HinesSight

How Marion County should handle Measure 49

It's been frustrating for us and our neighbors to see bulldozers rolling on subdivision road construction just a few days before Measure 49 goes into effect on December 6.

Measure 49 limits development on this property to three home sites on six acres of the least valuable farmland. The Measure 37 claimant plans 43 homes, each with a well, on this groundwater limited land.

Leroy Laack, the developer, is quoted in a front page Salem Statesman Journal story:

"Our intentions are to push ahead just as fast as we can within the context of the current law," Laack said. "So we are still operating under Measure 37 until Dec. 6, when the other law is in effect. We will push as fast as weather or anything permits."

Well, after December 6 the pushing has to stop.

For under Measure 49 Laack and his co-owners have two choices: (1) take the "express lane" that leads to the three home sites, or (2) continue on under Measure 37 by demonstrating that the project is vested – meaning, that it has progressed sufficiently to be developed under the rules that applied before Measure 49 was approved by Oregon voters.

No matter which path is chosen, construction work has to stop on December 6. So we're expecting that the Marion County board of commissioners will authorize the issuance of stop work orders at a board work session next Monday morning.

This is a no-brainer, since there's no way the Laack subdivision can be determined to be vested by next Thursday.

Vesting decisions have to be made under Oregon common law. Meaning, it isn't possible to go to a statute or ordinance and learn whether a particular project is vested. Instead, this is determined on a case by case basis.

Lots of facts have to be looked at. Lots of precedents in previous court cases have to be considered.

This is tough for a judge with a law degree to do. It definitely isn't something that county commissioners are capable of doing. So our neighborhood's Keep Our Water Safe committee, which my wife and I head up, wants Marion County to have vesting decisions made by either a hearings officer (who are attorneys) or a court.

That would streamline the process for both Measure 37 claimants who want to prove they're vested, and for opposing neighbors who want to prove they aren't.

So far our neighborhood has spent over $30,000 on legal, hydrogeology, and other expenses in an effort to protect our wells and springs from over-development. We shouldn't have to fork out more money on unnecessary vesting hearings.

An experienced hearings officer or judge will be able to handle the common law questions much more competently and expeditiously than county commissioners learning on the fly.

And they've got better things to do with their time. The Laack subdivision is a complex case that's been hotly contested from the get-go. The Marion County Planning Commission held the longest hearings in the Commission's history on it: three evening meetings, each of which lasted three to four hours.

Likewise, the Board of Commissioners hearing at which appeals of the Planning Commission decision were heard went on for over six hours, I recall. Another record.

There will be more of the same when it comes to deciding whether the subdivision is vested.

As I said before, lots of facts to be brought out; lots of previous court cases to be examined for precedents. Marion County residents expect their county commissioners to do many things, but filling the role of a judge in a complex court case isn't one of them.

We're virtually certain that the subdivision isn't vested. Leroy Laack said in the newspaper story that he thinks it is.

One of us is right. We'll find out soon. Hopefully, through a neutral, fair, transparent process refereed by an unbiased hearings officer or court.

Measure 37 bulldozers roll as Marion County ignores Measure 49

Today KATU's Salem bureau filmed an excellent story about Marion County's outrageous decision to approve a construction permit for a Measure 37 subdivision just nine days before Measure 49 will make it illegal.

Laurel and I were interviewed for the story.

Melica Johnson and Dino, her cameraman, had us stand outside on our deck – where we were pleased to talk about how crazy it is to let bulldozers tear up Oregon farmland for a large subdivision when 62% of Oregon voters said "No!" to this on November 6.

Here's my YouTube video of the two and a half minute story, which I titled "Marion County pretends Measure 49 doesn't exist."

One of the three Marion County commissioners, Janet Carlson, makes a lot of sense in her segment. She recognizes that just because Measure 49 doesn't take effect for eight more days, it's crazy to pretend that a big change in Oregon's land use laws isn't coming.

I told Melica that this is akin to a couple getting engaged.

Voters have decided that they're going to "marry" Measure 49 on December 6, when it goes into effect. Now we're in an "engagement" period, when government agencies should be working toward a smooth transition from Measure 37, which Measure 49 fixes.

Commissioners Patti Milne and Sam Brentano, however, prefer to keep on doing the same old thing: issue construction permits, even though the roads being constructed will be illegal on December 6.

So Marion County is spending taxpayer money approving and overseeing work that almost certainly will have to be undone. My understanding is that wiser counties, like Washington County, are only approving permits for Measure 37 uses that will be legal under Measure 49.

I got in a next-to-last word in the KATU story:

It just seems funny that we'd have to go to court to force the county to enforce the law.

Well, it isn't funny as in "humorous," but rather as in "ridiculous." But this is what our neighborhood's Keep Our Water Safe committee will have to do unless Marion County issues a stop work order on its own December 6, which we're hoping will happen.

Melica had the last word, quoting one of the commissioners as saying the situation is akin to a speed limit change. People don't drive at the new speed until it goes into effect.

This bad analogy reflects the poor understanding Milne and Brentano have about what's at stake here. Driving a car at either 60 mph or 70 mph doesn't produce any lasting effects. Bulldozing irreplaceable Oregon farmland for road construction does.

Voters have said that they don't want large subdivisions built on groundwater limited farmland, like the Laack subdivision property. They want this land protected by allowing only three home sites on six acres of it, not the 42 home sites on 125 acres that's been planned.

Approving a construction permit on November 28 to tear up ground that will be protected on December 6 – that's crazy. Hopefully Marion County voters will remember this when Milne and Brentano run for re-election.

Marion County disrespects Measure 49 voters

Just as our neighborhood's Keep Our Water Safe committee has been fearing, two Marion County commissioners are thumbing their noses at the 66% of county voters who said "yes" to Measure 49 on November 6 (along with 62% of Oregonians).

