Tuesday, October 16, 2007

Ballot Measure 49 and re-filing - Beating Property Owners Into Re-Submission

The first lie the pro-49ers got caught in was the claim that claimants under the current law would only be required to "check a box" under Measure 49 in order to get the rights the pro-49ers promise Measure 49 will deliver.

In fact, the pro-49ers have even gone so far as to claim that Measure 49 doesn't require property owners to re-file anything! Here is what the pro-49ers say on their website:

Will people who filed Measure 37 claims have to refile again if Measure 49 passes?

Assertions that claimants will have to start over are being made by the opposition and they are false. If a property owner has a valid Measure 37 claim, the process under Measure 49 is simple and straightforward. After M49 passes, claimants will receive a notice from the state of their options, and a form where they check off that they want the fast-track for up to three houses (with transferability). If the "fast track" option meets their needs, all they have to do is check that off, send back the form and proceed with the local process of obtaining a building permit — just like all construction projects.

Claimants who want more than three houses have to prove a loss equal to the value of the number of homesites they seek (up to ten). They must supplement their existing claim with an appraisal proving their loss, but they can add to the calculations up to $5,000 to reflect the cost of the appraisal. The appraisal is initiated and conducted by the property owner and required to meet Federal ‘Yellow Book’ standards

However, a quick read of Measure 49 quickly exposes the lies of the pro-49 campaign. Section 8.(2) of Measure 49 says:

(2) The notice required by subsection (1) of this section must:

(a) Explain the claimant's options if the claimant wishes to subdivide, partition or establish a dwelling on the property under sections 5 to 22 of this 2007 Act;
(b) Identify any information that the claimant must file; and
(c) Provide a form for the claimant's use

(Emphasis added)

So, right there, in the very text of Measure 49, it makes it clear that Measure 37 claimants are going to be required to re-file something. The next question is, what are Measure 37 claimants going to be required to re-file? Section 8.(3) kind of answers that question:

(3) A claimant must choose whether to proceed under section 6 or 7 of this 2007 Act by filing the form provided by the department within 90 days after the date the department mails the notice and form required under subsection (1) of this section. In addition, the claimant must file any additional information required in the notice. If the claimant fails to file the form within 90 days after the date the department mails the notice, the claimant is not entitled to relief under section 6 or 7 of this 2007 Act.
(Emphasis added)

Section 6 [the "1 to 3 home option] and Section 7 [the "4 to 10 home option"] each have different criteria a claimant must satisfy in order to qualify for either option. As discussed earlier, it will be nearly impossible for anyone to qualify for the 1 to 3 home option, and qualifying for the 4 to 10 home option will be even harder than qualifying for the 1 to 3 home option.

The fact is, Measure 37 claimants are going to have to start over in order to have any chance of getting any relief under Measure 49.

But the real trap is found in the highlighted sentence (above) from section 8.(3) of Measure 49. The department (aka the Department of Land Conservation and Development) can require whatever additional information it wants, without limitation. Who knows what additional information the DLCD is going to require.

The claim that all one has to do under Measure 49 is to "check a box" in order to obtain relief is simply false, and the express language of Measure 49 makes that much clear. Measure 49 will require Measure 37 claimants, many of whom are elderly, to start over with their claims, again with no guarantee they will ever get a decision from the government.

But the real trick in Measure 49 is the language that allows DLCD to require whatever information it wants from property owners. When pro-49ers claim that property owners won't have to start over with their claims under Measure 49, they are being outright deceptive, because the pro-49ers know that if Measure 49 passes, DLCD is going to require property owners to go through the process all over.

Yes, Measure 37 claimants will have to start all over. Go to Stop49.com for more information on the many tricks and traps in Measure 49.

Wednesday, October 3, 2007

Measure 49 - Paying the School Yard Bully to Get Your Lunch Back

The deceptive ballot title for Measure 49 claims the measure "clarifies" the current law (Measure 37). However, Measure 49 does a lot more than just "clarify" the existing law, it repeals important protections FOR property owners, that exist in the current law. I heard one speaker use this analogy (which I think fits...) "Measure 49 forces you to pay to get your rights back. It's like forcing you to pay the school yard bully to get your lunch back!"

No supporter of Measure 49 will tell you about the fact that Measure 49 repeals the attorney fee provisions under the current law, which says that if you have to go to court to get your rights back, and you win, you get your reasonable attorneys fees. These types of attorney fee provisions are common in the law, especially laws designed to protect civil rights.

Why? Because typically civil rights litigants - like most property owners - don't have thousands of dollars to spend on lawyers. Recognizing they are fighting for rights that are lawfully theirs, the law awards attorneys fees to citizens who had to take the government to court in order to protect their rights.

But Measure 49 makes this significant change. And you won't read about that in the ballot title or the explanatory statement. Gee....I wonder why?

But its gets worse.

Under Measure 49, the government can (which means it will) charge you for the cost of ITS attorneys! Section 8 and Section 13 of Measure 49 authorize the government to charge you a fee and charge you for the costs of reviewing your claim!

This is the likely scenario under Measure 49: A property owner makes a claim with the County. The County charges the property owner a fee (probably around $1500, higher in some counties, lower in others). The County reviews the claim, denies the claim, and charges the property owner the costs of reviewing the claim. The Property Owner goes to court, pays HER attorneys fees, wins, gets her rights back, and could be on the hook for the COUNTY'S attorney fees again - EVEN THOUGH SHE WON! (remember, Measure 49 authorizes the county to charge her for the actual costs in reviewing the claim, which you know every county is going to argue includes defending the county's position in court).

Again, you won't read about this aspect of Measure 49 in the ballot title or the explanatory statement either.....I wonder why?

Take the time to read Measure 49. Do not rely upon the deceptive Ballot Title or Explanatory Statement because they don't paint the whole horrible picture that is Measure 49.
For more information, go to http://www.stop49.com/ and then volunteer to help defeat this awful measure.