Vannett Properties, LLC v. Lane County ( 2021 )

551
Argued and submitted February 25, 2020, affirmed December 22, 2021
VANNETT PROPERTIES, LLC,
Petitioner-Appellant,
v.
LANE COUNTY,
Respondent-Respondent,
and
Milton DECKER
and Mary Decker,
Intervenors-Respondents-Respondents.
Lane County Circuit Court
18CV51256; A170438
504 P3d 6
Petitioner appeals from a general judgment entered in a writ of review pro-
ceeding that affirmed the Lane County Board of Commissioners’ ruling, which
concluded that intervenors, and not petitioner, “may select which [of their 15 lots]
to convert to authorized home sites.” Petitioner, an owner of one of those 15 lots,
challenges the trial court’s conclusion, arguing that the home site authorization,
which was originally granted to intervenors under Measure 49, “was a property
right that attached” to the lot that petitioner purchased. Intervenors respond
that the court correctly concluded that, when a Measure 49 property contains
multiple lots, the conveyance of an individual lot from a claimant to a subsequent
owner does not automatically transfer a Measure 49 home site authorization.
Alternatively, intervenors argue that they retained their ability to “select which
existing lots to convert to authorized home sites” pursuant to the Department of
Land Conservation and Development’s Final Order and Home Site Authorization.
Held: The trial court did not err when it concluded that it was intervenors, and
not petitioner, that may select which of the 15 lots to convert to a home site. The
final order specifically gave intervenors—as claimants—the authority to “select
which existing lots, parcels or dwellings to convert to a home site,” not petitioner.
Moreover, the authority to convert a lot to an authorized home site is not auto-
matically transferred from a claimant to a subsequent owner simply by the sale
of a lot.
Affirmed.
Debra E. Velure, Judge.
William H. Sherlock, argued the cause for appellant.
Also on the briefs was Hutchinson Cox.
Michael M. Reeder argued the cause for respondents
Milton Decker and Mary Decker. Also on the brief was the
Law Office of Mike Reeder.
552 Vannett Properties, LLC v. Lane County
No appearance for respondent Lane County.
Before Lagesen, Presiding Judge, and Powers, Judge,
and Kamins, Judge.
POWERS, J.
Affirmed.
Cite as 316 Or App 551 (2021) 553
POWERS, J.
Petitioner appeals from a general judgment entered
in a writ of review proceeding that affirmed a ruling by the
Lane County Board of Commissioners, which concluded that
intervenors, and not petitioner, “may select which [of their
15 lots] to convert to authorized home sites.” Petitioner, an
owner of one of those 15 lots, challenges the trial court’s con-
clusion, arguing that the home site authorization, which was
originally granted to intervenors under Measure 49, “was a
property right that attached” to the lot that petitioner pur-
chased. Intervenors respond that the court correctly con-
cluded that, when a Measure 49 property contains multiple
lots, the conveyance of an individual lot from a claimant
to a subsequent owner does not automatically transfer a
Measure 49 home site authorization. Alternatively, interve-
nors argue that they retained their ability to “select which
existing lots to convert to authorized home sites” pursuant
to the Department of Land Conservation and Development’s
(DLCD) Final Order and Home Site Authorization. We
agree with intervenors’ alternative argument. Given our
resolution of the case, we need not address the parties’ other
contentions. Accordingly, we affirm.
Before turning to the pertinent facts of this case,
we briefly describe the statutory context in which this dis-
pute arises.1 In 2004, Measure 37 was adopted by the voters
through the initiative process, Or Laws 2005, ch 1, and cod-
ified as former ORS 197.352 (2005). Under Measure 37, the
state is required to pay “just compensation” when a “pub-
lic entity enacts or enforces a new land use regulation or
enforces a land use regulation enacted prior to [the effective
date of Measure 37], that restricts the use of private real
property or any interest therein.” Former ORS 197.352(1)
(2005). However, “in lieu of payment of just compensation,” a
public entity could choose to “modify, remove, or not to apply
the land use regulation or land use regulations to allow the
owner to use the property for a use permitted at the time
the owner acquired the property.” Former ORS 197.352(8)
1
For a more detailed explanation of the history of zoning laws in Oregon, see
Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 222-25, 264
P3d 1265 (2011).
554 Vannett Properties, LLC v. Lane County
(2005). That authorization has been referred to as a Measure
37 waiver. See Frank v. DLCD, 217 Or App 498, 500, 176
P3d 411, rev den, 345 Or 175 (2008) (“A choice to not apply a
post-acquisition land use restriction is popularly referred to
as a ‘Measure 37 waiver.’ ”).
Measure 37 was later modified by way of Measure
49, which was referred by the legislature and adopted by
the voters in 2007 and was subsequently amended in 2009.
