Early property rights cases muddy latest Oregon law


Thursday, February 07, 2008 | No comments posted.

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PORTLAND (AP) — The amended version of the Oregon property rights law that was intended to rein in the original law has spawned a wide mix of land-use lawsuits, court decisions and county ordinances across the state.

Voters approved Measure 49 last November to amend Measure 37, which voters approved in 2004 to give property owners the right to develop their land in a manner that was allowed when they bought it — or demand compensation from the state.

Measure 49 rolled back some of the development rights allowed under Measure 37.

But sorting out the effects has been difficult.

“It’s murky,” said Ed Fitch, an attorney who represented a property owner in a recent Land Use Board of Appeals case. “We’re going to end up with hundreds of cases going up to the (Oregon) Court of Appeals.”

In January, the state Land Use Board of Appeals overturned Jefferson County’s approval of a 60-lot subdivision, in part because the original property owner died, and the development right he won under Measure 37 couldn’t be transferred to his son.

The board’s ruling followed a decision by a Multnomah County judge who reversed a $750,000 damage award he’d previously granted a Portland couple. The judge ruled that Measure 49 could be applied retroactively and made the couple’s case moot.

Elsewhere, three property owners recently sued Jackson County, alleging that the development waivers they got under Measure 37 amounted to contracts that the county has breached by refusing to allow construction now that Measure 49 has taken effect.

The Jefferson County case was notable because it involves the issue of vested rights and the “goal post” argument raised by property rights advocates.

In 2005 William H. Burk filed a Measure 37 claim on land he’d owned since 1947 and the county and state waived land-use restrictions imposed after Burk bought the property.

After Burk died in July 2007, however, the county and state denied the development application because Measure 37 rights were not transferable to Burk’s heirs.

The Land Use Board of Appeals agreed.

Oregon statute holds that a person who has filed a property development application has a vested right to continue the project under the land-use rules in effect on the filing date.

Property rights attorneys refer to it as the “goal post” principle, saying government can’t move the goal post — change the rules — midway through the game.

The land-use appeals board said the two laws are in conflict, and the later, more specific standard of Measure 49 prevails.

Ralph Bloemers, a staff attorney with Crag Law Center in Portland, said the Land Use Board of Appeals’ decision and others are making it clear that the limited development rights available under Measure 49 are now the rule in Oregon.

“All the big arguments that are being made to try and do an end-around on Measure 49 have been and are being rejected,” Bloemers said. “The courts and LUBA are encouraging claimants to proceed under 49; they’re saying that’s where their rights are.”

Fitch and other attorneys disagree. Fitch says the Legislature ought to wipe the board clean and declare that anyone who filed a development application before Dec. 6, when 49 took effect, is vested.

“It’s very unfair to pull the rug out from under people,” Fitch said.
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