Burke v. State

• Jurisdiction: Oregon
• Citation: Burke v. State, 352 Or. 428, 290 P.3d 790 (Or. 2012)
• Citation: 352 Or. 428,290 P.3d 790
• Docket Number: CA A144975,SC S059420).,(CC CV09040752
• Parties: Thomas BURKE; and Educative, LLC, an Oregon limited liability company, Petitioners on Review, v. STATE of Oregon, by and through the DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Respondent on Review.
• Court: Oregon Supreme Court
• Decision Date: 27 September 2012

352 Or. 428

290 P.3d 790

Thomas BURKE; and Educative, LLC, an Oregon limited liability company, Petitioners on Review,

v.STATE of Oregon, by and through the DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Respondent on Review.

(CC CV09040752; CA A144975; SC S059420).

Supreme Court of Oregon.

Argued and Submitted Nov. 8, 2011.

Decided Sept. 27, 2012.

On review from the Court of Appeals.^*

Gary P. Shepherd, Oregon Land Law, Portland, argued the cause and filed the brief for petitioners on review.

Stephanie L. Striffler, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review.With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before BALMER, Chief Justice, and DE MUNIZ, DURHAM, KISTLER, LINDER, and LANDAU, Justices.^**

LANDAU, J.

Under section 6(6) of Ballot Measure 49 (2007), certain “owners” of property may file a claim to establish up to three home-site approvals, notwithstanding existing land use restrictions that would otherwise preclude such development.At issue in this case is the meaning of the term “owner” as it is used in that section.Specifically, the issue is whether the term includes a seller of property under a land sale contract who retains legal title to the property.The Court of Appeals concluded that, as the term is used in Ballot Measure 49, the term “owner” means only the purchaser of property under a land sale contract and does not include the seller of the property who retains title.For the reasons that follow, we reverse the decision of the Court of Appeals.

The relevant facts of this case are few and undisputed.PlaintiffThomas Burke acquired 18 acres of property north of Highway 212 in Clackamas County in 1967.During the years following his acquisition, the Oregon Legislative Assembly enacted comprehensive statewide land use planning goals.See generallyORS chapter 197.Pursuant to those statewide land use planning goals, local governments adopted a variety of restrictions to the use of land, including Burke's property.

In 2004, the voters adopted Ballot Measure 37 (2004), designed to ameliorate the effects of existing land use regulations.In short, Measure 37 required state and local governments either to pay “just compensation” for the diminution in the value of land that results from land use restrictions imposed after the owner of private property acquired the land or to waive the applicable land use restrictions.SeeFriends of Yamhill County v. Board of Commissioners,351 Or. 219, 223–25, 264 P.3d 1265(2011)(describing enactment of Measures 37 and 49);Corey v. DLCD,344 Or. 457, 460, 184 P.3d 1109(2008)(same).

In 2005, Burke executed a land sale contract under the terms of which he agreed to transfer his property to Griffin.As part of the contract, Burke retained legal title to the property and promised to assist Griffin in pursuing either compensation or a waiver under Measure 37.He also retained the right to possess the property for a period of years after the execution of the contract.The parties recorded the contract with the Clackamas County Office of the Clerk.Shortly thereafter, Griffin transferred his interest in the land sale contract to plaintiffEducative, LLC.That transaction was also properly recorded.In June 2005, Burke and Educative filed a joint Measure 37 claim, as provided for in the contract.

Meanwhile, public concern in Oregon grew over the potential impact of Measure 37 claims.Friends of Yamhill County,351 Or. at 224, 264 P.3d 1265.In response, in 2007, the legislature referred Ballot Measure 49 to the voters in an attempt to remedy some of the perceived shortfalls of Measure 37.Voters approved the measure, and, on December 6, 2007, it became effective.Id.

Measure 49 retroactively extinguished any previously issued Measure 37 waivers of land use regulations and substituted a new framework for ameliorating the effects of those land use regulations.As we explain in greater detail below, section 6 of the new law permits the “owner” or “owners” of property to obtain development approval of up to three additional homes on the property if, on the date that the owner or owners acquired the property, then-existing land use regulations did not preclude such development.Thus, an indispensible requirement of a Measure 49 claim under section 6 is that the “owner” or “owners” acquired the property before any land use regulations that now preclude building the homes came into existence.Measure 49 defines the term “owner” to mean, among other things, “[t]he owner of fee title to the property,” or “[t]he purchaser under a land sale contract, if there is a recorded land sale contract in force for the property.”ORS 195.300(18).It also provides that, when there are multiple owners, the acquisition date is the earliest date that one of the owners acquired the property.Id.

