Res 1909 - Vested Rights - GottsackerCOUNCIL BILL NO. 2748
RESOLUTION NO. 1909
A RESOLUTION DENYING A CLAIM FOR COMMON LAW VESTED RIGHTS FOR THE
PROPERTY LOCATED AT 500-510 AND 514 NORTH PACIFIC HIGHWAY.
WHEREAS, Del Bert Gottsacker ("Claimant") asserted a common law
vested rights claim for the property located at 500-510 and 514 North Pacific
Highway (tax lot 051 W1 7BC00200), and;
WHEREAS, on September 8, 2008, the City Council held a public hearing to
address Claimant's assertion of vested rights, and;
WHEREAS, the Council considered all evidence presented regarding the
subject property, NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. Based upon the evidence presented, the City Council denies
the common law vested rights claim for the property located at 500-510 and 514
North Pacific Highway (tax lot 051 W 17BC00200).
Section 2. This decision is based upon evidence in the record before the
Woodburn City Council and is justified by the findings and conclusions which are
attached as Exhibit "A" and by this reference are incorporated f erejn.
Approved as to form:
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
City Attorney
.E
Filed in the Office of the Recorder
ATTEST: M
Mary Te nant City Recorder
City of Woodburn, Oregon
Page 1 — COUNCIL BILL NO. 2748
RESOLUTION NO. 1909
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October 15, 2008
October 15, 2008
Exhibit "A"
Evaluation of Claim for Common Law Vested Rights
Under decisions of the Oregon courts, whether a person has a vested right to complete a use
(despite a change in law) is an issue of fact, to be decided on a case-by-case basis. The issuance
of a Measure 37 waiver does not, by itself, create a common law vested right. For an owner to
have acquired a vested right to proceed with construction, the commencement of construction
must have been substantial or substantial costs toward completion of the development must have
been incurred. Clackamas County v. Holmes, 265 Or 193, 197 (1973).
Measure 49 Section 5(3) requires that Claimant must show that he his right to complete and
continue a use was vested on or before December 6, 2007. Accordingly, the Council has
reviewed only those activities and expenditures made on or before December 6, 2007.
The Council reviewed Claimant's vested rights claim using the factors that the Oregon appellate
courts have considered in determining whether a particular development has progressed to the
point where the owner has a vested right. These include the following:
1. The amount of money spent on developing the use in relation to the total cost of
establishing the use;
2. The good faith of the property owner;
3. Whether the property owner had notice of the proposed change in law before beginning
the development;
4. Whether the improvements could be used for other uses that are allowed under the new
law;
5. The kind of use, location and cost of the development; and
6. Whether the owner's acts rise beyond preparation (land clearing, planning, etc.).
The Council reviewed all information submitted by Claimant including contents of both Measure
37 claim files associated with the subject property and additional information submitted on June
27, 2008.
The amount of money spent on developing the use in relation to the total cost of
establishing the use.
Claimant stated in the Measure 49 submittal that "[t]he money spent, was to protect the uses
established through Measure 37 claim and the waiver granted to me by the City Council of
Woodburn, rather than paying me $205,000.00 Damages." Claimant itemizes the expenditures
as:
Attorney's fees
$4981.00
Appraisal fee
2,500.00
Measure 37 filing fees
1,000.00
Title Report fees
450.00
Copying and supplies
711.00
Pagel of 3
Landscaping and curb 390.00
Loss of rent 52,912.00
Claimant provided documentation only for the "landscaping and curb." No other documentation
was provided to support the expenditures of Attorney's Fees, Appraisal fee, title report fees,
copying and supplies.
In reviewing all information available, it appears that the money spent related to attorney fees,
appraisal fee, Measure 37 filing fees, and title report fees are not attributable to money spent in
developing the "uses" allowed by the Measure 37 claim. These expenses occurred to obtain the
Measure 37 approval, not to proceed with development after the approval.
Loss of rent is not "money spent on developing the use" and is not applicable to the
determination of common law vested rights.
Claimant has not specified a use(s) that the expenditures were intended to establish. Claimant
has not provided any documentation related to actual or estimated total cost of establishing his
intended use(s).
Conclusion: Claimant has not established that any "use" has been commenced pursuant to the
Measure 37 waiver. The money spent by Claimant does not appear to have been spent in
developing a use. Because Claimant has not articulated a use or estimated the total cost of
establishing the use, it is not possible to evaluate the amount of money spent on developing the
use in relation to the total cost of establishing the use.
2. The good faith of the property owner.
Nothing in the information reviewed suggests that any actions taken by Claimant were made to
beat the potential enactment of Measure 49.
Conclusion: The City does not dispute the good faith of Claimant.
3. Whether the property owner had notice of the proposed change in law before
beginning development.
The Council is unaware if Claimant had notice of the change in law. Claimant did not assert that
he did not have notice of the change in law.
4. Whether any improvements could be used for other allowed uses.
The only improvements to the subject property are the landscaping and curb. Claimant did not
submit any information regarding the nature and extent of these improvements.
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Conclusion: The nature and extent of the landscaping and curb improvements is unknown.
However, such improvements could reasonably be expected to be shared with or used for other
allowed uses, including the uses currently existing on the property.
5. The kind of use, and the location and cost of the development.
Claimant has not provided information on the specific use commenced, location of such use, or
the cost of the developing that use. The Council is not aware of any design review or building
permit applications submitted for the commencement of any development of Claimant's
property.
Conclusion: Claimant has not commenced any use pursuant to his Measure 37 approval.
6. Whether the property owner's acts are more than mere contemplated use or
preparation, such as the leveling of land, boring test holes, or preliminary
negotiations with contractors or architects.
Claimant has provided expenditures for copying, supplies, and landscaping and curb
improvements.
Conclusion: Claimant's expenditures and improvements are of a similar or lesser magnitude
than such activities as leveling of land or boring test holes. Claimant stated that the expenditures
were "to protect the uses established through Measure 37 claim" rather than to continue
development of a new use that would be protected by common law vested rights.
Overall Conclusions
Claimant has not sustained a claim of common law vested rights. Claimant has not articulated or
documented a specific development use or project that was substantially begun before the
enactment of Measure 49 on December 6, 2007.
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