HinesSight

A real estate sign speaks volumes about citizen activism

A few weeks ago a new sign went up along Liberty Road S, just north of Spring Lake Estates, where my wife and I live. It meant a lot to me, for reasons I'll explain.

Here's a photo of the land being offered for sale. The property extends beyond the crest of the hill. The acreage suitable for a vineyard is shown in the photograph I took, which includes a shadow of me taking the photo.

Back in 2005 I wrote my first blog post about these 217 acres, "Measure 37 hits close to our home."

For a lot of people, Measure 37 is a legal abstraction. For us, it means 215 nearby acres of farmland may become a subdivision. These rolling hills along Liberty Road about five miles south of the Salem city limits currently are zoned EFU (exclusive farm use).

If the Measure 37 applicants have their way 80 homes will be built and 80 wells will be dug in an area that already is designated as €œgroundwater limited. I call that eventuality AFU (all...up; you can guess the rest of the acronym).

Measure 37 was a property rights initiative that voters mistakenly approved in 2004. It gave property owners the right to develop in accord with the zoning that was in place prior to Oregon's pioneering land use laws being put in place in 1973.

For five years my wife and I led our neighborhood's fight against this proposed subdivision. Laurel started off being the main subdivision battler. Then I took over. It was the toughest thing I've ever done. There were so many twists and turns, I'd get dizzy if I tried to describe them all. 

In 2010 a Circuit Court judge ruled in favor of our neighborhood following the passage of Measure 49 in 2007, which negated most of Measure 37. I wrote about the victory in "Circuit Court reverses Marion County commissioners."

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.

That dry language didn't begin to capture how I felt, in part because it took time to realize what preserving the 217 acres from becoming a subdivision development meant to me. I've tried to do this over the years in some other blog posts, notably, "Judge's final decision on Laack subdivision: the meaning for me."

In this post I want to talk about the meaning this neighborhood land use fight has had for me. Hopefully I can share some ideas that will resonate with people who have no interest in land use issues, but can relate to the general nature of this sort of experience: working really hard on something, for a long time, when there is no guarantee of success.

As is the case with most things in life. Such as...

Raising a child. Pursuing a college undergraduate or graduate degree. Starting a business. Aiming for a martial arts black belt. Cultivating a happy marriage. Seeking better health. Writing a book for publication.

I've done all of the above, plus a lot more in my sixty-two years of living. Your list will be different, as the activities people engage in and the goals they pursue are marvelously diverse.

Now I can add "Struggling to save a neighborhood's water supply." A new activity, one of the most intense, difficult, and complex things I've ever done. But the meaning-of-life lessons I've learned in the process are extensions of earlier lessons.

I don't want to repeat what I said in that 2010 post.

I haven't even re-read it, because this is 2018, and I'm now 69, not 62. How I feel today about the sign that went up offering 111 acres of vineyard property for sale, along with an additional 106 acres, is different from how I felt eight years ago.

What I want to say now, in this age of Trump, when many people are feeling disillusioned, disheartened, and disturbed about where our country is heading, is this:

Citizen activism is both tremendously important and tremendously satisfying. I readily admit that the satisfying part obviously is most acutely felt when activism leads to success, as it did in the case of our fight against the subdivision. 

But though this is a truism, it's a truth that needs repeated saying -- usually it's impossible to tell whether a fight is winnable. So the activist has to step into a battle without knowing if their efforts will produce a victory. 

Writing those words reminded me that here in Salem, Jackie Leung stepped up to challenge incumbent city councilor Steve McCoid in the Ward 4 race last May. Most people didn't think Leung had a chance. Yet she won. A national example is the surprising victory of Alexandria Ocasio-Cortez over 10-term incumbent Democrat Joe Crowley.

You just never know. Well, except for this. If potential citizen activists don't try to make a difference, they can know for sure that their not-doing will lead to no change.

What kept me going during our five year fight against the Measure 37 subdivision was a conviction that I needed to do everything within my power to stop this threat to our neighborhood's surface and groundwater. I paid as much attention to tiny details as to grand strategy. 

In the end, and I could only know this looking back, not forward, a few of those details played an outside role in our eventually successful legal battle. Again, though, I couldn't tell this at the time. All I could do was hope that a bunch of small things would add up to a large thing.

When I drive by the sign advertising the property for sale, I feel good.

Sure, there are many things larger than 217 acres of rural south Salem land. But the older I get, and I'm getting pretty damn old, I'm finding it more and more difficult to distinguish between the BIG things in life and the small things. 

Is saving 217 acres from becoming a subdivision a major or minor accomplishment? I have no idea. All I know is that when I look at the still vacant land, that sight means a lot to me. I even imagine a scene that likely won't ever happen, but still manages to elicit a few wet spots in my eyes.

I'm near death. At my request, I'm taken in a wheelchair to a wide spot on Liberty Road where my wife and I can have a view of what has become a successful vineyard. Laurel holds my hand. I say to her, "Hey, way back when, we did something good here, didn't we?" She smiles. No more words are needed. We both know what we feel.

A "For Sale" sign for 217 south Salem acres that warms my heart

For five years, 2005-2010, my wife and I led our rural neighborhood's fight against a subdivision that threatened our wells and surface water -- springs that feed the lake our community, Spring Lake Estates, is named for.

We eventually won. A legal ruling caused me to write, "Judge's final decision on Laack subdivision: the meaning for me."

Today I drove by the property on south Liberty Road, which has remained undeveloped. Our neighbors and us have been wondering what would happen to the 217 acres. Finally looks like something is.

The Gysin listing shows the asking price as $2,300,000. That's $10,600 an acre. Seems reasonable. In a 2007 post, "If you love Pinot Noir, vote for Measure 49, " I said:

My wife and I are leading our neighborhood's fight against a Measure 37 subdivision on groundwater limited high-value farmland. Recently road construction was started illegally on the property. 

Any grape grower or Pinot Noir lover who drove by before Marion County shut down the un-permitted work would have thought, "What a crazy thing to do."

Crazy, because these rolling hills are perfect for a vineyard. Almost 99% of the 217 acres is composed of high value soil (Class I-IV). And nearly all of that soil is Nekia Silty clay loam.

...Leroy Laack, the Measure 37 claimant, likes to talk about how unfarmable this EFU (exclusive farm use) property is. Yet at one of the many hearings on his subdivision plans, a local farmer testified that he had put some Willamette Valley acreage up for sale and got a phone call from a Californian.

The man said, "I'm not interested in the flatland you're selling. But do you know of any available farmland in the south Salem hills?" He wanted to grow grapes here, like so many other people.

The farmer said that he guessed the Measure 37 property was worth $10-15,000 an acre to a grape grower.

I hope the current owners get a good price for the property. And that a good use is made of it. I don't know how strong the market now is for south Salem grape-growing land. Several nearby vineyards seem to be prospering.

The listing suggests these uses: Agricultural/Farm, Pasture/Ranch, Recreational, Single Family Residence

From the top of the twin hills there must be great views of the Cascades and Coast Range. I took this photograph today. The exposed reddish dirt in the middle of the photo is where the above-mentioned subdivision road was roughed in years ago.

Maybe a wine fancier will buy the property, plant a vineyard on the southwest facing acreage, and build a residence on the highest elevation, or just over the hills.

Our neighborhood will welcome the new owner(s). We've got no objection to any use that is compatible with the existing homes/development in this groundwater limited area.

If a vineyard comes to be, I'll look forward to buying one of the first bottles of locally-grown wine.

James Huffman wrongly attacks Oregon land use system

I'm surprised how badly James Huffman, a dean emeritus of the Lewis and Clark law school, misinterpreted the highly successful Oregon land use system in a misguided opinion piece in today's Oregonian.

"Keep the messy politics: rule by government experts is a recipe for tyranny" reflects the overblown rhetoric of the sky is falling! Tea Party types. They see left-wing dangers, conspiracies, and constitutional threats hiding in the shadows everywhere.

Only problem is, when you ask them to specifically point them out, providing factual examples of dictatorial, tyrannical government over-reaching, they get tongue-tied. Why? Because their scary hobgoblins exist only in their own minds.

Huffman believes that "experts" (eek! knowledgeable people! frightening!) are controlling Oregon's land use decisions. Not the elected officials who hire and manage those experts. Not the voters who put those elected officials into office. Not the legislators who passed the land use laws those experts implement.

The Oregonian editorial board suggests a siren to warn when "legislators try to take over management of the state's natural resources" (“Water, trees and politics,” Feb. 16). On the opposite page, columnist Dave Lister describes how voters in Clackamas County are taking over bridge projects, urban renewal districts and light rail. Maybe there should be a siren to warn of such voter interference, as well. 

How dare the elected representatives in Salem interfere with expert management of state-owned forests or Columbia River water! And surely the transportation and land-use planners know better than the voters of Clackamas County. 

But wait. Don't we live in a democratic republic? Doesn't all government authority, at all levels of government, derive from the people? 

Yes, Mr. Huffman, it does. And that's exactly what is happening in Oregon: government agencies are carrying out the will of the people regarding land use decisions. 

Huffman doesn't offer up any examples of rogue "experts" doing nasty, illegal stuff. Professional planners act in accordance with laws, regulations, ordinances, and such. If they do something outside of legal bounds, those acts can be challenged in court.

Having read a number of Huffman's Oregonian opinion pieces about the evils of land use planning, I can confidently say that what he really is disturbed about is the very ideal that he extols: government authority derived from the people.

Senate Bills 100 and 101, which brought Oregon's land use system into being, were passed by a democratically elected state legislature, at the urging of a democratically elected Republican governor, Tom McCall.

Since, opponents of land use planning have tried to dismantle our state's demonstrably effective approach to preserving farm and forest land, while allowing room for cities to expand in a thoughtful fashion.

The people have spoken, most recently in 2007 with the passage of Measure 49 -- which markedly scaled back the "pave it over" aspirations of Measure 37 by a vote of 62% in favor. This rankles Huffman, who was strongly against Measure 49, opposing it via a misleading mailing. 

After it passed, Huffman criticized democracy and the "tyranny of the majority." His dream is to have activist judges declare Oregon's voter-approved land use laws to be unconstitutional.

So it's bizarre that Huffman is now inveighing about a fantasized tyranny of experts when he has expressed such a strong desire for a tyranny of judges to step in and do away with Oregon's highly popular land use system.

If there's any tyranny Oregonians should be concerned about, it's the tyranny of extreme government-haters like Huffman who want our state to return to an archaic pioneer mentality where anybody can do anything they want with their property, regardless of how this affects other people, neighboring landowners, the environment, or irreplaceable farm and forest land.

Marion County commissioners raked over legal coals again

Ha, ha! We were right and you were wrongI

Thanks to Salem Weekly, our city's alternative newspaper, I got to gloat again about our neighborhood's land use win over the Marion County commissioners after publisher A.P. Walther asked me if I'd like to write an opinion piece based on my recent gloating blog post.

"Of course," I told A.P.

I then struggled to find the perfect lead for the column, one which reflected my maturity, seriousness, and dignified writing style. "Ha, ha!" struck me as perfect, especially since I figured Salem Weekly wouldn't allow stronger language in a publication that's read by minors.

Check out "Marion County commissioners proven wrong."  

The photo accompanying the column in the printed Salem Weekly was what I use in the header of this blog. But the online version was the pleasingly sinister version above. I like the semi-crazed look. "Watch out, law-defying politicians, I see what you're up to!" 

My wife and I have been gloating about our neighborhood's legal victory over Patti Milne and Sam Brentano since 2010. See: Circuit Court reverses Marion County commissioners and Judge slaps down Marion County Commissioner Patti Milne.

I'll probably keep on gloating for a couple of reasons.

One, gloating is fun, particularly when the objects of the gloat are politicians who blatantly favor special interests over the public good. Two, the more light is cast on politicians who ignore the law, the greater the chance they won't be able to hide in the shadows.

I realize that county politics isn't of much interest to the majority of Marion County voters.

Salem residents identify mostly with their city, even though they (obviously) also are county residents. So it takes a debacle like Courthouse Square, which used to house county offices in a block close to downtown Salem until it was declared unusable due to construction defects which were ignored for years by Milne and Brentano, to focus even a modicum of citizen attention on the County Commissioners.

People in our neighborhood, though, have had lots of experience watching Milne and Brentano clown-walk their way through important decisions, ignoring facts, ignoring public testimony, ignoring expert reports.

Here's an excerpt from a previous gloating that shows what I'm talking about:

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.

Marion County commissioners owe us an apology

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. 

Oregon Supreme Court ruling supports land use system

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 

Basically it's a big win for Friends of Yamhill County and the Crag Law Center. And a corresponding big slapdown of both the Yamhill County Board of Commissioners and the county vesting officer.

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.

Court of Appeals slaps down Crook County in Measure 37 case

Measure 37 may be dead after 62% of Oregonians voted for Measure 49 in 2007, but this attempt to undo our state's highly successful land use laws lives on in the courts -- where a few would-be subdivision developers press on with their efforts to pave over Oregon's farm and forest land.

Today the Bend Bulletin related an all-too-familiar (to land use junkies like me) tale of a clueless Board of Commissioners and Circuit Court judge in a rural county who tried to twist vested rights law to benefit a well-to-do landowner, but were slapped down by the Oregon Court of Appeals.

(Irritatingly, the Bend newspaper doesn't have free online access. I forked out 50 cents for a copy of "Cost appeal delays 59-lot housing project." So I hope you'll appreciate this article if you read it in a continuation to this post.)

Having followed quite a few vested rights cases after the passage of Measure 49, I couldn't resist delving into the particulars of this case.

It didn't take long for me to grasp the broad outlines of this Crook County legal drama, which, as noted above, is depressingly similar to what's happened in Yamhill, Marion, Polk and other Oregon counties where the powers-that-be have a habit of ignoring the law if a big developer wants to go ahead with a Measure 37 project.

In this case, Shelley Hudspeth sought to complete development of a 59-lot residential subdivision. As described in the Court of Appeals ruling that overturned Crook County's green light "go ahead":

For purposes of appeal, the following facts are undisputed. Measure 37 waivers from the county and the state allowed for the development of a 59-lot subdivision on Hudspeth's property. Hudspeth obtained tentative approval from the county for a subdivision and expended hundreds of thousands of dollars to develop the property before Measure 49 became effective on December 6, 2007.

Thereafter, Hudspeth applied for a determination from the county that she had a vested right to complete and continue the use described in the Measure 37 waivers. Hudspeth's application indicated that the total project budget was $5,081,946. That figure, however, did not include the cost of residences that would ultimately be constructed in the subdivision.

Kind of a big oversight, to put it mildly. A residential subdivision without residences isn't much of a subdivison.

Measure 37 waivers don't allow a property owner to sell buildable lots. That's part of Land Use Law 101, which even non-attorneys like me who follow these sorts of cases know full well.

So it should have been obvious to the county planning director who went along with Hudspeth's omission of the expense of building 59 homes in her total cost of development that this was legally wrong, as it also should have been to the County Commissioners who later rubber stamped the vested right approval.

Reading through the minutes of the County Court (that's what some rural counties call their Board of Commissioners) hearing where the Hudspeth application was approved, I saw that some folks from 1000 Friends of Oregon and Central Oregon Landwatch tried to educate the commissioners about what the law required.

Their response: basically "Law, what law? We'll do whatever we want to do."

It's more than a little strange how common this attitude is among conservative county commissioners, who claim to be all big on law and order -- except when they want to ignore the law in order to allow a deep-pocketed developer to do whatever he or she wants.

A Crook County circuit court judge went along with the county's weird legal reasoning.

Even though the Oregon Supreme Court has said that it is the ratio of total project costs to actual expenditures which is an important factor in determining whether someone is vested, both the judge and the commissioners cast a blind eye on what the Hudspeth subdivison would cost to fully build -- including the expense of constructing 59 homes.

The Court of Appeals shot them down.

Consistently with those principles, we conclude, as we did in Friends of Yamhill County, Biggerstaff, and Kleikamp, that the circuit 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." Friends of Yamhill County, 237 Or App at 178.

In this case, the county court determined that the denominator need not include the cost of the residences that were sought to be developed and the circuit court determined that it was unnecessary to determine the denominator in the expenditure ratio. Those are legal errors that require reversal.

Motion to dismiss denied; reversed and remanded.

The Bend Bulletin article quotes Hudspeth's attorney, Ed Finch, as predicting that the Crook County commissioners will end up approving the subdivision again, after which the state Department of Land Conservation and Development will appeal the approval again.

Likely, he's right.

But hopefully the commissioners will come to their senses and realize that they aren't above the law. I did some quick calculating and don't see any way that Hudspeth can show that she has spent the 7% or so of total project costs that is typically cited as a benchmark for passing the ratio test.

The Court of Appeals ruling says that both the county and circuit court judge said that Hudspeth had spent about $500,000 on the subdivision, even though the developer claims the total should be around $900,000.

Since Hudspeth and her attorney didn't challenge the $500,000 determination, it seems to me that this is a settled legal fact now. So what's left to determine is the additional cost of building 59 homes, adding that on to the $5,082,000 total project budget without homes.

Let's say that each home costs $200,000 to build, a really low-ball figure. That's $11,800,000. Added onto $5,082,000, the total project cost now is $16,082,000. With actual expenditures of $500,000, Hudspeth has spent only 3% of what it would have taken to complete her subdivison.

Almost certainly that's a "fail" on the ratio test, being a long distance from 7%.

So I bet that even if the Crook County commissioners find some way of rationalizing another vested rights approval after dealing with the remand, when the case gets sent back to the Court of Appeals the county will be slapped down again.

Eventually these Measure 37 cases will have run their course and Oregon farm/forest land can breathe a sigh of relief. (Poetically speaking, of course.)

