After 45 years of law practice, I am retiring at the end of 2014. While I will continue to write this column for a little longer, here are some thoughts on the evolution of Oregon land use law over that time.

I graduated from Willamette University College of Law in 1969, having come to Oregon only three years previously and knowing no one when I arrived. Fortune directed me to Washington County, a very different place than it is now, to become an Assistant County Counsel, and in less than 18 months, County Counsel.

Fortune also smiled in giving me the Fasano v. Board of County Commissioners of Washington County case to brief and argue. This case involved approval of a manufactured home park in a suburban residential area now part of Tigard. But the case was a vehicle to ponder the way that Oregon views small area rezoning and the relationship of the comprehensive plan to land use regulation.

While the county lost in 1973 because the findings (which I did not write) were inadequate, the case formed a solid basis for Oregon land use planning by requiring county land use regulations and actions to “carry out” a required comprehensive plan and treating small tract rezoning as “quasi-judicial” actions, requiring hearings officers or bodies to allow the presentation and rebuttal of evidence, to avoid or reveal ex-parte contacts, and to justify their decisions by findings.

A similar case in 1974, Baker v. City of Milwaukie, required that cities align their regulations and actions to their plans as well. I was fortunate enough to appear as an amicus curiae before the Oregon Supreme Court on behalf of the predecessors to the American Planning Association and even more fortunate to be allowed to present oral argument to the court. These cases aligned well with the emerging Oregon planning system enacted in 1973 by SB 100.

After receiving my LL.M. in London, I entered private practice and represented applicants, opponents and local governments in many hearings and appeals. Among those cases were persuading Clackamas County to deny its own permit for gravel mining, getting approval of the Lake Oswego water system expansion from West Linn, getting the Douglas County plan and regulations acknowledged by the LCDC, and assisting Cannon Beach in the adoption of its short-term rental ordinance. I’ve also represented a number of local governments, including Oregon City, for the past 25 years.

Perhaps my most unusual task was dealing with the Rajneesh sect, which came to Oregon in 1981 and sought to establish a city on the “Big Muddy Ranch” in Wasco and Jefferson counties and managed to antagonize just about everyone. While the land use efforts were generally successful, the other activities of that group in taking over an adjacent city, poisoning salad bars and bringing in homeless people to register to vote in sparsely populated areas, resulted in its downfall. The offensive tactics of that group, and the reaction to them, tell us a lot about Oregon.

Besides the cases and controversies, I have been able to watch new planners and lawyers grow for over 40 years, teaching at the Portland State University School of Urban and Public Affairs and at the Lewis and Clark and Willamette law schools.

In addition, I have been privileged to serve as chair of the Section on State and Local Government Law of the American Bar Association, regional vice president of the International Municipal Lawyers Association, as well as give many presentations on land use in the United States and internationally.

It has been a good run with fascinating people, places and events. While I will end my law practice, I hope to continue to teach, write and speak, especially on land use planning issues, for as long as those efforts are useful. Thanks for reading and commenting on this column.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer and has specialized in land use law for more than 40 years. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

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The 2009 Oregon legislative session is over. While taxes, the budget and health-care reform all were important legislative topics, there was precious little done to reform the Oregon planning system. The 2005 Legislature funded the “Big Look Task Force,” to review the Oregon system and make recommendations to improve it. Four years and more than a million dollars later, the only bill identified with the task force to become law was House Bill 2229 – inconsequential and ambiguous legislation that faced little opposition because it did nothing. When both 1000 Friends of Oregon and Oregonians in Action testified in favor of the bill, it was a dead giveaway that it did nothing.

Although hobbled in its work by the Measure 37/49 controversy, the task force recommended some controversial changes to Oregon planning. Chief among those efforts was an attempt to allow counties to form regional entities to determine farm and forest lands under regional criteria. Even though these determinations were to be consistent with state law, the possibility of an alternative system bothered land-use activists. This controversial provision was changed to allow for “re-acknowledgment” of existing plans to allow for mapping corrections for individual parcels and allowing them to be designated “non-resource” and thus available for low-intensity development. Technically, this reevaluation of individual parcels may be done under current law, but specifically allowing it through this process probably makes someone feel good. The fact that the law books are littered with such superfluous legislation does not seem to bother anyone.

