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Archived News ArticlesLegal tangles cloud land-use lawMeasure 49 - Courts are weighing in on cases involving those who have claims under Measure 37 Wednesday, February 06, 2008
As if voters had tossed a match into the fireworks box in passing Measure 49, land-use lawsuits, court decisions and county ordinances are popping all over. The state Land Use Board of Appeals in late January overturned Jefferson County's approval of a 60-lot subdivision, in part because the original property owner died, and the development right he won under Measure 37, the 2004 property rights initiative that Measure 49 amended, couldn't be transferred to his son. That followed a decision by a Multnomah County judge who reversed a $750,000 damage award he'd previously granted a Northwest Portland couple. The judge ruled that Measure 49, which rolled back the development rights allowed under the earlier Measure 37, could be applied retroactively and made the couple's case moot. Elsewhere, three property owners recently filed suit against Jackson County, alleging that the development waivers issued to them under Measure 37 amounted to contracts and that the county has breached the contracts by refusing to allow construction now that Measure 49 has taken effect. The property owners seek more than $21 million in damages, according to a published report. The legal mash wasn't unexpected -- one land-use lawyer predicted the election would be followed by 18 months of litigation -- but the mix of decisions and pileup of potential appeals have clouded an already contentious area of the law. "It's murky," said Ed Fitch, an attorney who represented the property owner in the recent Land Use Board of Appeals decision. "We're going to end up with hundreds of cases going up to the (Oregon) Court of Appeals." The Jefferson County case began in 2005 when William H. Burk filed a Measure 37 claim on land he'd owned since 1947. As in thousands of other filings, the county and state waived land-use restrictions imposed after Burk bought the property. After Burk died in July 2007, however, the county and state denied the development application because Measure 37 rights were not transferable to Burk's heirs. The Land Use Board of Appeals agreed. The decision is notable because it involves the issue of vested rights and the "goal post" argument raised by property rights advocates. Oregon statute holds that a person who has filed a property development application has a vested right to continue the project under the land-use rules in effect on the filing date. Property rights attorneys refer to it as the "goal post" principle, using a sports metaphor to say government can't move the goal post -- change the rules -- midway through the game. But Measure 49 specifically included a common law standard of vested rights, requiring far more work than simply filing a development application. The land-use appeals board said the two laws are in conflict, and the later, more specific standard of Measure 49 prevails. Ralph Bloemers, a staff attorney with Crag Law Center in Portland, said the Land Use Board of Appeals' decision and others are making it clear that the limited development rights available under Measure 49 are now the rule in Oregon. "All the big arguments that are being made to try and do an end-around on Measure 49 have been and are being rejected," Bloemers said. "The courts and LUBA are encouraging claimants to proceed under 49; they're saying that's where their rights are." Implicit in the land-use appeals board decision is that Measure 49 trumps the goal post rule of vested rights, Bloemers said. "If he would have been vested just by filing an application, then (Burk's) death wouldn't have affected it," he said. "So it's a rejection of the goal post law." Fitch and other attorneys sharply disagree. Fitch says the upcoming session of the Legislature ought to wipe the board clean, eliminate Measure 49's common law standard and declare that anyone who filed a development application before Dec. 6, when 49 took effect, is vested. "It's very unfair to pull the rug out from under people," Fitch said. Measure 37 gave property owners the right to develop their land in a manner that was allowed when they bought it. Measure 49 allows claimants to build one to three homes under an express route, or four to 10 homes if they can prove by appraisal that land-use laws sufficiently reduced the value of their property. A third route allows claimants to build beyond the scope of Measure 49 if they meet the common law standard of vested rights. They must show they invested a significant amount of money, have done sufficient work, proceeded in good faith and met other standards. Oregon's counties are taking divergent approaches on vested rights. Yamhill County established a two-page form and has close to 20 applicants seeking a county declaration that they are vested. Clackamas County, meanwhile, stated that any development work done after June 15, when the Legislature referred Measure 49 to voters, was done in bad faith because property owners knew the law might change. For environment news, go to http://blog.oregonlive.com/pdxgreen |
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