Moore v. City of Eugene ( 2020 )

318
Submitted September 17, affirmed December 30, 2020, petition for review
denied May 20, 2021 (368 Or 168)
Elise MOORE,
Petitioner-Appellant,
v.
CITY OF EUGENE,
an Oregon municipal corporation,
Respondent-Respondent.
Lane County Circuit Court
18CV53292; A171276
482 P3d 190
Petitioner sought to construct a 1,200 square foot residence on her prop-
erty, but Eugene City Code (EC) 9.2751(18)(a)3 limited its square footage to 462
square feet. Petitioner filed this Measure 49 claim, ORS 195.300 to 195.336, with
the City of Eugene, asserting that the dwelling size standard imposed by EC
9.2751(18)(a)3 reduced the fair market value of her property. Accordingly, she
requested that the city either compensate her for the reduction of her property’s
value or, alternatively, that it waive EC 9.2751(18)(a)3 and allow her to build a
1,200 square foot residence. The City Council denied her request, concluding that
her Measure 49 claim failed because EC 9.2751(18)(a)3 did not “restrict” her use
of the property (i.e., the code did not prohibit her from building a residence on the
property). Upon a petition for a writ of review, the trial court upheld that decision.
On appeal from that judgment, petitioner argues that, under Measure 49, she
was entitled to compensation, or to a waiver of EC 9.2751(18)(a)3, because the city
code “restricted” the use of her property. Held: The trial court did not err. The
Court of Appeals construed Measure 49’s use of the term “restrict.” Based on that
interpretation, the court concluded that a landowner may not pursue a Measure
49 claim merely because a land use regulation sets dwelling size standards.
Affirmed.
Debra E. Velure, Judge.
Bill Kloos and Law Office of Bill Kloos PC filed the briefs
for appellant.
Lauren A. Sommers filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Brewer, Senior Judge.
BREWER, S. J.
Affirmed.
Cite as 308 Or App 318 (2020) 319
BREWER, S. J.
The sole issue on appeal in this action for a writ
of review of a local land use decision is the legal question
whether a residential dwelling size standard in a City of
Eugene zoning ordinance adopted after petitioner acquired
her property restricts the residential use of petitioner’s
property as required to support her claim for just compensa-
tion under Measure 49. The trial court affirmed the decision
of respondent the City of Eugene to apply the dwelling size
standard to petitioner’s development request. For the rea-
sons explained below, we affirm the judgment of the trial
court.
STATUTORY FRAMEWORK
Before turning to the facts of this case, we provide a
brief overview of the statutory framework in which it arises.
ORS 195.300 to 195.336 govern claims against the State of
Oregon and local governments for compensation or waiver
of land use regulations that restrict the residential use and
reduce the fair market value of private real property. Those
claims are commonly referred to as “Measure 49 claims” in
reference to the statewide ballot measure that the voters
adopted in 2007. See Friends of Yamhill County v. Board
of Commissioners, 351 Or 219, 224, 264 P3d 1265 (2011)
(Friends II).
Another statewide ballot measure, Measure 37, pre-
ceded Measure 49 and
“provided landowners with ‘just compensation’ for land use
regulations, enacted after they had acquired their prop-
erty, that restricted the use of the property and, as a result,
diminished its value. When faced with a claim for ‘just com-
pensation’ under Measure 37, a government could choose:
(1) to pay the landowner compensation for the diminished
value of the property and enforce the regulation or (2) to
waive the regulation and permit the owner ‘to use the prop-
erty for a use permitted at the time the owner acquired the
property.’ ”
Id. (quoting former ORS 197.352(8) (2005), renumbered as
ORS 195.305 (2007) (internal citations omitted)).
320 Moore v. City of Eugene
Measure 49 made two major changes to Oregon law.
First, it modified Measure 37 to give landowners who filed
Measure 37 claims “the right to build homes as compensa-
tion for land use regulations imposed after they acquired
their properties, in lieu of the compensation or waiver of
land use regulations previously required by Measure 37.”1
This opinion refers to those Measure 37 claims modified
by Measure 49 as “retroactive” claims. Second, Measure 49
entitles a claimant to compensation or waiver of a land use
regulation when a valid claim arises from a land use reg-
ulation enacted after January 1, 2007. ORS 195.310(1)(c).
This opinion refers to those claims as “prospective” claims.2
This case marks this court’s first opportunity to consider
the legal dimensions of a prospective claim under Measure
49.
The provisions of Measure 49 that govern prospec-
tive claims are codified at ORS 195.300 to 195.336.3 A pro-
spective claim—that is, a claim filed after the effective date
of Measure 49 based on a land use regulation adopted after
that date—must satisfy the following substantive require-
ments. First, the claimant must own the real property that
is the subject of the claim. ORS 195.310(1)(a). Second, the
challenged regulation must be a “land use regulation” (as
that term is defined by Measure 49) that was enacted after
January 1, 2007, and after the claimant acquired her prop-
erty, but not more than five years before the date the claim
was filed. ORS 195.300(14); ORS 195.305(3); ORS 195.310
(1)(c) - (d); ORS 195.312(5). Third, the claimant’s desired use
1
Official Voters’ Pamphlet, Special Election, Nov 6, 2007, 19 (explanatory
statement).