The voters said they didn't want large subdivisions to be built on farm, forest, and groundwater limited land. Measure 49 goes into effect on December 6, ten days from now.

But Sam Brentano and Patti Milne have decided to keep on issuing construction permits for large subdivisions on farm, forest, and groundwater limited land right through December 5.

Mind-boggling. Crazy. Disturbing. Senseless.

But that's the modus operandi of the Marion County Board of Commissioners when it comes to Measure 37 developments. Brentano and Milne almost always give a green light to them, even if they have to ignore their own county ordinances and water experts to do so.

Today bulldozers came back on the Laack subdivision property near us. That's because Marion County may approve a Major Construction Permit for road construction soon.

Construction that will be illegal on December 6. But hey, why not allow a developer to tear up irreplaceable Oregon farmland for ten days or so? After all, only two-thirds of Marion County voters said "no way." And what do voters know?

Not much, I guess, according to Brentano and Milne. Because they're willing to let Leroy Laack, Greg Eide, and the other owners play around with their earthmoving equipment until December 6 – when construction has to stop.

It'll have to stop because the Department of Environmental Quality (DEQ) says so.

DEQ recently approved a 1200-C erosion control permit for the site. I submitted a comment on the permit application that got this response from DEQ (see page 4): Download response_to_comments_ridgeview_estates_final.doc

Comment: The permit application is for proposed construction that is now illegal under Measure 49 absent a certification that the Measure 37 claim is vested under Oregon common law. The application should be shelved until Ridgeview Estates is able to certify that their Measure 37 claim has been deemed vested under common law per the requirement of Measure 49.

Response: DEQ received legal direction from the Oregon Department of Justice on Measure 49 and may issue permit coverage to the applicants until December 6, 2007. To continue construction activities beyond this period, the applicants will have to submit a county land use determination that their project is vested under Measure 37 or allowed under Measure 49.

Well, the project is neither.

There's no way the subdivision is vested, according to draft guidance on this subject from the Department of Land Conservation and Development (thanks to the Land Use Watch blog for putting up the DLCD memo).

And the construction sure isn't allowed under Measure 49. Because this property is groundwater limited farmland, only three home sites can be on it. And those have to be clustered on six acres (two acres for each home site) of the least valuable farmland.

Which happens to be on the northeast corner of the property, well away from the central area where the roads are planned.

So any road construction work that takes place between now and December 6 will be wasted according to vesting common law. It's clearly in "bad faith," since the voters of Oregon have approved Measure 49 and any work done after November 6 won't count as a vesting expenditure.

Why issue a construction permit at this late date, then? I can't think of any good reason.

But here's a bad reason: Sam Brentano and Patti Milne want to send a message to the 66% of Marion County voters who said "yes" to Measure 49:

We'll keep on bending over backwards for large Measure 37 subdivisions, even though you voters don't want them built on farm, forest, and groundwater limited land. If you don't like what we're doing, vote us out of office.

Hmmmm. Excellent idea.

After wine tasting, I end up with a dog of a Pinot Noir

Would a wine connoisseur buy a bottle because it has a dog face on it? Surely, not.

But I'm surely not a wine connoisseur, so the outcome of my first Oregon wine tasting experience was entirely fitting to my oenophile standard.

Actually, it was my first wine tasting anywhere, a fact I stated repeatedly during my visit to the nearby Ankeny Vineyard this afternoon in hopes any faux pas I committed would be more easily forgiven.

I'm sure I made a few, but my wife was the only person who pointed one out to me. After a smidgen of the first red (we don't like white wine) was poured into my glass, I gulped it down.

"You're supposed to sip it!" Laurel said, and not in a whisper. I also didn't smell it. Or roll the wine around in the glass before drinking it, as I've seen oenophiles do in movies.

My assessment of the Ankeny Vineyard offerings also wasn't hugely sophisticated. After the first glass I said "This is good." After the second, I said "This is even better."

The even better was a Pinot Noir called Hershy's Red. It's aptly named after Hershy, a chocolate lab who ran up to greet us when we drove into the vineyard parking lot. He clearly was more interested in our dog, Serena, than the humans who accompanied her.

But I managed to talk Hershy into posing for a photo with me and a bottle of his namesake wine – mostly by holding onto his collar while he gazed toward more interesting pursuits. Like, our dog.

Now that I've read the label on the Hershy's Red I know what to say next time I have a taste.

"Grown near the valley floor in fertile Steiwer clay soil, these grapes ripen early in the fall, resulting in wine with complex dark fruit aromas with flavors of black cherry, blackberry, blueberry and plum predominating."

Exactly. That's what I meant by my "even better." Just couldn't put it into those words.

The $18 I spent on this dog-faced bottle was a record for me, I think. I've only been drinking wine for a few years, after about thirty-five years of teetotaling. At first I wouldn't pay more than $10 for a bottle.

But my tastes have been getting more expensive. By and large I've been learning that you get what you pay for with wine, as with most other things.

Plus, one of the staff at LifeSource Natural Foods, where I buy most of my wine, told me once that $14 is the dividing line between "good" and "not-so-good" vintages. Meaning, you need to spend that much to get a decent bottle.

He used to work for a wine distributor and is a straight-shooting conversationalist, so I'm confident that he didn't tell me this just to increase the value of his store's wine sales.

Well, hopefully this $18 bottle of Hershy's Red won't whet my taste and lead me into even higher priced Pinot Noir territory.

A dog face on the label easily could be worth $4 though. Especially when the canine is willing (with a bit of coaxing) to pose with the purchaser.

Do the Gratitude Dance (if you're not too full)

Thanks to a visitor on my other blog I learned about the Gratitude Dance.

It's super easy to do. And perfect for today. But maybe not advised after eating a big Thanksgiving dinner.

The Gratitude Dance is considerably kinder and gentler than the haka -- a traditional Polynesian dance that the Jefferson High School football team in Portland has taken up before each game.

