Clackamas County v. Holmes
| Decision Date | 02 April 1973 |
| Parties | CLACKAMAS COUNTY, a political subdivision of the State of Oregon, Respondent, v. Clifford L. HOLMES and Dorothy Holmes, husband and wife, Petitioners. |
| Court | Oregon Supreme Court |
Sidney A. Brockley, Oregon City, argued the cause for petitioners. With him on the briefs were Jack, Goodwin & Anicker, Oregon City.
Keith J. Kinsman, Deputy Dist. Atty., Oregon City, argued the cause for respondent. On the brief were Roger Rook, Dist. Atty., and Michael D. Montgomery, Deputy Dist. Atty., Oregon City.
Before O'CONNELL, C.J., and McALLISTER, DENECKE, TONGUE, HOWELL and BRYSON, JJ.
Plaintiff, Clackamas County, filed this suit to enjoin defendants from completing construction of a chicken processing plant on the grounds that the construction violated county zoning and building code ordinances. The trial court enjoined the defendants from any further construction, and the Court of Appeals affirmed, Or.App., 95 Adv.Sh. 967, 501 P.2d 333 (1972). We granted review.
The defendants raise two issues on this appeal: (1) the validity of the county zoning ordinance, and (2) whether the defendants acquired a prior nonconforming use and vested right to complete construction of the processing plant.
It is not necessary for us to decide the validity of the zoning ordinance applicable to this case, because we find that defendants acquired a vested right to complete construction prior to the enactment of the ordinance.
The defendants have been engaged in raising and processing poultry since 1950. In 1959 they were located on property near Milwaukie, Oregon, but because of certain physical limitations of the plant and rezoning of the area, the defendants were required to find a new location. In 1963 they became interested in the subject property in Clackamas County. After determining that the land was unzoned and no zoning was contemplated, the defendants conducted soil tests and received preliminary approval from the Oregon State Sanitary Authority. In February 1965 defendants purchased the property, planning to construct the chicken processing facility. A well was drilled, an irrigation system purchased, electrical power installed, and grass planted. The defendants spent approximately $33,000 toward the development of the property prior to March 1966. The total cost of the completed project would be between $400,000 and $500,000.
In March 1966, the county adopted an interim zoning ordinance, zoning the property Rural Agricultural-Single Family Residential. 1 The zoning prohibited further construction. Defendants applied for a zone change in 1966 and in 1967, but the applications were denied. Thereafter, the defendants ran cattle on the property. In 1970 they started construction of the processing plant, and a stop work order was issued by the county. This suit was then filed to enjoin the defendants from further construction.
The defendants contend that they had a nonconforming use prior to the adoption of the zoning ordinance. A nonconforming use is one which lawfully existed prior to the enactment of a zoning ordinance and which may be maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area. 1 Anderson, American Law of Zoning 306, § 6.01 (1968).
The allowance of nonconforming uses applies not only to those actually in existence but also to uses which are in various stages of development when the zoning ordinance is enacted.
Comment, 22 S.C.L.Rev. 833, 839 (1970).
The question of whether the landowner has proceeded far enough with the proposed construction to have acquired a vested right is an issue of fact to be decided on a case-by-case basis. 1 Anderson, supra at 359, § 6.23.
The courts and the text writers are agreed that in order for a landowner to have acquired a vested right to proceed with the construction, the commencement of the construction must have been substantial, or substantial costs toward completion of the job must have been incurred. 1 Anderson, supra at 358; 1 Antieau, Municipal Corporation Law 490.18, § 7.53; Note, 49 N.C.L.Rev. 197; Comment, 22 S.C.L.Rev. 833.
Some courts have attempted to define substantial expenditures on the basis of the ratio of expenses incurred to the total cost of the project. 8 McQuillin, Municipal Corporations (3d ed 1965) 502, § 25.157.
The ratio test was applied by the court in Town of Hempstead v. Lynne, 32 Misc.2d 312, 222 N.Y.S.2d 526 (1961). In Hempstead the property owner spent $120,000 for widening a road which provided access to a proposed shopping center. The area was rezoning to residential use. The landowner contended that the amount spent for improvements gave him a vested right to use the premises for a shopping center.
