Thomas v. Dep't of Land Conservation & Dev.

254 Or.App. 621

296 P.3d 561

Kenneth A. THOMAS, Petitioner–Appellant,

v.DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT and Land Conservation Development Commission, Respondents–Respondents.

1000245CC, 1000209CC; A148299 (Control) and A148301.

Court of Appeals of Oregon.

Argued and Submitted on Nov. 29, 2012.

Decided Jan. 16, 2013.

Michael J. Lilly, Portland, argued the cause and filed the briefs for appellant.

Denise G. Fjordbeck, Attorney in Charge, Civil Appeals, argued the cause for respondents. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Stephanie L. Striffler, Senior Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

BREWER, J. pro tempore.

These consolidated appeals arise from circuit court judgments affirming two orders in other than contested cases that were issued by the Department of Land Conservation and Development (DLCD) pursuant to ORS 195.305 to 195.318 (Measure 49). We affirm.

We begin by describing the legal framework that provides the necessary context for understanding DLCD's orders and the parties' contentions in these cases. In 2004, Ballot Measure 37 was enacted through the initiative process. As the Supreme Court explained in Friends of Yamhill County v. Board of Commissioners, 351 Or. 219, 224–25, 264 P.3d 1265 (2011),

“[t]hat measure provided landowners with ‘just compensation’ for land use regulations, enacted after they had acquired their property, that restricted the use of the property and, as a result, diminished its value. See State ex rel. English v. Multnomah County, 348 Or. 417, 420–22, 238 P.3d 980 (2010) (describing Measure 37). When faced with a claim for ‘just compensation’ under Measure 37, a government could choose: (1) to pay the landowner compensation for the diminished value of the property and enforce the regulation or (2) to waive the regulation and permit the owner to use the property for a use permitted at the time the owner acquired the property.

“Measure 37 * * * was not without controversy. Some believed that the measure went farther than many voters had intended in that it not only permitted landowners to build a small number of additional homes on their property, unrelated to the resource use of the land, but it also authorized the large-scale development of formerly protected lands. See Official Voters' Pamphlet, Special Election, Nov 6, 2007, 20 (Legislative Argument in Support of Measure 49). In response to those concerns, the 2007 Legislative Assembly considered several draft bills intended to reform Measure 37. After several public hearings, those draft bills were consolidated into a single bill, House Bill 3540 (2007). See Tape Recording, Joint Special Committee on Land Use Fairness, HB 3540, Apr 26, 2007, Tape 50, Side A (statement of Sen Greg Macpherson). The legislature did not enact HB 3540 directly; instead, it referred the proposed legislation to the voters on June 15, [254 Or.App. 624]2007, as Ballot Measure 49. See Or. Laws 2007, ch. 750, § 2 (referring HB 3540 to the voters). In a special election held on November 6, 2007, the voters approved Measure 49 and, on December 6, 2007, the measure became effective.

“Among other things, Measure 49 retroactively extinguished previously issued Measure 37 waivers of land use regulations. See Corey v. DLCD, 344 Or. 457, 466–67, 184 P.3d 1109 (2008) (‘Measure 49 by its terms deprives Measure 37 waivers—and all orders disposing of Measure 37 claims—of any continuing viability’; emphasis in original). As a result, landowners who had begun developing their property under authorization granted by Measure 37 waivers could no longer automatically continue to do so. Instead, those landowners had to choose one of three alternative ‘pathways' moving forward: an ‘express pathway,’ a ‘conditional pathway,’ and ‘a third pathway for claimants that have vested rights to carry out claims that have already been approved.’ Tape Recording, Joint Special Committee on Land Use Fairness, SB 1019, Apr 19, 2007, Tape 43, Side A (statement of Richard Whitman, Oregon Department of Justice, summarizing the proposed ‘framework’ for amending Measure 37); see Or. Laws 2007, ch. 424, § 5 (setting out those three alternatives).

“The express pathway entitles a landowner to obtain development approval for up to three additional homes on his or her property. See Or. Laws 2007, ch. 424, § 5(1) (identifying express pathway). Under the conditional pathway, a landowner can obtain approval for four to 10 homes if, among other conditions, the land use regulations prohibiting the construction of those homes resulted in a specified reduction of the fair market value of the property. See id. §§ 7 and 9 (setting out conditional pathway and describing conditions). Finally, the vested rights pathway permits a landowner who had obtained a Measure 37 waiver to ‘complete and continue the use described in the waiver,’ provided that the landowner could also demonstrate a ‘common law vested right’ to complete that use. Id. § 5(3).”

