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FILED: September 28, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON FRIENDS OF POLK COUNTY, an Oregon nonprofit corporation, and GLORIA BENNETT, individually, Petitioners-Appellants, and GERALD BENNETT, individually, Petitioner below, and EILEEN MARIE CADLE MARTINSON, Petitioner-Respondent, v. ROBERT W. OLIVER, in his official capacity as Polk County Hearings Officer, Respondent-Respondent. Polk County Circuit Court 09P10349 A144372 William M. Horner, Judge. Argued and submitted on December 16, 2010. Sean T. Malone argued the cause for appellants. With him on the briefs was Ralph O. Bloemers and Crag Law Center. Stephen T. Janik argued the cause for respondent Eileen Marie Cadle Martinson. With him on the brief were Steven P. Hultberg and Ball Janik LLP. No appearance for respondent Robert W. Oliver. John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Stephanie L. Striffler, Senior Assistant Attorney General, filed the brief amicus curiae for the State of Oregon. Before Ortega, Presiding Judge, and Sercombe, Judge, and Landau, Judge pro tempore. SERCOMBE, J. Reversed in part, affirmed in part, and remanded to modify the writ of review judgment consistently with this opinion.

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SERCOMBE, J. Petitioners Friends of Polk County and Gloria Bennett (petitioners) appeal a writ of review judgment.1 The judgment modified a decision of a Polk County hearings officer that determined that claimant Martinson (claimant) had a vested right to develop a 30-acre portion of a 137-acre tract under section 5(3) of Ballot Measure 49 (2007), but did not have a vested right to develop the entire tract. The circuit court concluded that claimant had a right under section 5(3) to develop not only the 30-acre subarea for commercial uses but also the entire tract for commercial and residential uses. Petitioners appeal and contend that the court misconstrued the applicable law and erred in allowing both of those development rights. We conclude that the court did not err in affirming the hearings officer's decision on the 30-acre subarea, but that it did err in allowing development of the entire tract to proceed. Accordingly, we affirm the judgment in part, reverse the judgment in other parts, and remand for further proceedings. This case concerns whether claimant's actions were sufficient to vest rights to develop all or part of her property under section 5(3) of Measure 49. Some of the issues in this appeal were decided in Friends of Yamhill County v. Board of Commissioners, 237 Or App 149, 238 P3d 1016 (2010), rev allowed, 349 Or 602 (2011), and that opinion more fully describes the legal context for this case. To summarize,

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Appellants, together with Gerald Bennett, were petitioners in one of the two consolidated writ of review proceedings below and opposed the requested vested rights determination by the county. We refer to appellants or appellants together with Gerald Bennett as "petitioners," depending upon the context.

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Measure 49 was adopted by the voters in 2007. It replaced Measure 37, an initiative measure adopted in 2004 that required state and local governments to compensate property owners for the reduced value of property caused by a post-acquisition regulation. That compensation could be by either paying the amount of the reduction in value or by deciding to "modify, remove, or not to apply the land use regulation * * * to allow the owner to use the property for a use permitted at the time the owner acquired the property." Former ORS 197.352(8) (2005), amended by Or Laws 2007, ch 424,

Download A144372 Friends of Polk County v. Oliver.pdf

Oregon Law