Fix Measure 49 Questions and Answers

18) "The Big Look" => "The Little Peek"

1. What do you mean, 0 buildable lots inside the UGB?

NO buildable lots are guaranteed; UGB areas don't have even the "guaranteed" 3 promised to owners in water limited areas! (Section 9) (see #Q10). And none are possible without applying the "Financial Formula" (see #Q6); which will not allow building!

Does all the land in your application have to be in the UGB? No - if any part is, the entire application is treated as being in the UGB (Section 5(1) and (2); Section 9 (1) "... for property located, in whole or in part, within the urban growth boundary ...") et al

If you are covered by METRO, forget it - they have denied 23 out of 23 applications, and this new law specifically allows them to kill any application. (Section 9 (9)). In fact, it appears that if you have already been turned down by METRO, you can't even reapply! In addition, property must currently be zoned residential to qualify! (Section 9 (5) (e))

2. You claim 1 new lot outside the UGB; with 3 maximum?

Although Measure 49 "guarantees" 3 buildable lots outside the UGB, you must subtract from this any houses you already have on these properties. (Section 6 (2) (6); Section 6 (1) ) (Exception: If you applied strictly for commercial or industrial uses, you are out of luck (see "commercial / industrial"), or if any part of the lots in you application are within the UGB, its all treated as in the UGB).

Assuming you already have residences on any of the lots within the application, Measure 49 guarantees only 1 buildable lot.(Section 6 (2) (c)) Also, Measure 49 does not guarantee 3 lots per "property", but rather 3 lots per "Application". (see #Q3)

Example: 3 lots each with one house on one Measure 37 application. Measure 49 would only guarantee 1 new buildable lot; and where it will be placed is the States option.

The only exceptions to 3 buildable lots per application would be "vesting" (see #Q13); or use of the "financial formula" (see #Q6) - an option that would never grant more than 0 - 1 new residences!

3. What do you mean, per "Application"?

When applicants applied for Measure 37, they were told that all contiguous properties with the same owner needed to be on the same application. Now Measure 49 wants you to pay for that! The "guaranteed" minimum applies to each application, not for each lot owned. Those with contiguous lots effectively lose their rights for all but one lot; even though the State of Oregon can - and almost certainly will - put any new construction on one lot!

4. Can't I just apply for up to 10 lots?

NO is the simple answer; and its true if you are in "high value" farm or forest - which is 90% + of the time (an analysis of Clackamas County showed this was true over 99% of the time). Remember, 10 houses only covers about 3/4 of one acre! (plus additional road) If you get past this point (unlikely), you must determine if you are in a viticulture (grape / wine) area. The Willamette Valley viticulture area alone is 3.5 million acres! If you are in one of these areas (as the vast majority of Oregon's population is!), you must be on a slope facing due north to qualify! (Section 2, (10) c (e) "Land that is an exclusive farm use zone and is at an elevation between 200 and 1000 ft above mean sea level, with an aspect between 67.5 and 292.5 degrees and a slope between zero and 15 percent ...") (disqualified)

5. What about my Appraisal?

They will be expensive - our best guess is 10k - 15k. This is because:

MAI appraisers are expensive; costing thousands for simple appraisals
most appraisers will not do them for any price for Measure 37 / 49 properties - the data is scarce, hard to come by, and easy to dispute
multiple appraisal dates (one year before and after every law change)
any attempt to use the financial formula must assume a lawsuit challenge
(See getting sued and legal costs below)
All property taxes due and paid, including severance, ad valorem, deferred
appraiser must calculate current value of lots proposed

Furthermore, your appraiser is required to define "highest and best use" at every stage. If your highest and best use is other than residential (or your opponent proves it is other than residential in a lawsuit), you lose your right to build on the property! (Section 7 (7))

6. What about the Financial Formula?

The financial formula is one of the cruelest parts of Measure 49. It has been designed to fail. It requires you to first obtain an appraisal (see #Q5) to establish your net loss for each of the above laws, and obtain the current value for your lots. The more your lots are worth, the more certain you are to fail. This is because your loss is carried forward at a 1 year T-bill rate (3% the last 6 years, 5% overall), taxes paid (or will pay) when recording your subdivision are added to this, and then divided into this is the current value of your lots.

