McNichols v. City of Canby

Generally, a final and authoritative determination regarding the intent and scope of deeds, easements, and similar real estate documents can be obtained only in circuit court.

Petitioner appeals a city decision approving a 22-lot subdivision. The subject property is zoned Low Density Residential (R-1) and has a single access point. The Canby Municipal Code (CMC) limits residential density on land served by a single access point, but CMC 16.46.010.F provides an exemption for certain streets as long as legally binding alternative emergency vehicle access is available. The subject property is bordered on its northeastern side by a city-owned logging road. The city acquired the logging road in 2002 using state and federal funds that were conditioned on the city granting a conservation easement to the Oregon Department of Fish and Wildlife (ODFW). The easement prohibits use of the logging road unless expressly permitted by the easement or as approved in writing by ODFW. In order to avoid the CMC’s residential density limitations, intervenor proposed providing emergency vehicle access via the logging road. Concluding that the proposal is permitted under the terms of the easement and, in the alternative, finding that the use could be allowed with ODFW’s express written consent, the city approved intervenor’s subdivision application with the condition that intervenor comply with the terms of the easement.

In its first through fourth assignments of error, petitioner argues the city misinterpreted the easement. Specifically, petitioner argues the easement authorizes emergency access only to protect land within the conservation area, not adjoining land, and therefore the city’s only option to demonstrate compliance with CMC 16.46.010.F is to expressly require intervenor to obtain ODFW’s consent. Generally, a final and authoritative determination regarding the intent and scope of deeds, easements, and similar real estate documents can be obtained only in circuit court. Assuming without deciding that petitioner’s interpretation is correct, however, LUBA still disagrees with petitioner. While the condition imposed by the city does not explicitly require intervenor to negotiate with ODFW, it is framed as an alternative under the assumption that the easement does not authorize emergency access for the subject property and is reasonably understood as a directive to intervenor to obtain ODFW’s consent. These assignments of error are therefore denied and the city’s decision is AFFIRMED.