Oregon's Great Land War
Measure 49 provides fodder for protracted legal battles
By Lisa Baker
Whatever opinion you may
have had about Measure 49, there was one thing its proponents made clear:
For better or worse, it was going to bring clarity and finality to the
question of property rights in Oregon.
And, some voters likely considered, it was about time
the civil war over 1970s-era land use debates came to an end. They thought
they’d ended it in 2004 when they passed Measure 37, the property
rights manifesto that called for government to either compensate land
owners whose property lost value in the wake of 1973’s land use
regulations or allow them to build. Measure 37 seemed clear enough.
But in the intervening years, the measure remained
under constant attack. It was called a development free-for-all, a mess,
and a legal tangle that could never be untied. Story after story portrayed
complications arising out of the measure, the unanswered questions, the
dueling interpretations and conflicting orders. Lawsuits mounted, finally
topping out at about 300, while claimants tried to press their advantage
under 37 and their opponents attempted to stop them.
But in the months since the passage of Measure 49,
quiet — at least in the media — has reigned. Finally, it appears
safe to go back to the news and hear about Something Else.
Don’t let the quiet fool you.
Listen. Under the surface of Measure 49’s relative
peace, there it is, the low rumble of cannons rolling into position and
legal fodder being gathered. The buildup for the next great land war has
Measure 49 carried the promise of clarity in its own
ballot language, stating that it “clarifies (the) right to build
homes, limits large developments, (and) protects farms, forests, groundwater.”
Claimants wanting to build three or fewer homes could be fast-tracked
through the process. Those wanting up to 10 houses would jump through
more hoops, including simply proving that the claimant’s losses
due to land use regulation were worth — monetarily — at least
the number of houses proposed. No one would get more than 10 and no one
could build anything commercial or industrial.
So, it’s clear, right?
Michael Morrissey, whose job it is to manage the claims process for the
Department of Land Conservation and Development, put his response this
way: “Ha ha ha!”
Asked to explain further, he says, “Well, Measure 37 was a one-and-a-half-page
document that left a lot up to interpretation. Measure 49 is a 26-page
document with a large amount of language and detail that we’re trying
to make understandable … There are issues that make it complicated.”
Complicated how? “Well, for instance, if a claimant takes the conditional
route and wants to demonstrate loss, we will have to have appraisers look
at that, see that the appraisal is done to standards, and then translate
that (loss) into a number of houses,” he says. “It’s
a detailed process we haven’t done yet.”
Then there are Measure 49’s exceptions, which predicate a claim’s
success on whether the property is within an urban growth boundary, whether
it contains certain soils, is considered “high value” forestland
or farmland or in an area where viticulture — by virtue of soils
types and elevation — could be successful. Areas considered water-limited
are also barred.
Multiple owners or owners with several pieces of land could cause more
complication, Morrissey says. Also: Measure 49 added more recent land
acquisitions to the equation that were not included in Measure 37.
“So, let’s say they bought their land in 1982,” Morrissey
says. “We will have to look at what the (land use) rules were in
1982 and make a conclusion as to what the land owner could have gotten
Because the requirements of the measure are so much more involved, the
department is publishing a 10-page book to explain the basics of Measure
49 to the state’s 7,000-some claimants, plus a guide to completing
the paperwork involved in handling a claim under the measure. Additionally,
the state is working with Oregon State University to set up a database
that will determine for claimants whether their land is situated on certain
kinds of high-value soils or are in any way subject to any of Measure
49’s other caveats.
As part of its new duties under Measure 49, the department is requesting
a staff increase to work the claims, including specialists trained in
evaluating land appraisals.
Attorneys say there are enough ambiguities in the measure that guarantee
plenty of time in the courts — and more delay for mostly elderly
property owners still waiting for answers.
Jim Zupancic, a land use attorney who represents a bevy of Measure 49
claimants puts it this way, “You could say it’s déjà
vu all over again, only more so … While it’s true that Measure
49 resolved some of the issues on 37, it opened Pandora’s box to
many more issues,” he says. “The question under 37 was relatively
simple: When did you acquire the property? But Measure 49 has a whole
new set of rules. A plethora of rules, in fact.”
Proving and quantifying adequate loss of value caused by land use regulations
is one of the more onerous requirements: calling for an appraiser to evaluate
the property’s value when it was acquired, determine its worth one
year after land use regulations went into effect, and include a determination
as to whether a residential use would have been the best use of the property
at the time the property was acquired, regardless of whether the passage
of time would have made it so later. The formula, Measure 49 critics say,
is weighted in such a way as to make it impossible for any applicant,
especially one whose land would be particularly valuable today, to succeed.
Chris Paulsen, a Portland appraiser, said coming up with a determination,
given the age and condition of property records that are 40 years old,
might be undoable. “I don’t think even the state understands
the complexities,” he says.
