Hardly any Measure 37 claimants will have vested rights

The battle to pass Oregon's Measure 49 has been won (62% of voters said "yes" to fixing Measure 37). Now the fight has shifted to determining which, if any, of the 7,500 Measure 37 claims around the state are vested under common law.

Vesting means that enough work has been done on a claim to allow it to continue under Measure 37, rather than Measure 49.

Yesterday Ralph Bloemers of the Crag Law Center released an excellent memorandum, "Transition to Measure 49 & Vested Rights." It's must-reading for interested citizens, state agencies, and local governments, along with a companion memo about the issuance of permits for Measure 37 development. Download crag_law_center_memorandum_on_vesting_11_9_2007.pdf Download crag_law_center_measure_37_memo_re_applicable_law_11_9_2007.pdf

Bloemers says:

The concept of "vested rights" is linked to the idea of "nonconforming uses." Laws passed by the Oregon Legislature allow existing uses and buildings that do not conform to new land use regulations to be continued as "nonconforming uses."

…The concept of "vested rights" has been defined by Oregon courts to address the situation in which a landowner or developer had begun construction of a particular land use, for example a residential subdivision, but before the project was completed a change in land use regulations prohibited that proposed use.

The basic idea is that at some point in the course of development, the nonconforming use has come into existence, even if it is not finished, and the use ought to be protected by the laws allowing, but limiting, the continuation of nonconforming uses.

This is a hot issue right now.

Friday a story in the Oregonian, "Claims stall until Measure 49 sorted out," talked about how officials, Measure 37 claimants, and concerned neighbors of claims are struggling to figure out what "vesting" means under Measure 49.

A uninformed Douglas County commissioner, Doug Robertson, wrongly believes that he's got it all figured out and can ignore Measure 49. Vesting is central to a dispute in Jackson County about a proposed Measure 37 rock quarry along the Applegate river.

And tomorrow's Salem Statesman Journal will run a story that, according to a front page teaser today, is about Measure 49 aftermath: "The voters have spoken on Measure 49, but it's still trench warfare over some claims that may or may not have the right to move forward."

[Update: the Sunday Statesman Journal story is "Some land-use claims remain in limbo." I'm quoted!]

So Ralph Bloemers' carefully researched legal memorandum comes at a perfect time to shed light on what vesting means under Measure 49.

Next week county officials will try to come to grips with this issue at an Association of Oregon Counties conference. The Crag Law Center memo should be front and center at their discussions.

I urge you to read the document yourself, via the PDF file link above. It doesn't answer every question about vesting (for example, whether this is a land use decision or a court decision seems to be up in the air).

But it comes close. The bottom line is that very few, if any, Measure 37 claims are going to turn out to be vested. Bloemers' final paragraph says:

The common law highly disfavors the establishment of nonconforming uses, particularly while a change in the law is pending. Regardless, the vesting, if any, is limited by the extent of the adaptability of the use for currently allowed uses. The expenditure test and other tests are also applicable to determining vested rights in this context.

The Oregon Supreme Court has ruled that "bad faith" is a no-no for a landowner trying to establish a vested right. On page 9 Bloemers has a section called "Racing to develop the property in order to beat the provisions of Measure 49 is bad faith."

Claimants considering whether to proceed under Measure 37 will need to satisfy the common law, in other words that they did not know or should not have known about the possibility Measure 37 would be modified by Measure 49.

The likely latest candidate date, given both the prior publicity and precedents elsewhere would be June 15, 2007 [when Measure 49 was referred to the voters]. Investments after that date may be considered investments intended to beat the clock and therefore not investments made in good faith.

But even if a Measure 37 claimant somehow wasn't aware of Measure 49 (in a previous post about vesting, I said they'd have to be in a coma or hermetically sealed in a cave for this to be believable), Bloemers argues that development investments supporting a conforming use cannot be counted toward vested rights.

What this gets at, in part, is that large subdivisions allowed under Measure 37 now are limited by Measure 49 to three home sites if they're on farm, forest, or groundwater limited land (4-10 home sites otherwise).

So drilling of wells, digging septic holes, road grading, surveying, and similar work generally would support the uses allowed under Measure 49 and wouldn't be considered vesting expenditures.

The memo has another section called "There can be no vested right to develop without development permits." This obvious requirement is going to come back and bite those Measure 37 claimants who rushed ahead with construction without getting required county building or state erosion control permits.