YouTube, naturally, has many haka videos. I especially liked this one, a Hakan vs. Tongan face off at a rugby match.

Turkey pardons, PETA, and Unturkey’s sad demise

Yes, there's a lot to be thankful for on this day before Thanksgiving. But cruelty to animals isn't one of them.

A few nights ago we watched HBO's "I Am an Animal: The Story of Ingrid Newkirk and PETA." It showed many disturbing scenes, including what goes on in a turkey slaughterhouse.

Believe me, if you watched that secretly-filmed footage before you sat down to devour your "bird" tomorrow, most likely you wouldn't have an appetite.

Don't believe me. Watch on a PETA web site. Or on the viewer below.

Here's another disturbing video of how turkeys arrive on dinner tables.

President Bush recently engaged in the annual bizarre ritual of pardoning a turkey. This must reflect some deep-seated understanding in the American psyche that these animals haven't done anything to deserve how they're treated.

The HBO special showed a turkey that escaped from a slaughterhouse and was saved by the undercover worker put there by PETA to document animal atrocities.

PETA's president and co-founder, Ingrid Newkirk, took good care of it. Now that's a real pardon.

Bill Maher calls on George Bush to pardon all of the turkeys.

"New Rule: The president can't pardon just one or two turkeys this Thanksgiving. He's got to let them all go. It's probably too much to expect from the man who wanted "no child left behind," then vetoed health care for kids.

But think of the upside. Freeing the turkeys might help the president's credibility when he says things like, 'We don't torture.'

…The Butterball plant in the video slaughters about 50,000 turkeys every day. Fifty million turkey corpses will go into American ovens this Thanksgiving. More than 9 billion turkeys and chickens are killed in the U.S. each year. But not one of them is guaranteed a painless death."

Maher asks people to eat something else for Thanksgiving. Not someone else, because killing a cow, chicken, or pig wouldn't be any better than killing a turkey.

We're going to put a tofu turkey in the oven tomorrow. It'll taste great, though not as good as the dearly missed Now & Zen Unturkey, which flew the coop last year.

That was sad. I loved the Unturkey. It kicked Tofurky's butt.

The Unturkey recipe has been posted by a site dedicated to "open sourcing" this marvelous vegetarian alternative to a flesh and blood gobbler. But there's no way my wife or I would have the time or skill to make an Unturkey from scratch.

So we'll be eating a Tofurky feast after mourning the demise of the Unturkey. We'll be getting just about as much protein as if we'd eaten an animal, minus the 85 mg of cholesterol in every four ounces of real turkey.

Karma always has the last word. All those turkeys that were killed to please people's palates will be working away in American bloodstreams soon – heart attacks, they'll be a' coming.

And deserved.

Comment conversations now easier to follow

Good news from TypePad, the host of this blog: it’s now possible to be notified when a new comment has been added to a HinesSight post.

I’ve described this new blog feature here. I’ve also offered up some tips about Google Reader, which I’ve found to be a good way of keeping track of web site and blog content, including comments on posts.

For quite a while it’s bothered me that TypePad only allows bloggers like me (who don’t customize their blogs via their own programming) to only show the most recent 10 comments in the sidebar.

If a post gets lots of comments, older comments soon get shoved off of the sidebar. So there hasn’t been any way of knowing that someone has contributed to a comment conversation without checking out a particular post.

Now, there is – by subscribing to the feed option shown at the beginning of every post’s “Comments” section. Again, go here for more information about this.

And feel free to comment on what I’ve written about comments.

OIA keeps spewing post-election Measure 49 lies

The election is over. Oregonians voted for Measure 49 overwhelmingly, just as I predicted. But the lies keep on coming from Oregonians in Action (OIA).

These are the folks who gave us Measure 37 in 2004, the confusingly-written, poorly thought-out trashing of Oregon's land use laws. OIA said that Measure 37 would let little old ladies like Dorothy English build a house or two on their land.

Instead, the reality turned out to be way different. Such as large subdivisions on groundwater limited farmland.

OIA surely knew that this time Oregonians would vote to preserve what makes our state so special. So once again Dave Hunnicutt and company resorted to lies and subterfuge in their No on 49 campaign, as documented here, here, here, and here.

And they're still at it. Over on the OIA website, where large fonts and capital letters are loved nearly as much as lies, there's "Frequently Asked Questions" about Measure 49.

The questions aren't too bad. Unfortunately, OIA didn't stop there. Because many of the answers are terrible.

Right off the bat, even before the first question, they get it wrong.

Now that Measure 49 has been approved by the voters, and Measure 37 has effectively been repealed, property owners who previously followed the rules laid out under Measure 37 will now be required to re-file their applications with either the state of Oregon or the local government.

No, they won't. The Oregon Department of Land Conservation and Development (DLCD) has put up their own questions and answers about Measure 37 and Measure 49. It was written before the election, but contains "what if's" for both passage and failure of Measure 49.

Here's one of the DLCD Q & A's:

21. If Measure 49 is approved, does a claimant have to submit a new claim?

No, a claimant would not have to submit a new claim if they have already submitted one under Measure 37. If Measure 49 is approved, they would have several choices for how to proceed. They would receive a notice that describes the choices, and tells the claimant whether the state or the city will handle the claim.

• If the claimant wants approval to develop three or fewer homesites on the property, in most cases no additional information would be required to process the claim.

• If the claimant wants approval to develop more than three homesites on the property, they would need to submit an appraisal that documents how much the fair market value of the property was reduced by land use regulations. An appraisal also is required if the property is in an urban area.

That's a pretty darn clear statement from the agency responsible for implementing Measure 49, which I trust infinitely more than Oregonians in Action.

They should have made clear, though, that the second option is for those who want four to ten homesites – the upper limit under Measure 49.

So OIA is wrong about Measure 37 applications needing to be re-filed. OIA is doubly wrong when it's said (under question 6):

In fact, the language of Measure 49 makes it clear that all Measure 37 claimants are going to have to re-file with the Department, and providing [sic] new information with their application.

