Fountain Village Development Co. v. Multnomah County

In 1985, a landowner bought a parcel of land in east Multnomah County (the county) (defendant). At that time, county zoning regulations permitted the residential use of the land as a matter of right, and the landowner began building a log cabin on the property. Although the county issued building permits in 1987 and 1991, the landowner never completed construction of the cabin. In 1992, marijuana was found on the property, and it was seized by the federal government. The county subsequently obtained title to the property. In 1993, the property was re-zoned to commercial forest use (CFU), allowing a single-family dwelling only as a conditional use. The former landowner reacquired the property and subsequently sold it to Fountain Village Development Company (Fountain Village) (plaintiff). Between 1995 and 1998, Fountain Village spent money to clear soil off the bunker, build a road to the site, replace broken windows, and hire an engineer to assess the structural integrity of the partially built log cabin, but it did not finish building the cabin. In 1999, Fountain Village requested a determination of the cabin’s legal status. The relevant provision of the county code provided that a nonconforming use was lost if it was abandoned or discontinued for two years. Relying on this provision, the hearing officer concluded that any vested right to complete and use the cabin as a nonconforming use had been abandoned or discontinued prior to Fountain Village’s purchase of the property. The board of commissioners affirmed the decision, and Fountain Village appealed to the land use board of appeals (LUBA), arguing that since the cabin had not been completed, a nonconforming use of the property had not been established. Fountain Village took the position that it had a vested right to complete the cabin that was not governed by the code provision. LUBA affirmed the county’s finding, reasoning that the ordinance applied both to vested rights and to nonconforming uses. Thus, if a vested right to complete the cabin had existed, it had been lost through abandonment or discontinuance. Fountain Village appealed.