After Measure 49 was passed by Oregon voters on November 6, land use issues have largely fallen away from the state's attention.
But now attempts by Measure 37 claimants to show they're vested (basically, "grandfathered" in), and not subject to Measure 49, are heating up the land use burner.
Down Medford way, three property owners have sued Jackson County for more than $20 million, saying their Measure 37 constitutional rights have been trampled.
Medford resident David Smith, a member of the newly formed Citizens for Constitutional Fairness, said the dollar amount that property owners say they've lost after the passage of Measure 49 — the fix for Measure 37 — could be significant.
"I think it's going to be $1 billion," Smith said. "It's basically going to bankrupt the county if they don't do anything."
Well, good luck with your constitutional arguments, David.
A circuit court judge in Multnomah County recently rejected a similar attempt to make an end run around Measure 49, ruling that he was "unpersuaded by plaintiff's constitutional objections to the application of Measure 49 to this case." (Luethe v. Multnomah County) Download opinion_re_luethe_dismissal.pdf
Interestingly, the county on the hook for a billion dollars sought by disgruntled Measure 37 claimants has bent over backward to give them more rights than they were entitled to.
Namely, the right to transfer a Measure 37 waiver to a new owner of the property. Oregon courts have ruled that this isn't allowed. Only the successful Measure 37 claimant gets a pass from land use regulations enacted after he acquired the property. See: Download crook_county_v. All Electors.pdf
But Jackson County passed an ordinance that bestowed transferability on new owners of a Measure 37 claim. Then the county sued itself to find out if the ordinance was legal. Which, it wasn't. Download jackson_county11907.pdf
So this makes getting vested important for Measure 37 claimants who don't want to play by Measure 49 rules (which limit a property to no more than ten home sites, and prohibit industrial or commercial development).
Because anyone who buys part of all of their property can't develop it – build a home, for example – unless the claim is determined to be vested under common law. And it's clear that hardly any Measure 37 claimants will have vested rights.
This isn't stopping some from trying to go the vesting route, however.
I've been playing attorney on a case in Marion County that came to the attention of my wife and me when some neighbors of a Measure 37 claim told us that county staff were recommending that the board of commissioners rubber stamp a "You're Vested!" decision, even though the evidence pointed to an opposite conclusion.
This case, involving a 9.66 acre property owned by Sheryll Ralls, centers on what "use" means in a land use context. The issue doesn't rise to the level of Bill Clinton's "it depends on what the meaning of the word 'is' is," but there's still some unavoidable seeming circularity here.
Consider this sentence from the state order granting the Ralls Measure 37 waiver:
The action by the State of Oregon provides the state's authorization to the claimant to use the subject property for the use described in this report…
Use for a use. Grammatically, we can discern a verb and a noun here. There's a "use" authorized to a Measure 37 claimant, and there's also the "use" they make of that authorization.
In the Ralls case, this was the use authorized by the state: "to divide the 9.66 acre subject property into six approximately 1.6 acre parcels for residential development." So residential development is the action that counts as a use.
This all may sound land use-geeky, but it means a lot to both neighbors of Measure 37 claims and the claimants themselves. Because many vesting cases are going to come down to the definition of a land "use."
Naturally the claimants want the use they make of their property in order to be vested to be minimal.
Over in Baker County, planning officials are taking a position that's pleasing to claimants but legally indefensible: that all you have to do is apply for a building permit or a partition, and bingo!, your Measure 37 claim is vested.
Problem is, this isn't in line with how Oregon courts have ruled on vesting issues. The Crag Law Center prepared an excellent memorandum on this subject that was submitted yesterday to the hearings officer who will decide the Ralls case. Download january_28_2008_letter_re_ralls_m0614.pdf
It's must reading for anyone involved with a Measure 37 claim that's attempting to get vested on the basis of merely having partitioned or subdivided a property.
In short, that's not a "use." It's a preparation for a use, much as putting a blank canvas on an easel is just preparation for painting.
(For the land use geeks, here's some more vesting-related court cases to mull over:)