- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 04-08-2022
- Case #: 2021-121
- Judge(s)/Court Below: Opinion by Ryan
- Full Text Opinion
A county hearings officer approved Petitioner’s application to verify two abutting units of land as lots of record on condition that the lots be aggregated prior to any planning decisions or permitting. The lots were currently zoned EFU, but when created by deed in 1968 were zoned F-2. Tax Lot 1100 is 20.05 acres. Tax Lot 1200’s size was at issue in the initial proceedings.
On appeal to LUBA, Petitioner took issue with the condition of approval, arguing that 1) substantial evidence did not support the hearings officer’s finding that Tax Lot 1200 was under two acres in 1968, and alternatively, 2) if the area was under two acres it should not have been considered a “lot” and therefore was exempt from the aggregation requirement in MCC 39.3070. Multnomah County Code (MCC) 39.3005 provides that a “lot of record” must meet current zoning district standards in addition to applicable zoning laws at the time of the lot’s creation. F-2 lots had a minimum size of two acres in 1968. MCC 39.3070 provides that in addition to fulfilling MCC 39.3005, contiguous units of land zoned EFU under the same ownership on February 20, 1990, must have a minimum lot size of 19 acres or be aggregated.
Where a petitioner fails to raise an issue in an initial evidentiary proceeding, the issue may not be raised for the first time before LUBA. ORS 197.797(1); ORS 197.835(3).
LUBA rejected Petitioner’s arguments because Petitioner never raised them during evidentiary proceedings, the essential determination by the hearings officer was that the land was a “lot of record,” and, even if the stand-alone definition of “lot” bore on that decision, Tax Lot 1200 fits the definition of “lot” in MCC 39.2000 because it is a unit of land owned by and in the lawful possession of one distinct ownership. Affirmed.