Dudek v. Umatilla County

• Decision Date: 15 May 2003
• Citation: 187 Or. App. 504,69 P.3d 751
• Parties: Clelan DUDEK and Lois Dudek, Petitioners, v. UMATILLA COUNTY and Danny R. Smith, Respondents.
• Court: Oregon Court of Appeals

69 P.3d 751

187 Or. App. 504

Clelan DUDEK and Lois Dudek, Petitioners, v. UMATILLA COUNTY and Danny R. Smith, Respondents.

2002-048; A119050.

Court of Appeals of Oregon.

Argued and Submitted October 3, 2002.

Decided May 15, 2003.

Douglas E. Hojem, Pendleton, argued the cause for petitioners. With him on the brief was Corey, Byler, Rew, Lorenzen & Hojem.

D. Rahn Hostetter argued the cause and filed the brief for respondent Danny R. Smith.

No appearance for respondent Umatilla County.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and KISTLER, Judge.¹

DEITS, C.J.

Petitioners² seek review of a Land Use Board of Appeals (LUBA) decision affirming Umatilla County's grant of a partitioning request. The county's decision included a determination that a portion of the Umatilla County Development Ordinance (UCDO)³ need not be applied to the partitioning. The applicant before the county, Danny R. Smith (respondent),⁴ sought to partition 20 acres located six miles south of the City of Pendleton into three lots, one of ten acres and two of five acres. The property is zoned for rural residential use and has a two-acre minimum lot size. The effect of the county's determination not to apply a portion of its code is to relieve the applicant of the requirement to widen a roadway serving the partitioned area to county construction standards. We affirm LUBA's affirmance of the county's decision but for different reasons.

The subject property is served by a private road easement, Jerico Lane. The road easement is presently 50 feet wide and about 3,500 feet long. A small portion of the lane is on respondent Smith's property. The county's findings recite that Jerico Lane is graveled to a width of 14 to 20 feet and that the portion of the lane not on respondent's property serves 18 other properties. The proposed three-parcel partition would add about seven vehicle trips per day, according to the county. The county estimated that the use generated by the newly partitioned properties would constitute approximately 15 percent of the total use of the road. Under UCDO section 152.684(G)(3), if a roadway created for or serving partitioned property serves four or more lots and will likely serve additional parcels due to development pressure in the area or will likely be an extension of a future road, the right-of-way must be 60 feet wide and the driveable portion of the road must meet certain construction standards.⁵

The right-of-way and road improvement requirements of the cited ordinance were the subject of a LUBA review proceeding in 2001 involving the same partition request and the same parties. In that proceeding, Dudek v. Umatilla County, 40 Or. LUBA 416 (2001), LUBA reviewed the county's approval of the partition, which imposed a condition requiring that the portion of the existing roadway easement located on applicant's property be widened to 60 feet. Petitioners challenged the approval before LUBA, contending that the entire length of Jerico Lane must meet the requirements of UCDO section 152.684(G)(3). Petitioners also argued that the county's findings were not sufficient because they failed to explain the county's decision to apply one of the approval criteria, the right-of-way standard, but not the other, the construction standard.

On appeal, LUBA remanded the decision on the ground that the county's findings on the easement and roadway requirements were unclear and that the county had not made a necessary interpretation of UCDO section 152.684(G)(3). LUBA specifically directed the county to resolve what LUBA regarded as ambiguities in the ordinance and to determine whether the easement would serve four or more lots or parcels and, if it would, whether the road is likely to serve additional lots or parcels in the future "due to development pressures in the area" or likely to "be an extension of a future road as specified in a future road plan." Dudek, 40 Or. LUBA at 423 (internal quotation marks omitted). LUBA also told the county to consider whether UCDO section 152.684(G)(3) applied to the entire length of Jerico Lane or only to the part of the road easement that crosses respondent's property.

