Lake Oswego Preservation Society v. City of Lake Oswego ( 2016 )

No. 51 August 4, 2016 115
IN THE SUPREME COURT OF THE
STATE OF OREGON
LAKE OSWEGO PRESERVATION SOCIETY,
Marylou Colver,
and Erin O’Rurke-Meadors,
Petitioners on Review,
v.
CITY OF LAKE OSWEGO,
Respondent on Review,
and
Marjorie HANSON,
trustee for the Mary Cadwell Wilmot Trust.
Respondent on Review.
(LUBA No. 2014-009; CA A157619; SC S063048)
On review from the Court of Appeals.*
Argued and submitted November 10, 2015.
Daniel Kearns, Reeve Kearns PC, Portland, argued the
cause and filed the briefs for the petitioners on review.
Christopher P. Koback, Hathaway Koback Connors LLP,
Portland, argued the cause and filed the brief for the respon-
dent on review, Marjorie Hanson.
No appearance on behalf of respondent on review City of
Lake Oswego.
Carrie A. Richter, Garvey Schubert Barer, Portland, filed
the brief for amici curiae Restore Oregon and Architectural
Heritage Center, The National Trust for Historic Preser-
vation, Preservation Action, Preservation Works, The City
of Portland, The City of Pendleton, and The City of the
Dalles. With her on the brief was Jennifer Bragar, Portland;
Kathryn Beaumont, Portland Office of City Attorney,
Portland for City of Portland; Gene E. Parker, Attorney
______________
*  Judicial review from the final order of the Land Use Board of Appeals. 268
Or App 811, 344 P3d 26 (2015).
116 Lake Oswego Preservation Society v. City of Lake Oswego
for the City of The Dalles, The Dalles; and Nancy E. Kerns,
Attorney for the City of Pendleton, Pendleton.
Inge D. Wells, Assistant Attorney General, Salem, filed
the brief for amici curiae State Historic Preservation Office
and Department of Land Conservation and Development.
With her on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
With her on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, Kistler, Walters, Landau,
Baldwin, and Brewer, Justices.**
BALMER, C. J.
The decision of the Court of Appeals is reversed. The final
order of the Land Use Board of Appeals is affirmed.
Case Summary: Plaintiff, trustee of the Wilmot Trust (Trust), sought
removal of the historic designation placed by the City of Lake Oswego in 1992 on
a house owned by the Trust. Lake Oswego Preservation Society (LOPS) appeared
before the city council to oppose the removal request. The city determined that,
under ORS 197.772(3), the Trust was entitled to have the city remove the historic
designation because the Trust was “a property owner” and the city had “imposed
on the property” that the Trust owned a historic property designation. LOPS
appealed to the Land Use Board of Appeals (LUBA), arguing that the Trust had
not been the property owner when the city had imposed the designation and
that the right to seek removal of the historic designation under ORS 197.772(3)
applied only to the property owner at the time of designation, and not to subse-
quent owners. LUBA agreed with LOPS and reversed and remanded the city’s
decision to remove the historic designation. The Trust sought judicial review of
LUBA’s final order, arguing, inter alia, that LUBA’s interpretation and appli-
cation of ORS 197.772(3) was incorrect. The Court of Appeal agreed with the
Trust and reversed LUBA’s decision, holding that the legislature intended that
any owner of a property upon which a historic designation had been imposed
could have that designation removed, even if the owner had acquired the property
after the designation. Held: In enacting ORS 197.772, the legislature intended to
ensure that historic designations are not placed on properties unless the owner
at the time of designation consents. The right to seek removal of a designation,
set out in ORS 197.772(3), applies to a narrow class of property owners only:
those who owned the property at the time of designation (and continue to do so);
the right to seek removal does not extend to a property owner who acquired the
property after the designation was imposed.
The decision of the Court of Appeals is reversed. The final order of the Land
Use Board of Appeals is affirmed.
______________
**  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case. Nakamoto, J., did not participate in the consideration or decision
of this case.
Cite as 360 Or 115 (2016) 117
BALMER, C. J.
This case concerns the interpretation of Oregon’s
historic property designation consent statute, ORS 197.772.
That statute provides that the owners of properties slated
for local historic designation have the right to refuse to con-
sent to that designation. It also requires a local government
to “allow a property owner to remove from the property a
historic property designation that was imposed on the prop-
erty by the local government.” ORS 197.772(3). The own-
ers of the property at issue here sought to remove it from
the local government’s list of historic landmarks, citing the
removal provision in ORS 197.772(3). The local government
concluded that it was required to grant the owners’ request,
but on appeal the Land Use Board of Appeals (LUBA) dis-
agreed, concluding that the right to remove imposed des-
ignations does not apply to successors-in-interest like the
owners in this case. Lake Oswego Preservation Society v.
City of Lake Oswego, 70 Or LUBA 103, 121 (2014). The prop-
erty owners sought judicial review and the Court of Appeals
reversed, concluding that the legislature intended ORS
197.772 to confer on all property owners the right to remove
local historic designations that were imposed on the prop-
erty without the owner’s consent. Lake Oswego Preservation
Society v. City of Lake Oswego, 268 Or App 811, 820-21, 344
P3d 26 (2015).
The issue presented on review is thus a narrow
one: If a local historic designation is imposed on a prop-
erty and that property is then conveyed to another owner,
may the successor remove that designation under ORS
197.772(3)? For the reasons explained below, we conclude
that, although the legislature intended ORS 197.772(3)
to provide a statutory remedy for certain owners whose
property was designated as historic against their wishes,
the legislature also intended that owners who acquired
property after it had been designated would be bound
by that designation and by any resulting restrictions on
the use and development of that property. Accordingly,
we agree with LUBA that the right to remove an historic
designation under ORS 197.772(3) applies only to those
persons who owned their properties at the time that the
118 Lake Oswego Preservation Society v. City of Lake Oswego
designation was imposed and not to those who acquired
them later, with the designation already in place. We
therefore reverse the decision of the Court of Appeals and
affirm LUBA’s final order.
I.  FACTUAL AND PROCEDURAL BACKGROUND
Since 1973, with the passage of Senate Bill (SB) 100,
the system of land use planning and development in Oregon
has been governed by a comprehensive statutory scheme.
See generally Edward Sullivan, Remarks to University of
Oregon Symposium Marking the Twenty-Fifth Anniversary of
S.B. 100, 77 Or L Rev 813, 817-21 (1998) (describing devel-
opment of Oregon’s land use planning system under frame-
work established by SB 100); see also Jennifer Johnson and
Laurie Bennett, Introduction: Oregon Land Use Symposium,
14 Envtl L v, v-vi (1984) (describing SB 100 and its goal of
replacing ad hoc local planning with “a unified statewide
system”). Pursuant to that scheme, codified in ORS chap-
ter 197, individual cities and counties across the state are
responsible for adopting local comprehensive plans, zon-
ing land, administering land use regulations, and han-
dling land use permits, all in accordance with mandatory
Statewide Planning Goals and Guidelines set by the Oregon
Land Conservation and Development Commission (LCDC).
See ORS 197.030-197.798 (setting out framework for devel-
opment of Statewide Planning Goals and Guidelines, and
obligations of local governments for implementation of those
goals). Statewide Planning Goal 5 requires local govern-
ments to identify and designate historically significant
properties, and where appropriate, protect those proper-
ties long-term by regulating their use and development. See
OAR 660-015-0000, OAR 660-023-0000  -  660-023-0060,
and OAR 660-023-0200 (setting out administrative rules
under Goal 5 that govern identification and protection of
historic properties).
The 1995 passage of the statute at issue in this
case, ORS 197.772, created an anomaly in one part of that
comprehensive system. Whereas the statewide scheme for
land use planning and development under SB 100 requires
local governments to utilize a holistic approach that bal-
ances a variety of considerations when making land use
Cite as 360 Or 115 (2016) 119
planning decisions, ORS 197.772 specifically requires that
with respect to local historic designations, property owners
have the right to refuse a request to designate their prop-
erty as historic, and in some cases, to remove historic des-
ignations already in place. Noting that fundamental incon-
sistency, petitioner, the Lake Oswego Preservation Society
(LOPS), contends that the designation removal provision in
that statute, set out in ORS 197.772(3), was intended to pro-
vide a specific remedy to a limited group of property owners
and that in light of its broader statutory and regulatory con-
text, we should interpret that provision narrowly in a way
that preserves Oregon’s well-established system under Goal
5 of designating and regulating historic properties in order
to protect them from alteration or demolition. Respondent,
the Mary Cadwell Wilmot Trust (the Trust)1—the owner
of the property whose designation is at issue here—argues
that the effect of ORS 197.772(3) was intended to be more
fundamental and that, as a result of that provision, any
owner of a property upon which an historic designation was
imposed may remove that designation, and any accompany-
ing land use restrictions, at any time, regardless of whether
that owner acquired the property decades later and with the
designation already in place.
A.  The Designation of the Carman House
To determine what the legislature intended when
it enacted ORS 197.772(3), we begin with the background
of the property at issue. We take the facts from the record
before the City of Lake Oswego, which made the designa-
tion here. Located in Lake Oswego, the property was orig-
inally part of a pioneer homestead, created by one of the
first Donation Land Claim grants in the state. The main
structure on the property, the Carman House, was built
circa 1856. Because the Carman House and the lot on which
it sits have been subject to relatively few modifications, the
property is considered a rare and valuable example of a ter-
ritorial Oregon residence.
1
Marjorie Hanson, as trustee for the Mary Cadwell Wilmot Trust, is the
named party in this case. For current purposes of clarity, we refer throughout
this opinion to her and the trust that owns the Carman House collectively as “the
Trust.”
