use described waiver in Oregon

2011For a detailed description of the evolving legal context in which this case arose, see Friends of Yamhill County, 237 Or App at 151-53 . 3 As pertinent to this case, claimants, such as the Aspmos, who had filed Measure 37 claims on or before June 28, 2007, had an entitlement, under section 5(3) of Measure 49, to just compensation as provided in “[a] waiver issued before the effective date of this 2007 Act [December 6,2007] to the extent that the claimant’s use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007Act to comple

2011For a detailed description of the evolving legal context in which this case arose, see Friends of Yamhill County, 237 Or App at 151-53 . 3 As pertinent to this case, claimants, such as the Aspmos, who had filed Measure 37 claims on or before June 28, 2007, had an entitlement, under section 5(3) of Measure 49, to just compensation as provided in “[a] waiver issued before the effective date of this 2007 Act [December 6,2007] to the extent that the claimant’s use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007Act to comple

2012In 2007, the voters passed Measure 49, which “retroactively extinguished previously issued Measure 37 waivers of land use regulations” but permitted “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.” Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 224-25 , 264 P3d 1265 (2011) (internal quotation marks omitted). 2 The Larsens also requested a Measure 37 waiver from the State of Oregon.

2012In 2007, the voters passed Measure 49, which “retroactively extinguished previously issued Measure 37 waivers of land use regulations” but permitted “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.” Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 224-25 , 264 P3d 1265 (2011) (internal quotation marks omitted). 2 The Larsens also requested a Measure 37 waiver from the State of Oregon.

2022Cite as 321 Or App 783 (2022) 791 the county that are timely filed with [DLCD].”5 Measure 49, § 8(4).

2020In Friends of Yamhill County v. Board of Commissioners, 298 Or App 241 , 446 P3d 548 , rev den, 365 Or 769 (2019) (Biggerstaff II), we held that a retro- active claim did not satisfy section 5(3)4 of Measure 49 4 Section 5(3) of Measure 49 states: “A claimant that filed a claim under ORS 197.352 on or before the date of adjournment sine die of the 2007 regular session of the Seventy-fourth Legislative Assembly is entitled to just compensation as provided in: “* * * * * “(3) A waiver issued before the effective date of this 2007 Act to the extent that the claimant’s use of the property complies

2020In Friends of Yamhill County v. Board of Commissioners, 298 Or App 241 , 446 P3d 548 , rev den, 365 Or 769 (2019) (Biggerstaff II), we held that a retro- active claim did not satisfy section 5(3)4 of Measure 49 4 Section 5(3) of Measure 49 states: “A claimant that filed a claim under ORS 197.352 on or before the date of adjournment sine die of the 2007 regular session of the Seventy-fourth Legislative Assembly is entitled to just compensation as provided in: “* * * * * “(3) A waiver issued before the effective date of this 2007 Act to the extent that the claimant’s use of the property complies

2012Our understanding is that *63 Johnson’s application concerning the second phase was pending and Johnson had not submitted applications for final plat approval of the remaining two phases. 3 As pertinent here, section 5(3) of Measure 49 provides that claimants who had filed Measure 37 claims before June 28, 2007, had an entitlement to just compensation as provided in “[a] waiver issued before the effective date of this 2007 Act [December 6, 2007] to the extent that the claimant’s use of the property complies with the waiver and the claimant has a common law vested right on the effective date of

2012Our understanding is that *63 Johnson’s application concerning the second phase was pending and Johnson had not submitted applications for final plat approval of the remaining two phases. 3 As pertinent here, section 5(3) of Measure 49 provides that claimants who had filed Measure 37 claims before June 28, 2007, had an entitlement to just compensation as provided in “[a] waiver issued before the effective date of this 2007 Act [December 6, 2007] to the extent that the claimant’s use of the property complies with the waiver and the claimant has a common law vested right on the effective date of

2012Id. § 5(3).” Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 224-25 , 264 P3d 1265 (2011); see also Hoekstre v. DLCD, 249 Or App 626 , 278 P3d 123 (2012) (similarly quoting Friends of Yamhill County and describing the relationship between Measures 37 and 49); Ericsson v. DLCD, 251 Or App 610 , 285 P3d 722 (2012) (also discussing Measures 37 and 49).

2012Id. § 5(3).” Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 224-25 , 264 P3d 1265 (2011); see also Hoekstre v. DLCD, 249 Or App 626 , 278 P3d 123 (2012) (similarly quoting Friends of Yamhill County and describing the relationship between Measures 37 and 49); Ericsson v. DLCD, 251 Or App 610 , 285 P3d 722 (2012) (also discussing Measures 37 and 49).

2011In Davis v. Jefferson County, 239 Or App 564, 573 , 245 P3d 665 (2010), we explained that “[w]e review the circuit court’s application of the substantial evidence standard for whether the court applied the correct legal test for substantial evidence.” Here, as previously described, 243 Or App at 304-05, although the reviewing court affirmed the county’s determination that the Aspmos had a vested right to complete and continue the use described in the waiver, the court did not explicitly address whether substantial evidence supported the county’s finding concerning the adaptability factor.

2011In Davis v. Jefferson County, 239 Or App 564, 573 , 245 P3d 665 (2010), we explained that “[w]e review the circuit court’s application of the substantial evidence standard for whether the court applied the correct legal test for substantial evidence.” Here, as previously described, 243 Or App at 304-05, although the reviewing court affirmed the county’s determination that the Aspmos had a vested right to complete and continue the use described in the waiver, the court did not explicitly address whether substantial evidence supported the county’s finding concerning the adaptability factor.

2011In doing so, we surveyed Oregon case law, including the Supreme Court’s decision in Clackamas Co. v. Holmes, 265 Or 193, 198-99 , 508 P2d 190 (1973), in which the court established factors for determining whether a common law vested right exists in a particular case, including (1) the ratio of development expenditures to the total project cost; (2) whether the landowner’s expenditures were made in good faith; (3) whether the expenditures are related to the completed project or could apply to other uses of the property; and (4) the nature, location, and ultimate cost of the project.” See also F

2011In doing so, we surveyed Oregon case law, including the Supreme Court’s decision in Clackamas Co. v. Holmes, 265 Or 193, 198-99 , 508 P2d 190 (1973), in which the court established factors for determining whether a common law vested right exists in a particular case, including (1) the ratio of development expenditures to the total project cost; (2) whether the landowner’s expenditures were made in good faith; (3) whether the expenditures are related to the completed project or could apply to other uses of the property; and (4) the nature, location, and ultimate cost of the project.” See also F

2010As we noted in Eklund , the Holmes factors fall into four categories: “The Supreme Court in Holmes identified four essential factors to be considered in assessing the evidence of a nonconforming use[:] (1) the ratio of prior expenditures to the total cost of the project, (2) the good faith of the landowner in making the prior expenditures, (3) whether the expenditures have any relationship to the completed project or could apply to various other uses of the land, and (4) the nature of the project, its location and ultimate cost.” Eklund, 36 Or App at 81 . 8 In evaluating those criteria under s

2009As explained in Corey v. DLCD, 344 Or. 457, 466 , 184 P.3d 1109 (2008), the phrase "common law vested right * * * to complete and continue the use described in the waiver" refers "to broadly applicable legal precedents describing a property owner's rights when land use laws are enacted that make a partially finished project unlawful.

2009As explained in Corey v. DLCD, 344 Or. 457, 466 , 184 P.3d 1109 (2008), the phrase "common law vested right * * * to complete and continue the use described in the waiver" refers "to broadly applicable legal precedents describing a property owner's rights when land use laws are enacted that make a partially finished project unlawful.