FILED: December 15, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

DOUGLAS NORWOOD,
MYRTLE NORWOOD,
JAMES SMEJKAL,
and RICHARD TITUS,

Plaintiffs-Appellants,

v.

WASHINGTON COUNTY,

Defendant-Respondent.

Washington County Circuit Court
C080648CV
A141547

Donald R. Letourneau, Judge.

Argued and submitted on March 31, 2010.

William C. Cox argued the cause for appellants. With him on the brief was Gary P. Shepherd.

Christopher A. Gilmore, Senior Assistant County Counsel, argued the cause for respondent. With him on the brief was Office of Washington County Counsel.

Before Landau, Presiding Judge, and Ortega, Judge, and Sercombe, Judge.

SERCOMBE, J.

Vacated and remanded with instructions to enter judgment declaring parties' rights as to first claim for relief in a manner consistent with this opinion; otherwise affirmed.

SERCOMBE, J.,

This case presents another question about the meaning of Measure 49, the referendum that replaced Measure 37 and altered its remedies for a reduction in property value caused by a land use regulation. In particular, Measure 49 changed the legal effect of any state or local government waiver of restrictive land use regulations that had been obtained as a Measure 37 remedy ("Measure 37 waiver"). Plaintiffs obtained a Measure 37 waiver from the county in order to allow residential development of their property. Following the adoption of Measure 49, the county denied plaintiffs' subdivision application because the waiver was no longer effective under Measure 49.

Plaintiffs then filed an action against the county, claiming that the Measure 37 waiver was a contract between them and the county, and demanding damages for the breach of that contract. Plaintiffs also sought a declaration from the court that the Measure 37 waiver of land use regulations for their property and their subsequent efforts to develop that property created a vested right to develop the property that is recognized under Measure 49. The trial court granted the county's summary judgment motions and determined that plaintiffs were not entitled to relief on either claim.

On appeal, plaintiffs claim that the trial court erred in concluding that their Measure 37 waiver did not create a contract between them and the county and in determining that their activities and expenditures were insufficient to vest a right to develop the property. We rejected plaintiffs' first contention in Smejkal v. State of Oregon, __ Or App __, __ P3d __ (decided this date). We reject plaintiffs' latter contention as well and agree with the trial court that plaintiffs are not entitled to declaratory relief.(1)

We set out the legal context for this case from the discussion in Friends of Yamhill County v. Board of Commissioners, 237 Or App 149, 238 P3d 1016 (2010) (Friends). Like Friends, this case involves an original law and its replacement, both adopted by the voters, that provide remedies to landowners whose property values are adversely affected by land use regulations. The original law, Measure 37, was adopted through the initiative process in the 2004 general election and initially was codified at ORS 197.352 (2005). The law was subsequently amended, Or Laws 2007, ch 424,