Ellis v. Multnomah County

Under MCC 35.2690, a life estate in real property is a “greater than possessory” interest for purposes of determining whether two contiguous lots were “under the same ownership” and therefore qualify as lots of record under MCC 35.2675(A).

In 1980, the owner of two contiguous lots zoned exclusive farm use (EFU) conveyed one of the lots to petitioner while reserving a life estate. In 2009, the owner’s successor conveyed the second lot to petitioner. In 2018, petitioner applied to the county for verification that the second lot was a lot of record. Under Multnomah County Code (MCC) 35.0005, a lot qualifies as a lot of record if, among other things, it satisfied all applicable zoning and land division laws when it was created, or it complies with the criteria for the creation of new lots. In addition, under MCC 35.2675(A), for an EFU lot to qualify as a lot of record where it was contiguous to other lots “held under the same ownership” in 1990, the group of contiguous lots must “be aggregated to comply with a minimum lot size of 19 acres.” Under MCC 35.2690, “same ownership” means “greater than possessory interests held by the same person.” Because one of the two lots was less than 19 acres, the county denied petitioners’ application to verify the second lot as a separate lot of record and aggregated both lots into a single lot of record. This appeal followed.

In its assignment of error, petitioner argues that, because the life estate retained by the owner was not a “greater than possessory” interest, the county erred in concluding that the two lots were “under the same ownership” in 1990 and, therefore, that the second lot could not qualify as a separate lot of record. LUBA agrees with the county that any right beyond a present right to exclusive control is a “greater than possessory” interest. In turn, because a life estate includes the rights to alienate, encumber, and retain income generated by the property, the county properly concluded that the owner had a “greater than possessory” interest in both lots in 1990 and that they were therefore “under the same ownership” at that time and could be aggregated. The assignment of error is denied, and the county’s decision is AFFIRMED.