Landwatch Lane County v. Lane County

Where a local government determines, pursuant to ORS 197.307(4), that it could only apply clear and objective standards to an application for a relative farm help dwelling on EFU property and located outside the UGB, LUBA will remand.

At issue is an application for a relative farm help dwelling on a property zoned Exclusive Farm Use (EFU) and located outside of any urban growth boundary (UGB) of a city (the application). The planning director determined that the application satisfied the applicable criteria – Lane Code (LC) 16.212(8)(b), which implemented the Land Conservation and Development Commission (LCDC) provision found at OAR 660-033-0130(9) – and approved the application. Petitioner appealed to the hearings officer and argued that the application did not satisfy LC 16.212(8)(b)(i) (applicant must provide evidence that farm activity on the property qualifies as an existing commercial farming operation and requires help of the relative) and OAR 660-033-0130(24)(b) (applicant must provide evidence of gross annual income from farm products of the property). The hearings officer determined that ORS 197.307(4) prohibits the County from applying the ambiguous and subjective standards in ORS 215.213(1)(d) (relative farm help dwellings on EFU property), the LCDC provisions (OAR 660-033-0120 and OAR 660-033-0130(9) – relative farm help dwellings on EFU property), and LC 16.212(8)(b) (relative farm help dwellings on EFU property) because the standards were not clear and objective. The hearings officer affirmed the planning director’s decision without addressing Petitioner’s arguments. Petitioner appealed to LUBA.

LUBA granted Petitioner’s motion for LUBA to take official notice of testimony in the legislative history of Senate Bill 1051 (2017) which amended ORS 197.307(4) (SB 1051). Prior to SB 1051, ORS 197.307(4) provided that a local government could restrict development of needed housing on buildable land through adoption or application of regulations and procedures that were clear and objective. After SB 1051, ORS 197.307(4) provided that a local government could restrict development of housing, including needed housing, through clear and objective standards, conditions, and procedures. LUBA granted Intervenor’s motion for LUBA to take official notice of testimony in the legislative history of House Bill 3197 (2023) which also amended ORS 197.307(4) (HB 3197). After HB 3197, ORS 197.307(4) provides that “… a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing, on land within [a UGB].”

In their first and only assignment of error, Petitioner argued that the County erred when it decided that the criteria in ORS 197.307(4) did not apply to ORS 215.213(1)(d), the LCDC provisions, and LC 16.212(8)(b) to the application because it misconstrued ORS 197.307(4). Specifically, Petitioner argued that the County failed to consider the context of other statutes, including ORS 215.243, and to consider that the legislative intent behind SB 1051 did not include prohibiting the County from applying the standards in ORS 197.307(4) to applications for housing on EFU properties. Intervenor argued that the plain language of ORS 197.307(4) supports the County’s interpretation and that the purpose of HB 3197 was to modify SB 1051’s effect to only within the UGB.

LUBA determined that the language of ORS 197.307(4) was latently ambiguous. Because the statute was ambiguous, LUBA reasoned that the legislative intent behind SB 1051 was that the amended statutes’ – ORS 197.307(4), ORS 215.416, ORS 227.175 – combined effort was to limit the standards applied to applications for housing development located within the UGB to clear and objective standards. LUBA further reasoned that legislative history supports Petitioner’s argument that ORS 197.307(4) does not apply to the application. LUBA determined that because the subject property was not within the UGB, SB 1051 did not limit the County to apply only clear and objective standards to the application. LUBA further determined that HB 3197 clarified, not modified, the effects of SB 1051 to apply only within the UGB. Accordingly, LUBA held that Petitioner’s first assignment of error was sustained.

Remanded.