by Matthew Larrabee
Real Estate Services Group, Inc.
Useful Web Sites
Oregonians in Action – sponsored Measure 37
League of Oregon Cities
League of Oregon Cities – links to newspaper articles from around the state
1000 Friends of Oregon –
http://www.registerguard.com/news/2005/01/15/a1.measure37.0115.html 1000 Friends Lawsuit against Measure 37
Oregon Department of Land Conservation and Development (DLCD) – explains how to
file M37 claims with the State
DLCD website, has lists of local plan amendments by county, dating back to 1987
Historical Zoning Maps and Zoning Ordinances for Multnomah
Oregon Department of Administrative Services (DAS) – Statewide registry of
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
City of Portland M37 claim form
Multnomah County M37 claim form
http://www.co.washington.or.us/deptmts/lut/land_dev/37letter.htm Washington County M37 information page
Clackamas County M37 information page
http://www.co.deschutes.or.us/go/objectid/916553B5-BDBD-57C1-96E9F4324D8217E9 Deschutes County M37 information page
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
The following provisions are added to and made a part
of ORS chapter 197:
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.
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.
Subsection (1) of this act shall not apply to land use regulations:
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;
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;
To the extent the land use regulation is required to comply with federal law;
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
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.
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.
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.
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.
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.
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:
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:
statute regulating the use of land or any interest therein;
rules and goals of the Land Conservation and Development Commission;
government comprehensive plans, zoning ordinances, land division ordinances,
and transportation ordinances;
service district regional framework plans, functional plans, planning goals and
and administrative rules regulating farming and forest practices.
(C) “Owner” is the
present owner of the property, or any interest therein.
entity” shall include the state, a metropolitan service district, a city, or a
(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.
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)