Jenkinson v. Lane County ( 2023 )

372 December 6, 2023 No. 635
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Marcia JENKINSON
and Dan Jenkinson,
Petitioners,
v.
LANE COUNTY,
Respondent.
Land Use Board of Appeals
2022101, 2022102; A181949
Argued and submitted September 20, 2023.
Zachary P. Mittge argued the cause for appellant. Also on
the brief was Hutchinson Cox.
Rebekah Dohrman argued the cause and filed the brief
for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Reversed and remanded.
Cite as 329 Or App 372 (2023) 373
MOONEY, J.
This land use case concerns Lane County’s denial of
petitioners’ application for legal lot verification (LLV) of two
adjacent lots.1 The county planning director concluded that
the property from which petitioners’ lots were created had
been unlawfully divided into four or more properties in 1961
and, therefore, denied petitioners’ application for LLV. The
county hearings official agreed with the planning director
and affirmed the planning director’s decision in separate
orders, one for each lot. LUBA affirmed the hearings offi-
cial’s orders and this petition for judicial review of LUBA’s
final order followed. Petitioners assign error to LUBA’s
decision as unlawful in substance, arguing that the law in
effect in 1961 did not require their predecessors in inter-
est to obtain county approval before subdividing their real
property into four lots, each of which was at least five acres
in size. We conclude that LUBA incorrectly interpreted ORS
92.044 (1961)2 as a delegation of authority to Lane County
to adopt approval standards for such land divisions. That
incorrect interpretation of the law led LUBA to affirm the
denial of petitioners’ LLV application, which was legal error.
We reverse LUBA’s final order affirming the county’s deci-
sion to deny petitioners’ LLV application.3
STANDARD OF REVIEW
We have jurisdiction under ORS 197.850(3)(a).
Petitioners challenge LUBA’s final opinion and order as
“unlawful in substance” under ORS 197.850(9)(a). Our
task is to review “whether LUBA correctly applied the
law.” Coopman v. City of Eugene, 327 Or App 6, 10, 534 P3d
1105 (2023). The question of delegated authority was key
to LUBA’s decision-making process and required LUBA to
interpret state law when it answered the question whether
1
“ ‘Lot’ means a single unit of land that is created by a subdivision of land.”
ORS 92.010(4).
2
Amended by Or Laws 1973, ch 696, § 9; Or Laws 1974, ch 74, § 2; Or Laws
1979, ch 671, § 1; Or Laws 1981, ch 590, § 5; Or Laws 1983, ch 570, § 1; Or Laws
1983, ch 826, § 9; Or Laws 1983, ch 827, § 19e; Or Laws 1987, ch 649, § 11; Or
Laws 1989, ch 772, § 6; Or Laws 1991, ch 763, § 8; Or Laws 1993, ch 792, § 46; Or
Laws 1997, ch 489, § 1; Or Laws 1999, ch 348, § 12; Or Laws 2005, ch 399, § 4; Or
Laws 2007, ch 652, § 2.
3
We need not, and do not, reach petitioners’ second assignment of error.
374 Jenkinson v. Lane County
the 1961 conveyance that created the parcel from which
petitioners’ lots were later created was subject to county
approval as a subdivision of land. Our review, thus, includes
an assessment of whether LUBA’s order “represent[s] a mis-
taken interpretation of the applicable law.” Mountain West
Investment Corp. v. City of Silverton, 175 Or App 556, 559,
30 P3d 420 (2001). Our job is to determine what the legis-
lature most likely intended when it enacted and modified
the relevant statutory provisions. 1000 Friends of Oregon
v. Clackamas County, 309 Or App 499, 504, 483 P3d 706,
rev den, 368 Or 347 (2021). “[W]e are obligated to interpret
those statutory provisions correctly, regardless of the par-
ties’ assertions of statutory interpretation.” Central Oregon
LandWatch v. Deschutes County, 285 Or App 267, 277, 396
P3d 968 (2017). We do that by examining the text of those
provisions in context. Chinese Consolidated Benevolent Assn.
v. Chin, 316 Or App 514, 518, 504 P3d 1196 (2021), rev den,
369 Or 855 (2022). If necessary, we may also examine any
legislative history and relevant maxims of construction. Id.FACTS
Petitioners sought verification from Lane County in
March 2022 that their two adjoining lots in Lane County
were lawfully established units of land. Lane Code (LC) sec-
tion 13.140 provides the process and criteria for determin-
ing whether a piece of real property can be verified as a legal
lot. An application for LLV “will be approved if the subject
property is a lawfully established unit of land as defined
by [chapter 13 of the Lane Code].” LC § 13.140(3). LC sec-
tion 13.030(3)(n)(ii)(aa) defines a lawfully established unit
of land to be a “unit of land created[ ] [i]n compliance with
all applicable planning, zoning and subdivision or partition
ordinances and regulations[.]”
