In a decision released April 1, the Court of Appeals ruled that Measure 37 waivers are not protected by the “goal-post statute.”

In Pete’s Mountain Homeowners Assn. v. Clackamas Cty , the court affirmed a Land Use Board of Appeals (LUBA) decision. The court rejected LUBA’s reasoning but found a different way to reach the same result.

ORS 215.427(3)(a), commonly known as the “goal-post statute,” statutorily guarantees that, once a person files an application, the “standards and criteria” that apply to that application don’t change. Petitioners argued “standards and criteria” include Measure 37 waivers – cannot be changed. The county agreed and approved their application.  LUBA reversed, concluding that, because Measure 37 itself was not a standard or criterion that applies to petitioners’ application, the goal-post statute simply did not apply; thus, nothing prevented Measure 49 from taking effect as to their application.  Petitioners sought judicial review, arguing that LUBA erred in construing the goal-post statute.

The court held LUBA’s reasoning – that “Measure 37 waivers authorize a partial avoidance of or alternative to the fixed goal-post for some property owners; Measure 37 waivers are not part of the fixed goal-post” - cannot be reconciled with the Supreme Court’s holding in MacPherson v. DAS, 340 Or 117, 132-33, 130 P3d 308 (2006). In Macpherson, the Oregon Supreme Court explained that the effect of a Measure 37 waiver – that is, a decision to “modify, remove, or not to apply” a land use regulation – is not merely to suspend the regulation that would otherwise apply; rather, the Measure 37 waiver amounts to an amendment of the land use regulations themselves as they would otherwise apply to the property at issue.

Nevertheless, the court found that LUBA’s error does not alter the outcome of the case.  While the goal-post statute encompasses Measure 37 waivers, Measure 49 still has superseding effect, rendering the goal-post statute inoperable as to applications based on Measure 37 waivers.

We are confronted with a case in which two statutes apply, but do so in inconsistent fashion.  On the one hand, the goal-post statute provides that, once petitioners’ application was completed, the standards and criteria that applied at that time–including, as we have held, their Measure 37 waivers–cannot be changed.  On the other hand, Measure 49 provides that petitioners’ Measure 37 waivers no longer have legal effect.  There is no way to reconcile the two statutes as they apply to this case.

When two statutes apply in an inconsistent fashion, there are rules by which the courts are required to resolve the inconsistency.  ORS 174.020(2) provides that, “[w]hen a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent.”  See also Powers v. Quigley, 345 Or 432, 438, 198 P3d 919 (2008) (“[I]f two statutes are inconsistent, the more specific statute will control over the more general one.”).  In a similar vein, if an earlier statute is inconsistent with a later one, the later is held to implicitly repeal the earlier to the extent of the inconsistency.  See, e.g., State ex rel Huddleston v. Sawyer, 324 Or 597, 604, 932 P2d 1145, cert den, 522 US 994 (1997) (“‘If earlier and later statutes are in irreconcilable conflict, then the earlier must yield to the later by implied repeal.’” (Quoting Anthony et al. v. Veatch et al., 189 Or 462, 481, 220 P2d 493 (1950).).

In this case, both rules apply, and both lead to the same result:  Where the goal-post statute and Measure 49 irreconcilably conflict, Measure 49 prevails.  The goal-post statute applies generally to all applications for permits or zone changes, not just to cases involving Measure 37 waivers.  It is clearly the more general statute and must, as a result, yield to the more specific Measure 49.  Similarly, the goal-post statute, which dates back to 1983, Or Laws 1983, ch 827, § 23, must yield to Measure 49, which was enacted more than 20 years later.

We conclude, therefore, that, although Measure 37 waivers are part of the standards and criteria that cannot be changed under the goal-post statute, Measure 49 supersedes both Measure 37 and the goal-post statute.  It necessarily follows that LUBA correctly determined, albeit for a different reason, that the county erred in approving petitioners’ application.