Another “shambolic” (the word comes from Monty Python) change to the law comes in the form of four “overarching principles” that are to be used as guides for enactment of legislation and rules, and in the interpretation of the standards used in the Oregon land use system. These principles are so vague that almost no one could disagree with them – i.e., provide a healthy environment, sustain a prosperous economy, ensure a desirable quality of life and equitably allocate the benefits and burdens of land use planning. However, besides being vague, they also are specifically “not judicially enforceable,” thus resulting in more superfluous legislation.

The legislation also addresses a current interpretation requiring “regional problem solving” – the effort to take on multi-jurisdictional problems in the hope that the Land Conservation and Development Commission will bless any result that is close to the mark, even if it’s technically deficient. That interpretation requires that all participants stay in the process and endorse the result. With an eye on an existing process in Southern Oregon, the legislation allows an existing or future process to continue even if a participant dissents or withdraws. At least here, there is a change in the law.

The legislation also expresses the hope that expenditures of funds will result in “compact development” and the use of “alternative modes of transportation” in areas of the state that are growing rapidly. The legislation also directs that the diversity of the state be considered in rule-making and allows more time for decisions if the applicant and the local government wish to mediate. Finally, the legislation allows for a “policy-neutral” review of current land-use statutes, goals and rules. For the most part, those things can be done under current law.

The question that arises was whether the expenditure of time and effort dedicated to the Big Look Task Force and the subsequent legislative response resulted in anything substantive. Those who expect more out of the planning system are disappointed that urban issues, including financing of infrastructure, were not addressed. Those who were skeptical of the program in any case, finding it too restrictive, have nothing to write home about either. But more importantly, the Oregon land-use program suffers because consideration of both the ends and means of that program were neglected. There will not be sufficient funds anytime soon to do this work. Let us hope that it is not another 35 years until the state turns its focus to its land-use values once more.

Edward J. Sullivan has specialized in land use law for nearly 40 years and is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-228-3939 or at esullivan@gsblaw.com.

Carrie A. Richter specializes in land use and municipal law in the Portland office of Garvey Schubert Barer. Contact her at 503-228-3939 or at crichter@gsblaw.com.

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Our judicial system includes both state and federal courts. State courts decide most controversies, especially among citizens of the state, and interpret and apply state law. Federal courts often deal with litigation involving the federal government, including among citizens of different states. Sometimes federal courts must either interpret or apply state law.

If state precedent is missing or unclear, those federal courts may ask the highest state court for its views on state law by posing certain questions to that state court. This process is called “certification,” and it is up to the state court to determine whether, and how, it should respond to the questions posed by the federal court.

In two recent cases, federal courts have certified questions to the Oregon Supreme Court. Both of these cases involve the disposition of claims that property has been “taken” by a governmental agency. In both cases, the federal court has asked the Oregon Supreme Court to give its views on the fact situations presented and discuss how takings law might apply.

The first case, Klamath Irrigation District v. U.S., came in July from the Federal Circuit in Washington, D.C. (a court that hears appeals from certain courts, including those of the Court of Federal Claims, which hears claims against the federal government). The case involved a long-standing dispute between the federal government on the one hand and farmers and irrigation districts on the other. The farmers and districts claimed a “taking” of their property through the reduction of available water for agriculture. The reduction occurred during a drought, and the water was retained for wildlife purposes so as to comply with the Endangered Species Act. The irrigation districts said they had contracts to supply irrigation water and could not meet those contracts under the circumstances. The farmers claimed damages because their crops and farm operations could not secure adequate water levels. The U.S. Court of Federal Claims found largely for the federal government, and the farmers and irrigation districts filed an appeal in the Federal Circuit.

Because the taking issue involved “complex issues of Oregon property law,” the Federal Circuit certified three questions to the Oregon Supreme Court. The questions included whether the plaintiffs acquired any beneficial or other property interest in water rights acquired from the United States under the Klamath Project. Another question involved the status of pre-1909 water rights. The United States and the Oregon Water Resources Division opposed any response from the Oregon Supreme Court on these questions because, among other reasons, there were pending comprehensive proceedings before OWRD to adjudicate water rights in the Klamath Basin and that proceeding could be reviewed in state court and therefore, if the Supreme Court considered the certified questions, it might prematurely resolve issues pending before OWRD. The Pacific Coast Federation of Fishermen’s Associations also opposed a response. The Oregon court need not respond to the certified questions and has given no indication yet as to its position on a response.