2
When it was adopted, Measure 49 was entirely prospective in the sense
“that it applies only to unvested Measure 37 waivers, Measure 37 claims that
have not been reduced to a final decision, or new claims filed after the date of
enactment of Measure 49.” Edward J. Sullivan & Jennifer M. Bragar, The
Augean Stables: Measure 49 and the Herculean Task of Correcting an Improvident
Initiative Measure in Oregon, 46 Willamette L Rev 577, 589 (2010). With the pas-
sage of time, we nevertheless refer only to claims filed after the date of enactment
of Measure 49 based on land use regulations adopted after that date as “prospec-
tive” claims.
3
“The temporary parts of Measure 49 that pertain to previously filed [ret-
roactive] Measure 37 claims (sections 5, 6, 7, 8, 9, 10, and 11) were not codi-
fied. See ORS 195.305 (explanatory note).” Friends of Yamhill County v. Board of
Commissioners, 237 Or App 149, 153 n 3, 238 P3d 1016 (2010), aff’d, 351 Or 219,
264 P3d 1265 (2011) (Friends I).
Cite as 308 Or App 318 (2020) 321
of the property must be “a residential use or a farming or
forest practice.” ORS 195.310(1)(b). Fourth, the land use
regulation must “restrict” the claimant’s desired use of the
property. ORS 195.300(14); ORS 195.305(1); ORS 195.310
(1)(c). Fifth, the land use regulation must cause a reduction
in the fair market value of the property. ORS 195.310(1)(d).
Sixth, the land use regulation must not fall within a statu-
tory exemption. ORS 195.305(3); ORS 195.310(1)(d).
If a prospective Measure 49 claim is upheld, the gov-
ernment entity that enacted the land use regulation either
must compensate the claimant for the reduction in fair
market value or waive the land use regulation to the extent
necessary to offset the reduction in fair market value. ORS
195.310(5).
FACTS AND PROCEDURAL HISTORY
We state the undisputed facts as recited by the trial
court and as supplemented by our own review of the record.
The trial court found:
“Petitioner acquired fee title to the Property on July 8,
2010 via Warranty Deed * * *. Petitioner [desired to apply]
to construct a 1200 square foot residence on the Property
on April 9, 2018. The Property is a 4,260 square foot alley
access lot classified as R-1, Low Density Residential Zone.
Petitioner’s claim seeks waiver of or compensation for the
application of [Eugene City Code 9.2751(18)(a)3], effec-
tive August 29, 2014, to her desired use of the Property.
Application of [Eugene City Code 9.2751(18)(a)3] limits the
square footage of a residence she could construct on the
Property to 10% of the total lot area. As applied, a resi-
dence on the Property would be limited to 462 square feet.”
It is undisputed that petitioner is entitled to construct a sin-
gle family residence on her property, but, as the trial court
stated, under the challenged ordinance its maximum size
would be 462 square feet, not the 1,200 square feet that peti-
tioner sought.
Petitioner filed a Measure 49 claim with respon-
dent, asserting that the dwelling size standard of EC
9.2751(18)(a)3 reduced the fair market value of her prop-
erty by $25,000. Petitioner requested that respondent either
compensate her for the reduction in fair market value or,
322 Moore v. City of Eugene
alternatively, waive EC 9.2751(18)(a)3 to allow her to build a
1,200 square foot residence on her property.
Respondent’s City Council determined that peti-
tioner’s claim satisfied all but one of the requirements for a
prospective claim, namely, the parallel requirement in ORS
195.300(14)(c), ORS 195.305(1), and ORS 195.310(1)(c) that
the regulation must restrict the claimant’s desired—in this
case, residential—use of the property. In that regard, the
City Council concluded that
“EC 9.2751(18)(a)3. does not restrict the residential use of
Claimant’s property because EC 9.2751(18)(a)3. does not
restrict Claimant’s ability to use her property for a single
family residence, it simply limits the size of the single fam-
ily residence Claimant may construct. Because Claimant
retains the ability to construct a single family residence
on her property both before and after the adoption of EC
9.2751(18)(a)3., the City Council finds that EC 9.2751
(18)(a)3. does not restrict Claimant’s residential use of her
property.”
Based on that determination, respondent denied the claim.
