# Cyrus v. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES > Court of Appeals of Oregon · February 18, 2009 · 226 Or. App. 1 URL: https://www.frixlaw.com/law-library/cases/9781935 ## Case - **Full name:** O. Keith CYRUS and Conida E. Cyrus, Husband and Wife, Petitioners-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, Respondent-Respondent, and CENTRAL ELECTRIC COOPERATIVE, INC., an Active Oregon Cooperative, Intervenor-Respondent; THE TRAIL CROSSING TRUST, Petitioner-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, Respondent-Respondent, and CENTRAL ELECTRIC COOPERATIVE, INC., an Active Oregon Cooperative, Intervenor-Respondent - **Court:** Court of Appeals of Oregon - **Decided:** February 18, 2009 - **Citations:** 226 Or. App. 1; 202 P.3d 274; 2009 Ore. App. LEXIS 82 - **Precedential status:** Published - **Opinion:** Concurrence by Sercombe - **Judges:** Wollheim, Brewer, Sercombe - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9781935 ## How later opinions describe it (automated extraction) - concluding, based in part on Kerr and despite Snyder, that the petitioners’ desire to obtain answers about legal questions likely to arise in other cases was not “sufficient to allow this court to issue what is, at its core, an advisory opinion” - stating that “a Measure 37 order has ‘continuing viability’ only where a Measure 37 claimant can establish ‘vested rights’ under subsection 5(3) of Measure 49” - holding that, under Corey, the enactment of Measure 49 renders pending challenges to Measure 37 waivers moot - discussing lack of good faith in making expenditures while a Measure 37 waiver was being contested ## Opinion text SERCOMBE, J., concurring. I concur with the result reached by the majority for different reasons. I agree that a Measure 37 waiver has no legal consequence after the enactment of Measure 49 and that a judicial decision about the validity of that waiver has no practical effect, except when the Measure 37 claimant “has a common law vested right * * * to complete the use described in the waiver.” Or Laws 2007, ch 424, § 5(3). I also agree that CEC did not obtain a “common law vested right” to complete or continue constructing its electrical transmission line uses. However, the use failed to vest, in my view, because CEC constructed the line during a time when that transmission line use was unlawful under the county’s zoning ordinances and a variance to that proscription, the Measure 37 waiver, was not yet final. Until the restrictive zoning ordinances ceased to apply, any use in derogation of general law was not lawful and could not have vested. Consequently, the exception under section 5(3) of Measure 49 does not apply, and this case is not justiciable. As explained in Corey v. DLCD, 344 Or 457, 466 , 184 P3d 1109 (2008), the phrase “common law vested right * * * to complete and continue the use described in the waiver” refers “to broadly applicable legal precedents describing a property owner’s rights when land use laws are enacted that make a partially finished project unlawful. See, e.g., Clackamas Co. v. Holmes, 265 Or 193, 197 , 508 P2d 190 (1973) (describing Vested rights’ in those terms).” (Emphasis added.) The broadly applicable legal precedents — Holmes and other Oregon “common law vested rights” cases — are those cases involving uses “which lawfully existed prior to the enactment of a zoning ordinance and which may be maintained after the effective date of the ordinance although [they do] not comply with the use restrictions applicable to the *15 area.” Holmes, 265 Or at 196 -97 (citing Robert M. Anderson, 1 American Law of Zoning 306, § 6.01 (1968)). That vested right applies not only to those [uses] actually in existence but also to uses which are in various stages of development when the zoning ordinance is enacted.” Id. The point at which a landowner has proceeded “far enough with the proposed construction to have acquired a vested right” depends on whether there has been substantial commencement of construction or the incurring of “substantial costs toward completion of the job,” as well as, “the good faith of the landowner, whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements, the type of expenditures, i.e., whether expenditures have any relation to the completed project or could apply to various other uses of the land, the kind of project, the location and ultimate cost. Also, the acts of the landowner should rise beyond mere contemplated use or preparation, such as leveling of land, boring test holes, or preliminary negotiations with contractors or architects.” Id. at 197-99 (citations omitted). Holmes treats as a “vested right” the right to continue a “nonconforming use” that “lawfully existed,” which it defines to include uses “actually in existence but also * * * uses which are in various stages of development when the zoning ordinance is enacted.” Id. at 196-97. ORS 215.130(5) further regulates existing uses which become nonconforming by a change of county zoning law. The statute provides that the “lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued.” Subsequent to Holmes, we have treated vested rights to develop property “to the same limitations that apply to nonconforming uses generally,” because “not to do so would yield incongruous results.” Fountain Village Development Co. v. Multnomah Cty., 176 Or App 213, 221 , 31 P3d 458 (2001), rev den, 334 Or 411 (2002). Thus, the threshold question on whether CEC’s right to complete or continue its transmission line uses exists as a “common law vested right” under section 5(3) of