The county planning director determined that, in
1961, petitioners’ predecessors in interest were required by
the county to obtain county approval to divide their prop-
erty into four or more lots. Because petitioners’ predecessors
did not get that approval, the planning director refused to
verify petitioners’ lots as lawfully established units of land.
The hearings official affirmed the planning director’s denial
of LLV, concluding that the land division accomplished
Cite as 329 Or App 372 (2023) 375
through legal conveyances in 1961 required, but did not
have, approval from the county. Addressing the county’s
authority to impose approval requirements when the prop-
erty was divided into lots of five or more acres, despite the
state defining “subdivide land” to mean the creation of plots
of less than five acres, the hearings official found that “the
legislature * * * expressly authorize[d] counties to impose
more restrictive regulations than those set forth in statute.”
LUBA affirmed the hearings official’s decision on appeal.
ANALYSIS
Our analysis hinges on the interplay between state
law delegating authority to counties to regulate land subdi-
visions, and the competing state and county definitions of
“subdivide land.”
Lane County did not adopt a home-rule charter
under Article VI, section 10, of the Oregon Constitution until
1962, after the subject conveyances had been completed. The
parties correctly agree that, because of that, Lane County’s
authority to adopt its own approval standards for the sub-
division of land within its geographic boundaries existed
only to the extent that such authority was delegated to it
by the legislature, in which the “legislative power” of the
state is otherwise generally vested pursuant to Article IV,
section 1, of the Oregon Constitution. See Grant County v.
Lake County, 17 Or 453, 463-64, 21 P 447 (1889) (explaining
that “[a] county is mainly a mere agency of the state govern-
ment[ ]—a function through which the state administers its
governmental affairs”).
The Oregon Legislature first authorized county gov-
erning bodies to adopt approval standards for the subdivi-
sion of land in 1947. Or Laws 1947, ch 537, § 7. Lane County
adopted an ordinance two years later “for the purpose of
adopting subdivision regulations” pursuant to “Chapter 537,
Oregon Laws 1947.” Lane County Subdivision Ordinance
(LCSO) No. 3, § I. The ordinance included the requirement
that a landowner obtain county approval when subdividing
land. Id. § II. Oregon statutes were recodified in 1953 and
subsequently referred to as the Oregon Revised Statutes.
ORS chapter 215 concerns county planning and ORS
376 Jenkinson v. Lane County
chapter 92 concerns plats and land divisions and applies
both to counties and cities. In 1955, the legislature amended
provisions within each of those chapters, and in particular,
eliminated the definition of “subdivide land” that had been
codified at ORS 215.010 and replaced it by reference to the
definition of that term in ORS 92.010, which it also modi-
fied. Or Laws 1955, ch 756, §§ 1, 25.
The state laws and county ordinance that applied
to the subdivision of land in Lane County in 1961 included
ORS 92.010 to 92.990 (1961) and LCSO No. 3. The state
statutes had not been amended in any pertinent way since
1955. State law defined “subdivide land,” in 1961, as:
“* * * to partition a parcel of land into four or more parcels
of less than five acres each for the purpose of transfer of
ownership or building development, whether immediate
or future, when such parcel exists as a unit or contiguous
units under a single ownership as shown on the tax roll for
the year preceding the partitioning.”
ORS 92.010(2) (1961).4 Lane County’s definition of “subdi-
vide land” in 1961 was:
“* * * to partition, plat, or subdivide land into four (4) or
more lots, blocks, or tracts, or containing a dedication of
any part thereof as a public street or highway, for other
than agricultural purposes.”
LCSO No. 3, § II. Lane County’s definition was, thus,
broader than that of the state. The state statute defined
“subdivide land” to include subdivisions of a parcel of land
within a single tax year that resulted in creating four or
more parcels less than five acres in size. The county ordi-
nance defined “subdivide land” to include subdivisions that
resulted in four or more parcels, without time or size lim-
itations. Therefore, the requirement in LCSO No. 3 that a
landowner obtain county approval when subdividing land
applied to more land divisions under the county definition
than the state definition. It bears noting that LCSO No. 3
4
ORS 92.010 (1961), amended by Or Laws 1973, ch 696, § 3; Or Laws 1977,
ch 809, § 4; Or Laws 1979, ch 46, § 1; Or Laws 1985, ch 369, § 5; Or Laws 1985,
ch 717, § 1; Or Laws 1989, ch 772, § 1; Or Laws 1991, ch 763, § 1; Or Laws 1993,
ch 702, § 1; Or Laws 1993, ch 704, § 4; Or Laws 1995, ch 382, § 3; Or Laws 1997,
ch 268, § 1; Or Laws 2001, ch 544, § 3; Or Laws 2005, ch 399, § 1; Or Laws 2007,
ch 652, § 1; Or Laws 2007, ch 866, § 4; Or Laws 2008, ch 12, § 3.
