Measure 49 Spawns New Litigation

Measure 49 Spawns New Litigation
by Ross Day, Director of Legal Affairs
Oregonians In Action Legal Center

One of the chief complaints about Measure 37 made by property rights opponents was that under Measure 37 hundreds of lawsuits were filed. What property rights opponents filed to mention, however, was that most of those lawsuit were filed by neighbors who were trying to stop property owners from regaining and exercising the rights stolen from them some 30 years ago.

If the standard we are going to use to determine whether a new law is successful is the number of lawsuits that result from the passage of the new law, then I am confident Measure 49 will get a low grade.

Moreover, if the number of lawsuits created by a law is the measuring stick, Senate Bill 100 (the land use law enacted in 1973) is by far and away the worst law ever passed.

Measure 49 was so poorly written (probably because it was written behind closed doors, without any public input) that the only way to resolve the many irregularities and inconsistencies is through the courts. Over the coming weeks, months, and probably years, I will use this space to keep you abreast of recent developments on the Measure 49 litigation front. Please also check out our website at for more information.

Right now, as the Looking Forward is going to print, there are not many cases to report on. There have been a couple of adverse circuit court decisions in Clackamas and Multnomah counties, where the courts have held that Measure 49 completely repeals all previously-issued Measure 37 waivers. However, these are simply circuit court decisions, not binding on other circuit courts, and these decisions seemingly conflict directly with the Court of Appeals’ decision in DLCD v. Corey.

The Oregonians In Action Legal Center recently filed a challenge to DLCD’s temporary rule that purports to “expire” all existing Measure 37 waivers (see Legal Center Fights Measure 49 Rule, page 11). If successful, a property owner’s Measure 37 Waiver will continue to be in full force and effect.

Finally, in Frank v. DLCD, the Oregon Court of Appeals held that a Measure 37 claimant’s administrative challenge to the state of Oregon’s decision that a property owner is not eligible for relief under Measure 37 is “moot” now that Measure 49 has become law.

Because of the Court of Appeals’ decision in Corey, the Frank case can be read to apply to a narrow subset of Measure 37 claimants whose claims were denied because the state (or local government) determined the property owner was not eligible for relief under Measure 37. The Court’s decision in Frank may not apply to those cases where the state or local government determined a property owner was eligible for relief and issued a waiver, even if the waiver wasn’t exactly what the property owner had asked for. Put another way, if the state of Oregon or your local government issued you a waiver, and the waiver restored some — but not all — of the rights to which you feel you were entitled, the Frank decision may not affect your claim. Please continue checking this section as well as for updates on this and other cases relating to Measure 49.

As property owners move forward into the morass that is better known as Measure 49, they can rest assured that the Oregonians In Action Legal Center will be leading the way, defending the rights of property owners in Oregon, and making sure Measure 49 delivers on the promises made by its supporters.

— This article was featured in the OIA Education Center Looking Forward magazine

  • Jerry

    Keep up the good fight against these dishonest phony politicians. Thanks for all that you do!


    Wouldn’t it be funny if M-49 was thrown out by the Supreme Court?

    • carol

      C’Dude, that wouldn’t be funny, that’s more on th eline of super-cool. I do believe I’d break into the ol’ bubbly, and CELEBRATE!!

  • Steve

    Good thing M37 development and housing was killed by M49.
    We’re better off with government planned devlopment like this.

    *”It would seem to be bad news all around for the city’s hopes of creating a new downtown around MAX light rail.”*

    This is another *Cascade Station* flop with many millions in tax dollars wasted.
    and more to follow

    Beaverton Round setbacks,
    the Round is behind schedule,
    Developer lost financial backing
    developer at Round at Beaverton Central behind schedule
    company in default for the second time.
    The city and Metro paid $4.9 million in 2005 for the new site.
    goal is to develop a $100 million mixed-use development similar to the Round,
    But the Round is unfinished, with three buildings out of seven yet to be built.
    City leaders are mulling their next move
    lender filed a foreclosure notice in Washington County
    control of several buildings to a New York City hedge fund.
    The Round has struggled since 1997, when the city sold the former site for mixed use
    first developer declared bankruptcy,

  • Bob Clark

    M 49 only points out how easy it is to fool the Oregon electorate. Many voted for 49 thinking they were stopping massive housing developments. What they fail to realize is massive developments are still going to get built, only they will get built because of backroom deals between government officials and their favorite developers. Moreover, if not as many get built, it’s because a certain amount of land is, in effect, set aside for country estates affordable for only the wealthy and connected class folks. Government control squeezes the rest into concrete bunker-like condos or row houses.

