Bielefeld v. Lane County

(1) The pertinent date for determining local jurisdictional issues is the date of the final decision. (2) Under ORS 215.740(4)(d), even if an approved site plan for a replacement dwelling shows that it will be constructed on a different tract, if the original dwelling is sited on the subject property and the building permit for the replacement dwelling limits its construction to the footprint of the original dwelling, a forest template dwelling cannot be approved on the subject property.

In April 2018, intervenor applied to establish a forest template dwelling on property zoned Impacted Forest Lands (F-2). In July 2018, the county adopted an ordinance making local appeal submission requirements jurisdictional. The planning director approved the application and, in September 2018, petitioners filed a local appeal to the hearings officer. Because petitioners did not comply with all local appeal submission requirements, the hearings officer dismissed the appeal for lack of jurisdiction under the ordinance. In the alternative, the hearings officer approved the application on the merits. Petitioners appealed the hearings officer’s decisions to the board of commissioners. In January 2019, LUBA issued a decision in another case remanding the ordinance on which the hearings officer relied. In February 2019, the board of commissioners adopted the hearings officer’s decision as its own. This appeal followed.

In the first assignment of error, petitioners argue the hearings officer erred by dismissing petitioners’ September 2018 local appeal. Because the pertinent date for determining local jurisdictional issues is the date of the final decision—here the board of commissioners’ February 2019 decision—and because the ordinance was no longer effective on that date due to LUBA’s January 2019 decision, LUBA agrees with petitioners that the hearings officer and, by extension, the board of commissioners erred in relying on the ordinance to dismiss the local appeal. The first assignment of error is therefore sustained.

Under ORS 215.750(4)(d), the county cannot approve a forest template dwelling if the tract on which the dwelling will be sited already includes a dwelling. In 2017, the county approved an application to replace a dwelling on a tax lot adjacent to the subject property. The county’s decision approved a replacement dwelling “in the same footprint as the original home.” Before the hearings officer, petitioner pointed to evidence indicating that the footprint of the original home was actually on the subject property, not the adjacent tax lot. In turn, because the subject property already includes a dwelling, petitioners argued the county could not approve a forest template dwelling under ORS 215.740(4)(d). Because the site plan for the proposed replacement dwelling showed that it would be located on the adjacent tax lot, the hearings officer concluded that the subject property did not include a dwelling under ORS 215.740(4)(d).

In the third assignment of error, petitioners argue the hearings officer’s conclusion is not supported by substantial evidence. Because a reasonable person would not have relied on the site plan to conclude that the replacement dwelling would be located on the adjacent tax lot, given the language of the building permit and the original home site, LUBA agrees with petitioners that the county’s decision violates ORS 215.740(4)(d) and is prohibited as a matter of law. The third assignment of error is therefore sustained and the county’s decision is REVERSED.