34-278-Order Recorded 3/18/1980VOL 34 w278
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON
FOR DESCHUTES COUNTY
In the Matter of )
Minor Partition 79-71, ) ORDER
William Holmes, Applicant )
This matter came before the regular term of the Board of County Commissioners
on March 3, 1980, on appeal from the order of the Planning Commission dated
October 24, 1979. Based on the record in the case, the notice of appeal dated
November 8, 1979, the staff report, and the arguments of Robert S. Lovlien, Esq.,
representing the applicant, the Board of Commissioners finds as follows:
1. The portions of the Planning Commission decision appealed are the require-
ments as a condition to approval of Minor Partition 79-71 that the applicant (a) dedicate
ten feet of right-of-way along the easterly edge of parcel two for Arnold Market Road;
(b) dedicate ten feet along the westerly edge of parcel one for right-of-way of
Pettigrew Road.
2. The applicant contends that the County is without legal authority to deny
the partition, even if these conditions are not met.
3. As to the requirement of dedication of ten feet of right-of-way on
Arnold Market Road, it was contended that no more right-of-way needed to be dedicated
under the Standard Specifications for Design and Construction (SSDC) incorporated by
reference into former County Partition Ordinance PL-7, under which preliminary approval
subject to the disputed conditions was given. This width of right-of-way is also
required for arterials under the Bend Area General Plan, County Ordinance PL-10 (herein
referred to as PL-10).
Section 9.320 of County Partition Ordinance PL-7 allows the County to require
dedication of additional right-of-way and widening of existing roadways whenever exist-
ing streets adjacent to or within a tract are of inadequate width. Adequacy of width
is not determined by traffic counts alone, but also by Ordinance PL-10, Ordinance PL-7
and the SSDC. Accordingly, under the authority granted by ORS 92.046, the County may
impose uniform standards on road dedications required as a condition precedent to the
recording of a final partition map.
Reading the Assessor's Map and the findings of the Planning Commission together,
a confused picture emerges. The Assessor's map indicates that the centerline of
Arnold Market Road does not coincide with the line between Sections 2 and 3 of Town-
ship 18 South, Range 12 EWM. It indicates that thirty feet of right-of-way lie to the
West of the section line, and fifty feet lie to the East of it. However, it also
indicates that the centerline of Arnold Market Road lies ten feet to the East of the
said section line. The Planning Commission made no finding on the width of Arnold
Market Road on each side of its centerline adjacent to the property. However, require-
ment one in its order reads as follows: "An additional ten feet of right-of-way on
Arnold Market Road [shall] be dedicated to the public, increasing the right-of-way to
forty feet West of the centerline." This presumes that the centerline of Arnold Market
Road coincides with the line between Sections 2 and 3, in that the Assessor's Map already
shows forty feet of right-of-way on each side of the centerline of Arnold Market Road
even if there is no further dedication. There is no requirement that the centerline
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VOL 4 PAO
of Arnold Market Road follow3ftg the section line, so the only issue is whether the
Assessor's Map correctly shows that the right-of-way of Arnold Market Road adjacent
to Tax Lot 1300 on Assessor's Map 18 12 3 AA is 80 feet wide and aligned, with adjacent
portions of Arnold Market Road to the North and South. If that is the case, no further
dedication would be required to bring Arnold Market Road to adequate width as defined
in PL-10 and the SSDC.
4. Assessor's Map 18 12 3 AA shows Pettigrew Road centered on the right-
of-way between Blocks 2 and 3 of Merrill Wilkinson Acre Tracts recorded at Book 1,
Page 27, as Plat A=27, on August 1, 1918 in the records of the Deschutes County Clerk.
The Assessor's Map shows that this forty-foot platted road was later widened to sixty
feet of right-of-way within the plat by dedication of an additional ten feet on each
side of its centerline. It also shows that the right-of-way adjacent to Tax Lot 1300
created by that certain deed from Harold C. Rogers and June V. Rogers, husband and
wife, to William M. Holmes and Patricia J. Holmes, husband and wife, dated June 15,
1965 and recorded at Volume 144, Page 125 of the records of the Deschutes County Clerk,
except from that tax lot the right-of-way of Pettigrew Road and the right-of-way of
Arnold Market Road. However, the order establishing Pettigrew Road (8 Comm. Journal
259 [2-7-62]) provides that the right-of-way is 50 feet wide North of the COI canal.