(I can't help but observe that the legal geniuses at OIA – in their own minds at least – claim to be capable of accurately dissecting the language of Measure 49, but can't proof-read their own document about the new law. Guys, it should be "provide" not "providing.")

Again, this statement is contradicted by the DLCD question and answer above regarding the 1-3 homesites "express lane" option, which will be taken by about half of Measure 37 claimants: "In most cases no additional information would be required to process the claim."

Under a preceding question, #16, DLCD confirms this:

If the claimant chooses the "express lane," no additional information would be required (unless there was information missing from the claim under Measure 37).

The whole Oregonians in Action "Frequently Asked Questions" reflects a cynicism about state government employees that is deeply disturbing. And insulting.

I worked for the state of Oregon for more than ten years. State employees are like workers everywhere: some are better than others. But they're certainly no worse than the men and women in the private sector.

OIA's propaganda would have us believe that there are evil-doers at the Department of Land Conservation and Development who are rubbing their hands in gleeful anticipation as they prepare to screw over every Measure 37 claimant once Measure 49 goes into effect on December 6.

Well, if you're a Measure 37 claimant, here's my advice. Wait and see. Don't believe Oregonians in Action. Believe what you experience for yourself.

I'm confident that Measure 49 is going to be implemented smoothly. Sure, there will be some glitches. But that's inevitable when the mess that Measure 37 has brought us is being fixed.

Wait and see if you have to re-file your claim. Wait and see if you're asked for complex new information if you only want 1 to 3 home sites. Wait and see if it takes forever to process your chosen option under Measure 49, as OIA is claiming.

Wait and see. Most Measure 37 claimants are going to be happy with the new view Measure 49 is about to bring them.

Writer's strike gives us funny videos, at least

My wife and I already are tired of watching re-runs of The Daily Show and The Colbert Report.

Pretty soon we'll be reduced to desperate measures, like watching programming with actual educational value, such as the many nature and science shows stored up on our digital video recorder that we've been ignoring in favor of Comedy Central.

There's a few bright spots to the writer's strike, though. This YouTube video, "Not The Daily Show, With Some Writer," is terrific entertainment. Persuasive too.

Stick it to those corporate bastards, writers!

This other YouTube offering, apparently from The Colbert Show writers, isn't as funny. A good effort though.

Makes you realize the obvious: that Jon Stewart and Stephen Colbert couldn't work their satirical magic without the support of a whole lot of unseen and unsung writers. Hopefully they'll get their due as a result of the strike.

How I was blown away by a nuclear bomb

Whenever I fret too much about modern environmental degradation, I like to think back to the not-so-good old days of the 1950s when the United States conducted over 150 above ground tests of nuclear weapons.

Most of these were at the Nevada Test Site. In 1955 my mother, who was divorced, moved with me to Three Rivers, California. Three Rivers is in the foothills of the Sierra Nevada Mountains, on the other side of which lies Nevada.

Nowadays people worry over miniscule bits of contamination in our food, water, and air. Back in the '50s it was no big deal to set off honking large nuclear bombs above ground in the Nevada desert, spewing radioactive material all over the place.

I do remember concerns about us kids (I was six when we moved to California) being exposed to radiation in milk via cows that ate contaminated feed. But in general nobody raised much of a fuss over the testing.

After all, this was the height of the Cold War. We needed to make sure that our nuclear shield worked so the Commies couldn't take us over.

My brother-in-law, Bob, used to be a survival instructor in the Air Force. He gave me a parachute. It came in handy in the late '50s, when there was advance notice of a nuclear test on the other side of the Sierras.

Our local newspaper said that it was going to be big enough to generate a shock wave of wind that we'd be able to feel in the Kaweah River valley (the Kaweah's three forks give "Three Rivers" its name).

Shortly before the nuclear bomb was to be detonated I unfolded the parachute. I laid it out on our yard so the chute faced away from the mountains. I fastened the straps around my too-small nine year old body (I believe this test was in 1957 or 1958).

It was exciting. I can still vividly recall the whoosh as an intense blast of nuclear test wind carried over the mountains, down the river valley, and into the parachute. It filled up and pulled me along our back yard.

Wow! Nuclear bomb tests are fun!

Except for all the people who got cancer from the radiation. And their family members.

Fortunately, we've come a long ways from those "What, me worry?" days of nuclear ignorance.

But not nearly far enough.

Deer on LSD would be even worse

My wife is being driven crazy by a male. Par for the course, but this time he isn't me. It's a male deer, a buck. Or bucks. She doesn't know how many are doing what comes naturally to them this time of year.

Marking their territory. Which, unfortunately for Laurel, includes our ten acres in rural Oregon.

She's planted countless native trees on our property, protectively watering them during dry spells, netting them when they're young, spraying Deer Off in the fall in an effort to divert bucks' attention away from the enticing trunks.

After all, the bucks should have their eye on even more desirable life forms. The Wikipedia article on white-tailed deer says:

Males compete for the opportunity of breeding females. Sparring among males determines a dominance hierarchy. Bucks will attempt to copulate with as many females as possible, losing physical condition since they rarely eat or rest during the rut.

Well, that may be. But they sure take time out to rub on trunks with their antlers, all too frequently wrecking the tree.

The bucks favor deciduous trees, like maples, where there aren't any branches on the bottom four feet or so of the trunk. A small tree that bends must be especially rub-alicious, as these are where Laurel finds most of the markings.

Through some malicious deer sixth sense, the bucks have an uncanny ability to know which trees on our property have been planted, and which have grown up naturally.

They strongly favor the former, undoubtedly in an effort to drive Laurel – our neighborhood's Janie Appleseed – crazy.

The only good news in this annual buck Marks-A-Lot, which is more damaging this year for some reason, is that the deer aren't on LSD.

