Bowerman v. Lane County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 01-26-2017
  • Case #: 2016-008
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Under Lane Code 13.450(4)(c), when there there is no dispute that a property line adjustment resulted in nonconforming setbacks, the planning director must provide a hearing on the proposed property line adjustment, or an opportunity for local appeal.

     Petitioners appealed a county planning director’s decision that approved nine property line adjustments. The property line adjustments were approved by a single decision without a public hearing or written notice of the decision to anyone other than the applicant.

     The planning director relied on Lane Code (LC) 13.450(4)(c) to approve the disputed property line adjustments without providing notice of the director’s decision, or an opportunity for local appeal. Petitioners argued that the authority for ministerial approval under LC 13.450(4)(c) did not apply, and the planning director erred when approving the property line adjustment without providing notice and an opportunity for appeal.

     LC 13.450(4)(c) requires approval of adjustments if two conditions are met: (1) a surveyor certifies that the property will not fall below the minimum lot or parcel size for that zone, and (2) setbacks from existing structures will not become nonconforming. LUBA determined both parties misread LC 13.450(4)(c) to require that the surveyor certify both that lot size and setback requirements are met.

     Since there was no dispute that the property line adjustment resulted in nonconforming setbacks, LUBA agreed with the petitioner that the county should not have applied LC 13.450(4)(c) to ministerially approve the adjustments. Under LC 13.450(5), the planning director should have provided a hearing on the proposed property line adjustment, or provided an opportunity for local appeal.

     Petitioner next argued that to approve a property line adjustment and then approve an additional property line adjustment for one of those adjusted properties, the deed to complete the first property line adjustment must first be executed and recorded. LUBA agreed with petitioners, concluding that the statute does not permit, in a single property line adjustment decision, further adjustment of an adjusted property line. REMANDED.