Wachal v. Linn County

Under ORS 197.015(10)(b)(A), where a local government, in reaching a decision, is not required to evaluate anything by discerning or comparing, and where the evidentiary support for the existence facts on which the decision relies is clear and unambiguous and does not require the application of any legal principles, such a decision does not require the exercise of “legal judgment.”

Petitioner appeals a decision by the county planning director approving an application for a replacement of an existing dwelling on land zoned exclusive farm use (EFU). Respondent moves to dismiss the appeal on the basis that the challenged decisions falls within the exception to LUBA’s jurisdiction at ORS 197.015(10)(b)(A) for a land use decision “[t]hat is made under land use standards that do not require interpretation or the exercise of policy or legal judgment[.]

The existing dwelling to be replaced was approved pursuant to a 1978 board of county commissioners’ decision and thereafter constructed. Under Linn County Code (LCC) 933.180(B), which implements section 2, Chapter 462, Oregon Laws 2013, a lawfully established dwelling may be replaced if it has certain features and if it has been assessed property taxes for the previous five years. LCC 933.180(C) governs the replacement of lawfully established dwellings that formerly met, but no longer meet, the same requirements. Under LCC 920.100(175), a dwelling is “lawfully established” if it was “established prior to any [applicable] building codes” or if it was “established pursuant to then existing building codes and land use regulations.” In support of its application, intervenor provided photographs demonstrating the condition of the dwelling, a tax account statement, and the 1978 county decision approving the dwelling. The county approved the application and this appeal followed.

Petitioner does not dispute that the dwelling possessed the features at the time of the application but argues the plain language of LCC933.180 requires the planning director to exercise legal judgment in determining whether to apply LCC 933.180(B) or (C). LUBA concludes the county was not required to exercise legal judgment in reviewing tax records and photographs of the existing dwelling to ascertain that it possessed the enumerated features and, therefore, that LCC 933.180(B) applied.

Petitioner also argues the county was required to exercise legal judgment in determining whether the existing dwelling was “lawfully established” since it is a nonconforming use and the county was therefore required to apply the LCC provisions governing alteration of nonconforming uses. LUBA concludes the existing dwelling is not a non-conforming use because it was approved in a 1978 land use decision in conformance with then-applicable zoning regulations. Thus, the county was not required to exercise legal judgment to determine that the existing dwelling was “lawfully established.” The county’s motion to dismiss is granted and the appeal is TRANSFERRED.