Example: You bought your land in 1979 for $39,000. You could divide this into 10 one acre lots at the time of purchase; but now you are in the City of Damascus. How many lots can I get?

1) Assume you lost 33% of your value in 1979 when a law changed
2) Carry this loss to now using the T-bill rate: $65,000
3) Add to this taxes you will pay - or already have paid - of $10,000
4) Add all application costs, including appraisal, NOT to exceed $5,000
5) Divide into this the current value of the lots: $200,000

(65,000 + 10,000 + 5,000) / 200,000 = (.40) new lots (40/100)

Although Measure 49 does not discuss whether you round out this number (>.5 for each lot) or, as we suspect, you must exceed it (>1); NO buildable lots where allowed in this example.

Additionally, all uses of the financial formula are - and will be - disputable. Anyone in the State can sue you if they want to; and even if you win your legal costs are not recoverable! (see #Q7 / #Q8).
(Section 7 (6) (Outside UGB) ) (Section 9 (6) (Inside UGB))

7. What are my chances of getting sued?

Congratulations - your chances of getting sued are excellant. We do not believe that the big environmental groups that are funding Measure 49 for over $1M will sue many of those going for the "express" option (3 or less lots outside of the UGB); they will be primarily attacking those who try to use the financial formula. (Section 16)

However, there may be several exceptions. Your neighbors may sue you. Or, if you have property they want, you may be sued by anyone. In fact, Measure 49 specifically allows any government to "purchase" your buildable interest (see Government condemnation below). (Section 11 (8) ; also ORS 195 and ORS 94.531)

8. How much of my legal costs can I recover?

You can recover no legal costs. Even if you win. This is because Measure 49 specifically eliminates the attorney provision of Measure 37; Section (6) "... 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".

9. How long will my claim take?

We believe that an express claim would currently be processed by June 2008. This is the existing deadline for a one year extension already passed by the legislature (this is not clear, however, the bill just says a "report" by March 31st; before applications are even sent out!). (Section 8(6))

Applications under Measure 49 to reapply will be sent out within 5 months (120 days from December 5, 2007) of passage (beginning of April, 2008); applicants then have 90 days to agree to 3 or less lots, or lose their rights forever. (Section 8 (1), and Section 8 (3) )

If are filing for more than 3 lots, times will be considerably longer (a year or more); and you will give up forever your "guaranteed" minimum lots. Naturally, the legislature can vote in a time extension at will.

10. Does Measure 49 protect limited groundwater?

At best Measure 49 gives limited groundwater the same development rights as any other application (and more than those within the UGB!). At worst, Measure 49 eliminates the States Water Resources Department or Water Resources Commission from enforcing a water mortitorium - which would otherwise be its statuatory right. (Section 2 (9) and Section 7 (1))

11. What happens if I filed for commercial or industrial?

You are out of luck. No commercial or industrial applications will be allowed. What if my appraisal specifies highest and best use is commercial or industrial? You are doubly out of luck - you lose your right to build residences on the property! (Section 7 (8))

12. I heard this bill authorizes government condemnation?

This bill refers to Section 11 (8). We have mixed feelings about this provision. Although we are in favor of the Government not losing money on payouts, and this provision seems to call for a voluntary participation, we are somewhat concerned about the conflict of interest. After all, it allows the "buyer" (government) the right to decide if - and how - you qualify for your claim!

13. Does Measure 49 discusses "Vesting"?

Vesting must be completed by December 5, 2007. If you do not already have an approved - or almost approved - subdivision or partition now, you are already too late.

Vesting means more than a completed and recorded subdivision or partition. You must also show substantial completion of each unit you wish vested.

- What is substantial? We don't know; in one landmark case in Oregon building an approved and permitted foundation qualified. Talk to a knowledgeable attorney.

