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'Ghosts Of Measure 37' Still Haunt Rural Oregon

The battle over what people can do with their land — and what their neighbors should have to put up with — has raged for decades in Oregon.

A ballot measure largely settled the debate in 2007. But it’s not over for lots of developments that started under a previous property rights measure.

Now, the Oregon Supreme Court is set to decide what to do about those lingering projects.  Rob Manning reports on the “ghosts of Measure 37.”

Take the scenic route through Oregon, and you’ll find the occasional gravel road to nowhere. There are clearings around with empty foundations.

Maybe it’s the down economy. Or maybe the same thing is happening that gave rise to a set of small, temporary buildings built just outside of Newberg.

Rob Manning / OPB

They’re an odd legacy of the 2004 property rights initiative, Measure 37. The owners have argued that the dwellings there were built to code, and showed the project was far along.

Carr Biggerstaff lives just uphill, and he sees something else.

Carr Biggerstaff: “The shacks were the final last-gasp, end-around run, so to speak, to prove that they were vested.”

“Vested” is the legal term for when a developer has gone so far with a certain project that the courts will allow it to finish, even though land-use rules don’t allow it anymore. 

When Measure 49 replaced 37 in 2007, the landscape shifted. People who’d been granted development waivers under Measure 37 could opt to go ahead with scaled-back plans under Measure 49.

The vast majority of the thousands of Measure 37 claimants chose that route. But state officials estimate that more than 270 claimants tried to prove they were “vested” – by pushing forward with their original plans.

Rob Manning / OPB

The Newberg shacks were one example, but not the only one.

Ralph Bloemers: “They didn’t really get very far, and they were proposing very big projects.”

That’s attorney Ralph Bloemers with the CRAG Law Center. He has represented neighbors and advocacy groups against property owners who were pursuing Measure 37 projects. Neighboring property owners often feared losing water, or other problems, if the developments went forward.

Ralph Bloemers:  “The issue is whether these sort of ‘ghosts of Measure 37’ – the people that pursued those claims – went far enough. And if you go drive out there, you’ll see that nothing was built on these properties, except maybe a road – a gravel road.”

This gravel road climbs through hills along the border of Yamhill and Washington counties. Eight miles northwest of the Newberg shacks are 39 acres belonging to a different property owner.

They constitute the test case for the Supreme Court’s first “vesting” decision in almost forty years.  The fourth-generation farmer who owns the land has put in a few roads, but little else.

Rob Manning / OPB

Gordon Cook: “Gordon Cook, and I’m a farmer in, basically, the Yamhill County area, specializing in vineyard management.”

Cook filed a claim to develop his property under Measure 37. Like thousands of other claimants across Oregon, he was approved. He wanted to subdivide his property.

Gordon Cook: “My plan was to save the rest of the farm, by selling a small portion of it in lots that I could legally do under Measure 37.”

By the time Measure 49 passed, Cook had already taken out a half-million dollar construction loan, and started the local land-use process. Cook says his neighbors never stood in his way – but land-use advocates sued to block him. 

Appeal after appeal followed until earlier this month, Cook’s case came to the Oregon Supreme Court.

Paul DeMuniz: “This is the time set for oral argument in Friends of Yamhill County, Inc vs. Board of Commissioners of Yamhill County….”

Yamhill County farmer Gordon Cook.

The last time the Supreme Court ruled on “vesting” was in the early ‘70s.  It established six factors to judge projects by. For instance, developers shouldn’t proceed in “bad faith” and they typically need to have spent at least seven percent of the total project cost to be vested.

The underlying question for the Supreme Court is whether those factors have to be tweaked to fit Measures 37 and 49 – and if so, how? 

The court is ultimately seeking fairness: what’s fair for Oregonians who voted to limit property rights with Measure 49, and what’s fair for property owners who had already started building?

Gordon Cook says an unfavorable decision would sink more than his development plans.

Gordon Cook: “The end result is that the investors in my loan would foreclose, and they would take back 80 acres that couldn’t be built on. They’d end up with a bunch of dirt that couldn’t be developed, and I don’t know.”

Carr Biggerstaff: “Well, I’d like to see the Supreme Court say that ‘if Measure 37 was about putting up a sub-division, then you should’ve put up a sub-division’.”

That’s Carr Biggerstaff again —- the guy who lives uphill from the shack development near Newberg.

That’s one of a number of projects tied up in the courts, waiting on the Supreme Court to decide Gordon Cook’s case.

Land-use attorneys of all stripes are watching what the Supreme Court does closely. That’s because the court could set rules not just for Measure 49, but  “vesting” cases of all kinds.