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BALLOT
MEASURE 37
FREQUENTLY ASKED QUESTIONS (Brought to you by Oregonians In Action)
RESTORING FAIRNESS AND BALANCE IN OREGON |
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1. When Does Ballot Measure 37 Go Into Effect? December 2nd, 2004. Article IV, Section 1(4)(d) of the Oregon Constitution states that an initiative or referendum petition becomes effective 30 days after the date on which the measure is enacted by voters. 2. Where do I make my Measure 37 Claim? It depends on what law you are challenging. If you are challenging a local ordinance, then you should file your claim with the local government responsible for enacting or enforcing the ordinance. We also believe that Measure 37 claimants who are challenging local ordinances should send a copy of their Measure 37 claim to the State of Oregon (see below). If you are challenging a state law or a state regulation, you should file your claim with the State of Oregon (see below). Because of Oregon’s unique and complex planning system, the only one of its kind (for good reason) in the United States, there will be many situations in which both state and local land use regulations will take away the rights you had to use your land when you purchased or inherited it. For example, most county land use regulations are the result of statutes and administrative rules passed by the state legislature and state agencies. Property owners are thus at the mercy of both state and local governments. To be safe, we recommend filing a claim with both the local government responsible for enacting or enforcing the land use regulation, and the State of Oregon. It may be that the land use regulation you are challenging is unique to your city or county, and is not a requirement of state law, or it may be that the land use regulation you are challenging is a matter of state law, and not part of your local regulations. But in many cases, property owners cannot be certain, and thus the state and local government will need to determine which of them is ultimately responsible for the challenged land use regulations, not you. 3. How long do I have to make my Measure 37 Claim? It depends on the nature of the regulation giving rise to the Measure 37 claim: If the Measure 37 Claim is based on a regulation enacted or enforced prior to the effective date of Measure 37: – You have until December 2nd, 2006, or – Two years after the date the government applies a land use regulation as an approval criteria to an application you submit, Whichever is later. If the Measure 37 Claim is based on a regulation enacted or enforced after to the effective date of Measure 37: - You two years after the regulation was enacted, or – Two years after the date the government applies a land use regulation as an approval criteria to an application you submit, Whichever is later. 4. Will Ballot Measure 37 be challenged in court prior to its effective date? In 2000, the opponents of Ballot Measure 7(2000) filed a challenge to Measure 7 before its effective date, asking the court to prevent the Secretary of State from certifying the vote on the measure. A Marion County Circuit Judge enjoined the Oregon Secretary of State from declaring that Measure 7 had passed, pending the outcome of the opponents’ lawsuit. In 2002, the Oregon Supreme Court invalidated Mesaure 7 (and the votes of hundreds of thousands of Oregonians), using the "Armatta" test, a legal theory that has been described as follows by one legal expert:
The Oregon Supreme Court’s ‘separate votes’ test makes it nearly impossible for the citizens of Oregon to amend their constitution. Ballot Measure 37 was drafted as a statutory amendment with this political reality in mind. Accordingly, there are no foreseeable procedural challenges – that is, challenges that would not be frivolous – that can be brought prior to certification of the over 1 million votes cast in favor of Ballot Measure 37. 5. What laws does Ballot Measure 37 apply to? Ballot Measure 37 applies to land use regulations. A land use regulation is any local government zoning ordinance, land division ordinance, or similar general ordinance establishing standards for implementing a comprehensive plan. ORS 197.015(11). Ballot Measure 37 also includes the following within the definition of "land use regulation":
Most state and local officials will work hard to carry out the will of the voters regarding Measure 37. But some state and local officials may attempt to avoid Measure 37's protections by re-classifying their land use regulations as, for instance, health and safety ordinances – rather than addressing the problems raised by Oregon’s statewide land use system. Nothing in the text or context of Measure 37 or its history allows that. If a court goes beyond Measure 37's text to examine its history, it will look to statements made by the chief petitioners of the measure as the most persuasive evidence of the intent of the measure. As to Ballot Measure 37 and the question of the definition of ‘land use regulation’, the chief petitioners wrote in the Voter’s Pamphlet:
6. What laws does Ballot Measure 37 not apply to? Ballot Measure 37 specifically excludes statutes, administrative rules and local regulations that are designed to protect the public’s health and safety, such as fire codes, building codes, health codes, sanitation codes, solid wastes or hazardous waste regulations and/or codes, pollution control regulations, and traffic safety regulations. Measure 37 does not apply to state or local land use regulations that restrict or prohibit activities that were commonly and historically recognized as public nuisances. Measure 37 does not apply to state and local land use regulations that are required to be adopted in order to comply with federal law. Some state and local government officials may try to extend the reach of this exemption by claiming that they are adopting land use regulations because "the feds made them do it." But in most instances, the federal government leaves land use planning and regulation to state and local governments, such that the times