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Oral Argument 2025-080 Landwatch Lane County v. Lane County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=mxBFPpmHV80). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Luba number 2025-080, Land Watch Lane County versus Lane County. I'm Board Chair Zamudio. Board members Basham and Wilson are also present. Please mute your audio when you're not speaking. That will help us our recording. Thank you. I'm not aware of any pending motions. Is there anything that the parties need to bring to our attention? Seeing shaking heads, no. No, thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? 3 minutes, please. Okay. Uh I will keep track of time and ask that you also keep track of your own time. And intervener, you'll have a total of 15 minutes for your response. So, with that, petitioner, please state your name Good morning. Shawn Malone on behalf of petitioner Lane Washington County. Uh the facts the most relevant facts here is that uh there's tax lot 200 and tax lot 302 and that these two tax lots became a tract after January 1st, 2019. Uh this is important because the way in which they became a tract was through a process that is identified in the legislative history as this notion of deed shuffling, uh conveying the properties back and forth, uh adding um and renaming the the individuals on the deeds uh through a variety of of very similar but somewhat different um spellings and using ampersands instead of and and and a a variety of ways um with the effect that the title is different but the underlying individual still owns the property. Um And so, at issue here is obviously ORS 215.750 sub 5 sub H. Uh this is related to the first assignment of air and it's really the bulk of of the briefing. Uh the first issue that we just sort of have to address and that uh uh intervener referred to as sophistry, which is somewhat ironic because that originates with the Greeks and philosophy and uh you know, a conditional statement is something that is integral to logic, symbolic logic to this day. One of the more difficult classes I've ever taken in my life, but nonetheless, the idea of a conditional statement is a very straightforward uh principle in logic and symbolic logic. And it it really only comprises two parts, an antecedent, that's the if clause, and a consequent, the then clause. So, we don't need to um act like this is some difficult thing that the board can't understand or that we can't understand. It it's it's readily discernable. Um and because the hearing officer uh determined that just the subsection H in and of itself is a conditional statement and that um you know, we we need to dive into what that means. What what is a conditional statement? And you know, interestingly enough, the broader 5A through H is itself is also a conditional statement. Um with the consequent, you know, the then clause coming first in subsection 5 in section 5, and then subsection A through H contains all of the uh antecedents, the if clauses. So, I think that's pretty straightforward stuff. Uh we don't have to you know, it it's not that difficult to ascertain. Um Land Watch's conclusion as far as the text goes is that collective collectively 5H is a conditional statement. Section 5 is the consequent, that is, you get a template dwelling, you are entitled to a template dwelling, and subsection H is the antecedent, that is, if you satisfy three separate clauses, all of which are conjoined by the word and, and uh those are related to the date certain of January 1st, 2019. Here, because the applicant did not satisfy all three clauses or criteria or prongs or whatever you want to call them in subsection H, uh then the applicant is not entitled to that consequent, that is, the template dwelling. Uh in our opinion, that that's sort of a very straightforward reading. But hearings official, on the other hand, concluded without a lot of analysis uh that subsection H is a is its own conditional statement, and somehow that the the first clause uh that begins with an if, and again, we'll get to this other notion that you know, there was an if immediately preceding that the end of section five, um that that subsection H is its own uh conditional statement with with the first clause being apparently the antecedent, and then the two subsequent clauses being the consequence. But if you if you read it, if you read subsection H, it's list it's just listing things that you have to have. Think criteria that that must be satisfied. It's not couched in in terms of how a um a conditional statement normally operates. If you do this, then you get this. The second two clauses in subsection H just are not couched as something that you get, something that that results from uh satisfying the the antecedent. And so, that's that that's where the the basic difference in the interpretations uh comes from. And the hearings official, again, in in his uh in the the the proper part of his decision, doesn't really get into the analysis, but again, the this this hearings official has done it several times, incorporated and adopted findings from uh a non-attorney uh applicant's consultant that it appears were not intended to be findings in and of themselves. And those findings make several blatant mistakes. And we'll just to get to those quickly, uh the first one is this notion that all if-then statements, all conditional statements result in limitations or prohibitions. That's just simply not the case. Um a conditional statement operates on whatever the language of the conditional