LandWatch Lane County v. Lane County

Under OAR 660-033-0140(1) and (2) a permit is void two years after the final decision, unless the development action is “initiated” within that time period; however, simply initiating the development action within the time period is not sufficient to render the permit valid indefinitely, and may require extensions in order to proceed.

     McDougal Foundation, Inc., intervenor-respondent (intervenor), was permitted to construct three buildings on its property on May 6, 2005, subject to conditions, one of which, “Condition of Approval 1,” included a two-year expiration date for the permit. In 2014, intervenor applied for a permit to install a manufactured structure at one of the building sites (the girls’ dormitory), citing the 2005 approval and arguing that it had “vested rights” to finish the 2005 development. The planning director approved the manufactured dwelling, the hearings officer reversed, and then the county board of commissioners reversed the hearings officer’s decision. LandWatch Lane County (petitioner) appealed the county board of commissioners’ decision.

     Petitioner first argued that any vested right to construct the girls’ dormitory was lost by discontinuance since the intervenor ceased its efforts for more than one year during the economic downturn in 2009. LUBA found that petitioner’s argument provided no basis for reversal or remand because the vested rights doctrine challenges a theory that “the county commissioners did not address or adopt as a basis for their decision.”

     Petitioner next asserted that the commissioners misconstrued OAR 660-033-0140(1) and (2) in holding that the 2005 permit was still valid and authorized the county to issue a building permit for the girls’ dormitory. A discretionary permit approval is void two years after the date of the final decision, if the development action is not commenced in that period. LUBA agreed with the petitioner that if intervenor desired to rely upon the 2005 permit, then it was necessary that the intervenor obtain one or more extensions as prescribed by statute. LUBA remanded the proceeding since the previous decisions addressed only one of several theories for approving a building permit that were raised. REMANDED.