Bertsch v. DLCD

In order to obtain just compensation allowed by Measure 49, the property owner must show, more likely than not, the conditions in place were actually satisfied during the time when the county could have authorized a dwelling. A party is not allowed to currently attempt to satisfy historical conditions.

The Department of Land Conservation and Development (DLCD) appealed a judgment granting relief to Bertsch and Wales. DLDC issued orders disqualifying Bertsch and Wales for additional home sites under Measure 49. Measure 49 allows “just compensation” of up to three home site authorizations if a claimant “lawfully was permitted to establish” at least that number of home sites at the time of acquisition. Bertsch and Wales acquired their property in 1987 and 1991, respectively. At that time, they were required to plant perennials capable of producing $10,000 in gross income in order to receive a permit to construct a dwelling. Neither Bertsch nor Wales attempted to meet this condition, and the law changed in 1993 to become more restrictive. The trial court allowed Bertsch and Wales to obtain permits according to the conditions in place at the time the property was acquired. In order to obtain just compensation allowed by Measure 49, the property owner must show, more likely than not, the conditions in place were actually satisfied during the time when the county could have authorized a dwelling. The Court of Appeals found that Bertsch and Wales did not show that they had actually satisfied the historical conditions in place, and cannot currently attempt to satisfy those conditions. Reversed.