JUDGE SAYS NO TO TUMWATER

Decision to reject the Petes Mountain development could set a precedent in the application of Measure 49

By Jim Hart

The West Linn Tidings, Jun 12, 2008, Updated Oct 30, 2009 (16 Reader comments)

file photo / West Linn Tidings

Landmovers sit idle at the Tumwater development on Petes Mountain last fall. A judge ruled last week that the proposed 41-unit development is not vested under Measure 37 and cannot be built.

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In a precedent-setting decision, Judge Timothy Alexander ruled last week that the proposed Tumwater at Petes Mountain 41-unit subdivision is not vested under Measure 37.

Alexander gave four findings and then explained his judgment. He said that M-37 waivers from the county and state were given only to the plaintiffs: Donald Bowerman, Leigh Campbell and Ceille Campbell and not to their developer, Gordon Root.

He said the development contract is binding on all parties, and any attempts to change the agreement to provide evidence for the court case are not acceptable.

And to clarify the issue of how much money had been invested in the project, he acknowledged that Bowerman and the Campbells “had not actually spent any money to develop the property.”

Bowerman said he was not happy with the decision, even though he has great respect for the judge.

“I am obviously disappointed with the decision,” Bowerman said. “We have been working on this development for about three years, and a lot of the reason that it hasn’t gone further is because of the opposition by people who live around there.”

Root called it a “disconnect” between the judge’s understanding and the actual facts of the case.

“I don’t understand how the expenditures made, which are a responsibility of the property,” Root said, “don’t (transfer) to the benefit of the property owner.”

This judgment by Alexander, one of the state’s senior judges who acted as a visiting judge in Clackamas County, essentially raises the bar for M-37 vesting and gives a more concrete example for those who would try to avoid the intent of Measure 49, which limits homes on rural acreage.

Ralph Bloemers, a land use attorney with the Crag Law Center, said the judge found that the property was adaptable to uses permitted by M-49. In this case, Bloemers represented the neighbors and Friends of Clackamas County.

“The ruling is very significant for many other disputed vesting decisions in other Oregon counties,” he said, “those that have utilized the same formula that was rejected by Judge Alexander.”

The case is destined to go to an appellate court, according to Bowerman and Root, who said there are a few similar cases already under appeal and many others following.

Many of those cases, Root says, are being funded by several environmental groups in Oregon, and he attributed the need for M-37 and M-49 to “Oregon’s overly-restrictive land-use laws.”

“It’s absurd,” Root said. “(Environmental groups) are appealing every case that has been vested under Measure 49.”

Opposition to this case came partially from some of the neighbors who live on Petes Mountain.

Judy Messner, who lives in the area, intervened in this lawsuit, challenging vested rights. She says she’s happy with the decision.

“For years now, the neighbors have worked to protect this groundwater limited area,” she said, “and we were extremely concerned that this 41-unit subdivision endangered our water supplies. The developers took a big risk when they raced to vest while Measure 49 was pending, but the voters spoke and the court applied the law.”

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