2017 ORS 215.705¹
Dwellings in farm or forest zone
  • criteria
  • transferability of application

(1) A governing body of a county or its designate may allow the establishment of a single-family dwelling on a lot or parcel located within a farm or forest zone as set forth in this section and ORS 215.710 (High-value farmland description for ORS 215.705), 215.720 (Criteria for forestland dwelling under ORS 215.705), 215.740 (Large tract forestland dwelling) and 215.750 (Alternative forestland dwellings) after notifying the county assessor that the governing body intends to allow the dwelling. A dwelling under this section may be allowed if:

(a) The lot or parcel on which the dwelling will be sited was lawfully created and was acquired by the present owner:

(A) Prior to January 1, 1985; or

(B) By devise or by intestate succession from a person who acquired the lot or parcel prior to January 1, 1985.

(b) The tract on which the dwelling will be sited does not include a dwelling.

(c) The proposed dwelling is not prohibited by, and will comply with, the requirements of the acknowledged comprehensive plan and land use regulations and other provisions of law.

(d) The lot or parcel on which the dwelling will be sited, if zoned for farm use, is not on that high-value farmland described in ORS 215.710 (High-value farmland description for ORS 215.705) except as provided in subsections (2) and (3) of this section.

(e) The lot or parcel on which the dwelling will be sited, if zoned for forest use, is described in ORS 215.720 (Criteria for forestland dwelling under ORS 215.705), 215.740 (Large tract forestland dwelling) or 215.750 (Alternative forestland dwellings).

(f) When the lot or parcel on which the dwelling will be sited lies within an area designated in an acknowledged comprehensive plan as habitat of big game, the siting of the dwelling is consistent with the limitations on density upon which the acknowledged comprehensive plan and land use regulations intended to protect the habitat are based.

(g) When the lot or parcel on which the dwelling will be sited is part of a tract, the remaining portions of the tract are consolidated into a single lot or parcel when the dwelling is allowed.

(2)(a) Notwithstanding the requirements of subsection (1)(d) of this section, a single-family dwelling not in conjunction with farm use may be sited on high-value farmland if:

(A) It meets the other requirements of ORS 215.705 (Dwellings in farm or forest zone) to 215.750 (Alternative forestland dwellings);

(B) The lot or parcel is protected as high-value farmland as described under ORS 215.710 (High-value farmland description for ORS 215.705) (1); and

(C) A hearings officer of a county determines that:

(i) The lot or parcel cannot practicably be managed for farm use, by itself or in conjunction with other land, due to extraordinary circumstances inherent in the land or its physical setting that do not apply generally to other land in the vicinity.

(ii) The dwelling will comply with the provisions of ORS 215.296 (Standards for approval of certain uses in exclusive farm use zones) (1).

(iii) The dwelling will not materially alter the stability of the overall land use pattern in the area.

(b) A local government shall provide notice of all applications for dwellings allowed under this subsection to the State Department of Agriculture. Notice shall be provided in accordance with the governing body’s land use regulations but shall be mailed at least 20 calendar days prior to the public hearing before the hearings officer under paragraph (a) of this subsection.

(3) Notwithstanding the requirements of subsection (1)(d) of this section, a single-family dwelling not in conjunction with farm use may be sited on high-value farmland if:

(a) It meets the other requirements of ORS 215.705 (Dwellings in farm or forest zone) to 215.750 (Alternative forestland dwellings).

(b) The tract on which the dwelling will be sited is:

(A) Identified in ORS 215.710 (High-value farmland description for ORS 215.705) (3) or (4);

(B) Not protected under ORS 215.710 (High-value farmland description for ORS 215.705) (1); and

(C) Twenty-one acres or less in size.

