Measure 37 was passed in 2004 to provide landowners “just compensation” for land use regulations enacted after they acquired their property that allegedly diminished the value of the land.  Claimants did not need to prove an actual reduction in value in order to receive a waiver of those land use regulations that would allow development of the land according to the laws, if any, in place at the time the landowner acquired the property.  Measure 37 was very controversial because it allowed large-scale development on previously protected lands.  As a result, in 2007 the voters passed Measure 49, which provided alternative compensation for landowners and allowed completion of already-begun projects pursuant to Measure 37 waivers only where the landowner could demonstrate a “vested right” to complete and continue the project.  The closer to completion a project is, the more likely the landowner has a vested right to finish the development.

Most landowners chose the alternative compensation offered by Measure 49, but some pushed ahead seeking to develop the full extent of the use proposed under their Measure 37 waivers.  In doing so, many landowners attempted to cheat the system by changing the picture of their project to create the illusion that the development was closer to completion than it actually was.

I’ve been working to safeguard Oregon’s land use protections since I started at Crag three years ago, and Ralph has been fighting this battle since 2004.  Crag’s clients and many other Oregonians recognize that land use safeguards exist to protect everyone’s property values and rights.  The large Measure 37 developments threatened farm, forests and water supplies across Oregon.  The Supreme Court’s ruling safeguards the interests of all property owners and will help prevent further conversion of our irreplaceable farmland into subdivisions, strip malls, and gravel pits.  We congratulate those individuals across Oregon who were willing to stand up for their communities and who never gave up the fight for Oregon’s land use protections.

I attended the Coast Conference in Newport last weekend, which brought together local citizens, scientists, policy-makers, and advocates to consider what is probably the most significant issue shaping the coast today: climate change. Two of the presentations provided me with a particularly telling perspective.  A presentation by historian William Robbins of OSU provided a look back at how logging practices, and particularly industrial-scale logging, literally changed the landscape and the watersheds of Oregon’s coast.  This history provided a background to understanding how human activities directly impact our coastal communities,both natural and social.  Building on that background, climate change ecologist Dr. Allen Solomon presented realistic projections of how climate change, including sea level rise and storm surge, will further alter the shape of the coast as we know it.  The more indirect effects of climate change are likely to be just as powerful in re-shaping the natural and social communities of the coast as the direct human activities of industrial logging.  How we respond to these changes will be critical to the future of the coast.

During my three years at Crag, working with Oregon Shores has been the cornerstone of the Coastal Law Project.  From challenging proposals for river-side residential development on land zoned for recreation, gravel mining in South Coast rivers, and destination resorts and golf courses in important habitat locations, to collaborating with fishermen, local governments, and state agencies on marine reserves and territorial sea mapping, to providing local citizen groups with the tools they need to start proactively planning for the effects of climate change in their communities, Oregon Shores tackles the issues threatening the long-term health of coastal communities and ecosystems.  The Oregonian ran a story last week to bring attention to the achievements of Oregon Shores during the past 40 years, and I feel privileged to provide support to Oregon Shores as it moves into its next 40 years, always looking forward to protect the future of Oregon’s coast.

Today, the Court of Appeals reversed and remanded two more Measure 49 Vested Rights decisions out of Clatsop County.  In both cases, landowners sought the right to complete and continue development of residential subdivisions pursuant to waivers obtained under Measure 37.  The Court of Appeals found that the County decision makers and County Circuit Court erred in concluding that the landowners had incurred significant expenditures as compared to the cost to complete the residential subdivisions.

These cases follow from the groundwork laid by Crag Staff Attorney Ralph Bloemers in the first of the Measure 49 vested rights appeals, Friends of Yamhill County v. Board of Commissioners.  In that case, the Court of Appeals found that whether a landowner has a vested right to complete and continue a use based on a Measure 37 waiver depends largely on the amount of construction and money spent as compared to the total cost to complete the use as of the date Measure 49 became effective.  Since then, the Court has continued to refine this holding, and has repeatedly found that where the use sought is a residential subdivision, the costs to construct homes must be included in the total project cost, and the cost must be evaluated as of December 6, 2007 (the date Measure 49 became effective and the date on which a landowner must have vested the right to complete the use).

