Landwatch Lane County v. Lane County

In challenging a development approval that depends upon a prior, unappealed government approval, LUBA will not review arguments that a prior decision was procedurally or substantively incorrect because such a challenge would constitute an impermissible collateral attack on a decision not before LUBA.

Petitioner appeals a county decision approving a forest template dwelling on vacant land zoned impacted forest lands. Under Lane Code (LC) 16.211(5), which implements ORS 217.750(1), the applicant was required to show that the subject property was lawfully created and, based on the productivity of its soils, that all or part of at least eleven other “lots or parcels” that existed on January 1, 1993 fall within a 160-acre square (template area). Determining that the subject property and 12 other units of land within the template area qualified as “parcels,” the county approved the application with conditions. This appeal followed.

At all relevant times, ORS 92.010 and the implementing LC provisions required subdivision approval for divisions of land creating more than three units of land within one calendar year. In 1978, an application to partition the parent parcel into three parcels received final approval. In 1980, applications to partition two of those parcels into six parcels received final approval, creating the subject property. In the first assignment of error, petitioner argues that, because these partitions did not receive the required subdivision approval, they were not lawfully created and the subject property is therefore ineligible for a forest template dwelling. LUBA agrees with petitioner that the subject property was not established pursuant to the appropriate land division procedure. However, in challenging a development approval that depends upon a prior, unappealed government approval, LUBA will not review arguments that a prior decision was procedurally or substantively incorrect because such a challenge would constitute an impermissible collateral attack on a decision not before LUBA. Because the county’s decision to approve the partitions creating the subject property and other parcels is immune from collateral attack in this proceeding, the first assignment of error is denied and the city’s decision is AFFIRMED.