- Court: Oregon Court of Appeals
- Area(s) of Law: Land Use
- Date Filed: 12-14-2011
- Case #: A148618
- Judge(s)/Court Below: Haselton, P.J. for the Court; Duncan, J.; & Walters, J.
- Full Text Opinion
The Boweses own 78.43 acres in Douglas County located in a farm-forest zone, which is an exclusive farm use zone. In 1995 the prior owner obtained approval to build a single family dwelling on the land that the Boweses inherited. The Boweses did not act upon the permit until 2010, but sought extensions on the permit because they did not live in Oregon. However, no notice was sent to neighbors as to the permit and their intent to eventually build. The neighbors brought several claims before the Land Use Board of Appeals (LUBA); the most relevant of which was their lack of statutory notice. In response, the Boweses argued that LUBA lacked jurisdiction because 1) the 1995 permit approval did not constitute “land use decision,” 2) the neighbors did not file a timely appeal, and 3) the appeal was moot. However, after the Boweses filed their appeal with Court of Appeals, the Oregon State Legislature passed HB 3166, which imposed a retroactive 10-year statute of ultimate repose on the appeal of certain land use decisions. After discussing the Constitutional merits of HB 3166 from several perspectives, the Court ultimately applied the modern substantive due process and held HB 3166 based upon a legitimate legislative purpose furthered by rational means. Motion to dismiss denied. Remanded to LUBA with instructions to vacate portions of its order concerning LUBA Case Number 2010-098 and to dismiss that appeal.