120 Lake Oswego Preservation Society v. City of Lake Oswego
The issue of the property’s status as an historic
landmark first arose in the late 1980s, when the city of Lake
Oswego began developing its inventory of local historic prop-
erties as required by Goal 5 of Oregon’s land use planning
scheme. See Terence Thatcher and Nancy Duhnkrack, Goal
Five: The Orphan Child of Oregon Land Use Planning, 14
Envtl L 713, 715-20 (1984) (describing requirement under
Goal 5 that local governments inventory resources, identify
conflicting uses, and implement appropriate protective mea-
sures). As a result of that inventory review, the city deter-
mined that the Carman House and the property immediately
surrounding it constituted an historic “farm complex” under
the city’s Historic Resource Protection Plan (1989) and that
it should be designated as a landmark under the city’s munic-
ipal code. In 1990, as a result of that determination, both the
lot containing the Carman House and an adjoining parcel
of land were added to the city’s Landmark Designation List
and, as a consequence, became subject to certain restrictions
on their use and development pursuant to the city’s local his-
toric preservation ordinance.2 See Lake Oswego Municipal
Code (LOC) 58.020 - 58.135 (1990) (setting out limitations
on demolition, moving, or exterior alteration of properties on
Landmark Designation List).
At the time, the city could designate a property as
historic, and subject it to special land use requirements,
without the property owner’s consent. See LOC 58.025
(1990) (describing authority and process for designating
properties); see also DLCD v. Yamhill County, 99 Or App
441, 445-47, 783 P2d 16 (1989) (holding that local historic
designations could not be contingent on owner preference).
A property owner did have the right to be notified of the
city’s decision to designate a property, however, and could
challenge that decision through a quasi-judicial post-
designation process. LOC 58.025 (1990). Using that mech-
anism, in 1990, Richard Wilmot,3 one of the owners of the
2
Although the Carman House is not listed on the National Register of
Historic Places, the city of Lake Oswego has previously determined that it is
eligible to be listed, given its age, integrity, and historic significance.
3
Wilmot, the great-grandson of Waters Carman, the original settler who
established the homestead, acquired the Carman House with his wife, Mary
Wilmot, in 1978.
Cite as 360 Or 115 (2016) 121
Carman House at that time, objected to the historic farm
complex designation. Wilmot argued that the designation
was improper for several reasons, including that the city
had failed to account adequately for the economic impact
of designation and that it should have considered the
Carman House separately from the adjoining parcel that it
had included as part of the historic farm complex.4 In the
alternative, Wilmot argued that because only the Carman
House had historic value, any landmark designation should
be limited to the house and a smaller parcel of land imme-
diately surrounding it.
In 1991, while litigation regarding the farm com-
plex designation was still ongoing, an old barn situated on
the adjoining parcel burned down. Because of that change
in the property, the site no longer qualified as an historic
farm complex as defined in the city’s Resource Protection
Plan. The city withdrew its prior decision and, in 1992, ini-
tiated a new hearing process to reconsider whether there
were grounds for listing either property as an historic
landmark on its own. Following the recommendations of
its Historic Resource Advisory Board, the city concluded
that the adjoining parcel lacked sufficient historic value
on its own to warrant designation and removed it from the
Landmark Designation List. The city determined, however,
that the Carman House remained a valuable resource wor-
thy of preservation. As a result, it ordered in July 1992 that
the historic designation be retained on the Carman House.
Despite his earlier objections, Wilmot did not challenge the
city’s decision on reconsideration. Rather, as noted by the
city in its final account of the proceedings, no party con-
tested the historic significance of the Carman House nor
4
The Wilmots originally acquired the Carman House as part of a larger
10-acre parcel, which, at the time, made up the remainder of the family home-
stead. The Wilmots sold off most of that property in 1979, but retained the 1.25-
acre plot on which the Carman House is situated. In 1990, when the Carman
House was first designated as historic, the city designated the whole of the
original 10-acre parcel—including both the Wilmots’ property with the Carman
House and the portion that they had sold—together as a single historic “farm
complex.” At that time, Wilmot objected to the historic designation of his property
in concert with the purchaser of the property he had sold. It appears that their
joint objection was motivated by the purchaser’s desire to develop an assisted
living facility on that land.
122 Lake Oswego Preservation Society v. City of Lake Oswego
argued that the Wilmots’ property should be removed from
the Landmark Designation List.
Not long after the city decided to retain the Carman
House on its historic landmark list, the Oregon legislature
passed a variety of measures relating to the protection of
historic properties under the state’s comprehensive plan-
ning scheme. One of those measures, enacted in 1995, estab-
lished the owner consent requirements for local historic des-
ignations that are at issue here. See Or Laws 1995, ch 693,
§ 21, codified as ORS 197.772. That law provided that local
governments must allow “a property owner” whose property
is under consideration for local historic designation to refuse
the designation. ORS 197.772(1). It also included a removal
provision for properties already designated, which provided
that “a property owner” may “remove from the property a
historic property designation that was imposed on the prop-
erty by the local government.” ORS 197.772(3). Despite
objecting to the city’s designation of his property in 1990,
Wilmot never sought the removal of the historic farmhouse
designation under ORS 197.772(3) or by any other mech-
anism. As a result, the Carman House was still on Lake
Oswego’s Landmark Designation List when, in 2001, Mary
Wilmot conveyed the property by warranty deed to Richard
Wilmot II (Richard and Mary Wilmot’s son), as trustee of
the Mary Cadwell Wilmot Trust.
B.  The Trust Seeks the Removal of the Historic Designation
In 2013, the Trust began its effort to remove the his-
toric designation from the Carman House property in order
to facilitate its subdivision and redevelopment. Although
the city’s Historic Resource Advisory Board initially denied
that request, the City Council, following a public hearing on
the issue, overturned that decision. In its written opinion,
the City Council concluded that the right to remove a local
historic designation under ORS 197.772(3) applies to any
owner of a property on which an historic designation was
“imposed.” The City Council stated its view that because the
designation was “imposed” on the Carman House in 1990,
its present owners were entitled by law to remove it from
the city’s Landmark Designation List. Accordingly, the city
approved the Trust’s request.
Cite as 360 Or 115 (2016) 123
LOPS appealed the city’s decision to LUBA. Con-
sidering the text, context and legislative history of ORS
197.772(3), LUBA concluded that the City Council had erro-
neously interpreted that provision. Focusing on the mean-
ing of the phrase “a property owner,” LUBA concluded that
that term as used in ORS 197.772(3) was not intended to
include persons who become owners of a property after it
is designated as historic. Lake Oswego Preservation Society,
70 Or LUBA at 121. Accordingly, because the Trust did not
acquire the Carman House property until years after it had
been designated as historic by the city, LUBA reversed the
city’s decision to remove the historic designation from the
Carman House under ORS 197.772(3) and remanded the
case to allow the city to determine whether the Trust could
seek its removal under an alternative provision of the city’s
historic preservation law. Id. at 124-25.
C.  The Court of Appeals Decision
The Trust sought judicial review of LUBA’s order,
and the Court of Appeals reversed. Lake Oswego Preservation
Society, 268 Or App at 821. The Court of Appeals agreed with
LUBA that the decisive issue was the meaning of the phrase
“a property owner” in ORS 197.772(3) and whether it encom-
passes all owners of historic properties or only those who
owned the property at the time the designation was imposed.
As to that issue, however, the court disagreed with LUBA’s
interpretation of the statute. Looking first to the text, the
court noted that the indefinite article “a” ordinarily refers
to an “unidentified, undetermined or unspecified” object. Id.
at 817-18. Next, considering the legislative history of ORS
197.772(3), the court found nothing expressly indicating that
the legislature intended to exclude successors-in-interest
from utilizing the removal provision in ORS 197.772(3), and
some evidence that the legislature was aware that allow-
ing owners to remove designations might undermine local
historic districts. Id. at 818-21. Based on that history, the
court concluded that the legislature was “focused on correct-
ing impositions of unwanted designations, and not on the
identity of the property owner that might be stuck with that
designation.” Id. at 821. Accordingly, the court held that the
best reading of that provision was the broadest one: that
124 Lake Oswego Preservation Society v. City of Lake Oswego
any owner of a property on which a local historic designa-
tion was, or had been, “imposed” has a right to remove it,
regardless of whether that designation was already in place
when the owner took title. Id. We granted LOPS’s petition
for review to address the meaning and application of ORS
197.772(3).
II. ANALYSIS
Our goal in interpreting statutes is to discern, to the
extent possible, what the legislature intended a provision to
mean. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042
(2009). We examine the statutory text in context, along with
its legislative history, applying as needed relevant rules and
canons of construction. Id. For the reasons described below,
we conclude that the legislature most likely intended the
phrase “a property owner” in ORS 197.772(3) to refer only
to persons who owned a property at the time a local historic
designation was imposed on that property.
A.  Statutory Text
ORS 197.772 provides:
“(1)  Notwithstanding any other provision of law, a
local government shall allow a property owner to refuse to
consent to any form of historic property designation at any
point during the designation process. Such refusal to con-
sent shall remove the property from any form of consider-
ation for historic property designation under ORS 358.480
to 358.545 or other law except for consideration or nomi-
nation to the National Register of Historic Places pursu-
ant to the National Historic Preservation Act of 1966, as
amended (16 U.S.C. 470 et seq.).
“(2)  No permit for the demolition or modification of
property removed from consideration for historic property
designation under subsection (1) of this section shall be
issued during the 120-day period following the date of the
property owner’s refusal to consent.
“(3)  A local government shall allow a property owner
to remove from the property a historic property desig-
nation that was imposed on the property by the local
government.”
Cite as 360 Or 115 (2016) 125
ORS 197.772.5 The statutory text thus has two substantive
components. The first part, in subsections (1) and (2), relates
to a property owner’s right to refuse a local historic designa-
tion during the initial designation process, and the effects
of such a refusal. The second part, in subsection (3), relates
to the status of properties already designated as historic
and requires a local government to allow the removal of a
designation from a property when two conditions are met.
