Document text
Oral Argument 2025-078 Pagel v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Y1aILNljGBE). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
We do a microphone test. Anybody hear me? >> Hear you? You hear us? >> Good morning. And petitioner, are you intending to uh appear via video or And petitioner, you're muted. So if >> Petition, are you intending to appear by video or audio only today? >> I'm intending to appear by video and audio. I see I see you. >> We cannot see you. We do not have uh Oh, there you are. We now can see you. >> So, bear with me. >> That's okay. Good morning. And you are coming across a little quiet, so I'm not sure where your microphone is, but if you could speak up or maybe get closer to your microphone, that will help the quality of our recording. And just so the parties know, this um argument is recorded and live streamed on YouTube. So, it's uh being recorded. And petitioner, will you uh pronounce your name for me? Is it pagel like bagel or is it pronounced >> bagel? Bagel. >> That's it. >> You probably heard that a few times. I just wanted to make sure that we have it right for the record. So this is the time set for oral argument in luba number 2025-078 pagel versus Marian County. I am board chairsio. Board members Wilson and Basham are also present today. And if you can please mute your audio when you're not speaking that will help the quality of our recording. And I'm not aware of any pending motions in this appeal. Is there anything that the parties need to bring to our attention? >> Nothing. >> Okay. Thank you. Uh, so oral argument is a total of 30 minutes. Petition, you have 15 minutes and may reserve up to five minutes for rebuttal. Would you like to reserve any time? >> Five minutes, please. >> Okay. Uh, I will keep track of time on my end, but uh, suggest that you also keep track of time on your end. And just so you know, the clock that's on screen is not exact time. It's just there for the party's convenience. Um, so with that, petitioner, if you could state your name for the record and begin. Uh, go ahead. >> Thank you, members of the board. Council, my name is Victor Paggel. I am the petitioner. The applicant purchased four vacant acres of land from his neighbor and wishes to place two dwellings on those four vacant acres. The problem is that he cannot do so because MCC 17.110.80 which I will refer to as 80 says that the maximum number of dwellings an easement can serve is four. And in this case the easement that would serve those two dwellings already serves four existing dwellings. Instead of attempting to resolve his dilemma in the manner a similar dilemma was resolved in the same neighborhood many years ago, an option I will discuss further later. Uh the applicant has sought a variance of 800 so as to allow six dwellings total to be served by the subject easement claiming that the authority for such a and I'll refer to that rule as 0100. I contend that 0110 does not authorize a variance of the Ford dwellings per easement rule and respondent says otherwise. respondent argues that quote any of the standards end quote may be varied because the only limitations placed on variances are those that are prohibited and identified as such at the end of 010. I contend that the list following with reference to requirements governing colon is a list of what is allowed and that is limiting. It is limiting only in the sense that by its language it is exhaustive not suggested. And furthermore, if respondent is correct in this regard, it would effectively render that list meaningless. >> Um, Mr. Pagel, >> sir, >> I have a question. I want to make sure that I know exactly we all agree on what the hearings officer's interpretation did because it looked like there's a little confusion below. Like at one point they were talking about whether in that list of things that you say they they ignored there was number of dwelling units or structured permitted on a lot. I think maybe that was the applicant and staff's position. Um and then in your brief you also talk about at the end of that list the other standards when limits for an adjustment under 171630 are exceeded. Am am I correct? When I look at the hearings officer's decision, it looks like she's just relying on that any of the standards of this title um can be modified. Is that is that what >> Oh, good question. Uh I'm not I'm her determination uh was that the the policy and practice of the county is supported by um the uh uh O in making the determination and >> Okay. Thank you. >> All right. Thanks. >> All right. I'll try my best. Maybe maybe this will be helpful what I'm going to say next. Uh let me see what happens. um responded brings back that list into play by arguing that the phrase number of dwelling units falls within the list in 010 that allows a variance of 80. When determining that the policy and practice of the county is reasonable, the hearings officer did not identify an item on that list that supports her determination. However, in her additional findings of fact and conclusions of law, the hearings officer misqued 010 by inserting a comma after the words percentage of lot coverage when purporting to set out the entirety of 010. The import of inserting the comma would of course change the meaning and context of the phrase the entire phrase quote percentage of lot coverage and number of dwelling units or structures permitted on a lot end quote. It would appear that because of the conjunction using the word and both of those matters must be in play in order to be the subject of a variance. It seems that it is necessary obviously to reach a considered opinion of what was intended and I would first contend that what was intended in 010 is a complete and exhaustive list of what may be varied in this case. The alleged interpretation by the respondent is directed at a single term or statement number of dwelling units. However, that phrase has been taken completely out of context because it because it ignores the other part of the phrase as I have explained and in doing so respondent has misconstrued 01 in order to reach its desired interpretation. So whether the entire phrase that I've just quoted is the single item being interpreted or whether only the words number of dwelling units is the single term. An interpretation that says that 80 is a standard that may be buried under 010 does not plausibly account for the text and context of 010. And this analysis appears to be consistent with what the Oregon Supreme Court has held in the Seaporin case. In summary, respondent has made an interpretation that is not only not plausible, it has If the board deems otherwise or rules otherwise that the power does exist, I suggest that the applicant has not met his burden of satisfying all of the and I have focused on the word only. The criteria include, quote, there are unnecessary, unreasonable hardships or practical