County decides vesting cases
Despite opposition to his north Madras subdivision, Gordon Shown, of Terrebonne, was the first Jefferson County property owner to prove "vesting" at the March 5 County Commission meeting.
The commission determined that Shown, who is in the process of developing the 68-acre Bitterbrush Estates north of Hilltop Lane, is vested in his project, which he started after the 2004 passage of Measure 37.
Measure 37 allowed a longtime property owner to seek compensation, or a waiver of regulations passed after the property was acquired. Shown, who has owned the property for nearly 45 years, has been trying to develop it since the early 1980s.
When Measure 37 was passed, the commission granted a waiver to allow him to develop 31 buildable lots on his 68-acre parcel.
Before the November 2007 passage of Measure 49, which limits development on Measure 37 parcels, Shown had proceeded with surveying, engineering, roadwork and installation of utilities -- spending an estimated $300,000.
"From our perspective, I think the county has it right, the DLCD (Department of Land Conservation and Development) has it right, the state has it right," said Redmond attorney Ed Fitch, noting that under current laws, Shown was sufficiently vested in the project by Dec. 6, 2007, when Measure 49 took effect.
"Who in their right mind would invest $300,000 for something that has no value," Fitch said. "It doesn't make any sense."
Sam Brown, of Madras, whose property is located about 600 feet from the proposed subdivision, said that in order to proceed, Shown's investment needed to be substantial in relation to the total cost of the project.
He suggested that the cost of the houses alone would be in the $8 million range, making the $300,000 investment very small.
Fitch countered that the cost of the houses shouldn't be considered, because Shown could legally put up $50,000 manufactured homes if that was what he wanted.
Other factors to be considered to determine common law vesting include whether the property owner was proceeding in good faith or had notice of the proposed change before beginning development, and if the improvements could be used for other uses.
"The majority of the costs occurred after the June 15, 2007 date," Brown said. "There was a knowledge that Measure 49 was pending and it could become law."
Commissioner Mike Ahern remarked that Shown has been trying to develop the area since the 1980s, and started work as soon as he had a waiver and funding.
"The process was about as timely as a person could do," he said. "I think the Shown subdivision passes all the tests. He went ahead and worked fast and furious."
Chairman Bill Bellamy said he looked at "the good faith of the property owner, whether they worked with the county, whether they started as soon as they could have."
In Shown's case, Bellamy added, "He took six months to put together the legal documents, got all permits, received preliminary plat approval. I think he's easily met the test of substantial development."
Commissioner John Hatfield agreed, "The key parts of the requirements have been met."
Steve and Susan Rask, of Madras, also sought vesting status on their four 40-acre lots, on Northwest Deschutes Drive.
"It isn't in my opinion any longer equitable to farm it," Steve Rask explained, noting that they went through the entire county process and acquired the necessary permits for all the lots.
The Rasks invested $288,248.57 in preparing the lots and installing two manufactured homes and building a custom home, besides their existing home.
"If any applicant meets the vesting requirement, this is it," said Bellamy.
The commission unanimously approved the Rasks' vesting application.