Landwatch Lane County v. Lane County

(1) Where a property was created by an “illegal partition,” and where that property is later transferred to the owners of contiguous property, a county’s reliance on an uncodified, “fact-dependent,” “longstanding county policy” to conclude that that transfer constituted a “de facto property line adjustment,” eliminating the illegally partitioned property as a separate unit of land, violates the codification requirement at ORS 215.416(8)(a). (2) Even where a transfer of property met the definition of a property line adjustment under ORS 92.010(11) (1999), such transfer did not effectuate a property line adjustment where the deed did not contain the information required by ORS 92.190(4) (1999).

In 1992, the owner of a 105-acre parcel sold a 79-acre portion of the parcel, known as Tax Lot 201, to a third party without applying for a partition. In 2001, intervenors acquired Tax Lot 201, which is contiguous with 95 acres also owned by intervenors. In 2019, intervenors applied for approval of a large tract forest dwelling on their properties. Under ORS 215.740(1)(b), such dwellings must be sited on a “tract” of at least 160 contiguous acres. Under ORS 215.010(2), a “[t]ract” is “one or more contiguous lots or parcels under the same ownership.” Under ORS 215.010(1)(a), a “parcel” is a unit of land that was lawfully created. The county acknowledged that the 1992 transfer of Tax Lot 201 “was an illegal partition.” However, relying on “longstanding county policy,” the county concluded the 2001 transfer of Tax Lot 201 to intervenors constituted a “de facto property line adjustment” between intervenors’ 95 acres and Tax Lot 201 that “essentially eliminating tax lot 201.” Because intervenors’ properties total 174 acres, the hearings officer approved the application. This appeal followed.

Under ORS 215.416(8)(a), also known as the codification requirement, county decisions must be based on “standards and criteria” set forth in an ordinance. In the first assignment of error, petitioner argues the county’s reliance on an uncodified “longstanding county policy” violates the codification requirement. Because state law governed property line adjustments in 2001, because the county code had no regulations governing property line adjustments at that time, because state law did not provide for “de facto” property line adjustments at that time, and because the county’s reliance on a “fact-dependent,” uncodified county policy means that a party cannot know or predict what the county will conclude in reliance on it, LUBA agrees with petitioner that the county’s decision violates the codification requirement. The first assignment of error is therefore sustained.

In the second assignment of error, petitioner argues the county misconstrued applicable law and made a decision not supported by substantial evidence in the whole record by characterizing the 2001 transfer of Tax Lot 201 to intervenors as a “property line adjustment.” Petitioner argues that, under ORS 92.010(11) (1999), while property line adjustments could relocate property lines, they could not eliminate them. In addition, petitioner argues that, under ORS 92.190(3) and (4) (1999), while local governments could adjust property boundaries by means other than a replat under certain procedures, doing so required a deed containing specific information. Because the 2001 deed transferring Tax Lot 201 to intervenors did not contain that information, petitioner argues the county erred in concluding the 2001 transfer was a property line adjustment. Intervenors respond that the 1999 statutes did not expressly prohibit property line adjustments from eliminating property lines, and that strict compliance with the deed requirements in ORS 92.190(4) (1999) was not necessary because the 2001 transfer met the definition of a property line adjustment in ORS 92.010(11) (1999). Assuming, without deciding, that ORS 92.010(11) (1999) allowed property line adjustments to eliminate property lines, LUBA agrees with petitioner that, because the 2001 deed did not contain the requisite information in ORS 92.190(4) (1999), there was no property line adjustment. The second assignment of error is therefore denied, and the county’s decision is REMANDED.