difficulties which can be relieved only by modifying only by modifying the literal requirements of this title. End quote. The applicant and respondent have acknowledged that a virtually identical problem existed at the west end of Burton Place many years ago. and was resolved by agreement of the property owners and county and without the necessity of a variance. However, the applicant has made no attempt whatsoever to engage neighbors in a county, excuse me, the neighbors and the county about the possibility of similarly resolving this dilemma. >> Mr. Pagel, >> yes, sir. I didn't exactly follow what they did earlier at the I guess the west end of Burton Road. Could you explain more in detail like exactly how they solved that problem? >> Yes, the uh the uh at before 2020 the uh the West End there were three pieces of property 6 and a half acres each at the west end of Burton Place. So that it was a situation where only three dwellings could be built. the property owners in the county got together to basically extend Burton Place, the right of way along there, so that those three pieces of property uh uh had uh bordered on Purden Place effectively such that uh uh easements with easements off of Burton Place, each of those pieces could develop up to three dwellings. So they could get at least nine dwellings instead of three out of them. That that was that was my uh and as I understand it, the the respondent and the applicant I agree that that event occurred. Uh but they simply say that it's just not plausible without attempting to do to try to do the same thing. They just said it's not plausible. So, how would how would you do it in this case? If you're going to do the similar thing, >> the the property owners there there are four of four of us including the applicant would get together and and decide that let's do this and how could we work this out with the county in such a way that that the uh the uh right of way would be such that uh more dwellings as in as at the other end the Burton Place could be built without the necessity of trying to do a variance in order to get those new dwellings. >> Like, but where where would the new I assume you're talking about like a new road, where would that go? >> Right where it is, the the east end of Burton Place right now at at my property, it starts as a a single single lane of traffic. And so that's the way it was on the west end, too. but that all the property owners got together and agreed to make that so that it's two-way traffic to get all the way to the to the far end so that they they could then take easements off of Burton Place at the west end to get the additional dwellings. And the same thing could be >> if the owners and the county agree could reach an agreement but nobody has attempted to do that. Okay. Thank you. >> Thank you. >> You're in your rebuttal now. You can continue or you can reserve your time for rebuttal. >> I'll reserve. Thank you. >> Thank you. And you'll have uh three and a half minutes for your rebuttal. >> Okay. Thanks. >> We'll turn to the uh county for your argument. Please state your name for the record. >> Good morning, board chairs and members of the board. My name is Andrew Mittenorf and I am council for respondent Marian County. This appeal presents two assignments of air, but the first authority under the county code and respondents interpretation is dispositive and independently supports uh affirming the decision. The county's position is that this appeal fails on the threshold issue of local code interpretation 010 as the petitioner referenced earlier which expressly grants the county decision makers authority to verify or modify the strict application of any of the standards of this title subject only to the stated prohibitations such as no variance for uses new uses not otherwise allowed or no variance to the criteria or definitions. The four dwelling per uh private drive limit stated in uh Marian is a standard governing access and the hearings officer and the board treated it as such consistent with the county's long-standing practice of processing the same kind of request as a variance and applying the uh or the uh applicable criteria. And as was referenced um at the hearing before the hearings officer and in the hearings officer's decision, there have been uh there were three cases where Marian County did something similar to this. Um that's not an exhaustive list but more it was used as an illustrative list of here are three similar situations where the county has done this and has interpreted um the variance code to allow such a variance to take place even if luba reaches the second assignment the varian >> Mr. Mittenorf before we get to the second assignment of air I'm going to ask you the same question I asked Mr. Hegel. Um, I'm trying to figure out exactly what the hearings officer's interpretation was. Uh, it seems to me there's three, well, at least three different ways you could try to get there to saying, uh, variances are allowed. The first one is just relying on any of the standards of this title can be modified. Um, another way could be to say, well, we're modifying the number of dwelling units or structures permitted on the lot. or the very end of it, you can say this is one of the other standards when limits for an adjustment are exceeded. It it seems to me that the hearings officer did number one. It seems to me that staff and the applicant were at least arguing number two and as far as I can tell, nobody is relying on number three. What is what is your position on that? >> Thank you, board member Wilson. I I I think your um conclusion is is correct. I I think the hearings officer was uh relying primarily on that the uh any standard uh part of the code allows for that variance to take place. I think that the applicant and the staff um the staff opinion was arguing in the alternative that it could be also um that I it could be under the number of dwelling units. Um but I think that it's primarily resting on the fact that it states that any of the standards um may be varied uh unless it is one of the explicitly denoted uh exceptions that it can't be varied. >> Okay. So thank you for confirming that. So if if that's the case then it seems like that interpretation basically says that whole next whole part about um you know would result in practical difficulties with with reference to requirements governing and then lists a whole bunch of things. So it's your position that none of that language has any meaning. Is that right? I wouldn't necessarily say that it has no meaning, but I think if you apply the difference in Saporin um you know it doesn't that standard says that even if there's a better or more sensible or persuasive interpretation that even if it's a plausible interpretation from the county um that that difference is given there and so I think given the fact that it does say any of the standards it