- Who will decide? If you have already received occupancy permit for the structure, you are approved. If not, you will have to have a judge decide - and remember, win or lose - no legal costs are reimbursed. (Section 5 (3))

14. What about future Measure 37 claims?

No future Measure 37 claims are allowed for any law passed prior to January 1st, 2007. Claims can be made for laws passed after January 1st, 2007. An appraisal showing the amount of loss will have to be done and "reasonable" fees paid. The application will have to be submitted within 5 years of the passage of the law. (Note - any laws passed from the 7th of December 2006 through December 31st, 2006 appear to be exempt from any claims). (Section 13)

15. What else is in this bill?

5 acre grapes exclusion .... 2-5 acre maximum lot size .... change of venue (lawsuits) .... application costs .... home clustering .... contract foreclosures .... This bill is FULL of intended and unintended consequences; most of which are bad for the land owner!

Many more consequences of this 24 page bill will surface in the future if it is passed. Join Fix Measure 49 in fighting this catastrophe, and helping get a new compromise on the legislative agenda in February, 2008.

16. How is the wine industry involved?

85% of all Oregonians live in viticulture areas! Measure 49 insures no building beyond the “guaranteed” minimum of 0 - 3 (see #1 / #2) on farm land that is in one of these areas unless it is on a North facing slope; or if the land is predominantly on a North facing slope! (Lawsuits will decide which; Measure 49 is not clear on this point. See #8).

Section 2(10)(e) et al includes the following viticulture areas, and include (per Wikipedia):

-Willamette Valley (most or all of Multnomah, Washington, Clackamas, Polk, Yamhill, Columbia, Marion, Benton, Linn, Lane County to Eugene)

-Southern Oregon (most or all of Lane, Douglas, Coos, Curry, Josephine, and Jackson counties)

-Umqua Valley (included in Southern Oregon)

-Rogue Valley (included in Southern Oregon)

-Columbia Valley (half of Sherman, Gilliam, Morrow, Walla Walla, Umatilla, and Union counties)

-Columbia Gorge (most or all of Hood River and Wasco counties)

-Snake River Valley (most or all of Baker and Malheur counties)

-Walla Walla Valley

As of 8/31/07, the wine industry, or affiliated family members, appear to have made the following contributions to the Yes on 49 campaign:

-Ponzi	$1000
-Ken Wright Cellars	$1000
-Eric Lemelson		$100,000
-Elk Cove	$1000
-Dorothy Lemelson		$100,000
-ADEA Wine	$1000
-Eric Lemelson		$100,000
-Richard Erath	$1000
-Nancy Ponzi	$500
-Stone Wolf Vineyards	$1000
-Eric Lemelson		$125,000
TOTAL	$431,500

17. How many public hearings has Measure 49 received?

Measure 49 has never had a public hearing.

It was called HB3540 in the legislature; and was assigned to the joint Land Use Fairness Committee for discussion. Through version 4 of this bill (a drastically different animal!), there were numerous public (and 14 private) discussions. When a public hearing to discuss version 4, the public hearing was cancelled, version 6 was introduced, and voted for that night. Many legislators on the committee had not even seen the bill!

This bill then went to the House for a vote, to the Senate for several weeks (never a public hearing); and then, after several changes, was re-voted for in the House (still no public hearing!)

This bill was then named Measure 49. Causing further turmoil is the fact that the key democrats that wrote this bill utilized a seldom use provision allowing them to write their own ballot title; and not have the title subject to review (as is normal) by the Oregon Court system!

18. "The Big Look" => "The Little Peek"

In 2005, the Governor set up a task force known as the “Big Look”. It opened with great fanfare; and was scheduled to report to the legislature in 2009 regarding Oregon land use regulations. Many of us felt that if something like this had been done at the demise of Measure 7 years ago, there would have been no Measure 37; but better late than never!

Despite the fact that this committee consisted of moderates - with strong controls to make sure that none of the “hard core” land use reformers could attend - changes to Oregon’s 1970's land use policies (SB100) were discussed. This was apparently too much for the power elite.

At the end of the 2007 legislature, a bill was passed to eliminate all funding for this group (now known as the “Little Peek” in many circles!). **Click here** for information on the governor'explanation for no funding. We strongly endorse funding this group during the February 2008 legislative session.