Chapter 092

 

      Chapter 92

 

ATTY. GEN. OPINIONS: Standards county may impose for approval of private roads created in partitioning land, (1972) Vol 35, p 1230; effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702; application of Fasano v. Bd. of County Commrs., decision, (1974) Vol 36, p 960

 

LAW REVIEW CITATIONS: 10 WLJ 394-403 (1974)

 

      92.010 to 92.190

 

NOTES OF DECISIONS

 

      Due process standards applicable to land use decisions apply to administration of subdivision ordinance. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

 

      Due process requirements for granting of variances are identical regardless of whether variance is area variance or use variance. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

 

      Approval of tentative plan under subdivision ordinance is final order reviewable in writ of review proceeding. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

 

      Modification of sought-after approval of tentative plan must be treated same procedurally as initial application. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

 

      Owner of parcel unlawfully conveyed without having been partitioned could not unilaterally seek to partition parcel from remainder of original property remaining in separate ownership. Kilian v. City of West Linn, 88 Or App 242, 744 P2d 1314 (1987)

 

      Under statutes in effect in 1981, partitioning of land parcel had effect of vacating previous lot lines unless partition map indicates continued existence of partitioned lots. Weyerhaeuser Real Estate Development Co. v. Polk County, 246 Or App 548, 267 P3d 855 (2011)

 

LAW REVIEW CITATIONS: 10 WLJ 398, 399 (1974)

 

      92.010

 

NOTES OF DECISIONS

 

      Definition of “subdivide land” contained in former version of this section referred to approval of plans, plats, and land partitions by cities and counties and had no application to prosecution under Subdivision Control Law. State v. Baker, 48 Or App 999, 618 P2d 997 (1980)

 

      Transfer of title to roadway property prior to 1991 amendment of this section results in partition of tract bisected by roadway property. Lovinger v. Lane County, 206 Or App 557, 138 P3d 51 (2006), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Obtaining local planning authority approval before ordering division of land, (1978) Vol 38, p 1814; impairment of mortgagee’s remedy of foreclosure where local planning authorities under local partition ordinance deny permission to foreclose mortgage, (1978) Vol 38, p 2148

 

      92.014

 

NOTES OF DECISIONS

 

      The words “street or way” apply to all roadways constructed for the purpose of partitioning a parcel of land. Columbia County v. O’Black, 16 Or App 147, 517 P2d 688 (1974), Sup Ct review denied

 

      92.016

 

NOTES OF DECISIONS

 

      Contractual promise to convey land which violates this section is unenforceable by seller against purchaser of property, but enforceable by purchaser against seller if purchaser can otherwise prove breach of contract, to wit, that land sold was unpartitioned property and damages were caused by breach of implied promise of lawful partitioning. Ogan v. Ellison, 297 Or 25, 682 P2d 760 (1984)

 

ATTY. GEN. OPINIONS: Effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702

 

      92.017

 

NOTES OF DECISIONS

 

      Lot included in unrecorded survey filed with county surveyor in 1963 was not legal lot of record entitled to protection under this section. Atkins v. Deschutes County, 102 Or App 208, 793 P2d 345 (1990)

 

      Enactment of this section did not restore lots that had previously been vacated by consolidation during partitioning of parcel. Weyerhaeuser Real Estate Development Co. v. Polk County, 246 Or App 548, 267 P3d 855 (2011)

 

      92.018

 

NOTES OF DECISIONS

 

      Inclusion in instrument conveying fee title of notice required under ORS 93.040 recommending buyer check with planning department does not limit seller liability to buyer for improperly created lot or parcel. DK Investment Co. v. Inter-Pacific Development Co., 195 Or App 256, 97 P3d 675 (2004)

 

      92.025

 

ATTY. GEN. OPINIONS: Effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702

 

      92.040

 

NOTES OF DECISIONS

 

      Board of county commissioners’ denial of tentative approval of proposed subdivision plat failed to meet requirements of ORS 215.416 where denial was couched in general language and failed to specify what criteria were used to determine that proposed plat did not comply with county comprehensive plan. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978)

 

      Where development of subdivision property depends on approval of construction on rights-of-way and roadways located adjacent to subdivision lots, applicable local government laws are those that are in effect at time of application to construct subdivision. Athletic Club of Bend, Inc. v. City of Bend, 239 Or App 89, 243 P3d 824 (2010)

 