Petitioner filed a petition for a writ of review of
respondent’s decision in the trial court, and the court upheld
that decision. In a nutshell, the court concluded that the
challenged ordinance is not a “land use regulation” because
it does not restrict the residential use of private real property
within the meaning of ORS 195.300(14)(c). The court con-
cluded that, to give rise to a Measure 49 claim, an offending
regulation actually must prohibit the residential use of pri-
vate property that is zoned for residential use. In the court’s
view, respondent’s ordinance does not prohibit the residen-
tial use of petitioner’s property but, rather, is “merely an
applicable standard governing the size of a dwelling.”
In reaching that conclusion, the trial court consid-
ered as context section 11 of the Measure 49 statute, Oregon
Laws 2007, chapter 424, one of the uncodified provisions
that applies to retroactive claims:
“Section 11, chapter 424, Oregon Laws 2007, sheds light
on the legislature’s intended meaning:
“ ‘[T]he establishment of a dwelling on property, autho-
rized under sections 5 to 11 of this 2007 Act must comply
Cite as 308 Or App 318 (2020) 323
with all applicable standards governing the siting or devel-
opment of the dwelling, * * * including, but not limited to,
the location, design, construction or size of the dwelling, lot
or parcel. However, the standards must not be applied in a
manner that has the effect of prohibiting the establishment
of the dwelling.’ ”
The court then referred to other provisions of law to
conclude that “restrictions” already existed when Measure
49 was adopted, leading the court to further conclude that
the voters therefore must have intended something else
by the term “restrict” in Measure 49, namely, “prohibit.”
Because it was undisputed that the ordinance does not pro-
hibit the construction of a residence on petitioner’s property,
the court entered a judgment affirming respondent’s deci-
sion, and this appeal followed.
ISSUE ON APPEAL
On appeal, petitioner asserts that the trial court
erred in its statutory construction analysis. In petitioner’s
view, to trigger a prospective claim, a land use regulation
need not “prohibit” all residential use of residentially zoned
private property. According to petitioner, the meaning of
“restrict” is broader than that, and it includes the kind of
development standard at issue here. Because the term is
not defined by statute, petitioner relies on dictionary defi-
nitions of “restrict”: “1: to set bounds or limits to: hold
within bounds[,]” Webster’s Third New Int’l Dictionary 1937
(unabridged ed 2002), and “prohibit”: “1: to forbid by author-
ity or command[,]” id. at 1813, to show that the terms have
different meanings. Petitioner asserts that “[t]he regulation
at issue here restricted the potential residential use because
it reduced or limited the size of the home that can be built
on the site.” Petitioner further asserts that the trial court
erred in relying on section 11 of Measure 49 as context for
its analysis because, by its terms, that provision applies only
to retroactive claims.
In response, respondent does not endorse the trial
court’s analysis of the pertinent statutes, but it neverthe-
less contends that petitioner’s claim must fail. Respondent
asserts that petitioner’s claim does not satisfy the parallel
statutory requirements that (1) the challenged ordinance
324 Moore v. City of Eugene
must be a “land use regulation” under ORS 195.300(14)(c),
which requires that the ordinance “restrict the residential
use” of her private real property zoned for residential use;
(2) the ordinance must “restrict the residential use of pri-
vate real property” to authorize a claim for “just compen-
sation” under ORS 195.305(1); and (3) petitioner’s “desired
use of the property is restricted by one or more land use
regulations” enacted after January 1, 2007. ORS 195.310
(1)(c). Respondent asserts that its City Council correctly
determined that petitioner failed to satisfy those require-
ments because EC 9.2751(18)(a)3 does not restrict the resi-
dential use of her property.
STANDARD OF REVIEW
In an appeal from a writ of review judgment where
the parties’ arguments raise only questions of law, as they
do here, we review for errors of law. See Friends II, 351 Or
at 244 (explaining standard of review on appeal of writ of
review from Measure 49 vested rights determination); ORS
34.040(1)(d) (in writ-of-review proceeding, trial court must
determine, among other things, whether county “[i]mprop-
erly construed the applicable law”). When the meaning of a
statute is at issue, our task is to discern the intention of the
legislature or, in the case of ballot measures, the voters, by
examining the text, context, and any pertinent enactment
history of the statute. Friends of Yamhill County v. Board of
Commissioners, 237 Or App 149, 166, 238 P3d 1016 (2010),
aff’d, 351 Or 219, 264 P3d 1265 (2011) (Friends I) (citing
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009)).
In performing that task, the court is responsible for iden-
tifying the correct interpretation, regardless of whether it
has been identified by the parties. Stull v. Hoke, 326 Or 72,
77, 948 P2d 722 (1997); Oregon Shores v. Board of County
Commissioners, 297 Or App 269, 275, 441 P3d 647 (2019).
ANALYSIS
With that background, we now describe the gov-
erning statutory framework in greater detail. A “land use
regulation” is defined by Measure 49 to include a “provision
of a city comprehensive plan, zoning ordinance or land divi-
sion ordinance that restricts the residential use of private
Cite as 308 Or App 318 (2020) 325
real property zoned for residential use.” ORS 195.300(14)(c)
(emphasis added). ORS 195.305 provides, in part:
“(1) If a public entity enacts one or more land use regu-
lations 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.
