Ronald Lenn v. Lane County

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.

Affirmed.