Pete's Mt. Homeowners v. Clackamas Cty.

• Decision Date: 01 April 2009
• Docket Number: 2008065; A140272.
• Citation: 227 Or. App. 140,204 P.3d 802
• Parties: PETE'S MOUNTAIN HOMEOWNERS ASSOCIATION, Jerry L. Schlesser, and Judith Lee Messner, Respondents, v. CLACKAMAS COUNTY, Respondent below, and Donald Bowerman, W. Leigh Campbell, and Ceille Campbell, Petitioners.
• Court: Oregon Court of Appeals

204 P.3d 802

227 Or. App. 140

PETE'S MOUNTAIN HOMEOWNERS ASSOCIATION, Jerry L. Schlesser, and Judith Lee Messner, Respondents, v. CLACKAMAS COUNTY, Respondent below, and Donald Bowerman, W. Leigh Campbell, and Ceille Campbell, Petitioners.

2008065; A140272.

Court of Appeals of Oregon.

Argued and Submitted January 21, 2009.

Decided April 1, 2009.

Daniel Kearns argued the cause for petitioners. With him on the brief was Reeve Kearns, PC, Portland.

Jeffrey L. Kleinman, Portland, argued the cause and filed the brief for respondents.

Edward P. Fitch and Bryant, Emerson & Fitch, LLP, Redmond, filed the brief amicus curiae for John Arnett, Frank Rencher, Shelley Hudspeth, David Hurtley, Laura Harry, Marie Harry, Dale Landrus, Ernest Hannan, Arletta Hannan, and Gordon Shown.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Denise G. Fjordbeck, Attorney-in-Charge, Civil/Administrative Appeals, filed the brief amicus curiae for Department of Land Conservation and Development.

Edward H. Trompke and Jordan Schrader Ramis PC, Lake Oswego, filed the brief amicus curiae for Charles Hoff.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

In this land use case, petitioners obtained waivers of applicable land use laws under Ballot Measure 37 (2004). With those waivers in hand, they then applied with the county to construct a subdivision in an area zoned for agricultural and forest use. While their application was pending, the voters enacted Ballot Measure 49 (2007), which essentially supersedes Measure 37 and renders Measure 37 waivers without legal effect. The question in this case is the effect of the enactment of Measure 49 on petitioners' application. Petitioners argue that ORS 215.427(3)(a), commonly known as the "goal-post statute," statutorily guarantees that, once they filed their application, the standards and criteria that apply to that application—including the Measure 37 waivers— cannot be changed. The county agreed and approved their application. LUBA reversed, concluding that, because Measure 37 itself was not a standard or criterion that applies to petitioners' application, the goal-post statute simply did not apply; thus, nothing prevented Measure 49 from taking effect as to their application. Petitioners seek judicial review, arguing that LUBA erred in construing the goal-post statute.

We conclude that LUBA did err in construing the goal-post statute. We also conclude, however, that the error does not alter the outcome of this case. In our view, the goal-post statute encompasses Measure 37 waivers. Measure 49, however, still has superseding effect, rendering the goal-post statute inoperable as to applications based on Measure 37 waivers. We therefore affirm LUBA's disposition.

The relevant facts are few and undisputed. Petitioners own a 69-acre parcel of property that they have denominated Tumwater at Pete's Mountain. They acquired the property in 1969. At the time they acquired the property, it was zoned for "general use." In 1979, the property was rezoned to "transitional timber," and, in 1994, it was rezoned again, to "agricultural forest." Those restrictions include a minimum lot size of 80 acres for lot divisions.

In 2004, the voters enacted Measure 37, which permitted an owner of property that is subject to land use restrictions that went into effect after the owner purchased the property to bring a claim either for the diminution in value resulting from those restrictions or for a waiver of those restrictions in lieu of compensation. ORS 197.352 (2005). Petitioners then filed such a Measure 37 claim with Clackamas County and with the Department of Land Conservation and Development (DLCD). Petitioners alleged that they desire to create one-acre parcels for single-family residences, but that their development plans are precluded by existing zoning restrictions. They alleged a diminution in value in excess of $12 million. Both the county and DLCD elected to grant waivers in lieu of compensation.

On January 19, 2007, petitioners submitted an application and supporting documentation to the county for a 41-lot residential subdivision on the property for which they had obtained the Measure 37 waivers. The county declared the application complete that same day. Five months later, a county hearings officer approved the subdivision. The decision was appealed to LUBA, which remanded for reasons unrelated to the issues before us in this case.

