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Oregon Judicial Department Appellate Court Opinions

FILED: April 1, 2009 IN THE COURT OF APPEALS OF THE STATE OF OREGON 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. Land Use Board of Appeals 2008065 A140272 Argued and submitted on January 21, 2009. Daniel Kearns argued the cause for petitioners. With him on the brief was Reeve Kearns, PC. Jeffrey L. Kleinman argued the cause and filed the brief for respondents. Edward P. Fitch and Bryant, Emerson & Fitch, LLP, 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, Attorneyin-Charge, Civil/Administrative Appeals, filed the brief amicus curiae for Department of Land Conservation and Development. Edward H. Trompke and Jordan Schrader Ramis PC filed the brief amicus curiae for Charles Hoff. Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge. LANDAU, P. J. Affirmed. 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
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Oregon Judicial Department Appellate Court Opinions

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,

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