A second case, West Linn Corporate Park, LLC v. City of West Linn came from the Ninth Circuit, which includes Oregon, in late July and involved an inverse condemnation claim by a developer against the City of West Linn. The developer claimed the City overreached in demanding land and improvements in the course of approving a development. The Ninth Circuit certified three questions to the Oregon Supreme Court: whether a plaintiff alleging a physical taking or unconstitutional exaction must first exhaust local remedies under Oregon law before resorting to courts, whether construction of off-site improvements imposed as a condition of development approval may constitute an exaction or physical taking, and whether irregularities in a street vacation rendered that action void. As with the federal circuit case, the Oregon Supreme Court has not responded to the requested certification.

The Klamath Basin case may well be beyond the Oregon court’s review because of the pending proceedings, and that court may elect not to consider that case under the circumstances. The West Linn case is of more interest to urban lawyers, as the characterization of the City’s actions as physical invasions would, if accepted, change the “takings remedy” available to the plaintiffs. Currently, a plaintiff generally must challenge such a condition through the state court system. If the Oregon Supreme Court characterizes all exactions involving land as physical invasions, plaintiffs may proceed directly to federal court. Equally important is whether off-site improvement requirements themselves may implicate a physical taking. These questions have not been answered by a United States Supreme Court case and it would be ironic if the same state in which the famous Dolan case arose over the limits of the use of development conditions would be the state in which these important clarifications of Dolan would come.

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 is the immediate past chairman of the State and Local Government Law Section of the American Bar Association. Contact him at esullivan@gsblaw.com or 503-228-3939.

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Urban renewal has changed the face of Oregon’s urban landscape. Portland, Salem, Eugene and Beaverton, among many other local governments, have used urban renewal to acquire and dispose of property, and to provide for clean and efficient urban development in places that were derelict and neglected. Pioneer Place, the South Auditorium Area, and the Hillsboro “Silicon Forest” all benefited from urban renewal plans and funds. Yet the ease with which urban renewal funds can be used for pet schemes may prove to be grist for the mill of the initiative process so as to modify or remove these tools from the arsenal of measures needed to meet the challenges of derelict urban areas.

Urban renewal came to Oregon in 1951, when the legislature enacted enabling legislation allowing cities and counties to use this tool, which itself was authorized by Congress in the Housing Act of 1949. The notion was that local governments should plan in advance for those derelict areas that required assistance, chiefly through acquisition of lands, demolition of structures and provision of new infrastructure for the areas “renewed.” As was the case nationally, property owners resented having their lands acquired, even for fair market value, if their particular property was in good condition despite being in a blighted area. Policy makers justified the use of this tool to improve the physical and social health of the urban area through the adoption of urban renewal plans, including specific budgeting for authorized projects.

Both the federal and Oregon courts found urban renewal to be constitutional and the use of those tools generally to be policy matters, to which the courts gave deference to the judgment of local officials. If the voters disagreed, they could register their views at the ballot box.

The use of urban renewal was not always popular. In Beaverton, for example, controversy over the use of urban renewal resulted in charter amendments and the termination of the local urban renewal authority, as well as the passage of legislation limiting the powers of urban renewal agencies in general. When the United States Supreme Court upheld (for the third time in about 50 years) the use of condemnation in urban renewal, there was a national firestorm of protest that often resulted, as it did in Oregon, in restrictions on the use of condemnation as a part of urban renewal. The Oregon restrictions were adopted by initiative and were consistent with tax limitation measures that were similarly adopted through initiative and reflective of a general mistrust of government.

At present, there are two controversial aspects of urban renewal that will be examined by the Land Use Board of Appeals and the courts to determine their validity. The first is the use of “satellite” areas – those not contiguous to the Urban Renewal District, but added to accommodate special projects. The David Douglas School District has been the recipient of favorable consideration by the Portland City Council in the use of downtown urban renewal funds by creating a satellite “island” and providing funds to build a school. That proposal was examined by the Portland City Attorney’s Office, which expressed concerns over the viability of the proposal.

