Forman v. Clatsop County ( 1983 )

BUTTLER, J.,

dissenting.

Although I join in Judge Rossman’s dissent, something more needs to be said about the substantive and procedural effects of the majority’s effective overruling of Eagle Creek Rock Prod. v. Clackamas Co., 27 Or App 371, 556 P2d 150 (1976), rev den 278 Or 157 (1977); 1000 Friends of Oregon v. Clackamas Co. Comm., 29 Or App 617, 564 P2d 1080 (1977), and Eklund v. Clackamas County, 36 Or App 73, 583 P2d 567 (1978). All of those cases hold that a determination whether a person has a vested property right to use his property in a certain way because the use is a preexisting nonconforming use (ORS 215.130(5)) must be made by a court of record, namely, the circuit court.

Obviously, such a determination involves the use of land; in that sense, it is a land use decision. However, such a use of land is one that the local governing body may not prevent solely by enacting a zoning ordinance that does not permit that use. The use may not be prevented because of the vested nature of the right that inheres in the property; it is a right that may be transferred along with the property. The primary determination relates to a property right; after that decision is made, a land use decision may follow.

The majority now hold that a determination that such a vested property right exists or does not exist may be made by a “resolution” adopted by a local political body comprised of laymen, which is not a judicial body, much less a court of record. The thought of such a body’s determining vested property rights is reminiscent of a Gilbert and Sullivan comic opera: there are no rules of evidence, no right of cross-examination, and anyone in the neighborhood who may be interested may “remonstrate” and argue for or against the resolution of the question. In this case, the commissioners summarized their proceeding and deliberations as follows:

“At the time of the hearing, the Board heard arguments of the applicants, received a memorandum in support of vested right determination and numerous exhibits that were introduced at the time of the hearing. Further, the Board heard the objections and remonstrances of property owners in the vicinity of the area proposed for consideration. Based upon substantial evidence presented by such exhibits, the memorandum in support of vested right determination and the oral argument presented at the time of the hearing, and based further upon the Board’s specific review of the documentation submitted as evidence, the Board finds:” (Emphasis supplied.)

If the majority are right, LUBA, an agency, not a court, is limited on review to a determination whether the local body’s findings of fact are supported by substantial evidence; if so, it is bound by them. Although LUBA has limited authority under Oregon Laws 1979, chapter 772, section 4(7) (amended by Or Laws 1981, ch 748, § 61) to take evidence on disputed allegations relating to unconstitutionality, standing and ex parte contracts, its review in this kind of case is confined to the record. We, in turn, would review LUBA’s decision on the same basis. If, on the other hand, we adhere to our prior decisions holding that the circuit court has primary jurisdiction to determine the existence or nonexistence of such a vested property right, rules of evidence would be applicable, the parties would be entitled to cross-examine witnesses, compulsory process for the attendance of witnesses would be available, the parties would be able to object to the admissibility of evidence, “remonstrators and objectors” could not clutter the record with irrelevant considerations, and we would review the trial court decision de novo. See Webber v. Clackamas County, 42 Or App 151, 600 P2d 448, rev den 288 Or 81 (1979).¹

In my opinion, vested property rights should be determined in that context, as they always have been. Once those rights have been determined by the courts, the local governing body will know whether it may or may not apply its “land use regulation” to the property in question.

The majority say that, somehow, the creation of LUBA gave local governing bodies authority they did not have before. The opinion states:

“* * * when it created LUBA, the legislature infused the vested rights decisions of local governments with more vitality by establishing ‘some other tribunal,’ LUBA, to review land use decisions and by providing for judicial review of LUBA decisions by this court. Or Laws 1979, ch 772 § 6a (as amended). Therefore, the circuit courts no longer have primary jurisdiction over vested rights issues.” 63 Or App at 621.

To the contrary, a principal purpose in the creation of LUBA was to transfer what had been circuit court review of land use decisions by writ of review to LUBA. Because decisions involving vested property rights based on a preexisting nonconforming use were not reviewable by writ of review, Eagle Creek Rock Prod. v. Clackamas Co., supra, neither are they reviewable by LUBA.

Because I would reverse the dismissal of this declaratory judgment proceeding, I dissent.

Richardson and Young, JJ, join in this dissent.

1 If the plaintiff seeks mandamus in the circuit court, we would review it as an action at law. Cook v. Clackamas County, 50 Or App 75, 622 P2d 1107, rev den 290 Or 853 (1981).