Court of Appeals Interprets Meaning of 'Lawfully was Permitted to Establish' Under Measure 49 'Express Pathway'

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In Ericsson v. State ex rel. Department of Land Conservation and Development the Oregon Court of Appeals reviewed the meaning of "lawfully permitted to establish" in section 6(6)(f) of Measure 49. At issue in the case was the proof required to establish the claimant "lawfully was permitted to establish" home sites under section 6(6)(f). According to the Department of Land Conservation and Development, it was not sufficient evidence to show what might have been developed under applicable zoning code but that the petitioners would need to show what would have been allowed at the time of acquisition.

The Court of Appeals concluded that the claimant would have to provide evidence showing it was "more likely than not that the claimant would have been actually permitted to establish the use, based upon the application of the prior law…in effect at the time of acquisition."

Read the full article here.

"Court of Appeals Interprets Meaning of 'Lawfully was Permitted to Establish' Under Measure 49 'Express Pathway'" was published in the Feb./Mar. 2013 issue of the Oregon Real Estate Land Use Digest.

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Sarah Stauffer Curtiss
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