Neighbors seek denial of land use request.

Byline: Randi Bjornstad The Register-Guard

CRESWELL - Of all the Measure 37 claims the Lane County commissioners have considered, one on today's public hearing agenda may be the most difficult decision yet.

Bernard and Margaret Bernheim say land use regulations enacted since they purchased 515 acres just east of Creswell, off Rodgers Road, between 1959 and 1969 have diminished the value of their property by preventing them from developing it as they wished. They want the county either to pay them $19 million or waive the land use rules, allowing them to create as many as 157 parcels, instead of the 12 allowed under existing county zoning.

Those are the choices open to governments when they process claims made under the initiative, which voters statewide passed overwhelmingly in 2004. If property owners can show that their property has lost value because of government regulations put in place since they bought it, they either must be compensated or allowed to use the land as they could have before the regulations.

But neighbors in the area are up in arms over the Bernheims' claim. At least nine have submitted letters of opposition and 42 have signed a petition, raising questions not only about adequate water and dangerous traffic but also whether the Bernheims - who live in Central Oregon near Tumalo - really own all of the property included in their claim for relief.

Of the 87 claims received by Lane County so far, none lays out more clearly the two main pitfalls inherent in Measure 37: proof of ownership and transferability of development rights.

To date, the Lane County commissioners have approved 33 claims and denied two. Three have been withdrawn by the property owners, and the rest remain to be scheduled for consideration.

Most cities and counties interpret the law to mean that the right to develop property affected by Measure 37 resides with the original owner and doesn't get passed along to someone who might buy the property later, said Kent Howe, the county's planning director. Likewise, only the original owner has a right to file a Measure 37 claim.

However, most also assume that these issues will not be settled by local elected officials but in the courts, Howe said.

In the Bernheims' case, "We haven't received what we need to prove ownership of part of their property," he said. "With the deeds they have submitted so far, they don't persuade us that they own it."

As a result, the staff's recommendation to the commissioners today will be either to deny or put on hold one parcel that makes up about 60 percent of the property involved.

But the even thornier problem posed by the Bernheims' application may be transferability, an issue foreshadowed in a letter in October from the couple's attorney to the county's attorney.

Instead of a monetary settlement, "the Bernheims would welcome removal of the land use regulations currently in effect, so long as the removal is transferable to subsequent owners, and the subsequent owners would be authorized to subdivide the property," Portland attorney Donald Joe Willis wrote.

That's exactly why neighbors of the Bernheim property will ask the commissioners to reject the claim.

Several have submitted written testimony to the county, detailing conversations with Bernard "Bunk" Bernheim in which they say he told them he already had sold his property to local developers.

One letter, from Bill and Judy Walker, says that in late 2004, "Bunk called and asked Bill if he would help him dispose of farm equipment and vehicles, as he had sold their property and had `a couple of months' to remove all their belongings for the new owner to take possession."

However, Bernheim also told Bill Walker "that he planned to leave his name on the property after it was sold, `to get around Measure 37,' ' the Walkers' letter says. "In doing this, he would realize `a significant amount of money' later, in addition to the millions he was to receive for the property," depending on the number of building sites the new owners could develop.

Another neighbor, Claudia Bliss, submitted a statement to the commissioners, saying that she had contacted Bernheim because cows had been coming onto her property through a downed fence.

"A few days later, he returned my call, apologizing that he had already sold his property to the McDougals, and he was very sorry that we had just purchased a property next to one that was going to be developed," Bliss said.

Local businessmen Melvin and Norman McDougal were out of town and unavailable for comment Tuesday, according to people at their offices or homes. However, Bernard Bernheim, contacted at his home in Central Oregon, said, "I still own the property - it's a matter of record."

He acknowledged that he had signed a purchase option with McDougal Bros. Investments on all four tax lots and that a purchase "would be in the offing there somewhere" in the future. A notice of option to purchase was filed with Lane County Deeds and Records on May 26, 2005. Asked why the property was posted with "No Trespassing" signs carrying the message "Frontier Resources Private Property," Bernheim said he doesn't "have much connection with Frontier Resources - they work with the McDougal Brothers. They have a lease on the property."

Frontier Resources is a limited liability corporation of which Veneta developer Greg Demers is a member.

The high degree of interest from the neighbors and the unsatisfactory nature of the paper trail on ownership of the property may make settling the Bernheim claim the most difficult so far for the county commissioners, said Howe, the planning director.

"The trouble (for the county) is that we're only given the deeds that the applicants provide, and what information we can get from title companies," Howe said. "If someone presents information that the applicant doesn't have possessory interest, then that opens up the issue of both ownership and transferability. If there's a chance that other agreements have been made that aren't recorded, that's where it gets really curious."