Gillette v. Lincoln County

Resolution of vested rights claims, even if submitted in a form or manner different from that required by the county, involves the “discretionary approval of a proposed development of land” and is therefore a “permit” decision under ORS 215.402, requiring notice and an evidentiary hearing or an opportunity to appeal decisions to a de novo evidentiary hearing before a different review body.

In 1990, the county approved a farm dwelling on petitioners’ property. In 1994, petitioners developed a driveway, septic system, and well on the property, but took no further action. In 2018, in response to a request from petitioners, the planning director issued a written determination that (1) the 1990 approval was no longer valid due to intervening changes in the county code and (2) petitioners’ 1994 activities were insufficient to establish a vested right to construct a farm dwelling. This appeal followed.

Under Lincoln County Development Code (LCDC) 1.1210(2), “applications for permits” are subject to ORS 215.416, which requires counties to provide applicants with notice and an evidentiary hearing or an opportunity to appeal decisions to a de novo evidentiary hearing before a different review body. ORS 215.416 defines “permit” to mean the discretionary approval of a proposed development of land. In their first and second assignments of error, petitioners argue that the county should have processed their request under procedures that provide for notice, an evidentiary hearing, and a right of local appeal. The county responds that LCDC 1.1210(2) does not apply because petitioners did not file an “application” of any kind. While LUBA agrees with the county that a determination whether a permit has expired does not constitute a “permit” decision, resolution of vested rights claims, like verification of nonconforming uses, does involve the “discretionary approval of a proposed development of land” and is therefore a “permit” decision under ORS 215.402. Remand is therefore necessary for the county to process petitioners’ vested rights claim under procedures consistent with ORS 215.416. The first and second assignments of error are sustained, in part, and the county’s decision is REMANDED.