Plankton Holdings v. Lane County

LUBA will remand where a local government does not adopt findings under ORS 92.176 on whether the creation of a property could have complied with applicable criteria.

Petitioner-Applicant (Petitioner) owns a 2.77-acre unit of land zoned Rural Residential (the property). Previous owners of the property created the property by deed from a larger parcel (larger parcel) that also was created by deed to Petitioner’s predecessor-in-interest. The County’s 1962 Subdivision Ordinance (subdivision ordinance) provided standards for the creation of new parcels at the time of creation for the larger parcel in 1965 and the property in 1968.

Petitioner applied for validation of the property from the planning director, who denied the application. The hearings officer’s final denial of the application determined that the larger parcel was not a lawfully established unit of land but did not cite in its decision supporting statutes nor did the decision adopt findings on whether the property’s creation could have complied with the County’s subdivision ordinance. 

ORS 92.176(1), first enacted in 2007, provides that “[a] county or city may approve an application to validate a unit of land that was created by a sale that did not comply with the applicable criteria for creation of a unit of land if the unit of land… [i]s not a lawfully established unit of land [and c]ould have complied with the applicable criteria for the creation of a lawfully established unit of land in effect when the unit of land was sold.” In Petitioner’s first assignment of error, they argued that the County misconstrued ORS 92.176  by placing an affirmative duty on Petitioner to show that the larger parcel was lawfully created. Petitioner argued that ORS 92.176 unambiguously requires applicants to show that a unit of land was not lawfully created but could have complied with applicable criteria for the creation of a lawfully established unit of land in effect at the time the unit of land was sold. The County argued that ORS 92.177 (a local government must “consider and may approve an application for the creation of a parcel pursuant to ORS 92.176” if that unit of land was not lawfully established and sold prior to 2007 “notwithstanding that less than all of the owners of the existing lawfully established unit of land have applied for the approval”) supported its interpretation of ORS 92.176 by requiring that the parent parcel be an existing lawfully established unit of land. Petitioner argued that ORS 92.177 authorizes a local government to accept an application that is not signed by all the owners of the parent parcel and does not require an applicant to show the parent parcel is lawfully established. LUBA agreed with the Petitioner. LUBA determined that ORS 92.176(1) requires Petitioner to show that the property’s creation could have complied with the County’s subdivision ordinance.