Wednesday, September 12, 2007

Measure 49 - The Express Lane To Nowhere.......

One of the arguments that pro-49ers make in support of Measure 49 is that Measure 49 provides "[A] streamlined process". If Measure 49 represents a "streamlined process" to the pro-49 crowd, I would hate to see what they would consider to be a "slow process.

Under Measure 37 (2004), claimants were guaranteed a decision from the government within 180 days (that deadline was extended to 540 days for claims filed after November 1 of 2006).

But under Measure 49 there is no requirement that the government EVER make a decision on your Measure 49 claim.

First, in Section 4 of Measure 49, the 180-day guarantee of Measure 37 is repealed. So the only time-certain guarantee for property owners is repealed completely.

Then, in Section 8.(6) of Measure 49, says
(6) The department or county shall review claims as quickly as possible, consistent with careful review of the claim. The department shall report to the Joint Legislative Audit Committee on or before Measure 31, 2008, concerning the department's progress and the counties' progress in completing review of claims under sections 6 [the 1 to 3 home option] and 7 [the 4 to 10 home option] of this 2007 Act.
In other words, there is nothing in Measure 49 that requires the government to EVER make a decision on a Measure 49 claim! A county like Multnomah can simply sit on your Measure 49 claim, and claim that it is "reviewing your claim as quickly as possible, consistent with careful review of the claim."

Gee, think about it for a moment. The folks at Multnomah County, two members of the Clackamas County Commission, and the Department of Land Conservation and Development (just to name a few) hate property owners and property rights. They are going to take as long as they can, and delay...delay...delay.

But lets assume that a county (say, Jackson County) reaches a decision on a Measure 49 claim in 180 days. There is another problem with Measure 49. You see, Measure 49 allows ANYONE who submits a comment on a Measure 49 claim has standing to sue in state court. You can bet that any county that issues a decision in a timely manner is going to be sued by one of your "friends" here in Oregon, claiming that the government hasn't considered the challenged Measure 49 claim "consistent with careful review...."

The fact is there is no streamlined process in Measure 49. Quite the opposite. There is nothing in Measure 49 that requires the government to EVER make a decision on your Measure 49 claim.

That isn't an express lane, it is a road to nowhere.

Wednesday, September 5, 2007

If They Will Lie To Their Supporters, They Will Certainly Lie To YOU!

Do you know who this guy is? He is the poster child for the Measure 49 campaign. His name is Dick Day. He lives in rural Yamhill County. He is a registered Republican (although we understand his wife is a Democrat Activist in Yamhill County) and allegedly voted for Measure 37 (of course, no one will ever know the truth about that, will they?).

He is not a farmer. He is an insurance agent. He owns his own insurance company called Day & Associates located in Sherwood, Oregon. He lives out in the country, enjoys the country lifestyle and culture, apparently wants his daughters to be able to live out in the country.

He moved out into the country in 1986. He wants to divide a couple of lots off his property, maybe give them to his daughters, maybe sell them for his retirement. His neighbor, whom he now complains about, has lived on his property since 1962, and wants to sell his property for his reitrement. But Dick Day doesn't want that to happen. This is the face of a NIMBY.

Anyway, Dick Day is also a Measure 37 claimant and he supports Measure 49. In the July 12th, 2007 edition of the Portland Business Journal, Dick Day claims that Measure 49 won't affect his claim.

Good for him. As long as he isn't hurt, that must be all that matters.


Ah, but Mr. Day, Measure 49 will affect your Measure 37 claim. Somebody at the pro-49 campaign lied to you. Which shouldn't come as a surprise to anyone else, after all, the entire "yes on 49" campaign strategy is to lie to the voters and hope no one figures it all out.

You see, according to the claim and staff report from Yamhill County, it is the state's farm income test that is preventing Dick Day from, as he puts it, dividing a couple of parcels off his property so his daughters could live on the property, or perhaps he could sell the parcels for his retirement.

Mr. Day, what they didn't tell you at pro-49 HQ is that in order for you to get your 2 homes for YOUR kids, you have to show that there is a law that prohibits residential development of your property. Like we said when we started this blog, we would cite to the actual language of Measure 49 to back up our arguments, so here is the applicable language:
Section 6.(6) of Measure 49 states that a person who
wants to build three homes must show:

(a) The claimant is an owner of the property;
(b) All owners of the property have consented in writing to the claim ;
(c) The property is located entirely outside any urban growth boundary and entirely
outside the boundaries of any city;
(d) One or more land use regulations prohibit establishing the lot, parcel or dwelling;
(e) The establishment of the lot, parcel or dwelling is not prohibited by a land use regulation described in ORS 197.352; and
(f) On the claimant’s acquisition date, the claimant lawfully was permitted to establish at least the number of lots, parcels or dwellings on the property that are authorized under this section.

Well guess what, the state's farm income test does not prohibit residential development! It is a restriction on development. See DLCD v. Polk County, 32 Or. LUBA 16 (1996)(holding that the farm income test (which is an adminsitrative rule) cannot prohibit development, otherwise the test would violate Oregon statute).

That means that Mr. Day will not get the two homes he wants for his daughters (or his retirement) if Measure 49 passes because the law that is preventing Dick Day from dividing his property does not prohibit residential development, it is merely a restriction on development, which does not trigger the "1 to 3 home" option under Measure 49.

Somebody at pro-49 HQ has some explaining to do. Either they lied to Dick Day and told him Measure 49 wouldn't affect his claim (which is all Dick Day is concerned about), or Dick Day and the pro-49 crowd don't understand how Measure 49 will affect Oregonians.

My guess is the former. Given that the entire pro-49 Campaign is based on deceiving the voters. And it looks like Dick Day was that campaign's first victim.