SELECTED OREGON ATTORNEY GENERAL OPINIONS

Note: The below opinions are  only summaries of the full version: you are cautioned to read the entire opinion and seek legal assistance in determining the applicability to any given situation.

OPINION No. 2486

Question: Are timber cruisers who are frequently hired by logging operators to run cutting lines through timbered areas required to comply with the land surveyor's registration law, chapter 377, Oregon Laws 1943, when they mark off the boundary lines of land by blazing trees or driving stakes into the ground?

Answer: Possibly. From the definition of land surveying is observed that professional land surveying includes not merely the establishment of corners, lines and boundaries but also the defining and locating of corners, lines, boundaries and monuments of land after they have been established. Professional land surveying comprises the locating and defining of the boundary lines and corners of a given tracts while timber cruising comprises the inspection and estimation of the quantity of lumber which the timber within the defined area might yeild.

OPINION No. 4410

Question: Is the Oregon State Board of Engineering Examiners (Now OSBEELS) compelled to revoke the license of an engineer or land surveyor failing to comply with the standardized requirments for filing surveys adopted by the Oregon Association of County Engineers and Surveyors, which in turn have been adopted by the county?

Answer:  The Board of Engineering Examiners is not necessarily compelled to revoke the license of any engineer or surveyor failing to file survey maps in accordance with statute and the requirements of the county surveyor, without regard to mitigating cirvumstances, but is vested with discretionary authority to do so which shall be exercised when circumstances warrant it.

OPINION No. 5420

Question: What is the authority and descretion of the county court and county assessor in approving subdivision plats under ORS chapter 92, given failure of compliance with certain provisions of said chapter? (Reference is made to approval of the proposed plat, performed by the county surveyor in his private capacity, by the same individual in his official capacity, in violation of  A.G. Opinion # 5200, dated April 6, 1961.)

Answer: Given the facts outlined, the county court must dissapprove the subdivision plat.

OPINION No. 5462

Question: Would it be lawful for a deputy county surveyor to approve subdivision plats to meet the requirements of ORS 92.100 whre the county surveyor has acted in his private capacity in making the survey of platted land?

Answer: A deputy county surveyor could not legally approve a survey of a subdivision plat made by the county surveyor in his private capacity as in legal contemplation the approval by the deputy would be the approval of the county surveyor, his principal.

OPINION No. 7020

Question: Where a subdivision plat, approved by a county governing body pursuant to ORS Chapter 92, describes tracts for sale which because of their location or dimensions would be in violation of zoning ordinance would be in violation of zoning ordinance previously adopted by the same governing body, does such subsequent approval of the subdivision plat supersede the requirements of the zoning ordinance?

Answer: No

Reasoning: ORS Chapter 92 provides that no subdivision plat may be recorded, or sales made with respect thereto until it has been first approved by the county planning commission (if there is one) and the county governing county body. See, for example, ORS 92.016, 92.025, 92.040 and 92.100. The county governing body is authorized to adopt ordinances setting standards for approval of plats.

OPINION No. 7103

Question: Are unrecorded copies of deeds, contracts, etc., and other instruments evidencing an interest in land filed with county tax assessors under ORS 311.280(1) for purposes of segregating and assessing taxes on part of land previously assessed as one parcel, subject to public inspection?

Answer: Yes

Reasoning: In many instances, parties to sale of a portion of a tract of land do not record the deed, contract of sale, or their instrument of conveyance in the county deed records. However, the parties may want the conveyed land to be assessed for taxes separate from the retained by the seller. In order to accomplish this, application may be made to the county tax assessor under ORS 311.280(1).

OPINION No. 7211

First Question: If a city zone map designates an area for commercial use and the comprehensive plan designates the same area for residential use, which controls?

Answer: The comprehensive plan controls.

Second Question: If a city zone map designates an area for residential use and the comprehensive plan designates the same area for commercial use, which controls?

Answer: Unless the comprehensive plan specifically 'designates the area only for commercial use, the less intensive residential use would not conflict with the comprehensive plan and the zoning map would be valid.

Third Question: If the comprehensive plan establishes a residential density greater than the residential density established under the zoning ordinance,, which controls?

Answer: Unless the comprehensive plan specifically requires a certain residential density, less intensive residential density established in a zoning ordinance would be permissible.