statement is. So this notion that there's a limitation or a prohibition every time there's a conditional statement is just simply not true. You look to the You look to the language of the conditional statement here. Um it's not a limitation or prohibition, it's that you get a template dwelling. It's actually um something that you get, something that's uh positive or something that's that's desired, I guess. Um the second one is that uh that non-attorney's adopted findings um related to legislative history said something along the lines of the intent of HB 2225 was to prevent double dipping. Double dipping. Uh it's not even clear what that is, and a review of the legislative history does not indicate anyone saying that phrase double dipping, and there's zero citation from the applicant's non-attorney's consultant uh that were adopted. There's no zero citation of any actual legislative history. So the hearing official's being a little loose in terms of adopting findings without any support or citation. And we'll get into that legislative history a little later here, but again, another thing that's yeah, that's implicated in the second assignment of error is that on two occasions and and it's pretty lengthy uh within those adopted findings, they just get the tax lots completely wrong. They say these two tax lots are not contiguous to each other." In fact, they are. That's what makes them attract and they're within the same uh you know, complex kind of deed shuffling uh deed titles. And that's what again makes them attract. And that happens in both of the sections that are adopted by the hearings official from that non-attorney consultants. Uh the next thing that those adopted findings get wrong is this notion that a conditional statement uh results in uh you know, if you don't satisfy the antecedent, then it's just something that doesn't apply. But that's not the case. Instead, you Here you get a dwelling. That's what the antecedent says. You get a dwelling only if you know, you satisfy these other criteria. And so, saying that it this notion of just not applying, that that in and of itself is inserting language that doesn't exist in the statute. Um you know, again, you you look at these conditional statements and you just you just uh apply them according to their language. And there's no language that says this conditional statement {quote} {unquote} does not apply. So, um in our opinion, obviously, it it you get a condition you get a uh template dwelling. An applicant is entitled to a template dwelling as the antecedent. Um antecedent of the consequent, if you satisfy all the antecedents, those being the three criteria, the three prongs, clauses, requirements of subsection H. Um and those those one of them then is not satisfied here. Yeah, two of them are satisfied, I agree with that. Um but because it's all conjoined by the word and, that means you have to satisfy all three of those statements or all three of those prongs. And and that's just not what is happening here. Um Just like this notion of not applying is coming out from sort of left field in in a similar fashion as this notion of double dipping. It's just coming out of left field. We don't really see any textual or legislative support for these these phrases and how these conditional statements are being applied. Um and then also on on on page 13 of of the response brief, there's an allegation about this alternative finding that the hearings official made and that alternative finding is kind of irrelevant again because it's just saying, oh well, you know, in the alternative, they are satisfying two of those three criteria in subsection H. But again, the because they're joined by the word and you have to satisfy all three. So, that sort of alternative finding identified on page 13 of interveners brief, um it's it's irrelevant if, you know, if you only satisfy two of the three, if you only satisfy one of the three, you haven't satisfied the whole thing. And you got and you have to satisfy those those antecedents, those if clauses to get to the consequent, which is the entitlement to a forest template dwelling. Um and the next sort of incorrect notion coming out of these adopted findings is that subsection H is not in itself a conditional statement. And looking at the adopted findings, they are focusing as a conditional statement on subsection H. And the hearings official again in the in the sort of body of its own findings doesn't really address the idea of of of the fact that it's the broader 5 H and 5 A through G are all conditional statements because subsection 5 ends with the word if, so making all of those A through G and H um the antecedents to the consequence of again being entitled to a template dwelling. So, you got to satisfy uh A through H to to uh to get the get what they're entitled to. Um there's this double if oddity, and I am not uh alleging that basically what I'm coming down to. And again, hearing official did not really analyze that double if at all. And the question I have is what does the double if add to it materially, significantly? I I can't really see it cuz if you take away one if, you still have an if there. It's not like this notion of uh double negatives where double negative makes a positive, etc. Um it it it's a little different. If you take away that if, that subsection still begins with if if you take away either one of them. So, um it appears to be a redundancy. It's difficult to apply any significance. Uh I see that I'm generally speaking at my time here, but I'm going to press this. >> Mr. Wollin, before