Here's good news for supporters of Oregon's land use system, which has done a great job protecting irreplaceable farm and forest lands from being paved over unnecessarily.
Today the Oregon Supreme Court released a long-awaited ruling on a Yamhill County land use case, Friends of Yamhill County v. Board of Commissioners and Gordon Cook.
Download Supreme Court Decision -- Cook
The Oregon Court of Appeals also got corrected, but mildly, as the Supreme Court affirmed a decision on appeal to deny Cook the right to continue on with a 10-lot Measure 37 subdivision that he'd spent $155,000 on before Measure 49 put an end to development in late 2007. The Supreme Court agreed with the Court of Appeals, yet for different reasons.
Having led a successful fight in our own neighborhood against a Measure 37 subdivision that threatened our ground and surface water, I'm familiar with the vested rights issues in this Supreme Court case.
After a quick reading of the 42-page opinion, I'm gratified to find that, in non-legal speak: Nyah, nyah! We were right and you were wrong!!
"We" being me, our attorneys (Ralph Bloemers of the Crag Law Center, who ably argued the Supreme Court case, and Sean Malone), and other attorneys/judges/land use advocates who understood the common law of vesting a lot better than would-be subdivision developers and miguided decision-makers did -- the "you's."
The Supreme Court affirmed that whether someone can go ahead with a development after a law has changed that now prohibits it depends in part on the ratio of what's been spent compared to the total cost of development.
This was part of the Supreme Court's landmark vested rights decision in 1973, Holmes. However, attorneys for Measure 37 developers and pave-it-over minded county commissioners were fond of arguing that "$100,000 (or whatever other amount) is a substantial amount of money," ignoring the obvious fact that substantial is in the eye of the beholder.
To a billionaire, $100,000 is a rounding error. To a poor person, it's a heck of a lot of money.
So in this decision the Supreme Court affirmed that the Yamhill County Commissioners and Circuit Court should have compared Cook's total cost of development, which would include building houses on his lots, to the $155,000 he spent prior to the effective date of Measure 37, December 6, 2007.
Regarding that date, the Supreme Court also agreed with another point that our attorneys, Ralph and Sean, made in our own legal briefs. Namely, that just because Measure 49 spoke of being vested on the effective date of Measure 49, this doesn't mean that anything a developer did prior to that date was fine and dandy legally.
After Oregon Voters passed Measure 49 in early November 2007, quite a few Measure 37 claimants spent the next month ripping up the farm/forest land they wanted to develop in an attempt to incur as many construction costs as possible. In some cases bulldozers, pavers, excavating equipment and such operated almost around the clock.
Which, in the common law of vesting, is known as trying to beat the clock -- a no-no from the standpoint of "good faith," one of the vested rights criteria in Holmes.
Meaning, when someone knows that a law has been changed and is about to go into effect, it's not cool to rush ahead and try to circumvent that law. Land use laws promote the general welfare. In the case of Measure 49, a clear majority of Oregonians said "We want to protect farm, forest, and groundwater limited land from development."
Yet many Measure 37 claimants heard that message and ignored it, racing ahead to pave over their property in what turned out to be a vain attempt to gain a vested right -- given today's Supreme Court decision, which said that it is up to the "trier of fact" to determine whether someone's development actions constitute good faith or bad faith. Merely stopping work on a new law's effective date isn't automatically a sign of good faith.
All in all, the folks at Friends of Yamhill County and the Crag Law Center should be popping open some corks today. They've scored a big legal win for Oregon's environment, since even though Measures 37/49 have passed out of most peoples' minds, some large subdivison developments could still spring back to life if they gained a vested right (OPB called these the "ghosts of Measure 37").
The bad news is that the Supreme Court remanded this case back to Yamhill County for more work consistent with the Supreme's opinion. Sadly, Yamhill County is a hotbed for screwy land use decision-making. The County Commissioners keep getting overruled by higher courts, yet this doesn't seem to pound any sense into their right-wing leaning minds.
Hopefully this Supreme Court decision will cause them to wake up and smell the legal roses. Obey the law, Yamhill County. You may not like Oregon's land use system, but that's irrelevant. You've still got to obey the law.
Lastly, kudos to Supreme Court Judge Rives Kistler for writing such a clear and coherent opinion. As a layperson interested in land use law, I've read quite a few cases that left me wondering what the heck a judge was trying to say. Judge Kistler left no doubt. HIs opinion was solidly legal, of course, but not full of jargon'y legalese.