“* * * * *
“(3) Subsection (1) of this section shall not apply to
land use regulations that were enacted prior to the claim-
ant’s acquisition date or to land use regulations:
“(a) That restrict or prohibit activities commonly and
historically recognized as public nuisances under common
law;
“(b) That restrict or prohibit activities for the protec-
tion of public health and safety;
“(c) To the extent the land use regulations are required
to comply with federal law;
“(d) That restrict or prohibit the use of a property for
the purpose of selling pornography or performing nude
dancing[.]”
(Emphases added.)
ORS 195.310, in turn, provides, in part:
“(1) A person may file a claim for just compensation
under ORS 195.305 and 195.310 to 195.314 after June 28,
2007, if:
“(a) The person is an owner of the property and all
owners of the property have consented in writing to the
filing of the claim;
“(b) The person’s desired use of the property is a resi-
dential use or a farming or forest practice;
“(c) The person’s desired use of the property is restricted
by one or more land use regulations enacted after January 1,
2007; and
326 Moore v. City of Eugene
“(d) The enactment of one or more land use regulations
after January 1, 2007, other than land use regulations
described in ORS 195.305 (3), has reduced the fair market
value of the property.”
(Emphases added.)
Measure 49 does not include definitions of “restrict”
or “use,” and the meaning of those terms is not apparent
on the face of the statutes at issue. In the absence of stat-
utory definitions, “words of common usage typically should
be given their plain, natural, and ordinary meaning.” PGE
v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d
1143 (1993). It is appropriate to examine, in addition to other
sources, dictionary meanings to ascertain the meaning of
such words. Jaqua v. City of Springfield, 193 Or App 573,
587, 91 P3d 817 (2004). As noted, petitioner’s primary focus
is on the meaning of the term “restrict.” The dictionary defi-
nition on which petitioner relies is one ordinary meaning of
“restrict.” See 308 Or App at 323. Petitioner might well have
cited another dictionary definition of “restrict” as “2: to place
[land] under restrictions as to use [as by zoning ordinances.]”
Webster’s at 1937. Because “restrict” is a word of common
usage, both of those meanings potentially are informative.
As pertinent context, petitioner observes that, in
ORS 195.305(3)(a), (b), and (d), the voters employed the term
“prohibit” disjunctively to “restrict” in setting out exemp-
tions under Measure 49, whereas the provision at issue here
contains the term “restrict” but not “prohibit.” Petitioner
relies on the principle that, when a statute uses two differ-
ent terms, they are presumed to have distinct meanings.
ORS 174.010; Dept. of Transportation v. Stallcup, 341 Or 93,
103, 138 P3d 9 (2006).
As additional context, petitioner relies on the leg-
islative policy findings in ORS 195.301, which provides, in
part:
“(1) The Legislative Assembly finds that:
“(a) In some situations, land use regulations unfairly
burden particular property owners.
“(b) To address these situations, it is necessary to
amend Oregon’s land use statutes to provide just compen-
sation for unfair burdens caused by land use regulations.
Cite as 308 Or App 318 (2020) 327
“(2) The purpose of ORS 195.305 to 195.336 and sec-
tions 5 to 11, chapter 424, Oregon Laws 2007, sections 2
to 9 and 17, chapter 855, Oregon Laws 2009, and sections
2 to 7, chapter 8, Oregon Laws 2010, and the amendments
to Ballot Measure 37 (2004) is to modify Ballot Measure 37
(2004) to ensure that Oregon law provides just compensa-
tion for unfair burdens while retaining Oregon’s protections
for farm and forest uses and the state’s water resources.”
As petitioner sees it,
“[t]he theme in this policy statement is ‘just compensation
for unfair burdens.’ This policy is more consistent with
restriction of housing rights, meaning limiting what can
be developed, than it is with prohibiting any housing devel-
opment * * *. The Oregon legislature adopted a statute that
afforded protection against ‘unfair burdens’ at a level less
than the deprivation of all development rights and used
plain language—restricts—that does so.”
As far as it goes, petitioner’s argument has some
force insofar as it focuses on the ordinary meaning of
“restrict.” However, as employed in each of the pertinent
statutes, “restrict” is part of a phrase that includes the term
“use.” More specifically, ORS 195.300(14)(c), ORS 195.305(1),
and ORS 195.310(1)(c) uniformly employ as verbs the terms
“restricts,” “restrict,” and “restricted” with reference to the
noun “use,” whether as a residential, farming, or forest use
of private property.