First, the party seeking removal must be “a property owner”
within the meaning of the statute. Second, the property
must have had the historic property designation “imposed”
on it by the local government.6
The issue, as noted, is whether the phrase “a prop-
erty owner” in ORS 197.772(3) refers only to the owner of
the property at the time that an historic designation was
imposed, or whether any owner, such that a successor-in-
interest, like the Trust, may utilize it also.7
Because none of the terms in ORS 197.772 are
defined in the statute, we look first to their ordinary mean-
ings to determine what the legislature meant. State v.
5
ORS 197.772 has been amended since it was first enacted in 1995. See Or
Laws 2001, ch 540, § 19 (updating cross-reference to renumbered statute in sub-
section (1)). Because that amendment is not pertinent to any of the issues before
us on review, we quote the current version of the text.
6
The meaning of the word “imposed” in ORS 197.772(3) is also a matter
of first impression before this court. LUBA has interpreted it to mean that the
historic designation was put in place over the objections of the property owner at
the time of designation. See Demlow v. City of Hillsboro, 39 Or LUBA 307, 314-17
(2001) (interpreting and defining term). Because the only question on review is
whether the term “a property owner” in ORS 197.772(3) includes a successor-in-
interest, and because the resolution of that question is dispositive in this case, we
leave for another day the issue of what the legislature meant in requiring that a
designation be “imposed” for it to be subject to removal under ORS 197.772(3).
7
The Trust has suggested that it should not be considered a successor-in-
interest to the Wilmots because it was created by them as an estate planning
vehicle. Because the Court of Appeals resolved this case on other grounds, it did
not reach that issue. A trust is a distinct legal entity, and a settlor’s transfer
of property to a trust divests the settlor of its legal interest in that property.
Restatement (Third) of Trusts § 2 comment a, and § 3 comment b (2003). In this
case, the record shows that Mary Wilmot conveyed the property in 2001 by war-
ranty deed to Richard Wilmot II, as trustee of the Mary Cadwell Wilmot Trust.
On those facts, we treat Mary Wilmot’s transfer of the property the same as any
conveyance of real property. We express no opinion, however, on whether under
other circumstances an original owner’s right to remove a designation under
ORS 197.772(3) may be exercised by a different person or entity.
126 Lake Oswego Preservation Society v. City of Lake Oswego
Dickerson, 356 Or 822, 829, 345 P3d 447 (2015). The words
“property” and “owner” are relatively straightforward, refer-
ring, in context, to the individual or entity that has legal
title to a piece of real estate. See Webster’s Third New Int’l
Dictionary 1818, 1612 (unabridged ed 2002) (defining “prop-
erty” and “owner”). However, those definitions do not tell us
which property owners the text refers to.
Urging us to interpret the term “a property owner”
in its broadest possible sense, the Trust emphasizes the fact
that the legislature chose to use the indefinite article “a” as
a determiner rather than the definite article “the” in that
phrase. That word choice, the Trust suggests, unambigu-
ously shows that the legislature intended ORS 197.772(3)
to apply to all property owners, including successors-in-
interest like the Trust.
We do not find the legislature’s word choice to be so
conclusive. In some cases, statutory text that appears clear
on its face turns out, upon closer analysis, to be entirely
uncertain. See Gaines, 346 Or at 172 (legislative history
may establish that “superficially clear language actually is
not so plain at all—that is, that there is a kind of latent
ambiguity in the statute”). For the reasons discussed below,
the text in this case is susceptible to at least two plausible
interpretations.
The Trust argues that the phrase “a property owner”
in ORS 197.772(3) means any property owner at any point
in time, including those who acquired the property after the
designation was imposed. However, as a basic principle of
grammar, that is not necessarily the case. On one hand, it is
true that the indefinite article “a” is often used as a function
word before a singular noun when that noun is “undeter-
mined, unidentified, or unspecified, esp. when the individual
is being first mentioned or called to notice.” Webster’s at 1;
see also Randolph Quirk et al, A Comprehensive Grammar
of the English Language at 272 (1985) (indefinite articles
normally used when referenced noun is not uniquely iden-
tifiable in shared knowledge of speaker and hearer). When
used in that context, the word “a” is sometimes synonymous
with “any.” See, e.g., State v. Hankins, 342 Or 258, 263, 151
P3d 149 (2007) (use of indefinite article “an” in statute could
Cite as 360 Or 115 (2016) 127
mean defendant is permitted to demur to indictment when
facts alleged do not constitute any offense); see also, e.g.,
Carroll and Murphy, 186 Or App 59, 68, 61 P3d 964 (2003)
(distinguishing definite article “the” from indefinite article
“a”; the latter could indicate any future payment as opposed
to a specific one).
On the other hand, the use of the article “a” as a
determiner does not always mean that the referenced noun
is unspecified in the most generic sense. For example, “a”
may also be used quantitatively. See Webster’s at 1 (“a” may
be used “to suggest a limitation in number”). As a result, “a”
may simply signal that the specified noun is one of a par-
ticular class, whether that class is defined by a subsequent
restrictive clause or other modifier, id., or is implied more
generally by the context in which the phrase appears. See
Rodney Huddleston et al, The Cambridge Grammar of the
English Language 371-72 (2002) (describing uses of indefi-
nite article “a” and difference between quantitative and non-
quantitative indefiniteness). When used in that manner, the
determiner “a” indicates that the noun that follows is one
unspecified member of a limited group. See, e.g., Hankins,
342 Or at 263 (legislature’s use of indefinite article in stat-
ute permits two interpretations: that demurrer is permitted
only when the facts stated do not constitute “any” offense,
or when indictment simply fails to state the offense that it
purports to charge). Read in that way, the phrase “a prop-
erty owner” in ORS 197.772(3) could also be interpreted as
referring to one of an otherwise limited group of property
owners.
Viewing the text of ORS 197.772(3) in context, the
latter interpretation is entirely plausible. See Gaines, 346 Or
at 171 (to make sense of what a particular provision means,
we must consider the text in light of the context in which it
appears). One important source of context is other parts of
the same statute. Dept. of Transportation v. Stallcup, 341 Or
93, 99, 138 P3d 9 (2006). In this case, the legislature used
the same term—“a property owner”—in both subsections
(1) and (3) of ORS 197.772. “When the legislature uses the
identical phrase in related statutory provisions that were
enacted as part of the same law, we interpret the phrase to
128 Lake Oswego Preservation Society v. City of Lake Oswego
have the same meaning in both sections.” Tharp v. PSRB,
338 Or 413, 422, 110 P3d 103 (2005).
Here, the legislature’s use of the same phrase
in subsection (1) supports LOPS’s interpretation of ORS
197.772(3). Unlike subsection (3), the text of subsection (1)
contains several indications of whom the phrase “a property
owner” refers to. ORS 197.772(1) provides in part:
“Notwithstanding any other provision of law, a local
government shall allow a property owner to refuse to con-
sent to any form of historic property designation at any
point during the designation process.”
(Emphasis added.) Because the word “designation” refers
in that sense to an event—the action of designating—the
class of property owners referred to in subsection (1) is lim-
ited temporally to those at that particular point in time.
That limitation is confirmed by the restrictive clause in the
same sentence, specifying that “a property owner” may only
exercise its refusal right under subsection (1) “during the
designation process.” The phrase “a property owner” in sub-
section (1), therefore, refers to a specific and relatively nar-
row class of owners: those who own a property at the time
that the government designates that property as historic.
If the same meaning is applied to the phrase “a property
owner” in subsection (3), that provision becomes similarly
targeted, referring to an owner at the time a property is
first designated, whenever that occurs. Thus, although the
legislature’s use of the same term in ORS 197.772(1) does
not foreclose the Trust’s interpretation of ORS 197.772(3), it
highlights the fact that when read in context, the meaning
of the phrase “a property owner” is ambiguous.8
The Trust contends, nonetheless, that the text of
ORS 197.772(3), taken as a whole, requires us to adopt a
more expansive reading of the term “a property owner.”
8
The Trust argues that the term “a property owner” cannot have the same
meaning in both subsections of ORS 197.772, noting that subsection (1) and
subsection (2) may refer to designations occurring at different points in time—
before and after the enactment of ORS 197.772. That argument is not well taken.
Although ORS 197.772(1), like most statutes, is written to apply prospectively
and ORS 197.772(3) is remedial, both provisions can be readily interpreted as
applying to the same group of owners: those who own a property at the time it is
designated.
Cite as 360 Or 115 (2016) 129
To reach that result, the Trust draws a negative inference
from the legislature’s failure to more specifically describe
or explain what it intended the term “a property owner”
to mean in ORS 197.772(3). For, the Trust argues, had the
legislature intended that provision to apply to only certain
property owners, it would have included additional lan-
guage clarifying that point, stating, for example, “that the
owner who owned the property at the time a designation
was imposed may seek removal.”
We do not find that argument persuasive. As we
have previously recognized, the fact that a statutory pro-
vision describes something in relatively broad terms does
not always mean that the legislature intended the most
expansive meaning possible. See State v. Walker, 356 Or 4,
17, 333 P3d 316 (2014) (where there is evidence legislature
had a more specific meaning in mind and that meaning is
consistent with the text, court may appropriately construe
text as such even if it also permits more expansive inter-
pretation); see, e.g., Alfieri v. Solomon, 358 Or 383, 401-02,
365 P3d 99 (2015) (concluding that legislature, despite use
of passive voice in statute, did not intend it to apply to any
person, but only to determinate class). Moreover, because
legislative inaction can stem from a variety of causes, which
may or may not relate to the legislature’s intent as to a
particular issue, negative inferences based on legislative
silence are often unhelpful in statutory interpretation. See,
e.g., Farmers Ins. Co. v. Mowry, 350 Or 686, 696, 261 P3d
1 (2011) (noting that legislative silence is a “legal fiction”
and that the legislature “may decline to address a judicial
decision for any number of reasons, none of which necessar-
ily constitutes an endorsement of the decision’s reasoning or
result”); see also State Bar v. Security Escrows, Inc., 233 Or
80, 84-85, 377 P2d 334 (1962) (finding “no authority for the
proposition that legislative silence * * * is the equivalent of a
legislative definition”).
