LandWatch Lane County v. Lane County

290 December 31, 2025 No. 1151

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

LANDWATCH LANE COUNTY,

Petitioner,

v.

LANE COUNTY

and RR Hawley Creek Quarry, LLC,

Respondents.

Land Use Board of Appeals

2025008;

A188415

Submitted October 30, 2025.

Sean Malone filed the brief for petitioner.

Alan M. Sorem and Saalfeld Griggs PC filed the brief for

respondent RR Hawley Creek Quarry, LLC.

No appearance for respondent Lane County.

Before Shorr, Presiding Judge, Powers, Judge, and

O’Connor, Judge.

SHORR, P. J.

Affirmed.

Nonprecedential Memo Op: 346 Or App 290 (2025) 291

SHORR, P. J.

Petitioner seeks judicial review of an order of the

Land Use Board of Appeals (LUBA). In that order, LUBA

affirmed the decision of a Lane County hearings officer

that verified the subject properties as legal lots. On judicial

review, petitioner asserts that legal lot verification (LLV)

should not have been granted because the property lines

were unlawfully adjusted in 1999, meaning the properties

were not lawfully established. Petitioner has not developed

an argument for why LUBA’s interpretation and application

of the Lane Code exception to the LLV process was unlawful

in substance, and we therefore affirm.

This matter involves applications for LLV of two

properties, which were consolidated for appeal before the

county. The subject properties were lawfully created by

partition in 1983, along with a third property that is not at

issue. In 1999, the property lines between all three proper-

ties were adjusted by recording a single property line adjust-

ment deed. At the time, Lane County had no established

process for property line adjustments. A survey depicting

the line adjustments was filed with and accepted by the

county surveyor. In 2016, the property lines were adjusted

again, in accordance with county procedures that had since

been adopted.

In 2024, the landowners applied for LLV. In Lane

County, an LLV is a determination or decision made under

the Lane Code (LC) that a unit of land is a lawfully estab-

lished unit of land. LC 13.030(3)(p). LC 13.030(3)(n) defines

a lawfully established unit of land as:

“(i) A lot or parcel created by filing a final plat for sub-

division or partition; or

“(ii) Another unit of land created:

“(aa) In compliance with all applicable planning, zon-

ing and subdivision or partition ordinances and regula-

tions; or

“(bb) By deed or land sales contract, if there were no

applicable planning, zoning or subdivision or partition

ordinances or regulations.”

292 LandWatch Lane County v. Lane County

A legal lot verification application is either reviewed

through formal procedures laid out in the code, or may be

approved without formal review if particular criteria are

met:

“(1) Process:

“(a) A legal lot verification must be reviewed pursuant

to Type II procedures[1] according to LC Chapter 14, except:

“(i) A legal lot verification does not need to be formally

reviewed if the lawfully established unit of land is consis-

tent with (aa), (bb), or (cc) in this subsection, and is in the

same configuration or has been reconfigured by a lawfully

approved property line adjustment application.

“(aa) Lots or parcels created by filing a final plat for

subdivision or partition for which land division approval

was granted by the County are considered lawfully created.

“(bb) Parcels created by the filing or recording of an

approved minor or major partition map between 1949-1990

with the County are considered lawfully created.

“(cc) A lawfully established unit of land already ver-

ified as a legal lot and noticed by the County, where that

legal lot verification is a final land use decision.”

LC 13.140(1).

The LLV applications for the subject properties were

initially denied by the county planning director, pursuant to

Type II review procedures. In reviewing each action involv-

ing the properties over the preceding decades, the planning

director determined that the 1999 property line adjustment

was unlawful because it reconfigured three properties and

state law defined a property line adjustment as relocating

a common property line between just two properties. The

planning director therefore concluded that, even though the

properties were initially lawfully created in 1983, they were

unlawfully adjusted and therefore were not lawfully estab-

lished, meaning they did not qualify for LLV.

1

Type II procedures are detailed in LC 14.030 and provide for notice and

comment periods in certain situations, a written decision from the Planning

Director, and appeal rights to a Hearings Official and LUBA. LC 14.030(1)(b).

The code also sets forth application requirements specific to LLV applications,

the details of which are not relevant to the matter before us. LC 13.140(2)(b); LC

14.040.

