Landwatch Lane Cnty. v. Lane Cnty.

ORS 215.780 “authorizes [a] county to allow the partition of a property to create a five acre parcel to house a qualified dwelling and that both of the resulting parcels may be less than 80 acres, so long as the parcel without the dwelling is constrained in its ability to house a dwelling in the future.” Russell v. Lane County, _ Or LUBA _ (LUBA No 2020-072, Jan 8, 12 2021).

Tranquil Lands LLC submitted a tentative plan application for an 80-acre area of land currently zoned Nonimpacted Forest Land (F-1). The subject property contains a 60-acre parcel and 20-acre parcel. Tranquil Lands LLC sought to reconfigure the parcels through a property line adjustment so that one parcel would be 75.26 acres and vacant and the other would be five acres with a single dwelling built in 1976. This appeal followed the County’s approval of the tentative partition plan to replat the land.

Lane County Code (LC) 13.130(5) provides that property line adjustments within a plat which are not a minor shift “must comply with replatting requirements of LC 13.120.” LC 13.120 requires “identify[ing] and apply[ing] standards applicable to a tentative plan.”

Petitioner argued that the hearings officer misconstrued LC 13.130(5), resulting in their reliance on an inapplicable provision of the LC for approval of the plan. LUBA agreed with Petitioner, explaining that the property line adjustment proposed was not a minor shift, and therefore, needed to comply with the replatting requirements of LC 13.120, including application of relevant standards, not just the replatting procedures as the hearings officer had stated.

LUBA further explained that one of the applicable standards is LC 16.210(7) which provides that "[t]he minimum area requirement for the creation of new or adjusted lots or parcels for land designated [F-1] is 80 acres.” An exception is allowed under LC 16.210(7)(b)(ii) for “the establishment of a parcel for a dwelling that has existed since before June 1, 1995,” so long as “(aa) [t]he parcel established may not be larger than five acres” and “(bb)[t]he parcel that does not contain the dwelling is not entitled to a dwelling unless subsequently authorized by law or goal and the parcel either: . . . (A) [m]eets the minimum land division standards of the zone; or (B) [i]s consolidated with another parcel, and together the parcels meet the minimum land division standards of the zone.” The hearings officer did consider LC 16.210(7) but concluded that Tranquil Lands LLC’s tentative plan could not comply with the exception because the parcel without the dwelling did not meet the requirements of either subsections (b)(ii)(b)(A) or (B). LUBA disagreed, citing Russell v. Lane County, _ Or LUBA _ (LUBA No 2020-072, Jan 8, 12 2021), where it had held that LC 16.210(7) implements and must be interpreted in a manner consistent with ORS 215.780.

ORS 215.780 “authorizes [a] county to allow the partition of a property to create a five acre parcel to house a qualified dwelling and that both of the resulting parcels may be less than 80 acres, so long as the parcel without the dwelling is constrained in its ability to house a dwelling in the future. Russell, _ Or LUBA at _ (slip op at 16-17).

LUBA found that the tentative plan could fulfill LC 16.210(7) because, when read in a manner consistent with ORS 215.780, the requirements set out in LC 16.210(7)(b)(ii)(bb) apply only where law might allow a dwelling on the restricted parcel in the future, and not to the parcel size at the time of replatting. Remanded.