    • Chris McMullen

      You hit the nail right on the head, Bob. I know a developer that’s very well connected with one of Oregon’s most affluent city councils. The back room deals and horse-trading that goes on is sickening.

      • carol

        Oh man, you are so right! I saw it happen in SoCal, and on a smaller, slower scale, that’s what will happen here!!!

  • Jackson

    M37 gave claimants a cause of action for damages in the form of diminution of property value from land use regs imposed after they bought the land.

    By issuing waivers, the County escaped the liability for monetary damages and the claimants got a promise they could use their land according to their expectations when they bought it.

    Since the County got its benefit of the bargain, I can think of no good reason in law or justice why the claimants shouldn’t get their benefit.

  • dian

    I thought there was a law passed in Oregon fobidding the use of ballot titles that were misleading. If I’m right, what happened to it?


      It only pertains to citizen initiatives, M49 was submitted by the legislature so they were able to use a misleading ballot title.

      They are working on the same thing for a alleged crime ballort measure that is supposed to compete with the Mannix sponsored one in November. The difference being is that Mannix title name had to be okayed by the Bill Bradbury, where as the toothless legistative one will be decided on by the people who wrote it.

      It would seem that the liberals don’t like going by the rules they make for everyone else.

  • dean

    Ross…maybe your “standard” for a bills success is the number of lawsuits for or against. Mine is the results on the ground.

    In reading your post, it sounds like:
    1) not much to report
    2) mostly adverse decisions for M37 claimnants
    3) one partial win in Corey?
    4) one loss in the Frank case that may have mooted Cory?

    Lots of thunder and fury. Not much results. And meanwhile most M37 claimnants appear satisfied with the 1-3 home fast track, which seems to be working as advertised.

    To Bob C…it seems to me people voted for M49 to stop large developments from being built where they do not belong, not to stop them altogether.

    “Country estates,” i.e. 1-5 acres either buildable or with an existing home, within an hour drive of any city in the W. Valley, are available for a price that is about the same as you would pay for a Portland rowhouse. Check the real estate listings if you do not believe me.

  • Neal

    within an hour drive of any city?
    well so what. Is that supposed to mean something?
    Every major city in Oregon is ringed with McMansions and few can afford anything with land close in. Sure an hour away there’s more affordable land but what good does that do for anyone working in or near the cities? Or for families with activities in the city?
    You’re missing the point. There’s cheap land in umatilla county too.

    People voted for M49 to stop large developments from being built where you told them they don’t belong.
    But you’re not honest.
    That’s why you don’t comment on the planners subsidized developments going where they don’t belong. Like the Round.

    And what’s the preference in large developments by our government planners anyway? They know best? They do it better?

    • dean

      OK Neal…then make it a half an hour drive of Portland. Check the prices. I’m not talking McMansions. My house is 1400 square feet, on 5 acres, 30 minutes from Downtown Portland. You can buy houses on acreage all around me for what you would pay for a Portland house on a 5000 sq foot lot, or even a rowhouse in an inner neighborhood. I’m saying the sort of choices you and Bob seem to want are already available and listed for sale. So where is the beef?

      • CRAWDUDE

        The beef was recalled recently….

        • dean


          • dean

            Cd…never mind. I just got it. DOH!

          • CRAWDUDE

            Lol, sorry, I couldn’t resist 😉

      • rural resident

        There’s a great deal of real estate for sale now because the bottom has fallen out of the market. In more normal times, the supply of reasonably priced acreage with a house or without one, but where one can be built with reasonable effort, is fairly scarce.

        Let’s assume that there is always a great supply of reasonably priced houses available on acreage that at least has a semi-rural feel to it. Why would people worry about huge residential subdivisions of this type being created? There wouldn’t be much of a market for it.

        • carol

          Unfortunately, there are a lot of people who go for ‘flash’, 5 large bedrooms, 4 baths, for a family of four. Pseudo bungalows, or what’s the latest, Tudor, with as many square feet in the house, as in the lot. big kitchens, with the latest appliances, master suite, and lush bath. It’s the ‘American way’, ya know. Gotta stay ahead of the Jones, whoever the h— they are. Whatta way to live, or shall I say exist. When one has really arrived, s/he can buy 5 acres with an old house, demolish it, and build a real ‘home’. ‘Scuse me while I take a deep breath.

