Landwatch Lane County v. Lane County

Continual use of parcel as a school satisfies the requirements of ORS 215.130(5) and LC 16.251(5), establishing a “vested right” to continue previously conforming use which is presently nonconforming.

Petitioner appeals a decision by the board of county commissioners allowing the construction of a dormitory on the subject property. Subject property is a 20-acre parcel which was zoned for exclusive farm use. It is located less than 3 miles from the growth boundary for the City of Springfield and within one mile of Jasper. Granted a permit to build in 2005, respondent continually used the property as a school in line with approved development plans. When ORS 215.213(1)(a) was amended by ORS 215.213(2)(y), subject property was no longer conforming. The board of county commissioners determined the non-stop development maintained a “continual use” establishing the vested right to continue plans under the 2005 permit, though construction of the dormitory did not proceed until 2014. LUBA remanded after concluding the 2005 permit was not sufficient grounds for construction of the dormitory. On remand, the board found the respondent had a “vested right” to build the dormitory per 2005 permitted plans and the use as a school constituted “continued use.”

The petitioner’s first assignment of error asserted that the three separate buildings approved in the 2005 plan were three distinct phases, each requiring a vested right. LUBA rejected the three-phase assertion and determined the board’s decision was a reasonable interpretation of continued use; the Holmes test had established a vested right and continued development of the original project in any manner constituted continued use. Additionally, LUBA denied petitioner’s assertion that the board misinterpreted precedent of case law regarding vested rights in Oregon. LUBA pointed to 251.130(10)(b) which gives each county the ability to adopt their own standard for determining “continual use”, and determined the county’s interpretation was reasonable. Petitioner’s second assignment of err was denied because petitioner failed to establish that the county’s factual error led to denial of petitioner’s rights. AFFIRMED.