Julien 2012 Irrev. Trust v. Tillamook Cty. Bd. of Comm. ( 2024 )

No. 348 May 30, 2024 759
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JAY I JULIEN 2012 IRREVOCABLE TRUST,
The Sherry Kalish Irrevocable Trust, and
Seabreeze Associates Limited Partnership,
Petitioners-Appellants,
v.
TILLAMOOK COUNTY BOARD OF COMMISSIONERS,
Respondent-Respondent.
Tillamook County Circuit Court
20CV34945; A179047
Mari Garric Trevino, Judge.
Submitted on April 30, 2024.
Thomas Cutler filed the briefs for appellants.
Kenneth S. Montoya filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
760 Julien 2012 Irrev. Trust v. Tillamook Cty. Bd. of Comm.
KAMINS, J.
Petitioners own 3.23 acres of undeveloped ocean
front property in the Tillamook County unincorporated
community of Neskowin. The subject property is zoned
for residential development, but approximately half of the
property is within the Neskowin Coastal Hazards Overlay
Zone (Nesk-CH zone), under which development is prohib-
ited. In this writ of review proceeding, see ORS 34.010 to
34.100, petitioners appeal from a judgment upholding the
county’s rejection of petitioners’ claim under ORS 195.305
seeking a waiver of the Nesk-CH zone development restric-
tions, so that petitioners can develop the subject property
with nine homesites, rather than the five that are currently
authorized. See ORS 195.318 (providing for judicial review
of county decisions under ORS 195.310 to ORS 195.314 by
writ of review). We affirm.
It is undisputed that between 1997 and 2008,
the Neskowin area experienced extensive beachfront ero-
sion caused by winter storms. In 2009, the county began
the process of developing a plan to address future risks to
the beaches and community as a result of erosion. Among
other recommendations, that project ultimately resulted in
a recommendation to create the Nesk-CH zone. Effective
July 2015, and after a review of studies and several public
hearings, the county adopted Tillamook County Land Use
Ordinance (TCLUO) 3.570 (the ordinance), which imple-
ments the Nesk-CH overlay zone. Under the ordinance, land
within the overlay zone cannot be developed. The ordinance
states:
“The purpose of the Neskowin Coastal Hazards Overlay
Zone is to manage development in areas subject to chronic
coastal hazards in a manner that reduces long term risks
to life, property, and the community[.]”
TCLUO 3.570.
A portion of the subject property is within the over-
lay zone and, under the ordinance, cannot be developed. The
effect of the ordinance is to limit development of the subject
property to five homesites instead of the nine that would
have been possible before the ordinance was adopted.
Cite as 332 Or App 759 (2024) 761
In 2020, petitioners sought relief from that restric-
tion under the procedure contained in ORS 195.305(1). That
statute authorizes people negatively impacted by land use
regulations to seek compensation:
“If a public entity enacts one or more land use regula-
tions that restrict the residential use of private real prop-
erty or a farming or forest practice and that reduce the fair
market value of the property, then the owner of the prop-
erty shall be entitled to just compensation from the public
entity that enacted the land use regulation or regulations
as provided in ORS 195.310 to 195.314.”
Petitioners filed a claim under ORS 195.305(1), not seeking
“just compensation” for the asserted reduction in value of
their property, but instead seeking to have the county waive
application of the ordinance, as permitted by ORS 197.310(5)
(b) (allowing a county to “[a]uthoriz[ ] the claimant to use
the property without application of the land use regulation
to the extent necessary to offset the reduction in the fair
market value of the property”), and authorize nine home-
sites on the subject property. The county denied petitioners’
application, concluding that the claim was barred by ORS
195.305(3)(b), which provides an exception to the availabil-
ity of relief:
“(3) Subsection (1) of this section shall not apply to
land use regulations:
“ *****
“(b) That restrict or prohibit activities for the protec-
tion of public health and safety[.]”
Petitioners filed a petition for a writ of review in the
circuit court, which upheld the county’s denial of the claim
on the same ground as the county, and petitioners appeal
that decision.
In their first assignment of error, petitioners argue
that the trial court erred in upholding the county’s denial,
because the county’s decision is not supported by substan-
tial evidence. See ORS 34.040(1)(c) (setting forth court’s
review for substantial evidence). Petitioners contend that, to
comply with ORS 195.305(3)(b), the county was required to
find, based on substantial evidence, that application of the
762 Julien 2012 Irrev. Trust v. Tillamook Cty. Bd. of Comm.
ordinance to the subject property itself is necessary for rea-
sons of public health and safety. On the contrary, petitioners
contend, the evidence demonstrates that the four lots that
cannot be developed under the ordinance are safe.
Petitioners’ contention is based on an incorrect and
implausible construction of ORS 195.305(3)(b). The plain
meaning of the exception is that it applies if the land use
regulation was enacted for the protection of public health
and safety, not if the development of a particular property
within the overlay zone must be restricted for reasons of
public health and safety. It is undisputed that the ordi-
nance, which was duly adopted by the county, provides that
it was adopted for the purpose of reducing “long term risks
to life, property, and the community[.]” Beyond its stated
purpose, the record supports a finding that the ordinance
was adopted for reasons of “public health or safety”—spe-
cifically, reducing long term risks to life, property, and the
community. Thus, we conclude that there is substantial evi-
dence in support of the county’s decision.
In their second assignment, petitioners contend
that the county’s decision constituted an improper construc-
tion of law. See ORS 34.040(1)(d) (describing court’s review
for improper construction of law). As close as we can under-
stand it, petitioners contend that the ordinance is not con-
sistent with ORS 195.305(3)(b), because it is arbitrary, not
based on public safety, and is only intended to limit develop-
ment density, specifically with respect to the development of
petitioners’ property. Petitioners’ assignment amounts to a
collateral attack on the ordinance which we reject.
Affirmed.