Measure 37 vesting cases reach Oregon Court of Appeals

It's been a couple of years since Measure 49 was approved by 62% of Oregonians in November 2007, putting the brakes on the Measure 37 train wreck that threatened to demolish the state's pioneering land use system.

Most property owners who made a claim under Measure 37 to be exempt from land use laws that applied to everybody else -- to put a bunch of houses on high value farmland, for example -- have taken advantage of a provision in Measure 49 that allows them to have three home sites on six acres of their least productive farm or forest land.

But a few who had made a start on developing their Measure 37 claim prior to the passage of Measure 49 are pressing ahead with vested rights applications. In November 2007 I predicted that few of these would succeed. 

Vesting basically means to be "grandfathered" in (sorry, grandmothers, I didn't come up with that word choice).

Measure 49 says that vesting decisions are to be made under the common law in Oregon -- essentially a bunch of individual cases that combine, sometimes not very smoothly, into a blend called "vested rights common law."

This law is being applied in several vested rights cases that have reached the Oregon Court of Appeals after initial decisions at the county level. Recently Ralph Bloemers, an attorney with Portland's Crag Law Center, argued two Yamhill County cases on behalf of Friends of Yamhill County and others who are trying to protect farmland from excessive development.

A posting on the Crag Law Center web site summarizes the Court of Appeals cases. A story in the Newberg Graphic discussed one of the cases, the proposed McClure annexation.

They're significant, because Oregon only has one Court of Appeals (the highest state court other than the Supreme Court). So a Court of Appeals decision becomes a statewide precedent.

Land use geek that I am, I attended both hearings.

It was my first time in the Supreme Court hearing room, which the Court of Appeals also uses. It's appealingly old-fashioned. Stained glass window ceiling. Dark wood. Comfortable couches along the walls.

The judges asked good questions and made good comments. The attorneys presented good arguments, some better than others. All in all it was an entertaining couple of hours (I watched just about the entire O.J. Simpson trial on Court TV; this wasn't nearly as exciting, but it still appealed to my inner lawyer).

A high, or low, point came when I was waiting for a vested rights case to start and didn't want to pay complete attention to the arguments in a preceding case. I'd brought along some reading material and was quietly perusing an issue of "New Scientist."

Until the female bailiff walked over and whispered to me, "There's no reading during a session. It's disrespectful to the judges." I told her, "Sorry," and put the magazine down.

I then looked around and observed a number of other people reading away. Attorneys, some in the audience and some at the court tables, were reading notes and legal papers. A guy next to me was reading a law summary of some sort. Reading was happening all over.

Well, I decided I wouldn't have much chance of winning a challenge of the "no reading" rule -- at least before the Court of Appeals, since they made the rule.

Lastly, the Portland Oregonian ran a story today about how the state's land use system is successfully preserving valuable farmland in the Metro area. This is a great example of why citizens passed Measure 49.

The region's unsettled growth questions round into view at Peter McDonald's 1870s farmhouse. All the long-range population and job projections. All the tense debate over designating land for houses, stores and factories, or for farms and forests.

McDonald's Inchinnan Farm sits along the Willamette River, 20 minutes removed from the 1.5 million people who fill the Portland metro area and 20 years shy of the 1 million more projected to join them. But out the farmhouse windows and beyond the uniform rows of his hazelnut trees, there isn't another structure, vehicle or person in sight.

McDonald and a rising chorus of fellow farmers want to keep it that way.

To an extent not seen since Oregon's land-use system was adopted 35 years ago, farmers in Clackamas, Multnomah and especially Washington County are siding with conservation groups and local-food activists on the issue of designating urban and rural reserves -- areas that will be developed or preserved for the next 40 to 50 years.

At public hearings across the region, plain-spoken farmers in Carhartt jackets, work boots and blue jeans are calling for compact cities, tight urban growth boundaries and strict protection of farmland. Jim Johnson, the state Department of Agriculture's land-use specialist, said he's never seen such a collaboration of farmers and environmentalists.

Comments

[Rain]

what an encouraging report. I just hope that Oregon stands firm on this for the sake of future generations. It is so important to see farm land stay producing