In today’s decisions, the Court of Appeals found that the County decision makers and Circuit Court erred in concluding that the cost to construct homes in the residential subdivisions did not need to be included in the total project cost.  The Court also found the local decision makers erred by relying on evidence of the cost to complete the subdivision based on evidence of costs from 2008, rather than from December 6, 2007.  This difference is significant because, as we all know, market conditions changed dramatically in early 2008.  Whereas in 2006 and 2007 real estate was still relatively strong, by 2008 things were starting to look grim.  The landowners attempted to use the market downturn as a justification for arguing for a smaller total project cost based on smaller and simpler homes than had been proposed before December 6, 2007.  The Court of Appeals decisions continue to reject landowners’ attempts to skew the vested rights analysis by creating a lower total project cost after December 6, 2007.

Youngs Bay Photo Courtesy of Gary Halvorson, Oregon State Archives

Today, the Oregon Court of Appeals handed down another decision reversing and remanding a Measure 49 vested rights determination.  Today’s opinion reversed Clatsop County’s decision finding that Beverly and Gary Aspmo had proceeded far enough with their development of a 30-lot residential subdivision overlooking Youngs Bay (sought pursuant to a Measure 37 waiver) to be allowed to complete the development even after Measure 49 had passed.  Part of the vested rights analysis looks at whether the amount spent towards completing the project was substantial as compared to the total cost to complete the development sought to be vested, and whether those expenditures were adaptable to other lawful uses of the land.

The Court of Appeals has decided several Measure 49 vested rights appeals now, beginning with Friends of Yamhill County v. Board of Commissioners of Yamhill County, in which Crag Staff Attorney Ralph Bloemers represented neighbors seeking to protect their property values and quality of life from excessive development under Measure 37 waivers.  That case is currently under review with the Oregon Supreme Court.  You can listen to OPB’s recent story on the case, ‘Ghosts of Measure 37′ Still Haunt Rural Oregon here.  Today’s decision built upon Friends of Yamhill County and other vested rights decisions handed down by the Court in recent months.

Crag Staff Attorney Courtney Johnson represented Oregon Shores Conservation Coalition in challenging the Clatsop County vesting determination.  In finding that the applicants had established a vested right to complete the subdivision, the County relied on cost estimates to build homes that were only about half the size of the homes proposed during the land use process.  Crag’s argument was quoted by the Court of Appeals in its decision today:

“The approach taken by the county and accepted by the reviewing court sets up a standard allowing the Aspmos to present an after the fact lowball figure for a total project cost in order to create the appearance of greater expenditures incurred.  Creating a lower denominator after December 6, 2007, in order to artificially elevate the ratio of expenditures incurred skews the vesting analysis in a manner that is inconsistent with the common law.”

The Court determined that the the county and the reviewing Clastop County Circuit Court did not assess the total project cost of the development that the Aspmos sought to vest as of December 6, 2007 (the date that Measure 49 became effective).  The Court concluded “[t]hat legal error requires reversal.”  The Court also found that on remand, the Clatsop court must address the issue of whether there was substantial evidence to support a finding that the Aspmos’ expenditures were not adaptable to other allowable uses, such as the 1-3 homesites allowed under Measure 49.  You can read the Court’s entire decision here.

This case represents another step towards seeing Measure 49 implemented as the voters of Oregon intended and upholding the state’s land use system to ensure our farm and forestlands and water resources are protected for future generations of Oregonians.

During a trip to the south coast last fall, where I was presenting a series of land use workshops in partnership with Oregon Shores Conservation Coalition, I had the rare opportunity to visit the Crook Point Unit of the Oregon Islands National Wildlife Refuge.  Located on the coastal headland just south of the Pistol River, 12 miles south of Gold Beach, the Refuge is closed to the public.  I was only allowed to enter as the accompanied guest of David Ledig, the South Coast Unit Refuge Manager for the U.S. Fish and Wildlife Service.

The reason for our visit was to see and better understand the concerns of the Fish and Wildlife Service with a large destination resort proposed for a neighboring parcel of land.  The destination resort would include two golf courses, 175 units of lodging, spa, clubhouse and restaurant, among other things.  As we hiked down to the beach at the Refuge and looked out at Mack Arch Rock, the wind blowing across the sand, our footprints the only sign of human activity, I felt I had been carried back in time–back to a time before beachfront condos, curios shops, golf courses and rip rap.  We might as well have been on the edge of the world.  Dave regaled us with stories of the bird and mammal denizens of the Refuge, including black bear, known to come all the way down to the beach at the Refuge, an event unheard of in more developed sections of the coast.

My visit revived my resolve to work harder to protect these remaining pockets of wild coast, and re-energized me for the work I knew lay ahead.  Happily, my work paid off last week when the Land Use Board of Appeals rejected Curry County’s approval of plans for the destination resort.  The work is not finished, but I will hold the images of my visit that day in my mind as a reminder of the reasons why I love this job.

