Central Oregon Landwatch v. Deschutes County

(1) For purposes of establishing a lot of record dwelling under ORS 215.705, a trust qualifies as a “business entity,” and therefore an “owner,” and there is no limit on the number of transfers that can take place before an owner applies for such a dwelling. (2) Where a dwelling has been approved for a parcel but not yet built, that parcel “include[s] a dwelling” for purposes of ORS 215.705(1). (3) Where one parcel is owned by an applicant individually and another is owned by a trust for which the applicant serves as trustee, those parcels are not “under the same ownership” for purposes of ORS 217.010(2).

In 1969, the applicant’s parents acquired two adjacent parcels zoned Forest Use (F-2), Tax Lots 1000 and 1100. In 2015, the applicant’s parents transferred both parcels to a trust. When the parents died, the applicant became trustee. In 2017, the trust transferred Tax Lot 1000 to the applicant individually. In 2018, the county approved a dwelling on Tax Lot 1100, which has not been built. In 2019, the applicant applied for a dwelling on Tax Lot 1000. Under ORS 215.705(1), local governments may allow dwellings on parcels within resource zones if, among other things, the parcel was acquired by the present owner either (1) prior to 1985 or (2) by devise or intestate succession from the person who acquired it prior to 1985. Under ORS 215.705(6), the term “owner” for these purposes includes the owner’s relatives or a business entity owned by those relatives. The county approved the application and this appeal followed.

Petitioner makes three major arguments: (1) Tax Lot 1000 was not acquired by "devise or intestate succession" and therefore did not satisfy ORS 215.705(1); (2) Tax Lot 1000 was not acquired by a "business entity" within the meaning of ORS 215.705(6); (3) The applicant does not qualify for a lot of record dwelling because they acquired the property from a trust that acquired it in 2015, and not from a pre-1985 owner. Because, under DLCD v. Yamhill County, 151 Or App 367 (1997), ORS 215.705 allows inter vivos transfers; because nothing in the text, context, or legislative history of ORS 215.705 indicates the legislature intended the phrase "business entity" to include only corporate entities; and because nothing in the statute limits the number of transfers that can take place before an owner applies for a dwelling, LUBA rejects petitioner’s arguments.

Another criterion for local governments to allow dwellings under ORS 215.705(1) is that the tract of which the lot is a part “does not include a dwelling.” Under ORS 215.010(2), a tract is multiple contiguous parcels “under the same ownership.” Petitioner argues the county erred in concluding that this criterion was satisfied since (1) Tax Lots 1000 and 1100 are under the same ownership and (2) the county already approved a dwelling on Tax Lot 1100. While agreeing with petitioner that, where a dwelling has been approved for a parcel but not yet built, that parcel “include[s] a dwelling” for purposes of ORS 215.705(1), LUBA concludes that, where one parcel is owned by an applicant individually and another is owned by a trust for which the applicant serves as trustee, those parcels are not “under the same ownership” for purposes of ORS 217.010(2). Petitioner’s assignments of error are therefore denied, and the county's decision is AFFIRMED.