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Landwatch Lane County v. Lane County

Supreme Court of Oregon

April 25, 2019

LANDWATCH LANE COUNTY, Petitioner on Review,
v.
LANE COUNTY, Respondent on Review, and Kay KING, Respondent on Review.

          Argued and submitted November 5, 2018

          On review from the Court of Appeals (LUBA 2017-056) (CA A166333). [*]

          Sean Malone, Eugene, argued the cause and fled the brief for petitioner on review.

          Michael J. Gelardi, Hershner Hunter, LLP, Eugene, argued the cause and fled the brief for respondent on review Kay King.

          No appearance on behalf of Lane County. David J. Hunnicutt, Tigard, fled the brief for amicus cur-iae Oregonians in Action.

          Brian R. Talcott, Dunn Carney Allen Higgins & Tongue LLP, Portland, and Mary Anne Cooper, Oregon Farm Bureau, Salem, fled the brief for amicus curiae Oregon Farm Bureau Federation.

         [364 Or. 725] Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices. [**]

         The decision of the Court of Appeals is reversed. The final order of the Land Use Board of Appeals is affirmed, and the case is remanded to the Board for further proceedings.

         Case Summary: Landowner received county approval to replace certain dwellings on exclusive farm use-zoned land under Oregon Laws 2013, chapter 462, section 2. LandWatch appealed that decision to the Land Use Board of Appeals, which held that that statute did not apply to landowner's buildings because landowner had demolished them more than five years before she applied for the permits. Landowner obtained judicial review in the Court of Appeals, and the Court of Appeals reversed. Held: (1) Oregon Laws 2013, chapter 462, section 2(2) does not authorize replacement dwelling permits for dwelling that were destroyed or demolished more than five years before the permit application was fled; (2) landowner cannot obtain replacement permits under that subsection.

         The decision of the Court of Appeals is reversed. The final order of the Land Use Board of Appeals is affirmed, and the case is remanded to the Board for further proceedings.

         [364 Or. 726] BALMER, J.

         This land use case requires us to interpret a 2013 statute, Oregon Laws 2013, chapter 462, section 2, that allows landowners to replace certain dwellings on land that is zoned for exclusive farm use (EFU). Kay King owns EFU-zoned land in Lane County and received county approval to replace three dwellings on the property that had been demolished in 1997. The issue is whether the 2013 statute authorizes the construction of replacements for the three dwellings. After the county approved the construction permits, LandWatch Lane County (LandWatch) appealed to the Land Use Board of Appeals (LUBA), which reversed the county's approval, holding that the statute did not permit construction of the replacement buildings. LandWatch Lane County v. Lane County, 76 Or LUBA 350 (2017). King petitioned for judicial review of the LUBA decision, and the Court of Appeals reversed. LandWatch Lane County v. Lane County, 291 Or.App. 41, 420 P.3d 37 (2018). We allowed LandWatch's petition for review, and, for the reasons set out below, we reverse the decision of the Court of Appeals and remand to LUBA for further proceedings.

         I. BACKGROUND

         We take the facts from the record of the proceedings below. King, hereafter referred to as "landowner," owns a farm of approximately 100 acres in rural Lane County, near the city of Florence. In 1997, landowner obtained permits to demolish three lawfully-established dwellings on the property-one built in the early 1900s, one in the 1940s, and one in the 1950s. Landowner demolished those buildings pursuant to the permits. In 2016, landowner applied for special use permits to construct three replacement dwellings, and the county granted the permits in 2017. The county concluded that the applications met the requirements of the 2013 statute for the construction of replacement dwellings on EFU-zoned land. We discuss that statute in detail below.

         LandWatch appealed the county's issuance of the permits to LUBA, raising various arguments, including that the 2013 statute was not intended to allow the general "replacement" of dwellings that landowners had demolished long before the statute was enacted. LUBA agreed and held [364 Or. 727] that the statutory provision on which landowner had relied was intended to allow replacement of only dwellings on EFU-zoned land that had been assessed as dwellings for property tax purposes within the five years immediately preceding the permit application. Landowner filed a petition for judicial review of the LUBA decision to the Court of Appeals, which reversed, holding that "the statute exempts destroyed or demolished buildings from the [previous five-year assessment] finding otherwise required." LandWatch Lane County, 291 Or.App. at 52. We allowed LandWatch's subsequent petition for review.

         II. ANALYSIS

         A. Introduction

         The challenge that LUBA and the Court of Appeals faced-and that we now confront-is the scope of a particularly opaque statute, Oregon Laws 2013, chapter 462, section 2. The parties agree that through that statute, the 2013 Legislative Assembly undertook to modify and to expand the circumstances under which a dwelling could be built on EFU-zoned land.[1] They further agree that the changes that the legislature adopted were not intended to permit the construction of dwellings where no dwelling had ever existed previously. The dispute, rather, is over the scope of the 2013 statute and, in particular, the circumstances under which an existing or former dwelling can be replaced.[2] The parties reprise the arguments that they made to LUBA and to the Court of Appeals, with LandWatch arguing that the disputed provision of the statute generally permits the replacement of only buildings that were assessed as dwellings during some part of a five year period preceding the permit application, and landowner arguing that that provision permits the [364 Or. 728] replacement of buildings that had at one time been assessed as dwellings, even if they were demolished more than five years before the owner applied for a permit to construct a replacement dwelling.[3]

         The parties' dispute requires us to construe the 2013 statute, which modified earlier laws regarding the replacement of dwellings on EFU-zoned land. In doing so, we employ our usual methodology to determine the legislature's intention in enacting the statute by looking at the text of the statute in context, along with any useful legislative history. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

         Section 2 of 2013 Oregon Laws, chapter 462 provides:

"(1) A lawfully established dwelling may be altered, restored or replaced * * * 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 permitting authority:
"(a) Finds to the satisfaction of the permitting authority that the dwelling to be altered, restored or replaced has, or formerly had:
"(A) Intact exterior walls and roof structure;
"(B) Indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system;
"(C) Interior wiring for interior lights; and
[364 Or. 729] "(D) A heating system; and "(b) Finds that the dwelling was assessed as a dwelling for purposes of ad valorem taxation 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) From the time when the dwelling was erected upon or affixed to the land and became subject to assessment as described in ORS 307.010 unless the value of the dwelling was eliminated as a result of the destruction, or demolition in the case of restoration, of the dwelling.
"(3) The dwelling may be altered, restored or replaced if, when an application for a permit is submitted, the dwelling meets the requirements of subsection (2)(a) of this section, the dwelling does not meet the requirement of subsection (2)(b) of this section, and the applicant establishes to the satisfaction of the permitting authority that the dwelling was improperly removed from the tax roll by a person other than the current owner."

(Emphasis added.)[4] Now, put a finger on that statutory text-or pull it up in another browser window, as the case may be-because we will refer to it ...


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