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.