Central Oregon Landwatch v. Crook County

Under OAR 660-033-0020(4), when a lot, parcel or tract is reconfigured to qualify the land for the siting of a dwelling, the date of the reconfiguration is the date of creation or existence, and “reconfiguration” means any change in the boundary of the lot; therefore, a property line adjustment made after January 1, 1993 means that the land does not qualify as a parcel for purposes of ORS 215.824(2)(c) and OAR 660-033-0020(4).

     Intervenor submitted an application for approval of a nonfarm dwelling to the planning division. The division’s approval included a condition that required the four tax lots comprising the property to be combined prior to issuance of a building permit development. Petitioner appealed the planning commission decision, and before the County Court’s hearing, intervenor submitted an application to combine the tax lots. That application was approved. The County Court held a hearing on petitioner’s appeal of the planning commission decision, but denied and affirmed the planning commission’s determination. Petitioner appeals.

     In his first assignment of error, petitioner argues that although the parcel’s designated tax lots were created before January 1, 1993, the property line adjustment on August 5, 2016, establishes a new date of creation; therefore, the 20-acre parcel was not created before January 1, 1993, and the application does not comply with ORS 215.284(2)(c). Respondent argues that combining the tax lots is not a reconfiguration as defined in OAR 660-033-0020(4). LUBA disagreed with respondent, stating that OAR 660-033-0020(4) contains language that reconfiguration means any change in the boundary of the lot. LUBA agreed with petitioner that the date of creation of the 20-acre parcel was after January 1, 1993, and therefore the parcel where the nonfarm dwelling was to be sited does not qualify as a parcel created before January 1, 1993, for purposes of ORS 215.284(2)(c) and OAR 660-033-0020(4).

     LUBA further deemed that the county’s decision of a density limit to distinguish between farm and nonfarm dwellings, when counting existing and potential dwellings, inserted a distinction that had no textual support. LUBA determined that the county adopted an interpretation that was inconsistent with the express language of the density limit, and the interpretation is not entitled deference under Siporen and ORS 197.829(1)(a). REVERSED.