Friends of Douglas County v. Douglas County

A decision approving a boundary line adjustment to a parcel under applicable standards does not “collaterally attack” the decisions that created the parcel under different standards, even if the adjusted parcel would not comply with those different standards.

Petitioners appeal a county decision approving a boundary line adjustment. In July 2017, the county approved a land partition to divide the subject property into two parcels zoned for exclusive farm use. The county approved a nonfarm dwelling on one of these parcels based on a finding that the parcel was “generally unsuitable” for farm use. Later, the owners of the subject property applied to adjust the boundary line between the two parcels to expand the nonfarm dwelling parcel. The county processed the application as a “ministerial” action under the Douglas County Land Use Ordinance (LDO), which required neither notice nor opportunity to comment, rather than an “administrative” action, which would have provided those things. The county approved the boundary line adjustment. This appeal followed.

            In their first subassignment of error, petitioners argue that the county erred in processing the application as a ministerial action. Petitioners argue that ministerial actions are limited to those that do not require interpretation, the exercise of legal judgment, or discretion, and that, because the boundary line adjustment at issue here does require those things, the application should have been processed as an administrative action. LUBA disagrees with petitioners. While ORS 197.015 describes “land use decisions,” and excludes from that definition those local government decisions that “do not require interpretation or the exercise of policy or legal judgment,” there is no evidence that the distinction between ministerial and administrative actions under the LDO is meant to track distinctions under ORS 197.015. Petitioners’ first subassignment of error is therefore denied. In their second subassignment of error, petitioners argue that the county failed to address the applicability of certain LDO standards pertaining to boundary line adjustments in “Designated Resource Areas” in reaching its decision. LUBA agrees with petitioners that remand is necessary for the county to address this question. Petitioners’ first assignment of error is therefore sustained, in part.

            In their second assignment of error, petitioners argue that the county’s decision is an impermissible “collateral attack” on its original partition and nonfarm dwelling approval decisions, and that the county must evaluate whether the adjusted parcel continues to qualify as “generally unsuitable” for farm use. LUBA disagrees with petitioners. There is no evidence that partition or nonfarm dwelling approval standards also apply to boundary line adjustments. Thus, a decision approving a boundary line adjustment to a parcel under applicable standards does not “collaterally attack” the decisions that createdthe parcel under different standards, even if the adjusted parcel would not comply with those different standards. Petitioners’ second assignment of error is therefore denied and the county’s decision is REMANDED.