Woodward v. Jackson County

Pursuant to ORS 195.318(1), a local government's application of certain local land use regulations to approve a subdivision or partition of property or the establishment of one or more dwellings on a property under sections 5 to 11 of Ballot Measure 49 (2007) is not a "land use decision" as defined at ORS 197.015(10)(a)(A), and where a local government makes such a determination LUBA will lack jurisdiction to hear appeals thereof.

In two consolidated appeals, Jeffrey Woodward (Woodward) appealed the county’s approval of (1) an application to partition the subject property into three parcels and (2) a hearings officer’s decision approving a variance to private road standards. David Tourzan (Tourzan), the applicant below, intervened on the side of the county. Tourzan’s property is approximately 75 acres and is zoned Exclusive Farm Use (EFU), and is accessed from Highway 238 via South Quail Run Road, an existing private road. A 2009 Department of Land Conservation and Development (DLCD) final order pursuant to section 6 of Measure 49 authorized three dwellings on the property but required that each dwelling be located on a separate lot or parcel. Following the DLCD’s final order, Tourzan applied to the county for the partition and variance and received approval. Woodward thereafter appealed to LUBA.

ORS 195.318(1) provides that a local government determination under sections 5 to 11 of Measure 49 is not a “land use decision” under ORS 197.015(10)(a)(A). Upon its receipt of Woodward’s petition for review, LUBA requested argument from the parties as to whether ORS 195.318(1) deprived LUBA of jurisdiction over the appeals. Woodward acknowledged that ORS 195.318(1) may deprive LUBA of jurisdiction over the partition decision, but argued that the variance decision was independent of the partition decision. Tourzan argued that refusing to grant the requested variance to the road access standards would require the county to deny the requested partition authorized by the DLCD final order (essentially, that the two decisions were inextricably intertwined), and that therefore section 11 of Measure 49 excluded the variance decision from LUBA’s jurisdiction. LUBA agreed with Tourzan that the county reviewed the partition and variance application under the authority of section 11 of Measure 49, and then granted Woodward’s precautionary motion to transfer to circuit court. TRANSFERRED.