Russell v. Lane County

Under ORS 215.780(1), the minimum lot parcel for forestland is 80 acres. Under ORS 215.780(2)(d), forestland can be divided to create parcels less than 80 acres if necessary “to facilitate a forest practice.” Under ORS 215.780(2)(d)(A), “[p]arcels created pursuant to” that exception are not eligible for siting of a new dwelling. The subject property’s parent parcel was 10.2 acres, and it contained a fire station. In 2017, the 2-acre portion of the parent parcel containing the fire station was partitioned from the remainder to allow the fire district to purchase it, thereby facilitating the forest practice of the fire station. Petitioner applied for a forest template dwelling on the remainder, the subject property. Because the parent parcel was partitioned pursuant to ORS 215.780(2)(d), a hearings officer concluded that the subject property was ineligible for a new dwelling and denied the application. This appeal followed.

Petitioner argued that the hearings officer misconstrued ORS 215.780(2)(d). Specifically, petitioner argued that, because the parent parcel was partitioned to facilitate a forest practice on the 2-acre parcel, and because the partition did not facilitate a forest practice on the subject property, the new dwelling prohibition at ORS 215.780(2)(d)(A) did not apply to the subject property. Because the new dwelling prohibition refers to “parcels,” plural, created pursuant to ORS 215.780(2)(d), and because the definition of “partitioning land” at ORS 215.010(1) refers to the creation of multiple “parcels,” LUBA concluded that the hearings officer’s interpretation was consistent with the text and context of ORS 215.780(2)(d). Although a different portion of ORS 215.780(2)(d) refers to the creation of “a parcel,” singular, less than 80 acres, and although ORS 215.780(6)(a) requires applicants for partitions under ORS 215.780(2)(d) to record a deed restriction generally prohibiting dwellings on “the newly created parcel,” singular, LUBA concluded that those provisions referenced the fact that some partitions pursuant to ORS 215.780(2)(d) would create only one parcel less than 80 acres. In some cases, however, as in this case, a partition could create multiple parcels less than 80 acres. Accordingly, LUBA concluded that that text and context did not cut against the hearings officer’s interpretation. LUBA also examined the legislative history of ORS 215.780(2)(d), which it concluded showed that the legislature was concerned about and intended to limit new dwellings on all substandard-sized parcels in forest zones that were created pursuant to ORS 215.780(2)(d), regardless of whether each substandard-sized parcel facilitated a forest practice. The assignment of error was therefore denied and the county’s decision was AFFIRMED.