Measure 37

Last month federal judge Owen Panner ruled that some property owners in southern Oregon had a binding contract with Jackson County over their county waivers of land use regulations under Measure 37. That was an early Christmas present for Oregonians in Action and other opponents of Measure 49, which rolled back Measure 37 in order to protect irreplaceable farm, forest, and groundwater limited land. They hoped this would open the door again for subdivisions to sprout where crops and trees grow now. Pave it over could replace Keep Oregon green as a state motto. Well, not so fast. A few…

Just when it seemed that with the passage of Measure 49 last year, some clarity had emerged about Oregon land use policies, now a federal district judge has ruled that Measure 37 waivers are still alive in Jackson County. Measure 49 markedly rolled back the excesses of Measure 37. In November 2007 sixty-two percent of Oregonians voted to preserve irreplaceable farm, forest, and groundwater limited land from excessive development. Measure 37, passed in 2004, allowed property owners to get waivers from land use regulations passed after they acquired their property. This created a privileged class based on when someone came…

Many of the right-wing land use zealots who brought Oregon the mess that was Measure 37 have some very strange fantasies. One is that the United Nations somehow is behind land use planning in the United States – fitting in with the notion that the Secretary General of the U.N. is the antichrist and black helicopters are positioned to take over this country once the liberals have succeeded in handing over the keys to the Constitution. Gee. Who knew? Guess I was crazy to think that zoning was a good idea. Apparently it's all-American to have gravel pits in residential…

Yesterday Marion County held a public hearing on the Ridge View Estates (a.k.a. Laack subdivision) application for a vested rights determination. Meaning, LeRoy Laack hopes to show that he's done enough work on the 43-home, 217 acre project to be able to continue on with it, even though Measure 49, which was voted in last November, prohibits more than three homes on high value farmland or groundwater limited land – which this property is. The Salem Statesman Journal had a front page story on the hearing today, "Arguments churn at vested rights land-use hearing." Well, not just arguments. My stomach…

Eight pounds, to be exact. That's what I had to carry out of the Marion County Planning Division last Wednesday, after staff had made a copy of Leroy Laack's Measure 49 vested rights application. Yesterday the Salem Statesman Journal ran a front page story about it: Measure 49 is put to the test: property owners hope vested rights allow work to proceed on stalled development. Those who haven't followed the saga of our neighborhood's fight to protect our groundwater from a proposed 42 lot subdivision on high value farmland in a groundwater limited area can peruse the many posts in…

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…

Everyone in Oregon who voted for Measure 49, give yourself a pat on the back. (Or wherever else you choose.) Without you a judge wouldn't have ruled Thursday that a planned 41-home subdivision in Clackamas County can't proceed – being subject to the three home limit Measure 49 places on development in a groundwater limited area. Which Pete's Mountain is. In an Oregonian story, "Measure 49 stops Clackamas County subdivision," a neighbor expressed his concern. "I can live without electricity, but I can't live without water," said Dave Krevanko, who lives across the street from the development. Putting in a…

Measures 37 and 49, which modified Oregon's land use laws, mostly are out of the state's consciousness after the hotly contested successful campaign to pass Measure 49 last November. But not out of mind for those concerned about large Measure 37 claims which hope to be deemed vested ("grandfathered in," basically) because they were far enough along with development before Measure 49 came along. A court case on the Tumwater at Pete's Mountain project just concluded two days of hearings. Read all about it in the West Linn Tidings: "Tumwater is in the judge's hands." Ralph Bloemers, a Crag Law…

Good legal news for those who love the naturalness of Oregon, rather than unneeded subdivisions on prime farm and forest land. Last Thursday the state Supreme Court ruled on the Corey case. The decision affirmed that Measure 49, voted in last November by a wide margin, trumps Measure 37 – which Measure 49 fixed. Oregonians in Action, plus others who favor the rights of a few Measure 37 claimants over the property rights of the many, had been hoping that Corey v. DLCD would overturn Measure 49 in some fashion. But the position of the Department of Land Conservation and…

I can't remember when I've looked at a front page headline in our local newspaper and seen better news. I was ecstatic, overjoyed, uplifted when I pulled the paper out of our box this morning. Whew! We looked fine in the picture a Salem Statesman Journal photographer had taken of us yesterday, standing in front of the proposed Measure 37 subdivision adjacent to our neighborhood. Mostly because the photo that made it into the paper was taken a fair distance from us, unlike the many close-ups that, thankfully, earned a "delete" button press. The "Land case may test 'vested rights'"…

Our neighborhood got some good news today from the Oregon Land Use Board of Appeals. A ruling was issued on the Keep Our Water Safe Committee appeal of Marion County's decision to approve a 43-lot Measure 37 subdivision on groundwater limited, high-value farmland. LUBA remanded the case back to the county. Meaning, the Board of Commissioners has to deal with an error they made in granting a Measure 37 waiver of land use regulations to the four owners of the property. Land use law junkies can pour over the first ten pages of LUBA's Final Opinion and Order to learn…

It’d be amusing, if the issues weren’t so serious, how Measure 37 supporters are acting so offended because
Oregonians approved Measure 49 last November.

Oh my god! It’s unfair! The voters changed Oregon’s land use laws!

Cry me a river. But don’t expect me to feel sorry for you. Don’t you see how hypocritical all this bemoaning is?

