Landwatch Lane County v. Lane County

An unlawful division of land creates two new, undevelopable units rather than an undevelopable unit and a lawful remainder.

In the early 1900s, a dwelling was constructed on property that is today zoned Exclusive Farm Use (EFU). In 1992, a portion of the property not containing the dwelling was conveyed by deed, creating two parcels. That conveyance did not comply with the applicable land division regulations. Later, intervenors, who owned the parcel on which the dwelling was sited, applied for a replacement dwelling in the same location. While recognizing that the parcel conveyed by the 1992 deed was unlawful, and that a replacement dwelling could not be approved on it, the county concluded that intervenors’ parcel was a lawful remainder and was therefore eligible for a replacement dwelling. The county approved intervenors’ application and this appeal followed.

Under ORS 215.213(1)(q), dwellings on EFU land may be replaced if they were lawfully established. In their sole assignment of error, petitioner argues that the replacement dwelling at issue will be sited on an unlawful parcel. Intervenor responds that, in a prior decision, LUBA ignored unlawful divisions of land for purposes of approving a forest template dwelling under ORS 215.750(1)(a). Landwatch Lane County v. Lane County, ___ Or LUBA ___ (LUBA No 2018-077, Feb 6, 2019), aff’d, 297 Or App 582, 442 P3d 245, rev den, ___ Or ___ (2019). LUBA concludes that, because the issue under ORS 215.750(1)(a) is whether a lawfully established unit of land “existed on January 1, 1993,” the configuration before the unlawful division may be considered. However, because the issue under ORS 215.213(1)(q) is whether the unit of land in its current configuration was lawfully established, LUBA distinguished its holding in the prior decision, agreeing with petitioner that an unlawful division of land creates two new, unlawful, and therefore undevelopable, units rather than an undevelopable unit and a lawful remainder. The sole assignment of error is therefore denied and the county’s decision is REVERSED.