Oregon Vineyards Protected From Developers

Court rulings side with farmers and foresters, limit housing subdivisions

by Jane Firstenfeld
Harvest Lemelson Vineyards
Harvest at Lemelson Vineyards; not a cul de sac in sight.
Portland, Ore. --  A ruling yesterday by the Oregon Court of Appeals seemed to reinforce a July federal court's actions in protecting Oregon’s agriculture and forestlands from aggressive housing development.

The rulings addressed two conflicting ballot initiatives: The first, Measure 37, was passed in 2004 and would have allowed landowners to subdivide large holdings into smaller plots for housing. When applications started flooding in for multiple housing developments—not the two or three “mother-in-law” units some voters had anticipated—alarmed rural stakeholders launched Measure 49, which was passed by some 62% in 2007. Measure 49 was intended to “rein in the worst abuses of Measure 37,” according to Ralph Bloemers, whose nonprofit group Crag Law Center in Portland represented The Friends of Yamhill County in the vineyard-rich Willamette Valley.

Attorney Ralph Bloemers
Ralph Bloemers

In July, the federal 9th Circuit Court of Appeals reversed an Oregon District Court decision that essentially gutted key provisions of Measure 49 and would have allowed developers to continue their projects if they had filed waiver claims under Measure 37 based on their expenditures on land and improvements. Yesterday, Bloemers announced on the Crag Law Center website that the Oregon Court of Appeals had reversed a Yamhill County decision allowing a large development to move forward there. The court, Bloemers wrote, “upheld the application of measure 49.

“Measure 37 proponents insisted that its purpose was to allow rural landowners to build a few houses for their family,” he continued. “In reality, Measure 37 resulted in over 6,800 claims. More than half of those were for large subdivisions.”

Today, Bloemers upped that tally to 7,500-plus claims affecting 750,000 acres of valuable farm and forestland. He told Wines & Vines that all of these applications had been in locations previously limited to a single residence per 40-80 acres. “About 40%-50% of the waivers were for ‘granny units,’” The remainder, he said, were for expensive housing developments or gravel pits, in such scenic and valuable locations as Bald Peak Mountain and the Chehalem Mountains.

“When the voters realized what had happened, they started working” on a remedy, Measure 49, which passed by almost a two-thirds majority. The developers claimed they had vested property rights under Measure 37 and hired attorneys to argue their cases. In Yamhill County, Bloemers explained, “the lower judge did not apply part of Measure 49.” The Oregon Court of Appeals, he said, told the developers that in order to show they have a vested property right, they have to put forward what the complete project would have cost, and what percentage of that they had already invested.

Some, according to Bloemers, tried to “game it” by putting forward lowball figures for their projects, quoting prices that would put mobile homes on lots advertised for $340,000. Completed homes on these view-home developments, an hour from Portland, were advertised at $1.2 million. “Homes here are pretty spendy,” he noted. In contrast, he reported, one developer had spent only a total of about $150,000 for consultants.

“All they had really done was put down a dirt road,” Bloemers said. “There were no houses, not even any permits for houses.”

The recent court decisions, he said, “enforce the will of Oregonians” to preserve high-value farmland. If the Federal District Court ruling in favor of the Measure 37 petitioners had been upheld, he wrote in his blog, “the state’s land use system would have been in disarray.” The 9th Circuit decision, he wrote, means “owners will be able to pursue modest developments of up to three homes allowed under Measure 49.”

A vintner’s viewpoint

Eric Lemelson, managing owner of Lemelson Vineyards outside Carlton, had been involved in the pro-Measure 49 campaign because, he told Wines & Vines, “There were dozens of development proposals right around the winery. I lost track of the proposals for multiple housing developments,” including one calling for 66 units.

“Groundwater is at a premium here,” he said. “It would be nuts to build all this housing in the middle of nowhere with no services. Measure 37 would have led to enormous development in the Willamette Valley. ”

Lemelson, who organically farms 151 vineyard acres to supply his 12,000 case winery, recalled that after passage of Prop 37, “Farmers started applying for developments just because their neighbors had done so,” reasoning that, with thousands of houses on the surrounding scenic hillsides, they wouldn’t want to be farming there.

Oregon’s agricultural land had been protected, starting in the 1970s. He seconded Bloemers’ description of Measure 37 as a “knee jerk” response by Oregonians to land use restrictions, terming the passage “ideology trumps planning,” that jeopardized “the things that make Oregon unique.”

He noted that the pioneers of Oregon’s thriving wine industry, which in 2008 had a $1.4 billion impact on the state’s economy and continues to grow, favored land-use limits, “the same as in Europe, where the most valuable ag land is protected from development.”

Indeed, in his blog Bloemers quoted pioneer grapegrower/winemaker David Adelsheim, president of 40,000-case Adelsheim Vineyard, Newberg, founded in 1971: “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.”

It’s not yet certain whether the latest decisions will put the issue to rest. According to Bloemers, “The (Oregon) Court of Appeals is the final court that has to hear the case, and they reversed the decision granting vested rights. The applicants for vested right can file a petition for certiorari with the (Oregon) Supreme Court, in which they must convince the Supreme Court that the case is important enough that it should be heard by them.

“In other words, any further appeal is not automatic: They have to make a case as to why the Supreme Court will hear it. I do not know whether they will try to appeal it or not.”

John Pinkstaff, a land use attorney for Lane Powell PC, the Portland, law firm representing the Yamhill County applicants, told Wines & Vines the decision is “a long, detailed opinion that deserves much more review before we can give any insights” about future plans, and declined to comment further.

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