Landwatch Lane County v. Lane County

Property 1 was lawfully created in 1910 by a federal patent and subsequent deed. In 1951, Property 1 and an adjacent portion of a separate unit of land, known as Property 2, were conveyed to intervenor’s predecessor. In 2019, intervenor applied for the county to verify Property 1 and Property 2 as lawfully established units of land. Under ORS 92.010(3), a “lawfully established unit of land” is, in relevant part, a unit of land created by “deed or land sales contract, if there were no applicable planning, zoning or subdivision or partition ordinances or regulations.” A hearings officer concluded that both Property 1 and Property 2 were lawfully established units of land. This appeal followed.

Petitioner argued that the hearings officer misconstrued the applicable law in concluding that Property 2 was a lawfully established unit of land for two alternative reasons. Petitioner first argued that Property 2 was not a lawfully established unit of land because the 1951 deed did not include a discrete description of Property 2 apart from Property 1—so, while the two were discrete units of land, Property 2 was not “lawfully established.” Because petitioner cited no authority supporting that narrow reading of ORS 92.010(3), and because that reading inserted language into ORS 92.010(3) that was not present, contrary to ORS 174.010, LUBA concluded that petitioner had not demonstrated that Property 2 was not “lawfully established.” Although other local governments’ code provisions defined “lot of record” to include only separately described units of land, LUBA agreed with the hearings officer’s conclusion that the Lane Code did not include similar limiting language.

Petitioner next argued that Property 2 was not a lawfully established unit of land because, in failing to describe Property 2 apart from Property 1, the 1951 deed had the legal effect of merging the two into a single unit of land. LUBA agreed with intervenor that that argument was not raised with sufficient specificity below and was therefore waived under ORS 197.763(1). However, on the merits, LUBA agreed with intervenor that, although a deed may or may not have the effect of merging property when portions of multiple existing parcels are conveyed via a single metes and bounds description, that is not the case where the relevant deed conveyed at least one entire existing parcel, as the 1951 deed did with respect to Property 1. Because petitioner cited no other law in effect in 1951 that prohibited the creation of Property 2 via the 1951 deed, the county’s decision was AFFIRMED.