        • dean

          RR…I have been tracking the rural residential, small acreage market locally ever since we bought this place in 96. Plus I tour through the Willamette Valley fairly frequently. My observation over that time is that the supply of ex-urban housing within an hour of all Valley cities has been sufficient to meet demand overall, and that prices have gone up at about the same rate as prices in urban areas…maybe even a bit less. The value of my property has probably doubled since I bought it, while my ex-wife’s Portland House probably tripled over the same time period.

          If I were an economist, I would conclude (assuming reliable data supports my observations) that the core beef expressed above, that home buyers are being “forced” to buy stuff they really don’t want within UGBs because outside it has gotten too expensive, is just not factually correct. There is a lot of demand for housing in older, walkable, transit friendly neighborhoods. And this is a national, not just a local happening.

          That is not to say that if someone could have built a rural subdivision from 95 up until last year that there would not have been buyers. Because the interest rates dropped, and because the high tech bubble burst, a housing bubble built nationally, there were a lot of speculative buyers, a lot of former renters who jumped in to avoid losing out, and a developer could have sold pretty much anything as long as the product met the price point.

          So why worry? Because building ex-urban residential subdivisions impacts economically and environmentally important farm and forest land, permanently clutters up a geographically limited valley, and ends up costing everyone in unaccounted for sprawl related expenses.

          Having said that, I have come to the conclusion (after many years of supporting the status quo ante of Oregon planning) that “the planners” (by that I include policy makers and urbanists) have unfairly discounted the fact that some number of us prefer rural to semi-rural living, yet we are not full time farmers. So we need an adjustment that retains existing rural clusters (present land use policy says these should be urbanized first), and opens the possibility to create new ones in appropriate places.

          What prevents this reasonable adjustment is fear of opening that door on the part of my side of the aisle, and property rights fundamentalism by the other side.

          I’m hoping reasonableness prevails on the Big Look committee.

  • Donna

    M37 was the “adjustment that retains existing rural clusters (present land use policy says these should be urbanized first), and opens the possibility to create new ones in appropriate places”.

    Yet dean supports the spending of countless millions for more status quo while claiming we are saving money by stopping sprawl.

    That’s one of the biggest lies around the land use and transportation arenas. The billions devoured by massive planning bureaucracies, rail transit, Metro schemes and widespread subsidizing of their central planned development has not only spent far more that reasonable private expansion but it has left our basic services and infrastructured vanquished for funding and maintenance.
    Among many other detriments. All of which are ignored or justified by the strawman limitation that our only other choice would have been completely unregulated sprawl. Never mind many other state shave reasonable zoning regulations and manage to preserve their natural beauty.
    The dysfunctional approach dean supports is on full display in his own Damascus community with Metro’s lenghty and costly repeat of the bad planning model we have witnessed throughout the region.
    And Milwaukie where light rail and Metro’s high density is coming the same lies are being told that preceeded the wasteful Round at Beaverton, Cascade Station, SoWa and many other Metro schemes.

    • dean

      Donna…you did not respond to what I actually wrote.

      M37 did nothing to retain existing rural housing clusters. It did open the door for new ones, and M49 keeps that door open to a lesser degree.

      And your preferred model of planning is what?

  • Donna

    What the heck are you talking about? I even quoted you.
    I think you are mixed up.

    M37 was the “adjustment that retains existing rural clusters and opens the possibility to create new ones in appropriate places”.

    You then say
    “M37 did nothing to retain existing rural housing clusters.”
    Now that’s quite a stunt dean.
    M37 did nothing to existing rural clusters so how did it not retain them?
    There was nothing wrong with M37 development at all. It would have done exactly what you say is needed. Despite your fabrications to the contrary.
    M37 did open the door for new ones, and M49 slammed the door on most. Leaving most development to be determined at the hands of the status quo planing Damascus et al.

    It’s amazing that in exchange after exchange you still can’t even grasp whay my and other critic’s preferred model of planning is.
    You are too used to blocking out every alternative but rampant unregulated sprawl as you justify the excessive central planning we have.
    How does one put into words what you will comprehend?

    I’m not sure it’s possible.
    In any form to any degree.

    You’ll immediately digest any proposal as throwing the baby out with the bathwater.

