30-118-Order Recorded 4/13/1979VOL 30 PACE 118
IN THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON
FOR DESCHUTES COUNTY
In the Matter of
MINOR LAND PARTITION
78-202
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER
This matter came before the regular term of the Board of County Commissioners
on April 4, 1979. The hearing was duly noticed in accordance with ORS 203.127,
written notice of the hearing having been served upon HOWARD DIETZEL by the County
Sheriff on March 23, 1979.
MR. DIETZEL was represented by DANIEL E. VAN VACTOR, ESQ., and ROBERT PICKARD
represented himself as the party complaining of a nuisance. MR. PICKARD claimed
to represent other neighbors in the area, but since he is not a member of the
Oregon State Bar, it is not lawful for him so to do. Accordingly, the Board will not
consider any of his neighbors to be bound by his actions.
The following documentary evidence was received from DANIEL E. VAN VACTOR, ESQ.
on behalf of MR. DIETZEL:
1. Exhibit A, a photocopy of the letter of BARBARA TAYLOR to HOWARD DIETZEL
dated October 3, 1978, stating that Minor Partition MP78-202 was approved, and
appended to that a photocopy of a drawing of Minor Land Partition MP78-202 dated
Apri128, 1978, approved by J.E. LANGLEY for the County Sanitarian on September 14,
1978, ALBERT A. YOUNG, County Commissioner, on September 15, 1978, W. G. MONROE,
County Planning Director, by BARBARA TAYLOR, on October 4, 1978, and by County
Commissioner DONALD GRUBB,on October 4, 1978.
2. Exhibit B, a photocopy of the survey of VINCENT GISLER property by
registered professional land surveyor GEORGE COOK, dated December 13, 1974.
3. Exhibit C, a statement signed by eight (8) persons between March 31, 1979,
and April 4, 1979, beginning "We, the undersigned, have no complaint...."
No exhibits were presented by ROBERT PICKARD.
MR. VAN VACTOR, on behalf of MR. DIETZEL, moved to dismiss the proceeding prior
to the taking of any evidence. This Motion was denied on the ground that there was
no authority for such motions under County Procedural Ordinance PL-9, under which
the proceeding was conducted.
All facts administratively noticeable under Section 7.000-2 of Ordinance PL-9
were administratively noticed, as more particularly set forth with the Findings
of fact and Conclusions of Law listed below. It was stipulated between the Board
and MR. DIETZEL that the Planning Department file on MP78-202 could be considered as
part of the record, subject to inspection by MR. VAN VACTOR. It was stated at
the hearing that the decision of the Board would be made on April 11, 1979, and
MR. VAN VACTOR did not object to anything in the file being considered prior to
said date. MR. PICKARD did not object to this stipulation.
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VOL 30 PAGE 119
Testimony for MR. PICKARD was heard from ROLAND KICKBUSH, EILEEN PERIL
and JAMES HAMMACK. Testimony for MR. DIETZEL was heard from GEORGE COOK and
DUANE HODGES. BARBARA TAYLOR was questioned by both sides. Each party testified
for himself.
FINDINGS OF FACT
1. Minor Land Partition MP78-202 is located in the Northeast Quarter of
the Southwest Quarter of Section 25, Township Sixteen South, Range Eleven East,
Willamette Meridian, Deschutes County, Oregon. ADMITTED DIETZEL's Exhibit A.
2. Said partition is located in an A-1 zone under County Zoning Ordinance
PL-5. ADMITTED DIETZEL's Exhibit A.
3. The lots created by said partition are Parcel A and Parcel C, each having
an area of 4.28 acres, more or less, exclusive of contiguous road easements.
ADMITTED DIETZEL's Exhibit A.
4. The area included in said partition, inclusive of a sixty-foot right-of-way
dedicated by MR. DIETZEL, and half of That Portion of Pinehurst Road contiguous
to the partition on the North, but excluding all of U.S. Highway 20 contiguous to
the partition (this Highway being owned in fee by the State of Oregon), is estimated
at 9.95 acres. The survey of Parcel A in MJP77-27 by GEORGE COOK ENGINEERING, INC. cited
in DIETZEL's Ex,nihit A, describes the parcel as containing 9.9 acres, more or less.
