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Thomas v. Dept. of Land Conservation and Development

Summarized by: 

Date Filed: 01-16-2013
Case #: A148299
Brewer, J. for the Court; Armstrong, P.J.; and Duncan, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A148299.pdf

Property Law: Private real property that is owned by the same owner is "contiguous" for purposes of Measure 49, regardless of whether or not the lots designated for proposed development are connected by a common border. If each lot is connected by property owned by the same person, it is contiguous property.

Measure 49 retroactively revoked approval under Measure 37 for development on certain properties. One option for relief extended to people who had already began to develop their land was the “express pathway” where a landowner could obtain approval to build up to three additional homes on his or her property. Thomas owned two separate properties that were each made up of numerous lots. Thomas submitted two election forms to the Department of Land Conservation and Development (DLCD) seeking authorization to develop up to 3 homes on two different lots within each property for a total of 6 homes on each property. The DLCD only approved 3 homes for each separate property because it deemed the lots were actually a contiguous part of Thomas’s whole property. The DLCD concluded that even though the lots did not have a common border, because Thomas owned lots that connected the proposed lots for development, the entire property constituted a contiguous property. The Court of Appeals agreed, holding that Thomas could not choose to exclude certain lots to avoid having a common border. Measure 49 explicitly states that contiguous property is property that is owned by the same owner. Therefore, the Court held that the properties were contiguous under Measure 49 and the DLCD did not err in limiting the development to 3 homes for each property. Affirmed.