Landwatch Lane County v. Lane County

Under ORS 214.213(1)(q), for a dwelling to be replaced when the former dwelling has not been taxed as a dwelling for five years, the only way to satisfy Section 2(2)(b) of 2013 Act is to establish that the dwelling was destroyed within the five year period or was improperly removed from the tax rolls, pursuant to Section 2(3) of the 2013 Act.

The challenged decision approved intervenor’s application for three replacement dwellings on a 101-acre parcel (subject property) zoned exclusive farm use. The central issue on appeal concerns whether intervenor’s application to replace the three dwellings satisfies ORS 215.213 as amended by the 2013 Act.  Not agreeing with the application approval, petitioner subsequently appealed. 

Petitioner argues that the hearings officer’s construction of Section 2(2)(b) of the 2013 Act is inconsistent with the language of the statute, and the rule that implements it. Specifically, petitioner claims the hearings officer improperly construed Section 2(2)(b) of the 2013 Act, and the LCDC rule as it applies to ORS 215.213(1), when the “lessor” period set out in Section 2(2)(b)(A) and (B) is five years, and the only possible conclusion based on the record is that because the dwellings were not assessed as dwellings for the previous five property tax years, the county is required to deny the application. The legislative history does not support the hearings officer’s construction of the statute that dwellings that were constructed in the 1940s, demolished in 1997 and for which property taxes were no longer assessed starting in 1997 and for the following nineteen years could be replaced by application in 2016. These dwellings were not assessed for property taxes for the last five years as required by Section 2(2)(b) of the 2013 Act. LUBA concluded that the County’s decision is prohibited as a matter of law. REVERSED.