The second issue is the lack of specificity in the description of the projects in the urban renewal plans. State law requires a fairly detailed discussion of plan objectives and projects; however, those parameters have not been tested.

Public confidence is necessary for urban renewal agencies to operate. With tax limitation measures affecting tax levies and general fund expenditures, the temptation is to use other means and other funds for pet projects. Abuse of that trust will make urban renewal a tempting target for the initiative process.

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 is the immediate past chairman of the State and Local Government Law Section of the American Bar Association. Contact him at esullivan@gsblaw.com or 503-228-3939.

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In early May, the Oregon Supreme Court handed down a decision that was little noted, but quite significant to those affected by the approximately 7,500 Measure 37 claims against state or local governments. The decision will pave the way for expedited resolution of those claims, both granted and pending, as provided by Measure 49. After all the fireworks generated by payment for land-use regulations or rolling back those regulations, the Measure 37 epic ended with a whimper.

The case was Corey v. Department of Administrative Services and it dealt with issues only a lawyer could love. Ms. Corey and an entity controlled by another member of her family filed a Measure 37 claim against the state. The Department of Land Conservation and Development, without a hearing, granted the claim in part by a decision under Measure 37, choosing not to apply certain land-use regulations that were imposed after the claimants acquired their property. The issue was over the date of acquisition, which determined which land-use regulations would not be applied. The claimants disagreed with DLCD and filed cases in both the Clackamas County Circuit Court and the Oregon Court of Appeals, contending that the relief given was insufficient under the measure and that additional land-use regulations should have been waived. They also alleged that the insufficient relief given entitled them to attorney fees and costs.

The Oregon Department of Justice defended the state in both cases and moved to determine whether the case belonged in the court of appeals, suggesting that the case should be heard in the circuit court, which, it argued, had jurisdiction. While it is common to file in multiple forums if jurisdiction is uncertain, many observers believed the likely outcome would be the dismissal of the case in the court of appeals and for the matter to be heard initially by the circuit court.

It didn’t happen that way. The court of appeals (with perhaps a little irony) used an earlier Oregon Supreme Court case in which that court said that if there were a recognized property right at issue, then deprivation of that right should have been the subject of a hearing, and the matter belonged in the court of appeals, even if that required hearing did not occur. The court found that the partial grant of the claim was a recognized property right triggering the right to a hearing. DLCD sought review of the decision by the court of appeals and observers noted that if the case were correctly decided, there would be different review processes for those claims that were denied altogether (which would be heard in circuit court) and those that had been granted in part, but for which the claimant sought additional relief (which would be heard in the court of appeals). As a result, review of Measure 37 decisions was in disarray.

Measure 49 was then enacted and said that any Measure 37 claim that had not been developed sufficiently to be recognized as a “vested right” must use the process provided in that measure, requiring a reapplication for relief under new standards. While most claimants would get some relief, it certainly was not the breadth of relief provided for under Measure 37.
So in going back to the Supreme Court review of the Corey case, the court did not reach the issue of whether DLCD was correct or if the relief given by the state was sufficient because it found that the Measure 37 claim was required to go through the Measure 49 process for any relief. The court dismissed the petition for review filed by the state but did not vacate the judgment of the court of appeals, finding that the relief to which the claimants were entitled was under Measure 49 and not the original version of Measure 37.

By characterizing Measure 37 relief as superseded by Measure 49, the court paved the way for various motions for similar outcomes in lower Oregon courts. We can now expect dismissals of pending litigation over most Measure 37 cases while the claimants apply for the more modest relief provided by Measure 49.

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 is the immediate past chairman of the State and Local Government Law Section of the American Bar Association. Contact him at esullivan@gsblaw.com or 503-228-3939.

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I’ve just returned from a two-week visit to the Islamic Republic of Iran. While there are many social and political contrasts that can be made – and many comments about the hospitable people, good food and natural beauty of Iran – this column will focus on the specifics of planning for a country of 70 million people. Iran is about a third of the size of the continental United States and its climate ranges from the jungles of the Caspian Sea to high mountains and desert areas near the Pakistani and Afghan borders.

