Lake Oswego Preservation Society v. City of Lake Oswego

Supreme Court of Oregon, 360 Or. 115, August 4, 2016: New owner can’t remove historic designation imposed during previous ownership under OR law.

The property in question, the Carman House, was built circa 1856. In 1992, when the property was owned by Richard Wilmot, the City of Lake Oswego placed a historic designation on the Carman House. Wilmot, who had previously challenged a designation as to the house and the land around it, did not challenge the city’s decision.

Subsequently, , in 1995, the State of Oregon adopted a statute saying that local governments must allow “a property owner” whose property is under consideration for local historic designation to refuse the designation. ORS 197.772(1). The statute also included a removal provision for properties already designated, which provided that “a property owner” may “remove from the property a historic property designation that was imposed on the property by the local government.” ORS 197.772(3). Wilmot still owned the property at that time and did not ask for the removal of the Carman House designation. In 2001, when the Carman House was still on Lake Oswego’s Landmark Designation List, the property was conveyed to a new owner, the trustee of the Mary Cadwell Wilmot Trust.

The issue presented in this case was whether the phrase “a property owner” in ORS 197.772(3) refers only to persons who owned a property at the time a local historic designation was imposed on that property, or could a successor owner remove a local historic designation put in place during a predecessor’s ownership. The court concluded that the statute applies only to the owner at the time of the local historic designation.

The court’s effort to figure out the legislative intent began with analysis of the wording of the statute. Using the ordinary dictionary definition and basic principles of grammar didn’t help – the court said that using these tools of analysis, “the text in this case is susceptible to at least two plausible interpretations.” The court was persuaded, however, that the legislature’s use of the same phrase in another subsection of the statute supports the interpretation that in the subsection in question, the legislature meant the owner at the time of the designation.

The court also looked at the legislative and regulatory context and concluded that this subsection most likely was intended to protect the investment-based expectations of the party who acquired the property without a historic designation, not a party who acquired a property with a designation in place at the time of acquisition.

Lastly, looking at legislative history, the court found no definitive answers but thought that, “Overall, that history weighs in favor of interpreting the phrase “a property owner” as referring only to owners at the time of designation.”

Decision available at http://www.publications.ojd.state.or.us/docs/S063048.pdf.

Thanks to Jess Phelps, Esq. for first bringing this decision to my attention.

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