Pursuant to section 6 of Measure 49, Burke and Educative filed with the Department of Land Conservation and Development(DLCD or department) a Measure 49 claim, seeking development approval of up to three homes on the 18–acre Clackamas County property.They contended that they were both “owners” of the property-Burke because he held title to the property and Educative because it was the purchaser under a recorded land sale contract.They further contended that they were entitled to the development approval because Burke, whose earlier acquisition date controls, acquiredthe property well before any land use regulations precluded the construction of the homes.

DLCD denied the Measure 49 claim.It reasoned that, although Burke held legal title to the property and had acquired the property well before any applicable land use regulations, he was not an “owner” for the purposes of the claim.According to DLCD, in the case of a land sale contract, the only owner is the purchaser under that contract.That left Educative, the purchaser, as the owner, because Educative had acquired the property after the applicable regulations went into effect.

Burke and Educative then petitioned for judicial review, arguing that DLCD had erred in determining that Burke was not an owner under Measure 49.The trial court affirmed the DLCD final order.Burke and Educative appealed that decision, and the Court of Appeals affirmed.Burke v. DLCD,241 Or.App. 658, 251 P.3d 796(2011).The Court of Appeals reasoned that the different categories of owners under ORS 195.300(18) are mutually exclusive; thus, in the case of a land sale contract, the only owner is the purchaser under that contract, regardless of whether the seller retains title to the property.According to the Court of Appeals, that interpretation is supported by the fact that the statutory definition of the term “owner” is phrased in the disjunctive, which the court reasoned ordinarily means that the stated alternatives are mutually exclusive.The court also noted that, under a land sale contract, the seller does not possess the property and no longer is subject to the land use restrictions from which Measure 49 is intended to provide relief.We allowed review to determine whether the Court of Appeals' interpretation of the statute is correct.

The issue before us is thus one of statutory construction, which requires an examination of the text of the statute in context, along with any relevant legislative history and canons of statutory construction.State v. Gaines,346 Or. 160, 171–73, 206 P.3d 1042(2009).See alsoState v. Guzek,322 Or. 245, 265, 906 P.2d 272(1995)(court applies same method of statutory analysis to statute enacted by voters as it would to statute enacted by legislature).When we interpret a referendum such as Measure 49, our goal is to discern the intent of the voters who adopted it.Stranahan v. Fred Meyer, Inc.,331 Or. 38, 56–57, 11 P.3d 228(2000).

As we have noted, the Oregon Legislative Assembly referred Measure 49 to the voters.The measure began with a statement of legislative findings:

“(1) The Legislative Assembly finds that:

“(a) In some situations, land use regulations unfairly burden particular property owners.

“(b) To address these situations, it is necessary to amend Oregon's land use statutes to provide just compensation for unfair burdens caused by land use regulations.

“(2) The purpose of [Measure 49] is to modify Ballot Measure 37 (2004) to ensure that Oregon law provides just compensation for unfair burdens while retaining Oregon's protections for farm and forest uses and the state's water resources.”

ORS 195.301(1)-(2).

Among other things, Measure 49 then authorizes relief from “unfair” land use regulations in the form of home-site authorizations.Under section 6 of the measure, a person may file a claim for development approval of up to three additional homes on a given parcel of property.To obtain that relief, the claimant must meet each of the following criteria:

“(a)The claimant is an owner of the property;

“(b) All owners of the property have consented in writing to the claim;

“(c) The property is located entirely outside any urban growth boundary and entirely outside the boundaries of any city;

“(d) One or more land use regulations prohibit establishing the lot, parcel or dwelling;

“(e) The establishment of the lot, parcel or dwelling is not prohibited by a land use regulation described in ORS 197.352(3); and “(f) On the claimant's acquisition date, the claimant lawfully was permitted to establish at least the number of lots, parcels or dwellings on the property that are authorized under this section.”

Or. Laws 2007, ch. 424, § 6(6).The key provisions for the purposes of this case are the requirements that the claimant be the “owner” of the property at the time and that the claimant acquired that ownership before adoption of land use regulations that otherwise would preclude the construction of the three homes.

Measure 49 plainly contemplates that there may be multiple owners of a single...