One of my companions on this trip was Steve Kafoury, a former legislator and Portland School Board member, who with his now ex-wife (and former legislator and city commissioner) Gretchen, served in the Peace Corps in Iran during the mid-1960s. We traveled together to Zanjan, where the Kafourys originally spent their time in Iran. In 1964, Zanjan was a small town where transportation was mainly by bicycle and mule. There were few buildings higher than one story. The journey there from the capital in Tehran took many hours, due to congestion and unpaved or badly paved roads.

There could hardly be a greater contrast between that time and this. The Islamic Revolution of 1978-79 was over both the pace of social change (which many found to be too fast and muddled with corruption) and the use of oil revenues. The former Shah unwisely invested in military hardware during an economic downturn. One result of the Revolution was that more oil revenues remained in the country, even though there were, and are, significant differences over the distribution of this wealth. No small part of these revenues has been invested in infrastructure. Zanjan, like the rest of Iran, now has good connections with the capital and other cities – often by freeway. Most major cities are overwhelmed by cars, motorcycles, motorbikes and other more modern forms of transportation. It also seems that everyone has a cell phone. The adverse impact of such quick modernization can be found in the pall of smog that hangs over the cities.

Iran has a good system of air links among major cities and is adding to its rail links. The results of a massive population increase and urbanization have created many headaches for the country’s planners. The median age of this population of over 70 million is 19.6, and more than 13.5 million people now live in the Tehran metropolitan area.

There is not nearly enough housing for the younger portions of the population, so several generations may be required to live together. Younger people are inclined to put off marriage and having their own children. The bulge at the younger end of the population curve also strains educational and social resources. The urge of self-propulsion, as in China, is overwhelming and air pollution is a major problem. As the regime frequently decides to send oil revenues to Lebanon for reconstruction or other purposes, response to these significant domestic planning problems is often impaired.

That is not to say that Iran is bereft of any planning or that its citizens do not know what must be done. I was often struck by the realistic assessment citizens made of the country’s domestic problems. There are some local laws preserving historic areas, and others setting height limitations or taking on innovative transportation solutions. However, it appears that the country’s leadership has priorities other than planning. While there are dedicated lanes for bus transit (in sex–segregated buses) and new, limited extensions of the subway system in Tehran, the path of least resistance appears to favor more autos and motorbikes rather than mass transit. In this sense, the irony is that the availability of oil (which is about 10 cents per liter for a certain number of liters per month) may actually be a curse to the country and prove as ruinous to the health of its citizens as it has been for their counterparts in the West.

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 is the immediate past chairman of the State and Local Government Law Section of the American Bar Association. Contact him at esullivan@gsblaw.com or 503-228-3939.

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The Oregon Legislature held a three-week supplemental session in February to deal with budgetary matters and a limited number of bills. The session was well-managed, in order to remain within self-imposed time limits, appear efficient and deal with fiscal priorities in the light of fewer dollars than anticipated being available.

Three of the bills considered in the supplemental session related to land use. The first two were budget bills. One of these bills funded the “Big Look Committee,” which suspended its operations during the time between the adjournment of the session and the vote on Measure 49 (the outcome of which was unknown when the 2007 session adjourned).

The other budget bill reflected the passage of Measure 49.

Before the regular 2007 session adjourned, the Legislature had appropriated additional funds for the operations of the Department of Land Conservation and Development (DLCD) to meet the expenses of Measure 37 claims that were already in the court system. Most of the claims that were pending before state or local governments in June 2007 were placed on a one-year hold, awaiting the outcome of the vote on Measure 49. There was no such hold on those claims already in litigation.

Measure 49 changed all that.

All Measure 37 claims that were not vested must be refiled under different criteria for approval and, implicitly, Measure 37 claims already in the courts must be dismissed – so that the refiling and re-evaluation may take place under Measure 49. Although there will be resistance by some claimants, it is likely these litigation costs will be much less than under Measure 37.