Today I browsed through a recent issue of New Scientist and came across an article about the craziest scientific experiments of all time.

#1, according to Alex Boese, is elephants on acid.

Indeed, the notion of tripping out with an elephant is more than a little disconcerting. I spent many enjoyable hours in the '60s watching walls melt and change colors. However, dropping acid with a 7000 pound bull elephant would seem to have a high probability of turning into a bad trip.

There's more than anyone needs to know about the experiment here.

The goal was to find out if LSD would induce musth in an elephant – highly aggressive behavior that's accompanied by (no surprise) hugely elevated testosterone levels.

Sadly, the main thing the scientists learned is that LSD can be fatal to elephants. Especially if you give them a dose that translates into 30 times the effective oral dose for a human of the elephant's weight.

I don't know how male deer would react to acid. They could very well go into a freaking tree-rubbing frenzy. But if they'd end up sitting around listening to Jimmy Hendrix, that'd be cool.

Anything to stop them from rubbing on tree trunks.

(Though not connected to the main theme of this post, I want to share some photos that I came across in the course of researching the buck-related subject of "big rack." Who knew that a big rack like that cost $400-750 ? Not for plastic surgery – for the antlers.)

Hardly any Measure 37 claimants will have vested rights

The battle to pass Oregon's Measure 49 has been won (62% of voters said "yes" to fixing Measure 37). Now the fight has shifted to determining which, if any, of the 7,500 Measure 37 claims around the state are vested under common law.

Vesting means that enough work has been done on a claim to allow it to continue under Measure 37, rather than Measure 49.

Yesterday Ralph Bloemers of the Crag Law Center released an excellent memorandum, "Transition to Measure 49 & Vested Rights." It's must-reading for interested citizens, state agencies, and local governments, along with a companion memo about the issuance of permits for Measure 37 development. Download crag_law_center_memorandum_on_vesting_11_9_2007.pdf Download crag_law_center_measure_37_memo_re_applicable_law_11_9_2007.pdf

Bloemers says:

The concept of "vested rights" is linked to the idea of "nonconforming uses." Laws passed by the Oregon Legislature allow existing uses and buildings that do not conform to new land use regulations to be continued as "nonconforming uses."

…The concept of "vested rights" has been defined by Oregon courts to address the situation in which a landowner or developer had begun construction of a particular land use, for example a residential subdivision, but before the project was completed a change in land use regulations prohibited that proposed use.

The basic idea is that at some point in the course of development, the nonconforming use has come into existence, even if it is not finished, and the use ought to be protected by the laws allowing, but limiting, the continuation of nonconforming uses.

This is a hot issue right now.

Friday a story in the Oregonian, "Claims stall until Measure 49 sorted out," talked about how officials, Measure 37 claimants, and concerned neighbors of claims are struggling to figure out what "vesting" means under Measure 49.

A uninformed Douglas County commissioner, Doug Robertson, wrongly believes that he's got it all figured out and can ignore Measure 49. Vesting is central to a dispute in Jackson County about a proposed Measure 37 rock quarry along the Applegate river.

And tomorrow's Salem Statesman Journal will run a story that, according to a front page teaser today, is about Measure 49 aftermath: "The voters have spoken on Measure 49, but it's still trench warfare over some claims that may or may not have the right to move forward."

[Update: the Sunday Statesman Journal story is "Some land-use claims remain in limbo." I'm quoted!]

So Ralph Bloemers' carefully researched legal memorandum comes at a perfect time to shed light on what vesting means under Measure 49.

Next week county officials will try to come to grips with this issue at an Association of Oregon Counties conference. The Crag Law Center memo should be front and center at their discussions.

I urge you to read the document yourself, via the PDF file link above. It doesn't answer every question about vesting (for example, whether this is a land use decision or a court decision seems to be up in the air).

But it comes close. The bottom line is that very few, if any, Measure 37 claims are going to turn out to be vested. Bloemers' final paragraph says:

The common law highly disfavors the establishment of nonconforming uses, particularly while a change in the law is pending. Regardless, the vesting, if any, is limited by the extent of the adaptability of the use for currently allowed uses. The expenditure test and other tests are also applicable to determining vested rights in this context.

The Oregon Supreme Court has ruled that "bad faith" is a no-no for a landowner trying to establish a vested right. On page 9 Bloemers has a section called "Racing to develop the property in order to beat the provisions of Measure 49 is bad faith."

Claimants considering whether to proceed under Measure 37 will need to satisfy the common law, in other words that they did not know or should not have known about the possibility Measure 37 would be modified by Measure 49.

The likely latest candidate date, given both the prior publicity and precedents elsewhere would be June 15, 2007 [when Measure 49 was referred to the voters]. Investments after that date may be considered investments intended to beat the clock and therefore not investments made in good faith.

But even if a Measure 37 claimant somehow wasn't aware of Measure 49 (in a previous post about vesting, I said they'd have to be in a coma or hermetically sealed in a cave for this to be believable), Bloemers argues that development investments supporting a conforming use cannot be counted toward vested rights.

What this gets at, in part, is that large subdivisions allowed under Measure 37 now are limited by Measure 49 to three home sites if they're on farm, forest, or groundwater limited land (4-10 home sites otherwise).

So drilling of wells, digging septic holes, road grading, surveying, and similar work generally would support the uses allowed under Measure 49 and wouldn't be considered vesting expenditures.

The memo has another section called "There can be no vested right to develop without development permits." This obvious requirement is going to come back and bite those Measure 37 claimants who rushed ahead with construction without getting required county building or state erosion control permits.

I've been talking with neighbors of a Measure 37 claim out on Sunnyview Road in east Marion County. Construction there didn't start until election day, November 6.

Now, I've heard, there's been five wells sunk, septic tank holes dug, a road roughed in, and erosion controls have been minimal. The neighbors are aghast that county officials have been allowing this to go on.