Cite as 329 Or App 372 (2023) 377
applied, but only to the extent that it was authorized by
statute and so long as it did not contravene state law. “The
validity of local action depends, first, on whether it is autho-
rized by the local charter or by a statute[;] * * * second, on
whether it contravenes state or federal law.” Urban Renewal
Comm. of Oregon City v. Williams, 322 Or App 615, 619, 521
P3d 494 (2022), rev den, 371 Or 127 (2023) (internal quota-
tion marks and brackets omitted).
LUBA focused on section 9 of Or Laws 1955, ch 756,
codified at ORS 92.044(1), as the source of the county’s dele-
gated authority. ORS 92.044(1) (1961) provided:
“The governing body of a county * * * may, by regulation
or ordinance, adopt standards, in addition to those other-
wise provided by law, governing, in the area over which
the county * * * has jurisdiction under section 4 of this Act,
the approval of plats of subdivisions and of partitioning of
land by creation of a street or way where the additional
standards are considered necessary to carry out develop-
ment patterns or plans and to promote the public health,
safety or general welfare. Such standards may include * * *
requirements for the placement of utilities, for the width
and location of streets or for minimum lot sizes and such
other requirements as the governing body considers nec-
essary for lessening congestion in the streets, for securing
safety from fire, flood, pollution or other dangers, for pro-
viding adequate light and air, for preventing overcrowding
of land or for facilitating adequate provision of transpor-
tation, water supply, sewerage, drainage, education, recre-
ation or other needs.”
LUBA concluded that ORS 92.044(1) (1961) delegated
authority to the county to regulate the division of land,
and to do so “more stringently than state law, including by
applying a different and more restrictive definition of ‘sub-
divide land.’ ”5
5
The parties framed the issue as involving delegated authority under ORS
92.044(1) (1961). Reading ORS 92.044(1) (1961) according to common rules of
syntax and grammar, the statute permitted county governing bodies to create
local standards for the approval of (1) plats of subdivisions, and (2) partitioning
land by creation of a street or way, (3) when additional standards were thought
necessary (a) to carry out development patterns or plans, and (b) to promote the
public health, safety, or general welfare. The record does not, however, reflect the
development of facts suggesting that the division of property in 1961 was related
to a plat of subdivisions or that its division was associated with the creation of a
378 Jenkinson v. Lane County
LUBA concluded that the county was subject to the
one-year time limitation that had been a statutory limita-
tion since 1955, even though the county’s definition of sub-
dividing land did not include that limitation. LUBA viewed
the size limitation differently, though, characterizing the
absence of the statutory acreage limit in the county’s ordi-
nance simply as evidence of the county’s more “stringent”
subdivision standards by including, rather than exempting,
larger parcels from its approval standards. It adopted the
reasoning of the hearings official:
“State law in 1961 only required a landowner to obtain land
division approval if, among other things, the land division
resulted in four or more parcels and each resulting par-
cel was less than five acres. Ordinance No. 3, on the other
hand, required land division approval even where resulting
parcels were five acres or larger. In this regard Ordinance
No. 3 is more onerous, or restrictive, than state law.”
We conclude that LUBA’s interpretation of the stat-
utes is incorrect. LUBA’s disparate treatment of the acre-
age and time limitations is logically inconsistent. Just as
requiring county approval for plots larger than five acres is
more onerous, requiring land division approval without the
statutory time limitation would, by the same logic, also be
more onerous in the sense that more divisions of land would
likely be subject to county approval.
More fundamentally, ORS 92.044(1) (1961) affirma-
tively authorized counties to adopt approval standards for
land divisions specifically defined by ORS 92.010(2) (1961)
as having certain time and acreage limitations. The statute
delegated authority to regulate those defined land divisions.
It did not create exemptions from existing authority, and it
did not authorize counties to expand the scope of the dele-
gation by changing the definition of the land divisions they
could regulate.
street or way. We note also that ORS 92.046 (1961), amended by Or Laws 1973,
ch 696, § 10; Or Laws 1983, ch 827, § 19f; Or Laws 1989, ch 772, § 7; Or Laws
1993, ch 792, § 47; Or Laws 1999, ch 348, § 13, provided a catch-all grant of
authority to county governing bodies to “adopt regulations or ordinances requir-
ing approval * * * of the partitioning of land not otherwise subject to approval”
under ORS chapter 92. The parties have not raised, or developed, any arguments
concerning the applicability of that statute. We need not, and do not, address
such issues here.
Cite as 329 Or App 372 (2023) 379
By defining “subdivide land” to include property
divided into four or more lots of any size, the county had
effectively increased the scope of its delegated authority from
regulating land divisions resulting in relatively small lots to
regulating land divisions that resulted in much larger lots.
Increasing the breadth, or scope, of the county’s delegated
authority is not the same as adding more stringent approval
standards for land divisions over which the county had been
delegated authority to regulate.
The land divisions that occurred in 1961 did not
result in lots of less than five acres. Applying the law that
existed at the time, before Lane County had adopted a home-
rule charter, petitioners’ predecessors in interest would not
have been required to obtain county approval for the land
division and it was unlawful in substance for LUBA to con-
clude otherwise.
Reversed and remanded.