    On the surface it’s clear to many that a preffered model would not include any light rail or the subsidized TOD-high density schemes such as the Beaverton Round, Cascade Station, SoWa and many other costly boondoggles.

    While at the same time leaving intact the bulk of zoning regulations including environmental protection and habitat preservation. Which is exactly what M37 did despite your false depiction to the contrary.

    A preferred model would also include a genuine use of the UGB as intended versus the hijacked version Metro uses now to block all development for years after expansions.
    A genuine use of SB 100 and the UGB policy would provide a 20 year supply of land for all uses and not hold them hostage to grand schemes and master planning under the false pretense that this glacial paced and costly process is the only way to provide basic services and grow.
    In reality it’s chaos without regard for the needs of growth at all.
    Selected UGB expansions for varried uses is haphazard without a comprehensive function anywhere is sight.
    Housing in Damascus, jobs in Hillsboro, industrial land void of market considerations and isoltated in scattered pockets.
    Huge sums spent on islands of so-called mixed use smart growth selelcted under more false pretenses that they somehow make up for the locked up land everywhere else.
    M37 would have been better as a replacement for what Metro has planned by a long shot. We don’t even need Metro.
    Not even Damascus where you live.
    There are MANY existing parcles of land all over the region which are adjacent to existing services with excess capacities yet prohibited from use by our bad planning. Yet LESS shovel ready parcels are on Metro’s drawing board. Land gets approved for housing next to busy streets, highways and gravel quarries while nearby land more suitable for housing is mislabeled and locked up by prohibitions.

    In Taualtin housing developments have been located so close to a rock quarry that residents are distrubed by frequent blasting.
    Yet again, land in same vacinity (even closer to services) yet further away from the quarry is locked up.
    ON Hyw 99 new high density row housing in Sherwood has front doors steps from the highway traffic while better housing land
    is nearby and far more sutiable for PEOPLE.
    We’re putting people where commercial uses should be and calling it smart. All over Washington County and other areas the same thing has been happening.
    That’s why it is accurate to call it chaos.
    And all the while enoumous sums are being devoured by the new urbanism push that ignores it all and only pretends to be the better alternative to the extreme opposite of zero planning and zoning.
    Or the strawman no one is advocating.

    But during the whole M37- M49 debates those who support chaos cast M37 as an end to all zoning and reasonable protections for Oregon. So now it’s on with the show and more chaos.

    Millions and another decade will be devoured by Metro’s preferred planning for your Damascus alone. The outcome is entirely predictable. It will be a costly colorful, unfunded scheme with labeled “sustainable” high density centers, large tracks of prohibited use open space and no relationship to the needs of growth at all.
    Perpetual subsidizing will be required for every phase just as is with Gresham now 25 years into the MAX madness and TOD fraud.

    No one can honestly say Gresham is even a better alternative to Vancouver.
    Yet you somehow are convinved our status quo preferred model of planning is the only way we can grow.

    There’s 50 states with 50 different versions and we don’t have it right.

    • dean

      Donna….existing rural housing areas near urban growth boundaries are the first areas targeted for urban expansion because our state land use system does not recognize these as equal value to farm and forest land. M37 did not change this aspect of state law, nor did the M49 adjustment.

      OK, I get what you don’t like. But can you and/or other critics of planning articulate your “model” for how and where we locate 1 million aditional people, along with the additional road capacity, employment centers and commerce? M37, even if it had not been changed, would only have accomodated a small percent of what is coming. And it had zero to say about funding the needed facilities: water, sewer, schools, roads, parks, to serve more people.

      We have 26 cities, 3 urban counties, and 1 regional government who all attempt to create policies to deal with growth within the laws of the state. We only have so much useable space (within shouting distance of Portlnad). We have to keep streams and rivers relatively clean (federal law, plus we drink the stuff). We have a farm and forest economy to think about. What is your alternative plan?

      You are partly right, partly wrong on Damascus. Our elected, volunteer city council is trying to plan a city that works for everyone. Yes, some lands are inherently less suitable to be developed than other lands, but that is nature, not politics. Water flows downhill, and we can’t repeal that.

      There is no such thing as “prhobited use” open space in Damascus. ALL lands are already restricted as to use, some more than others. The new zoning being developed will increase options for most landowners, again based primarily on the nature of the land.

      I don’t much like Vancouver OR Gresham to tell the truth. And yes, our system does not have all the answers. There are better models out there, we can agree on that much. But we probably don’t agree on which models are better.