Measure 49, is whether the pursuit or maintenance of that use was “lawful,” notwithstanding an appeal of the allowance of the use by a Measure 37 waiver. If the construction and maintenance of *16 that use was lawful, then the use may continue as a use that has become nonconforming by the enactment of Measure 49. In the few Oregon cases in which property owners have established “common law vested rights” to continue a nonconforming use, the prior lawfulness of that use was not in dispute. See, e.g., Holmes; Eklund v. Clackamas County, 36 Or App 73, 81 , 583 P2d 567 (1978), overruled on other grounds by Forman v. Clatsop County, 63 Or App 617, 665 P2d 365 (1983). I am not aware of any Oregon cases in which a property owner has acquired “vested rights” where construction was undertaken and partially completed while the right to begin construction was itself at issue in pending litigation. I conclude that CEC’s expanded transmission line use of the affected real property is not a “lawful use” under a Measure 37 waiver for purposes of vesting until the waiver is final and is no longer disputed. That conclusion results from the fundamental nature of a Measure 37 waiver. But for the Measure 37 waiver, construction of the transmission lines and use of the easements for that use are unlawful. Within counties, ORS 215.190 makes it unlawful to use land or construct a structure in violation of a county zoning law. 1 The applicable county zoning laws preclude the expanded transmission lines without a conditional use permit. 2 CEC’s Measure 37 waiver operated as a variance or exception to otherwise applicable law that makes the transmission line use unlawful. As we noted in Bienz v. City of Dayton, 29 Or App 761, 779 , 566 P2d 904 , rev den, 280 Or 171 (1977), “[a]ny variance by definition is a use of property which is otherwise expressly prohibited by law.” “A variance is an authorization for * * * the establishment or maintenance of a use of land, which is prohibited by a zoning *17 ordinance.” Patricia E. Salkin, 2 American Law of Zoning § 13:1, 13-4 (5th ed 2008) (footnote omitted). “Variances are designed to correct maladjustments and inequities in the operation of general regulations.” Id. at 13-5. The variance allowed by a Measure 37 waiver is intended to correct inequities caused by the application of post-acquisition laws that diminish the value of real property. Like any other use variance, however, a Measure 37 waiver operates in derogation of local zoning provisions, local comprehensive plans, and the statewide planning goals. A “use variance” allows an otherwise prohibited use in a zone; an “area” variance changes the siting requirements for an otherwise lawful use. A decision on an “area variance” is entitled to the “presumption of regularity,” while a “use variance” is not presumptively valid. Hill v. Marion Co. Bd. of Comm., 12 Or App 242, 249 , 506 P2d 519 (1973). Because a Measure 37 waiver operates in derogation of law, because the use variance allows an otherwise unpermitted use, the unlawful status of the desired use continues until the waiver is final and effective. The court gives similar effect to a preliminary land use approval during the pendency of final approval of the change in a multi-step land use decisional process. In Mason v. Mountain River Estates, 73 Or App 334 , 698 P2d 529 , rev den, 299 Or 314 (1985), the court held that no vested rights were created by construction after preliminary approval of a planned unit development plan. Instead, the uses remained unlawful until final planned unit development approval occurred. Although the legality of the uses prior to final PUD approval was a matter of ordinance in Mason, a similar principle applies here. The general zoning laws of the county made CEC’s transmission line uses unlawful until the Measure 37 use variance became final. Because CEC constructed its transmission lines before that time, its use of the easements for an expanded transmission line was unlawful and therefore could not have vested under Holmes. That use fails to qualify as a “common law vested right” under section 5 of Measure 49, even if CEC’s Measure 37 waiver were valid. Consequently, any *18 determination about the validity of CEC’s Measure 37 waiver would have no practical effect. Holmes supplies a second reason why CEC’s Measure 37 waiver failed to vest under section 5(3) of Measure 49. One of the factors that courts have universally considered with respect to “vested rights” is the “good faith” of the landowner. See Holmes, 265 Or at 198 (factors that “should be taken into consideration” include “the good faith of the landowner [and] whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements”); Eklund, 36 Or App at 81 (considering “good faith of the landowner in making expenditures”). Holmes makes this type of anticipatory “good faith” a factor in the vested right calculus. Where the lawfulness of the use itself is at issue, however, a more certain result obtains. The general common-law rule is that “[a] landowner lacks the requisite good faith when he proceeds with construction before an appeal period has expired.” Salkin, 2 American Law of Zoning § 12:13 at 12-46 (footnote omitted). For example, in Donadio v. Cunningham, 58 NJ 309, 277 A2d 375 (1971), the landowner argued that it had acquired a vested right in a building permit as a result of construction undertaken after the trial court had rejected a challenge to the issuance of the permit but before the time to appeal that decision had expired. The court explained: “We conceive the sound principle