McKAY CREEK VALLEY ASSN. v. WASHINGTON COUNTY, 116 Or. App. 299 (1993)

841 P.2d 651

McKAY CREEK VALLEY ASSOCIATION, Respondent, v. WASHINGTON COUNTY, Respondent, and Lane BLAKESLEE and Mary Blakeslee, Petitioners.

LUBA 91-191; CA A74563Oregon Court of Appeals.Submitted on petitioners’ petition for reconsideration filed August 12, 1992
Reconsideration allowed; opinion (114 Or. App. 95, 834 P.2d 482) modified and adhered to as modified November 12, 1992 Reconsideration denied February 10, 1993 Petition for review pending 1993

Judicial Review from Land Use Board of Appeals.

David B. Smith, Tigard, for the petition.

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Before Rossman, Presiding Judge, and Edmonds and De Muniz, Judges.

ROSSMAN, P.J.

Reconsideration allowed; opinion modified and adhered to as modified.

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ROSSMAN, P.J.

Petitioners seek Supreme Court review of our decision affirming LUBA’s reversal of Washington County’s approval of petitioners’ application to build a farm dwelling. We treat the petition as one for reconsideration, ORAP 9.15, allow it and modify our opinion.

Among the arguments that petitioners make is that LUBA’s decision gave rise to an uncompensated taking of their property on the theory that the “exaction imposed” did not bear a reasonable relationship to the “impacts” of the proposed development and was, therefore, unconstitutional under Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S Ct 3141, 97 L Ed 2d 677 (1987), and Dolan v. City of Tigard, 113 Or. App. 162, 832 P.2d 853 (1992). We assumed, arguendo, in our first opinion that the exactions versus impacts test of Nollan and Dolan applies to regulatory denials of proposed developments and proceeded to reject petitioners’ argument on its merits. 114 Or App at 100. In their petition for review, petitioners argue, inter alia, that we misapplied the test.

After we issued our opinion, we held in Nelson v. Benton County, 115 Or. App. 453, 839 P.2d 233 (1992), that that test has no application in cases such as this, which involve only regulatory denials of proposed uses. Instead, in cases where proposed uses are disallowed, the relevant takings tests are those pertaining to “regulatory takings.” We accordingly hold that the Nollan and Dolan tests are not germane here, and we do not reach the substance of petitioners’ argument that we misapplied them. We modify our opinion to incorporate our reasoning in Nelson v. Benton County, supra, and adhere to it in all other respects. We also hold that no regulatory taking has been established.

Reconsideration allowed; opinion modified and adhered to as modified.

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