Ericsson v. State

In order to prove that a claimant lawfully was permitted to establish dwellings or lots under section 6 of Measure 49, a claimant must prove by evidence in the DLCD administrative record that it is more likely than not that the claimant would have been actually permitted to establish the use, based on the application of prior law.

The Ericssons appealed a judgment affirming an order of the Department of Land Conservation and Development (DLCD) that denied the Ericssons homesite approvals of two of their lots, as neither lot met a homesite approval standard in section 6 of Measure 49. To qualify for homesite approvals, the Ericssons must have proved by sufficient evidence in the DLCD administrative record they were lawfully permitted to create lots or dwellings on the property as authorized by its acquisition date. On appeal, the Ericssons construed the phrase "lawfully permitted" to mean "potentially allowed by law." They asserted that the zoning laws during acquisition allowed further partition if certain approvals were attained, regardless to whether those approvals would be granted. The Court of Appeals discerned the phrase "lawfully permitted" to mean that the Ericssons must have shown the use permission would have been obtained in a lawful manner. Thereby, the Ericssons must have proved by evidence in the DLCD administrative record that it was more likely than not that they would have been actually permitted to establish the use. The Ericssons failed to prove they were entitled to homesite approvals, nor was there sufficient evidence in the record in which DLCD could conclude it was more likely than not that the partition would be approved. Affirmed.