Martin v. Lane County
Martin v. Lane County
Opinion of the Court
Petitioner, who owns land in rural Lane County that he would like to develop, filed a petition seeking declaratory relief under ORS 28.020 to 28.160, in the form of a declaration that the zoning of his property is subject to a “special ordinance” enacted by the county in 1979, rather than the subsequently enacted comprehensive plan. The county moved to dismiss the petition under ORCP 21 (A)(1) for lack of subject matter jurisdiction, asserting that the petition sought review of a “land use decision” as defined by ORS 197.015 (10)
In addressing the county’s motion to dismiss for lack of subject matter jurisdiction, the court could consider “matters outside the pleading, including affidavits, declarations and other evidence presented to the court.” ORCP 21 A(l).
Petitioner, as trustee of a revocable living trust, owns property in rural Lane County. Petitioner lived in a mobile home on the subject property from 1979 through at least 1997. In January 1979, before petitioner had acquired the property, the county adopted Lane County Zoning and Land Use Ordinance No. 710, which changed the zoning of the subject property from farm/forest use to “Agriculture, Grazing and Timber Raising” (AGT-5), with a five-acre minimum lot size.
In February 1984, the county adopted its comprehensive plan, Lane County Ordinance No. PA 884, which stated:
“1. The Plan Designation and Zones as set forth on the attached maps * * * are hereby applied to Rural Lane County outside the Metropolitan Area General Plan Boundary and outside all Urban Growth Boundaries ***[.]
“2. With the exception of [seven listed plans] the prior Plan and Zone designations are repealed.”
The subject property was not within one of the exceptions listed in PA 884-2. Under PA 884, the subject property would
Petitioner would like to develop the subject property. In May 2012, he filed a “complaint” for a declaratory ruling in circuit court, alleging:
“[A] controversy began in 2007 through 2012 when the defendant’s Land Management Department told [plaintiff] that *** Ordinance 710 had been repealed by a General Act named PA884 in 1984, and that the District where plaintiff’s tax lots are located now require 40 acres per parcel for any development to take placet.]”
Petitioner sought a declaration that the zoning of the subject property was subject to Ordinance 710. In response to a motion to dismiss, petitioner filed an amended “petition” for declaratory relief, alleging that petitioner wishes to develop the subject property and that the zoning of the subject property must be resolved in order to determine the requirements for development. The petition alleges that, beginning in July 2011, plaintiff attempted to learn the correct zoning of the subject property from the county’s land management division, but to no avail.
The county’s land use code provides that it is the duty of the planning director to “administer and interpret the provisions and requirements” of the code. LC 10.025-10. The Lane County Board of Commissioners, in turn, hears appeals alleging an error or omission by the planning director.
“The property was originally zoned Farm/Forest (FF-20) with a 20 acre minimum land division. In 1979, the Board adopted Order 79-3-6-3 which changed the zoning to Agriculture, Timber and Grazing (AGT05) with a 5 acre minimum land division. In 1984 in a legislative action to comply with the state mandate of the 1973 Senate Bill 100, the Board of County Commissioners adopted Ordinance No. PA 884 which repealed all prior zoning districts and zoned the subject property Exclusive Farm Use (E40) placing a 40 acre land division on the property.”
Additionally, the county alleged in its answer and affirmative defenses in this proceeding that, in 2008, petitioner sought a permit to build a house on the subject property and that, on May 7, 2008, planning director Howe responded:
*290 “This letter is sent to address your request of May 1, 2008, to be given a building permit or rights to such a permit ***. As you know, the subject property is zoned Exclusive Farm Use (E40/RCP). If you wish to replace the mobile home that was placed in the early 1970⅛ you need to make an application for “Verification of Replacement Rights” in the Exclusive Farm Use (E40) zone, pursuant to [Lane County Ordinance] 16.212(5)(a). Once the application is submitted, Lane County will then make a land use decision to determine if the dwelling was lawfully established.”5
The county moved to dismiss the petition for lack of jurisdiction, asserting that the county had made a land use decision interpreting its comprehensive plan, that petitioner simply disagrees with the county’s interpretation, and that review of the correctness of that land use decision is within LUBA’s exclusive jurisdiction. In response to the motion, petitioner did not dispute that characterization of the county’s decision (except for the county’s conclusion about jurisdiction) but argued that
“[t]he question raised in the Petition for Declaratory relief is whether PA 884 has properly been interpreted by the County, according to the rules of statutory construction, case law, legislative intent and the plain language of the Ordinance, to repeal PA 710 and if not, whether and how PA 884 should be interpreted in conjunction with PA 710.”6
The trial court granted the county’s motion to dismiss without explanation.
As previously noted, under ORS 197.825(1), LUBA is vested with exclusive jurisdiction to review land use
“[a] final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:
“(i) The goals;
“(ii) A comprehensive plan provision;
“(üi) A land use regulation [.]”
