Voters Approve Fix of 37

By Hannah Hoffman

A 10-lot subdivision approved under Measure 37 in 2006 and Measure 49 in 2007 has been remanded to Yamhill County for re-vesting.

Opponents of the original vesting decision said the remand was a victory for rural residents and the wine industry, which depend on a beautiful natural environment.

On appeal, the Oregon Court of Appeals overturned a ruling by Circuit Judge John Collins that the project met vesting requirements established under Measure 49 and it has been remanded to the Planning Department for another run through the vesting process.

The appellate court said owner Gordon Cook had failed to document legally sufficient prior investment in the property, which he was attempting to develop under ordinances already in place when he acquired it in 1970. It also said the county had failed to resolve a relevant point of law.

Cook proposed to develop 10 lots on Bald Peak, near the Washington County line. He indicated intent to build $2 million homes on $350,000 lots.

He obtained Measure 37 waivers from both the state and county prior to the passage of Measure 49, which changed the rules. He also obtained subdivision approval on a 2–1 vote of the board of commissioners, with Leslie Lewis and Kathy George representing the majority and Mary Stern the minority.

When neither the waiver nor subdivision actions were appealed, Cook proceeded to plat the lots with the assessor’s office. But voters subsequently passed Measure 49, subjecting Measure 37 projects to a vesting test based on how much work had already been completed and money spent.

Cook documented investments of $155,000 in the project.

The county’s vesting officer, Todd Sadlo, concluded that amount was sufficient, and his determination was upheld by Collins. In part, they based their decision on an argument that it was impossible to tell what the project might cost when fully built, so impossible to tell what portion had already been put up.

The Court of Appeals said the applicant needed to demonstrate investment of 6 to 8 percent of the ultimate cost by the official vesting date of Dec. 6, 2007. It remanded the case for a determination first of the ultimate cost and then of what percentage had been met in time.

The court also remanded the case on a point of law — whether the zoning ordinance from 1968 that would have governed a 1970 purchase, would, in fact, have allowed such a subdivision.

Cook argued it would, but the appellant, Friends of Yamhill County, took issue. The court said the county needed to research the issue and reach a formal conclusion.

Friends of Yamhill County, an affiliate of 1000 Friends of Oregon, was joined by vineyard owner David Adelsheim in challenging the project. Both expressed gratification at the outcome.

Adelsheim said Oregon’s land use laws have allowed the preservation of agricultural lands enough for the wine industry to flourish in the state. He said if those laws broke down, viticulture in Oregon would be jeopardized.

“Without the establishment of exclusive farm use zoning and Oregon’s comprehensive land use system, the hillsides our industry needs to produce the best grapes would have been dotted with housing developments instead of rows of Pinot Noir vines,” Adelsheim said in a press release.

He continued, “No visitor would want to come to a wine country filled with rural subdivisions. We need to be able to count on the same protections going forward to insure that Oregon wines continue to flourish.”

Ilsa Perse, a member of Friends, wrote in a press release:

“While many people pursued modest claims under Measure 37, others pursued large developments that threatened farms, forests and water supplies.

“Neighboring owners have property rights, too. This ruling safeguards their interests as well.”

She continued, “The court recognized the rights of neighbors, while allowing owners to move forward with developments that meet the requirements of Measure 49.” 

Hannah Hoffman is a reporter for the News-Register.

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