I must have turned into a major land use geek.
Why else would my retired body find itself in a courtroom at 9 am on a perfectly good relax and drink coffee at home December morning, watching attorneys argue another Measure 37 vested rights case before the Oregon Court of Appeals?
I wanted to attend the hearing because Sean Malone and Ralph Bloemers were representing Friends of Polk County and some neighbors of a mixed use (residential and commercial) Measure 37 development that had been stopped by passage of Measure 49 in 2007.
Sean and Ralph also have been the attorneys for our neighborhood's Keep Our Water Safe Committee which has been successful in fighting another Measure 37 subdivision. I wanted to send Sean some positive vibes via my presence, since this was this first time he'd argued a case before the Court of Appeals.
He did great. And I found the back-and-forth between the attorneys and three-judge panel of the Court (Judges Ortega, Landau, and Sercombe) quite interesting.
Best of all, the same female bailiff who chastized me for reading a magazine when I attended a hearing on another Measure 37 vested rights case back in January found nothing amiss in my behavior this time.
The ruling in that case, known as Friends of Yamhill County, was released on September 1, 2010. It reversed a Yamhill County approval of a 10-lot, 39-acre subdivision. At last week's hearing I learned that the Court of Appeals had issued rulings on a couple of other Measure 37 vested rights cases the day before.
I'm pretty sure the attorney who argued on behalf of the would-be Polk County developers was Steve Janik. He was appealingly bold, as early on in his argument he flat-out said that the Court of Appeals had been making mistakes in their vested rights rulings.
The judges didn't bat an eye (from what I could see). Judge Sercombe, in fact, said something like "Please explain." Which Janik did, though not all that persuasively, in my opinion.
He was focused on an issue that was central in one of the recently-decided cases, Steve Davis v. Jefferson County.
The Oregon Supreme Court said in Holmes that the ratio test is one of the factors to be considered in deciding whether "a landowner has developed his land to the extent that he has acquired a vested right to continue the development." (This is the ratio of expenditures incurred to the total cost of the project.)
In Davis, the Court of Appeals reversed and remanded Jefferson County's approval of a vested right application, saying:
The county's alternative finding that the project investment was still substantial, even assuming that homes were to be included in the total cost of the project, is speculative. The parties point to no evidence in the local government record of the actual projected construction costs for the homes to be built. Therefore, the reviewing court should have remanded the decision to the county to determine the extent and general cost of the project to be vested and to give proper weight to the resulting expenditure ratio in the totality of the circumstances of this case.
Philosophically, practically, and linguistically Janik was on shaky grounds when he argued that, instead, "substantial" simply means a lot. That is, it isn't a ratio; it's a plain number.
He told the Court of Appeals judges that there's a large difference between someone who spends $1,000 on a $15,000 cabin in the woods, and a company like Intel that spends $100 million on a $1.5 billion manufacturing facility -- even though both have incurred 1/15 of the total cost of the project.
Meaning, $100 million obviously is substantial, while $1,000 isn't. That doesn't make sense, though, in the context of vested rights law. It shouldn't matter how rich a person is, or how much money they've been able to put into a project.
To a poor person, $1,000 can be a significant amount of money. To a huge corporation, $100 million can be loose change. This is why the Court of Appeals has been correctly demanding that vested rights decision-makers consider the ratio of expenditures to total costs, not a stand-alone number.
The other recently-ruled-on case mentioned at the hearing was Norwood v. Washington County. The Norwoods didn't fare any better with their vested rights arguments in the Court of Appeals than they did in Washington County Circuit Court.
They didn't get a Measure 37 waiver from the state before December 6, 2007, when Measure 49 went into effect. They also went ahead with development work on their 28-acres of EFC ("Exclusive Forest and Conservation") land without required permits for logging, grading, and electrical work.
No permits and no state waiver, no ability to be vested, said the Court of Appeals.
Our disposition of the case makes it unnecessary to decide whether plaintiffs separately failed to qualify for a vested right to complete and continue their residential use of the property under section 5(3) because their use was unlawful or in bad faith in the absence of the required predicate land use permits and Measure 37 waiver from the state. See Mason v. Mountain River Estates, 73 Or App 334, 698 P2d 529, rev den, 299 Or 314 (1985) (vested rights not established by expenditures before final development approval by county); Cyrus v. Board of County Commissioners, 226 Or App 1, 18-20, 202 P3d 274 (2009) (Sercombe, J., concurring) (vested rights established only by lawful actions and good faith expenditures).