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