Whereas the absence of narrowing language in
ORS 197.772(3) could mean that the legislature intended
that provision to be read in an expansive sense, an equally
plausible inference is that the omission means nothing at
all, except that the legislature did not perceive the need to
130 Lake Oswego Preservation Society v. City of Lake Oswego
clarify its intent. See State v. Rainoldi, 351 Or 486, 492, 268
P3d 568 (2011) (noting that because fact of legislative silence
can give rise to competing inferences—that legislature did
not intend anything in particular, or that the omission was
purposeful—it is generally not a dispositive indicator of
intent). Thus, although “[t]he legislature knows how to
include qualifying language in a statute when it wants to do
so,” PGE v. Bureau of Labor and Industries, 317 Or 606, 614,
859 P2d 1143 (1993), the fact that the legislature failed to do
so in a particular case is far from definitive proof of its intent.
In sum, the text of ORS 197.772(3) does not, on
its own, compel any particular interpretation of the term
“a property owner.” Although the use of the indefinite arti-
cle “a” in that provision could be read as synonymous with
“any,” there is at least one other plausible way in which to
read the same words. That variation highlights the fact that,
while grammatical “rules” are helpful in statutory interpre-
tation, they are often subject to qualification and should not
be applied mechanically in seeking to discern the meaning
of a provision. Rather, because the legislature sometimes
expresses itself in unusual ways, the best reading of a stat-
ute is not necessarily the most obvious one, grammatically
speaking. See, e.g., Burke v. DLCD, 352 Or 428, 435-37, 290
P3d 790 (2012) (describing variations in use of disjunctive
“or” and concluding that while it often indicates an exclusive
relationship, legislature may also use “or” inclusively). That
is particularly true when, as discussed below, the broader
context of a provision points to a different meaning than the
text, read in isolation, might otherwise suggest.
B.  Legislative and Regulatory Context
ORS 197.772(3) was drafted against the backdrop
of a well-developed set of related statutes and rules con-
cerning the preservation of historic properties and was
intended to change one aspect of that regulatory scheme.
See Stallcup, 341 Or at 99 (relevant context includes other
related statutes, preexisting common law, as well as regu-
latory framework); Blachana, LLC v. Bureau of Labor and
Industries, 354 Or 676, 691, 318 P3d 735 (2014) (for purposes
of statutory interpretation, “[w]e presume that the legisla-
ture was aware of existing law”). See also Tape Recording,
Cite as 360 Or 115 (2016) 131
Senate Committee on Water and Land Use, SB 588, Mar 22,
1995, Tape 66, Side A (discussion between Sen Johnson
and Sen Dwyer and various witnesses regarding exist-
ing historic preservation programs and effect of proposed
consent provision on those programs); Tape Recording,
House Committee on General Government and Regulatory
Reform, SB 588, May 2, 1995, Tape 126, Side A (statement
of Rep Leslie Lewis that consent provision was specifically
intended to address designation of properties by local gov-
ernments pursuant to Goal 5). For the reasons discussed
below, we conclude that legislative and regulatory context
supports the interpretation of ORS 197.772(3) as being lim-
ited to the relatively small group of property owners whose
property was designated as historic against their wishes,
rather than to all owners of designated properties, including
subsequent purchasers.
A central aspect of that context, and one particu-
larly pertinent here, was the requirement, as part of Oregon’s
comprehensive land use planning process, that local govern-
ments create and implement comprehensive development
plans and local land use regulations to protect historically
significant properties. See 1000 Friends v. LCDC, 292 Or
735, 744-50, 642 P2d 1158 (1982) (describing development
and organization of statewide land use planning frame-
work under ORS chapter 197); see also Land Conservation
and Development Commission (LCDC), Oregon’s Statewide
Planning Goals: Goal 5 (1990) (describing basic content of
goal relating to historic preservation).9
As noted above, pursuant to Statewide Planning
Goal 5, local governments were required to inventory all
historic properties, analyze the potential uses and conflicts
9
Although the Goal 5 framework is largely made up of agency guidelines and
administrative rules, and therefore is not a direct expression of legislative intent,
it nonetheless informs the legal background against which the legislature acted
when it created ORS 197.772. See State v. Lane, 357 Or 619, 624-31, 355 P3d 914
(2015) (considering administrative rules in form of sentencing guidelines as part
of legal context for constitutional amendment relating to judicial power to modify
criminal sentences). The administrative rules that govern the application of Goal
5 today, OAR 660-015-0000 and OAR 660-023-0000 to 660-023-0250, were not
created until 1996. Therefore, for purposes of examining the regulatory context
that existed when ORS 197.772(3) was enacted, we look to the guidelines and
rules in effect at that time, those promulgated in 1990.
132 Lake Oswego Preservation Society v. City of Lake Oswego
as to the use of those properties, and adopt measures, usu-
ally in the form of local land use ordinances, to ensure that
those properties were appropriately protected in light of
economic, social, environmental, and energy considerations.
See Statewide Planning Goals at 6-7 (establishing proce-
dures and criteria for inventorying and evaluating Goal 5
resources and for developing local land use programs to con-
serve and protect those resources); see also Collins v. LCDC,
75 Or App 517, 520-24, 707 P2d 599 (1985) (describing pro-
cess for developing and implementing appropriate land use
restrictions pursuant to Goal 5). Thus, in implementing
Goal 5, local governments were obligated to not only identify
historically significant properties, but also to ensure that
those properties would be preserved for future generations.
See, e.g., Statewide Planning Goals at 6 (describing goal that
historic areas, sites and structures shall be managed so as
to preserve their original character). It was pursuant to that
process that the Carman House was identified, added to
the city of Lake Oswego’s Landmark Designation List, and
made subject to certain land use restrictions.
One of the defining features of the Goal 5 program,
and the feature of greatest concern to legislators when they
revisited the issue in 1995, was that the process for desig-
nating properties was largely involuntary from the property
owner’s standpoint. Tape Recording, Senate Committee on
Water and Land Use, SB 588, Mar 22, 1995, Tape 66, Side
A (testimony of James Hamrick, State Preservation Office,
describing program). At that time, the determinative con-
sideration for whether a property would be included on a
local inventory was not whether the owner consented, but
whether it qualified as an historic resource according to a
set of specified criteria. Yamhill County, 99 Or App at 446-
47; see also, e.g., LOC 58.095 - 58.105 (1990) (setting out cri-
teria for historic designations). Although owners ordinarily
had some opportunity to provide input in the designation
process, the ultimate decision as to whether a property
would be designated was up to the local government, fol-
lowing the process set at the state level under Goal 5. See
Yamhill County, 99 Or App at 446-47 (holding that state law
requires local governments to consider a variety of speci-
fied factors in determining whether to designate an historic
Cite as 360 Or 115 (2016) 133
property and that county ordinance that made owner con-
sent a prerequisite to designation was invalid under Goal 5
because it “categorically subordinate[d]” those many factors
to the owner’s preference).
As in other states, Oregon’s approach to historic
preservation included proactively identifying and designat-
ing properties as a precursor to the application of general
restrictions on use and development.10 That approach was
considered beneficial to historic preservation goals because
it allowed local governments to create more comprehensive
inventories and avoid the inadvertent loss of important
resources, as sometimes happens when preservation takes
place in a piece-meal fashion. See David Listokin, Growth
Management and Historic Preservation: Best Practices for
Synthesis, 29 Urb Law 199, 204-06 (1997) (describing value
of addressing historic preservation as part of comprehensive
planning approach and importance of identifying historic
resources); see also Paul Wilson and James Winkler II, The
Response of State Legislation to Historic Preservation, 36
Law & Contemp Probs 329, 333-35, 337-39 (1971) (identify-
ing features and benefits of historic designation in various
jurisdictions).
That approach to historic preservation also had
the benefit of ensuring long-term stability. Once a prop-
erty was designated as historic, it ordinarily remained so,
regardless of any future owner’s preference, as long as it
continued to meet the specified criteria for designation.
See Julia Miller, Owner Consent Provisions in Historical
Preservation Ordinances: Are They Legal?, 10 Preservation
L Rep 1019, 1023-24 (1991) (describing how local historic
designation should work and noting that once a designa-
tion attaches, it will typically run with the property, and
apply to subsequent owners); see also, e.g., LOC 58.110
10
Oregon’s system for historic preservation at the local level pursuant to
Goal 5 is not unique, but typical of programs found in jurisdictions across the
country. See David Listokin, Growth Management and Historic Preservation, 29
Urb Law 199, 202-03 (1997) (describing Oregon system for historic preservation
and comparing to others elsewhere in United States); see, e.g., Penn Cent. Transp.
Co. v. City of New York, 438 US 104, 109-14, 98 S Ct 2646, 57 L Ed 2d 631 (1978)
(describing comparable program in New York City and noting that it is typical of
many urban landmark laws).
134 Lake Oswego Preservation Society v. City of Lake Oswego
(1990) (stating that for designation to be removed, city
must determine that it is no longer justified pursuant to
same criteria that governs designation); Portland City
Code (PCC) 33.845.070 (1991), repealed and renumbered
by Portland City Ordinance No. 169987 (Apr 10, 1996)
(specifying that historic landmark designation will only
be removed if reasons for designating property no longer
apply). And because the designation of a property would
trigger the application of legal protections restricting its
use and development—typically in the form of local land
use ordinances and zoning plans—designated historic
properties had the benefit of long-term protection from
alteration or demolition. See Julian Juergensmeyer and
Thomas Roberts, Land Use Development Regulation Law
§ 12:8 (3d ed 2013) (describing how local historic designa-
tion programs, like that under Goal 5, use regulations to
protect historic properties); see, e.g., LOC 58.020, 58.120 -
58.145 (1990) (setting out land use restrictions applica-
ble to all designated properties); Eugene City Code (ECC)
9.206 - 9.208 (1992) (providing that designated historic
landmarks shall be subject to special zoning overlay and
restrictions on alteration and development of property).