Or Laws 2007, ch 424; Or Laws 2009, ch 855. Measure 49,
with one exception not applicable here, retroactively voided
those “Measure 37 waivers.” Corey v. DLCD, 344 Or 457,
466-67, 184 P3d 1109 (2008). However, under Measure 49,
section 6, a claimant who filed a Measure 37 claim prior to
2007 may still be eligible for “three home site approvals.” To
receive a home site approval, a claimant must establish that
the property meets the qualifications of Measure 49, sec-
tion 6(6), and, DLCD “must either deny the claim or approve
the claim.” Measure 49, section 8(7). If the claim for a home
site is approved, DLCD must “state the number of home site
approvals issued for the property and [DLCD’s order] may
contain other terms that are necessary to ensure that the
use of the property is lawful.” Measure 49, section 8(7).
With that statutory context in mind, we turn to
the underlying facts of this case, which are undisputed
and mostly procedural. In 2006, intervenors filed claims
under Measure 37, listing 15 tax lots. During that process,
Measure 49 was adopted by the voters. At that point, inter-
venors requested, pursuant to Measure 49, section 6, sup-
plemental review of their Measure 37 claims, which entitled
DLCD to authorize up to three lots or parcels to be converted
to a home site.
DLCD approved intervenors’ claim for three home
sites under Measure 49, section 6. The Measure 49 claim
included 15 lots and one existing dwelling. The final order
allowed intervenors two additional dwellings on their prop-
erty. Specifically, the final order provided, in part:
“The claimants may use a home site approval to convert a
lot, parcel or dwelling currently located on the property on
which the claimants are eligible for Measure 49 relief to
an authorized home site. If the number of lots, parcels or
Cite as 316 Or App 551 (2021) 555
dwellings existing on the property on which the claimants
are eligible for Measure 49 relief exceeds the number of
home site approvals the claimants qualify for under a home
site authorization, the claimants may select which exist-
ing lots, parcels or dwellings to convert to authorized home
sites, or may reconfigure existing lots, parcels or dwellings
so that the number is equivalent to the number of home site
approvals.”
In 2011, intervenors sold the property at issue
by way of a warranty deed. That property is one of the
15 lots subject to intervenors’ Measure 49 claim. The sub-
ject property was sold again in 2014, and then finally sold
to petitioner by way of a warranty deed in 2017. Nothing in
any of those conveyance documents suggests that interve-
nors selected the subject property as one of the two remain-
ing designated properties for a home site approval. To the
contrary, in 2015, before petitioner purchased the subject
property, the then-owner offered to pay intervenors $60,000
to have them select the subject property as one of the two
remaining authorized home sites. Ultimately, they could not
agree upon a price, and intervenors did not select the sub-
ject property as one of the eligible lots to receive the autho-
rization for a home site.
In March 2017, the Lane County Land Management
Division received a request for a Measure 49 dwelling from
petitioner concerning the subject property. Almost a year
later, the application was initially approved, but the planning
director later reversed herself, revoked the earlier approval,
and denied petitioner’s application for a Measure 49 dwell-
ing. Petitioner appealed to a Lane County hearing official,
who affirmed the planning director’s denial. Petitioner then
challenged that decision before Oregon’s Land Use Board of
Appeals (LUBA), which concluded that it did not have juris-
diction and subsequently transferred the appeal to Lane
County Circuit Court. See ORS 34.102(4) (setting out the
requirement for transfer from LUBA to circuit court as a
petition for writ of review under specified circumstances).
In the writ of review proceeding, petitioner argued
that intervenors must identify the lots subject to the home
site authorization prior to the sale of that parcel to a sub-
sequent purchaser, otherwise that authorization runs with
556 Vannett Properties, LLC v. Lane County
the property. Petitioner’s argument relied on Measure 49,
sections 11(7) and 11(7)(b), which provides, in part:
“(7) An authorization * * * to establish dwellings on
the property, granted under section 6, 7 or 9, chapter 424,
Oregon Laws 2007, runs with the property and may be either
transferred with the property or encumbered by another
person without affecting the authorization. There is no time
limit on when an authorization granted * * * must be carried
out, except that once the owner who obtained the authori-
zation conveys the property to a person other than the own-
er’s spouse or the trustee of a revocable trust in which the
owner is the settlor, the subsequent owner of the property
must create the lots or parcels and establish the dwellings
authorized by a waiver under section 6, 7 or 9, chapter 424,
Oregon Laws 2007, within 10 years of the conveyance.
“* * * * *
“(b) A dwelling or other residential use of the property
based on an authorization under section 6, 7 or 9, chap-
ter 424, Oregon Laws 2007, is a permitted use and may be
established or continued by the claimant or a subsequent
owner[.]”
