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by Matthew Larrabee
Real Estate Services Group, Inc.

Useful Web Sites

http://www.oia.org/ Oregonians in Action – sponsored Measure 37

http://www.orcities.org/currentIssues/m37.cfm League of Oregon Cities

http://www.orcities.org/currentissues/m37news.cfm League of Oregon Cities – links to newspaper articles from around the state

http://www.friends.org/ 1000 Friends of Oregon – activists’ website

http://www.registerguard.com/news/2005/01/15/a1.measure37.0115.html  1000 Friends Lawsuit against Measure 37

http://www.oregon.gov/LCD/measure37.shtml Oregon Department of Land Conservation and Development (DLCD) – explains how to file M37 claims with the State

http://www.oregon.gov/LCD/docs/planamendments/washington.pdf DLCD website, has lists of local plan amendments by county, dating back to 1987

http://www2.co.multnomah.or.us/aspnet/lup_historical_maps/historicalmaps.asp Historical Zoning Maps and Zoning Ordinances for Multnomah County

http://www.oregon.gov/DAS/Risk/docs/RegistryReport.pdf Oregon Department of Administrative Services (DAS) – Statewide registry of claims

http://www.oregonlive.com/metrowest/oregonian/index.ssf?/base/metro_west_news/1102424733156630.xml%20 Oregonian article on Beaverton’s first Measure 37 claim – wetlands setback

 

State, City and County Measure 37 Claim Information:

http://www.oregon.gov/DAS/Risk/docs/M37Form.pdf  State of Oregon M37 claim form

http://www.portlandonline.com/shared/cfm/image.cfm?id=63859 City of Portland M37 claim form

http://www.co.multnomah.or.us/dbcs/LUT/land_use/Measure37/m37_claim_form_final.pdf

Multnomah County M37 claim form

http://www.co.washington.or.us/deptmts/lut/land_dev/37letter.htm  Washington County M37 information page

http://www.co.clackamas.or.us/dtd/zoning/37/ Clackamas County M37 information page

http://www.co.deschutes.or.us/go/objectid/916553B5-BDBD-57C1-96E9F4324D8217E9  Deschutes County M37 information page

http://www.ci.eugene.or.us/PDD/Planning/M37/application.pdf City of Eugene M37 claim form

http://www.leg.state.or.us/05reg/measpdf/sb0400.dir/sb0406.intro.pdf  Oregon Senate Bill 406, sponsor, Senator Schrader (D), Canby

TEXT OF MEASURE 37

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.

____________________________________________________________________________________________

Measure 37 is consistent with existing law:

5th Amendment to the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Section 18, Oregon Constitution - Private property or services taken for public use.

Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.

Senate Bill 100 – Oregon’s Landmark Land Use Bill – 1973

Section 24, Paragraph 4 of SB 100 specifies that landowners should be compensated when regulations restrict the use of land and reduce its value. This provision was never implemented:

 

“Study and make recommendations to the Legislative Assembly on the implementation of a program for compensation by the public to owners of lands within this state for the value of any loss of use of such lands resulting directly from the imposition of any zoning, subdivision or other ordinance or regulation regulating or restricting the use of such lands.”     (emphasis added)

 

 

 

 

Matthew Larrabee, M.Arch., MAI                                                         Email Matthew Larrabee

Real Estate Services Group, Inc.                                                            Phone:  503-799-3374