Fourth Question: If the comprehensive plan has a park or a public building area designated and the city has no money to purchase the land in the designated area, can the city issue a building permit to a private land owner if the owner wants to build?

Answer: No, unless the comprehensive plan is changed.

Reasoning: "The comprehensive plan is the controlling land use planning instrument for a city. Upon passage of the comprehensive plan a city assumes a responsibility to effectuate that plan and conform prior conflicting zoning ordinances to it. We further hold that the zoning decisions of a city must be in accord with that plan and a zoning ordinance which allows a more intensive use than that prescribed in the plan must fail."

OPINION No. 7246

Question: Under ORS 92.337, a land subdivision in Oregon may, if it qualifies under the provisions of the statute, be exempt from the provisions of ORS 92.305 to 92.495, and 92.820 (commonly referred to as the "Subdivision Control Law"). May a condominium development be exempt under ORS 92.337 inasmuch as condominiums are subject to regulation undo- ORS 92305 to 92.495 and 92.8207

Answer: No

Reasoning: ORS 92.335 prohibits the offering for sale or lease of condominium units without the developer first having complied with the provisions of ORS 92.305 to 92.495 and 92.820. ORS 92.335 provides:

"No person shall offer for sale or lease, any land or property as deemed in subsection (13) of ORS 91.505 without having complied with all applicable provisions of ORS 92.2305 to 92.495 and 92.820. The requirement of this section shall be in addition to, and not in lieu of, ORS 91.505 to 91.675."

OPINION No. 7286

First Question: Can the Division of State Lands rely on the existence of log drives in making a determination of navigability of the McKenzie River?

Answer: Yes, the test enunciated by United States Supreme Court cases is that the mode of carrying on the commerce is not determinative as long as the customary mode is used and the commerce is substantial rather than occasional or exceptional.

Second Question: Can the Division of State Land find that a portion of the river was suitable for floating logs although it was not used for that purpose?

Answer: Yes, if there is sufficient evidence to support a finding of susceptibility of navigation of that portion of the river. In this regard we cannot say, as a matter of law, that there is no evidence to support the Division's conclusions. It is therefore up to the board to decide whether the evidence is sufficient.

OPINION No. 7508

Question: Does "ordinary low water", as used in the Greenway Law in ORS 390.310(4) and 390.318(1). refer to low water as affected by United States Corps of Engineer dams?

Answer: Yes

Reasoning: We are asked whether an 'island" under the Willamette Greenway Law qualifies as such if it is surrounded by water at ordinary low water, as maintained at minimum levels by releases from Corps of Engineers dam, and reservoirs, or whether it would also have to be surrounded by water if the river were allowed to recede to "natural" low water levels which would recur in summer if there were no dams or reservoirs. The term "natural" as used in the preceding sentence is in fact artificial or fictitious, because waters have not been allowed to recede to such levels since the first Willamette system dam constructed in the early 1940; 25 years before the Greenway Law used the term "ordinary low water".

OPINION No. 7520

Question: Is a subdivision, created in compliance with all applicable statutes and ordinances, subject to regulation as a mobile home park if each of the lots is occupied by a mobile home and each lot is rented to the owner of the mobile home situated thereon by a person who owns all of the lots in the subdivision?

Answer: Yes

Reasoning: ORS 446.003 (22) defines "mobile home park" as "any place where four or more mobile homes arc located within 500 feet of one another on a lot, tract or parcel of land under the same ownership, the primary purpose of which is to rent space or to keep space for rent to any person for a charge or fee paid or to be paid for the rental or use of facilities or to offer space free in connection with securing the trade or patronage of such person".

OPINION No. 7565

Question: When property is conveyed by the state for a specific purpose and the deed contains no reverter or re- entry clause, does the property revert back to the state when it no longer is used for the specified purpose?

Answer: No

Reasoning: We note ORS 271330, which permits public lands to be "relinquished" to other public agencies including the United States without consideration, ". . . providing such property shall be used and continue to be used, for a public purpose..." (Emphasis added). The specific provisions of Oregon Laws 1931, Ch. 7'7, make this statute irrelevant.

OPINION No. 7954

Question: Is a licensed land surveyor required to be physically present with a field crew when the crew is engaged in the "practice of land surveying" as defined in ORS 672.005(a)?

