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PETER WONG
Statesman Journal
October 21, 2007
Here are some questions and answers about Measure 49, which Oregon voters will decide in a special election Nov. 6. About
the only thing supporters and opponents agree on is that Measure 49
changes Measure 37, the property-compensation law that voters approved
in 2004. Because Measure 37 was written as a law and is not a
constitutional amendment, the Legislature can change it without voter
approval. But lawmakers chose to put the rewrite to a statewide vote. Question: What does the original Measure 37 do? Answer:
Longtime landowners, whose property values may have been reduced by
land-use regulations, have two choices under the law that voters passed
in 2004. They can seek payment from governments that
imposed the regulations, which date largely from the 1970s. Or
landowners can seek waivers of those regulations, allowing them to
create lots and build on their property, with exceptions relating to
public health and safety and federal requirements. Landowners
who acquired their land after state and local regulations took effect,
mostly between the mid-1970s and mid-1980s as land-use plans were put
in place, generally do not qualify for compensation or waivers. Q: What has happened with most claims under Measure 37? A:
Neither the law nor governments set up funds to pay claimants, so in
all but one instance, governments have chosen to waive regulations and
allow development. The exception is in Prineville, which agreed to pay
one claim. Q: How many claims have been filed? A:
A Portland State University database lists more than 7,500 claims. An
exact number is hard to pin down because some landowners filed
duplicate claims with the state and counties, although database
managers said they tried to eliminate double-counting. According
to PSU's analysis of claims filed before Dec. 4, the filing deadline
under Measure 37, about 42 percent of claims seek rights to three or
fewer home sites; 30 percent seek rights to four to 10 home sites. Q: What problems have arisen under Measure 37? A:
One problem is acknowledged by both sides: Whether landowners can
transfer or sell the land for which the government has waived
regulations to create lots and allow development. The attorney general
has issued an opinion that unlike rights to compensation, these cannot
be transferred or sold to new owners, even within a family. Appellate
courts have not yet ruled on the issue, although lawsuits are pending
and the Court of Appeals has heard arguments. Advocates
of Measure 37 say waivers can be transferred once landowners have done
enough development to obtain "vested rights." (See below for a fuller
explanation of "vested rights.") Critics say the
measure has the potential of allowing thousands of new homes that will
disrupt Oregon's farming and forestry practices, contrary to state
land-use laws and local plans, and deplete rural water supplies.
Advocates argue that potential is exaggerated. Q: What does Measure 49 do? A:
First, it would limit development allowed under Measure 37, although
landowners who filed Measure 37 claims still could create some lots and
build houses. Second, it would allow landowners to transfer or sell
lots and development rights under government waivers of regulations. Q: What are the limits to development under Measure 49? A:
Unlike Measure 37, which set no limits, Measure 49 generally limits a
landowner to three home sites on property classified as high-value
farmland or forest land, or in a groundwater-limited area, if pre-1970s
regulations did not bar them from development when they acquired the
land. (If the landowner already has the maximum number of home sites,
they can have one more homesite.) "High-value
farmland" was defined in a 1993 law by soil types, irrigation and
current production. Measure 49 adds federal designations of land
suitable for vineyards and state definitions for some productive
coastal lands and "high-value forest land." The state Department of Water Resources has designated areas with limited groundwater supplies. In other rural areas, a landowner would be allowed to develop as many as 10 home sites on a maximum of two separate areas. Q: Can development rights be sold or transferred under Measure 49? A: Yes, but the rights must be exercised within 10 years of someone acquiring them. Q: What will happen to landowners with pending Measure 37 claims if Measure 49 passes? A:
If they do nothing, they would fall under the new guidelines, which
limit the number of home sites they can have, but they also are ensured
that they can transfer or sell their rights to create some lots and
develop property. Or they can pursue their original
claims under Measure 37, as long as they have done enough work on their
sites to assert "vested rights" to continue. Measure 49 does not ensure
the transfer or sale of development rights for those who pursue their
original claims and choose not to scale them down. Q: What are "vested rights" and how are they defined? A: That term is not defined in Measure 49 and comes from common law applied by the courts. A
1973 Oregon Supreme Court decision concluded that each case is judged
on its own merits. The proportion of money already spent to the total
projected cost of a project is only one factor in determining whether a
landowner has "vested rights," having progressed far enough so that a
project must continue. "Good faith" is also one of the factors. Q: What are the new deadlines under Measure 49? A:
If Measure 49 passes, it takes effect Dec. 6, 30 days after the
election. Then the state Department of Land Conservation and
Development has 120 days (projected by April 4) to notify landowners
who have filed claims and ask them to make a choice. Landowners will
have 90 days to respond after receiving their notices. They may scale
down their original claims to fit either of the two lesser categories. Q: What happens to landowners who filed Measure 37 claims to allow commercial and industrial development? A:
If Measure 49 passes, their claims no longer are valid. Most claims in
this category were for billboards; however, one claim in Marion County
is for a casino, and another in Polk County is for a shopping center. Q: Are future land-use regulations that result in reduced property values subject to limits under Measure 49? A:
Yes. The regulations must be enacted after Jan. 1, 2007; claims must be
filed within five years after enactment, and governments would have 180
days to decide claims. Also, new claims would be limited to regulations
restricting farming and forestry practices and residential uses. pwong@StatesmanJournal.com or (503) 399-6745 | 