Gansen v. Lane County

The subject property was zoned Rural Residential 10-acre minimum (RR-10). In 2001, petitioner’s predecessor applied for and received verification from the county engineer that the subject property was a “legal lot.” At that time, the county code contained no formal procedure for such verifications. Petitioner subsequently acquired the subject property and applied for and received a building permit to construct a dwelling. Under Lane Code (LC) 16.231(2)(a), dwellings are permitted in the RR-10 zone if they are “on a legal lot.” The building permit referenced LC 16.231(2)(a) and separately indicated that the subject property was a legal lot. In 2020, petitioner applied for a legal lot verification through the county’s then-formal process. Under ORS 197.015(10)(a), a local government decision is a “land use decision” if the decision is final and if the local government applied or should have applied a land use regulation or comprehensive plan provision in making it. Concluding that the 2002 building permit was not a “final” decision because it relied on the preliminary 2001 verification, a hearings officer concluded that the county was not bound by the determination in the 2002 building permit that the subject property was a legal lot. Concluding further that the subject property was in fact not a legal lot, the hearings officer denied the application. This appeal followed.

In the first assignment of error, petitioner argued that, because the county applied LC 16.231(2)(a) in issuing the 2002 building permit, the 2002 building permit was a land use decision. In turn, because the 2002 building permit was a land use decision that determined that the subject property was a legal lot, petitioner argued that the hearings officer was precluded from reaching the opposite conclusion in this case. The county responded that, because the 2002 building permit was issued in violation of the county’s notice and hearing requirements, and because it was not supported by findings, it was not a land use decision. LUBA agreed with petitioner that whether the county violated applicable law in issuing the 2002 building permit had no bearing on whether the 2002 building permit was a land use decision. Although the 2002 building permit relied on the 2001 legal lot verification, which was preliminary, the 2002 building permit itself was a final decision. Because the county applied LC 16.231(2)(a), a land use regulation, in making that final decision, the 2002 building permit was a land use decision. In turn, because parties may not collaterally attack prior, un-appealed land use decisions in appeals of subsequent decisions, LUBA agreed with petitioner that the county was precluded from reaching a conclusion different from the 2002 building permit. That the equitable doctrine of collateral attack is typically employed against petitioners, whereas it was being used against the local government here, did not matter. LUBA also considered the legislative history of ORS 197.830(6), which sets a maximum period of 10 years for appealing land use decisions that required certain notice that was not provided. Based on that legislative history, LUBA concluded that, because the 2002 building permit could not be challenged directly at this point despite of its lack of notice, it also could not be challenged indirectly by the county in making a subsequent decision. The county’s decision was therefore REVERSED.