What Am I Entitled To Under Measure 49?

Note: This Memorandum addresses what we believe is the proper interpretation of the “express lane” provisions of Measure 49.  It is not intended, however, as legal advice for the reader and is not intended to create an attorney/client relationship with the reader – we simply cannot represent all who seek our services.  You are encouraged to consult with an experienced land-use attorney concerning your Measure 49 claim, and are free to share this memo with your attorney.

We have been asked repeatedly in the last few months to interpret Measure 49.  The most frequent request we receive is to interpret the “express lane” provisions of Measure 49, which are found in Section 6 of the Measure.  Specifically, claimants want to know how many lots or parcels and how many dwellings they can receive under Measure 49.

The Oregon Department of Land Conservation and Development (DLCD), the state agency tasked with implementing Measure 49, has published an interpretation of Section 6 of Measure 49 in an effort to provide guidance to Measure 49 claimants.  Unfortunately, we believe that the DLCD’s interpretation of Section 6 of Measure 49 is wrong, and will not be accepted by the Oregon courts.  The purpose of this Memorandum is to answer the question about how to properly interpret the “express lane” provisions of Section 6 of Measure 49, as we believe the courts will interpret the Measure.

It is possible that property owners eligible for relief under the “express lane” option of Ballot Measure 49 (2007) (herein “Measure 49″), may be entitled to four dwellings, not three, and five lots, not three, given the express language of Measure 49.

You will recall that the proponents of Measure 49 claimed that Measure 49 was nothing more than a clarification of, rather than an outright repeal of, Ballot Measure 37 (2004)(herein “Measure 37).  Although Measure 37 was but two pages long, Measure 49’s “clarification” was 21 pages long.  See Enrolled House Bill 3540 (2007).

Both the official summary of Measure 49 and the official explanatory statement of Measure 49 claim that a property owner may acquire up to three homesites under one of Measure 49’s options (the “express lane” option) or four to ten homes under the other option under Measure 49 (the “impossible dream” option).  However (and not surprisingly) it appears as though the descriptions found in the official summary and official explanatory statement were not accurate.

The “express lane” option is found in Section 6 of Measure 49.  The “express lane” found in Section 6 of Measure 49 has two operative subsections, each which – on their face – provide separate and distinct forms of relief for property owners.

First, under Section 6, subsection (2) of Measure 49, property owners are entitled to the lesser of (a) the number of homesites requested under the property owner’s original Measure 37 claim, or (b) three homesites.  This subsection is very clear with regards to how many homesites a property owner is entitled to under Section (6), subsection (2) of Measure 49.

Second, Section 6, subsection (3) of Measure 49 appears to provide property owners with additional relief on top of the relief provided by Section 6, subsection (2) of Measure 49.  Importantly, subsection (3) of Section 6 of Measure 49 is a stand-alone section of Measure 49 whose operation is not conditioned on the occurrence of any action (with the exception of filing a claim for relief under Measure 49) in subsection (2) of Section 6 of Measure 49.

In short, Section 6, subsection (3) of Measure 49 appears to expressly give a property owner an additional homesite (and dwelling).  The subsection begins “Notwithstanding subsection (2) of this section…”.  The presence of the word “Notwithstanding” means “despite” or “in addition to”.

The subsection goes on to say “…a claimant that otherwise qualifies for relief under this section may establish one additional lot, parcel or dwelling on the property.”  In other words, the express language of Measure 49 says that “despite” or “in addition to” the three homesites permitted under Section 6, subsection (2) of Measure 49, a property owner is entitled to an additional homesite under Section 6, subsection (3) of Measure 49.

Which means that a property owner would be entitled to a total of 4 homesites under the “express lane option” of Measure 49.

When interpreting ambiguous statutes, Oregon courts will employ the familiar analysis laid out by the Oregon Supreme Court in PGE v. BOLI, 317 Or. 606, 859 P.2d 1143 (1993).  The first step in interpreting an ambiguous statute is to examine the text and context of the statute to determine if this interpretation of the “express lane” of Measure 49 is correct.  Id. at 610.

As explained above, the express language of Measure 49 supports the conclusion that, under the “express lane” option of Measure 49, a property owner would be entitled to up to three homesites under Section 6, subsection (2) of Measure 49, and an additional homesite under Section 6, subsection (3), of Measure 49 – for a possible total of four (4) homesites allowed under the “express lane” option of Measure 49.

But the first level of statutory analysis under the PGE test does not necessarily stop at an examination of the express language of a statutory provision.  Courts will also examine the context of the statute to divine whether our construction of the “express lane” is correct.  PGE, 317 Or. at 610.

An examination of the context of Section 6, subsection (3) will lead to the conclusion that the best construction of Section 6 is that which provides that those who chose the “express lane” option are entitled to up to four homesites.  Importantly, both Section 6, subsection (2) and subsection (3) use the phrase “lots, parcels or dwellings”, and authorize the establishment of all three.

