Here's more good legal news for the vast majority of Oregonians who want our state to stay as green as possible -- both environmentally and economically.
Hot on the heels of a Marion County District Court judge's reversal of the county commissioners' decision to allow a 43-lot, 217 acre subdivision on groundwater limited farmland in our neighborhood to move forward comes an even more legally significant ruling:
Today the Oregon Court of Appeals said approval of a 10-lot, 39-acre subdivision in Yamhill County was flawed and needs to be reconsidered by the Board of Commissioners. This is the first decision by the Court of Appeals on a Measure 37 vesting case.
(Measure 49, passed by voters in 2007, limited most Measure 37 claimants to a maximum of three home sites unless they had done enough work on a larger development to be "vested," which essentially means grandfathered-in after a change in the law.)
You can read the entire ruling here.
Ralph Bloemers of the Crag Law Center, who won the case for Friends of Yamhill County, issued a press release that gives an overview of the decision.
Download Press Release - Measure 37 & 49 in Wine Country
In an email accompanying the press release, Bloemers said:
The Friends of Yamhill County and individual neighbors won a reversal in a Measure 37 vested rights decision today. The decision halts the continuing development [of a] large subdivision proposed to be developed on Bald Peak Mountain farmland in Yamhill County. You can read the lengthy decision penned by Judge Sercombe here:
This is the first decision of four that are pending from Yamhill County which proposed subdivisions on Yamhill County farmland. With this win, the Friends of Yamhill County is likely to get a reversal in the three other cases that are pending in the Court of Appeals. There are many more cases pending in the Court of Appeals (See attached letter from DOJ to the Oregon Court of Appeals) that will be impacted by this decision.
Download DOJ Ltr re Pending VRD Cases - 7.9.2010
Land use geek that I am, I read through the entire 21-page decision by Judge Sercombe with highlighter in hand.
Like Bloemers said, overall this is a very positive decision for those seeking to prevent irreplaceable farm and forest land from being paved over by Measure 37 claimants and county commissioners who want to keep the bulldozers running even after 62% of Oregon voters said "Stop!" via Measure 49.
The Court of Appeals decisively struck down the screwy notion that spending a supposedly "substantial" amount of money on a Measure 37 development is a path to vesting.
Last January I attended the hearing where this case was argued before Judges Sercombe, Wollheim, and Deits. One of the judges said that he had recently read about the world's tallest building being constructed in Dubai. It cost $1.5 billion. So the judge noted that even though a million dollars seems like a substantial amount of money to most people, it is pocket change to those who put up the Dubai skyscraper.
Thus the Court of Appeals took Circuit Court judge John L. Collins to task for not requiring Yamhill County to consider the ratio of what Gordon Cook, the Measure 37 claimant, spent on development prior to the effective date of Measure 49 (December 6, 2007) compared to the total cost of development.
In other words, "substantial" isn't a subjective idea that can be manipulated by pave-it-over crazed county commissioners; it's a numeric ratio that has to be calculated on the basis of solid evidence.
Which includes the fact, as I've been told, that Gordon Cook's developer was planning to build four bedroom, four bathroom, 3,300 square foot homes prior to the passage of Measure 49. Afterwards, when Cook wanted to lowball the total cost of development to make the $155,000 he'd spent so far look more "substantial," his housing plans suddenly changed to mobile homes.
The Court of Appeals wisely put an end to that sort of nonsense. Judge Sercombe says in his ruling:
Thus, the necessary consideration of the expenditure ratio factor involves a comparison of the project-related costs incurred in good faith as of December 6, 2007, with the likely costs of completing the particular development sought to be vested based on construction costs as of December 6, 2007.
So if there wasn't evidence that Cook was planning a mobile home subdivison prior to December 6, 2007, the cost of cheap mobile homes can't be used in calculating the total cost of development. Rather, the cost of building four bedroom, four bathroom, 3,300 square foot homes should be used.
There were other errors made by the Yamhill County Board of Commissioners which they'll have to fix now that the Court of Appeals has reversed their decision and remanded it back to them.
One big error, which stands a good chance of stopping Cook's vested rights train in its tracks, is that the Board never considered whether Cook was able to construct a ten-home subdivison when he acquired the property (Measure 37 allowed claimants to continue the land use zoning in place when they bought a piece of land.)
Apparently county zoning at that time precluded single-family dwellings on Cook's property unless the dwellings were in conjunction with farm use.
That's astounding -- that the Yamhill County commissioners would be so uncaring of the law, and/or clueless. Fortunately the U.S. legal system has safeguards against such political incompetence, as witnessed by today's Court of Appeals ruling.