Balsly v. Benton County

When a local government interprets the provisions of its land use development code and exercises legal judgment, the decision does not fall within ORS 197.015(10)(b)(A).

Petitioner Balsly appealed the county’s decision granting the approval to intervenor (McDougal Brothers) of four applications to adjust property lines of five properties that were zoned as Rural Residential – 5-acre minimum (RR-5). Four of the lots were created as part of the Henshaw Orchards Subdivision and were platted in 1911. When the county approved the four applications, it did not provide notice of the decision to either party, including Balsly, who owns property adjacent to one of the lots.

The county applied Benton County Development Code (DC) Chapter 94 to the applications. McDougal Brothers first argued that the decision was subject to exclusion from LUBA’s jurisdiction under ORS 197.105(10)(b)(A) for decisions “made under land use standards that do not require interpretation or the exercise of policy or legal judgment.” McDougal Brothers claimed that the standards that apply to a property line adjustment in DC Chapter 94 do not require the county to exercise policy or legal judgment in approving or denying an application. The petitioner argued that since the county interpreted the DC, exercised legal judgment, and determined the applications could be approved as property line adjustments versus a replat, the ministerial exception in ORS 197.105(10)(b)(A) did not apply. LUBA agreed with Balsly, finding the county interpreted DC Chapter 94 and DC Chapter 97, and in doing so, selectively applied the provisions to the applications.

Balsly assigned four aspects of the decision as error. McDougal Brothers asked LUBA that, if it determines that the county decision is not subject to the ORS 197.105(10)(b)(A), it remand the decision so the county could comply with notice and hearing provisions outlined in ORS 215.416(3) and (11). LUBA found the record was exceedingly sparse and therefore it could not decide the issue on the merits. REMANDED.