By "us," I mean hundreds of people in our rural south Salem neighborhood who vigorously opposed a 217 acre Measure 37 subdivision proposed to be built on high value farmland that threatened our ground and surface water (wells and community lake).
My wife and I led this fight.
By "commissioners," I mean Patti Milne and Sam Brentano, Republican county commissioners here in Marion County who did everything they could to approve the Ridge View Estates development. Janet Carlson, the third commissioner, was on the losing end of several 2-1 votes.
Carlson, by and large, believed in applying the law to the appeals filed by our neighborhoods' Keep Our Water Safe committee. We didn't agree with everything she did or said, but Carlson was much more fact-based and reasonable than Milne and Brentano.
Today the Salem Statesman Journal had a story about Oregon Court of Appeals and Supreme Court rulings that made my wife and I want to scream We told you so! at the county commissioners.
Which, I guess, is what I'm doing in this blog post.
We and the attorneys who fought the developers and Marion County, Ralph Bloemers of the Crag Law Center and Sean Malone, a Eugene attorney, kept telling the commissioners what Oregon's land use laws and the common law of vesting required of them.
Unfortunately, Milne and Brentano chose to ignore those laws, until a Marion County Circuit Court judge ruled in our neighborhood's favor and the subdivision developers didn't appeal the decision.
A wise choice, because last week the Oregon Court of Appeals issued another in a string of rulings that support one of the key points that we kept making, and Milne/Brentano kept ignoring: whether someone who has started work on a development should be allowed to continue after a law changes depends in large part on what the completed project is planned to be.
That's common sense.
If you build three rooms of a five room house, you could justifiably say "I'm about 60% done." But if you've built three rooms of a 1000 room apartment building, you've barely begun.
Milne and Brentano owe us and our neighborhood an apology because they willfully ignored this common sense. Oregon law says that whether a vested right is granted to a partially completed Measure 37 development depends on what was done by the developer prior to December 6, 2007.
That's the drop-dead deadline. Nothing done after that date counts as development. (In fact, Measure 37 claimants were required to stop work on December 6, 2007, the effective date of Measure 49 -- which scaled back Measure 37 considerably.)
In our written appeals, in our oral testimony, in our letters to the Marion County commissioners, we kept telling Patti Milne and Sam Brentano what the law said. And they kept ignoring it.
In our case, just as in the Clackamas County case, Campbell v. Clackamas County, the subdivision developers planned a high-end project with expensive homes that would cost around $500,000. Yet after Measure 49 put an end to development, suddenly the developers claimed they'd had a change of heart and planned to build cheap homes.
The Oregon Court of Appeals and Supreme Court didn't buy this argument. It was obvious to us that they wouldn't, just as it should have been obvious to Milne and Brentano if they hadn't chosen to be blinded by ideology, rather than being clear-eyed about what the law demanded of them.
Here's an excerpt from the Court of Appeals ruling:
Because the vested rights determination under Measure 49 is made as of December 6, 2007, the effective date of the measure, "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." Kleikamp, 240 Or App at 66-67. Moreover, the likely total project cost is "'based on construction costs as of December 6, 2007.'"
We and our neighbors spent a lot of time and money in court undoing the mistakes made by the Marion County commissioners. If Milne and Brentano had followed the law, rather than their own "pave it over" right-wing political mentality, this could have been avoided.
Note the twice-mentioned "as of December 6, 2007" in the quoted passage above. That's what we kept telling Milne and Brentano.
A developer can't say, "Oh, the housing market is so bad now in 2009 (or whenever). The total cost of our subdivision has been much reduced given these new plans." They don't get to change their plans. Whatever the plan was of December 6, 2007, that's the total cost of development to be considered in a vested right decision.
We and our attorneys were correct. Commissioners Milne and Brentano were wrong. We accept their apologies, in abstentia, because we doubt such will be forthcoming.