Fountain Vill. Dev. Co. v. Multnomah Cty. - 176 Or. App. 213, 31 P.3d 458 (2001)

Rule:

Multnomah County, Or., Code § 11.15.8805(B) provides that a nonconforming use may be lost by either abandonment or discontinuance and, while the former requires proof of intent to relinquish a known right, the latter does not.

Facts:

The previous landowner constructed most of a log cabin on the property when it was zoned for multiple use forest, which permitted a dwelling on the property. In 1992, federal agents found marijuana on the property and subsequently seized the property, apparently because it was purchased with the proceeds of illegal drug trafficking. Respondent Multnomah County then acquired title to the property. Respondent changed the zoning from MUF to Commercial Forest Use. In the CFU zone, a single-family dwelling is a conditional use, not an outright permitted use. The effect of the zone change was that a person who sought to build a dwelling on the property would have to obtain specific permission for the dwelling subject to county conditions. Petitioner Fountain Village Development Company purchased the property in 1994 and there was no dispute that the petitioner’s actions in maintaining the site over the period 1995 to 1998 did nothing to complete the log cabin. Petitioner then asked respondent for the legal status determination regarding the cabin. Respondent issued an administrative decision, which concluded that petitioner had no vested right to complete and use the cabin. The administrative decision treated the residential use as a nonconforming use and said the use had been abandoned or discontinued under the county code. Petitioner filed a petition for review of a final opinion and order of the Land Use Board of Appeals. Respondent does not challenge the determination of the vested rights issue.

Issue:

Did the petitioner lost the alleged vested right to complete and use a log cabin on land zoned for commercial forest use as determined?

Answer:

Yes.

Conclusion:

The appellate court found that the LUBA correctly determined that respondent, Or., Code § 11.15.8805, applied to the petitioner’s claimed vested right to construct the cabin because there was no reason to afford the inchoate entitlement to a use greater protection from loss than the actual use. The court affirmed LUBA's denial of the cross-petition. Otherwise, the matter was reversed and remanded to LUBA to explain why substantial efforts and not ordinary care was the controlling standard for purposes of loss of a vested right pursuant to the county statutes.