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Date: 05-17-2017

Case Style: Ronald Lenn v. Lane County

Case Number: A154233

Judge: Armstrong

Court: Oregon Court of Appeals on appeal from the Circuit Court, Lane County

Plaintiff's Attorney: Zack P. Mittge argued the cause for appellants. With him
on the briefs was Hutchinson, Cox, Coons, Orr & Sherlock,
P. C.

Defendant's Attorney: Aaron J. Noteboom argued the cause for respondent
Dennis Bottem. With him on the briefs was Arnold Gallagher
P. C.

No appearance for respondent Lane County.

Description: In this writ of review proceeding, petitioners Ronald
and Kathleen Lenn appeal a judgment of the circuit court
upholding Lane County’s partition of respondent Bottem’s
property and approval of a second home site on that property
under Measure 49 (2007). Petitioners contended in
the trial court that the county erred in approving the partition
because it depends on access from an existing easement
that does not comply with the county’s current minimum
easement-width standards. The court rejected the
contention, concluding that the Lane County Land Use and
Development Code (Lane Code or LC) exempted the easement
from the generally applicable minimum-width requirement.
On appeal, petitioners contend that the court’s interpretation
of the Lane Code provision is erroneous. Bottem
responds that the county’s interpretation is a plausible one
that is consistent with the text of the provision and that
is therefore entitled to deference under Siporen v. City of
Medford, 349 Or 247, 243 P3d 776 (2010). As an alternative
ground for affirmance, Bottem contends that the county’s
approval must be upheld under Measure 49.1 In reviewing
1 When the Department of Land Conservation and Development (DLCD) has
approved additional home sites on a property under Measure 49, the local government
is prohibited from applying its local standards “in a manner that has the
effect of prohibiting the establishment of the dwelling * * * unless the standards
are reasonably necessary to avoid or abate a nuisance, to protect public health or
safety or to carry out federal law.” Section 6(8) of Measure 49 provides:
“[I]f [DLCD] has issued a final order with a specific number of home site
approvals for a property under this section, the claimant may seek other governmental
authorizations required by law for the partition or subdivision of
the property or for the development of any dwelling authorized, and a land
use regulation enacted by the state or county that has the effect of prohibiting
the partition or subdivision, or the dwelling, does not apply to the review
of those authorizations.”
Or Laws 2007, ch 424, § 6(8). Section 11(1) of Measure 49 provides, in turn:
“A subdivision or partition of property or the establishment of a dwelling
on property, authorized under [Measure 49] must comply with all applicable
standards governing the siting or development of the dwelling, lot or parcel
including, but not limited to, the location, design, construction or size of the
dwelling, lot or parcel. However, the standards must not be applied in a manner
that has the effect of prohibiting the establishment of the dwelling, lot or
parcel authorized under [Measure 49] unless the standards are reasonably
necessary to avoid or abate a nuisance, to protect public health or safety or to
carry out federal law.”
Or Laws 2007, ch 424, § 11(1).
Cite as 285 Or App 520 (2017) 523
the court’s judgment affirming the partition and authorization
of the home site for legal error and substantial evidence,
ORS 34.040, we agree with Bottem’s alternative argument
and therefore affirm.
The relevant facts are few and undisputed. Bottem
owns approximately 32 acres of land in Lane County, identified
as Tax Lot 607. The property is zoned for exclusive farm
use and is managed for livestock and hay-crop production.
Tax Lot 607 is improved with a single-family residence and
outbuildings. Since 1979, access to the property has been
over an easement that crosses petitioners’ farm/vineyard
property to the east from Central Road (the Central Road
easement). As it passes through petitioners’ property, the
easement is 20 feet wide and improved with a 10-foot paved
roadway.
Before 2004, the minimum required width for a
private-access easement in Lane County was 20 feet. Former
LC 15.055(4). In 2004, Lane County amended its code to
require that a private-access easement serving one to three
properties have a minimum width of 30 feet. The applicable
code provisions “grandfathered” some existing privateaccess
easements. LC 15.055(4) provides:
“The minimum width for private access easement shall be
of a width determined by the County suitable for the intended
use, but in no case less than 30 feet. Notwithstanding this
requirement, a pre-existing easement of at least 20 feet in
width and serving a lot or parcel created in its present configuration
prior to April 28, 2004 is allowable provided it
complies with the other requirements of this chapter.”
Similarly, LC 15.706 provides that, notwithstanding minimumwidth
requirements,
“a pre-existing easement of at least 20 feet in width and
serving a lot or parcel created in its present configuration
prior to April 28, 2004, is allowable provided it complies
with other requirements of this chapter.”
In 2010, Bottem’s predecessors applied for and
obtained a “final order and home site authorization” from
the Department of Land Conservation and Development
524 Lenn v. Lane County
(DLCD) under Measure 49, authorizing them to partition
and apply for a second home site on Tax Lot 607.2 Based on
that order, Bottem filed an application with Lane County
seeking to partition Tax Lot 607 to create a parcel of 30.22
acres (Parcel 1), which includes the existing residence, and
an unimproved parcel of 1.76 acres (Parcel 2). Bottem filed
a separate application for a home site on Parcel 2. As proposed