we run out of your time, um about the legislative history, um like Mr. uh Representative Helm makes clear that he's sort of worried about gaming the system. Um but I think the the statute would address that at least in some extent either with your interpretation or Mr. Reader's interpretation. What about the legislative history specifically goes to your position that basically you have to have been a tract by 2019? What what in there specifically address that part of your argument? Well, for me it's it's the plain text. I I I But, you know, going to the legislative history, uh Mr. Reader has identified what he refers to as three principles there. Um and um I think that Mr. Representative Helm is clear when he states that uh let me I have it here. Uh he said Helm says, "And gaming the system took two forms." Again, that's this notion of um uh, deed shuffling and then this notion of multiple property line adjust adjustments uh, taking place. And so, there's no other third one, you know, that the sponsor of the bill Helm is talking about. Um And then that that's obviously reinforced by individuals like um uh, Derzan and Malky, Land Use Attorney. Um, and I think the real thing there in the terms of legislative history is look at what Jeremy Keepers is saying. He's He wants subsection H removed. He's saying all these other people already deed shuffled. I haven't deed shuffled and I haven't done it by January 1st, 2019 and because of that, I'm going to be prevented from doing something later on because of that date certain deadline. And I'll try to preserve 10 seconds for uh, rebuttal if I may. Does that answer your question, Commissioner Wilson? Sure. Sorry. Questions? Okay. Uh, you will have 1 minute for your rebuttal remaining and we will turn to intervener for your responsive argument. Good morning. Mike Reader for the intervener respondent. Uh, I'd like to address a couple of preliminary items. First, just want to correct some actual scrivener's errors in the uh, response brief. Page 7, line 5, ORS 215.215 should say ORS 215.750. Uh, page 10, line 8, country should read uh, contrary. And page 18, line 12 should say the the citation is a there's a missing sub five. And so, it should be ORS 215.750 sub five, sub C, D, and H. Okay. With that, uh, the Lane County Hearings Official affirmed the Planning Director's decision to approve the forest template dwelling in the F2 zone on a tract comprised of two parcels as Mr. Malone talked about tax lot 200 and tax lot 302. It was not until 2005 that tax lot 200 and 302 became a tract. Um, tax lots 200 and 302 are each individual legal lots, lawfully established units of land, and together comprise of over 80 acres, and that's found in the record at 413. Um, it's acknowledged that tax lots 200 and 302 were not a tract as defined by the statute on January 1st, uh, 2019. And, uh, there were no dwellings on either parcel as of January 1st, 2019, and there are no dwellings on the tract now. So, let me get I think it might be easier to understand, uh, all of the arguments today if we understand if we were to take petitioners' interpretation and omit the second if out of the statute, which I'll talk about you cannot do, but let's suppose you did. Let's say you did that. In effect, what that would mean is that a property owner uh, on January 1st, 2019 that owns a lot a lawfully established unit of land, a lot or parcel. Let's say that parcel is 80 acres. There's one Otherwise qualifies for a forest template dwelling, meets all the other criteria. Because that property owner on January 1st, 2019 did not also own another lot or parcel, that property owner would be prohibited from having a forest template dwelling under the interpretation posited by the petitioner. I am not arguing that the absurd results maximum applies here because it doesn't need to because the text and the context and the legislative history support the hearings officials interpretation of the statute. However, if you understand what is being argued the practical effect of what is being argued by petitioner, you'll understand why the double if has meaning. Okay, so think about that again. There would be no planning purpose for requiring a property owner as of January 1st, 2019 who doesn't also own another lawfully established unit of land from obtaining a forest template dwelling if they otherwise meet all the other criteria of House Bill 2225. And I'd like you to think about that and let that sink in because that's the absurd So >> I'm just trying to understand where petitioner is coming from as a policy matter and I'm not asking you to make petitioner's argument, but in terms of how these two parcels were combined, um, what purpose did that serve? Cuz there's an allegation that there's deed shuffling happening that is what the legislature intended to avoid with this subsection H. Can you just explain to us why these lots were combined and what for what purpose? Yes, that is a good question, uh, chair. Uh, the purpose of combining the two parcels to become a tract under the statute House Bill 2225 in effect in 2025 and now to 2026 was to I was not representing the applicant at the time, but if you look at the record, it was to create a template a set the centroid of the template that would qualify the property for a forest template dwelling under the rules in existence in 2025. So, as I understand it by the record, if the if the applicant were to only use tax law, I think it's tax law 200, but the the tax law on which the dwelling the the parcel on which the dwelling will