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.
