judgment. After reviewing the evidence and considering the written and oral presentations of counsel, I find as follows: Jun 08 08 01:19p C1a .amas Count Counsel (50 742-5397 P.3 1. The Measure 37 . waivers tendered by the County and the State are personal to plaintiffs, not Gordon Root; 2. The development contract is binding on all parties and is contained in the original written agreement; 3. Attempts to modify the agreement to provide evidence for this case is too late to be effective; 4. Plaintiffs have not actually spent any money to develop the property. Therefore, pursuant to the relevant case law, Plaintiffs have not sufficiently vested in order to satisfy the language and intent of Measure 49. I find in favor of Defendants and against Plaintiff on Count One, and decline to issue declaratory judgment in favor of Plaintiffs. As 1 indicated at the end of trial, in the event that Plaintiffs successfully persuade an appellate court that I am mistaken on the above issue, I will make additional findings based on the evidence presented to avoid the need for a new trial. In view of the opinion in Clackamas County v. Holmes, 265 Or 193,508 P2d 190(1973), I make the following determinations as to each of the factors: 1. RATIO Developer his spent $1,295,869. The total cost of building approximately 40 homes on the available Tots and completing the infrastructure already contemplated is a minimum of $30,000,000.1 arrived at that figure after concluding from the evidence that the type of homes that can reasonably be built on these lots will cost over $750,000 including the materials and labor for the house, the driveway, the landscaping, the well, and the cost of the development attributable to each lot. Even if the land sells for $150,000, as contended by Plaintiffs, the sale price of the average home in the development will be $900,000. It does not make economic sense for Mr. Root to agree to sell the lots for that amount, since he would lose money, therefore it is more likely that the lots will be held until the market improves and the parties can make a fair profit. I am also convinced that prospective buyers for a home in this area with Jun 08 08 01:19p C1. .amas County Counsel (50 742-5397 p.4 1334 acres of land and similar lots on all sides will be able and willing to spend more than $900,000. For purposes of the Holmes analysis, the ratio is 1/23. Plaintiffs have not vested. 2. GOOD FAITH Plaintiffs have acted in good faith. Anyone who claims to be able to predict the outcome of a vote on a ballot measure in Oregon should buy a Megabucks ticket. It was reasonable for plaintiffs to continue with development until Measure 49 actually became law. 3. ADVANCE NOTICE See 2 above. If anything, the statement attributed to a key member of the legislature would have induced plaintiffs to continue preliminary work on the site even if measure 49 should pass. 4.NATURE OF EXPENDITURES The evidence weighs against Plaintiffs on this point. The work done to level the property and begin the erosion control and rock base for certain.roads can be used for three homes. Given the removal of the drain tiles, it is unlikely that the land can be used for livestock, but it could be sold as large homesites. S.NATURE OF THE DEVELOPMENT Plantiffs have identified use of the land for residential homes, and the early efforts have been for that purpose. Holmes is satisfied on this issue. &MERE CONTEMPLATION Plaintiffs have demonstrated a clear intent to develop a residential subdivision, and the steps taken are beyond the mere contemplation identified in Holmes. If called upon to make the determination of the totality of the circumstances, 1 would still find that Plaintiffs have not vested under Measure 49. Defendants would still be prevailing parties. Jun 06 08 01:20p C1a. amas Count Counsel C50. 742-5397 Defendants may elect which party will submit a partial judgment for consideration. June 3, 2008 ?. 0442, P.5 Timothy P. Alexander Senior Judge