Lenn v. Lane County

Under Measure 49, a county must not apply “in a manner that has the effect of prohibiting the establishment of the dwelling, lot or parcel authorized under [Measure 49] unless the standards are reasonably necessary to avoid or abate a nuisance, to protect public health or safety or to carry out federal law.” Or Laws 2007, ch 424, § 11(1).

Petitioners, Ronald and Kathleen Lenn (Lenns), sought review of the county planning commissions (CPC) judgment that LC 15.055(4) exempted the easement between Lenns and Respondent, Bottem, from the generally applicable minimum-width requirement, and which authorized the partition of the home site. On appeal, Petitioners contend that, because Tax Lot 607 was to be reconfigured under the approved partition, the new parcels were not “in [their] present configuration prior to April 28, 2004,” and, therefore, the exemption described in LC 15.055(4) did not apply. Bottem contended that the county’s approval must be upheld under Measure 49. Under Measure 49, a county must not apply “in a manner that has the effect of prohibiting the establishment of the dwelling, lot or parcel authorized under [Measure 49] unless the standards are reasonably necessary to avoid or abate a nuisance, to protect public health or safety or to carry out federal law.” Or Laws 2007, ch 424, § 11(1). In this case, the records included staff reports that supported the Planning Director’s determination that none of the exceptions were applicable. Therefore, Petitioner could not show error in the county’s decision to approve under Measure 49. The Court of Appeals held that the easement would not constitute a nuisance or threat to public health or safety because those reports showed substantial evidence for that determination. Affirmed