That day can't come too soon for me, though I'll admit that my inner land use attorney gets some enjoyment from following the legal shenanigans in Crook County and other places.

Click on to read the Bend Bulletin article.

Court of Appeals reverses Yamhill Co. "shack subdivision" approval

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.

Oregon Court of Appeals rules on more Measure 37 vesting cases

I must have turned into a major land use geek.

Why else would my retired body find itself in a courtroom at 9 am on a perfectly good relax and drink coffee at home December morning, watching attorneys argue another Measure 37 vested rights case before the Oregon Court of Appeals?

I wanted to attend the hearing because Sean Malone and Ralph Bloemers were representing Friends of Polk County and some neighbors of a mixed use (residential and commercial) Measure 37 development that had been stopped by passage of Measure 49 in 2007.

Sean and Ralph also have been the attorneys for our neighborhood's Keep Our Water Safe Committee which has been successful in fighting another Measure 37 subdivision. I wanted to send Sean some positive vibes via my presence, since this was this first time he'd argued a case before the Court of Appeals.

He did great. And I found the back-and-forth between the attorneys and three-judge panel of the Court (Judges Ortega, Landau, and Sercombe) quite interesting.

Best of all, the same female bailiff who chastized me for reading a magazine when I attended a hearing on another Measure 37 vested rights case back in January found nothing amiss in my behavior this time.

The ruling in that case, known as Friends of Yamhill County, was released on September 1, 2010. It reversed a Yamhill County approval of a 10-lot, 39-acre subdivision. At last week's hearing I learned that the Court of Appeals had issued rulings on a couple of other Measure 37 vested rights cases the day before.

I'm pretty sure the attorney who argued on behalf of the would-be Polk County developers was Steve Janik. He was appealingly bold, as early on in his argument he flat-out said that the Court of Appeals had been making mistakes in their vested rights rulings.

The judges didn't bat an eye (from what I could see). Judge Sercombe, in fact, said something like "Please explain." Which Janik did, though not all that persuasively, in my opinion.

He was focused on an issue that was central in one of the recently-decided cases, Steve Davis v. Jefferson County.

The Oregon Supreme Court said in Holmes that the ratio test is one of the factors to be considered in deciding whether "a landowner has developed his land to the extent that he has acquired a vested right to continue the development." (This is the ratio of expenditures incurred to the total cost of the project.)

In Davis, the Court of Appeals reversed and remanded Jefferson County's approval of a vested right application, saying:

The county's alternative finding that the project investment was still substantial, even assuming that homes were to be included in the total cost of the project, is speculative. The parties point to no evidence in the local government record of the actual projected construction costs for the homes to be built. Therefore, the reviewing court should have remanded the decision to the county to determine the extent and general cost of the project to be vested and to give proper weight to the resulting expenditure ratio in the totality of the circumstances of this case.

Philosophically, practically, and linguistically Janik was on shaky grounds when he argued that, instead, "substantial" simply means a lot. That is, it isn't a ratio; it's a plain number.

He told the Court of Appeals judges that there's a large difference between someone who spends $1,000 on a $15,000 cabin in the woods, and a company like Intel that spends $100 million on a $1.5 billion manufacturing facility -- even though both have incurred 1/15 of the total cost of the project.

Meaning, $100 million obviously is substantial, while $1,000 isn't. That doesn't make sense, though, in the context of vested rights law. It shouldn't matter how rich a person is, or how much money they've been able to put into a project.

To a poor person, $1,000 can be a significant amount of money. To a huge corporation, $100 million can be loose change. This is why the Court of Appeals has been correctly demanding that vested rights decision-makers consider the ratio of expenditures to total costs, not a stand-alone number.

The other recently-ruled-on case mentioned at the hearing was Norwood v. Washington County. The Norwoods didn't fare any better with their vested rights arguments in the Court of Appeals than they did in Washington County Circuit Court.

They didn't get a Measure 37 waiver from the state before December 6, 2007, when Measure 49 went into effect. They also went ahead with development work on their 28-acres of EFC ("Exclusive Forest and Conservation") land without required permits for logging, grading, and electrical work.

No permits and no state waiver, no ability to be vested, said the Court of Appeals.

Our disposition of the case makes it unnecessary to decide whether plaintiffs separately failed to qualify for a vested right to complete and continue their residential use of the property under section 5(3) because their use was unlawful or in bad faith in the absence of the required predicate land use permits and Measure 37 waiver from the state. See Mason v. Mountain River Estates, 73 Or App 334, 698 P2d 529, rev den, 299 Or 314 (1985) (vested rights not established by expenditures before final development approval by county); Cyrus v. Board of County Commissioners, 226 Or App 1, 18-20, 202 P3d 274 (2009) (Sercombe, J., concurring) (vested rights established only by lawful actions and good faith expenditures).

Successful south Salem subdivision fight makes the news

A few days ago the Portland Oregonian ran a story about a judge's ruling that said "no way" to a 43-lot, 217 acre subdivision that threatened water supplies in our neighborhood.

A Marion County judge has ruled that property owners who started building a South Salem subdivision before voters limited such development didn't meet the legal guidelines that would allow them to finish the project.

The ruling reverses a decision by the Marion County Board of Commissioners, who in July 2009 voted 2-1 that Leroy and Jean Laack and five associates had a "vested right" to continue building a 42-unit subdivision in the South Salem hills.

Neighbors, the conservation group Friends of Marion County and the Keep Our Water Safe Committee protested the county's decision and took it to court. Among other things, opponents argued that the subdivision would require so much water that it would threaten existing wells in the area.

I was disappointed that the story didn't mention the Crag Law Center, because attorney Ralph Bloemers was key to our legal success -- along with Eugene attorney Sean Malone, a protege of Ralph's who took the lead in writing the Circuit Court briefs.

The Crag Law Center web site also publicized our victory in "Local Citizens Praise Victory Protecting South Salem Hills from Sprawl."

Ralph Bloemers, a staff attorney with the Crag Law Center, stated: “Many people sought to take advantage of Measure 37 and develop large residential subdivisions, commercial developments and gravel mines. These proposals threatened neighboring property rights, water supplies and undermined the efforts of people with more reasonable goals. This decision protects neighboring property owners and preserves Oregon’s valuable agricultural capabilities.”

For sure.

The subdivision was going to be built on high value, groundwater limited farmland. There are plenty of places where houses can be built in Oregon without paving over irreplaceable agricultural soil.

Here's a photo which accompanied the Crag Law Center press release that shows Laurel and me standing on Liberty Road in front of the rolling hills where 43 homes were on their way to being built. (As a blogger, it's appropriate that I have my mouth open.)

The 1000 Friends of Oregon blog also gave us a shout-out.

Well, back at you 1000 Friends. We couldn't have succeeded without your help. Friends of Marion County, an affiliate of the statewide organization, supported our fight -- as mentioned in the Oregonian story.

I enjoyed perusing comments from readers (including one from Eric Mortenson, who wrote the story). Since the story couldn't include all of the facts about Judge Johnson's decision, some people had misconceptions about it.

Accordingly, I added a comment of my own:

Mortenson had to leave out some key facts in his short story. (1) The would-be developers spent $84,000 on road construction even though they didn't have required permits. Legally, Judge Johnson said this needed to be subtracted from the allowable "vesting expenses."

(2) Based on an Oregon Supreme Court ruling and other case law, about 7% of the total cost of development needs to be spent on a project before it passes the "ratio test." Here, Laack and his co-owners only spent about 3%, even assuming an unrealistically low total cost.

(3) In line with the above, Johnson said that $18 to $20 million was the true total cost of development based on the owners' stated plans for the project. (Later a low-ball estimate was cooked up in an attempt to get vested.)

(4) Several Marion County Circuit Court judges recused themselves from this case, probably because they had some past connection with the county Board of Commissioners. So Johnson, a retired Multnomah County judge, was brought in by Marion County Circuit Court to hear the case.

My memory failed me when I wrote the comment, since actually Judge Johnson said that the total cost of development, as the subdivision was originally envisioned prior to the passage of Measure 49 in 2007, was $22 million, not $18 to $20 million.

So the ratio of actual legal expenditures to the total cost of development is about $400,000 : $22,000,000, or 1.8%. Not much. If somebody only had completed less than 2% of a 1000-piece jigsaw puzzle (20 pieces or so), would it be valid to say "They've done a substantial amount of work on it?"

No. This is one of the reasons Judge Johnson correctly ruled that the subdivision didn't have a vested right to continue development.

I'll end with someone else's comment on the story that contained some wise observations about the rights of people already living in an area.(However, the commenter didn't realize that a "municipal water system" couldn't be built in our area, since we are five miles from the Salem city limits; water for the subdivision was going to have to come from the already depleted aquifer lying under the 217 acres):

It might be a big pile of money they already spent, but nonetheless it is reckless and irresponsible to develop enough housing units on a piece of land that it would affect well-water supplies for existing neighbors.

If the project had gone forward and drained these wells to unusable levels, would neighbors have grounds for a lawsuit against the developer? The new homeowners?

Would the new homeowners agree to abandon the subdivision and replenish the water supply to undo the damages against the existing neighbors?

Would the developer (who would no longer be the property owner) or the new homeowners foot the bill for a municipal water district, to relieve the pressure on the ground water supply for nearby neighbors?

Or would groundwater supplies be so far gone by the time anybody took action that the neighbors would have to pay to connect their houses to this unpaid-for and not-yet-built municipal water supply? Would those costs be paid for by the developer? The new homeowners?

Would the developer or new homeowners pay for nearby residents to relocate when it's determined that the costs of creating said municipal water district infrastructure is far too great to be practical?

Why is that a landowner who intends to recklessly develop property in a fashion that will impose very tangible negative externalities against surrounding landowners is treated as a "victim"? If this development had been allowed to move forward, and people actually bought and occupied the housing units, the true victims would be the surrounding landowners whose governing laws failed to protect them from the very thing those laws were written to prevent.

This isn't the kind of thing you just "let happen" and allow litigation to solve subsequent problems later. Some problems can't be practically resolved later.

Judge's final decision on Laack subdivision: the meaning for me

A few days ago Judge Nely Johnson finalized her oral opinion in Marion County (Oregon) Circuit Court that overturned a flawed Board of Commissioners' decision to let a 43-lot, 217-acre subdivision move ahead on high value, groundwater limited farmland.

Land use junkies and interested neighbors can read all about it here (4.1 MB PDF file):
Download Final decision FOMC v. Marion County (Laack)

This has been a long journey for our neighborhood and me. It started in 2005, when plans for this Measure 37 development first surfaced.

My wife, Laurel, initially led the fight to protect our area's ground and surface water -- household wells and springs that feed Spring Lake -- from drying up, as was predicted by hydrogeologists and the state Water Resources Department.

I became more active as the battle began to be fought on legal and governmental territory. The skirmishes were many and convoluted. It'd be difficult to describe how much time, effort, and money we and our neighbors put into this cause.

So I won't.

The most recent chapters in the tale have been related here, here, and here. A press release from the Crag Law Center provides more info on Judge Johnson's ruling.
Download Press Release - Measure 37 & 49 - Laack - December 2010

In this post I want to talk about the meaning this neighborhood land use fight has had for me. Hopefully I can share some ideas that will resonate with people who have no interest in land use issues, but can relate to the general nature of this sort of experience: working really hard on something, for a long time, when there is no guarantee of success.

As is the case with most things in life. Such as...

Raising a child. Pursuing a college undergraduate or graduate degree. Starting a business. Aiming for a martial arts black belt. Cultivating a happy marriage. Seeking better health. Writing a book for publication.

I've done all of the above, plus a lot more in my sixty-two years of living. Your list will be different, as the activities people engage in and the goals they pursue are marvelously diverse.

Now I can add "Struggling to save a neighborhood's water supply." A new activity, one of the most intense, difficult, and complex things I've ever done. But the meaning-of-life lessons I've learned in the process are extensions of earlier lessons.

Namely...

What I'm doing isn't right or wrong; it's just what I'm doing. Like most people, I can feel pretty damn self-righteous at times.

Not a day goes by when I don't read the newspaper, watch TV, surf the Internet, or simply observe everyday life and say to myself, "What the #@$&%#!! That person is acting like a freaking idiot!"

However, equally often I remind myself that everybody is doing what makes sense to them, what feels right to them, what strikes them as the proper course of action.

Once I start labeling things as "right" and "wrong," I set myself up as the Grand Poohbah Decider of Morality in the Universe -- a role I neither want, nor am qualified, to play. Whether the issue is the building of a subdivision, national tax policy, or anything else, people are going to have different opinions about it.

I can respect someone else's differing view of an ideal world even as I work as hard as I can to make my view reality. They're going to do the same. Each of us isn't better or worse than the other -- simply different.

Little things turn into bigger things. Not always physically, though children and saplings do just that. What I'm talking about is how a string of seemingly inconsequential, petty, and minimally-meaningful actions can turn into something that makes us go, "Wow, look at that!"

This is so obvious, it hardly needs saying. But sometimes the obvious begs for attention because we pay so little attention to what is continually evident.

Whenever I've tried to do something difficult, I've had moments of despair.

By "moment" I don't mean a few seconds; my despairing periods occasionally were lengthy. All I could do then was turn to whatever small thing needed doing, and try to keep my mind off of the prospect that the entire venture might, as the saying goes, end up down the crapper.

There's no 100% guarantee of success. Even when we're taking one step after another, a seemingly predictable exercise, in the next instant an earthquake could open up a crevasse beneath our feet, or a heart attack could stop us in our tracks.

Unlikely. Yet possible.

For five years my wife and I, along with the many other people who supported efforts to stop the subdivision in our neighborhood, weren't sure where our efforts were going to end up. All we knew was what lay right before us; the future was unseen behind a corner.

Quite a while ago I jotted down some ideas for a book. Mostly what I had was a title: "Fabulous Failure." What makes life fabulous isn't so much the final outcome (that's going to be death, after all) but how it is lived moment by moment.

Yes, much of the time our efforts are rewarded by attaining a desired goal. Not always, though.

So I try to have this attitude: if I attend to the little things that come up every day as diligently, mindfully, and energetically as possible, they will add up to a Big Thing: a meaningful life. (This doesn't equate to achieving a particular outcome; meaning is an inward state of mind, not an objective state of affairs.)

As time goes on, even the bigger things shrink. Here I wish I was adept at composing a haiku, because those preceding bold-faced words probably are better elucidated with poetry than prose. I have a strong intuition of what they mean, but it's largely inexpressible.

Which won't stop me from trying, though. So I'll express away, starting with something firmly concrete: my reading of the judge's final order.

I was struck by how weeks (or even months) of my work ended up becoming a line or two of legal substance in Judge Johnson's opinion. Sometimes she disagreed with a position that we and our attorneys took; other times, she agreed.

Regardless, the twenty-five pages of her "Findings of Fact and Conclusions of Law" were numerically a small fraction of the hundreds of pages submitted by the attorneys for both sides in their legal arguments that led up to this decision; and all of that was a small fraction of the thousands of pages in the complete record of the case.

Further, the information in all of this written material pales beside the content of the much more extensive personal experiences of everyone involved with the subdivision issue over the past five years.

We and our neighbors. The owners and would-be developers of the property. Marion County staff and elected officials. Consultants. Contrators. Attorneys. Employees of state and federal agencies. Newspaper reporters. And more...

Life ends up getting boiled down. This is its nature.

Someone recently asked me, "How long have you been married?" I said, "Twenty years." Two words. Just two. Yet what they represent, point to, signify, mean to me... the thickest book in the world wouldn't be enough to capture all of that.

On my other blog I've written about this is it. Not the movie about Michael Jackson, but the realization that each and every moment in life never will come again.

Not only that: the memory, traces, and remembrances of moments become increasingly condensed with time. The day after Laurel and I were married, I could describe to someone almost everything we'd experienced since our "I do's." (Keeping a few intimacies confidential, of course.)

Now, no way.

I can't even recall most of what has happened during our marriage, just as most of what has transpired in the course of our fight against the subdivision has disappeared from both the legal record and my psyche's recollections.

This is life.

It goes on, until it doesn't. Past moments are replaced by present ones. Even the satisfaction we may feel upon remembering a prior accomplishment or pleasure is occurring now.

When I was younger, I had the misconception that my life would be a success if I achieved great things. Now, at sixty-two, I've realized this is a fantasy. Small things are all I have. They don't aggregate, clump, or combine into big things.

It's time for a dog walk. That's a small thing. Which for me (and the family pet, Serena), is the same as a big thing.

Oregon Court of Appeals reverses Yamhill Co. subdivision approval

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:

http://www.publications.ojd.state.or.us/A140899.htm 

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.

Judge slaps down Marion County Commissioner Patti Milne

Ooh, I love it! A judge gets into a slapdown.

Not literally, of course, but judicially. A front page story in today's Statesman Journal tells the tale: "Judge blocks 43-lot subdivision in south Salem."
Download SJArticle-Laack subdivision

I had the news here first, in my Circuit Court reverses Marion County commissioners post. This was hugely reassuring for our neighborhood, which has been fighting the Ridge View Estates development (a.k.a. Laack subdivision) for almost five years.

Repeatedly, the Keep Our Water Safe committee formed to protect our property rights and senior water rights came out on the short end of 2-1 votes at meetings of the Board of Commissioners.

Patti Milne and Sam Brentano kept refusing to honor both facts and the law -- which isn't a good thing if you're an elected official sworn to defend the public interest, not your personal political and personal beliefs.

Now, Judge Nely Johnson has brought much needed fairness and truth to this long-running land use battle.

