Lenahan v. Wallowa County

Subsection (3)(a) of section 11 of Measure 49 provides that a new lot or parcel on resource land may not exceed two acres if the lot or parcel is located on high-value farmland, and, pursuant to ORS 195.318(1), a determination by a public entity under sections 5 to 11 of Measure 49 is not a “land use decision” as defined in ORS 197.015(1)(a)(A).

Petitioner John Lenahan (Lenahan) appealed a Wallowa County decision approving an application to partition a 150-acre parcel of land zoned exclusive farm use (EFU). The parcel is adjacent to Airport Road, and has an existing dwelling thereupon. In 2014, Hayes Family Ranch, LLC (intervenor-respondent) applied to partition the subject property into three parcels. The application proposed a 146-acre parcel containing the existing dwelling, and two additional, adjacent parcels of approximately 15-acres each on the southern portion of the property. Lenahan argued that the additional parcels should be located elsewhere on the property. The county approved the application and this appeal followed.
Lenahan argued that the precedent set in Maguire v. Clackamas County, 250 Or App 146 (2012), was incorrect because the court failed to consider all of the relevant context provided by other sections of Measure 49, and the court failed to consider that the legislature did not amend ORS 197.015(10)(b) (the applicable statute in Maguire. LUBA rejected this argument and noted that the argument could not cite any authority that required the legislature to “harmonize and amend all prior legislation that is affected by newly enacted legislation.” Lenahan also argued that the county applied the procedural requirements of the Wallowa County Development Ordinance (WCDO) and therefore approved the partition application “under” the WCDO, and not under section 11 of Measure 49. LUBA noted the similar argument made in Maguire and rejected the argument. LUBA held that the county’s partition approval decision was ultimately made in consideration of section 11, and therefore, pursuant to ORS 195.318(1), the challenged decision was not a “land use decision” subject to LUBA's jurisdiction. Lenahan additionally filed a precautionary motion to transfer to circuit court if LUBA determined that it did not have jurisdiction, and LUBA granted that motion. TRANSFERRED.