Chapter 14.08
VESTED RIGHTS DETERMINATION PROCEDURE
Sections:
14.08.020 Determination of vested rights under HB 3540, Section 5(3).
14.08.030 Comments by persons other than the applicant.
14.08.040 Factors considered to determine common law vested right.
14.08.050 Notice of the application—Notice of the final decision on the application.
14.08.060 Date final county vesting decision deemed complete.
14.08.070 Judicial review of final county vesting decision.
14.08.080 Effect of vested rights determination on subsequent owners.
14.08.090 Rules for computing time.
14.08.010 Definitions.
For purposes of this chapter, the following definitions apply:
A. “Applicant” means a person who has obtained Measure 37 relief from the board and the state of Oregon and has applied to the community development department for a final county vesting decision.
B. “Application” means an application form created by the community development department and filed with the community development department by an applicant for a final county vesting decision.
C. “Board” means the Jefferson County board of commissioners.
D. “County counsel” means the Jefferson County counsel, or with the county counsel’s consent, contracted county counsel.
E. “Community development department” means the Jefferson County community development department.
F. “Final county vesting decision” means a final written order by the review authority on an application that the applicant does or does not have a vested right to continue and complete a specific use allowed under a board order granting the applicant Measure 37 relief.
G. “Measure 37” means Ballot Measure 37 approved by the voters in November, 2004, and codified as ORS 197.352, 2005 replacement part.
H. “Planning director” means the Jefferson County community development director.
I. “Review authority” is the Jefferson County board of commissioners. (Ord. O-23-08 § 1, 2008)
14.08.020 Determination of vested rights under HB 3540, Section 5(3).
A. Review Authority to Make Determination. In accordance with the process described in subsection D of this section, the review authority shall determine vested rights under HB 3540, Section 5(3) pursuant to the test established by common law as reflected in Section 14.08.040 of this chapter.
B. Determination Subject to Judicial Review. The final county vesting decision is subject to judicial review as provided in Section 14.08.070 of this chapter.
C. Basis of Determination. The review authority must base its final county vesting decision on whether the vesting application’s proposed use of the property complies with orders from the state and board granting Measure 37 relief, and whether the applicant has a common law vested right as of December 6, 2007, to complete and continue the use described in the application.
D. Process. The review authority shall make a final county vesting decision under this chapter in accordance with the process described in this subsection.
1. An applicant who obtained an order from the board granting Measure 37 relief and who desires the county to make a vested rights determination under HB 3540, Section 5(3) shall submit an application to the community development department with information necessary to address the criteria to establish a common law vested right. The review authority is empowered to require additional information beyond that originally submitted where necessary to address the criteria to establish a common law vested right. The applicant is responsible for the completeness and accuracy of all information submitted with the application and all of the supporting documentation.
2. The review authority will exercise its best efforts to make a timely decision on a completed application.
3. If no comments from persons other than the applicant are received prior to or during a public hearing following issuance of notice under Section 14.08.050(A) of this chapter, the record is closed and the review authority will make a final county vesting decision on the record as it exists at that time.
4. If comments from persons other than the applicant are received prior to or during a public hearing following issuance of notice under Section 14.08.050(A) of this chapter, the record before the review authority is closed except for rebuttal comments by the applicant. Rebuttal comments from the applicant will thereafter be received by the review authority until the record is closed on the date the applicant notifies the review authority in writing that it desires the record closed.
E. Application Materials. An applicant shall submit the following application materials to the community development department:
1. An application with an application fee, if any, set by board order.
2. The name, mailing address, and phone number of the applicant.
3. A legal description and tax lot number of the subject property as well as a street address for the property, if any.
4. A copy of the Jefferson County and state of Oregon order granting the Applicant Measure 37 relief for the subject property.
5. Information addressing the factors considered to determine common law vested right in Section 14.08.040 of this chapter, and any additional information deemed appropriate by the applicant to enable the review authority to make a final county vesting decision. (Ord. O-23-08 § 2, 2008)
14.08.030 Comments by persons other than the applicant.
A person may submit written evidence, arguments or comments to the community development department for consideration by the review authority up to and during the public hearing on the application following issuance of notice under Section 14.08.050(A) of this chapter. No evidence, arguments or comments from persons other than the applicant will be received by the community development department for consideration by the review authority after the record is closed except for rebuttal information provided by applicant, as allowed in Section 14.08.020(D)(4) of this code. (Ord. O-23-08 § 3, 2008)
14.08.040 Factors considered to determine common law vested right.
In determining whether the applicant has a vested right to continue and complete a use under a board order granting Measure 37 relief, the review authority may consider the following factors based on the evidence, arguments and comments submitted as part of the record:
A. Whether the application’s proposed use of the property complies with orders from the state and board granting Measure 37 relief.
