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FILED: September 19, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
SCOTT BERTSCH
and PATTY BERTSCH,
Plaintiffs-Respondents,

v.
DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT,
a department of the State of Oregon,
Defendant-Appellant.

SUSAN WALES
and MATTHEW WALES,
Plaintiffs-Respondents,

v.
DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT,
a department of the State of Oregon,
Defendant-Appellant.

Washington County Circuit Court
C096126CV, C096127CV

A146115 (Control)
A146117

Donald R. Letourneau, Judge.
Argued and submitted on July 27, 2011.
Stephanie L. Striffler, Senior Assistant Attorney General, argued the cause for appellant.  

With her on the briefs were John R. Kroger, Attorney General, and Mary H. Williams,

Solicitor General.
John M. Junkin argued the cause for respondents.  With him on the brief were Jennifer
Bragar and Garvey Schubert Barer.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
WOLLHEIM, J.
Circuit court judgments reversed; DLCD orders reinstated.

1  WOLLHEIM, J.  
2  The Department of Land Conservation and Development (DLCD) appeals  
3  judgments of the circuit court on judicial review of two DLCD orders, issued pursuant to  
4  section 5 of Ballot Measure 49 (2007), determining that land zoned for exclusive farm use  
5  (EFU) owned by petitioners Wales and land zoned for agricultural forestry use (AF)  
6  owned by petitioners Bertsch did not qualify for additional home sites under section 6 of  
7  Measure 49, because petitioners Wales and Bertsch were not each lawfully permitted to  
8  establish a home site when they acquired their properties.  The circuit court held in two  
9  separate judgments that, under Measure 49, petitioners Wales and Bertsch each qualified  
10  to apply for an additional home site. DLCD's appeals have been consolidated on DLCD's  
11  motion.  We conclude that the court erred in determining that petitioners were entitled to  
12  relief and, therefore, reverse the judgments and reinstate DLCD's orders.  
13  Section 6(6)(f) of Measure 49 provides for "just compensation" in the form  
14  of up to three home site authorizations if the claimant demonstrates that, "[o]n the  
15  claimant's acquisition date, the claimant lawfully was permitted to establish at least [that]  
16  number of lots, parcels or dwellings on the property."  The Washington County ordinance  
17  in effect when petitioners Bertsch and Wales acquired their properties in 1987 and 1991,  
18  respectively, limited residential dwellings on property zoned EFU and Agricultural  
19  Forestry (20-acre minimum) (AF-20).  Under some circumstances, the county permitted  
20  farm-related dwellings on lots smaller than 20 acres.  The issue in dispute on appeal  
21  concerns whether, despite the conditional nature of the county's approval process for  

1  farm-related dwellings on parcels smaller than 20 acres, DLCD was nonetheless required  
2  to approve the dwellings under Measure 49.  
3  We recently addressed the statutory context for this dispute in Ericsson v.  
4  DLCD, 251 Or App 610, ___ P3d ___ (2012), and we will not repeat it here.  As in  
5  Ericsson, the relevant provision at issue in this case is section 6(6)(f) of Measure 49.  A  
6  claimant property owner may qualify for approval of up to three home sites under section  
7  6 of Measure 49 if the claimant timely filed a claim under Measure 37 and satisfied the  
8  substantive criteria of section 6(6) of Measure 49, which includes the requirement that,  
9  "[o]n the claimant's acquisition date, the claimant lawfully was permitted to establish at  
10  least the number of lots, parcels or dwellings on the property that are authorized under  
11  [section 6]."  Measure 49,

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