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Lenn v. Lane County

Court of Appeals of Oregon

May 17, 2017

Ronald LENN and Kathleen Lenn, Petitioners-Appellants,
v.
LANE COUNTY, a political subdivision of the State of Oregon; and Dennis Bottem, Respondents-Respondents.

          Argued and Submitted November 25, 2015

         Lane County Circuit Court 161214376; Karsten H. Rasmussen, Judge.

          Zack P. Mittge argued the cause for appellants. With him on the briefs was Hutchinson, Cox, Coons, Orr & Sherlock, P. C .

          Aaron J. Noteboom argued the cause for respondent Dennis Bottem. With him on the briefs was Arnold Gallagher P. C .

          No appearance for respondent Lane County.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary:

         Petitioners appeal a circuit court judgment on writ of review upholding Lane County's partition of respondent's property and approval of a second home site on that property under Measure 49. Petitioners contend that the trial court and the county erred in approving the partition and homesite, because the approval depends on access from an existing easement that does not comply with the county's current minimum easement-width standards. Held: The circuit court did not err. Because the partition and additional dwelling were approved by the Department of Land Conservation and Development under Measure 49, the county may not apply its land use development standards in a manner that has the effect of prohibiting the establishment of the dwelling, unless those standards are necessary to prevent a nuisance or for the protection of public health and safety. The county found that the nuisance and public health and safety concerns are not implicated here, and those findings are supported by substantial evidence.

         Affirmed.

          ARMSTRONG, P.J.

         In this writ of review proceeding, petitioners Ronald and Kathleen Lenn appeal a judgment of the circuit court upholding Lane County's partition of respondent Bottem's property and approval of a second home site on that property under Measure 49 (2007). Petitioners contended in the trial court that the county erred in approving the partition because it depends on access from an existing easement that does not comply with the county's current minimum easement-width standards. The court rejected the contention, concluding that the Lane County Land Use and Development Code (Lane Code or LC) exempted the easement from the generally applicable minimum-width requirement. On appeal, petitioners contend that the court's interpretation of the Lane Code provision is erroneous. Bottem responds that the county's interpretation is a plausible one that is consistent with the text of the provision and that is therefore entitled to deference under Siporen v. City of Medford. 349 Or 247, 243 P.3d 776 (2010). As an alternative ground for affirmance, Bottem contends that the county's approval must be upheld under Measure 49.[1] In reviewing the court's judgment affirming the partition and authorization of the home site for legal error and substantial evidence, ORS 34.040, we agree with Bottem's alternative argument and therefore affirm.

         The relevant facts are few and undisputed. Bottem owns approximately 32 acres of land in Lane County, identified as Tax Lot 607. The property is zoned for exclusive farm use and is managed for livestock and hay-crop production. Tax Lot 607 is improved with a single-family residence and outbuildings. Since 1979, access to the property has been over an easement that crosses petitioners' farm/vineyard property to the east from Central Road (the Central Road easement). As it passes through petitioners' property, the easement is 20 feet wide and improved with a 10-foot paved roadway.

         Before 2004, the minimum required width for a private-access easement in Lane County was 20 feet. Former LC 15.055(4). In 2004, Lane County amended its code to require that a private-access easement serving one to three properties have a minimum width of 30 feet. The applicable code provisions "grandfathered" some existing private-access easements. LC 15.055(4) provides:

"The minimum width for private access easement shall be of a width determined by the County suitable for the intended use, but in no case less than 30 feet. Notwithstanding this requirement, a pre-existing easement of at least 20 feet in width and serving a lot or parcel created in its present configuration prior to April 28, 2004 is ...

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