As noted, Measure 49 does not define “use.” How-
ever, this court recently considered the meaning of “use”
as part of a phrase in the disposition of a retroactive claim
under Measure 49. In Friends of Yamhill County v. Board
of Commissioners, 298 Or App 241, 446 P3d 548, rev den,
365 Or 769 (2019) (Biggerstaff II), we held that a retro-
active claim did not satisfy section 5(3)4 of Measure 49
4
Section 5(3) of Measure 49 states:
“A claimant that filed a claim under ORS 197.352 on or before the date
of adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly is entitled to just compensation as provided in:
“* * * * *
“(3) A waiver issued before the effective date of this 2007 Act to the
extent that the claimant’s use of the property complies with the waiver and
the claimant has a common law vested right on the effective date of this 2007
Act to complete and continue the use described in the waiver.”
328 Moore v. City of Eugene
because the claimants’ plan when Measure 49 took effect
was to subdivide their property and sell buildable lots. The
court explained that the relief allowed under section 5(3) of
Measure 49 is no broader than the relief to which a claimant
was entitled under a Measure 37 waiver, and the claimant’s
Measure 37 waivers did not allow them to sell buildable lots.
Id. at 258.
As part of our analysis in Biggerstaff II, we con-
cluded that the claimants’ planned subdivision was not a
“use” under Measure 37 that became nonconforming when
the claimants sold lots. Id. at 254. We elaborated:
“[A] Measure 37 waiver allowed the present owner to
‘use the property for a use permitted at the time when
the owner acquired the property.’ Former ORS 197.352(8)
(2005). In [Friends I], we interpreted ‘the use of the prop-
erty’ as that phrase is used in section 5(3) of Measure 49.
We concluded that a residential ‘use’ in that context meant
‘the actual employment of land for a residential purpose.’
We explained as follows:
“ ‘Among its numerous definitions, “use” is gen-
erally defined to mean “to put into action or service:
have recourse to or enjoyment of: EMPLOY.” Webster’s
Third New Int’l Dictionary 2523 (unabridged ed 2002).
Analogously, “farm use” is defined by ORS 215.203(2)
(a), for purposes of statutes regulating zoning of agri-
cultural lands, as “the current employment of land for
the primary purpose of obtaining a profit in money
by [various agricultural activities].” Zoning laws typi-
cally define allowed land “uses” by referencing partic-
ular activities on land or structural improvements to
land. See, e.g., ORS 215.213 and ORS 215.283 (listing
of “uses” allowed in exclusive farm use zones as includ-
ing certain types of structures (e.g., “public or private
schools,” “churches,” and “dwellings”) and “operations”
or activities on land (e.g., “operations for the exploration
for minerals” and “creation, restoration or enhancement
of wetlands”)); ORS 215.441 and ORS 227.500 (regulat-
ing “use of * * * real property for activities customar-
ily associated with” places of worship). Thus, the plain
meaning of the text confirms, as the reviewing court
concluded, that “use of the property” means the actual
employment of land for a residential purpose.’ ”
Id. (brackets in Biggerstaff II).
Cite as 308 Or App 318 (2020) 329
Based on our construction of “use” in Friends I, we
concluded in Biggerstaff II that
“a ‘use,’ as that term appears in the phrase ‘a use permitted
at the time the owner acquired the property’ in subsection
8 of Measure 37 likewise means actual employment of the
land for a particular purpose—here, residential. As set out
above, in Friends I, we explained that ‘use’ has an estab-
lished meaning in the context of land use law, and that
the voters intended to give the word that meaning in sec-
tion 5(3) of Measure 49. For similar reasons, we reach the
same conclusion with respect to the meaning of ‘use’ in ‘a
use permitted at the time the owner acquired the property’
in subsection 8 of Measure 37: The measure is drafted as
a land-use statute, and, by employing ‘use’ as a noun, it
demonstrates voters’ intent to adopt a standard land-use
meaning: actual employment of the land for a particular
purpose. Thus, a residential ‘use’ is a house, not just a sub-
division of land.
“Accordingly, pursuant to a Measure 37 waiver, the
present owner could ‘use the property for a use permitted
at the time the owner acquired the property’ by subdivid-
ing the land and building a house on the new lot. However,
a subdivision of land, without houses, is not a use permit-
ted at the time the owner acquired the property because it
is not a ‘use.’ ”
Id. at 254-55 (internal citations omitted; emphasis added).
Although we construe “use” here in a prospective
claim under Measure 49, the statutory phrasing indicates
that the same standard land-use meaning—actual employ-
ment of the land for, as pertinent here, a residential pur-
pose—probably was intended by the voters in the statutes at
issue here. Like the text that we considered in Biggerstaff II,
ORS 197.300(14)(c), ORS 195.305(1), and ORS 195.310(1)(c)
employ “use” as a noun. The same breadth in purpose
applies to farming and forest “use” under those statutes. It
is apparent from that structure that the voters’ focus was
on relatively broad categorical levels of use. That is, in the
words of Biggerstaff II, a residential use is a “house,” not, as
pertinent here, the standards for siting and developing the
house. That understanding suggests that, to “restrict” res-
idential use, a land use regulation adopted after an owner
acquired her property must limit the owner’s preexisting
330 Moore v. City of Eugene
legal right to use the property for a residential purpose, not
merely alter applicable siting and development standards.
