Friends of Yamhill Cty. v. Yamhill Cty.

• Decision Date: 24 June 2009
• Docket Number: A141390.,2008196.
• Citation: 211 P.3d 297,229 Or. App. 188
• Parties: FRIENDS OF YAMHILL COUNTY, Merilyn Reeves, and Jim Ludwick, Respondents, v. YAMHILL COUNTY, Respondent, and Charma Vaage, Petitioner.
• Court: Oregon Court of Appeals

211 P.3d 297

229 Or. App. 188

FRIENDS OF YAMHILL COUNTY, Merilyn Reeves, and Jim Ludwick, Respondents, v. YAMHILL COUNTY, Respondent, and Charma Vaage, Petitioner.

2008196.

A141390.

Court of Appeals of Oregon.

Argued and Submitted May 6, 2009.

Decided June 24, 2009.

Dorothy S. Cofield, Lake Oswego, argued the cause and filed the brief for petitioner.

Marianne Dugan, Eugene, argued the cause and filed the brief for respondents Friends of Yamhill County, Merilyn Reeves, and Jim Ludwick.

No appearance for respondent Yamhill County.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

Petitioner seeks judicial review of a final opinion and order of the Land Use Board of Appeals (LUBA) reversing a Yamhill County decision approving petitioner's application for a forest template dwelling. We affirm.

Petitioner owns a 5.5-acre piece of property in Yamhill County that is zoned commercial forestry. The property is part of what the parties refer to as the "Eagle Point Ranch" subdivision, which consists of 67 tracts of land, each with an average size of approximately five acres. The lots have never received final subdivision approval from the county. Still, the original developer sold the tracts, in violation of the law. See Yamhill County v. Ludwick, 294 Or. 778, 786, 663 P.2d 398 (1983) (holding that the lots were transferred in violation of the relevant statute).

Petitioner applied for a forest template dwelling, that is, she applied for permission to build a dwelling on her tract, in spite of its commercial forestry zoning. ORS 215.750(1)(c) provides that the governing body of a county may approve the construction of a single-family dwelling within a forest zone if, among other things, "[a]ll or part of at least 11 other lots or parcels that existed on January 1, 1993, are within a 160-acre square centered on the center of the subject tract." Petitioner contended that her tract satisfied that requirement. Friends of Yamhill County and two county residents (Friends) objected to the application on the ground that petitioner had not satisfied the statute, because the "parcels" that petitioner was counting to satisfy that statute had not been lawfully created. Petitioner contended that the statute does not require that the parcels have been lawfully created. The county agreed with petitioner and approved the application.

Friends appealed to LUBA, and LUBA reversed. LUBA noted that ORS 215.010(1)(a) expressly defines the term "parcel" for the purposes of ORS chapter 215 to mean a unit of land created

"(A) By partitioning land as defined in ORS 92.010;

"(B) In compliance with all applicable planning, zoning and partitioning ordinances and regulations; or "(C) By deed or land sales contract, if there were no applicable planning, zoning or partitioning ordinances or regulations."

According to LUBA, that statute

"makes clear that when the word `parcel' is used in ORS Chapter 215, it has the meaning given in the statute. The definition makes clear that in order for a unit of land to be a `parcel,' it must have been created in compliance with applicable partitioning laws or created before any partitioning laws were in place. In other words, it must have been `lawfully established.'"

Friends of Yamhill County v. Yamhill County, ___ Or. LUBA ___, ___ (LUBA No. 2008-196, Feb. 6, 2009) (slip op. at 5-6). LUBA noted that the statute does not define the term "lot," but other provisions in the state's land use statutes make clear that the term is synonymous with the term "parcel." Id. at ___ (slip op. at 7-8) (citing ORS 92.010(4) and (6), which define "lot" and "parcel" in nearly identical terms). In this case, LUBA noted, petitioner cannot satisfy the requirements of the statute without counting illegally created lots or parcels. It follows, LUBA concluded, that the county erred in approving the forest template dwelling application. ___ Or. LUBA at ___ (slip op. at 9).

On review, petitioner contends that LUBA erred in "inserting a `legal' lot and parcel requirement for a template dwelling under ORS 215.750(1)(c) when no such threshold requirement is in the template dwelling statute or its applicable legislation." According to petitioner, all that the statute requires is that a certain number of parcels—whether or not lawfully created—existed as of January 1, 1993. Petitioner advances no argument concerning LUBA's construction of the term "lots" as it is used in ORS 215.750(1)(c).

