By Oregonian In Action Education Center
Many thanks to the 523 OIA supporters who participated in the OIA Education Center’s Land Use Forum this year. It was a great event. Attendees had the opportunity to hear first-hand from Richard Whitman, the new DLCD Director who administers Measure 49 claims, and from David Bragdon, a key member of the Big Look Land Use Task Force and President of Metro. Also, it was important for these important officials to confront such a large turnout of property rights supporters, and get their questions and comments.
I am sorry I was unable to be there, but I have seen and heard a video of the entire Forum. The video is available for $30 from OIA Education Center (P.O. Box 230637, Tigard, OR 97281).
Dave Hunnicutt (OIA President) and Richard Whitman (DLCD Director) addressed Measure 37 and 49 issues in depth, and answered many questions
During the morning session, Hunnicutt and Whitman each presented opening comments and then spent over an hour on Q and A.
Highlights of Hunnicutt’s comments:
The Measure 37 claimants who are eligible for relief under Measure 49 will be able to transfer their rights under 49 after the state approves their 49 claim; the transferee will have 10 years to exercise rights secured under 49. Also, if a Measure 37 claimant dies after December 6, 2007, his or her estate will stilll have the right to make a claim under Measure 49.
Unfortunately, itt will be very difficult or impossible for Measure 37 claimants to get more parcels or dwellings out of Measure 49 than allowed under the “express lane” (generally up to three). There are huge barriers, especially for claimants with land in so-called “high value” land areas. Those who were in Rural Residential zones when they acquired their property may have some chance to get something.
The “vested rights” alternative is available, but difficult to pursue in most cases. This issue was discussed during Q and A, and during Ross Day’s afternoon OIA Legal Center presentation.
Highlights of Whitman’s comments:
It was encouraging to hear Richard Whitman say that his state agency (the Department of Land Conservation and Development) “is committed to making [Measure 49] work” and that they are not “playing gotcha” as many feared might happen during the battle over Measure 49. He said they are sincerely trying to do what they can to enable Measure 37 claimants to get what they are entitled to, and appreciate the efforts of Oregonians In Action in those efforts.
Claimants with questions on Measures 37 and 49 can contact DLCD on the web (www.lcd.state. or.us) or call 503-373-0050 (leave a message, and a staff person will call back in 24 hours).
April 4th is the deadline for DLCD to notify Measure 37 claimants of their rights under Measure 49. If claimants have not heard from the state, they should call DLCD. He reminded everyone that claimants have 90 days after notification to respond to DLCD by certified or registered mail.
DLCD expects to start getting back to claimants (who did respond) by mid-summer. Even though the legislature provided only half of the funding DLCD requested to process claims, DLCD will try to act as quickly as possible. [There is no deadline for DLCD to act.] DLCD already has 600 claims, mostly express lane.
Highlights of Q and A:
Generally it is advisable to get a determination of “vesting” from the county or the courts. Many counties do have a process to secure a determination. Whitman said claimants can try to secure a determination of vesting by the county or the courts, and at the same time ask for relief under the express or conditional options. However, he said such claimants should not check the vesting option on the form. Claimants need to be aware that DLCD positions are not binding on the courts, who have the final say on vesting.
When considering whether a 37 claimant has incurred enough development expenses to establish vesting, Whitman believes such expenses are to be weighed against the entire cost of the development asked for, include the cost of the dwellings. He said DLCD will likely get involved in vesting issues only where there are large developments.
Whitman stated DLCD believes that if claimant are able to establish vesting, such vesting will also provide transferability. But again, this is not binding on the courts.
Failure to file 37 claim with state
Measure 49 requires claimants under Measure 49 to have filed claims under Measure 37 with both the county and the state. Many claimants did not file claims with the state until well after the June 28, 2007 deadline in Measure 49, in many cases because counties indicated they did not have to do so.
Originally, the DLCD believed the June 28, 2007 was a hard and fast requirement of Measure 49. After receiving comments from OIA, the DLCD changed its interpretation. As a result, Whitman said DLCD is accepting Measure 37 claims that were filed with the state up to December 6, 2007 (OIA intends to push hard for legislation in 2009 to provide relief to those who filed only with the county – this was not revealed in the campaign, and Measure 49 is somewhat misleading).
Effect of sale of part of Measure 37 property after 37 claim filed
Neither Whitman nor Hunnicutt know what the effect of the sale would have on Measure 49 claims. They advised not to transfer such property before DLCD actually authorizes relief under Measure 49.
Questions relating to parcels and dwellings allowable under the Measure 49 “express lane”
Hunnicutt believes that each dwelling allowed under Measure 49 should each be on the separate two or five acre parcel specified, so that any remaining acreage would be a separate legal lot. Whitman did not agree.