Many thousands of Oregonians, including neighbors of ours, figured that when they bought land to build a house the zoning of surrounding acreages wouldn’t be changed willy-nilly.

For example, if a large tract of farm land was next door, they expected that it would stay as EFU (exclusive farm use) unless an open and fair rezoning process was followed.

But along came Measure 37 in 2004. Now there was a special privileged class of landowners: people who could ignore land use laws because they owned property before the laws went into effect.

This was like allowing those who owned a car before a lower speed limit went into effect to drive as fast as before, while everybody else had to obey the new law.

When the speeders started to have lots of crashes, you’d expect there would be a push to have all drivers follow the same rules, by and large.

And that’s what happened with Measure 49.

It went a long way toward restoring fairness to Oregon’s land use system. Now only three home sites can be on a Measure 37 claim that consists of farm, forest, or groundwater limited land.

Neighbors of the claim have had their property rights restored, because now there’s a balanced process to guide development instead of giving free rein to large subdivisions to pave over irreplaceable resource land.

Change happens. Democracy happens. The same people complaining about the changes Measure 49 has brought about were happy when Measure 37’s changes were approved.

Come on, guys. You can’t say “we don’t want to be bound by Measure 49” when you were pleased to follow Measure 37. A law is a law. Deal with it.

An Albany Democrat Herald
editorial reflects this ridiculous illogic.

During its February session, the legislature should make an effort to repair the injustice created by the passage of Measure 49, at least where it affects private individuals.

These are the people who assumed that Measure 37 on land-use claims, passed in 2004, was the law, especially since the Supreme Court upheld it in 2006, and who therefore filed applications and went through a lengthy process to claim the waivers the measure allowed.

Earth to Democrat Herald: After 1973 people assumed that SB 100, which established Oregon’s pioneering land use system, was the law. There were several attempts to change it. They failed. It was still the law.

Then Measure 37 came along and the law changed. Now, Measure 49 has changed the law again. In a democracy you shouldn’t expect that a law will stay the same forever.

Here’s some testimony along this line that I presented to the legislature’s Land Use Fairness Committee last year. I make wonderful sense.

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…

You know you're a land use junkie if…you spend a Saturday night pouring over forms being mailed to Measure 37 claimants, so they can choose what to do under Measure 49. Yes, that describes me. I had to see whether Willamette Week spoke truly when reporter Nigel Jaquiss said the form is "29 pages long, and not what most claimants are likely to regard as simple." I found that Willamette Week is way off base. The packet being sent to Measure 37 claimants apparently is indeed 29 pages long (can't be sure, since "draft" is stamped on the copy WW…

It's fun to play make-believe, even (or especially) when you're 59 years old. Yesterday I tried to make a Marion County hearings officer believe that I knew as much about Measure 37 vesting as a real attorney. And I did a pretty darn good job. My wife, Laurel said so, which proves it. "You sounded like a lawyer," she told me after I testified. Ordinarily I wouldn't take that as a compliment. But since I was arguing that a Measure 37 claim wasn't far enough along to be exempted from Measure 49, which fixed many of the flaws in Measure…

There's some wishful thinking going on in the little minds over at Oregonians in Action, who hope that Santa will bring them a Measure 49 demolishing (or at least, limiting) court case. Corey v. Department of Land Conservation and Development is a current favorite, grandiosely (and inaccurately) described in the most recent OIA newsletter under "Is There Hope on the Horizon for Measure 37 Claimants?" Short answer: almost certainly not. I say this not as an attorney, but as someone who knows how competent attorneys view the Corey case. Which is a long way from how OIA sees a ruling…

A few nights ago my wife and I went to a standing room only talk by Ralph Bloemers of the Crag Law Center, one of Oregon's premiere public interest attorneys. Now, it was a small room at the West Salem Public Library. But still, I was impressed by how many people turned out for this Friends of Marion County meeting about vesting and land use issues under Measures 37 and 49. Some Measure 37 claimants even came, wanting to learn how their development efforts are likely to fare under the new property rights climate ushered in by the passage of…

This is the sort of blog post that's absolutely fascinating to a few, and absolutely boring to the many. So if you're into the nitty-gritty of Oregon's Measure 49, which went a long way toward fixing the land use disaster of Measure 37, you'll love this compendium of vesting-related information. If you're not, all I can say is that what follows will be great reading for those agitated sleepless nights when you need something boring to shut your mind down. Because this is a compendium of legal writings surrounding the question of when a Measure 37 claimant has a vested…

It's been frustrating for us and our neighbors to see bulldozers rolling on subdivision road construction just a few days before Measure 49 goes into effect on December 6. Measure 49 limits development on this property to three home sites on six acres of the least valuable farmland. The Measure 37 claimant plans 43 homes, each with a well, on this groundwater limited land. Leroy Laack, the developer, is quoted in a front page Salem Statesman Journal story: "Our intentions are to push ahead just as fast as we can within the context of the current law," Laack said. "So…

Today KATU's Salem bureau filmed an excellent story about Marion County's outrageous decision to approve a construction permit for a Measure 37 subdivision just nine days before Measure 49 will make it illegal. Laurel and I were interviewed for the story. Melica Johnson and Dino, her cameraman, had us stand outside on our deck – where we were pleased to talk about how crazy it is to let bulldozers tear up Oregon farmland for a large subdivision when 62% of Oregon voters said "No!" to this on November 6. Here's my YouTube video of the two and a half minute…