Petitioner asserted that read together, the trial court should
have concluded that, (1) if “a property that was previously
authorized by DLCD for a homesite is sold to a subse-
quent owner, that the right to build a dwelling runs with
the property upon transfer,” and (2) “that the property
may be encumbered, including restrictions on residential
development, but the original authorization is still valid.”
Petitioner additionally asserted that, because the transfer
of the subject property was done by way of warranty deed,
which under ORS 93.850(2) “shall convey the entire interest
in the described property,” the transfer of the subject prop-
erty included intervenors’ interest in the home site authori-
zation. Intervenors reprised the argument that they made
to the Lane County Hearings Official, viz., that they main-
tained the right to select which of their 15 lots would benefit
from their Measure 49 rights when “only a portion of ‘the
property’ is sold.”
The trial court agreed with intervenors’ argument
that a home site authorization “is not appurtenant and does
not pass by mere conveyance of the underlying property.”
Cite as 316 Or App 551 (2021) 557
Accordingly, because intervenors “did not select [the sub-
ject property] * * * to convert to an authorized home site,”
that authorization did not “run with the property.” The trial
court denied petitioner’s petition for review and affirmed the
county’s decision. This timely appeal followed.
On appeal, petitioner argues that “the trial court
erred in determining that [petitioner] could not exercise
[his] Measure 49 home site authorization” by inserting
requirements into the language of Measure 49, section 11(7),
that had been omitted. Additionally, petitioner argues that
the transfer of property by way of a warranty deed included
intervenors’ interest in the Measure 49 home site authori-
zation. Intervenors respond that the court correctly inter-
preted section 11(7) to mean that the Measure 49 authori-
zation is not appurtenant. In the alternative, intervenors
argue that, even if the Measure 49 authorization is appurte-
nant, the final order granted the authority to intervenors to
select which “lots are to receive the benefit of Measure 49.”
We first address intervenors’ alternative argument.
“[U]nder Measure 49, apart from local government
involvement in the implementation of the approval and
authorization of a dwelling, only DLCD * * * grants or denies
the claim to build additional dwellings[.]” Bertsch v. DLCD,
252 Or App 319, 329, 287 P3d 1162 (2012). That authority
to grant a claimant a home site authorization rests solely
with DLCD. Id. at 329. In making that approval, DLCD also
has the authority to issue an approval that “contain[s] other
terms that are necessary to ensure that the use of the prop-
erty is lawful.” Measure 49, section 8(7); see also Bertsch,
252 Or App at 330.
With Measure 49, section 8(7), in mind, the final
order in this case that granted the home site authorizations
to intervenors provides, in part:
“The claimants may use a home site approval to convert a
lot, parcel or dwelling currently located on the property on
which the claimants are eligible for Measure 49 relief to an
authorized home site. If the number of lots, parcels or dwell-
ings existing on the property on which the claimants are
eligible for Measure 49 relief exceeds the number of home
site approvals the claimants qualify for under a home site
558 Vannett Properties, LLC v. Lane County
authorization, the claimants may select which existing lots,
parcels or dwellings to convert to authorized home sites, or
may reconfigure existing lots, parcels or dwelling so that the
number is equivalent to the number of home site approvals.”
Here, intervenors’ property had 15 lots on their property
that were eligible to receive a home site authorization,
which exceeded the maximum number of three home sites
that were authorized by the final order. Because those
15 lots exceeded the maximum allowable home sites as
authorized by the final order, that order specifically gave
intervenors—as claimants—the authority to “select which
existing lots, parcels or dwellings to convert to a home site.”
There is nothing in the final order, nor in Measure 49, that
supports petitioner’s contention that any of the subsequent
owners of one of the lots described by the final order auto-
matically gain the authority to select which existing lots
will be converted to an authorized home site.2 As the trial
court observed, given the nature and character of the rights
described in Measure 49, the authority to convert a lot to an
authorized home site is not automatically transferred from
a claimant to a subsequent owner simply by a sale of a lot,
even if that sale was by way of a warranty deed.3 Rather,
a claimant must have designated the lot before the sale or
affirmatively sold the authorization along with the lot for the
subsequent owner to designate the lot under the terms of
Measure 49.
In short, we conclude that the trial court did not
err when it concluded that it was intervenors, and not peti-
tioner, that may select which of the 15 lots to convert to a
home site.
Affirmed.
2
Given the circumstances of this case, we leave for another day whether the
result would be different had intervenors sold the entirety of the real property
described in their Measure 49 claim.
3
Although it is true that a warranty deed conveys the entire interest in
the described property, that principle applied to the circumstances of this case
merely means that the deed would have transferred any interest flowing from
the claimants’ right under the final order to select which of the 15 lots to convert.
That principle does not, as petitioner’s argument suggests, alter the nature of the
underlying interest by making claimants’ right under the final order divisible,
nor would the principle somehow transfer claimants’ entire interest in the final
order to petitioner, who is the subsequent owner of just one of the 15 lots.