However, the transition costs between the two measures are not inconsiderable. Measure 49 sets up three tracks for Measure 37 claimants – and only these claimants – to obtain relief. The first track allows up to three homesites (including any existing homesite) as relief for those who can show they qualified for relief under Measure 37. The second track allows up to 10 homesites (again including any existing homesite) for those who qualify, but can show losses equivalent to the number of homesites claimed. The third track exists for those who received Measure 37 relief, and lawfully committed their land to the use or uses granted in the relief, before Measure 49 was passed by the Legislature or by the people (that issue must be litigated). DLCD is required to send a notice to all Measure37 claimants, requiring them to elect among these three tracks. They have asked that the costs for these notices, and processing of Measure 49 claims during the 2007-09 biennium, be dealt with during the supplemental session.

DLCD is sending notices to those who filed claims on property held since before 1973, when the current land-use system was enacted. These claims are thought to be the easiest to process and grant relief, especially if the claimant chooses the first track. Those claims filed on lands held since 1973 or later will take more time – and money – to deal with. The remaining 100 or so vested rights claims will be processed locally, with DLCD no doubt looking over the shoulders of local zoning officials.

This substantive bill is called the “Phillips Fix” because it sets about to modify a 2007 Land Use Board of Appeals decision entitled Phillips v. Polk County. Phillips correctly interpreted Oregon law so as to prevent changes to lot or parcel boundaries if the resulting tract were less than the minimum lot size allowed in the applicable zone. The results of that case were too much for rural landowners and planners, who had practical needs for lot line adjustments that did not involve new uses. The Association of Oregon Counties, the Oregon Chapter of the American Planning Association and DLCD worked out an acceptable bill and presented it to the Legislature. The bill was uncontroversial and passed easily.

If only all land-use proposals in the state Legislature could be this uncontroversial. The supplemental session was a welcome respite from the land use wars that have plagued the state in recent years.

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 is the immediate past chairman of the State and Local Government Law Section of the American Bar Association. Contact him at esullivan@gsblaw.com or 503-228-3939.

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Planning is not supposed to be about personalities. It’s supposed to be the somewhat methodical study of land uses and structures – and that is what it is most of the time.

On occasion, however, individuals come forward and leave their own imprints on our lives and times. Their impacts on Oregon’s statewide planning system affect the lives of those in communities throughout this state.

Such an individual is Ron Eber, the farm and forest specialist for the Oregon Department of Land Conservation and Development, who will leave public service this spring after 32 years of defining and protecting the resource lands of the state. Over the years, both his job and the public’s perception of it have changed markedly. 

When Eber first joined the DLCD, the state had just passed Senate Bill 100, establishing an active state presence in land-use planning and providing for state standards, in the form of land-use planning “goals,” that offered direction to cities and counties that did Oregon’s “on the ground” daily planning and land-use regulatory activities. The notion that the state could, and should, undertake such regulatory oversight was, and generally still is, a departure from the typically laissez-faire approach of most states, which delegate land-use planning and regulation to local governments without any further policy review. 

Once the state determined it should be involved in land-use planning and regulation, it charged the DLCD with presenting policy to the Land Conservation and Development Commission to choose both the areas where the state would become involved and the precise policies it would adopt. One of the primary justifications for state participation in land-use planning was the preservation of farm and forest lands in those areas where the high-value farm and forest lands were susceptible to loss from suburbanization and sprawl. The difficulty of implementing such a policy was that it interfered with the economic expectations of rural landowners and Realtors who profited under the existing land-use scheme.

It was Eber and his colleagues at the department who had to implement restrictions on urban expansion that some legislators were not enthusiastic to support. Eber and his colleagues had to designate which soils would be protected for agricultural use. They had to deal with landowners and local governments that were less than candid about their actions. The masks of “local control,” five-acre “intensive farms” and “property rights” were rearguard actions to delay or halt what the Legislature and voters had directed. Eber and his colleagues had to deal with continuous additions to the list of nonfarm uses allowed in “exclusive” farm use zones. Dealing with resistance to the law and prevarication was the order of the day, but Eber and his colleagues did it with tact and honor.

When some landowners attempted to evade state regulations on housing in farm zones (and get an unlawful property tax break), Eber noted that dwellings in farm zones must be “customarily provided in conjunction with farm use” so that “martini farms” were not permitted.