The downside of that approach, however, was that
the imposition of an historic designation could interfere
with the investment-based expectations of the owner who
suddenly became subject to restrictions on the use and
enjoyment of its property. See Sara Bronin and J. Peter
Byrne, Historic Preservation Law 78-79 (2012) (local his-
toric designations typically trigger restrictions on owner’s
rights as to use of property); cf. Penn Cent. Transp. Co. v.
City of New York, 438 US 104, 1264-25, 98 S Ct 2646, 57
L Ed 2d 631 (1978) (owner’s investment-based expectations
are relevant to whether restriction on property’s use under
local historic preservation ordinance impinged on property
owner’s rights). Although historic preservation might bol-
ster property values at an aggregate level over time, historic
designation could diminish an individual property’s fair
market value. See Paul Asabere et al, The Adverse Impacts
of Local Historic Designation: The Case of Small Apartment
Buildings in Philadelphia, 8 J Real Estate Finance and
Economics 225, 227, 232 (1994) (describing effect). And
Cite as 360 Or 115 (2016) 135
even when that was not the case, designation could present
a financial burden in other ways, by, for example, prohibit-
ing the most profitable use of a property or creating onerous
maintenance requirements. See Penn Cent. Transp. Co., 438
US at 130 (noting that in that case, ordinance prohibited
most beneficial use of property to owner by limiting owner’s
ability to develop 55-story building on site); see also, e.g.,
ECC 9.208 - 9.210 (1992) (restricting alterations to build-
ing exteriors; requiring repair rather than replacement of
existing architectural features and that repairs accurately
duplicate original designs).
Thus, while Oregon’s system of designating and
regulating historic properties under Goal 5 was similar to
other land use planning in that it elevated certain public
interests over individual landowner preferences, it tended to
impose the costs of those benefits to an even greater extent
on specific landowners. Cf. Penn Cent. Transp. Co., 438 US
at 139 (Rehnquist, J., dissenting) (arguing that same type
of preservation program “imposes * * * a substantial cost,
with little or no offsetting benefit except for the honor of the
designation” and questioning whether that cost ought to be
borne by all taxpayers instead of by individual owners). As
one author aptly described the problem:
“Since landmark designation usually imposes restrictions
on the owner’s alterations of the property, an owner may
be forced to bear the burden of diminished property value
and in effect to pay for the community’s preservation pref-
erences through an assessment not placed on the owners
of ordinary properties. To be sure, landmark designation
may provide some benefits to some landmark owners * * *.
But for the owner who resists landmark designation and
control, the burden probably outweighs the benefits.”
Carol Rose, Preservation and Community: New Directions
in the Law of Historic Preservation, 33 Stan L Rev 473,
497-98 (1981). See also Joseph Sax, Some Thoughts on
the Decline of Private Property, 58 Wash L Rev 481, 483
(1983) (discussing criticism that designation and regula-
tion of historic properties forces owners to bestow ame-
nities on their neighbors without any reciprocal obliga-
tion); Andrew Gold, The Welfare Economics of Historic
136 Lake Oswego Preservation Society v. City of Lake Oswego
Preservation, 8 Conn L Rev 348, 363-67 (1976) (describing
economic cost of individual landmark designation and how
it is distributed).
For those reasons, some viewed the imposition of an
historic designation over a property owner’s objections as a
violation of that owner’s property rights. See Tape Recording,
House Committee on General Government and Regulatory
Reform, May 2, 1995, SB 588, Tape 127, Side A (statement
of Larry George, Oregonians in Action, explaining rea-
sons for supporting owner consent provision under Oregon
law). Indeed, Congress amended the National Historic
Preservation Act in 1980 to require owner consent for indi-
vidual properties to be designated and listed as landmarks
on the National Register of Historic Places in part to address
similar concerns. See W. Hartford Initiative to Save Historic
Prop. v. Town of W. Hartford, No. 3:06-CV-739 (RNC), 2006
WL 2401441 at *6 (D Conn Aug 18, 2006) (describing leg-
islative history of National Historic Preservation Act and
creation of owner consent requirement).11
That background helps frame several of the parties’
arguments over the proper interpretation of the removal
provision in ORS 197.772(3). Pointing to the comprehensive
nature of Oregon’s statewide historic preservation program
under Goal 5 and the many benefits of that system, LOPS
and amici argue that that context strongly undercuts any
interpretation of ORS 197.772(3) that would allow subse-
quent owners to use that provision to unilaterally opt out
of designation decades later. They contend that because
the overwhelming majority of historically significant prop-
erties in Oregon were designated before ORS 197.772 was
enacted in 1995, and therefore likely had designations put
11
Although the listing of a property on the National Register is primarily
honorific and does not directly result in any restriction on the owner’s control
and use of the property, the federal listing of a property often triggers a variety
of restrictions under state and local law. Bronin, Historic Preservation Law at
68-69. It was partly for that reason, and to alleviate due process concerns that
might result, that Congress added the owner consent requirement for individ-
ual landmark listings. W. Hartford Initiative to Save Historic Prop. v. Town of
W. Hartford, No. 3:06-CV-739 (RNC), 2006 WL 2401441 at *6 (D Conn Aug 18,
2006); see also Juergensmeyer and Roberts, Land Use Planning and Development
Regulation Law at 12:8 (describing issue of owner consent and addition of owner
consent provision to National Historic Preservation Act).
Cite as 360 Or 115 (2016) 137
in place regardless of their owners’ desires at the time,
creating a removal right that would run to successors-in-
interest would fundamentally and permanently destabilize
the entire system of historic preservation in Oregon. Most of
the state’s historic properties would be perpetually at risk of
being de-listed and, thus, subject to modification or demoli-
tion with little warning and no consideration of the broader
impact of that decision.
Acknowledging that impact, the Trust responds
that because the text of ORS 197.772(3) is inherently at
odds with Goal 5, the only way to interpret that provision
is as a substantial abrogation of that program. The Trust
is certainly correct that the owner consent provisions in
ORS 197.772 were intended to modify the existing pro-
cess for historic designation and regulation under Goal 5.
Giving property owners the power to refuse designation
not only makes it more difficult for local governments to
designate properties, it also gives an owner—at least the
owner at the time of designation—rights that would ele-
vate the owner’s preference above other factors that would
otherwise inform the Goal 5 process. See Yamhill County,
99 Or App at 447 (concluding that owner consent require-
ment “categorically subordinate[d] all historic resources,
or at least all otherwise qualified landmarks, to any own-
er’s preference for non-regulation”). Likewise, allowing
individual owners to refuse designation makes historic
inventories less comprehensive and the preservation of
historic properties less complete, reducing the value of
such programs. See Miller, Owner Consent Provisions at
1020-21, 1035-36 (describing how owner consent provi-
sions “seriously limit the ability of local governments to
fulfill the mandate to protect historic property and the
heritage of their citizenry” and “undermine the general
principle that regulation should be rationally and uni-
formly applied”).
The mere fact that ORS 197.772 is in tension with
Goal 5, however, does not answer the question of how far the
legislature intended to go in cutting back the scope of exist-
ing local preservation programs created pursuant to that
goal, or the extent to which the legislature intended to limit
138 Lake Oswego Preservation Society v. City of Lake Oswego
the effect of historic designations that were already in place.
Rather, even if the right to refuse consent in ORS 197.772(1)
decreases the number of new designations, the impact of the
removal right in ORS 197.772(3) on existing designations
and preservation programs depends in substantial part on
how one reads that provision. If one interprets the right to
remove an historic designation as applying to any owner
of a property on which a designation was ever “imposed,”
the result could be, as LOPS contends, that most, if not all,
of Oregon’s historic properties are at risk of having their
designations, and the protections that accompany that sta-
tus, removed at any time. If, however, the right to remove a
designation applies only to those owners who owned their
properties at the time of designation, the long-term impact
of ORS 197.772(3) is more limited. Although some of those
owners may still opt out, the number of properties eligible
for de-listing is smaller and would tend to decrease over
time as historic properties change hands.
Contrary to the Trust’s assertions, nothing about
the context of ORS 197.772(3) suggests that the legislature
intended to eliminate local governments’ use of historic
designations to protect and preserve historic properties
long-term and therefore meet their obligations under Goal
5. Rather, what that context shows is that the legislature
sought to adjust that existing framework to strike a more
equitable balance between the countervailing interests of
historic preservation and property rights. For example, even
as the legislature sought to provide an additional right to
some owners, it tempered that objective by including within
the same statute a provision aimed at ensuring local com-
munities every opportunity to save historically important
properties prior to their demolition or alteration. See ORS
197.772(2) (establishing mandatory delay period following
refusal to consent to designation during which demolition
or significant alternation is prohibited, in order to facilitate
alternative means of preservation); see also Tape Recording,
House Committee on General Government and Regulatory
Reform, SB 588, May 4, 1995, Tape 130, Side B (statements
of Sen Dwyer describing purpose of delay provision and Rep
Patricia Milne criticizing its effect as undermining owner
right to refuse designation).
