Frequently Asked Questions – Measure 49

Now that Measure 49 has been approved by the voters, and Measure 37 has effectively been repealed, property owners who previously followed the rules laid out under Measure 37 will now be required to re-file their applications with either the state of Oregon or the local government.

Below is a list of frequently asked questions regarding the immediate impacts of Measure 49

1.  When does Measure 49 go into effect?

December 6th, 2007

2.  Can I file a claim for 1 to 3 houses under the “express lane” option or a claim for 4 to 10 homes under the “slow lane” option under Measure 49?

Not until you receive a Measure 49 Notice from the state of Oregon. You will recall that under Measure 37, you were able to file a claim for compensation the day Measure 37 became effective. However, under Measure 49 you have to wait to receive a notice from the Oregon Department of Land Conservation and Development (Department) before you can seek any relief under Measure 49.

3.  How long will I have to wait before I receive the Measure 49 Notice from the Department of Land Conservation and Development?

If your property is located outside an urban growth boundary, the Department of Land Conservation and Development has 120 days to send you the Measure 49 Notice. (HB 3540, §8(1))

4.  Will every property owner with a Measure 37 claim receive a Measure 49 Notice from the Department of Land Conservation and Development?

No. If your property is located inside an urban growth boundary, you will not receive a Measure 49 Notice from the Department.

If your property is located inside an urban growth boundary or inside the limits of a city, you will not receive any notice. Instead, the city or Metro is supposed to review your claim, and if the city or Metro needs more information, you will receive a written request from the city or Metro for the additional information. The city or Metro must complete its initial review by August 4th, 2008. (HB 3540, §10.(1))

Also, property owners whose Measure 37 claims were denied by the state of Oregon will not receive a Measure 49 Notice under the language of Measure 49. However, we have reason to believe that despite the language of Measure 49, the Department will be mailing out notices to all Measure 37 claimants, regardless of whether the Department approved or denied your claim.

HB 3540, §8(1)(a)-(c)

5.  What is the purpose of the Measure 49 Notice?

According to the language of Measure 49, the Measure 49 Notice must tell property owners three things:

(1) Explain your options under Measure 49;

(2) Identify any information you must file; and

(3) The notice must also contain the form you must also file with the Department.

HB 3540 §8(2)(a)-(c).

6.  During the campaign for Measure 49, I remember the Yes on 49 campaign promising that property owners wouldn’t have to do anything other than “check a couple of boxes” to qualify for the right to build up to 3 homes. However, Measure 49 says that I must file “any information” required by the Department. What else am I going to have to re-file with the Department?

You are correct in that the Yes on Measure 49 campaign was less than honest with the voters when they promised that under Measure 49 property owners would not have to re-file their applications. In fact, the language of Measure 49 makes it clear that all Measure 37 claimants are going to have to re-file with the Department, and providing new information with their application.

As far as what additional information is required, Measure 49 is very vague and in fact gives the Department the right to demand any information the Department wants.

HB 3540 §8(2) & (3)

7.  What happens if I don’t re-file my application, and just send in the Department’s Measure 49 form (which is all the Yes on 49 campaign said I had to do)?

If a property owner fails to file the form provided with the Measure 49 Notice and any information required by the Department within 90 days of the date the Notice is mailed to the property owner, then the property owner is forever prevented from either the “express lane” or the “slow lane” options of Measure 49. (HB3540, §8.(3))

8.  How long do I have to file the Measure 49 Form that accompanied the Measure 49 Notice?

This is an important question. According to Measure 49, you have 90 days from the date the Measure 49 Notice is put in the mail to you. Ordinarily you would have 90 days from the date you received the Measure 49 Notice.

Many people are going to be tripped up by this subtle change in the law.

Why? Suppose the Department mails your notice on December 6th, and you do not receive the notice until December 13th. Under most laws, the due date for the Measure 49 Form would be 90 days from December 13th, or March 12th, 2008. However, under Measure 49, because the Measure 49 Notice was mailed on December 6th, 2007, you have to file the Measure 49 Form (and any additional information required by the Department) by March 5th, 2008.