is plausible that the number of dwellings that can be serviced by a private drive can be varied and that's demonstrated in at least the three other cases that were presented um for illustrative purposes. >> So, are you saying that we're bound by those three other cases? >> I'm not saying that that Luba is bound by those three other cases. I'm saying that it goes towards the county's past practice and interpretation of its own code. Um, which goes to bolster the idea that that is the county's interpretation. It's plausible. Um, and therefore the difference should be given to that. >> Did any of those cases actually address this question about whether you can even get an variance or did it just go straight to applying the variance criteria? Um, I'm not sure I understand the question. >> Well, did those the three the three cases you put in the record look to me like they didn't address this question about whether you're allowed to get a variance in the first place? They just went straight to assuming you're allowed to have a variance. Do you meet the variance criteria? Did I miss something in those? >> Um, I am not entirely sure on that question to be honest. I I wasn't a part of those other cases. My understanding though is that it was the underlying idea of whether or not you can get the variance is based upon whether or not the variance can be granted. Um because the the code says that that is something that could be varied. >> Okay. Thank you. >> Mhm. Uh even if Luba reaches the second assignment of air, the variance approval is supported by substantial evidence. The record shows the subject property left. >> Sorry to get back to Simon one. I have a question on that also. So is your foreign argument that in looking at the express language of any of the standards of this title, it's then plausible to essentially ignore qualifying language that follows. I think that there could be an argument that Mr. Pegel is making that um it goes to your question that the qualifying language that follows um could suggest a different interpretation. But under Saporin, it doesn't matter if one interpretation is better or more sensible or persuasive as long as the interpretation that the county is applying is plausible. um then difference should be given and that satisfies that first threshold level of plausibility. >> Okay. So assuming that starting place, the county doesn't need to look into whether the variance that's requested is inconsistent with that qualifying language. They can just stop at any standards and not have to consider the remaining qualifying language. Um, I think that that would be true that they would have to continue we'd have to continue if there hadn't been a past practice of approving these types of variances. But because it they had been previously granted, uh, it's a plausible interpretation. And therefore based on that past practice that goes towards um not needing to continue that analysis. So even if the uh second assignment of air the variance approval supported by substantial evidence, the record shows that the subject property lacks direct access to a public roadway and that the requested variance is the mechanism that allows the property to realize the otherwise permitted AR zone residential development pattern without extending a public street through nonparty lands. So I think this goes to the question that board member Wilson was asking petitioner um is that in order to bring the road from the other side of Burton Place, it would have to require nonparty um land owners to dedicate land to that road. Um which is not reasonable. um and is um this the variance is the least impacting way to allow for the partition of this 8 acre parcel into a 4 acre and 2 acre parcels um to still fit within the AR zone um development pattern as many of the other parcels in this area have been partitioned to allow further development and realization. of the land in this area. Um incl the um extending the road would have a practical difficulty and hardship um and it would impact people who aren't a And >> that seems to me like it's a kind of a mixed question of interpretation. In fact, understand petitioner to argue that the variance criterion, the language which can be relieved only by modifying the literal requirements, he's focused on that word only. What I understand you to be arguing is in the interpretation and the application that that only doesn't require the county to attempt to implement alternatives that have potentially some legal barriers Yeah, I I believe that that to be correct that the um yeah, I I think that that is an accurate summation of that. >> Thank you. Um and with in conclusion I guess the differential standard um under Saporin is that the interpretation of the code um authorizing a variance is plausible text grounded and supported by long-standing county practice uh as is uh reflected in the record. The hearings officer's variance criteria findings are supported by substantial evidence and were properly adopted by the board. Here petitioner does not like respondents interpretation and therefore makes an argument of the expression unius est exclusion alterius or the expression of one thing implies the exclusion of others. However, this type of construction and interpretation um is what OS 197 829 and Saporin is getting at that it doesn't matter whether there's a more plausible or a more um favorable or even a more persuasive interpretation. As long as the interpretation of the county's own code is plausible, then that's where the difference is given to that um interpretation. and therefore the respondent respectfully requests the LUPA affirm. And I will uh stand for any questions the board may have. >> Thank you for your argument. No further questions from the board. Uh we will return to petitioner for rebuttal. Petitioner, you have three and a half minutes for your rebuttal. Go ahead when you're ready. >> Thank you. With regard to the uh the county having uh uh allowed for variances under like circumstances in previous cases, the record does show that in none of those cases has the issue of the authority to do so been raised. And um finally, with regard to the um uh requiring other neighbors to do anything, uh there would be there are no requirements. The folks at the West End agreed to what happened and no attempt has been made to even talk about the possibility of all of us getting together to agree to what might even be beneficial to everyone concerned. And I guess I'll rest my case on that. Thank you. >> Thank you. No further questions from the board. Thank you for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is March 4th. We'll ask the parties to agree to a two-eek extension so that we issue our opinion no later than March 18th. Is that okay with these parties? >> Yes, >> that's fine for responding. >> Thank you both. Have a great rest of your day. >> Thank you. You as well.