Cite as 360 Or 115 (2016) 139
Similarly weighing against the Trust’s argument is
the fact that the legislature, presented with the opportunity
to modify the existing statutory and regulatory framework
that governed local historic preservation programs under
Goal 5, chose to leave that framework intact. For example,
although other legislation passed around the same time as
the bill that created ORS 197.772 directed LCDC—the state
agency tasked with developing and administering Oregon’s
statewide planning goals, including Goal 5—to amend its
statewide planning goals and regulations in accordance with
other specific changes to the same statutory scheme, the leg-
islature did not provide any such direction to LCDC with
respect to modifying its Goal 5 program in light of the new
owner consent provisions enacted in ORS 197.772. Compare
Or Laws 1995, ch 521, §§ 1-4 (bill passed earlier in the same
month as SB 588 amending ORS chapter 197 and directing
LCDC to “amend and adopt rules and guidelines, as neces-
sary, to implement the provisions of this Act”) and Or Laws
1995, ch 299, §§ 1-3 (bill passed six weeks before SB 588
directing LCDC to modify its approach to statewide land
use planning in specific ways, for example, by requiring it
to “allow for the diverse administrative and planning capa-
bilities of local governments” and to “assess what economic
and property interests will be, or are likely to be, affected by
[a] proposed rule”) with Or Laws 1995, ch 595, §§ 23-26 (bill
passed two days before SB 588 modifying statute relating to
LCDC’s amendment of existing land use planning goals but
neither addressing owner consent provisions to be enacted
in ORS 197.772 nor modifying existing process for historic
preservation under Goal 5). That the legislature did not
modify that existing framework at all, nor direct LCDC to
revise its regulatory approach to Goal 5, suggests that the
legislature intended ORS 197.772(3) to operate in a way that
would not significantly impact the overall scheme for his-
toric preservation pursuant to Oregon’s statewide planning
goals and process as it existed at that time.
In light of that context, and the absence of any evi-
dence suggesting that the legislature intended to dismantle
the established statutory and regulatory framework for the
protection of historic properties under Goal 5, we are hes-
itant to construe ORS 197.772(3) in a manner that would
140 Lake Oswego Preservation Society v. City of Lake Oswego
lead to such a result. Cf. Baker v. City of Lakeside, 343 Or
70, 76, 164 P3d 259 (2007) (court is “hesitant” to read stat-
ute in manner inconsistent with well-established principles
of law absent clear indication of intent); see also, e.g., State
v. Miller, 309 Or 362, 368-69, 788 P2d 974 (1990) (conclud-
ing that in light of legislature’s long-standing preference for
making offense of driving under the influence easier to pros-
ecute, it was “preposterous” to infer that it revised statute
to add requirement that driver have culpable mental state).
Rather, considering the legislature’s expression of support
for both the use of local land use regulations to preserve his-
toric properties and for the protection of property owners’
economic interests, the most plausible interpretation of ORS
197.772(3) is one that furthers both of those objectives.
Finally, additional context supporting LOPS’s inter-
pretation of ORS 197.772(3) can be found in the dramati-
cally different way that historic designation affects property
owners, depending on when they acquired their property. As
noted, when an historic designation is placed on a property
for the first time, that action ordinarily triggers the applica-
tion of legal restrictions—often in the form of local land use
and zoning ordinances—on the owner’s ability to use and
develop that property. Rose, Preservation and Community
at 497. That designation may have a significant, and some-
times negative, impact on the value of the property. Id. at
497-98; Asabere, Adverse Impacts at 232. It is for that rea-
son that some see the imposition of an historic designation
against the owner’s wishes as a violation of that owner’s
property rights.
Such concerns are muted, however, when historic
designation is enforced against an owner who acquired its
property with the designation already in place, and who
therefore had actual or constructive notice of such restric-
tions from the outset.12 See Dodd v. Hood River County, 317
Or 172, 185, 855 P2d 608 (1993) (noting that when a prop-
erty owner takes title with a land use regulation in place,
12
Even if a local historic designation is not disclosed by a property title
search, that information is public and readily ascertainable from planning
authorities. See, e.g., LOC 50.06.009 (2016) (provision of Lake Oswego city code
listing all properties on Landmark Designation List and describing zoning
restrictions applicable to listed properties).
Cite as 360 Or 115 (2016) 141
owner has at least constructive notice that property’s use
is subject to those restrictions). At that point, to the extent
that a previous designation may have diminished the prop-
erty’s value, that diminution is reflected at the time of trans-
fer, and therefore, informs not only the reasonable expec-
tations of the successor, see id. (regulations existing when
owner takes property inform reasonable investment-based
expectations as to its use), but the actual contents of the
bundle of property rights that the successor obtains at that
time. 73 CJS Property §§ 3-4, 6 (2016) (property interest in
land includes right to use and develop land, subject to lim-
its imposed by lawful land use regulations); see also ORS
93.040(1) (1995) (providing that any instrument transfer-
ring or contracting to transfer fee title to real property must
include statement it does not convey right to use property in
violation of applicable land use laws and that before accept-
ing, party acquiring property should check with appropriate
local government body to verify approved uses).
As a result, whatever harm an owner may suffer
as a result of the imposition of an historic designation, that
harm does not flow to its successor-in-interest, who acquires
the property with notice of the designation and, most likely,
at a price or valuation that reflects that designation. Under
those circumstances, the ability to remove a previously-
imposed designation at will would constitute a windfall for
the successor. Cf. Dodd, 317 Or at 185 (having taken title
with regulation in place and therefore with at least con-
structive notice of it, owner has no reasonable expectation
of using property in manner inconsistent with that regula-
tion). Considering that difference in the way that original
and subsequent property owners are affected by an historic
designation, it is more likely that the legislature intended
the term “a property owner” in ORS 197.772(3) to mean
the property owner at the time a property was designated,
rather than an owner who acquired the property later.
The text of ORS 197.772, and the remedies that
subsections (1) and (3) provide, is consistent with distin-
guishing between owners at the time of designation—
whose economic interests may be adversely affected by the
designation—and those who, because they acquired their
property with the designation in place, have no reasonable
142 Lake Oswego Preservation Society v. City of Lake Oswego
expectation of using their property in a manner inconsis-
tent with any regulations that accompany that designation.
If we interpret the phrase “a property owner” as apply-
ing only to owners at the time of designation in both ORS
197.772(1) and (3), all owners whose property interests may
be harmed as a result of the imposition of an unwanted his-
toric designation are protected in a similar manner from
that harm. Subsection (1) addresses that potential harm by
providing that owners who object to the designation of their
properties may avoid designation during the designation
process by refusing to consent in the first place. See ORS
197.772(1) (“Notwithstanding any other provision of law, a
local government shall allow a property owner to refuse to
consent to any form of historic property designation at any
point during the designation process.” (Emphasis added.)).
Subsection (3) provides an opportunity to the same group of
owners to address the harm they have already experienced,
by allowing them to refuse consent retroactively and remove
those designations that were previously imposed on them.
See ORS 197.772(3) (allowing “a property owner” to remove
“a historic property designation that was imposed on the
property by the local government”). On the other hand, all
subsequent owners—who suffer no harm to their property
interests—are bound by those historic designations that
existed when they acquired the property.
As the foregoing analysis demonstrates, while the
text of ORS 197.772(3) is ambiguous, the most plausible
reading of that provision, when read in context, is one that
furthers both the objective of historic preservation generally
and the goal of ensuring that historic designations are not
placed on properties against an owner’s wishes. Considering
the text against that background, we conclude that the leg-
islature most likely did not intend ORS 197.772(3) to apply
to all owners of designated properties, but instead to mem-
bers of a more specific class: those who owned their property
at the time that the designation was placed on the property.
C.  Legislative History
Because the legislative history is also helpful in this
case, we consider whether it is consistent with the meaning
that the text and context suggest. See Gaines, 346 Or at 172
Cite as 360 Or 115 (2016) 143
(court may consider legislative history to the extent useful
for statutory interpretation). As discussed below, there is
nothing in the legislative history of ORS 197.772 that defini-
tively answers the question of whether the removal provision
in ORS 197.772(3) was intended to apply to successive own-
ers of designated properties. That said, there is some evi-
dence that bears on what the legislature expected to achieve
in enacting that provision. Overall, that history weighs in
favor of interpreting the phrase “a property owner” as refer-
ring only to owners at the time of designation.
One relevant aspect of a provision’s legislative his-
tory is the particular purpose for which it was created. See,
e.g., SAIF v. Drews, 318 Or 1, 6-7, 860 P2d 254 (1993) (look-
ing to legislative history of worker’s compensation statute
and considering purpose for which new language was added
to discern legislature’s intent). In this case, that background
is both extensive and probative. Senate Bill 588—the bill
that created ORS 197.772—originated in response to citi-
zen agitation on the issue of property rights and local con-
trol, particularly by property owners in Yamhill County. See
Tape Recording, Senate Committee on Water and Land Use,
SB 588, Mar 30, 1995, Tape 78, Side A (statement of Sen
Rod Johnson, Committee Chair, describing history of owner
consent provisions in SB 588 and their 1993 predecessors
in HB 2124); Exhibit 10, Senate Revenue & School Finance
Committee, HB 2124, July 20, 1993 (statement of Yamhill
County Commissioner Dennis Goecks, explaining impetus
for legislation creating statutory right to refuse consent to
local historic designation). In 1989, the Yamhill County
Board of Commissioners had passed a local law, Ordinance
479, which made owner consent a condition precedent to any
historic landmark designation. Yamhill County, 99 Or App
at 444. That ordinance was created in response to specific
concerns about property rights which had arisen from the
application of Yamhill County’s historic preservation law,
enacted just the year before. Id.; see also Yamhill County
Ordinance No. 479, p. 1 (Apr 19, 1989) (describing reasons
for adopting ordinance).
Ordinance 479 contained two key provisions. First,
it mandated that the local government “shall not designate
144 Lake Oswego Preservation Society v. City of Lake Oswego
a landmark without the consent of the owner of the land-
mark.” Ordinance 479, Exhibit A § 4(6). Second, it included
a mechanism for the removal of those designations that had
already been imposed under the county’s preservation ordi-
nance, providing a period of 60 days after the ordinance
went into effect during which owners of previously desig-
nated properties could request to have those designations
removed. Id. § 4(8)(a). That removal right was not open-
ended, however. The ordinance also provided that after that
initial remedial period, all existing historic designations,
whether they were imposed on the property with the own-
er’s consent or not, would remain on the property so long as
it continued to qualify for landmark status. See id. § 4(8)(b)
(providing that after 60-day remedial period ended, “con-
sent of the owner shall not be required to continue the desig-
nation” (emphasis added)).
