Oral Argument 2025-008 Landwatch Lane County v. Lane County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=HfQlnz4KMxg). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Hi, good morning. I just want to let you know we're going to have a slight delay. So, please stay on the line and we will Okay, apologize for the delay. Thank you for bearing with us. This is the time set for oral argument in Landwatch Lane County versus Lane County Luba number 2025-8. I'm board chairs Moodio. Board member Basham is also present. Board member Wilson is not present, but he will watch the recording of oral argument and participate in this decision. Please mute your audio when you're not speaking. Thank you. I'm not aware of any pending matters in this appeal. Is there anything that the parties need to bring to our attention? No. Okay. Thank you. Uh petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Three minutes, please. 3 minutes. Okay. I will watch the clock here and also ask that you keep track of your own time. And intervening respondent, you will have a total of 15 minutes for your response. So with that, uh, petitioner, please state your name for the record and begin. Good afternoon. May I please the board and opposing council, Sean Malone, on behalf of Landwatch Lane County. Uh, two quick notes before I get started. Uh, just some quick typos to correct. page 27 line 15 and page 30 line 14 uh references um the phrase between two properties and that should say between three properties that this this argument is is talked about repeatedly uh throughout. So I think it's it's well understood what's going on where we've essentially argued that there's a the adjustment occurred between three properties when at the time state law only allowed it to occur between uh two properties but on those those uh page 27 line 15 page 30 line 14 I say two properties uh when I meant to say three properties but um to dive into it uh the petition for review addresses a good deal of the sort of history the arguments that occurred below before the hearings official And I did that to sort of highlight that I think all parties were sort of surprised when the uh hearings official came out with this uh notion that the surveyor approved the um 1999 property line adjustment. Um you know the applicant for example had sort of conceded that uh largely that the uh 1999 property line adjustment was uh done unlawfully because it was again done between three properties and not two properties. Uh there's also an argument that it wasn't a common line. It was actually two lines, but sort of depending on how someone views a property line uh in this case. Um again, that's that uh figure six, record, page 12. That's where the um that highlight is. We also included that figure six in our petition for review for illustrative purposes. But again, the county's process in 1999 for property line adjustments. No, I'm sorry. What was the county's process in 1999 for property line adjustments? So, the county did not have a process in place at that time. And that sort of begs the question of that I've been thinking a lot about as a result of this case and some other cases. It's, you know, when when state law required something, you know, a dour uh property line adjustment and the local government had not yet put any procedures in place for that property line adjustment. Um, how does that sort of play out? The way I sort of see that is that the the uh local government kind of hampers themselves in a way because they don't have a process for approving these things yet it still had to comply with state law at the time. So, you know, in a way, um uh local governments sort of help themselves out by um adopting procedures uh early on in that in in the in the process to sort of implement uh property line adjustments and so forth. For example, in the Warf case, I believe it was the Warf case, uh Jackson County, um it might actually be Goddard. Uh I think it was Goddard, um the Jackson County had provisions in place at the relevant time frame. Not that that helped them in that case, but um you know, there there's some sort of So, your argument, I'm just trying to follow it. Your argument is that the county's failure to implement state law by having a local process for applicants to follow then creates whatever happened during that time, whatever c the county approved or processed is unlawful. And so all of those all of those things potentially could then later be in a a legal law verification proceeding found to have been unlawfully accomplished. I suppose my musings on on what happens when a county doesn't implement state law sort of quickly or timely. Um that's just sort of um my musings I suppose. But the problem is that you know if if they had a process in place at the time it would have been tidier I guess or or a little there's no dispute that the applicant in 1999 followed the process that the county did have which was to have a surveyor the county surveyor accept the property line adjustment because there was no no identified process. Right. Well, to say that the the county had a process if there's no identified process, you know, that's a little um uh so interven the reason I'm asking the question is intervenor's response is lawful. The term lawful means that an applicant followed whatever process was in place at the time