I was pleased to read in Bloemers' memo:

For projects where development is underway, the government agencies and local jurisdictions are well-advised to preserve the status quo and limit their liability by issuing stop work orders until a definitive and prompt resolution of these issues takes place.

County agencies should order the cessation of activities to determine vested rights or they will risk being in violation of law.

My sentiments exactly.

Hopefully Bloemers' excellent legal advice, tomorrow's Statesman Journal story, and next week's Association of Oregon Counties conference will combine to lead Marion County to do what should have been done the day after Measure 49 passed:

Stop all work on Measure 37 claims until vesting questions are resolved. Because it's clear that very few, if any, of the 7,500 claims will turn out to be vested.

So like I said before, stopping work on all claims will benefit both neighbors and claimants.

Neighbors don't want construction to continue beyond what Measure 49 allows. And Measure 37 claimants shouldn't want this either – unless their goal is to waste money on fruitless construction activities.

Post-election Measure 49 kudos and calumny

First, the kudos. Which I'm forced to offer to myself, since my marvelously precise prediction about how the vote on Measure 49 would turn out hasn't received the non-Brian praise that it so obviously deserves.

Back on November 2, I said that 63% of Oregonians would vote "yes" on 49. And so it (almost) came to pass on November 6, with the latest results showing a 62% approval.

So Brian, congratulations.

Why, thank you, Brian. On behalf of Brian, who happens to be me, I accept this public acclamation and all that comes with it.

Dude, this is just a freaking blog post. It's barely "public." And nothing comes with it, except the satisfaction that comes from giving praise where praise is due. Namely, from me to you, Brian to Brian.

Now, the calumny. Which is beginning to show up from die-hard Measure 37 zealots who refuse to recognize that the people of Oregon overwhelmingly approved the fix of Measure 49.

Land Use Watch just reported that a Douglas County commissioner is ignoring the law. He's spouting off that every Measure 37 claim is vested, so can continue on as if Measure 49 doesn't exist.

That's absurd. Read my recent post about vesting and you'll see why.

This Roseburg newspaper story shows that both the county planning director, Keith Cubic, and the commissioner, Doug Robertson, either are clueless about vesting or (more likely) are letting their political views interfere with their duty to uphold the laws of Oregon.

That's disturbing. So I'll end on a positive note – more praise of me.

In my pre-election prediction post I said:

We're not going to see the same sort of urban-rural split as in 2004. I'm predicting that a majority of Oregon counties are going to say "Yes" to Measure 49.

Check out this map of the counties where a majority of voters said "yes" or "no" to Measure 49. Twenty-two counties are in the Yes camp, and just fourteen in the No.

Right on, Brian! Thank you, Brian.

Vesting Measure 37 claims under Measure 49

Measure 49 has passed. It's the law of Oregon. Measure 37 has been fixed – not perfectly, but well. So what happens now with Measure 37 claims?

In many cases the legal concept of "vesting" will come into play. With the passage of Measure 49, Measure 37 claimants are going to take one of three paths:

(1) The "express lane" if a claimant wants 1 to 3 home sites. Straightforward. Easy. Hardly any questions asked by the state Department of Land Conservation and Development (DLCD). Claims on high value farmland, forest land, or groundwater limited land will have to take this path.

(2) The "conditional path" if a claim isn't on farm, forest, or groundwater limited land and wants 4 to 10 home sites. The claimant will have to demonstrate a loss of value from a land use regulation that justifies the number of new home sites requested.

(3) The "vested path" if a claimant has made sufficient progress on developing the claim to have vested their right to complete and continue development.

Under the third "vested path" option a claimant would continue on under the provisions of Measure 37.

Since Measure 49 offers substantial benefits to claimants – the ability to transfer development rights to a buyer, and for a spouse to inherit a claim that wouldn't pass on to him or her under Measure 37 – likely only those who want a subdivision with more than 10 home sites will try to go down this path.

This chart shows that there are less than a hundred Measure 37 claims, out of 7,500 statewide, that have filed an application to build a subdivision with more than ten home sites.

But these large subdivisions obviously would have a large impact on the surrounding area. In most cases concerned neighbors will be as interested in stopping a claim from becoming vested as the Measure 37 claimant will be in establishing a vested right.

Common law is the foundation for vesting decisions. There isn't any state statute that lays out the criteria for determining whether a landowner is vested or not-vested. Rather, court cases in this area have established precedents that now form a body of legalities called "vesting common law."

The state of Oregon's land use agency, DLCD, has put up questions and answers about Measure 37 and Measure 49 that are based on legal advice from the Department of Justice. Here's the Q & A about vesting (#20):

It's been said that if Measure 49 is approved by the voters, development that has vested under common law would not be affected. What is vesting, and when does a development vest under common law?

In general, the right to complete a use of real property when the law changes so that the use would otherwise be unlawful, is known as a "vested right." Under decisions of the Oregon courts, whether a person has a vested right to complete a use (despite a change in law) is determined on a case-by-case basis by considering the following factors:

• The amount of money spent on developing the use in relation to the total cost of establishing the use;
• The good faith of the property owner;
• Whether the property owner had notice of the proposed change in law before beginning the development;
• Whether the improvements could be used for other uses that are allowed under the new law;
• The kind of use, location and cost of the development; and
• Whether the owner's acts rise beyond preparation (land clearing, planning, etc.).

These factors set a high bar for a Measure 37 claimant to jump over in order to be vested. A really high bar.

As discussed in a memorandum by attorney Ralph Bloemers of the Crag Law Center, the good faith requirement for vesting means that once Measure 49 was referred to the voters in June, claimants couldn't rush ahead with construction in an attempt to get vested before a change in the law took effect.

In Oregon, the law on nonconforming uses and vesting provides that a landowner may not take steps to "vest" when the owner has notice that the land use laws may change. Vesting of a non-conforming use is dependent on, among other things, "the good faith of the landowner, whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements." Holmes at 198.

