Yamhill County v. Ludwick

• Jurisdiction: Oregon
• Parties: YAMHILL COUNTY, Respondent on Review, v. James H. LUDWICK and Clay W. Moorhead, Petitioners on Review. 80-154, 80-155; CA A21985; SC 28828.
• Citation: 294 Or. 778,663 P.2d 398
• Docket Number: Nos. LUBA,s. LUBA
• Court: Oregon Supreme Court
• Decision Date: 03 May 1983

Page 398

663 P.2d 398

294 Or. 778

YAMHILL COUNTY, Respondent on Review, v.James H. LUDWICK and Clay W. Moorhead, Petitioners on Review.

Nos. LUBA 80-154, 80-155; CA A21985; SC 28828.

Supreme Court of Oregon.

Argued and Submitted Dec. 2, 1982.

Decided May 3, 1983.

[294 Or. 779] Robert L. Liberty, Portland, argued the cause and filed the brief for petitioners.

Daryl S. Garrettson, McMinnville, argued the cause and filed the brief for respondent.

Before LENT, C.J., and LINDE, PETERSON, CAMPBELL, ROBERTS and CARSON, JJ.

CAMPBELL, Justice.

These consolidated cases¹ involve conditional use permits and variances granted by Yamhill County to Doug Ingram, the owner of a 4.7 acre tract, and to William Long, the owner of a five acre tract.The permits and variances would allow the owners to construct single family dwellings on the tracts in the area which was designated in the acknowledged Yamhill County Comprehensive Plan as commercial forest and zoned F-40 (Forest 40 acre minimum).

Ludwick and Moorhead, the petitioners on review here, are members of a neighboring homeowners association which maintains a public road that provides the only access to the tracts in question.They appealed the decisions of the Yamhill County Commissioners to the Land Use Board of Appeals(LUBA) which held that the county's decisions were in error.The county then appealed to the Court of Appeals, 57 Or.App. 764, 646 P.2d 1349, which reversed LUBA's order.

We granted Ludwick and Moorhead's petition for review and find it necessary to consider only two issues: (1) was LUBA's determination that Ludwick and Moorhead had standing to appeal supported by substantial evidence, and (2) Are the Ingram and Long tracts "existing legal lots of record" as that term is used in the county ordinance so as to qualify them for conditional use permits?We find that Ludwick and Moorhead had standing to appeal and that the Ingram and Long tracts were not "existing legal lots of record."Therefore we reverse the Court of Appeals.Because of this result we do not reach a third issue of whether Yamhill County violated its ordinance standards in granting a variance reducing the required minimum lot size.

In the late 1960's and early 1970's, a land developer by the name of Hemstreet attempted to plat, subdivide or partition, ² and sell lots or tracts in an area of Yamhill County which is approximately six miles west of McMinnville.He was only partly successful, but the tracks that he left are still haunting everyone currently involved with the area.

The area in which the Ingram and Long tracts are located has become known as the "Eagle Point Ranch."The subdivision or partition plan submitted by Hemstreet in 1969 for the area including the Ingram tract was not approved by Yamhill County because of "lack of access."The plan submitted for the area including the Long tract was approved in 1970"upon condition that provisions be made * * * for upgrading of roads."Even though the one subdivision was not approved and the roads were not upgraded in the other, the developer continued to sell numerous tracts including sales to Ingram's and Long's predecessors in interest.³Virtually all the tracts were sold by 1972.

Adjoining the Eagle Point Ranch to the east is an approved subdivision which has become known as the Meadow View Estates.⁴Hemstreet also developed the Meadow View Estates and it was approved by Yamhill County in 1972.The public road that runs through the Meadow View Estates for a distance of one mile is the only access to the Eagle Point Ranch.(See Appendix A.)The Meadow View Estates has a separate homeowners association.Ludwick and Moorhead are members of that association.⁵In the 1970's, Yamhill County issued to the various owners of tracts in the Eagle Point Ranch building and septic tank permits.William Long, whose tract is in question here, received a permit and installed a septic tank in 1977.

The Eagle Point Ranch was first zoned in February, 1976 as AF-20 (Agriculture/Forestry-20 acre minimum parcel size).Through the exception process, it was rezoned in April, 1980 to F-40 (Forestry-40 acre minimum parcel size).⁶The Meadow View Estates was zoned VLDR-5 (Very Low Density Residential--maximum residential density of one dwelling unit per five acres).