The court found that the landowner had failed to show the expenditure for the widening of the road was accomplished for the exclusive purpose of accommodating the shopping center, because such widening was equally consistent with using the property for residential purposes. In regard to the substantiality of the amounts expended, the court stated:
* * *.' Town of Hempstead v. Lynne, 222 N.Y.S.2d at 531.
The test of whether a landowner has developed his land to the extent that he has acquired a vested right to continue the development should not be based solely on the ratio of expenditures incurred to the total cost of the project. We believe 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 type of...
To continue reading
Request your trial
-
Cross Plains v. Kitt's Field of Dreams
... ... 2005, a tavern business called Kitt's Korner was operating in the Town of Cross Plains, Dane County. There was a sports bar and a large open area for volleyball and events such as banquets, weddings, ... Smith, 276 N.C. 48, 170 S.E.2d 904, 910 (1969); Clackamas County v. Holmes, 265 Or. 193, 508 P.2d 190, 193 (1973); Penn Twp. v. Yecko Bros., 420 Pa. 386, ... ...
-
State v. Maynard
...we said: "The problem with petitioner's argument is that it takes each of the tests or factors enumerated in [Clackamas Co. v. Holmes, 265 Or. 193, 508 P.2d 190 (1973)], as being wholly independent of the others. Although Holmes contains some isolated language which can be read as supportin......
-
An Or. Non-profit Corp.. v. Bd. Of Comm'rs Of Yamhill County
...owner's rights when land use laws are enacted that make a partially finished project unlawful. See, e.g., Clackamas Co. v. Holmes, 265 Or. 193, 197, 508 P.2d 190 (1973) (describing ‘vested rights' in those terms).” 344 Or. at 466, 184 P.3d 1109 . Thus, a “common law vested right” is one es......
- Bowers v. Whitman
-
Case List
...52 Cal. 3d 1184, 805 P.2d 329 (1991) City of Zephyrhills v. Wood , 831 So. 2d 223 (Fla. Dist. Ct. App. 2002) Clackamas County v. Holmes , 265 Or. 193, 508 P.2d 190 (1973) Clark v. City of Albany , 137 Or. App. 293, 904 P.2d 185 (1995) Cobb v. Snohomish County , 64 Wash. App. 451, 829 P.2d 1......
-
Vested Rights
...Smith v. City of Clearwater, 383 So. 2d 681 (Fla. 1980); Morris v. Postma, 41 N.J. 354, 196 A.2d 792 (1964); Clackamas County v. Holmes, 265 Or. 193, 508 P.2d 190 (1973); Boron Oil Co. v. L.C. Kimple, 445 Pa. 327, 284 A.2d 744 (1971). 772. Town of Largo v. Imperial Homes Corp., 309 So. 2d 5......
-
The Holy Grail: Managing Growth While Maintaining Affordability and Protecting Natural Resources
...make a partially finished project unlawful. See, e.g., Clackamas Co. v. Chapter Seven: The Holy Grail Page 597 Holmes, 265 Ore. 193, 197, 508 P.2d 190 (1973) (describing “vested rights” in those terms). But plaintiffs have made no claims that they have partially completed any “use described......
-
Property pieces in compensation statutes: law's eulogy for Oregon's measure 37.
...upon that subject would remain unchanged." Mugler v. Kansas, 123 U.S. 623, 668-69 (1887). (86) See, e.g., Clackamas County v. Holmes, 508 P.2d 190, 191 (Or. 1973) (demonstrating a vested property right to complete construction of a chicken processing plant where a well was drilled for the p......
-
Chapter 2964, HB 3925 – Relating to vested rights to uses of real property; creating new provisions; amending ORS 197.015; and declaring an emergency.
...ORS 197.015; and declaring an emergency. Whereas the determination of a landowner's vested rights under Clackamas County v. Holmes, 265 Or. 193 (1973), often involves significant fact-gathering and fact-finding; and Whereas most local governments do not have a land use process for determini......