Friends responds that LUBA did not err in construing the forest template dwelling statute. According to Friends, by its very terms, the definition of "parcel" in ORS 215.010(1)—which includes the requirement that the units of land have been lawfully created—applies to that statute.

The parties' contentions present to us an issue of statutory construction, resolved by application of the principles set out in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009), and PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993). That is, we attempt to determine the meaning of the statute most likely intended by the legislature, examining the text in context along with any legislative history offered by the parties and, if necessary, relevant canons of construction. Gaines, 346 Or. at 171-72, 206 P.3d 1042.

We begin with the text of the statute. What is known as the forest template dwelling statute is part of a group of statutes, ORS 215.700 to 215.783, that addresses the extent to which owners of forestland may construct dwellings on that land.

Those statutes authorize, subject to various conditions and approval criteria, the construction of lot-of-record dwellings, ORS 215.705; large-tract dwellings, ORS 215.740; alternative, or "template," dwellings, ORS 215.750; replacement dwellings, ORS 215.755(1); and temporary hardship dwellings, ORS 215.755(2).

At issue in this case is the statute that authorizes the approval of forest template dwellings. That statute, as we have noted, provides that the governing body of a county may approve the construction of a single-family dwelling within a forest zone if, among other things, "[a]ll or part of at least 11 other lots or parcels that existed on January 1, 1993, are within a 160-acre square centered on the center of the subject tract." ORS 215.750(1)(c). (The 160-acre square is regarded as the "template" that is placed over a map of the area to determine whether there are sufficient lots and parcels; hence, the term "template dwelling.") That particular statute does not define what constitutes a "parcel."

ORS 215.010(1) does, however. And it expressly provides that the term "parcel" includes units of land either created by partitioning pursuant to statute, or "[i]n compliance with all applicable planning, zoning and partitioning ordinances and regulations," or by deed or contract, if no such ordinances or regulations were applicable. Moreover, the definition expressly applies to "this chapter," that is, ORS chapter 215.

We note that the statutory definition is phrased in terms of what a "parcel" includes, not what it means. Although petitioner does not make the argument, it could be asserted that the legislature, by merely stating what the term includes, has not foreclosed the courts from determining that it means units of land without regard to whether they were lawfully created. The argument is untenable for at least two reasons, however. To begin with, under the principle of ejusdem generis, when a court confronts the question whether an open-ended statutory list includes something not expressly listed, the court is limited by the common characteristics of those things already in the list. As we explained in Schmidt v. Archdiocese of Portland in Oregon, 218 Or.App. 661, 683, 180 P.3d 160, rev. allowed, 345 Or. 381, 195 P.3d 911 (2008), the rule applies when a statute "sets out a nonexclusive list of activities that the term `includes.' In that circumstance, we construe the statute to refer only to conduct of the same type as the listed activities." In this case, ORS 215.010(1) lists three types of units of land in its definition of "parcel," and each of them is a unit that was created pursuant to applicable law. Units of land not lawfully created are not "the same type as the listed activities." Schmidt, 218 Or.App. at 683, 180 P.3d 160. Aside from that, to construe "parcel" to include units of land not lawfully created renders the definition in ORS 215.010(1) superfluous; if the term includes parcels not lawfully created, then there is no point in the legislature providing that it includes parcels that are lawfully created. See State v. Stamper, 197 Or. App. 413, 418, 106 P.3d 172, rev. den., 339 Or. 230, 119 P.3d 790 (2005) ("As a general rule, we assume that the legislature did not intend any portion of its enactments to be meaningless surplusage.").

Petitioner acknowledges that ORS 215.010(1) purports to define the term "parcel" to include a requirement of lawful creation. She nevertheless insists that the legislature did not intend that definition to apply to ORS 215.750 for essentially three reasons. First, she contends that one of the other forest dwelling statutes, ORS 215.705, expressly requires that the parcel on which the dwelling is to be placed have been "lawfully created." That, she contends, permits the inference that the omission of such a phrase in ORS 215.750 was intentional. Second, she contends that the legislative history demonstrates that the legislature did not intend to require that, to qualify for forest template dwelling purposes, a lot or parcel have been lawfully created. Third, she contends, our own case law confirms her reading of the statute.

We conclude that none of petitioner's arguments is availing. We begin with petitioner's reliance on ORS 215.705. Petitioner is correct that the statute refers to "lawfully created" parcels. Specifically, ORS 215.705(1) provides that a county may allow the construction of a...