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Measure 49 severely reduced the expectations of claimants under Measure 37, which passed with a slightly smaller margin three years earlier, but it now poses its own problems for supporters and the agencies that administer it.

The new measure reflects a maturation of Oregon voters’ judgment as to public obligations to landowners who claimed economic harm from the passage of land-use laws. This more reflective judgment now requires proof of harm and limits remedies to homesites as opposed to a wholesale roll-back of regulations.

Nevertheless, Oregon will never be the same. The obligation to pay for real economic harm will now take its place in the state’s political and legal culture in the same way urban growth boundaries and preservation of resource lands have hard-wired themselves into public expectations.

First, there’s an obligation to pay landowners for regulations that reduce property value beyond a certain level. That obligation is not based on the constitution but is a matter of statutory law and will be difficult to undo. Because neither the state nor the federal constitution would require such payments with public money, the change is significant. Never mind that the obligation requires proving the effect of each regulation on the claimant’s property value both one year before and one year after the land-use law passed, that the proof must come from a qualified property appraiser and that attorney fees and costs are not recoverable. Even if merely symbolic, it’s a significant change from past practice.

Second, there’s sympathy for expedited disposition of the 7,500 or so Measure 37 claims, which are in various stages of decision, even though other potential claims that weren’t filed are barred by the Measure 49. Unless they’re within that rare category of claims that have been pursued to the point of being “vested,” these existing claims must take one of two courses. 

The so-called “express lane” course deals with additional homes and allows no more than three if the claim otherwise qualifies (for example, the land has been held since before the offending regulation came into play). Most claims fall into this category, and the credibility of Measure 49 rests on treatment of the Measure 37 claimants in the express lane. Public agencies must not appear to violate the implicit campaign promises that these claimants would be able to build one to three homes. If delays arise in processing their claims, or claims are denied on newly invented grounds, a new crop of land-use martyrs will be created and a new initiative will be filed.

The other course provides the possibility of four to 10 homes, but only if the claimant can prove the offending land-use laws caused a loss by providing an appraisal using the value of the land one year before and one year after each of the offending laws were passed. By the end of 2008, we’ll know how many claims will follow this course and, likely, the disposition of such claims. It’s unlikely there will be many claims and, quite possibly, no successful ones. 

Third, there are about 100 or so claims in various stages of physical development. It’s likely there will be litigation over whether some of them are “vested” so as to avoid the new limitations imposed by Measure 49.

But perhaps the most lasting effects of Measure 49 are those outside or peripheral to its text. One outcome will be the greater level of care taken by state and local land-use regulators to avoid potential claims. Even if the possibility of a successful claim is not large and there is no attorney fee exposure, planners and public officials don’t want to be “tagged” with a successful claim. Moreover, the new law provides for a land-use ombudsman who will attempt to avoid claims and mitigate the harshness of regulations.

Time will tell whether the future is different from the past in Oregon land use and whether the state has profited from the lessons of these two forays of the initiative into public policy.

Some will complain that voters are more concerned about dealing with “wipeouts” for landowner expectations over the last 35 years and less concerned about recapturing some of the windfalls gained through the planning system. That inconsistency, however, has little political resonance.

Edward J. Sullivan has specialized in land-use law for more than 35 years. He is an owner in the Portland office of Garvey Schubert Barer and a former chairman of the State and Local Government Law Section of the American Bar Association. Contact him at [email protected] or 503-228-3939.