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January 31, 2007

Comments

Way to go on the continued MSM exposure, Brian. Some questions:

1) was this the M37 decision, or a post-M37 development review? In other words, what stage is this at? In Clackamas, once the claim gets passed, then there's still the full development planning process--complete with public hearings and whatnot--before the claimant can begin development. Which stage is Laack in?

2) Is Laack doing his own development? Otherwise, of course, he'll run up against transferability problems. And even if he does it himself, does he realize that homeowners won't be able to get insurance--because if the house burns down, the new owners aren't eligible to rebuild?

3) Have you been afforded any advice on whether this development enables you to lodge a counter claim under M37, on the grounds that Marion County's waiver will devalue your property by threatening its water supply?

torridjoe, regarding your questions:

(1) The Laack subdivision is one of the first Measure 37 claims to reach the final approval process. The Planning Commission was deciding on Laack's subdivision application. The county commissioners had already approved the Measure 37 claim itself.

Marion County decided, correctly, that groundwater availability fell under the "health and safety" clause of Measure 37. So Laack wasn't exempted from complying with the county ordinance that applies in limited groundwater areas.

I should point out that this ordinance exists not because Marion County is so Green, but because the county allows lots as small as two acres in an AR (acreage residential) zone. To comply with state land use goals, the county had to come up with the ordinance.

(2) Laack is a developer himself, I believe. He has some sort of partnership with a road/paving company, which our attorney questioned due to the transferability issue you raised. We're not sure how he's planning to finance the subdivision.

Concerning transferability, the best discussion of this issue I've come across is this analysis:
http://www.harrang.com/News/publications/2006/measure37_waivers.pdf

Legally, transferability is still up in the air. The attorney who wrote the analysis seems to lean toward the current "vested when partially built" interpretation. Could be, but my common sense brain says that Measure 37 introduces a different wrinkle into vesting.

I mean, if a Measure 37 waiver runs with the owner, not the land, then how does building something on the land allow the waiver to be transferred? Doing something that isn't legal shouldn't result in a legality.

(3) I'm doubtful that the counter claim argument would hold up. This question was asked of a Measure 37 expert from the state Justice Department and he discounted the notion. He said that allowing counter claims would result in a never-ending circle of claims and counter claims.

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