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.

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.

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.

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.

Typical.

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.

If you are a surviving spouse, look out, Measure 49 will get ya!

Supporters of Measure 49 claim that Measure 49 will “extend” benefits to surviving spouses.

Read the text of Measure 49 and decide for yourself:

Section 21.(2) of Measure 49 says:

(2) if the claimant is the surviving spouse of a person who was the owner of the property in fee title, the claimant’s acquisition date is the date the claimant was married to the deceased spouse of the date the spouse acquired the property, whichever is later

This hypothetical will help you understand how Measure 49 works.

Suppose Husband purchases property in 1960. In 1970, Husband marries Wife and Wife moves onto the property with Husband. In 1980, Husband adds Wife’s name to the deed to the property. In 1990, Husband dies. On January 3, 2008, Wife makes a claim for compensation.

Under current law, because Wife moved onto the property in 1970, she became an “owner”, which means the rights she is entitled to are the rights on the property in 1970.

Wife was married in 1970, but acquired the interest in the property in 1980. Which means Wife gets the rights to develop the property that were on the property in 1980. This is a big difference, because in 1973 many property owners lost their rights when the state of Oregon adopted a centralized statewide land use planning system.

Measure 49 actually hurts surviving spouses, it does not help them.

When you take the time to read Measure 49, you realize that Measure 49 simply doesn’t work.

The No on Measure 49 Website is Up!

Well, this is good news. The No on Measure 49 website is up and running. I think it looks great, and the tag line really captures what is wrong with Measure 49 - the tricks and traps that make Measure 49 nothing more than pie in the sky for Oregonians.

Now go over to the No on Measure 49 website (aka stop49.com) and sign up to volunteer to stop this horrible measure!

Don't forget to go over to NWRepublican for more information on Measure 49!

Link Removed

Apparently including a link to his website was too much for Jack Bogdanski to bear. I had included a link to Jock Bog's Blog because I think Mr. Bogdanski is fair and does a very good job on his blog of at least trying to present both sides of an issue. I never meant to imply that Mr. Bogdanski opposed Measure 49, and I appologize for any confusion this may have caused.

As for the other sites listed, I cannot vouch that any of them, or their authors, actually support or oppose Measure 49. I have simply listed these web sites as credible sources of information on Ballot Measure 49, as opposed to the blind never-think-things-through Blogs that support Measure 49 because they hate Measure 37 so very much.

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.

The Big Lie: Ballot Measure 49

If you become a frequent reader of this blog, you will quickly come to realize how bad Ballot Measure 49 is going to be for Oregonians.

Ballot Measure 49 was referred to the voters by the 2007 Oregon Legislature. Make no mistake, Ballot Measure 49 will REPEAL Measure 37, the popular property-rights legislation passed by 61% of Oregonians at the 2004 election.

Measure 49 is a result of legislation at its worst. It was drafted behind closed doors, outside of the view of the public, and the public was intentionally left out of the process. Now, the legislators who voted for Measure 49 are going to try to lie to the voters and hope none of the voters figure out the Big Lie.

That is the purpose of this Blog: to expose the Big Lie that is Measure 49.

I will go through Measure 49, and compare the actual text of Measure 49 with what the politicians claim Measure 49 will actually do. I know when you finish reading this Blog, you will find out Measure 49 is one Big Lie.