B. The amount of money spent on developing the use in relation to the total cost of establishing the use.
C. The good faith of the property owner. Expenditures made prior to December 6, 2007, shall be presumed to have been made in good faith.
D. Whether the property owner had notice of the proposed change in law before beginning development.
E. Whether the improvements could be used for other uses that are allowed under the new law.
F. The kind of use, location and cost of the development.
G. Whether the owner’s acts rise beyond mere contemplated use or preparation, such as the leveling of land, boring test holes, or preliminary negotiations with contractors or architects.
H. Other relevant factors. (Ord. O-23-08 § 4, 2008)
14.08.050 Notice of the application—Notice of the final decision on the application.
A. Notice of the Application. Not later than five working days after the community development department receives the application, the community development department shall provide notice of the application by first class U.S. mail, postage prepaid, to the persons named in this subsection. The date of mailing shall be included in the notice. The notice shall include the name of the applicant, the location of the subject property and the time and place of the scheduled review authority’s public hearing on the application. Notice shall be issued to the following:
1. The applicant.
2. The public, by the following means:
a. Posting notice of the application at a public place.
b. Posting notice of the application on the Jefferson County website.
c. Publishing notice of the application in a newspaper of general circulation in Jefferson County.
3. The Department of Land Conservation and Development.
4. Owners of real property located within five hundred (500) feet of the property that is subject to the final county vesting decision as those owners are identified by existing records in the Jefferson County assessor’s office.
B. Notice of the Final County Vesting Decision. Not later than five working days after the review authority has made and signed a final county vesting decision, the community development department will provide notice of the decision by first class U. S. mail, postage prepaid, to the persons named in this subsection. The date of mailing shall be included in the notice. Notice shall be issued to the following:
1. The applicant.
2. The public, by the following means:
a. Posting notice of the final county vesting decision at a public place.
b. Posting notice of the final county vesting decision on the Jefferson County website.
3. The Department of Land Conservation and Development.
4. Owners of real property located within five hundred (500) feet of the property that is subject to the final county vesting decision as those owners are identified by existing records in the Jefferson County assessor’s office.
5. A person who submitted written evidence, arguments or comments on the application before the review authority made and signed a final county vesting decision on the application. (Ord. O-23-08 § 5, 2008)
14.08.060 Date final county vesting decision deemed complete.
The final county vesting decision constitutes a final county decision that is subject to judicial review as provided in Section 14.08.070 of this chapter at the time the review authority has made and signed a final county vesting decision. (Ord. O-23-08 § 6, 2008)
14.08.070 Judicial review of final county vesting decision.
A. A final county vesting decision of the review authority made under this chapter is not a land use decision subject to review by the land use board of appeals.
B. A final county vesting decision of the review authority made under this chapter is subject to review by the Jefferson County circuit court in a writ of review proceeding filed under ORS Chapter 34 by an applicant or a person who is adversely affected by a final county vesting decision. A person is adversely affected for purposes of this section if the person is a person who submitted written evidence, arguments or comments before the review authority made and signed a final county vesting decision on the application.
C. Judicial review of a final county vesting decision of the review authority is:
1. Limited to the evidence in the record before the review authority at the time it made and signed a final county vesting decision; and
2. Available only for issues that are raised before the review authority with sufficient specificity to afford the review authority and applicant an opportunity to respond.
D. For purposes of ORS 34.030, the “date of the decision or determination sought to be reviewed” is the date notice was issued under Section 14.08.050 of this chapter. (Ord. O-23-08 § 7, 2008)
14.08.080 Effect of vested rights determination on subsequent owners.
A final county vesting decision by the review authority under this chapter shall apply to a future owner or otherwise run with the land to the fullest extent allowed by law when the final county vesting decision determines that:
A. An applicant’s use of the property complies with the Measure 37 waiver issued by the state and the board; and
B. The applicant has a common law vested right as of December 6, 2007, to complete and continue the use described in the application. (Ord. O-23-08 § 8, 2008)
14.08.090 Rules for computing time.
ORS 174.120, 2005 replacement part, applies for purposes of computing time and deadlines under this chapter. (Ord. O-23-08 § 9, 2008)
14.08.100 Title.
This chapter may be cited as the Measure 49 vested rights ordinance. (Ord. O-23-08 § 10, 2008)