They also did not agree on whether Section 6 (3) allows “one additional lot, parcel or dwelling, regardless of the number of dwellings or parcels the claimant is to get under the express lane.
Questions not answered
Dave Hunnicutt, Ross Day, and Bill Moshofsky at Oregonians In Action will do everything they can to respond to questions of all kinds.
Recipient of the Aaron Jones Defender of Property Rights Award
This year the Award was presented to Lars Larson, the well known and highly respected radio talk show host. Lars strongly and effectively opposed Measure 49 throughout the initiative and had many interviews with Dave Hunnicutt, Ross Day, Bill Moshofsky, and Measure 37 claimants. He has been an articulate and forthright proponent of property rights for many years. In his acceptance comments, Lars enthusiastically stressed the importance of property rights.
Big Look Land Use Task Force
The Forum was fortunate in securing David Bragdon to present his view on the Big Look Task Force, answer questions, and get input from participants at the Forum. He is President of Metro, the Portland area regional government, and on the 10 member Big Look Task Force appointed by the Governor, President of the Senate, and Speaker of the House.
He said the major issues the Task Force is working on are (1) whether the land use system is meeting current and future needs, urban and rural, (2) what roles the state government should play and what roles local government should play and (3) how to best apply Urban Growth Boundary controls.
The Task Force has found that there is extensive frustration with the existing system, not only among property owners, but on the part of government officials involved in the system.
They also found that LCDC’s 19 Goals do not include protection for private property rights, and that the Goals are not prioritized (economic, environmental, etc.) – all Goals are equal. The also seem to be “frozen in time,” and need to be updated.
Bragdon said the Task Force produced a report with some preliminary findings and recommendation last July (It is available on the web [oregonbiglook.org] or OIA can provide a copy)
The report includes a simpler set of Goals:
* Providing a healthy environment.
* Sustaining a prosperous economy.
* Ensuring a desirable quallity of life.
* Maintaining a system that is fair and equitable.
The report also includes 11 preliminary conclusions, which Bragdon disussed briefly.
Conclusions of special interest to OIA supporters:
* While Oregonians generally support land use planning to accomodate future growth, they also believe strongly in property rights.
* The land use system is too inflexible and “one size fits all.”
* The system should recognize distinct differences between “high growth” and “low growth” regions.
* Resource land (EFU) zoning doesn’t allow flexibility. Bragdon noted that while rural areas are rigidly controlled, urban area controls are not.
Bragdon said that, now that the Legislature has re-funded the Task force, it will be going around the state to get input on the report, and that it will welcome comments from Forum attendees [635 Capital St. NE, Salem,OR 97301; email ___________].
There was a lively question, answer and comment session following his opening comments. Here are some highlights:
* Rural zoning is over-restrictive – the Task Force should address that.
* Comment complaining about city folks dominating rural land use issues.
* Comment that the Oregon Farm Bureau does not speak for most rural land owners.
* Comment that the “compensation” element in SB 100 (1973) was never implemented, and
* “Fairness” is totally missing in the 19 Goals LCDC adopted.
Bragdon reacted positively to all the questions and comments, and expressed appreciation for Oregonians In Action’s continuing participation in the work of the Big Look Task Force.
Ross Day’s report on Oregonians In Action Legal Center litigation
Ross explained that the OIA Legal Center is a non-profit IRS 501(c)(3) charitable organization and does not charge for legal services. It takes cases that are precedent setting or involve significant public interest. He pointed out that the Center relies solely on voluntary private contributions and that its litigation efforts are limited to the funds available.
The Legal Center now has 20 active cases. They involve cases related to Measures 37 and 49, other land use cases, First Amendment/initiative issues important to property rights, and water rights litigation that is growing in importance.
Understandable, the Center has a number of cases aimed at determining “vesting” under Measure 49, which has to be done on a case by case basis. Ross provided an 11 page memo on vesting in the packets of all attendees. (It is available on OIA’s website [oia.org] or can be mailed.)
He discussed the two ways Measure 37 claimants can determine whether they are vested. The can ask the county for a determination, or file a declaratory judgment action in Circuit Court. Also, it appears that such claimants may also be able to go for the “express lane” under Measure 49, but they should not indicate on the form that they are pursuing vesting. He stressed the fact that there are no simple answers. Claimants should have legal advice before proceeding. OIA will help as much as it can, and can refer people to lawyers.
For more detailed information on the cases the Legal Center is litigating, see the separate article by Ross Day on page ___ of this issue of Looking Forward.
Again, videos of the entire Forum are available. See information at the beginning of this article.
For your land-use property rights news go to Oregonians In Action Education Center.
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