(c)(A) The tract is bordered on at least 67 percent of its perimeter by tracts that are smaller than 21 acres, and at least two such tracts had dwellings on them on January 1, 1993;

(B) The tract is not a flaglot and is bordered on at least 25 percent of its perimeter by tracts that are smaller than 21 acres, and at least four dwellings existed on January 1, 1993, within one-quarter mile of the center of the subject tract. Up to two of the four dwellings may lie within the urban growth boundary, but only if the subject tract abuts an urban growth boundary; or

(C) The tract is a flaglot and is bordered on at least 25 percent of its perimeter by tracts that are smaller than 21 acres, and at least four dwellings existed on January 1, 1993, within one-quarter mile of the center of the subject tract and on the same side of the public road that provides access to the subject tract. The governing body of a county must interpret the center of the subject tract as the geographic center of the flaglot if the applicant makes a written request for that interpretation and that interpretation does not cause the center to be located outside the flaglot. Up to two of the four dwellings may lie within the urban growth boundary, but only if the subject tract abuts an urban growth boundary. As used in this subparagraph:

(i) “Flaglot” means a tract containing a narrow strip or panhandle of land providing access from the public road to the rest of the tract.

(ii) “Geographic center of the flaglot” means the point of intersection of two perpendicular lines of which the first line crosses the midpoint of the longest side of a flaglot, at a 90-degree angle to that side, and the second line crosses the midpoint of the longest adjacent side of the flaglot.

(4) If land is in a zone that allows both farm and forest uses, is acknowledged to be in compliance with goals relating to both agriculture and forestry and may qualify as an exclusive farm use zone under this chapter, the county may apply the standards for siting a dwelling under either subsection (1)(d) of this section or ORS 215.720 (Criteria for forestland dwelling under ORS 215.705), 215.740 (Large tract forestland dwelling) and 215.750 (Alternative forestland dwellings) as appropriate for the predominant use of the tract on January 1, 1993.

(5) A county may, by application of criteria adopted by ordinance, deny approval of a dwelling allowed under this section in any area where the county determines that approval of the dwelling would:

(a) Exceed the facilities and service capabilities of the area;

(b) Materially alter the stability of the overall land use pattern in the area; or

(c) Create conditions or circumstances that the county determines would be contrary to the purposes or intent of its acknowledged comprehensive plan or land use regulations.

(6) For purposes of subsection (1)(a) of this section, “owner” includes the spouses in a marriage, son, daughter, parent, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, parent-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent or grandchild of the owner or a business entity owned by any one or combination of these family members.

(7) When a local government approves an application for a single-family dwelling under the provisions of this section, the application may be transferred by a person who has qualified under this section to any other person after the effective date of the land use decision. [1993 c.792 §2; 1995 c.812 §7; 2001 c.358 §1; 2015 c.629 §34]

Notes of Decisions

Require­ment that owner be “present” owner is chronological term relating to when owner must have and have had necessary associa­tion with prop­erty. Dept. of Land Conserva­tion and Develop­ment v. Yamhill County, 151 Or App 367, 949 P2d 1245 (1997)

Land Conserva­tion and Develop­ment Commission, by rule, may impose restric­tions that supple­ment statutory restric­tions on lot-of-record dwellings. Bruggere v. Clackamas County, 168 Or App 692, 7 P3d 634 (2000), Sup Ct review denied

Law Review Cita­tions

36 EL 25 (2006)

Chapter 215

Notes of Decisions

Published notice is adequate if prop­erty owners can reasonably ascertain that prop­erty in which they hold interest may be affected. Clackamas County v. Emmert, 14 Or App 493, 513 P2d 532 (1973), Sup Ct review denied

Statutory scheme es­tab­lishing LCDC and granting it authority to es­tab­lish state-wide land use planning goals does not unconstitu­tionally delegate legislative power where both standards (under this chapter) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county had not yet adopted comprehensive plan but had zoned certain por­tions “primarily agricultural,” county had not enacted adequate interim measures to protect its agricultural land until exclusive farm use zoning was completed. Columbia County v. LCDC, 44 Or App 749, 606 P2d 1184 (1980)

Atty. Gen. Opinions

Fasano v. Bd. of County Commrs., applica­tion to county governing bodies and planning com­mis­sions, (1974) Vol 36, p 960; binding effect on govern­mental agencies of the adop­tion of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894

Law Review Cita­tions

36 EL 25 (2006)

1 Legislative Counsel Committee, CHAPTER 215—County Planning; Zoning; Housing Codes, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors215.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 215, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano215.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.