Fred Wilson, Hearings Official <br />July 8, 2016 <br />Page 13 <br />In DLCD z~ jq#f rson (Bark), the prior owner of the property at issue had a valid claim <br />for compensation under Measure 37. However, when the county and state approved his <br />claim, they elected "to `waive' the offending land use regulations." Burk, 220 Or App at 520. <br />The owner then filed an application for development of that property, but while the <br />application was still under consideration, the property owner died. Although the county <br />approved the development plan, on appeal LUBA held that the county erred based on the <br />argument that pleasure 37 waivers are personal to the property owner and are not <br />transferrable to the estate. Burk, 220 Or App at 521. <br />The Court of Appeals held that ORS 215.427(3)(a) does not "vest" Nfeasure 37 <br />waivers so that they may pass to the estate upon the property owner's death. Bank, 220 Or <br />App at 525. In making its ruling, the Court noted that "[I]t is important to emphasize the <br />narrowness of the issue before us . . . [Does] ORS 215.427(3)(a)[goal post rule] . . . <br />independent of Measure 37, create[] a vested, transferrable right in the continued viability of <br />a waiver, even after the death of the person who originally obtained it." Bark, 220 Or App at <br />523. The Court narrowly answered that question - No. <br />The City asserts that Burk stands for the proposition that, "[T]he goal post rule <br />applies to the application as filed." Pg 1 (Emphasis none). That is only partially correct. <br />The actual language of the case goes on to state the Goal Post Rule applies to the application <br />"as filed or as supplemented within a limited period of time." Burk, 220 Or App at 524. <br />(Emphasis Mine) After that limited tune, the statute does not apply if the substance of an <br />application changes in a material way. Burk, 220 Or App at 524. In Burks., the underlying <br />facts changed; the land use regulations did not. The law stayed the same but, with the death <br />of the prior property owner, the applicant became the personal representative of the estate <br />and that applicant did not have the statutory authorMT to obtain the permit under the <br />Measure 37 claim. <br />Apart from the City's failure to state the entire rule expressed by the Court, this case <br />is also supportive of the Applicant's position in the following ways. "By its terms, <br />[ORS 215.427(3)(a)] ensures that an applicant who has otherwise fulfilled the statutory <br />requirements will be subject to the standards and criteria that were applicable at the time the <br />application was first submitted." Brisk, 220 Or App at 523 (internal citation omitted) <br />(Emphasis mine)). "[O]nce an application has been completed in a timely fashion, state and <br />local governments may not enact new legislation that alters the criteria by which the <br />application may be approved or denied." Burk, 220 Or App at 523 (citing Sunburst H <br />Horaeorvners _,-Iss'n. v. City of ll;'est Linn, 101 Or App 455, 461 (1990) (stating that the effect of <br />the goal-post statute is that "persons who file applications before more restrictive legislation <br />is adopted are entitled to have the earlier law applied to their applications"). <br />The Court's decision in Burg is important because in the present case the Applicant <br />timely supplemented its original application and is entitled to have those supplemented <br />portions be frozen under the Goal Post Rule as well. <br />ACX <br />