HB 3540 §8(3)

9.  So all I have to do under Measure 49 is mail the Measure 49 Form (and any additional information required by the Department) within 90 days from the date the Measure 49 Notice was mailed to me?

No. And this is another trick in Measure 49 that is going to trip up a lot of people. Ordinarily, say in a lawsuit when something has to be filed, it is considered to be filed when the document is put in the U.S. Mail.

But under Measure 49, anything that must be filed is not considered “filed” until the Department, county or city actually receives the document. See HB 3540 §21a

Therefore, if you are going to mail your Measure 49 Claim Form, or any of the additional information the Department is going to require from you, it is a good idea to take the following steps:

(1)  Plan on mailing the Measure 49 Form and additional information at least 5 business days before the expiration of the 90-day deadline for making a claim under Measure 49; and

(2)  Whatever you mail, make sure it is mailed via registered mail, return-receipt requested so you have a record of when the Department received your filing; and

(3)  Call the Department everyday and be prepared to hand deliver the form if the Department had not received it.

10.  How long does the government have to make a decision on my Measure 49 claim?

Measure 49 does not require the government to ever make a decision on your Measure 49 claim. Under Measure 49, the government must make a decision on your Measure 49 claim “as quickly as possible, consistent with careful review of the claim.”

HB 3540, §8.(6)

11.  What can I expect after I submit my Measure 49 claim to the Department?

No one is entirely sure. Here is what we know and expect will happen.

First, Measure 49 directs the Department to review Measure 49 claims in the order in which the Department receives the forms required by Measure 49. That distinction is important, because under Measure 49 a claimant must submit a Measure 49 Form and any other information requested by the Department.

Second, after you file your Measure 49 claim, Measure 49 instructs the Department to review the Department’s record on the claim.

Third, the Department is supposed to provide the county where your property is located with a copy of the Measure 49 form and any additional information you are required to provide the Department.

Fourth, the county can submit any comments to the Department in response to your Measure 49 claim. Measure 49 requires the Department to consider any comments made by the county in response to your Measure 49 claim.

Fifth, and finally, the Department must then issue a decision that denies your Measure 49 claim or approves your Measure 49 claim.

HB 3540, §8.(4)

12.  How long does the Department have to complete this process?

As long as it likes. There is no guarantee the Department will ever make a decision on your Measure 49 claim. All Measure 49 requires is that the Department review your claim “as quickly as possible consistent with careful review of the claim.”

HB 3540, §8(6)

13.  How long does the County have to submit comments on my Measure 49 claim?

This is unclear. All Measure 49 says is that the Department must consider comments from the County that are “timely filed”. Because there is no deadline when the Department must reach a decision on your Measure 49 Claim, whether a County “timely files” comments in response to your Measure 49 claim will likely be decided solely by the Department.

14.  Is the Department required to provide a notice of some kind to my neighbors after I file my Measure 49 claim?

Measure 49 does not direct the Department to provide notices to neighbors after you have filed you Measure 49 claim. Despite the fact the Department does not have the statutory authority to provide notices to your neighbors, you should expect that the Department will notify your neighbors after you have filed your Measure 49 Claim.

15.  How long, then, would my neighbors have to comment on my Measure 49 Claim?

Again, there is nothing in Measure 49 that requires the Department to provide any sort of notice to your neighbors regarding your Measure 49 Claim, which also means there is nothing in Measure 49 that discusses how long your neighbors have to comment on your Measure 49 Claim.

With that being said, we would expect the Department to apply the same standard for comments submitted by neighbors as Measure 49 requires for comments submitted by the County. Therefore, your neighbors would likely be required to submit their comments in a timely manner.

Measure 49 is also silent on what the Department must do with any comments submitted by your neighbors in response to your Measure 49 Claim. Again, the Department will likely use the same standards required by Measure 49 for comments submitted by a County in response to your Measure 49 claim, and require the Department to consider any comments submitted by your neighbors.

16.  When I get a decision from the Department and/or the County, does that mean I can immediately start building homes on my property?

No. Even after the Department or the County makes a final decision on your Measure 49 claim, you should wait at least another 60 days for the statute of limitations to run on the time anyone who commented on your Measure 49 claim has to appeal the Department or County’s final decision.

