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Burke v. DLCD

Summarized by: 

Date Filed: 09-27-2012
Case #: S059420
Landau, J. for the Court; Balmer, C.J.; De Muniz, J.; Durham, J.; Kistler J. and Linder J. dissenting.
Full Text Opinion: http://courts.oregon.gov/Publications/docs/S059420.pdf

Land Use: Under ORS 195.328(18), the word “owner” as it is used in section 6 of Measure 49, includes all individuals who are either an owner in fee title, purchaser under land sale contract, or a trustee in the property.

The Department of Land Conservation and Development (DLCD) denied Burke and Educative LLC’s application for waiver under section 6 of Measure 49. Burke purchased property in 1967 and sold it in 2005 pursuant to a land sale contract in which he retained legal title. The requirement for waiver under section 6 of Measure 49 is that the “owner” or “owners” purchase the property before any prohibitions to develop came into existence. Burke and Educative argued they were entitled to the waiver because they were both owners, and Burke’s earlier acquisition date in 1967 was before any prohibitions on the development of the property existed. DLCD interpreted the word “owner” to mean only the purchaser under the land sale contract, therefore excluding Burke. The trial court affirmed DLCD’s final order and the Court of Appeals affirmed. The Oregon Supreme Court reversed; concluding the word “owner” in ORS 195.328(18), as it is used in Measure 49, has the plain meaning of all individuals who are either an owner in fee title, purchaser under land sale contract, or a trustee in the property. Reversed and remanded.