She reversed the Board's 2-1 flawed decision to approve a vested rights application that would have let the development continue, even though Oregonians voted in 2007 to protect high value farmland and groundwater limited land from large Measure 37 subdivisions like this one.

My wife and I have spent a lot of time in Board of Commissioners meetings, a lot, so we're intimately familiar with how Patti Milne makes decisions. In short, poorly. She thinks from her gut, so to speak, not with her head.

Truthiness is her thing, not truth.

In satire, truthiness is a "truth" that a person claims to know intuitively "from the gut" without regard to evidence, logic, intellectual examination, or facts.

As I noted before, sixty-five people signed a letter from the Keep Our Water Safe committee asking Patti Milne and the other commissioners to hold a hearing before they voted on the vested rights application.

We correctly pointed out that a hearing officer's report was inconclusive, inaccurate, and incomplete.

Yet Milne and Brentano said there wasn't any need to learn key facts and legal information. They just had a feeling that the developers should be able to carry on with the subdivision.

Judge Johnson proved them wrong. Milne and Brentano gave the subdivision a pass on all six common law vesting factors; Johnson ruled fail on the most important five factors.

That's a serious judicial slapdown. Marion County voters should do the same in their own way come November, when Patti Milne is up for reelection.

As my wife and I said in the press release about Johnson's ruling:

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.”

Circuit Court reverses Marion County commissioners

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.

9th Circuit reverses ruling that threatened Measure 49

Here's some good news for Oregon.

Today the 9th Circuit Court of Appeals reversed a 2008 decision by a federal District Court judge, Owen Panner, who opined that Measure 37 waivers were binding contracts -- so couldn't be overturned by voters' decisive approval of Measure 49 in 2007.

I wrote about Panner's decision in "Federal judge complicates Oregon land use policies." Fortunately, the 9th Circuit has uncomplicated them. Here's the brief ruling by the 9th Circuit.
Download Memo opinion cfcf

Ralph Bloemers of the Crag Law Center in Portland issued a press release about the 9th Circuit decision.
Download Press Release - Local Residents Hail Ruling Protecting Oregon's Rural Lands

Local Landowners Hail Court Ruling Protecting Oregon from Sprawl
Contact:    Ralph Bloemers Office 503-504-2432, Crag Law Center

In a decision issued today, the 9th Circuit Court of Appeals took a big step to preserve Oregon farm and forest lands from large developments proposed under former Measure 37 claims. The Court reversed an Oregon District Court decision that found that Measure 37 waivers were contracts and that the application of voter-approved Measure 49 violated the separation of powers doctrine. Measure 49 was passed in 2007 to reign in the worst abuses of Measure 37.

In Jackson County, a number of property owners with claims under former Measure 37 filed suit seeking to block the application of Measure 49 so they could continue with large developments on farm and forestland. One of the many claims involved in the suit proposed a large destination resort next to the Cascade Siskiyou National Monument. Other claims proposed developments on farmland in the Applegate River, on forestland along the Rogue River and were spread throughout Jackson County.

If the ruling had been upheld, the State’s land use system would have been in disarray. Over 7,500 claims were filed under Measure 37, and the ruling threatened to re-instate all of these claims despite the passage of Measure 49. Under Measure 37, owners made claims seeking to lift the application of laws that applied to them and their neighbors so they could build large developments on farm and forestlands. Neighbors grew increasingly concerned because the development proposals threatened rural land, the livability of these communities and the viability of local groundwater supplies.

Rogue Advocates, Oregon Shores Conservation Coalition, Friends of Marion County and Friends of Polk County worked with neighbors, including farmers, vineyard owners and other property owners, to appeal the District Court decision to the 9th Circuit Court of Appeals.

In the appeal, the groups pointed out that the landowners had not even started the large developments before Measure 49 passed. The land owners had spent money on lawyers and consultants to pursue large developments but had done nothing on the ground to establish the uses they proposed before Measure 49 passed. The 9th Circuit reversed Judge Panner’s decision and found that “the waivers do not show that there was any offer by Jackson County, acceptance by the property owners or consideration.” Further, the Court stated “[i]ndeed, the waivers disavow any promise to the property owners: “Jackson County does not promise Claimant(s) that Claimant(s) will eventually be able to put the property to any particular use.”

Now, instead of large subdivisions sprouting up on prime farmland and threatening water supplies, the owners will be able to pursue modest developments of up to three homes allowed under Measure 49. Ralph Bloemers, a staff attorney with the Crag Law Center, stated: “Many people sought to take advantage of Measure 37 and develop large residential subdivisions, commercial developments and gravel mines. These proposals threatened neighboring property rights, water supplies and undermined the efforts of people with more reasonable goals. This decision protects neighboring property owners and preserves Oregon’s valuable agricultural capabilities.”

Marion County subdivision vesting case in judge's hands

Beginning in 2005 our neighborhood here in rural south Salem (Oregon) has been fighting a proposed 43-lot subdivision that threatens our ground and surface water. Since my wife and I are leading the fight against what is usually called the "Laack subdivison," we're used to sitting through long meetings.

Planning Commission meetings. Board of Commissioners meetings. Hearing's Officer meetings. And today, a three hour Marion County Circuit Court hearing before Judge Nely Johnson (a retired Multnomah County judge who was brought in for this vested rights case).

The attorneys for our neighborhood's Keep Our Water Safe committee, Ralph Bloemers and Sean Malone, did a great job. Ralph focused on legal arguments, while Sean concentrated on facts. Vested rights cases in Oregon are determined on a common law basis. That is, judges' rulings on individual cases combine to form the law, rather than legislative statutes or executive actions.

Ralph said that all of the statewide (Oregon Court of Appeals and Supreme Court) vested rights cases are decades old, dating from before the passage of Measures 37 and 49, which altered land use law in Oregon significantly. Several Yamhill County vesting cases were argued before the Court of Appeals last January, so decisions are expected fairly soon -- which will add to the common law and clarify specific Measure 37/49 issues.

Naturally my main focus during the hearing was on the arguments being made by the four attorneys (the two on our side, and two who represented the would-be subdivision developers), and the questions being asked by Judge Johnson.

But now and then my thoughts drifted to a higher level of pondering: how marvelous it was that we Homo sapiens have evolved culturally into a species able to resolve disputes in such a civilized fashion. The attorneys were appealingly courteous to each other. Nobody raised his or her voice in anger or frustration. Facts and the law were being debated, not personal issues.

Lawyers don't get high rankings from the public. Gallup found that only 13% of people say that lawyers' honesty and ethical standards are very high or high. (Just 4% higher than members of Congress; ouch.)

Hmmmm. From what I saw today -- admittedly a tiny sample of lawyerdom -- that's a bum rap.

I admired the good arguments that were made on both sides. Sure, sometimes I disagreed with how some facts and case law were presented. But on the whole I was impressed with how all four attorneys and the judge were intent on discussing the key issues in the case forthrightly, openly, and intelligently.

In court cases, as in sporting events, there's a winner and a loser. Naturally that's important to the contesting parties. However, how the legal game gets played is, in the long run, the crucial thing. 

People get upset with judges and courts when they don't like a ruling. By and large, though, our legal system is respected -- as it should be. We don't have a King issuing edicts from on high, or soothsayers casting bones to discern what the Fates have decided.

After a few hours in the courtroom I got tired of sitting on a rather hard bench. But I never lost interest in the proceedings, which struck me as representing the American legal way: fight hard for what you believe in, play fair, and may the best legal argument win.

Measure 37 vesting cases reach Oregon Court of Appeals

It's been a couple of years since Measure 49 was approved by 62% of Oregonians in November 2007, putting the brakes on the Measure 37 train wreck that threatened to demolish the state's pioneering land use system.

Most property owners who made a claim under Measure 37 to be exempt from land use laws that applied to everybody else -- to put a bunch of houses on high value farmland, for example -- have taken advantage of a provision in Measure 49 that allows them to have three home sites on six acres of their least productive farm or forest land.

But a few who had made a start on developing their Measure 37 claim prior to the passage of Measure 49 are pressing ahead with vested rights applications. In November 2007 I predicted that few of these would succeed. 

Vesting basically means to be "grandfathered" in (sorry, grandmothers, I didn't come up with that word choice).

Measure 49 says that vesting decisions are to be made under the common law in Oregon -- essentially a bunch of individual cases that combine, sometimes not very smoothly, into a blend called "vested rights common law."

This law is being applied in several vested rights cases that have reached the Oregon Court of Appeals after initial decisions at the county level. Recently Ralph Bloemers, an attorney with Portland's Crag Law Center, argued two Yamhill County cases on behalf of Friends of Yamhill County and others who are trying to protect farmland from excessive development.

A posting on the Crag Law Center web site summarizes the Court of Appeals cases. A story in the Newberg Graphic discussed one of the cases, the proposed McClure annexation.

They're significant, because Oregon only has one Court of Appeals (the highest state court other than the Supreme Court). So a Court of Appeals decision becomes a statewide precedent.

Land use geek that I am, I attended both hearings.

It was my first time in the Supreme Court hearing room, which the Court of Appeals also uses. It's appealingly old-fashioned. Stained glass window ceiling. Dark wood. Comfortable couches along the walls.

The judges asked good questions and made good comments. The attorneys presented good arguments, some better than others. All in all it was an entertaining couple of hours (I watched just about the entire O.J. Simpson trial on Court TV; this wasn't nearly as exciting, but it still appealed to my inner lawyer).

A high, or low, point came when I was waiting for a vested rights case to start and didn't want to pay complete attention to the arguments in a preceding case. I'd brought along some reading material and was quietly perusing an issue of "New Scientist."

Until the female bailiff walked over and whispered to me, "There's no reading during a session. It's disrespectful to the judges." I told her, "Sorry," and put the magazine down.

I then looked around and observed a number of other people reading away. Attorneys, some in the audience and some at the court tables, were reading notes and legal papers. A guy next to me was reading a law summary of some sort. Reading was happening all over.

Well, I decided I wouldn't have much chance of winning a challenge of the "no reading" rule -- at least before the Court of Appeals, since they made the rule.

Lastly, the Portland Oregonian ran a story today about how the state's land use system is successfully preserving valuable farmland in the Metro area. This is a great example of why citizens passed Measure 49.

The region's unsettled growth questions round into view at Peter McDonald's 1870s farmhouse. All the long-range population and job projections. All the tense debate over designating land for houses, stores and factories, or for farms and forests.

McDonald's Inchinnan Farm sits along the Willamette River, 20 minutes removed from the 1.5 million people who fill the Portland metro area and 20 years shy of the 1 million more projected to join them. But out the farmhouse windows and beyond the uniform rows of his hazelnut trees, there isn't another structure, vehicle or person in sight.

McDonald and a rising chorus of fellow farmers want to keep it that way.

To an extent not seen since Oregon's land-use system was adopted 35 years ago, farmers in Clackamas, Multnomah and especially Washington County are siding with conservation groups and local-food activists on the issue of designating urban and rural reserves -- areas that will be developed or preserved for the next 40 to 50 years.

At public hearings across the region, plain-spoken farmers in Carhartt jackets, work boots and blue jeans are calling for compact cities, tight urban growth boundaries and strict protection of farmland. Jim Johnson, the state Department of Agriculture's land-use specialist, said he's never seen such a collaboration of farmers and environmentalists.

Some April '09 Oregon land use news

Like I said earlier this month, things have been pretty quiet on the Oregon land use front since Measure 49 was passed by voters in November 2007, restoring some much-needed protections to this state's vaunted livability.

But there's been some action recently.

Closest to home, a Marion County hearings officer issued her recommendation on the Laack subdivision vested rights application. (It's a 3.2 MB file.)
Download Laack vested rights recommendation

My wife and I have been leading our neighborhood's fight against the proposed subdivision, which the county's own groundwater experts say threatens neighboring wells and nearby Spring Lake.

The vested rights "recommendation" really isn't one, since it leaves tricky legal and factual questions up to the Marion County Board of Commissioners to decide. We're hoping that the Board will have a public hearing before they make a decision.

If you agree that deciding whether to allow 43 homes (and wells) on groundwater limited farmland deserves a public hearing, let the commissioners know that you'd like this to happen. Here's a link to a page with their email addresses.

On the legislative front, bills have been introduced in both houses of the Oregon legislature that would allow more Measure 37 claimants to request 3-10 home sites under provisions of Measure 49.
Download SJArticle-904160328

The bills also would require the Department of Land Conservation and Development to deal with those requests by June 30, 2010. (The department has been criticized for taking too long to process the Measure 49 paperwork.)

It's nice to see that 1000 Friends of Oregon and Oregonians in Action, which usually are on opposite sides of the land use fence, were able to agree on these bills.

Finally, the Oregonian reported today that the Court of Appeals reversed a lower court decision and required that Multnomah County pay a $1.15 million judgment to the estate of Dorothy English, the 90'ish woman who became the "poster child" for the campaign to pass Measure 37 in 2004.

I don't know much about this case. It doesn't bear on other Measure 37 claims, or Measure 49, so far as I can tell. When Multnomah County approved English's claim, apparently excessive restrictions were placed on the eight home sites she requested.

Oregon Court of Appeals ruling supports Measure 49

The Oregon land use front has been pretty quiet since Measure 49 was passed by voters in 2007, negating the most obnoxious provisions of Measure 37 -- which allowed some property owners to opt out of rules that everyone else has to live by.

However, legal issues relating to these measures continue to percolate in the coffee maker of state and federal courts (to use metaphorical language that I regretted as soon as the words dripped through the filter of my writing mind, but which I'm too lazy to change).

One of these issues is whether Oregon's "goal post statute" -- ORS 215.427(3)(a) -- applies to Measure 37 claims. I'm not exactly sure how the goal post metaphor is to be applied here, but since I'm into metaphors, I'll hazard a guess:

If a kicker in football attempts a field goal, it wouldn't be fair if the opposing team managed to move the goal posts while the ball was in mid-air.

Similarly, the intent of the goal post statute is to assure that the standards in effect at the time a land use application is submitted determine its approval or denial, even if those standards change after the submission date. (At least, that's my non-lawyerly understanding.)

This issue has come up in several Measure 37 cases, including some vested rights determinations in Yamhill County. A basic question is whether the passage of Measure 49 unfairly changed the goal posts, or whether this was a valid exercise of the public's voting will.

A few days ago the Oregon Court of Appeals issued an answer: Measure 49 trumps Measure 37, so Measure 37 waivers aren't protected by the goal post statute. (Ruling can be read here.)

Good news.

The Court's opinion said that specific statutes trump general statutes, and recent statutes trump older statutes. Here's key excerpts from the order that show the legal reasoning.

Judge Panner issues stay of Measure 37 waiver ruling

Here's some good news for the Oregon land use system: the federal judge, Owen Panner, who ruled back in November that Measure 37 waivers in Jackson County are still valid, has issued a stay of his ruling.
Download Judge Panner - Order Issuing Stay Pending Appeal

So elected officials in Jackson County don't have to worry about being caught between Panner's contention that the county waivers of land use laws are still in effect, and the Department of Land Conservation and Development position that no development can take place because necessary state waivers aren't in effect.

This case is being appealed to the Ninth Circuit Court of Appeals. Hopefully it will be overturned.

State says "stop" to Measure 37 subdivision

Last month federal judge Owen Panner ruled that some property owners in southern Oregon had a binding contract with Jackson County over their county waivers of land use regulations under Measure 37.

That was an early Christmas present for Oregonians in Action and other opponents of Measure 49, which rolled back Measure 37 in order to protect irreplaceable farm, forest, and groundwater limited land.

They hoped this would open the door again for subdivisions to sprout where crops and trees grow now. Pave it over could replace Keep Oregon green as a state motto.

Well, not so fast.

A few days ago Richard Whitman, director of the Department of Land Conservation and Development (DLCD) sent a letter to the chair of the Jackson County Board of Commissioners.
Download jackson_county_ferns_comment_letter_121008.pdf

He said that a "stop" sign needs to be placed in the way of a proposed 12-lot subdivision on land zoned for exclusive farm use.

Whitman makes a lot of sense (even with some typos in the letter). He points out that were a county land use law to be waived, state law still remains in effect.

In sum, under [t]he terms of Measure 49, applicable court decisions, and LCDC rules and irrespective of the status of the county's Measure 37 waivers, the county may not lawfully approve a land use permit for the proposed subdivision because that subdivision in [sic] unlawful under state statutes and rules and the state's waiver of those statutes and rules is no longer in effect.

When he says "no longer in effect," this refers to rulings by the Oregon Supreme Court, Court of Appeals, and Land Use Board of Appeals that affirmed the primacy of Measure 49 over Measure 37.

However, the Oregon Supreme Court has held that the state's waivers under Measure 37 are no longer in effect. Corey v. DLCD, 344 Or 457 (2008)  ("Measure 49 by its terms deprives Measure 37 waivers -- and all orders disposing of Measure 37 claims -- of any continuing viability, with a single exception that does not apply to plaintiffs' claim.

Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect.).  The Court of Appeals also has held that any rights an owner had under Measure 37 are converted to rights under Measure 49, and must be analyzed under that law.  Frank v. DLCD, 217 Or App 498 (2008).

Measure 37 waivers are gone. Vanished. Non-existent.

The only way a waiver can be brought back to life is if a claimant's development is determined to be vested under common law (the "single exception" in the passage from Whitman's letter quoted above).

This isn't the end of the legal wrangling over what Judge Panner's decision means for Measure 37 claimants.

However, DLCD has cast additional light on the situation, and I'm hopeful that Whitman's legal reasoning will prevail in the end.

Federal judge complicates Oregon land use policies

Just when it seemed that with the passage of Measure 49 last year, some clarity had emerged about Oregon land use policies, now a federal district judge has ruled that Measure 37 waivers are still alive in Jackson County.

