Fern Hollow Farms, Inc. v. Linn Cnty., A175675

CourtCourt of Appeals of Oregon
Writing for the CourtJAMES, P. J.
Citation321 Or.App. 783
PartiesFERN HOLLOW FARMS, INC., Plaintiff-Appellant, v. LINN COUNTY, Defendant-Respondent, and L&O FARMS, LLC; Brad Silbernagel; and Lisa Silbernagel, Intervenors Defendants-Respondents.
Docket NumberA175675
Decision Date21 September 2022

321 Or.App. 783

FERN HOLLOW FARMS, INC., Plaintiff-Appellant,

LINN COUNTY, Defendant-Respondent,

and L&O FARMS, LLC; Brad Silbernagel; and Lisa Silbernagel, Intervenors Defendants-Respondents.


Court of Appeals of Oregon

September 21, 2022

Argued and submitted February 25, 2022.

Linn County Circuit Court 20CV17708; Thomas McHill, Judge.


[321 Or.App. 784] Bill Kloos argued the cause for appellant. Also on the briefs were Aaron J. Noteboom and Noteboom Law LLC.

Donald M. Kelley argued the cause for respondents L&O Farms, LLC, Brad Silbernagel, and Lisa Silbernagel. Also on the brief was Kelley & Kelley.

Kevan J. McCulloch waived appearance for respondent Linn County.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Joyce, Judge.


[321 Or.App. 785] JAMES, P. J.

Plaintiff, Fern Hollow Farms, Inc., owns property for which, pursuant to Ballot Measure 49 (2007), the Department of Land Conservation and Development (DLCD) granted three "home site approvals," Measure 49, section 6(1), in a final order issued in 2010. In 2019, plaintiff applied to Linn County to develop its property pursuant to that final order, and the county denied the applications, reasoning that the final order, which we refer to as the Measure 49 authorization, does not entitle plaintiff to partition its property or engage in any other development. That is so, the county concluded, because two provisions of the Linn County Code (LCC) require a piece of property to be a lawfully created unit of land in order for the county to approve development on the property, and the subject property is not, and, when plaintiffs predecessors in interest applied for the Measure 49 authorization, was not, a lawfully created unit of land. Plaintiff challenged the county's denials in a writ-of-review proceeding in circuit court, and the circuit court agreed with the county.

Plaintiff appeals. As explained below, Measure 49 contemplates two phases of implementation. In the first phase, DLCD, with notice to and the opportunity for input from the county and others, determined that plaintiffs predecessors in interest were entitled to "home site approvals" under Measure 49. That process included a determination that, "[o]n the claimant's acquisition date, the claimant lawfully was permitted to establish at least the number of lots, parcels or dwellings on the property that are authorized under this section." Measure 49, § 6(6)(f).[1] DLCD's order was subject to judicial review, but it was not challenged by the county, or anyone else, and it became final. Now, in the


[321 Or.App. 786] second phase, plaintiff has applied to the county for approval to develop the property consistently with the home site approvals in the Measure 49 authorization. In this phase, plaintiff is not required to show, and the county could not consider, whether plaintiffs predecessors in interest had satisfied the regulations that were in effect on their acquisition date. That determination was made, and became final, in the first phase, and it is not at issue in the second phase. Accordingly, we reverse and remand.


The relevant facts are undisputed. The 64.41-acre subject property is located in Linn County and owned by plaintiff. Plaintiff's predecessors in interest, the Humphreys, first acquired the property as part of a larger parcel in 1981. In 1985, the Humphreys transferred two parts of the larger parcel by executing deeds with new metes and bounds descriptions. They also deeded the subject property to themselves with a new metes and bounds description. The parties agree that, at that time, county ordinances prohibited dividing property simply by deeding part of it without also completing a land-division process. No one applied for a land division at that time.

In 2006, the Humphreys filed a claim for the subject property under Ballot Measure 37 (2004). Shortly thereafter, the voters enacted Measure 49, which "extinguished and replaced the benefits and procedures that Measure 37 granted to landowners. Instead of providing for monetary compensation or waivers authorizing any use permitted at the time property owners acquired their property, as Measure 37 did, Measure 49 provides property owners with relief in the form of home site approvals." Papworth v. DLCD, 255 Or.App. 258, 261, 296 P.3d 632 (2013) (internal quotation marks, brackets, and citation omitted).

