- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 09-01-2016
- Case #: 2016-057
- Judge(s)/Court Below: Opinion by Ryan
- Full Text Opinion
The Department of Land Conservation and Development (DLCD) authorized one additional home site and one additional parcel on intervenor’s 80-acre property. The county then approved an application to partition the parcel into one 78-acre parcel and one 2-acre parcel. The county planning director further approved intervenor’s application for a property line adjustment (PLA) that created two 42-acre parcels. DLCD appealed the decision, the board of county commissioners affirmed, and Friends of Yamhill County (petitioner) appealed.
The parcels were zoned AF-80, exclusive farm use, which typically forbids parcels less than 80 acres and limits the establishment of new dwellings. Ballot Measure 37 allowed the local government to grant a waiver in some circumstances. Measure 49 superseded Measure 37, eliminating waivers, and instead allowing three paths to approval, one of which allowed a limited number of dwellings to be created. In authorizing additional parcels, Measure 49 requires the local government to meet certain statutory requirements.
The petitioner argued that the county’s PLA approval improperly construed Measure 49, and that ORS 197.835(9)(a)(D) prohibited the PLA. LUBA stated that its task was to determine the legislative and voter intent in adopting the measure, looking at the text, context, and the legislative history, as well as resorting to the maxims of statutory construction. LUBA concluded that the legislature intended Section 11(3)(a)(A) of Measure 49 to be a permanent restriction on the size of parcels created pursuant to a Measure 49 final order. The county only focused on the word “creation” in Section 11(3)(a)(A), failing to give effect to the second sentence of the subsection. LUBA determined that the second sentence prohibited the creation of a new parcel greater than 2-acres, but did not restrict the size of the lot to the moment when the new parcel was created. REVERSED.