Judgment Based on Legislation Introduced by Firm While Decision Pending
PORTLAND, ORE., Dec. 15, 2011 – The Oregon State Court of Appeals issued two opinions in Jones v. Douglas County (Case Nos. A-148612 and A148618) ending an 18-month dispute involving construction of a Douglas County home that had been aggressively opposed by neighbors.
The case centered on a parcel of land purchased by Philip and Cynthia Bowes in 1995 and their subsequent efforts to build a home on that land 16 years later. The Bowes’ neighbors collaborated to file appeals of the County’s permission to build a house and subsequent extensions granted to delay construction at the Oregon Land Use Board of Appeals (“LUBA”). The Court of Appeals affirmed that the extensions were not within the jurisdiction of LUBA and the County’s permission was not reviewable due to the Oregon legislature enacting House Bill (HB) 3166 (2011), which retroactively imposed a 10-year statute of repose on the appeal of certain land use decisions.
“We are pleased by the court’s decision, and our clients now have a holiday present of a secure home on their property,” said Ed Sullivan, an owner at Garvey Schubert Barer, who represented the Bowes. “We took a two-step approach to the litigation, successfully arguing that the extensions were not subject to LUBA’s jurisdiction and approaching and convincing the legislature that there needed to be a 10-year statute when landowners entitled to notice could appeal. It was the statute that made the difference in the Court’s remanding the case to LUBA with instructions to dismiss it. We had other reasons for that same result in our briefs, but the Court did not need to go beyond the statute.”
In addition to Sullivan, the Bowes were represented by Garvey Schubert Barer Owner Carrie Richter and Of Counsel Bill Kabeiseman.
In 1995, the Bowes purchased the 78.43-acre parcel in Douglas County with the intent of constructing a house since the previous owner had applied and obtained permission for a single-family dwelling (“lot of record”) from the County. However, since the Bowes were a military family at the time, they sought and received during a 16-year period, a series of extensions to allow them to build their home.
When the Bowes began preliminary work on the construction of their home, the neighbors combined to challenge the lot of record determination, filing multiple appeals on the 1995 determination and a number of the extensions at LUBA, noting that they were entitled to, but did not receive notice of that decision.
LUBA remanded the County’s decision because it had not complied with the applicable notice requirements. The Bowes, in turn, appealed LUBA’s decision to the State Court of Appeals, while the neighbors appealed the dismissal of their claims under the extensions. The Oregon Court of Appeals affirmed the neighbors’ appeal, affirming LUBA’s determination that they were not “land use decisions” appealable to LUBA.
While the review was pending, the legislature enacted HB 3166 (2011). Thereafter, the Bowes moved to dismiss, contending that the new repose period bars the neighbors' appeal of the County's 1995 decision to LUBA.
The State Court of Appeals concluded that LUBA’s order remanding the 1995 decision was unlawful in substance since the 10-year period had expired and remanded LUBA to vacate its decision and dismiss the neighbors’ appeal.