and that the principle of finality means you don't then years down the road get to say well the county should have done something differently because state law required the county to do something differently so you can't get a legal lot later. So within that, you know, within this this notion of a process, if there were a process, there would have been some sort of review about the actual criteria. That is what is the definition of a property line adjustment. In 1999, at the time, the definition required or allowed for only a adjustment of a common property line between two properties. And so, but there was no process. There was no decision with that determination. And so your argument is because the county did not have a process that looked at the substance of the property line adjustment, these lots cannot be verified as legal lots because of this initial illegality. That's your argument. Essentially, I I always hate to be pinned down to a very quick succinct um idea there, but um yeah, I mean that's that's part of the thing. you know, if you can't if you if you if you don't have a process in place to review the approval criteria, then it sort of leaves whether those approval criteria were satisfied or not sort of hanging out there. And that's the problem here. Same with, right? And that's why the respondent is arguing for finality purposes, whatever error was made in 1999, if there was an error, we don't look behind the surface of they followed whatever process was available to them for finality purposes. That's sufficient. we don't now get to in 2025 look back and say that they should have followed a different process that they should have made some determination that they failed to make. I just am trying to understand your argument under the 1999 process and I think I think that there's not an argument that there was a different process that the person should have followed. It's just that there was no process. Your argument is there was no process that actually implemented state law at that time. Correct. And part of that process again is the review of the approval criteria. Um, you know, this notion of finality attaching to the idea that the surveyor accepted something uh doesn't sit well with me because what did the hearings officer determine about the 1999 decision? They didn't rely on finality, right? They found that there was no violation of the state law at the time. Well, again, the hearings official just sort of looks at was it submitted to a surveyor and that's all that that that the hearings official concluded was I I guess sort of necessary. The hearings official's conclusion about the the what happened in 1999, the surveyor's acceptance and so forth sort of doesn't even take into account the sort of criteria that would have been applicable if there was a process to have gone through. and the the the um the hearings official appears to believe that through that acceptance of the surveyor's uh acceptance by the surveyor that that was somehow a review of the applicable approval criteria but there's nothing to demonstrate that at all. So for example, in this notion of or in this the case out of Lane County Gansen, uh which Lane watch Lane County was involved in, there was there was an explicit sort of indication that the um the building permit official had reviewed the legal lot status of the of of whatever was at issue. Um but here we don't have that some same sort of like review of whether something's a legal lot or in this case it would be review of whether the uh property line adjustment 1999 complied with the applicable approval criteria which is essentially the definition. um essentially falling under this the the Fallon case here where you know in Fallon it was a different they were different um criteria issue but you know there were the same criteria applicable here um but here we're arguing about whether it was you can do three property line adjust excuse me three a property line adjustment with a common property line between three properties when the state law at the time only allowed for two and so Um, you know, it I I I I suppose that's the biggest problem with uh there's two problems there with the hearings officials decision is that it doesn't and that's why we include these sort of inadequate findings because the hearings official sort of makes these conclusions about the 1999 property line adjustment without sort of um identifying or responding or explaining um why that's approved. That's that that's that's approved when it's clearly and pretty much well accepted by everyone here that the 1999 property line adjustment did not comply with state law that it in place at the time that is it was not a dour property line adjustment which is the phrase poll from Fallon which this case in in land's opinion appears to be pretty much on point. Obviously, the other component of that is that there is a um again a a a sort of criteria for a property line adjustment at the time uh that that would have been likely reviewed if a process was in place. And so, you know, that's that's why I sort of talked about this notion of well, when a when a local government doesn't implement uh state law for for, you know, for that that includes a process to review approval criteria, then the local government sort of disadvantages itself in a way because without that process, you're