Sunday, August 12, 2007

Ballot Measure 49 Lie #1: Waivers are NOT transferable

One of the "selling points" of Measure 49 is the claim that Measure 49 makes "waivers" transferable.

Anyone who says that "waivers" are transferable under Measure 49 either (a) cannot read, or (b) is flat out lying to you.

Here are the facts.

The "transferability" section of Measure 49 (for retroactive claims) is Section 11(6) which says:

(6) An authorization to partition or subdivide the property, or to establish dwellings on the property, granted under section 6, 7 or 9 of this 2007 Act runs with the property and may be either transferred with the property or encumbered by another person without affecting the authorization. There is no time limit on when an authorization granted under section 6, 7 or 9 of this 2007 Act must be carried out, except that once the owner who obtained the authorization conveys the property to a person other than the owner's spouse or the trustee of a revocable trust in which the owner is the settlor, the subsequent owner of the property must create the lots or parcels and establish the dwellings authorized by a waiver under section 6, 7 or 9 of this 2007 Act within 10 years of the conveyance.

Notice, the word "waiver" is not found anywhere in this section...more on this point in a moment.

You see, under Measure 49, a property owner has to take two steps before the property owner can develop her property. First, the property owner must get a "Waiver", which is a specially defined term in Measure 49. Next, Section 11(1) requires a property owner to get "authorization" for developing the property in accordance with the "Waiver" obtained under Measure 49. In land use law parlance, and "authorization" is nothing more than a permit, like a building permit or conditional use permit.

Section 11(6) of Measure 49 clearly makes "authorizations", or permits, transferable, not Waivers. Guess what, permits are already transferable. Thanks for nothing!

I know, I know. Measure 49 supporters are going to say "It is clear that by 'authorizations' we meant 'Waivers'".

Guess what, that doesn't get you anywhere.

You see, "Waiver" is a specially defined term in Measure 49. When a court is asked to interpret Measure 49, the court is going to look at the text and context of the measure to figure out whether "Waivers" are transferable under Measure 49.

And guess what, the courts are going to say "Under Measure 49, 'Waivers' ARE NOT transferable".

Why? Because from the fact that Measure 49 uses the term "Waiver" throughout the measure, and the fact that "Waiver" is a specially defined term in Measure 49, and the fact that the transferability section of Measure 49 uses the term "authorization" and not "Waiver", the Court is going to hold that under Measure 49, "waivers" are not supposed to be transferable.

The Court will tell us that if the drafters of Measure 49 meant for "waivers" to be transferable, the drafters would have said so in the Transferability Section of Measure 49. And the fact that Measure 49 does not specifically use the term "Waiver" in the Transferability Section means that the drafters of Measure 49 did not intend "Waivers" to be transferable under Measure 49.

This is an application of the PGE v. BOLI test for interpreting statutes. It is well-settled law, and there is no way for Measure 49's proponents to work around this major flaw in Measure 49.

Oh yeah, the preceding argument only applied to retroactive claims. Guess what, Measure 49 specifically says that prospective "waivers" are not transferable. See Section 12(6) of Measure 49.

According to the language of Measure 49 (not the rhetoric), retroactive and prospective claims are not transferable.

Lie #1 exposed.

14 comments:

Zeke said...

Waivers are not transferable -- and "transferability" is not a recognized word -- imagine that!

Anonymous said...

Did you read David Reinhard's column yesterday? The legislature is trying to pull one over on us. We cannot let them get away with it!

Fruity Frenchman said...

Thanks. I saw the column and I am going to post it here shortly. Everyone in Oregon needs to understand what a load of crap Measure 49 is!

Urban Planning Overlord said...

Wrong. To me what the language states is that the property owner must not only get the waiver, but also process the subdivision. Then he or she can sell the lots to anyone, which constitutes the "transfer." The difference is that under Measure 37 the property owner must also build the houses before selling the properties, at which time the houses become "legal non-conforming uses" that, if destroyed, cannot be rebuilt.

Urban Planning Overlord said...

Actually, reading it again, I take back my previous comment. The property owner can sell the waived property without subdividing, but the new owner must subdivide within ten years.

If there is any ambiguity in the language, the courts will look to the legislative history - in this case, thke ballot campaign language. A couple of courts have already done this to hoist the Oregonians in Action gang by their own petards. And, clearly, the campaign language allows transferability of waivers.

