Property Line Adjustments
This page summarizes recent developments in the area of property line adjustments and provides links to relevant reference materials.
The Phillips Cases
In January 2007, the Land Use Board of Appeals issued its decision in Phillips v. Polk County (LUBA Nos. 2006-133, 2006-134 and 2006-135). A copy of the Board's final opinion and order can be found here. In that decision, LUBA reversed Polk County approvals for two property line adjustments and a large-tract farm dwelling. Instead of addressing any of the six assignments of error presented to it, LUBA resolved the appeal on what it described as "threshold questions" that none of the parties briefed. The Board concluded that the property line adjustments at issue were in fact "partitions" as that term is used in ORS Chapter 92 and that any parcel or lot that is reduced in size must meet the minimum parcel size both before and after the property line adjustment. The Board further concluded that, in this instance, ORS 215.780(1) prescribed a minimum parcel size of 80 acres.
LUBA's decision interpreted and applied ORS Chapter 92, ORS Chapter 215 and the Polk County Zoning Ordinance (PCZO). However, the decision ignored the property line adjustment provisions of the county's ordinance found at PCZO Chapter 91. The Board's interpretations differ greatly from how many counties have interpreted those or similar provisions. Also, the Board's interpretation has greatly impacted the ability for counties to use property line adjustments to resolve many common property issues on parcels that have a resource designation.
Both Polk County and the applicant appealed LUBA's decision to the Court of Appeals. The County's brief to the court can be found here, and the applicant's brief can be found here. The brief submitted by the original appellants, which supports the LUBA decision, can be found here. In late June, 2007, the Court of Appeals issued its opinion and affirmed LUBA's decision for reasons explained by the court. A copy of the court's opinion can be found here.
The court's analysis differs significantly from LUBA's, primarily in that it does not address the provisions of ORS Chapter 92, but instead focuses exclusively on the provisions of ORS Chapter 215. The court found that nothing in the express language of ORS 215.780 authorizes a land use decision that results in the creation of a new parcel of less than 80 acres in an EFU zone through a property line adjustment merely because the parcel was originally smaller than 80 acres. Implicit in the court's analysis is the premise that a parcel that is reconfigured through a property line adjustment becomes a "newly created" parcel. And while the court agreed that the minimum parcel size provisions of ORS 215.780(1) do not act as an absolute bar to the property line adjustments on appeal, it concluded that the appellants had not demonstrated that the proposal satisfied either of the exceptions provided by ORS 215.780(1) or ORS 215.780(5). The court ultimately held that ORS 215.780 prohibits the lot line adjustments approved by the county, and that LUBA did not err when it reversed the County's approval.
On August 27, 2007, Polk County filed a Petition for Review with the Oregon Supreme Court in the Phillips case. A copy of the Petition for Review can be found here. On January 23, 2008, the Oregon Supreme Court issued an order denying review of the petition.
Legislative Solution
The Court of Appeals explained in its opinion that, despite the County's historical practices regarding property line adjustments, the approvals on appeal were not authorized by the legislature and that it was up to the legislature, not tribunals charged with enforcing the existing land use laws, to change those laws. As it happened, a legislative solution was before the Oregon Legislature even before the court issued its opinion.
Shortly after LUBA issued its decision, Representative Boquist sponsored House Bill 3549. The introduced language of that bill can be found
here. The purpose of HB 3549 was to address the problems raised by the Board's decision by articulating more clearly in the statutes what counties understand the standard to have been before the Board's decision. For starters, the bill amended the definitions of "partition land" and "property line adjustment" to clarify the differences between those actions. HB 3549 also expressly provided, in detail, when property line adjustments can be made between two abutting properties. Importantly, the bill allowed property line adjustments between two parcels that are smaller than the minimum parcel size, or between parcels where one parcel is larger than the minimum parcel size and one parcel is smaller than the minimum parcel size. The bill was referred to the House Agriculture and Natural Resources Committee.
While HB 3549 was before the Agriculture and Natural Resources Committee, a representative of the Department of Land Conservation and Development facilitated discussions with representatives from a range of interest groups concerned about Oregon land use law in an effort to generate political consensus for the bill. Most parties recognized the need for the bill, albeit with additional language to address related property line adjustment concerns. With bipartisan support, the bill was referred out of the Agriculture and Natural Resource Committee to the House Revenue Committee where it was expected that future work would be done on the bill's language.
The legislative session ended before the bill could be further refined and moved out of the House Revenue Committee. The fact that HB 3549 did not successfully move through this legislative session was not due to any fundamental opposition to the bill. The stumbling block was that LUBA's decision was issued so close to the start of the 2007 regular session that the crafting and passage of legislation simply became an unsuccessful race against the clock.
Before the legislative session ended, the Revenue Committee asked that the Department of Land Conservation and Development lead an effort, in between the legislative sessions, to craft bill language that addresses the issues HB 3549 attempted to resolve. The goal of that effort was to have a consensus bill ready for the start of the February 2008 legislative session.
House Bill 3629 was ready for the start of the 2008 special legislative session. Bill Kloos, among others, testified in support of the bill. His testimony to the Senate Environment and Natural Resources committee can be found here. That testimony contains diagrams intended to show some of the issues that HB 3629 is intended to address. HB 3629 easily passed both the House and the Senate. A copy of HB 3629 engrossed can be found here.
HB 3629 includes provisions from the earlier bill that amend key definitions and that permit property line adjustments between parcels that are smaller than the minimum parcel size in specified circumstances. Also, HB 3629 adds provisions that prescribe when property line adjustments may not be used for adjustments on land zoned for exclusive farm use, forest use or mixed farm and forest use. These exclusions generally apply to land with the specified zoning that already has a dwelling on it, or that may be used to qualify a parcel for a dwelling.
Governor Kulongoski signed HB 3629 into law on March 3, 2008.
