Kuether v. Washington County

(1) PLSS surveys do not create discrete legal parcels but are simply meant to facilitate the description of land for future conveyance. (2) Under ORS 92.010(3)(a)(B), where no planning, zoning, or land division laws apply, an unrecorded survey is not sufficient to create a discrete legal parcel.

In 1862, a Public Lands Survey System (PLSS) survey was filed with the General Land Office (GLO), showing Government Lots (GLots) 1 and 2. The subject property includes all of GLot 2, a portion of GLot 1, and portions of the neighboring sections to the north and south. Petitioner applied with the county for a Director’s Interpretation that the subject property includes four discrete legal parcels that are available for future development. The county determined that the subject property did not contain multiple discrete legal parcels, and this appeal followed.

In the second assignment of error, petitioner argues the county erred in determining that the 1862 survey did not create discrete legal parcels for development purposes. Specifically, petitioner cites 43 USC § 753 as well as federal and state case law referring to the PLSS system as “subdividing property.” Because nothing in 43 USC § 753 demonstrates that use of the term “subdivided” means PLSS surveys create discrete legal parcels for development purposes, because the court in John Taft Corp. v. Advisory Agency, 161 Cal App 3d 749 (1984) held that the use of that term in the federal survey laws refers not to the physical division of land but to a survey method adopted to facilitate the conveyance of public land, and because no cases cited by petitioner support a different result, LUBA agrees with the county that the 1862 survey did not create discrete legal parcels and that its purpose was to simply facilitate the description of land for future conveyance. LUBA also agrees with the county that neither the original patent from the federal government nor any subsequent deeds conveyed any of the GLots or neighboring sections as separate units of land. The second assignment of error is therefore denied.

In the third assignment of error, petitioner argues the county erred in concluding that an unrecorded 1972 survey, which included a portion of the neighboring section to the north, did not create that portion as a discrete legal parcel for development purposes. Under ORS 92.010(3)(a)(B), lawful units of land are created either in compliance with all planning, zoning, and land division laws or by conveyance if no such laws were applicable. Because no subdivision ordinance applied to the 1972 survey, because the portion of the neighboring section to the north was not conveyed separately before land use regulations became applicable in 1973, and because it did not comply with the 38-acre minimum parcel size when it was conveyed separately in 1975, LUBA agrees with the county that the portion of the neighboring section to the north is not a discrete legal parcel. The third assignment of error is denied, and the county’s decision is AFFIRMED.