Measure 49 markedly rolled back the excesses of Measure 37. In November 2007 sixty-two percent of Oregonians voted to preserve irreplaceable farm, forest, and groundwater limited land from excessive development.

Measure 37, passed in 2004, allowed property owners to get waivers from land use regulations passed after they acquired their property. This created a privileged class based on when someone came to own a piece of land.

Most laws don't act that way. If the speed limit changes on a freeway, you have to obey it, no matter when you got your car -- even if it's a Porsche that you bought so you could drive fast.

Measure 49 restored fairness to Oregon's land use system.

It allowed Measure 37 claimants to have three home sites on their property (up to ten if they could prove a loss of value from land use regulation). But subdivisions and commercial uses, such as gravel pits, were banned from farm and forest land.

A lawsuit was filed in federal court challenging Jackson County's right to follow Measure 49 and roll back development under Measure 37. Judge Owen Panner ruled in favor of the plaintiffs. You can read his decision here.
Download 111208_decision_cfcf_v_jackson_co.pdf

Not being an attorney, I'm not competent to comment on Panner's reasoning.

The only two things I'm pretty certain about is that (1) this decision complicates the implementation of Measure 49, and (2) it will be challenged.

A follow-up story in today's Oregonian points out some of the problems with this federal intervention into Oregon law.

Meanwhile, Jackson County Commissioner Dennis C.W. Smith said the ruling didn't specify how the county should remedy the situation, but direction should be coming from the judge soon. The county hasn't decided whether it will appeal the decision to the next step up the legal ladder: the 9th U.S. Circuit Court of Appeals.

"The state court says do it one way, the federal court says do it another -- I feel like a yo-yo," Smith said. "Nothing in relation to land use catches me by surprise."

What Commissioner Smith probably is referring to is a decision in May 2008 by the Oregon Supreme Court, Corey v. DLCD, that affirmed Measure 49. The Supreme Court said:

In the end, we hold only that plaintiffs' contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers -- and all orders disposing of Measure 37 claims -- of any continuing viability, with a single exception that does not apply to plaintiffs' claim.

Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. It follows that resolution of the issue that the Court of Appeals decided in Corey and as to which we allowed review -- whether the Court of Appeals or the circuit court has jurisdiction to review DLCD's final order respecting plaintiffs' Measure 37 claim -- can have no practical effect upon the parties: If the order at issue has no continuing legal effect, then neither party can gain anything from review in either forum. The case is moot.

So a federal judge says one thing; the Oregon Supreme Court says another thing. Let the lawsuits continue.

Our nation is ruled by law. I've got no problem with this issue being played out in the courts. I'm confident that a sound decision will be arrived at in the end.

I just hope that the conservatives who are applauding Judge Tanner's ruling appreciate the irony of this situation, because most of these folks are fond of railing on about "activist judges" who "overturn the will of the people."

Well, that's what happened here. A single judge has said that his opinion counts more than 62% of Oregon voters (although Tanner didn't rule that Measure 49 was unconstitutional).

And there's nothing wrong with that. Again, we're a nation of laws, not of unfettered majority rule. 

Let's just be consistent, right-wingers, and not froth at the mouth the next time a court affirms the right of gays to marry, or blocks the Ten Commandments from being displayed in a government building.

Land use planning isn’t a United Nations plot

Many of the right-wing land use zealots who brought Oregon the mess that was Measure 37 have some very strange fantasies.

One is that the United Nations somehow is behind land use planning in the United States – fitting in with the notion that the Secretary General of the U.N. is the antichrist and black helicopters are positioned to take over this country once the liberals have succeeded in handing over the keys to the Constitution.

Gee. Who knew? Guess I was crazy to think that zoning was a good idea. Apparently it's all-American to have gravel pits in residential neighborhoods and chemical plants next to elementary schools.

Today, a letter to the editor in the Salem Statesman Journal spewed out some untruths that led me to fire up Google and uncover some reality. Arlie W. Freauf wrote about a decision by the City Council to stop a helicopter flying school from (noisily) using the Salem airport:

I've lived for many years where I suspect the Leading Edge Aviation helicopters may fly.

When I read that the FAA is threatening to withhold airport money for Salem if the city council doesn't approve the helicopter school, I was reminded about then-Gov. Tom McCall's visit to Washington, D.C., on Feb. 7, 1973, to testify before the Interior and Insular Affairs committee on U.S. Senate S. 268 regarding U.N. land-use planning, which he was promoting.

Environmentalist Tom wanted the federal government to become more intrusive into state land issues. While admitting it was a "cop-out," he recognized local officials could blame the feds because grass-root opposition made it difficult to do certain things.

"So we need the strong sword of Damocles that the federal government can provide," he said. He also advocated putting sanctions on the states that "wouldn't break them" but that they should "sting like the devil."

Socialism requires a powerful central government. People do not easily or naturally adapt themselves to socialism, so it must rest upon force.

Force? Oh, Freauf must mean democracy.

Last time I looked the Salem City Council was elected. So were the state legislators who passed Oregon's pioneering land use legislation, SB 100. And Oregon citizens overwhelmingly voted to roll back the excesses of Measure 37 when they passed Measure 49 last November.

My Googling revealed that another Freauf, Betty, had expressed some remarkably similar sentiments to Arlie's in "Socialism Must Rest Upon Force." Methinks these Freauf's are related.

And equally mistaken.  Because when I did some research on Senate Bill 268, which supposedly was about "U.N. land-use planning" that Oregon Governor Tom McCall was promoting in 1973, the truth turned out to be quite different.

Forking out $3.95 to get an article from the New York Times archive (a small price to pay to demolish right-wing falsehoods), I learned that S. 268 was a bipartisan proposal backed by the Nixon administration. Click on the image to read the beginning of the story. Full PDF file is here:
Download s. 268 article.pdf

Later in the story, there was a summary of S. 268. Nothing to do with the United Nations – just an effort to get states to set up land use planning programs of their own choosing.

Well, I'm sure Arlie Freauf would have some explanation. Maybe Tricky Dick was in cahoots with the United Nations. After all, he proposed the Environmental Protection Agency, didn't he? That shows how low he'd go to take away our freedoms.

Bottom line: don't believe what you read in letters to the editor. Especially if they mention "U.N." and "land use" in the same sentence.

How to survive a Measure 37 vested rights hearing

Yesterday Marion County held a public hearing on the Ridge View Estates (a.k.a. Laack subdivision) application for a vested rights determination.

Meaning, LeRoy Laack hopes to show that he's done enough work on the 43-home, 217 acre project to be able to continue on with it, even though Measure 49, which was voted in last November, prohibits more than three homes on high value farmland or groundwater limited land – which this property is.

The Salem Statesman Journal had a front page story on the hearing today, "Arguments churn at vested rights land-use hearing."

Well, not just arguments. My stomach also. Fortunately, before I left home I remembered that every hearing that's been held on the Laack subdivision has been hugely long.

Most Measure 37 cases are complex. This one, unusually so. So I presciently packed: (1) a ultra healthy low-fat muffin, (2) two granola bars, and (3) a bag of almonds.

Plus, I had a wheat bagel just before the hearing started, fortifying myself at the nearby Beanery coffeehouse.

So I was pretty well prepared for a lengthy session. But after the Laack contingent had made their case, and our Crag Law Center attorney (Ralph Bloemers) had started his own presentation, the churning within my stomach had begun to equal the churning within my argument-filled mind.

Digging into my backpack, which I use as a briefcase, I managed to chomp through some of my eats without attracting too much attention to myself (sitting in the front row, I decided to pass on the granola bars, not wanting crunch, crunch to become part of the official record via the tape of the hearing).

Soon, I also dug into it to retrieve the testimony that I'd prepared on behalf of our neighborhood's Keep Our Water Safe committee and Friends of Marion County.

In my not-so-humble opinion, it's a work of vested rights determination literary art. But that could just be my ego speaking.

Figuring that those into reading these sorts of documents, all two or three of you in the blogosphere, might find some of what I wrote helpful in another legal situation, I'll share the submission: Download marion_county_claimant_laack_not_vested_blog_sharing.doc

The hearing ended with the applicants getting three weeks to submit more info. to the hearings officer; then we get three weeks to respond to their submission; then Laack, et. al. get three more weeks to respond to our submission about their submission.

This case will come to an end someday. Not soon, though. I suspect I'll be filling my backpack with more food before all this is over.

Measure 49 vesting case gets weighty

Eight pounds, to be exact. That's what I had to carry out of the Marion County Planning Division last Wednesday, after staff had made a copy of Leroy Laack's Measure 49 vested rights application.

Yesterday the Salem Statesman Journal ran a front page story about it: Measure 49 is put to the test: property owners hope vested rights allow work to proceed on stalled development.

Those who haven't followed the saga of our neighborhood's fight to protect our groundwater from a proposed 42 lot subdivision on high value farmland in a groundwater limited area can peruse the many posts in this blog's "Measure 37" category.

I've written about vesting several times. It's an attempt to be "grandfathered in" under Measure 37, which Oregonians overwhelmingly voted to fix via Measure 49 last November.

The only way Measure 37 claimants can continue on with their original plans is to prove that they were far enough along with their development to be vested under Oregon common law.

A public hearing on the case has been scheduled for July 23. That's when our neighborhood's Keep Our Water Safe Committee, along with attorneys from the Crag Law Center, will present a rebuttal to the eight pounds of paper.

It's interesting reading, if you're into this sort of stuff – which I am, naturally, since my wife and I are leading our neighborhood's opposition to the subdivision.

My interest also was piqued by the mentions of "Brian Hines" in the application. Those words always catch my eye, for some egotistical reason.

"On or around September 21, 2007, Brian Hines made complaints to Marion County Department of Public Works and the Marion County Board of Commissioners asserting that the Claimants were unlawfully proceeding without necessary permits. Mr. Hines alleged that Marion County Board Order 07-303 required a Major Construction Permit prior to beginning land clearing and grading. Marion County Legal Counsel Jo Stonecipher notified Claimants' counsel of the alleged violation."

Well, not quite true. But I'll save my quibbles for the hearing and move on to another mention of me.

"Additionally, on September 25^th, discussions took place with DEQ regarding erosion measures and complaints that arose from Mr. Hines and the CRAG Law Center."

Ah, that brings back memories. Which I'll get to revisit as we write our analysis of the vested rights application. I don't think we'll be able to outweigh them. But hopefully we'll out-argument them.

Measure 49 making more news now

For a while things were pretty quiet on the Oregon land use front. But now my "Measure 37" Google News alert is sending me more stories, as the implementation of Measure 49 produces increased legal activity.

In Benton County the Board of Commissioners essentially put a stop to a seven-lot Measure 37 subdivision sought by Charlie Fischer.

The Gazette Times story, "Benton grants Fischer right to subdivide, but not to build," says that Fischer hadn't spent enough before the passage of Measure 49 to be fully vested (basically, grandfathered in). He'd been able to get lots approved, but not dwellings built.

Since Measure 37 doesn't allow for the transferability of building rights, Fischer needed to construct homes on the seven lots. He couldn't sell the lots to other people with the right to build their own houses. So now he's left with lots on EFU land that can only be used for farming, not residences.

However, Measure 49 allows him three home sites. And transferability. Thus Fischer should be able to make quite a bit of money from his property – much more than the $67,000 he's put into development activities so far.

The West Linn Tidings ran a story on a Clackamas County vesting case that was the subject of a previous post. The subtitle of "Judge says no to Tumwater" is Decision to reject the Petes Mountain development could set a precedent in the application of Measure 49.

Here, as in Benton County, it was determined that the Measure 37 claimant had to have done considerable work on building homes before the subdivision could get a thumbs up on vesting. Even though the developer had spent more than $1 million, this was a small percentage of the $30 million needed to complete the project.

Plus, the judge ruled that the work that'd been done could be adapted to the three home sites allowed by Measure 49.

Another interesting case is in Yamhill county, described by the News-Register in "M37 case catches county in conundrum." Neighbors of the Kroo subdivision appealed its approval, and the Land Use Board of Appeals "remanded the case to the county for a do-over on technical grounds."

Problem is, Measure 37 doesn't exist anymore, after the passage of Measure 49. So there's no Measure 37 claim to do-over.

Because all this is still in the appeals process, one school of thought holds that the Kroos do not yet have approval for a subdivision. If that's the case, they can't get it approved now, because the law that enabled them to go for it, Measure 37, has since been overturned by Measure 49.

That, anyway, is the state's argument.

In anticipation of Wednesday's remand hearing before the county commissioners, Michael Morrisey of the state Department of Land Conservation and Development told the county "the applicant's Measure 37 waivers have no further force or effect and therefore cannot support the requested subdivision."

If so, the Kroo's will end up with a three lot, rather than 10-lot, development. Again, less than they hoped for, but more than they would have been entitled to without Measure 49 if they weren't vested under Measure 37.

Judge says “no” to Measure 37 subdivision

Everyone in Oregon who voted for Measure 49, give yourself a pat on the back. (Or wherever else you choose.)

Without you a judge wouldn't have ruled Thursday that a planned 41-home subdivision in Clackamas County can't proceed – being subject to the three home limit Measure 49 places on development in a groundwater limited area.

Which Pete's Mountain is. In an Oregonian story, "Measure 49 stops Clackamas County subdivision," a neighbor expressed his concern.

"I can live without electricity, but I can't live without water," said Dave Krevanko, who lives across the street from the development. Putting in a new, deeper well, he said, would cost tens of thousands of dollars.

Water wasn't the reason the subdivision was stopped, though. Judge Alexander found that the Measure 37 claimants (Cecille and W. Leigh Campbell, and co-owner Don Bowerman) hadn't spent enough on the development to be vested – which basically means "grandfathered in."

As noted in my "Pete's Mountain vesting case goes to court" post, the property owners weren't including the expense of building 41 homes when they calculated what proportion of the total project cost had been incurred prior to the passage of Measure 49.

Judge Alexander correctly included that large expense, because building rights for lots in a Measure 37 can't be transferred to new owners. So the Campbell's and Bowerman would have had to construct the homes themselves.

Another newspaper story, "New vesting decision casts local shadow," notes that the Pete's Mountain case bodes well for opponents of another large subdivision in Yamhill County.

As land-use activists prepare to mount a legal challenge to the high-profile Abrams subdivision west of McMinnville, they're hailing a case out of Clackamas County that they say has major implications for all subdivision projects proceeding in spite of Measure 49.

Todd Sadlo is a McMinnville attorney who served as the hearings officer for Yamhill County. He said that the Abrams subdivision was vested, ignoring the case law that Judge Alexander cited in his ruling.

You'd think that Sadlo would be open to considering Alexander's arguments, given that he's a district court judge and Sadlo isn't, but apparently not.

Sadlo said he had read the decision, and said it didn't overly concern him. "These cases really don't have any value as precedent," he said. "They really don't have anything to do with me."

Narrowly true in a legal sense, because a district court decision isn't binding in other Oregon districts. But if the Pete's Mountain decision is upheld by the Court of Appeals, Sadlo will be forced to change his tune.

Pete’s Mountain vesting case goes to court

Measures 37 and 49, which modified Oregon's land use laws, mostly are out of the state's consciousness after the hotly contested successful campaign to pass Measure 49 last November.

But not out of mind for those concerned about large Measure 37 claims which hope to be deemed vested ("grandfathered in," basically) because they were far enough along with development before Measure 49 came along.

A court case on the Tumwater at Pete's Mountain project just concluded two days of hearings. Read all about it in the West Linn Tidings: "Tumwater is in the judge's hands."

Ralph Bloemers, a Crag Law Center attorney who is representing our neighborhood in another Measure 37 subdivision case, is quoted in the story. He argued against vesting on behalf of a group of Pete's Mountain residents.

I was pleased to read that there were six state attorneys defending the case. Meaning, the state Department of Justice opposes a vested rights determination.

As it should.

The Goal One Coalition has asked the Department of Land Conservation and Development to yank vesting decisions from counties because so many vested rights applications are being rubber-stamped without regard for the common law.

While the Tumwater at Pete's Mountain case is being heard in district court, the same vesting issues are in play in cases heard by a county hearings officer or board of commissioners.

Such as whether the expenditures a Measure 37 claimant has made are a significant fraction of the total cost of development. A ratio of 1:14 (or 7.1%) is a frequently cited figure – based on case law.

There also are legal precedents about what expenses and costs should be included in the numerator and denominator of the ratio. And judging from the West Linn Tidings story, these are being argued about in the Pete's Mountain vesting case.

The attorney representing the owners of the property, Charles Markley, asserted that the total cost of development doesn't include building homes on the 41 lots in the subdivision. The Department of Justice attorney argued otherwise, correctly.

Development rights for Measure 37 claims aren't transferable. So it isn't possible to sell bare land to a buyer, who then would build a home on the lot. The claimant needs to sell a home along with the lot, which means the total cost of development is much more than the cost of building roads and other infrastructure.

Yet somehow the Pete's Mountain owners are saying that the whole project will cost only $3,285,000. Since they claim to have already spent $1,342,280, that's over 40% of the total cost – way above 7.1%.

Not so fast, says the Department of Justice and concerned neighbors of the project. What about the homes that would need to be built on the lots?

Here's where we see the games Measure 37 claimants like to play in vesting cases.

Speaking in defense of the landowners, Markley said if the court wants to include the value of homes that could be built in the future his estimate of the value of those homes and land would be about $15.5 million, which means that 8 percent was invested before the effective date of M-49.

This means, by my calculations, that 41 homes supposedly could be built for $12,215,000 ($15.5 million minus $3.285 million), or $298,000 a house. And how did Markley arrive at that figure?

