Kine v. Deschutes County

In 1984, the federal Bureau of Land Management granted petitioner’s predecessor 4 contiguous parcels. The property lines separating those parcels corresponded with section lines. In 1990, petitioner’s predecessor applied for subdivision plat approval to create 107 lots as well as roads and common areas. On the plat, the lots, roads, and common areas did not take up all of the 4 parcels. Rather, the lots, roads, and common areas were surrounded and broken up by land that was labeled “Not in Plat.” The county approved the subdivision and the plat was recorded. Petitioner, who subsequently came to own the land labeled “Not in Plat,” applied for a legal lot verification from the county. Petitioner argued that the property lines between the original 4 parcels survived the 1990 subdivision within the land labeled “Not in Plat” and that they divided that land into 11 discrete units of land. The board of commissioners verified only one lot of record, and this appeal followed.

One basis for the board of commissioners’ decision was that the 1990 subdivision vacated the original property lines. Petitioner challenged that conclusion on appeal. Under Weyerhauser Real Estate Development Co. v. Polk County, a partition plat vacates pre-existing property lines unless it indicates their continued existence. Petitioner argued that Weyerhauser was distinguishable because the land labeled “Not in Plat” was expressly not subject to the plat and, therefore, the plat could not vacate the property lines within that land. However, because petitioner argued that the 1990 subdivision had the effect of creating 7 additional parcels within the land labeled “Not in Plat,” LUBA concluded that the plat did in fact operate on that land and that Weyerhauser was not distinguishable. Because the 1990 plat did not contain the original property lines but, rather, included dashed lines in those locations and others to represent section lines, labeled with section numbers, and because the “Not in Plat” label did not clearly indicate that the original property lines would continue to exist, LUBA affirmed the county’s conclusion that the 1990 subdivision vacated the original property lines. LUBA added that whether petitioner’s predecessor intended to retain or vacate the original property lines was irrelevant because, unlike a deed, the meaning of which depends on grantor intent, subdivision and partition plats are approved by local governments who may subsequently interpret them in response to appropriate applications.

Under Deschutes County Code (DCC) 18.04.030(A)(5), “lot of record” means, among other things, a lot that was created “[b]y the subdividing or partitioning of land, leaving a remainder lot or parcel.” An alternative basis for the board of commissioners’ decision was that, even if the 1990 subdivision did not vacate the original property lines, because DCC 18.04.030(A)(5) refers to “a remainder lot or parcel,” singular, only one remainder created by a subdivision can be recognized as a “lot of record.” On appeal, petitioner argued that the board of commissioners misconstrued DCC 18.04.030(A)(5). LUBA acknowledged that it was possible that the use of the singular in DCC 18.04.030(A)(5) was for grammatical correctness. However, because other provisions of DCC 18.04.030(A) allow for the creation of multiple remainder parcels—by including them in the subdivision or partition plat—LUBA also recognized that the use of the singular might have been deliberate. Because petitioner did not demonstrate that the board of commissioners’ interpretation was inconsistent with the provision’s express language, purpose, or underlying policy, or that it was implausible in light of its text and context, LUBA deferred to that interpretation under ORS 197.829(1) and Siporen v. City of Medford.

On the 1990 subdivision plat, a portion of the land labeled “Not in Plat” was separated from the rest of that land by lots, roads, and common areas, creating two noncontiguous areas labeled “Not in Plat.” Petitioner also argued that the county erred by not explaining how it could designate two noncontiguous units of land as one lot of record. However, because petitioner did not identify a land use regulation or statute that would prohibit the county from doing that, and because it was not necessary for LUBA to address the hypothetical question of what would happen if petitioner attempted to convey one of the noncontiguous units separately from the other, petitioner’s argument provided no basis for reversal or remand. The county’s decision was therefore AFFIRMED.