Martin v. Lane Cnty.

281 Or.App. 285

383 P.3d 903

Thomas J. Martin, Trustee, for the B & C Family Trust, Plaintiff–Appellant,

v.Lane County, a political subdivision of the State of Oregon, Defendant–Respondent.

A154387

Court of Appeals of Oregon.

Argued and submitted February 10, 2015.

September 28, 2016

Michael Vergamini, Eugene, argued the cause and filed the brief for appellant.

Stephen E. Dingle argued the cause for respondent. With him on the brief was Lane County Office of Legal Counsel.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.

HADLOCK, C.J.

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)¹ that fell within the exclusive jurisdiction of the Land Use Board of Appeals (LUBA). ORS 197.825(1).² The county also asserted that the petition should be dismissed as untimely under ORCP 21 A(9). The trial court granted the dismissal motion. On petitioner's appeal, we affirm on the basis that the trial court lacked subject matter jurisdiction. Accordingly, we do not address the county's alternative contention that the petition was untimely.

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(1).³ In their pleadings, the parties quoted from, cited, attached, and incorporated by reference a number of documents that we also consider in our review of the trial court's ruling. See Black v. Arizala , 337 Or. 250, 265, 95 P.3d 1109 (2004) (explaining that a court has authority to consider matters outside the pleadings in addressing a motion to dismiss for lack of jurisdiction under ORCP 21 A(1) but “must use care to insure that its determination of the facts on a motion to dismiss does not interfere with a party's right to trial on disputed questions of material fact”). In considering the sufficiency of the petition, we review the trial court's ruling for errors of law, Campbell v. Tardio , 261 Or.App. 78, 80, 323 P.3d 317 (2014), and assume the truth of the facts alleged, to the extent that they are not contradicted by additional facts in the record. Flight Shop, Inc. v. Leading Edge Aviation, Inc. , 277 Or.App. 638, 640, 373 P.3d 177 (2016) ; Nordbye v. BRCP/GM Ellington , 271 Or.App. 168, 174, 349 P.3d 639 (2015). Here, the facts as set forth in the pleadings and as supplemented by the documents presented by the parties in association with those pleadings are undisputed.

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 be zoned under the Lane County land use code as Exclusive Farm Use with a 40–acre minimum (EFU–40).

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 place[.]”

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.⁴ The petition alleges that Ordinance 710 governs the zoning of the subject property and that “the Lane County Planning Division has operated and continues to operate under an erroneous interpretation” that PA 884 repealed Ordinance 710. The petition seeks a declaration that Ordinance 710 governs the zoning of the subject property.

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.

LC 10.025–15. The record in this case includes evidence, submitted with the parties' pleadings, concerning petitioner's interactions with the county's land-management division. The pleadings and the record show that on several occasions, the county, through its land-management division, provided petitioner with an opinion concerning the zoning of the subject property, including an interpretation that the county's comprehensive plan, PA 884, supersedes prior zoning and controls the zoning of the subject property. For example, petitioner brought an action against the planning director in the United States District Court for the District of Oregon, alleging a violation of 42 USC section 1983. As an attachment to the county's memorandum in support of its motion to dismiss the petition for declaratory judgment, the record in this case includes the district court's order dismissing plaintiff's action on summary judgment. In its recitation of the undisputed facts, the district court stated that in August 2006, Lane County planner Matt Laird informed petitioner that the AGT 5 zoning of the subject property had been repealed in 1984 and that the subject property was zoned “E40” and subject to a 40–acre land division requirement under PA 884. As an attachment to the county's answer and affirmative defenses, the record also includes a September 2006 letter to petitioner from the county's planning director, Kent Howe, summarizing the history of the zoning of the property:

“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:

“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 1970's 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 decisions. Under ORS 197.015(10)(a), a land use decision includes

“[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) A land use regulation[.]”

On appeal, petitioner asserts that the trial court erred in concluding that exclusive jurisdiction lies with...