Landwatch Lane County v. Lane County

Intervernor applied to establish a forest template dwelling on property zoned Impacted Forest Lands (F-2). Under a previous version of Lane Code (LC) 16.211(5)(c)(iii), which implemented ORS 215.750(2)(c), the county could approve forest template dwellings in the F-2 zone if, among other things, 11 other lots or parcels that existed on January 1, 1993, were within a 160-acre template and at least 3 dwellings existed on January 1, 1993, and continued to exist on the other lots or parcels. Under Friends of Yamhill County v. Yamhill County, such lots or parcels must be lawfully created units of land. Under ORS 92.014(1), “[a] person may not create a street or road for the purpose of subdividing or partitioning an area or tract of land without the approval of the city or county.” One of the lots on which the hearings official relied, which contained one of the dwellings on which the hearings official relied, was separated from adjacent lots by a road. That road was established in 1910, and it was dedicated to the county in 1979. Concluding that the road divided the relevant lots when it was established in 1910, the hearings official approved the application.

On appeal, petitioner argued that the 1979 dedication could not have divided the relevant lots because it conveyed an easement rather than fee title to the road. Because petitioner did not challenge the hearings official’s conclusion that the road’s establishment in 1910 divided the relevant lots, LUBA agreed with intervenor that petitioner’s argument provided no basis for reversal or remand. Although petitioner argued to the hearings official that the road’s establishment in 1910 did not divide the relevant lots, and although that argument was reflected in a block quotation in the petition for review, that argument was not made directly to LUBA in the petition for review. And although petitioner attempted to make that argument directly to LUBA in the reply brief, LUBA does not consider arguments raised for the first time in reply briefs, pursuant to OAR 661-010-0039. Accordingly, the county’s decision was AFFIRMED.