never really uh applying that criteria. So, you're kind of leaving that issue open. But a disadvantage is not just the local government. disadvantages anyone who has sought to gain an approval or gain a review and then subsequent interest holders in that property which is the whole purpose of finality right I agree with that yeah I mean I I think that it's not it's not necessarily I I was just viewing it in terms of you know okay and and we're getting close to your uh the end so I want to make sure you hit whatever other points you wanted to hit yeah and I think I think these are all pretty straightforward You know, Fallon answered the question about the effect of an unlawful attempt at a PLA. Uh what happened to that with lawful status? Dowy answered that with regard to an attempt at a partition. Um so I think you know regardless of whether you're attempting to do something I don't think it really makes sense. The fact of the matter is is if it's unlawfully done and that you know Fallon tells this that that if it's an attempted an unlawful PLA DA says an attempted unlawful partition it's still the same result that you get a an unlawful uh unit of land out of it. And importantly you go to the next the most recent um action that occurred that could affect the lawful status of the property. That's why the the subb um in lane code 13.140 that's why that's not satisfied here because you have to um go to the most recent one. It may have been created by partition a long time ago just like it was in the Leki case. Um but you go to the most recent uh action that could affect it. And here that's that 1999 partition or excuse me 1999 property line adjustment. And um you know the final point I'll make is that you know there's talk of the 2016 property line adjustment but again the the 2016 PLA does not it never looks into uh the lawful status of the properties. It's sort of the converse of the issue that was at issue in in the set case where we're looking at property line adjustments and the respondent said well there was this subsequent legal lot verification. Um, now we're kind of doing that in reverse, but um, you know, the the 2016 property line adjustment, had it looked like had it looked at lawful status, then then that would be a different case here. But it did not because it just looks straightforwardly at property line adjustment issues, which is just an adjustment of a line and and it doesn't affect a lawful property line adjustment only adjusts a line. An unlawful property line adjustment, as we see from Fallon, uh, affects the lawful status. And with that, I see I've used up a bunch of my time here. Uh, and I'll hand it over to Mr. Sal. Okay. And you'll have two minutes for your rebuttal. Thank you. Intervener respondent. Go ahead and say your name for the record and begin, please. Good morning. Uh, if you may please the board, opposing council. My name is Allan Sorum. I represent the intervenor respondent, RNR Holly Creek Corey LLC. Uh I'm going to focus primarily on the issues and arguments that were briefed in our response to the first assignment of error. It's our position as intervenor that um there are multiple bases that are dispositive and that are are briefed in that. Uh I'll start with the 2016 property line adjustment. Uh that was most just uh recently referenced by uh opposing council. Uh in his comments um just now he he said that the 1999 uh property line adjustment decision was the most recent one affecting the um boundary lines of the properties. I think that was just kind of a mistake of you know a verbal miscue. uh the 2016 decisions as as he he spoke to uh are the most current property line adjustments that affected it. They created the current configuration. So, um, as I read the hearings officer's decision on page 41 and 412 of the record, she finds that the 2016 property land adjustments were also reviewed and lawfully approved by the county. Um, with an ultimate conclusion based on that, uh, the mandatory approval criterion LC 13.140 subsection 1A, uh, being satisfied. and and that's the only mandatory approval criterion applicable in this instance and as as a conclusion of law those findings were not challenged um that supports the hearings officer's decision and I think based on Lub's precedent uh that both the first and second assignment of air should be denied on those grounds uh and the hearings officer's decision affirmed uh substantively speaking I would say Uh board chair uh Zamura, your kind of questions and some characterizations of interveners arguments are accurate. Um we think the question is not in 1999 whether or not uh Lane County should have denied their property line adjustment uh application and uh the survey or but you know was it approved uh according to the processes that was applicable at the time? The hearings officer found um based upon the review of the survey, including reviewing the narrative statements um the the obligations that a declaration of the property line adjustment be recorded in the real property records that the county process as it existed at that time was approved. And you know, being practitioners in Oregon for a long time, reviewing, you know, historical county decisions, we know that prior to 2010, uh, property line adjustments existed, you know, and and to say just because there was no codified process, there was no process. Um, I understand the allure of that argument, but it it doesn't really hold true with historical practices. Um correlary would be, you know, up until the 2010s, you know, many local jurisdictions reviewed and approved site plan review when they reviewed building permits. Those those decisions were subsequently challenged saying they should be land use decisions and therefore update your processes and land use regulations. Um you know, but proper line adjustments existed. Sometimes they're they're deemed to be landies decisions. Sometimes they're they're not deemed landies decisions. and in review of Luba's uh case law regarding motions for dismissals. There's a number of cases landing on both sides of that, but that that distinction is not material in this instance. Um, as I can best tell, I think petitioner weighs into those waters with the idea that uh arguing well, if it's not a land use decision, then there's no uh prohibition on a collateral attack. And that that is a a false distinction. um there they're in case law authorities citing uh support of the doctrine of finality. Um both in land use decisions and otherwise. If you look at the applicable context, um we cite the provisions in ORS chapter 34 regarding review. The provisions in RS chapter 197 regarding Luba's review. Uh both applications need to be, you know, filed and reviewed within a timely manner. That didn't occur in 1999. Um presumably it could have been challenged. Whether or not a petitioner would have had standing challenged those decisions in 1999 uh remains to be seen but you know it it doesn't it it doesn't factor in. So the plain text I think of the mandatory approval criterion is is is satisfied is supported by conclusion of law findings and substantial evidence. Um, so I I understand your policy argument about finality and about not reopening the 1999 or the 2016 decision. Did the hearings officer rely on finality and collateral attack in their decision? She relied on the scope like her understanding and interpretation of ORS uh 13140 subsection 1 AI and th that those those findings are on page 411 through 412. Um she doesn't use the the the phrase finality or collateral attack um per se. It's just her understanding as to what quantum of evidence is needed in order to substantiate the local code saying that the the petitioner should not have been obligated to file the the particular type of application on the verification. Um but they went ahead and did so anyways. And so that's when she gets into responding to the analysis of the 99. But her analysis is really what is the mandatory approval criterion require? And in this instance, it was satisfied by providing evidence both of the minor partition plat and in the 1990 um and that the 1999 decision was approved according to the processes as it existed at that time. They also found that the 1999 decision followed state law applicable at the time. So they found substantively that it was lawful. Yeah. She made additional what I I I as I read alternative findings of fact and conclusions law that even if we were to weigh into um the question of substantively was was her obligation to review do that historical review she still would have concluded that the process as it existed and the state law requirements as they existed in 1999 were satisfied. Okay. Okay. So, I think I understand now what you're saying is that implicit in the hearings officer's interpretation of the local legal law verification criteria, they said this is the level of evidence that we look at. This is the level of analysis that we look at. We don't go behind the curtain or behind the approval in 2016 or 1999. This is what the code, the legal lock code requires. It does not require more than that. In your opinion, that is served by the same principle of finality and collateral attack even though they didn't use those words. Is that what you're saying today? Correct. And and I get there as part of you know it it's a plain text conclusion of law by the hearings officer and then when we do our state looking at the term lawfully established. So looking at lawfully established, what does lawfully mean? lawfully in your opinion means did they follow the process and get to some sort of an acceptance or an approval decision and if yes then the legal correctness of those decisions is not at play in the legal lot verification process. Correct. So your argument is that we can rely on the principle of finality and collateral attack by affirming the hearings officer's interpretation of lawfully established as being correct. Yes. Because that context and policy support the textual conclusion of law of the hearings officer. Okay. Um, one thing I'll just note quickly, you know, ORS chapter 92, you know, even existed in 1999, it didn't require local governments to adopt a particular process. So, there was no procedural state law violation as it existed prior to 2010. Um, that, you know, the petitioner argued or or or existed. Um, I I would have spoken to that if that had existed. It was really just a definition at that time. um and a definition of what a property line adjustment is. Correct. And that definition what is between two properties and so petitioners argument is anything that's between three properties is not allowed by state law essentially. Correct. And our case law our prior case law says that also there's a decision uh that's commonly cited warf it's been subsequently uh distinguished by both lube and the court of appeals and the Bowererman case. um originally case uh the exact I know I I have the citation in your brief but I'm asking you to summarize the principle there. Oh um in Bowererman that it was important in the instance it was answering the question um from a land use standpoint the court of appeals said no you can process um property line adjustments between multiple properties more than just two properties. Um, in that instance, how the court of appeals reached its conclusion of law, it was based on subsequent legislative changes in part was part of its reasoning. Um, but but also just in acknowledging and looking at the text of ORS chapter 92190 realizing that there was not kind of this uh cutting of the home rule authority, but property line adjustments were supposedly available to local governments. So they said no, it is not error for a local government at when it's doing its land use process to process multiple private line adjustments at that time. Um there were the warf was not appealed and overruled, but your argument is that Bowererman effectively overruled Warf and so it significantly undercut the reasoning behind Warf. Um, and then your your backup argument is the language of the statute of play at the time was talking about an adjustment between two properties, but that doesn't mean that the county couldn't approve or accept. Yes. Yeah. You only a line is between your argument is a line is between two properties. So, the line is the line, but that doesn't mean that you can only move one line, right? Yeah. Warf was not a ceiling. It was not in intended to remove the authority from local governments to approve property line adjustments with that. Um, you know, it's a it was a floor, not a ceiling. Okay. So then that supports the hearings officer's determination that there was no state law violation in substance. So if we got down to the substance of the 1999 acceptance, your argument is that's also correct. I I mean I would love to see warf overruled. I think it, you know, it it provides some confusion as to practitioners as to what extent it still has validity following Bumman. Um, but, you know, putting my shoes in in in the board, I would um not I would affirm the decision based on the the arguments that I uh spoke to before. Um, but certainly if you get there, that that is our position. So, I unless there's more questions from the board, I covered what I was hoping to cover this morning. I don't think I have further questions. Board member Basham. No, no questions. Okay. Thank you. Thank you. Uh we will res turn to petitioner for your remaining two minutes for bundle. Thank you. Uh first of all, Bman affected the notion of sort of seriality in warf. There's another portion of warf that is unaffected and that's what staff that's what we're talking about in wararf. Uh related to the 2016 PLA. Uh again, it's not that as Mr. Sa said in the very beginning, he said that I said the 2016 PLA did not affect the boundaries. That's that's incorrect. I did not say that the 2016 did not affect the lawful status of those properties because the 2016 PLA just adjusts property lines. It does not affect lawful status. Uh so that's why this is not a sort of uh collateral attack on the 2016 PLA. Again, that's like sort of a reverse issue in the Surret case at slip opinion pages 9 to 10. Um, so your argument there, so I understand it is the 2016 PLA could not have effectively uh remedied any illegality or unlawfulness that existed from the 1999 PLA because the criteria for the 2016 PLA didn't look at the underlying legality. It's just am I moving a line? So there's not the substance for collateral attack or finality is not addressed by the 2016 property line adjustment. Correct. Because it didn't look at lawful status. Yes. Um looking at lane code 13.140 1 A little I double B. Uh it's the double B that uh Mr. Sorum continually omits and that's this notion that well it was created by partition um whenever that occurred. But again, we don't the Leky case tells us, well, you look at the most recent action that can affect the lawful status of the part of the of the unit of land. And so that's what they're not satisfying right there, the the BB portion of 13.1401 AI. Uh, and then the next point is that uh the 1999 property line adjustment was not substantively uh correct or lawful. Uh and we we've reached your two minutes. So, uh we we definitely understand that's your position on the 1999 property line adjustment. Thank you for your argument. That will conclude oral argument. The statutory due date for our decision in this appeal is July 25th. I will let you know in advance. We intend to issue the decision no later than August 1st. Thank you. No, no objection.

Summary: Hi, good morning. I just want to let you know we're going to have a slight delay. So, please stay on the line and we will Okay, apologize for the delay. Thank you for bearing with us. This is the time set for oral argument in Landwatch Lane County versus Lane County Luba number 2025-8. I'm board chairs Moodio. Board member Basham is also present. Board member Wilson is not present, but he will watch the recording of oral argument and participate in this de…