Measure 49 making more news now

For a while things were pretty quiet on the Oregon land use front. But now my "Measure 37" Google News alert is sending me more stories, as the implementation of Measure 49 produces increased legal activity.

In Benton County the Board of Commissioners essentially put a stop to a seven-lot Measure 37 subdivision sought by Charlie Fischer.

The Gazette Times story, "Benton grants Fischer right to subdivide, but not to build," says that Fischer hadn't spent enough before the passage of Measure 49 to be fully vested (basically, grandfathered in). He'd been able to get lots approved, but not dwellings built.

Since Measure 37 doesn't allow for the transferability of building rights, Fischer needed to construct homes on the seven lots. He couldn't sell the lots to other people with the right to build their own houses. So now he's left with lots on EFU land that can only be used for farming, not residences.

However, Measure 49 allows him three home sites. And transferability. Thus Fischer should be able to make quite a bit of money from his property – much more than the $67,000 he's put into development activities so far.

The West Linn Tidings ran a story on a Clackamas County vesting case that was the subject of a previous post. The subtitle of "Judge says no to Tumwater" is Decision to reject the Petes Mountain development could set a precedent in the application of Measure 49.

Here, as in Benton County, it was determined that the Measure 37 claimant had to have done considerable work on building homes before the subdivision could get a thumbs up on vesting. Even though the developer had spent more than $1 million, this was a small percentage of the $30 million needed to complete the project.

Plus, the judge ruled that the work that'd been done could be adapted to the three home sites allowed by Measure 49.

Another interesting case is in Yamhill county, described by the News-Register in "M37 case catches county in conundrum." Neighbors of the Kroo subdivision appealed its approval, and the Land Use Board of Appeals "remanded the case to the county for a do-over on technical grounds."

Problem is, Measure 37 doesn't exist anymore, after the passage of Measure 49. So there's no Measure 37 claim to do-over.

Because all this is still in the appeals process, one school of thought holds that the Kroos do not yet have approval for a subdivision. If that's the case, they can't get it approved now, because the law that enabled them to go for it, Measure 37, has since been overturned by Measure 49.

That, anyway, is the state's argument.

In anticipation of Wednesday's remand hearing before the county commissioners, Michael Morrisey of the state Department of Land Conservation and Development told the county "the applicant's Measure 37 waivers have no further force or effect and therefore cannot support the requested subdivision."

If so, the Kroo's will end up with a three lot, rather than 10-lot, development. Again, less than they hoped for, but more than they would have been entitled to without Measure 49 if they weren't vested under Measure 37.

Comments

[Harry Vanderpool]

My understanding is that if a claimant chose the vesting route and lost, they could not "try again" with one of the other M-49 routes. They are to chose and follow one path.
I am I wrong?

[Brian]

Harry, current DLCD policy is to treat vesting under Measure 37 and the Express/Conditional options of Measure 49 separately.

Thus claimants are being allowed to choose Express and also pursue a vested rights determination.

This doesn't make sense to me. Nor to some land use attorneys I've communicated with. I read section 5 of Measure 49 as saying that "just compensation" is either what's allowed under that measure or a vested right.

Not both. Because there's an "or" before the vested rights mention. See what you think:
http://www.leg.state.or.us/07reg/measures/hb3500.dir/hb3540.en.html

By this interpretation, once a claimant has gotten an Express or Conditional approval, vesting couldn't be sought.

However, if a claimant applied for a vested rights determination before getting an Express or Conditional approval, and failed, there's more reason for DLCD to allow the claimant to apply for Express/Conditional as a fallback option.