Ultimately, Yamhill County’s attempt to condition
the designation of historic properties on the owner’s consent
was short-lived. Opponents challenged Ordinance 479 and
the Court of Appeals struck it down as inconsistent with the
requirements of LCDC’s implementing regulations for Goal
5. Yamhill County, 99 Or App at 446-47. The owner consent
provisions enacted in ORS 197.772 were intended to over-
ride that decision and to afford property owners across the
state the same right that Ordinance 479 had attempted to
provide constituents in Yamhill County: the right to refuse
the imposition of an unwanted historic designation on their
property. See Tape Recording, House Committee on General
Government and Regulatory Reform, SB 588, May 2, 1995,
Tape 126, Side A (statement of Rep Leslie Lewis explain-
ing purpose of consent provisions);13 Tape Recording, Senate
Revenue & School Finance Committee, HB 2124, July 20,
1993, Tape 270, Side B (statement of Dennis Goecks, asking
legislature to override decision in Yamhill County case and
13
Representatives Patricia Milne and Leslie Lewis, co-sponsors of the
removal provision enacted in ORS 197.772(3), both represented districts that
included Yamhill County. Representative Milne was involved in earlier versions
of the legislation that created ORS 197.772. See Minutes, Senate Committee on
Revenue and School Finance, HB 2124, July 20, 1993 (testimony of Rep Patricia
Milne urging passage of owner consent provision in 1993 version of historic prop-
erty preservation bill).
Cite as 360 Or 115 (2016) 145
give owners of historic properties right to refuse historic
designation).
By the time that SB 588—the bill that created
ORS 197.772—was passed and signed into law, nearly five
years had passed since the Court of Appeals had over-
turned Ordinance 479. The removal provision, codified in
ORS 197.772(3), was added to SB 588 for the express pur-
pose of addressing that long delay and ensuring that the bill
achieved its proponents’ original intent. Tape Recording,
House Committee on General Government and Regulatory
Reform, SB 588, May 2, 1995, Tape 126, Side A (statement
of Rep Leslie Lewis). As explained by one of the legislators
who co-sponsored the amendment:
“In [Yamhill] county, many people have been coerced into
the historic property designation and I believe that some
of those people are waiting for [this legislation] to become
law so that they can petition to be removed from historic
property designation.”
Id. By allowing owners to remove historic designations that
were previously imposed over their objections, the sponsors
of the removal provision in subsection (3) aimed to bring the
language of SB 588 closer to what its proponents in Yamhill
County had been seeking all along. See Tape Recording,
House Committee on General Government and Regulatory
Reform, SB 588, May 2, 1995, Tape 126, Side A (statement
of Rep Patricia Milne).
Given that history, it is unsurprising that the pro-
visions in ORS 197.772 and Yamhill County Ordinance 479
are very similar. Both laws aimed to ensure that historic
property designations were not placed on properties unless
the owners consented, and both achieved that aim in two
ways: first by providing that owners of properties that had
not yet been designated had the right to refuse to consent
during the designation process, and second by allowing
owners whose property was already designated to request
its removal. Compare Ordinance 479, Exhibit A §§ 5(6) - (8)
with ORS 197.772(1), (3). As already discussed, however,
Ordinance 479 did not make all historic designations per-
manently subject to the wishes of their owners, especially
when the owner did not acquire the property until many
146 Lake Oswego Preservation Society v. City of Lake Oswego
years later. It allowed only a limited time after its enact-
ment during which owners could remove designations and
specifically provided that, after that point, the owner’s
preferences would no longer be relevant to whether a pre-
viously designated property would remain designated. See
Ordinance 479, Exhibit A § (5)(8).
The fact that the provisions codified in ORS 197.772
were created to achieve the same result as Ordinance 479
suggests that the state lawmakers who drafted and passed
them did not intend the right to remove an historic des-
ignation under ORS 197.772(3) to be entirely open-ended,
either. Rather, the narrowness of the removal provision in
Ordinance 479 suggests that the legislature intended the
removal provision in ORS 197.772(3) to provide a simi-
larly limited removal right to only certain property owners.
Likewise, the fact that Ordinance 479 provided that his-
toric designations that were left in place would thereafter
remain, so as long as the property continued to meet objec-
tive criteria, confirms that such designations were viewed
as a long-term mechanism that would, and was intended to
be, binding on subsequent owners.
The Trust contends that the facts that ORS
197.772(3) was created to override the Court of Appeals’
decision in the Yamhill County case and that it was meant
to aid a particular group of property owners does not mean
that it cannot apply to other owners as well. As we have
previously recognized, the legislature, in creating a stat-
utory remedy, sometimes uses language that applies to a
wider range of circumstances than the precise problem that
triggered legislative attention. Hamilton v. Paynter, 342 Or
48, 55, 149 P3d 131 (2006). Nonetheless, that the legislature
had a particular aim in mind is persuasive evidence of what
it intended a provision to mean. See, e.g., State v. Partain,
349 Or 10, 20, 239 P3d 232 (2010) (considering history of
amendment, including that it was adopted in response to
Court of Appeals decision, as relevant background inform-
ing analysis of what legislature likely intended).
Unlike cases where we have adopted the more
expansive interpretation of an ambiguous statute, the legis-
lative history of ORS 197.772(3) reveals that the legislators
Cite as 360 Or 115 (2016) 147
who created that provision did intend something more spe-
cific. See Walker, 356 Or at 21 (describing and discussing
prior cases where legislature has adopted broad solutions to
specific problems and concluding that in that case, nothing
in legislative history suggested legislature intended statu-
tory term to be narrower than its ordinary meaning).14 In
fact, when SB 588 was still in committee, one legislator
posed the very question now before this court:
“[W]ould that mean that if somebody bought a piece of
property that had been designated, * * * that was clear
when they bought it and then they move in and the minute
they got there they could say, ‘Well, we’re sorry, we don’t
want to be historic anymore?’ ”
Tape Recording, House Committee on General Government
and Regulatory Reform, SB 588, May 2, 1995, Tape 126,
Side A (question by Rep Ross). Although no one answered
that question directly, one of the removal provision’s co-spon-
sors explained that they had created that provision to help
those property owners, particularly in Yamhill county, who
had, since the implementation of Goal 5, “been coerced into
the historic property designation” and who had been wait-
ing for the passage of a statutory remedy “so that they can
petition to be removed from historic property designation.”
Tape Recording, House Committee on General Government
and Regulatory Reform, SB 588, May 2, 1995, Tape 126,
Side A (statement of Rep Leslie Lewis) (emphasis added).
As to whether that provision could also apply to a subse-
quent purchaser, she noted that that was a situation that
they “frankly hadn’t thought about.” Id.
As the above-quoted exchange illustrates, this is
not a case where the legislative history demonstrates that
the legislators who enacted a provision were aware that it
was likely to be read in a particularly broad way, and yet
consciously declined to narrow it. Cf. Walker, 356 Or at 22
(more expansive interpretation of statutory text is particu-
larly appropriate “where the legislative history demonstrates
14
Given that the text in this case is reasonably susceptible to more than one
interpretation, this is not a case where “the express terms of a statute indicate
such broader coverage” such that “it is not necessary to show that [it] was [the
legislature’s] conscious purpose.” South Beach Marina, Inc. v. Dept. of Rev., 301
Or 524, 531, 724 P2d 788 (1986).
148 Lake Oswego Preservation Society v. City of Lake Oswego
that the legislature was aware of the expansive nature of an
enactment’s text, yet chose not to narrow it”). The Court
of Appeals found it significant that one legislator suggested
that if the amendment to SB 588 that created the right to
remove existing historic designations was passed, it could
lead to the dismantling of local historic districts and that the
legislature voted for it anyway. Lake Oswego Preservation
Society, 268 Or App at 821. It appears that the court was
referring to a comment by Representative Bryan Johnston
during one committee hearing that the removal provision
would “wreak havoc on the historic districts.” See Tape
Recording, House Committee on General Government and
Regulatory Reform, SB 588, May 4, 1995, Tape 130, Side B
(statement of Rep Bryan Johnston). The Trust argues that
that comment shows that the legislature was aware that
allowing the removal of designations could undermine exist-
ing programs under Goal 5 and, therefore, that the legisla-
ture intended the removal right in ORS 197.772(3) to apply
more broadly.
What was meant by Representative Johnston’s
comment, however, is unclear. Although he was clearly con-
cerned that the removal provision might negatively impact
historic preservation efforts generally, he said nothing
about the issue of whether subsequent owners of desig-
nated properties may invoke that right. To the extent that
Representative Johnston was worried that allowing some
owners to remove designations could undermine existing
historic districts or make new ones less comprehensive, it
does not follow that he and others anticipated, or expected,
the long-term destabilization of the entire system of historic
designation that would tend to result if any future owner
could exercise the removal right in ORS 197.772(3). As a
result, Representative Johnston’s statement—made in isola-
tion and without any follow-up explanation or discussion—is
insufficient to support any inference about whether the leg-
islature anticipated, or intended, that the removal right in
ORS 197.772(3) would apply to subsequent property owners
like the Trust.
Although the question was posed, no one asserted
that that the removal provision in ORS 197.772(3) would
Cite as 360 Or 115 (2016) 149
apply to owners who acquired their properties post-
designation or that it would allow such owners to remove
those designations—and any accompanying land use
restrictions—that were in place at the time of acquisition.