Well, it's no coincidence, for sure, that 8% is a teensy bit above 7.1%, the ratio frequently used in vesting cases as an indication that substantial expenditures have been made on a development. But is it reasonable?

The Department of Justice attorney, Stacey Posegate, didn't think so.

But Posegate told the judge that the properties (from one to two acres each) are designed for high-value homes that would have a value of between $30 million and $40 million, bringing the percentage below the court-tested amount.

That translates into a per home cost between $732,000 and $976,000. I'd say that's a more reasonable reflection of the housing market in that area.

Heck, the nascent Tumwater at Pete's Mountain web site speaks of "Estate home sites." I don't think many people would consider that a $298,000 house on a 1-2 acre Pete's Mountain lot deserves the title of "estate."

Here's how a West Linn real estate broker described Pete's Mountain: fancy.

I live and [in] West Linn (5 years now) and I am also a real estate broker. West Linn does tend to be more pricey, but there are older areas of the city where the homes may not be as well-kept. Some of these homes get purchased and then fixed up, but it takes time for the whole neighborhood to turn over. Some of the older areas are Bolton, Cedaroak, Robinwood and Sunset. There are many fancy areas also: Barrington, Hidden Springs, Parts of Tanner, Pete's Mountain.

Hopefully the district court judge won't be fooled by the low-ball $298,000 home construction estimate. His decision will be made by May 30, according to the newspaper story.

Oregon Supreme Court affirms Measure 49

Good legal news for those who love the naturalness of Oregon, rather than unneeded subdivisions on prime farm and forest land. Last Thursday the state Supreme Court ruled on the Corey case.

The decision affirmed that Measure 49, voted in last November by a wide margin, trumps Measure 37 – which Measure 49 fixed. Oregonians in Action, plus others who favor the rights of a few Measure 37 claimants over the property rights of the many, had been hoping that Corey v. DLCD would overturn Measure 49 in some fashion.

But the position of the Department of Land Conservation and Development was affirmed by the Supreme Court.

In the end, we hold only that plaintiffs' contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers -- and all orders disposing of Measure 37 claims -- of any continuing viability, with a single exception that does not apply to plaintiffs' claim.

Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. It follows that resolution of the issue that the Court of Appeals decided in Corey and as to which we allowed review -- whether the Court of Appeals or the circuit court has jurisdiction to review DLCD's final order respecting plaintiffs' Measure 37 claim -- can have no practical effect upon the parties: If the order at issue has no continuing legal effect, then neither party can gain anything from review in either forum. The case is moot.

It's sort of strange that Oregon's largest newspapers didn't cover this story. I learned about it through the Medford Mail Tribune ("Ruling backs Measure 49 over 37") and the Albany Democrat Herald ("Supreme Court ruling backs county's actions on land use").

The latest issue of the Oregonians in Action newsletter had a dream…that somehow the pave it over advocates would wake up and find that a court had ruled that Measure 37 was still the law of the land.

It could be argued that the Court of Appeals' decision in Corey makes Measure 37 waivers a property right that cannot be taken from property owners without some form of compensation.

Fortunately for Oregon, the Supreme Court disagreed.

Subdivision’s Measure 37 vested rights to be tested

I can't remember when I've looked at a front page headline in our local newspaper and seen better news. I was ecstatic, overjoyed, uplifted when I pulled the paper out of our box this morning.

Whew! We looked fine in the picture a Salem Statesman Journal photographer had taken of us yesterday, standing in front of the proposed Measure 37 subdivision adjacent to our neighborhood.

Mostly because the photo that made it into the paper was taken a fair distance from us, unlike the many close-ups that, thankfully, earned a "delete" button press.

The "Land case may test 'vested rights'" story focused on the recent LUBA ruling on the Keep Our Water Safe committee's appeal of the subdivision approval by Marion County.

The owners are seeking vested rights to continue their 43-lot subdivision.

But attorneys for the neighbors said that the LUBA decision makes earning vested rights difficult.

"It is important to put into context the larger issues for this potential subdivision development," said James Brown, one of the attorneys for the neighbors. "With adoption of Measure 49, there is a process to convert claims to Measure 49 potential uses. You have to establish that you had a lawful land-use approval and that you made expenditures and other factors by Dec. 6. (The LUBA opinion) says they did not have a lawful land-use approval. That will potentially play out if owners seek vesting."

Actually, Leroy Laack and the other owners of the property haven't yet applied for a vested rights determination from Marion County (which basically is an effort to prove that they're "grandfathered in" under Measure 37 and don't have to comply with Measure 49).

I checked with the county this morning and confirmed that no application has been submitted yet. Almost certainly it's coming, though.

I've got a Google News alert for "Measure 37" and "Measure 49," so have been keeping up on newspaper stories about these subjects. The main news since Measure 49 passed last November is now little news there has been.

This is good. It shows that Measure 49 is being implemented smoothly, despite "the sky is falling!" predictions of Oregonians in Action and others opposed to the new law.

A few days ago the Albany Democrat Herald ran one of the rare Measure 49 stories, "Planners deny M49 claim for orchard owner." Charlie Fischer tried to vest his seven-lot Cherry Farm subdivision and failed.

Benton County ruled that the $67,000 he'd put into the project wasn't a large enough percentage of the total project cost under Oregon's vesting common law.

Measure 37 claims aren't transferable, so Fischer would have needed to build homes on each of the seven lots, then sell the homes along with the lots. That meant the total cost of the subdivision would be about $1.76 million, so he'd spent less than 4% of that.

Fortunately for Fischer (who has a wife in a nursing home), Measure 49 allows three home sites on farm land. And building rights on those lots are transferable to the new owners. So he'll be able to sell three lots without expending hundreds of thousands of dollars on home construction.

Measure 49 is a compromise.

It doesn't give many Measure 37 claimants all the development rights they wanted, and it allows more homes on farm, forest, and groundwater limited land than many neighbors wanted.

It helps bring Oregon's land use system into balance – a good thing.

LUBA decision aids our Measure 37 subdivision fight

Our neighborhood got some good news today from the Oregon Land Use Board of Appeals.

A ruling was issued on the Keep Our Water Safe Committee appeal of Marion County's decision to approve a 43-lot Measure 37 subdivision on groundwater limited, high-value farmland.

LUBA remanded the case back to the county. Meaning, the Board of Commissioners has to deal with an error they made in granting a Measure 37 waiver of land use regulations to the four owners of the property.

Land use law junkies can pour over the first ten pages of LUBA's Final Opinion and Order to learn more than ordinary readers of this blog want to know about waiver ownership issues. Download luba_opinion_31908_laack.pdf

Here's the key thing, for those who have been following the twists and turns of our neighborhood's battle to protect area groundwater from over-development (see many of the posts in this blog's "Measure 37" category).

With the passage of Measure 49 last November, Measure 37 claims like the Laack subdivision are limited to three home sites – not 43, the current development plan. To continue on under what's allowed by Measure 37, a claimant has to be vested.

Meaning, sufficient work has to have been done on the development to justify allowing the project to proceed under the old law.

Here's the legal rub: that development must be pursuant to a valid land use approval.

And LUBA has just ruled that Marion County erred in its approval. So the clock will start over on valid vesting expenditures once the Board of Commissioners fixes the problems with its invalid land use approval.

We and our neighbors wish that LUBA had agreed with every "assignment of error" our attorneys raised in their brief. But we're happy that we prevailed on this important issue.

It already was going to be very difficult for the owners of this property to prove they were vested, given the common law in this area. Now it would be even tougher.

The fight to protect our neighborhood's groundwater isn't over. But today we won an important battle. Stay tuned to this blog for updates.

Measure 49 is the law of our land—deal with it

It'd be amusing, if the issues weren't so serious, how Measure 37 supporters are acting so offended because Oregonians approved Measure 49 last November.

Oh my god! It's unfair! The voters changed Oregon's land use laws!

Cry me a river. But don't expect me to feel sorry for you. Don't you see how hypocritical all this bemoaning is?

Many thousands of Oregonians, including neighbors of ours, figured that when they bought land to build a house the zoning of surrounding acreages wouldn't be changed willy-nilly.

For example, if a large tract of farm land was next door, they expected that it would stay as EFU (exclusive farm use) unless an open and fair rezoning process was followed.

But along came Measure 37 in 2004. Now there was a special privileged class of landowners: people who could ignore land use laws because they owned property before the laws went into effect.

This was like allowing those who owned a car before a lower speed limit went into effect to drive as fast as before, while everybody else had to obey the new law.

When the speeders started to have lots of crashes, you'd expect there would be a push to have all drivers follow the same rules, by and large.

And that's what happened with Measure 49.

It went a long way toward restoring fairness to Oregon's land use system. Now only three home sites can be on a Measure 37 claim that consists of farm, forest, or groundwater limited land.

Neighbors of the claim have had their property rights restored, because now there's a balanced process to guide development instead of giving free rein to large subdivisions to pave over irreplaceable resource land.

Change happens. Democracy happens. The same people complaining about the changes Measure 49 has brought about were happy when Measure 37's changes were approved.

Come on, guys. You can't say "we don't want to be bound by Measure 49" when you were pleased to follow Measure 37. A law is a law. Deal with it.

An Albany Democrat Herald editorial reflects this ridiculous illogic.

During its February session, the legislature should make an effort to repair the injustice created by the passage of Measure 49, at least where it affects private individuals.

These are the people who assumed that Measure 37 on land-use claims, passed in 2004, was the law, especially since the Supreme Court upheld it in 2006, and who therefore filed applications and went through a lengthy process to claim the waivers the measure allowed.

Earth to Democrat Herald: After 1973 people assumed that SB 100, which established Oregon's pioneering land use system, was the law. There were several attempts to change it. They failed. It was still the law.

Then Measure 37 came along and the law changed. Now, Measure 49 has changed the law again. In a democracy you shouldn't expect that a law will stay the same forever.

Here's some testimony along this line that I presented to the legislature's Land Use Fairness Committee last year. I make wonderful sense.

Measure 37 vesting cases heating up

After Measure 49 was passed by Oregon voters on November 6, land use issues have largely fallen away from the state's attention.

But now attempts by Measure 37 claimants to show they're vested (basically, "grandfathered" in), and not subject to Measure 49, are heating up the land use burner.

Down Medford way, three property owners have sued Jackson County for more than $20 million, saying their Measure 37 constitutional rights have been trampled.

Medford resident David Smith, a member of the newly formed Citizens for Constitutional Fairness, said the dollar amount that property owners say they've lost after the passage of Measure 49 — the fix for Measure 37 — could be significant.

"I think it's going to be $1 billion," Smith said. "It's basically going to bankrupt the county if they don't do anything."

Well, good luck with your constitutional arguments, David.

A circuit court judge in Multnomah County recently rejected a similar attempt to make an end run around Measure 49, ruling that he was "unpersuaded by plaintiff's constitutional objections to the application of Measure 49 to this case." (Luethe v. Multnomah County) Download opinion_re_luethe_dismissal.pdf

Interestingly, the county on the hook for a billion dollars sought by disgruntled Measure 37 claimants has bent over backward to give them more rights than they were entitled to.

Namely, the right to transfer a Measure 37 waiver to a new owner of the property. Oregon courts have ruled that this isn't allowed. Only the successful Measure 37 claimant gets a pass from land use regulations enacted after he acquired the property. See: Download crook_county_v. All Electors.pdf

But Jackson County passed an ordinance that bestowed transferability on new owners of a Measure 37 claim. Then the county sued itself to find out if the ordinance was legal. Which, it wasn't. Download jackson_county11907.pdf

So this makes getting vested important for Measure 37 claimants who don't want to play by Measure 49 rules (which limit a property to no more than ten home sites, and prohibit industrial or commercial development).

Because anyone who buys part of all of their property can't develop it – build a home, for example – unless the claim is determined to be vested under common law. And it's clear that hardly any Measure 37 claimants will have vested rights.

This isn't stopping some from trying to go the vesting route, however.

I've been playing attorney on a case in Marion County that came to the attention of my wife and me when some neighbors of a Measure 37 claim told us that county staff were recommending that the board of commissioners rubber stamp a "You're Vested!" decision, even though the evidence pointed to an opposite conclusion.

This case, involving a 9.66 acre property owned by Sheryll Ralls, centers on what "use" means in a land use context. The issue doesn't rise to the level of Bill Clinton's "it depends on what the meaning of the word 'is' is," but there's still some unavoidable seeming circularity here.

Consider this sentence from the state order granting the Ralls Measure 37 waiver:

The action by the State of Oregon provides the state's authorization to the claimant to use the subject property for the use described in this report…

Use for a use. Grammatically, we can discern a verb and a noun here. There's a "use" authorized to a Measure 37 claimant, and there's also the "use" they make of that authorization.

In the Ralls case, this was the use authorized by the state: "to divide the 9.66 acre subject property into six approximately 1.6 acre parcels for residential development." So residential development is the action that counts as a use.

This all may sound land use-geeky, but it means a lot to both neighbors of Measure 37 claims and the claimants themselves. Because many vesting cases are going to come down to the definition of a land "use."

Naturally the claimants want the use they make of their property in order to be vested to be minimal.

Over in Baker County, planning officials are taking a position that's pleasing to claimants but legally indefensible: that all you have to do is apply for a building permit or a partition, and bingo!, your Measure 37 claim is vested.

Problem is, this isn't in line with how Oregon courts have ruled on vesting issues. The Crag Law Center prepared an excellent memorandum on this subject that was submitted yesterday to the hearings officer who will decide the Ralls case. Download january_28_2008_letter_re_ralls_m0614.pdf

It's must reading for anyone involved with a Measure 37 claim that's attempting to get vested on the basis of merely having partitioned or subdivided a property.

In short, that's not a "use." It's a preparation for a use, much as putting a blank canvas on an easel is just preparation for painting.

(For the land use geeks, here's some more vesting-related court cases to mull over:)

Download wiley_mult_cty_92507.pdf

Download land_watch_m37_luba_burk_jeff_co_jan_24_2008.pdf

Download frank_v_dlcd.pdf

Measure 49 forms being mailed out

You know you're a land use junkie if…you spend a Saturday night pouring over forms being mailed to Measure 37 claimants, so they can choose what to do under Measure 49.

Yes, that describes me. I had to see whether Willamette Week spoke truly when reporter Nigel Jaquiss said the form is "29 pages long, and not what most claimants are likely to regard as simple."

I found that Willamette Week is way off base. The packet being sent to Measure 37 claimants apparently is indeed 29 pages long (can't be sure, since "draft" is stamped on the copy WW posted).

But actual forms, the sort you fill out, total 4 pages. And if there aren't any non-claimant owners of a property, only 3 pages need to be dealt with.

A cover letter, instructions, and a 14 page Measure 49 guide comprise the rest of the packet. Looks simple enough to me, just as the proponents of Measure 49 promised. Check it out (sorry dial-up users, it's a 1.7 MB PDF file): Download DraftM49StatePacket.pdf

Five options are available to Measure 37 claimants: Express, Conditional, Vested, Withdrawal, UGB/City Withdrawal. Only if the Express (up to three home sites) or Conditional (four to ten home sites) option is chosen will additional information possibly need to be submitted.

Under the other three options, the state Measure 37 claim is closed.

With Express, the required information may already have been submitted with the original claim. Ditto with Conditional, though much less likely, given the need to supply appraisals that demonstrate an actual loss of value due to a land use regulation.

Dave Hunnicutt of Oregonians in Action is trying to spin Measure 49 as a victory for his organization, since it allows claims to be filed if new land use regulations reduce the value of certain types of property.

What he didn't mention, though, is that compensation now is limited to the amount of an owner's loss. No more wholesale waiving of regulations if a claimant can demonstrate even one dollar of loss. That's a big improvement over Measure 37.

An interesting wrinkle is on page 8 of the PDF packet.

Claimants who choose the Vested option (where they try to prove that they're far enough along with their Measure 37 development to be "grandfathered" in to the old law) can't move to the Express or Conditional options if it turns out that they aren't vested.

So the choice for some will be whether to snap up a virtually guaranteed three home sites, or roll the vesting dice and hope for more – knowing that zero home sites also is a possible outcome, if the Measure 37 claim is determined not to be vested.

It's good to see that the Department of Land Conservation and Development is moving ahead expeditiously with the transition from Measure 37 to Measure 49.

I'm sure there will be moaning and crying from Oregonians in Action supporters about the DLCD packet. They need to keep in mind, though, that Measure 37 was so poorly written, it spawned hundreds of lawsuits. That's a lot of paperwork.

Measure 49 is much clearer. And fairer.

Last November Oregon voters overwhelmingly affirmed that they wanted our state's farm, forest, and groundwater limited land protected from over-development. They didn't want the rights of a few to pave over the rights of the many.

It'll take a bit of form-filling to implement the people's will. No big deal, especially compared to the really onerous forms that every taxpayer will have to wade through before April 15.

Playing attorney on a Measure 37 vesting case

It's fun to play make-believe, even (or especially) when you're 59 years old. Yesterday I tried to make a Marion County hearings officer believe that I knew as much about Measure 37 vesting as a real attorney.

And I did a pretty darn good job. My wife, Laurel said so, which proves it. "You sounded like a lawyer," she told me after I testified.

Ordinarily I wouldn't take that as a compliment.

But since I was arguing that a Measure 37 claim wasn't far enough along to be exempted from Measure 49, which fixed many of the flaws in Measure 37, I was glad to hear that my legal arguments sounded, well, legalish.

I labored for most of Tuesday on my "brief," an eight page marvel of logic, clear writing, and analytic brilliance (I figure that attorneys have big egos, so I need to play the part). Humble admission, though: genuine attorney Ralph Bloemers of the Crag Law Center edited my masterpiece, improving it quite a bit.

