Measure 37 fight gets us on the 11 o’clock news

Whew. After being relegated five times to the early KATU news programs, our fight against a Measure 37 subdivision finally made the prestigious 11 o’clock program last night.

Thank you, Channel 2. Love you. (Though my “Local Portland news focused on fluff and crime” post still holds, notwithstanding the 1:45 devoted to our serious story).

Here’s the YouTubed news clip of the Marion County Planning Commission decision on the 217 acre subdivision application.

Note my concentrated focus on the camcorder with which I videoed the proceedings. It’s healthy for public officials to know that their deliberations and decisions might appear on the Internet, as is happening with the overly secretive Virginia legislature.

The Statesman-Journal also ran a story on the decision. Which was pretty complicated. We’re still digesting the ramifications of the final Planning Commission motion that was approved 4-3. (Read this previous post to better understand the following).

--five acre minimum lot size is required for the subdivision
--the big 92 acre lot can be reduced to 80 acres, if desired by the developer
--only one house can be built on the 80 (or 92) acre lot
--that leaves up to 137 acres for the subdivision (original 125 acres plus potential 12 acres from the big lot)
--which means a theoretical maximum of 28 homes can be built (137/5 = 27, plus one on the 80 acre lot), though roads and other infrastructure would reduce the available acreage
--any attempt to partition the 28 lots would trigger a hydrogeological study (not review) of the entire property
--a hydrogeological review must be conducted now
--both a conceptual and detailed approval of the application was passed (no additional public hearing required)

Basically, we’re happy. Not ecstatic. Leroy Laack originally wanted to build 80 homes on the property. After his geologist told him there wasn’t enough water, the plan changed to 43 homes. Now it’s down to a maximum of 28.

Better for our neighborhood’s limited groundwater supply. However, the state Water Resources Department says that any further development in the area threatens existing wells. So we wanted the Planning Commission to require a more extensive groundwater study before approving the application.

Measure 37 has created a mess. That was evident last night. The commissioners talked about how this EFU (exclusive farm use) land never was intended to become a subdivision. So when Marion County laid the foundation for its groundwater ordinance, those 217 acres weren’t part of the area that was studied.

People bought property here figuring they could trust in fair and equitable zoning practices. If they built a house adjacent to farmland, they assumed it wouldn’t change into a subdivision without going through an open, deliberate, rational planning process.

Measure 37 took away that assumption. Which is why it needs to be suspended by the legislature and governor until fairness is restored to Oregon’s land use system. We and our neighbors achieved a halfway acceptable outcome yesterday.

But this state can do a lot better than “halfway.” Sign the Fix Measure 37 petition if you haven’t done so already.

Comments

[torridjoe]

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?

[Brian]

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.