Clayton v. DAS

Under ORS 195.318(3)(b), challenges must be preserved in order to be reviewed.

Plaintiff sought review of a circuit court decision affirming the Department of Land Conservation and Development's final order to deny reconsideration of his claim. Plaintiff originally sought review under Measure 49 regarding a Measure 37 claim to allow the development of three home sites on his property in Jackson County. The department issued a final order, addressing the effect of Senate Bill 1049, which Plaintiff did not raise, and concluded on the date Plaintiff acquired his property, he was barred from establishing homes on it. Plaintiff, in his motion for reconsideration, challenged the department's finding of the date on which he received his property, but failed to challenge the application of Senate Bill 1049. The department denied reconsideration. Plaintiff sought judicial review of the department's order, and challenged both the date of acquisition finding, as well as the department's application of Senate Bill 1049. The circuit court affirmed the department's final order, and found Plaintiff failed to preserve the application of Senate Bill 1049 for review. The Court finds under ORS 195.318(3)(b), Plaintiff's challenge to the application of Senate Bill 1049 is unpreserved, and therefore, unreviewable. Further, the Court found if it was preserved, the department was correct in their application of Senate Bill 1049. The judgment is Affirmed.