Ed Trompke, a land use attorney with Lake Oswego-based Jordan Schrader
Ramis PC, represents players on both sides of Measure 49 — government
entities and claimants. He says the number of legal questions are on par
with those raised by Measure 37.
The most high profile issue is that of vesting, which allows landowners
who’ve invested significant amounts of time and money into developments
already approved under Measure 37 to proceed with their plans although
they no longer would be allowed under 49.
The problem is, there is no rule defining who is vested and who is not;
there is no magic monetary figure. The issue is further clouded by a competing
legal test: the test of good faith. A claimant who shows he has made a
significant investment in his development based on his approved Measure
37 claim could be disqualified from vesting if it’s decided that
the claimant was making the investment simply to show that he was vested.
So, in sum, you’re vested if you didn’t intend vesting, but
if you did, you’re not.
“We were hoping they’d define vesting, but it was a political
hot potato, so they punted,” Zupancic says. “So now, everybody’s
writing extensive papers on what vested rights are, and there is tremendous
confusion throughout the state on what those are and who will determine
them and how.”
Trompke says the measure also does not address land within city limits
that is not contained in a city’s urban growth boundary (UGB) since
the measure bars development outside of UGBs. For most cities, UGBs represent
where urban development will go next as population expands, but in some
cities, such as Tangent and Damascus, the UGBs have not been expanded
despite the fact that urban services have, Trompke says.
And then there’s the issue of the Oregon Constitution, which states
that the law governing land use is that which was in effect at the time
a land use application was filed, Trompke says. Those who filed development
applications under Measure 37, Trompke says, should — according
to that policy — be allowed to do what Measure 37 allowed them to
David Hunnicutt, one of the original framers of Measure 37, says Measure
49 “is so unclear, it will be hard for the state to give people
any solid information.” Hunnicutt says he’s compiled a list
he calls “50 Ways You’re Going to Get Sued” —
a compendium of legal questions he says are raised but not answered by
the measure and could result in litigation should claimants attempt to
move forward. “I think by the time we get done with this, we will
find that the number of lawsuits under Measure 49 will be far more significant
that those under Measure 37.”
Trompke says he believes Measure 49 is flawed in the same way Measure
37 was, and for the same reason. “No group can write effective legislation
unless it’s vetted in an open and public process where opponents
and proponents can work together over time. It’s the same weakness
that the initiative system has.”
Greg MacPherson, D-Lake Oswego District 38, one of the creators of Measure
49 and an attorney at Portland’s Stoel Rives LLP, says that while
the measure itself was not debated publicly, the concepts that “gave
rise to 49” were discussed in nine public hearings. “There
was a lot of public input here. By the staff’s count, 369 Oregonians
from all over the state got to present on the issues and there was quite
a mix of people.”
MacPherson says he believes his measure “resolved many of the issues”
brought about by Measure 37 and that there are always uncertainties when
the stakes are high. “We have narrowed the issues and people are
on firmer ground than they were before 49.” To say otherwise, he
says, “is just ridiculous.”
The vesting question is something MacPherson believes should be decided
by courts rather than by lawmakers, but he says he believes that any progress
on development made after Measure 49 was placed on the ballot should not
be considered “good faith” even if the vote had not yet occurred.
Eric Stachon, spokesman for 1000 Friends of Oregon, a conservation group,
says reports of chaos in the aftermath of Measure 49 are likely exaggerated
for political reasons. “Measure 49 claimants find it in their interest
to promote an illusion of uncontrolled chaos. It’s hyperbole.”
Jim and Virginia Carlson, who began their efforts to split
their 75 acres in Astoria into 28 lots three years ago, say the effects
of the land war are real and significant. Jim Carlson inherited the property
in 1957, when it was unencumbered by zoning regulations. Later, the land
was zoned agricultural and slapped with an 80-acre minimum lot size.
The struggle to regain their development rights “has
created a significant financial hardship on us and has been extremely
stressful which has directly impacted our health,” they said in
a statement to BrainstormNW. “And the rules keep changing, which
leaves us in a very precarious position. As lifelong Oregonians, and contributing
members of our community, we deserve to be treated with more fairness."
It’s an argument that has prompted open mockery on
websites such as BlueOregon, in which bloggers refer to claimants, such
as 95-year-old Dorothy English who is trying to build eight lots on her
20 acres, as “Greedy Grannies.”
Zupancic, the Carlsons’ attorney, says he believes
the “human side” of Measure 49 “is being lost in the
translation of the meaning of what ‘is’ is,” he says.
“Rooms full of lawyers talk about legal language, while the lives
of real people who’ve paid their dues and been law-abiding
for their entire lives are being jerked around unmercifully.”