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.

Comments

[Richard]

Brian: they have to. Patti told us on TV that passage of 49 would lead to an erosion of all of our civil rights.

She and Sam are being courageous in standing up to the mistaken vote of the people.

Patti and Sam's concern for our civil rights requires them to act as they did.

We need to remember this and reward them appropriately.

We need a larger commission, a commission that represents the voters, commissioners who represent districts, not the development community.

[Rain]

Most everywhere, if you look at who is on those commissions, it's real estate people and developers. They run for the positions when often nobody else wants the jobs-- plus they have the money behind them to put out advertisements. This is not about freedom. It's about money for a few like so much else.

[Wayne]

Sam and Patti being voted out of Office sounds like an excellent Idea to me. The sad part is that these County Commissioners are acting against the advice of their Department's Legal Counsel !!! WHY ???

[Elaine]

Wow, Marion County Commissioners have their heads in the sand. On Nov.15th Clackamas County Commissioners voted to issue notices for any Measure 37 permit applications before Dec. 6th. This was sent from the Commissioner's to the county departments. "Until the effective date of Measure 49 on December 6th, all development applications or permit for projects previously receiving land use approval under Measure 37 must include a notice to be signed by the development’s applicant that the county may be placed in the position on December 6th of placing a stop work order due to a permit granted between November 15th and December 5th. If acknowledgment of the notice is not signed by the applicant, staff is directed to not approve the permit or development action."

[Elaine]

Brian, I thought you would be interested that a few weeks ago Pete's Mountain Homeowners Assoc. received notice that LUBA has remanded the Clackamas County Hearing Officer’s decision on Tumwater Estates Subdivision (41 homes) based on 4 of the 8 issues that PMHA raised at LUBA where it argued that the Hearing Officer had made decisions in error.

The four issues LUBA sustained are:
1.) concern over development in areas of declining groundwater;
2.) concern about fire suppression;
3.) concern over the length of the cul-de-sac (they didn’t meet the County ZDO requirements);
4.) preservation of the old, 46” diameter Oak tree at the corner of Schaeffer & Mountain Roads.
Now the County will not be issuing any additional permits on this project [Tumwater] pending resolution of the remand and/or M37/49 issues.

However, we are still waiting to hear from the County on vesting criteria. Tumwater had graded and graveled roads before it stopped.

[Richard]

What I fail to understand is that if they could not establish "vested interest" when HB 3540 passed, how can they do it now?

If you know that a change may occur in the law, anything you do AFTER you are aware of the pending change, cannot have been done in good faith. Good faith is a factor in deciding whether an action can contribute to vested interest.

Laack probably does not care about the land now and is more likely cutting off his nose to spite his face.