Does this look like a partially completed 41-lot residential subdivision with CCRs that require houses to be at least 2,500 square feet and meet design review requirements? (photo courtesy of the Oregonian)
No.
But this was one of the crazy tricks that Measure 37 claimants tried to play back in 2007, when there was a rush to spend money on would-be subdivisions before the passage of Measure 49 -- which restored some much-needed sanity to Oregon's land use laws.
Today the Oregon Court of Appeals reversed Yamhill County's decision to give Ralph and Norma Johnson a "vested right" to continue on with their development, even though Measure 49 prohibits it.
(The Oregonian has an online story up, "Appeals court sends Measure 37 claim by Ralph and Norma Johnson back to Yamhill County." It'll probably be in the print newspaper tomorrow.)
The shacks in the photo above were two of nine built by the Johnson's in a desperate "race to vest" attempt, since all construction on Measure 37 claims was stopped on December 6, 2007, the date Measure 49 went into effect.
A May 2008 story in the Portland Oregonian laid out the ludicrousness of trying to call 10 by 12 foot shacks livable residences.
In the heart of Oregon's wine country, at the point where a hazelnut orchard and grass seed field gradually give rise to Chehalem Ridge, tiny plywood houses have sprouted on Ralph and Norma Johnson's 41 acres.
Neighbors say there are nine of them, identical 10-foot-by-12-foot structures, 120 square-foot houses: plumbed for water, wired for electric and hooked to septic tanks. They meet the bare minimum requirements for legal dwellings; they have Yamhill County's blessing.
To opponents, the structures built on the Johnsons' property represent a cynical, bad-faith attempt to slide under the restrictions of Measure 49, passed by voters in November to keep subdivisions off rural farm and forest land. They point out that the covenants, conditions and restrictions filed with the Johnsons' Ra'Nor Estates specify homes of a minimum 2,500 square-feet. To conform, anyone buying lots would have to tear down the little houses and build a far larger home, or build ludicrous additions on to them.
...Depending on your point of view, what the Johnsons have done is either clever and justified in order to protect an investment, or it's manipulative and desperate. And it may be perfectly legal in either case. But above all it represents the lunar legal landscape at the outer edges of Oregon's fierce property rights debate, even as the argument has cooled for most others involved. At some point, a court will decide.
That point came today, when the Oregon Court of Appeals reversed and remanded the case back to Yamhill County.
The Court required that "the likely costs of completing the development" according to the owner's plans prior to December 6, 2007 had to be considered. Since the CCR's specified houses of at least 2,500 square feet, it's clear that these 120 square foot shacks were thrown up in an attempt to game the system, and the Court of Appeals refused to play.
So now a reasonable determination of the total cost of development has to be made, something Yamhill County didn't require before.
In every Measure 37 vested rights case that the Court of Appeals has ruled on so far, the decision has emphasized the importance of the "ratio test," which compares lawful expenditures made up to December 6, 2007 with the total cost of the development.
Today the Court released an opinion on another Yamhill County vested rights case, Kleikamp. Here also, a subdivision was approved without considering the ratio test, which the Court said was a no-no.
Fourth, as we implicitly recognized in Friends of Yamhill County, a cogent assessment of total project cost (and, concomitantly, the expenditure ratio) will, in turn, require particular identification of the development that the property owner sought to vest as of December 6, 2007. For example, a 15-lot residential subdivision, depending on lot sizes and applicable zoning, could include anything from modest homes to mansions, with consequent substantial differences in the total cost of construction. Thus, it is incumbent on the property owner to establish the likely total project cost in relation to the size and character of the structures that the owner contemplated building in compliance with a Measure 37 waiver as of December 6, 2007.
In light of those principles, we conclude, as we did in Friends of Yamhill County, that the reviewing court "should have remanded for the county to determine the extent and general cost of the project to be vested and to give proper weight to the expenditure ratio factor in the totality of the circumstances of this case." 237 Or App at 178. Here, as in that case, the vesting officer and reviewing court determined that, under the circumstances, because of the magnitude of the Greggs' expenditures, it was unnecessary to establish a denominator in the expenditure ratio. That legal error requires reversal.
I'm no great legal scholar. I simply have become familiar with vested rights case law in Oregon, because my wife and I have led our neighborhood's fight against a 43-lot Measure 37 subdivision that threatened existing wells and surface water rights.
It was obvious to me that Yamhill County decision-makers (county commissioners, vested rights hearings officer, and circuit court judge) almost certainly were destined to lose in the Court of Appeals.
They weren't using either common sense, or the law, when every Measure 37 subdivision sailed through the approval process -- both before and after passage of Measure 49. Political and personal views were blinding the decision-makers to what should have been their main focus: upholding legal principles.
The public deserves better.
Voters in Yamhill County should be asking, "How is it that our county commissioners and judges got things so wrong?" That question should keep being asked until good answers are received.
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