Papworth v. Or. Dep't of Land Conservation & Dev.

• Citation: 255 Or.App. 258,296 P.3d 632
• Decision Date: 13 February 2013
• Docket Number: C103764CV; A148790.
• Parties: David PAPWORTH, Petitioner–Appellant, v. OREGON DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, a department of the State of Oregon; and Lorelei Lewis, Respondents–Respondents.
• Court: Court of Appeals of Oregon

255 Or.App. 258
296 P.3d 632

David PAPWORTH, Petitioner–Appellant,
v.
OREGON DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, a department of the State of Oregon; and Lorelei Lewis, Respondents–Respondents.

C103764CV; A148790.

Court of Appeals of Oregon.

Argued and Submitted Dec. 6, 2012.
Decided Feb. 13, 2013.

William K. Kabeiseman, Portland, argued the cause for appellant. With him on the

[296 P.3d 633]

opening brief was Garvey Schubert Barer. With him on the reply brief were Jennifer Bragar and Garvey Schubert Barer.

Stephanie L. Striffler, Senior Assistant Attorney General, argued the cause for respondent Oregon Department of Land Conservation and Development. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Mark L. Huglin, Portland, argued the cause for respondent Lorelei Lewis. With him on the brief was Draneas & Huglin, P.C.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

DUNCAN, J.

[255 Or.App. 260]Pursuant to Ballot Measure 49 (2007), Lorelei Lewis (claimant) sought approval from the Department of Land Conservation and Development (DLCD) for three total home sites on her property in Washington County. DLCD issued an order approving three total home sites, including the dwelling already established on the property. David Papworth (petitioner), a neighboring property owner, sought judicial review of the order in Washington County Circuit Court. The circuit court affirmed the order, and petitioner appeals. Petitioner contends that claimant did not meet the Measure 49 requirements for development of additional home sites. Specifically, he contends that claimant did not meet the requirement, set out in section 6(6)(f) of Measure 49, that, “[o]n the claimant's acquisition date, the claimant lawfully was permitted to establish” additional home sites. For the reasons explained below, we agree with petitioner and, therefore, reverse and remand.

To provide context for the legal issue in this case, we begin with a brief review of the history of Measure 49 and its predecessor, Ballot Measure 37 (2004). On November 2, 2004, the citizens of Oregon adopted Measure 37. That measure was intended to ameliorate adverse effects of restrictive land use regulations on property owners who had acquired their property before those regulations were adopted. See Friends of Yamhill County v. Board of Commissioners, 351 Or. 219, 223–25, 264 P.3d 1265 (2011) (describing enactment of Measure 37); Corey v. DLCD, 344 Or. 457, 460, 184 P.3d 1109 (2008) (same). Measure 37 required public entities that had adopted restrictive land use regulations either to pay property owners just compensation for the diminution in the value of their property resulting from the regulations adopted after the owners had acquired the property or to waive the regulations. FormerORS 197.352 (2005), amended by Or. Laws 2007, ch. 424, § 4, renumbered asORS 195.305 (2007). Under Measure 37, a waiver allowed the property owner “to use the property for a use permitted at the time the owner acquired the property.” FormerORS 197.352(8) (2005) (emphasis added).

[255 Or.App. 261]In response to concerns about the effects of Measure 37, the legislature drafted legislation and referred it to the voters as Measure 49 in 2007. The purpose of Measure 49, as stated in the measure itself, was to “modify [Measure 37] 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(2). To do so, Measure 49 “extinguish[ed] and replace[d] the benefits and procedures that Measure 37 granted to landowners.” Corey, 344 Or. at 465, 184 P.3d 1109. Instead of providing for monetary compensation or waivers authorizing any use permitted at the time property owners acquired their property, as Measure 37 did, Measure 49 provides property owners with relief in the form of “[h]ome site approval [s].” ORS 195.300(12) (defining “home site approval” as “approval of the subdivision or partition of property or approval of the establishment of a dwelling on property.”) Generally speaking, Measure 49 provides for approval of up to three, or, in certain circumstances, 10 home sites. Section 6 of Measure 49 governs applications for up to three home sites. Section 7 of Measure 49 governs applications for four to 10 home sites.

