Lowell v. Jackson County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 04-05-2017
  • Case #: 2016-117
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

Jackson County Land Development Ordinance (LDO) 3.4.3(F) provides that if a parcel cannot meet all minimum setback requirements for structures, wells and on-site septic disposal systems before a property line adjustment, a requested property line adjustment cannot modify the parcel boundaries to comply with those setbacks; an applicant has the obligation to provide substantial evidence showing compliance.

Petitioner appeals a hearings officer’s decision approving a property line adjustment between two of four parcels in the applicant’s tax lot. The approved adjustment would turn a 40 acre parcel into a 160 acre parcel. Petitioner owns an adjacent parcel, which has an access easement over the applicant’s tax lot.

On the first assignment of error, petitioner challenges the hearings officer’s interpretation of LDO 3.4.3(F), which read LDO 3.4.3(F) to prohibit adjustments that turn a parcel that is unbuildable, due to inability to meet minimum setback requirements, into a buildable parcel that meets minimum setback requirements. On appeal, petitioner argues that this interpretation requires no evidence of an applicant’s purpose or the parcel’s development capacity. Petitioner contends that the correct reading of LDO 3.4.3(F) requires an applicant to explain the purpose of an adjustment and provide evidence of the adjusted parcel’s development capacity before and after adjustment. LUBA disagreed with petitioner because the text of LDO 3.4.3(F) does not consider the purpose or intent of an adjustment. Instead, LDO 3.4.3(F) bases compliance solely on whether the adjustment will turn an unbuildable parcel into a buildable one. LUBA also disagreed with petitioner’s argument that the hearings officer interpreted LDO 3.4.3(F) to waive an applicant’s obligation to provide substantial evidence showing compliance with LDO 3.4.3(F). The hearings officer expressly found that the applicant had submitted substantial evidence.

On the second and third assignments of error, petitioner argues that the hearings officer’s factual findings were conclusory and inadequate, failing to set forth either facts or reasoning supporting approval of the adjustment, and that applicant failed to submit substantial evidence. The applicant’s only evidence below was an affirmation that the adjustment would not make a parcel buildable that was unbuildable prior to the adjustment. LUBA agreed with petitioner that the hearings officer’s findings were conclusory and that the applicant’s affirmation alone is not substantial evidence. REMANDED.