Landwatch Lane County v. Lane County

Under ORS 215.790(2)(e)(A), in determining whether a forest-zoned parcel is exempt from the 80-acre minimum parcel size, the county must consider the parcel that is the subject of the application for a partition, not the unit of land of which the subject parcel was considered a part on November 4, 1993.

The subject property is 48 acres, zoned Non-Impacted Forest (F-1), and part of tax lot 1500, which is 80 acres in total. In 1991, the county issued a verification that tax lot 1500 was a single legal parcel. At that time, two dwellings lawfully existed on the tax lot: a dwelling located on the subject property and a mobile home located on the remainder of tax lot 1500. In 1995, the county issued a replacement permit for the mobile home, which was placed on the subject property. In 2015, the county issued a verification that tax lot 1500 consists of two legal parcels, one of which being the subject property. In 2017, the county approved intervenor’s application to partition the subject property. This appeal followed. 

Under ORS 215.790(1)(c), the minimum parcel size for forest-zoned land is 80 acres unless a smaller parcel size is allowed under ORS 215.780(2). ORS 215.780(2)(e)(A) allows creation of forest-zoned parcels less than 80 acres if at least two dwellings lawfully existed “on the lot or parcel” prior to November 4, 1993. The county concluded that, although the mobile home was not located on the subject property in 1993, intervenor’s application satisfied ORS 215.790(2)(e)(A) because, at that time, tax lot 1500 was considered a single legal parcel. In the first assignment of error, petitioner argues the county’s decision improperly construes ORS 215.790(2)(e)(A). Intervenor responds that the county correctly interpreted the statute to conclude that if, on November 4, 1993, a property owner thought it had a legal parcel on which two dwellings existed, its rights under the statute are not extinguished by the finding of another legal parcel at a later point in time. LUBA agrees with petitioner that the phrase “on the lot or parcel” in ORS 215.790(2)(e)(A) requires the county to consider the parcel that is the subject of the application for a partition, not the parcel of which the subject property was considered to be a part on November 4, 1993. The first assignment of error is therefore sustained and the county’s decision is REVERSED.