Each two of the terms used in subsections (2) and (3) – lot and parcel – are terms of art with legally defined meanings.  A lot is a single unit of land that is created by a subdivision of land.  See ORS 92.010(3).  A subdivision is a division of land into four or more lots.  See 92.010 (15).  A parcel is a single unit of land that is created by a partitioning of land.  See ORS 92.010(5).  A partition is a division of land into two or three parcels in a calendar year.  See 92.010(7).

Both subsection (2) and subsection (3) of the “express lane” option contemplate the creation of “lots” under the “express lane” option of Measure 49.  Applying the statutory definition of “lot”, the only way a lot can be created is if a particular piece of property is divided into at least four pieces of land.  Therefore, by using the term of art “lot” in both subsections (2) and (3) of Section 6 of Measure 49, it is clear that Measure 49 contemplates the creation of four homesites – a subdivision –  under the “express lane” option.

This interpretation also comports with the language of Section 11, subsection (3) of Measure 49, which limits the size of the lots or parcels upon which the new dwellings that are approved under either Section 6 or Section 7 of the Measure to two or five acres, depending upon whether the Measure 49 property is “high value farmland” or “high value forestland” as uniquely defined by the Measure.

An example helps illustrate the proper application of the “express lane” – Section 6 of Measure 49.  Assume that Farmer Jones owns 80 acres of land in Washington County which he purchased in 1965.  When Farmer Jones purchased his property, it was unzoned, meaning he could have divided the property and sited dwellings on the property in whatever manner he deemed fit.

Today, however, Farmer Jones’ property is zoned for exclusive farm use, meaning the property is now subject to an 80-acre minimum parcel size, and severe limitations on the siting of a dwelling.  As a result, Farmer Jones filed a Measure 37 claim seeking the right to subdivide the property into four 20-acre lots, each with a home.  Farmer Jones’ Measure 37 claim was approved by the DLCD and Washington County.

But before Farmer Jones could act on his Measure 37 claim, Measure 49 was adopted.  As a result, Farmer Jones received a Measure 49 packet from the State, and decided to opt for relief under the express lane under Section 6 of Measure 49.  How many homes and lots/parcels can Farmer Jones create?

According to the DLCD, Farmer Jones can create three parcels under Measure 49.  Each parcel would have a dwelling.  As a result, the DLCD believes that Farmer Jones would be entitled to partition his property to create three parcels.  The first parcel would be two acres in size and contain a dwelling.  The second parcel would also be two acres in size and contain a dwelling.  The third parcel would be 76 acres in size and contain a dwelling.

As explained above, however, there are flaws with the DLCD’s logic.  First, the DLCD ignores the language of Section 6, Subsection (3), which appears to give Farmer Jones the right to site an additional dwelling and create an additional lot beyond the three that he can create under Section 6, Subsection (2) of Measure 49.

Second, under the DLCD’s interpretation, Farmer Jones could never create a “lot” under Section 6 of Measure 49, even though the language of Section 6 allows a property owner to create a “lot.”  By Oregon law, a “lot” is created by a subdivision, meaning Farmer Jones would have to subdivide his property into four units of land in order to create “lots.”  Under the DLCD’s interpretation of Measure 49, Farmer Jones could never create more than three units of land, meaning he would be creating new “parcels” of land through a partition, not a subdivision.  Section 6 of Measure 49 allows for the creation of a “lot”, meaning that there must be situations where a property owner can create four or more units of land under Section 6.  The DLCD’s interpretation makes this impossible, and should be rejected by the courts.

Finally, the DLCD’s interpretation would result in the creation of a “home site approval” on a newly created 76 acre parcel.  Remember, Farmer Jones originally started with one parcel that was 80 acres in size.  As a result of his Measure 49 claim, he will now create new lots or parcels.  The DLCD’s interpretation is inconsistent with the language of Section 11, Subsection (3) of Measure 49, which imposes acreage limitations on the size of the lots or parcels upon which new dwellings will be sited.  The approval of a dwelling on a 76 acre parcel is not consistent with the language in Section 11, Subsection (3).

The proper way to read Section 6 of Measure 49 would allow Farmer Jones to create four “lots” under Section 6, Subsection (2) of Measure 49.  Three of the lots that Farmer Jones creates will be two acre homesites.  The fourth lot that Farmer Jones creates will be a 74 acre remainder, which will not qualify for a new dwelling.  Thus, under Section 6, Subsection (2), Farmer Jones should be entitled to create four new lots and three dwellings on his 80 acre parcel.

That is not all, however.  Since Section 6, Subsection (3) operates independently and in addition to the relief that Farmer Jones is entitled to under Section 6, Subsection (2), Farmer Jones should qualify for one additional lot under Subsection (3).  The result is that Farmer Jones should be entitled to subdivide his 80 acre parcel into five lots, with dwellings on four of the five lots, and the remaining lot is bare.

Where both the express language of Measure 49 – the text and context of the measure – support a specific construction of the statute, a court will not delve further into the PGE analysis.  PGE, 317 Or. at 611.  Given the express language of Section 6 of Measure 49, and the clear context of Section 6 of Measure 49, it appears as though a property owner making a claim under the “express lane” option of Measure 49 would be entitled to up to a combined 4 homesites under Section (6), subsections (2) and (3) of Measure 49.

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