Landwatch Lane County v. Lane County

ORS 215.750(1)(c), the forest template statute, and OAR 660-006-0005(5) do not prohibit an applicant from relying on a January 1, 1993 configuration of a later-reconfigured parcel, in all circumstances, to fulfill the statute’s minimum eleven lot requirement.

     The petitioner appealed a county decision which approved a forest template dwelling. Petitioner first argued that the hearings officer erred in determining that the subject property was lawfully created under Lane Code (LC) 16.211(5)(b). LUBA agreed with the intervenors’ argument that because the owner complied with all applicable partitioning requirements, received approval of his partition application, and recorded the final partition plat, the subject property fell under the definition of “parcel” in LC 16.090, and was lawfully created.

     Petitioner next contended that multiple parcels may not be counted towards the minimum eleven parcel count, as required by ORS 215.750(1)(c), since none of those parcels currently exist in the configuration ‘that existed on January 1, 1993.’ Specifically, petitioner argued that the term “are” in ORS 215.750(1)(c)(A) showed that it was the legislature’s intent to count parcels in the present tense, and that the legislature would have used the term “were” if it intended an applicant to “turn the clock back” and rely on the pre-January 1, 1993 lot configuration. The petitioner also relied on Lane County Development Code’s (LCDC) definition of “date of creation and existence” at OAR 660-006-0005(5) (enacted in response to ORS 215.750).

     LUBA disagreed with petitioner that the statute’s use of the word “are” prohibited the applicant from relying on the January 1, 1993 configuration.  LUBA further determined that the administrative rule history of OAR 660-006-0005(5) showed the purpose of adopting the rule was to create an approach that allows “an applicant to rely on the January 1, 1993 configuration of a parcel that was later adjusted by a property line adjustment,” for parcel counting purposes, so long as “‘the effect of’ that properly line adjustment was not ‘to qualify a lot, parcel or tract for the sitting of a dwelling.’” AFFIRMED.