Of course, we do not interpret statutory terms and
phrases in isolation. Instead, we construe them in their over-
all context, including related statutory provisions. See, e.g.,
Eugene Water and Electric Board v. PERB, 365 Or 59, 70, 442
P3d 596 (2019) (citing PGE, 317 Or at 611). Petitioner is right
to focus as part of that context on the interplay between
the terms “restrict” and “prohibit” in ORS 195.305(3).
However, that interplay is more nuanced than petitioner
suggests. Notably, the word “prohibit” does not appear in
ORS 195.300(14), nor is it found in ORS 195.305(1) or ORS
195.310. Rather, it only appears in three of the exemptions
to a prospective claim found in ORS 195.305(3). That cir-
cumstance is significant, because it is implausible to infer
that the voters meant to authorize a prospective claim under
ORS 195.305(1) and ORS 195.310(1)(c) where a land use reg-
ulation restricts the residential use of private property in
the sense for which petitioner advocates, but not where the
regulation actually prohibits residential use of the property.
Thus, the structure of the statutory scheme indicates that
“restrict” in ORS 195.300(14)(c), ORS 195.305(1), and ORS
195.310(1)(c) includes the prohibition of a claimant’s residen-
tial use of his or her property. To be clear, that understand-
ing doesn’t necessarily mean, as the trial court concluded,
that “restrict” is equivalent to “prohibit.” However, it does
undermine petitioner’s argument that the words have exclu-
sive meanings.
We further observe that both the phrasing and sub-
stantive focus of ORS 195.305(3)—which sets out exemptions
to prospective claims—are materially different from that of
ORS 195.300(14)(c), ORS 195.305(1), and ORS 195.310(1)(c).
Unlike the latter three provisions, two of the three statu-
tory exemptions on which petitioner relies do not employ
the word “use,” but rather refer to “activities” that in broad
terms impair public safety and welfare. See ORS 195.305
(3)(a), (b). The third exemption, paragraph (3)(d), does employ
“use,” but the substantive focus of that provision is of a piece
with the focus of the other two, as it pertains to land use
regulations that “restrict or prohibit the use of property
Cite as 308 Or App 318 (2020) 331
for the purpose of selling pornography or performing nude
dancing.” With that evident public welfare concern in mind,
it makes sense that the voters would clarify—even if out of
an abundance of caution—that Measure 49 does not autho-
rize compensation for claims based on land use laws that
regulate to any extent the array of conduct described in
ORS 195.305(3)(a), (b), and (d). As a consequence, the use
of the disjunctive “restrict or prohibit” in ORS 195.305(3) is
less telling than petitioner suggests.
The parties refer us to other provisions of Measure
49 to support their differing views, but we do not find those
provisions to be especially helpful here. As noted above,
petitioner argues that “[r]eading the Measure 49 threshold
for a regulation that ‘restricts’ residential use to mean a reg-
ulation that ‘prohibits’ residential use would be inconsistent
with the stated purpose of Measure 49” in ORS 195.301,
which provides “just compensation for unfair burdens.”
However, ORS 195.301 does not tell us whether the vot-
ers considered a dwelling size standard such as the one at
issue here to be an unfair burden. Moreover, as elaborated
below, in section 11 the voters subjected retroactive claims
to current—not historical—dwelling size standards, so they
must not have regarded a change in such standards as an
unfair burden in that setting, which was the major focus of
Measure 49.5 In short, we do not agree that ORS 195.301
bears the contextual weight that petitioner urges.
5
The measure was enacted as House Bill (HB) 3540 (2007) and referred to
the voters on June 15, 2007. Or Laws 2007, ch 424. The ballot title and explana-
tory statement for Measure 49 primarily focused on retroactive claims. The ballot
title included just one sentence concerning prospective claims: “Authorizes future
claims based on regulations that restrict residential uses of property or farm,
forest practices.” Voters’ Pamphlet at 7. The explanatory statement for Measure
49 only had this to say about prospective claims:
“This measure modifies Measure 37 for compensation claims that arise from
land use regulations in the future. It authorizes such claims based on reg-
ulations that limit residential uses of property or farm or forest practices,
requires documentation of reduced values and provides for proportionate
compensation when such reductions in value occur. Property owners will
have five years to file claims over regulations enacted after January 1, 2007.”
Id. at 19.
Finally, the voters’ pamphlet’s arguments in favor of and in opposition to
Measure 49 focused almost entirely on Measure 49’s treatment of retroactive
claims and do not bear on the issue at hand.
