Tugaw v. Jackson County

Where a local code provision which implements state law contains different language from state law, but where the local government interprets the local code provision as identical to state law without interpreting the different language, LUBA will apply its own prior interpretations of the state law at issue where the local government offers no analysis supporting a different conclusion.

Petitioners applied to site a forest template dwelling on property zoned Forest Resource (FR). Under ORS 215.750(2), counties may allow such dwellings on lots within forest zones if the lot is predominantly composed of soils of a certain productivity, if “[a]ll or part of at least seven other lots or parcels that existed on January 1, 1993, are within a 160-acre [template],” and if “[a]t least three dwellings existed on January 1, 1993, on the other lots or parcels.” While counties may not establish less restrictive standards for forest template dwellings, they are permitted to impose stricter standards. Although Jackson County Land Development Ordinance (LDO) 4.3.6(B) is substantially identical to ORS 215.750(2), it requires, like OAR 660-006-0027(3)(b), not only that the three dwellings “existed” on January 1, 1993, but also that they “continue to exist.” Despite this difference, the county assumed that LDO 4.3.6(B) duplicates and requires the same analysis as ORS 215.750(2). Although petitioners showed that there were seven lots and three dwellings within the template, the county concluded that, because the lot underlying one of the dwellings built in 1977 was reconfigured in 2008, that lot did not exist on January 1, 1993, and the 1977 dwelling therefore did not qualify. The county denied the application and this appeal followed.

In their assignment of error, petitioners argue the county misconstrued applicable law in concluding LDO 4.3.6(B) required that the lots which existed in 1993 “continue to exist,” rather than the dwellings. In Landwatch Lane County v. Lane County, 75 Or LUBA 151 (2017), LUBA concluded state law does not require that a 1993 lot continue to exist in the same configuration in order for a dwelling on that lot to qualify another lot for a forest template dwelling. Because the county offers no analysis supporting a different conclusion here, and because it failed to interpret the “continue to exist” language in LDO 4.3.6(B) as imposing a stricter requirement than ORS 215.750(2), LUBA agrees with petitioners that the county misconstrued applicable law. The assignment of error is therefore sustained. In turn, because the county’s reasons for denying the application are prohibited as a matter of law, its decision is REVERSED.