Pursuant to Holmes, a Measure 37 claimant who has received a waiver and applied for and received a permit to develop property may not take steps to "vest" these rights by developing the property in the interim period.

The other factors listed by DLCD are other significant hurdles to vesting. And naturally any construction work, made in good faith or not, has to be legal. If necessary permits haven't been obtained before starting work, a Measure 37 claimant can kiss that hoped-for vesting expenditure goodbye.

Here's what some "headnotes" from the Oregon Land Use Board of Appeals has to say about vesting expenditures:

37. Vested Rights. Distinguishing those expenditures properly considered in a determination of the "ratio of expenditures" under Holmes factor (7) requires (1) identification of the time at which the expenditures were made, (2) an analysis of whether the expenditures were made in good faith and lawful when made, and (3) a determination regarding whether the expenditures are directly related to the proposed use of the property. DLCD v. Curry County, 19 Or LUBA 237 (1990).

There's a lot more to say about vesting under Measures 37 and 49, and I'll be putting up more information on this subject as the post-Measure 49 policies in this area become clearer.

My main goal here is to provide some basic facts about vesting for both neighbors of large Measure 37 subdivisions and the claimants themselves.

Your interests, really, aren't as divergent as it might seem. Neighbors don't want construction to continue beyond what Measure 49 allows. And Measure 37 claimants shouldn't want this either – unless their goal is to waste money on fruitless construction activities.

Hopefully the state of Oregon and individual counties soon will issue crisp, clear, coherent guidance on how to handle Measure 37 vesting cases under Measure 49.

An initial important step is to require that construction work stop on claims that haven't been successfully built out with a building permit before Measure 49 became a pending law (June 15, 2007).

I don't believe there are any Measure 37 claims in this category. Most fall into another category: those that have a Measure 37 waiver and/or a building permit and haven't done any construction or building prior to November 7, the day it was known Measure 49 had passed.

These claims clearly aren't vested.

The final category is made up of claimants who had gotten little or nothing started before June 15, yet made a "rush to construction" between June 15 and November 6 (with the necessary permits).

It will be almost impossible for this last category to prove that they're vested, since they'd have to show that they had no knowledge of Measure 49's impending land use law changes. You'd have to be in a coma, or hermetically sealed in a cave, for this to be believable.

So that's why the presumption needs to be that Measure 37 claims aren't vested. Construction has to stop while a prompt and definitive decision about vesting takes place.

[Update: Check out my new "Hardly any Measure 37 claimants will have vested rights" post that discusses an excellent memo on vesting by Ralph Bloemers of the Crag Law Center.]

Reading “tea leaves” of Measure 49 outcome

Avid proponents of Oregon's Measure 49 that we are, it's hard for my wife and I to pass the remaining hours until the votes are counted without worrying about the outcome.

So I've been consulting some cyberspace tea leaves. They've helped me reaffirm my previous prediction that this fix to Measure 37 will pass by a 63% to 37% margin.

The only non-affirming omen that I've gotten was my solitaire loss a few minutes ago after I asked my computer, "Give me a win if Measure 49 will pass." The cards didn't turn out for me. But then, they usually don't. So I'm going to discount this flimsily superstitious forecasting technique.

Somewhat more solid is blogger Jack Bogdanski's "exit poll" on Measures 49 and 50. Leaving aside the (not so minor) quibble that these aren't randomly selected poll-takers, I'm pleased that at last look Measure 49 was getting 70% "Yes" and just 27% "No" out of 932 votes.

On Jack Bog's blog Measure 50 is leading 56% to 41%, which also seems believable.

As of 12:30 pm today, the Multnomah County voter turnout is up to 47%. That's a jump from 42% on Monday. Peter Bray has projected a 52-55% turnout. Maybe a little high, but it's not going to be hugely lower than the statewide voting percentage – which bodes well for Measure 49.

On the intuitive-emotional front, we're going to a Yes on 49 election night party this evening where I've been volunteered to make the coffee in a large coffee maker, which I'm clueless about. My modus operandi is to make java way stronger than most people like it.

So I feel more anxious about making coffee tonight than I am about the Measure 49 outcome. Another good sign. (If 49 passes early in the evening, I'm hoping people will celebrate by drinking so much wine they won't notice how bad the coffee tastes).

Lastly, thanks to Bray I played around today with an interactive viewer of Measure 37 claims that indeed is amazing.

Here are the claims in the south Salem area where we live. The Laack subdivision claim that we've been fighting, along with many other neighbors, is the three chunks of blue near the bottom to the left of the I-5 symbol.

And here's an overlay of groundwater restricted areas, the big wash of blue. Almost every Measure 37 claim threatens the water supply of neighbors, which goes a long way toward explaining the resistance to them.

Multiply this exceedingly worrisome pattern of Measure 37 development all around the state, and you have 7,500 excellent reasons to vote "Yes" on Measure 49.

I'm confident that the eyes of Oregonians have been opened to the dangers of Measure 37. But, hey, I could be wrong.

I doubt it, though. If I can figure out how to make the coffee tonight, I'm expecting to have some happy hours ahead of me.

[Update, 5:45 pm: The No on 49 campaign has no parties planned. Another positive tea leaf.]

My big Measure 49 media exposure day

Oh, yeah, I'm hot. Only media-wise though. And just for a day.

But I'm pleased with the Sunday exposure in Steve Duin's Oregonian column and the Salem Statesman Journal's editorial page, because whatever exposes the pluses of Measure 49 and the minuses of Measure 37 is good for Oregon.

Duin, an ex-sports columnist, returned to his roots and called his piece "At DEQ, the refs swallow their whistles."

It's about my battle to get the state Department of Environmental Quality to enforce its 1200-C (stormwater/erosion control) permit rules. The Measure 37 subdivision next to our neighborhood started to build roads without the required Marion County and DEQ permits.