The Humphreys sought supplemental review of their Measure 37 claim under section 6 of Measure 49. In 2010, DLCD issued a "Final Order and Home Site Authorization" for the subject property. In the order, DLCD determined that the Humphreys had acquired the subject property in 1981 and that, at that time, the Humphreys "lawfully [were]


[321 Or.App. 787] permitted to establish at least the number of lots, parcels or dwellings on the property that are authorized under" section 6 of Measure 49. Measure 49, § 6(6)(f). After determining that the Humphreys' Measure 49 claim met all of the applicable standards, DLCD ordered, "this claim is approved, and the claimants qualify for three home site approvals." No one sought review of DLCD's order, and it became final. See ORS 195.318 (Measure 49 authorizations are reviewed as agency orders in other than a contested case); ORS 183.484 (providing for review of agency orders in other than a contested case).

In 2014, the county planning director issued a "property status determination" that determined that the subject property and the two other properties that were created from the larger parcel by the Humphreys' 1985 deeds "together are one authorized unit of land" as defined in the county code. That is, alone, the subject property "did not meet the definition of authorized unit of land contained in the County Code." That determination was not challenged and, accordingly, became final.

In 2019, plaintiffs representative applied for "Post Measure 37/49 Land Use Review," to implement the Measure 49 authorization for the subject property. The first step of the implementation process was to partition the subject property into three lots. To effectuate that application, plaintiffs representative submitted a partition application and an easement recognition application. The county planning director denied the applications, and plaintiff appealed to the Board of County Commissioners.

The board again denied the applications. It began by considering the criteria for partitions, specifically, the criterion of LCC section 924.200 that a partition application must be to partition "an authorized unit of land," and the LCC's provision that "[t]he [Planning and Building] Department shall not accept an application for a development permit or issue a permit authorizing development on any land that is not an authorized unit of land," LCC § 921.500(A).

The board noted that the LCC defines "authorized unit of land" as a unit of land that has been lawfully created.


[321 Or.App. 788] It reasoned, "Based on the property status determination that the subject property was not created pursuant to the lawful partitioning process in effect at the time, the subject property does not meet the definition of an authorized unit of land." Accordingly, the board denied the partition application and, for the same reason, denied the easement recognition application.

Then the board addressed the "Post Measure 37/49 Land Use Review" application. It reasoned that its determination that the subject property is not an authorized unit of land prohibited it from authorizing any development on the subject property. The board decided that it was "unable to process an application or make a determination that the proposed development complies with the provisions of the Measure 49 Order."

Plaintiff sought a writ of review in the circuit court. ORS 195.318. In a motion for summary judgment, plaintiff contended that, under a correct understanding of the operation of Measure 49, the county could not apply the "authorized unit of land" requirement to prohibit partition or further development of the subject property despite the existence of a Measure 49 authorization to do exactly that.

Defendants also filed a motion for summary judgment.[2] They defended the county's reasoning, contending that the Measure 49 authorization neither explicitly nor implicitly determined whether the subject property was a lawfully created unit of land. They pointed out that the Measure 49 authorization disclaims any determination of "the current legal status of "lots, parcels or dwellings currently existing on the Measure 37 claim property." They also noted that both Measure 37 and Measure 49 focused on "ameliorat[ing] adverse effects of restrictive land use regulations on property owners who had acquired their property before those regulations were adopted." Papworth, 255 Or.App. at 260 (describing purpose of Measure 37); id. at 268 ("[T]he purpose of Measure 49 was to provide relief, albeit


[321 Or.App. 789] not full relief, to property owners whose land use opportunities were restricted after they acquired their property." (Emphasis in original.)). Given that focus on restrictions imposed "after [the claimants] acquired their property," id. at 268, defendants asserted that plaintiffs Measure 49 authorization should not be understood to implicitly make the subject property into a lawful unit of land, because the prohibition on dividing land the way the Humphreys did in 1985 had been in effect in 1981, when they acquired the land.

The circuit court agreed with defendants, reasoning that "Measures 37 and 49 specifically address" only those land use laws enacted after an owner's acquisition date that restrict uses that were allowed as of the acquisition date. The court noted that both the LCC provisions that prohibit development on unlawfully created units of land and ORS 92.016 to 92.025, which are statutory provisions...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT