Landwatch Lane Cnty. v. Lane Cnty.

364 Or. 724

441 P.3d 221

LANDWATCH LANE COUNTY, Petitioner on Review,

v. LANE COUNTY, Respondent on Review,andKay King, Respondent on Review.

LUBA 2017-056 (SC S065917)

Supreme Court of Oregon.

Argued and submitted November 5, 2018.

April 25, 2019

Sean Malone, Eugene, argued the cause and filed the brief for petitioner on review.

Michael J. Gelardi, Hershner Hunter, LLP, Eugene, argued the cause and filed the brief for respondent on review Kay King.

No appearance on behalf of Lane County.

David J. Hunnicutt, Tigard, filed the brief for amicus curiae Oregonians in Action.

Brian R. Talcott, Dunn Carney Allen Higgins & Tongue LLP, Portland, and Mary Anne Cooper, Oregon Farm Bureau, Salem, filed the brief for amicus curiae Oregon Farm Bureau Federation.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices.^**

BALMER, J.

This land use case requires us to interpret a 2013 statute, Oregon Laws 2013, chapter 462, section 2, that allows landowners to replace certain dwellings on land that is zoned for exclusive farm use (EFU). Kay King owns EFU-zoned land in Lane County and received county approval to replace three dwellings on the property that had been demolished in 1997. The issue is whether the 2013 statute authorizes the construction of replacements for the three dwellings. After the county approved the construction permits, LandWatch Lane County (LandWatch) appealed to the Land Use Board of Appeals (LUBA), which reversed the county’s approval, holding that the statute did not permit construction of the replacement buildings.

LandWatch Lane County v. Lane County , 76 Or. LUBA 350 (2017). King petitioned for judicial review of the LUBA decision, and the Court of Appeals reversed. LandWatch Lane County v. Lane County , 291 Or. App. 41, 420 P.3d 37 (2018). We allowed LandWatch’s petition for review, and, for the reasons set out below, we reverse the decision of the Court of Appeals and remand to LUBA for further proceedings.

I. BACKGROUND

We take the facts from the record of the proceedings below. King, hereafter referred to as "landowner," owns a farm of approximately 100 acres in rural Lane County, near the City of Florence. In 1997, landowner obtained permits to demolish three lawfully-established dwellings on the property—one built in the early 1900s, one in the 1940s, and one in the 1950s. Landowner demolished those buildings pursuant to the permits. In 2016, landowner applied for special use permits to construct three replacement dwellings, and the county granted the permits in 2017. The county concluded that the applications met the requirements of the 2013 statute for the construction of replacement dwellings on EFU-zoned land. We discuss that statute in detail below.

LandWatch appealed the county’s issuance of the permits to LUBA, raising various arguments, including that the 2013 statute was not intended to allow the general "replacement" of dwellings that landowners had demolished long before the statute was enacted. LUBA agreed and held that the statutory provision on which landowner had relied was intended to allow replacement of only dwellings on EFU-zoned land that had been assessed as dwellings for property tax purposes within the five years immediately preceding the permit application. Landowner filed a petition for judicial review of the LUBA decision to the Court of Appeals, which reversed, holding that "the statute exempts destroyed or demolished buildings from the [previous five-year assessment] finding otherwise required." LandWatch Lane County , 291 Or. App. at 52, 420 P.3d 37. We allowed LandWatch’s subsequent petition for review.

II. ANALYSIS

A. Introduction

The challenge that LUBA and the Court of Appeals faced—and that we now confront—is the scope of a particularly opaque statute, Oregon Laws 2013, chapter 462, section 2. The parties agree that through that statute, the 2013 Legislative Assembly undertook to modify and to expand the circumstances under which a dwelling could be built on EFU-zoned land.¹ They further agree that the changes that the legislature adopted were not intended to permit the construction of dwellings where no dwelling had ever existed previously. The dispute, rather, is over the scope of the 2013 statute and, in particular, the circumstances under which an existing or former dwelling can be replaced.² The parties reprise the arguments that they made to LUBA and to the Court of Appeals, with LandWatch arguing that the disputed provision of the statute generally permits the replacement of only buildings that were assessed as dwellings during some part of a five year period preceding the permit application, and landowner arguing that that provision permits the replacement of buildings that had at one time been assessed as dwellings, even if they were demolished more than five years before the owner applied for a permit to construct a replacement dwelling.³

The parties' dispute requires us to construe the 2013 statute, which modified earlier laws regarding the replacement of dwellings on EFU-zoned land. In doing so, we employ our usual methodology to determine the legislature’s intention in enacting the statute by looking at the text of the statute in context, along with any useful legislative history. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

Section 2 of 2013 Oregon Laws, chapter 462 provides:

"(1) A lawfully established dwelling may be altered, restored or replaced *** in the manner provided by either subsection (2) or (3) of this section.

"(2) The dwelling may be altered, restored or replaced if, when an application for a permit is submitted, the permitting authority:

"(a) Finds to the satisfaction of the permitting authority that the dwelling to be altered, restored or replaced has, or formerly had:

"(A) Intact exterior walls and roof structure;

"(B) Indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system;

"(C) Interior wiring for interior lights; and

"(D) A heating system; and"(b) Finds that the dwelling was assessed as a dwelling for purposes of ad valorem taxation for the lesser of :

"(A) The previous five property tax years unless the value of the dwelling was eliminated as a result of the destruction, or demolition in the case of restoration, of the dwelling; or

"(B) From the time when the dwelling was erected upon or affixed to the land and became subject to assessment as described in ORS 307.010unless the value of the dwelling was eliminated as a result of the destruction, or demolition in the case of restoration, of the dwelling.

"(3) The dwelling may be altered, restored or replaced if, when an application for a permit is submitted, the dwelling meets the requirements of subsection (2)(a) of this section, the dwelling does not meet the requirement of subsection (2)(b) of this section, and the applicant establishes to the satisfaction of the permitting authority that the dwelling was improperly removed from the tax roll by a person other than the current owner."

(Emphasis added.)⁴ Now, put a finger on that statutory text—or pull it up in another browser window, as the case may be—because we will refer to it repeatedly in the remainder of the opinion.

B. Textual Analysis of Section 2

We begin with what is readily apparent from the text of the statute, before addressing its ambiguities. First, subsection (1) makes clear that a dwelling may be "replaced" only if it was "lawfully established" in the first place. LandWatch does not dispute that the dwellings that formerly existed on landowner’s property were "lawfully established." Second, the replacement (or restoration or alteration) of a dwelling on EFU-zoned land also must meet the requirements of either subsection (2) or subsection (3) of section 2.

We focus first on subsection (2) because landowner argues only that her proposed replacement dwellings come within that provision.⁵ Subsection (2) has two requirements. The first, paragraph (2)(a), identifies structural features that the dwelling to be replaced "has, or formerly had," including indoor plumbing, interior wiring for interior lights, and a heating system. Thus, a farm building, such as a stable or barn, that lacks one or more of the listed features is not considered a dwelling for purposes of the statute, even if it is inhabited from time to time, and, therefore, no permit can be issued to replace such a structure with a dwelling. Significantly, however, as the "has, or formerly had" wording indicates, those elements need not exist at the time of an application for a permit to replace such a dwelling: if the landowner can demonstrate that the dwelling had intact exterior walls or a heating system at some earlier time, it can meet the requirements of subparagraphs (2)(a)(A) and (2)(a)(D). Thus, a currently dilapidated dwelling can meet that requirement. Moreover, that wording is sufficiently broad, at least facially, to encompass not only an existing dwelling that "has, or had" those elements, but also a dwelling that at one time possessed those elements but that has been demolished or destroyed.

But possessing (or formerly possessing) the structural elements is not sufficient. The central dispute in this case is over paragraph (2)(b), which brings into play the tax assessment history of the dwelling to be replaced. That provision requires a finding that, at the time of submission of the application for a permit to replace or restore the dwelling, "the dwelling was assessed as a dwelling for purposes of ad valorem taxation for the lesser of" two different time periods. That reference to "assess[ment] as a dwelling" reinforces two aspects of the requirements for a replacement dwelling: that the structure currently or formerly served as a dwelling, and that it is or was assessed and on the tax rolls as a dwelling. The statute then describes how to calculate the time periods described in subparagraphs (2)(b)(A) and (2)(b)(B), so as to determine which is "lesser...