Measure 37 bulldozers roll as Marion County ignores Measure 49

Today KATU's Salem bureau filmed an excellent story about Marion County's outrageous decision to approve a construction permit for a Measure 37 subdivision just nine days before Measure 49 will make it illegal.

Laurel and I were interviewed for the story.

Melica Johnson and Dino, her cameraman, had us stand outside on our deck – where we were pleased to talk about how crazy it is to let bulldozers tear up Oregon farmland for a large subdivision when 62% of Oregon voters said "No!" to this on November 6.

Here's my YouTube video of the two and a half minute story, which I titled "Marion County pretends Measure 49 doesn't exist."

One of the three Marion County commissioners, Janet Carlson, makes a lot of sense in her segment. She recognizes that just because Measure 49 doesn't take effect for eight more days, it's crazy to pretend that a big change in Oregon's land use laws isn't coming.

I told Melica that this is akin to a couple getting engaged.

Voters have decided that they're going to "marry" Measure 49 on December 6, when it goes into effect. Now we're in an "engagement" period, when government agencies should be working toward a smooth transition from Measure 37, which Measure 49 fixes.

Commissioners Patti Milne and Sam Brentano, however, prefer to keep on doing the same old thing: issue construction permits, even though the roads being constructed will be illegal on December 6.

So Marion County is spending taxpayer money approving and overseeing work that almost certainly will have to be undone. My understanding is that wiser counties, like Washington County, are only approving permits for Measure 37 uses that will be legal under Measure 49.

I got in a next-to-last word in the KATU story:

It just seems funny that we'd have to go to court to force the county to enforce the law.

Well, it isn't funny as in "humorous," but rather as in "ridiculous." But this is what our neighborhood's Keep Our Water Safe committee will have to do unless Marion County issues a stop work order on its own December 6, which we're hoping will happen.

Melica had the last word, quoting one of the commissioners as saying the situation is akin to a speed limit change. People don't drive at the new speed until it goes into effect.

This bad analogy reflects the poor understanding Milne and Brentano have about what's at stake here. Driving a car at either 60 mph or 70 mph doesn't produce any lasting effects. Bulldozing irreplaceable Oregon farmland for road construction does.

Voters have said that they don't want large subdivisions built on groundwater limited farmland, like the Laack subdivision property. They want this land protected by allowing only three home sites on six acres of it, not the 42 home sites on 125 acres that's been planned.

Approving a construction permit on November 28 to tear up ground that will be protected on December 6 – that's crazy. Hopefully Marion County voters will remember this when Milne and Brentano run for re-election.

Comments

[Amused in Salem]

Brian...let's pretend that the voters of Oregon just passed a measure to bulldoze your house. 62% of Oregonians thought it would be a great idea to raze your dwelling to the ground without compensating you. In the measure, this mandated bulldozing would take place on January 1st.

Under your logic, it would be fine if we fired up the demolition crew on December 15th, because jumping the gun by two weeks doesn't really matter when it reflects the will of the voters. What's an extra few days? I'm sure you and Laurel would understand, right?

[Brian]

Amused in Salem, you don't understand the logic of the situation. There's a difference between not doing something that will be prohibited at a later date, and doing something that will be allowed at a later date.

The work on the Laack subdivision will be prohibited on December 6. So the work being done now should be reversed once Laack is determined not to be vested. In other words, Measure 49 says that the work shouldn't happen, yet it is.

In your example, a new law says that destruction of a home should happen. If the homeowner wanted to destroy it ahead of time, that'd be fine. But almost certainly the homeowner wouldn't. And government shouldn't be able to do something ahead of time that would have irreversible consequences (the home being destroyed).

See my point? Laack is choosing to go ahead with construction. Marion County just gave him that option. So if you had said that the homeowner could choose to bulldoze his home ahead of when the Bulldozing Law goes into effect, I'd say "sure, why not?"

Again, the difference between the situations is that Marion County is allowing something to physically happen that won't be permitted on December 6. That's not the same as what we believe should have occurred: doing nothing (by not issuing the permit) because none of the work to be done under the permit is allowed under Measure 49.

Pretty deep thoughts. But I hope you get what I mean.

[Amused]

Brian, while I appreciate your passion for the situation at hand, it is intellectually dishonest to claim the work is not valid under Measure 49. The standards for vesting have not been determined at this point, and the various legal drafts that are floating around are neither binding, nor intended to be guidance for local governments. Even DEQ has said that permits issued under 37 will continue to be valid until December 6th. To be valid beyond that date, the claimant must show a local land use decision that affirms vesting. The bottom line is that Measure 37 is the law of the land...until December 49 takes effect. Sure, if I were the developer, I wouldn't want to pour money into a project that was so uncertain. But it's not government's role to tell folks how to legally spend their money - at least it shouldn't be. I know you think you know better, and so do a few other folks, and you are within your right to express your wishes. But if I were in your shoes, I'd simply insist that Measure 49 was enforced as fairly as Measure 37. Anything more and you will get painted as having a double standard.

[Richard]

Amused In Salem:

For the Laack construction to be legal, the construction must meet the concept of "vested interest." If vested interest does not exist, what they build will be illegal. Would you buy or finance property that was illegally constructed?

Vested interest does not have a bright line definition. Brian has discussed this and has posted information about vested interest. Brian should probably repost this well-written advice.

I think for the Hines' and their neighbors, the part of vested interest that applies is work that has been done in good faith. Good faith is a factor in determining whether vested interest exists, and therefore the legality of any property they create and wish to sell.

The Court has stated that any work a property owner does, knowing that such work may well be found to be illegal, does such construction in bad faith. The moment HB 2540 passed, and the public was on notice that a special election would take place is a bright line. Any work done after that date cannot count toward common law vested interest.

The Laacks knew there would be an election. Any work they did between the date of passage and the date of the election was work done in bad faith.

The County Commission is complicit in that they have enabled the Laacks' bad faith, by acting as if they can determine the standards of common law vested interest.

If I were the Hines or their neighbors, I would put the world on notice, specifically the Laacks, the Commissioners, the finance world and all local realtors, that if there is any diminution of water for the existing property owners that follows from the work the Laacks do, that they will sue the hell out whomever they can.

They key date is not December 6th, the key date was back in June when HB 3540 passed.