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Landwatch Lane County v. La Ne County

Court of Appeals of Oregon

March 28, 2018

LANDWATCH LANE COUNTY, Respondent,
v.
LA NE COUNTY, Respondent, and Kay KING, Petitioner.

          Argued and submitted January 9, 2018

          Land Use Board of Appeals 2017056

          Michael J. Gelardi argued the cause for petitioner. With him on the brief was Hershner Hunter, LLP.

          Sean T. Malone argued the cause and fled the brief for respondent LandWatch Lane County.

          No appearance for respondent Lane County.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary:

Petitioner seeks judicial review of a final order of the Land Use Board of Appeals (LUBA), which reversed a decision by Lane County to issue three replacement-dwelling permits for former dwellings sited on land zoned for exclusive farm use. The county issued the permits pursuant to Oregon Laws 2013, chapter 462, section 2(b) (the 2013 Act), which allows the permitting authority to issue replacement-dwelling permits only if it finds that the former dwelling was taxed as a dwelling "for the lesser of" (A) the previous five property tax years "unless the value of the dwelling was eliminated as a result of the destruction, or demolition in the case of restoration, of the dwelling" or (B) the time when the dwelling was built "unless the value of the dwelling was eliminated as a result of the destruction, or demolition in the case of restoration, of the dwelling." Petitioner assigns error to LUBA's conclusion that the former dwellings, which were demolished in 1997, did not qualify for replacement-dwelling permits under the 2013 Act because they had not been taxed as dwellings in any of the five years preceding the permit applications. Held: LUBA's order was unlawful in substance because its construction of the 2013 Act was in error. The two "unless" phrases [291 Or. 42] in subparagraphs (2)(b)(A) and (B) of the 2013 Act had the effect of exempting destroyed or demolished buildings from the "lesser of" taxation requirement that otherwise applied.

         Reversed and remanded.

         [291 Or. 43] GARRETT, J.

         Petitioner, who owns a parcel of land zoned for exclusive farm use (EFU) in Lane County, received county approval under a 2013 statute to build three replacement dwellings on the property. Respondent LandWatch Lane County (LandWatch) appealed that decision to the Land Use Board of Appeals (LUBA), which reversed the county On judicial review, petitioner argues that LUBAs order is unlawful in substance because it misconstrues the requirements of Oregon Laws 2013, chapter 462, section 2. We agree, and we therefore reverse and remand LUBAs order.

         We take the relevant facts from LUBAs opinion. In 2016, petitioner applied for permits to replace three dwellings previously located on her property that had been demolished in 1997. A county planning director approved the applications. In response to LandWatch's challenge, Lane County conducted further proceedings, which resulted in the applications being approved by a county hearings official and ultimately by the county's board of commissioners. LandWatch appealed that decision to LUBA.

         At issue before LUBA was the meaning of House Bill (HB) 2746 (2013) (the 2013 Act), through which the legislature amended the requirements for replacement dwellings in EFU-zoned land. Section 2 of the 2013 Act provides, in part:

"(1) A lawfully established dwelling may be altered, restored or replaced under ORS 215.213(1)(q) or 215.283 (1)(p) in the manner provided by either subsection (2) or (3) of this section.
"(2) The dwelling may be altered, restored or replaced if, when an application for a permit is submitted, the ...

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