On appeal, petitioner asserts that the trial court erred in concluding that exclusive jurisdiction lies with LUBA, because the requested interpretation of the two county ordinances is not a “land use decision;” rather, petitioner describes the issue before the court as a simple matter of statutory construction — i.e., whether PA 884 — a “general county ordinance” — can be interpreted to repeal Ordinance 710 — a “special ordinance” that includes findings of fact pertaining to petitioner’s property, “where the general ordinance does not specifically repeal or otherwise indentify the special ordinance.” Citing Leupold & Stevens, Inc. v. City of Beaverton, 226 Or App 374, 203 P3d 309 (2009), petitioner contends that when, as here, there is a justiciable controversy, a court retains authority to determine the meaning of statutes or ordinances and to declare the rights and duties of parties. The county responds that Leupold is inapposite, because, unlike here, the interpretive issue in Leupold did not involve an application of land use planning goals or a comprehensive plan provision.
We agree with the county that Leupold does not support petitioner’s contention that the court had jurisdiction to consider petitioner’s claim. In Leupold, while an appeal of the city’s annexation ordinance was pending before LUBA, the legislature enacted Senate Bill 887 (2005), Or Laws 2005, ch 844, § 6, which restricted the city’s ability to annex certain industrial property without the owner’s consent. LUBA upheld the annexation, as did this court.
Petitioner characterizes the question here as similar to the issue involved in Leupold, concerning only an interpretation as to the effect of the county’s comprehensive plan on Ordinance 710 and not an application of the comprehensive plan to the subject property. But the pleadings and associated record reflect otherwise. What petitioner seeks here is review of the county planning director’s interpretation of county land use laws. At least since 2006, petitioner has been seeking to develop the subject property and has attempted to circumvent the county’s determination that the subject property is zoned EFU with a 40-acre minimum. The county’s planning director, as the person authorized by the Lane County Code to determine applicable zoning, LCC 10.025-10, has determined that the development of the subject property is subject to the zoning set forth in the county’s comprehensive plan. A county’s interpretation of its zoning ordinance is a land use decision that LUBA has jurisdiction to
We conclude that petitioner, having failed to properly pursue review of the county’s land use decision, cannot now pursue his contentions regarding that decision through a declaratory judgment action. See Friends of Yamhill County v. Board of Commissioners, 278 Or App 472, 483-84, 377 P3d 670 (2016) (circuit court lacked jurisdiction under the Declaratory Judgment Act to review a quasi-judicial decision that, per ORS 34.020, was reviewable under ORS 34.010 to 34.100 “and not otherwise”); Flight Shop, 211 Or App at 645 (“The circuit courts * * * lack jurisdiction over an action that raises issues that could have been, but were not, raised through a land use decision and ‘through an appeal to LUBA from that decision.’”); Grabhorn, Inc. 255 Or App at 379 (dismissing for lack of subject matter jurisdiction a declaratory judgment action “as either an improper appeal [of a land use decision] or an improper request for an initial land use decision from the trial court that would override the county’s” decision on the same subject). The court did not err in dismissing the petition.
Affirmed.
Under ORS 197.015(10)(a), a “land use decision” includes:
“(A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of:
“(i) The goals;
“(ii) A comprehensive plan provision;
“(iii) Aland use regulation!.]”
ORS 197.825(1) provides, in part:
“Except as provided in ORS 197.320 and subsections (2) and (3) of this section, the Land Use Board of Appeals shall have exclusive jurisdiction to review any land use decision].]”
ORCP 21 (A)(1) provides, in part:
“If, on a motion to dismiss asserting [a lack of subject matter jurisdiction] the facts constituting such defenses do not appear on the face of the pleading and matters outside the pleading, including affidavits, declarations and other evidence, are presented to the court, all parties shall be given a reasonable opportunity to present affidavits, declarations and other evidence, and the court may determine the existence or nonexistence of the facts supporting such defense or may defer such determination until further discovery or until trial on the merits.”
The petition alleges that petitioner
“wrote a letter to the Lane County Planning Director requesting verification of what type of zoning requirements, whether as an EFU-40 or as an AGT 5 zone, under which a building permit would issue according to the County’s statutory interpretation of Ordinance PA 884. Several attempts were made by Petitioner to seek written or verbal clarification of this question from the County Planning Division in the fall of 2011, in late March 2012 and in June 2012 through meetings with staff at the County Planning Division Office.”
Petitioner did not pursue the application process described in the letter. In 2006, petitioner filed a claim under Measure 37 (2004) seeking a waiver of land use restrictions, but that claim became moot upon the passage of Measure 49 (2007), which displaced Measure 37. See Corey v. DLCD, 344 Or 457, 184 P3d 1109 (2008) (explaining history of measures). In 2007, plaintiff brought a claim against Howe in federal district court under 42 USC section 1983, protesting the county’s application of PA 884 to the property. The county prevailed on summary judgment in that action.
Petitioner also did not dispute the county’s assertion in its answer that petitioner has been in discussions with the county at least since 2008 concerning the zoning of his property and that, in 2008, the county planning director advised petitioner that PA 884 had superseded Ordinance 710 and that the property was zoned “E40.”
Leupold & Stevens, Inc. v. City of Beaverton, 206 Or App 368, 138 P3d 23, rev den, 341 Or 579 (2006).
Reference
- Full Case Name
- Thomas J. MARTIN, Trustee, for the B & C Family Trust v. LANE COUNTY, a political subdivision of the State of Oregon, Defendant-Respondent
- Cited By
- 1 case
- Status
- Published