I've been talking with neighbors of a Measure 37 claim out on Sunnyview Road in east Marion County. Construction there didn't start until election day, November 6.

Now, I've heard, there's been five wells sunk, septic tank holes dug, a road roughed in, and erosion controls have been minimal. The neighbors are aghast that county officials have been allowing this to go on.

I was pleased to read in Bloemers' memo:

For projects where development is underway, the government agencies and local jurisdictions are well-advised to preserve the status quo and limit their liability by issuing stop work orders until a definitive and prompt resolution of these issues takes place.

County agencies should order the cessation of activities to determine vested rights or they will risk being in violation of law.

My sentiments exactly.

Hopefully Bloemers' excellent legal advice, tomorrow's Statesman Journal story, and next week's Association of Oregon Counties conference will combine to lead Marion County to do what should have been done the day after Measure 49 passed:

Stop all work on Measure 37 claims until vesting questions are resolved. Because it's clear that very few, if any, of the 7,500 claims will turn out to be vested.

So like I said before, stopping work on all claims will benefit both neighbors and claimants.

Neighbors don't want construction to continue beyond what Measure 49 allows. And Measure 37 claimants shouldn't want this either – unless their goal is to waste money on fruitless construction activities.

Comments

[Richard]

You will know them by their deeds (there may be a pun there).

We knew that the real face of 37 was one of greed, using the good will Oregonians felt toward property owners who wanted to build just one home on their property.

So even now, the likes of the Laacks seek to cock a snoot and grab what they can. But then, are we not the state of Georgia-Pacific, known to us as "cut and run"?

[Debbie]

Stall, delay and lie. The mantra of the dirt grabbers.

I believe measure 49 is filled with the above mantra. The people of Oregon know what they wanted and the first little guy/gal that doesn't get their one little house up because of the lies is going to create a huge stink here.

I think that those who favored 37, voted for 49. (Brian, stop patting yourself on the back...it really was a no brainer.) They just are mostly urban people and don't understand the tangled web of our land use rules. They do however, understand that people like myself got the shaft. My hubby wants to believe that the building permit I have sitting at the county will be able to be picked up once 49 goes into effect.

I don't. I'd love to be wrong but I know how the dirt grabbers think, there's lies in 49. You currently are looking to Bloemer for a way to begin twisting those lies to your benefit.

Bloemers' memo is just a memo.

The 'real face' of 37 was never greed. Only a fool would have thought there would be no one who would try to gain by developing a large division. We do have farmers out there with land they can't farm productivly and God forbid they should be able to do something else with that land. I find it interesting how those noble farmers turn into greedy developers at the twist of your keyboard.

37 was always about the little person who got beat to death in Oregon's land use. People here DON'T like the land use policy, that's why the ballot title was manipulated and that's why 49 passed.

Brian, you continue to be all about "I got mine, you can't have yours." You just are fooling yourself that you're concern is about the 'community'. Which is typical of the elitist, it's probably the only way you can look in the mirror.

[Rain]

Debbie, I also live in the country, raise cattle and sheep. You are not correct that every country living person was against 49. I also talked to some Eastern Oregon big ranchers, before 49 was put into place, about what they saw 37 doing and they wanted to keep ranching their land and weren't excited to have homes or worse ritzy resorts next door to their operations. City people move into those subdivisions and immediately start complaining about farming/ranching practices.

If 49 operates as it should, putting on one home or three for those of you who bought your land before uniform zoning went into Oregon to protect agricultural land, will be no problem. If you want a lot of houses, then what makes you able to do it when someone who moved on their land in 1980 cannot? Or do you want zero land use planning. Check out California for how well that works. Even Montana has had to slow down some development realizing it will ruin agricultural land as well as put uneven demands for services out there.

Land use planning can go too far but its purpose is for the benefit of the majority which is what all laws are about. It won't hurt anybody else for someone to drive 100 mph when nobody else is on the road. The more people on the road, the more we need rules.

What they should have done with 37 to start was only allow those development overrides on land that someone was trying to develop right before land use planning protected such land. Not that let them develop land that they bought thinking someday they might or maybe they wouldn't.

I still come back to all the dollars that rural agricultural land has benefited by tax reductions-- and still is. Did would-be developers demand they be back-taxed at fair market value when they take it out of production-- for those 30 some years?

