Bowerman v. Lane County

403 P.3d 512, 287 Or. App. 383, 2017 WL 3611692, 2017 Ore. App. LEXIS 993
CourtCourt of Appeals of Oregon
DecidedAugust 23, 2017
Docket2016008; A164236
StatusPublished
Cited by2 cases

This text of 403 P.3d 512 (Bowerman v. Lane County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowerman v. Lane County, 403 P.3d 512, 287 Or. App. 383, 2017 WL 3611692, 2017 Ore. App. LEXIS 993 (Or. Ct. App. 2017).

Opinion

LAGESEN, J.

Petitioner seeks review of a final order of the Land Use Board of Appeals (LUBA). The order remands to Lane County (the county) its decision ministerially approving petitioner’s application for a sequence of nine property line adjustments. LUBA remanded on two bases. First, LUBA concluded that the county erred by employing the ministerial process authorized by Lane Code (LC) 13.450(4) to approve the application. Instead, LUBA concluded, the county was required to use the planning director review process otherwise required by LC 13.450(5). Second, LUBA concluded that the county erred to the extent that it approved adjustments to property lines that would not exist but for the county’s approval of the 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. On review, petitioner challenges both bases for the remand and also contends that LUBA lacked jurisdiction. We reject petitioner’s jurisdictional argument and affirm LUBA’s determination that the county erred by ministerially approving petitioner’s application, albeit for a different reason than LUBA. We do not reach the issue of whether the county may approve adjustments to property lines that, as of the time of approval, are not reflected on a recorded deed because it is not clear whether that issue will recur.

I. BACKGROUND

A. State and County Law Governing Reconfiguration of Land Through Property Line Adjustments

ORS chapter 92 governs when and how a unit of land can be configured (or reconfigured) into smaller units of land: “No land may be subdivided or partitioned except in accordance with ORS 92.010 to 92.192.” ORS 92.012. Subdividing means dividing a unit of land to create four or more units of land within a calendar year, and results in a “subdivision.” ORS 92.010(16) and (17). Partitioning means dividing a unit of land to create three or fewer units of land within a calendar year, and results in a “partition.” ORS 92.010(7) and (9). The relevant statutes impose various prerequisites to the approval of subdivisions and partitions, [386]*386including the requirement of submitting a tentative plan illustrating the general design of the proposed subdivision or partition. ORS 92.040; ORS 92.044.

The statutes afford an alternative to the subdivision and partition process for reconfiguring land: property line adjustments. ORS 92.010(9) explains that “Partitioning land” within the meaning of the statute does not include the process of adjusting a property line in the manner defined by the statute:

‘“Partitioning land’ means dividing land to create not more than three parcels of land within a calendar year, but does not include:
«⅜ ‡ ⅜ ‡ ‡
“(b) Adjusting a property line as property line adjustment is defined in this section!.]”

ORS 92.010(11), in turn, defines “Property line” as “the division line between two units of land” and ORS 92.010(12) defines “Property line adjustment” as

“a relocation or elimination of all or a portion of the common property line between abutting properties that does not create an additional lot or parcel.”

The property line adjustment process thus provides a mechanism by which one or more owners of adjacent units of land may adjust the boundaries between those units of land, provided that the adjustment or adjustments do not create an additional unit of land.1

ORS chapter 92 does not, itself, spell out the procedures governing a local government’s approval of a property line adjustment. Instead, the legislature has largely left the responsibility to determine the appropriate procedures to local governments, subject to the requirement that any such procedures require the recording of a deed reflecting any approved property line adjustment:

[387]*387“(3) The governing body of a city or a county may use procedures other than replatting procedures in ORS 92.180 and 92.185 to adjust property lines as described in ORS 92.010(12), as long as those procedures include the recording, with the county clerk, of conveyances conforming to the approved property line adjustment as surveyed in accordance with ORS 92.060(7).
“(4) A property line adjustment deed shall include the names of the parties, the description of the adjusted line, references to the original recorded documents and signatures of all parties with proper acknowledgment.”

ORS 92.190.

In accordance with that grant of authority, the county has enacted LC 13.450 to govern the approval of property line adjustments. The provision sets forth two distinct approval processes: a ministerial process and the planning director review process. Under LC 13.450(4), the ministerial process is available for three types of property line adjustments:

“An applicant must obtain ministerial approval or may use the Planning Director review with public notice procedures if the property line adjustment is for:
“(a) The adjustment of a common property line involving only F-l zoned properties which are less than 200 acres and the applicant submits a title report for each F-l property that demonstrates the properties are not encumbered by a nonrevocable deed restriction required for certain forest dwellings pursuant to ORS 215.740 and OAR 660 Division 06; or
“(b) The adjustment of a common property line between properties in any zone if each adjusted property is vacant and complies with the minimum area requirements of the zoning before and after the property line adjustment; or

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Related

Bowerman v. Lane Cnty.
423 P.3d 172 (Court of Appeals of Oregon, 2018)
Landwatch Lane Cnty. v. Lane Cnty.
420 P.3d 37 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
403 P.3d 512, 287 Or. App. 383, 2017 WL 3611692, 2017 Ore. App. LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowerman-v-lane-county-orctapp-2017.