- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 07-02-2024
- Case #: 2024-017
- Judge(s)/Court Below: Opinion by Rudd
- Full Text Opinion
The 2012 Decision by the county planning director approved intervenor's application for a final legal lot verification, confirming three parcels on a 56.1-acre property. This decision assured that ownership transfers would not require county land division approval and that the property would be recognized as a legally separate unit for development, subject to zoning and building regulations.
On March 23, 2024, the petitioner filed a notice of intent to appeal the 2012 Decision under House Bill (HB) 3362 (2023). This law allows appeals of certain land use decisions before April 1, 2024, if the approval was based on forged documents and if the applicant was not an innocent purchaser as defined by the statute. The law also requires that the applicant owned the property as of January 1, 2023 for the appeal to proceed.
On May 24, 2024, the intervenor filed a motion to dismiss the appeal, arguing that the 2012 Decision does not qualify for an appeal under HB 3362. The core of the argument was that HB 3362 only allows appeals of certain land use decisions, including legal lot verifications under ORS 92.176, but the 2012 Decision was not made under that statute. Instead, the decision confirmed that the three parcels on the 56.1-acre property were lawfully established.
HB 3362 and ORS 92.176:
HB 3362, enacted in 2023, allows appeals of past land use decisions under specific conditions, including those involving legal lot verifications under ORS 92.176. ORS 92.176 applies only when a county is validating a previously unlawful unit of land.
The 2012 Decision's Findings:
The Lane County planning director determined that the three parcels on the property were lawfully created through historical deeds dating back to 1954, 1960, 1970, 1993, and 1996. Because these parcels were created before applicable land division regulations were in place, they were considered legally established at the time of the 2012 Decision. The planning director’s verification was not a validation of unlawfully created lots under ORS 92.176 but rather a confirmation that the parcels were lawfully created.
Petitioner's Argument:
The petitioner argued that the legislative intent behind HB 3362 was to allow challenges to a series of land use approvals obtained by the intervenor, including the 2012 Decision. The petitioner also contended that the reference to ORS 92.176 in HB 3362 was a legislative drafting mistake and that the law should be interpreted broadly to allow the appeal
Court’s Reasoning and Dismissal:
The court rejected the petitioner’s argument, emphasizing that ORS 174.010 prohibits courts from omitting statutory language—meaning the explicit reference to ORS 92.176 must be given effect. Because the 2012 Decision was not issued under ORS 92.176, it does not fall under HB 3362’s appeal provisions. ORS 197.830(9) imposes strict time limits for appeals, and the petitioner’s appeal was filed in 2024 (over a decade after the decision), therefore it was deemed untimely.
The court granted the motion to dismiss.