For the reading pleasure of land use junkies, here it is.
Download ralls_testimony_fomc_final.doc

Still, as much as I enjoy exercising my brain cells on coming up with legal arguments, hopefully helping to stave off Alzheimer's, I'd prefer to be doing something else with my time. However, what can you do when a government agency seemingly is playing loose with the law?

That's what Measure 49 is now: the law of the land in Oregon. Last November voters overwhelmingly approved this strengthening of protections for farm, forest, and groundwater limited land.

Yet it seems to us that Marion County is dragging its feet on implementing both the letter and the spirit of Measure 49.

In this case, a woman filed a Measure 37 claim because she wanted to be exempted from a regulation (passed after she bought her property) that upped the minimum lot size in her rural residential area from 1.5 to 2 acres.

This allowed her to adjust a lot line and partition her property into four 1.5 acre lots and one 3.66 acre lot. These five lots are in a groundwater limited area that already has well problems.

Measure 49 limits Measure 37 claims in such areas to three home sites, which is what the claimant will end up with if her claim isn't determined to be vested (meaning, basically, that she's "grandfathered" in to Measure 37).

The hearing was held open for more submissions for another twenty days. So it'll be a while before we know the outcome.

Whichever way the ruling goes, I've made progress on refining my attorney persona. Near the end of the session, the real attorney who represented the Measure 37 claimant and I were called up to the witness table by the hearings officer.

I'd asked to keep the record open so we could respond to new information in favor of vesting that had been presented. The hearings officer said, "I'd like to suggest seven days for the appellant and seven days for the applicant."

My make-believe attorney brain whirred away.

I remembered a previous land use hearing where the lawyer representing our neighborhood group, Jeff Kleinman, was in attendance. The same question had come up about how long to keep the record open.

Jeff had said, "Let's make it two weeks." So I channeled him: "How about fourteen days?" The hearings officer said, "Why?"

"Because we're representing ourselves," I told her, "while the claimant has real attorneys to do the work. It takes time to go online and dig up case law when you don't have access to legal documents like lawyers do. We might be able to get some help on this from a lawyer, but that isn't certain."

The claimant's attorney leaned over toward me in a collegial manner, showing me his Blackberry's calendar. "Here," he pointed, "how about we split the difference and make it ten days – that'll give you until the 28^th to get your submission in."

"Sounds fine," I told him, thinking, My first attorney to attorney negotiation went fine! And I'm not even out of law school! (Nor, in it.)

Measure 49 not threatened by Corey case

There's some wishful thinking going on in the little minds over at Oregonians in Action, who hope that Santa will bring them a Measure 49 demolishing (or at least, limiting) court case.

Corey v. Department of Land Conservation and Development is a current favorite, grandiosely (and inaccurately) described in the most recent OIA newsletter under "Is There Hope on the Horizon for Measure 37 Claimants?"

Short answer: almost certainly not. I say this not as an attorney, but as someone who knows how competent attorneys view the Corey case.

Which is a long way from how OIA sees a ruling by the Oregon Court of Appeals that's been appealed to the State Supreme Court. OIA says:

If the Court of Appeals' decision in Corey stands, then Measure 37 claimants cannot lose their rights, because those rights are protected by the constitution. Which would in turn mean that decisions made pursuant to Measure 37 would remain unaffected by Measure 49's passage.

Contrast this wildly exaggerated statement with how an Oregon business litigation blog described the Corey decision.

After reviewing U.S. Supreme Court precedent on constitutionally-protected interests, the court concluded that the DLCD created an entitlement to benefits when it accepted the Measure 37 claim, and that Corey was entitled to notice and a meaningful hearing before DLCD could refuse to waive any of the regulations. Accordingly, the Court of Appeals had jurisdiction to review the matter as a contested case.

So the court simply ruled that DLCD had to go through a particular process before determining the extent of what Corey, et. al. were entitled to under Measure 37. DLCD didn't grant a hearing; the court said DLCD should have.

All this has nothing, or at most, very little, to do with whether Measure 49 is null and void because it takes away supposed Measure 37 property rights.

It's well established that government and the people can put into effect and modify land use laws. That's what Measure 37 did. That's what Measure 49 did. The Corey case doesn't alter that fact.

As long as I'm writing about Measure 37, I might as well take this opportunity to trash a 95 year old woman who proves that you're never too old to act like a jerk.

Yes, Dorothy English is back in the news. She was the poster child for Measure 37 back in 2004, and she's still throwing a fuss over how she isn't able to do exactly what she wants with her 20 acres.

English has gotten permission under Measure 37 to put eight home sites on her property, which is what she wanted. And Measure 49 still will allow her those sites. All she has to do is prove the loss of value that she's claimed all along.

But English also wants to be exempted from current building standards, including health and safety requirements involving emergency vehicle access and other issues. What a baby. It's all about me, me, me, regardless of the effect on neighbors and the general public.

Over at his Land Use Watch blog, Peter Bray had a great response to English's ridiculous expectation that she should be able to do whatever was allowed in 1953:

In 1953, my relatives could have developed an open-pit cyanide leach mine on farmland. But, like in the case of Madam English, various commonsense regulations now forbid such activity, or require that certain basic safety precautions are followed.

In 1953, I could drink a six pack of beer, drive without a seat belt to the local movies with my newborn in the driver's seat (with no baby seat), smoke a few cigarettes (with the windows up), go eat at a restaurant for a couple of hours (leaving the baby in the car), and come back, after some more booze, and drive on home. Nowadays, darnit, I can't! And that ain't fair!

In 1953, relatives owned stock in Asbestos mining companies. A bunch of hooey regulations passed subsequently piping on and on about "health hazards" of asbestos. So the stock dropped. But, shoot, they bought that stock before any of these crazy government regulations, so shouldn't the government have to compensate us for their restrictive regulations?!

Plain truths about Oregon property rights

A few nights ago my wife and I went to a standing room only talk by Ralph Bloemers of the Crag Law Center, one of Oregon's premiere public interest attorneys.

Now, it was a small room at the West Salem Public Library. But still, I was impressed by how many people turned out for this Friends of Marion County meeting about vesting and land use issues under Measures 37 and 49.

Some Measure 37 claimants even came, wanting to learn how their development efforts are likely to fare under the new property rights climate ushered in by the passage of Measure 49 on November 6.

They heard some truths from Bloemers that probably startled ears used to the lies, dissembling, and legal misinterpretations that's an Oregonians in Action (OIA) trademark.

My favorite Bloemers quotes were:

This isn't about property rights people versus anti-property rights people. We all have property rights.
It's property rights people against property rights people.

Right on. As I've written about endlessly in the "Measure 37" category of this blog, neighbors of Measure 37 claims have just as many property rights as the claimants.

Like, in our neighborhood's case, the right to not have our springs and wells go dry from a large subdivision on groundwater limited farmland.

And in the case of a couple who lives near a Measure 37 claim near Rickreall in Polk County, and told their tale at the meeting, the right to not have their house condemned because it lies in the path of a road that would have to be re-designed if the claimant's commercial development were to become reality.

Which, it almost certainly won't.

Because Bloemers explained that it will be very difficult for Measure 37 claimants to be "grandfathered in" under that law and avoid the restrictions of Measure 49 (such as no commercial or industrial development, and a limitation of three home sites on farm, forest, and groundwater limited land).

The director of the state Department of Land Conservation and Development has said that no more than 10 claims statewide have a hope of being vested, the legal term for being "grandfathered in."

This is out of more than 7,500 claims statewide, so those who think they're going to get rich quick with Measure 37 are facing long odds. Not quite as bad as the lottery, but pretty darn close.

One problem facing the claimants is that vesting decisions fall under the common law of Oregon. Meaning, legal precedents are going to rule, not, as Bloemers put it, "midnight decisions by a county saying you're vested!"

In other words, political shenanigans won't be able to tilt a vesting decision in favor of a Measure 37 claimant. It's going to take solid facts and a good understanding of case law.

Thus the advice that Oregonians in Action has been proffering to claimants – rush ahead with construction – is going to lead to money being wasted by would-be Measure 37 developers.

As I've written before, "Hardly any Measure 37 claimants will have vested rights." (And now I've learned that the DLCD director, who knows a lot more about land use than I do, agrees with me.)

This is as it should be, a point hammered home by Bloemers when he talked about how the U.S. Supreme Court has repeatedly ruled that government zoning laws are eminently constitutional. So OIA's contention that Measure 37 restored rights Oregonians had under the U.S. Constitution is completely wrong.

Regulating land is a valid use of police powers, Bloemers said. Everyone is burdened and everyone is benefitted by land use regulations, just as is the case with speed limit regulations. It's a system of reciprocal burdens and benefits.

The individual and the community each have rights. He used the example of Grand Central Station in New York, a historic building.

If the owner had been allowed to tear it down, then the community of train fanciers who get much satisfaction from seeing Grand Central Station would lose their right to view a part of history. So the owner was required to build a new use on top of Grand Central Station – balancing individual and community rights.

Here's another way Bloemers asked his audience to look at land use regulation. When someone thinks they've lost money because of a regulation, and wants to be free of it, the question to be put to them is: "What if nobody was regulated, not just you?"

This is why I've said Measure 37 makes no sense (as 62% of Oregonians agreed when they voted for Measure 49, which went a long way toward fixing the flaws of Measure 37). I put it in terms of lemonade stands.

It's a hot summer. Every kid on the block gets the bright idea, "I'll set up a lemonade stand on our lawn next to the sidewalk." They all go to their parents for permission. The block is full of naysayers. "No way, kid. Find something else to do."

Except for one accommodating couple: "Sure, honey. It's fine with us if you sell lemonade." The child starts her business. She does great.

Because she's got the only lemonade stand on the block. All of the strict parents made it possible for the kid with permissive parents to make money. If there was a lemonade stand in front of every house, the limited number of cold drink buyers would be spread out among many competing sellers.

This isn't rocket science. It's basic economics. Which is why Oregon's Measure 37 is founded on illogic. This law says that owners must be compensated when land use laws reduce the value of their property. Or, the laws have to be waived.

The big flaw in this logic is that the very land use laws that prevent people from using their property as they want to—putting ten houses on a five acre parcel instead of one house, for example—is the reason why their property is so valuable if those laws are waived.

Measure 37 proponents like to spout platitudes such as, "When a government regulation reduces the value of your property, you should be compensated." What isn't said, but should be, is: "That same government regulation also is responsible for increasing the value of properties."

Bottom line: Both the community and the individual have property rights; both the community and the individual add value to property; both the community and the individual have a say in how property is to be used.

Measure 49 vesting information

This is the sort of blog post that's absolutely fascinating to a few, and absolutely boring to the many.

So if you're into the nitty-gritty of Oregon's Measure 49, which went a long way toward fixing the land use disaster of Measure 37, you'll love this compendium of vesting-related information.

If you're not, all I can say is that what follows will be great reading for those agitated sleepless nights when you need something boring to shut your mind down.

Because this is a compendium of legal writings surrounding the question of when a Measure 37 claimant has a vested right to continue with development of a project, even though Measure 49 was passed by 62% of Oregon voters on November 6, 2007.

If you're vested, it's a lot like being "grandfathered" in to a previous state of legal affairs. Measure 49 says that the common law of Oregon is the basis by which vesting decisions will be made.

Since common law is a bunch of cases – precedents – there's no neat and tidy statute that says whether a development project is far enough along to be considered vested. Vesting is decided on a case by case factual basis, usually by a court.

But guidance, "Ballot Measure 49 and the Common Law of Vested Rights," put out by the Oregon Department of Land Conservation and Development and the Department of Justice, says that now either local governments or circuit courts may end up making vesting decisions. That DLCD/DOJ guidance is a good introduction to how vesting will be handled under Measure 49.

An easy to read overview is "1000 Friends of Oregon's Guide to Measure 37 Vested Rights." I found a few typos in it (210 days is 7 months, not 9 months), but this is a well-written and clear discussion of vesting – albeit with a not-surprising slant toward the interests of neighbors opposed to a project being vested. Download vesting_guide_11.20.07.pdf

A new "Citizen's Guide to Vesting" is forthcoming, says 1000 Friends. You can check here periodically to see if it's available.

The best legal analysis of vesting has been written by Ralph Bloemers of the Crag Law Center. And I'm not saying that just because he's the lawyer representing our neighborhood in a fight against a Measure 37 subdivision that threatens our groundwater.

His memorandum on "Transition to Measure 49 & Vested Rights" is a solid take on the common law in this area. If you're a Measure 37 claimant you may not like some of what Bloemers has to say, but you need to understand it if you hope to be successful in a vesting case. Download crag_law_center_memorandum_on_vesting_11_9_2007.pdf

Bloemers and the Crag Law Center also distributed an analysis of HB 3540, which became Measure 49, and the good faith requirement for vesting. It's also must-reading for both Measure 37 proponents and opponents. Download memorandum_on_vesting_for_the_public_7_24_2007.pdf

Their memorandum on the issuing of permits under Measure 37 is less directly related to vesting, but is still applicable. Download crag_law_center_measure_37_memo_re_applicable_law_11_9_2007.pdf

A couple of attorneys in central Oregon, Edward Fitch and Michael McLane, have put out a counterpoint to the Crag Law Center vesting analysis. They don't make nearly as much sense as Bloemers, in my opinion, but you can read and decide. Download ed_fitch_m49.pdf

A Zupancic Group memorandum on "Common Law Vested Rights Under Measure 49" also tilts toward the pro-Measure 37 legal side. Still, James Zupancic and Kristina Faricy have put together a lot of vesting case law and make some interesting arguments. Download vested_rights_memo.pdf

These LUBA notes on vesting are for the really hard core Measure 49 junkie. They point to cases that help form the common law in this area. Download luba_notes_on_vesting.pdf

For an example of how counties are approaching vesting decisions, peruse Marion County's recently-passed vesting ordinance. Download marion_county_vesting_ordinance.pdf

Roger Kaye, president of Friends of Marion County, submitted a letter commenting on the proposed Marion County ordinance. It contains additional observations on the case law in this area. Download fomc_ltr_re_m49_ordinance.doc

How Marion County should handle Measure 49

It's been frustrating for us and our neighbors to see bulldozers rolling on subdivision road construction just a few days before Measure 49 goes into effect on December 6.

Measure 49 limits development on this property to three home sites on six acres of the least valuable farmland. The Measure 37 claimant plans 43 homes, each with a well, on this groundwater limited land.

Leroy Laack, the developer, is quoted in a front page Salem Statesman Journal story:

"Our intentions are to push ahead just as fast as we can within the context of the current law," Laack said. "So we are still operating under Measure 37 until Dec. 6, when the other law is in effect. We will push as fast as weather or anything permits."

Well, after December 6 the pushing has to stop.

For under Measure 49 Laack and his co-owners have two choices: (1) take the "express lane" that leads to the three home sites, or (2) continue on under Measure 37 by demonstrating that the project is vested – meaning, that it has progressed sufficiently to be developed under the rules that applied before Measure 49 was approved by Oregon voters.

No matter which path is chosen, construction work has to stop on December 6. So we're expecting that the Marion County board of commissioners will authorize the issuance of stop work orders at a board work session next Monday morning.

This is a no-brainer, since there's no way the Laack subdivision can be determined to be vested by next Thursday.

Vesting decisions have to be made under Oregon common law. Meaning, it isn't possible to go to a statute or ordinance and learn whether a particular project is vested. Instead, this is determined on a case by case basis.

Lots of facts have to be looked at. Lots of precedents in previous court cases have to be considered.

This is tough for a judge with a law degree to do. It definitely isn't something that county commissioners are capable of doing. So our neighborhood's Keep Our Water Safe committee, which my wife and I head up, wants Marion County to have vesting decisions made by either a hearings officer (who are attorneys) or a court.

That would streamline the process for both Measure 37 claimants who want to prove they're vested, and for opposing neighbors who want to prove they aren't.

So far our neighborhood has spent over $30,000 on legal, hydrogeology, and other expenses in an effort to protect our wells and springs from over-development. We shouldn't have to fork out more money on unnecessary vesting hearings.

An experienced hearings officer or judge will be able to handle the common law questions much more competently and expeditiously than county commissioners learning on the fly.

And they've got better things to do with their time. The Laack subdivision is a complex case that's been hotly contested from the get-go. The Marion County Planning Commission held the longest hearings in the Commission's history on it: three evening meetings, each of which lasted three to four hours.

Likewise, the Board of Commissioners hearing at which appeals of the Planning Commission decision were heard went on for over six hours, I recall. Another record.

There will be more of the same when it comes to deciding whether the subdivision is vested.

As I said before, lots of facts to be brought out; lots of previous court cases to be examined for precedents. Marion County residents expect their county commissioners to do many things, but filling the role of a judge in a complex court case isn't one of them.

We're virtually certain that the subdivision isn't vested. Leroy Laack said in the newspaper story that he thinks it is.

One of us is right. We'll find out soon. Hopefully, through a neutral, fair, transparent process refereed by an unbiased hearings officer or court.

Measure 37 bulldozers roll as Marion County ignores Measure 49

Today KATU's Salem bureau filmed an excellent story about Marion County's outrageous decision to approve a construction permit for a Measure 37 subdivision just nine days before Measure 49 will make it illegal.

Laurel and I were interviewed for the story.

Melica Johnson and Dino, her cameraman, had us stand outside on our deck – where we were pleased to talk about how crazy it is to let bulldozers tear up Oregon farmland for a large subdivision when 62% of Oregon voters said "No!" to this on November 6.

Here's my YouTube video of the two and a half minute story, which I titled "Marion County pretends Measure 49 doesn't exist."