Nonprecedential Memo Op: 346 Or App 290 (2025) 293

The landowners appealed the decision to a county

hearings official, and the cases were consolidated for a single

decision. The hearings official reversed the planning direc-

tor’s denial and granted the requests for LLV. The hearings

official concluded that the properties met the requirements

for the exception from the formal LLV process, under LC

13.140(1)(a)(i)(bb), because they were first created through

a county-approved minor partition between 1949-1990 and

later adjustments were all lawfully approved. In concluding

that the adjustments were lawfully approved, the hearings

official noted that the 1999 property line adjustment “was

completed at a time when the County had not yet adopted

local regulations and procedures for reviewing and approv-

ing property line adjustments. However, the County’s sur-

vey office did review and accept the survey depicting the

1999 adjustments.” Despite concluding that the exception

applied and the properties were therefore excepted from the

formal Type II LLV process, the hearings official went on to

review the planning director’s decisions on the merits and

addressed various issues raised by the parties in relation

to the lawfulness of the 1999 adjustment, and approved the

LLV on that basis as well. The planning director sought

reconsideration and the hearings official adhered to her

original decision without further explanation.

Petitioner appealed to LUBA. Before LUBA, peti-

tioner argued that the 1999 property line adjustment

between three properties was unlawful under state law and

therefore could not be considered to have been “lawfully

approved” for purposes of LC 13.140(1)(a)(i).2 LUBA rejected

petitioner’s argument and agreed with the hearings offi-

cial’s interpretation of LC 13.140(1)(a)(i):

“Petitioner argues in detail why it believes that the 1999

property line adjustment violated existing state law, but

petitioner does not explain why the hearings official’s inter-

pretation, that by following the only then-existing county

2

Petitioner also argued that the hearings official misconstrued the applica-

ble law and made inadequate findings when she implicitly found that the 1999

property line adjustment acceptance by the county surveyor was a land use deci-

sion that could not be collaterally attacked. LUBA rejected that argument, con-

cluding that the hearings officer had not found the 1999 adjustment to be a land

use decision. Petitioner has not challenged LUBA’s conclusion on that issue and

has indicated its agreement with LUBA’s determination.

294 LandWatch Lane County v. Lane County

procedures that the property line adjustment was ‘lawfully

approved,’ is a misconstruction of law other than to argue

the 1999 property line adjustment was not a land use deci-

sion and therefore not immune from collateral attack. As

explained, however, the hearings official did not find that

that the 1999 property line adjustment was a land use deci-

sion or otherwise immune from collateral attack—instead

she found that by following the then-existing county pro-

cedures the 1999 property line adjustment was ‘lawfully

approved.’

“We agree with the hearings official’s interpretation

of LC 13.140(1)(a)(i). The subject properties were lawfully

created by county-approved partition in 1983. The 1999

property line adjustment was lawfully approved pursu-

ant to the only county process and procedure in effect at

the time—review and acceptance by the county surveyor.

The 2016 property line adjustment was lawfully approved

pursuant to the existing county property line adjustment

process. Therefore, the subject properties both meet the

exemption from the legal lot verification process and also

satisfy the approval criterion for legal lot verification.”

LUBA then stated:

“The hearings official adopted alternative findings

explaining why she believed that even if the underlying

correctness of the 1999 property line adjustment could

be revisited, it complied with existing state law. As we

agree with the hearings official’s interpretation of ‘law-

fully approved’ to mean the 1999 property line adjustment

received all then-required county approvals, we need not

consider petitioner’s legal, findings, and substantial evi-

dence challenges to the hearings official’s alternative basis

for concluding that the adjustment was lawfully approved.”

Petitioner filed this request for judicial review. We

review a LUBA order for whether it is unlawful in substance.

ORS 197.850(9)(a). A LUBA order is unlawful in substance

“if it represents a mistaken interpretation of the applicable

law.” Kine v. Deschutes County, 313 Or App 370, 372, 496 P3d

1136, rev den, 369 Or 69 (2021) (internal quotation marks

omitted).