But five days of illegal road construction resulted in the developer being able to apply for the permits with no penalty. That's wrong.

Duin says:

Mark Riskedahl, executive director of the Northwest Environmental Defense Center, likens this to a rush to provide a license for someone caught driving without one.

DEQ has rules to ensure folks operate in a manner that's environmentally responsible, Riskedahl said: "But if you disregard that scheme and begin your project, not only will DEQ not hold you accountable, but they'll shield you from the legal recourse citizens have against you.

"It fosters disdain for environmental protection. It sends the message: Go ahead and start (developing). If anyone is paying attention and catches you, we'll step in and take it from there."

The link to Measure 37 in all this is that the developer, Leroy Laack, is trying like crazy to get vested before Measure 49 passes and limits him to three home sites on his groundwater limited high-value farmland.

I've got some problems with this. One, Laack and his co-owners should have gotten the required permits before they fired up their D8 Caterpillars and started building the subdivision roads.

Two, DEQ and Marion County should have penalized the Measure 37 claimants for cutting legal corners, instead of allowing them to go through the normal permit application process after they began construction work without the permits.

My other media exposure today was a guest opinion in the Salem newspaper, "Restore fairness of property rights." I wish the Statesman Journal had published it longer before election day (November 6), but there's still time to vote Yes on Measure 49 if you drop off your ballot instead of mailing it.

My grand finale in the piece was:

Measure 49 will restore fairness to Oregon's land-use laws. It will let Measure 37 claimants have three homes on high-value farmland, forestland and groundwater-limited land (10 homes otherwise). The rest of their property still can be used for other purposes. The Liberty Road acreage is perfect for a multi-million-dollar vineyard.

Farmers can keep on raising crops. Timber companies can keep on growing trees. People with wells can keep on turning their tap and have water come out.

Vote yes on 49.

This was followed by a description of myself that I gave over the phone to a staffer from the newspaper. She must not have heard the "b" in blogger when I told her that I was a "retired blogger, writer, and land use activist."

That turned me into a "logger" in the print version. Pretty cool and very Oregonish. Well, I do have a small Stihl chain saw that I've actually used to cut down some (small) dead trees.

The online version has me as a "blogger," so my lumberjack days just lasted a few hours.

Still, I can always show my grandchild the published page and make up stories about my adventures in the Great Northwest woods.

And, hopefully, also tell her truthfully that I played a small role in passing Measure 49 and saving Oregon farm and forest land from being asphalted over.

My prediction on Measure 49 vote: Yes

It's time for this avid Measure 49 supporter to go out on a limb and make a prediction about how Oregonians will vote next Tuesday.

I say it'll be 63% "Yes." I picked that percentage partly because it is higher than the 61% that favored Measure 37 in 2004.

I believe that Oregon voters have had their eyes opened about what Measure 37 has brought the state: unfairness, divisiveness, asphalted-over farm and forestland.

This is going to produce an electoral turn-around. We're not going to see the same sort of urban-rural split as in 2004. I'm predicting that a majority of Oregon counties are going to say "Yes" to Measure 49.

Consider our Republican leaning rural Marion County neighborhood. A nearby Measure 37 subdivision on groundwater limited farmland that threatens area wells and springs has created an overwhelming swell of support for Measure 49.

My wife and I haven't heard of anybody who is opposed to Measure 49. That's amazing, really. Even die-hard conservatives recognize that one person's property rights end when they interfere with someone else's. Like, the right to not have your well go dry.

So the way I see it, each of the 7,500 Measure 37 claims around the state has generated a lot of "Yes" votes for Measure 49.

That's certainly true for our neighborhood, where hundreds of people are for this Measure 37 fix and just about the only people against it are the (absentee) owners of the subdivision property.

Here's some more evidence of non-metro support for Measure 49. The Roseburg News-Review, Baker City Herald, and Madras Pioneer newspapers all have endorsed a "Yes" vote. Other rural papers have also.

The News-Review had this to say:

We have a beautiful state with public ocean beaches and plentiful resources from our farms and forests. Many here in Douglas County continue to earn their livelihood farming, ranching and logging.

So do many others around the state. Under the provisions of Measure 37, these folks could find themselves surrounded by large housing subdivisions teeming with people who decide they don't like hearing chain saws at 4 a.m. or having crop dusters drop chemicals close to their backyards.

That's why Measure 49 modifies Measure 37 to more closely align it with what voters said they wanted when it became law in 2004.

This helps explain why I'm not worried about the greater voter turnout so far in rural counties. I don't think this will produce much, if any, of a rural tilt against Measure 49.

As regards the low statewide voter turnout, this shouldn't work against Measure 49 either. At the risk of sounding elitist, I'd just as soon not have uninterested voters cast an uninformed ballot.

Measures 49 and 50 both require some study to fully understand, though the ballot titles alone should be sufficient to stimulate an enthusiastic "Yes" vote.

Lastly, even if rural voters are less likely to favor Measure 49, we have to remember that a few large counties dominate the election results. I perused the Election Division's daily and cumulative voting totals by county (which are current up to yesterday).

While the tri-county area (Multnomah, Washington, Clackamas) lags behind the statewide 32% turnout as of November 1, here's the thing:

Eight of Oregon's 36 counties account for 68% of the votes that have been cast. So far, there are 426,201 votes from Multnomah, Washington, Clackamas, Marion, Benton, Lane, Jackson, and Deschutes counties, out of a total of 628,350.

So even though it's great that Wheeler county has a 46% turnout to date, and Harney county 44%, those 2,200 ballots are just a blip on the statewide voting radar screen.

All that said, I could be wrong. We'll know November 7.

If you haven't voted yet, take five minutes and do it! Now. There's still time to mail your ballot tomorrow and have it arrive in time to be counted on Tuesday. It just costs the price of a first class stamp.

Democracy is a bargain.