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Bowerman v. Lane County

Court of Appeals of Oregon

August 23, 2017

McKenzie BOWERMAN and Bowerman Family LLC, Respondents,
v.
LANE COUNTY, Respondent, and Verne EGGE, Petitioner.

         Land Use Board of Appeals 2016008

          Argued and submitted April 5, 2017

          Dan Terrell argued the cause for petitioner. On the brief were Bill Kloos and Law Offce of Bill Kloos, PC.

          Sean T. Malone argued the cause and fled the brief for respondents McKenzie Bowerman and Bowerman Family LLC.

          No appearance for respondent Lane County.

          Before Egan, Presiding Judge, and Lagesen, Judge, and Linder, Senior Judge.

         Case Summary:

         Petitioner seeks review of a final order of the Land Use Board of Appeals (LUBA) that remanded to Lane County (the county) its decision ministerially approving petitioner's application for a sequence of nine property line adjustments. LUBA remanded on two bases. First, LUBA concluded that the county erred by employing the ministerial process authorized by Lane Code (LC) 13.450(4) to approve the application. Instead, LUBA concluded, the county was required to use the planning director approval process otherwise required by LC 13.450(5). Second, LUBA concluded that the county erred to the extent that it approved adjustments to property lines that would not exist but for the county's approval of the property line adjustments requested in the early part of the sequence, and that, as of the time of approval, were not refected in recorded deeds. On review, petitioner challenges both bases for the remand and also contends that LUBA lacked jurisdiction.

         Held: Because the legal and procedural [287 Or. 384] correctness of the county planning director's approval of property line adjustments required the exercise of legal interpretation by LUBA, LUBA had jurisdiction to review the county's procedural decisions. Moreover, LC 13.450(4)(c), correctly construed, authorizes the planning director to ministerially approve a single property line adjustment based on a surveyor's certification that the affected units of land will not be reduced below the minimum size required by applicable zoning requirements and that the adjustment will not result in non-conforming or more nonconforming setbacks. The issue of whether the county may approve adjustments to property lines that, as of the time of approval, are not refected in a recorded deed was not reached because it is not clear whether that issue will recur.

         Affirmed.

         [287 Or. 385] LAGESEN, J.

         Petitioner seeks review of a final order of the Land Use Board of Appeals (LUBA). The order remands to Lane County (the county) its decision ministerially approving petitioner's application for a sequence of nine property line adjustments. LUBA remanded on two bases. First, LUBA concluded that the county erred by employing the ministerial process authorized by Lane Code (LC) 13.450(4) to approve the application. Instead, LUBA concluded, the county was required to use the planning director review process otherwise required by LC 13.450(5). Second, LUBA concluded that the county erred to the extent that it approved adjustments to property lines that would not exist but for the county's approval of the property line adjustments requested in the early part of the sequence, and that, as of the time of approval, were not reflected in recorded deeds. On review, petitioner challenges both bases for the remand and also contends that LUBA lacked jurisdiction. We reject petitioner's jurisdictional argument and affirm LUBA's determination that the county erred by ministerially approving petitioner's application, albeit for a different reason than LUBA. We do not reach the issue of whether the county may approve adjustments to property lines that, as of the time of approval, are not reflected on a recorded deed because it is not clear whether that issue will recur.

         I. BACKGROUND

         A. State and County Law Governing Reconfiguration of Land Through Property Line Adjustments

         ORS chapter 92 governs when and how a unit of land can be configured (or reconfigured) into smaller units of land: "No land may be subdivided or partitioned except in accordance with ORS 92.010 to 92.192." ORS 92.012. Subdividing means dividing a unit of land to create four or more units of land within a calendar year, and results in a "subdivision." ORS 92.010(16) and (17). Partitioning means dividing a unit of land to create three or fewer units of land within a calendar year, and results in a "partition." ORS 92.010(7) and (9). The relevant statutes impose various prerequisites to the approval of subdivisions and partitions, [287 Or. 386] including the requirement of submitting a tentative plan illustrating the general design of the proposed subdivision or partition. ORS 92.040; ORS 92.044.

         The statutes afford an alternative to the subdivision and partition process for reconfiguring land: property line adjustments. ORS 92.010(9) explains that "Partitioning land" within the meaning of the statute does not include the process of adjusting a property line in the manner defined by the statute:

"'Partitioning land' means dividing land to create not more than three parcels of land within a calendar year, but does not include:
****** "(b) Adjusting a property line as property line adjustment is denned in this section[.]"

         ORS 92.010(11), in turn, defines "Property line" as "the division line between two units of land" and ORS 92.010(12) defines "Property line adjustment" as

"a relocation or elimination of all or a portion of the common property line between abutting properties that does not create an ...

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