Oregon wine country protected by Appeals Court decision enforcing Measure 49

By Brian Hines of Salem, Oregon. Brian describes himself as "a progressive blogger who has been involved in land use issues for some time." He typically blogs at HinesSight. Previously, he contributed "9th Circuit Upholds Measure 49"*.

Though the statewide threat to the future of Oregon’s farm and forestland posed by ballot Measure 37 was reined in by Measure 49 in 2007, many important local battles to save special places throughout Oregon from large Measure 37 subdivisions, gravel pits and commercial developments have been making their way through the state legal system.

Recently, the Oregon Court of Appeals issued a ruling on the first vested rights case to reach the appelate level from a circuit court. The Yamhill County Board of Commissioners and a circuit court judge had allowed Gordon Cook to go ahead with a 10-lot, 39-acre subdivision on land zoned Agriculture Forestry. Friends of Yamhill County appealed the decision.

(Vesting basically means that a development was either established or substantially constructed and therefore is "grandfathered in" after a change in the law now prohibits that sort of land use. Since Measure 49 stopped large Measure 37 subdivisions, some people who started work before Measure 49 passed have been trying to get vested rights applications approved by county commissions, hearings officers, and/or courts.)

The result: a big win for those who want to keep Oregon green in both the environmental and economic senses, because the best use of valuable farm and forest land is, obviously, to grow crops like wine grapes and trees for products-- not subdivisions. Here's a News-Register story about the ruling.

Wines and Vines lauded the decision, as did David Adelsheim, president of 40,000-case Adelsheim Vineyard, Newberg, founded in 1971. He was moved to comment on the ruling and his statement speaks to how our land use system creates and sustains property rights and values for all Oregonians:

Oregon winegrowers know the importance of preserving prime agricultural land. Oregon’s land use laws are the reason our industry exists today. 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. 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 ensure that Oregon’s wines will continue to flourish.

Judge Sercombe penned the decision for the majority. He reversed the decision that was approved by Yamhill County and sent the case back to it. The proposal to build a subdivision is not likely to be approved on remand because the Board cannot ignore the fact that Cook only spent $155,000 on the development.

Cook tried to make the amount he spent look proportionately bigger by claiming that he intended to place mobile homes on the land, even though he had advertised the lots for over $350,000 and homes priced at $1.2 million. The land is on Bald Peak Mountain and boasts views of Oregon’s Cascade Range.

And the county commissioners can no longer pass over a glaring apparent fact that should have stopped the subdivision a long time ago. As I said in another post on this subject:

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 the Court of Appeals ruling.

I want to give Ralph Bloemers of the Crag Law Center a big virtual "high five" for his win on this case. He's also done great work for our rural south Salem neighborhood, which has been battling a 43-lot, 217-acre Measure 37 subdivision that threatens existing wells and water rights.

The Crag Law Center got our neighborhood a win in circuit court, and gained an important victory in the 9th Circuit Court of Appeals, so they're on a roll enforcing the will of the voters as expressed in Measure 49. Many other cases are still in the legal hopper, so stay tuned. As Bloemers said in a post on the Crag web site about the Court of Appeals ruling:

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.