PL-10 and the SSDC require Pettigrew Road to have a right-of-way sixty feet
wide regardless of whether it is a local or collector; therefore, it is unnecessary
to classify Pettigrew Road as one or the other for purposes of this decision.
Findings H and L of the Planning Commission conflict with the Assessor's Map,
which shows the Pettigrew Road right-of-way to be thirty feet on each side of its
centerline, and conflict with the order establishing Pettigrew Road.
Under the SSDC and PL-10, absent evidence to the contrary, the Board will
find that road right-of-way for an arterial is adequate if it extends forty feet on
either side of that arterial's centerline. It will find that the right-of-way for
a collector or local road is adequate if it extends thirty feet on either side of
that road's centerline.
5. The Board interprets the reference to "existing streets" in Section 9.320
of PL-7 as including both right-of-way and pavement width. Standards of adequacy
are established by PL-10 and the SSDC. The reason for this is that if the pavement
and shoulders of a road coincide with the width of a substandard right-of-way, the
County would be trespassing on private property if it used equipment to construct
or repair the shoulders or abate weeds, cave-ins, or other hazards to the use of the
road and shoulder.
6. The contention of the applicant that the County should grant a variance
at this point in the proceeding to protect the applicant's shade trees is not well
taken. The proper procedure for raising this issue is by seeking a variance from
the requirements of the SSDC and PL-10 in a separate proceeding, prior to seeking
a partition of the property on which they are located.
The Board makes the following findings on the four reasons for appeal stated
in applicant's notice of appeal dated November 8, 1979:
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r
Vot k" E .
1. For the reasons given above, the conditions imposed by the Planning Com-
mission on the partition are authorized by the Bend Area General Plan in effect as
of the date of approval of the application to the extent that they require sufficient
land to be dedicated, if necessary, to create thirty feet of right-of-way on the easterly
side of the centerline of Pettigrew Road adjacent to the parcel being partitioned.
County records indicate that five feet of additional right-of-way will have to be
dedicated by the applicant to make the half of the road adjacent to the partitioned
property the proper width. Similarly, the requirements are in compliance to the extent
that they require sufficient right-of-way to be dedicated, if necessary, to create
forty feet of right-of-way West of the centerline of Arnold Market Road. The records
of the County indicate that no additional right-of-way needs to be dedicated to
accomplish this.
The law in effect at the date of application is irrelevant to the processing
of an application, contrary to the implication in the notice of appeal.
2. The Board takes administrative notice of PL-10 and the SSDC, and finds
that Pettigrew Road is of inadequate width so long as it does not have thirty feet
of right-of-way on either side of its centerline, and that Arnold Market Road is of
inadequate width so long as it does not have forty feet of right-of-way on either
side of its centerline, based on the requirements of those ordinances.
3. Reason 3 is moot, in view of the order given below.
4. Reason 4 is rejected in that it appears that the right-of-way of Pettigrew
Road is fifty feet wide, while PL-10 and the SSDC require sixty feet of width, thirty
feet on each side of the centerline.
Based on the foregoing findings of fact and conclusions of law, IT IS HEREBY
ORDERED that the decision of the Planning Commission in respect to Minor Partition
79-71 is modified as follows:
Minor Partition 79-71 will be granted if all the conditions not appealed to
this Board are complied with and the following conditions appealed to this Board are
met:
1. That sufficient right-of-way be dedicated to the public, as necessary,
to cause the right-of-way of Pettigrew Road to extend thirty feet easterly of its
centerline. This will require dedication of five feet of right-of-way by the applicant
along the westerly edge of his property adjacent to the existing right-of-way of
Pettigrew Road.
2. The reference for the centerlines of said roads shall be the official
descriptions of them on file with the Deschutes County Clerk.
DATED this 1 day of March, 1980.
Distribution:
Robert S. Lovlien, Esq.
Planning Director
Roadmaster
County Counsel
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BOARD OF COUNTY COMMISSIONERS
ALBERTA / YOUNG. Chairman ~1