On remand, the county again approved the partition. In its order, the county addressed LUBA's questions about the applicability of UCDO section 152.684(G)(3) and found that the Jerico Lane easement would serve more than four properties and that the requirements of the ordinance were applicable. The county concluded that, under its ordinance, respondent would need to increase the width of that portion of Jerico Lane on his property to 60 feet. The county also concluded that, under its ordinance, the portion of Jerico Lane that goes approximately 3,500 feet from respondent's property to a nearby county road, Lake Drive, must also be widened to 60 feet as a condition of approval of the partitioning and that the road would need to comply with county construction standards. In addition, the county found that, under the ordinance, respondent would have to obtain from property owners adjacent to Jerico Lane additional right-of-way needed to bring the road easement up to 60 feet in width. Despite those findings, the county then went on to conclude that, because of the substantial burden that those requirements would impose on respondent, the county would not enforce that portion of its ordinance. It explained:

"To impose on the applicant the burden of making off-site improvements by expanding the easement width and road construction standards the entire length of Jerico Lane would not be in [pro]portion to the estimated 15% impact of the development. The county cannot condition the partition and the development on obtaining additional right-of-way and improvements in a greater proportion than the impact of the development. As a result, the standards under Umatilla County Code of Ordinances § 152.684(G)(3) cannot be applied to the portion of Jerico Lane off of the subject property. As a precedent condition, however, the applicant must execute and record an Irrevocable Consent Agreement to participate in future improvements to Jerico Lane."

While not expressly cited in the county's order, the apparent legal source for the county's conclusion not to require adherence to the right-of-way requirements of its ordinance is Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). In that case, the United States Supreme Court concluded that, to avoid an unconstitutional taking, when an ad hoc local process results in a requirement that a landowner dedicate real property for public use in exchange for a development permit, the exaction required by the governmental entity must be "roughly proportional" to the negative impacts of the proposed development. Dolan, 512 U.S. at 391.⁶

Following the county's decision on remand, petitioners again sought LUBA review of the county's approval of the partition. Before LUBA, petitioners challenged the county's reliance on the Dolan "rough proportionality" standard and again asserted that the county should have applied the requirements of UCDO section 152.684(G)(3) and should have either imposed the conditions required by the ordinance or denied the application.⁷ LUBA concluded that the county did not err in refusing to condition its approval of the partitioning request on respondent's compliance with the requirement for widening and improving Jerico Lane imposed by UCDO section 152.684(G)(3). Dudek v. Umatilla County, 42 Or. LUBA 427, 434 (2002). In reaching that conclusion, LUBA agreed with the county's determination that the "rough proportionality" test announced in Dolan applied to the county's decision. However, LUBA did not address the county's specific application of the rough proportionality test because petitioners challenged only the county's decision to apply Dolan's heightened scrutiny to this partitioning request. Petitioners did not assign error to or otherwise challenge the county's finding that the exactions required under the ordinance would fail the Dolan test. On review, petitioners argue that LUBA erred in concluding that the "rough proportionality" principles announced in Dolan prevented the county from imposing the requirements of UCDO section 152.684(G)(3). Petitioners assert that the heightened scrutiny required by Dolan does not apply when a local government ordinance establishes a legislatively adopted standard applicable to a broad class of property and the ordinance is not subject to interpretation or adjudication on a case-by-case basis.

Petitioners make the additional argument, relying on our recent decision in Rogers Machinery, Inc. v. Washington County, 181 Or. App. 369, 45 P.3d 966, rev. den., 334 Or. 492, 52 P.3d 1057 (2002), cert. den., ___ U.S. ___, 123 S.Ct. 1482, 155 L.Ed.2d 225 (2003), and the California Supreme Court's decision in Ehrlich v. City of Culver City, 12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911 P.2d 429 (1996), that the Dolan proportionality test does not apply to the county's decision here because the Umatilla County ordinance does not require a dedication of private property to public use in exchange for a development permit. They argue that, in this case, there was no requirement that private property be dedicated to the public nor that public property be improved. Rather, petitioners assert, the required right-of-way widening calls only for the acquisition of an easement allowing the public to go to and from the developed property. As a result of those distinctions, petitioners insist that Dolan is not applicable and that LUBA erred in concluding that it was.

As we discussed in Rogers Machinery, Inc., a significant consideration in the determination of whether Dolan's rough proportionality test applies to a particular government action is whether the action is taken pursuant to a legislatively adopted scheme that applies to a broad class of property and whether the action involves the exercise of discretion. Also...