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Rarely does a mundane land division case take so many unexpected turns as to read more like a high-suspense drama premiering on Netflix. Yet the O鈥橠ea case is one of those cases, and the Court of Appeals recent ruling adds a legal angle likely to have lasting implications.

This 鈥渟creenplay鈥� opens in 2012, with Kim O鈥橠ea, a land use attorney, filing lot line verification applications to create three legal lots on 50 acres of land in Lane County, outside Springfield. A mind-numbingly boring exercise, a lot line verification focuses solely on whether the land division laws were satisfied when the parcel was created and allows those parcels to be sold individually. The county approved this request and, relying on that determination, subsequently approved property line adjustments and two forest template dwelling applications. Two of the three lots were sold to third parties; banks loaned money; and homes were built. So far, so good.

In 2022, county planning staff learned that the four deeds that were relied on for the 2012 lot line verifications were not the same deeds that were on file with the county recorder鈥檚 office. According to a county-hired forensic expert, the deeds submitted with the lot line verification were fabricated, although there is no evidence in the land use record to suggest that O鈥橠ea forged the documents or knowingly relied on them. Relying on a provision in the Lane County code that allows for revocation of a decision that 鈥渨as secured with false or misleading information,鈥� the county revoked its previous decisions, including the decisions authorizing the two new homes constructed by the third parties.

O鈥橠ea appealed the county decision to the Land Use Board of Appeals arguing that the permits could not be revoked because they were final land use decisions that cannot be the subject to collateral attack. The county responded that revocation based on discovery of false information is directly authorized by local regulation. Whether direct or collateral, LUBA found in favor of O鈥橠ea because nothing in state law contemplates post-approval action that would undercut the policy favoring finality in land use decision-making. As a result, the county鈥檚 decision was reversed, and the O鈥橠ea permits reinstated. Out of concern that this would reward fraud, the decision was appealed by Landwatch Lane County and 1000 Friends of Oregon, but the Court of Appeals affirmed LUBA鈥檚 decision.

While this matter was pending appellate review, legislators acting at the behest of Lane County introduced House Bill 3362 with the aim of formally validating the O鈥橠ea permits. Short of admitting on its face that it was directed at the O鈥橠ea situation, the triggering thresholds undeniably tracked the facts of this case. Under the bill, a county may validate a unit of land acquired by an innocent purchased prior to Jan. 1, 2023, if the county had previously verified the lots, took subsequent steps authorizing development and then revoked those approvals. The bill would sunset on Jan. 2, 2025, again reinforcing the idea that it would solve only one problem. Landwatch opposed this bill. Given concerns over rewarding the O鈥橠ea fraud, the bill was amended to allow a narrow time window (on or before April 1, 2024) for any party to challenge certain decisions allegedly based on forged documents including, as relevant here, 鈥渁 legal lot verification under ORS 92.176.鈥�

Pursuant to this new provision, Landwatch filed a LUBA appeal within the deadline proscribed, arguing that the legal lot verifications should again be set aside. In response, O鈥橠ea filed a motion to dismiss arguing that the 2012 decisions were verification decisions but that they were not a 鈥渧erification under ORS 92.176.鈥� ORS 92.176 provides the procedure for validation of an unlawfully created unit of land under certain circumstances and not to those where the county found lawful creation, as was the case here. The motion to dismiss was granted.

Landwatch again sought appellate review arguing that the legislative history makes plain that the legislature intended HB 3362 to apply to the specific situation at hand. Consideration of this legislative history is a critical step in the court鈥檚 long-established test for discerning the intent of the legislature but not before examining the plain text of the provision.

The court explained that a 鈥渓egal lot verification,鈥� under the county standards, determined that the unit of land was 鈥渓awfully established.鈥� By contrast, ORS 92.176 governs the 鈥渧alidation of a unit of land鈥� that was not 鈥渓awfully established.鈥� This leaves the court to either give effect to one clause and omit the other or add words to the provision to give effect to both provisions. Moving to the legislative history, the court agreed that addressing the O鈥橠ea matter was the exact situation that the legislature intended to remedy but added that history did not provide insight into which way the legislature intended the court to interpret this 鈥渋nherently nonsensical provision.鈥�

When the legislature鈥檚 intent remains unclear, the final interpretive step is to resort to 鈥済eneral maxims of statutory construction鈥� to resolve uncertainty. One of these maxims is the 鈥渦nintelligibility canon.鈥� Although no Oregon court has previously applied or adopted the unintelligibility canon, the court explained that it is applicable 鈥渨hen statutory text makes no sense because it is intractably ambiguous or because two provisions are irreconcilable.鈥� Because a court may not create legislation by inserting or omitting terms, the text becomes inoperative, so the improper lot verification and development authorizations that followed become lawful and beyond challenge.

This winding fact pattern would be difficult to replicate and the whole of HB 3362 is set to expire in a matter of months. What is more likely to last is the unintelligibility canon that will become a new tool for litigants claiming that because a law (or regulation) is ambiguous or capable of multiple meanings, it must be deemed ineffective. This is a good reminder for careful drafting, not just for legislators and legislative counsel, but also for participants in the legislative process.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.