and submitted January 9, 2018
Use Board of Appeals 2017056
Michael J. Gelardi argued the cause for petitioner. With him
on the brief was Hershner Hunter, LLP.
T. Malone argued the cause and fled the brief for respondent
LandWatch Lane County.
appearance for respondent Lane County.
Ortega, Presiding Judge, and Garrett, Judge, and Powers,
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
Or. 43] GARRETT, J.
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
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.
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