The Yamhill County zoning ordinance for a F-40 zone provides for a minimum lot size of 40 acres and allows a single family dwelling only as a conditional use.In May and June, 1980, Ingram and Long, respectively, applied to the County Planning Commission for conditional use permits to allow the construction of single family dwellings and variances to reduce the minimum lot size to 4.7 acres and 5 acres.The Planning Commission approved the applications and the Meadow View Estates Homeowners Association appealed to the Yamhill County Commissioners.

Ingram and Long took the position before the County Commissioners that it was necessary to have the conditional use permits and the variances to make any beneficial use of their property.They pointed out that on one hand the primary permitted use under the zoning ordinance was commercial forestry while on the other hand the covenants running with their land prevented the cutting of trees above six inches in diameter.This reduced them to paying taxes for the privilege of looking at and walking upon their land.Long testified that he had been denied a timber tax deferral.He also complained that the county had taken inconsistent positions by first allowing him a septic tank permit and then zoning the property as commercial forest.Ingram testified that in his opinion, 95 percent of the timber on his tract was oak and that he could not cut it to replant the land to fir because of the restrictive covenant.

Although the Meadow View Homeowners Association claims that the Ingram and Long applications do not meet the requirements of the county's ordinances for conditional use permits and variances, its basic premise is a concern for the probable increased use of the public road that runs through its subdivision to the Eagle Point Ranch.The homeowners association claims that if the permits are issued to Ingram and Long, then the door is open and a precedent is set for the owners of the other 65 tracts in the Eagle Point Ranch to apply for similar permits.⁷The net effect would be to overburden the road which, although public, has been privately maintained by the Meadow View people.The homeowners association also contends that in effect the county is rezoning the Eagle Point Ranch without going through a rezoning procedure.

The Planning Department of Yamhill County reported to the commissioners that its chief concerns with the Eagle Point Ranch were the roads, boundaries of the individual tracts, and structures that had been previously built without permits.A report from the office engineer of the county road department dated in June, 1980 says that the road system is in extremely poor condition and does "not even meet the emergency vehicle standards for private roads."The report further states:

"The roads as shown in our Assessor's map do not agree with their location on the ground.One narrow pathway designated a hiking and horse path is actually a roadway and some roads shown have never been opened at all due to extremely adverse grades."

The report concludes that the lot lines are extremely difficult to locate and that a complete resurvey of the entire development should be made.

On October 8, 1980, the Yamhill County Commissioners issued conditional use permits and variances to Ingram and Long to allow the construction of single family dwellings on their respective tracts upon conditions not relevant to this review.

Ludwick and Moorhead appealed the Yamhill County Commissioner's orders to LUBA.The appeals were consolidated by LUBA.Yamhill County moved to dismiss the appeals on the grounds that Ludwick and Moorhead lacked standing because they were not adversely "affected or aggrieved" as a result of the county's decisions.After an evidentiary hearing, LUBA denied the motion.The battle before LUBA continued except that for practical purposes the contestants in the ring were different--Ludwick and Moorhead had replaced the Meadow View Homeowners Association and Yamhill County had replaced Ingram and Long.

LUBA found that the county's decisions were in error because it was not shown by substantial evidence that the tracts were "existing legal lots of record"--a condition required by ordinance to the granting of a conditional use permit.⁸It was the county's turn to appeal and it did so to the Court of Appeals.

The Court of Appeals reversed LUBA.It found that the phrase in the ordinance "existing legal lot of record" refers to a legally recorded conveyance of a sub-size parcel which existed prior to the creation of the F-40 zone and does not "affect the status of an innocent purchaser's interest in property."

Ludwick and Moorhead in their petition for review in this court alleged that the Court of Appeals erroneously determined that lots from illegally created subdivisions are "legal lots of record" once they are recorded and conveyed.

Before considering the issue raised by the petition for reviewwe must address the standing issue.

Yamhill County moved to dismiss Ludwick and Moorhead's appeal to LUBA for lack of standing.After an evidentiary hearing, LUBA denied the motion.On appeal to the Court of Appeals, Yamhill County alleged as one of its assignments of error that LUBA's determination that Ludwick and Moorhead had standing was not supported by substantial evidence.Because of the result reached by the Court of Appeals, it did not consider the assignment of error.As our result is different, we must consider the assignment.

Yamhill County questioned Ludwick and Moorhead's standing to appeal to LUBA on the sole grounds that they were not persons whose interests were adversely affected or who were...