Nobody is guaranteed a profit in life at any business and the unfairness of 37 in creating a special class of land owners exempt from any land use rules was never 'fair'... if fair is what someone cares about

[HarryVanderpool]

The measure 37 nightmare did leave Oregonians with one big plus.
Measure 37 awakened and educated tens of thousands of Oregonians on our wonderful land use planning.
Scores of voters that never heard of SB-100 or LCDC, now have earned their 3 credits and appreciate what we have here in Oregon.
Since 49, I have heard a couple of knuckleheads state that if this or that doesn;'t happen, we will likely have another measure 37.
WRONG!!!
2/3 of Oregon voters are all the wiser thanks to good 'ol M-37.
NEVER AGAIN!

[Elaine]

Do we know for sure if the Association of Oregon Counties conference will be discussing Ralph Bloemers of the Crag Law Center released memorandum?
BUT the AOC agenda item for Measure 49 states that "The law firm of Davis Wright Termaine LLP has studied the legal implications and published a white paper on the subject"
http://www.aocweb.org/aoc/default.aspx

[Brian]

Elaine, I just looked on the AOC website for the dates of next week's meeting (13th to 16th) and noted the DWT LLP paper, which I'd seen before on the DWT web site.

It was written several months ago and doesn't address vesting questions in the common law detail that Bloemers' memo does. I also sense that DWT is more pro-development that the Crag Law Center is, but I could be wrong.

Anyway, I don't know that Bloemers' memo will be discussed at the AOC conference. I just suspect that it will be, given that it went to every county so recently, and its subject is so timely.

[Richard]

There is a good discussion of who voted for Measure 37 to be found at BlueOregon:

http://www.blueoregon.com/2007/11/measure-49-the-.html

If you subtract the urban vote entirely, Measure 49 still passes.

But why it passed may be harder to determine. The Yes campaign very carefully targeted its resources. It did not target Jackson, Josephine, Klamath, Douglas counties, for example, reasoning that no amount of spending would alter the vote in those counties. What we do see, though, is that even without door-to-door work, house parties, or media coverage, the vote for 49 was greater than the vote for 37.

We cannot sit on our laurels. As much as partisanship is derided, the Legislature did craft a compromise, even though R's failed to participate. As a partisan issue, that is something R's will have to address next year.

We can and should be cognizant that we will never have perfect land use laws. We are stuck between farmers who claim they cannot farm while other farmers say they can; we are caught between non-farmers seeking simplistic solutions (e.g. using a soil "quality" test.

The fundamental principle of urban growth boundaries sticks in the craw of developers, real estate types, and property owners with land adjacent to UGBs. But, it works, and it has made Oregon better, and that message got through.

We also succeeded with the message that zoning is about use, not investment. We were not persuaded that buying land for its future value entitles one to compensation when landowner expectations with respect to speculation are not met.

49 gives landowners what they asked for with 37. If they want what they did not say they wanted during the 37 campaign, then they have to be suspect on the grounds of disingenuous advocacy. Their credibility is damaged by their campaign of telling voters that there were no hearings, that 49 allows taking of 95% of property without compensation, and on, and on, and on.

By their tactics, the property "rights" folk lost their credibility. We will no longer be confused by assertions that regulation equates to eminent domain - as different to the concept of property ownership as arteries are from veins.

[Elaine]

One of the Measure 37 claimants/owner (Bowerman), for the Tumwater Estates subdivision on Pete's Mountain is a part-time judge for Clackamas County. The developer is the front man and he takes all the heat from the neighbours and news. Their Final Plat Approval is the next step for them and as soon as possible I'm sure. There has been no direction from the county to stop the process.

[Brian]

Elaine, I'm curious about the term "developer" as applied to the Pete's Mountain development. In news stories, Gordon Root (correct?) is called the developer.

But legally, he can't be. The owners of the Measure 37 claim can't transfer the development rights to someone else. They have to be the developer. Root is just the contractor who's being paid to carry out the construction work.

In Bloemers' other memo on issuing permits (link is on this post), he speaks about this. I'd be interested to learn your take on the relationship between the "developer" and the "owners."

And regardless of who is the developer, under Measure 37 bare land lots can't be sold to someone who then would build a house on them. To build, you need a development right. Courts have ruled that this stays with the Measure 37 claimant and can't be transferred (under Measure 49, that right can be transferred).

To me, it sounds entirely possible that there's a relationship between the owners of the Measure 37 property and the so-called "developer" which isn't allowed under Measure 37. Hopefully someone is looking into this.

[Richard]

What happens if someone proceeds illegally; if they proceed in bad faith? Other than the damage to the land, who is liable? Is it a criminal act? Can the neighbors sue?