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Legal Information
Vested Rights Guidance
January 1, 2008
 

Communications from Oregon Department of Justice
April 10, 2006
 
 
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May 9, 2006
 
Below is a letter of advice from the Oregon Department of Justice to the Oregon Department of Revenue addressing questions relating to the impact of Measure 37 on property tax administration and the work of county appraisers.
 

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March 1, 2005
 
Initial Q & A

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Feb. 24, 2005

Supreme Court Reinstates Measure 37
March 9, 2006
 
On February 21, 2006 the Oregon Supreme Court issued its opinion in the MacPherson vs. DAS case [link to decision] reversing the trial court decision and upholding Measure 37 as constitutional. Measure 37 claims against the state have been on hold since the trial court ruled last October that the measure was unconstitutional.
 
The Supreme Court decision is effective on March 13, 2006, the date the trial court enters its judgment on remand.
 
Starting on March 13, 2006, the Measure 37 claims process will resume. The following information summarizes how the state will handle Measure 37 claims:
  • New Claims. New claims may be filed beginning on March 13, 2006 (not before). All claims that are based on state land use regulations must be filed with the Department of Administrative Services. For instructions on filing a claim with the state, see [Department of Administrative Services, Measure 37].
  • Claims filed before October 25, 2005, but not acted on. The state will resume processing claims that had been filed, but that had not been acted on, prior to the entry of the trial court judgment on October 25, 2005. As to those claims, the period from October 25, 2005 until the entry of the trial court judgment on March 13, 2006 (139 days) will not be counted as part of the 180-day period for acting on state claims. For example, if a claim was at the 150th day of the 180-day period on October 25, 2005, the time period for processing the claim will resume on March 13, 2006. Claims filed prior to October 25, 2005 do not need to be re-filed.
  • Claims filed after October 25, 2005.  If you filed a claim with the state after October 25, 2005, and before March 13, 2006, that claim should have been returned to you, and you will need to refile it with the Department of Administrative Services. For instructions on filing a claim with the state, see [Department of Administrative Services, Measure 37].
  • Claims where final orders had already been granted. Any orders issued by the state that allowed a Measure 37 claim and decided to not apply (to waive) a land use regulation prior to October 25, 2005, will be in effect according to their terms beginning on March 13, 2006.
For further information on filing a claim under Measure 37, see [Department of Administrative Services, Measure 37].

Information About the Election
On Nov. 2, 2004, Oregon voters passed Ballot Measure 37 by 1,054,589 (61%) to 685,079 (39%).
 
The measure provides that the owner of private real property is entitled to receive just compensation when a land use regulation is enacted after the owner or a family member became the owner of the property if the regulation restricts the use of the property and reduces its fair market value. In lieu of compensation, the measure also provides that the government responsible for the regulation may choose to "remove, modify or not apply" the regulation.
 
The measure became effective on Dec. 2 (30 days after the election).
 
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Explanatory Statement in Voters' Pamphlet
 
The following statement appeared as the official expanatory statement of the Measure in the 2004 Oregon General Election Voters Pamphlet:
 
"Ballot Measure 37 adds a new statute to ORS chapter 197. As specified in the measure, the owner of private real property is entitled to receive just compensation when a land use regulation is enacted after the owner or a family member became the owner of the property if the regulation restricts the use of the property and reduces its fair market value.
 
"If a property owner proves that a land use regulation restricts the use of the owner´s property, and reduces its value then the government responsible for the regulation will have a choice: pay the owner of the property an amount equal to the reduction in value or modify, change or not apply the regulation to the owner´s property.
 
"The measure allows the state, county, city or metropolitan service district to adopt procedures for processing claims for compensation, but prohibits those procedures from being treated as a prerequisite to the filing of a claim in circuit court.
 
"The measure does not apply to commonly and historically recognized public nuisances, public health and safety regulations, regulations required to comply with federal law, and regulations restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing.
 
"The measure specifies that compensation is due if the regulation remains in force 180 days after the owner makes written demand for compensation. After that time, the present owner may file an action in the circuit court in the county in which the property is located. The measure also specifies that the present owner is entitled to reasonable attorney fees, expenses, costs and other disbursements reasonably incurred to collect compensation.
 
"The measure provides no new revenue source for payments, if any, required under this measure.
 
"The measure defines several terms that are used in the statute including "family member" which is defined as wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property."
 
Committee Members / Appointed by:
David Hunnicutt / Chief Petitioners
Dale Riddle / Chief Petitioners
Bernie Bottomly / Secretary of State
Patricia McCaig / Secretary of State
Jack Roberts / Members of the Committee
 
(This committee was appointed to provide an impartial explanation of the ballot measure pursuant to ORS 251.215.)
 
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Text of the Measure
 
The following provisions are added to and made a part of ORS chapter 197:
 
(1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.
 
(2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.
 
(3) Subsection (1) of this act shall not apply to land use regulations:
 
(A) Restricting or prohibiting activities commonly and historically recognized as public nuisances under common law.  This subsection shall be construed narrowly in favor of a finding of compensation under this act;
 
(B) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;
 
(C) To the extent the land use regulation is required to comply with federal law;
 
(D) Restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing.  Nothing in this subsection, however, is intended to affect or alter rights provided by the Oregon or United States Constitutions; or
 
(E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.
 
(4) Just compensation under subsection (1) of this act shall be due the owner of the property if the land use regulation continues to be enforced against the  property 180 days after the owner of the property makes written demand for compensation under this section to the public entity enacting or enforcing the land use regulation.
 
(5) For claims arising from land use regulations enacted prior to the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the effective date of this act, or the date the public entity applies the land use regulation as an approval criteria to an application submitted by the  owner of the property, whichever is later.  For claims arising from land use regulations enacted after the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criteria, whichever is later.
 
(6) If a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation under this act, the present owner of the property, or any interest therein, shall have a cause of action for compensation under this act in the circuit court in which the real property is located, and the present owner of the real property shall be entitled to reasonable attorney fees, expenses, costs, and other disbursements reasonably incurred to collect the compensation.
 
(7) A metropolitan service district, city, or county, or state agency may adopt or apply procedures for the processing of claims under this act, but in no event shall these procedures act as a prerequisite to the filing of a compensation claim under subsection (6) of this act, nor shall the failure of an owner of property to file an application for a land use permit with the local government serve as grounds for dismissal, abatement, or delay of a compensation claim under subsection (6) of this act.
 
(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.
 
(9) A decision by a governing body under this act shall not be considered a land use decision as defined in ORS 197.015(10).
 
(10) Claims made under this section shall be paid from funds, if any, specifically allocated by the legislature, city, county, or metropolitan service district for payment of claims under this act.  Notwithstanding the availability of funds under this subsection, a metropolitan service district, city, county, or state agency shall have discretion to use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to subsection (6) of this act.  If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property.
 
(11) Definitions – for purposes of this section:
 
(A) “Family member” shall include the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property.
 
(B) “Land use regulation” shall include:
 
(i) Any statute regulating the use of land or any interest therein;
(ii) Administrative rules and goals of the Land Conservation and Development Commission;
(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;
(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objectives; and
(v) Statutes and administrative rules regulating farming and forest practices.
 
(C) “Owner” is the present owner of the property, or any interest therein.
 
(D) “Public entity” shall include the state, a metropolitan service district, a city, or a county.
 
(12) The remedy created by this act is in addition to any other remedy under the Oregon or United States Constitutions, and is not intended to modify or replace any other remedy.
 
(13) If any portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect.
 
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Link to Ballot Title