to be that no such overriding rights may be acquired when the acts relied upon are done prior to the end of the appeal period, so long as the rule exists that the state of legislation at the time of the decision of the case is controlling, even at the appellate level. A municipality should, in the public interest, be afforded an opportunity to amend its zoning ordinance and to take an appeal from an adverse decision. A landowner should not be able to thwart that public interest by a ‘bootstrap’ operation and by winning an unseemly race. This should be so whether or not the issuance of the building permit is subsequently sustained in the litigation. And, of course, an owner can acquire no additional rights by starting or continuing construction after an appeal has been taken. What we have said represents the general rule, 2 Rathkopf, Law of Zoning and Planning 263 (Supp 1970) * * *. The reason for the rule is particularly apparent here. Plaintiffs’ and other *19 opposition to the proposed restaurant in and out of court had been strong and [the landowner] could reasonably have expected some further amendment of the zoning ordinance or an appeal from the trial court judgment by either plaintiffs or the town. Its commencement of building operations can be considered as nothing more than a hasty effort to attempt to acquire an unassailable position to which it equitably should not be entitled.” Id. at 323, 277 A2d at 382-83 (emphasis added). Other courts have reached similar results, sometimes conflating the concepts of reasonable reliance and good faith. See, e.g.,Ebzery v. City of Sheridan, 982 P2d 1251, 1257 (Wyo 1999) (“It has been recognized, however, that a property owner must act in good faith to acquire vested rights in a variance, and the reliance on the variance must be reasonable. * * * Actions taken in reliance on a variance or permit while the time for appeal is pending are inherently unreasonable.”); State ex rel Cities Service Oil Co. v. Board of Appeals, 21 Wis 2d 516, 529 , 124 NW2d 809, 817 (1963) (“Once the appellants received notice of this appeal and the claim that the permit violated the zoning ordinance, they thereafter proceeded at their peril in incurring expenditures in reliance on the permit.”); Grandview Baptist Church v. Zoning Bd. of Adjustment of City of Davenport, 301 NW2d 704, 709 (Iowa 1981) (a landowner cannot invoke the doctrine of vested rights when an appeal of a permit is pending because it would “deprive the objectors of the fruits of their appeal”). In fact, Pennsylvania courts have traditionally treated the expiration of an appeal period as a separate factor that a court must consider in determining whether a property owner has acquired vested rights in a permit. See, e.g., Petrosky v. Zoning Hearing Bd. of Upper Chichester Tp., Delaware County, 485 Pa 501, 507, 402 A2d 1385, 1388 (1979) (concluding that, in determining whether one has acquired vested rights as a result of a permit issued by the government, the court should consider the landowner’s “diligence in attempting to comply with the law”; “good faith throughout the proceedings”; “expenditure of substantial unrecoverable funds”; “the expiration without appeal of the period during which an appeal could have been taken from the issuance of a permit” and “the insufficiency of the evidence to prove that individual *20 property rights or the public health, safety or welfare would be adversely affected by the use of the permit”) (emphasis added). In light of the above common-law precedents, I conclude that, by using the term “common law vested right,” the voters did not intend to extend the protections of subsection 5(3) of Measure 49 to those landowners who began construction while the validity of their Measure 37 waiver was still being litigated. At “common law,” a property owner does not acquire “vested rights” by partially constructing a use under an allowed variance in the face of a challenge to the right to begin construction. Whether that rule derives from the requirement of “good faith” or exists because the use remains as unlawful until a variance is final, the result is the same: A property owner does not acquire “vested rights” to complete and continue a use that is the subject of pending litigation. For that reason, I believe that CEC’s partial construction, which was undertaken while its Measure 37 waiver was being challenged in writ of review proceedings, was insufficient to create a “common law vested right.” Consequently, this case is not materially distinguishable from Corey with respect to justiciability. After December 6, 2007 (the effective date of Measure 49), Measure 49 deprived the waiver at issue in the present case of any continuing viability, and none of the parties can gain anything from review in this court. Corey, 344 Or at 467 . Accordingly, the appeal must be dismissed as moot. ORS 215.190 provides: “No person shall locate, construct, maintain, repair, alter, or use a building or other structure or use or transfer land in violation of an ordinance or regulation authorized by ORS 215.010 to 215.190 and 215.402 to 215.438.” The board of commissioners found that “the SM zoning and the conditional use permit process [are] land use regulations restricting the desired use of an above ground upgrade of [CEC’s] electricity transmission line. These regulations are County land use regulations, which are subject to Measure 37 claims.” Deschutes County Order No. 2005-069, section 1, Exhibit “A,” at 3. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781935. Public record. Not legal advice.