Response to Portland Business Journal Article on Measure 49
An article in today’s Portland Business Journal suggests that Measure 49 is confusing, based on uncertainty as to what level of existing development is necessary to exempt current Measure 37 claimants from the effects of Measure 49. In fact, compared to its confusing older sibling, Oregon’s new Measure 49 is a model of clarity.
Measure 49 clarifies most (but not all) of the perplexing questions and uncertainties that troubled claimants, planners and lawyers alike under Measure 37. For example, Measure 49 establishes clear limits on the number of new homes that can be built pursuant to Measure 37 claims. It eliminates the ability to use Measure 37 claims for commercial and industrial development. And it establishes both streamlined claims procedures for owners wanting to build a few houses, and more detailed procedures for those with larger developments in mind. Measure 49 also clarifies that Measure 37 waivers can benefit subsequent owners of the property, resolves the rights of surviving spouses of deceased claimants, gives greater protection to high quality farm and forest land and groundwater-restricted areas, and establishes precise rules for bringing new claims in the future.
The primary question left unanswered by Measure 49 is not the vested rights of current claimants. The legal concept of vested rights long predates Measure 37 and there is ample law for planners, claimants and courts to determine when a landowner has sufficient vested rights to be exempt from Measure 49.
The biggest unresolved issue we see is the ability of landowners to make a Measure 37 claim for property that the owner has conveyed into a corporate entity, such as a family corporation or a limited liability company. Many landowners have conveyed property into LLC’s for estate planning purposes, and under Measure 37 some governments treated that as a change in ownership. They denied those Measure 37 claims based on land use regulations enacted prior to the transfer. In reality, ownership of the property did not change at all, only the form of holding title. Measure 49 should have (but did not) clarified the rights of owners who transferred title to their own corporations and LLCs.
Despite this one omission, Measure 49 will go a long way toward settling the troubled waters that surround its vague and confusing predecessor.
Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.
