- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 07-07-2023
- Case #: No. 2022-101/102
- Judge(s)/Court Below: Opinion by Zamudio
- Full Text Opinion
Petitioners appealed a county hearings officer decision to deny legal lot verification of two adjacent tax lots, Tax Lots 2001 and 2002. In 1961, there were two conveyances that created a total of four total units. First, the grandparent property was divided into two units of land. Then the larger of those two units was further divided into three units, creating four total units. Both divisions occurred without county subdivision review or approval.
Assignment of Error 1.
In their first assignment of error, Petitioners argue that the hearings officer made an interpretational error, for essentially a clerical error. The decision documents denying the legal lot verification for Tax Lot 2001 and Tax Lot 2002, contained an identical paragraph. The paragraph in both decision documents stated that the denial of legal lot verification of “Tax Lot 2001… is affirmed.” Petitioners argue that this was an interpretational error because the hearings officer failed to issue a decision on the legal lot status of Tax Lot 2002, violating ORS 215.416(11)(a)(A) (requiring a de novo appeal if a permit is denied without a hearing); and ORS 215.427 (requiring a “final action” within 150 days).
The County argued that petitioners allege a procedural error and not an interpretational error; accordingly, petitioners could have filed a motion for reconsideration and by not motioning, petitioners waived the issue.
Under ORS 197.835(9)(a)(B), LUBA will reverse or remand decisions where the local government has “[f]ailed to follow the procedures applicable to the matter before it in a manner that prejudices the substantial rights of the petitioner.” LUBA ruled that “where a party has the opportunity to object to a procedural error before the local government, but fails to do so, that error cannot be assigned as grounds for reversal or remand of the resulting decisions.” McCaffree v. Coos County, 79 Or LUBA 512, 517, aff’d, 299 Or App 521, 449 P3d 594 (2019) rev 22 den, 366 Or 205 (2020) (citing Torgeson v. City of Canby, 19 Or LUBA 511, 519 (1990); Dobaj v. Beaverton, 1 Or LUBA 237, 241 (1980)).
The first assignment of error was denied.
Assignment of Error 2.
The 1961 definition of “subdivide land” under ORS 92.010(2) was “to partition a parcel of land into four or more parcels of less than five acres each for the purpose of transfer of ownership or building development… when such parcel exists as a unit or contiguous units under a single ownership as shown on the tax roll for the year preceding the partitioning.” In summary, subdivisions of land that divided a parcel of land into (1) four or more parcels; (2) of fewer than five acres each; and (3) within one year were regulated. The Lane County (LC) code did not include a time limitation or acreage exemption.
Petitioners argued that the county did not have authority to adopt subdivision regulations that were more stringent than those established in state law because at the time of division, such power was not delegated to the county by the legislature. LUBA disagreed, noting that a governing body or a city may “adopt standards in addition to those otherwise provided by law, governing, in the area over which the county or city has jurisdiction… the approval of plats of subdivisions and of partitioning of land by creation of a street or way where the additional standards are considered necessary to carry out development patterns or plans and to promote the public health, safety and general welfare.” Or Laws 1955, Ch 756, §9(1) (Emphasis added). LUBA construed §9(1) broadly and concluded that the legislature did delegate sufficient authority to the county to regulate the division of land more stringently than state law, including by applying a more restrictive definition of “subdivide land.”
The second assignment of error was denied.
Denied.