The computations used in arriving at this estimate are shown below:
(423.72 + 366.28)440
+861.78 + 861.66) 60 + (437.94- 366.28)268.50
+(71.66)(440 - 268.50) + (60+268.50) x 30*- (30 tan al
2 2
_ 433523.81 ft2 43560 ft2/Z = 9.95
la =(670 22' 35" + (900 - 890 46' 02") = 670 36' 33"
Tan al ~ 2.43
30 + 268.5 (268.5 tan 06'54")
* The width of the Pinehurst Road right-of-way is forty feet. County Road Department
maps. Twenty feet of this would accrue to the parcel if the road were vacated.
Mr. Dietzel claimed Qx party that he had dedicated an additional ten feet to
the County. This dedication has not been checked, but even giving him credit for
it, the partitioned land still contains less than ten acres.
Since Ae South course on Parcel A is 890 52' 56" East of South and the North
coarse is 89 46' 02" West of North, the two courses converge at an angle of
00 06' 54". This would add a small area roughly that of a right triangle whose
legs are 2682 feet and 2682 times a tangent of 06' 54", or 72.34 square feet,
resulting in an area of 9.95 acres for the partition.
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VOL 10 FACE 1.20
5. The partition was filed August 2, 1978, as shown by the receipt for a
partition fee, number 6950, made out to HOWARD DIETZEL in the sum of $35.00. Under
the policies of the Planning Department, no partition request is accepted until
this fee has been paid. This receipt is part of the public records of the Deschutes
County Cashier.
6. The partitioned land lies in an agricultural zone as shown on the map
entitled "Agricultural Interim Protection Ordinance, Exhibit 1, Identified
Agricultural Lands, August 30, 1978." This map is an exhibit to the Interim
Agricultural Lands Protection Ordinance adopted by the Board of County Commissioners
on August 30, 1978, to be effective that date. The partitioned land also lies in a
Landscape Management Area pursuant to the Deschutes County Comprehensive Plan of
1970; however, no ordinance has been adopted by the Board of County Commissioners
to date in order to implement the provisions of the Landscape Management Area
described in that Plan. Furthermore, no building restriction is imposed by said
Plan on the Landscape Management Area.
7. A dwelling currently being constructed on Parcel A was located by the
partitioner in reliance on being able to build on Parcel C. Testimony of DUANE HODGES.
CONCLUSIONS OF LAW
1. The Interim Agricultural Lands Protection Ordinance effective August 30,
1978, applies to the partitioned land, in that the application for partition 78-202
was received August 2, 1978. Section III-A-4 exempts lands identified as agri-
cultural on the map shown as Exhibit 1 to the Ordinance only if a partition request
for the land was received by August 1, 1978. Since partition request 78-202 was
received August 2, 1978, the partitioned land was either grazing land (Section V-B-1),
with a forty-acre minimum, primary agricultural land (Section V-C) with a forty-acre
minimum, or marginal agricultural land (Section V-B), with a ten-acre minimum.
The minimum acreages under the Interim Agricultural Lands Protection Ordinance
include the area of those portions of roads and utility rights that would accrue
to the parcel if the road or utility rights were vacated. Section V. This includes
the half of dedicated road nearest to the partitioned land. ORS 271.060(2).
2. The Interim Agricultural Lands Protection Ordinance does not include any
provision declaring that violations of the Ordinance are a nuisance.
3. If the Interim Agricultural Lands Protection Ordinance does not apply,
County Zoning,Oedinance PL-5 does. It is admitted that the partitioned land is in
an A-1 zone. Section 3.220-1 of PL-5 states that the minimum lot area in the A-1
zone shall be five acres, with inapplicable exceptions. Lot area is defined in
Section 1.030-20 of PL-5 as "the total horizontal area within the lot lines of a
lot exclusive of streets, and easements of access to other property. Accordingly,
Parcel A and Parcel C would each be considered to have an area of 4.28 acres, more
or less.
