Agenda - Planning Commission - 06/04/2009

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'0 () "',,-/ I I ! I I I I i I ,( )' ..~ Zoning Bulletin May 10, 20091 Volume 31 No.9 after the owner purchased the property to bring a claim either for: (1) the diminution in value resulting from those restrictions; or (2) a waiver of those restrictions in lieu of compensation. The Association wanted to create one-acre parcels for single-family residences o~ their property, but the 80':acre minimum lot size restriction for lot divisions precluded their plans. Under Measure 37, the Association alleged a diminution in value in excess of $12 million. Both the county and the state's Department of Land Conservatlon and Development elected to grant Measure 37 waiv- ers to the Association in lieu of compensation. On January 19, 2007, the Association submitted to the county an ap- plication for a 41-lot residential subdivision on the property for which they had obtained the Measure 37 waivers. While their application was pending, Oregon voters enacted Measure 49, which superseded and re- placed the remedies formerly provided by Measure 37. Specifically, Mea- SUIe 49 provided that except as to common-law vested rights, all Mea- sure 37 claims had to be re-filed under Measure 49. . Opponents of the Association's proposed devel9pment then objected to the Association's application on the ground that Measure 49 effective- ly invalidated the Association's Measure 37 waivers. The opponents con- tended that the 80-acre minimum lot size restriction therefore once again applied to the Association's property. The Association pointed to Oregon statutory law, ORS ~ 215.427(3) (a), commonly knOWTI as the "goal-post statute." The goal-post stat- ute provided that once an application for a permit or zone change was complete, "approval or denial of the application [must] be based upon the standards and criteria that were applicable at the time the applica- tion was first submitted." The Association argued that their Measure 37 waivers were "standards and criteria" within the meaning of the goal- post statute and therefore could not be changed by Measure 49. . The county agreed and approved their application. On appeal from the opponents, the Land Use Board of Appeals ("LUBA") reversed. LUBA concluded that because Measure 37 itself was not a standard or criterion that applied to the Association's application, the goal-post stat- ute simply did not apply. LUBA found Measure 49 th~refore invalidated the Association's Measure 37 waivers. The Association appealed. DECISION: Affirmed. The Court of Appeals of Oregon disagreed with LUBA's construction of the goal-post statute. It held that Measure 37 waivers were themselves "standards and criteria" within the meaning of the goal-post statute. This was because . Measure 37 waivers were essentially "amendments" of the land use regulations-which were "standards and criteria"-that would otherwise apply to properties. Here, the Association's Measure 37 waivers amended the 80-acre minimum lot size restriction. Thus, the @ 2009 Thomson Reuters 7 I 77