Crag Law Center

In 2004, a majority of Oregonians voted for ballot initiative Measure 37 only to later discover that the measure threatened to unravel Oregon’s land use system. The measure permitted landowners to file claims demanding that all land use regulations be removed from their land while their neighbors were still subject to these laws. Neighboring farmers and rural landowners faced an onslaught of proposals from developers and logging companies seeking to convert Oregon’s farm and forest land into residential subdivisions, gravel pits and commercial developments. Over 7,500 claims were filed in the State of Oregon. In Hood River County alone, over one-quarter of all the farmland was threatened with rampant development.

Soon after the passage of Measure 37, the Crag Law Center was asked to help local landowners and citizen groups throughout Oregon to stop the worst abuses. We responded by providing a combination of quality legal support, education, outreach and advocacy to people seeking to protect their quality of life. We halted over 200 of the largest claims by filing challenges to the implementation of the law. Since 2004, we have worked for free or at a significantly reduced rate for local citizens to hold the line and protect Oregon’s natural resource lands.

We are currently working to defend the rugged headlands on the Oregon Coast, wine country in Yamhill County and important farmland in Clackamas, Marion, Linn, Josephine, Jackson and Polk Counties. On behalf of local citizens, we are working to make sure that developers are not able to game the system and continue with their plans under former Measure 37. Our staff and volunteers are also working on a book that will capture the lessons that Oregonians have learned from its experiment with Measure 37 from a diverse range of perspectives. To support our work, The Brainerd Foundation has agreed to match every dollar we receive in support by the end of this year up to $10,000 total!! The Crag Law Center is a 501(c)(3) non-profit charitable organization and your support is tax deductible as allowed by law.

Five years after Measure 37 became law and two years after the voters passed Measure 49 to reign in the worst abuses of Measure, Crag is still working with local citizens, neighboring landowners and watchdog groups throughout the state to clean up the mess that Measure 37 created and to ensure that farmland, forestland and groundwater supplies are protected. We are handling a number of legal actions in both state and federal court.

To allow us to continue this important work, we ask that you consider making a special donation to support our work this year by sending us a check or by making a donation online through our secure giving service. By doing so at this time, your support will increase the impact and reach of our work two-fold through Brainerd’s generous matching grant.

(Medford, Oregon)  Livable Communities – Program Update. 

On Wednesday February 4, 2009, Judge Owen M. Panner issued a decision enjoining his earlier judgment that determined that a number of claims under former Measure 37 continued to be valid and enforceable. 

The Judge stayed the judgment in which he had found that waivers issued to certain claimants in Jackson County were contracts and akin to judgments that could be not modified by the people’s legislative act in passing Measure 49.

The people of Oregon passed Measure 49 in November 2007.  The Oregon Appeals Court and the Oregon Supreme Court have ruled that nothing in Measure 37 limited the people’s power to change the law. The people modified former Measure 37 through Measure 49 and extinguished the former claims under Measure 37 except in one unique instance – when a claimant could show a vested right at common law.

Rogue Advocates and other local groups intervened and filed an appeal, and then Jackson County appealed to the 9th Circuit Court of Appeals.  Rogue Advocates is a a local land use and property advovacy group, and it was joined in the defense of Jackson County’s position by Oregon Shores Conservation Coalition, Friends of Marion County and Friends of Polkc County because of concerns that the decision might have broader application and negatively impact individual property rights and community interests in public lands.

Under Measure 49, an owner of land must show a “vested right” to continue with the Measure 37 claim by showing the personal and substantial expenditure of funds towards the establishment of the proposed use.  So the people with claims under former Measure 37 that had actually built residential subdivisions or otherwise substantially established the proposed uses pursuant to valid permits are able to continue.  Those people that just have waivers, but did not expend resources to establish the use, were entitled to seek remedies under Measure 49.

The common law recognizes a property owners’ reasonable investment backed expectations to be able to continue with the use.  If a property owner made good faith efforts without notice of a pending law change.  If those on-the-ground efforts are substantial in relation to the total project and could not be adapted to other allowed uses then the owner might be vested.  For example, in Clackamas County, Judge Alexander found that 1.2 million dollars to partly put in a road network during the final months leading up to the passage of Measure 49 was not substantial in relation to a 50 unit subdivision development.  The owner did not spend the money, and the amount of money was not found to be substantial in comparison to the developer’s total project cost.

The general rule in Oregon and across the United States is that a person must have a building permit and commenced substantial construction to be vested.  What is substantial is measured in relation to the total project cost.  Remember, under former Measure 37, the owner was not able to transfer bare lots, and so evidence of countable expenditures and total project cost is crucial to a fair determination.

In Oregon law, and the same goes across the country, the kinds of nonconforming uses proposed under former Measure 37 are highly disfavored under the law and judges must carefully scrutinize the proof of a vested right.

To put this decision into context, the owners in the Jackson County sought to do an end around the people’s choice in Measure 49 to protect water supplies and rural lands.  Rather than respecting other individual property rights and and the communities interest in the system of safeguards for the use and development of land, the plaintiffs in this case sought to use bare waivers under former Measure 37 to entirely skip the steps required under Measure 49 – which requires that they follow the process in Measure 49 and prove a vested right.

The Crag Law Center submitted extensive briefing in support of the Court’s ruling and Jackson County’s request for a stay.  Judge Panner allowed Rogue Advocates into the case to submit a friend of the Court brief.  

The Oregon Courts have consistently ruled that Measure 49 was a lawful exercise of the legislative power.  Through this case, the Crag Law Center is working to support local citizens and property owners’ effort to ensure a quick and fair transition to Measure 49. Crag’c clients have joined with Jackscon County to seek an expeditious review of this decision by the 9th Circuit Court of Appeals.

Judge Panner’s ruling does not explicity address the substantive issues, but it implicitly undercuts the earlier decision by suspending the application of the Judge’s findings and making the question one for the 9th Circuit Court of Appeals.

For further coverage visit:

http://www.oregonlive.com/environment/index.ssf/2009/02/federal_judge_puts_the_brakes.html