332 Moore v. City of Eugene
In addition, petitioner points out that ORS 195.310
(1)(b) and (c) refer to a claimant’s “desired use” of his or her
property, which petitioner describes in very specific terms,
that is, a desire to build a 1,200 square foot home. However,
section (1)(b) describes the requisite “desired use” in differ-
ent terms, that is, as “a residential use or a farming or forest
practice[.]” That phrasing is consistent with the employment
of “use” as a term of art that refers to the categorical employ-
ment of land for a residential, farming, or forestry purpose.
As noted, the trial court did not confine its contex-
tual analysis to provisions and arguments that the parties
discussed and advanced. Among other provisions, the court
sua sponte considered ORS 195.300(14)(b), which defines
“land use regulation” to include “[a] provision in ORS 227.030
to 227.300, 227.350, 227.400, 227.450 or 227.500 or in ORS
chapter 215 that restricts the residential use of private real
property.” Many of the statutory provisions referred to in
paragraph (14)(b) have no obvious relationship to restric-
tions on the residential use of property, but, depending on
the meaning of the phrase “restricts the residential use,”
some might be so construed. In particular, ORS 227.290(1)
provides, in part:
“The council or other governing body of any incorporated
city, under an exercise of its police powers, may establish or
alter building setback lines on private property adjacent to
any alley, street, avenue, boulevard, highway or other pub-
lic way in such city. It may make it unlawful and provide a
penalty for erecting after said establishment any building
or structure closer to the street line than such setback line,
except as may be expressly provided by ordinance.”
The trial court concluded that the reference in ORS
195.300(14)(b) to a swath of statutes that includes ORS
227.290 shows that “a ‘land use regulation’ is already a
restriction on use and that only a prohibition of use gives
rise to the restriction contained in the Measure 49 defini-
tion of ‘land use regulation.’ ” At first blush, we might draw
a different inference from ORS 195.300(14)(b), namely that
the voters regarded setback standards authorized under
ORS 227.290 as “land use regulations,” which might suggest
that the imposition of more stringent setback standards
would restrict the residential use of private property zoned
Cite as 308 Or App 318 (2020) 333
for residential use. If so, a dwelling size standard such as
the one enacted after petitioner acquired her property also
arguably might restrict the residential use of that property
under Measure 49.
There are two problems with such an inference,
though. First, ORS 195.300(14)(b) does not specifically refer
to ORS 227.290 as a provision that restricts the residen-
tial use of property. Instead, the phrasing of ORS 195.300
(14)(b)—“[a] provision in ORS 227.030 to 227.300, 227.350,
227.400, 227.450 or 227.500 or in ORS chapter 215 that
restricts the residential use of private real property”—
indicates that the voters did not necessarily understand
that all those provisions restrict the residential use of pri-
vate real property. More importantly, though, ORS 195.300
(14)(b) is concerned with statutes that restrict the residential
use of property, not local government regulations that such
statutes might authorize. Although ORS 227.290 authorizes
local governments to adopt setback standards, it does not
impose such standards. Moreover, ORS 227.290 was enacted
before petitioner acquired her property, and it has not been
amended thereafter.6 Thus, it does not assist petitioner’s
prospective claim.
The trial court’s reliance on section 11 of Measure
49 merits more extended discussion.7 That provision states
that “the establishment of a dwelling on property, authorized
under sections 5 to 11 of this 2007 Act must comply with all
applicable standards governing the siting or development of
the dwelling, lot or parcel including, but not limited to, the
location, design, construction or size of the dwelling, lot or
parcel.” (Emphasis added.) Under our case law, if that pro-
vision governed prospective claims under Measure 49, the
answer in this case would be clear cut: The challenged ordi-
nance would not restrict the residential use of petitioner’s
property. See Bertsch v. DLCD, 252 Or App 319, 330, 287
P3d 1162 (2012) (concluding that “ ‘all applicable standards’
[under section 11] are those standards that currently apply
6
ORS 227.290 has been amended twice. See Or Laws 1979, ch 671, § 4; Or
Laws 1981, ch 590, § 9.
7
Neither party has addressed section 11 in any detail. As noted, petitioner
deems it inapplicable because it expressly applies only to retroactive claims,
whereas respondent has ignored it altogether.
334 Moore v. City of Eugene
to the establishment of a dwelling, not historical standards”
(emphasis in original)). However, as discussed, by its terms,
section 11 only applies to retroactive Measure 49 claims. So,
what do we make of the fact that no parallel provision was
codified for prospective claims?
On one hand, we might be tempted to infer that the
omission was deliberate and that, by negative implication,
“restricts the residential use” in a prospective claim was
meant to include development standards governing the size
of a dwelling. Such an inference would invoke the statutory
construction guide of expressio unius est exclusio alterius.
Under that guide, generally speaking, “when the legislature
includes an express provision in one statute and omits the
provision from another related statute, we assume that the
omission was deliberate.” State v. Bailey, 346 Or 551, 562,
213 P3d 1240 (2009).
However, “[t]he expressio unius principle is simply
one of inference. And the strength of the inference will
depend on the circumstances.” Crimson Trace Corp. v. Davis
Wright Tremaine LLP, 355 Or 476, 497, 232 P3d 980 (2014).