Harbor Seals at Crook Point. Photo by David Ledig USFWS

A proposed large-scale destination resort on a remote and wild section of the Oregon coast in Curry County will not move forward without further review by the local land use authority.  In a decision issued Friday, the Land Use Board of Appeals found that the county had made errors in approving the tentative master plan for the destination resort.

The property is adjacent to the Crook Point Unit of the Oregon Islands National Wildlife Refuge and the Pacific Ocean, and sandwiched between two state parks: Pistol River State Park to the north and Boardman State Park to the south.  The site contains steep slopes and landslide areas as well as several creeks and wetland areas.  This area, north of Brookings in the southernmost section of the Oregon coastline, is so isolated that black bears have been seen on the beach at the wildlife refuge–a rarity given the extensive human development of the coastal areas.

The proposed project was no small affair – an 18-hole golf course, golf practice facilities, a 9-hole junior golf course, 175 overnight guest rooms, a golf lodge with restaurant, spa lodge, recreation center, and equestrian center.  Cabins would be built atop the sea cliff overlooking the ocean, and golf cart paths would wind their way throughout the property, crossing several wetlands and streams.

The project attracted plenty of attention locally, gaining support for the number of jobs promised and concern over impacts to the adjacent wildlife refuge.  In particular, Oregon Shores Conservation Coalition, Oregon Coast Alliance, and Kalmiopsis Audubon Society members worried that the development would attract trespassers, human and animal alike, to the wildlife refuge.  Home to huge colonies of nesting seabirds, the refuge and its denizens are particularly at risk to predators like racoons, which can easily raid the ground nests of birds like Storm Petrels and Tufted Puffins.

After Curry County approved the plan for development, Crag filed an appeal with the Land Use Board of Appeals (LUBA) on behalf of Oregon Shores.  Crag Staff Attorney Courtney Johnson argued that the county could not approve the development without first reviewing a geologic hazard assessment of the property and proposed development as required by the county’s own ordinances.  Without the geologic hazard assessment, which would provide an analysis of the risks from the many existing landslides on the property and the suitability of the site for development, the county could not conclude that the development could be completed safely without risk to human life and property and adverse impact to adjacent lands.  Crag also argued that the county erred in concluding that the proposed development was not situated on coastal shorelands–thereby avoiding application of more stringent development review.  The county ignored its own map showing the coastal shorelands boundary and narrowly interpreted its code, in conflict with Statewide Land Use Goal 17, by excluding areas of geologic instability from the coastal shorelands boundary.  Finally, we argued that the county failed to follow its own code in ensuring that adverse impacts to nearby lands like the wildlife refuge be avoided first, and minimized only if avoidance is not possible.  The county relied only on measures to minimize impacts and never considered measures to avoid impacts all together.

LUBA agreed with Crag’s arguments, sustaining all three assignments of error and sending the decision back to the county to be corrected with further information and review as required by the local ordinance.  The applicant will be required to prepare a geologic hazard assessment in order to properly identify coastal shorelands on the property, and the county must consider whether the development proposal can be revised to avoid impacts to nearby lands including the wildlife refuge.  Eventually, this project may still move forward, but for now this section of the Oregon coast will remain wild.

Despite these violations, Tidewater sought a renewal of its county permit.  The Curry County Planning Commission denied the renewal request, but Tidewater appealed to the County Board of Commissioners.  Crag represented Oregon Shores Conservation Coalition and Curry Sportfishing Association in the appeal, arguing that the permit violations, and more importantly the change in mining methods, gave the County ample authority to deny the renewal request. Specifically, the original approval made findings and conclusions of law expressly relying on the mining method to reduce or eliminate adverse impacts to the Rogue River and adjacent land uses.

On May 5, the Board also denied the renewal request.  Noting its significant discretion, the Board stated that it “cannot agree to look the other way” and ignore Tidewater’s permit violations.  The Board also found that Tidewater’s actual mining methods and proposed future mining methods “substantially deviate from the methods approved in the conditional use permit.”  The Board noted that it had never evaluated whether Tidewater’s actual mining methods meet the applicable local ordinance standards.  The Board concluded that “it is not appropriate to bypass the County land use process just because DOGAMI or other state agencies will review the new mining methods for compliance with state regulations.”  In sum, the Board found that it “cannot renew a conditional use permit for a use that was never evaluated or approved.”

The Board of Commissioners stood up to an applicant that was asking it to look the other way and ignore its violations, and to approve a revised mining plan without any analysis of compliance with the land use laws of the county.  This is a rare and sweet local victory for residents, fishermen, native fish and the mighty Rogue River.

To see the Board’s entire decision, click here.