In November 2007, the voters enacted Measure 49, and, on December 6, 2007, the measure took effect. As we explain in greater detail below, Measure 49 supersedes Measure 37 and replaces the remedies formerly provided by Measure 37. Or. Laws 2007, ch. 424, § 5.

Opponents of petitioners' proposed development objected to the application on the ground that Measure 49 had the effect of invalidating petitioners' Measure 37 waivers, thereby triggering the 80-acre minimum lot size restriction for the property. A county hearings officer concluded that the enactment of Measure 49 did not preclude petitioners from going forward with their application. The opponents appealed to LUBA.

In the meantime, we issued an opinion in DLCD v. Jefferson County, 220 Or.App. 518, 188 P.3d 313, rev. den., 345 Or. 417, 198 P.3d 941 (2008) (Burk). In that case, a property owner obtained Measure 37 waivers and filed an application with Jefferson County to develop his property. Id. at 520-21, 188 P.3d 313. While the application was pending, however, the owner passed away. When the personal representative of the owner's estate pursued the application, opponents argued that the application must be denied because the Measure 37 waivers were personal to the owner at the time the waivers were obtained and did not survive the owner's death. The personal representative responded that the goal-post statute had the effect of transferring to the personal representative the right to continue the application process. Id. at 521, 188 P.3d 313. LUBA concluded that the goal-post statute did not apply to Measure 37 waivers. Id. at 521-22, 188 P.3d 313. On judicial review, we expressly did not reach that question. We framed the issue more narrowly; in fact, we cautioned that "it is important to emphasize the narrowness of the issue before us," namely, the question whether the goal-post statute had the effect of transferring the Measure 37 waivers to the owner's estate upon his death. Id. at 522, 523, 188 P.3d 313. We answered the question in the negative, explaining that the goal-post statute prohibits a change in applicable approval or denial criteria as to the particular application filed. Id. at 523-24, 188 P.3d 313. In that case, we noted, the substance of the application had changed in a material way upon the death of the applicant. Id. at 524, 188 P.3d 313. As a result, we concluded, the goal-post statute did not apply. Id. at 524-25, 188 P.3d 313.

In this case, LUBA reversed the decision of the county hearings officer and rejected the contention that, under the goal-post statute, petitioners' Measure 37 waivers were part of the standards and criteria that became fixed at the time that their application was deemed complete. LUBA reasoned that the goal-post statute applies only to "standards and criteria" for decision on the application, and Measure 37 waivers do not themselves qualify as such standards and criteria. LUBA claimed support for that conclusion from our opinion in Burk. According to LUBA, "[w]e understand the Court of Appeals to have concluded that Measure 37 waivers are not part of the standards for approval or denial that become fixed under the * * * goal-post statute." In LUBA's view, "Measure 37 waivers authorize a partial avoidance of or alternative to the fixed goal-post for some property owners; Measure 37 waivers are not part of the fixed goal-post." (Emphasis in original.) As a result, LUBA concluded, petitioners are subject to Measure 49, which has the effect of rendering Measure 37 waivers without legal effect.

On review, petitioners contend that LUBA misread our opinion in Burk and in concluding that Measure 37 waivers are not part of the standards and criteria that are subject to the goal-post statute. Petitioners contend that we explicitly limited our holding in Burk to the fact that the property owner in that case died during the pendency of the application, which had the effect of altering the application itself and removing it from the protection of the goal-post statute. Respondents, the opponents of petitioners' application, contend that LUBA correctly understood our opinion in Burk and insist that "[t]here is nothing in the cited language to suggest that [the] holding is confined to instances in which the Measure 37 claimant has died."

We may quickly dispose of the question whether our decision in Burk is controlling. In a word (actually, in three words): It is not. In fact, we are hard pressed to understand the basis for respondents' contention that there is nothing in the language of our decision in that case that limits its holding. As we have noted, we began by cautioning that "it is important to emphasize the narrowness of the issue before us," followed by our explanation that the fact that the property owner died while the application was pending was the sole basis for our holding. Burk, 220 Or.App. at 523, 524-25, 188 P.3d 313. And we expressly stated that we did not reach the rationale on which LUBA had relied. Id. at 525, 188 P.3d 313.

What remains is a question of first impression, namely, whether the goal-post statute encompasses Measure 37 waivers. That is a matter of statutory construction, resolved by the application of familiar principles that require us to examine the text of the statute in context and, if necessary, its legislative history and other aids to construction. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Among the familiar principles of...