in the applications, the primary change to Parcel 1
would be an adjustment of the property line attributable to
carving Parcel 2 out of Parcel 1. Parcel 1 would continue to
be served by the Central Road easement; the home site on
Parcel 2 would be served by a new easement to Wheaton
Lane (the Wheaton Lane easement), which conforms to all
current easement-width requirements.
The county planning director issued an order
approving the applications for the partition of Tax Lot 607
and the home site on Parcel 2. The planning director found
that Parcel 1 would be served by the Central Road easement
and that Parcel 2 would have separate access via the
Wheaton Lane easement.3 The planning director’s order
reasoned that, because another parcel that uses the Central
Road easement, Tax Lot 602, had been created in its present
configuration before April 28, 2004, the Central Road easement’s
use for access by Parcel 1 was “grandfathered” as a
preexisting easement use under LC 15.055(4). Alternatively,
the planning director determined that, if the 30-foot requirement
were otherwise applicable, the county was required to
waive it under Measure 49.
Petitioners appealed the planning director’s determination
to a county hearings officer, asserting, among
other arguments, that the partition and dwelling should be
denied because there would be no legal access to the parcels.
2 The DLCD order stated:
“[T]he claimants are authorized for one additional lot or parcel and one
additional dwelling on the property on which the claimants are eligible for
Measure 49 relief[.]”
3 Petitioners correctly note that the county hearings officer’s order states
that, although Parcel 2 “has legal access via an easement to Wheaton Lane, the
Lane Code does not prohibit the occupants of that dwelling from using another
existing easement.” The hearings officer’s reading of the easement documents
led him to conclude that Parcel 2 could also have access from the Central Road
easement.
Cite as 285 Or App 520 (2017) 525
The hearings officer rejected petitioners’ contentions and
upheld the planning director’s authorization of the partition
and dwelling. The county planning commission upheld the
hearings officer’s order. On petitioners’ request for writ of
review of the county’s decision, see ORS 195.318 (providing
for judicial review under ORS 34.010 to 34.100 of a local government’s
order under Measure 49), the circuit court agreed
with the planning director’s interpretation of LC 15.055(4)
and upheld the county’s approval of the partition and home
site, and therefore did not reach the waiver question.
The only issue pursued by petitioners on appeal
is their contention that the partition should not have been
approved because the Central Road easement cannot provide
legal access to the existing home site on Parcel 1. It
is conceded that the Central Road easement does not satisfy
the 30-foot minimum width as it crosses petitioners’
property. Petitioners contend that, because Tax Lot 607 is
to be reconfigured under the approved partition, the new
parcels were not “in [their] present configuration prior to
April 28, 2004,” and, therefore, the exemption described in
LC 15.055(4) does not apply.
In Bottem’s view, in determining the applicability
of the exemption, the proper focus is on the configuration of
the property’s connection to the easement. He contends that,
because the configuration of the easement’s connection to
Tax Lot 607 and the easement’s use by the single homesite
on Parcel 1 are unchanged, the exemption in LC 15.055(4)
applies. Bottem further contends that, because the Central
Road easement also serves Tax Lot 602, a lot whose present
configuration was established before April 28, 2004,
the exemption from the 30-foot minimum width applies and
allows the easement to continue to provide legal access to
Parcel 1 even though Tax Lot 602 is a separate property
from the property to be partitioned and developed under
Measure 49, viz., Tax Lot 607.
We are skeptical of Bottem’s construction of LC
15.055(4).4 But we need not address its plausibility. That is
because we agree with Bottem that the judgment must be
4 The ordinance appears to establish an exemption from the minimum-width
requirement for a lot or parcel to be developed whose configuration has not
changed since April 28, 2004. We are not persuaded by Bottem’s contention that
526 Lenn v. Lane County
affirmed under Measure 49. Assuming that the exemption
from the easement-width requirement described in LC
15.055(4) does not apply, the county nonetheless was required
to waive the minimum-width requirement, because application
of that requirement would violate the requirement in
Measure 49 that the county not apply its code “in a manner
that has the effect of prohibiting the establishment of the
dwelling, lot or parcel authorized under [Measure 49] unless
the standards are reasonably necessary to avoid or abate a
nuisance, to protect public health or safety or to carry out
federal law.” Or Laws 2007, ch 424, § 11(1).
When DLCD approves an additional dwelling under
Measure 49, a local government lacks authority to apply its
standards in a manner that has the effect of prohibiting the
establishment of the dwelling, in the absence of one of the
described exceptions.5 See Bertsch v. DLCD, 252 Or App 319,
329, 287 P3d 1162 (2012). Petitioners assert, as they did
before the county, that the use of the Central Road easement
for access to the property would both be a nuisance and violate
public health and safety. But the record includes staff
reports that support the planning director’s determination
that none of the exceptions is applicable.6 We conclude that
the configuration of the easement or the existence of another parcel using the
easement has any bearing on the easement’s use for access to Parcel 1.
5 Similar exceptions are codified at ORS 195.305(3), which exempts from application
