33-332-Order Recorded 10/11/1979VOL 33 PACE 332
IN THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON
FOR DESCHUTES COUNTY
In the Matter of )
Minor Partition MP-78-198, ) O R D E R
James C. Stafford, Applicant )
This matter came before the regular term of the Board of County Commissioners
on September 5, 1979, pursuant to the Board's order dated August 22, 1979, to
review the action of the Planning Commission recommending approval of the minor
partition dated August 8, 1979. Daniel E. Van Vactor, Esq. made a presentation
on behalf of the applicant, and Louis B. Dvorak, County Counsel, made a recommenda-
tion on behalf of the staff. Being fully advised, the Board made the following
findings of fact and conclusions of law:
1. On August 16, 1978, the Planning Director approved the minor partition
subject to the following conditions:
"(1) The enclosed roll change request to be signed by
the deed owner and returned to this department [meaning
the Planning Department];
(2) The access road to parcels two and three shall have
a cinder aggregate base at least 20 feet wide and five
inches deep."
Condition (1) was met on November 9, 1978, and Condition (2) was met on
November 15, 1978.
2. On August 31, 1978, the Board of Commissioners passed the Interim
Agricultural Lands Protection Ordinance, imposing a ten-acre minimum lot size
in the area, inclusive of rights-of-way. This Ordinance applied to applications
received on or after August 1, 1978, by the Planning Director. The file does
not indicate when the application for this minor partition was received by the
Planning Director.
3. The preliminary approval letter of August 16, 1978, stated, "this does
not constitute final approval." However, testimony at the hearing indicated
that Mr. Stafford sold one of the parcels shown on the partition map prior to
final approval. This transaction was unlawful. ORS 92.016(2). Accordingly,
this sale did not establish any rights in the applicant to have the partition
approved.
4. Parcels one and two as shown on the partition map have an area of
2.2 acres, exclusive of the areas contained within abutting rights-of-way and
easements of access to other property. The partition map also states that the
property is located in the RR-1 Zone. This is not true. The parcel is located
in the A-IT Zone as shown on County Zoning Maps ZM-5 and ZM-6. The minimum lot
size in the A-1T Zone is five acres within the lot lines of a lot, exclusive
of streets and easements of access to other property.
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got PACE 333
5. On June 1, 1979, the Planning Director, by Barbara Taylor, Assistant
Planner, wrote a letter to Mr. Stafford stating that the County would not
approve the 2..2 acre lots indicated on the plat. Prior to this letter,
Mr. Stafford had expended $1,785.00 on roads as required by the conditional
approval letter of August 16, 1978, and $477.00 for the services of the County
Surveyor acting in his private capacity to draw the partition map and develop
the necessary legal descriptions.
6. The initial plat prepared by the County Surveyor misrepresented the
zoning as being RR-1. The County is not responsible for this misrepresentation
because the County Surveyor made it in his private capacity. The Planning
Director relied upon the misrepresentation in granting preliminary approval.
The fact that the zoning was A-1T was not discovered until after preliminary
approval had been granted. The specific ground relied upon for the appeal by
the applicant was money spent on improving the roads to satisfy County
Planning requirements." Clackamas County v. Emmert, 14 Or. App. 493, 513 P.2d 534
(1973) holds, in effect, that the County has the power to revoke the preliminary
approval of an unlawfully issued permit under its police power to enforce zoning
ordinances for the protection of all citizens. It further states that all
citizens have the right to rely upon public officials not having acted in violation
of their own ordinance, and that when officials do so act, this should not afford
a basis for stopping the city from later enforcing the ordinance. "This is true
regardless of whether the holder of the illegal permit has incurred expenditures
in reliance thereon."
However, the Board finds that the surrounding property owners will not be
injured by the creation of a lot shown in MP-78-198 as many of the surrounding
lots are approximately the same size.l
Furthermore, in balancing the hardships between the surrounding property
owners and the applicant who has spent about $2,300.00 on this partition, the
Board finds that denial of the partition would work a hardship on the applicant
out of proportion to the detriment the surrounding property owners might
suffer by the Board's failure to enforce its ten-acre lot size minimum in this
case.
The Board also finds that the face of the partition map shows the County
Surveyor has checked work in his public capacity which he perf ormed In his private
capacity. Although County Ordinance PL-7 does not expressly prohibit this, we
find that the public policy behind ORS 92.100(3) applies equally to subdivisions
and partitions;
NOW, THEREFORE, IT IS HEREBY ORDERED that:
1. Minor Partition 78-198 shall be referred to the County Surveyor
of another County for endorsement on the drawing.
2. The Planning Director shall coordinate with the County Surveyor to
choose another County Surveyor to do this work.
1Lots abutting to the West and Northwest are residential in the Forest View Sub-
division a ten-acre parcel abuts to the South and North, a fifteen-acre
parcel abuts to the Southeast, a five-acre parcel abuts to the East.
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1,
VOt 33 PAGE 334
3. When the County Surveyor of another County approves Minor
Partition 78-198, the Planning Director will submit it to the Board for final
approval.
(Commissioner Paulson dissents and woudl disapprove the partition.)
DATED this day of October, 1979.
'4tS
BOARD OF COUNTY COMMISSIONF
C. SHIJPARD,
A. YOUNG, Co ssione
ROBERT C. PAULSON, JR., Commissioner
Distribution:
Daniel E. Van Vactor, Esq.
County Counsel
Planning Director
County Surveyor
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