See also Colby v. Gunson, 224 Or App 666, 671, 199 P3d
350 (2008) (“[T]he expressio unius guide to legislative intent
corroborates, rather than supplies, meaning to a statute.”).
Applying that guide here would distort the unified claim
requirements of Measure 49, because the same definition
of “land use regulation” applies both to retroactive and pro-
spective claims involving city zoning ordinances.8 That is,
regardless of claim type, a “provision of a city comprehen-
sive plan, zoning ordinance or land division ordinance” must
“restrict[ ] the residential use of private real property zoned
for residential use” to qualify as a land use regulation. ORS
195.300(14)(c). Stated differently, regardless of claim type, a
city zoning ordinance either “restricts the residential use”
of private real property or it does not. By definition, it is
not a chameleon. Thus, it is most plausible to infer that the
voters merely took pains in section 11 to clarify that cur-
rent siting and development standards apply to retroactive
8
ORS 195.300 provides that its definitions, including the definition of “land
use regulation” in subsection (14), apply both to claims under “[ORS] 195.305 to
195.336 [prospective claims] and sections 5 to 11, chapter 424, Oregon Laws 2007
[retroactive claims].”
Cite as 308 Or App 318 (2020) 335
claims, but that they did not mean thereby to imply that
the application of current siting and development standards
would restrict the residential use of property in a prospec-
tive claim. Accordingly, we decline to apply the expressio
unius guide here.
In sum, based on our analysis of the text of ORS
195.300(14)(c), ORS 195.305(1), and ORS 195.310(1)(c) in
their pertinent context, we do not agree with petitioner
that the dwelling size standard in respondent’s ordinance
restricts the residential use of her property within the mean-
ing of Measure 49.9 Part of the difficulty lies in petitioner’s
focus on the difference in ordinary meaning of the words
“restrict” and “prohibit” that appear disjunctively in three
exemptions under ORS 195.305(3). As petitioner frames the
analysis, that difference would mean that virtually any sit-
ing or development standard would “restrict the residential
use” of private property that is zoned for residential use and,
thus, trigger a right to just compensation where the other
statutory requirements for a prospective claim are satisfied.
However, in our view petitioner’s analysis does not com-
port with the meaning of “use” in ORS 195.300(14)(c), ORS
195.305(1), and ORS 195.310(1)(c), nor does it comport with
the nuanced interplay between the terms “restrict” and
“prohibit” in ORS 195.305(3)(a), (b), and (d).
CONCLUSION
Considering the pertinent statutory text in con-
text, we conclude that the term “restrict,” as it is employed
in ORS 195.300(14)(c), ORS 195.305(1), and ORS 195.310
(1)(c) modifies the noun “use,” and therefore it must be inter-
preted as part of a phrase in harmony with the meaning of
“use.” In the standard land use context and in the specific
context of the provisions at issue here, “use” is a term of
legal art that refers to the actual employment of land for a
categorical purpose, whether a residential, farm, or forestry
purpose, not the details of siting and development stan-
dards. It follows that, to “restrict” residential use within the
meaning of those provisions, a land use regulation adopted
after an owner acquired her property must limit the owner’s
9
We agree with the parties that the enactment history of Measure 49 does
not meaningfully bear on the issue in this case.
336 Moore v. City of Eugene
preexisting legal right to use her residentially zoned private
property for a residential purpose, not merely alter appli-
cable siting and developments standards.10 Viewed accord-
ingly, the dwelling size standard in respondent’s ordinance
does not restrict the residential use of petitioner’s property,
and the trial court did not err in entering judgment for
respondent.
In so concluding, we need not decide every conceiv-
able application of the phrase “restricts the residential use”
in ORS 195.300(14)(c), ORS 195.305(1), and ORS 195.310
(1)(c). In particular, we do not adopt the trial court’s conclu-
sion that the meaning of “restrict” in those provisions nec-
essarily is equivalent to “prohibit.” To reiterate, our obser-
vation that the former term subsumes the latter in those
provisions does not necessarily compel the conclusion that
the terms have an identical meaning.11 We leave that issue
for another day.
Affirmed.
10
This case does not present the question whether a change in siting or
development regime that is so onerous or burdensome as to effectively foreclose
a claimant’s preexisting legal right to use her residentially zoned property for a
residential purpose would entitle her to just compensation under Measure 49.
This opinion should not be understood to reach that issue.
11
It is not difficult to conceive of a land use regulation that arguably would
“restrict the residential use” of private property zoned for residential use without
prohibiting its residential use altogether. Consider the example of a regulation
that reduces the number of dwellings that can be built on property that is zoned
for residential use, but does not prohibit all residential use. That circumstance is
not presented here, and we therefore do not reach it.