Answer: Not necessarily, but land surveyors must .maintain sufficient contact with the field crews to insure that all land surveys arc made under their "direct supervision'' as that term is defined in OAR 820-10010 (11), using their judgement to determine when their physical presence in the field is required.

Reasoning: We are asked whether a licensed land surveyor must be physically present with a field crew when the field crew is engaged in the '"practice of land surveying" as defined in ORS 672.005 (3)(a).

ORS 672.000 provides in part: "As used in ORS 672.002 to 672.310, unless the context requires otherwise:
".....
"(3) 'Practice of land surveying' means that branch of the practice of engineering in which:
"(a) Surveys are made to determine area or topography, to establish or reestablish land boundaries, corners, or monuments or to subdivide or plot land;..." To practice land surveying, a person must be registered and have a valid certificate. ORS 672.025 (1). The registered professional land surveyor (land surveyor) is required to obtain a seal (stamp) and as further provided in ORS 672.025 (2):

"Every map, drawing and narrative issued by a registrant shall be stamped with the seal of, and signed by the registrant. The signature and stamp of a registrant constitute a certification a certification that the document was reviewed by the registrant or prepared by him or under his direct supervision."

OAR 820-20-4305 (3)(c) provides:

"The Engineer or Land Surveyor shall not affix his signature and seal to any engineering or land surveying plan or document dealing with matter outside his field of competence nor to any plan or document not prepared under his direct supervision as defined by Oregon Administrative Rule 820-10-010 (13)."

OAR 820-10-010 (11) provides:

"'Under direct supervision' shall be construed to mean that the engineer or land surveyor providing such super vision shall have made the decisions on technical matters of policy and design and shall have exercised his professional judgement in all engineering and land surveying matters that at embodied in the plans, design, specifications, or other documents involved in the work. By applying his seal to the final documents, he accepts responsibility thereof."

OPINION No. 8095

Question: As used in ORS 308.390 (1)(d), what constitutes "platting the !and after September 9, 1971, under the provisions of ORS chapter 92," so as to disqualify or prevent the qualification of ensuant farmland for special assessment as farmland?

Answer: "Platting the land after September 9, 1971, under the provisions of ORS chapter 92" means the recording of a Final map, dividing an area or tract of land into four or more lots within a calendar year, when the area or tract of land exists as a unit or contiguous units of land under a single ownership at the beginning of such year.

Discussion: Under ORS 308370 (2), any land which is not within a farm use zone but which is being used, and has been used for the preceding two years, exclusively for farm use as defined in ORS 215.203 (2), shall upon the filing of a proper application be specially assessed at its true cash value for farm use.

ORS 308.390 (1) provides that once the application is approved, the county assessor shall assess the land at its farm use value until the land becomes disqualified for such assessment by:.

"(d) Platting the land after September 9, 1971, under the provisions of ORS chapter 92."

The provisions of ORS chapter 92 govern the division of land by subdivision and partitions. l "Subdivision" is given a dual meaning by ORS 92.010 (13) and may refer to a tract of subdivided land or the act of subdividing land. "Subdivide land" means:

"... to divide an area or tract of land into four or more lots within a calendar year when such area or tract of land exists as a unit or contiguous units of land under a single ownership at the beginning of such year."

"Subdivision" is distinguished from "partition" which is the division of a tract of land into two or three parcels within a calendar year. ORS 92.010 (7) and (8). The distinction between a subdivision and a partition is significant, because "plat is used only in connection with "subdivision" and is not used with reference to a "partition." For example, ORS 92.010 defines "plat" as follows:

"(9) 'Plat' includes a final map, diagram, drawing, repeat or other writing containing all the descriptions, locations, specifications, dedications, provisions and information concerning a subdivision." (Emphasis added) See also ORS 92.025, 92.040, 92.050, 92.080 and 92.090.

The statutory distinction between "partition" and "subdivision" leads us to conclude that the term "platting the land after September 9, 1971, under the provisions of ORS chapter 92" applies only to the act of subdividing land as defined by ORS 92.010 (12) and (13), and does not include a partition.

