Vannett Properties LLC v. Lane County

A decision regarding “the establishment of a dwelling” authorized under section 6 of Measure 49, or a determination of whether a petitioner has a right to construct a Measure 49 dwelling made “under” sections 6 and 11 of Measure 49, is not a land use decision and is therefore not subject to LUBA’s jurisdiction.

Petitioner appeals a county decision denying its application to site a dwelling on property zoned exclusive farm use. The subject property is comprised of approximately 42.6 acres and is vacant. In 2006, intervenors filed Measure 37 claims for property including 15 existing lots or parcels and one existing dwelling. After the passage of Measure 49, intervenor elected supplemental review of its claims under section 6 of Measure 49, which allowed the Department of Land Conservation and Development (DLCD) to authorize up to three home site approvals to qualified claimants. DLCD authorized one existing dwelling and two additional home sites on separate lots or parcels on intervenors’ property. Intervenors sold the subject property to petitioner’s predecessor in interest. Petitioner filed a request for planning director approval for a Measure 49 dwelling. The planning director denied the request. Petitioner appealed the planning director’s decision, which was affirmed by the county hearings official and the board of county commissioners. This appeal followed.

In its sole assignment of error, petitioner argues the county erred in denying its Measure 49 dwelling siting request because intervenors’ Measure 49 dwelling authorization was transferred to petitioner with the subject property. On its own motion, LUBA suspended the appeal to determine whether it had jurisdiction. Measure 49, section 16, now codified as ORS 195.318(1), provides that a determination by a public entity under Measure 49, sections 5 to 11, is not a land use decision and is therefore not subject to LUBA’s jurisdiction. Petitioner argues LUBA has jurisdiction notwithstanding ORS 195.318(1), however, because the county’s decision was not based on “clearly enumerated standards within Sections 5 through 11 of Measure 49,” and because it was made pursuant to siting criteria in Lane Code (LC) 16.212(10) and LC 16.245. LUBA rejects both arguments since, although the challenged decision lists those provisions as applicable criteria, it did not apply those standards because it determined petitioner had not established any right to construct a Measure 49 dwelling. LUBA states the challenged decision is a decision regarding “the establishment of a dwelling” authorized under section 6 of Measure 49 and is a determination of whether petitioner has a right to construct a Measure 49 dwelling made “under” sections 6 and 11 of Measure 49. The challenged decision is therefore not a land use decision subject to LUBA’s jurisdiction and the appeal is TRANSFERRED.