ATTY. GEN. OPINIONS: Effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702

 

      92.044 to 92.048

 

ATTY. GEN. OPINIONS: Effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702

 

      92.044

 

NOTES OF DECISIONS

 

      This section, read together with ORS 92.090, required that proposed subdivision comply with county comprehensive framework plan. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978)

 

      Where county ordinance was amended so Department of Fish and Wildlife had right to appeal, petition filed by department with LCDC seeking review of board of commissioners’ decision approving subdivision plat was not barred on ground that department failed to exhaust its available remedies by failing to initially challenge approval of plat before board of commissioners. Fish and Wildlife Department v. LCDC, 37 Or App 607, 588 P2d 80 (1978), aff’d 288 Or 203, 603 P2d 1371 (1979)

 

ATTY. GEN. OPINIONS: Requirement that developer not discriminate between builders and non-builders in lot sale as condition of approval of subdivision plat, (1979) Vol 39, p 593

 

      92.090

 

NOTES OF DECISIONS

 

      This section, read together with ORS 92.044, required that proposed subdivision comply with county comprehensive framework plan. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978)

 

      City council must make findings that proposed subdivision complied with applicable land use regulations, but court would not reverse plat approval where no assertion was made that any specific provision was violated. Golf Holding Co. v. McEachron, 39 Or App 675, 593 P2d 1202 (1979), Sup Ct review denied

 

      Where owner of townsite platted in 1907 reserved to himself, his “associates and assigns” exclusive right to construct and operate in streets telephone, telegraph and electric poles and wires, and gas and water pipes and mains, this section did not invalidate pre-1909 reservation. Sunset Lake v. Remington, 45 Or App 973, 609 P2d 896 (1980)

 

      92.100

 

NOTES OF DECISIONS

 

      Surveyor’s checking of subdivision or partition plat for compliance with state laws and local ordinances or resolutions is limited land use decision under ORS 197.015. Hammer v. Clackamas County, 190 Or App 473, 79 P3d 394 (2003), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Nonapplicability of fee provision to city engineers and city surveyors, (1972) Vol 36, p 89; effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702; compensating county surveyor from fees collected, (1979) Vol 40, p 48

 

      92.105

 

LAW REVIEW CITATIONS: 18 WLR 83 (1982)

 

      92.210 to 92.390

 

ATTY. GEN. OPINIONS: Status of subdivisions approved or in process of application pursuant to ORS 92.210 to 92.390 under 1973, c. 421, (1973) Vol 36, p 595

 

      92.305 to 92.495

 

NOTES OF DECISIONS

 

      Parcel of land is subject to this law even though intersected by road. State v. Emmich, 34 Or App 945, 580 P2d 570 (1978)

 

      Imposition of greater sentence for violation of Subdivision Control Law than those imposed for violations of ORS 92.010 to 92.090 and 92.100 to 92.160 did not violate equal protection. State v. Baker, 48 Or App 999, 618 P2d 997 (1980)

 

      Seller of real property could not seek to void transaction as it was not within class of persons these provisions seek to protect. Seal v. Polehn, 52 Or App 389, 628 P2d 746 (1981), Sup Ct review denied

 

LAW REVIEW CITATIONS: 16 WLR 293 (1979)

 

      92.305

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 92.210)

 

      Mere transfer of ownership by person is insufficient to establish that person undertook development of subdivision so as to become subdivider. Anderson v. Jack, 39 Or App 813, 593 P2d 1259 (1979)

 

In general

 

      Under definition of “subdivider” in former version of this section it was immaterial whether interests in subdivision were created by defendant or through a corporation which defendant controlled. State v. Baker, 48 Or App 999, 618 P2d 997 (1980)

 

LAW REVIEW CITATIONS

 

In general

      57 OLR 43 (1977)

 

      92.325

 

NOTES OF DECISIONS

 

      Defendant may be convicted of violation without proof of culpable mental state. State v. Emmich, 39 Or App 769, 593 P2d 1281 (1979)

 

      Conviction for failure to follow requirements for subdividing land requires culpable mental state. State v. Baker, 48 Or App 999, 618 P2d 997 (1980)

 

ATTY. GEN. OPINIONS: Effect of LCDC’s granting partial acknowledgment of comprehensive plan, (1980) Vol 40, p 274

 

      92.337

 

ATTY. GEN. OPINIONS: Application to condominiums, (1976) Vol 37, p 1045