In an earlier statutory definition, "subdivide land" was limited to the creation of parcels of less than five acres. However, the five acre limitation was deleted when the current definition was adopted by Or Laws 1973, ch 696, see 3. Under the current definition, the division of a tract of land into four or mote lots of any size would constitute a subdivision. For example, the division of a 10,063 acre farm into one 4,000 acre and three 2,000. acre parcels would constitute a subdivision, if the division occurred within a calendar year and the original tract was a single unit, or contiguous unit of land under a single ownership at the beginning or the year. However, this would not necessarily constitute "platting" prohibited by ORS 308.39C (1)(d).

Land is ordinarily subdivided for the purpose of sale and development. That is recognized by the prohibition in ORS 92.025 against the sale of any lot in a subdivision, until the plat of the subdivision has been recorded. There is no requirement that a plat be recorded unless and until the subdivide wishes to sell one of the lots. A landowner might complete all of the prerequisites to the recording of a subdivision plat, but may still change his mind. Recording marks the point of no return; and, in our opinion, recording of a subdivision plat is the event which will disqualify or prevent the qualification of ensuant farmland for special farm use assessment under ORS 308.390 (1)(d).

If the landowner changes his mind after recording the subdivision plat, it is too late. In Kalishman v. Dept. of Rev., 80TR 400 (1980), the land had been platted pursuant to ch 92, but had never been developed and was sold as one parcel to the plaintiffs who devoted it to farm use. Although counsel for both sides agreed that there was no rational basis for denying special farm use assessment by reason of platting in this case, the Oregon Tax Court held that the language of the statute required denial of the application for special farm use assessment and that relief should be sought from the legislature.

We conclude that, as used in ORS 308.390 (1)(d), the term "platting the land after September 9, 1971, under the provisions of ORS chapter 92" means the act of subdividing land as deemed by ORS 92.010 (12) and (13), but only when manifested by the recording of a final plat of the subdivision.

OPINION No. 8105

Question: Does a determination by the Division of State Lands under ORS 274.031 that a stream is navigable supply riparian owners with the basis for a claim for refund of real property taxes paid on the bed of the stream?

Answer: Yes, but the riparian owner must concede that the stream is navigable and that the state owned the stream bed at the time the taxes were paid. Even in that case, the claim remains subject to determination.

Discussion: Ownership of stream beds in the State of Oregon depends upon navigability, because title to time beds of rivers and streams within Oregon passed to the state when it was admitted into the Union on February 14, 1859, if the stream was, in fact, navigable at that time. ORS 274.025; State Land Board v. Corvallis Sand & Gravel Company, 429 US 363 (1977).

ORS 274.031 requires the Division of State Lands to conduct hearings to determine the "issue of navigability" of a stream:

"Notwithstanding any hearing conducted by it before July 1, 1981, the division shall investigate the issue of navigability of a stream or any portion thereof and, in accordance with ORS 183.310 to 183.500, shall determine, before July 1, 1985, the issue of navigability for the stream or portion upon its own motion or upon the request of any person or state agency affected by the division's performance of its lawful functions. In conducting an investigation of the navigability of a stream or portion thereof under this section, the division shall mail written notice of each hearing to be held during the investigation, not later than 90 days before the date of the hearing. The notice shall be addressed to each owner of record of any land adjacent or contiguous to the stream or portion at the place of business of the owner or the residence of the owner. Any determination of navigability made by the division under this division under this section shall not be binding upon any person but shall be binding on the division in the performance of its lawful duties," (Emphasis added)

ORS 274.031 (formerly ORS 274.034} is the result of the enactment of Senate Bill 33 by Or Laws 1973, ch 496, sec 2. Subsequent amendment have not significantly changed its original language. See Or Laws 1977, ch 637, sec 1; Or Laws 1981, ch 219, sec 2.

The legislative history of Senate Bill 33 indicates that some legislators and representatives of title insurance companies were concerned about the effect of a determination of navigability upon title to the stream bed. Minutes, House Judiciary Committee, May 21, 1973, Exhibit F; Minutes, House Judiciary Committee, June 21, 1973, (SB 33), pp 8-10. Proponents of the bill assured the committee that the bill was not intended to determine title but was an effort to give legislative direction to the Division of State Lands to proceed in an orderly manner to make the necessary studies and determination of navigability. In the words of one legislator, the bill was merely a directive to the division "to quit fiddling around" and do its job. Minutes, House Judiciary Committee, (SB 33), June 21, 1973, p 9.