One of the three Marion County commissioners, Janet Carlson, makes a lot of sense in her segment. She recognizes that just because Measure 49 doesn't take effect for eight more days, it's crazy to pretend that a big change in Oregon's land use laws isn't coming.

I told Melica that this is akin to a couple getting engaged.

Voters have decided that they're going to "marry" Measure 49 on December 6, when it goes into effect. Now we're in an "engagement" period, when government agencies should be working toward a smooth transition from Measure 37, which Measure 49 fixes.

Commissioners Patti Milne and Sam Brentano, however, prefer to keep on doing the same old thing: issue construction permits, even though the roads being constructed will be illegal on December 6.

So Marion County is spending taxpayer money approving and overseeing work that almost certainly will have to be undone. My understanding is that wiser counties, like Washington County, are only approving permits for Measure 37 uses that will be legal under Measure 49.

I got in a next-to-last word in the KATU story:

It just seems funny that we'd have to go to court to force the county to enforce the law.

Well, it isn't funny as in "humorous," but rather as in "ridiculous." But this is what our neighborhood's Keep Our Water Safe committee will have to do unless Marion County issues a stop work order on its own December 6, which we're hoping will happen.

Melica had the last word, quoting one of the commissioners as saying the situation is akin to a speed limit change. People don't drive at the new speed until it goes into effect.

This bad analogy reflects the poor understanding Milne and Brentano have about what's at stake here. Driving a car at either 60 mph or 70 mph doesn't produce any lasting effects. Bulldozing irreplaceable Oregon farmland for road construction does.

Voters have said that they don't want large subdivisions built on groundwater limited farmland, like the Laack subdivision property. They want this land protected by allowing only three home sites on six acres of it, not the 42 home sites on 125 acres that's been planned.

Approving a construction permit on November 28 to tear up ground that will be protected on December 6 – that's crazy. Hopefully Marion County voters will remember this when Milne and Brentano run for re-election.

Marion County disrespects Measure 49 voters

Just as our neighborhood's Keep Our Water Safe committee has been fearing, two Marion County commissioners are thumbing their noses at the 66% of county voters who said "yes" to Measure 49 on November 6 (along with 62% of Oregonians).

The voters said they didn't want large subdivisions to be built on farm, forest, and groundwater limited land. Measure 49 goes into effect on December 6, ten days from now.

But Sam Brentano and Patti Milne have decided to keep on issuing construction permits for large subdivisions on farm, forest, and groundwater limited land right through December 5.

Mind-boggling. Crazy. Disturbing. Senseless.

But that's the modus operandi of the Marion County Board of Commissioners when it comes to Measure 37 developments. Brentano and Milne almost always give a green light to them, even if they have to ignore their own county ordinances and water experts to do so.

Today bulldozers came back on the Laack subdivision property near us. That's because Marion County may approve a Major Construction Permit for road construction soon.

Construction that will be illegal on December 6. But hey, why not allow a developer to tear up irreplaceable Oregon farmland for ten days or so? After all, only two-thirds of Marion County voters said "no way." And what do voters know?

Not much, I guess, according to Brentano and Milne. Because they're willing to let Leroy Laack, Greg Eide, and the other owners play around with their earthmoving equipment until December 6 – when construction has to stop.

It'll have to stop because the Department of Environmental Quality (DEQ) says so.

DEQ recently approved a 1200-C erosion control permit for the site. I submitted a comment on the permit application that got this response from DEQ (see page 4): Download response_to_comments_ridgeview_estates_final.doc

Comment: The permit application is for proposed construction that is now illegal under Measure 49 absent a certification that the Measure 37 claim is vested under Oregon common law. The application should be shelved until Ridgeview Estates is able to certify that their Measure 37 claim has been deemed vested under common law per the requirement of Measure 49.

Response: DEQ received legal direction from the Oregon Department of Justice on Measure 49 and may issue permit coverage to the applicants until December 6, 2007. To continue construction activities beyond this period, the applicants will have to submit a county land use determination that their project is vested under Measure 37 or allowed under Measure 49.

Well, the project is neither.

There's no way the subdivision is vested, according to draft guidance on this subject from the Department of Land Conservation and Development (thanks to the Land Use Watch blog for putting up the DLCD memo).

And the construction sure isn't allowed under Measure 49. Because this property is groundwater limited farmland, only three home sites can be on it. And those have to be clustered on six acres (two acres for each home site) of the least valuable farmland.

Which happens to be on the northeast corner of the property, well away from the central area where the roads are planned.

So any road construction work that takes place between now and December 6 will be wasted according to vesting common law. It's clearly in "bad faith," since the voters of Oregon have approved Measure 49 and any work done after November 6 won't count as a vesting expenditure.

Why issue a construction permit at this late date, then? I can't think of any good reason.

But here's a bad reason: Sam Brentano and Patti Milne want to send a message to the 66% of Marion County voters who said "yes" to Measure 49:

We'll keep on bending over backwards for large Measure 37 subdivisions, even though you voters don't want them built on farm, forest, and groundwater limited land. If you don't like what we're doing, vote us out of office.

Hmmmm. Excellent idea.

Hardly any Measure 37 claimants will have vested rights

The battle to pass Oregon's Measure 49 has been won (62% of voters said "yes" to fixing Measure 37). Now the fight has shifted to determining which, if any, of the 7,500 Measure 37 claims around the state are vested under common law.

Vesting means that enough work has been done on a claim to allow it to continue under Measure 37, rather than Measure 49.

Yesterday Ralph Bloemers of the Crag Law Center released an excellent memorandum, "Transition to Measure 49 & Vested Rights." It's must-reading for interested citizens, state agencies, and local governments, along with a companion memo about the issuance of permits for Measure 37 development. Download crag_law_center_memorandum_on_vesting_11_9_2007.pdf Download crag_law_center_measure_37_memo_re_applicable_law_11_9_2007.pdf

Bloemers says:

The concept of "vested rights" is linked to the idea of "nonconforming uses." Laws passed by the Oregon Legislature allow existing uses and buildings that do not conform to new land use regulations to be continued as "nonconforming uses."

…The concept of "vested rights" has been defined by Oregon courts to address the situation in which a landowner or developer had begun construction of a particular land use, for example a residential subdivision, but before the project was completed a change in land use regulations prohibited that proposed use.

The basic idea is that at some point in the course of development, the nonconforming use has come into existence, even if it is not finished, and the use ought to be protected by the laws allowing, but limiting, the continuation of nonconforming uses.

This is a hot issue right now.

Friday a story in the Oregonian, "Claims stall until Measure 49 sorted out," talked about how officials, Measure 37 claimants, and concerned neighbors of claims are struggling to figure out what "vesting" means under Measure 49.

A uninformed Douglas County commissioner, Doug Robertson, wrongly believes that he's got it all figured out and can ignore Measure 49. Vesting is central to a dispute in Jackson County about a proposed Measure 37 rock quarry along the Applegate river.

And tomorrow's Salem Statesman Journal will run a story that, according to a front page teaser today, is about Measure 49 aftermath: "The voters have spoken on Measure 49, but it's still trench warfare over some claims that may or may not have the right to move forward."

[Update: the Sunday Statesman Journal story is "Some land-use claims remain in limbo." I'm quoted!]

So Ralph Bloemers' carefully researched legal memorandum comes at a perfect time to shed light on what vesting means under Measure 49.

Next week county officials will try to come to grips with this issue at an Association of Oregon Counties conference. The Crag Law Center memo should be front and center at their discussions.

I urge you to read the document yourself, via the PDF file link above. It doesn't answer every question about vesting (for example, whether this is a land use decision or a court decision seems to be up in the air).

But it comes close. The bottom line is that very few, if any, Measure 37 claims are going to turn out to be vested. Bloemers' final paragraph says:

The common law highly disfavors the establishment of nonconforming uses, particularly while a change in the law is pending. Regardless, the vesting, if any, is limited by the extent of the adaptability of the use for currently allowed uses. The expenditure test and other tests are also applicable to determining vested rights in this context.

The Oregon Supreme Court has ruled that "bad faith" is a no-no for a landowner trying to establish a vested right. On page 9 Bloemers has a section called "Racing to develop the property in order to beat the provisions of Measure 49 is bad faith."

Claimants considering whether to proceed under Measure 37 will need to satisfy the common law, in other words that they did not know or should not have known about the possibility Measure 37 would be modified by Measure 49.

The likely latest candidate date, given both the prior publicity and precedents elsewhere would be June 15, 2007 [when Measure 49 was referred to the voters]. Investments after that date may be considered investments intended to beat the clock and therefore not investments made in good faith.

But even if a Measure 37 claimant somehow wasn't aware of Measure 49 (in a previous post about vesting, I said they'd have to be in a coma or hermetically sealed in a cave for this to be believable), Bloemers argues that development investments supporting a conforming use cannot be counted toward vested rights.

What this gets at, in part, is that large subdivisions allowed under Measure 37 now are limited by Measure 49 to three home sites if they're on farm, forest, or groundwater limited land (4-10 home sites otherwise).

So drilling of wells, digging septic holes, road grading, surveying, and similar work generally would support the uses allowed under Measure 49 and wouldn't be considered vesting expenditures.

The memo has another section called "There can be no vested right to develop without development permits." This obvious requirement is going to come back and bite those Measure 37 claimants who rushed ahead with construction without getting required county building or state erosion control permits.

I've been talking with neighbors of a Measure 37 claim out on Sunnyview Road in east Marion County. Construction there didn't start until election day, November 6.

Now, I've heard, there's been five wells sunk, septic tank holes dug, a road roughed in, and erosion controls have been minimal. The neighbors are aghast that county officials have been allowing this to go on.

I was pleased to read in Bloemers' memo:

For projects where development is underway, the government agencies and local jurisdictions are well-advised to preserve the status quo and limit their liability by issuing stop work orders until a definitive and prompt resolution of these issues takes place.

County agencies should order the cessation of activities to determine vested rights or they will risk being in violation of law.

My sentiments exactly.

Hopefully Bloemers' excellent legal advice, tomorrow's Statesman Journal story, and next week's Association of Oregon Counties conference will combine to lead Marion County to do what should have been done the day after Measure 49 passed:

Stop all work on Measure 37 claims until vesting questions are resolved. Because it's clear that very few, if any, of the 7,500 claims will turn out to be vested.

So like I said before, stopping work on all claims will benefit both neighbors and claimants.

Neighbors don't want construction to continue beyond what Measure 49 allows. And Measure 37 claimants shouldn't want this either – unless their goal is to waste money on fruitless construction activities.

Post-election Measure 49 kudos and calumny

First, the kudos. Which I'm forced to offer to myself, since my marvelously precise prediction about how the vote on Measure 49 would turn out hasn't received the non-Brian praise that it so obviously deserves.

Back on November 2, I said that 63% of Oregonians would vote "yes" on 49. And so it (almost) came to pass on November 6, with the latest results showing a 62% approval.

So Brian, congratulations.

Why, thank you, Brian. On behalf of Brian, who happens to be me, I accept this public acclamation and all that comes with it.

Dude, this is just a freaking blog post. It's barely "public." And nothing comes with it, except the satisfaction that comes from giving praise where praise is due. Namely, from me to you, Brian to Brian.

Now, the calumny. Which is beginning to show up from die-hard Measure 37 zealots who refuse to recognize that the people of Oregon overwhelmingly approved the fix of Measure 49.

Land Use Watch just reported that a Douglas County commissioner is ignoring the law. He's spouting off that every Measure 37 claim is vested, so can continue on as if Measure 49 doesn't exist.

That's absurd. Read my recent post about vesting and you'll see why.

This Roseburg newspaper story shows that both the county planning director, Keith Cubic, and the commissioner, Doug Robertson, either are clueless about vesting or (more likely) are letting their political views interfere with their duty to uphold the laws of Oregon.

That's disturbing. So I'll end on a positive note – more praise of me.

In my pre-election prediction post I said:

We're not going to see the same sort of urban-rural split as in 2004. I'm predicting that a majority of Oregon counties are going to say "Yes" to Measure 49.

Check out this map of the counties where a majority of voters said "yes" or "no" to Measure 49. Twenty-two counties are in the Yes camp, and just fourteen in the No.

Right on, Brian! Thank you, Brian.

Vesting Measure 37 claims under Measure 49

Measure 49 has passed. It's the law of Oregon. Measure 37 has been fixed – not perfectly, but well. So what happens now with Measure 37 claims?

In many cases the legal concept of "vesting" will come into play. With the passage of Measure 49, Measure 37 claimants are going to take one of three paths:

(1) The "express lane" if a claimant wants 1 to 3 home sites. Straightforward. Easy. Hardly any questions asked by the state Department of Land Conservation and Development (DLCD). Claims on high value farmland, forest land, or groundwater limited land will have to take this path.

(2) The "conditional path" if a claim isn't on farm, forest, or groundwater limited land and wants 4 to 10 home sites. The claimant will have to demonstrate a loss of value from a land use regulation that justifies the number of new home sites requested.

(3) The "vested path" if a claimant has made sufficient progress on developing the claim to have vested their right to complete and continue development.

Under the third "vested path" option a claimant would continue on under the provisions of Measure 37.

Since Measure 49 offers substantial benefits to claimants – the ability to transfer development rights to a buyer, and for a spouse to inherit a claim that wouldn't pass on to him or her under Measure 37 – likely only those who want a subdivision with more than 10 home sites will try to go down this path.

This chart shows that there are less than a hundred Measure 37 claims, out of 7,500 statewide, that have filed an application to build a subdivision with more than ten home sites.

But these large subdivisions obviously would have a large impact on the surrounding area. In most cases concerned neighbors will be as interested in stopping a claim from becoming vested as the Measure 37 claimant will be in establishing a vested right.

Common law is the foundation for vesting decisions. There isn't any state statute that lays out the criteria for determining whether a landowner is vested or not-vested. Rather, court cases in this area have established precedents that now form a body of legalities called "vesting common law."

The state of Oregon's land use agency, DLCD, has put up questions and answers about Measure 37 and Measure 49 that are based on legal advice from the Department of Justice. Here's the Q & A about vesting (#20):

It's been said that if Measure 49 is approved by the voters, development that has vested under common law would not be affected. What is vesting, and when does a development vest under common law?

In general, the right to complete a use of real property when the law changes so that the use would otherwise be unlawful, is known as a "vested right." Under decisions of the Oregon courts, whether a person has a vested right to complete a use (despite a change in law) is determined on a case-by-case basis by considering the following factors:

• The amount of money spent on developing the use in relation to the total cost of establishing the use;
• The good faith of the property owner;
• Whether the property owner had notice of the proposed change in law before beginning the development;
• Whether the improvements could be used for other uses that are allowed under the new law;
• The kind of use, location and cost of the development; and
• Whether the owner's acts rise beyond preparation (land clearing, planning, etc.).

These factors set a high bar for a Measure 37 claimant to jump over in order to be vested. A really high bar.

As discussed in a memorandum by attorney Ralph Bloemers of the Crag Law Center, the good faith requirement for vesting means that once Measure 49 was referred to the voters in June, claimants couldn't rush ahead with construction in an attempt to get vested before a change in the law took effect.

In Oregon, the law on nonconforming uses and vesting provides that a landowner may not take steps to "vest" when the owner has notice that the land use laws may change. Vesting of a non-conforming use is dependent on, among other things, "the good faith of the landowner, whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements." Holmes at 198.

Pursuant to Holmes, a Measure 37 claimant who has received a waiver and applied for and received a permit to develop property may not take steps to "vest" these rights by developing the property in the interim period.

The other factors listed by DLCD are other significant hurdles to vesting. And naturally any construction work, made in good faith or not, has to be legal. If necessary permits haven't been obtained before starting work, a Measure 37 claimant can kiss that hoped-for vesting expenditure goodbye.

Here's what some "headnotes" from the Oregon Land Use Board of Appeals has to say about vesting expenditures:

37. Vested Rights. Distinguishing those expenditures properly considered in a determination of the "ratio of expenditures" under Holmes factor (7) requires (1) identification of the time at which the expenditures were made, (2) an analysis of whether the expenditures were made in good faith and lawful when made, and (3) a determination regarding whether the expenditures are directly related to the proposed use of the property. DLCD v. Curry County, 19 Or LUBA 237 (1990).

There's a lot more to say about vesting under Measures 37 and 49, and I'll be putting up more information on this subject as the post-Measure 49 policies in this area become clearer.

My main goal here is to provide some basic facts about vesting for both neighbors of large Measure 37 subdivisions and the claimants themselves.

Your interests, really, aren't as divergent as it might seem. Neighbors don't want construction to continue beyond what Measure 49 allows. And Measure 37 claimants shouldn't want this either – unless their goal is to waste money on fruitless construction activities.

Hopefully the state of Oregon and individual counties soon will issue crisp, clear, coherent guidance on how to handle Measure 37 vesting cases under Measure 49.

An initial important step is to require that construction work stop on claims that haven't been successfully built out with a building permit before Measure 49 became a pending law (June 15, 2007).

I don't believe there are any Measure 37 claims in this category. Most fall into another category: those that have a Measure 37 waiver and/or a building permit and haven't done any construction or building prior to November 7, the day it was known Measure 49 had passed.

These claims clearly aren't vested.

The final category is made up of claimants who had gotten little or nothing started before June 15, yet made a "rush to construction" between June 15 and November 6 (with the necessary permits).

It will be almost impossible for this last category to prove that they're vested, since they'd have to show that they had no knowledge of Measure 49's impending land use law changes. You'd have to be in a coma, or hermetically sealed in a cave, for this to be believable.

So that's why the presumption needs to be that Measure 37 claims aren't vested. Construction has to stop while a prompt and definitive decision about vesting takes place.

[Update: Check out my new "Hardly any Measure 37 claimants will have vested rights" post that discusses an excellent memo on vesting by Ralph Bloemers of the Crag Law Center.]