When some counties attempted to evade preservation of farmlands by approving “farm management plans” that showed cultivation of blueberries (which would be planted when the house was built, but never cultivated thereafter), it was Eber and his colleagues at the department who worked to develop more exacting requirements for the state’s policy of farmland preservation, including a statewide minimum lot size for farmland and a minimum gross income from farmland before a new house could be built.  These measures weren’t popular.

But Eber did his work with a sense of fairness and equanimity. It was not uncommon for him to work with property owners and those who were not friends of the state’s land-use program to discover and exercise rights and opportunities that were available to them under the law, some of which they may not have been aware of. He did not use his expert knowledge of the land-use program to play “hide the ball” but rather to make the system work.

We don’t give gold watches or retirement bonuses to faithful public servants who carry out what we say is our policy, even if we don’t always believe it. But there is a little bit of heaven reserved for those who are faithful to their charge. Ron Eber will inhabit that place.

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 is the immediate past chairman of the State and Local Government Law Section of the American Bar Association. Contact him at esullivan@gsblaw.com or 503-228-3939.

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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 esullivan@gsblaw.com or 503-228-3939.

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I wrote this article before the results of the vote on Measure 49 were known.

Attempts at prescience are risky; however, it’s helpful to concentrate on the themes used by the two campaigns to reach voters and convert them to their causes, because those themes draw upon deeply seated beliefs and preferences among Oregonians.

They tell us much about ourselves.

Those favoring Measure 49 saw the polls that showed a certain “buyer’s remorse” over Measure 37, which was passed in 2004 and which Measure 49 substantially revises. A principal theme for Measure 49 proponents was that Measure 37 was sold to Oregon voters on a theme of “fairness,” using cases like that of Dorothy English, a nonagenarian who stated that she wanted to pass on her land to her children and others but was unable to do so due to land-use regulations.

The 2004 campaign on Measure 37 also stressed ways for those who had sufficient land to divide for residential use to do so. This was an especially potent theme in rural areas of the state, where such land was available. And it appealed to the free market views of those who believe such opportunities should be available.

The consequences of Measure 37 were somewhat different from these expectations: The measure was certainly used for claims requesting residential uses, even if those claims might never eventually be realized. However, the proliferation of claims for large residential subdivisions, rock quarries, shopping malls and billboards provoked a reaction that proponents of Measure 49 exploited.

Another familiar theme used by Measure 49 proponents was the loss of natural resources to development. This theme proved effective in combating frontal assaults on the state’s land-use program through the initiative process in the 1970s and 1980s. Proponents of Measure 37 in 2004 were sufficiently clever not to frame their attacks directly on that system; instead, they spoke in broader terms of “fairness” and “just compensation.” By reframing their response to those themes in pointing to the results of Measure 37 in the loss of resource lands, Measure 49 proponents had an effective tool to advance their cause.

Opponents of Measure 49 weren’t bereft of arguments, however. These opponents effectively changed the focus of Measure 37 in 2004 from results to ideology, tapping into Oregon’s libertarian preferences, previously manifested in the effective decriminalization of marijuana and the passage of death with dignity laws. By stressing “fairness” and “just compensation” as well as the relatively innocuous addition of a rural home or two, Measure 37 was passed. The loss of this “freedom” to use property as one sees fit is an argument that resonates among many Oregonians.

Another strong argument employed by Measure 49 opponents related to the natural suspicion of lengthy and complex legislation. Opponents cleverly used a “wolf in sheep’s clothing” theme, ascribing dark motives to Measure 49’s authors.

By going on the offensive, Measure 49 opponents kept their base supporters with them, stressing the threat to the perceived benefits from Measure 37. Measure 49 proponents failed to attack that base of support by stressing that, despite the number of approved Measure 37 claims on paper, the lack of transferability of such claims, the fact that transferees of property even where construction is complete get, at best, a nonconforming use that generally cannot be changed without local permit approval, and a lack of financing for construction on approved claims, all will militate toward relegating most claims to paper approvals without an “on the ground” effect.

It’s likely the arguments above, or their variations and combinations, were the most effective determinants of the Measure 49 vote.

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 esullivan@gsblaw.com or 503-228-3939

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