To the contrary, the legislators who created ORS 197.772(3)
expressed the view that owners who acquired historic prop-
erties that were already subject to such restrictions would
be bound by those restrictions. For example, when asked
later in the same hearing whether the proposed removal
right would affect the ability of local governments to protect
previously identified historic properties through existing
land use ordinances and regulations, one of the co-sponsors
of that provision responded:
“[Rep. Lewis:]  My intent * * * is that those local ordi-
nances are not disturbed because some of them might even
be attached, too, as you purchase the property—You know
that you are buying into [a downtown historic district], for
example, and there are certain ordinances that you have
to abide by.
“[Rep. Ross:]  So this would not affect areas that are pro-
tected by local ordinance?
“[Rep. Lewis:]  That’s my intent, yes.”
Tape Recording, House Committee on General Government
and Regulatory Reform, SB 588, May 2, 1995, Tape 126,
Side A (statement of Rep Leslie Lewis). As Representative
Lewis’s explanation clarifies, the legislators who created the
designation removal provision in ORS 197.772(3) believed
and anticipated that owners who acquired historic proper-
ties that were already subject to protection under local land
use ordinances—and who, therefore, were not “coerced” into
the historic property designation at all—would be required
to abide by those ordinances.
That understanding also makes sense in light of the
legislature’s apparent concern with ensuring that Oregon’s
owner consent law was consistent with the National Historic
Preservation Act, an issue to which substantial time was
devoted in both houses during the 1995 session. See, e.g.,
Tape Recording, Senate Water and Land Use Committee,
SB 588, Mar 22, 1995, Tape 66, Side A (discussion between
witnesses and legislators regarding operation of National
150 Lake Oswego Preservation Society v. City of Lake Oswego
Historic Preservation Act and how proposed owner con-
sent provisions related to that law); Tape Recording,
House Committee on General Government and Regulatory
Reform, SB 588, May 4, 1995, Tape 131, Side A (discus-
sion between Bob Meinen, Director Oregon Parks and
Recreation Department and Rep Markham regarding
National Register and whether proposed owner consent
provision was consistent with it) and Side B (statement of
Rep Patricia Milne that purpose of SB 588 was to address
potential conflict with National Registry program that
arose with previous version of legislation passed during
1993 session).
As those discussions reveal, the legislators who sup-
ported the owner consent and removal provisions codified
in ORS 197.772 were aware that while federal law requires
the owner’s consent for an individual property to be desig-
nated and added to the National Register of Historic Places,
an owner who acquires a property that is already on the
Register does not have the right to remove it. See, e.g., Tape
Recording, House Committee on General Government and
Regulatory Reform, SB 588, May 2, 1995, Tape 126, Side
A (statement of Rep Leslie Lewis, explaining National
Register of Historic Places procedures, including that
“[t]he person initially would have had some rights not to be
on the listing, but if you buy a house already listed, you can-
not get off the listing”); see also generally Bronin, Historic
Preservation Law at 64-73 (describing how National Register
of Historic Places works). By focusing on owner consent at
the time of designation, rather than on the preferences of
those who might later acquire a property, the legislature
would have made Oregon’s system of local historic designa-
tion consistent with that which was already in place under
federal law.
That the legislature’s overriding concern was pro-
tecting the interests of property owners at the time of des-
ignation, and that the removal provision in ORS 197.772(3)
was intended as a limited remedy for those owners whose
property interests had been negatively affected by the
imposition of an historic designation against their will, is
confirmed by other statements made while SB 588 was in
Cite as 360 Or 115 (2016) 151
committee. For example, when another legislator asked a
question about how the various subsections of the owner
consent statute would work together, one of the removal pro-
vision’s co-sponsors reiterated that it was intended to help
those owners who had designations imposed on “them”:
“[Rep. Johnston:]  I’m just trying to understand how these
things merge. * * * [W]e are granting a property owner
the right to refuse consent to any form of historic property
[designation]—if they choose to. They could choose to agree.
You know, I have a piece of property in downtown Ashland,
and I decide to agree. Could I then, under [the removal pro-
vision], then decide, two years later to take it out?
“[Rep. Milne:]  Representative Johnston, my intent in
this amendment, where it says on line 3, that the ‘historic
designation that was imposed on the property,’ my feeling
there is that what we are trying to say—what my intent
was—was that when property owners were not allowed to
consent and the government imposed it on them, that now
they would have an opportunity to remove their property
from that designation.
“[Rep. Johnston:]  Okay let’s call that Class A, so I under-
stand those. So now I’m talking about Class B, a person
who does it under [subsection (1)]—had the opportunity to
not do it, went ahead and did it—can they, two years later,
under [subsection (2)] take their property out?
“[Rep. Milne:]  That was not my intent Representative
Johnston.”
Tape Recording, House Committee on General Government
and Regulatory Reform, SB 588, May 4, 1995, Tape 130, Side
B (exchange between Rep Bryan Johnston and Rep Patricia
Milne) (emphasis added). As Representative Milne’s expla-
nation suggests, the drafters’ intent was not to make local
historic designations permanently contingent on the desires
of the persons who own that property at any point in time,
but to provide a remedy for those particular owners who, at
the time of designation, “were not allowed to consent” and
who, therefore, had historic designations imposed “on them.”
Id.15
15
The Court of Appeals relied on this exchange in concluding that the
removal provision of ORS 197.772(3) was not intended to be limited to the prop-
erty owner at the time of designation. 268 Or App at 821. As discussed in the
152 Lake Oswego Preservation Society v. City of Lake Oswego
The Trust complains that the legislative history
bearing on what the legislature intended the text of ORS
197.772(3) to mean is limited in nature and does not exclude
the possibility that that provision applies to successive own-
ers of involuntarily designated properties. Were there little
else to aid us in discerning what the legislature intended,
we might be reluctant to rely on the sort of legislative his-
tory that is available here. However, as our discussion in the
foregoing sections demonstrates, that history is consistent
not only with the text of ORS 197.772(3), but with the exten-
sive legislative and regulatory background against which
the legislature acted when it created that provision.16
That background shows that the legislature’s inter-
est in enacting the owner consent provisions set out in ORS
197.772 was not to make all local historic designations per-
manently contingent on an owner’s wishes, nor to simply
unburden properties from existing designations that are
now unwanted. Rather, the legislature sought to create a
system where, to the extent possible, historic designations
are not placed on properties unless the owner at that point
in time agrees. Even as the legislature sought to make the
process of designating properties as historic voluntary, how-
ever, it understood the value of local historic preservation
programs under the Goal 5 framework and wished to con-
tinue to foster the long-term protection of historic properties
through such programs.
With the creation of ORS 197.772, the legislature
adjusted what some saw as an unfair system and struck
text, however, the focus of the exchange was on the meaning of the requirement
in the statute that the designation be “imposed” on the property. Although it is
true that Representative Milne’s response does not exclude the possibility that
the term “a property owner” includes successors-in-interest, it offers no support
for the conclusion that it does except by negative inference.
16
Furthermore, the legislative history to which the Trust points in sup-
port of its reading of ORS 197.772(3) is thin and far less persuasive than that
which supports LOPS’s reading of that statute. For example, the Trust relies
heavily on the fact that one particular amendment to the owner consent statute,
which would have specified that consensual designations run with the land to
subsequent owners, was stripped from the bill by the conference committee. In
so doing, the Trust asks us once again to draw several negative inferences from
legislative silence and inaction. For the reasons already discussed, however, that
aspect of the legislative history is not helpful, especially given that the legislative
record offers no indication as to why that amendment was ultimately rejected.
Cite as 360 Or 115 (2016) 153
a new and careful balance between those two objectives.
Although local governments continued to be required, pur-
suant to Goal 5, to identify, designate and regulate historic
resources in order to protect them long-term, those owners
whose property interests were adversely affected by local
historic designation were guaranteed a role in determin-
ing whether their property became subject to that regula-
tory regime. But later owners, who acquired properties that
already had been designated as historic, acquired those
properties subject to that designation and the restrictions
that accompanied it.
III. APPLICATION
We now turn to the question of whether the Trust
may utilize ORS 197.772(3) to remove the historic designa-
tion from the Carman House. As discussed above, a property
owner must satisfy two requirements to use the statutory
remedy in ORS 197.772(3) to remove an historic designation
that was previously placed on its property. First, the owner
must establish that it was the owner of the property at the
time that it was designated. Second, it must establish that
the designation was “imposed” on the property by the local
government.
Although the record is not complete as to the his-
tory of conveyances for the Carman House, the salient
points are clear. The property was acquired in 1978 by
Richard Wilmot, a descendant of the original settlers who
established the homestead and built the Carman House,
together with his wife, Mary Wilmot. In 1990, the city of
Lake Oswego included the property on its inventory of his-
toric properties, designating it as a landmark because it was
part of an historic “farm complex.” At that time, Richard
Wilmot objected to the designation and sought, unsuccess-
fully, to have it removed. Two years later, the city reconsid-
ered its decision and, in 1992, after assessing the value of the
Carman House as a stand-alone landmark, determined that
the historic designation on that property should be retained.
That designation remains in place today. Eventually, the
property changed hands when, in 2001, Mary Wilmot trans-
ferred it by warranty deed to her son Richard Wilmot II, as
the trustee of the Mary Cadwell Wilmot Trust. In order to
154 Lake Oswego Preservation Society v. City of Lake Oswego
facilitate the development of the property, the Trust began
its effort to have the historic designation removed in 2013.
For the reasons discussed, we agree with LUBA
that the right to remove an historic designation under ORS
197.772(3) applies only to those owners who held title when a
local historic designation was first imposed and not to those
whose property was already designated at the time they
acquired it. Because the Trust acquired the Carman House
property after it was designated, it does not qualify as “a
property owner” within the meaning of ORS 197.772(3). As
a result, the Trust cannot use ORS 197.772(3) to remove the
historic designation from the Carman House now.17
The decision of the Court of Appeals is reversed. The
final order of the Land Use Board of Appeals is affirmed.
17
Because we conclude that the Trust does not qualify as “a property owner”
within the meaning of ORS 197.772(3), we do not reach the question of whether
the designation at issue in this case was “imposed” by the city.