After the enactment of Measure 49, Measure 37 claims were no longer effective, and property owners who had made Measure 37 claims could apply to have them reviewed under Measure 49. To be eligible for up to

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three home sites, including any home sites already established on the property, section 6(2)(b), a claimant must have filed a timely claim under Measure 37 and must satisfy the requirements of section 6(6) of Measure 49.¹ Those [255 Or.App. 262]requirements include that, “[o]n 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.” Section 6(6)(f). Section 21(1) of Measure 49, generally and as pertinent here, defines “acquisition date” as “the date the claimant became the owner of the property as shown in the deed records of the county in which the property is located.” ORS 195.328(1).

The issue in this case is whether claimant satisfied the requirements of section 6(6), specifically, the requirement, set out at section 6(6)(f), that she “lawfully was permitted” to establish at least three home sites “on her acquisition date,” that is, on the date she “became the owner of subject property as shown in the deed records of the county in which the property is located.” ²

With the relevant statutory history and requirements in mind, we turn to the facts of this case. On December 28, 1973, claimant acquired 42.57 acres of rural property in Washington County. The property was zoned as agricultural land, specifically, F–1 land. There was one dwelling on the property. At the time claimant acquired the property, new lots for dwellings in the F–l zone had to be at least 38 acres in size. Thus, claimant's property was too small to be divided to create a new lot for an additional dwelling.

Washington County had adopted the ordinance creating the 38–acre minimum lot size requirement in June 1973. Before the enactment of that ordinance, the minimum lot size had been five acres.

[255 Or.App. 263]The ordinance that created the 38–acre minimum lot size requirement had a “sunset clause.” It provided that the 38–acre minimum was in effect “[f]rom the effective date of this ordinance (i.e. June 12, 1973) until December 15, 1973[.]” However, the 38–acre minimum did not expire on December 15, 1973. On December 4, 1973, the county adopted another ordinance, which extended the 38–acre minimum to December 31, 1973. Thus, when claimant acquired her property on December 28, 1973, the 38–acre minimum was in effect, although it had a sunset date of December 31, 1973. At some later point, the property was made subject to an 80–acre minimum lot size requirement.

In 2006, claimant filed Measure 37 claims with the state and county. Before the claims were resolved, the voters enacted Measure 49. Thereafter, claimant sought to have her Measure 37 claims reviewed under section 6 of Measure 49, seeking DLCD approval for up to three home sites. DLCD issued a written order concluding that claimant had satisfied the Measure 49 requirements for additional home sites, including the requirement that, “[o]n the claimant's acquisition date, the claimant was lawfully permitted to

[296 P.3d 635]

establish” additional home sites. DLCD acknowledged that the 38–acre minimum was in effect on claimant's December 28, 1973, acquisition date and, therefore, claimant was not lawfully permitted to establish additional home sites on that date. But, DLCD concluded that “the F–1 zone reverted back to [a] five-acre minimum on January 1, 1974.” ³ Therefore, DLCD reasoned, “claimant lawfully could have established the three home sites under the zoning in effect three days following her date of acquisition and until more restrictive zoning was later implemented.”

Petitioner sought judicial review of DLCD's order in the Washington County Circuit Court. A circuit court reviews state agency orders regarding home site approval under Measure 49 as orders other than contested cases. ORS 183.484(5); ORS 195.318. When, as here, a petitioner [255 Or.App. 264]challenges an agency's interpretation of a statute, the circuit court reviews the agency's interpretation of the statute for legal error. ORS 183.484(5)(a).

In the circuit court, petitioner argued that DLCD had erroneously interpreted the requirement of section 6(6)(f). Specifically, he argued:

“[Section] 6(6)(f) * * * says you're allowed to have additional homes if on the claimant's acquisition date, the claimant was lawfully permitted to establish at least [the] number of dwellings that are allowed by DLCD's order. So 6(6)(f) says acquisition date. Not only that, section 21 gave a definition of what acquisition date means. It says a claimant's acquisition date is the date the claimant became the owner of the property [as] shown in the deed records of the county in which the property is located.

“The measure is clearly structured to look at a snapshot. It says a claimant's acquisition [date] is the date the claimant became the owner of the property [as] shown in the deed records. The measure is set up for that snapshot view. It's about what happens on that date.”

In response, claimant and DLCD acknowledged that claimant did not have the right to establish additional lots for dwellings on her acquisition date, but contended that claimant satisfied...