"After further discussion, Rep. Hampton moved to amend section 2 by adding: ?The determination is not binding upon any person other than the Division of State Lands.' That, he said, was apparently the intent of the bill and his proposed amendment would make it clear that the determination set out in section 2 was not an adjudication, either administratively or judicially, or the right between natural persons, other persons and the state." Minutes, House Judiciary Committee, (SB 33), June 21, 1973, p 10.

Accordingly, appropriate amendments to Senate Bill 33 were prepared by counsel for the Division of State Lands and were adopted by the committee on June 22, 1973, adding the. following language:

". . . Any determination of navigability made by the division under this section shall not be binding upon any person, but such determination shall be binding upon the division in the performance of its law duties." Minutes, House Judiciary Committee, (SB 33), June 22, 1973, p 3, and Exhibit B.

We have interpreted the language of the statute to mean that a determination of navigability does not, in and of itself, establish the state's title to or ownership of the bed of a stream.

". . . the purpose of the statute is not to administratively adjudicate title nor even to administratively adjudicate the question of navigability. Those are judicial questions subject to determination by the courts. Rather, the purpose of the statute is only to give notice to all persons affected to the extent of the states claim of title to the stream bed." 38 Op Arty Gen 1, 5 (1976).

The determination will cast a shadow upon the riparian .owners title to the stream bed; and, since the riparian owner is not bound by the determination, he may contest the state's claim by appropriate legal proceedings. He may also request a judicial review of the determination under ORS 274.032.

The "catch" is that the riparian owner cannot simultaneously claim ownership of the stream bed and seek a refund of property taxes paid with respect to the stream bed. ORS 311.806 provides that the county governing body shall refund property taxes in the following cases:

"(a) Whenever ordered by the Department of Revenue and no appeal is taken or can be taken from the department's order, or whenever ordered by the Oregon Tax Court or the Supreme Court and the order constitutes a final determination of the matter; or

"(b) Whenever taxes are collected against real or personal property not within the jurisdiction of the tax levying body; or
"(c) Whenever any person, through excusable neglect, or through an error subject to correction under ORS 311.205 pays taxes on property in excess of the amount legally chargeable thereon, and then only in the amount of money collected in excess of the amount actually due; or
"(d) Except as provided in ORS 311.808, whenever any person pays taxes on the property of another by mistake of any kind."

In the context of the question presented, a refund claim must necessarily be based upon the claimant's acknowledgment that the state owned the stream bed at the time the taxes were paid. If the riparian owner concedes the state's ownership, a refund would be appropriate under ORS 311.806 (1)(b), (c) or (d). See Sisters of Charity v. Washington County Board of Commissioners, 3 0TR 106 (1967); 29 0p Atty Gen 197 (1959), 28 Op Atty Gen 235 (1958), 27 Op Arty Gen 107 (1955).

Subsection (2) of ORS 311.806 requires the taxpayer to file a timely written claim for refund with the county governing body.' However, the statute also provides:

"... upon written request of the Director of the Department of Revenue or with the approval of the tax collector, the county governing body may order a refund of taxes paid to any taxpayer or class of taxpayers without the filing of a written Claim .... '

This suggests that if the Director of the Department of Revenue is persuaded by the determination of navigability that the state owns the stream bed, the director may request the county governing body to make a refund to the affected taxpayer desirous of a refund. We do not believe that the Director of the Department of Revenue may force a refund upon a riparian taxpayer who claims ownership of the stream bed. Such action would be particularly inappropriate where the land owner asserted a claim to the riverbed.

We conclude that a determination of navigability under ORS 274.031 does supply a riparian with the basis for a property tax refund claim under ORS 311.806, but the claimant must concede that the state owned the stream bed at the time the taxes were paid. The county, however, would not automatically be required to grant the referred claim, and if it denied the claim. the taxpayer would have to seek review by a writ of review. Rosboro Lumber Company v. Heine, 80TR 221.227-228 (1979) (writ of review the remedy for review of denial of refund claim). Therefore, the refund claim would remain subject to judicial determination.

1 ORS 311.806 (2) provides:

"No such refund shall be allowed or made after six years from the assessment date for the fiscal year for which the taxes were collected unless before the expiration of such period a written claim for refund of the collection is filed by the taxpayer with the county governing body .... "