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Bulldozers roll to outrace vote
Quick work on subdivisions is an attempt to avoid limits Measure 49 would impose
October 10 , 2007
ERIC MORTENSON
The Oregonian
With an election approaching that could dramatically reduce the scope of what they're allowed to build, some Measure 37 claimants are trying to beat the clock by building roads, drilling wells and dropping in septic tanks.
Encouraged by land-use lawyers who acknowledge it's a murky area of the law, the property owners are spending heavily in attempting to show that their subdivisions are well under way -- enough so to be "vested," or exempt from limits contained in Measure 49 on the Nov. 6 ballot.
In Clackamas County and elsewhere, what critics see as pre-emptive construction work is rattling ahead. In Marion County, neighbors recently pointed out that a developer was working on a 43-lot, 217-acre subdivision without a grading permit, and the work was halted.
"A few of these Measure 37 projects might get vested, that's why we need to get (Measure 49) passed so we can stop most of the large ones," said Shelly Strom, spokeswoman for the Yes on 49 campaign. "What we're seeing now is the tip of the iceberg."
Oregonians in Action President Dave Hunnicutt downplayed the number of claimants who are attempting to establish a vested development right. "I don't think a lot of it is going on," he said.
Those who are, he said, are "using the rights that a million Oregonians gave back to them" when they approved Measure 37 in 2004. Hunnicutt's group sponsored Measure 37 and opposes the revisions contained in Measure 49.
Measure 37, approved by 61 percent of voters, allows property owners to seek compensation or a waiver from land-use rules if regulations imposed after they bought their property restricted its use and reduced its value. That resulted in about 7,500 claims to build subdivisions and commercial and industrial development involving approximately 750,000 acres, most of it rural farmland and forestland.
Local governments, with no money to pay the millions demanded as compensation, issued thousands of waivers.
Measure 49, drafted by the 2007 Legislature, prohibits commercial and industrial development. But it establishes three pathways for those who want to build homes.
First, they can develop as many as three homesites under what the Measure 49 ballot explanation says is a streamlined process. The second option is to build as many as 10 homesites -- but this requires proof by appraisal that land-use regulations had devalued the property, a potentially involved process. In either case, however, development on high-value farm or forestland, or in areas where groundwater is limited, would be held to three homesites.
The third option is where the rush to develop on a larger scale comes in. If property owners establish vested rights, they might build much larger subdivisions than otherwise would be allowed under Measure 49. But it is legally contentious.
Worries about wells
In the Pete's Mountain Road area of Clackamas County, in the rolling hills between West Linn and Wilsonville, developer Gordon Root is at work on a 41-lot subdivision that will sit on 63 acres. Many of the neighbors are fiercely opposed, and a dozen or more "Yes on 49" signs have sprouted in the area. Neighbors believe the development will affect their wells by reducing the available groundwater.
"What we want is many fewer homes, drawing much less water from the aquifer," said Judy Messner, who lives nearby.
If Measure 49 passes and Root is not vested, he could build only three homes because the area is classified by the Oregon Water Resources Department as "groundwater limited."
But Root estimates he and owners Don Bowerman and Leigh Campbell have spent $750,000 for work that's included county permits, hydrology studies, erosion control, engineering, traffic reports, water and septic studies, recent grading work to rough out roads and "legal fees, legal fees, legal fees."
And that, he says, shows sufficient investment in a project that won approval under Measure 37.
"I think we're vested now," he said. "We have been and still are operating within all state laws. We're an approved project, moving forward."
Outside of Oregon City, Tom and Gloria Gilbert are gambling that their work will allow them to build nine homes on seven acres. They tore down their home and are living in an RV while contractors finish a home for them, and in the meantime they've put in a paved road and stubbed out electrical and water service to eight more lots. They estimate spending $400,000 so far.
The Gilberts, who are featured in Oregonians in Action's Web site and advertising, said they would be limited to three homes on the property if Measure 49 passes. They believe they are far enough along in the development process to be considered vested but acknowledge the risk of being wrong.
"We sat down one night and said, 'do we jump?' " Gloria Gilbert said.
Advice from attorneys
Attorneys have advised some Measure 37 claimants to do just that, with caveats.
"There's no bright line test for when vesting actually occurs," said Jim Zupancic, a Portland land-use attorney. "It's going to be a fact-dependent test to determine if they have or have not achieved vested rights."
The Marion County developer, LeRoy Laack, late Tuesday was plain about his intentions: "Right," he said, "we want to get vested." But his project, the first to win approval in Marion County under Measure 37, remains stalled while he awaits permit approvals.
The Portland law firm Davis Wright Tremaine LLP issued an advisory bulletin on the subject in August. "The issue of vested rights is nebulous," attorneys Layne McWilliams and Eugene Grant wrote.
Courts will consider the ratio of money spent to the cost of the total project and whether the landowner was acting in good faith by proceeding, the attorneys said. Holding a building permit without substantially acting on it isn't enough.
The attorneys said claimants must be vested by the time Measure 49 would take effect, 30 days after the Nov. 6 election. "Every effort should be made to complete as much construction as possible" by that date, they said.
"If a claimant has begun construction, then the appropriate course of action is to move forward to make as much progress as possible," the attorneys said. The law firm frequently issues advisory bulletins on its Web site.
Hunnicutt, of Oregonians in Action, said he encourages clients to check with county planning departments and, "If you don't have a lawyer, you need to hire one."
"My suggestion is work quickly as you can to vest," he said.
But the Cascade Resources Advocacy Group Law Center of Portland, a pro-conservation group, said the vesting date has already passed: It was June 15, when the Legislature referred the issue to voters.
A landowner "may not take steps to vest when the owner has notice that the land use laws may change," Ralph Bloemers, a staff attorney for the group, wrote. He said attempting to outrace the effective date of pending land use legislation is a "bad faith" move and "is fatal to the claim."
Statewide, about 500 Measure 37 claimants have taken the next step of applying for county partitions, design reviews and building permits, according to an estimate by a state Department of Land Conservation and Development employee. As the Measure 49 debate escalates, it's unclear how many claimants are attempting to get vested.
Measure 49 backers say the proposal gets at what Oregonians thought they were approving when they passed Measure 37: allowing rural landowners to build a few homes that they could sell to support retirement or a farm operation. The measure also makes development rights transferable to new property owners and to surviving spouses, something not allowed under Measure 37.
But opponents say Measure 49 "guts" Measure 37. They believe complications woven throughout the new measure's 21 pages would cause claimants to start over, and that many would be turned down. They also maintain that the appraisal formula would result in very few claimants qualifying to build four to 10 homes.
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