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Bowerman v. Lane County

Court of Appeals of Oregon

May 9, 2018

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

          Land Use Board of Appeals 2016008

         On petitioner's petition for reconsideration fled September 6, 2017, respondents McKenzie Bowerman and Bowerman Family LLC's response to petition for reconsideration fled September 13, 2017, and respondent Lane County's response to petition for reconsideration fled September 13, 2017. Opinion fled August 23, 2017. 287 Or.App. 383, 403 P.3d 512.

          Bill Kloos and Law Offce of Bill Kloos, PC, for petition.

          Sean Malone for response of respondents McKenzie Bowerman and Bowerman Family LLC.

          Stephen E. Dingle and H. Andrew Clark for response of respondent Lane County.

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

         Case Summary: Petitioner seeks reconsideration of Bowerman v. Lane County, 287 Or.App. 383, 403 P.3d 512 (2017), in which the Court of Appeals affirmed LUBA's decision to remand to Lane County its decision ministerially approving petitioner's application for a sequence of nine lot line adjustments. LUBA had also [291 Or.App. 652] remanded the approval because the county erred in its approval of adjustments to property lines that would not exist but for the county's approval of 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. The Court of Appeals did not address that second ground because it was not reasonably certain that that issue would recur following remand and that it was, therefore, premature to consider it. Petitioner and the county seek reconsideration of that second ground on the basis that that issue is almost certain to recur following the remand.

         Held: ORS chapter 92 does not contain a limitation on property line adjustment applications, and LUBA therefore erred when it concluded that ORS chapter 92 prohibited the county from approving the requested sequence of lot line adjustments because they were requested in a single application.

          [291 Or.App. 653] LAGESEN, P. J.

         Petitioner has petitioned for reconsideration of our decision in Bowerman v. Lane County, 287 Or.App. 383, 403 P.3d 512 (2017). In that decision, we affirmed LUBAs decision to remand to Lane County its decision ministerially approving petitioner's application for a sequence of nine lot line adjustments. Id. at 385. LUBA remanded based on its conclusion that the county committed two procedural errors: (1) that the county erred by employing a ministerial process to approve the lot line adjustments and was required, instead, to use the planning director review process otherwise required by Lane Code 13.450(5); and (2) that the county erred by approving adjustments to property lines that would not exist but for the county's approval of 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. Id. We concluded that LUBA correctly had remanded on the first and affirmed on that basis. Id. We did not address the second ground for remanding for a discretionary reason: that we were not reasonably certain that it would recur following remand and that it was, therefore, premature to consider it. Id. at 385, 398.

         As noted, petitioner now seeks reconsideration of our decision. The county, which has not previously appeared in this judicial review, supports that request for reconsideration. Neither petitioner nor the county contests the correctness of our conclusion that the county was required to use the planning director approval process to approve petitioner's requested property line adjustments and that a remand is required for that reason. Rather, both petitioner and the county assert that reconsideration is warranted for the purpose of deciding the issue that we left undecided- that is, whether ORS chapter 92, which governs property line adjustments, precludes a local government from permitting an applicant from requesting the approval of a sequence of property line adjustments when one or more of the proposed adjustments are to property lines that will not exist unless the local government approves the adjustments requested earlier in the sequence. They argue that the issue is almost certain to recur following the remand. Petitioner asserts that he has a significant interest in knowing whether he [291 Or.App. 654] must pay only a single application fee or must, instead, submit multiple applications and pay multiple application fees. The county points out that it has a strong interest in knowing whether it can permit an applicant to submit a single application requesting a sequence of multiple property line adjustments where, as here, some of the requested adjustments are to property lines that will not exist unless the county approves one or more of the adjustments requested earlier in the sequence. The remaining respondents oppose reconsideration, arguing that we should adhere to our discretionary decision not to address the single application issue at this time.

         Having considered the parties' arguments, we are persuaded to allow reconsideration to resolve the issue that we previously declined to address. At a minimum, we are convinced that resolving it will afford needed clarity to the county regarding the constraints on its property line adjustment approval process that likely will affect how it permits petitioner to apply for approval on the nine lot line adjustments that he seeks as well as the process the county will employ to process other similar applications. With that said, we conclude that, on the merits, ORS chapter 92 does not contain a limitation on property line adjustment applications. LUBA therefore erred when it concluded that ORS chapter 92 prohibited the county from approving the requested sequence of lot line adjustments because they were requested in a single application.

         A detailed recitation of the facts underlying this dispute can be found in our original opinion. Bowerman, 287 Or.App. at 388-91. To provide context for the question before us on reconsideration, we set forth our previous description of LUBAs resolution of the legal issue now before us:

"LUBA also concluded that a remand was required for a different reason: ORS chapter 92 implicitly precludes a local government from approving more than one property line adjustment in a single decision where, as of the time of decision, some of the adjustments are to ...

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