Measure 49 – Landowner Compensation Update

Miller Nash LLP
Oregon and Washington Law Firm

Measure 49 was passed into law almost two years ago. The litigation resulting from Measure 49 has been minor compared to that which resulted from Measure 37, although several potentially significant cases are still pending. The Department of Land Conservation and Development (“DLCD”) has established its process for issuing final decisions on Measure 49 claims, albeit at a slower pace than was originally anticipated. As of this article’s date, only about 1,000 decisions have been issued on the 4,464 total Measure 49 claims. The 2009 Oregon Legislature instructed DLCD to process claims faster and slightly expand the range of persons who qualify for relief under the measure.

House Bill 3225 made two primary changes to Measure 49. First, it created a June 30, 2010, deadline for DLCD to reach final resolution on the original 4,464 Measure 49 claims. Second, it created six new categories of claimants who are eligible for Measure 49 relief. The new claimant provisions are narrowly drawn, and may create an opportunity for claimants who:

• Elected “vested” on their Measure 49 election form and have not been found to be vested;

• Filed a Measure 37 claim with the county before December 4, 2006, and with the state after December 4, 2006, but before December 6, 2007, and who failed to submit the required denial of a local land use application;

• Submitted a local land use application before June 28, 2007, that was a prerequisite to a state claim filed after December 4, 2006, and filed a state claim between June 28, 2007, and December 6, 2007;

• Filed a state claim on a property bisected by an urban growth boundary (“UGB”) with the majority of the property outside of the UGB;

• Filed a state claim and made a timely Measure 49 election, but never filed a county claim; and

• Filed a claim on property inside a city, but entirely outside a UGB.

Some Measure 37 claimants have challenged the validity of Measure 49 in the courts on constitutional and statutory construction grounds. Claimants have asserted retroactivity, takings, equal protection, and contract clause arguments against Measure 49. State circuit court judges hearing these claims have thus far ruled against the claimants and upheld Measure 49. Several of these cases are now reaching the appellate stage. One federal case has found in a claimant’s favor.

Judge Panner, in Citizens for Constitutional Fairness v. Jackson County, held that Measure 37 waivers are contracts and that under the United States Constitution’s Contract Clause, a county may not rely on Measure 49 as a basis to not honor the waiver. Judge Panner further held that under the separation-of-powers doctrine, Measure 37 waivers are quasi-judicial decisions that Measure 49 cannot negate. Judge Panner’s decision is now on appeal to the Ninth Circuit Court of Appeals. The typical claimant is left to wait and see while these cases continue on appeal.

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