Nice try to obfuscate the issues, though.

Fruity Frenchman said...

Sorry Overlord, but you are simply wrong. The language says what it says - you have to get an authorization (i.e. a permit) and that permit is what is transferable, not the waiver.

If the legislature meant waiver, they would have said waiver. The legislature did not say waiver, the legislature said authorization, which is not a waiver. Waiver is a specially defined term in Measure 49.

You simply are not going to win this argument. This is statutory construction 101. If the legislature meant for waivers to be transferable, they would have said that WAIVERs are transferable, which they did not do.

Nice try, though

Anonymous said...

I'd recommend that you look back at that definitions section again. I'll walk you through it:

1. The Definition of Waiver
(21) “Waive” or “waiver” means an action or decision of a public entity to modify, remove
or not apply one or more land use regulations under sections 5 to 22 of this 2007 Act or ORS
197.352, as in effect immediately before the effective date of this 2007 Act, to allow the owner
to use property for a use permitted when the owner acquired the property.

Here, we have waiver clearly defined as the actual document or written decision relieving landowners of certain regulations and/or zone laws.

2. What The Transferability Section Says
An authorization to partition or subdivide the property, or to establish dwellings on the property, granted under section 6, 7 or 9 of this 2007 Act...
Stick with me, this will be relevant in a minute...

3. What Sections 6, 7, and 9 Say
(10) Except as provided in section 11 of this 2007 Act, if the Department of Land Conservation
and Development has issued a final order with a specific number of home site approvals
for the property under this section, the claimant may seek other governmental
authorizations required by law for the subdivision or partition of the property or for the
development of any dwelling authorized, and a land use regulation enacted by the state or
county that has the effect of prohibiting the subdivision or partition, or the dwelling, does
not apply to the review of those authorizations.

This is quoted from Section 7, but also appears in Sections 6 and 9. It maintains the right of landowners to seek relief from regulations via other government authorizations, as well as Measure 37 waivers. Basically, keeping the doors open on all the options for landowners.

4. What The Transferability Section Says (Redux)
When looking at the whole text, 'authorization' is used in this section instead of 'waiver' because the measure is referring to the transferability of all governmental decisions regarding the removal of regulations or zoning. Because 'waiver' is so specifically defined, if this section just used 'waiver' it would limit the previous rights of landowners under other government decisions. 'Authorization' is used because it keeps those rights intact, and because the term 'authorization' is a reference to the authority derived from government decisions not the written text of those decisions themselves, unlike a waiver. This is supported by the text at the end of the section you quote:
the subsequent owner of the property must create the lots or parcels and establish the dwellings authorized by a waiver under section 6, 7 or 9 of this 2007 Act within 10 years of the conveyance. (emphasis mine)

I hope that clears things up.

Fruity Frenchman said...

Section 11(6) of HB 3540 starts off:

“(6) An authorization to partition or subdivide the property, or to establish dwellings on the property, granted under section 6, 7 or 9 of this 2007 Ace runs with the property and may be either transferred with the property or encumbered by another person without affecting the authorization.”

Notice, the transferability section of HB 3540 uses the term “authorization” and not the defined term “waiver”. Why?

Because under HB 3540, a “waiver” and an “authorization” are two different things. A “waiver” is essentially an order by the government saying that a property owner can develop property. However, in Section(6), subsection(8), HB 3540 makes it clear that a waiver is essentially worthless because what you need to develop your property is an “authorization” from the government to develop your property.

By “authorization” HB 3540 means “permit”, although “authorization” is not defined in HB 3540. It is the authorization, and not the waiver, that HB 3540 explicitly states runs with the land.

Why do I think this is significant?

Imagine an 80 year-old widow who gets a waiver under HB 3540, and then sells her property to a developer, before she gets an “authorization” from the government. The developer just got bupkas. Why, because HB 3540 says that authorizations, not waivers, run with the land.

Or if that 80 year-old widow gets a waiver and then gives part of her property to her kids or grandkids, before getting an authorization, the kids (or grandkids) just got absolutely nothing.

By saying that only an “authorization” runs with the land, the 80 year-old widow still has to go out and get the “authorizations” (or permits, if you will) before she has anything of value that she can sell. In other words, she not only has to go through the “waiver” process, now she has to go through the “authorization” process, whatever that is. Yet another hoop our widow has to go through in order to get her rights back.