be located, if there was no attached other parcel creating a tract, I don't believe that they would qualify for a forest temple dwelling. And on the record, is it because and this is purely out of curiosity, but also trying to understand the policy purpose of subsection H? Is that because it wouldn't have captured enough existing legal lots if it were further west? >> I believe so. So, if you look at a you know, just the individual parcel and you look at the centroid, you know, you your template would only capture so many dwellings. If you then acquire another legal parcel and create a tract, the centroid moves capturing different parcels. I separate parcels and separate dwellings that is required in order to get a forest temple dwelling. So, in terms of the policy purpose of this provision, I understand earlier subsections are looking at not using property line adjustments to approve that would result in the um parcel qualifying for a dwelling. I think petitioners argument is this is the same kind of effect because it's qualifying the parcel. Why is that not policy-wise um supported either by the legislative history or the or the text or context? Because it's not. There's not I mean we we briefed that that is a policy consideration that the legislative sponsors could have brought forward to the legislature, but did not. The test >> So, if I understand you're saying petitioners argument is essentially policy-wise overburdening subsection H with a policy determination that the legislature the legislative history shows that the legislature rejected and in terms of the actual text is not supported by the text. That is 100% correct. Thank you. Yes. The interpretation of ORS 215 sub five and sub five H, the double ifs, uh if has to have meaning. Okay? So, when you look at the dictionary definition, Webster's Third International Dictionary page 1124, if has the definition of in the event that, in case, on condition that. So, House Bill 2225 included two Fs. I'm sorry, two ifs. Okay? Uh under sub five and under sub H. Essentially, what petitioners are arguing is that the hearings official erred by giving meaning to both ifs. In other words, we call it in the briefing, we call that a double negative. And it's similar to when someone says says you're not wrong, they're really saying I agree with you. That's really what was going on. This this this notion that there's redundancy is not born out either by the context or by the legislative history. So, the Let me put it to you this way. The if if the the the Supreme Court, the Oregon Supreme Court has said that the job of a judge is to give meaning and effect to all provisions. And we know from ORS 19174010 that judges may not insert what has been omitted or omit what has been inserted. That that if in subsection H was purposely uh in inserted in the in the language. When you look at the legis- when you look at the legislative format of House Bill 2225 that's in our appendix, you will see that it was added and there were iterations of House Bill 2225. In addition, and I think really importantly, is the the the the OAR that implements the forest template dwelling statute. Uh OAR 660-06-0027 uses the exact same if, the double if. So, that went through the process of adopting regulations and no one may Nobody said, "Hey, wait. Time out. There's a double if here that doesn't make any sense." You know, it's conceivable that the, you know, DLCD could have said, "Oh, wait a second. This double if doesn't make sense. Let's interpret the statute." But, they didn't. The It's not the role of LUBA or the courts to erase the the if because petitioners don't like the So, we posit that it's not a scrivener's error, but it was purposeful uh uh part of the statute. It doesn't suffer from anything other than perhaps it's a bit confusing. Yeah, I agree. If I were to write the statute, I probably would have written it differently. But, you cannot omit that that second if. It has to have meaning. And that's, you know, Friends of Nab Hill versus uh Filomath, courts must harmonize apparent conflicts if possible. I I actually posit that the easiest way to read the statute is the way that the the intervener responded and the hearings official read it, which is it it is it is conditional. If you don't have a tract and so I would invite the LUBA when you when you're looking at this and writing your opinion, highlight in the statute everywhere where the statute talks about lots and parts lots and parcels. Highlight tracks. And highlight the ifs. And it will become clear that this was a statutorily put together the way that it's supposed to. Uh >> Explain for me that where the double dipping comes from and what that means in your understanding of the hearing officer's understanding. Yes, so the double dipping I you know I have got to be honest, the double dipping argument is somewhat irrelevant. I again, I did not represent the applicant below. Uh double dipping I I think I understand what they're saying. I think it's irrelevant. I think the legislative history does not support the position of the petitioner. If if the legislature wanted to say property owners who qualify for forest template dwellings must have a tract as of January 1st, 2019. It easily could have done so. Instead, what the the the legislature was concerned about was if you have a tract on January 1st, 2019 you can't also have a dwelling on on that tract. Even if even if you even if the applicant is proposing a dwelling on another parcel in that tract, if that tract has another dwelling you you have to look