Me thinketh Oregonians in Action (OIA) doth protest too much about Measure 49, a balanced effort to fix Measure 37 – which trashed Oregon's land use laws and threatens our state's vaunted livability.
Most Measure 37 claimants are going to make out better under Measure 49. If OIA really cared about their constituency, they'd be urging a YES vote this November.
And Measure 37 claimants don't want the headaches that this poorly written law has brought them, such as the inability to transfer their waivers.
What this means is that if a claimant has the right to build a house on land where that currently isn't allowed, but was when they bought the property, they can't transfer that right to a buyer of the property. This is a big drawback for a prospective buyer. And, naturally, for the prospective seller.
Measure 49 allows the transfer of waivers. This should be enough to make Measure 37 claimants rush to check the YES box when they get their ballots. Land is much more valuable with development rights attached.
But Measure 49 opponents are muddying the water on this issue, fearing that Measure 37 claimants will see through the untruths on the OIA web site. Strangely, transferability isn't even mentioned as one of the "drastic changes to current law" even though this is indeed a big change to Measure 37.
One which benefits Measure 37 claimants. So if you're one of them, head on over to the Yes on 49 web site, which does speak the truth about Measure 49.
Get the facts. Claimants who follow the "express lane" (1-3 homes) or "conditional path" (4-10 homes) options will be able to transfer their development rights to new owners.
Don't believe the ill-informed Measure 49 opponents who are spewing the lie that Measure 37 waivers won't be transferable. Do believe the real estate and land use lawyers at Davis Wright Tremaine LLP who have put up an informative "Potential Impact of Ballot Measure 49 on Existing Measure 37 Claimants."
They say that under Measure 49 the waivers will run with the land and be transferable. This will be good news to buyers who either want to build their own home on Measure 37 property, or want to be assured that they can add on to a home built by a Measure 37 claimant.
Measure 37 claimants also should read a brief, clearly stated discussion of vesting in relation to HB 3540 (which became Measure 49) and the upcoming November vote on this Measure 37 fix. This is a memo written by Ralph Bloemers of the Crag Law Center. Download memorandum_on_vesting_for_the_public_7_24_2007.pdf
"Vesting" occurs when development has reached a certain stage and the owner has the right to continue development and put the property to use as intended. (Read Bloemers' memo for a more complete legal definition).
It's almost certain that some Measure 37 claimants who want to put more than ten houses on their property, or pursue commercial/industrial development (which would be prohibited by Measure 49) are hoping to get vested before December 6 – when Measure 49 will go into effect if approved by voters.
Bloemers suggests caution. There's a "good faith" requirement for vesting. If you know that a change to a land use law is around the corner, you can't plow ahead with your development, pretending that you aren't aware of what's coming.
In sum, under the common law, property owners with unvested Measure 37 claims may not circumvent the impending legislative fix to ORS 197.352 by moving to establish a use that will be impermissible under the proposed new law.
Even if a use meets all of the common law “vesting” requirements and becomes a fully established “non-conforming use,” that use may be subject to a number of limitations as described above. The potential for future litigation makes ownership of a fully vested nonconforming use a burdensome and perhaps risky proposition.
The Davis, Wright, Tremaine lawyers offer similar advice:
If a claimant has valid waivers but has not begun construction, at this point it would be risky to move forward. Because the "vested rights" doctrine is a form of estoppel under the equitable powers of the courts, the good faith of the landowner will be in question.
After the passage of HB 3540 and the press coverage associated with it, one can imagine a court concluding that any landowner would be on notice of potentially significant changes to the relief available under the waiver system.
Plus, it's a cool housing market at the moment. Measure 37 went into effect during a time when "get rich quick" was a real estate mantra. Things have changed. Waiting a few months before beginning development generally would make good financial sense.
So far from Measure 49 being the end of the world for Measure 37 claimants, as OIA would have them believe, in truth it's the beginning of a sunnier day. There are quite a few pluses for claimants in Measure 49.
Again, get the facts. Make up your own mind. Once you do, I'm confident you'll vote YES this November.