Landwatch Lane Cnty. v. Lane Cnty.
| Decision Date | 10 May 2021 |
| Docket Number | LUBA No. 2021-010 |
| Parties | LANDWATCH LANE COUNTY, Petitioner, v. LANE COUNTY, Respondent. |
| Court | Oregon Land Use Board of Appeals |
FINAL OPINION AND ORDER
Appeal from Lane County.
Sean T. Malone filed the petition for review and reply brief and argued on behalf of petitioner.
H. Andrew Clark filed the response brief and argued on behalf of respondent.
ZAMUDIO, Board Member; RUDD, Board Chair; RYAN, Board Member, participated in the decision.
You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Opinion by Zamudio.
Petitioner appeals a hearings officer decision verifying as a legal lot a unit of land created by deed in 1951.
In 1943, the Culwells acquired a 120-acre parcel (the parent parcel). At that time, no state or county legislation regulated land divisions in that area of the county. In 1947, the state legislature authorized counties to regulate "the subdivision of land," including by requiring planning commission approval to subdivide land and proscribing subdivisions by deed. Or Laws 1947, ch 537, § 7. That law defines the phrase "subdivide land" to mean "partition, plat or subdivide land into four or more lots, blocks or tracts." Id.
In 1949, the county adopted Ordinance No. 3 to implement Oregon Laws 1947, chapter 537, section 7. Ordinance No. 3 requires planning commission approval to subdivide land, proscribes subdivisions by deed, and includes the same statutory definition of "subdivide land" quoted above.1
Over the course of a little over a year, starting in 1950, the Culwells divided and conveyed the parent parcel via a series of deeds. On September 5, 1950, the Culwells deeded a small portion of the parent parcel to adjoining landowners, the Burnetts, and on the same day deeded a different small portion of the parent parcel to other adjoining landowners, the Wooleys. In the record, those lands conveyed are designated as Parcels A and B.2
On October 25, 1950, the Culwells conveyed the northern half the remaining parent parcel to Pierson, with the exception of a small sliver of land that was separated from the rest of the remaining parent parcel by a road. The land conveyed to Pierson is designated in the record as Parcel 1. The small sliver of land is designated as Parcel C. The southern half of the remaining parent parcel, which remained in the Culwells' ownership, is designated as Parcel 2 in the record.
On July 25, 1951, the Culwells conveyed most of Parcel 2 to the Wagners, with the exception of a small rectangular area at the western edge of Parcel 2. At approximately the same time, the Culwells deeded that small rectangular parcel to Weeks. The Weeks parcel is the subject property at issue in this appeal.
Subsequently, sometime in the fall of 1951, the Culwells deeded Parcel C, the small sliver of land, to adjoining landowners, the Lileses.
On March 30, 2020, the current owner of the subject property applied to the county to verify the subject property as a legal lot, or "lawfully established unit of land," pursuant to Lane Code (LC) 13.140. A "lawfully established unit of land" includes a unit of land created (1) "[i]n compliance with all applicable planning, zoning and subdivision or partition ordinances and regulations, or" (2) "[b]y deed or land sales contract, if there were no applicable planning, zoning or subdivision or partition ordinances or regulations." LC 13.030(3)(n)(ii)(aa), (bb) (implementing and adopting verbatim ORS 92.010(3)(a)(B)).
The county planning director concluded that the July 1951 creation of the subject property was not part of a "subdivision" under the county's 1949 Ordinance No. 3, and that no other subdivision or partition regulations applied in July 1951. Accordingly, the planning director verified the subject property as a lawfully established unit of land, pursuant to LC 13.030(3)(n)(ii)(bb).
Petitioner appealed the planning director's decision to the hearings officer, arguing in relevant part that the series of transactions from 1950 to 1951 cumulatively constituted a "subdivision" within the meaning of Ordinance No. 3. Because Ordinance No. 3 requires planning commission approval to subdivide land and, because the Culwells received no planning commission approval, petitioner argued that the subject property was not created in compliance with Ordinance No. 3.