when federal law truly mandates the adoption of a state or local land use law are not common. Measure 37 does not apply to land use regulations enacted before your property was purchased by you or a family member who purchased it before you, whichever occurred first. Finally, Measure 37 does not apply to laws restricting or prohibiting the use of property for the purpose of selling pornography or performing nude dancing. This restriction, however, only takes effect if the Oregon Supreme Court determines that state and local governments have the authority to adopt land use regulations specifically targeting these types of establishments, or a majority of Oregon voters approve an amendment to the Oregon Constitution allowing these types of restrictions. Currently, such restrictions are unconstitutional, and Measure 37 cannot and does not make any attempt to change that. 7. Why is there an exemption for laws restricting or prohibiting the use of property for selling pornography or performing nude dancing? The drafters of Measure 37 and Oregonians In Action take no position on social issues, including pornography. While we realize that many people have strong feelings on these issues, they are simply not within the scope of our mission. But in order to defeat laws they disagree with, opponents of Measure 37 and other property rights measures, often resort to tactics that have no relation to their actual concerns. For example, property rights opponents defeated a takings initiative in the State of Washington by abandoning their "gloom and doom, sky is falling" rhetoric and instead arguing that voters would be forced to compensate pornographers if the Washington law was adopted. The addition of the "pornography" exemption was necessary to stop Measure 37 opponents from making that same frivolous, baseless argument against Measure 37. 8. I heard that there are local government laws and state laws that affect the use and enjoyment of my property. Because it is likely that both the state’s laws and my local government’s laws have taken the value of my property, do I need to make my Measure 37 claim with the state and the local government? Yes. If you live within the limits of a city, you will need to file your Measure 37 claim with the city. If you live outside a city’s limits, you will need to file your claim with the county. Unfortunately, because of our over-regulatory land-use system, often there are both state and local laws that affect the use and enjoyment of your property and give rise to Measure 37 claims. When that occurs, it is not always clear who is responsible for the land use regulations that have taken away your property rights. Sometimes the local government is enforcing its own law that is not required by the state. Sometimes the local government has adopted an ordinance because it was ordered to do so by the state. Sometimes both state and local government laws operate independently of each other, and both reduce the use and enjoyment of your property. Because it is often not clear whether state or local government is ultimately responsible for adopting the land use regulations that have taken the value of your property, we suggest that you err on the side of caution and file claims with both the state and your local government. For claims against the State of Oregon, we suggest you send your claim to the following:
The State of Oregon has adopted a claims form and requires certain information to be submitted with a Measure 37 claim. Contact the appropriate state agency for more information. 9. Many local governments are adopting local procedures for processing Measure 37 claims, do I have to follow those procedures? No. Although Measure 37 allows governments to adopt procedures, there is no requirement that a person filing a Measure 37 claim follow those procedures. The purpose for this provision of Measure 37 is to avoid the circumstance where a person sues the government under subsection (6) of Measure 37 and the government claims that the person cannot file a claim until the property owner completes the government’s process. This is called a "ripeness" argument and is the main argument governments have been using for years to avoid paying compensation to property owners. This provision was necessary because after the passage of Ballot Measure 7 in 2000, some local governments adopted onerous procedures to discourage property owners from exercising the rights they had just received. These procedures were nothing more than an effort to eliminate the ability of property owner to have their property rights restored. The drafters of Measure 37 knew that local governments again would try to thwart the will of the people by imposing onerous regulations. Subsection (7) of Measure 37 is intended to allow property owners to avoid such onerous regulations. In the alternative, we have provided a draft demand letter and a draft claim form for you to consider using when filing your Measure 37 claim. 10. If I may be able to use my property for the use that I want, should I make an application for that use before filing a claim under Measure 37? Yes. In some cases, it may be possible for you to still qualify to use your property in the way that you could when you purchased it. In those situations, we recommend that you file an application with your local planning department, or at least consult with them, to determine whether you can qualify for the use. However, if the law is clear that you cannot use your property in the way that you could when you purchased it, then it would be futile to submit an application to the local government. For example, Oregon law prohibits the creation of parcels smaller than 80 acres in farm or forest zones (97% of all privately owned rural land in Oregon is zoned for farm or forest use, regardless of whether or not it can be used for agriculture or timber uses). Because the local government cannot approve a request by a farmer to divide his 80 acre farm into two parcels for each of his children, it would be futile for the farmer to submit a partition application to the local government, and Measure 37 does not require him to do so. Or a congregation that bought land for a new church in an area where churches are no longer allowed is not required to submit an application for a church on their property. But if a new church may be allowed, the congregation should submit an application before proceeding with a Measure 37 claim. 