Last Friday our rural south Salem neighborhood got some great news: in Marion County Circuit Court Judge Nely Johnson reversed the Marion County Board of Commissioners' approval of Ridge View Estates, a 217 acre, 43 lot Measure 37 subdivision on Liberty Road.
Read all about it in our press release.
Download Willamette Valley Farmland Protected - Final-1
Judge Johnson issued an oral opinion, asking the attorneys for our neighborhood's Keep Our Water Safe committee (Ralph Bloemers of the Crag Law Center and Sean Malone, a Eugene attorney) to prepare Findings of Fact and Conclusions of Law. These should be finalized in a few weeks.
This hasn't been a good legal summer for the Marion County Board of Commissioners. First, they had to handle the debacle of a $34 million county building and transit mall, Courthouse Square, which became dangerously unusuable on their watch.
With marvelously poor timing, the commissioners decided to settle with the architects and contractors for $1.8 million just before inspectors ordered the building vacated -- leaving taxpayers hugely in the hole, given that Courthouse Square may be impossible to repair and county offices are having to rent space in private buildings.
Now an important land use decision by Commissioners Patti Milne and Sam Brentano has been decisively slapped down by Judge Johnson, a retired Multnomah County judge who was brought in on this case after several Marion County Circuit Court judges recused themselves. (Commissioner Janet Carlson voted "no" on the subdivision, for which she is to be congratulated.)
As our press release says:
The Court found that the Board of Commissioners misinterpreted the law in five key ways. For example, the Court determined that over $80,000 in claimed development expenditures did not count towards vesting because these expenditures were made without required permits. The Court also found that the little work done on the property to date could readily be adapted to the three home sites allowed by Measure 49. The Court determined that the claimants had only spent about 3% of the cost of constructing the massive subdivision, far less than the accepted standard set previously by the Oregon Supreme Court.
Brian and Laurel Hines, local property owners who worked with their neighbors and the community to protect area water supplies, said “Judge Johnson's ruling shows that Commissioners Patti Milne and Sam Brentano ignored the law and ignored the facts to serve the special interests of a developer and their own personal agenda. Oregonians expect better from elected officials who have a responsibility to serve the public impartially. Not only did this approach waste taxpayer dollars but it also threatened neighbors’ property rights.”
In Oregon common law, there are six discrete vesting factors plus a catchall "other." (Vesting basically is being allowed a "grandfathered in" exemption to a change in land use law/regulation by virtue of having done enough development prior to the change -- which in this case was the passage of Measure 49 by Oregon voters in 2007.)
The factors are: (1) ratio test of expenditures to total project cost, (2) good faith of the developers, (3) adaptability of the project to other uses, (4) whether the developers had notice of a proposed change in the law, (5) whether the work has gone beyond mere preparation, and (6) the nature, location, and ultimate cost of the project.
Patti Milne and Sam Brentano, acting in their quasi-judicial role as county commissioners, concluded that the Ridge View Estates vested rights application deserved a pass on all six factors.
Judge Johnson, however, gave the application a fail on five of the six factors (she gave a rather weak endorsement of the Board of Commissioners' application of the law on the nature, location, and ultimate cost factor).
That's a big legal turnaround: six for six, versus one for six. It reflects how uncaring Milne and Brentano were to getting both the law and the facts of this case straight, in contrast to Carlson, who seemed much more concerned with making a wise informed decision.
In April 2009 our neighborhood's Keep Our Water Safe committee sent a letter to the Board of Commissioners, asking that they hold a public hearing before deciding whether the Ridge View Estates vested rights application should be approved. Here it is:
Download KOWS request for hearing
Sixty-five people signed the letter. Sixty-five. But Milne and Brentano didn't want to learn about the legal and factual errors in a hearing officer's report to the Board. So they voted without a public hearing. In the request for a public hearing we presciently said:
By holding a hearing, the Board will provide the public with due process and an opportunity to refine these issues before the board makes its final decision. If the board were to decide this application based on incomplete information it could very likely cost more money down the line by requiring this matter to be remanded for further proceedings.
Which is exactly what happened.
We and our neighbors, along with Friends of Marion County, had to spend thousands of dollars in attorney fees and lots of hours in volunteer time working on the briefs that got filed in Marion County Circuit Court.
This wasn't necessary. Just as letting problems go with Courthouse Square until the building had to be vacated seemingly wasn't necessary.
As we indicated in our press release, the citizens of Marion County should be able to count on their county commissioners to be sound decision-makers, gathering all the pertinent facts about an issue before voting on a course of action.
Patti Milne and Sam Brentano didn't do this with the Ridge View Estates subdivision. They clearly had personal political and philosophical agendas which prevented them from making the proper legal decision on the vested rights application, as well as the original approval of the subdivision.
I'm hoping that Marion County voters will keep this in mind come November, since Milne is up for re-election. This isn't a matter of Republicans vs. Democrats, or of conservatives vs. progressives.
It's a matter of good county commissioner decision-making vs. poor county commissioner decision-making. That's why my wife and I will be voting for Jason Freilinger, who is running for Patti Milne's seat.