Agenda - Planning Commission - 09/04/2008

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August 10, 2008 I Volume 2 I No. 15 i i ! \ j 1 j 1 1 'I i I \ I .....'. claims. In lieu of paying him compensation, they gave Burk "waivers" of I the offending state and local land use regulations that had restricted the development of his property. . Burk then filed an application with the county for a residential subdi- , vision and plaruled unit development. On July 1, 2007, while the appli- cation was pendin!5, Burk died. Jerry Burk (Jerry), as personal representative of Burk's estate, pursued the development application with the county. The board of county commissioners granted the development application.. The Department of Land Conservation and Development (DLCD) ap- pealed the application to the Land Use B'oard of Appeals (LUBA). DLCD argued. that Jerry could not claim the benefit of the Measure 37 waivers because they were personal to Burk and not transferrable (see Or. Rev. Stat. S 197.352(8) (2005)). Jerry agreed that the waivers were not transferrable, but argued he was entitled to the full benefit of the waivers by virtue of Oregon's "goal- post statute," Or. Rev. Stat. S 215.427(3)(a). That statute provided that approval or denial of a complete application had to be based upon the standards and criteria that were applicable at the time the application was first submitted. Jerry asserted that under. the statute the waivers of otherwise applicable land use regulations were frozen as of the time of ) application. Essentially, Jerry argued that the goal-post statute gave Burk a vested interest in the Measure 37 land' use waivers that passed to his estate upon his death. LUBA found Measure 37 and the goal-post statute conflicted. It deter- mined that Measure 37, as the more p~rticular and later-enacted statute, controlled. Agreeing that Measure 37 waivers were not transferrable, it reversed the cOuUt)"s grant of the development application. Jerry appealed. DECISION: Affirmed. j I I i ! L i' 1 i i I i i 1 I I i I i ! The court concluded that the goal-post statute did not give Burk a vested interest in the Measure 37 land use waivers, and therefore they. did not pass to his estate. upon his death. In so concluding, the court found-contrary to LUBA-that there was no conflict between Measure 37and the goal-post statute. The court agreed with the DLCD's argument that the goal-post statute protected against changes in the applicable law, and not changes in facts, such as Burk's death. The court said that the purpose of the goal-post statute was to en- sure that an applicant for a permit or zoning change who had otherwise fulfilled statutory requirements would be subject to the standards and criteria that were applicable at the time the ~pplicai:ion was first submit- ted. Thus, the court said, under the statute, once an application had been completed in a timely fashion, state and local governments could not \ @ 2008 Thomson ReutersIWest 9 91