The hearings officer rejected that argument, noting that neither Oregon Laws 1947, chapter 537, section 7, nor Ordinance No. 3 included any temporal limitation, such as that found in the currently applicable statute and county subdivision ordinance, which both define "subdivide land" as the creation of "four or more lots within a calendar year." ORS 92.010(16); LC 13.030(3)(jj). Accordingly, the hearings officer verified the subject property as a legal lot.
This appeal followed.
Petitioner argues that the hearings officer misconstrued Ordinance No. 3 and interpreted that ordinance in a manner that is inconsistent with its express language and purpose. Petitioner couches our standard of review in the framework set out in ORS 197.829 (). However, as the county correctly observes, ORS 197.829 provides a deferential standard of review most appropriately applied to a governing body interpretation of local land use legislation, not a hearings officer interpretation. See Gould v. Deschutes County, 233 Or App 623, 629, 227 P3d 758 (2010) ().
In addition, and more to the point, the local regulation at issue here directly implements state statute. Therefore, even if the county governing body had rendered the challenged interpretation, no deferential standard of review would apply. ORS 197.829(1)(d). In the present case, we directly interpret that state statute. Under these circumstances, the appropriate standard of review is whether the interpretation is legally correct, applying the general rules of statutory construction set out at ORS 174.010 and in cases such as State v. Gaines, 346 Or 160, 206 P3d 1042 (2009), and PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). These cases generally require a multi-step process evaluating first text and context, then legislative history and, if necessary, applicable canons of statutory construction.
According to petitioner, the hearings officer narrowly interpreted the Ordinance No. 3 definition of "subdivide land" to include only proposals to divide land into four or more lots at the same time. Petitioner argues that that interpretation inserts a limitation into the scope of Ordinance No. 3 that is not present in the text. Further, petitioner argues that the hearings officer's narrow interpretation of Ordinance No. 3 is inconsistent with its purpose, which petitioner argues is to regulate land divisions creating four or more units of land. Petitioner contends that, under the hearings officer's interpretation, Ordinance No. 3 is rendered largely meaningless because a subdivider can create large land divisions while completely avoiding the requirements of the law by engaging in an unlimited series of divisions by deed.
In its petition for review, petitioner no longer argues for interpreting Ordinance No. 3 to include an implicit temporal limitation, which would treat as a "subdivision" the sequential creation of four or more new units of land within a year or similar period. Instead, petitioner argues for a different interpretation, one that was also presented below but that was not addressed by the hearings officer—that Ordinance No. 3 prohibits creating a total of four or more units of land without planning commission approval, regardless of when or over what period those units of land are created. Petitioner argues that this interpretation, unlike the implied "within the calendar year" limitation primarily argued below and the hearings officer's implied "at one time" interpretation, does not require inserting new language into the text of Ordinance No. 3. See ORS 174.010 ().
Petitioner's proffered interpretation is considerably more restrictive than the current requirements under LC chapter 13 and ORS chapter 92. Under petitioner's interpretation, a landowner would violate Ordinance No. 3 if they divided their land by deed, creating one new parcel each time, four or more times over an unlimited period—for example, once every 10 years for 40 years. Under petitioner's proffered interpretation, the fourth land division in year 40 would trigger the requirement for planning commission review and approval for all four land divisions as a single "subdivision." That approach is highly problematic and almost certainly not what the county contemplated when adopting Ordinance No. 3 or what the legislature contemplated in adopting Oregon Laws 1947, chapter 537, section 7.3
As the hearings officer noted, in the same 1947 legislative session in which the legislature adopted Oregon Laws 1947, chapter 537, section 7, via House Bill (HB) 418 (1947), it also adopted Oregon Laws 1947, chapter 346, section 1, via HB 331 (1947), which provides a definition of "subdivide land" applicable to cities.4 Unlike HB 418, which applies to counties, the legislature chose in HB 331 to address, within cities, the potential loophole for a series of divisions by deed by specifying that its regulations applied to the division of land as "shown on the last preceding tax roll." (Emphasis added.) That language applies a temporal limit by which to measure whether multiple divisions of land within cities "subdivide land," and it effectively limits the potential for property owners to end-run city subdivision regulations by recording a series of divisions by deed. Notably, the...
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