It is pretty clear that “waivers” are not transferable under HB 3540C. Applying the basics from PGE v. BOLI helps you to that conclusion. The legislature specially defined the term “waiver” in HB 3540, the legislature knew how to use the term “waiver” in HB 3540, and the legislature specifically chose NOT to use the term “waiver” in the transferability section of HB 3540. By using the term “authorizations” instead of “waiver”, a court, when construing this section “will not insert what has been omitted”, and will interpret the legislature’s use of the word “authorizations” over “waiver” to be meaningful and evidence of the legislature’s intent that “waivers” are not transferable. Fisher Broadcasting v. Dept. of Revenue, 321 Or. 341, 898 P.2d 1333 (1995).

You cannot have it both ways. You cannot hold Measure 37 to a literal interpretation and then expect Measure 49 to be interpreted in such a tortured, illogical fashion.

Face it, the drafters of Measure 49 really screwed the pooch on this. If Waivers were meant to be transferable, they would have said "Waiver are Transferable".

Your interpretation of Measure 49 ignores the plain language of the Measure. Yes, I know that you are citing to various parts of Measure 49 to support your argument, but at the end of the day, the Court is going to ask a simple question, is the word "Waiver" included in the relevant sections for purposes of determining whether Waivers are transferable under Measure 49.

Answer: No.

Why, because the legislature knew what a waiver was when they drafted Measure 49, and the legislature specifically chose NOT to include that word in the section on Transferability.

Again, you can't have it both ways. Either these statutes (Measure 37 and Measure 49) are read literally or they aren't. If you are going to read into Measure 49 assumptions and intent, you must do the same for Measure 37.

Game. Set. Match.

Anonymous said...

I think you are still confused about the way 'authorization' is being used here. First of all, 'authorization' is not one of those terms defined in the bill, so I would assume a court would be looking at the context surrounding the use of the word in all of its forms (authorization, authorized, etc.). Looking at the text, you'll see that the Measure 37/Measure 49 authorization stems directly from the waiver:
the subsequent owner of the property must create the lots or parcels and establish the dwellings authorized by a waiver. However, there are other kinds of authorization than a Measure 37/49 waiver, and the Measure 37/49 waiver is not the be-all end-all of the development process.

The authorization given by the waiver is transferable, according to the text. It is necessary to obtain permits, later, but this is true no matter what situation you are building in. The permits may or may not transfer to a new owner, but this section of the measure isn't dealing with permits. It's dealing with authorizations for development stemming from Measure 37/49 waivers and other relevant government decisions.

Fruity Frenchman said...

That is a good effort. But you are simply wrong.

If the legislature intended Waivers to be transferable, the Legislature would have said "Waivers are transferable".

That is what the court is going to tell you......

Anonymous said...

I wish it were that easy to write legislation. Unfortunately, the plain language bill did not pass last session, and I think you have to take a more complex view of the language. Simplicity is to be preferred here, but it doesn't help to simplify a complex issue to the point where the simple explanation is no longer accurate. This whole problem arose because land use regulations were too complex, so a measure was introduced that made things even more complicated, and now we're stuck trying to salvage something useful out of the whole mess. Transferability is one of those useful things, and the text of the measure doesn't leave me with doubts as to the origin of the 'authorizations' or the transferability of waivers.

Anonymous said...

good luck with that one.....

Peace Citizen said...

I am neither a supporter or detractor of the measure yet, I am still trying to learn the implications or benefits first. I simply wish to point out the fact that when this page comments on Section 11 (6) it says:
'Notice, the word "waiver" is not found anywhere in this section ...',
yet it is.
I just read it, in fact it's like 17 words before the end of the quoted section. And the quoted section states:
'... the subsequent owner of the property must create the lots or parcels and establish the dwellings authorized by a waiver under section 6, ...'.
Not only does it use the exact word "waiver" it also uses the term subsequent owner (meaning second, next or following) and then uses the word "authorized" when describing the word "waiver".
So, is it the original poster who can't read or is lying?

Matthew said...

This seems to be a really interesting discussion. I am posting the whole text of the measure on my blog www.oregonwatch.typepad.com
Come and have a look at it and lets get more conversations like this going about the measure.