Reading “tea leaves” of Measure 49 outcome

Avid proponents of Oregon's Measure 49 that we are, it's hard for my wife and I to pass the remaining hours until the votes are counted without worrying about the outcome.

So I've been consulting some cyberspace tea leaves. They've helped me reaffirm my previous prediction that this fix to Measure 37 will pass by a 63% to 37% margin.

The only non-affirming omen that I've gotten was my solitaire loss a few minutes ago after I asked my computer, "Give me a win if Measure 49 will pass." The cards didn't turn out for me. But then, they usually don't. So I'm going to discount this flimsily superstitious forecasting technique.

Somewhat more solid is blogger Jack Bogdanski's "exit poll" on Measures 49 and 50. Leaving aside the (not so minor) quibble that these aren't randomly selected poll-takers, I'm pleased that at last look Measure 49 was getting 70% "Yes" and just 27% "No" out of 932 votes.

On Jack Bog's blog Measure 50 is leading 56% to 41%, which also seems believable.

As of 12:30 pm today, the Multnomah County voter turnout is up to 47%. That's a jump from 42% on Monday. Peter Bray has projected a 52-55% turnout. Maybe a little high, but it's not going to be hugely lower than the statewide voting percentage – which bodes well for Measure 49.

On the intuitive-emotional front, we're going to a Yes on 49 election night party this evening where I've been volunteered to make the coffee in a large coffee maker, which I'm clueless about. My modus operandi is to make java way stronger than most people like it.

So I feel more anxious about making coffee tonight than I am about the Measure 49 outcome. Another good sign. (If 49 passes early in the evening, I'm hoping people will celebrate by drinking so much wine they won't notice how bad the coffee tastes).

Lastly, thanks to Bray I played around today with an interactive viewer of Measure 37 claims that indeed is amazing.

Here are the claims in the south Salem area where we live. The Laack subdivision claim that we've been fighting, along with many other neighbors, is the three chunks of blue near the bottom to the left of the I-5 symbol.

And here's an overlay of groundwater restricted areas, the big wash of blue. Almost every Measure 37 claim threatens the water supply of neighbors, which goes a long way toward explaining the resistance to them.

Multiply this exceedingly worrisome pattern of Measure 37 development all around the state, and you have 7,500 excellent reasons to vote "Yes" on Measure 49.

I'm confident that the eyes of Oregonians have been opened to the dangers of Measure 37. But, hey, I could be wrong.

I doubt it, though. If I can figure out how to make the coffee tonight, I'm expecting to have some happy hours ahead of me.

[Update, 5:45 pm: The No on 49 campaign has no parties planned. Another positive tea leaf.]

My big Measure 49 media exposure day

Oh, yeah, I'm hot. Only media-wise though. And just for a day.

But I'm pleased with the Sunday exposure in Steve Duin's Oregonian column and the Salem Statesman Journal's editorial page, because whatever exposes the pluses of Measure 49 and the minuses of Measure 37 is good for Oregon.

Duin, an ex-sports columnist, returned to his roots and called his piece "At DEQ, the refs swallow their whistles."

It's about my battle to get the state Department of Environmental Quality to enforce its 1200-C (stormwater/erosion control) permit rules. The Measure 37 subdivision next to our neighborhood started to build roads without the required Marion County and DEQ permits.

But five days of illegal road construction resulted in the developer being able to apply for the permits with no penalty. That's wrong.

Duin says:

Mark Riskedahl, executive director of the Northwest Environmental Defense Center, likens this to a rush to provide a license for someone caught driving without one.

DEQ has rules to ensure folks operate in a manner that's environmentally responsible, Riskedahl said: "But if you disregard that scheme and begin your project, not only will DEQ not hold you accountable, but they'll shield you from the legal recourse citizens have against you.

"It fosters disdain for environmental protection. It sends the message: Go ahead and start (developing). If anyone is paying attention and catches you, we'll step in and take it from there."

The link to Measure 37 in all this is that the developer, Leroy Laack, is trying like crazy to get vested before Measure 49 passes and limits him to three home sites on his groundwater limited high-value farmland.

I've got some problems with this. One, Laack and his co-owners should have gotten the required permits before they fired up their D8 Caterpillars and started building the subdivision roads.

Two, DEQ and Marion County should have penalized the Measure 37 claimants for cutting legal corners, instead of allowing them to go through the normal permit application process after they began construction work without the permits.

My other media exposure today was a guest opinion in the Salem newspaper, "Restore fairness of property rights." I wish the Statesman Journal had published it longer before election day (November 6), but there's still time to vote Yes on Measure 49 if you drop off your ballot instead of mailing it.

My grand finale in the piece was:

Measure 49 will restore fairness to Oregon's land-use laws. It will let Measure 37 claimants have three homes on high-value farmland, forestland and groundwater-limited land (10 homes otherwise). The rest of their property still can be used for other purposes. The Liberty Road acreage is perfect for a multi-million-dollar vineyard.

Farmers can keep on raising crops. Timber companies can keep on growing trees. People with wells can keep on turning their tap and have water come out.

Vote yes on 49.

This was followed by a description of myself that I gave over the phone to a staffer from the newspaper. She must not have heard the "b" in blogger when I told her that I was a "retired blogger, writer, and land use activist."

That turned me into a "logger" in the print version. Pretty cool and very Oregonish. Well, I do have a small Stihl chain saw that I've actually used to cut down some (small) dead trees.

The online version has me as a "blogger," so my lumberjack days just lasted a few hours.

Still, I can always show my grandchild the published page and make up stories about my adventures in the Great Northwest woods.

And, hopefully, also tell her truthfully that I played a small role in passing Measure 49 and saving Oregon farm and forest land from being asphalted over.

My prediction on Measure 49 vote: Yes

It's time for this avid Measure 49 supporter to go out on a limb and make a prediction about how Oregonians will vote next Tuesday.

I say it'll be 63% "Yes." I picked that percentage partly because it is higher than the 61% that favored Measure 37 in 2004.

I believe that Oregon voters have had their eyes opened about what Measure 37 has brought the state: unfairness, divisiveness, asphalted-over farm and forestland.

This is going to produce an electoral turn-around. We're not going to see the same sort of urban-rural split as in 2004. I'm predicting that a majority of Oregon counties are going to say "Yes" to Measure 49.

Consider our Republican leaning rural Marion County neighborhood. A nearby Measure 37 subdivision on groundwater limited farmland that threatens area wells and springs has created an overwhelming swell of support for Measure 49.

My wife and I haven't heard of anybody who is opposed to Measure 49. That's amazing, really. Even die-hard conservatives recognize that one person's property rights end when they interfere with someone else's. Like, the right to not have your well go dry.

So the way I see it, each of the 7,500 Measure 37 claims around the state has generated a lot of "Yes" votes for Measure 49.

That's certainly true for our neighborhood, where hundreds of people are for this Measure 37 fix and just about the only people against it are the (absentee) owners of the subdivision property.

Here's some more evidence of non-metro support for Measure 49. The Roseburg News-Review, Baker City Herald, and Madras Pioneer newspapers all have endorsed a "Yes" vote. Other rural papers have also.

The News-Review had this to say:

We have a beautiful state with public ocean beaches and plentiful resources from our farms and forests. Many here in Douglas County continue to earn their livelihood farming, ranching and logging.

So do many others around the state. Under the provisions of Measure 37, these folks could find themselves surrounded by large housing subdivisions teeming with people who decide they don't like hearing chain saws at 4 a.m. or having crop dusters drop chemicals close to their backyards.

That's why Measure 49 modifies Measure 37 to more closely align it with what voters said they wanted when it became law in 2004.

This helps explain why I'm not worried about the greater voter turnout so far in rural counties. I don't think this will produce much, if any, of a rural tilt against Measure 49.

As regards the low statewide voter turnout, this shouldn't work against Measure 49 either. At the risk of sounding elitist, I'd just as soon not have uninterested voters cast an uninformed ballot.

Measures 49 and 50 both require some study to fully understand, though the ballot titles alone should be sufficient to stimulate an enthusiastic "Yes" vote.

Lastly, even if rural voters are less likely to favor Measure 49, we have to remember that a few large counties dominate the election results. I perused the Election Division's daily and cumulative voting totals by county (which are current up to yesterday).

While the tri-county area (Multnomah, Washington, Clackamas) lags behind the statewide 32% turnout as of November 1, here's the thing:

Eight of Oregon's 36 counties account for 68% of the votes that have been cast. So far, there are 426,201 votes from Multnomah, Washington, Clackamas, Marion, Benton, Lane, Jackson, and Deschutes counties, out of a total of 628,350.

So even though it's great that Wheeler county has a 46% turnout to date, and Harney county 44%, those 2,200 ballots are just a blip on the statewide voting radar screen.

All that said, I could be wrong. We'll know November 7.

If you haven't voted yet, take five minutes and do it! Now. There's still time to mail your ballot tomorrow and have it arrive in time to be counted on Tuesday. It just costs the price of a first class stamp.

Democracy is a bargain.

Oregonians in Action loses Measure 49 debate

Today the Willamette University College of Law sponsored a debate between two alumni who are on opposite sides of Oregon's Measure 49. Ralph Bloemers of the Crag Law Center ("Yes") handily beat Ross Day of Oregonians in Action ("No).

And I'm not saying that just because Ralph is representing our neighborhood's Keep Our Water Safe committee, which is fighting a Measure 37 subdivision that threatens to dry up area wells and springs.

As a good debater and attorney should, Ralph founded his arguments on facts. Ross, on the other hand, dissembled quite a bit. Apparently he couldn't come up with enough factual reasons to support Measure 37 and oppose Measure 49, so the truth got shaded.

To Ross' credit, when the question and answer period started he saw my hand waving halfway up the rows in the law school classroom and called on me. He knew that the Hines' (Laurel was sitting next to me) are fervent Measure 49 supporters, but welcomed a critical question.

Which, mine was. But I started off with a comment.

Ross had said that the Measure 49 ballot title had been written by supporters of the legislation, as if that was something nefarious. He also said that this had never been done before, which isn't true.

I pointed out to him, as I did on a "Measure 49 ballot title is accurate and legal" blog post, that it's been common for the legislature to write the ballot title on measures that are referred to the voters.

Ross repeated that it was the "supporters" of the measure who wrote the ballot title. Yes, I replied, those supporters happened to be the democratically elected Democratic majority in the 2007 legislature. Not exactly a band of renegade rabble rousers – which, however, pretty well describes the Oregonians in Action bunch that foisted Measure 37 on Oregonians.

Ross Day was one of the OIA attorneys who wrote Measure 37. This law is recognized as being poorly written. For example, the bunch who couldn't draft legislation right managed to word it so that transferability of Measure 37 development rights isn't allowed (according to an Attorney General's opinion and court cases), though they thought it would be.

Yet somehow Ross tried to claim that he now was an expert on the legal language in Measure 49. I doubt that, just as I doubted his statement that the Measure 49 ballot title wouldn't have survived judicial scrutiny if the legislature hadn't written it.

Funny. I'm not an attorney. But I seemed to know more than he did about the lawsuit OIA filed in federal court challenging the ballot title. The lawsuit was dismissed, so the ballot title did indeed survive judicial scrutiny.

That was just one of Ross' many misstatements that led me to call Ralph Bloemers the debate winner. Here's another, which was stimulated by the question that followed my comment.

Partly on behalf of a person who couldn't attend the debate, but wanted this question asked, I told Ross that Measure 37 gives special treatment to those who invest in real estate. Why, I said, should a real estate investment that's affected by a government regulation be treated differently than a stock, bond, commodity, or other sort of investment?

This is one of my favorite criticisms of Measure 37. It shouldn't be a guarantee to get rich.

Investing is risky. Changes in government policies is a risk that every investor faces. Real estate investors shouldn't be able to ask taxpayers for millions of dollars to reimburse them for an investment that didn't make them as rich as they expected, when nobody else can do this.

I told Ross that the payday loan industry basically was shut down by the 2007 Oregon legislature when it put a 36% cap on interest rates that used to be over 300%. I asked Ross why Oregonians in Action didn't consider this to be a "taking" that deserves compensation from the public coffers.

His answer was real bad, legally. Ross said that property rights is in the constitution, so it is fitting that real estate investors get special treatment under Measure 37.

Ralph Bloemers jumped on this misunderstanding of the constitution. He correctly pointed out that the government has to take complete physical possession of property before it is considered a "taking" worthy of compensation.

Why, Ralph asked, was Measure 37 proposed to the voters if the constitution already prohibited government from regulating the use of property without compensating the owner?

Game, set, and match to Bloemers! I don't even know if Ross Day scored a debate point.

I do give him credit, though, for repeatedly urging the audience (mostly law students) to vote – no matter how they felt about Measure 49. That was excellent advice.

My wife, Laurel, got in a comment also. Ross had repeated the OIA shtick about how Measure 49 was passed out of the legislature without any public input, no hearings, behind closed doors, blah, blah, blah.

Laurel said that she attended many of the public hearings that led up to House Bill 3540 (which became Measure 49). Those went on for hours. Several times another hearing had to be scheduled the next day because so many people has signed up to testify and they couldn't all be heard – even with a two minute limit on testimony.

She told Ross the truth: that just about everything that could be said about Measure 37 and the need to fix it had been uttered, repeatedly, by members of the public prior to the drafting of HB 3540. The Land Use Fairness Committee didn't see the need to go over the same ground by having a hearing on the Measure 49 legislation.

Maybe that would have been a good idea. Maybe not.

Regardless, Measure 49 now is our one and only chance to restore fairness to Oregon's land use system. So vote "Yes" if you haven't yet opened your mail-in ballot. Now.

Measure 49 flyer features my photo. Cool!

Pretty exciting. I opened our mailbox Saturday and pulled out a Yes on 49 flyer from the Oregon Sierra Club. A photo that filled half of the back page looked darn familiar.

It was mine! The Yes on 49 campaign had asked permission to use a shot I took of illegal road construction on a Measure 37 subdivision in our neighborhood.

Naturally I said, "sure." But I didn't know whether it was ever going to be used. I'm glad it was, in such a fine way.

Now that I'm a published photographer, it's time for some acknowledgements.

Thanks to my Olympus Stylus 720SW camera, which I set on "landscape," pushed the 3X zoom, and let it do the rest.

Most of all, thanks to the Measure 37 claimants who had the gall to spend five days constructing roads on their property without either a Marion County Major Construction Permit or a DEQ 1200-C erosion control permit, before they were shut down by the county:

Leroy and Jean Laack, Andrew and Margaret Rainone, M. Duane Rawlins, and Greg Eide

Without your willingness to rush ahead with the illegal construction in a fruitless attempt to get vested before Measure 49 passes (which I devoutly hope it will), this photograph couldn't have been taken.

"Fruitless," because construction on a Measure 37 claim that occurs without a required permit won't count toward vesting. Plus, Oregon common law puts a lot of emphasis on "good faith" in determining whether vesting has occurred. Work done in anticipation of a change in a land use law is considered to be in bad faith.

The other side of the flyer looked good too.

Like it says, Vote YES on Measure 49 today to protect Oregon's farmland, forests, water and special places.

Measure 49 opponents reduced to name-calling

If you've voted "yes" on Oregon's Measure 49, or plan to, here's what opponents of this much-needed Measure 37 fix are saying about you:

You're a communist or an idiot.

Almost certainly, you disagree. I sure do. I've voted for Measure 49, and I can absolutely certify that I'm neither a communist or an idiot.

Yet recently I spoke at a Measure 49 forum in Turner. One of the people in attendance was the son of Leroy Laack, who has filed a Measure 37 claim to turn 125 acres of groundwater limited high-value farmland near us into a 42-lot (and well) subdivision.

I didn't expect Laack's offspring to be for Measure 49. Or a big fan of me. But I was surprised by how insulting and vituperative this guy was when he stood up during the Q & A period to make a mini-speech.

For some reason he felt that the fact he was a veteran (of the Vietnam War, apparently) should persuade people to vote against Measure 49. He then said that while he was fighting for his country, I was probably protesting against the war.

True enough. But what has that got to do with Measure 49? And isn't it just a bit over the top to then tell the audience:

Measure 49 is a choice between communism and constitutional rights.

Amazingly, a handful of people clapped at that remark.

I suppose they'd also applaud a letter in today's Portland Oregonian that calls anyone who votes for Measures 49 or 50 an idiot.

"Idiots" will vote "yes"
So, you don't smoke and you don't have property rights to lose, but you're voting yes for Measures 49 and 50 anyway.

Congratulations! You're an idiot. Your take-home message on election day is, "I'm OK with promoting the greater good of Oregon as long as it's on the back of someone else."

But beware, your dim view of democracy is a double-edged sword. There may come a time when you're asked to give something up for the "greater good" of society. Abortion rights? Civil rights? Union organizing? Higher business taxes? Your property?

And don't you dare whine, because then you'll not only be an idiot, but a hypocrite.
Dan Vlastelicia Southeast Portland

Well, with this sort of name-calling, Dan surely has secured a good number of "yes" votes for Measures 49 and 50. Thanks, Dan. Keep up the insults.

And the lack of logic. Supporters of these ballot measures are all for democracy and respecting the will of the majority. The upcoming election will decide whether a majority of Oregonians favor or oppose Measure 49 and 50.

This isn't a "dim view" of democracy. It's trusting that voters are able to make the right decision about land use planning and children's health care. It's precisely the opposite of communism – state-run control.

So vote "yes" on Measures 49 and 50.

Show opponents that you aren't an idiot by completing the ballot, putting it in the proper envelope, signing it, placing a stamp on it, and mailing it so it's received by November 6.