Review of the Special Session

From Oregonians In Action Education Center,
Looking Forward Magazine May 2008,

Despite the questionable legality of the 2008 emergency special session of the Oregon legislature, Oregonians In Action successfully lobbied the legislature to pass three important land use bills. After the way the legislature handled the Measure 49 and gerrymandered the ballot title, we were pretty nervous that we’d have another fight to protect property owners in the special session.  Fortunately, we were pleasantly surprised.

House Bill 3629 restores the right of property owners to adjust the lot lines between adjacent lots or parcels, even if the adjusted boundaries resulted in a lot or parcel that was smaller than the minimum parcel size.

It’s a hard bill to explain in words, but the concept is simple.  Prior to 2006, if two neighbors wanted to adjust the boundaries of their property, they could do so, even if one or both of the properties would be smaller than the minimum lot or parcel size in the zone.  In fact, counties allowed lot line adjustments of this type for decades.

But in 2006, the Oregon Court of Appeals issued a decision that said that counties could no longer approve lot line adjustments if either parcel would be less than the minimum lot or parcel size in the zone, even if one or both parcels were already smaller than the minimum size to begin with.  This decision created a huge mess for property owners and counties.

House Bill 3629 reverses the Court of Appeals decision, and allows property owners to use lot line adjustments to change the size of lots or parcels, even if the change results in a lot or parcel smaller than the minimum lot or parcel size.  This is especially important in rural areas, where the minimum lot or parcel size is 80 acres.  The bill contained an emergency clause, meaning it became the law immediately when signed by Governor Kulongoski.

Another important bill is Senate Bill 1086, the only “Measure 49” bill that was adopted during the special session.

Senate Bill 1086 is the result of a question I received from a title officer in Klamath Falls.  The title officer wanted to know what a property owner should do if they received a letter of approval from the state.  Since Measure 49 allows a property owner to divide their property at any time after they receive their approval, even if the property owner waits many years before dividing the property, it is likely that some property owners will lose or misplace their letter of approval before they decide to divide their property.

So what should a property owner with a Measure 49 letter of approval do?  Should they record the letter with the county clerk?  Should they put it in their safety deposit box?  Should they hide it under the mattress?  And how could a property owner with an approved Measure 49 claim convince a new buyer that they really had an approval?

The obvious choice was to record the approval letter in the county land records kept by the county clerk.  Unfortunately, Oregon law did not allow a county clerk to accept and record the approval letter.

Senate Bill 1086 changed the recording statute to allow the county clerk to accept and record a final letter of approval issued by the state.  By recording the approval letter, property owners who receive a Measure 49 approval can be assured that there will be a public record of the approval, so that subsequent purchasers of the property can build the homes and create the lots or parcels granted by the Measure 49 approval, and lenders can be assured that the approval is legitimate.

Finally, Senate Bill 5556 restored approximately $450,000 of funding to the “Big Look” Land Use Task Force created by Senate Bill 82 (2005).  As most of you know, the Big Look Task Force has been charged with conducting a thorough review of the state’s land use laws.

When the 2007 legislature realized the Task Force was taking their job seriously and actually reviewing our worn out and outdated laws, legislative leaders cut their funding to nearly zero in order to prevent the Task Force from issuing a report calling for change to the system.

The cut in funding turned into a public relations disaster for legislative leaders, as newspapers across the state wrote editorials blasting the legislature for cutting funding for a group that was actually accomplishing something important.

And since the legislature believes that voters actually care what the newspaper editorial writers say, they panicked, and gave the Task Force most of the money they had just taken away from them six months earlier.   The Task Force can now go back to its job of determining what changes need to be made to the land use system.

Coupled with the fact that the legislature did not do anything to make things worse for property owners, the 2008 special session should be considered a success for OIA and property owners.

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