Jenkinson v. Lane Co.

"Increasing the breadth, or scope, of the county’s delegated authority is not the same as adding more stringent approval standards for land divisions over which the county had been delegated authority to regulate."

Appellants appealed denial of their application for legal lot verification (LLV) of two adjoining lots in Lane County. The county planning director denied verification of the lots as lawfully established land because, in 1961, the previous lot owners did not get approval from the county before dividing the property into four or more lots although required to do so by county ordinance. The county hearings official found that the denial was valid as “the legislature *** expressly authorize[d] counties to impose more restrictive regulations than those set forth in statute.” LUBA affirmed the county hearing official’s decision. On appeal, Appellants argued that the 1961 law did not require county approval before subsidizing real property into four lots, each at least five acres in size. The Court agreed with Appellant’s argument. The law pertaining to subdivision of land in 1961 included ORS 92.010 to 92.990 and LCSO No. 3. State law defined “subdivide land” as: “a parcel of land into four or more parcels of less than five acres each for the purpose of transfer of ownership or building development, whether immediate or future when such parcel exists as a unit or contiguous units under a single ownership as shown on the tax roll for the year preceding the partitioning” ORS 92.010(2) (1961). Lane County’s definition of “subdivide land” did not include time or size limitations. Under the ordinance, to subdivide land was “to partition, plat, or subdivide land into four or more lots, blocks, or tracts … for other than agricultural purposes.” LCSO No.3, § 2. ORS 92.044(1) (1961) granted authority to the county to regulate the division of land, and to do so “more stringently than state law.” However, the Court held that, by regulating land partitions beyond the limitations set by state statute, the county had increased the scope of its authority beyond applying stringent approval standards. Furthermore, the Court found that the land division which occurred in 1961 did not result in lot sizes of more than five acres. Accordingly, Appellant’s predecessor in interest was not required to obtain county approval and “it was unlawful in substance for LUBA to conclude otherwise.” Reversed and remanded.