OREGON APPEALS COURT REVERSES CLATSOP COUNTY LAND-USE RULING

The Oregon Court of Appeals has reversed a local judge’s ruling that upheld the rights of two Clatsop County families to develop their land.

In a decision issued June 29, the appeals court found error with the original 2010 decision by Clatsop County Circuit Court Judge Phil Nelson and remanded the issue back to Nelson.

The cases involve two claims under Ballot Measure 49, the state law that allowed qualified landowners to develop their property under earlier, less restrictive zoning rules. James and Virginia Carlson sought to build 29 home lots on their property on Tucker Creek Lane south of Astoria, and George and Barbara Fraser applied to develop a 52-lot subdivision in Clatsop Plains near Gearhart.

In 2008 the county Planning Division rejected the Carlson and Fraser Measure 49 applications, but later that year the Clatsop County Board of Commissioners overruled planning staff and determined that the Carlsons and Frasers had “vested rights” under Measure 49 and were entitled to pursue their respective projects. The board’s rulings were appealed by the Oregon Shores Conservation Coalition ? Richard and Patricia Rowland joined the appeal against the Carlson application, and the Shamrock Pines Homeowners Association joined the Fraser challenge.

In November 2009 Judge Nelson upheld the board’s decision, which was then appealed to the state appeals court.

The appeals court ruled that the decision did not properly take into account the cost of home construction in determining whether the Carlsons and Frasers had made a significant enough investment into their respective properties to qualify as vested.

In 2004 Oregon voters approved Ballot Measure 37, which allowed landowners either to seek compensation for loss in value to their property due to new, more restrictive zoning designations, or to apply for waivers to the new rules and develop their land under the zoning as it existed when they first acquired it.

Clatsop County received more than 100 Measure 37 applications, and granted waivers to nearly three-quarters of them, including the requests from the Carlsons and Frasers.

In 2007 voters approved Measure 49, which narrowed the qualifications for Measure 37 waivers and required landowners seeking to develop more than 10 lots to prove that their development rights were vested. The following year Clatsop County adopted Ordinance 08-06, which spelled out the factors to be considered in making a determination of vested rights, including the “good faith” of the landowner in pursuing their development, and the amount of money the owners spent on their projects before Measure 49 became law in December 2007.

The Court of Appeals ruled that in reviewing the Carlson and Fraser applications, the county was required to consider the total cost of the two projects, including the construction of homes, not just the home lots, when calculating how much the applicants had invested in their respective developments. That calculation, the court ruled, had to consider the cost of home construction as of Dec. 6, 2007, the date that Measure 49 became law.