11. Do I need to file an application to rezone my property or seek a variance from land use regulations before I make a claim under Measure 37? No. Measure 37 does not require you to file an application to change the zoning on your property or seek a variance before you file a claim. 12. Do I need an appraiser to certify the value of my claim before I make a claim under Measure 37? No. Measure 37 does not require you to hire an appraiser before you file a claim. However, if you cannot agree with the state or local government about the value of your claim, you will likely need a report from a qualified appraiser to substantiate your claim. If possible, we suggest that you have an appraisal of your property completed before filing a Measure 37 claim in order for you to make the most accurate Measure 37 claim you can. But if the cost is prohibitive, or you do not wish to do so for some other reason, nothing in Measure 37 requires you to hire an appraiser before filing a claim. 13. Do I need an attorney to help me with my claim? Nothing in Measure 37 requires you to hire an attorney to help you with your claim. But it is still a good idea to contact an attorney before filing a Measure 37 claim. If you don’t know an attorney, or need help finding one, please call us at (503) 620-0258 and we will refer you to an attorney familiar with Measure 37. 14. What should my Measure 37 claim look like? Nothing more than a demand letter to the government agency imposing the restriction. Click here for examples. We suggest that your Measure 37 claim resemble a claim made under the Oregon Tort Claims Act, ORS 30.275. Accordingly, your demand letter should include the following information:
We suggest that a Measure 37 demand letter or a claim form be filed with the government agency responsible for enforcing or enacting the regulation against your property, as well as with the Oregon Department of Administrative Services and the Oregon Department of Justice (see addresses above). 15. Can the government charge me a fee for making a Measure 37 claim? No. Again, subsection (7) of Measure 37 makes this point perfectly clear. In 2000, after the passage of Measure 7, many local governments began adopting procedures for processing Measure 7 claims which included exorbitant fees. Back in 2000, local governments adopted these high fees in an effort to discourage property owners from filing Measure 7 claims. Accordingly, subsection (7) of Measure 37 was included in the measure to avoid cases where the local government adopts fees so high that they make it impossible for any property owner to receive relief under Measure 37. Unfortunately, some local governments are considering ordinances that will impose severe fees on property owners who file Measure 37 applications for relief, despite the fact that a supermajority of Oregonians supported Measure 37. This is akin to having the schoolyard bully steal your lunch money, and then charge you a "fee" when he gives it back to you. These excessive fees are counterproductive to everyone involved, in that they discourage property owners from working with the state and local government to resolve their Measure 37 claim, and instead encourage litigation, where the property owner will be entitled to recover attorney fees and costs if they are successful. We encourage local governments and property owners to work together to create a reasonable and fair process for resolving claims. If fees are modest and reasonable, and the claims process is not designed to punish property owners for attempting to have their rights restored, it will encourage everyone to work together without litigation. If fees are excessive, however, property owners will simply resort to litigation to obtain relief. 16. How long does the government have to make a decision on my Measure 37 claim? 180 days from the date you make a written demand for compensation upon the government. Many local governments, and the State of Oregon, adopted policies trying to define when a Measure 37 claim is "filed", for purposes of determining when the 180-day clock begins to run. A Measure 37 claimant must understand that nothing is actually "filed" with the government. In order to start the 180-day clock, all a Measure 37 claimant must do is make a written demand for compensation upon the state or local government. It is critically important for current and potential Measure 37 claimants to understand that many local governments are hoping property owners will not be aware of their rights under Measure 37. These governments will try to deceive you into thinking you must follow their procedures otherwise you cannot begin the Measure 37 process. Do not be misled. Know your rights and beware! 17. What if the government does not resolve my Measure 37 claim within 180 days, or I do not like the result? If your claim has not been resolved within 180 days, or you are unsatisfied with the government’s decision, you can proceed with a lawsuit in the circuit court for the county in which your property is located. Nothing requires you to do so, however. The choice is yours. If your lawsuit is successful, you are entitled to recover your attorney fees and court costs. 18. Does Measure 37 mandate a process for local governments to follow to make a decision on a Measure 37 claim? No. Each local government (and the state government) are free to create their own process for handling Measure 37 claims. This allows smaller cities and counties to adopt different laws from larger cities and counties. 19. Who is an "owner" under Measure 37? Measure 37 defines "owner" as the present owner of the property, or one who owns any interest in the property. In other words, if you and your two brothers all have an interest in a piece of property, all three of you are "owners" of the property under Measure 37. 