## Facts

- A 38-acre parcel was originally zoned Multiple Use Forest (MUF), which allowed a dwelling outright on parcels of at least 38 acres.
- The then-owner constructed a concrete bunker and began building a log cabin on top of it without a permit; the county issued a stop-work order.
- The county issued a building permit on March 10, 1987; construction then ceased, with no further work or expenditures after 1987.
- A renewed permit issued in 1991 did not result in any new construction; the 1987 permit was later treated as expired.
- In 1992, federal agents seized the property due to marijuana-related activity; the county later obtained title.
- On January 7, 1993, the county rezoned the property from MUF to Commercial Forest Use (CFU), making a dwelling a conditional use rather than an outright permitted use.
- After the former owner reacquired the property, Fountain Village purchased it in 1993–1994.
- From 1995 to 1998, Fountain Village performed limited site-related work (e.g., road work, clearing, window replacement, structural assessment) but did not complete the cabin.
- In 1999, Fountain Village sought a county determination that it had a right to complete and use the cabin as a dwelling despite the zoning change.
- The county applied its code provision stating that a nonconforming use is lost if abandoned or discontinued for two years; the hearing officer and county commissioners concluded any right had been lost before Fountain Village purchased the property.
- LUBA affirmed, reasoning that the county’s discontinuance rule applied to vested rights as well as nonconforming uses.

## Issues

1. Whether a county ordinance providing that a nonconforming use is lost if abandoned or discontinued for two years automatically applies to extinguish a claimed common-law vested right to complete construction of a dwelling that was never completed or occupied before rezoning.
2. Whether LUBA erred by conflating a vested right to complete construction with an already-established nonconforming use when applying ORS 215.130 and the county code.

## Decision

- The Court of Appeals reversed LUBA and remanded for further proceedings.
- The court held LUBA erred in treating the county’s nonconforming-use abandonment/discontinuance provision as dispositive of the asserted vested-right claim.
- The court concluded the ordinance’s text and structure did not compel LUBA’s interpretation that it automatically governed vested-right claims where the use had not been completed and established.
- The court did not decide whether Fountain Village (or its predecessor) had, in fact, acquired a vested right; it required LUBA to conduct a correct vested-right analysis and then assess the legal effect of discontinuance principles.
- The court affirmed the county’s conditional cross-petition to the extent it sought consideration of additional issues on remand if necessary.

## Legal Principles

- A common-law vested right to complete a development and a nonconforming use are related but analytically distinct: a nonconforming use concerns continuation of a lawfully established use, while a vested-right claim concerns whether substantial construction or expenditures created a protectable right to complete a use not yet operational.
- A local discontinuance/abandonment ordinance directed at nonconforming uses cannot be treated as automatically extinguishing a claimed vested right without first determining whether a vested right exists under the governing legal framework.
- When evaluating a claimed right to proceed after a zoning change, the decisionmaker must apply the correct vested-right analysis before concluding that passage of time or inactivity defeats the claim.

## Conclusion

The court required LUBA to reassess the claimed right to complete the dwelling under the proper vested-right framework rather than disposing of the claim solely by applying the county’s two-year nonconforming-use discontinuance rule, and it remanded for further proceedings consistent with that approach.


Fountain Vill. Dev. Co. v. Multnomah Cnty., 176 Or. App. 213, 31 P.3d 458 (2001)