The dispute boils down to this – current law prohibits the state from turning our public forests into industrial clearcuts.  The Oregon Department of Forestry must manage our state forests to obtain the “Greatest Permanent Value,” which includes a full range of social, economic and environmental benefits – the triple bottom line.  The State is required to balance multiple uses to ensure protections for wildlife habitat, water quality, and recreation.  Even with these protections on the books, logging on or state forests is still unsustainable, which is why Crag has worked for years to enforce federal laws like the Clean Water Act on our state forest lands.

As the Oregonian noted, the people of Oregon expect our state government to protect and steward these irreplaceable natural resources for future generations.  The timber industry and a few county governments, however, remain entrenched in their outdated views, wanting to clearcut most of it now for short-term economic gain.  The only problem, of course, is that our laws stand in their way.  The Greatest Permanent Value rule simply does not allow the state to turn our public forests into industrial tree farms dominated by clearcuts.

Maybe in the old days, the timber industry could just go down to Salem and rewrite the laws.  But times have changed.  The public won’t support such a blatant give away of our natural legacy.  Our kids – and their kids – deserve better.

The public gets it.  The Oregonian gets it.  Why can’t the timber industry and its politicians finally catch up with the times?  The future of the industry lies in collaboration, restoration and a more complete picture of long-term economic value.  These outdated bills are a last gasp attempt to return to the unsustainable practices of the past.

Photo courtesy BLM

Fast forward to October of 2010, when DOGAMI is notified by local concerned citizens that Tidewater has excavated its entire annual allotment of gravel without obtaining the required stormwater permit, and has mined to a depth exceeding the terms of the DOGAMI mining permit.  DOGAMI issued two separate notices of violation and a suspension order, and required Tidewater to re-grade the site. Tidewater’s representative admitted that it had altered its mining method from the proposed side-cut scalp to instead dig a series of trenches and that it was stockpiling overburden at the mine site.

When Tidewater applied for a renewal of its permit last November, Crag again represented Oregon Shores before the Curry County Planning Commission.  Crag argued that the violations of DOGAMI’s permit also constituted violations of the County’s conditional use permit, and that Tidewater’s admitted modification of its mining method required a modification of the permit.  The Planning Commission agreed and denied the permit renewal request with a 7-1 vote.  Tidewater still has options to seek approvals, but the Planning Commission’s decision is a breath of fresh air for local people seeking to protect the Rogue River, its fish and wildlife populations, and the tourism money and jobs they’ve come to support.

Crag attorneys Chris Winter and Courtney Johnson worked with Columbia Riverkeeper’s Brett VandenHeuvel to defend LUBA’s decision before the Court of Appeals.  At issue in the appeal were requirements in the Clatsop County Comprehensive Plan that limit development at the project location to “small to medium sized water-dependent industrial development” and policies that require protection of certain natural resources including endangered species and traditional fishing grounds.

In approving the land use application, the County limited its review of the scale of the development to include only the land-based facility itself – excluding any dredging, docking areas and pipelines associated with the facility.  By doing so, the County ensured that the proposal would not exceed the threshold of “small or medium-sized.”  On review, LUBA determined that the County’s own definition of “development” specifically includes any construction or excavation and therefore concluded that the County erred in failing to consider the entire construction project’s scale.  The Court of Appeals agreed with LUBA, finding that the County’s definition “plainly includes land disturbed as part of the construction of structures and land that is excavated by dredging.”

When the County approved the land use application, it also determined that mitigation efforts included in the project would protect natural resources including endangered species and traditional fishing grounds.  Rather than requiring the proposal to avoid or prevent harm to those resources, the County found that efforts to minimize adverse impacts were sufficient to protect the resource.  On review, LUBA determined that the meaning of the word “protect” requires that those resources be saved or shielded from anything more than de minimus damaging impacts.  LUBA  held that the County’s reliance on mitigation measures was insufficient.  Again, the Court of Appeals agreed.  After reviewing the definition of “protect” and the context of the phrase, the Court concluded that “‘Protect,’ in this context, means more than minimizing the adverse impacts of conflicting development through mitigation.  It means inhibiting development that causes significant adverse impacts on the protected resource.”

In September, the Oregon Department of Land Conservation and Development denied certification for the project under the Coastal Zone Management Act.  This is a required certification, and the Department’s denial of the permit added yet another blow to any recovery of this project.  Although two other LNG terminal proposals in Oregon remain viable, it appears more and more certain that opponents can rest assured the Bradwood Landing project is gone for good.

See the article in the Daily Astorian.

See the  Blog post on EcoTrope.