4. Applying the tests of Clackamas County vs. Holmes, 265 Or. 193, 508 P.2d
190 (1973), it is concluded that MR. DIETZEL has established a vested right to
build on Parcel C of the partition, for the following reasons:
a. Substantial construction has occurred on Parcel A in reliance
on being able to build on Parcel C.
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. va 30 PAGE 121
b. This construction has been done in good faith.
c. MR. DIETZEL had no actual notice that his partition was located
in a ten-acre zone, since the map establishing the ten-acre zone
was in the possession of the Planning Department at all times
relevant herein. MR. DIETZEL reasonably relied on the Planning
Staff to determine whether his partition was prohibited by the
Interim Agricultural Lands Protection Ordinance, and should not
be held to have had constructive notice that his partition lay
in a ten-acre minimum zone, because the map to date has never
been signed and recorded with the County Clerk.
d. The expenditures on the existing dwelling have a relationship to
the completed project, in that the existing dwelling is being
built closer to the highway than would have been the case if no
dwelling was to be built behind it. Therefore, its value could
be expected to be less than if it were built with a greater setback.
e. The project is not moveable, is located in reliance on the validity
of partition 78-202, and therefore could not be removed without
economic waste.
f. The acts of the landowner rise beyond mere contemplated use or
preparation of the partitioned land for construction.
Accordingly, all six elements of vested right were shown prima facie by the
testimony in favor of MR. DIETZEL. MR. PICKARD failed to rebut any of this testimony.
Accordingly, the Board concludes that MR. DIETZEL has a vested right not to have
the partition vacated.
5. Although partion MP78-202 was approved in violation of both County Zoning
Ordinance PL-5 and the Interim Agricultural Lands Protection Ordinance, the Board
of County Commissioners lacks the power to vacate the partition approved at the
previous term of the Court, especially where vested rights have been acquired by
the partitioner. The general law is that ordinarily, where the rights of third
parties have not intervened, a County Board may modify or repeal its ministerial and
legislative acts, but may not set aside its judicial acts unless a statute provides
otherwise. 20 CJS, Counties, Section 93. Under PL-9, Section 15.000-1, the Board
must decide to review its quasi-judicial decisions within ten (10) days; County
Partition Ordinance PL-7, by setting up a hearings process for partitions, treats
them as quasi-judicial,as opposed to legislative matters.
Since the original drawing of MP78-202 in the Planning Department file shows
that Commissioner YOUNG and Commissioner MONTGOMERY signed the Minor Land Partition
on September 15, 1978, but the Planning Director signed by BARBARA TAYLOR on
October 4, 1978, the majority of the Board, in approving the Minor Land Partition,
was performing a judicial act. Only Commissioner GRUBB, waiting until October 4,
1978, may have waited for Planning Department approval of the partition before
signing it. Accordingly, only he may have approved the partition as a ministerial
act. Therefore, it appears that the majority of the Board of Commissioners approved
the partition as a judicial act, which may not be set aside by a subsequent term
of the County Court.
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VOL 30 PAcE 122
Of course, nothing herein forecloses any person who claims that the existence
of the partition and the issuance of a building permit on Parcel C constitute a
public nuisance from seeking vacation of the partition in Circuit Court. The afore-
mentioned precedents only apply to the power of the County Court to rescind the
quasi-judicial decisions taken by its previous term.
It is not necessary to reach the issue of whether the Board may collaterally
attack the approval of MP78-202 by an independent action in Circuit Court.
NOW, THEREFORE, IT IS HEREBY ORDERED that no further action be taken to abate
the dwelling currently under construction on Parcel A; and
IT IS FURTHER ORDERED that Minor Land Partition MP78-202 not be vacated
unless such action is mandated by an order of a judicial court of competent
jurisdiction, and any appeals from such order are exhausted.
nt'
DATED this day of April, 1979.
Distribution:
Planning Dept.
Board of Commissioners
Dan Van Vactor, Esq.
Robert Pickard
Louis Dvorak
PAGE -5-
BOARD OF C UNTY COMMI IONERS
a -I- W~:)_
Chai
Commissioner
(Absent)
Commissioner
