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Prospects unclear for developments begun under M37
By Jeff Barnard, Associated Press Writer
Friday, November 23, 2007 | No comments posted.
Based on the property rights law known as Measure 37, Tom and Gloria Gilbert tore down their house, invested their savings and borrowed everything they could to subdivide the seven-acre property where they live outside Oregon City.
They got as far as building the roads, installing water and utilities to each lot, and having the nine lots recorded on Clackamas County records as a subdivision — an investment of $427,000 — before voters adopted Measure 49 to bring limits and clarity to the development free-for-all that Measure 37 opened up.
However, for the Gilberts and an estimated 300 Measure 37 claimants like them, the future is clouded in doubt over just how far along they have to be with their project to be able to continue under Measure 49 — a common law concept known as vested rights that is anything but clear.
The short answer from Richard Whitman, the state Department of Justice lawyer who wrote a draft set of guidelines on the issue and is taking over as the next director of the Department of Land Conservation and Development, is that based on previous court rulings, you have to have gone beyond getting permits to do some actual work on the ground.
“The work will have to be a significant or substantial amount of work,” said Whitman. “Ultimately, it will be up to the Oregon courts to determine what that level is.”
That is small comfort for the Gilberts, who are living in an RV since tearing down their house to make way for a wider road demanded by the county and wondering where they might be able to raise the $50,000 they have been quoted as the cost of going to court to make that determination.
“We’ve already invested almost everything we’ve got,” said Gloria Gilbert. “How does a person hold out”
Enacted by the voters three years ago, Measure 37 made it possible for people who owned land before the imposition of zoning or land use laws to either go ahead with whatever kind of development was allowed under the laws in force when they acquired the property or get paid for the difference in value by the state or county.
About 6,500 people made Measure 37 claims to the state, of which about 3,200 were approved. Those that were not approved have no choice but to follow Measure 49 for any development claims.
About 600 of those who got state approval got as far as also making a claim against their county. And about half of those may be vested, according to the Department of Land Conservation and Development.
“The difficulty with vested right determinations is they are very much fact-dependent,” said Doug McClain, Clackamas County planning director. “For one thing there is no statute or law written down that we are interpreting. It is as referred to in Measure 49, a common law vested right. That means it is a creature of various court decisions.
“So each case is going to be very different. And that’s what makes it a challenge.”
Even if the Gilberts get vested, it remains uncertain whether the people who buy their lots will qualify for a building permit, McClain added. The issue is known as transferability.
“You can transfer a Measure 49 claim right,” he said. “But if you are claiming a vested right under Measure 37, you aren’t settling that ownership transferability question.
“There is no magic answer on vested rights.”
Developers rushing to get more work done before the Dec. 6 deadline, when Measure 49 goes into effect, may well find it all for naught, by virtue of acting in bad faith, a component of the common law idea of vested, said Sid Friedman, the Willamette Valley advocate for 1000 Friends of Oregon, a land use watchdog group.
Even a person who has finished building a new house under a Measure 37 claim faces uncertainty, he added.
“What they have is a non-conforming use that can’t be transferred to a new owner,” he said. In some counties, that means the house can’t be expanded or rebuilt if it burns down.
“Somebody has to ask themselves if they are better off with nine lots they can’t transfer to someone as buildable lots, or if they are better off with a smaller number of lots they can actually sell,” said Friedman.
Gloria Gilbert said having to cut back to three lots would mean having to start over.
“We’ve pretty much run out of money, and we need a decision,” she said.
They got as far as building the roads, installing water and utilities to each lot, and having the nine lots recorded on Clackamas County records as a subdivision — an investment of $427,000 — before voters adopted Measure 49 to bring limits and clarity to the development free-for-all that Measure 37 opened up.
However, for the Gilberts and an estimated 300 Measure 37 claimants like them, the future is clouded in doubt over just how far along they have to be with their project to be able to continue under Measure 49 — a common law concept known as vested rights that is anything but clear.
The short answer from Richard Whitman, the state Department of Justice lawyer who wrote a draft set of guidelines on the issue and is taking over as the next director of the Department of Land Conservation and Development, is that based on previous court rulings, you have to have gone beyond getting permits to do some actual work on the ground.
“The work will have to be a significant or substantial amount of work,” said Whitman. “Ultimately, it will be up to the Oregon courts to determine what that level is.”
That is small comfort for the Gilberts, who are living in an RV since tearing down their house to make way for a wider road demanded by the county and wondering where they might be able to raise the $50,000 they have been quoted as the cost of going to court to make that determination.
“We’ve already invested almost everything we’ve got,” said Gloria Gilbert. “How does a person hold out”
Enacted by the voters three years ago, Measure 37 made it possible for people who owned land before the imposition of zoning or land use laws to either go ahead with whatever kind of development was allowed under the laws in force when they acquired the property or get paid for the difference in value by the state or county.
About 6,500 people made Measure 37 claims to the state, of which about 3,200 were approved. Those that were not approved have no choice but to follow Measure 49 for any development claims.
About 600 of those who got state approval got as far as also making a claim against their county. And about half of those may be vested, according to the Department of Land Conservation and Development.
“The difficulty with vested right determinations is they are very much fact-dependent,” said Doug McClain, Clackamas County planning director. “For one thing there is no statute or law written down that we are interpreting. It is as referred to in Measure 49, a common law vested right. That means it is a creature of various court decisions.
“So each case is going to be very different. And that’s what makes it a challenge.”
Even if the Gilberts get vested, it remains uncertain whether the people who buy their lots will qualify for a building permit, McClain added. The issue is known as transferability.
“You can transfer a Measure 49 claim right,” he said. “But if you are claiming a vested right under Measure 37, you aren’t settling that ownership transferability question.
“There is no magic answer on vested rights.”
Developers rushing to get more work done before the Dec. 6 deadline, when Measure 49 goes into effect, may well find it all for naught, by virtue of acting in bad faith, a component of the common law idea of vested, said Sid Friedman, the Willamette Valley advocate for 1000 Friends of Oregon, a land use watchdog group.
Even a person who has finished building a new house under a Measure 37 claim faces uncertainty, he added.
“What they have is a non-conforming use that can’t be transferred to a new owner,” he said. In some counties, that means the house can’t be expanded or rebuilt if it burns down.
“Somebody has to ask themselves if they are better off with nine lots they can’t transfer to someone as buildable lots, or if they are better off with a smaller number of lots they can actually sell,” said Friedman.
Gloria Gilbert said having to cut back to three lots would mean having to start over.
“We’ve pretty much run out of money, and we need a decision,” she said.
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