at that tract. You don't get to deed shuffle. You don't get to say cuz prior to the statute you prior So is that what the double dipping is? It's looking at the tract and saying if you divide the land, if you create new properties that then could be qualified for a forest template dwelling you have to look at the whole picture of the tract and you can't do that as of after January 1st, 2019. And I think what you're arguing and what what the petitioner's view of this is is there's also an opposite side of that where you can't add parcels together to create a new tract that would then be qualified for a forest template dwelling. Your argument is H is going towards the first scenario and not the second scenario. Correct. And the the legislature actually they contemplated what petitioner is advocating and advocating and they rejected it and we cite that in our brief about how Mr. Representative Helm wanted to have that stricter snapshot. Like basically, you can't go create a tract that then qualifies the parcel for a forest template dwelling. The legislature specifically rejected that policy issue. Okay, so then in terms of double dipping is shorthand for the purpose of what subsection H is getting at. >> Yes. It's not necessarily irrelevant for our analysis because we need to figure out what is H getting at. Yeah, H is getting at the fact that if you in 2000 in January 1st, 2019, you take a snapshot. If there is a a a tract and that tract has a dwelling on it as of January 1st, 2019 or or no dwelling exists or has been approved on another lot or parcel that was part of the tract you do not qualify for a forest template dwelling. It doesn't say anything about afterwards if there's a it doesn't say anything about our situation here where the the parcel isn't a tract. It's just a parcel and they afterwards acquire a a property that is a legal lot or parcel that doesn't have a dwelling on it to to move the centroid. That is a policy decision that could be tackled by the legislature, was not tackled in 2025. >> And you're saying the legislative history reveals that the legislature was aware of this problem and chose not to address it. I think well, I I don't think it's super explicit. I don't think it really I don't think the issue was directly on point at the legislature. The legislature was looking at other things. And citation to Jeremy Keepers, Jeremy Keepers was is not a legislator. Uh and he's not an and he's not an attorney. So, I don't I don't give any stock to Jeremy Keepers' legislative comments. Okay, we're getting to the close of your time, so I just want to make sure there any questions the board members on this. Okay, so if you could wrap up in the last 10 seconds. Want to say anything? >> Sure. Sure. State v. Pierson states that reading the statute to the contrary would require omission of words that the legislature chose to insert. And the Supreme Court under State v. KP 32401, we may not omit a part of the wording of the statute in our interpretation of it. Instead, we are to give effect to all of the all of that wording. essentially what petitioners are asking Luba to do is to omit that if, don't give it conditional meaning, and that is the Not only is it incorrect under uh PGE and Gaines and 174010, it's also the incorrect interpretation of the statute. Thank you. Uh we'll return to petitioner for your 1-minute rebuttal, petitioner. Go ahead. Mr. Reader, discounting the testimony of Mr. Keepers cuz he's a non-legislator, he's a non-attorney, but he cites McKenzie Bowerman's testimony as indicating the purposes of what's going on here. Again, a non-legislator, non-attorney. Uh a lot of the sites that the respondents in appendix and excerpts of regular difficult because it actually omits all even pages page numbers in there. I only have odd page numbers in my um my copy of the interveners' brief. Uh The other issue is that there we know there's a clear determination about stopping this deed shuffling that's going on in order to qualify for a template dwelling, and that is exactly what Mr. Reeder said occurred here. That that is an admission that that these people deed shuffled in order to get a template dwelling, and that is exactly what the legislative history says not to do or was to hopefully be prevented by this statute. Um as for the double ifs, I'm not saying omitted. Um my interpretation exists with one if or two ifs. The problem is no one's um put together any sort of meaningful or significant notion of what the second or first if does. Um the respondents' argument would still exist because if you took away one if because it would still say if. They would still argue that, you know, subsection H is a conditional statement then. Um I say it's redundant because it actually is redundant. They're using two things right in a row. The the real issue is what is the meaning behind that redundancy. The hearings official never attributed anything specific to that, and and and neither to my knowledge has um intervener here except to say that it it it results in some sort of interpretation that that um conflicts with our interpretation of it being three times >> Thank you. That we've exceeded your time for rebuttal, so I will stop you there. And um we will get to wrestle with the double ifs in our decision. So, our decision in this matter is uh the statutory deadline is May 13th. Uh we'll ask the parties in advance to agree that we issue our decision no later than June 3rd. Is that okay with these parties? No objection. Thank you so much, and have a good remainder of your day.