A few days ago the Portland Oregonian ran a story about a judge's ruling that said "no way" to a 43-lot, 217 acre subdivision that threatened water supplies in our neighborhood.
A Marion County judge has ruled that property owners who started building a South Salem subdivision before voters limited such development didn't meet the legal guidelines that would allow them to finish the project.
The ruling reverses a decision by the Marion County Board of Commissioners, who in July 2009 voted 2-1 that Leroy and Jean Laack and five associates had a "vested right" to continue building a 42-unit subdivision in the South Salem hills.
Neighbors, the conservation group Friends of Marion County and the Keep Our Water Safe Committee protested the county's decision and took it to court. Among other things, opponents argued that the subdivision would require so much water that it would threaten existing wells in the area.
I was disappointed that the story didn't mention the Crag Law Center, because attorney Ralph Bloemers was key to our legal success -- along with Eugene attorney Sean Malone, a protege of Ralph's who took the lead in writing the Circuit Court briefs.
The Crag Law Center web site also publicized our victory in "Local Citizens Praise Victory Protecting South Salem Hills from Sprawl."
Ralph Bloemers, a staff attorney with the Crag Law Center, stated: “Many people sought to take advantage of Measure 37 and develop large residential subdivisions, commercial developments and gravel mines. These proposals threatened neighboring property rights, water supplies and undermined the efforts of people with more reasonable goals. This decision protects neighboring property owners and preserves Oregon’s valuable agricultural capabilities.”
The subdivision was going to be built on high value, groundwater limited farmland. There are plenty of places where houses can be built in Oregon without paving over irreplaceable agricultural soil.
Here's a photo which accompanied the Crag Law Center press release that shows Laurel and me standing on Liberty Road in front of the rolling hills where 43 homes were on their way to being built. (As a blogger, it's appropriate that I have my mouth open.)
The 1000 Friends of Oregon blog also gave us a shout-out.
Well, back at you 1000 Friends. We couldn't have succeeded without your help. Friends of Marion County, an affiliate of the statewide organization, supported our fight -- as mentioned in the Oregonian story.
I enjoyed perusing comments from readers (including one from Eric Mortenson, who wrote the story). Since the story couldn't include all of the facts about Judge Johnson's decision, some people had misconceptions about it.
Accordingly, I added a comment of my own:
Mortenson had to leave out some key facts in his short story. (1) The would-be developers spent $84,000 on road construction even though they didn't have required permits. Legally, Judge Johnson said this needed to be subtracted from the allowable "vesting expenses."
(2) Based on an Oregon Supreme Court ruling and other case law, about 7% of the total cost of development needs to be spent on a project before it passes the "ratio test." Here, Laack and his co-owners only spent about 3%, even assuming an unrealistically low total cost.
(3) In line with the above, Johnson said that $18 to $20 million was the true total cost of development based on the owners' stated plans for the project. (Later a low-ball estimate was cooked up in an attempt to get vested.)
(4) Several Marion County Circuit Court judges recused themselves from this case, probably because they had some past connection with the county Board of Commissioners. So Johnson, a retired Multnomah County judge, was brought in by Marion County Circuit Court to hear the case.
My memory failed me when I wrote the comment, since actually Judge Johnson said that the total cost of development, as the subdivision was originally envisioned prior to the passage of Measure 49 in 2007, was $22 million, not $18 to $20 million.
So the ratio of actual legal expenditures to the total cost of development is about $400,000 : $22,000,000, or 1.8%. Not much. If somebody only had completed less than 2% of a 1000-piece jigsaw puzzle (20 pieces or so), would it be valid to say "They've done a substantial amount of work on it?"
No. This is one of the reasons Judge Johnson correctly ruled that the subdivision didn't have a vested right to continue development.
I'll end with someone else's comment on the story that contained some wise observations about the rights of people already living in an area.(However, the commenter didn't realize that a "municipal water system" couldn't be built in our area, since we are five miles from the Salem city limits; water for the subdivision was going to have to come from the already depleted aquifer lying under the 217 acres):
It might be a big pile of money they already spent, but nonetheless it is reckless and irresponsible to develop enough housing units on a piece of land that it would affect well-water supplies for existing neighbors.
If the project had gone forward and drained these wells to unusable levels, would neighbors have grounds for a lawsuit against the developer? The new homeowners?
Would the new homeowners agree to abandon the subdivision and replenish the water supply to undo the damages against the existing neighbors?
Would the developer (who would no longer be the property owner) or the new homeowners foot the bill for a municipal water district, to relieve the pressure on the ground water supply for nearby neighbors?
Or would groundwater supplies be so far gone by the time anybody took action that the neighbors would have to pay to connect their houses to this unpaid-for and not-yet-built municipal water supply? Would those costs be paid for by the developer? The new homeowners?
Would the developer or new homeowners pay for nearby residents to relocate when it's determined that the costs of creating said municipal water district infrastructure is far too great to be practical?
Why is that a landowner who intends to recklessly develop property in a fashion that will impose very tangible negative externalities against surrounding landowners is treated as a "victim"? If this development had been allowed to move forward, and people actually bought and occupied the housing units, the true victims would be the surrounding landowners whose governing laws failed to protect them from the very thing those laws were written to prevent.
This isn't the kind of thing you just "let happen" and allow litigation to solve subsequent problems later. Some problems can't be practically resolved later.