(Some citations and internal quotation marks omitted.)

As described by the Supreme Court, these cases concern the “express pathway,” which is set out in section 6 of Measure 49. Pursuant to section 6(1), if a claimant establishes certain qualifying prerequisites, the claimant is “eligible for three home site approvals on the property” described in a Measure 37 claim. At issue in these cases is whether the department correctly determined which parcels composed the relevant “property” for the purpose of determining the number of home site authorizations available under Measure 49.

In Case Number 1000209CC, petitioner submitted election forms seeking supplemental review under Measure 49 of his Measure 37 claims, in which he asked DLCD to authorize development of three building sites on each of two lots for a total of six building sites. In that case, DLCD considered all four of the parcels in petitioner's Measure 37 claim as “property” forming a contiguous whole, because there was no property owned by another person that separated those parcels. The DLCD issued a final order granting petitioner authority to develop three home sites on the four lots under Section 6 of Measure 49.

In Case Number 1000245CC, petitioner submitted election forms pursuant to Measure 49 in which he sought approval to develop a total of six dwellings on three lots. In that case, DLCD also considered parcels that petitioner owned as “property” forming a contiguous whole, including parcels that were not part of his underlying Measure 37 claim and which he did not describe in his request for supplemental review under Measure 49. In that case, DLCD issued a final order granting petitioner authority to develop two additional dwellings.

Petitioner sought review of each order in circuit court pursuant to ORS 195.318. The cases were consolidated for argument in that court. The court issued an opinion and judgments affirming DLCD's orders. Petitioner challenges both of those judgments on appeal.

On review of an order in other than a contested case, the circuit court determines (a) whether the agency erroneously interpreted a provision of law and that a correct interpretation compels a particular action; and (b) whether the order is supported by substantial evidence in the record. ORS 183.484(5). On appeal, this court reviews the circuit court's judgment to determine whether it correctly assessed the agency's decisions under the standards of ORS 183.484(5). Thus, “in practical effect,” we directly review the agency's order under the standards set out in ORS 183.484(5). G.A.S.P. v. Environmental Quality Commission, 198 Or.App. 182, 187, 108 P.3d 95,rev. den.,339 Or. 230, 119 P.3d 790 (2005).

We begin with Case Number 1000209CC, which concerns four tax lots owned by petitioner. Petitioner had filed a Measure 37 claim as to each of the four lots. Those lots are configured as follows:

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Petitioner filed two Measure 49 election forms in which, as noted, he sought authorization to develop a total of six building sites. Petitioner explained that one of the election forms concerned only “the lot designated as Tax Lot 200 as the subject parcel” and the other concerned only “Tax Lot 1400 as the subject parcel.” Petitioner separately sought three home sites for tax lot 200 and three home sites for tax lot 1400. In a nutshell, petitioner attempted to obtain six home site approvals by identifying for supplemental review only the two lots furthest from each other, while disregarding the parcels located between those two that he also owned and for which he had sought Measure 37 relief. However, DLCD concluded that the four tax lots for which petitioner had sought Measure 37 relief—100, 200, 900 and 1400—were all “contiguous” and that “claimant is only eligible for up to three home site approvals on the entirety of the subject property.”

On appeal, petitioner asserts that he was entitled to identify specific parcels for Measure 49 review and that DLCD was required to treat as the “property” only parcels directly sharing a common border with each parcel that he had selected. As explained below, that assertion suffers from two faulty premises. First, petitioner mistakenly assumes that he was entitled to exclude part of the property for which he sought Measure 37 relief, namely tax lots 900 and 100, from his election of supplemental review under Measure 49. Second, petitioner espouses an unduly narrow view of the meaning of “contiguous.”

“Property” is defined in Measure 49 as “the private real property described in a claim and contiguous private real property that is owned by the same owner whether or not the contiguous property is described in another claim [.]” ORS 195.300(20). “Claim,” in turn, means “a written demand for compensation filed under [Measure 37].” ORS 195.300(2). Thus, “property described in a claim” means property described in the owner's...