HB 3540 §16.(1)

17.  Can anyone file an appeal of my Measure 49 Claim?

Anyone that made comments on your Measure 49 claim can appeal the Department’s or County’s final decision on your Measure 49 Claim.

And, because anyone, anywhere, can submit comments on your Measure 49 Claim, that means, effectively, anyone, anywhere, can appeal the Department or County’s final decision on your Measure 49 claim.

18.  How long will an appeal of my Measure 49 claim take?

If one of your neighbors, or any other “friends” group doesn’t like your Measure 49 Claim, chances are they will appeal any favorable decision from the Department or the County. Either way, appeal of the decision on your Measure 49 claim will first be filed in the circuit court of the county where your property is located. After going through the circuit court process, the appeal will continue to the Oregon Court of Appeals and possibly the Oregon Supreme Court.

19.  I didn’t have to pay any fees to the government under Measure 37, do I have to pay any fees under Measure 49?

In certain circumstances, yes. Measure 49 authorizes the government to charge you a fee if you choose the Slow Lane Option (4 to 10 homes). Also, any claims made under Measure 49 for land use regulations adopted after June 28th, 2007 will also be charged a fee.

The Department and local governments are not allowed to charge fees for those property owners who choose the Express Lane Option (1 to 3 homes).

20.  Under Measure 37 I could recover the costs of the fees I was charged by the government, in addition to my attorneys fees, if I had to sue the government in order to get my rights back. Does Measure 49 change this?

Yes.

Measure 49 repealed the current law that allowed property owners to recover fees, costs and attorneys fees incurred if a property owner had to sue the government to get his or her rights back.

21.  I have a piece of campaign literature from the “Yes on 49″ campaign saying that I can take advantage of the Express Lane Option (1 to 3 homes) with “no questions asked.” It sounds like there are a lot of questions that are going to be asked, what gives?

We tried to explain to the public that Measure 49 was not what its proponents were telling the voters it was. Measure 49 has many tricks and traps buried in it that could eliminate your right to build even one home if you are not careful.

22.  If I opt for the Slow Lane Option, and get denied, can I try again under the Express Lane Option?

Generally speaking, no.

The caveat to the general rule is this: The Slow Lane Option requires property owners to provide and appraisal (using a formula that doesn’t work) to the government after the property owner elects to travel on Measure 49’s slow lane. Up until the point where the property owner turns in the appraisal required by Measure 49, the property owner can change his or her mind and elect to travel on Measure 49’s “express lane”.

However, once the appraisal required by the Slow Lane Option is submitted to the government, you cannot change your mind.

And under Measure 49, you only get one chance to make a Measure 49 claim. So if you travel the entire Measure 49 Slow Lane and get nothing, you cannot try to get any rights in Measure 49’s “Express Lane”.

23.  Under Measure 49 I only get one chance to make a Measure 49 Claim?

Correct.

You will lose the right to make a Measure 49 Claim under the following circumstances:

A.  You complete Measure 49’s Express Lane Option (regardless of whether you receive any relief); or

B.  You complete Measure 49’s Slow Lane Option (regardless of whether you receive any relief); or

C.  You fail to file a Measure 49 Claim Form within 90 days of the date the Department mailed the Measure 49 Claim Form to you; or

D.  You complete the process for Measure 49 claims for property located inside an urban growth boundary or inside the boundaries of a city (regardless of whether you receive any relief); or

E.  You complete the process for Measure 49 claims based on regulations enacted by a state or local government after January 1st, 2007 (regardless of whether you receive any relief).

These materials are for general informational purposes only and are not intended to be relied upon for legal advice. Nothing in this document is, or is intended to be, legal advice, nor intended to create a lawyer-client relationship. If you have a legal question regarding Oregon Ballot Measure 49 (2007), Oregon Ballot Measure 37 (2004), or any other laws affecting the use of your property, you should consult an attorney licensed in your jurisdiction for legal advice regarding your specific situation and circumstances. The transmission of the materials and information contained in this document, or the receipt thereof, is not intended to, and shall not, form an attorney-client relationship.

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