of the “just compensation” provision of Measure 49 land use regulations:
“(a) That restrict or prohibit activities commonly and historically recognized
as public nuisances under common law;
“(b) That restrict or prohibit activities for the protection of public health
and safety[.]”
DLCD’s order stated:
“The establishment of a land division or dwelling based on this home site
authorization must comply with all applicable standards governing the siting
or development of land divisions or dwellings. However, those standards must
not be applied in a manner that prohibits the establishment of the land division
or dwelling, unless the standards are reasonably necessary to avoid or
abate a nuisance, to protect public health or safety, or to carry out federal law.
“* * * This home site authorization will not authorize the establishment of
a land division or dwelling in violation of a land use regulation described in
ORS 195.305(3)[.]”
6 We note, additionally, that DLCD concluded:
“Based on the documentation submitted by the claimants, it does not
appear that the establishment of the two home sites for which the claimants
Cite as 285 Or App 520 (2017) 527
those reports provide substantial evidence that the continued
use of the Central Road easement by Parcel 1 would not
constitute a nuisance or a threat to public health or safety.
See ORS 34.040 (describing substantial evidence standard
of review).
Petitioners point out that, under Measure 49, a
waiver of local standards is required only when application
of the standards would have the effect of prohibiting the
creation of the lot. Here, petitioners contend, Bottem has
chosen the Central Road easement because he prefers it,
not because there is no other access available. Referring to
aerial photos and a map of the subject property, petitioners
contend that it is obvious that other access is available to
Parcel 1. Thus, petitioners contend, Bottem has not established
that a waiver of the easement-width standards is necessary
to avoid prohibiting the partition.
We reject the argument here because petitioner did
not raise it at the county level.7 As the proponents of the
may qualify on the property is prohibited by land use regulations described
in ORS 195.305(3).”
Lane Code section 5.720 defines a nuisance as including but not limited to “any
annoying, unpleasant, or obnoxious condition or practice causing an unreasonable
threat to the public health, safety and welfare and defined as a nuisance in
LC 5.720 through 5.750.” The county, in adopting the staff report, found that none
of those circumstances exists.
Petitioners do not challenge that finding, but they contend that any use that
is inconsistent with a provision of the Lane Code is a nuisance as a matter of law,
citing LC 15.950(5), which provides that “[a]ny use which is established * * * or
maintained contrary to the requirements of this chapter shall be and is hereby
declared to be unlawful and a public nuisance, and may be abated as such.”
Petitioners also cite ORS 203.065(3), which provides that “[e]very act or thing
done, or anything existing within the limits of a county which is declared by an
ordinance of the county * * * to be a nuisance, shall constitute a nuisance and
may be regarded as such in all actions, suits and proceedings.” Together, petitioners
contend, LC 15.950(5) and ORS 203.065(3) require the conclusion that
the failure to comply with LC 15.044(4) is a nuisance as a matter of law. However,
Measure 49, by its terms, authorizes the establishment of lots or parcels that are
prohibited by existing code requirements, and thereby precludes application of
LC 15.950(5) in that context.
7 At the county level, petitioners did not dispute that Bottem had no other
access; in fact, they argued that the partition and dwelling should not be approved
because Bottem had no legal access. As to whether Measure 49 required waiver
of the minimum-width requirement, petitioners contended that the requirement
could not be waived because the minimum width was necessary for the protection
of public health and safety and to avoid a nuisance. The hearings officer made
findings rejecting that contention and also explicitly noted a condition in DLCD’s
Measure 49 approval that “forbids Lane County from applying land division and
528 Lenn v. Lane County
argument that there should be no Measure 49 waiver
because application of the minimum-width requirement
would not prohibit the partition or the dwelling, petitioners
bore the burden of persuasion and of making a record before
the county. See State v. T. M., 229 Or App 325, 331, 211 P3d
359 (2009) (party seeking relief bears burden of proving
facts on which that relief is conditioned) (citing Benaman v.
Andrews, 213 Or App 467, 476, 162 P3d 280 (2007)); State
v. Kanuch, 231 Or App 20, 24, 217 P3d 1082 (2009) (same).
Petitioners have not referred to any evidence in the record
that compels the finding that Bottem has other legal access
to Parcel 1. Accordingly, we conclude that petitioners have
not shown error in the county’s approval under Measure 49.

dwelling standards that would prohibit the land division or dwelling unless the
standards are reasonably necessary to avoid or abate a nuisance, to protect public
health or safety, or to carry out federal law.”
It was not until the writ of review proceeding that petitioners raised their
argument that application of the minimum-width requirement would not prohibit
the land division or dwelling, contending for the first time that “there is no evidence
that Respondent Bottem cannot provide lawful access that conforms to the
applicable standards, only that he refused to do so.” The trial court did not reach
that argument, having determined that the subject property was exempt from
the minimum-width requirement based on the court’s interpretation of the Lane
Code.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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