Before us, petitioner argues that, because the 1999

adjustment did not comply with state law, the properties are

not lawfully established units of land, and therefore should

Nonprecedential Memo Op: 346 Or App 290 (2025) 295

not have been granted legal lot verification. Petitioner’s

argument goes to the merits of whether the lots should have

been verified as legal lots, pursuant to the Type II verifica-

tion process. However, petitioner’s arguments do not engage

with the crux of LUBA’s decision, that the properties were

exempt from the legal lot verification process pursuant

to LC 13.140(1)(a)(i). That decision was based on LUBA’s

understanding of the phrase “lawfully approved” as mean-

ing that it was carried out pursuant to the only county pro-

cess and procedure in effect at the time. Petitioner has not

offered any argument as to why LUBA’s interpretation of

LC 13.140(1)(a)(i) was incorrect. Indeed, petitioner argues

that the conclusion on the applicability of the exemption was

moot, and that any discussion of the exception was irrele-

vant and superfluous based on the hearings officer’s resolu-

tion of the LLV on the merits. Petitioner asserts:

“[O]nce the Hearings Official concluded that the subject

properties were legal lots, whether the exception to formal

review applied becomes irrelevant. As such, the exceptions

to formal review and the criteria in LC 13.140(1) are super-

fluous, and the only remaining issue is whether the subject

properties are, indeed, legal lots (i.e., whether the subject

properties were lawfully established). LUBA’s repeated

citation to LC 13.140(1)(a)(i) is, therefore, misplaced,

though there is some similarity between Lane Code’s use of

the term ‘lawfully approved’ for an exception to the formal

LLV process and Lane Code’s and statute’s use of the term

‘lawfully established’ for determining whether a property

is a legal lot (i.e., the determination of whether the 1999

[property line adjustment (PLA)] resulted in legal lots or

not legal lots hinges on whether the 1999 PLA was effectu-

ated in accordance with applicable law).”

We disagree that the interpretation of the meaning

of the exception and its application were irrelevant or super-

fluous. When an adjudicative body offers multiple indepen-

dent bases for a decision, a party challenging the outcome

must challenge all independent bases in order to obtain

relief. See Canfield v. Yamhill County, 142 Or App 12, 18,

920 P2d 558 (1996) (rejecting an assignment of error that

was meritorious because LUBA’s opinion offered “sufficient

independent or alternative bases for each of its determina-

tions” that were challenged by that assignment of error).

296 LandWatch Lane County v. Lane County

Furthermore, on judicial review we review LUBA’s order and

only reverse if the order is unlawful in substance or proce-

dure, is unconstitutional, or is not supported by substantial

evidence. ORS 197.850(9). Therefore, the fact that LUBA’s

decision entirely turned on the application of the exception

to formal review is in no way irrelevant or superfluous.

Petitioner has developed an argument only as to

why the LLVs should have been denied on the merits based

on its assertion that the 1999 adjustment was inconsistent

with state law. Petitioner has not developed an argument as

to why LUBA’s interpretation of the text and applicability

of the LC 13.140(1)(a)(i) exception to the LLV process was

unlawful in substance. Petitioner briefly identifies what it

perceives to be inconsistencies in LUBA’s opinion regard-

ing the conclusion that the 1999 adjustment was “lawfully

approved,” but that it was not a “land use decision.” However,

petitioner does not adequately challenge LUBA’s interpre-

tation of the phrase “lawfully approved” or its conclusion

that the exception to the LLV process applied to the prop-

erties. The remainder of petitioner’s brief does not address

LC 13.140(1)(a)(i) at all. Petitioner focuses on its assertion

that the LLVs should not have been granted on the mer-

its under the Type II review procedure because the 1999

adjustment was not effectuated in accordance with state

law, meaning the properties were not lawfully established.

To the extent that petitioner asserts that LUBA

was incorrect in concluding that the 1999 adjustment com-

plied with all then-existing county procedures because the

county had no such procedures in 1999, and therefore the

adjustment could not be considered to have been “lawfully

approved,” that argument is unpreserved. Barnes v. City of

Hillsboro, 239 Or App 73, 81, 243 P3d 139 (2010) (“Generally,

a party must raise an issue to LUBA to preserve it for judi-

cial review.” (internal quotation marks omitted)). Before

LUBA, petitioner asserted that acceptance of the 1999

property line adjustment by the county surveyor did not

involve the application of any criteria or substantive review,

but that argument was made in the context of petitioner’s

assertion that the hearings officer erred in treating the

adjustment as a land use decision. That is a fundamentally

Nonprecedential Memo Op: 346 Or App 290 (2025) 297

different argument than a challenge to what constitutes

lawful approval. Because it was not preserved below, we do

not reach it.

Petitioner has not developed an argument for why

the essential conclusion of the LUBA opinion was unlawful

in substance, and we will not develop such an argument for

it. We therefore affirm.

Affirmed.