Landwatch Lane County v. Lane County

While the unlawfulness of a parent parcel does not taint a parcel that was subsequently created lawfully, it is unclear whether a remainder parcel of an approved subdivision can be considered to have received county approval for purposes of legal verification.

Petitioner appeals a hearings officer’s decision verifying four parcels as legal lots. Intervenor applied to the county to verify six parcels as legal lots pursuant to Lane Code (LC) 13.020 and LC 16.090. The hearing’s officer verified four of the six parcels as legal lots, concluding that they were lawful remainder parcels. Petitioner appealed the decision to the board of commissioners, which affirmed the hearings officer’s decision as the county’s final decision. This appeal followed.

The then-applicable subdivision ordinance required county approval unless the division was for “use for agricultural purposes” and each resulting lot had at least 300 feet of street frontage, among other things. In the first assignment of error, petitioner argues the hearings officer erred in verifying one of the four parcels as a legal lot because not all of the lots resulting from its conveyance had at least 300 feet of street frontage and because the hearings officer’s findings do not address whether the conveyance divided the land for agricultural purposes. Intervenor does not respond to petitioner’s argument regarding the street frontage requirement and responds that petitioner’s argument regarding the agricultural purposes requirement was not raised below. LUBA agrees with petitioner that the agricultural purposes requirement was sufficiently raised below and that remand is necessary for the hearings officer to reconsider whether the relevant parcel fell within the exception to the requirement to obtain county approval. The first assignment of error is therefore sustained, in part.

In the third assignment of error, petitioner argues the hearings officer erred in verifying another one of the four parcels as a legal lot because the creation of its parent parcel was unlawful. Intervenor responds that any errors that might have stemmed from the conveyance creating the parent parcels were subsequently cured by county approval of a subsequent subdivision of the parent parcel. While LUBA agrees with intervenor that the unlawfulness of a parent parcel does not taint a parcel that was subsequently created lawfully, the relevant parcel here was merely a remainder of the approved subdivision. On remand, the hearings officer should determine whether a remainder of an approved subdivision can be considered to have received county approval for purposes of legal verification. The third assignment of error is therefore sustained and the county’s decision is REMANDED.