20. I acquired my property by inheritance from my father in 1990, who purchased the property in 1950. The property has remained in continuous ownership in my family. Under Measure 37 what date can I rely upon to make a claim for compensation? Under Measure 37, what date would be used to determine what uses would be permitted on my property should the local government decide to waive a regulation? Measure 37 distinguishes between compensation claims and waiver claims. Compensation claims revert to the date property was acquired by the family member. A claim for a waiver reverts to the date the present owner acquired the property. So, in the example from the question, a claim for compensation would be based upon the difference of the value of the property with the restrictions from the value of the property without the restrictions. For purpose of determining what restrictions were in place, you would look to the code as it existed in 1950. However, if you are looking for waiver, the only restrictions that can be waived are those that went into effect after the present owner (not a previous family member) acquired the property. 21. My property is in a trust, can I still make a Measure 37 claim? Yes. So long as one of the beneficiaries and/or trustees of the trust is one of the original owners of the property. Also, that/those person(s) should be the person(s) filing the Measure 37 claim. 22. Does Measure 37 Affect Farm Tax Deferrals? Only if you take your property out of farm production. Measure 37 will not have any effect on surrounding property owners’ farm tax deferral status unless they, too, choose to move their property out of farm production. 23. How will Measure 37 affect Urban Growth Boundaries (UGBs)? Measure 37 does not change UGBs, or give property owners the right to demand that the UGB be altered.. Although Measure 37 restores development rights that were taken from property owners, there is nothing in the measure that requires local governments to extend urban services like roads, water and sewer to development outside the UGB. Measure 37 will not allow urban type developments in rural areas, like large retail stores, shopping malls, apartments, or large factories. Rural areas will remain rural, and urban areas will remain urban. 24. Will Measure 37 eliminate Oregon’s land use planning system? No. In fact, Measure 37 completes implementation of Oregon’s land use planning system. In 1973, when statewide land use planning was first imposed on Oregonians through the passage of Senate Bill 100, it was intended that property owners would be entitled to protection from the loss of property values as a result of land use planning. Unfortunately, once the proponents of centralized planning got what they wanted – the ability to adopt regulations to control private land – they had no incentive to make sure your property value was protected, so efforts in subsequent legislatures to protect property owners failed. Ballot Measure 37 simply completes implementation of land use planning in Oregon by proving property owners with protection from the loss of property value as a result of having their property rights stolen from them. 25. What effect will Measure 37 have on the future of land use planning in Oregon? Measure 37 will force government to consider the economic impact of the regulations that government enforces against property owners. Right now, government only pays lip-service to property owners by engaging in a fruitless, pointless process. Measure 37 will require government to consider the impact of a new law on the pocket books of those who pay the most under the current system, property owners. 26. Does Measure 37 permit the government to take a waiver granted under Measure 37 away in the future? No. Once a regulation is waived by the government, the regulation is waived for the current owner and all subsequent owners of the property. At least one local government is trying to avoid the will of the people by inserting a provision into its local ordinances that requires a property owner to remove any development which the local government just granted under Measure 37 as soon as the property is transferred. For example, if the local government granted a property owner the right to build a home, they would force that property owner to tear down that home if the property owner wanted to sell that home. This is clearly contrary to the language of Measure 37, and is the type of argument that only a local government lawyer would love. These types of regulations fly in the face of the collective voice with which voters spoke on Measure 37. The whole point of Measure 37 was to restore rights a property owner had taken from them as a result of government regulation, rights that included the ability of a property owner to transfer a permitted use. 27. Where is the money to pay compensation claims under Measure 37 supposed to come from? Measure 37 was intentionally written to allow governments to decide from where – or if – compensation claims would be paid. Right now, the cost of land use planning in Oregon is being paid by individual property owners, not the public as a whole. It only seems fair that if the citizens of the state of Oregon are going to receive some perceived public benefit from land use planning, that citizens of Oregon share in the cost of the system.
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Example Claim Letter/Form (downloadable PDF files):
The Good, The Bad, and Multnomah County - Local Government Measure 37 Ordinances:
Analysis of Local Government Measure 37 "Implementing" Ordinance Proposals:
What the State of Oregon thinks:
The Oregon Administrative Rule for Measure 37 Claims:
How to get involved:
(Session convened January 16th, 2005)
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DISCLAIMER
This website was prepared to
introduce you to Ballot Measure 37 (2004) and is for informational purposes
only. While every attempt is made to maintain accuracy of the information on
this site, the information is not guaranteed to be complete or to represent
the latest legal developments. |